When it comes to lawmaking, one would expect the Canadian government and parliamentarians to uphold the Constitution of Canada — and Canadian Charter of Rights and Freedoms therein. But does it always happen in reality?
In its newest report, Charter First: A Blueprint for Prioritizing Rights in Canadian Lawmaking, the Canadian Civil Liberties Association (CCLA) raises concerns about the frequency and ease with which laws with clear constitutional vulnerabilities have been proposed and passed by Parliament — only to be challenged later, and, in some cases, be struck down by the courts for violating the Charter. Key examples include parts of the Safe Streets and Communities Act (Bill C-10), the Protecting Canada’s Immigration System Act (Bill C-31), the Anti-Terrorism Act, 2015 (Bill C-51), the Fair Elections Act (Bill C-23), the Act to amend the Income Tax Act (requirements for labour organizations) (Bill C-377), the Strengthening Canadian Citizenship Act (Bill C-24), and the physician-assisted dying legislation (Bill C-14).
This has forced affected individuals and public interest organizations, such as CCLA, to launch Charter challenges as the only available recourse. How unfortunate given that some of these challenges — which come at a significant cost not only to the applicants but also the public — could likely have been avoided had Parliament done its duty. And while these lengthy court cases play out, often over many years, the laws in question remain on the books, unfairly and unlawfully restricting the fundamental rights and freedoms of Canadians.
CCLA’s Charter First report and campaign seek to address critical accountability and transparency gaps in Canada’s federal lawmaking process that can enable the advancement of unconstitutional laws. At no point in the current process are ministers or parliamentarians required to publicly defend the constitutionality of bills they introduce, or of amendments proposed, with any sort of rigorous analysis. At the same time, many parliamentarians simply do not have the resources at their disposal, or the requisite knowledge, to effectively assess the constitutionality of the laws they are asked to enact.
Meanwhile, the limited safeguards currently in place are simply not working. Under section 4.1 of the Department of Justice Act, the Minister of Justice is required to report to Parliament when he or she finds government legislation to be inconsistent with the Charter. However, government officials have suggested that the Minister need only report when there is no credible argument to support a bill’s constitutionality. This standard is bafflingly obtuse and so low that, in practice, not a single report relaying concerns about Charter compliance under section 4.1 has ever been made to Parliament. The reason why should be fairly obvious: a government would rather avoid scrutiny — especially on Charter grounds — just as it proposes a bill. Furthermore, none of this covers private members’ bills or Senate public bills — other forms of legislation that can and have raised constitutional concerns.
Thus, the goal of the Charter First report and campaign is to see that new checks and balances are introduced into Canada’s federal lawmaking process — ones that would increase transparency and accountability surrounding Charter issues, and raise the standard of Charter compliance of laws enacted by Parliament. This way, we can help ensure we get it right, from the start, and put the Charter first.
Here is a summary of CCLA’s recommendations:
- Parliament should amend the ineffective section 4.1 of the Department of Justice Act such that the Minister of Justice is required to issue a detailed statement of Charter compatibility when a government bill is introduced in Parliament.
- Parliament should create a position of Charter Rights Officer, with a staff and mandate to provide independent assessments of the Charter compliance of bills, and to serve in an advisory role to parliamentarians and parliamentary committees on Charter issues.
- The Senate and House of Commons should review and revise their respective amendment admissibility rules to allow committees to debate and vote on amendments that address Charter concerns regardless of whether they go beyond the “scope and principle” of a bill.
- For all government bills, the Charter Rights Officer should issue an independent assessment of Charter compliance, ideally prior to Second Reading in the House or Senate (depending on where a given bill is introduced). If amendments are made at any subsequent point, the Officer should issue addendums, ideally before final votes on the bill are taken. (If the bill was introduced in the Senate and amendments are made by Senators, then the Minister of Justice should issue an addendum to the government statement of compatibility at First Reading in the House.)
- For any private members’ bill or Senate public bill that passes Second Reading in the House or Senate respectively, the Charter Rights Officer should issue an independent assessment of Charter compliance. If amendments are made at any subsequent point, the Officer should issue addendums, ideally before final votes on the bill are taken.
To download the Charter First report and join the campaign, please visit www.ccla.org/charterfirst.