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‘Weak’ standard for vetting bills upheld as reflecting intent of law

Judge says there is no guarantee that draft regulations are ‘Charter proof’
By Cristin Schmitz
March 18 2016 issue

‘It would be great if Parliament could adopt the standard’ that his client Edgar Schmidt advocates for evaluating Charter compliance of proposed laws, said lawyer David Yazbeck, seen above in Ottawa. But while acknowledging the current standard is ‘weak’ Federal Court Justice Simon Noel rejected Schmidt’s arguments. [Roy Grogan for The Lawyers Weekly]

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Former Department of Justice lawyer Edgar Schmidt has lost his legal  battle in Federal Court, but the policy debate he ignited goes on in Parliament and the court of public opinion.

Federal Court Justice Simon Noel rejected, as wrong in law, the ex-senior official’s contention that the Department of Justice’s (DOJ) policy and practice in exercising its statutory role to vet proposed legislation for Charter and Bill of Rights conformity set too low a standard.

Schmidt contended the federal government has been behaving illegally for more than two decades by indicating to Parliament that all bills and draft regulations it presents are consistent with the Charter, even when the DOJ may have considered (unbeknownst to MPs) that for some, there is only a slight chance that a court would find the legislation to be constitutionally compliant.

Schmidt, who was responsible for the DOJ’s mandatory first-level vetting of bills and draft regulations for compliance with the Charter, Bill of Rights and Statutory Instruments Act, unsuccessfully asked the Federal Court to declare that the law requires the DOJ and minister of justice to assess intended legislation on the more rigorous standard of whether it complies with legal and constitutional requirements on the balance of probabilities.

But after a painstaking analysis of the plain meaning, legislative intent and the constitutional and institutional contexts, of the DOJ and minister of justice’s legislative examination and reporting obligations under s. 3 of the Canadian Bill of Rights, s. 4.1 of the Department of Justice Act and s. 3 of the Statutory Instruments Act, Justice Noel vindicated as “appropriate and lawful” the DOJ’s lower “credible argument standard” in his March 2 ruling.

“It is not a system that aims to give a full guarantee that draft bills and draft regulations are Charter-proof,” he explained. “Yes, there is no doubt the [justice minister’s] reporting mechanism is weak, but I cannot read into it more than the legislation provides for.”

The DOJ standard means that intended legislation may be deemed to be Charter consistent, and thus not reportable to Parliament as unconstitutional by the minister of justice, if there is any credible argument that can be made in good faith and that is capable of being successfully argued before the courts. The DOJ deems an argument to be “credible,” even if there is a “very high’’ or “almost certain’’ risk (defined as 81-100 per cent) of a successful court challenge, except at the “far end’’ of this range.

At press time Schmidt, and his counsel David Yazbeck of Ottawa’s Raven, Cameron, Ballantyne & Yazbeck LLP, said they were considering whether to appeal Justice Noel’s judgment, which was under reserve for five months.

Schmidt’s disclosure of the DOJ’s standard shocked many in the legal community and prompted campaigns for reform by civil liberties groups. Last month the Commons justice committee also decided to review s. 4.1(1) of the Department of Justice Act, as part of a broader inquiry into access to justice.

“Ideally, whether it’s through judicial means or legislative means, it would be great if Parliament could adopt the standard [for vetting proposed laws for Charter compliance] that Mr. Schmidt has been advocating,” Yazbeck told The Lawyers Weekly outside the Commons. “So that when Parliament actually goes ahead and passes a bill it understands the implications of that action.”

Liberal MP Anthony Housefather, the Montreal lawyer who chairs the Commons committee on justice and human rights, said committee members are open-minded about the optimal standard. But “as Parliamentarians, before you vote on a law, you should know whether or not there is potential for challenge to the law, and I think if you set an extraordinarily low threshold, then it’s more difficult for Parliamentarians as a whole, when they’re voting on a law, to do so with full understanding.”

He noted Parliamentarians can choose to pass a law they think is susceptible to Charter challenge. “But I think…you should have an understanding of what the potential risks are, when you adopt legislation, of the law being struck down by the courts because there are associated costs with defending it, etc.”

The intervener Canadian Civil Liberties Association said it is “disappointed” with the court’s ruling, but is ramping up its CharterFirst Campaign. “The court’s decision highlights the need for reform if we want Parliamentarians to be able to truly and meaningfully assess the constitutional implications of the laws they are passing, and if we want Parliament to be able to hold the government accountable for the laws it introduces,” a CCLA statement says.

“We believe it’s time for our elected representatives and the public to debate this issue and that reform is essential,” CCLA spokesman Jonah Kanter said by e-mail. “As for what that reform will entail, we are in the process of consulting Canada’s foremost constitutional law and political science experts, and plan to publish a policy paper with recommendations” for the minister of justice.

The CCLA argues “critical accountability and transparency gaps in our lawmaking process,” such as inadequate Charter review by the government, allow for the passage of laws without open, adequate and meaningful consideration of their constitutional vulnerabilities; cast an avoidable, costly, and onerous burden on individuals and groups to challenge defective laws in court; and put the Charter rights and freedoms of people at risk.

However Justice Noel concluded, from DOJ-supplied statistics on Charter challenges at the Supreme Court, that “over the last 15 years, the credible argument standard has been meaningfully applied in the jurisprudence.” That is, in the majority of cases the government’s argument in favour of consistency with the Charter was seriously considered by the court —either by the majority or dissenters.

Justice Noel emphasized that in Canada, each institution has its own roles and responsibilities. The duties of each actor should not be conflated with those of the other actors. “Notably, Parliament should assume its respective responsibility to review and debate legislation emanating from the executive with its own chosen means,” he said. “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.”

Schmidt, who was travelling outside the country when the decision was handed down, said by e-mail he believes the judgment fails to read the applicable provisions correctly in their entire context and in light of their purpose.

“There is a fundamental issue at stake in this action that, in my view, has not been adequately addressed in the court’s reasoning,” he said. “How can it be legitimate for temporary officers of the democratic, constitutional Canadian state to propose or take actions that they themselves believe to be almost certainly contrary to the most fundamental decisions and rules of the state of which they are officers, i.e. contrary to the Constitution? Equally, how can it be legitimate for delegates of Parliament (authorized to make regulations) to make regulations that they themselves believe to be almost certainly beyond the authority given (i.e. unauthorized)?”

Schmidt said he understands the judgment to suggest this is OK because of the division of roles in the state among the executive, legislature and judiciary — with the latter correcting the executive’s or legislature’s mistakes. “But I think there is not only a division of roles among branches of the state, but also a fundamental unity in the state. It is my view that all branches of the state tree have a duty to act in ways that they believe are consistent with the state’s most fundamental decisions, i.e. its Constitution. Also, I believe delegates of Parliament have a duty to act in ways they believe are within the authority Parliament has delegated.”

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