Date: 20160302
Docket: T-2225-12
Citation:
2016 FC 269
Ottawa, Ontario, March 2, 2016
PRESENT: The
Honourable Mr. Justice Simon Noël
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BETWEEN:
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EDGAR SCHMIDT
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Plaintiff
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and
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THE ATTORNEY
GENERAL OF CANADA
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Defendant
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and
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CANADIAN CIVIL LIBERTIES ASSOCIATION
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Intervenor
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JUDGMENT
AND REASONS
TABLE OF
CONTENTS
I.
OVERVIEW
[1]
In this simplified action, Mr. Schmidt, the
Plaintiff, submits that the Minister of Justice and the Clerk of the Privy
Council do not correctly assume their examination and reporting duties pursuant
to section 3 of the Bill of Rights, section 4.1 of the Department
of Justice Act, and subsections 3(2) and 3(3) of the Statutory
Instruments Act when reviewing bills and draft regulations in order to
determine whether or not some of their provisions breach guaranteed rights
protected by the Canadian Bill of Rights and the Charter of Rights
and Freedoms. The Minister of Justice is responsible in regards to bills
and some regulations, whereas the Clerk of the Privy Council in collaboration
with the Deputy Minister of Justice is responsible for all other draft
regulations.
[2]
Mr. Schmidt submits that rather than
applying the so-called “credible
argument” standard, the “more likely than not inconsistent”
standard should apply. For the reasons that follow, I come to a different
conclusion. By interpreting the relevant statutes, I find that the “credible argument”
standard applies. In reaching that conclusion, I will utilize the following
interpretive tools: the plain meaning approach, the legislator’s intent, and
the constitutional and institutional contexts. The declarations sought by Mr. Schmidt
will not be made as it is the opinion of this Court that the arguments
supporting the Defendant’s position prevail.
II.
INTRODUCTION
A.
Introduction
[3]
Pursuant to section 3 of the Canadian
Bill of Rights, SC 1960, c 44 [the Bill of Rights];
section 4.1 of the Department of Justice Act, RSC 1985, c J-2,
and subsections 3(2) and 3(3) of the Statutory Instruments Act, RSC 1985,
c S-22, the Minister of Justice must ascertain whether proposed
legislation and regulations are inconsistent with the Canadian Charter of
Rights and Freedoms (Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11) [the Charter] and the Canadian Bill of
Rights. If the Minister of Justice ascertains that an inconsistency with
guaranteed rights does indeed exist, she must file a report to the House of
Commons indicating her conclusion. In regards to most regulations, it is the
Clerk of the Privy Council, in consultation with the Deputy Minister of
Justice, who will ascertain whether an inconsistency with guaranteed rights
exists. If indeed they opine that an inconsistency in regards to regulations is
present, they will report their conclusion to the regulation-making authority.
[4]
The statutory provisions that create these
examination and reporting obligations, taken together, are referred to as the “examination provisions”.
The Minister’s duty to examine proposed legislation and the subsequent
reporting duty are triggered following the internal draft legislation
development processes within the Department of Justice in conjunction with the
client (who is the responsible department under the legislation).
[5]
The legal issue at hand is whether the standard
of compliance mandated by the examination provisions is met by the existence
of:
1. An argument that is credible, bona fide, and capable of being
successfully argued before the courts, known as the “credible argument” standard; or
- An argument that
is more likely than not inconsistent with guaranteed rights, known as the “more likely than not
inconsistent” standard.
[6]
The Defendant, the Attorney General of Canada,
essentially represents the Minister of Justice who interprets the examination
provisions to require the application of the “credible argument” standard in order to
ascertain whether the Minister’s duty to file a report is triggered. The
Minister of Justice currently defines the “credible argument” as an argument that
is credible, made in good faith, and capable of being successfully argued before
the courts.
[7]
The Plaintiff, Mr. Schmidt, argues that the
Minister of Justice’s interpretation of the examination provisions is illegal.
He argues that the correct interpretation of the examination provisions yields
the stricter of the two standards, which he interprets as the “more likely than not
inconsistent with guaranteed rights” standard. The Plaintiff
concludes that the departmental interpretation of the examination provisions is
contrary to their grammatical and ordinary sense; is inconsistent with their
entire context; frustrates the purposes of the provisions instead of fostering
them; does not fit with the scheme of the relevant legislation; and does not
respect the requirements of the rule of law.
[8]
In response, the Defendant brings forward the
following general arguments: the House of Commons has never expressed
dissatisfaction with the application of the “credible argument” threshold;
Parliament confirmed it wants the Minister to continue to play her political
and statutory roles, not become a judge ruling on the validity of proposed
legislation; the “credible
argument” standard is proper as it allows the Executive to
propose policy development, even proposals that may attract legal risk short of
clear unconstitutionality; the “credible
argument” standard reflects Parliament’s intent to allow each
branch of government to perform its appropriate role in ensuring guaranteed
rights are respected; and the rule of law functions in symbiosis with other
constitutional principles, namely democracy and the separation of powers.
B.
Roles and Duties
[9]
One difficulty we face in this case lies in
situating the legal issue within the wide framework of government. The
following graph is a simplified visual representation of the institutional
framework relevant to this case:
[10]
In order to coherently approach the legal issue
at play, I will first describe the three branches of government, namely the
Executive, Parliament, and the Judiciary. But beforehand, I would like to
insert two caveats: first, I will not pretend to fully describe the inner
workings of government in their full complexity; the parties, through the
voluminous evidence filed and through cross-examination, have provided a much
fuller and more nuanced portrait. Second, the evidence filed has been redacted
in order to properly protect solicitor-client privilege. This Court does not
have access to practical examples of the actualization of the examination and
reporting duties. As such, the role of the Court is limited to determining the
acceptability of the framework created by the examination provisions; the
Court’s role does not entail determining the acceptability of any specific
actions taken by the Minister of Justice.
[11]
For the purposes of the present reasons, I will
limit my descriptions to what I consider essential. To do so, I have gleaned
information from:
1. The Statement of Agreed Facts submitted by the parties;
2. The affidavit and cross-examination of Deputy Minister of Justice
William Pentney;
3. The affidavit and cross-examination of Principal Analyst with the
Parliamentary Information and Research Service of the Library of Parliament of
Canada John Stilborn;
4. The affidavit and cross-examination of Corporate counsel with the
Department of Justice of Canada Deborah MacNair;
5. The affidavit and cross-examination of Former employee in the Human
Rights Law Section of the Department of Justice of Canada Martin Low;
6. The affidavit and cross-examination of Former Director and General
Counsel of the Legal Risk Division and current Director and General Counsel of
the Law Practice Management Division at the Department of Justice of Canada
Patrick Vézina; and
7.
The affidavit and cross-examination of Former
Chief Legislative Counsel and Assistant Deputy Minister of the Department of
Justice’s Legislative Services Branch John Mark Keyes.
[12]
The Executive is responsible for leading the
day-to-day operations of the Government of Canada. It also develops policies
that will eventually be crafted into bills. The Executive is composed of
members from the elected political party in power. As the legislative branch of
government, Parliament debates proposed legislation and eventually votes;
determining whether or not bills will become laws. Parliament includes entities
such as the House of Commons and the Senate, and their sometimes lesser-known
subdivisions such as various committees, the Library of Parliament, and the
Office of the Speaker, among others. The Judiciary examines laws for
consistency with guaranteed rights and interprets legislation. The Judiciary is
composed of judges and prothonotaries who are appointed by the Executive.
[13]
Within the Executive branch, we find Cabinet,
the entity that regroups the highest-ranking members of the elected government
in power. The Prime Minister appoints Members of Parliament to the head of a
certain ministry, making them ministers. For our purposes, only the Minister of
Justice is relevant. The Minister of Justice is the Minister responsible for
providing legal advice to Cabinet. The Minister of Justice is focused on
advising policy officials across government on how to achieve their policy
objectives while respecting the Constitution, the Charter, and other
legal rules. The Minister of Justice, as a single person, cannot properly
provide legal advice to Cabinet. To perform her duties fully, the Minister of
Justice delegates parts of her responsibility to the Department of Justice.
Therefore, the Department of Justice is an extension of the Minister of Justice
which helps her fulfil her role. In a sense, the Department of Justice is a law
firm that provides legal advice to the other ministries who are the clients.
The person who is Minister of Justice in fact holds two major roles at once:
that of the Minister of Justice, as the legal counsel to the Executive, and
that of the Attorney General, as the federal government’s lawyer in all
litigation. The Attorney General represents the legal position of the Executive
in all litigation involving the federal government.
[14]
The Minister of Justice further delegates her
responsibilities. Notably, the Minister of Justice delegates the responsibility
of managing the day-to-day operations of the Department of Justice to the
Deputy Minister of Justice. In such capacity, the Deputy Minister of Justice
may, for example, issue directives to Department of Justice staff. For the
purposes of the case at hand, three of the many subdivisions of the Department
of Justice are relevant: the Legal Services Unit, the Human Rights Law Section,
and the Legal Services Branch. First, the Legal Services Unit assists various
departmental clients in identifying legal issues, notably those involving the Charter.
The Legal Services Unit, under its Legal Risk Management branch [LRM], creates
frameworks which other bodies use to discuss and analyze legal risk. Second,
the Human Rights Law Section provides advice when a risk of an inconsistency
with guaranteed rights has been identified by the Legal Services Unit. The
Human Rights Law Section advises on risk of infringement and the likelihood of
successfully defending a legal challenge. Third, the Legal Services Branch is
specialized in drafting legislation and examining draft bills for consistency
with guaranteed rights. The Plaintiff, Mr. Schmidt, worked as legislative
counsel within the Legal Services Branch.
C.
Process
[15]
In order to understand this case, it is
important to fully grasp the detailed process by which political objectives
become law. The following section breaks down that process into six major
steps. They are: (1) formulating a draft policy and a legislative proposal; (2)
drafting the bill; (3) certifying the draft bill; (4) determining if the
Minister’s duty to report is triggered; (5) debating and voting on the bill in
Parliament, followed by royal assent; and (6) an optional review step if the
law is amended in the future. Witnesses have specified at trial that such an
optional step has never been put into practice although it exists in theory.
Each step is further broken down into its smaller parts and processes. For the
sake of logical coherence, there will be some repetition as to the roles and
duties expressed above. The specific process as to regulations is also omitted
in the graph below but will be summarily detailed further down. The following
graph is a simple representation of the process an idea undergoes to become a
law.
Step (1) -- Developing a
Draft Policy and a Legislative Proposal
[16]
The process of creating a law begins with an
idea, typically from a member of the Executive. This member of the Executive
will seek legal advice from the Minister of Justice in order realize his or her
project. The Minister of Justice delegates this responsibility to give legal
advice to the Department of Justice. The member of the Executive mandating the
Department of Justice with transforming that idea into a policy and eventually
into a draft bill is known as the departmental client.
[17]
For this step, two previously mentioned sections
of the Department of Justice are particularly relevant: the Legal Services Unit
and the Human Rights Law Section. In consultation with all relevant parties, a draft
policy will be developed which will serve to guide the elaboration of a
legislative proposal. A legislative proposal details the parameters the Legal
Services Branch must follow to transform the policy into a draft bill. The
legislative proposal is not a draft bill in proper form; it is rather the
roadmap detailing what a bill will entail. The departments will consult with
each other and revise the policy and the legislative proposal according to all
the feedback provided.
a) Legal Risk Management as a Function of the Legal Services Unit
[18]
To develop a draft policy and a legislative
proposal, the Legal Services Unit assists various clients in identifying legal
issues, notably those involving Charter rights. To do so, the Legal
Services Unit develops and applies the concept of Legal Risk Management.
[19]
Legal Risk Management is an englobing concept
that aims to aggregate different types of legal risk in order to guide
decision-making. Other branches of the Department of Justice use the LRM
framework to perform their own legal analyses. The “Risk” portion of “Legal Risk Management”
only refers to “risk to
government operations”. It does not command the analysis of “risk to the state as a whole”
or “risk to the public”
because the client is a government department. This reflects the role of the
Department of Justice as a “law
firm” - type entity: principles such as solicitor-client
relationship apply. LRM assesses issues such as the division of powers,
administrative law, and guaranteed rights under the Charter and the Bill
of Rights. LRM applies when the Department of Justice is mandated to draft
a bill, but no longer applies once the bill is before the Legislative Branch
(Parliament) for consideration. The LRM policy does not dictate what Ministers
(Members of Cabinet) can and cannot do; it only addresses how Department of
Justice counsel advising the Minister of Justice must accomplish their duties.
For example, LRM frameworks propose standardized vocabulary and various scales
to describe risks.
[20]
When a LRM analysis is performed, a policy is
analyzed on two fronts in order to ascertain its overall legal risk. The first
front is the risk of a negative outcome following a hypothetical court
challenge. The second front is the impact of that negative outcome on
government. The “impact”
factor considers solely impacts on “government operations”, not on “the state as a whole”
nor “in the public
interest”. Factors influencing the “impact” analysis are, for example,
administrative impact, reputational impact, financial impact, legal impact and
so on. Once the legal risk level has been determined, the legal risk evaluation
is communicated to the client and the Legal Services Unit will suggest options
to alleviate the legal risks identified. After that, the client department will
be in position to decide what it wants to do about that legal risk. Risk
tolerance or risk aversion of the client is thus obviously an important factor.
[21]
If the LRM analysis determines a bill to be
fully unacceptable or illegal, in this situation, a formal LRM risk evaluation
will not be given to the client as the situation will be outside the scope of a
formal LRM risk evaluation. Rather, the Legal Services Unit will refuse to
evaluate and will instead advise not to follow that course of action. If the client
ministry does not agree and wants to proceed regardless, it is the Legal
Services Unit’s policy to “Brief
Up”, meaning to raise the issue to upper management. “Briefing Up” is
performed under the duty of counsel working for the Legal Services Unit, not
under the performance of a LRM Risk Evaluation. Ultimately, it is still up to
the client to decide whether it will pursue development of the policy, but the
effect of “Briefing Up”
is that senior representatives of the Department of Justice will have discussions
with senior representatives of the departmental client.
b) The
Role of the Human Rights Law Section
[22]
The second relevant section of the Department of
Justice at the policy and legislative proposal development stage is the Human
Rights Law Section. The Human Rights Law Section is a specialized section which
deals exclusively with human rights issues and Charter analysis. If the
Legal Services Unit identifies potential inconsistencies in regards to
guaranteed rights, it will consult the Human Rights Law Section in order to
obtain its specialized advice.
c) Preparing the Memorandum to Cabinet
[23]
Following the multiple cycles of feedback from
the relevant parties, the draft policy and the legislative proposal are
inserted into a wider document called a Memorandum to Cabinet. A Memorandum to
Cabinet is a document addressed to Cabinet from the client Minister, which
contains all the information necessary for Cabinet to discuss and debate the
merits of following through with an idea. It contains multiple types of opinions:
financial, political, legal, etc. Cabinet may approve the Memorandum, propose
amendments, or refuse to usher the project any further.
Step (2) -- Drafting the
Bill
[24]
Assuming the Memorandum to Cabinet is approved,
the instructions within the legislative proposal are forwarded to the Legal
Services Branch of the Department of Justice in order to be transformed into a
draft bill. Similar steps to the development of a draft policy (Step 1)
are repeated in order to draft a bill. Notably, all the parties involved will
provide feedback, analyze the project for inconsistencies with guaranteed
rights, and consult each other. If necessary, Cabinet may be asked to approve
another Memorandum to Cabinet reflecting various opinions and amendments
related to the project. It is important not to confuse the Legal Services
Branch, which is primarily tasked with legal drafting, with the Legal Services
Unit, whose role is fleshed-out in the preceding section. Their names are in
part similar but their roles are not. Ultimately, the Legal Services Branch
will obtain input and go back and forth with the client, the Legal Services
Unit and the Human Rights Law Section, managing and analyzing risks, until the
project is completed. This step will transform the policy into a draft bill.
Step (3) -- Certification
of the Draft Bill or Draft Regulation
[25]
Once a draft bill or draft regulation has been
drafted and is in its final form, it must undergo what is known as “certification”.
“Certification”
is a procedure by which a draft bill or regulation is checked by senior staff
of the Legal Services Branch to confirm that the necessary examinations, such
as the system of back and forth between branches of the Department of Justice,
have been performed. “Certification”,
when completed, communicates to the Legislative Branch (Parliament) that the
necessary examinations have been performed when it receives the draft bill or
regulation.
[26]
A key attribute of “certification” is that the resulting
communication confirms to Parliament whether or not the examination has taken
place. It does not communicate what the examination is based on and does not
communicate what analyses were performed and considered in order to reach the
conclusion that the draft bill could indeed be certified.
[27]
The individual tasked with signing-off on the
certification process does not communicate the reasons of his decision to
certify or not to anyone but the Minister of Justice. The examination
provisions do not require any other entity except for the Minister of Justice
to consider the outcome of the assessment. The process of certification is
different for draft bills than for draft regulations. The following sections
outline the differences in both processes.
a) Certification of Bills
[28]
First, in regards to the certification of bills,
a “legislative drafting
counsel” or “drafter”,
working in the Legal Services Branch, provides a memo containing an analysis as
to the consistency with guaranteed rights of the draft provisions to the Chief
Legislative Counsel.
[29]
Second, the Chief Legislative Counsel is the
head of the Legal Services Branch. The role of the Chief Legislative Counsel
emanates from the Minister of Justice delegating her responsibility as Chief
Law Officer of the Crown to certify draft bills to the Deputy Minister of Justice,
who in turns delegates this responsibility to the Chief Legislative Counsel.
The task of the Chief Legislative Counsel, once he or she receives the memo
containing the opinion of the drafter, is to certify that the proposed
legislation has been properly reviewed for consistency with guaranteed rights.
[30]
Third, at this point, it is important to specify
that the certification process, which is a specific step in the life of a draft
bill, is not the same thing as the risk assessment process, which happens before
certification, as the policy and drafting processes are ongoing. The risk
assessment, contrary to certification, is a more fluid and general concept part
of the Legal Risk Management framework. Legal Risk Management and risk
assessments are performed within the Department of Justice, whereas
certification is a duty of the Minister of Justice herself (of which she has
delegated the performance to the Chief Legislative Counsel). Certification
reflects a statutory obligation of the Minister of Justice to inform the
Legislative Branch (Parliament) of the finality of the certification process.
It is a separate and distinct obligation from the Minister of Justice’s duty to
counsel Cabinet.
b) Certification of Regulations
[31]
As for the certification of regulations, a
drafter (i.e. legislative drafting counsel) within the Legal Services Branch
certifies that a draft regulation has been examined. This process, for
regulations, is known as blue-stamping; regulations do not require the approval
of the Chief Legislative Counsel. Proposed regulations are generally
pre-published in the Canada Gazette before they are presented to the
regulation-making authority for adoption. The purpose of pre-publication is to
give members of the public who are interested in reviewing draft regulations an
opportunity to do so. As is the case with counsel from the Legislative Services
Branch who draft bills, counsel who draft regulations will also consult other
departments such as the Human Rights Law Section. Furthermore, once regulations
are enacted, the Standing Joint Committee for the Scrutiny of Regulations may
review them. A “joint”
committee is composed of members from both the House of Commons and the Senate.
Step (4) -- The Duty to Report
a) Duty to Report Regarding Bills
[32]
After a draft bill has been certified, it is
forwarded to the Leader of the Government in the House of Commons. If he or she
determines that the proposed legislation meets Cabinet’s requirements, the
draft bill will be tabled, meaning introduced, into the House of Commons. Once
the draft bill is tabled in the House of Commons, which is part of the
Legislative Branch (Parliament), the draft bill is no longer a “draft bill”,
but rather simply a “bill”.
[33]
Tabling the draft bill triggers the Minister of
Justice’s personal duty to report to Parliament. The duty to report, as per the
examination provisions, calls for the Minister of Justice herself to ascertain
whether the tabled bill is inconsistent with guaranteed rights. Contrary to
certification, the duty to report of the Minister of Justice cannot be
delegated; it is a personal duty of the Minister of Justice. The duty to report
to Parliament is statutory and fulfilled by the Minister of Justice in her
capacity as a member of the Executive. Parliament benefits from a report but is
not the client of the Minister of Justice.
[34]
If the Minister of Justice ascertains that a
bill is inconsistent with guaranteed rights, she must table a report in the
House of Commons stating her conclusion. In order to reach a conclusion, the
Minister of Justice considers multiple factors, notably those of political and
legal nature. The analysis and outcome of the opinion provided by a legal
drafter to the Chief Legislative Counsel during the certification process most
likely influences whether the reporting obligation is triggered or not. Yet, it
is but one factor among others the Minister of Justice will consider when
ascertaining whether the bill is inconsistent with guaranteed rights or not.
The Minister is not bound by any opinion held by other parties.
[35]
If the Minister does indeed table a report, the
report will not be legal advice to Parliament but rather a simple communication
warranted by statute. The content of such a report would be precise, narrow,
and would bluntly state that the Minister of Justice has ascertained that some
provisions are inconsistent with guaranteed rights. The examination provisions
do not oblige the Minister of Justice to provide context or content to the
expression of her opinion as to whether the bill is inconsistent with guaranteed
rights or not. Put simply, the examination provisions do not ask for a
substantial report; they simply ask for a report on the existence of an
inconsistency. That question is answerable with yes or no.
[36]
It is worth noting that the mechanism of the
duty to report is not the only way by which the expertise of the Department of
Justice may be disseminated. If called upon to do so, during Parliament’s
review of the proposed legislation, the Department of Justice will appear,
through representatives, in committees and present other types of opinions
which are more substantial. The Department of Justice may also be called upon
to comment on any amendments being discussed. If indeed Cabinet intends to
amend the bill, it will be reviewed internally by the different units of the
Department of Justice.
b) Duty
to Report Regarding Regulations
[37]
In regards to regulations, following
certification by a legal drafter (blue-stamping), it is the Clerk of the Privy
Council, in consultation with the Deputy Minister of Justice, who will
ascertain whether an inconsistency with guaranteed rights exists. If indeed
they opine that an inconsistency is present, they will report their conclusion
to the regulation-making authority. The considerations linked to the content
and trigger point of the duty to report in regards to regulations are otherwise
the same as with bills.
Step (5) -- Bill is debated
in Parliament and Royal Assent
[38]
The penultimate step in the life of a bill, once
tabled into Parliament, is to be scrutinized, debated, and voted upon by both
the House of Commons and the Senate. Typically, a bill will undergo three
readings in the House of Commons, may be referred to a committee for in depth
analysis, be amended, and finally voted on. These steps will be repeated as necessary
in the Senate. If the Senate proposes amendments, the bill will be sent back to
the House of Commons and the process will begin anew until both Chambers vote
yes on an identical version of the bill. Ultimately, the bill will receive the
Head of State’s royal assent, also known as the Governor’s General approval
(representing the Queen), and become law.
Step (6) -- Optional – Future
Amendments
[39]
Deputy Minister of Justice William Pentney,
during cross-examination, specified that the LRM risk assessment process might
continue if amendments are proposed when the bill is before the Legislative
Branch (Parliament). To date, the certification process has never been repeated
when amendments to a bill have been proposed. However, Deputy Minister Pentney,
again in cross-examination, has indicated that the Department of Justice
continues to analyze and determine whether proposed amendments would give rise
to an opinion of inconsistency with regard to guaranteed rights. Such a
situation has never arisen but Deputy Minister Pentney indicated there have
been instances that came close.
D.
Arguments
Part (1) -- Standard of
Review
[40]
Although this case has not been directly called
a judicial review but rather a simplified action, in essence the Court is asked
to review the interpretation the Department of Justice applies to the
examination provisions. As such, the Court needs to determine upon which
standard to consider the Minister’s interpretation of the examination
provisions.
[41]
The Plaintiff submits that the standard of
review is correctness. The Plaintiff supports this argument by suggesting that
the examination provisions are interpreted by the Minister not as an
adjudicator but as an administrator of the law. The Plaintiff further argues
that the application of law calls for correctness because Parliament did not
intend to give deference to the Minister when interpreting provisions that have
to do with fundamental constitutional and institutional issues. It is the
Plaintiff’s position that the examination provisions are a core component of
the rule of law, and therefore should be interpreted strictly. To not interpret
the provisions this way would undermine the rule of law.
[42]
The Defendant counters that the Minister’s
interpretation of the examination provisions must be evaluated on the standard
of “appropriateness”.
“Appropriateness”
has never been proposed before as a standard by which a Court may consider
review; it appears to be a novel proposition never dealt with by jurisprudence.
The Defendant did not thoroughly define “appropriateness”.
[43]
This debate between the parties amounts to a
non-issue as they are essentially arguing for the same standard, and that is
correctness. “Appropriateness”,
as summarily proposed by the Defendant, is so similar to correctness, which is
widely accepted in jurisprudence, that the debate is moot. The correctness
standard of review will apply to the present reasons.
Part (2) -- Justiciability
[44]
It is important to note that the Court is only
asked to interpret the examination provisions in order to determine what the
correct standard is. The Court is not asked to review specific acts of the
Minister of Justice in application of that standard. To do so would be
inappropriate, as no specific facts have been provided to the Court and such an
analysis would most likely impede ministerial discretion and solicitor-client
privilege.
Part (3) -- Appropriate
Standard Debate and Summary of the Parties Arguments
[45]
The Plaintiff’s overarching goal is to establish
the inadequacy of the current interpretation by demonstrating that the true
purpose of the examination provisions is to ensure the Executive only
introduces bills into Parliament which are more likely than not consistent with
guaranteed rights. The Plaintiff attempts to establish that the current
framework in which the examination and reporting duties are actualized permits
fundamental breaches to the rule of law and needs to be declared unlawful.
[46]
The Plaintiff submits that the “credible argument”
standard currently applied is inadequate, as consistency with guaranteed rights
must be attained. A credible argument that is not likely to be accepted by the
Courts is never capable of ensuring compliance with guaranteed rights. When
faced with a credible argument and a shortage of jurisprudence against which to
weigh the acceptability of that argument, the Plaintiff submits that the “credible argument”
standard remains inappropriate.
[47]
Rather the Plaintiff suggests that an argument
made in a field of sparse jurisprudence against which to weigh its value should
be treated more leniently and thus more easily concluded “more likely than not
consistent” with guaranteed rights. The practical result of this
logic is that the zone of acceptability for arguments weighted against the “more likely than not
inconsistent” standard expands if there is little material or
precedent against which to analyze the proposed legislation, not that the “credible argument”
standard is ever acceptable.
[48]
The Defendant’s overarching goal is to establish
that the current interpretation of the examination provisions is correct by
demonstrating that the purpose of the provisions is to deter inconsistent
legislation from ever being developed in the first place and that such a
mechanism is effective and respects separation of powers. The Defendant, through
evidence filed, aims to convince the Court that the deterring effect of the
examination provisions against inconsistent legislation is effective and
respects the roles and responsibilities of each branch of government. As such,
the “credible argument”
standard is the correct interpretation of the examination provisions. The
Defendant argues that the Plaintiff’s proposed interpretation is wrong, as it
simply does not reflect what the examination provisions say. Furthermore,
Parliament is aware of the standard currently applied and is satisfied with it.
If Parliament wants to change the standard, it can enact legislation doing so;
it has not.
[49]
The parties’ supporting arguments can generally
be divided into three categories: those establishing the plain meaning of the
statutes, those establishing the legislator’s intent, and those regarding the
effects of the institutional and constitutional contexts colouring the
examination provisions.
[50]
As the evidence relied upon by the parties
appears in a further section, at this stage, I will simply summarize the
parties’ contentions.
[51]
The Plaintiff submits that the plain meaning of
the expression “to
ascertain whether or not a bill is inconsistent with guaranteed rights”
calls for the application of the “more likely than not inconsistent with guaranteed
rights” standard.
[52]
The Plaintiff cites many dictionary definitions
that support his idea that the word “ascertain” calls for a flexible result.
The Plaintiff desires a flexible interpretation of the examination provisions
because he believes the duty to report should be more easily triggered, notably
every time the Minister of Justice does not deem the proposed legislation more
likely than not consistent with guaranteed rights. The Plaintiff argues that
the interpretation, which only triggers the duty to report when the Minister of
Justice opines that a proposed provision is no doubt inconsistent, is
erroneous.
[53]
The Plaintiff submits that the common meaning
between the French “vérifier” and English “ascertain”
is flexible and does not imply reaching a conclusion by performing a thorough
searching review. Rather, the meaning of “ascertain” could notably be “to discover fact”,
“to make certain”,
“to discover”,
“to find truth or
correct information”, and “to find out the true or correct information”.
[54]
The Defendant counters that the Plaintiff limits
the definitions of “ascertain”
he cites to the Court as exceptions to other more common definitions, which
rather support the Defendant’s interpretation. The Defendant suggests the
Plaintiff is only citing obscure and arcane meanings of “ascertain”
while ignoring the more generally accepted definitions.
[55]
The Plaintiff submits that the wording of the
examination provisions key word “ascertain” means that the Minister of Justice must
determine whether the proposed legislation is more likely than not inconsistent
with guaranteed rights. The Plaintiff opines that the French and English
evolutions of the word “to
ascertain”, over the course of legislative amendments and
consolidations of the examination provisions, mean “to make sure”. In order to establish
the Legislator’s intent, the Plaintiff notably relies on statements given by
different Ministers of Justice over the years.
[56]
First, to support this idea, the Plaintiff
suggests that Minister Fulton’s comments to the Special Committee on Human
Rights and Fundamental Rights and Freedoms in 1960 explaining his idea for an
examination and reporting mechanism intended to create a context of full
information for Parliament to consider. Therefore, if the Minister ascertained
any inconsistency with guaranteed rights, the Minister would report to
Parliament.
[57]
Second, the Plaintiff suggests that Minister
Turner’s comment in committee in 1971 discussing the statutory bill supports
his interpretation. Notably, the Plaintiff suggests that the phrase “Our duty should be to make
sure that before registration it is in accordance with the Canadian Bill of
Rights”, does not suggest that a credible argument in favour of
consistency is acceptable. Rather, the Plaintiff suggests that this phrase
means two things: first, that the legislative intent was that provisions need
to be consistent with guaranteed rights, second, that certification and the
absence of a report is understood as an endorsement by the Minister of Justice
that the provision is consistent with guaranteed rights.
[58]
Third, the Plaintiff submits that Minister of
Justice John Crosbie’s statement to the House of Commons in 1985 reflected that
the objective of the examination provisions was to “ensure consistency” and not simply to
accept an argument in favour of consistency with guaranteed rights.
[59]
In essence, the core of the Plaintiff’s argument
regarding the plain meaning of the examination provisions is that the words “not inconsistent”
really mean “is
consistent”. The Plaintiff suggests the meaning of the
examination provisions does not support the Defendant’s thesis that an argument
favouring consistency is sufficient, but rather that a result consistent with
guaranteed rights must be achieved. If that clear result in favour of
guaranteed rights is not attained, Parliament is dutifully informed that this
result has not been reached. To further support his plain meaning analysis, the
Plaintiff submits that the wording “ascertain whether” is different than “ascertain that”.
The Plaintiff submits that when you “ascertain whether”, you are confirming
or negating the proposition that is at issue. A proposition must therefore
either be consistent with guaranteed rights or not. There is no space for a
credible argument in favour of consistency within this strict binary framework.
[60]
The Defendant counters with his own cornucopia
of dictionary definitions and ministerial statements defending his thesis that “ascertain whether”
calls for a searching review to be performed. One answer does not imply its
negative opposite; determining that an inconsistency exists does not mean that
the proposed legislation is automatically inconsistent. Rather, it is
acceptable that there be a risk of inconsistency if such a risk is justifiable
for credible reasons. It is the Minister of Justice’s prerogative to aggregate
all risk factors, whether they are political or juridical, in order to reach
her own conclusion. The Minister of Justice is not bound by the result of a
legal analysis performed by Department of Justice staff.
c)
Constitutional and Institutional Context
[61]
The Plaintiff submits that the Defendant
erroneously relies on the wider institutional context in which the examination
provisions operate in order to establish his position. The Plaintiff insists
that the five internal documents contained in the Statement of Agreed Facts
are sufficient to settle the case in his favour. He argues the documents
contained in the Statement of Agreed Facts alone show that the Minister
is not correctly interpreting the strict requirements of the examination
provisions. There is no need to look at other wider concepts: the context is
narrow and everything the Court needs to fulfil its interpretative role is
found within the law and the documents provided.
[62]
The Plaintiff submits that according to
Driedger’s principle of modern interpretation, the context of the examination
provisions is determined by the presence of the different pieces of legislation
together making up the examination and reporting duties. In the Plaintiff’s
view, the wider context in which the examination provisions operate can be
gleaned from a grammatical analysis of the English and the French texts.
[63]
The Plaintiff argues that the examination
provisions are divided in three grammatical structures: the infinitive verb “to ascertain”,
the conjunction “whether”,
and the proposition put at issue by “whether”. The Plaintiff proposes that
the grammatical parts are independent from each other and ultimately reflect the
notion that proposed legislation is either consistent or not; there is no
in-between space for a credible argument standard to operate. The result of the
situation examined by “whether”
is binary: you have to choose one outcome or the other, consistent or
inconsistent. A negation is always in relation to a positive; if proposed
legislation is not consistent with guaranteed rights, it is inconsistent;
therefore the duty to report is triggered.
[64]
Addressing wider constitutional and
institutional arguments, the Plaintiff submits that the Executive of the day
must respect the democratic process by which the Charter and our
institutional frameworks were developed. The Plaintiff suggests that the
credible argument standard currently applied by the Department of Justice does
not respect the spirit of our constitutional framework as it allows the
Executive to introduce legislation that is inconsistent with guaranteed rights.
[65]
The Plaintiff argues that the rule of law calls
for the Minister of Justice to lawfully fulfil her role. By applying the “credible argument”
standard, the Minister is flouting the application of her statutory duties and
thus breaching the rule of law. Public counsel within the government have a
higher duty to objectively and fairly apply laws. The main duty of the Minister
of Justice, and incidentally of public service counsel, is to enhance respect
for the Constitution and the law.
[66]
The Plaintiff proposes that the Courts should
only be consulted when state actors acting in good faith enact legislation and
a citizen simply disagrees. A court’s purpose is to resolve good faith
differences of view, not to discipline an unruly Executive that believes it is
acting honestly and reasonably. If the Minister of Justice does not have an
honest and reasonable belief that she is acting in accordance with the law,
then she is breaching fundamental principles. Thus, the unacceptable effect of
the “credible argument”
standard is that it allows the Executive to submit legislation to Parliament
which it does not believe more likely than not consistent with guaranteed
rights. Accordingly, the “credible
argument” standard is a breach of the Executive’s duty and is not
lawful. The “credible
argument” standard is not consistent with the context of a
democratic constitutional state. The Plaintiff argues the Executive should not
override or disregard statutes passed by Parliament who delimit the quality of
draft legislation. The Plaintiff proposes that inconsistent legislation may
only be enacted by invoking the notwithstanding clause.
[67]
The Defendant counters by proposing that the
Plaintiff ignores the true constitutional context in which the examination
provisions operate. The Plaintiff mistakenly assumes the only applicable
constitutional principle is the rule of law. Rather, the Defendant proposes the
rule of law is in fact nuanced by other constitutional principles, namely
democracy and separation of powers. Each branch has its constitutionally
defined role to play. The Defendant argues the Plaintiff conflates the duty of the
Minister of Justice to be legal counsel to the Executive with the Minister’s
statutory duty to report to Parliament. The Minister of Justice is the legal
advisor to Cabinet and not to Parliament. Yes, she is mandated by the
examination provisions to inform Parliament if she ascertains that an
inconsistency with guaranteed rights exists, but her duty to Parliament does
not extend to providing it with her legal advice. Parliament has its own
mechanisms and resources which allow it to form its own opinion in regards to
inconsistencies and in regards to resolving them. The Defendant suggests that
the constitutional context in which the examination provisions operate clearly
shows that the Minister of Justice’s duty to examine and report is meant to
prevent inconsistent legislation from ever even being proposed to Parliament in
the first place. The examination provisions, in their proper constitutional and
institutional context, currently operate efficiently as structural and
political deterrents against inconsistent draft legislation.
[68]
The Plaintiff responds that the fact that
Parliament has other tools to study a bill does not mean Parliament should
disregard the importance of the Minister of Justice’s obligation to examine and
report. The Plaintiff argues that the obligation to examine and report of the
Minister of Justice is intended to support the other tools Parliament has at
its disposal. The Minister’s report, or lack thereof, is part of Parliament’s
toolbox in assessing bills, as are debates, discussions and experts in
committee. Parliament is not bound by the Minister’s opinion, but the
information is for Parliament. Parliament, following that information, can use
its resources to obtain more information. The Plaintiff submits that regardless
of all the other resources Parliament has to obtain information, the existence
of those tools does not excuse the Minister for failing to accomplish her
statutory duties as defined by the examination provisions.
Part (4) -- The
Intervener’s Position (Canadian Civil Liberties Association)
[69]
The Canadian Civil Liberties Association [CCLA]
opines that the “credible
argument” standard is not in the Executive’s interest, not in
Parliament’s interest, and not in the public’s interest. The CCLA argues that
lawyers within the public service, including the Minister of Justice, have a
larger duty than simply to serve the Executive: they must uphold the rule of
law. Part of that duty involves protecting citizens against the despotism of
officials and providing an objective and balanced interpretation of the law.
There must be a fair inquiry as to what the law truly is, not an unwarranted
stretching of the law to fit a client’s wishes. The CCLA submits that the
effect of the “credible
argument” standard undermines the rule of law by allowing the
Executive to introduce laws in Parliament that have very little chances of
surviving a challenge in front of the Judiciary. If the possibility of a
successful challenge is very strong and the Executive still denies an
inconsistency with guaranteed rights, such a situation is the antithesis of
respect for the law. The CCLA understands that arguments justifying
inconsistencies under section 1 of the Charter may be broad and
that the Minister of Justice cannot be expected to anticipate every possible
scenario, but in the CCLA’s view, such a reality does not justify the “credible argument”
standard. If every argument is accepted, the reporting requirement is
essentially meaningless.
[70]
The “credible argument” standard fails to
make the issue of whether there is a departure from guaranteed rights a site of
democratic debate in Parliament. The CCLA submits that the examination
provisions should be interpreted in a way that facilitates Parliament’s role in
engaging in meaningful discussion before legislation is enacted and before
court challenges are initiated.
[71]
Parliament’s role is to represent the Canadian
population through elections. Section 1 and section 33 of the Charter
effectively reflect this fact as they foster careful debate and scrutiny within
Parliament. Section 1 states that reasonable limits on rights and freedoms
guaranteed by the Charter must be “demonstrably justified”, placing the
onus of justification on government not only at the stage when a law is
challenged in court, but when limitations on rights are created in the law.
Section 33 contemplates that Parliament can and will frankly declare any
departures from the Charter. To put it simply, the CCLA proposes that
the Charter’s influence goes beyond being a tool to analyze the
reasonableness of derogations to rights during litigation but in fact points to
broader principles of separation of powers that should be construed as applying
to the pre-legislative process.
[72]
Parliament’s responsibilities include
determining whether limits placed on rights by legislation can be demonstrably
justified. To properly fulfil this role, Parliament needs information. The CCLA
agrees that the internal processes within the Department of Justice to minimize
risks are, in theory, effective at mitigating the risk of inconsistent draft
legislation being introduced in Parliament. The problem lies not in the process
but in the availability of the information confirming that this process has
effectively taken place. Under the current system, Parliament has no way of knowing
on which credible argument the government will rely should a challenge arise
due to solicitor-client privilege and the principle of cabinet confidences.
[73]
Furthermore, not all potentially inconsistent
legislation is challenged in court; allowing such legislation to be enacted by
Parliament, without it being informed of its dubious nature, opens the window
to the public being ruled by laws inconsistent with guaranteed rights. Yes, the
Courts have their role to play, but the current system effectively skips
Parliament’s role in reviewing legislation. The CCLA, citing Professor Janet L.
Hiebert in her article “Parliamentary
Engagement with the Charter: Rethinking the Idea of Legislative Rights Review”
(2012) 58:2 SCLR 87, proposes that the absence of a ministerial report on
inconsistencies with guaranteed rights has dissuaded Parliament from
participating in assessing the compatibility of proposed legislation. The CCLA
also brings up the issue of imposing on the wider public the responsibility of
contesting legislation it deems potentially inconsistent with guaranteed
rights. The CCLA does not believe any examination or reporting mechanism would
eliminate constitutional litigation between individuals and the government; but
a standard providing Parliament with access to more information about the
vetting process would create more opportunities for Parliament to address
concerns and reduce the amount of public challenges necessary.
[74]
As described in the overview of this decision, I
will approach the issues of the case at hand by performing an analysis divided
in three major parts: first I will explore the plain meaning; second, I will
determine the overall legislative intent behind the relevant statutes; and
third, I will examine the constitutional and institutional contexts.
III.
HISTORY OF THE PERTINENT STATUTES
A.
Introduction
[75]
In this section, I will detail the legislative
history of the Minister of Justice’s obligation to examine legislation and to
report inconsistencies. I will explore three major iterations of the obligations
and their respective legislative evolution: (1) Section 3 of the Bill
of Rights; (2) Section 4.1 of the Department of Justice Act;
and sections 3(2) and 3(3) of the Statutory Instruments Act in
regards to regulations specifically. These three statutes, taken together, are
referred to as the “examination
provisions”.
[76]
This exercise will allow us to begin analyzing
the legislator’s intent, and eventually will contribute to ascertaining the
correct standard applicable to the examination provisions. While performing
this analysis of the legislative history, I will indicate the French equivalent
of all relevant provisions in parentheses. As we will see in further sections
of this decision, it will be necessary to note the differences between the
evolution of the French provisions and the English provisions. The French
equivalencies will be indicated in parentheses as so: (“French equivalent”).
B.
Section 3 of the Canadian Bill of Rights
[77]
The following table encapsulates the legislative
history analysis I will perform in this section; the underlining is my
emphasis:
|
Bill C-60,
September 5th, 1958 (Bill of Rights first reading)
|
Projet de
loi C‑60, le 5 septembre 1958 (première lecture de la Déclaration
canadienne des droits)
|
|
4. Duties of
the Minister of Justice
|
4. Devoir
du ministre de la justice
|
|
- examine
every proposed regulation […] and every Bill […]
- to ensure
that the purposes and provisions of this Part in relation thereto are fully
carried out.
|
- Examiner
toute proposition
- en vue
d’assurer le plein accomplissement des fins et dispositions de la
présente Partie à cet égard.
|
|
Bill C-79,
June 27th, 1960 (Bill of Rights first reading in a later session)
|
Projet de
loi C‑79, le 27 juin 1960 (première lecture lors d’une
session ultérieure, Déclaration canadienne des droits)
|
|
4. Duties of
the Minister of Justice
|
4. Devoir
du ministre de la Justice
|
|
- examine
every proposed regulation […] and every Bill […]
- in order
to ascertain whether any of the provisions thereof are inconsistent
with the purposes and provisions of this Part.
|
- Examiner
toute proposition de règlement […] comme tout projet ou proposition de loi
[…]
- en vue
de constater si l’une quelconque de ses dispositions est incompatible
avec les fins et dispositions de la présente Partie.
|
|
Bill of Rights, August 10th, 1960 (Bill of Rights
as first enacted)
|
Déclaration
canadienne des droits,
le 10 août 1960 (Déclaration canadienne des droits, telle
qu’elle a été promulguée initialement)
|
|
3. Duties of
the Minister of Justice
|
3. Devoir
du ministre de la Justice
|
|
- examine
every proposed regulation […] and every Bill […]
- in order
to ascertain whether any of the provisions thereof are inconsistent
with the purposes and provisions of this Part and he shall report any such
inconsistency to the House of Commons at the first convenient
opportunity.
|
- examiner
toute proposition de règlement […] comme tout projet ou proposition de loi
[…]
- en vue
de constater si l’une quelconque de ses dispositions est incompatible
avec les fins et dispositions de la Présente Partie, et il doit signaler
toute semblable incompatibilité à la Chambre des communes dès qu’il en a
l’occasion.
|
|
Amendment
effected by SC 1970-71-72, c 38, s 29 (to the Canadian Bill of Rights)
(as per s 29) as a result of the Official Languages Act
|
Modification
apportée par SC 1970‑71‑72, c 38, art 29 (à la Déclaration
canadienne des droits) (aux termes de l’art 29), en raison de la Loi
sur les langues officielles
|
|
3. Duties of
Minister of Justice (as it now stands changed in 1970)
|
3. Devoirs
du ministre la Justice (version maintenant amendée en 1970)
|
|
- examine every regulation […] and every Bill […]
- in order
to ascertain whether any of the provisions thereof are inconsistent
with the purposes and provisions of this Part and he shall report any such
inconsistency to the House of Commons at the first convenient
opportunity.
|
- examiner
tout règlement […] comme tout projet ou proposition de loi […]
- en vue
de rechercher si l’une ou quelconque de ses dispositions est
incompatible avec les fins et dispositions de la présente Partie, et il doit signaler
toute semblable incompatibilité à la Chambre des communes dès qu’il en a
l’occasion.
|
|
Amendment
effected by SC 1985, c26, s105 (to the Canadian Bill of Rights
after the Charter) (as per s. 105)
|
Modification
apportée par LC 1985, c 26, art 105 (à la Déclaration
canadienne des droits après la Charte) (aux termes de l’art 105)
|
|
3. (1)
Duties of the Minister of Justice
|
3. (1)
Devoirs du ministre de la Justice
|
|
- examine
every regulation […] and every Bill […] by a Minister of the Crown
- in order
to ascertain whether any of the provisions thereof are inconsistent
with the purposes and provisions of this Part and he shall report any such
inconsistency to the House of Commons at the first convenient
opportunity.
|
- examiner
tout règlement […] ainsi que tout projet ou proposition de loi […] par un
ministre fédéral
- en vue
de rechercher si l’une ou quelconque de ses dispositions est
incompatible avec les fins et dispositions de la présente Partie, et il
doit signaler toute semblable incompatibilité à la Chambre des communes
dès qu’il en a l’occasion.
|
Part (1) -- Bill C-60,
1958 – First Draft of the
Bill of Rights[78]
Bill C-60 at section 4, September 5,
1958 (first reading) was the very first iteration of what would eventually be
enacted as the Canadian Bill of Rights. The initial bill, in
1958, introduced the concept of an obligation imposed on the Minister of
Justice to examine every bill and every regulation in light of the Bill of
Rights. The Minister of Justice was to be called upon to “examine” (“examiner”) regulations
and every bill in order to “ensure”
(“en vue d’assurer”) that the purposes and provisions of the Bill of Rights “are fully carried out”
(“le plein
accomplissement”). No ministerial
reporting to the House of Commons was required. Bill C-60 did not become
law.
Part (2) -- Bill C-79, July 1960 – Second Draft of the
Bill of
Rights[79]
In a new parliamentary session, in 1960,
Parliament again considered a bill that would potentially become the Bill of
Rights. This time, the bill was titled Bill C-79. At the first reading
of Bill C-79, on July 27, 1960, at section 4, the word “ensure” (“assurer”) from the 1958 version, was changed to “ascertain” (“constater”),
followed by “whether any
of the provisions thereof are inconsistent with the purposes and provisions of
this Part.”
[80]
Like above, this bill did not provide for any
ministerial reporting to the House of Commons. The change of wording was the
subject of discussions at the Special Committee on Human Rights and Fundamental
Freedoms. There, it was felt that the change to “ascertain” (“constater”) from “ensure”
(“assurer”)
was weakening the duty of the Minister of Justice. In response to that concern,
Minister of Justice Fulton proposed to insert a ministerial reporting mechanism
to the House of Commons that would: “[…] compel the Minister […] to report to Parliament
in any case where, in his opinion, there is an infraction in any of the
documents or statutes he has examined” (Canada, Special Committee
on Human Rights and Fundamental Freedoms, Minutes of Proceedings and
Evidence, 24th Parl, 3rd Sess, July 20-29, 1960).
Part (3) -- Enactment of the
Bill of Rights, August 1960
[81]
The Canadian Bill of Rights, at
section 3, as it became law on August 10, 1960, included not only the
change of wording from “ensure”
(“assurer”)
to “ascertain”
(“constater”) but also an obligation on the part of the Minister of Justice to
report to the House of Commons any such “inconsistency” (“incompatibilité”) at the “first
convenient opportunity.”
Part (4) -- Amendment to
the
Canadian Bill of Rights by SC 1970 as a Response to the
Official
Languages Act[82]
In a consequential amendment to the coming into
force of the Official Languages Act in 1969 and as a result of
consolidation by SC 1970-71-72, c 38, s 29, the Bill of Rights,
at section 3, was amended to replace the obligation to review “every proposed regulations
submitted in draft form” to “every regulations transmitted” (“proposition de
règlement soumise, sous forme d’avant-projet”). In addition, the French text was amended to change the word “ascertain” (“constater”) to (“rechercher”).
(See Consolidated Legislative History of s 3 of Canadian Bill of Rights,
SC 1960, c 44, and also Canada, House of Commons, Minutes of
Proceedings and Evidence of the Standing Committee on Justice and legal Affairs
on Bill C-182, Statutory Instruments Act, 28th Parl, 3rd
Sess (16 February 1971) at 2734.)
Part (5) --
Bill of
Rights Amended in 1985
[83]
In 1985, the Bill of Rights was again
amended at section 3.1 to specify that only ministerial bills were to be
the subject matter of an examination, contrary to the previous wording which
provided that all bills introduced or presented to the House of Commons had to
be examined. In other words, private members’ bills were removed from the
purview of the examination provision. This change brings section 3.1 of
the Bill of Rights to its present form. The current version of
section 3.1 of the Bill of Rights reads as follows:
|
Canadian Bill of Rights, SC 1960,
c 44
|
Déclaration canadienne des droits, SC 1960,
c 44
|
|
Duties of Minister of Justice
|
Devoirs du ministre de la Justice
|
|
3. (1) Subject to subsection (2), the Minister of
Justice shall, in accordance with such regulations as may be prescribed by
the Governor in Council, examine every regulation transmitted to the Clerk of
the Privy Council for registration pursuant to the Statutory Instruments
Act and every Bill introduced in or presented to the House of Commons by
a Minister of the Crown, in order to ascertain whether any of the provisions
thereof are inconsistent with the purposes and provisions of this Part and he
shall report any such inconsistency to the House of Commons at the first
convenient opportunity.
|
3. (1) Sous réserve du paragraphe (2), le
ministre de la Justice doit, en conformité de règlements prescrits par le
gouverneur en conseil, examiner tout règlement transmis au greffier du
Conseil privé pour enregistrement, en application de la Loi sur les textes
réglementaires, ainsi que tout projet ou proposition de loi soumis ou
présentés à la Chambre des communes par un ministre fédéral en vue de
rechercher si l’une quelconque de ses dispositions est incompatible avec
les fins et dispositions de la présente Partie, et il doit signaler toute
semblable incompatibilité à la Chambre des communes dès qu’il en a
l’occasion.
|
|
[Emphasis added.]
|
[Je souligne.]
|
C.
Section 4.1 of the Department of Justice
Act
[84]
The Department of Justice came into existence in
May 1868 following the enactment of the Department of Justice Act,
formally replacing the informal structure that had existed prior to
confederation. In 1985, many federal laws were amended to reflect the coming
into force of the Canadian Charter of Rights and Freedoms.
Consequentially, the Department of Justice Act was amended to include
the following section, numbered section 4.1:
|
Department of Justice Act, RSC 1985,
c J-2
|
Loi sur le ministère de la Justice, LRC 1985,
c J-2
|
|
Examination of Bills and regulations
|
Examen de projets de loi et de règlements
|
|
4.1(1) Subject to subsection (2), the Minister
shall, in accordance with such regulations as may be prescribed by the
Governor in Council, examine every regulation transmitted to the Clerk of the
Privy Council for registration pursuant to the Statutory Instruments Act and
every Bill introduced in or presented to the House of Commons by a minister
of the Crown, in order to ascertain whether any of the provisions
thereof are inconsistent with the purposes and provisions of the Canadian
Charter of Rights and Freedoms and the Minister shall report any such
inconsistency to the House of Commons at the first convenient opportunity.
|
4.1(1) Sous réserve du paragraphe (2), le
ministre examine, conformément aux règlements pris par le gouverneur en
conseil, les règlements transmis au greffier du Conseil privé pour
enregistrement, en application de la Loi sur les textes réglementaires ainsi
que les projets ou propositions de loi soumis ou présentés à la Chambre des
communes par un ministre fédéral, en vue de vérifier si l’une de leurs
dispositions est incompatible avec les fins et dispositions de la Charte
canadienne des droits et libertés, et fait rapport de toute
incompatibilité à la Chambre des communes dans les meilleurs délais possible.
|
|
[Emphasis added.]
|
[Je souligne.]
|
[85]
As it can be noted, the English text, except for
the new inclusions that reflect the purposes and provisions of the Charter,
is similar to the text analyzed in section 3 of the Bill of Rights.
Notably, the English version keeps identical the expression “in order to ascertain”
from one version to the other. But such is not the case for the French text,
which changes the expression (“en vue de
rechercher”) to (“en vue de vérifier”).
D.
Section 3 of the Statutory Instruments
Act
Part (1) -- First
Examination Procedure in the 1950
Regulations Act[86]
The original statute dealing with delegated
legislation was the Regulations Act enacted in 1950, SC 1950, c 50. In
1971, over the course of a major review of laws dealing with regulations, the Regulations
Act was completely transformed into what is now known as the Statutory
Instruments Act. The “examination
procedure”, as it was referred to then, became the “judicial scrutiny”
of the Department of Justice. The term “delegated legislation” essentially
means that Parliament has delegated the power to make certain regulations,
orders, rules and by-laws to another entity.
Part (2) -- Bill C-182’s
Goal to Restore Parliamentary Control over the Executive
[87]
The general purpose of Bill C-182, as it
was known then, was to protect the public from the improper or unusual exercise
of power that had been delegated by Parliament. The Commons Debates of
January 1971 enumerated four objectives in regards to the enactment of
regulations at page 2735: (1) “that they be authorized pursuant to the statute by
which they are to be made”; (2) “that they do not constitute an unusual or unexpected
use of the authority pursuant to which they are to be made”; (3) “that they do not trespass
unduly on existing rights and freedoms and are not, in any case, inconsistent
with purposes and provisions of the Canadian Bill of Rights”;
and (4) “that the form
and draftsmanship of the proposed regulations are in accordance with
established standards”. The Statutory Instruments Act
essentially aimed to restore a measure of parliamentary control over the
Executive. The Clerk of the Privy Council, with the Deputy Minister of Justice,
was obligated to examine proposed regulations (Canada, House of Commons, Minutes
of Proceedings and Evidence of the Standing Committee on Justice and Legal
Affairs on Bill C-182, Statutory Instruments Act, 28th
Parl, 3rd Sess (16 February 1971) at 7:22 to 7:24 and House of
Commons Debates, 28th Parl, 3rd Sess, Vol III (25
January 1971) at 2734-2736).
Part (3) -- Amendment to the
Statutory Instruments
Act in 1985 to Ensure Consistency with the
Charter[88]
In 1985, as seen earlier in regards to the Bill
of Rights and the Department of Justice Act, the Statutory
Instruments Act was also amended to ensure consistency with the coming into
force of the Charter. The only important modification is the insertion
of the obligation to examine proposed regulations in accordance not only with
the purposes and provisions of the Bill of Rights, but also with the Charter.
[89]
Subsections 3 (2) and 3 (3) of the Statutory
Instruments Act remain essentially the same save for a few
non-consequential changes brought to the French text. Subsections 3 (2)
and 3 (3) read as follows:
|
Statutory Instruments Act, RSC 1985,
c S-22
|
Loi sur les textes réglementaires, LRC 1985,
c S-22
|
|
Examination
|
Examen
|
|
3(2) On receipt by the Clerk of the Privy
Council of copies of a proposed regulation pursuant to subsection (1), the
Clerk of the Privy Council, in consultation with the Deputy Minister of
Justice, shall examine the proposed regulation to ensure that
|
3(2) À la réception du projet de règlement, le
greffier du Conseil privé procède, en consultation avec le sous-ministre de
la Justice, à l’examen des points suivants :
|
|
(a) it is authorized by the statute pursuant to
which it is to be made;
|
a) le règlement est pris dans le cadre du
pouvoir conféré par sa loi habilitante;
|
|
(b) it does not constitute an unusual or
unexpected use of the authority pursuant to which it is to be made;
|
b) il ne constitue pas un usage inhabituel ou
inattendu du pouvoir ainsi conféré;
|
|
(c) it does not trespass unduly on existing rights
and freedoms and is not, in any case, inconsistent with the purposes and
provisions of the Canadian Charter of Rights and Freedoms and the Canadian
Bill of Rights; and
|
c) il n’empiète pas indûment sur les droits et
libertés existants et, en tout état de cause, n’est pas incompatible avec
les fins et les dispositions de la Charte canadienne des droits et
libertés et de la Déclaration canadienne des droits;
|
|
(d) the form and draftsmanship of the proposed
regulation are in accordance with established standards.
|
d) sa présentation et sa rédaction sont conformes
aux normes établies.
|
|
Advise regulation-making authority
3 (3) When a proposed regulation has been examined
as required by subsection (2), the Clerk of the Privy Council shall advise
the regulation-making authority that the proposed regulation has been so
examined and shall indicate any matter referred to in paragraph (2) (a), (b),
(c) or (d) to which, in the opinion of the Deputy Minister of Justice, based
on that examination, the attention of the regulation-making authority should
be drawn.
|
Avis à l’autorité réglementaire
3(3) L’examen achevé, le greffier du Conseil
privé en avise l’autorité réglementaire en lui signalant, parmi les points
mentionnés au paragraphe (2), ceux sur lesquels, selon le sous-ministre de la
Justice, elle devrait porter son attention.
|
|
[Emphasis added.]
|
[Je souligne.]
|
[90]
As it can be observed, for regulations,
subsections 3(2) and 3(3) of the Statutory Instruments Act require
two steps to be followed: first, an examination procedure, and second, a
reporting mechanism. These steps are similar in nature to the steps required
for bills under the Bill of Rights and the Department of Justice Act.
It should also be noted that the wording of the Statutory Instruments Act’s
examination provisions differs from the wordings of the two other statutes: for
example, at subsection 3(2)(c), “does not trespass unduly”, in French “n’empiètent pas indûment”,
is different than the expression “is not in any case inconsistent”, in
French “n’est pas
incompatible”, found in the other statutes. Furthermore, the
reporting obligation is on the shoulders of the Clerk of the Privy Council, not
on those of the Minister of Justice. More will be said on these differences
between the Bill of Rights and the Charter, and between the
examination and reporting obligations later on.
IV.
PRINCIPLES OF STATUTORY INTERPRETATION
A.
Introduction
[91]
As seen, for the purposes of the present case,
three different statutes must be interpreted (1) the Bill of Rights, (2)
the Department of Justice Act, and (3) the Statutory Instruments Act.
[92]
First, both sections 3.1 of the Bill of
Rights and 4.1 of the Department of Justice Act will be interpreted.
These two statutes share very similar wording but specific attention will need
to be paid to the French text. The overall purposes of both statutes must be
taken into consideration.
[93]
Second, in regards to regulations, under the Statutory
Instruments Act, the interpretation to be given will require that both the
French and English texts be put into their specific contexts and then
interpreted generally. The purpose of the Statutory Instruments Act is
different than the purpose of the other two statutes and is useful as a
comparison tool. Ultimately, the Statutory Instruments Act calls for the
same conclusions to be drawn as the other two statutes.
B.
Applicable Principles
Part (1)
-- Driedger’s Modern Interpretation
[94]
The Supreme Court of Canada has often recognized
Elmer Driedger’s modern approach when interpreting statutes:
“Today there is only one principle or approach,
namely, the words of the Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act, and the intention of Parliament.”
(Ruth Sullivan, Sullivan on the Construction of
Statutes, 6th ed (Markham: LexisNexis, 2014) at para 2.1.)
Part (2) -- Sections 10 and
12 of the
Interpretation Act[95]
It is also important to give full meaning to
sections 10 and 12 of the Interpretation Act, RSC 1985,
c I-21 when applying the modern interpretation approach to a statute.
Section 10 reads as follows:
|
Interpretation Act, RSC 1985,
c I-21
|
Loi d’interprétation, LRC 1985,
c I-21
|
|
Law Always Speaking
|
Permanence de la règle de droit
|
|
10. The law shall be considered as always speaking,
and where a matter or thing is expressed in the present tense, it shall be
applied to the circumstances as they arise, so that effect may be given to
the enactment according to its true spirit, intent and meaning.
|
10. La règle de droit a vocation permanente;
exprimée dans un texte au présent intemporel, elle s’applique à la situation
du moment de façon que le texte produise ses effets selon son esprit, son
sens et son objet.
|
[96]
Section 12 reads as follows:
|
Interpretation Act, RSC 1985,
c I-21
|
Loi d’interprétation, LRC 1985,
c I-21
|
|
Enactments deemed remedial
|
Principe et interprétation
|
|
12. Every enactment is deemed remedial, and shall be
given such fair, large and liberal construction and interpretation as best
ensures the attainment of its objects.
|
12. Tout texte est censé apporter une solution de
droit et s’interprète de la manière la plus équitable et la plus large qui
soit compatible avec la réalisation de son objet.
|
Part (3) -- Context
and Colouring of the Statutes
[97]
Context, in this case, is not simply a wider
statutory scheme; it is rather context in its widest possible constitutional
scope. In order to properly situate the examination provisions, I must assess
them in light of what they represent within the very founding principles of
constitutional monarchy and of democracy. The roles and duties of each branch
cannot be treated as separate statutory schemes operating in silos from each
other. Our Constitution provides for the creation of three institutions which
are, in essence, the expression of our Canadian democracy at play: the Courts,
the Executive, and Parliament. In the following analysis, I will use this
approach to place the examination provisions in their appropriate context.
[98]
Giving colour to the context in which the
Minister’s duties operate essentially means that a pure narrow legislative
interpretation based on the plain meaning and the legislator’s intent is not
enough. In Bell ExpressVu, the Supreme Court of Canada recognized
the crucial role of context when interpreting a statute:
“The preferred approach recognizes the important role
that context must inevitably play when a Court construes the written words of a
statute: as Professor John Willis incisively noted in his seminal article
‘Statute Interpretation in a Nutshell’ (1938), 16 Can. Bar Rev. 1, at
p. 6: ‘Words like people, take their colour from their surroundings’. This
being the case, where the provision under consideration is found in an Act that
is itself a component of a larger statutory scheme, the surroundings that
colour the words and the scheme of the Act are more expansive.”
(Bell ExpressVu Limited Partnership v Rex, 2002
SCC 42, [2002] 2 S.C.R. 559, at pages 580, 581)
Part (4) -- Shared
Meaning Rule
[99]
The French and English versions of a statute
hold equal authority. But, when the terms used in one language are not properly
reflected in the other, I must search for a common meaning to both expressions.
I must do so while considering the context within which the statute operates
and also while factoring-in the legislator’s intent. This approach is known as
the “shared meaning
rule” and has been defined by Prof. Pierre-André Côté as
follows:
“Unless otherwise provided, differences between two
official versions of the same enactment are reconciled by deducing the meaning
common to both. Should this prove to be impossible, or if the common meaning
seems incompatible with the intention of the legislature as indicated by the
ordinary rules of interpretation, the meaning arrived at by the ordinary rules
should be retained.”
(Pierre-André Côté, The Interpretation of
Legislation in Canada, 3rd ed (Toronto: Carswell, 2000) at 324)
Part (5) -- When a Statute
is Almost Identical to Another Statute (
in pari materia)
[100]
Prof. Ruth Sullivan provides useful
interpretative guidance when one or multiple statutes are almost identical to
each other. When interpreting a section of a statute that is almost identical
to another statute, a Court must first look at the intent and purpose of each
statute:
“When interpreting
legislation, common law courts generally consider any statutes in pari
materia, that is, any statutes dealing with the same subject matter as the
statute to be interpreted. Their concern is to ensure coherence and consistency
between the rules dealing with the same thing. Statutes enacted by a
legislature that deal with the same subject are presumed to be drafted with one
another in mind, so as to offer a coherent and consistent treatment of the
subject.”
(Ruth
Sullivan, Sullivan on the Construction of Statutes, 6th ed
(Markham: LexisNexis, 2014) at paras 13.25-13.27)
[101]
Second, the Court must consider whether or not
the two sections of the two different statutes have the same meaning for the
purposes of their respective Acts. It is a well-recognized principle that the
legislator is presumed to be knowledgeable and to know, when legislation is
discussed, that another statute shares a similar, or almost similar wording. Prof. Côté articulates this method in his
book “Interprétation des lois” (Pierre-André Côté, Interprétation des
lois, 4th ed (Montréal: Thémis 2014) at paras 1271-1286). Similarly, Prof. Sullivan also
explains this approach in her book as follows:
“In the context of related statutes, the presumption
of coherence is relied on not only to resolve inconsistency, but also as a
basis for drawing inferences about legislative intent. […] Related statutes
form an integrated scheme”
(Ruth Sullivan, Sullivan on the Construction of
Statutes, 6th ed (Markham: LexisNexis, 2014) at paras
13.31-13.32)
C.
Steps for Proceeding to Analysis
[102]
With all these principles in mind, what is the
proper course to be followed in order to consider each one and arrive at a
given meaning? In her book Sullivan on the Construction of Statutes,
above, at paragraphs 2.1 to 2.10, Professor Ruth Sullivan examines the
modern rules of statutory interpretation and suggests three questions that an
interpreter must answer when attempting to identify the proper meaning of a
statute. The three questions are:
1. What
is the meaning of the legislative text?
2. What did the legislator intend? That is, when
the text was enacted, what law did the legislator intend to adopt? What
purposes did it hope to achieve? What specific intentions (if any) did it have
regarding facts such as these?
3. What are the consequences of adopting a
proposed interpretation? Are they consistent with the norms that the legislator
is presumed to respect?
[103]
In order to undertake such a search, an
interpreter, as Prof. Sullivan suggests, at page 28, must begin with
the ordinary meaning approach, which consists of the following propositions:
1. It is presumed that the ordinary meaning of a
legislative text is the meaning intended by the legislature. In the absence of
a reason to reject it, the ordinary meaning prevails.
2. Even if the ordinary meaning is plain, courts
must take into account the full range of relevant contextual considerations
including purpose, related provisions in the same and other Acts, legislative
drafting related conventions, presumptions of legislative intent, absurdities
to be avoided and the like.
3. In light of these considerations, the court
may adopt an interpretation that modifies or departs from the ordinary meaning,
provided the interpretation adopted is plausible and the reasons for adopting
it are sufficient to justify the departure from the ordinary meaning.
[104]
Now that I have established our analytical
framework, I will proceed with the first step of interpretation: identifying
the plain meaning of the statutes.
V.
ANALYSIS STEP 1 – PLAIN MEANING
A.
Introduction
[105]
The plain meaning calls for the interpreter to
look at the vocabulary used and assess the obligations it creates. It is
important to look at what the legislation requires of the Minister of Justice
in both official languages when she assesses draft regulations or draft
ministerial bills to be eventually introduced into the House of Commons. We
must also distinguish the steps the statutory obligation entails: we are
attempting to define the method by which the Minister must perform her
examination; second, determining how the Minister must process the information
she has acquired; and third, confirming whether the reporting obligation is
triggered or not.
[106] In order to deal with all the issues raised in relation to the three
statutes, the Court will first analyze sections 3(1) of the Bill of
Rights and 4.1(1) of the Department of Justice Act together as they
are in large part similar and both relate to bills.
[107] Second, the Court will analyze sections 3(2) of the Bill of
Rights and 4.1(2) of the Department of Justice Act as they are
analogous and both relate to an exception for regulations that have already
been examined under the Statutory Instruments Act.
[108] Third, the Court will analyze sections 3(2), 3(2)(c) and 3(3)
of the Statutory Instruments Act in both French and English.
[109] Finally, I will draw conclusions from the above analyses in order to
determine the plain meaning in regards to the provisions creating the duties of
the Minister of Justice.
[110]
In order to avoid unnecessary repetition, the
relevant statutes in their final form are attached to the end of this decision
under “Annex 1”.
The following graph summarizes the approach I will follow in our plain meaning
analysis; please note that “Bill
of Rights” is reduced to “BOR”, the “Department of Justice Act” to “DOJA”, and the “Statutory Instruments Act”
to “SIA”:
|
A. Introduction
B. Sections of 3 (1) of the Bill
of Rights and 4.1 (1) of the Department of Justice Act [Bills]
Part (1): What the
Minister Must Examine
i.
The Meaning of “ascertain”
•
3(1) BOR (ENG) = “ascertain” / 3(1) BOR (FRA) = “rechercher”
•
4.1(1) DOJA (ENG) = “ascertain” / 4.1(1) DOJA (FRA) = “vérifier”
ii. The Meaning of the Other Words in These Provisions
•
“Whether” = (“si”) in both statutes
•
“Inconsistent” = (“incompatible”) in both statutes
Part (2): If the Minister
Identifies an Inconsistency She Must Report
i.
“Such
inconsistency” = (“toute incompatibilité”) in both statutes
ii. “Shall report” = ( “fait
rapport” ) in both statutes
Part (3): Observations
C. Sections 3 (2) of the Bill
of Rights and 4.1 (2) of the Department of Justice Act [Exception
for Regulations]
The
Meaning of “ensure”
i.
3(2) BOR (ENG) = “ensure” / 3(2) BOR (FRA) = “vérifier”
ii. 4.1(2) DOJA (ENG) = “ensure” / 4.1(2) DOJA (FRA) = “vérifier”
D. Sections 3 (2), 3 (2) (c)
and 3 (3) of the Statutory Instruments Act [Regulations]
i.
3 (2) SIA (ENG) = “ensure” / 3 (2) SIA (FRA) = “examiner”
E. Conclusion on the Plain Meaning
|
B.
Sections 3(1) of the Bill of Rights
and 4.1(1) of the Department of Justice Act [Bills]
[111] Both sections essentially indicate: the Minister is asked to
ascertain whether the draft legislation and any of its provisions are
inconsistent with guaranteed rights. If the Minister finds that such an
inconsistency exists, the Minister shall report to the House of Commons.
[112]
The following paragraphs will break down this
process and analyze it from different angles. I will separate my analysis in
two main parts in order to reflect the two steps: first, a duty to examine, and
second, a duty to report. For each of those parts, I will look at the relevant
words creating the duty in order to better discover their meanings. To do so, I
will inspect both French and English versions of the statutes.
Part (1) -- What the
Minister Must Examine
[113] The Minister is asked to ascertain whether the draft legislation and
any of its provisions are inconsistent with guaranteed rights. The key words in
the Bill of Rights and the Department of Justice Act creating
this duty are: “ascertain”,
“whether”,
and “are inconsistent”.
[114] To begin, properly examining the meaning of “ascertain” is key to our plain meaning
analysis. In French, the equivalent wording for “ascertain” is different in the wording
of the Bill of Rights than in the Department of Justice Act. In
the Bill of Rights, “ascertain”
is “vérifier” but in the Department of Justice Act, “ascertain” is “rechercher”.
[115]
Furthermore, the other expressions in French are
the same in both the Bill of Rights and the Department of Justice Act:
“whether”
is always “si”,
and “are inconsistent”
is always “est
incompatible”.
Part (2) -- If the Minister
Identifies an Inconsistency She Must Report
[116]
The Minister, as both statutes require, must
ascertain whether any of the provisions are “inconsistent”, or “incompatible”
in French, with guaranteed rights. If the Minister does indeed ascertain that
such an inconsistency is present, the Minister must report to the House of
Commons. The key words in the statutes creating this obligation are: “such inconsistency”
and “shall report”.
In French, both statutes also use identical wordings: the equivalent wording
for “such inconsistency”
is always “toute
incompatibilité” and “shall report”
is always “fait rapport”.
[117] In the Bill of Rights, the French equivalent of “ascertain” is “rechercher”, but in the Department of Justice Act, the French version of
“ascertain” is “vérifier”. I can observe that the word “vérifier”, in the French version of section 4.1(1) of the Department of
Justice Act does not, at first glance, properly reflect the meaning of the
two other analogous expressions which are “ascertain” and “rechercher”. It is thus necessary to define each term in order to determine
what ordinary meaning to give them. I have selected dictionary definitions that
generally reflect what other dictionaries also say.
[118] First, the verb “ascertain”
is defined by the Webster’s Ninth New Collegiate Dictionary, 1986, as: “(1) to make certain, exact,
or precise (2) to find out or learn with certainty”. Definition “(1)” is
indicated as “archaic”
whereas definition “(2)”
is not. Definition “(2)”
is thus much more relevant.
[119] Second, the French dictionary Le Petit Robert 1, 1986, gives the following definitions to “rechercher”: “(1) chercher
de façon consciente, méthodique […]; (2) chercher à connaître, à découvrir […];
(3) tenter d’obtenir, d’avoir par une recherche […]; (4) tenter, essayer de
connaître […].” “Rechercher” thus calls for attempting to obtain or know following a research
process.
[120] Third, “vérifier” also requires a sense of examination and is defined in Le Petit Robert 1 as: “(1)
examiner la valeur pour computation avec les faits, ou par un contrôle de la
cohérence interne […]; (2) Examiner (une chose) […]; (3) Reconnaitre ou faire
reconnaitre une chose […]; (4) S’avérer exact, juste […].”
[121] Even if the French wordings are slightly different, the words “rechercher” and “vérifier” are similar in nature, similar in meaning, and similar in objective
to the English version of those words which is “ascertain”. In both versions, the
Minister of Justice is being asked to verify or search whether or not draft
legislation is, or is not, in conformity with guaranteed rights. Therefore, the
Minister of Justice is first asked to examine the draft legislation and second,
to come to a conclusion, in other words to reach a result.
[122] Section 3(1) of the Bill of Rights and section 4.1(1)
of the Department of Justice Act also specify that the Minister must
ascertain “whether”
any of the provisions “are
inconsistent” with guaranteed rights. In French, the equivalent
expression for “whether”
is “si” and the equivalent expression for “are inconsistent” is “est incompatible”. In both languages, the legislator chose the same verb and the same
present tense: it uses “are”,
which is “est” in French, to speak of the moment as it actually occurs. The
English word “inconsistent”
is defined by the Webster’s Ninth New Collegiate Dictionary as “lacking consistency, not
compatible with another fact.” In French,
Le Petit Robert 1 defines “incompatible” as not being able to coexist with: “qui
ne peut coexister, être associé, réuni (avec une autre chose)”. Whether in French or in English, both
adjectives call for a binary result, for opposites, for contradictions. The
question asked is: “Is
it breaching or not a guaranteed right; yes or no?” In both
languages, the vocabulary used calls for an identical outcome.
[123] Pursuant to section 10 of the Interpretation Act, as seen
above, the moment when the Minister must determine whether an inconsistency
with guaranteed rights exists is at the specific moment where she examines the
provisions and forms her opinion. The Minister does not look into the future or
into the past to search for inconsistencies; her opinion must be formed at the
moment where she performs her examination duty. The time of appreciation of the
inconsistency is as the examination happens, not before or after.
[124]
The duty is neither backward-looking nor
forward-looking; it is present looking only. The examination provisions do not
require the Minister to gaze into a crystal ball in order to hypothetically
consider whether the provisions could be found inconsistent in the future by
another person, by another institution, or under a different social context.
For example, a law could be considered free of inconsistencies when it is
enacted, but due to shifts in public perception over years be found
inconsistent with guaranteed rights by a Court decades later. The examination
provisions do not require the Minister to imagine such shifts. Both the Bedford
case, Canada (Attorney General) v Bedford, [2013] 3 S.C.R. 1101, 366 DLR
(4th) 237, and the Carter case, Carter v Canada (Attorney General),
[2015] 1 S.C.R. 331, 384 DLR (4th) 14, are good examples of this.
C.
Sections 3(2) of the Bill of Rights
and 4.1(2) of the Department of Justice Act [Exception for Regulations]
[125]
Section 3(2) of the Bill of Rights
and section 4.1(2) of the Department of Justice Act both use
similar vocabulary to create an exception to the Minister’s duties to examine
and report in regards to regulations. The effect of the exception is that the
Minister does not need to perform her duties under sections 3(1) and 4.1
if the regulations have already been scrutinized for inconsistencies under the
process created by section 3 of the Statutory Instruments Act. In
short, there is no need to re-examine regulations under the provisions of the Bill
of Rights and of the Department of Justice Act if they have already
been examined pursuant to the provisions of the Statutory Instruments Act.
The application of this exception is not relevant to the plain meaning
analysis; rather, it is the vocabulary used which is a key factor to our
purposes.
Part (1) -- The Meaning of “ensure”
[126] Both the Bill of Rights and the Department of Justice Act
use the word “ensure”
to define the duty of the Minister of Justice in regards to regulations.
Contrary to sections 3(1) of the Bill of Rights and 4.1(1) of the Department
of Justice Act, I immediately notice that there is no discrepancy between
the vocabulary used in the equivalent French versions of sections 3(2) of
the Bill of Rights and 4.1(2) of the Department of Justice Act.
Both French versions use “vérifier” as the equivalent of “ensure”. This consistent vocabulary
helps guide our analysis of the issue above where multiple terms were
confusedly used. It is immediately clear that “vérifier” is the proper intended meaning for “ensure”, and not “ascertain”.
But, even though “vérifier” is the clear French equivalent to “ensure”, the two expressions differ in
their meanings: “vérifier” is a much weaker expression than “ensure”.
[127]
The verb “ensure” is defined by the Webster’s
Ninth New Collegiate Dictionary as: “to make sure, certain, or safe”. By
contrast, as indicated above, “vérifier” has multiple definitions: “(1)
Examiner la valeur pour computation avec les faits, ou par un contrôle de la
cohérence interne […]; (2) Examiner (une chose) […]; (3) Reconnaitre ou faire
reconnaitre une chose […]; (4) S’avérer exact, juste […].” From these definitions, I can conclude that
“vérifier” implies less certainty of result than “ensure”. There is thus a dissonance
between the meaning of “ensure”
and “vérifier”. The effect of this discordance is that “vérifier” weakens the notion of certainty found within “ensure”.
D.
Sections 3(2), 3(2)(c) and 3(3) of the Statutory
Instruments Act [Regulations]
[128] Contrary to the Bill of Rights and to the Department of
Justice Act, the Statutory Instruments Act establishes specific
examination and reporting duties in regards to regulations, as opposed to
bills. Section 3(3) of the Statutory Instruments Act imposes the
reporting duty on the Clerk of the Privy Council whereas the relevant sections
of the Bill of Rights and of the Department of Justice Act impose
the reporting duty on the Minister of Justice. Although it is not directly
useful for determining the Minister’s obligation in regards to ministerial
bills, the Statutory Instruments Act can be used to apply the shared
meaning rule in order to compare and contrast the vocabulary and obligations
found in the other two statutes.
[129] Section 3(2) of the Statutory Instruments Act suffers
from an inconsistency between the French and English versions. The English
version first states that the Minister “shall examine”, followed by the
objective of that examination in the words “to ensure that”. The French version
also first states “procède [...] à
l’examen” but afterwards does
not state an objective akin to “to
ensure” as found in the English version. It is possible to
reconcile this lacuna by simply reading the missing French objective from the
French wording “procède […] à
l’examen” itself; meaning that
the Minister must perform an examination and that the objective of the
examination is to examine. Such a conclusion, compared to the English objective
“to ensure”,
implies a considerably weaker objective.
[130]
Furthermore, we can also compare the use of the
words “ensure”
in English and “examen” in French, which is simply “examiner”
in nominal form. Once again, the meaning of “ensure” is problematic: to
recapitulate, sections 3(2) of the Bill of Rights and 4.1(2) of the
Department of Justice Act use the word “vérifier” for “ensure”,
but “ensure”
in the French version of the Statutory Instruments Act can be said to be
“examiner”.
Le Petit Robert 1 defines “examiner” as: “(1) Considérer avec
attention, avec réflexion; (2) Regarder très attentivement.” These definitions of “examiner” are quite different than what “ensure”
implies. “Ensure”
denotes a guarantee whereas “examiner”
implies a thorough, complete and attentive consideration. There is no notion of
guarantee in “examiner”.
Both the use of “vérifier” as the equivalent of “ensure” in the other two statutes, and
the use of “examiner”
as the equivalent of “ensure”
in the Statutory Instruments Act further weaken the connotation linked
to a notion of guarantee in the word “ensure”.
E.
Conclusion on the Plain Meaning
[131] We must proceed with caution: the strict dictionary definitions of
the terms guide our plain meaning analysis; they do not dictate the result of
the meaning of the words used in their statutory context. The definitions of
the words are very useful, but we must compare and contrast these definitions
with the way the words are used in the statutes. When comparing the two
dictionary definitions of the English terms “ascertain” and “ensure” the differences and the
similarities between the two terms become obvious. As per the dictionaries, “ensure” calls
for certainty of result whereas “ascertain” calls for a searching review resulting in
a conclusion. In both cases, “ascertain”
and “ensure”
call for certainty to be achieved, for a result to be obtained.
[132] Having reviewed the plain language of section 3(1) of the Bill
of Rights and section 4.1(1) of the Department of Justice Act,
I conclude that the statutory obligation imposed on the Minister to examine
bills and regulations is clear and non-ambiguous. The plain language analysis
does not reveal that an alternate interpretation other than the plain language
is warranted. The process and the content of the Minister of Justice’s duty to
examine draft legislation and to report if an inconsistency is found is clear
following a plain language reading of the examination provisions. The duty of
the Minister can be enunciated as follows.
[133] After a bill is tabled in the House of Commons, the Minister is
required to identify, with certainty, whether the result of her examination
identifies present inconsistencies in any of the provisions under study, with
any rights guaranteed by the Bill of Rights or the Charter. If
indeed the Minister identifies an inconsistency, she is obligated to report the
inconsistency to the House of Commons at the first convenient opportunity.
[134] We can also express the same duty to examine in the negative
grammatical sense: if the Minister, in her own examination, considers that an
argument of a serious and professional nature exists, showing that the
provisions under study are in conformity with guaranteed rights, she cannot
ascertain nor conclude that there exists an inconsistency with the rights
protected by the Bill of Rights and the Charter.
[135] Thus, the plain language shows that the wordings of these sections do
not support nor include a “more
likely than not inconsistent” standard. To try to read an array
of options to be looked at or a weighing to be done, at the stage of the
outcome, into this legislative language, would not be respecting the plain
language as it is used. Both the French and English words “ascertain”, “vérifier”, “rechercher”, “examiner”,
“whether”,
“si”, “inconsistent”,
and “incompatibilité”, whichever way you look at them, call for a certainty, for a
definite result. That is not what the “more likely than not inconsistent”
standard requires. At the risk of being simplistic, such a standard is “inconsistent”, “incompatible”,
with the vocabulary selected by the legislator for the purposes of both
statutes.
[136] The wording, as expressed in the Statutory Instruments Act,
imposes the same obligation on the Clerk of the Privy Council as the Minister’s
under the Bill of Rights and under the Statutory Instruments Act,
namely to “ensure”
that any of the provisions “is
not inconsistent” (“n’est pas incompatible”) with the guaranteed rights. Such language does not favour the use
of the “more likely than
not” standard. To the contrary, it seems to open the door to a
certain tolerance for inconsistencies with guaranteed rights and at the same
time, obligates the Clerk of the Privy Council to report if a regulation, or a
provision of a regulation, is inconsistent (“incompatible”) with guaranteed rights.
Again, in his examination and reporting duties, the Clerk of the Privy Council
is being asked to make an incompatibility finding, which does not leave room
for options to be considered or a weighing to be done.
[137] In short, the vocabulary used, and the duties created by
sections 3(2), 3(2)(c) and 3(3) of the Statutory Instruments Act,
in their plain meaning, are consistent with the analogous sections of the Bill
of Rights and of the Department of Justice Act; the language is
clear and unambiguous.
[138] The relevant sections of the three statutes impose on the Minister
or on the Clerk of the Privy Council the same type of obligation for both bills
and regulations. The purpose of the obligation is to ascertain (for bills), or
ensure (for regulations), that no provisions are inconsistent with the statutes
that describe and protect our guaranteed rights.
[139]
This conclusion on the plain meaning is
supported by the intent of the legislator. As the next section will
demonstrate, the legislator’s intent is shown notably by the discussions
leading to the present iterations of the concerned bills and regulations and
also by the role the Courts, the Executive and Parliament are called to play
when assuming their respective jurisdictions and duties.
VI.
ANALYSIS STEP 2 – THE LEGISLATOR’S INTENT
A.
Introduction
[140] In order to grasp the legislator’s intention behind the examination
provisions, I must go back to the discussions on the Bill of Rights
prior to its enactment in the summer of 1960. I will also explore the
legislator’s intent in regards to other statutes, notably the Statutory
Instruments Act in the 1970s, and the consequential amendments to certain
statutes following the enactment of the Charter in the mid-1980s.
[141]
In order to give the most complete picture
possible of the various discussions that occurred surrounding the examination
provisions over time, the parties have submitted diverse forms of evidence for
the Court to consider. When determining the legislator’s intent, it is an
accepted principle that statements by ministers hold more weight than
statements made by other parties such as scholars, departmental
representatives, and opposition members. Yet the involvement of non-ministerial
actors remains a useful tool to detail and contextualize the explanations given
by ministers; their input should not be dismissed. The following segment, which
is lengthy, aims to show the wide array of deliberations that were discussed
over several decades. After this in-depth contextualization, I will formulate
conclusions on the legislator’s intent.
B.
Legislative History
Part (1) -- July 1960
-- Minister of Justice Fulton (
Bill of Rights)
[142]
In July 1960, in front of the Special Committee
on Human Rights and Freedoms, during the clause-by-clause review of the draft Bill
of Rights, Minister Fulton described the decision to use “ascertain” and not “ensure”
for the examination provisions. The present section 3 of the Bill of
Rights was referred to as clause 4 at the time.
p. 332 Mr. Fulton: “[…] Then with
regard to clause 4 of the bill, the clause with regard to the powers and
responsibility of the Minister of Justice, you say you would like to see the
word “ascertain” strengthened. It is, however, my view—I am not trying, even if
I had the right, to cross-examine you; but this is a clause which has given us
difficulty from time to time.
When we drafted it first in 1958, the word was
“ensure”. Then, we looked at that ourselves and felt that word was a rather
questionable one, because we felt: does that mean that the Minister of Justice,
who is to ensure, must, by necessary implication, have the power to ensure?
Does this give him some power of dictation over his colleagues in the cabinet
or, indeed, over the rights of private members to introduce bills into the
house? If the Minister of Justice is to ensure, how is he to do this, unless
you give him the power to do it? We felt that parliament would not want to give
a single minister of the government the right to say in what form bills should,
or should not, be introduced.
With respect to government bills, the matter is easier, because it goes through cabinet
and presumably the view of the Minister of Justice as to the form of a bill
would be accepted. But even there it is not desirable to give the Minister of
Justice dictatorial powers over cabinet.
But when we came to private members in parliament, we
felt we were against a real difficulty. If you give the minister the
responsibility to ensure, you must give him the power to ensure and then he may
be too powerful; and that is why we changed the word to “ascertain”.”
[143]
Minister Fulton then explained the possible
obligations of the Minister of Justice. Note that the reporting obligation does
not yet exist and the final version of the Bill of Rights has not been
agreed upon. Mr. Lower was a professor and Mr. Badanai and Mr. Batten were
parliamentarians.
p. 333 Mr. Fulton: “[…] In so far as
government measures are concerned, I would think my function would be to advise
the cabinet, or my colleagues in cabinet, as to whether, in the view of myself
and my advisers, they are proposals which transgress the letter, or the
principle of the bill of rights. I would imagine that if such advice were given
in concrete form, cabinet would have the responsibility of making a judgment.
But with respect to bills introduced into the house by
private members, I would think there that under the word “ascertain” my only
function, and surely a sufficient responsibility, is to ascertain, and then to
advise the house that in the view of the Minister of Justice this bill does,
or does not, conform to the bill of rights. And then would it not be for
parliament to decide whether to proceed with it?
Mr. Lower: I think that would be a very powerful opinion, if it were
expressed by the Minister of Justice to the house; and the opinion of the
minister would apply to regulations, every proposed regulation in draft form.
Public bills, no doubt, would be hammered out before they were submitted, from
that point of view?
Mr. Fulton: Yes.
p. 334 […] Mr. Fulton: Frankly, I did
feel that the main responsibility was to advise the government, because, as you
say, the great majority of bills that reach the statute books and have an
effect on the public are bills introduced by the government.
Mr. Lower: Yes.
Mr. Fulton: Would it not be likely—and, indeed, not only likely;
but almost certain—that with such a provision in the law, very early in the
debate of a government bill somebody would ask the Minister of Justice whether
he has examined this bill as required by section 4 of the bill of rights, and
whether, in his opinion, it does conform to the bill of rights?
Mr. Lower: Almost certainly, in the course of years, you would work out a
whole set of criteria which people would observe in drafting bills.
Mr. Fulton: Yes, that is my view. We may have to change; we may well be faced
with the necessity of amending bills already on the statute book—and we are
certainly going to have to look at every bill in the future to see that it
conforms to the bill of rights. And this would be my special responsibility
under clause 4.
[…] Mr. Fulton: I would have thought,
during the debate on the bill. The appropriate stage, it seems, would be second
reading, because that is when the principle comes up for debate. But it might
be that in the course of years we would work out, either on our own, or by
suggestion from others, a sort of formal report process under which the
minister’s opinion could be delivered at the same time first reading was moved.
We might work out some procedure as that.
p. 335 […] Mr. Batten: I am just saying,
you would advise the house whether or not it was in accordance with the bill of
rights?
Mr. Fulton: Yes.
[…] Mr. Badanai: […] I would like to ask the
Minister of Justice this question: if his opinion were overridden in the
cabinet, what would be the attitude there—what would be the result?
Mr. Fulton: I think that would be one of those very difficult
problems that no doubt do arise sometimes. There is the doctrine of collective
cabinet responsibility, and whoever was the Minister of Justice at the time
would have to decide whether he went along with the opinion of cabinet, that
either his advice was wrong, or that under the circumstances he should accept
the majority view. He would have to decide whether he would take that
position—either one of those two positions,—or whether he would submit his
resignation.
p. 335 […] Mr. Fulton: […] You asked
what would happen, and this is what we have not cleared up. The cabinet, of
course, is the body which decides what bills will be introduced by the
government, and what policy the government will follow, and its decisions are
reached on a collective basis, under the doctrine of collective responsibility.
Therefore, a minister of justice who found himself in
the position of having advised his colleagues that, in his opinion, a bill runs
contrary or counter to the bill of rights but whose advice was rejected by his
colleagues, would have to make one of two fundamental decisions. He would have
to conclude that he is wrong and that his colleagues are right, or that the
exigencies of the situation require him to accept the collective view of the
cabinet and therefore to go along with it or should he not be able to come to
one of these conclusions, as a simple alternative, would have to be to resign.
That would be the position as I see it.”
[Emphasis added.]
[144]
Later, the Committee specifically considered the
wording of section 4, which is the examination obligation. I notice the
first proposal to create a body of expertise in regards to guaranteed rights.
It is obvious this idea was acted upon much later with the creation of the
Human Rights Law Section within the Department of Justice. Once again, I
observe much debate over the wording and implications of the obligations.
Mr. Maxwell Cohen and Mr. David Mundell were legal scholars, and
Mr. Spencer (the Chairman), Mr. Martin, Mr. Browne and Mr.
Deschatelets were parliamentarians.
p. 393 […] Mr. Cohen: “I now come to
section 4. This section, as some people have pointed out, seems to be slightly
weaker than the first draft of the bill, as the minister pointed out, and that
the first draft had the phrase “to ensure”. While “to ascertain” is the phrase
here. You might ascertain whether any information here was inconsistent with
the purpose of this act.
It seems to me that there is really not much to choose
between the two languages. I see no major difficulty if one uses the verb “to
ascertain” because one cannot expect the Minister of Justice to administer
these things. The courts are going to have to administer them.
There is a two-level process. First, there is the
drafting process, where the minister will have his eye on it, and then there is
the interpretation process, on which he will also have his eye for the purpose
of seeing if further amendments are required.
But I would like to suggest that the two techniques
for the consideration of the minister. I would like to suggest that if this
bill is to do a serious job in the field of draftsmanship, and a serious job in
the field of supervising what is happening, then I think the government should
promise to establish, or attempt to establish a civil rights section, or some
appropriately named section in the department, where the functions of drafting
and supervision would go on, and would develop a body of expertise.
p. 406 […] Mr. Fulton: Clause 4
affects the executive. This is a directive to the Minister of Justice, as a
member of the executive, having the primary responsibility in this field. It is
a specific direction to him, imposing upon him certain obligations with respect
to ensuring that all subsequent bills and regulations decided upon shall be, in
so far as they lie within the power of the minister to do it, in conformity
with the bill of rights. When I say “in so far as they lie within the power of
the minister to do it,” I mean in so far as it is within his power, preserving
still the principle that he is not a dictator over parliament, and that his
powers are exercised subject to the overriding rights of parliament, and
control by parliament of the executive. The scheme is as comprehensive as we
can make it, not only with the respect to the field of rights, but with respect
to all branches and parts of the government within the federal field of
jurisdiction.
p. 510 […] Mr. Martin: The Toronto
bar had a submission on this article 4. They would retain the word
“assure” in place of the word “ascertain” in the section. But it seems to me
that section 4, as presently drawn, is really meaningless.
[…] Yes, and clause 4 really has no teeth in it.
All he is going to do is to ascertain whether or not these things exist, and
that is the end of it. There is no sanction, and there is nothing.
Mr. Mundell: This is very much the question which arose out of
Mr. Badanai’s suggestion. What powers could you give the minister if you were
going to try to make it an effective section? He could not block a bill in the
house. It seems to me that the section has a limited purpose, namely, that
there should be a review made, and that it would rest on the conscience of the
minister.
Mr. Browne: Would you not think from this clause that if the
minister is instructed to ascertain something, and if he found something wrong,
in that case it would be his responsibility to bring it to the attention of the
house?
Mr. Mundell: It would rest on the conscience of the minister,
whatever he should do. The bill is based on the principle that the Minister of
Justice would have a conscience.
p. 512 […] Mr. Mundell: I think it would
be his duty under this section to form an opinion, but I do not think that
opinion should be binding on parliament.
Mr. Deschatelets: I am referring to a moral obligation.
Mr. Martin: You will remember originally, in the bill introduced
in 1959, the words were “in order to ensure”, and now they have the word
“ascertain” which, I think, weakens it to the point where this section is
meaningless. It does not change the situation now. As Mr. Mundell said the minister
now would be implicit in his responsibilities doing these things and this
section does not change the picture at all. It seems to me there is great merit
in the proposal made by Mr. Badanai.
The Chairman: May I make this observation: I do not know how the
Minister of Justice could ensure something—unless he has an opinion from the
Supreme Court of Canada.”
[Emphasis added.]
[145]
Minister Fulton also considered that a
government may want to avoid the effects of the future Bill of Rights by
invoking a “notwithstanding”
provision:
p. 573
Mr. Fulton: “[…] If at that time, the time the cabinet receives the
minister’s report, it feels that notwithstanding the indication that this bill
is contrary to the bill of rights, nevertheless it should be proceeded with,
because the interest to be served is so important that it warrants proceeding
with it, then cabinet could only do that, as I see it, by inserting a clause
which is contemplated in clause 3 of this bill, or the words:
“notwithstanding the bill of rights the Senate and House of Commons enacts as
follows”. That would then make it clear this bill is being submitted to
parliament for its approval, notwithstanding the bill of rights. The whole
issue would be out in the open for parliament to assess.
Mr. Batten: Agreed; but that does not add any strength or
“teeth” to the bill of rights if, concerning every act you are going to bring
in which contravenes the bill of rights, you are going to get over the hurdle
by using the word “notwithstanding”.
Mr. Fulton: You cannot get over the hurdle unless parliament
agrees it is appropriate to legislate this way, notwithstanding the bill of
rights.
[…] Mr. Batten: I think, Mr. Chairman, that
this section of the bill, clause 4, could be strengthened because I do not
think that giving the minister the authority to ascertain whether or not there
is any contravention between the bill of rights and any proposed bill in the
House of Commons is sufficient.”
[146]
It is also informative to note that at the time
of these discussions, the role of the Department of Justice was contemplated.
Minister Fulton described its responsibilities as follows and understood that
the proposed amendments would call for more resources to be allocated to the
Department:
p. 575 Mr. Fulton: “The Department of
Justice has certain responsibilities now, as you know, in respect of the
drafting of government Bills and in respect of the drafting of any Regulations
[…]. This imposes upon us in any event the obligation of ensuring that they are
in conformity with the existing statutes and existing constitutional
provisions. In addition, now, we will have the function of ensuring they are
all in conformity with the Bill of Rights. To that extent it is not a change in
our function; it is an extension of the basic application of our function. It
may be that as this function develops, and as we have experience with it, that
we will find we need to enlarge the personnel of the Department. […] I do not
think it would be wise at the moment to commit ourselves to the establishment
of a special bureau.”
(Canada, House of Commons, Minutes and Proceedings
and Evidence of the Special Committee on Human Rights and Fundamental Freedoms,
24th Parl, 3rd Sess, No 1 (20 July 1960) at 332–335,
393, 406, 510–512, 572–579.)
[147] As it will be seen later, major changes were brought within the
Department of Justice in the 1980s following the proclamation of the Charter
in order to espouse the examination and reporting responsibilities imposed on
the Minister of Justice.
Part (2) -- August 1960 --
Minister of Justice Fulton (
Bill of Rights)
[148]
A few weeks after the Committee discussion,
Minister Fulton summarized the state of the proposed examination clause as it
stood. He also indicated that he understood the initial provision to imply a
reporting obligation but that he had been convinced in committee that a formal
reporting clause must be added.
Mr. Fulton: “The next important amendment I think I should
mention is with respect to clause 3 as it appears in the reprinted bill.
This is the clause which imposes on the Minister of Justice the obligation of
examining every proposed regulation submitted in draft form to the clerk of the
privy council and every bill introduced in or presented to the House of Commons
in order to ascertain whether any of the provisions thereof are inconsistent
with the purposes and provisions of that part of the bill.
It was suggested to us in committee that while this
might impose an obligation on the Minister of Justice to satisfy himself with
regard to the existence or the non-existence of any inconsistencies, there
seemed to be no concurrent obligation imposed upon him to bring his views by
way of report before the House of Commons. […]
I felt it was an inescapable and necessary implication
that in the regulations that the governor in council might make as to the
manner in which and the means by which the Minister of Justice would discharge
this obligation, the way in which the minister would report the results of his
examination to the House of Commons or to parliament would also be covered.
However, hon. Members felt that this specific obligation of reporting should be
imposed upon the minister by specific provision in the bill, and since this
seemed to me to impose no greater obligation than I thought was implicit in the
clause in any event I felt there was no objection whatsoever to the
insertion in the clause of a specific requirement that the minister should make
the report to the House of Commons with respect to his examination at the first
convenient opportunity.”
(Canada, House of Commons Debates, 24th
Parl, 3rd Sess, Vol 7 (1 August 1960) at 7373)
[Emphasis added.]
[149] As a result of all these discussions, the Canadian Bill of Rights
formally became law on August 10, 1960. The discussions concerning
clause 4 (now section 3) of the Bill of Rights reveal that the
legislative intent was to insert, within the reviewing process of draft bills
and draft regulations, a mechanism within the Department of Justice to identify
and address inconsistencies with guaranteed rights. The discussions cited above
also reveal that the reporting obligation of the Minister towards the House of
Commons would be triggered if the Minister identified an inconsistency as a
result of his examination. I also note that the role of the Department of
Justice was discussed; this is an important indication as to what was expected
of the Department. Furthermore, it seems that the Minister implicitly
recognized that the role of the Department would grow with time.
Part (3) -- January 1971 – Minister
of Justice Turner (
Statutory Instruments Act)
[150]
In January 1971, Minister of Justice Turner
explained to the House of Commons the purpose behind the Statutory
Instruments Act. The aim of the bill was to revise the law relating to
delegated legislation. He indicated that the review was warranted as the last
piece of legislation on the topic dated from 1950 and the Official Languages
Act had recently come into force:
Mr.
Turner: “One of the main
features of this bill is that it is designed to protect the public from the
improper or unusual exercise of power that has been delegated by Parliament.
This will be done in three different ways. First, most proposed regulations
will be required to be submitted to the Clerk of the Privy Council who,
together with Deputy Minister of Justice, will be responsible for examining the
proposed regulations to ensure four things: first, that they are authorized by
the statute pursuant to which they are to be made; second, that they do not
constitute an unusual or unexpected use of the authority pursuant to which they
are to be made; third, that they do not trespass unduly on existing rights and
freedoms and are not, in any case, inconsistent with the purposes and
provisions of the Canadian Bill of Rights; and fourth, that the form and
draftsmanship of the proposed regulations are in accordance with established
standards.
[…] It is hoped that at this stage in the
regulation-making process any proposed regulation that fails to meet the
criteria which I have just enumerated will be revised in such a manner that,
having regard to those criteria, it becomes acceptable to the Department of
Justice and to the person or body that proposes it.
[…] At that stage the primary purpose will be to see
whether the regulations meet the criteria. The ultimate interpretation, in one
sense, lies with the scrutiny committee of Parliament. In a wider sense, the
courts of this country will be called upon, if the regulation is challenged, to
interpret whether the regulation is intra vires or ultra vires of the enabling
statute. The interpretation of words will not be the primary purpose at
this stage.
[…] There will be a change to the present system.
There will be a judicial scrutiny by the Department of Justice to ensure that
the four criteria are followed.
[…] It is my hope that the members of the scrutiny
committee will be able to find the time to examine all regulations, but
especially those that have wide application to the public. In this way, members
of the public will be assured that Parliament is at least aware of those regulations
which have an impact on their daily lives.”
(Canada, House of Commons Debates, 28th
Parl, 3rd Sess, Vol III (25
January 1971) at 2735–2736)
[Emphasis added.]
Part (4) -- February 1971 – Minister of Justice Turner (Statutory
Instruments Act)
[151]
A few weeks later, in February 1971, during a
meeting of the Standing Committee on Justice and Legal Affairs, Minister of
Justice Turner responded to the following comment:
“[…] it appears
that the practice is not to report an inconsistency with the purposes and
provisions of the Canadian Bill of Rights to Parliament, as provided for in the
statutes, and the regulations made thereunder, but to continue to work with
successive drafts of the regulations until the inconsistency has been removed.
We have no fault to find with this technique, but the burden it imposes on the
Department of Justice is considerable.”
[Emphasis
added.]
[152]
To which Minister Turner responded:
Mr. Turner: “The Committee says that the way the Regulations Act
is drafted now requires the Minister of Justice to certify that a proposed
regulation is in accordance with the Canadian Bill of Rights. What happens in
practice? The Deputy Minister of Justice finds that a proposed regulation is
contrary to the Canadian Bill of Rights, he sends it back to the department
concerned saying we will not accept this, fix it up and it is fixed up and then
it is certified.
Mr. Turner: The amendment, instead of imposing the duty on the
Deputy Minister of Justice or the Minister of Justice at the stage of a
proposed regulation, says when the regulation is transmitted, that is to say
after it has been approved, argued about, drafted and then sent over. In other
words, the proper stage at which the Minister of Justice ought to certify it,
is when it is transmitted for registration, not when it comes up by way of
proposal. That is the only change. It is responsive to the Committee report
and makes a lot more sense because in practice we send proposals back anyways
until they come back in the proper form. Our duty should be to make sure that
before registration it is in accordance with the Canadian Bill of Rights.
Mr. Alexander: Will the regulations come before you sir? I do not
even see the difference except where if there is any doubt about the validity
of a regulation it is then transferred to your Department. Is that right?
Mr. Turner: Yes. There are two different things, Mr. Alexander.
The Deputy Minister of Justice under the earlier sections had the duty to
ensure that the regulations met certain criteria. But the Minister of Justice
under this clause has the duty to ensure that it does not contravene the
Canadian Bill of Rights. In practice the Deputy Minister of Justice exercises
that particular power on my authority but I am responsible before Parliament if
he makes a mistake. As a matter of fact if there is a real dispute then the
Deputy Minister of Justice draws it to my attention.”
(Canada, House of Commons, Minutes of Proceedings
and Evidence of the Standing Committee on Justice and Legal Affairs on Bill C-182,
Statutory Instruments Act, 28th Parl, 3rd Sess (16
February 1971) at 7:22-7:23)
[Emphasis added.]
[153] Similar to the intent behind the enactment of the Bill of Rights,
as explored above, the purpose of the 1971 revision was also to elaborate a
mechanism to examine draft provisions for inconsistencies with guaranteed
rights. To do so, draft regulations would first be “judicially” scrutinized by the
Department of Justice and second, if the regulation was then challenged, the
Courts would assume their role to decide on the legality of the problematic
provisions of the draft regulations.
Part (5) -- March 1985 – Minister
of Justice Crosbie (Amendments brought after the enactment of the
Charter)
[154]
In March 1985, Minister of Justice John Crosbie
commented on the government’s responsibility to adapt existing legislation to
the new Charter. As part of that process, both the Statutory
Instruments Act and the Department of Justice Act were amended in
order to include examination and reporting provisions similar to the ones created
by section 3 of the Bill of Rights. It is important to note that
the following segment refers to the review process as a whole and not
specifically to the examination and reporting obligations.
p. 3418 Mr. Crosbie: “[…] The federal
Government, provincial Governments and territorial Governments, once the
Charter had been proclaimed, undertook to review their legislation, regulations
and administrative practices to ensure that they were consistent with the
Charter as far as it could be determined. As a result of the review which
has taken place in the Government of Canada, a broad range of federal
initiatives were undertaken to bring about conformity with the Charter.
p. 3419 […] I want to point out that the project
of reviewing federal statutes to discover if they comply with the Charter
commenced on April 1, 1982. That is when the Human Rights Law Section was
established in the Department of Justice. For over two years our predecessors
were in charge of the operation of reviewing federal statutes to discover
whether they complied with the Charter in so far as they could be determined.
Of course, the courts will ultimately determine whether they do or do not
comply.
[…] What is the Bill about? The Bill is to ensure that
federal statutes which are obviously in conflict with the Charter will be
amended so that the conflict will no longer exist.
p. 3422 […] The Minister of Justice already has
an obligation under the law to examine Bills and regulations to ensure they are
consistent with the Bill of Rights. I am referring to the Bill of Rights
enacted under the late great John Diefenbaker when his Government was in power.
These amendments provide a similar obligation on the Minister of Justice to
examine regulations and Government Bills to ensure they are consistent with the
Charter. That is new. They also provide for the co-ordination of the
examination of regulations under the Statutory Instruments Act, the Department
of Justice Act and the Bill of Rights.
[…] As a result of court decisions, in the future the
House will have to make changes in legislation from time to time. We also
recognize that there may be aspects of federal legislation that we missed in
this review. It is a continuing process to ensure conformity with the Charter.
New problems will be identified from time to time.”
(Canada, House of Commons Debates, 33rd
Parl, 1st Sess, Vol 3 (27 March 1985) at 3418–3422)
[Emphasis added.]
Part (6) -- April
1985 -- Minister of Justice Crosbie (Amendments brought after the enactment of
the
Charter)
[155]
Minister of Justice John Crosbie further
reiterated, in more categorical terms, the duties and obligations to be assumed
by the Department of Justice in regards to reviewing pre-existing legislation
at the Standing Committee on Justice and Legal Affairs on April 23, 1985:
p. 25A-1 Mr. Crosbie: “Since the proclamation
of the Charter in 1982, the federal government has been reviewing its
legislation, regulations and administrative practices to ensure consistency
with the Charter. This review was necessary because laws which are inconsistent
with the Constitution may be found of no force and effect. The review has been
based on the assumption that it is preferable to change legislation, rather
than forcing Canadians to challenge laws in the courts to assert their constitutional
rights.
In order to carry out this review and provide advice
generally on Charter issues, the Department of Justice established the Human
Rights Law Section in 1982. The lawyers in this section have worked closely
with the lawyers in the Legal Services Units, who in turn have consulted with
officials in various departments and agencies to identify problems. In this
way, the Department of Justice has been able to draw on those with expertise
and specialized knowledge in many different areas.
The review of statutes has been an enormous task.
There are hundreds of laws covering an incredible variety of subjects. The
Charter is relatively new and the jurisprudence is at an early stage of
development. In most areas, there are no definitive court decisions. The task
is further complicated because Charter assessment requires evaluation of
fundamental issues of social policy, as an integral element of any legal
judgment that can be made.
p. 25A-8: […] The amendments to the Department of
Justice Act and the Statutory Instruments Act will provide for the scrutiny of
bills and regulations to ensure consistency with the Charter. A similar
obligation already exists with respect to the Canadian Bill of Rights […].
The amendments will also make this process more efficient
by ensuring that an examination of regulations made under the Statutory
Instruments Act will be sufficient for the purposes of the Charter and the Bill
of Rights.”
(Canada, House of Commons, Minutes of Proceedings
and Evidence of the Standing Committee on Justice and Legal affairs, 33rd
Parl, 1st Sess, No 25 (23 April 1985) at 25A-1 to
25A-25A-10)
[156] The examination and reporting duties of the Minister of Justice and
of the Clerk of the Privy Council remain the same following these amendments
except to add reference to the Charter; nothing else was changed.
[157]
But, I heed that the verb “ensure”, rather
than “ascertain”
was used by Minister of Justice Crosbie in his speech when he defined the
obligations. It is impossible, at this stage, to clearly understand what was
meant by Minister Crosbie’s reliance on the verb “ensure”: did he use “ensure” in its
weakest form, as seen earlier when the word was tempered by the much weaker
French equivalencies; or did he mean to convey the strong definition of “ensure”, as
found in dictionary definitions? Ultimately, the legislative history of the Statutory
Instruments Act, as presented to the Court, establishes that no amendments
were sought to the examination provisions in order to reflect his use of “ensure”.
Part (7) -- June 1985 -- Mr.
Low (Application by the Department of Justice)
[158]
Finally, in June 1985, in front of the Standing
Senate committee on Legal and Constitutional Affairs, Mr. Martin Low, as
General Counsel within the Department of Justice –Human Rights Law Section,
commented on the proposed legislation to amend certain bills following the
enactment of the Charter as mentioned by Minister Crosbie in March and
April 1985 (see above). He incidentally summarized the practical complexities
of the examination provisions. He first detailed how the Department of Justice
approaches such an issue:
p. 15:6 Mr. Low: “[…] I just want to say that
complicating our life, apart from the question of novelty, is the fact that the
Charter requires of us more than a narrow examination of precedents and
judicial decisions that enable us to say, with a degree of confidence about
black letter law, that something does or does not conform to the Charter. It
has a very important policy dimension. A number of aspects of the Charter
involve policy judgments as much as pure black letter legal prescriptions and
so that the task of assessing the compatibility of laws with the Charter
becomes, in many respects, a matter of judgment and of risk assessment, as
opposed to clear and definitive and articulated decisions a determination of
inconsistency.
The bill that will be coming before you is, in a
sense, our best judgment as to areas of legal risk. There are very few areas in
the bill that we believe to be directly in conflict with the Charter. We have
some difficulty in saying absolutely, unequivocally, that such and such a
provision of a certain Act, in fact, is inconsistent with the Charter. But,
we see a degree of sufficient risk of invalidity that one of our operating
principles, in conducting the review, requires us to consider it for amendment.
The operating principle is, where the risk of inconsistency with the Charter
is sufficiently great, that we should not be in a position of requiring
individual Canadians to test an issue through the courts to the final level of
the Supreme Court, with all the expense and difficulty that that entails, where
we recognize that there is a high risk of inconsistency.”
[Emphasis added.]
[159]
Mr. Low then informed the Committee that the
bill would add a reference to the Charter to the existing examination
provisions:
p. 15:8 Mr. Low: “[…] The next area of the bill
is an area which involves the casting of a responsibility on the Minister of
Justice to examine bills and regulations to ensure that, when Parliament is
dealing with a bill, there has been an assessment made of its compatibility
with the Charter. That is essentially similar to the responsibility which
the minister now has under the Canadian Bill of Rights. It is also intended to
make the process of examination of regulations under the Statutory Instruments
Act somewhat more efficient than it is at the moment, where those who are
charged with the administration of this responsibility for the minister must in
fact examine the regulations at least twice and sometimes three times in some
cases, essentially for the same purpose, and it is really not a very productive
use of the time of some very valuable people.
[…] That is a very hasty assessment of what is in the
bill. I suppose I should say the bill is not intended to be our final product.
It is the first of what will be at least two bills and perhaps more, because as
time goes on our understanding of the Charter and of its impacts on areas of
law that we may have assessed and thought to be on balance pretty secure, is
being revised every day. Perhaps the best example I can give you of that is the
provisions of this bill which deal with powers of entry for the purpose of
search. Immediately after the judgment of the Supreme Court of Canada in Hunter
v. Southam we were able to deal with much more confidence than we had to
that point in time with this rather difficult question of controls on those who
would search for the purposes of an offence.
p. 15:9 […] I suspect that we will be doing that more
and more frequently as the higher courts, and particularly the Supreme Court,
come to give us better guidance on the meaning of these difficult questions of
law and perhaps even more difficult questions of social policy.”
(Canada, Senate, Proceedings of the Standing Senate
Committee on Legal and Constitutional Affairs, 33rd Parl, 1st
Sess, No 15 (12 June 1985) at 15:6-15:9)
[Emphasis added.]
[160]
From this broad contextualization, in the next
section, I reach conclusions regarding the legislator’s intent in regards to
the examination provisions.
C.
Conclusions on the Legislator’s Intent
[161]
To summarize this analysis of the legislator’s
intent, I conclude that the Minister of Justice’s obligations to examine and to
report have existed since the early 1960s. These obligations have evolved over
time, notably through the full review of delegated legislations in the early
1970s resulting in the Statutory Instruments Act, and through the
amendments consequent to the enactment of the Charter in the 1980s. The
basic requirements of the obligations have remained the same but the work
required to fulfil the obligations and the complexity of the substantive issues
have greatly expanded. From the historic statements reproduced above, I confirm
that it was agreed that changing the word “ensure”
for “ascertain” weakened the examination
process.
Part (2) -- The Examination
Duty
[162] The objective of Minister Fulton was to impose on the Minister of
Justice the obligation to answer whether or not there was a breach to
guaranteed rights. The legislative language adopted does indeed call for this
determination to be made. But, at no time was there discussion as to the level
of credibility to be given to an argument in order to permit such an answer to
be reached. The use of the word “ensure” was first proposed, but following
discussions the word “ascertain”
was deemed more appropriate.
[163] At the time, the Department of Justice was not organized to examine
draft legislation. The idea that the Department of Justice would assume such a
responsibility was only in its embryonic stage, but the persons involved in the
discussions at the time envisioned that the responsibility of the Department of
Justice would gradually grow.
[164] In regards to the bill of the Statutory Instruments Act in
1971, Minister of Justice Turner, when discussing the draft Statutory
Instruments Act, wanted to protect the public and ensure Parliament would
have a role to play in reviewing regulation compliance with guaranteed rights.
He envisioned that the Department of Justice would assume a “judicial scrutiny”
of the draft regulations. He also made it clear that if called upon, the Courts
would have the final say as to legality and compliance with guaranteed rights.
In essence, he placed emphasis on the roles to be assumed by the three institutions
in attempting to produce the best regulations possible.
[165] Following the enactment of the Charter, in 1985, Minister
Crosbie used the word “ensure”
in his statements. I note that the word “ensure” was in fact never reflected
into the legislation through an amendment; the verb “ascertain” remained. It can be said
that the weak form of the verb “ensure”
was used because the French counterparts to “ensure” are “vérifier” in the Bill of Rights and the Department of Justice Act,
and “examiner”
in the Statutory Instruments Act. In addition, the expression “does not trespass unduly”,
in French “n’empiète pas
indûment”, used at 3(2)(c) of
the Statutory Instruments Act further confirms that the notion of
certainty found within the word “ensure” has been diluted. In every scenario where “ensure” was
used, whether through comparisons of equivalent expressions in different
statutes, in the correspondent French versions of the provisions, or through
historical discussions, the guarantee within the expression “ensure” was
always mitigated.
[166] Furthermore, Minister Crosbie’s general counsel, Mr. Low, expressed
the complexities of the new role the Department of Justice would assume. Mr.
Low also articulated that it would be challenging to “[…] say with a degree of confidence […] that
something does or not conform to the Charter […].” From these
complexities, the “no
reasonable argument” standard was adopted.
[167] The objective of establishing an examination process in regards to
guaranteed rights was clearly intended. But, at no time was it thought that
this process would guarantee Bill of Rights-proof and Charter-proof
draft legislation. It was intended to give the Department of Justice a major
participatory role in that examination process, to the point of assuming a role
of judicial scrutiny. It is only in the early 1980s that the “no reasonable argument”
standard was conceptualized. Following the enactment of the Charter,
that standard evolved into the “credible
argument” standard.
[168]
Overall, the intent of the legislator, as early
as the 1960s and through to the 1980s, was consistent and properly reflected in
the ordinary meaning approach. The intent supporting these enactments and
subsequent amendments cannot be changed on the basis that a Minister of
Justice, in 1985, referred to the verb “ensure” rather than “ascertain” to
describe the obligations. Such a conclusion would not reflect the collective
intent established over 25 years of legislative discussions.
Part (3) -- The Reporting
Duty
[169] The early draft of the Bill of Rights did not contain a
reporting mechanism; it came about later following discussions in Parliament.
The reporting mechanism was added in order to ensure that there would be
finality to the examination procedure. At no time were Parliament’s
responsibilities in regards to protecting guaranteed rights discussed.
[170] Following the Minister’s duty to examine, the legislator also
intended to create a reporting obligation to ensure that the Minister of
Justice would report to the House of Commons if ever an inconsistency with
guaranteed rights was identified.
[171] The ultimate result of the duty to report, the Minister of Justice’s
resignation from Cabinet, was conceptualized to be of a political nature by
Minister Fulton. At the time, this remedy was considered a significant tool of
persuasion and remained so for the years to come.
[172] Over this entire period, up to today, there has only been one report
filed to the House of Commons by the Minister of Justice in application of the
examination and reporting duties. The report, on a Private Member’s Bill and
thus outside the purview of the examination provisions, concluded that an
amendment was inconsistent with the presumption of innocence. This
inconsistency was corrected at the committee level through an amendment (Canada,
House of Commons, Minutes of Proceedings and Evidence of the Standing
Committee on Agriculture, 30th Parl, 1st Sess, No 63
(18 November 1975) at 19-27).
[173]
It is important to note that Cabinet
deliberations are fully protected for a period of twenty years as per section 39(4)(a)
of the Canada Evidence Act, RSC 1985, c C-5, meaning that
even if the Minister of Justice resigned, she would not disclose, at least
theoretically, the reasons for doing so. Yet, the framework provides for such a
measure; thus this eventuality must be considered.
VII.
ANALYSIS STEP 3 – CONSEQUENCES OF THE
PROPOSED INTERPRETATION
A.
Defining What Is the Obligation
[174] Our analysis of the plain meaning of the text and of the
legislator’s intent provides a sound foundation for understanding exactly what
are the Minister’s obligations in relation to the examination function.
[175] The Minister of Justice is required to examine and analyze any draft
legislation, to find any inconsistency, and to conclude in no uncertain terms
that the eventual Court challenge will result in a conclusion that the draft
legislation will be found in breach of one or many of our Charter
rights.
[176] The obligation to examine is completed at the time the bill is
tabled into the House of Commons and requires looking at the facts that exist
at that moment. The examination provisions do not ask the Minister to consider
hypothetical outcomes or shifting social norms.
[177]
The examination requirement forces the Minister
of Justice to conduct a robust review of the clauses of draft legislation. The
objective is to make the legislation defendable in Court insofar as guaranteed
rights are concerned. This examination duty is demanding and can only improve
the quality of draft legislation if indeed there is an inconsistency, or the
appearance of an inconsistency, while the legislation is under development.
B.
What the Obligation Does Not Entail
[178] The plain meaning and the legislator’s intent do not ask the
Minister to guarantee consistency looking forward (for example to anticipate a
far-away court challenge), nor do they ask the Minister to guarantee that
proposed legislation is more likely than not consistent with guaranteed rights.
The obligation is to make a thorough search for inconsistencies and to report
only if no credible argument can justify the inconsistency.
[179] For a Minister of Justice to reach a conclusion that an
inconsistency exists, there must be no valid and substantial argument to
support a different conclusion. A different conclusion would be that indeed, a
credible argument does exist in favour of the proposed legislation. To
reiterate, there can only be an inconsistency if no credible argument exists.
Therefore, if there is a credible argument to be made in favour of consistency,
there is no inconsistency, hence the duty to report is not triggered.
[180] The plain meaning and the review of the legislator’s intent leading
to the enactment of the examination provisions do not support the conclusion
that the Minister of Justice must identify any inconsistency that may impact on
guaranteed rights and automatically report on it. Rather, the Minister
must indeed identify inconsistencies, but only report if there is no
credible argument to be made in favour of justifying that inconsistency. As
laudable as the first option is in theory, the wording of the examination
provisions simply do not reflect that meaning.
[181] To support such an interpretation, it is important to place this
examination process into proper perspective by describing the exact role each
branch of our Constitution has to play and how each of them have to assume
their respective responsibilities. Describing the role of each branch will also
help explain the evolution of the examination process within the Executive,
more specifically within the Department of Justice.
[182]
It is well recognized that context gives
perspective and a global viewpoint. It plays a decisive role in understanding
the interpretation that must be given to statutes.
VIII.
ANALYSIS STEP 4 – CONSTITUTIONAL AND
INSTITUTIONAL CONTEXT
A.
Introduction
[183] Our overarching goal for this chapter will be to give colour to the
context in which the examination and reporting duties of the Minister of
Justice operate. I will show that the internal context in which the Department
of Justice executes the examination obligation properly reflects the wider
external institutional and constitutional contexts. The following chapter will
be divided into three major parts, one for each branch of government: (1) the
Judiciary, (2) the Executive, and (3) the Legislator.
[184] Contrary to the brief factual exploration of the characteristics of
the three branches in the first section, which aimed to situate the Plaintiff’s
case, this chapter will instead delve into the practical roles and
responsibilities of the three institutions. I will analyze the theoretical
aspects of each, and often contrast theory with practical realities.
Ultimately, I aim to distinguish each branches’ responsibilities from that of
the others and to determine whether the outcome of this analysis supports or
contradicts our findings in relation to the content and performance of the
Minister’s examination and reporting duties.
[185] As expressed previously, in Bell ExpressVu, giving colour to
the context in which the Minister’s duties operate essentially means that a
pure narrow legislative interpretation based on the plain meaning and on the
legislator’s intent is not enough. Context, in this case, is not simply a wider
statutory scheme; it is rather context in its widest possible constitutional
scope.
[186]
The examination provisions must be assessed
light of what they represent within the founding principles of constitutional
monarchy and of democracy. The roles and duties of each branch cannot be
treated as separate statutory schemes operating disjointedly from each other.
Our Constitution provides for the creation of three institutions that are, in
essence, the expression of our Canadian democracy at play. In the following
paragraphs, I will look more specifically at the roles these three institutions
play in order to give a certain colouring, a certain perspective one could say,
to the role of the Minister of Justice. I will find that they all have a vital
role to assume in identifying potential inconsistencies in draft legislation
and in attempting to neutralize them.
B.
Section 1 – The Judiciary’s Role
[187] The first branch I will analyze is the Judiciary, whose function is
assumed by different national and provincial Courts. In short, the Courts are
called upon to render justice on a daily basis in accordance with their fields
of responsibilities. As part of this duty, if asked, the Courts will determine
whether or not a law is in accordance with the Charter and the Bill of
Rights. The Supreme Court of Canada is the final court of appeal and its
decisions are binding across the entire nation.
[188] The role of the Judiciary is not as much at issue in this case as
the two other branches, although as we will see, the balance struck between the
three branches is extremely relevant. To fully understand the constitutional
context of the case, we must still consider the Judiciary’s role in
interpreting legislation and in ultimately deciding if legislation is compliant
with guaranteed rights.
[189]
Professor emeritus Peter W. Hogg wrote, in one
of his numerous publications on the Charter, that as important as
Supreme Court decisions are, it is the collectivity of our three constitutional
institutions that are the ultimate protectors of our guaranteed rights:
“The Charter
will never become the main safeguard of civil liberties in Canada. The main
safeguards will continue to be the democratic character of Canadian political
institutions, the independence of the judiciary and a legal tradition of
respect for civil liberties. The Charter is no substitute for any of
these things and would be ineffective if any of these things disappeared.”
(Peter Hogg, Constitutional Law of Canada, 5th ed, vol 2
(Scarborough: Carswell, 2007) at 36)
[190]
This global perspective must be kept in mind
when discussing the Minister of Justice’s role in ascertaining whether or not
there is an inconsistency in any draft provisions with guaranteed rights. Such
a perspective gives whoever must interpret legislation the proper context with
which to colour the duties of the Minister.
Part (2) -- International
Comparisons
[191] The Judiciary’s ability to invalidate laws developed by the
Executive and passed by the Legislator is a key factor in maintaining balance
between the roles and responsibilities of each branch. After thoroughly
studying Prof. McLean’s expert report regarding international systems of
checks and balances, I can conclude that Canada’s system favours “post-enactment”
review. This means that Canada’s system of checks and balances is designed to
accept less stringent checks before the legislation is enacted because
we have a strong system of checks post-enactment compared to the other
systems analyzed by Prof. McLean. Canada is a relatively unique outlier within
the Commonwealth where the Judiciary can strike down laws it finds
non-compliant with guaranteed rights and require responses from both the
Executive and the Legislator.
[192] Prof. McLean’s report specifies that Canada was the first
Commonwealth country to create a regime to ensure draft legislation is reviewed
for compliance with defined rights prior to presentation to the law-making
body. She indicates that in each country analyzed, the legislature ultimately
has the last word in deciding whether a provision will stand or not. Through
tools and methods, regardless of the Judiciary’s analysis of a provision, the
legislatures in all countries analyzed have the means to enact legislation of
their choosing. For example, regardless of a court’s finding of invalidity, a
legislature can use a notwithstanding clause (ex: Canada) or simply refuse to
address a declaration of invalidity (ex: Australia). Prof. McLean refers
to this model of human rights protection as “weak form judicial review”.
[193]
She explains that in this model, “courts contribute to
assessing whether legislation complies with human right obligations but do not
necessarily have the last word”. Accordingly, mechanisms exist to
encourage legislatures to seriously consider the impact of bills on rights.
Prof. McLean concludes that the balance struck between “pre-enactment”
systems of verification (ex: bills must be approved by a Human Rights
Committee) and “post-enactment”
systems of verification (ex: court declares the law invalid) vary dramatically
from jurisdiction to jurisdiction. As such, she observes that the balance
between legislative and judicial supremacy appears to be linked “to the degree to which it is
the court or the legislature which in practice has the last word”.
[194] First, in New Zealand, prior to introduction into the House of
Commons, bills are submitted to the Cabinet Legislation Committee. The
sponsoring Minister (not necessarily the Minister of Justice) is required to
certify that he has complied with the Legislation Advisory Committee guidelines
and the Cabinet Office guidelines.
[195] In New Zealand, the reporting duty is upheld by the
Attorney-General. The Attorney-General “is the first law officer as well as a Minister of the
Crown. Typically, the Attorney-General is a member of Cabinet.”
The author also notes that in practice, the decision to report is ultimately a
matter for the personal judgment of the Attorney-General.
[196]
Interestingly, Prof. McLean notes: “In recent times it has been
thought inappropriate for the New Zealand Attorney-General to also hold the
office of Minister of Justice but nevertheless she often finds herself playing
multiple roles as a political member of the government of the day, as the
Crown’s primary legal advisor and as a Member of Parliament.”
[197] Prof. McLean indicates that “despite
the absence of any legislative requirement to do so, section 7 reports
[consistency with the New Zealand Bill of Rights] and their reasoning,
and even advice which does not lead to a section 7 report being given, is
usually made public. […] They are published in the Appendices to the Journal of
the House of Representatives when a Bill appears to be consistent
[McLean’s underlining] with the Bill of Rights Act. However, the
practice has evolved that where a Bill appears to be consistent with the Bill
of Rights Act, the Ministry’s and the Crown Law Office’s advice to the
Attorney-General is usually published on the Ministry’s website (from 2003)
effectively waiving any claim to legal privilege and also informing
parliamentarians and the greater public.”
[198] As a side note regarding judicial scrutiny, Prof. McLean
mentions there has been a question of whether the Attorney-General’s political
role is an executive or a parliamentary one. If the role of the Attorney-General
stems from the Executive branch, the Attorney-General would be protected from
judicial scrutiny under article 9 of the New Zealand Bill of Rights 1688.
This topic was broached in a New Zealand Court of Appeal decision named Boscawen
v Attorney-General, [2009] 2 NZLR 229 at paras 15, 21, in which
the decision of the Attorney-General not to issue a consistency report was
challenged. The Court found that even though it was arguable that the
Attorney-General’s duty to report was undertaken as a member of the executive,
as a law officer, and as a member of parliament, the reporting role of the
Attorney-General is part of the legislative process and therefore covered by
the principle of comity. Comity, to my understanding, is simply respect for
separation of powers. Therefore, the Attorney-General’s discretion not to file
a report could not be judicially reviewed.
[199] Prof. McLean explains that the Court of Appeal found that the
duty to report’s function is to inform political debate in Parliament and aid
the legislative process. The objective of the duty to report, in
New Zealand, is to ensure Parliament has the benefit of the Attorney
General’s assessment. From the Boscawen case at para 20: “There may be room for
different views, but the view which Parliament is to be provided with under section
7 [duty to report] is the genuinely held view of the Attorney-General, whether
others consider that view right or wrong.” Finally,
Prof. McLean suggests that “[p]olitics tends to govern whether bills are moderated during
their passage, or repealed after there is a change of government.”
[200]
In regards to the judiciary’s power to intervene
when a court finds that rights have been infringed upon, the New Zealand
judiciary has no express power to do so. Prof. McLean notes some judges
have suggested that they may have the power to make a “declaration of inconsistency” which
would draw attention to the extent to which a provision fails to meet human
rights standards. There is no equivalent to section 33 of the Canadian
Charter [notwithstanding clause]; therefore, impugned legislation survives
regardless of the judiciary’s opinion of it. Prof. McLean submits that, in
New Zealand, pre-legislative processes are commonly the only place where human
rights will formally be considered. As the courts cannot grant any useful
remedies, litigants are loath to make arguments regarding the consistency of
the law. Thus, the importance of the reporting obligation in New Zealand
justifies the “proportionality approach” and not
the “manifest inconsistency approach” (as in
Canada).
[201] Second, in the United Kingdom, the Minister in charge of the bill,
rather than the Attorney-General, is tasked with assessing the “compatibility”
of the bill with the rights and freedoms protected by the European
Convention on Human Rights. The assessment is completed upon the
introduction of the bill to Parliament. Prof. McLean, quoting
Prof. David Feldman on internal guidance in pre-legislative compatibility,
explains that the Minister “must
be satisfied that the balance of arguments favours the view that the Bill is
likely to survive Convention scrutiny in the Courts”. Prof.
Feldman suggests this practice operates as a “51 per
cent probability test”. Prof. McLean suggests that “in other words this is the
place in which Ministers and legislatures are given some leeway to make their
own assessments of credibility”.
[202] Statements of compatibility or incompatibility, in the
United-Kingdom, are reproduced in the explanatory notes to bills when they are
introduced. These notes also contain “a very general indication of reasons […] On occasion
a Bill has been accompanied by a separate more detailed memorandum on its human
rights implications […].”
[203] Prof. McLean further explains that United Kingdom courts are
empowered to “make a
declaration of incompatibility in relation to legislation which does not meet
Convention standards but such a declaration does not render the statute invalid
or unenforceable and neither is it binding on the parties”.
Furthermore, if litigants have exhausted domestic remedies, they may take the
case to the European Court of Human Rights in Strasbourg. The European Court of
Human Rights cannot invalidate United Kingdom legislation but it is able to
grant certain remedies such as damages.
[204]
In the United Kingdom, there is no formal
legislative override procedure or the equivalent of a section 33
notwithstanding clause under the Canadian Charter. On this,
Prof. McLean notes that in almost all cases, a declaration of invalidity
by the courts will prompt political dialogue leading to amendments.
d) Australia - Australian Capital Territory [ACT]
[205] Third, Prof. McLean explains that the ACT model requires both
negative and positive written statements of compatibility to be made by the
Attorney General. Reasonable limitations “may be placed on a human right where this limitation
‘can be demonstrably justified in a free and democratic society’”.
The relevant factors used to determine whether a limitation is proportionate
are: the nature of the right protected, the importance of the purpose of the
limitation, the nature and extent of the limitation, the relationship between
the limitation and its purpose, and any less restrictive means available to
achieve its purpose.
[206] Prof. McLean notes that there has been controversy in ACT about
the availability of the Attorney General’s record of his or her reasoning. The
Legislative Assembly Scrutiny Committee has the most impact in assuring human
rights are taken into account during the legislative process. The Legislative
Assembly Scrutiny Committee reports to the Legislative Assembly about human
rights issues raised by bills presented to the Assembly. Prof. McLean
notes that the Legislative Assembly Scrutiny Committee frequently disagrees
with the Attorney-General’s assessment. However, the Attorney-General’s failure
to comply with the reporting obligations does not affect the validity,
operation or enforcement of any Australian Capital Territory law.
[207]
The Supreme Court of Australia is empowered to
grant a declaration of invalidity but this does not have the effect of
invalidating the law or rendering it ineffective. Instead, it “sets out a process by which
the Assembly is notified and can respond in such situations. The Attorney
General must present the declaration to the Legislative Assembly within six
days and provide a written response to the declaration of incompatibility
within six months.”
e) Australia – Province of Victoria
[208] Fourth, in the Australian province of Victoria, a Member of
Parliament who proposes to introduce a bill into the House of Parliament must
ensure that a statement of compatibility is prepared in respect of that bill.
To do so, the Member of Parliament may consult resources from the Human Rights
Unit and obtain legal advice from the Attorney General. The statement of
compatibility must state whether, in the Member’s opinion, the bill is
compatible with human rights or not. If the Member deems it compatible, he must
state why. If, in the Member’s opinion, any part of the bill is incompatible
with human rights, he must state the nature and the extent of the
incompatibility, but the statement is not binding on any court or tribunal. A
failure to comply with the reporting obligation does not affect the validity,
operation or enforcement of the legislation or of any other statutory
provision. It should be noted that although it is the Member of Parliament who
causes the report to be created, and afterwards presents it to the House of
Parliament, it is the Minister of Justice who is responsible for developing the
statement of compatibility.
[209] Prof. McLean explains that Parliament clearly retains power to
override the Victorian Charter of Human Rights and Responsibilities
through an express declaration. If the override provision is used, the member
must make a statement to the Legislative Assembly explaining the exceptional
circumstances that justify the override. The override declaration expires after
five years. If the override declaration is used, a statement of compatibility
is not required.
[210] Prof. McLean illustrates that in practice “statements of compatibility
routinely consider not only whether rights are engaged but whether the
limitations on such rights are reasonable”. She further explains
that the Human Rights Unit in the Australian Department of Justice uses a
two-stage test whereby first, a right is defined and, second, the right is
subjected to a reasonable limits test. Essentially, a version of the Canadian Oakes
test (see R v Oakes, [1986] 1 S.C.R. 103) is adopted: “[t]he Minister must describe
the nature of the right, the importance of the purpose of the limitation, the
nature and extent of the limitation, the relationship between the limitation
and its purpose, and any less restrictive means reasonably available to achieve
the purpose that limitation seeks to achieve”. If the bill or
part of the bill is incompatible according to this test, the Member introducing
the bill must state and explain how it is incompatible and why he or she wishes
to proceed nonetheless.
[211] Prof. McLean notes that the Victorian Charter is
more rigorous than the Australian Capital Territory mechanism explored earlier.
The Victorian model requires “statements
of compatibility to demonstrate the government’s reasoning and not take the
form of a mere assertion”. Furthermore, statements of
compatibility are developed through political and legal processes. As with the
Australian Capital Territory model, all bills are reviewed by a scrutiny
committee, in this case the Scrutiny of Acts and Regulations Committee.
Prof. McLean notes that the Scrutiny of Acts and Regulations Committee
frequently disagrees with the Minister’s assessment of compatibility although
this has not always resulted in amendments to the contested provisions. Statements
of compatibility and the responses of the SARC and of the Ministers to them are
publicly available.
[212]
Prof. McLean deems the Victorian model “very dialogic”
as it “multiplies the
sites for and seeks to enhance the quality of legislative debate surrounding
human rights compliance”. If the judiciary finds that a provision
is incompatible with human rights, it may make a “declaration of inconsistent interpretation”
to which the Minister must table a written response. It will then be up to
Parliament to decide what action, if any, to take.
f) Australia – Commonwealth of Australia (Federal Level)
[213] Fifth and finally, Prof. McLean explains that the reporting
obligation for the Australian Federal level is a purely parliamentary process
governed by statute. Similar to the Victoria model, the relevant statute
provides that a Member of Parliament who proposes to introduce a bill must
ensure a statement of compatibility is prepared and afterwards tabled. The
statement of compatibility must include an assessment of whether the bill is
compatible with human rights. The statement is not binding on any court or
tribunal and failure to comply does not affect the validity, operation, or
enforcement of the subsequent law.
[214]
Human rights compatibility, uniquely, is
assessed against seven core human rights treaties to which Australia has
acceded. Prof. McLean notes that there is no prescribed form for the
statements of compatibility but the Attorney General’s department provides a
template, assessment tools, and guidance sheets. Bills go to a standing
Parliamentary Joint Committee on Human Rights that has jurisdiction to examine
legislative instruments for compatibility with rights. As this mechanism is a
recent creation (introduced in 2012), Prof. McLean states that it is still
unclear what approach the courts will take in response.
Part (3) -- Conclusion
on the Judiciary’s Role
[215] This international comparison demonstrates that jurisdictions
balance their systems of checks and balances differently. Through the five
examples explored by Prof. McLean, I can conclude that jurisdictions all
adopt some form of examination, reporting and review mechanisms, although many
theoretical and practical differences exist between them. The unifying factor,
in my opinion, is that there exists a balance of power between the different
branches of government in regards to identifying inconsistencies and dealing
with them. Some jurisdictions choose to favour “pre-enactment” protections against
inconsistencies, such as mandating that all bills must be scrutinized by a
non-partisan committee that reports to Parliament. Others choose to favour “post-enactment”
protections against inconsistencies, Canada being a strong example: only
Canadian courts have the power to invalidate legislation and require responses
from the other branches compared to the countries analyzed by Prof. McLean.
[216] As such, when analyzing the appropriateness of the standard applied,
whether it be the “credible
argument” or the “more
likely than not inconsistent” standard, the context in which the
Canadian model operates is coloured by the roles our institutions are called to
play. Prof. McLean’s report on other international models allows us to
better grasp exactly what equilibrium of checks and balances between
institutions Canada strikes.
[217] In sum, I notice that no jurisdictions have both extremely strong “pre-enactment”
protections and “post-enactment”
protections. Rather, it seems as if the principle of separation of powers is
reflected through a balance of methods protecting against inconsistencies: in
some jurisdictions, the Executive and the Legislature hold a greater share of
responsibility in promoting inconsistency-free legislation; in others, it is
the Judiciary who holds the lion’s share of responsibility in that regard. In
Canada, our constitutionally mandated separation allows more flexibility to the
Executive in regards to guaranteed rights because the Courts are mandated with
a larger safeguarding role than in other jurisdictions.
[218]
Having situated the Legislator’s powers and
responsibilities, I will now move on to the role of the Executive within our
larger institutional framework in order to further colour the context in which
the examination provisions operate.
C.
Section 2 – The Executive’s Role
Part (1) -- Structure of
the Executive
[219] The executive function is assumed by the Prime Minister. The Prime
Minister is the leader of the party for which the most Members of Parliament
were elected. The Prime Minister selects among the members of his party persons
who are called upon to become Ministers of the Crown. In those capacities, the
Prime Minister and his Ministers, collectively known as the Cabinet, are
responsible for the administrative operational requirements of the country.
[220]
Cabinet is responsible for establishing policies
and issuing appropriate administrative guidelines. In every new session of
Parliament, Cabinet is called upon to prepare the Speech from the Throne, which
usually contains the priorities of the government for the upcoming session. The
legislative agenda that the government intends to pursue is typically one of
the priorities announced. From that list of priorities, Ministers will know
what is expected of them when relevant bills are tabled into the House of
Commons by the Leader of the Government in the House of Commons.
b) Cabinet Confidences and the Resignation of the Minister of Justice
[221] As per the Canada Evidence Act, above, discussions at the
Cabinet Table are protected confidences of the Queen’s Privy Council for Canada
for a period of twenty years. This means that whatever is discussed within
Cabinet cannot be made public. Such confidences relate to: Memoranda to Cabinet
that contain proposals or recommendations, discussion papers that may contain
background information, analysis of issues, policy options suggested to
Cabinet, agendas and records of deliberations and decisions, records containing
discussions of Ministers made or to be made including the formulation of
government policy, records relating to briefings of Ministers on matters to be
discussed or previously discussed at Cabinet, and draft legislation. This
protection relates not only to matters dealt with at the Cabinet Table but also
with matters involving Committees of Cabinet (Canada Evidence Act,
above, at subsections 39(1), 39(2)(a), (b), (c), (d), (e), (f) and 39(3)).
[222] Cabinet Confidences prevent not only outside persons from accessing
the information but also impose on the participants themselves the obligation
not to disclose the content of the information in a public forum. Notably,
Cabinet Confidences bind both civil servants and Ministers of the Crown.
[223] This concept is particularly interesting in application to the case
at hand because protected confidences may severely limit the content of the
Minister of Justice’s communications if she ever were to consider resigning as
a result of a disagreement with Cabinet in regards to an inconsistency with
guaranteed rights she has identified. Minister of Justice Fulton, in the early
1960s, at the time of discussion on the enactment of the Bill of Rights,
saw ministerial resignation as a powerful tool. But it may be that the impact
of such a resignation would in practice be much more mitigated than Minister of
Justice Fulton envisioned. The effect of protected confidences on the Minister
of Justice’s option to resign if she ascertains an inconsistency is profound.
Yes, resignation may be the ultimate decision to make if Cabinet and the
Minister of Justice disagree, but resignation does not guarantee that an
informed public debate on the inconsistencies will occur as the Minister of
Justice will be unable to discuss her resignation. As seen, even draft
legislation is protected; this emboldens the notion that the Minister would be
unable to communicate even the cause of her resignation. Furthermore, it is entirely
possible that a subsequent Minister of Justice, who is not of the same opinion
as his ex-colleague, may accept to present the bill to the House of Commons
without a report.
[224]
Ultimately, the Minister of Justice’s
resignation may be a persuasive tool at the Cabinet Table; but in practice, the
threat of resignation would most likely minimally foster public debate, as the
causes of the Minister’s possible resignation would not be communicable to the
public. Political debate may occur if the Executive wishes to publicize the
disagreement and to discuss the issue without relying on specific protected
Cabinet information. Politics may permit limited debate, but not to the extent
of a full-fledged, public, informative debate on guaranteed rights.
c) Role of the Minister of Justice
[225] Each Minister of the Crown, depending on the priorities established
by Cabinet, will normally have legislative work to assume. This work will
involve the Minister of Justice and the Department of Justice in their role of
examining draft legislation in light of our guaranteed rights.
[226] Pursuant to section 4 of the Department of Justice Act, the
Minister of Justice wears many hats: she is the official legal advisor of the
government on the administration of public affairs in accordance with the law,
the superintendent of all matters dealing with the administration of justice
within Canada to the exclusion of provincial responsibilities on such matters,
and the legislative advisor for government bills.
[227] When assuming that legislative role, the Minister of Justice and her
department will examine any bills originating from a Minister of the Crown.
This examination is performed before a bill is introduced in the House of
Commons but it may also be performed afterwards, notably in the case of amendments.
[228]
The following section will repeat some of the
facts described in the first section of this decision, notably on the structure
of the Department of Justice and the steps a bill undergoes before becoming
law. It is also based on the evidence filed by the parties detailing the
processes followed within government. Properly understanding the roles and
responsibilities of each gear in the machine is an important key to fully
grasping how the examination provisions are actualized. The repetition is worth
the cognitive effort. Contrary to the first section, which aimed to be
descriptive, this section will analyze whether the internal verification system
of government functionally deters inconsistent legislation from being presented
to the House of Commons. In short, is the system of examination such that
inconsistencies are truly and systematically mitigated or eliminated as the
Defendant argues?
Part (2) -- Process before
a Bill is introduced in the House of Commons
[229]
Before a bill is introduced in the House of
Commons, it will have been the subject of numerous discussions, of the result
of policy development and policy options, and also of the legislative drafting
process. Department of Justice lawyers, in these early stages, are involved in
all facets of these processes by actively participating and exchanging
information. They discuss the policy options available and continually advise
the client of their ongoing concerns, all the while helping the client attain
its policy objectives and while operating within their constitutional
boundaries.
[230]
In order to ultimately introduce a proper bill
into Parliament, lawyers working in the previously discussed branches within
the Department of Justice will be involved: the Legal Services Unit, the Legislative
Services Branch and the Human Rights Law Section (see I. Introduction).
The respective involvement of these bodies of expertise will provide guidance
over the course of the policy development and legislative drafting processes.
This guidance, along with suggestions to government officials, trigger changes
in policies and address any potential legal issues that may impact
constitutional requirements, protected rights, or any other legal requirements.
Similarly, draft legislation will be discussed and amended through the same
process of back and forth between branches and with the client. The wording of
the proposed legislation will be analyzed, discussed, tweaked and amended in
order to minimize, if not neutralize any possible legal issues.
i.
The Legal Services Unit
[231]
The evidence, as presented, shows that the Legal
Services Unit counsel’s involvement typically begins at the very embryonic
stages of the policy proposal made by a client. Early on, the Legal Services
Unit counsel will contribute to identifying any Charter or other legal
issues and provide legal advice as to how best to solve them.
ii.
The Human Rights Law Section
[232]
The Human Rights Law Section is the centre of
expertise on human rights touched by the Charter, the Bill of Rights,
the Canadian Human Rights Act, RSC 1985, c H-6, as well
as Canada’s international human rights obligations. Throughout both the policy
development process and legislative drafting, Human Rights Law Section counsel
will provide expert advice on any risk of inconsistency with guaranteed rights
identified by the Legal Services Unit or Legal Services Branch lawyers.
iii.
The Legal Services Branch
[233]
Legal Services Branch counsel will be involved
not only with pure legislative drafting but also with the legislative proposal
development process. Legal Services Branch counsel will continually adapt the
drafting of the bill to the evolving discussions and the legal advice provided.
They will also keep a watchful eye for consistency with guaranteed rights in
collaboration with counsel of the Human Rights Law Section and of the Legal
Services Unit.
[234]
Before the bill is forwarded to the Leader of
the Government in the House of Commons, the legislative drafting is finalized
and lawyers from the Legal Services Branch will examine the bill for any
inconsistencies. As explored in an earlier section, the final examination of
government bills, known as “certification”,
is performed by the Chief Legislative Counsel, in consultation with counsel
from the Human Rights Law Section. From the beginning of the policy development
process, the projected bill is routinely examined at its earliest stages in
order to ensure that the bill does not contain inconsistencies. If an
inconsistency is identified, it will be brought to the attention of the concerned
parties and either corrected or determined to fit within the scheme of the “credible argument”
standard.
[235]
The result of the consultative process between
branches and between the Department of Justice and the client is the production
of a Memorandum to Cabinet. As briefly explained in previous sections, the
Memorandum to Cabinet is a document that is presented to Cabinet to obtain its
approval in order to move the project forward. A Memorandum to Cabinet can
contain, among other things, the policy being addressed, the arguments in
favour and against, the legal issues created by the policy and how they are
addressed, the legal issues the policy aims to solve, the monetary requirements
to put the policy in practice, and a copy of the legislative proposal. The
Prime Minister and his Ministers will discuss the Memorandum to Cabinet and
determine whether amendments or further discussions are necessary. Following
this process, the Memorandum is either approved or not. If approved, the project
returns to the Department of Justice and to the client for more internal
discussions and internal drafting finalization. Once those steps are completed,
the bill is ready to be forwarded to the Leader of the Government in the House
of Commons, who will ultimately verify that the draft bill meets Cabinet’s
expectation. If the draft bill is satisfactory, he or she will table the bill
into Parliament.
d) Leader
of the Government in the House of Commons
[236] The responsibility of the Leader of the Government in the House of
Commons is to review the draft bill in order to ensure that it meets Cabinet’s
mandate. Subsequently, subject to Cabinet’s approval or directives, the Leader
of the Government will table the bill for first reading.
e) The Minister of Justice’s Examination and Reporting Duty
[237]
Once the bill is tabled in the House of Commons,
the Minister of Justice’s personal obligation to ascertain whether the bill is
consistent with guaranteed rights is triggered. If indeed the Minister finds an
inconsistency, she must report the inconsistency to the House of Commons “at the first convenient
opportunity”.
f) A Similar Process Is Followed for Regulations
[238]
For the sake of thoroughness, in the case of
draft regulations, a comparable duty to that of the Minister of Justice to examine
and report inconsistencies is imposed on the Clerk of the Privy Council. The
Clerk of the Privy Council will ascertain whether or not the regulations
contain an inconsistency. If the Clerk does indeed find an inconsistency, the
Clerk, in consultation with the Deputy Minister of Justice, will report the
inconsistency to the regulation-making authority.
Part (3) -- Conclusions on
Process
a)
How Lawyers within the Department of Justice
Assume the Examination Responsibility
[239]
In light of the plain meaning to be given to
section 4 of the Department of Justice Act, it is now appropriate to
look at how the lawyers within the Department of Justice assume this delegated
responsibility on behalf of the Minister. To understand and decide on this
question, I have read the affidavits and cross-examinations of: Principal
Analyst with the Parliamentary Information and Research Service of the Library
of Parliament of Canada John Stilborn; former employee in the Human Rights Law
Section of the Department of Justice of Canada Martin Low; Former Chief
Legislative Counsel and Assistant Deputy Minister of the Department of
Justice’s Legislative Services Branch John Mark Keyes; and Deputy Minister of
Justice William Pentney. I have also reviewed the five documents the parties have
identified as sufficient to set out the standard used. These documents contain
important redactions in order to protect solicitor-client privilege, as
detailed below by the amount of pages available to the Court compared to the
total pages of the documents. The Statement of Agreed Facts filed by the
parties contains the five following documents:
1. Statutory Examination Responsibilities and Legal Risk Management in
Drafting Services, 9 March 2006; 16 out of 28 pages (Appendix 1).
2. Legal Risk Management in the Public Law Sector, 26 November 2007, 5
out of 12 pages (Appendix 2).
3. Effective Communication of Legal Risk, 15 December 2006, 6 out of 14
pages (Appendix 3).
4. In Our Opinion, April 2012, 14 out of 55 pages (Appendix 4).
- Charter
Certification Process, 3 out of 3 pages (Appendix 5).
[240]
Based on the evidence presented to the Court, I
confirm that the Department of Justice’s policy approach in regards to
inconsistencies with guaranteed rights is that an inconsistency only exists
when there is no reasonable argument that can be made, in good faith, in favour
of consistency. As we will see in the following paragraphs, this approach, in
its final terminology, became known as the “credible argument” standard. To
understand how the Department arrived at this credible argument standard, a bit
of history is required.
b)
History of the Credible Argument Standard
[241] First, in light of the Charter coming into force, the Human
Rights Law Section was established in 1982. The Human Rights Law Section was
meant to be a centre of expertise dealing with all human rights issues. It was
also tasked to advise the Minister of Justice on how to perform her examination
obligations.
[242] After debating which standard the examination provisions mandated,
the Human Rights Law Section concluded that the “no reasonable argument” standard, the
precursor of the current “credible
argument” standard, properly reflected the obligations. The Human
Rights Law Section came to this conclusion after having reviewed the following
factors: (1) the text of the examination provisions; (2) the consultative
process inherent in legislative drafting; (3) the implications of the Minister
reporting an inconsistency with guaranteed rights; and (4) the need for a
qualitative approach that accounted for an examination that could not be
conducted with precision or certainty.
[243] This “no
reasonable argument” standard was followed between 1982 and 1991
and the impact of the above factors was continuously reviewed. Notably, the
last factor enumerated, which required a qualitative approach, accounted for
the uncertainty created by the reality that Charter jurisprudence did
not exist yet. Over the years, Charter judgments slowly trickled in and
required continuous adaptation to the principles established.
[244] Second, in 1993, the Department of Justice reviewed the standard
applied and the processes by which it operated. This consultation involved all
Senior Committees of the Department of Justice. This review looked at different
options for the standard. Alternatives such as the “more likely than not inconsistent with guaranteed
rights” standard were considered. But, at the end of this
process, it was determined that the most appropriate standard to apply remained
the “no reasonable
argument standard”. At the outset of the review process, the “no reasonable argument”
standard was renamed the “credible
argument” standard. Substantively, the two standards remain the
same.
[245] Since the creation of the Human Rights Law Section in the 1980s, the
threshold to trigger a report was reached only when no credible argument could
be advanced in support of the consistency with guaranteed rights of the
proposed legislation. Conversely, for the examination obligations to be
respected, there must have existed an argument that was reasonable, bona
fide, and capable of being raised before and accepted by the Courts. This
standard is still used today.
[246] In other words, for the standard to be met, meaning the obligation
to report is not triggered, there must exist an argument in favour of not
breaching guaranteed rights. This argument in favour of guaranteed rights
requires substantial, but not absolute, certainty that an inconsistency does
not exist. If a credible argument can be advanced, the examination obligations
will be met and thus no report will be made. Accordingly, if a credible
argument that meets the above criteria is brought forward, there cannot be
certainty that the legislation is inconsistent with the Charter and the Bill
of Rights.
[247]
Third, this approach was reviewed in 2003 and
updated again in 2005, 2006, and 2008. As of today, it is still the standard
applied for the examination process and the reporting obligation.
c) The Effect of Applying This Standard
[248] In essence, the standard, as applied, assesses provisions of a draft
bill and identifies any potential inconsistency with guaranteed rights.
Furthermore, any argument of a serious nature based on jurisprudence that would
render the provision consistent is considered, as is any argument that would
justify an inconsistency pursuant to section 1 of the Charter. Thus, we
can say that a credible argument is an argument of a quality such that the
Courts could potentially justify the inconsistency pursuant to section 1 of the
Charter.
d)
Statistics on the Supreme Court of Canada
Jurisprudence
[249] The Defendant has filed statistics looking back at jurisprudence of
the Supreme Court of Canada from 2006 until 2015 regarding the application of
the credible argument standard.
[250] The Defendant contends that the statistics show the credible
argument standard functions properly because the results of the study
demonstrate that in the majority of cases, a credible argument in favour of
consistency was seriously considered by the Court, whether that be in a dissent
or in the majority’s analysis. The study also shows that sometimes, even though
the Supreme Court may have been unanimous when ruling on consistency with
guaranteed rights against the Defendant, lower Courts either retained or
seriously considered the Defendant’s credible argument. The Defendant submits
that the credible argument standard is thus properly actualized in practice
because the courts validate the fact that the Department of Justice was correct
when determining that the proposed legislation was not obviously inconsistent
when the legislation was examined prior to its enactment.
[251] Here are some conclusions I can glean from the statistics submitted:
out of 34 cases involving a Charter challenge to federal legislation,
65% (22 cases) passed the Charter compliance test, while 35% (12 cases)
did not. Among the 12 cases that did not pass Charter compliance at the
Supreme Court, 4 of them contained dissident Charter opinions. Again,
out of the 12 cases, 25% (4 cases) had either a favourable lower court decision
or dissent at appeal. The tabulation of these 34 cases appears as “Annex 2”.
[252]
These results show that over the last fifteen
years, the credible argument standard has been meaningfully applied in
jurisprudence. In the majority of cases where federal legislation was
challenged on Charter grounds there were credible arguments in support
of the legislation regardless of how those arguments were ultimately treated by
the Supreme Court. What matters is that the arguments were taken seriously by
the courts and not simply dismissed as frivolous; in other words, they were
credible.
Part (4) -- Conclusions
on the Role of the Executive
[253] Before moving on to the role of Parliament, it can be said that the
interpretation given to the plain meaning of the sections at play is reflected
in the “credible
argument” standard. A Minister of Justice who is asked to
ascertain whether a provision of draft legislation is inconsistent with
guaranteed rights cannot do so if she finds that a reasonable, bona fide
argument could justify the inconsistency. As I have determined earlier,
following a searching review, to “ascertain” calls for certainty to be
reached in regards to the existence of an inconsistency. The fact that an
argument of a substantial nature can be made prevents certainty from ever being
reached.
[254] To rely on percentages of success is neither a reliable indicator of
the quality of analysis performed nor is it reflective of the nature of the
type of assessment required by the examination provisions; it is not akin to
gambling probabilities. Rather, to “ascertain” requires a substantial
assessment that can only properly be executed if, in light of the facts at
issue, an argument is realistic, sound, serious, and made in good faith.
[255] As we all know, the legal and judicial worlds evolve. Jurisprudence
from previous decades may need to be adapted to new situations of fact and to
evolving legal principles. Jurisprudence must also evolve in light of changing
societal values and contexts, as reflected by the content of section 1 of
the Charter. Therefore, legal arguments of years passed, which did not
get proper recognition the first time around, could very well be accepted in
future cases. Judicial dissents in one case can become the majority opinion in
analogous cases years later. In such a situation, the “credible
argument” standard finds its full meaning, impact and recognition.
[256] In addition, the examination process, from its inception until its
final stages, has its own benefits and usefulness. Notably, as both the policy
discussions within the Department of Justice and those with the client evolve,
potential inconsistencies with guaranteed rights can be identified, addressed
and potentially neutralized. This process can be understood from the outside
looking in, even if the observer does not benefit from an internal vantage
point into the affairs protected by various privileges. From the outside
observer’s perspective, the evidence presented does indeed show that this
process occurs and, in practice, achieves its objectives.
[257] Furthermore, at the stage of Cabinet involvement, which involves the
Minister of Justice and his colleagues, the system again provides for
discussions among Ministers in regards to any inconsistency that may exist if a
policy is enacted. Surely, it is not an objective of Cabinet to promote
legislation that may be found inconsistent with guaranteed rights. Therefore,
it can be expected that Cabinet will try to prevent such an inconsistency from
materializing, all the while considering its policy objectives and the extent
upon which it intends to rely on section 1 of the Charter if the legislation
is challenged. It may also consider the political decision rely on the
notwithstanding clause (section 33). As of today, no federal executive has
resorted to the notwithstanding clause. A resignation of the Minister of
Justice under cloudy reasons is not what a Prime Minister wants. Yet, even if
the Minister of Justice resigns, there is no guarantee that public debate will
follow.
[258] In any case, regardless of whether we know what transpires at the
Cabinet table or not, we can presume that discussions pertaining to guaranteed
rights and inconsistencies will occur between the Minister of Justice and the
other Ministers. Ministers will do their utmost to prevent inconsistencies and
to prevent unnecessary conflicts with the Minister of Justice. This shows
another layer of preventive control in regards to inconsistencies.
[259] Finally, at the last step of Executive involvement, once Cabinet has
approved the Memorandum to Cabinet, the legislative drafting functions of the
Department of Justice will be in motion in order to finalize the bill. Once
again, within the Department of Justice, an in-house legislative review
involving the drafters is performed. If necessary, the expertise of the Human
Rights Law Section and of the Legal Services Unit may also be tapped. If any
inconsistency remains at this stage, it can once again be dealt with, if not
neutralized. The process consists of many cycles of revision and many stages of
back and forth between all the parties involved.
[260] At the end of the process, if an inconsistency unjustified by a
credible argument remains, the Minister of Justice (for bills) and the Clerk of
the Privy Council in collaboration with the Deputy Minister of Justice (for
regulations) will need to seriously consider their reporting obligations to the
House of Commons or to the regulation-making authority. But, as seen earlier,
the reporting obligation has never been triggered in regards to a government
bill and the probabilities of such a scenario occurring are very low due to the
extent of the examination process and to the application of the “credible argument”
standard.
[261] Governments, for political reasons, do not want to be seen as
actively promoting breaches to guaranteed rights. It is possible that in order
to avoid being forced into using the section 33 notwithstanding clause of
the Charter, which indubitably carries political consequences,
governments will naturally try to promote bills that are not breaching
guaranteed rights. Indeed, both section 1 and section 33 of the Charter
function within the wider constitutional context of the examination provisions:
they are formal legal tools but also incidentally promote the enactment of
quality legislation.
[262] As a side comment, it is important to note that under present
political trends, a ministerial report to the House of Commons is unlikely and
perhaps unrealistic. Why would a government declare openly, through a report
from the Minister of Justice addressed to the House of Commons, that the bill
it is introducing violates the Charter or the Bill of Rights? Why
would the government expose itself to criticism of the opposition and the
public in such a way? Such a disclosure would also likely provide ample
ammunition to anybody challenging the future law in court. The result of the
following debates would most likely force the government to disclose how it
intends to defend itself from such a challenge pre-emptively. A government,
faced with such a difficult situation, might as well resort to the
notwithstanding clause of the Charter. The theory supporting the
reporting obligation is sound, but the political reality of its actualization
is complex and must be understood in a realistic context. It can be expected
that a government will do everything that is realistically possible to avoid
such a situation where a report is necessary. The government will aim to
correct and to minimize any blatant inconsistency before the obligation to
report is triggered. The examination process, as it is set up, is such that
prior to the reporting obligation step, any problematic issue relating to
guaranteed rights will have been addressed. Relying on the evidence, notably
the affidavit and testimony of Deputy Minister of Justice William Pentney, I
find that the overall process aims to address the potential breaches to guaranteed
rights in a way such that potential breaches to guaranteed rights have been
acted upon by the end of the process. At the outset of the process of checks
and balances, all that may remain is a good, sound argument to show that
sensitive provisions at play are legal and will be interpreted within the
parameters of section 1 of the Charter.
[263] Afterwards, if all goes smoothly, the bill will be sent to the
Leader of the Government in the House of Commons for approval and to be tabled.
[264] All in all, the detailed and multi-pronged process surrounding the
responsibilities of the Executive in regards to the actualization of the
examination provisions clearly shows that the colouring to be given to the
applicable standard is heavily influenced by the political and legal contexts
in which the “credible
argument” standard has been forged. As described above, the
structure of the Executive, the process by which a policy is development into
legislation, the history and evolution of the examination standard within the
Department of Justice, and the realities of politics all weigh heavily towards
an interpretation of the examination provisions that favours the “credible argument”
standard over the “more
likely than not inconsistent” standard.
[265]
However, I am not done exploring the colouring
brought to the examination provisions: I have explored the Executive’s
contribution to the “credible
argument” standard, but the influence on the wider context of the
remaining branch of government remains to be fleshed-out. In the next section,
I will focus on the role of Parliament.
D.
Section 3 – Parliament’s Role
[266] The Legislative Branch, also known as Parliament, is where elected
persons, known as Members of Parliament, gather in the House of Commons, and
participate with appointed senators in the Senate, to discuss bills and
potentially approve them by vote. Bills initiated by the Executive are known as
government bills, and bills originating from a private member of the House or
of the Senate are known respectively either as a Private Member’s Bill or as a
Senate Public Bill. Private Members’ Bills or Senate Public Bills may only be
introduced by a person who is not a member of Cabinet.
[267] Parliament is the final institution that studies bills from the
government before they are enacted into laws. Once under the responsibility of
Parliament, bills undergo a detailed process of review in both chambers, the
House of Commons and the Senate, until a final version of the bill is approved
by democratic vote and is put before the Governor General, the Head of State
(representing the Queen), to be signed into law. As such, Parliament plays a
crucial examination role in identifying inconsistencies with guaranteed rights.
[268]
In the next few paragraphs, I will further
colour the context of the examination provisions by exploring the various
stages of review a bill undergoes in Parliament; by examining the impact of a
former Minister of Justice’s bill that aimed to change the examination
provisions by legislative means; and by ascertaining Parliament’s responsibilities
when it examines draft legislation.
Part (1) -- Parliamentary
Process
[269] It is Parliament’s duty to keep the Executive accountable for its
legislative work. After a bill is tabled by the Executive, before it becomes
law, it must survive the scrutiny of Parliament. There are three main steps to
the scrutiny of Parliament, known as readings. In order for a bill to reach the
next reading, the chamber must vote in the bill’s favour. Only when a bill is
voted in its final form, at third reading, by both the House of Commons and the
Senate, can it be presented to the Governor General to be signed into law.
[270] The first reading happens after the bill is tabled in the House of
Commons by the Leader of the Government in the House of Commons. At first
reading, a bill will be introduced to the chamber and debated. At the second
reading, a Committee of the House scrutinizes the provisions of the bill clause
by clause. The Committee may also hear the Minister responsible for the bill or
the Minister of Justice. It may also invite witnesses such as lawyers, experts,
professors and any party it deems pertinent to comment on the bill. The
Committee may also rely on outside expert advice, on clerks, on parliamentary
counsel, and on the research capabilities of the Library of Parliament. The
equivalent process and research capacities also exist in the Senate. Throughout
this examination process by Parliament, amendments may be debated and submitted
for approval.
[271]
Before a bill passes the third and final
reading, Parliament will have had many opportunities to identify and fix any
inconsistencies. Obviously, the examination process in Parliament is subject to
the whims of politics, whether through party policy or government directives to
its own members. Parliament strives to enact laws that will not be found in
breach of guaranteed rights. But it is important to note that Parliament, like
the Executive, also does not impose on itself the obligation to pass
legislation that is guaranteed to be fully Charter compliant.
Part (2) -- Member of
Parliament Irwin Cotler’s Bill C-537
[272]
In 2013, during the 41st Parliament,
a Member of Parliament, the Honourable Irwin Cotler, a former Minister of
Justice, introduced in the House of Commons his Private Member’s
Bill C-537. This bill aimed to legislatively lower the reporting threshold
of the Minister of Justice after examining government bills for inconsistencies
with guaranteed rights. It proposed to amend the examination provisions in
order that:
1. Every bill would be examined by the Law Clerk and Parliamentary
Counsel of the House in which it is introduced with the assistance of the
Library of Parliament;
2. The purpose of the examination would be “to determine whether any of the provisions of the
Bill is likely to be inconsistent” with guaranteed rights or the
Constitution;
- A provision of a
bill would likely be inconsistent with guaranteed rights where the
responsible Law Clerk and Parliamentary counsel would form the opinion “that, if that provision
were to be challenged in Court, it would, on the balance of probabilities,
be found to infringe, limit or violate those rights”.
(Canada, Bill C-537, Constitution Compliance Review Act, 2nd
Sess, 41st Parl, 2013, cl 3, 5).
[273]
Interestingly, this bill died at first reading
and was not discussed further. The significance of this new standard proposed
by Mr. Cotler is that it is much more in line with the “more likely than not inconsistent”
standard promoted by the Plaintiff. This new standard would also bolster the
role of the Law Clerk and of Parliamentary counsel by mandating them to give
legal opinions to Parliament on the probabilities of a bill to impact
negatively on guaranteed rights.
Part (3) -- Parliament’s Role
in Examining Draft Legislation
[274] Parliament has an important role to play in examining draft legislation
for inconsistencies with guaranteed rights. It also has a duty to determine
whether the proposed legislation fits within parameters dictated by the
Constitution.
[275]
And herein lies a key aspect of this case: to
each its own responsibilities. Parliament is expected to assume its obligations
to examine bills and debate issues that may affect guaranteed rights.
Parliament must not place its duties on the shoulders of the other branches,
notably on those of the Minister of Justice.
[276]
The Minister of Justice is not Atlas, carrying
the world of guaranteed rights on her shoulders. As described above, the
Minister of Justice has statutory obligations to examine draft legislation and
to report to Parliament if she ascertains that an inconsistency with guaranteed
rights exists at the end of the Executive’s role in shaping draft legislation.
The Minister of Justice assumes these responsibilities as a member of the
Executive and as the legal advisor to Cabinet. It is true that the Minister of
Justice reports an inconsistency to Parliament, but this duty does not make her
a legal advisor to the House of Commons; others assume this role. Her loyalties
remain to the Executive. Parliament has many other means by which it can
acquire more than sufficient legal advice; it simply must make the effort to do
so.
Part (4) -- Conclusions
on Colouring in Regards to Parliament’s Role
[277] To each his own obligation: the Executive governs and introduces
bills to Parliament; Parliament examines and debates government bills and, if
they are acceptable to Parliament, enacts them into law; the Judiciary,
following litigation or a reference, determines whether or not legislation is
compliant with guaranteed rights. Each branch of our democratic system is
responsible for its respective role and should not count on the others to
assume its responsibilities.
[278]
As Deputy Minister of Justice Pentney said in
his affidavit at paragraph 84 and during his testimony before the Court:
“The examination standard must therefore reflect the
role of Parliament in our constitution. Elected governments shape policy and
introduce legislation as they think best, while remaining mindful of the outer
boundaries set by the Constitution and by guaranteed rights. Parliament
debates and enacts legislation, including giving consideration to its
consistency with the Constitution and the Bill of Rights; Courts
have the ultimate responsibility to decide whether legislation is
constitutional. The credible argument standard is intended to allow each Branch
of Government to perform its appropriate role in ensuring that guaranteed
rights are respected”.
This system is referred to as “checks and balances”.
The actions of each branch, when they assume their respective roles, create
multiple checks and balances, all of which aim to ensure that our laws are
compliant with the rights guaranteed by the Charter and the Bill of
Rights. As Professor emeritus Peter W. Hogg was referred to saying
previously, the main safeguards of civil liberties in Canada are the democratic
character of Canadian political institutions, the independence of the
judiciary, and a legal tradition of respect for civil liberties. Each component
has a vital role to play in ensuring our laws are properly enacted and respect
our rights.
[279]
Section 3 of the Bill of Rights and
section 4 of the Department of Justice Act must be viewed through
this contextual colouring. The context within which the examination process and
the reporting obligation exist is reflected through the words enouncing these
duties. Words such as “ascertain”,
“whether”,
“there is an
inconsistency” with our “guaranteed rights” point to respect for
the separation of powers and the responsibilities imposed on each branch that
separation entails. Not only does the plain meaning interpretation give full
credence to the “credible
argument” standard, the constitutional and institutional contexts
also fully support it. Guaranteed consistency with rights is not the sole
purview of the Executive and of the Minister of Justice, it is an ideal to be
strived for collectively and attained through the concerted efforts of the
three branches of government working towards a common goal. Such is the way to
ensure our laws are compliant with our guaranteed rights.
IX.
CONCLUSION
A.
Outcome and Closing Remarks
[280]
By relying on the ordinary meaning of the
provisions under study, on the overall legislative intent which supports the
plain meaning approach, and the constitutional and institutional contexts, Prof.
Sullivan’s proposed questions (see above at paragraph 101) in regards to interpretation
can be answered the following way:
Part (1) -- What is the meaning
of the legislative text?
[281] In regards to the plain meaning, the differences between the
statutes creating the duties to examine and report are important: the three
relevant statutes use slightly different words to refer to the same obligations,
leading to confusion but also to answers upon closer inspection. Another
crucial piece of the puzzle is the French versions of these statutes: there are
important, subtle differences of meaning between the French and English
provisions, whether those differences arise in the provisions taken wholly or
in subtle variations of specific words. Ascertaining the shared meaning of the
examination provisions requires me to carefully consider the minute nuances of
the provisions in both official languages. As concluded above, the plain
meaning analysis yields the following results: the statutes which are almost
identical to each other, and the various words used in both French and English establish
that the plain meaning requires the Minister of Justice to “ascertain”
whether an inconsistency is present or not. The words “vérifier”, “rechercher”, “examiner”
and “do not trespass
unduly” all support “ascertain” as the correct plain meaning
of the examination provisions. On the contrary, the use of the word “ensure” is
always tempered by the much weaker French equivalents used.
Part (2) -- What did the
legislator intend? That is, when the text was enacted, what law did the
legislator intend to adopt? What purposes did it hope to achieve? What specific
intentions (if any) did it have regarding facts such as these?
[282]
As the above analysis shows, the legislator
intended for the examination provisions to require the Minister of Justice to “ascertain”
whether or not an inconsistency with guaranteed rights existed. The evidence
shows that the words “ensure”
and “ascertain”
were both thoroughly considered. In the end, “ascertain” was retained as it properly
reflected the amount of responsibility and control the Minister of Justice
ought to be entrusted with given the impact of the examination and reporting
duties on separation of powers and government business. The legislator aimed to
promote consistency with guaranteed rights but did not impose on the Minister
of Justice the onerous and most likely impossible responsibility of
guaranteeing inconsistency-free legislation.
Part (3) -- What are the
consequences of adopting a proposed interpretation? Are they consistent with
the norms that the legislator is presumed to respect?
[283] It is important to remember that the legal question at hand is to
determine if the Minister correctly interprets what is the required standard
from the statutes creating it. The Court’s task today is not to determine if
the Minister of Justice properly assumes these obligations in practice.
[284] Following our analysis of the plain meaning, of the legislator’s
intent, and of the constitutional and institutional contexts, I conclude that
the only possible interpretation to be given to the examination provisions is
that the “credible
argument” standard is correct. The outcome the Plaintiff seeks
cannot be granted by this Court. I simply cannot read into legislation concepts
that the words do not reflect. The “more likely than not inconsistent”
standard, no matter how laudable, is simply not reflected in the examination
provisions placed in context.
[285] The examination provisions, once interpreted, do not call for a
different, stricter mechanism based on the “more likely than not inconsistent”
standard. The present system requires the “credible argument” standard to
correctly reflect the wording of the examination provisions. It is not a system
that aims to give a full guarantee that draft bills and draft regulations are Charter-proof.
Yes, there is no doubt the reporting mechanism is weak, but I cannot read into
it more than the legislation provides for. The examination mechanism, on the
other hand, shows that draft bills and draft regulations are, hypothetically,
reliably checked within the Department of Justice in order to identify and
neutralize potential inconsistencies. Yet, the Minister of Justice is not bound
by the opinion reached by the lawyers of the Legal Services Branch who
performed their analysis regarding consistency with guaranteed rights. It is
not the drafter’s role to fetter the discretion of the Minister when she
personally ascertains whether an inconsistency is present or not.
[286] If the objective of the examination provisions was to guarantee that
laws do not breach guaranteed rights, then the legislation needs to be
reworded. In the meantime, the present legislation remains. The present
examination provisions could notably be improved by making the language between
the statutes and between the French and English versions consistent.
[287] Legislative change is needed if we deem it necessary to reform the
current system. Different countries use different language, different balances
of parliamentary supremacy, and different legal mechanisms to effect different
examination and reporting standards. If there is political will to alter the
balance Canada has opted to strike, it is for the proper political and
legislative processes to achieve. If indeed, the applicable standard warrants
change, the appropriate channel by which to do so is the legislative process. Mr.
Irwin Cotler’s Bill C-537 attempted such a modification. Although his
proposed modifications did not become law, his method illustrates the
appropriate conduit to enact reforms. The means to do so may be different than
those identified by Mr. Cotler, but if changes to the examination and reporting
processes are called for, new legislation will need to be enacted and existing
statutes amended.
[288] If, following the entire process explored above designed to identify
and mitigate inconsistencies, a member of the public opines that a law should
be challenged, both private and public resources exist to facilitate litigation
pursued in the public interest. We must be cognizant that government support
for public interest litigation is a matter of policy. For example, the now
defunct “Court
Challenges Program”, was created in the late 1970s by the
government and aimed to help fund constitutional challenges mounted by the
public. The “Court
Challenges Program” has been abolished as of 2006 but it remains
a policy choice of the government of the day to re-establish such a program.
From the tabulation of cases that made their way to the Supreme Court of Canada
from 2006 to 2015 (see “Annex
2”), I take notice that whether this program exists or not,
constitutional challenges to federal legislation in front of the Courts
continue.
[289]
In Canada, each institution has its own roles
and responsibilities. We must not conflate the duties of each actor with those
of the others. Notably, Parliament should assume its respective responsibility
to review and debate legislation emanating from the Executive with its own
chosen means. If Parliament requires further resources to fulfil its duties, it
should call for them. The reporting duty of the Minister of Justice, as it
stands, cannot and should not replace the scrutiny of Parliament; the “credible argument”
standard reflects this.
B.
Costs
[290] The Defendant is not claiming costs against the Plaintiff and the
Plaintiff has been granted advance costs as per the order of this Court dated
March 11, 2013. As counsel so advised the Court at the last hearing, it seems
there are still unsettled issues in regards to the advance costs. In order to
finalize the advance costs order dated March 11, 2013, counsel for the
Plaintiff has 30 days from the date of this judgment to file submissions.
Counsel for the Defendant will then have 20 days to respond.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1.
This simplified action is dismissed.
2.
The Court declares that the “credible argument” examination standard used by the
Department in its review of legislation under section 3 of the Canadian
Bill of Rights, section 4.1 of the Department of Justice Act,
and section 3 of the Statutory Instruments Act is appropriate and
lawful.
3.
The Court declares that the “more likely than not inconsistent” approach advocated
by the Plaintiff does not reflect section 3 of the Canadian Bill of
Rights, section 4.1 of the Department of Justice Act, and
section 3 of the Statutory Instruments Act.
4.
As to the issue of costs, counsel for the
Plaintiff has 30 days from the date of judgment to file submissions. Counsel
for the Defendant has 20 days to respond.
“Simon Noël”
ANNEX 1 – RELEVANT LEGISLATION
|
Canadian Bill of Rights,
SC 1960, c 44
|
Déclaration canadienne des droits,
SC 1960, c 44
|
|
Duties of Minister of Justice
|
Devoirs du ministre de la Justice
|
|
3.(1) Subject to subsection (2), the Minister of
Justice shall, in accordance with such regulations as may be prescribed by
the Governor in Council, examine every regulation transmitted to the Clerk of
the Privy Council for registration pursuant to the Statutory Instruments
Act and every Bill introduced in or presented to the House of Commons by
a Minister of the Crown, in order to ascertain whether any of the provisions
thereof are inconsistent with the purposes and provisions of this Part and he
shall report any such inconsistency to the House of Commons at the first
convenient opportunity.
|
3.(1) Sous réserve du paragraphe (2), le ministre de
la Justice doit, en conformité de règlements prescrits par le gouverneur en
conseil, examiner tout règlement transmis au greffier du Conseil privé pour
enregistrement, en application de la Loi sur les textes réglementaires,
ainsi que tout projet ou proposition de loi soumis ou présentés à la Chambre
des communes par un ministre fédéral en vue de rechercher si l’une quelconque
de ses dispositions est incompatible avec les fins et dispositions de la
présente Partie, et il doit signaler toute semblable incompatibilité à la
Chambre des communes dès qu’il en a l’occasion.
|
|
Exception
|
Exception
|
|
(2) A regulation need not be examined in accordance
with subsection (1) if prior to being made it was examined as a proposed
regulation in accordance with section 3 of the Statutory Instruments
Act to ensure that it was not inconsistent with the purposes and
provisions of this Part.
|
(2) Il n’est pas nécessaire de procéder à l’examen
prévu par le paragraphe (1) si le projet de règlement a fait l’objet de
l’examen prévu à l’article 3 de la Loi sur les textes réglementaires
et destiné à vérifier sa compatibilité avec les fins et les dispositions de
la présente partie.
|
|
Department of Justice Act, RSC 1985, c
J-2
|
Loi sur le ministère de la Justice, LRC 1985,
c J-2
|
|
Examination of Bills and regulations
|
Examen de projets de loi et de règlements
|
|
4.1(1) Subject to subsection (2), the Minister
shall, in accordance with such regulations as may be prescribed by the
Governor in Council, examine every regulation transmitted to the Clerk of the
Privy Council for registration pursuant to the Statutory Instruments Act
and every Bill introduced in or presented to the House of Commons by a
minister of the Crown, in order to ascertain whether any of the provisions
thereof are inconsistent with the purposes and provisions of the Canadian
Charter of Rights and Freedoms and the Minister shall report any such
inconsistency to the House of Commons at the first convenient opportunity.
|
4.1(1) Sous réserve du paragraphe (2), le ministre
examine, conformément aux règlements pris par le gouverneur en conseil, les règlements
transmis au greffier du Conseil privé pour enregistrement, en application de
la Loi sur les textes réglementaires ainsi que les projets ou
propositions de loi soumis ou présentés à la Chambre des communes par un
ministre fédéral, en vue de vérifier si l’une de leurs dispositions est
incompatible avec les fins et dispositions de la Charte canadienne des droits
et libertés, et fait rapport de toute incompatibilité à la Chambre des
communes dans les meilleurs délais possible.
|
|
Exception
|
Exception
|
|
(2) A regulation need not be examined in accordance
with subsection (1) if prior to being made it was examined as a proposed
regulation in accordance with section 3 of the Statutory Instruments
Act to ensure that it was not inconsistent with the purposes and
provisions of the Canadian Charter of Rights and Freedoms.
|
(2) Il n’est pas nécessaire de procéder à l’examen
prévu par le paragraphe (1) si le projet de règlement a fait l’objet de
l’examen prévu à l’article 3 de la Loi sur les textes réglementaires
et destiné à vérifier sa compatibilité avec les fins et les dispositions de
la Charte canadienne des droits et libertés.
|
|
Statutory Instruments Act, RSC 1985, c
S-22
|
Loi sur les textes réglementaires, LRC 1985,
c S-22
|
|
EXAMINATION OF PROPOSED REGULATIONS
|
EXAMEN DES PROJETS DE RÈGLEMENT
|
|
Proposed regulations sent to Clerk of Privy Council
|
Envoi au Conseil privé
|
|
3.(1) Subject to any regulations made pursuant to
paragraph 20(a), where a regulation-making authority proposes to make a
regulation, it shall cause to be forwarded to the Clerk of the Privy Council
three copies of the proposed regulation in both official languages.
|
3.(1) Sous réserve des règlements d’application de
l’alinéa 20a), l’autorité réglementaire envoie chacun de ses projets de
règlement en trois exemplaires, dans les deux langues officielles, au
greffier du Conseil privé.
|
|
Examination
|
Examen
|
|
(2) On receipt by the Clerk of the Privy Council of
copies of a proposed regulation pursuant to subsection (1), the Clerk of the
Privy Council, in consultation with the Deputy Minister of Justice, shall
examine the proposed regulation to ensure that
|
(2) À la réception du projet de règlement, le
greffier du Conseil privé procède, en consultation avec le sous-ministre de
la Justice, à l’examen des points suivants :
|
|
(a) it is authorized by the statute pursuant to
which it is to be made;
|
a) le règlement est pris dans le cadre du pouvoir
conféré par sa loi habilitante;
|
|
(b) it does not constitute an unusual or unexpected
use of the authority pursuant to which it is to be made;
|
b) il ne constitue pas un usage inhabituel ou
inattendu du pouvoir ainsi conféré;
|
|
(c) it does not trespass unduly on existing rights
and freedoms and is not, in any case, inconsistent with the purposes and
provisions of the Canadian Charter of Rights and Freedoms and the Canadian
Bill of Rights; and
|
c) il n’empiète pas indûment sur les droits et
libertés existants et, en tout état de cause, n’est pas incompatible avec les
fins et les dispositions de la Charte canadienne des droits et libertés et de
la Déclaration canadienne des droits;
|
|
(d) the form and draftsmanship of the proposed
regulation are in accordance with established standards.
|
d) sa présentation et sa rédaction sont conformes
aux normes établies.
|
|
Advise regulation-making authority
|
Avis à l’autorité réglementaire
|
|
(3) When a proposed regulation has been examined as
required by subsection (2), the Clerk of the Privy Council shall advise the
regulation-making authority that the proposed regulation has been so examined
and shall indicate any matter referred to in paragraph (2)(a), (b), (c) or
(d) to which, in the opinion of the Deputy Minister of Justice, based on that
examination, the attention of the regulation-making authority should be
drawn.
|
(3) L’examen achevé, le greffier du Conseil privé en
avise l’autorité réglementaire en lui signalant, parmi les points mentionnés
au paragraphe (2), ceux sur lesquels, selon le sous-ministre de la Justice,
elle devrait porter son attention.
|
ANNEX 2—LIST OF SUPREME COURT JURISPRUDENCE
This annex is
reproduction of the graph submitted by the Defendant as Annex “B” of the
Defendant’s pre-trial memorandum. The footnotes have been inserted within the
graph itself.
Review of SCC
decisions dealing with Charter or Canadian Bill of Rights
challenges from 2006 to 2015
(as of August
2015)
|
#
|
Citation
|
Issue
|
Outcome
|
Violation
(Violation not saved under section 1
of Charter.)
|
SCC dissent
(From majority decision of Charter
violation.)
|
Inconsistent result or dissent in lower
courts
(Where the SCC decided there was a Charter
violation.)
|
|
1.
|
Guindon v Canada, 2015 SCC 41
|
Whether s 163.2
of the Income Tax Act violates s 11 of the Charter.
|
Appeal dismissed.
S 11 of the Charter is not engaged by s 163.2.
|
No
|
No
|
No
|
|
2.
|
R v Smith, 2015 SCC 34
|
Whether certain provisions of the medical marihuana
access regime under the Controlled Drugs and Substances Act and the Marihuana
Medical Access Regulations infringes s 7 of the Charter.
|
Appeal dismissed.
Some of the challenged provisions under the Act
violate s 7 of the Charter.
|
Yes
|
No
|
There was a
dissent at the Court of Appeal (see 2014 BCCA 322)
|
|
3.
|
R v Nur, 2015 SCC 15
|
Whether the
mandatory minimum terms of imprisonment in ss 95(2)(a)(i) and (ii) of
the Criminal Code infringe ss 7 and/or 12 of the Charter.
|
Appeal dismissed.
S 95(2)(a)
violates s 12 of the Charter.
|
Yes
|
Dissent (3)
|
The Ontario Court of Appeal held that s 12 of
the Charter was violated. (see 2013 ONCA 677)
The Ontario
Superior Court held that there was no violation of ss 12 or 15 of the Charter.
It held there was a violation of s 7, but the applicant had no standing.
(see 2011 ONSC 4874)
|
|
4.
|
Canada (Attorney General) v Federation of Law
Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401
|
Whether certain
provisions in the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act and Regulations, which relate to the information lawyers
must keep and obtain about their clients, infringe ss 7 and/or 8 of the Charter.
|
Appeal allowed in part.
Some of the
challenged provisions violate ss 7 and 8 of the Charter.
|
Yes
|
No
|
No
|
|
5.
|
Carter v Canada (Attorney General), 2015 SCC 5,
[2015] 1 S.C.R. 331
|
Whether the Criminal
Code provisions prohibiting physician-assisted death violate ss 7
and/or 15 of the Charter.
|
Appeal allowed.
The challenged provisions violate s 7 of the Charter.
The Court did not
consider s 15 of the Charter.
|
Yes
|
No
|
The British Columbia Court of Appeal held that there
was no Charter violation because the trial judge was bound by Rodriguez
v BC (AG), [1993] 3 S.C.R. 519. There was a dissent. (see 2013 BCCA 435)
The British Columbia Supreme Court held the
prohibition violated s 7 of the Charter. (see 2012 BCSC 886)
|
|
6.
|
Meredith v Canada (Attorney General), 2015 SCC 1,
[2015] 1 S.C.R. 3
|
Whether certain
provisions of the Expenditure Restraint Act infringe s 2(d) of
the Charter.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
7.
|
Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1,
[2015] 1 S.C.R. 3
|
Whether excluding
RCMP members from collective bargaining and imposing a non-unionized labour
relations regimes under the Royal Canadian Mounted Police Regulations
infringes s 2(d) of the Charter.
|
Appeal allowed.
The challenged
provisions violate the Charter.
|
Yes
|
Dissent (1)
|
No
|
|
8.
|
Wakeling v United States of America, 2014 SCC 72,
[2014] 3 S.C.R. 549
|
Whether federal legislation (the Criminal Code
and Privacy Act) authorizing the sharing of lawfully obtained wiretap
information between Canada and foreign law enforcement agencies infringes ss 7
and/or 8 of the Charter.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
9.
|
Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62,
[2014] 3 S.C.R. 176
|
Whether s 3(1)
of the State Immunity Act is inconsistent with s 2(e) of the Bill
of Rights and/or infringe s 7 of the Charter.
|
Appeal dismissed.
S 2(e) of the Bill of Rights is not
engaged in this case. There is no violation of s 7 of the Charter.
|
No
|
No
|
No
|
|
10.
|
R v Conception, 2014 SCC 60, [2014] 3 S.C.R. 33
|
Whether certain
provisions of the treatment order regime under the Criminal Code
infringe s 7 of the Charter.
|
Appeal dismissed.
The challenged provisions do not violate the Charter.
|
No
|
No
|
No
|
|
11
|
Canada (Citizenship and Immigration) v
Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33
|
Whether the
security certificate scheme under the Immigration and Refugee Protection
Act infringes s 7 of the Charter.
|
Appeal allowed in part.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
12.
|
Canada (Attorney General) v Whaling, 2014 SCC 20,
[2014] 1 S.C.R. 392
|
Whether s 10(1)
of the Abolition of Early Parole Act that had the effect of delaying
certain inmates’ eligibility for day parole infringed s 11(h) of the Charter.
|
Appeal dismissed.
S 10(1) of
the Act infringes s 11(h) of the Charter.
|
Yes
|
No
|
No
|
|
13.
|
Canada (Attorney General) v Bedford, 2013 SCC 72,
[2013] 3 S.C.R. 1101
|
Whether certain
provisions of the Criminal Code that criminalized various activities
related to prostitution infringe ss 7 and/or 2(b) of the Charter.
|
Appeal dismissed.
The challenged
provisions violate the Charter.
|
Yes
|
No
|
No
|
|
14.
|
Divito v Canada (Public Safety and
Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157
|
Whether certain
provisions of the International Transfer of Offenders Act that do not
give a Canadian citizen who is sentenced abroad an automatic right to serve a
sentence in Canada infringe s 6(1) of the Charter.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
15.
|
R v Levkovic, 2013 SCC 25,
[2013] 2 S.C.R. 204
|
Whether s 243
of the Criminal Code infringes s 7 of the Charter.
|
Appeal dismissed.
S 243 of the
Code does not infringe s 7 of the Charter.
|
No
|
No
|
No
|
|
16.
|
R v St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187
|
Whether the
statutory presumptions in certain provisions of the Criminal Code
infringe ss 7, 11(c) and/or 11(d) of the Charter.
|
Appeal allowed in part.
The challenged provisions infringe s 11(d) of
the Charter. This infringement is only justified after certain words
in the provisions are severed.
|
Yes
|
Dissenting in
part (2)
|
No
|
|
17.
|
R v Khawaja, 2012 SCC 69,
[2012] 3 S.C.R. 555
|
Whether certain
provisions in the Terrorism section of the Criminal Code infringe ss 2
and/or 7 of the Charter.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
18.
|
Sriskandarajah v United States of America, 2012 SCC 70,
[2012] 3 S.C.R. 609
|
Companion appeal to
R v Khawaja, 2012 SCC 69.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
19.
|
R v Tse, 2012 SCC 16, [2012] 1 S.C.R. 531
|
Whether s 184.4 of the Criminal Code, the
emergency wiretap provision, infringes s 8 of the Charter.
|
Appeal dismissed.
S 184.4 of
the Code violates s 8 of the Charter.
|
Yes
|
No
|
No
|
|
20.
|
Canada (Attorney General) v PHS Community
Services Society, 2011 SCC 44, [2011] 3 S.C.R. 396
|
Whether ss 4(1)
& 5(1) of the Controlled Drugs and Substances Act, which prohibit
possession and trafficking, infringe s 7 of the Charter.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
21.
|
Withler v Canada (Attorney General), 2011 SCC 12,
[2011] 1 S.C.R. 396
|
Whether certain
provisions in the Public Service Superannuation and Canadian Forces
Superannuation Acts related to supplementary death benefits infringe s 15(1)
of the Charter.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
22.
|
R v Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110
|
Whether the s 38
scheme in the Canada Evidence Act infringes s 7 of the Charter.
|
Appeal allowed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
23.
|
Toronto Star Newspapers Ltd. v Canada, 2010 SCC 21,
[2010] 1 S.C.R. 721
|
Whether s 517
of the Criminal Code, which requires a judge to order a publication
ban in certain circumstances, infringes s 2(b) of the Charter.
|
Appeal dismissed.
S 517 of the
Code infringes s 2(b) of the Charter, but the limit is
justified under s 1.
|
No
|
No
|
No
|
|
24.
|
R v J.Z.S., 2010 SCC 1, [2010] 1 S.C.R. 3
|
Whether s 486.2 of the Criminal Code and s 16.1
of the Canada Evidence Act, which relate to the manner in which
children testify, infringe ss 7 and 11 (d) of the Charter.
|
Appeal dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
25.
|
Ermineskin Indian Band and Nation v
Canada, 2009 SCC 9, [2009] 1 S.C.R. 222
|
Whether certain
money management provisions in the Indian Act infringe s 15(1) of
the Charter.
|
Appeals dismissed.
The challenged
provisions do not violate the Charter.
|
No
|
No
|
No
|
|
26.
|
R v D.B., 2008 SCC 6, [2008] 2 S.C.R. 3
|
Whether certain
reverse onus provisions in the Youth Criminal Justice Act infringe s 7
of the Charter.
|
Appeal dismissed.
The challenged provisions violate the Charter.
|
Yes
|
Dissenting in
part (4)
|
No
|
|
27.
|
R v Ferguson, 2008 SCC6, [2008] 1 S.C.R. 96
|
Whether the mandatory minimum sentence of
imprisonment imposed by s 236(a) of the Criminal Code infringes s 12
of the Charter.
|
Appeal dismissed.
The challenged
provision does not violate the Charter.
|
No
|
No
|
No
|
|
28.
|
Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9,
[2007] 1 S.C.R. 350
|
Whether the
certificate of inadmissibility scheme under the Immigration and Refugee
Protection Act infringes ss7, 9, 10, 12 and 15 of the Charter.
|
Appeal allowed.
The challenged
provisions violate s 7, 9, and 10 of the Charter.
|
Yes
|
No
|
The trial judge
and the Court of Appeal held that the challenged provisions did not violate
the Charter. (see 2004 FCA 421, 2003 FC 1419)
|
|
29.
|
Canada (Attorney General) v JTI-MacDonald Corp., 2007 SCC 30,
[2007] 1 S.C.R. 429
|
Whether certain
advertising and promotion provisions of the Tobacco Act and the Tobacco
Products Information Regulations infringe s 2(b) of the Charter.
|
Appeal allowed.
The challenged provisions infringed s 2(b) of
the Charter, but this infringement is justified under s 1.
|
No
|
No
|
No
|
|
30.
|
Canada (Attorney General) v Hislop, 2007 SCC 10,
[2007] 1 S.C.R. 429
|
Whether
provisions of the Canada Pension Plan limiting eligibility for
survivor benefits to same-sex partners of certain deceased contributors
infringe s 15(1) of the Charter.
|
Appeal dismissed.
Some of the
challenged provisions violate the Charter.
|
Yes
|
No
|
No
|
|
31.
|
R v Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527
|
Whether s 329
of the Canada Elections Act, which prohibits the transmission of
election results in one district to another before all polling stations are
closed, infringes s 2(b) of the Charter.
|
Appeal dismissed.
S 329 of the Act infringes s 2(b) of
the Charter, but this infringement is justified under s 1.
|
No
|
No
|
No
|
|
32.
|
United States of America v Ferras; United States of America v Latty, 2006 SCC 33,
[2006] 2 S.C.R. 77
|
Whether the
treaty method under s 32(1)(b) of the Extradition Act infringes s 7
of the Charter.
|
Appeals allowed. S 32(1)(b)
of the Act does not violate the Charter.
|
No
|
No
|
No
|
|
33.
|
United Mexican States v Ortega; United
States of America v Fiessel, 2006 SCC 34, [2006] 2 S.C.R. 120
|
Companion appeal
to United States of America v Ferras; United States of America v
Latty, 2006 SCC 33.
|
Appeals allowed.
S 32(1)(b) of the Act does not violate the Charter.
|
No
|
No
|
No
|
|
34.
|
R v Rodgers, 2006 SCC 15,
[2006] 1 S.C.R. 554
|
Whether s 487.055(1)
of the Criminal Code, which relates to taking DNA samples, infringes s 7,
8 and/or 11 of the Charter.
|
Appeal allowed. S 487.055(1)
of the Code does not violate the Charter.
|
No
|
No
|
No
|
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