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Minister pledges to reveal risks in some legislation
By Cristin Schmitz
June 17 2016 issue

Federal Justice Minister Jody Wilson-Raybould has committed to disclosing the constitutional considerations underpinning at least some government bills — including the recently tabled transgender anti-discrimination bill (C-16).

Her pledge marks a significant departure from Ottawa’s longstanding practice of holding its Charter cards close to its chest — especially on constitutionally questionable legislation — but accords with the Liberals’ election promise to govern transparently and accountably.

The move should also offer lawyers, potential litigants, legislators and critics considerably more information to help them gauge the validity of the justice minister’s assurances to Parliament that proposed laws comply with the Charter.

“I think it’s a really important step that they’ve done,” said University of Ottawa law professor Carissima Mathen. “It’s certainly not something I recall ever seeing before and I think it’s very positive.”

She said she hopes the government will disclose its constitutional thinking, as it did on the medically assisted dying bill (C-14), on all “controversial and disputed” legislation it tables.

The NDP’s Justice critic, Victoria lawyer Murray Rankin, told The Lawyers Weekly that the 55-page “legislative background” document the minister tabled in the Commons during second reading debate last February, revealed how “thin” the government’s arguments in support of Bill C-14’s constitutionality really are.

The constitutionality of Bill C-14 has been hotly debated by legal experts, but Wilson-Raybould’s promise to continue revealing the constitutional “risks” and rationale for at least some bills is noteworthy because the Liberals have promised many reforms that could spark constitutional battles — including cannabis legalization and regulation, criminal law and sentencing reforms and overhauling the controversial national security law (Bill C-51) enacted by the predecessor Conservative government.

The former Vancouver prosecutor and senior First Nations leader told MPs her aim is to help Canadians and legislators better understand, and debate, the government’s legislative policy choices.

“As minister [of justice], when introducing government legislation, we have provided, and will continue to provide, an analysis or an explanatory paper of how legislation has been developed — as we have with respect to medical assistance in dying,” Wilson-Raybould told the Commons justice committee while testifying about her department’s activities and spending plans last month.

“What I’ve instructed…and what we are going to continue to do, is ensure that we — as much as possible — provide explanations to Canadians about the thinking and considerations that have gone into legislation, as well as the considerations or risks in terms of the Charter that may or may not exist with respect to a piece of legislation, and to invite parliamentarians…and Canadians into the conversation about public policy decisions, and the reasons why public policy decisions have been made,” she explained. “That’s a commitment we will continue to move forward on, with not only medical assistance in dying, but other legislation that’s going to be introduced in the very near future.”

Department of Justice spokesman Ian McLeod said the government will table a “Statement of Potential Charter Impacts” when Bill C-16 is debated at second reading (which had not yet occurred at press time).

He said it hasn’t been determined which future bills will get similar treatment.

“At this point, the need for an in-depth legislative backgrounder is being considered on a case- by-case basis, depending on the complexity of the bill and constitutional issues it may raise,” he explained by e-mail. As with Bills C-14 and C-16, “the department is also proactively providing more detailed questions and answers, to help Canadians better understand the government`s reasons for the legislation.”

Wilson-Raybould has assured parliamentarians several times that Bill C-14, as introduced in the Commons and in the Senate, is constitutional. Section 4.1 of the Department of Justice Act obliges her to examine government bills presented to the House of Commons and ascertain whether they are inconsistent with the purposes and provisions of the Charter and report any such inconsistency to the House of Commons.

McLeod confirmed that when engaged in such vetting for Charter compliance, DOJ officials continue to apply the same standard they have applied for years. That so-called “credible argument” standard was described as “weak” but “appropriate and lawful” by the Federal Court this year. The standard was also criticized as too low by the Liberals before they formed government last October. 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.

“The long-standing approach of the Department of Justice is that the minister ascertains that there is an inconsistency between a proposed legislative measure and the Charter only where there is no credible argument to support the proposed measure, that is, an argument that is reasonable, bona fide and capable of being raised before, and accepted by, the courts,” McLeod said. “This approach to s. 4.1 was recently upheld by the Federal Court as appropriate in light of the important role that Parliament and courts play, in addition to the role of the executive, in ensuring respect for the rights guaranteed by the Charter.”

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