Inside Politics

UPDATED: Government rejects NDP pitch for study on mandatory Charter check

As noted in OotD, this afternoon the justice committee will debate an NDP proposal to conduct a "thorough study" into this and previous government's compliance with what was, at least until recently, a largely unknown legal obligation: S.4.1(1) of the Department of Justice Act, which requires that the Minister of Justice to review each and every legislative and regulatory initiative put before the House to ensure that no provision thereof is "inconsistent with the purposes and provisions" of the Charter of Rights -- and, should such an inconsistency be identified, table a report identifying it to the Commons "at the first convenient opportunity."

That particular section of the Act has, of course, been in the news lately, thanks to Department of Justice lawyer Edgar Schmidt, who has filed a complaint in federal court that claims neither this, nor previous governments have adhered to that particular law. 

For more background on his case, listen to an interview with Schmidt on As It Happens

Coincidentally, as reported earlier today, Liberal MP Irwin Cotler also appears to have been seized with S.4.1(1)-provoked curiosity, as evinced by his latest written query to the government. 

At the end of a lengthy list of requests for statistics, analysis and other evidence to support its recent bid to tighten up the rules on persons deemed not criminally responsible, the former justice minister asks for more details on that mandatory Charter check: namely, was it performed; if so, by whom; what did it conclude; when was the minister made aware of those conclusions; and, perhaps most intriguingly, was a "report of inconsistency" prepared, and, if so, was it tabled in the House of Commons, as - again - required by law?

As far as I can tell, with regard to the final question on a 'report of inconsistency' having been tabled in the House of Commons, the answer would seem to be a somewhat categorical 'no'. In fact, I'm unable to find any example of any such report ever having been reported back to Parliament -- not from this government nor any of its predecessors, which would seem to bolster Schmidt's case.

A perusal of the parliamentary record reveals that this isn't the first time Cotler has raised the matter of S.4.1(1).

In fact, last November, he grilled Justice Minister Rob Nicholson on that very subject during a committee meeting last year.

The resulting exchange yielded little meaningful information on current practices, but may raise somewhat serious questions as to whether this was the first time that the minister had been made aware of his statutory responsibilities in that area:

Hon. Irwin Cotler: [...] Minister, as you are aware, section 4.1 of the Department of Justice Act stipulates that bills must be checked for compliance with the Canadian Charter of Rights and Freedoms. My question is, by what standard was this bill vetted for charter compliance?

Hon. Rob Nicholson: All bills that are drafted by the Government of Canada are vetted to ensure they comply with the Constitution of this country. That is as it should be.

Hon. Irwin Cotler: No, I understand the requirement, Minister, that is set forth in the Department of Justice Act, but the reason I raise the question of the standard that is used is that a previous witness from the Department of Justice said the standard is one that is--and I quote--"manifestly unconstitutional and could not be defended by credible arguments". Others have said--and I quote--that it's one of "whether or not a credible Charter argument can be made".

I'm asking your opinion because I don't think that you yourself have shared your views on what the appropriate standard would be in this regard.

Hon. Rob Nicholson: Well, the standard is that we comply with all the constitutional documents, be it the charter or the Canadian Bill of Rights. We satisfy ourselves that all legislation is in compliance. I think that has been the procedure of this government and previous governments, and that will continue.

Hon. Irwin Cotler: With respect to the legislation before us, Mr. Minister, has this in fact been checked with regard to compliance with the charter? If so, was a different standard used with regard to this particular piece of legislation regarding judicial compensation?

I'm only seeking to appreciate...because under section 4.1, as you know, there's a requirement for a report of "inconsistency" where one exists. Has there been a report prepared for this bill? If so, when will it be tabled?

Hon. Rob Nicholson: Again, I can't tell you anything more than I've already told you. We comply with the tests that have been laid down.

I've indicated I think on a couple of occasions, to Madame Boivin and Ms. Findlay, that in my opinion this completely meets our constitutional responsibilities as set out in the Judges Act and in the Constitution Act of 1867.

I'm not quite sure exactly where you're driving this, Mr. Cotler, but I believe this is in complete compliance with the Constitution of this country, as I believe all the legislation we have tabled before Parliament is. That's a government responsibility.

Hon. Irwin Cotler: The reason I'm asking, Mr. Minister, is that we have not had any tabling of the opinions that the legislation is constitutional. The Department of Justice Act mandates what I might call a constitutional seal of good housekeeping approval. I'm just saying, will this be tabled with respect to--

Hon. Rob Nicholson: I generally don't table legal opinions or legal advice. As the spokesperson for the government in this area, I've indicated that this bill, as with all the other pieces of legislation we've tabled before Parliament, in my opinion is compliant with both the charter and the Canadian Bill of Rights.

Hon. Irwin Cotler: I still don't understand, though, Minister. If you're not tabling it, what standard is being used?

Hon. Rob Nicholson: Well, the standard as set out in the Constitution of this country.

Hon. Irwin Cotler: Because we have--

Hon. Rob Nicholson: Those who work with me are quite familiar with the British North America Act, now known as the Constitution Act of 1867. They're quite familiar with the Canadian Bill of Rights, as introduced by Mr. Diefenbaker, and with the Canadian charter, and with all other constitutional documents going back to the Magna Carta, for that matter. They're quite familiar with those. This is the advice when we draft legislation.

I'm satisfied that the bills we table before Parliament are completely compliant with the Constitution of this country. I believe this bill is, and I believe the response we have tabled with respect to the quadrennial commission is in line with that approach and that it respects the constitutional responsibilities we have with respect to judicial independence, judicial salaries, and judicial benefits.

Hon. Irwin Cotler: Minister, I'm not going to pursue it any further, other than to say that I'm still not aware of what the standard is that is being invoked with respect to the determination, under the Department of Justice Act, of compliance with the charter. I'll leave it at that, but I would hope that at some future occasion that might be shared with us

In any case, it will be fascinating to see if the Justice committee supports the NDP motion to look into the matter. Stay tuned! 

UPDATE -- Well, that was -- less surprising than expected, really: the Conservative contingent on the Justice committee voted down the NDP motion to review compliance with S.4.1(1). (At least the vote was in public, right?)

The government did, however, table the following document, which lays out how it ensures that no bill or regulation is brought before the case if there is "no credible argument to support the proposed measure," which it defines as "an argument that is reasonable, bona fide and capable of being raised before and accepted by the courts," as, apparently, is the "long-standing approach" of the department. 

Section 4.1 of the Department of Justice Act requires the Minister of Justice to examine government bills presented to the House of Commons and ascertain whether they are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms ("Charter") and report any such inconsistency to the House of Commons. 

Proposed government legislation is reviewed for Charter and other legal risks throughout the policy and legislative development processes.  Relevant risks are brought to the attention of senior officials and Ministers throughout the policy and legislative development processes and every effort is made to mitigate them.

Once a government bill is introduced in the House of Commons, the Chief Legislative Counsel confirms (i.e., certifies) that the requisite review of the legislation for consistency has taken place.  If a Minister of Justice were to conclude that a given government bill was, at the time of introduction, inconsistent with the Charter, a report under section 4.1 would be issued.  The absence of a section 4.1 report means that the Minister had concluded that the government bill was not inconsistent with the Charter.

Section 4.1 sets out the specific obligation of the Minister:  the Minister must ascertain whether there is inconsistency with the Charter.  The long-standing approach of the Department of Justice is that the Minister ascertains that there is an inconsistency between a proposed legislative measure and the Charter only where there is no credible argument to support the proposed measure, that is, an argument that is reasonable, bona fide and capable of being raised before and accepted by the courts.  The Minister exercises this responsibility based on the advice of Departmental officials.

Under our constitutional system, all branches of government - Parliament, the executive and the courts - have responsibility for ensuring that Charter rights are respected, while permitting governments to act in the public interest.  The system of Charter review put in place under section 4.1 ensures that each branch performs its appropriate role: 1) within the executive,  proposed legislative initiatives are reviewed, taking into consideration any Charter risks that have been identified through the advisory process, and there is a certification that the necessary review has taken place upon introduction in the House of Commons; 2) it is for Parliament to debate the proposed law and to determine whether or not it will become law; and 3) finally, if a law is challenged, it is for the courts to review the laws passed by Parliament to determine whether they are constitutionally valid.

The last 30 years of experience with the Charter shows that our system works well, and has produced a robust system of Charter rights review.

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