The Charter of Rights and the Minister of Justice: Why Section 4.1.1 of the Department of Justice Act needs to be rethought and reformed

The Trudeau government has gone to great lengths to ensure greater transparency in the operation of the Canadian government. It has released all mandate letters sent to members of Cabinet, which has allowed Canadians to clearly understand the government’s policy objectives and the ethical standards demanded by the Prime Minister. This is a good start and a clear attempt to differentiate itself from the former Harper government.

As the party that introduced the Charter, the Trudeau government has indicated that it will approach public policy in a way that is more respectful of the Charter and the judicial process. The mandate letter to the Minister of Justice indicates that the Court Challenges Program will be reinstituted; it also calls for a review of the government’s litigation strategy, which ‘should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values’. This has quickly been acted upon, as the Trudeau government has ended the appeal of the Niqab ban in citizenship ceremonies that was introduced by the Harper Conservatives.

Not surprisingly, the Trudeau government has placed the Charter of Rights at the centre of a more transparent approach to policy. If the government is serious about transparency, and wants to demonstrate greater commitment to the Charter, it should consider changing how the Minister of Justice dispenses her reporting duty to Parliament under section 4.1.1 of Department of Justice (DOJ) Act. The DOJ Act requires the Minister of Justice to review all government bills and regulations for their Charter compliance, and ‘shall report any such inconsistency to the House of Commons at the first convenient opportunity.’ This reporting duty does not apply to private members bills, and to date, the Minister of Justice has never reported to Parliament that a government bill is inconsistent with the Charter of Rights.

The failure to report is because section 4.1.1 is unworkable, as it requires the Minister of Justice to perform two contradictory roles: first, as a member of cabinet, she is required to support government bills because of cabinet solidarity; and secondly, as Parliament’s legal advisor under section 4.1.1, the Minister of Justice must report incompatible government bills to the House once a bill is introduced.

Presently, section 4.1.1 is a statement of incompatibility and would only be used by the most principled (and foolhardy) Minister of Justice, given the obvious career implications attached to reporting against a government bill. This raises an important question that is both practical and constitutional – how could a Minister of Justice participate in cabinet discussions leading to the introduction of a bill into Parliament where, at the moment of introduction, the Minister of Justice now decides that the bill is inconsistent with the Charter and reports to the House of Commons under section 4.1.1 of the DOJ Act? A Minister of Justice that reviewed a draft bill and concluded that it was inconsistent with the Charter, briefed cabinet on these inconsistencies, and was unable to convince the cabinet to reconsider introducing such a bill, would surely have to resign because of the conflict between individual ministerial responsibility and the collective will of cabinet.

There is a deeper problem in the Canadian context, however, with a Minister of Justice being required to issue a statement of incompatibility. It requires the Minister of Justice to report on what the ministry is constitutionally prohibited from introducing under section 52 of the Constitution Act – legislation that is inconsistent with the Charter of Rights, or any other part of the constitution. No government would knowingly introduce such legislation, and this explains why the Minister of Justice has never reported to the House of Commons under section 4.1.1. of the DOJ Act. Further, this reporting duty obscures the nature of constitutionality under the Charter: does the Minister of Justice consider a government bill inconsistent with the Charter because it infringes a protected right? Is it inconsistent because the infringement is not considered a reasonable limit under section 1 of the Charter? In effect, what is the standard employed to determine Charter inconsistency?

What is the solution to this unworkable reporting duty that is, at its core, an attempt to ensure a transparent Charter certification process? Are there practices in other Westminster systems that the Trudeau government could learn from and adopt? The answer is yes, it is found in Australia, New Zealand and the United Kingdom, and the solution is rather simple. Although Australia does not have a national bill of rights, the Parliament of Australia passed the Human Rights (Parliamentary Scrutiny) Act 2011 that requires all bills to have a statement of compatibility certifying that it is consistent with recognized rights and freedoms. In New Zealand, all statements of compatibility are posted on the website of the Ministry of Justice, and reports of the Attorney General under section 7 of the New Zealand Bill of Rights Act 1990, which are statements of incompatibility, are available on the parliamentary and Ministry of Justice websites. Similarly, a minister introducing a bill in the United Kingdom is required under section 19 of the Human Rights Act 1998 to attach either a statement of compatibility or incompatibility to a bill.

The experiences of these parliamentary bills of rights have been examined by Janet Hiebert and myself in a 2015 book by Cambridge University Press, and the Trudeau government should revise the Minister of Justice’s reporting duty in a similar way. Instead of reporting on Charter inconsistencies, the Minister of Justice should be required to attach a statement of compatibility to every government bill that certifies it is consistent with the Charter when it is introduced into the House of Commons, and on what basis the Minister of Justice believes a government bill is compatible with the Charter of Rights. Perhaps this could be extended to private members bills (PMB), but given that few PMBs are passed into law, it may be prudent to have the Minister of Justice only report on those PMBs that survive first reading in the House of Commons, which is the practice in New Zealand.

Statements of compatibility submitted by the Minister of Justice would take one of two forms. In the first, the Minister of Justice would report that a bill is compatible because it does not engage any Charter rights: few reports would likely take this form, as most legislation does engage the Charter of Rights to some degree. Many bills considered by Parliament infringe protected rights and freedoms, but are ultimately supported because these limitations are considered reasonable under section 1 of the Charter. The vast majority of statements of compatibility would acknowledge this duality of Charter certification – that a government bill infringes a right, but that the Minister of Justice considers the infringement reasonable under section 1 of the Charter. The second approach to statements of compatibility is the most important, as it would demonstrate a government’s commitment to Charter transparency when the Minister of Justice reports to the House of Commons the reasons why a government has decided to proceed with a bill that engages the Charter of Rights.

What would be the value of these statements, particularly the second version? First, it could create an informed parliamentary debate on whether to proceed with a bill that infringes protected rights. Secondly, it would require the government to defend its position that the limitation is reasonable on the floor of the House of Commons. Finally, statements of compatibility would be a valuable addition to the workings of parliamentary committees, and may become of such importance to the legislative process that the Parliament of Canada establishes a committee devoted to parliamentary scrutiny of these statements, such as the Joint Committee on Human Rights in the United Kingdom, and the Parliamentary Joint Committee on Human Rights in Australia. The temptation for any government would be to have the Minister of Justice report that a bill does not engage the Charter of Rights. This would render a statement of compatibility little better than the current approach to section 4.1.1 and would need to be avoided for a workable reporting duty.

The Speech from the Throne in December 2015 focused on greater transparency, as the Trudeau government indicated that ‘it will not resort to devices like prorogation and omnibus bills to avoid scrutiny.’ Altering the Minister of Justice’s duty under section 4.1.1. from reporting on Charter inconsistencies to issuing statements of compatibility is in line with this sentiment. More importantly, it would demonstrate the Trudeau government’s commitment to approaching the Charter of Rights in a more transparent and accountable way than its predecessor.

The Leader of the Government in the House of Commons and Parliamentary Reform: Prime Minister’s Questions and Backbench Independence

The mandate letter issued by Prime Minister Justin Trudeau  to the Leader of the Government in the House of Commons, Dominic LeBlanc, contains several modest – but realizable reforms – that would immediately improve the character of Parliament.

The intention to establish ‘Prime Minister’s Questions’ modelled after the United Kingdom, whereby one day a week is devoted to questioning the Prime Minister for 30 minutes, is a good idea. In the United Kingdom and Canada, question time or period, respectively, is held Monday to Thursday for 1 hour. However, in the United Kingdom, question time does not involve the Prime Minister but the rest of the ministry, which allows their shadow cabinet counterparts to regularly question individual ministers about their portfolios and performance.

The current practice in Canada, where the Prime Minister attends the daily question period when in Ottawa, does have its advantages, as the opposition parties hold the Prime Minister to account on a daily basis. However, this has reinforced the dominance of the Prime Minister to the detriment of individual cabinet responsibility, as the ministry is overshadowed by the opposition parties’ preoccupation with questioning the Prime Minister.

Question period has essentially become ‘Prime Minister’s Questions’ in Canada, and this is at the expense of collective responsibility, as well as the individual responsibility of ministers for their briefs. Adopting the British practice of Prime Minister’s Questions would signal a desire to move away from prime-ministerial government that intensified under the Harper government and to return to a cabinet-centred approach to government whereby the Prime Minister is simply ‘first amongst equals’.

Lessening Party Discipline

The mandate letter to the Leader of the Government in the House of Commons also calls for a lessening of party discipline and more free votes for Liberal MPs. Most governments begin their time in office with such noble intentions, and the test will be whether the Trudeau government can relax party discipline and tolerate having its legislative agenda defeated by Liberal MPs voting with the opposition parties.

While the defeat of a government bill by its own backbench is a feature of the United Kingdom, an independent backbench may be the product of the larger size of the British House of Commons and the fact that most backbenchers realize that they will never be cabinet ministers, or even parliamentary private secretaries.

The career of most British MPs is that of the backbenches. This career realism within a Parliament such as Westminster creates the environmental setting that has allowed a class of independent backbenchers to emerge, thrive, and be sustained against the will of the front bench.

Additionally, there are far more ‘safe’ seats in the Westminster Parliament, and British MPs do not face automatic reselection as the party candidate each election.  A sitting MP in the United Kingdom is more secure than their Canadian counterpart, and this contributes to the greater independence of Westminster MPs that reside on the backbenches.

In the United Kingdom, the government is equated with the ministry and a Conservative backbencher would never self identify as part of the Cameron government, as the government and the caucus are distinct bodies. In Canada, the government is synonymous with the party in office, and a backbench Liberal would self identify as a member of the Trudeau government. This suggests that there are important cultural differences between these two parliaments that also determine the degree of backbench independence.

The modest size of the Canadian House of Commons, the relatively small size of the government caucus in comparison to the United Kingdom, and the comparatively large proportion of the government caucus that are either in the ministry or serve as parliamentary secretaries, may be the real reason why disciplined caucuses are the norm in Canada.

On its own, loosening the party whip will not produce the equivalent of the 1922 Committee that exists in the British Conservative Party, which is an institutional manifestation of backbench independence within Westminster. There are other forces at work that explain the high cohesion of Canadian political parties and the endurance of party discipline than the voting instructions communicated to MPs by the Whip’s Office.

A lessening of party discipline would only produce an independent backbench if other changes occurred – a significant reduction in the size of the cabinet, an overall expansion in the size of the House of Commons, and the automatic reappointment of sitting MPs as parliamentary candidates.  As none of these are likely to occur, party discipline will remain a characteristic of the Canadian House of Commons.

A Gender Balanced Cabinet

There is, however, one change to the selection of the ministry by Prime Minister Trudeau that may, in fact, partially advance the goal of backbencher freedom but with a gendered outcome and twist – the decision to appoint a gender-balanced cabinet.

The cabinet prospects for male Liberal MPs have worsened, whereas those of female Liberal MPs have significantly improved. For instance, of the 50 Liberal MPs that are women, 15 are members of the ministry and 12 are parliamentary secretaries, for a total of 54% (27/50) of the female Liberal caucus being directly appointed by Prime Minister Trudeau.

This career realism may result in greater freedom on the part of backbench male Liberals but greater adherence to the party Whip by the Liberal’s women caucus, which may become the law of unintended consequences simply because it’s 2015.