Federal Court· 2016Unreviewed source text
Schmidt v. Canada (Attorney General)
2016 FC 269
CharterJD
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Schmidt v. Canada (Attorney General) Court (s) Database Federal Court Decisions Date 2016-03-02 Neutral citation 2016 FC 269 File numbers T-2225-12 Notes Reported Decision Decision Content Date: 20160302 Docket: T-2225-12 Citation: 2016 FC 269 Ottawa, Ontario, March 2, 2016 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 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 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 Institutiona…
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Schmidt v. Canada (Attorney General) Court (s) Database Federal Court Decisions Date 2016-03-02 Neutral citation 2016 FC 269 File numbers T-2225-12 Notes Reported Decision Decision Content Date: 20160302 Docket: T-2225-12 Citation: 2016 FC 269 Ottawa, Ontario, March 2, 2016 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 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 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 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 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 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 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 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. 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). [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 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. [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: [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; 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 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 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. 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. [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 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 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. 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 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 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 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. [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 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. 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 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. 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. [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 pr
Source: decisions.fct-cf.gc.ca
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