The BCCLA has been in court a LOT over the past several years. We’ve launched challenges to the prohibition on physician assisted dying, indefinite solitary confinement and second-class citizenship, and intervened in cases involving drug laws, mandatory minimum sentences, sex work and so much more. Sure, we did advocacy outside the courts and pressed decision-makers to amend or repeal problematic laws too, but it’s been challenging, to say the least. On many occasions, we’ve felt like there’s really no choice but to litigate if Canadians’ Charter rights are to be protected.
And we’ve had great success. The BCCLA and other Canadian human rights organizations have won in the courts, time and time again. In just the past three years, the courts have struck down prohibitions on physician assisted dying, declared restrictions on medical cannabis products arbitrary and unconstitutional, and nullified punitive and unfair mandatory minimum sentences. These victories were achieved thanks to the courage of plaintiffs, the commitment of lawyers, and the mobilization of impacted communities to demand reform. But they were also due to the fact that these laws were blatantly unconstitutional and in conflict with the highest law in the land, the Canadian Charter of Rights and Freedoms. We knew it. The communities affected knew it. And we think the government knew it too. Or at least, they should have.
A CHARTER RESPONSIBILITY
Our elected MPs have a responsibility to ensure that laws are consistent with the Charter, and laws that conflict with the Charter should never be passed. While there is often room for reasoned and spirited discussion about the constitutional implications of new laws, what we’ve seen recently is the stifling of that critical debate. Massive and complex laws like Bill C-51 are rammed through Parliament in a matter of months, while significant changes to criminal sentencing provisions get lumped into omnibus bills and passed without necessary and open debate. This is no way to protect rights, democracy and the rule of law.
Relying on individuals and organizations to challenge the constitutionality of laws after the fact, when the laws are already on the books and much damage has already been done, is unfair and costly, not just to the plaintiffs, but to the public at large. Meanwhile, as court cases drag on, the challenged laws remain in effect, leading to further potential rights violations. Surely it’s in everyone’s interest that the government gets it right the first time, and that only bills that pass constitutional muster get passed into law.
In his mandate letter to the new Minister of Justice, Jody Wilson-Raybould, Prime Minister Trudeau said:
As Minister of Justice and Attorney General of Canada, your overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.
He also named review of the government’s litigation strategy as a top priority for the new Justice Minister, including ending appeals and changing positions that are inconsistent with the Charter.
AN UNDERUSED, LEGAL MECHANISM
The new government has already taken some action to implement these directives, dropping appeals on issues like access to health care and appeals for refugees, and making public commitments to change course on second class citizenship and solitary confinement. But what we haven’t yet heard is how, specifically, the government is going to ensure that its legislation complies with the Charter before it is subjected to the rigours of the court process. This step is critically needed if we are to avoid another decade of costly, time-consuming litigation. Luckily, there is an existing, if underused, legal mechanism to make sure this happens: section 4.1 of the Department of Justice Act.
Section 4.1 of the Department of Justice Act requires that every government bill be reviewed by the Minister of Justice to ascertain “whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms.” The Minister is also required to report any inconsistencies to the House of Commons. However, in the thirty-one years of the requirement’s existence, not a single report has ever been made. That’s right. While decades’ worth of government bills have presumably been scrutinized for constitutional compliance, not one has been found to be inconsistent with the Charter following this process.
VETTING STANDARD SET INCREDIBLY LOW
Turns out, the standard the government applies when it vets these bills is incredibly low. The question the government asks itself isn’t whether it’s “more likely than not” or there’s a “good chance” that the bill is unconstitutional; instead, we understand that the question they ask is whether the provision is “manifestly unconstitutional and could not be defended by credible arguments before a court”.[i] Under this interpretation of the standard, the existence of any argument that has even the slightest possibility of being argued and accepted by a court means that the provision is not “manifestly unconstitutional”. Accordingly, no report to Parliament is made so long as some argument exists, even if the likelihood of a successful legal challenge is almost inevitable.
This has got to change. And one former Department of Justice lawyer is trying to do just that. Edgar Schmidt blew the whistle on this troubling practice, suing his own ministry and alleging that the Department of Justice was acting unlawfully by failing to properly review the constitutionality of draft legislation. He was suspended without pay and told that he could not have access to his office (he has since retired). But despite the consequences he has been undeterred, and his case was heard in Federal Court in September.
Last week we heard the leader of the legal fight for the equality of First Nations children, Cindy Blackstock, ask why it was necessary to file a legal challenge against the government of Canada to get them to treat First Nations children fairly. So too we might ask why it’s necessary for a Department of Justice lawyer to take his own ministry to court for failing to uphold the Charter rights of the people of Canada.
CHARTER RIGHTS MUST BE PRIORITIZED FROM THE OUTSET
The BCCLA welcomes early indications from our new government that suggest we may be on a different path. We’ll be ready to litigate if and when necessary, but remain hopeful that we’ll see a new approach to law-making, where Charter rights are prioritized at the outset and Parliament has the information it needs to ensure that only laws that demonstrably comply with the Charter get passed.
[i] Stanley Cohen, Senior General Counsel with the Department of Justice’s Human Rights Law Section, testifying at the House of Commons Legislative Committee on Bill C-2, 39th Parl, 2nd Sess, No 007 (15 November 2007) at 1030.