Date: 20160302Docket: T-2225-12Citation: 2016 FC 269Ottawa, Ontario, March 2, 2016
Federal Court of Canada
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
EDGAR SCHMIDT
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
and
CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervenor
JUDGMENT AND REASONS
Page: 2
TABLE OF CONTENTS
Sections
Paragraph numbers
I. OVERVIEW
1-2
II. INTRODUCTION
3-74
A. Introduction
3-8
B. Roles and Duties
9-14
C. Process
15-39
Step (1) -- Developing a Draft Policy and a Legislative Proposal
16-23
a) Legal Risk Management as a Function of the Legal Services Unit
18-21
b) The Role of the Human Rights Law Section
22
c) Preparing the Memorandum to Cabinet
23
Step (2) -- Drafting the Bill
24
Step (3) -- Certification of the Draft Bill or Draft Regulation
25-31
a) Certification of Bills
28-30
b) Certification of Regulations
31
Step (4) -- The Duty to Report
32-37
a) Duty to Report Regarding Bills
32-36
b) Duty to Report Regarding Regulations
37
Step (5) -- Bill is debated in Parliament and Royal Assent
38
Step (6) -- Optional – Future Amendments
39
D. Arguments
40-74
Part (1)-- Standard of Review
40-43
Part (2) -- Justiciability
44
Page: 3
Sections
Paragraph numbers
Part (3) -- Appropriate Standard Debate and Summary of the Parties Arguments
45-68
a) Plain Meaning
51-54
b) Legislator’s Intent
55-60
c) Constitutional and Institutional Context
61-68
Part (4) -- The Intervener’s Position (Canadian Civil Liberties Association)
69-74
III. HISTORY OF THE PERTINENT STATUTES
75-90
A. Introduction
75-76
B. Section 3 of the Canadian Bill of Rights
77-83
Part (1) Bill C-60, 1958 – First Draft of the Bill of Rights
78
Part (2) Bill C-79, July 1960—Second Draft of the Bill of Rights
79-80
Part (3) Enactment of the Bill of Rights, August 1960
81
Part (4) Amendment to the Canadian Bill of Rights by SC 1970 as a Response to the Official Languages Act
82
Part (5) Bill of Rights Amended in 1985
83
C. Section 4.1 of the Department of Justice Act
84-85
D. Section 3 of the Statutory Instruments Act
86-90
Part (1) First Examination Procedure in the 1950 Regulations Act
86
Part (2) Bill C-182’s Goal to Restore Parliamentary Control over the Executive
87
Part (3) Amendment to the Statutory Instruments Act in 1985 to Ensure Consistency with the Charter
88-90
IV. PRINCIPLES OF STATUTORY INTERPRETATION
91-104
A. Introduction
91-93
Page: 4
Sections
Paragraph numbers
B. Applicable Principles
94-101
Part (1) Driedger’s Modern Interpretation
94
Part (2) Sections 10 and 12 of the Interpretation Act
95-96
Part (3) Context and Colouring of the Statutes
97-98
Part (4) Shared Meaning Rule
99
Part (5) When a Statute is Almost Identical to Another Statute (in pari materia)
100-101
C. Steps for Proceeding to Analysis
102-104
V. ANALYSIS STEP 1 – PLAIN MEANING
105-139
A. Introduction
105-110
B. Sections 3(1) of the Bill of Rights and 4.1(1) of the Department of Justice Act [Bills]
111-124
Part (1) -- What the Minister Must Examine
113-115
Part (2) -- If the Minister Identifies an Inconsistency She Must Report
116
Part (3) -- Observations
117-124
C. Sections 3(2) of the Bill of Rights and 4.1(2) of the Department of Justice Act [Exception for Regulations]
125-127
Part (1) The Meaning of “ensure”
126-127
D. Sections 3(2), 3(2)(c) and 3(3) of the Statutory Instruments Act [Regulations]
128-130
E. Conclusion on the Plain Meaning
131-139
VI. ANALYSIS STEP 2 – THE LEGISLATOR’S INTENT
140-173
A. Introduction
140-141
B. Legislative History
142-160
Page: 5
Sections
Paragraph numbers
Part (1) July 1960 – Minister of Justice Fulton (Bill of Rights)
142-147
Part (2) August 1960 – Minister of Justice Fulton (Bill of Rights)
148-149
Part (3) January 1971 – Minister of Justice Turner (Statutory Instruments Act)
150
Part (4) February 1971 – Minister of Justice Turner (Statutory Instruments Act)
151-153
Part (5) March 1985 – Minister of Justice Crosbie (Amendments brought after the enactment of the Charter)
154
Part (6) April 1985 – Minister of Justice Crosbie (Amendments brought after the enactment of the Charter)
155-157
Part (7) June 1985 – Mr. Low (Application by the Department of Justice)
158-160
C. Conclusions on the Legislator’s Intent
161-173
Part (1) -- Summary
161
Part (2) -- The Examination Duty
162-168
Part (3) -- The Reporting Duty
169-173
VII. ANALYSIS STEP 3 – CONSEQUENCES OF THE PROPOSED INTERPRETATION
174-182
A. Defining What Is the Obligation
174-182
B. What the Obligation Does Not Entail
178-182
VIII. ANALYSIS STEP 4 – CONSTITUTIONAL AND INSTITUTIONAL CONTEXT
183-279
A. Introduction
183-186
B. Section 1 – The Judiciary’s Role
187-218
Part (1) -- General
187-190
Part (2) -- International Comparisons
191-214
Page: 6
Sections
Paragraph numbers
a) Overview
191-193
b) New Zealand
194-200
c) United Kingdom
201-204
d) Australia - Australian Capital Territory [ACT]
205-207
e) Australia – Province of Victoria
208-212
f) Australia – Commonwealth of Australia (Federal Level)
213-214
Part (3) -- Conclusion on the Judiciary’s Role
215-218
C. Section 2 – The Executive’s Role
219-265
Part (1) -- Structure of the Executive
221-228
a) Cabinet
219-220
b) Cabinet Confidences and the Resignation of the Minister of Justice
221-224
c) Role of the Minister of Justice
225-228
Part (2) -- Process before a Bill is Introduced in the House of Commons
229-238
a) Department of Justice
230-233
i. The Legal Services Unit
231
ii. The Human Rights Law Section
232
iii. The Legal Services Branch
233
b) Certification
234
c) Memorandum to Cabinet
235
d) Leader of the Government in the House of Commons
236
e) The Minister of Justice’s Examination and Reporting Duty
237
Page: 7
Sections
Paragraph numbers
f) A Similar Process is followed for Regulations
238
Part (3) -- Conclusions on Process
239-252
a) How Lawyers within the Department of Justice Assume the Examination Responsibility
239-240
b) History of the Credible Argument Standard
241-247
c) The Effect of Applying This Standard
248
d) Statistics on the Supreme Court of Canada Jurisprudence
249-252
Part (4) -- Conclusions on the Role of the Executive
253-265
D. Section 3 – Parliament’s Role
266-279
Part (1) Parliamentary Process
269-271
Part (2) Member of Parliament Irwin Cotler’s Bill C-537
272-273
Part (3) Parliament’s Role in Examining Draft Legislation
274-276
Part (4) Conclusions on Colouring in Regards to Parliament’s Role
277-279
IX. CONCLUSION
280-290
A. Outcome and Closing Remarks
280-289
Part (1) What is the meaning of the legislative text?
281
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
Part (3) What are the consequences of adopting a proposed interpretation? Are they consistent with the norms that the legislator is presumed to respect?
283-289
B. Costs
290
Page: 8
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.
Page: 9
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).
Page: 10
[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
2. 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.
Page: 11
[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:
Page: 12
[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;
Page: 13
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
Page: 14
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
Page: 15
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.
Page: 16
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.
Page: 17
[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
Page: 18
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
Page: 19
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.
Page: 20
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
Page: 21
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
Page: 22
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
Page: 23
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.
Page: 24
[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
Page: 25
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.
Page: 26
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
Page: 27
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.
Page: 28
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.
Page: 29
[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.
Page: 30
a) Plain Meaning
[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
Page: 31
interpretation. The Defendant suggests the Plaintiff is only citing obscure and arcane meanings of “ascertain” while ignoring the more generally accepted definitions.
b) Legislator’s Intent
[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
Page: 32
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.
Page: 33
[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
Page: 34
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
Page: 35
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
Page: 36
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.
Page: 37
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
Page: 38
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.
Page: 39
[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.
Page: 40
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:
Page: 41
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)
Page: 42
- 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.
Page: 43
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
Page: 44
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
Page: 45
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:
Page: 46
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
Page: 47
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).
Page: 48
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;
Page: 49
(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
Page: 50
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.”
Page: 51
(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
Page: 52
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 SCR 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:
Page: 53
“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:
Page: 54
“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:
Page: 55
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
Page: 56
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
Page: 57
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
Page: 58
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”.
Page: 59
[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”.
Part (3) -- Observations
[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.
Page: 60
[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.
Page: 61
[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
Page: 62
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 SCR 1101, 366 DLR (4th) 237, and the Carter case, Carter v Canada (Attorney General), [2015] 1 SCR 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.
Page: 63
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”.
Page: 64
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
Page: 65
“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.
Page: 66
[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,
Page: 67
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.
Page: 68
[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
Page: 69
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
Page: 70
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.
Page: 71
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.
Page: 72
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.
Page: 73
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?
Page: 74
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”.
Page: 75
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.
Page: 76
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.]
Page: 77
[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
Page: 78
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.”
Page: 79
[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.]
Page: 80
[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.
Page: 81
[…] 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.
Page: 82
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
Page: 83
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
Page: 84
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)
Page: 85
[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
Part (1) -- Summary
[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
Page: 86
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
Page: 87
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.
Page: 88
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
Page: 89
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.
Page: 90
[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
Page: 91
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.
Page: 92
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.
Page: 93
[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
Part (1) -- General
[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
Page: 94
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
a) Overview
[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.
Page: 95
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
Page: 96
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”.
b) New Zealand
[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
Page: 97
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
Page: 98
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).
c) United Kingdom
[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
Page: 99
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.
Page: 100
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
Page: 101
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.
Page: 102
[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 SCR 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.
Page: 103
[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.
Page: 104
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
Page: 105
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
a) Cabinet
[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.
Page: 106
[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
Page: 107
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
Page: 108
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
Page: 109
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.
a) Department of Justice
[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,
Page: 110
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.
Page: 111
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.
b) Certification
[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.
c) Memorandum to Cabinet
[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
Page: 112
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
Page: 113
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
Page: 114
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).
5. 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.
Page: 115
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.
Page: 116
[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.
Page: 117
[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
Page: 118
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
Page: 119
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
Page: 120
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.
Page: 121
[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.
Page: 122
[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.
Page: 123
[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
Page: 124
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.
Page: 125
[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
Page: 126
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;
3. 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.
Page: 127
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.
Page: 128
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
Page: 129
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:
Page: 130
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
Page: 131
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
Page: 132
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
Page: 133
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.
Page: 134
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.
Page: 135
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”
Judge
Page: 136
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
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
Page: 137
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.
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;
Page: 138
(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.
Page: 139
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)
Page: 140
#
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.)
4.
Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 141
#
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.)
8.
Wakeling v United States of America, 2014 SCC 72, [2014] 3 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 142
#
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.)
13.
Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 143
#
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.)
18.
Sriskandarajah v United States of America, 2012 SCC 70, [2012] 3 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 144
#
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.)
24.
R v J.Z.S., 2010 SCC 1, [2010] 1 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 145
#
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.)
30.
Canada (Attorney General) v Hislop, 2007 SCC 10, [2007] 1 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Total:
12/34
4/12
4/12
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-2225-15
STYLE OF CAUSE:
EDGAR SCHMIDT v THE ATTORNEY GENERAL OF CANADA AND CANADIAN CIVIL LIBERTIES ASSOCIATION
PLACE OF HEARING:
OTTAWA, ONTARIO
DATE OF HEARING:
SEPTEMBER 21, 22, 23 AND 24, 2015
JUDGMENT AND REASONS:
SIMON J.
DATED:
MARCH 2, 2016
APPEARANCES:
David Yazbeck
FOR THE PLAINTIFF
Alain Préfontaine
Elizabeth Kikuchi
Sarah Sherhols
FOR THE DEFENDANT
Cara Zwibel
FOR THE INTEVENOR
SOLICITORS OF RECORD:
Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.
Barristers & Solicitors
Ottawa, Ontario
FOR THE PLAINTIFF
William F. Pentney
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE DEFENDANT
Canadian Civil Liberties Association
Toronto, Ontario
FOR THE INTEVENOR
BETWEEN:
EDGAR SCHMIDT
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
and
CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervenor
JUDGMENT AND REASONS
Page: 2
TABLE OF CONTENTS
Sections
Paragraph numbers
I. OVERVIEW
1-2
II. INTRODUCTION
3-74
A. Introduction
3-8
B. Roles and Duties
9-14
C. Process
15-39
Step (1) -- Developing a Draft Policy and a Legislative Proposal
16-23
a) Legal Risk Management as a Function of the Legal Services Unit
18-21
b) The Role of the Human Rights Law Section
22
c) Preparing the Memorandum to Cabinet
23
Step (2) -- Drafting the Bill
24
Step (3) -- Certification of the Draft Bill or Draft Regulation
25-31
a) Certification of Bills
28-30
b) Certification of Regulations
31
Step (4) -- The Duty to Report
32-37
a) Duty to Report Regarding Bills
32-36
b) Duty to Report Regarding Regulations
37
Step (5) -- Bill is debated in Parliament and Royal Assent
38
Step (6) -- Optional – Future Amendments
39
D. Arguments
40-74
Part (1)-- Standard of Review
40-43
Part (2) -- Justiciability
44
Page: 3
Sections
Paragraph numbers
Part (3) -- Appropriate Standard Debate and Summary of the Parties Arguments
45-68
a) Plain Meaning
51-54
b) Legislator’s Intent
55-60
c) Constitutional and Institutional Context
61-68
Part (4) -- The Intervener’s Position (Canadian Civil Liberties Association)
69-74
III. HISTORY OF THE PERTINENT STATUTES
75-90
A. Introduction
75-76
B. Section 3 of the Canadian Bill of Rights
77-83
Part (1) Bill C-60, 1958 – First Draft of the Bill of Rights
78
Part (2) Bill C-79, July 1960—Second Draft of the Bill of Rights
79-80
Part (3) Enactment of the Bill of Rights, August 1960
81
Part (4) Amendment to the Canadian Bill of Rights by SC 1970 as a Response to the Official Languages Act
82
Part (5) Bill of Rights Amended in 1985
83
C. Section 4.1 of the Department of Justice Act
84-85
D. Section 3 of the Statutory Instruments Act
86-90
Part (1) First Examination Procedure in the 1950 Regulations Act
86
Part (2) Bill C-182’s Goal to Restore Parliamentary Control over the Executive
87
Part (3) Amendment to the Statutory Instruments Act in 1985 to Ensure Consistency with the Charter
88-90
IV. PRINCIPLES OF STATUTORY INTERPRETATION
91-104
A. Introduction
91-93
Page: 4
Sections
Paragraph numbers
B. Applicable Principles
94-101
Part (1) Driedger’s Modern Interpretation
94
Part (2) Sections 10 and 12 of the Interpretation Act
95-96
Part (3) Context and Colouring of the Statutes
97-98
Part (4) Shared Meaning Rule
99
Part (5) When a Statute is Almost Identical to Another Statute (in pari materia)
100-101
C. Steps for Proceeding to Analysis
102-104
V. ANALYSIS STEP 1 – PLAIN MEANING
105-139
A. Introduction
105-110
B. Sections 3(1) of the Bill of Rights and 4.1(1) of the Department of Justice Act [Bills]
111-124
Part (1) -- What the Minister Must Examine
113-115
Part (2) -- If the Minister Identifies an Inconsistency She Must Report
116
Part (3) -- Observations
117-124
C. Sections 3(2) of the Bill of Rights and 4.1(2) of the Department of Justice Act [Exception for Regulations]
125-127
Part (1) The Meaning of “ensure”
126-127
D. Sections 3(2), 3(2)(c) and 3(3) of the Statutory Instruments Act [Regulations]
128-130
E. Conclusion on the Plain Meaning
131-139
VI. ANALYSIS STEP 2 – THE LEGISLATOR’S INTENT
140-173
A. Introduction
140-141
B. Legislative History
142-160
Page: 5
Sections
Paragraph numbers
Part (1) July 1960 – Minister of Justice Fulton (Bill of Rights)
142-147
Part (2) August 1960 – Minister of Justice Fulton (Bill of Rights)
148-149
Part (3) January 1971 – Minister of Justice Turner (Statutory Instruments Act)
150
Part (4) February 1971 – Minister of Justice Turner (Statutory Instruments Act)
151-153
Part (5) March 1985 – Minister of Justice Crosbie (Amendments brought after the enactment of the Charter)
154
Part (6) April 1985 – Minister of Justice Crosbie (Amendments brought after the enactment of the Charter)
155-157
Part (7) June 1985 – Mr. Low (Application by the Department of Justice)
158-160
C. Conclusions on the Legislator’s Intent
161-173
Part (1) -- Summary
161
Part (2) -- The Examination Duty
162-168
Part (3) -- The Reporting Duty
169-173
VII. ANALYSIS STEP 3 – CONSEQUENCES OF THE PROPOSED INTERPRETATION
174-182
A. Defining What Is the Obligation
174-182
B. What the Obligation Does Not Entail
178-182
VIII. ANALYSIS STEP 4 – CONSTITUTIONAL AND INSTITUTIONAL CONTEXT
183-279
A. Introduction
183-186
B. Section 1 – The Judiciary’s Role
187-218
Part (1) -- General
187-190
Part (2) -- International Comparisons
191-214
Page: 6
Sections
Paragraph numbers
a) Overview
191-193
b) New Zealand
194-200
c) United Kingdom
201-204
d) Australia - Australian Capital Territory [ACT]
205-207
e) Australia – Province of Victoria
208-212
f) Australia – Commonwealth of Australia (Federal Level)
213-214
Part (3) -- Conclusion on the Judiciary’s Role
215-218
C. Section 2 – The Executive’s Role
219-265
Part (1) -- Structure of the Executive
221-228
a) Cabinet
219-220
b) Cabinet Confidences and the Resignation of the Minister of Justice
221-224
c) Role of the Minister of Justice
225-228
Part (2) -- Process before a Bill is Introduced in the House of Commons
229-238
a) Department of Justice
230-233
i. The Legal Services Unit
231
ii. The Human Rights Law Section
232
iii. The Legal Services Branch
233
b) Certification
234
c) Memorandum to Cabinet
235
d) Leader of the Government in the House of Commons
236
e) The Minister of Justice’s Examination and Reporting Duty
237
Page: 7
Sections
Paragraph numbers
f) A Similar Process is followed for Regulations
238
Part (3) -- Conclusions on Process
239-252
a) How Lawyers within the Department of Justice Assume the Examination Responsibility
239-240
b) History of the Credible Argument Standard
241-247
c) The Effect of Applying This Standard
248
d) Statistics on the Supreme Court of Canada Jurisprudence
249-252
Part (4) -- Conclusions on the Role of the Executive
253-265
D. Section 3 – Parliament’s Role
266-279
Part (1) Parliamentary Process
269-271
Part (2) Member of Parliament Irwin Cotler’s Bill C-537
272-273
Part (3) Parliament’s Role in Examining Draft Legislation
274-276
Part (4) Conclusions on Colouring in Regards to Parliament’s Role
277-279
IX. CONCLUSION
280-290
A. Outcome and Closing Remarks
280-289
Part (1) What is the meaning of the legislative text?
281
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
Part (3) What are the consequences of adopting a proposed interpretation? Are they consistent with the norms that the legislator is presumed to respect?
283-289
B. Costs
290
Page: 8
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.
Page: 9
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).
Page: 10
[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
2. 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.
Page: 11
[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:
Page: 12
[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;
Page: 13
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
Page: 14
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
Page: 15
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.
Page: 16
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.
Page: 17
[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
Page: 18
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
Page: 19
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.
Page: 20
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
Page: 21
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
Page: 22
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
Page: 23
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.
Page: 24
[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
Page: 25
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.
Page: 26
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
Page: 27
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.
Page: 28
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.
Page: 29
[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.
Page: 30
a) Plain Meaning
[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
Page: 31
interpretation. The Defendant suggests the Plaintiff is only citing obscure and arcane meanings of “ascertain” while ignoring the more generally accepted definitions.
b) Legislator’s Intent
[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
Page: 32
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.
Page: 33
[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
Page: 34
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
Page: 35
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
Page: 36
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.
Page: 37
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
Page: 38
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.
Page: 39
[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.
Page: 40
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:
Page: 41
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)
Page: 42
- 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.
Page: 43
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
Page: 44
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
Page: 45
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:
Page: 46
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
Page: 47
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).
Page: 48
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;
Page: 49
(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
Page: 50
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.”
Page: 51
(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
Page: 52
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 SCR 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:
Page: 53
“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:
Page: 54
“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:
Page: 55
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
Page: 56
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
Page: 57
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
Page: 58
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”.
Page: 59
[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”.
Part (3) -- Observations
[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.
Page: 60
[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.
Page: 61
[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
Page: 62
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 SCR 1101, 366 DLR (4th) 237, and the Carter case, Carter v Canada (Attorney General), [2015] 1 SCR 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.
Page: 63
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”.
Page: 64
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
Page: 65
“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.
Page: 66
[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,
Page: 67
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.
Page: 68
[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
Page: 69
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
Page: 70
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.
Page: 71
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.
Page: 72
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.
Page: 73
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?
Page: 74
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”.
Page: 75
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.
Page: 76
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.]
Page: 77
[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
Page: 78
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.”
Page: 79
[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.]
Page: 80
[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.
Page: 81
[…] 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.
Page: 82
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
Page: 83
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
Page: 84
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)
Page: 85
[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
Part (1) -- Summary
[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
Page: 86
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
Page: 87
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.
Page: 88
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
Page: 89
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.
Page: 90
[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
Page: 91
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.
Page: 92
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.
Page: 93
[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
Part (1) -- General
[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
Page: 94
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
a) Overview
[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.
Page: 95
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
Page: 96
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”.
b) New Zealand
[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
Page: 97
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
Page: 98
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).
c) United Kingdom
[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
Page: 99
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.
Page: 100
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
Page: 101
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.
Page: 102
[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 SCR 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.
Page: 103
[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.
Page: 104
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
Page: 105
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
a) Cabinet
[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.
Page: 106
[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
Page: 107
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
Page: 108
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
Page: 109
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.
a) Department of Justice
[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,
Page: 110
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.
Page: 111
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.
b) Certification
[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.
c) Memorandum to Cabinet
[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
Page: 112
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
Page: 113
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
Page: 114
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).
5. 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.
Page: 115
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.
Page: 116
[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.
Page: 117
[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
Page: 118
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
Page: 119
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
Page: 120
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.
Page: 121
[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.
Page: 122
[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.
Page: 123
[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
Page: 124
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.
Page: 125
[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
Page: 126
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;
3. 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.
Page: 127
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.
Page: 128
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
Page: 129
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:
Page: 130
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
Page: 131
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
Page: 132
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
Page: 133
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.
Page: 134
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.
Page: 135
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”
Judge
Page: 136
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
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
Page: 137
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.
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;
Page: 138
(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.
Page: 139
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)
Page: 140
#
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.)
4.
Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 141
#
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.)
8.
Wakeling v United States of America, 2014 SCC 72, [2014] 3 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 142
#
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.)
13.
Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 143
#
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.)
18.
Sriskandarajah v United States of America, 2012 SCC 70, [2012] 3 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 144
#
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.)
24.
R v J.Z.S., 2010 SCC 1, [2010] 1 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Page: 145
#
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.)
30.
Canada (Attorney General) v Hislop, 2007 SCC 10, [2007] 1 SCR 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 SCR 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 SCR 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 SCR 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 SCR 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
Total:
12/34
4/12
4/12
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-2225-15
STYLE OF CAUSE:
EDGAR SCHMIDT v THE ATTORNEY GENERAL OF CANADA AND CANADIAN CIVIL LIBERTIES ASSOCIATION
PLACE OF HEARING:
OTTAWA, ONTARIO
DATE OF HEARING:
SEPTEMBER 21, 22, 23 AND 24, 2015
JUDGMENT AND REASONS:
SIMON J.
DATED:
MARCH 2, 2016
APPEARANCES:
David Yazbeck
FOR THE PLAINTIFF
Alain Préfontaine
Elizabeth Kikuchi
Sarah Sherhols
FOR THE DEFENDANT
Cara Zwibel
FOR THE INTEVENOR
SOLICITORS OF RECORD:
Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.
Barristers & Solicitors
Ottawa, Ontario
FOR THE PLAINTIFF
William F. Pentney
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE DEFENDANT
Canadian Civil Liberties Association
Toronto, Ontario
FOR THE INTEVENOR
