Crack that whip – why Real Change is just more of the same for the Liberal caucus

The Liberal Party of Canada’s 2015 election platform, Real Change – A New Plan for a Strong Middle Class, is an extensive document. In one particular section, Giving Canadians a Voice in Ottawa (pages 29-31), the Liberal Party of Canada makes 10 commitments to strengthening the voice of Canadians in our political institutions.

These recommendation range from the Senate, to a more transparent appointment process for Supreme Court of Canada nominees, to placing limitations on the use of prorogation and omnibus legislation.

There is one aspect that has not received much attention, largely because the current Parliament has not held many votes on the government’s legislative agenda – the commitment by the Liberal Party of Canada, and now the Trudeau government, to ‘make free votes in the House of Commons standard practice’ (page 30).

However, Real Change recognizes that there must be restrictions on free votes, and establishes the following guidelines:

For members of the Liberal Caucus, all votes will be free votes with the exception of:

those that implement the Liberal electoral platform;

traditional confidence matters, like the budget; and

those that address our shared values and the protections guaranteed by the Charter of Rights and Freedoms.

What this really means, when you think about the third exception is the following – there will be no free votes for members of the Liberal caucus. Every issue considered by Parliament is a Charter issue, and the exceptions to the rule stated in Real Change are, in fact, not exceptions but the new rules of party discipline under the Trudeau Liberals.

The election commitment to Giving Canadians a Voice in Ottawa has been acted upon, and the mandate letter issued to the Leader of the Government in the House of Commons commits the Trudeau government to provide “Canadians a stronger voice in the House of Commons by promoting free votes and limiting the circumstances in which Liberal Members of Parliament will be required to vote with the government.”

This past weekend, the Trudeau government outlined its approach to free votes and conscience issues, and clarified when a Liberal MP must adhere to the party line.

The response by the Leader of the Government in the House of Commons, Dominic LeBlanc, as to whether the issue of physician-assisted death will be a free vote, represents real change. But it is not the real change that Real Change promises.

LeBlanc’s Law of Confidence on Matters of Conscience

As reported in the Globe and Mail, the House Leader has developed a litmus test for determining when a conscience issue is actually a matter of confidence that requires a three-line whipped vote to be imposed on the Liberal caucus.

According to the House Leader, the issue of physician-assisted death ceased to be a morally contentious matter, as well as a conscience issue, the moment the Supreme Court of Canada (SCC) recognized the right to physician-assisted death under section 7 of the Charter of Rights.

For the Liberal House Leader, “At the end of the day, the Supreme Court has defined a right around the issue of assisted dying, and we will be always voting to uphold Charter rights.”

Clearly, this approach is consistent with Real Change, but it does question the Trudeau government’s commitment to actually address the intensity of party discipline that exists in the House of Commons.

Using the Charter of Rights as a pretext for rigid party discipline by the Trudeau government is no different than the use of ‘law and order’ or ‘national security’ by the former government of Stephen Harper to stifle parliamentary debate.

Whether the anticipated law on physician-assisted death is well drafted or poorly constructed, or the fact that Liberal MPs have not yet seen the law, doesn’t matter. All that matters when you pursue Real Change is that it involves the Charter of Rights, the SCC has ruled on this matter, and Liberals, according to Mr. LeBlanc, will always vote to uphold the SCC’s interpretation of the Charter of Rights.

This has caused concern for some Liberal MP’s, particularly John McKay, who is the Parliamentary Secretary to the Minister of National Defence. Invoking the traditional approach to whipped votes as matters of confidence because of their centrality to a government’s legislative agenda, John McKay has noted the following about physician-assisted death: “It’s not core to the government’s mandate; it’s a response to the Supreme Court…I don’t see this as a Charter issue.”

True, but not true when you are pursuing Real Change.

In recent days, Althia Raj of the Huffington Post has reported further concerns being raised by Liberal MPs on a whipped vote before they have seen the draft bill (see All Liberals Must Support Doctor Assisted Dying Law, Government Deems it Charter Issue).

The ability of the Charter of Rights to transform conscience issues into matters of confidence is rather remarkable, and raises several questions:

  • Given that Carter v. Canada is a unanimous decision, does a conscience issue become a matter of confidence only when the when the SCC speaks with one voice?
  • If this is the approach adopted by the House Leader, are Liberal MPs free to vote their conscience when the SCC delivers a majority decision, as it did in Morgentaler, when a provision of the Criminal Code that prohibited the provision of private abortion services was declared unconstitutional?

Does it matter whether the SCC protects the rights of the accused or that of the victim in its Charter rulings? In previous decisions involving the Charter of Rights the Supreme Court of Canada has;

  • Recognized the defence of extreme intoxication in sexual assault cases and invalidated a common law rule that prevented the accused from raising such a defence (Daviault);
  • Invalidated a section of the ‘rape shield’ provision in the Criminal Code as unduly limiting the section 7 rights of the accused to full answer and defence (Seaboyer);
  • Ruled that the ‘possession of child pornography is a form of expression protected by s.2b of the Charter’ (Sharpe);
  • In 2002, declared an amendment to the Canada Elections Act that disenfranchised violent prisoners serving sentences of 2 years or more in a federal institution unconstitutional as a violation of the right to vote for those incarcerated (Sauvé v. Canada);

I wonder whether the Trudeau government intends to uphold such interpretations of the Charter of Rights simply because the SCC has rendered these decisions.

This is particularly relevant and would represent real change, as previous Liberal governments have actually disagreed with the SCC on occasion, and reversed Charter decisions through statutory amendment (see James B. Kelly and Matthew A. Hennigar, ‘The Canadian Charter of Rights and the minister of justice: Weak-form review within a constitutional Charter of Rights,’ International Journal of Constitutional Law 10:1 (2010), 35-68).

From Parlement to Parliament to vous ne devez pas parler (when the Supreme Court of Canada has spoken)

There are a number of problems with the approach to free votes in Real Change and the Government House Leader’s view that parliamentary debate and disagreement amongst Liberal MPs is unnecessary once the Supreme Court of Canada recognizes a right or freedom:

  • This approach is a clear rejection of past parliamentary practices that involve matters of conscience, such as the death penalty;
  • This approach departs markedly from past parliamentary practices that allowed free or partially free votes for members outside of the ministry in regard to the Charter of Rights. This occurred in response to decisions by the Supreme Court of Canada involving abortion ( v. Morgentaler), and same-sex marriage (Reference re Same Sex Marriage);
  • This approach is a clear repudiation of M-550 introduced by Ed Komarnicki (Souris-Moose Mountain) and passed by Parliament on June 17, 2015 by a vote of 273-1. The wording of Private Members’ Business M-550 is the following (pages 2801-2802);

That, in the opinion of the House, all Members of Parliament should be allowed to vote freely on all matters of conscience.

Incidentally, Justin Trudeau and Dominic LeBlanc supported M-550 as members of the third largest party in Parliament a mere 8 months ago while in opposition;

  • This approach may signal the death of Charter dialogue as it fails to understand that every issue considered by the Parliament of Canada is actually a Charter issue because of section 52 of the Constitution Act, 1982 (The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect), as well as the Minister of Justice’s duty to report any Charter inconsistencies to the House of Commons under section 4.1.1 of the Department of Justice Act;
  • This approach fails to consider that the Charter of Rights involves morally contentious issues where reasonable people disagree over the scope of rights and freedoms. It also ignores that disagreements will exist over the reasonable limits clause because of its subjective nature, and the unstated values of a free and democratic society that must be discovered by the SCC;
  • This approach is premised on there being a correct interpretation of the Charter of Rights, and assumes that the Supreme Court of Canada is infallible when it renders a Charter ruling;
  • This is simply ill conceived and perhaps an early indication that the ‘natural governing party’ has slipped back into the hubris of arrogance of past Liberal governments. No political party or institution monopolizes what constitutes Canadian values, or what the Charter of Rights and Freedoms entails (see Léonid Sirota, The Charter is of no party).

Give the past a slip

Historically, free votes have been a rarity in the Parliament of Canada. Only 8 matters considered by Parliament have been completely or partially free votes since the 1960s. As several involved government bills, the ministry voted in favour because of the principle of collective cabinet responsibility, but members of the governing party on the backbenches were free to vote their conscience.

According to the Library of Parliament:

True free votes occasionally take place in the House of Commons, usually on questions of morality and conscience, where divisions tend to cross party lines. To date, there have been few such votes: the flag debate of the 1960s; five votes on capital punishment in the 1960s, 1970s and 1980s; votes on the abortion issue; and the vote on same-sex marriage in June 2005 (Bill C-38 – it is to be noted that the New Democratic Party did not allow a free vote for its members on that issue). In several of these, Cabinet ministers were expected to support the measure as it had been introduced by the government, but other Members on the government side were free to vote as they wished. This was the case with the vote on same-sex marriage: Liberal ministers were required to vote in support, but other Liberal MPs were allowed to vote in accordance with their own beliefs.

Given that past Liberal and Progressive Conservative governments have respected the parliamentary practice that moral and conscience issues are free votes, and several occurred with the Charter of Rights as the backdrop, why has the Trudeau government decided to abandon this practice in regard to physician-assisted death?

Sunny ways are giving way to darkening skies

Several possibilities exist to explain the use of rigid party discipline on a conscience issue such as physician-assisted death. The first it not particularly convincing, and the second may explain the conversion of conscience issues into confidence matters by the Trudeau Liberals.

  1. A whipped vote is necessary to ensure the passage of the response to Carter v. Canada by the House of Commons

Generally speaking, a government imposes a three-line whip when it considers an issue either as a matter of confidence because it is a core election commitment and key to the survival of the government, or when it is concerned that it cannot rely on the support of its backbenchers to pass a key government initiative.

How useful is this explanation to understand the approach of a government that met for the first time on December 3, 2015 when the Governor General summoned Parliament into session?

Not very useful, for a number of reasons:

  • Second, given that 136 of the 184 MPs in the Liberal caucus were elected for the first time in 2015, it is unlikely that a government caucus with such a large number of rookie MPs should be concerned about their backbench not supporting the government’s legislative agenda.

Independent behaviour by Members of Parliament develops over time and is generally the result of two factors – longevity as an MP and lack of career advancement to the ministry – and neither characterizes the vast majority of Liberal MPs elected in 2015.

A three-line whipped vote, at this stage in the current parliament, seems rather unnecessary to guarantee passage of any bill proposed by the majority Liberal government – the current Parliament has passed only one act, Bill C-3 (Appropriation Act No. 4, 2015-16), and the Liberal caucus unanimously supported, as it is a money bill, and is a matter of confidence.

At this point, it is probably safe to conclude that there is no evidence of dissent on the Liberal backbenches that needs to be addressed through a whipped vote by the House Leader to save the government on an issue – physician-assisted death – that is not a matter of confidence for the Trudeau government.

  1. A whipped vote is necessary because Justin Trudeau expelled all the Liberal Senators

On February 15, 2016, it was reported in The Hill Times that Liberal Senators expelled by Justin Trudeau believe that the Trudeau government will have a difficult time passing its legislative agenda in the Upper House (see Tough times ahead for Trudeau Libs in Senate, say Liberal Senators).

Justin Trudeau wanted to ensure an independent, non-partisan chamber by expelling all Senators from the Liberal caucus. It appears that these former Liberal Senator intend to advance his desire for the Senate to be an independent scrutiny chamber. This may be a case of ‘be careful what you whish for’ on the part of the Trudeau Liberals.

The uncertainty of the government’s legislative agenda in the Senate may be the real reason why a whipped vote on a conscience issue has been imposed by the Leader of the Government in the House of Commons – a realization that it takes two to tango in a bicameral parliament, and the Liberal Party of Canada’s dance card is empty in the upper house and likely to remain so.

In a previous entry, I indicated that this decision, while in opposition, might be the most serious and consequential for the Liberal party while in government (The Senate after the Election: How will the NDP and the Liberals react?). As well, this poses a particular difficulty for the legislative response to Carter v. Canada as I argued in Brother, can you spare 6-months? Is this what Charter ‘dialogue theory’ has become?

The situation facing the Trudeau Liberals in the Senate, while unique, is not without comparison, as majority governments in other Westminster systems rarely control both houses of parliament:

  • In Australia, a majority government constituted in the Lower Houser of Parliament rarely controls a majority of the seats in the Senate because of the single-transferrable voting system based on proportional representation used in the Upper House. In the current Australian Senate, the Coalition composed of the Liberal Party and the National Party is the largest caucus, but a minority with 33 out of 76 seat, or 43.4% of the voting members in the Senate;
  • In the United Kingdom, a majority government that resides in the House of Commons will not, because of the changes affecting the composition of the House of Lords introduced by the Labour government of Tony Blair, control a majority of the members of the House of Lords. While the Conservative party of David Cameron heads a majority government in the Commons, Conservative Peers in the House of Lords number 250 out of 816, or 30.6% of the peers.

This is where the comparisons end, unfortunately. This leads me to conclude that a whipped vote is more about how the Trudeau approach to the Senate has backfired more than it is about fidelity to the Charter of Rights, as I will explain below.

Senate reform without a game plan beyond expulsion

In all three Westminster parliamentary democracies considered – Canada, Australia, and the United Kingdom – there is a real possibility that the government’s legislative agenda proposed in the lower house of parliament may be denied by the upper house.

Unlike Canada, these remaining parliamentary democracies have constitutional principles to break deadlock between the houses of parliament (Australia) or have developed constitutional doctrines which allow the government that resides in the lower house to have its legislative agenda agreed to by the upper house (the United Kingdom).

While the Constitution Act, 1867 and 1982 provides two mechanisms to resolve deadlock between the two houses of parliament, they are not practical and would not provide any resolution to potential Senate refusal to expedite the required legislative response to Carter v. Canada:

  • First, in regard to constitutional amendments, section 47(1) limits the Senate’s blocking power to simply a 180 day delay:

Amendments without Senate resolution

47(1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

  • Second, section 26 allows the Queen, on the recommendation of the Governor General (who simply acts on the recommendation of the Prime Minister), to increase the size of the Senate by four or eights members:

Addition of Senators in certain cases

26. If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Four or Eight Members be added to the Senate, the Governor General may by Summons to Four or Eight qualified Persons (as the Case may be), representing equally the Four Divisions of Canada, add to the Senate accordingly.

As the legislative response to Carter v. Canada does not require a constitutional amendment, section 47(1) does not have any relevancy for the Carter extension that expires on June 6, 2016.

Neither is section 26 particularly helpful, as the Trudeau Liberals do not permit Senators in the Liberal caucus. Even if the new advisory process for the appointment of Senators recommended four or eight additional Senators, there is no guarantee that non-partisan Senators appointed under section 26 would make much difference.

Australia and double-dissolution elections

The Constitution of the Commonwealth of Australia enacted in 1900 anticipated deadlock between the two houses of parliament, perhaps because each chamber has always been elected and can argue that it possesses a democratic mandate to justify its actions.

Under section 57 of the Constitution of the Commonwealth of Australia, the Governor General, at the request of the Prime Minister, and providing that a ‘trigger event’ exists, can call a double-dissolution election for both houses of parliament:

57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

Section 57 also provides for a way to resolve a conflict between the two houses of parliament that may not be resolved by a double dissolution election – the ability of the Governor General to call a joint sitting of the House of Representatives and the Senate to pass the measure in question by a simple absolute majority:

If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.

The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent.

The United Kingdom and the Salisbury Doctrine

The unwritten nature of the constitution of the United Kingdom has resulted in constitutional change through parliamentary conventions or doctrines agreed to by the two houses of parliament. For the present discussion, the Salisbury Doctrine is important, as it suggests a possible solution to the Senate conundrum that has been authored the Trudeau Liberals.

The discussion of the Salisbury Doctrine provided on the Westminster parliamentary website is the following:

The Salisbury Doctrine, or “Convention” as it is sometimes called, emerged from the working arrangements reached during the Labour Government of 1945-51, when the fifth Marquess of Salisbury was the Leader of the Conservative Opposition in the Lords. The Convention ensures that major Government Bills can get through the Lords when the Government of the day has no majority in the Lords. In practice, it means that the Lords does not try to vote down at second or third reading, a Government Bill mentioned in an election manifesto.

While this is a potential solution to problem faced by the Trudeau Liberals in the Senate, there is a hitch – physician-assisted death was not mentioned in Real Change – A New Plan for a Strong Middle Class, the 2015 election manifesto of the Liberal Party of Canada.

A Canadian equivalent to the Salisbury Doctrine is necessary, given that the Trudeau government does not have a Senate caucus. However, even if it did exist in Canada, it would not apply to physician-assisted death.

This issue was not part of the Speech from the Throne, Making Real Change Happen, read by the Governor General on behalf of the Trudeau government, and would not meet the threshold of the upper house passing a government bill included as part of an election manifesto.

Charter platitudes are not helpful

One counter to my argument would be the following – the Senate of Canada has rarely defeated a bill proposed by the House of Commons.

True. But that was then and this is now.

Part of the reason for the lack of Senate opposition in the past is the following – the governing party in the House of Commons, for the most part, also commanded a majority in the Senate of Canada, and these Senators were always part of the governing caucus. The only party caucus in the Senate is that of the Conservative Party of Canada, and it constitutes a majority of the occupied seats in the upper house.

Returning to the application of a three-line whip to physician-assisted death, the Trudeau government may be banking on a strong vote in the House of Commons to pressure the unelected Senate to quickly review and pass the amendments to the Criminal Code required by the Supreme Court of Canada by June 6, 2016.

This may be the only card the Trudeau government holds – the hope that an unelected Senate will not deny the will of the House of Commons and the attempt to comply with the Supreme Court of Canada in Carter v. Canada.

And this may explain the use of Charter platitudes to justify whipping a conscience vote.

This strategy, to be successful, would also require the support of the remaining parties in the lower house to truly represent the will of the house. But in return, the Conservatives and the NDP may demand a proper parliamentary debate on the Liberal’s approach to addressing physician-assisted death.

It appears that this strategy may be unravelling for the Trudeau Liberals, as NDP Leader Thomas Mulcair has indicated that his caucus will be permitted a free vote as “I have the intention of allowing our caucus to vote their conscience on this file.” In the end, the will of the house may not be homogenous, but more a reflection of the views of Canadians on this issue.

Parliamentary debate must be encouraged, not denied

This returns the discussion to an essential point – the Charter of Rights should be the basis of debate within the House of Commons, and should never be used as a parliamentary tactic to scuttle it.

The Liberal party’s commitment to the Charter of Rights as a pretext for the use of three-line whips may prove to be the tragedy of the commons under Justin Trudeau.

It doesn’t need to be this way. But that would require Real Change.

Brother, can you spare 6-months? Is this what Charter ‘dialogue theory’ has become?

 

Now that the Supreme Court of Canada (SCC) has ruled on the request by the Trudeau government to seek a 6-month extension to comply with Carter v. Canada (Carter II), and the Trudeau government has accepted the court order without reservation, what does the ruling say about the SCC and the Trudeau government, as it relates to the Charter of Rights?

I’ll start by saying that I largely agree with the recent insightful commentary provided by Michael Plaxton in Policy Options. My comments will focus on other issues within the broader context of the judicialization of politics and the Charter of Rights, such as:

  • The justification provided by the SCC for partially granting the request for a 6-month extension;
  • What the ruling says about the state of Charter dialogue theory;
  • Whether Parliament can pass amendments to the Criminal Code within four months to comply with Carter II;
  • Whether the 9 provincial governments excluding Quebec can agree to regulations governing physician-assisted dying by June 6, 2016.

A review of the order is necessary before placing the January 15, 2016 judgement by the SCC in a broader context:

  • The SCC granted the motion in part. The initial one-year suspended declaration of unconstitutionality that was set to expire on February 6, 2016 has been extended for an additional 4 months, instead of the 6 months requested by the Trudeau government;
  • The four-month extension does not apply to those individuals outside of Quebec that wish to exercise the right to physician-assisted dying recognized by the Court in Carter. At paragraph 7, the SCC created an interim process for a ‘competent adult person’ that requires applying to a superior court for relief in accordance with the principles established by the SCC in Carter v. Canada:

“s.241 (b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”(at para. 127)

Elections Matter (when they matter)

There are a number of problematic features with the Court’s reasons to simply grant a 4-month extension to the Carter remedy, and, as a political scientist, the discussions of the 2015 Federal Election and resulting delay that prohibited Parliament from fashioning a legislative response to Carter v. Canada are the most peculiar.

At paragraph 2, the Court notes that the initial remedy of a suspended declaration of unconstitutionality is an ‘extraordinary step’ and to ‘extend such a suspension is even more problematic.’ Further, ‘[t]he burden on the Attorney General who seeks an extension of a suspension of a declaration of unconstitutionality is heavy.’

The Court considered the interruption of the legislative process caused by the 4-month 2015 Federal Election as constituting exceptional circumstances to justify granting an additional exemption.

This leads to an important question – if the Court was willing to factor in the length of a federal election into what is simply an extension for Parliament to draft a legislative response to Carter while simultaneously exempting Quebec’s Act respecting end-of-life-care from this extension and effectively declaring sections 241(b) and 14 of the Criminal Code unconstitutional for ‘competent adult persons’ that are granted relief by a superior court, why not simply grant Parliament’s initial request of 6 months?

The reliance on the period from dissolution of Parliament on August 4, 2015 to its summoning on December 3, 2015 by the Governor General is a particularly puzzling aspect of the Court’s decision in Carter II, and it suggests the SCC misunderstands the legislative process that unfolds between dissolution of one parliament and the summoning of the next parliament by the Governor General.

When an election is called, parliamentary committees are dissolved until Parliament is summoned and the House of Commons reconstitutes them following the election of the Speaker and the Speech from the Throne.

In the case of the Speaker of the House of Commons, the House elected the current incumbent on December 3, 2015. The Governor General read the Speech from the Throne in the Senate on the same day. More importantly, December 3, 2015 is the date the SCC determined that Parliament was able to resume the legislative process, and is the sole justification provided for granting a 4-month extension instead of the 6-months requested by the Trudeau government.

Given that the Trudeau government decided to establish a Special Joint Committee on Physician-Assisted-Dying to receive and review the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada created by the former Harper government, it is important to ask the following questions:

  • When was the Special Joint Committee on Physician-Assisted-Dying constituted and in a position to begin fashioning a legislative response to Carter v. Canada?
  • When did the Special Joint Committee on Physician-Assisted-Dying receive the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada? Given that this report is essential to the work of the Special Joint Committee, even if the committee is constituted, it cannot begin its work until the report is received.

When are parliamentary committees ‘re-constituted’ and able to resume work?

The SCC was wrong to assume that the summoning of Parliament by the Governor General on December 3, 2015 allowed Parliament to turn its attention to the legislative remedy in response to Carter v. Canada.

As I previously stated, the summoning of Parliament on December 3, 2015 does not see committee business resume. First, ‘standing’ or permanent parliamentary committees must be reconstituted from a previous session of Parliament, and this occurs after the Speaker has been elected and the Governor General has read the Speech from the Throne.

However, reconstituting a committee has both a formal dimension and a substantive component, which the SCC did not factor into its justification for granting a four-month extension. In the case of the Special Joint Committee on Physician-Assisted-Dying, this committee was not reconstituted, as it did not exist in a previous session of Parliament, but was constituted as an adhoc committee after the Speech from the Throne was dispensed in early December. At this point, the Special Joint Committee was created, but it was not substantively constituted, as it could not meet until several procedural issues were dispensed with.

The first order of business of any parliamentary committee – standing or adhoc – is the election of a chair. In the case of the Special Joint Committee on Physician-Assisted-Dying, it has joint chairs – one from the House of Commons, and one from the Senate. The election of the joint chairs occurred at the first meeting on the Special Joint Committee, and this took place on January 18, 2016.

It was during the afternoon session that the Special Joint Committee first began work on the legislative response to Carter v. Canada, presumably when it received the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada. While the Minister of Justice received this report on December 15, 2015, the Minister of Justice and Minister of Health did not release the report to the public (and presumably to the Special Joint Committee) until January 18, 2016.

Whether or not the Special Joint Committee received the report before January 18, 2016 is irrelevant, as the legislative response to Carter v. Canada could not begin until the committee was constituted and able to conduct meetings, which occurred with the election of joint chairs on January 18, 2016. Indeed, the afternoon session saw briefings from the Department of Justice, which discussed the complexity of coordinating a provincial regulatory framework governing physician-assisted dying within the 4-month extension.

The delay caused by the 2015 election (4 months) and the period between the summoning of Parliament (December 3, 2015) to the election of Joint Chairs for the Special Joint Committee on Physician-Assisted-Dying (January 18, 2016) results in a further delay of 6 weeks, for a total delay of 5.5 months, and not the 4 months recognized by the SCC. This is only two-weeks shy of the 6-months requested by the Trudeau government.

What does this say about the rationale delivered by the Supreme Court of Canada to grant a 4-month extension instead of the requested 6-month extension? Principally, that it rests on a misunderstanding of Parliament, the legislative process, and the workings of parliamentary committees that puts into question its justification for granting a 4 month extension.

The request by the Trudeau government was reasonable because it – and not the Supreme Court of Canada – understands the subtleties of the legislative process. In such matters, the SCC should defer to the institutional competency of Parliament when the ministry makes an unusual request for an additional extension on a section 24(1) remedy, as in the case of Carter v. Canada. In this respect, the Court was wrong to deny the requested 6-months extension by the Trudeau government. Instead of acting with the Wisdom of Solomon, the Supreme Court of Canada acted as if it had the Wisdom of Solomon, in relation to Parliament and the legislative process.

Get Carter to the Provinces and Territories

Fashioning a legislative response to Carter has two dimensions – one that is directly under federal control (the amendments to the Criminal Code), which is straightforward in the House of Commons but not so in the Senate, and one that is directly under provincial control (responsibility for health care), which is rather complicated. While the federal government surely favours a national approach to physician-assisted-dying, as does the Canadian Medical Association, it requires the provincial governments to agree to this national framework. The provision of this medical service to ‘competent adult persons’ will require provincial acceptance, agreement, and most importantly, implementation.

Passing amendments to the Criminal Code in the House of Commons

Turning to the first part of the legislative response, a four-month time frame is most likely sufficient to draft amendments to the Criminal Code. At a minimum, the House of Commons can simply accept the exemptions outlined by the Court at para. 127 in Carter and recommend these amendments to the Senate.

Such exemptions in the Criminal Code could be fast-tracked at the agreement of the House Leaders of the three parliamentary parties. However, this would require the Trudeau government to invoke party discipline on this issue, which may be problematic, as it is a conscience issue.

Given that Liberal leader Justin Trudeau has required all Liberal MPs to be pro-choice on the issue of abortion, the right-to-die may no longer be considered a conscience issue by the Trudeau government, and a whipped-vote would guarantee its passage in the House of Commons but not the Senate.

Trudeau and the Senate – where bold ‘reform’ meets legislative reality

Here is where the ability of the Trudeau government to pass amendments to the Criminal Code gets complicated, and may prevent meeting the June 6, 2016 deadline. As I argued in an earlier piece – The Senate after the Election: How will the NDP and the Liberals react? – Prime Minister Justin Trudeau leads the first government in Canadian history that lacks a government caucus in the Upper House of Parliament. While in opposition, Liberal leader Justin Trudeau expelled all Senators from the Liberal caucus, and committed his party to a non-partisan approach to the Upper House.

At the present time, it is unclear whether the Liberal party has appointed an individual to serve as Leader of the Government in the Senate – Senator James S. Cowan is designated as ‘Leader of the Senate Liberals’ and it is unclear whether he also serves as Leader of the Government in the Senate.

Why is this relevant? There is no guarantee that the Senate will pass amendments to the Criminal Code in time to meet the June 6, 2016 deadline, as the Trudeau government has absolutely no political leverage with the Senate Liberal Caucus. Even if the Senate Liberal Caucus agrees to support the amendments to the Criminal Code, they are in the minority in the Senate, as the Conservative Party of Canada has a majority of the appointed members. And finally, once the Independent Advisory Board for Senate Appointments fills the 22 current vacancies with non-partisan appointments, the passage of legislation enters a new, unknown phase. Sunny ways can quickly give way to stormy seas, as the Trudeau government may soon learn with an independent, non-partisan Senate.

Coordinating with Provincial and Territorial Ministers of Health

Even if Parliament – the House of Commons and the Senate – passes amendments to the Criminal Code in time, what is less apparent is whether federal-provincial-territorial negotiations with the Canadian Medical Association and other provincial medical associations can produce a regulatory framework to govern physician-assisted dying. Here too, a legislative compromise presents itself in the interim until a permanent regulatory framework can be adopted – the provincial governments, in coordination with the federal government, can simply adopt in the interim Quebec’s Bill 52, Act respecting end-of-life care, and the guidelines created by Quebec’s College of Physicians to regulate physician- assisted dying.

If each province has to pass regulations governing physician-assisted dying by June 6, 2016, even if this is done as orders-in-council instead of legislation, it may prove very difficult to meet the 4-month extension granted by the SCC.

Why Morgentaler is not instructive

In some ways, the issues in Carter and Morgentaler are very similar, as both involved provisions of the Criminal Code that were declared unconstitutional by the SCC as a violation of section 7 of the Charter. In Morgentaler, the SCC declared unconstitutional Criminal Code provisions that regulated abortion, and immediately declared them to be ‘of no force or effect’ under section 52 of the Constitution Act, 1982.

I would suggest this is where the similarity ends, and why Morgentaler is not instructive for the legislative approach to Carter. The impact of the immediate invalidation of Criminal Code provisions in Morgentaler was rather limited – a provincial regulatory framework existed to govern access to abortion as a medical service, and in the case of Dr. Henry Morgentaler and his private abortion centres outside of Quebec, it allowed these centres to operate free from criminal prosecution.

In 1976, the Attorney General of Quebec decided not to enforce provisions of the Criminal Code governing abortion, and this became the approach of all subsequent Quebec government until the Morgentaler decision in 1988. As such, the invalidation of the Criminal Code restrictions on abortion occurred with a regulatory framework in place.

The declaration by the SCC that the Criminal Code provisions prohibiting physician-assisted dying are unconstitutional occurred, with the exception of Quebec, in the absence of a regulatory framework to provide this medical service to ‘competent adult person’ as well as the absence of a policy framework informing physicians how to provide this medical service. While the Canadian Medical Association has created a set of guidelines in regard to physician-assisted dying, they have yet to be adopted by the 9 provinces and 3 territorial governments outside of Quebec.

As I have argued, there are real challenges with introducing legislation at the federal, provincial and territorial levels in response to Carter. The SCC in Carter v. Canada and Carter II viewed the legislative response as rather simple – the need to amend the Criminal Code to comply with paragraph 127 of the initial decision. But this is not as straightforward as it appears, and perhaps unlikely to be achieved even with an additional 6 months, as requested by the Trudeau government.

While the SCC overlooked the federal-provincial-territorial dimension to Carter’s legislative response, I would suggest the Trudeau government minimized the impact of its stance on the Senate when it considered 6 months as a sufficient time frame to pass legislation through both houses of Parliament: one that it controls as a majority government, and one that it has limited or no influence over.

The Day the Dialogue Degenerated

 In his evaluation of Sauvé v. Canada (Sauvé II) whereby the SCC invalidated Parliament’s attempt to amend the Canada Elections Act to comply with the 1993 Sauvé decision (Sauvé I), Christopher P. Manfredi concluded in a Osgoode Hall Law Journal article that the Court’s rejection of the legislative response to Sauvé I represents ‘the day the dialogue died’.

In this conclusion, I will pay tribute to Manfredi’s important analysis of Sauvé II by considering whether Carter II represents the day the dialogue degenerated. In this respect, I do not believe that dialogue is dead, but simply that the SCC and the Trudeau government have engaged in a form of dialogue that does not properly respect the institutional roles and capacities of each that are an integral part of the judicialization of politics under the Charter of Rights.

In one important regard, Carter II is an example of Charter dialogue, as the SCC and the Trudeau government returned to debate the constitutional parameters of physician-assisted dying, but in a narrow capacity, as this dialogue centred on the remedy provided by the Court under section 24(1) of the Charter.

However, Carter II represents a decline in Charter dialogue for a number of reasons. As I argued in Carter v. Canada and why the Constitution – and Parliament – would benefit from the occasional use of section 33, the Charter’s override provision, the Trudeau government should have considered using the notwithstanding clause, as it was simply seeking an extension to comply with the section 7 issues raised by the Court in Carter I. This would facilitate Charter dialogue allocated around institutional capacity, as the Trudeau government – and not the SCC – is best positioned to decide on the length of time needed to fashion a legislative response to an issue as complex and federal as Carter I.

For Charter dialogue theory to properly function, the SCC and the Trudeau government must recognize and respect their individual institutional capacity, which neither actor did in Carter II.

By requesting an extension to the Carter remedy, the Trudeau government adopted an unnecessary posture of deference to the Supreme Court of Canada. By questioning the request for 6 months, and using the period between dissolution of a parliament and the summoning of a new parliament by the Governor General as the basis of its decision, the SCC overestimated its capacity to understand the legislative process. For these reasons, Carter II has further undermined Charter dialogue theory as a framework to understand the judicialization of politics.

 

 

 

 

 

Carter v. Canada and why the Constitution – and Parliament – would benefit from the occasional use of section 33, the Charter’s override provision

In Carter v. Canada, the Supreme Court of Canada (SCC) declared the provisions of the Criminal Code that restricted physician-assisted suicide unconstitutional as a violation of life, liberty and security of the person protected under section 7 of the Charter of Rights. As a remedy for this unconstitutional violation, the SCC suspended the force of its decision for one year, which is set to expire on February 6, 2016.

Since the SCC delivered Carter, a number of important political events have transpired.

  • 2015 witnessed the longest election campaign in Canadian history, which resulted in a much-reduced parliamentary calendar to produce a legislative response to Carter v. Canada and comply with the Court’s remedy under section 24(1). This calendar was further complicated by the delayed introduction of the federal budget.
  • The Harper Conservatives were defeated and replaced by the government of Justin Trudeau. Since the Carter decision – and despite the SCC granting a one-year delay –Parliament has sat for a total of 73 days as of February 6, 2015.

Anticipating that it cannot introduce changes to the Criminal Code before the one-year suspension expires, legal counsel for the Trudeau government appeared before the SCC on January 11, 2016 to request a 6-month extension to the SCC’s suspended declaration of unconstitutionality to draft a response to Carter.

This request by the Trudeau government is wrong for a number of reasons:

  • It creates the impression of extreme deference by the new government to all aspects of judicial politics involving the Charter of Right, from the determination of constitutionality by the SCC, to determining what is a reasonable parliamentary timetable to produce a thoughtful legislative response;
  • It overlooks a mechanism within the Charter of Rights that would allow Parliament, and not the SCC, to decide how much time is needed to draft a legislative response to a constitutional decision of Carter’s complexity, and contested nature – section 33, the notwithstanding clause.

Instead of speaking to the Court about an extension, the Trudeau government should have first raised the possibility of using the notwithstanding clause before Parliament.  This extension is simply to ensure that Parliament has enough time to fashion appropriate amendments to the Criminal Code, and Parliament is best positioned to make this determination. The fact that the Liberal government spoke to the Court first, and has yet to speak to Parliament about using the notwithstanding clause, suggests misunderstandings persist about section 33 and what its use means.

What does it mean to use the Legislative Override?

This is perhaps the most misunderstood provision of the Charter of Rights and Freedoms. As Janet Hiebert argued in Contested Constitutionalism, section 33 is a legitimate provision that allowed a political compromise to emerge during the November 1981 First Ministers Conference. This political compromise was instrumental as it permitteded the Trudeau government to satisfy the SCC’s requirement in the Patriation Reference that ‘substantial provincial consent’ was necessary before the Parliament of Canada could request changes to the British North America Act by the Westminster Parliament.

Since the use of the notwithstanding clause by Quebec in response to the invalidation of the sign-law provisions of Bill 101 in Ford v. Quebec, section 33 has been equated with a denial of rights and freedoms. This has become the dominate narrative of the notwithstanding clause and part of the DNA of the Liberal Party of Canada.

This view of the notwithstanding clause is so ingrained in the Liberal Party, that it appeared in the preamble to Bill C-38 An Act respecting certain aspects of legal capacity for marriage for civil purposes, which allowed for same-sex marriage following Reference re Same-Sex Marriage in 2004. In Bill C-38’s preamble, the government of former Prime Minister Paul Martin reviewed the legal and legislative developments surrounding equality rights and the issue of same-sex marriage and stated the following:

WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes;

Using the notwithstanding clause to override a decision by the SCC can result in the denial of a right, as the preamble to Bill C-38 indicates. But it can also suggest something else, and the Trudeau government should ponder this as it awaits the SCC to decide whether to grant an extension on the remedy outlined in Carter.

Using section 33 can preserve the substance of the Court’s decision involving a right, while at the same time allowing a government to challenge the remedy used by the Court under section 24(1) of the Charter.

In suggesting this, I recognize that section 33 of the Charter is restricted to overriding judicial decisions involving section 2 (fundamental freedoms), sections 7-14 (legal rights) and section 15 (equality rights) for a renewable five-year period. It does not apply to section 24(1) of the Charter, which is the provision that allows a competent court to apply a remedy to a statute found unconstitutional that is ‘appropriate and just in the circumstances.’

However, the use of section 33 provides Parliament with the discretion how to frame the legislative resolution authorizing its use. By appearing before the SCC on January 11, 2016, legal counsel for the Trudeau government sought an extension to allow Parliament to fashion an appropriate legislative response. They did not challenge the substance of the Court’s decision in relation to section 7, nor did legal counsel challenge the finding that sections 14 and 241(b) of the Criminal Code were unconstitutional.

Thus, Parliament has the ability to draft a legislative resolution authorizing the use of section 33.  This resolution can agree with the section 7 argument of the SCC while disagreeing with the remedy issued under section 24(1).  Such an approach would preserve the constitutional position of the SCC as the highest court ruling on rights and freedoms, while preserving the prerogative of Parliament as a law making body to determine how long is necessary to comply with the Court on Carter by drafting a suitable legislative response.  This approach to section 33 would require a 4-part legislative resolution:

  • First, indicate that Parliament supports the Court’s position that the challenged Criminal Code provisions are a violation of section 7 of the Charter and must be remedied to comply with the Court’s decision;
  • Second, justify overriding the Court’s decision involving section 7 because Parliament disagrees with the Court that a thoughtful legislative response to an issue such as physician assisted suicide can be properly legislated within the remedy time frame provided in Carter under section 24(1);
  • Third, establish the time frame for an extension that Parliament believes is needed to amend the Criminal Code to comply with Carter;
  • Fourth, include a sunset provision in this legislative resolution that coincides with the time frame for the extension authorized by Parliament. Although section 33 allows Parliament or a provincial legislature to override a judicial decision for a renewable five-year period, there is nothing preventing Parliament from passing a resolution authorizing the use of section 33 for a much shorter period.

What would this use of section 33 say?

Most importantly, it would challenge the narrative that using the notwithstanding clause is simply a legislative response that denies rights or freedoms. Under the suggested resolution authorizing section 33’s use in response to Carter, Parliament agrees with the Court’s jurisprudence and simply takes issue with the ability to implement legislative changes within a one-year period to an issue of Carter’s complexity.

This use of section 33 coincides with the institutional responsibilities accorded to the SCC and Parliament under the Charter of Rights and Freedoms: it preserves the legitimacy of the Court as the highest adjudicator on constitutional issues and it preserves Parliament’s institutional autonomy and capacity as a law-making body charged with implementing legislative responses to judicial declarations of unconstitutionality.

How should Parliament approach using section 33?

Having indicated why Parliament should use section 33 in the context of the Carter remedy, and suggesting that appearing before the SCC to grant an extension is highly problematic and unnecessary, I will conclude with how Parliament should adopt a legislative resolution in regard to the Carter remedy.

The suggestions for the use of section 33 are drawn from the work of Christopher P. Manfredi and Judicial Power and Charter. Manfredi correctly states that the use of section 33 should be a decision of Parliament, and not simply the party in office, and calls for a supra-majority vote to authorize its use. In Judicial Power and Charter, Manfredi suggests ‘A declaration under this subsection becomes effective upon the agreement of three-fifths of the House of Commons and Senate or three-fifths of the provincial legislature, as the case may be’ (page 193).

I would amend this suggested use of section 33 in the following way – authorize its use by the agreement of three-fifths of the members provided that at least two recognized parliamentary parties in the House of Commons support its use.

This is for the following reason – the use of the notwithstanding clause is a serious matter and it must transcend party-political differences. Although majority governments in Parliament rarely exceed 60% of the seats in the House of Commons –in the last 60 years only Diefenbaker (1958), Chretien (1993) and Mulroney (1984) met this mark – the notwithstanding clause must be passed by more than the party in office, but must demonstrate that the collective will of Parliament authorizes its use.

Conclusion

The Supreme Court of Canada has reserved its decision whether to grant the requested extension in Carter. As I have argued, this request is both unnecessary and misplaced.

If the Court grants the extension, the Liberal Party of Canada is indicating how it will approach its relationship with the Supreme Court of Canada, as it relates to the Charter of Rights – one of extreme deference in all matters related to the judicialization of politics.

However, if the Court refuses to grant the extension, the Trudeau government should consider using the notwithstanding clause. This would not be a denial of section 7 but a disagreement with the Court over which actor – Parliament or the SCC – is best positioned to determine the necessary time frame to draft a legislative response to comply with Carter.

The Parliament of Canada and the Charter of Rights: The Need to Establish a Joint Scrutiny Committee on Human Rights

The mandate letter issued to the Leader of the Government in the House of Commons by Prime Minister Trudeau calls for ‘Strengthened Parliamentary committees so that they can better scrutinize legislation.’ The mandate letter elaborates on this, and calls for parliamentary committees to be properly staffed to allow for ‘non-partisan research’ as well as ‘strengthening the role of Parliamentary committee chairs, including elections by secret ballot; and changing the rules so that ministers and parliamentary secretaries no longer have a vote on committees.’

While this mandate letter does not specify which elements of scrutiny need to be strengthened, the letters issued to the Minister of Justice and the Minister of Public Safety and Emergency Preparedness suggest that the failings of the Harper government, in relation to the Charter of Rights and Freedoms, need to be addressed.

For instance, Prime Minister Trudeau has instructed the Minister of Justice to ‘Review our litigation strategy.  This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.’

The Prime Minister has also instructed the Minister of Justice to support the Minister of Public Safety and Emergency Preparedness ‘in his efforts to repeal key elements of Bill C-51, and introduce new legislation that strengthens accountability with respect to national security and better balances collective security with rights and freedoms.’

Although the Trudeau government has focussed on Bill C-51 (Anti-terrorism Act 2015), many bills introduced by the Harper government are of questionable constitutionality, and should be reviewed by the Minister of Justice for potential inconsistencies with the Charter of Rights. Examples of these Acts of Parliament passed by the Harper government include:

  • Bill C-31 (Protecting Canada’s Immigration System Act), that, amongst other things, removes the right of refugees on a ‘safe country list’ determined at the discretion of the Minister of Citizenship and Immigration to appeal their rejection of refugee status to the Immigration and Refugee Board. Provisions of this bill were recently determined to be unconstitutional by the Supreme Court of Canada in  v. Appulonappa.

Reporting Charter Inconsistencies to the House of Commons

There is a statutory responsibility placed on the Minister of Justice under section 4.1.1. of the Department of Justice Act to report any Charter inconsistency to the House of Commons ‘at the first convenient opportunity.’ However, there is nothing that prevents the Minister from reviewing Acts of Parliament passed by a previous government.

During the 2nd session of the 41st Parliament, former Minister of Justice and Attorney General of Canada, Irwin Cotler, introduced a private member’s bill, C-537 (Constitution Compliance Review Act), that called for the Law Clerk and Parliamentary Counsel of the House of Commons to review all bills and report any likely inconsistencies involving the Charter of Rights and the Canadian Bill of Rights.

Under section 6(2) of this bill, these individuals would report inconsistencies to the Speaker of the House of Commons in regard to bills introduced to the House, and to the Speaker of the Senate, when a bill originates in the upper house. Bill C-537 did not proceed past first reading, and there is currently no requirement that bills be assessed for their relationship to the Charter of Rights and Freedoms, or the Canadian Bill of Rights, once they are introduced into Parliament.

There should be parliamentary assessment of Charter consistency once a bill is introduced, but this needs to be in regard to statements of compatibility issued by the Minister of Justice under a reformed reporting duty under section 4.1.1 of the Department of Justice Act. Further, this should be the responsibility of parliamentarians and not officials of the House of Commons and the Senate, as outlined in Bill C-537. The Law Clerk and Parliamentary Counsel should be involved, but in a supporting capacity to parliamentary committees and the elected members.

In several works published in 2007, 2009, 2012, as well as here, I’ve argued alone or with co-authors, that the Minister of Justice’s reporting duty needs to be rethought as it is unworkable as a statement of incompatibility. It should be revised as a fulsome statement of compatibility that the Minister of Justice submits when a government bill is introduced into the House of Commons.

The intention of the Trudeau government to strengthen the scrutiny capacity of parliamentary committees is an excellent objective. However, the government should strengthen rights-based scrutiny at the committee level to prevent a repeat of the approach to the Charter of Rights under the Harper Conservatives that produced bills such as Bill C-2 (Respect for Communities Act), Bill C-24 (Strengthening Canadian Citizenship Act), and Bill C-51 (Anti-terrorism Act 2015).

On their own, statements of compatibility will not solve the practical and constitutional difficulties of the current Charter certification process that requires the Justice Minister to report against government bills by issuing a statement of incompatibility.

For the Minister of Justice’s reporting duty to have an impact on the parliamentary process and to allow for Charter-based scrutiny, changes to Parliament’s committee structure would need to be introduced in tandem with changes to the Minister of Justice’s reporting duty as a statement of compatibility.

What is needed is the establishment of a stand-alone parliamentary committee that, first, receives the statements of compatibility introduced by the Minister of Justice in regard to government bills, secondly, scrutinizes these statements of compatibility, and finally, issues an independent assessment to Parliament whether, in fact, the committee agrees with the report issued by the Minister of Justice that a bill is compatible with the Charter of Rights and Freedoms, or any statutory document such as the Canadian Bill of Rights.

A Joint Scrutiny Committee on Human Rights (JSCHR)

It would be incorrect to suggest that Canada does not have a parliamentary committee that is tasked with the consideration of human rights issues. The Standing Joint Committee of Regulations is required to determine whether any regulation or statutory instrument ‘is not in conformity with the Canadian Charter of Rights and Freedoms or the 1960 Canadian Bill of Rights’.

This committee was established in 1971 and its mandate was expanded in 1982 with the passage of the Charter of Rights. However, this Standing Joint Committee is limited to the review of regulations and does not assess whether government bills are consistent with the Charter of Rights or the Canadian Bill of Rights.

With the exception of New Zealand, which is a unicameral parliament, the practices in the United Kingdom and Australia have been to establish joint parliamentary human rights scrutiny committees. A review of these Westminster approaches to rights-based scrutiny is provided below.

The United Kingdom

In the United Kingdom, the Joint Committee on Human Rights (JCHR) is chaired by an opposition member from the House of Commons, and is composed of 12 members, based on party standings in the Lords and the Commons. As Prime Minister David Cameron heads a majority government, the Conservative Party has a majority of the members on the JCHR, yet a member of the Labour Party chairs it. The current chair of the JCHR is former interim leader of the Labour Party and cabinet minister, Harriet Harmon.

The role of the JCHR is to provide Parliament with an independent assessment of the section 19 statement attached to all government bills, as required by the Human Rights Act 1998 before second reading of a bill. Under section 19 of the Human Rights Act 1998, a minister proposing a bill must inform Parliament whether a bill is compatible with the Human Rights Act, or failing this, whether the minister considers the bill to be incompatible.

Thus, the JCHR conducts an independent review of government bills and assesses whether they are, in fact, compatible with the Human Rights Act 1998. Therefore, Parliament has the opportunity to consider two human rights reports submitted when a government bill is introduced: the ministerial report under section 19 of the Human Rights Act 1998, and the report issued by the JCHR when it completes its assessment of the human rights implications of the same government bill.

Australia

In Australia, the Human Rights (Parliamentary Scrutiny) Act 2011 establishes a 10 member Parliamentary Joint Committee on Human Rights (PJCHR) drawn equally from the House of Representatives and the Senate, and is chaired by a government member from the lower house. Similar to the JCHR, this committee is based on party standings in Parliament, and the government of Prime Minister Malcolm Turnbull, which is a majority coalition of the Liberal and National parties, has a majority of members on the PJCHR.

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires a member introducing a bill to attach a statement of compatibility ‘in the explanatory statement relating to the legislative instrument’ but notes that ‘A statement of compatibility prepared under subsection (1) is not binding on any court or tribunal.’ Further, ‘A failure to comply with this section in relation to a Bill that becomes an Act does not affect the validity, operation or enforcement of the Act or any other provision of a law of the Commonwealth.’

New Zealand

New Zealand is an outlier, as it is a unicameral parliament that does not have a dedicated parliamentary committee that reviews legislation for its consistency with the New Zealand Bill of Rights Act 1990. The New Zealand Bill of Rights does not require a member to attach a statement of compatibility to a bill introduce into the House of Representatives. Instead, the Ministry of Justice and the Crown law Office conduct ‘Bill of Rights Act’ (BORA) vetting on all bills, and post these assessment of compatibility on the Ministry of Justice website.

However, the Attorney General must make a statement of incompatibility to the House of Representatives under section 7 of the New Zealand Bill of Rights 1990, where the Attorney General believes ‘any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.’ All section 7 reports are published on the Ministry of Justice website and on the parliamentary website.

Because New Zealand does not have a dedicated parliamentary committee to review bills from a rights perspective, this is the general responsibility of all Select Committees that have ‘subject matter’ mandates. However, three Select Committees – the Law and Order Select Committee, the Justice and Electoral Select Committee, and finally, the Social Services Select Committee – receive the vast majority of statements of incompatibility issued by the Attorney General under section 7, and act as defacto BORA scrutiny committees

Why a Joint Scrutiny Committee and not a Committee of the House of Commons?

Given the current debate surrounding the Canadian Senate, why is it preferable to have a Charter scrutiny committee constituted as a Joint Committee of both Houses of Parliament and not simply a Standing Committee of the House of Commons?

There are essentially three reasons why a human rights scrutiny committee should not be a committee of the House of Commons: first, the normal composition of the House of Commons as majority government; second, the rules governing the composition of committees under the Standing Orders of the House of Commons; and finally, the intense partisanship of the House of Commons that would undermine the effectiveness of rights-based scrutiny involving government bills.

Committees of the House of Commons are based on party standings. As majority government is the norm in Canada, the United Kingdom and Australia, a committee located in the lower house would be controlled by the government, either through the election of committee chairs or the allocation of committee membership along party lines.

The only mandate that a human rights scrutiny committee would have is to scrutinize government bills and determine their consistency with rights instruments such as the Charter of Rights. This is the principal reason why a rights-based scrutiny committee should not be located in the lower house of parliament, where the vast majority of government bills originate, and where the lower house is dominated by the governing party.

If located in the House of Commons, a standing committee would be under the control of the government, as a member of the governing party would most likely be elected as chair, and a majority of the members would be from the government caucus. The natural inclination of this committee, as constituted, would be to accept ministerial conclusions on compatibility and would not engage in substantive review of the bill in question

This is challenge that any parliamentary committee faces, given that party standings in Parliament determine the composition of committees, and majority government is generally the norm in the Westminster systems under consideration. Indeed, parliamentary committees are only as effective as their composition, and tend to be less effective when a committee is chaired by a government member and composed of a majority from the government caucus.

Scrutiny of Acts and Regulations Committee of the Parliament of Victoria

On two occasions, I have been an invited guest and observed the workings of parliamentary scrutiny committees in Australia. In June 2005, I observed the Standing Committee for the Scrutiny of Bills in the Australian Senate, and in February 2008, I was an invited guest of the Scrutiny of Acts and Regulations Committee (SARC) at the Parliament of Victoria in Melbourne, Australia.

I will confine my remarks to SARC, as Victoria and the Australian Capital Territory are the only Australian jurisdictions that have statutory bills of rights. In Victoria, the statutory instrument is the Victorian Charter of Human Rights and Responsibilities Act 2006 and in the Australian Capital Territory, it is the Human Rights Act 2004.

Under the Victorian Charter, section 28 calls for a reasoned statement of compatibility, as it requires the member introducing a bill to certify it’s consistency with the Victorian Charter and establish ‘how it is compatible.’ Thus, a reasoned statement of compatibility has potentially two parts: the reasons why a bill is considered compatible with rights and freedoms, and secondly, failing this, why the bill is considered a reasonable infringement on protected rights or freedoms.

Similar to section 19 of the UK’s Human Rights Act 1998, a member can also attach a statement of incompatibility when a bill is considered inconsistent with rights and freedoms.

Section 30 of the Victorian Charter places a statutory responsibility on SARC to review all bills and report any inconsistencies to Parliament. As a committee, SARC predates the introduction of the Victorian Charter, and simply had its mandate augmented by the introduction of the Charter in 2006.

SARC is a seven member Joint Committee of the Legislative Assembly and the Legislative Council that is chaired by a member of the government caucus with the party standings during the current parliament: Australian Labour Party (4), Liberal Party (2) and National Party (1). As SARC reflects party standings in Parliament, the Australian Labour majority government in Victoria has a majority of the committee members on SARC.

As a guest of SARC, I observed the functioning of a Joint Committee chaired by a government member where a majority were drawn from the government caucus. What I observed leads me to conclude that the composition of a scrutiny committee, and who chairs the committee, are vital decisions that determine whether a parliamentary committee can properly scrutinize a statement of compatibility issued by a cabinet minister that involves a government bill.

During the SARC meeting in February 2008, the committee reviewed a statement of compatibility issued by a Labour government minister. In this particular statement, the minister did not report any Charter inconsistencies – in effect, the minister contended that the bill did not engage any protected rights, and did not require a justification of consistency based on the reasonable limits clause in section 7 of the Victorian Charter.

In reviewing the ministerial statement of compatibility, SARC divided sharply along party lines – the majority of its members from the Australian Labour Party supported the statement of compatibility submitted by the Labour government minister, and the opposition parties rejected it, arguing that the bill was both a violation of the Victorian Charter and an unreasonable limit under section 7.

Based on this experience, and after a thorough review of all ministerial statements of compatibility issued between 2007 and 2010, I concluded that SARC had rarely, if ever, challenged a ministerial statement of compatibility, and the dialogic promise of this parliamentary bill of rights had yet to be realized.

My broader argument was published in the Australian Journal of Political Science 46:3 (2011), 257-278, and explores the ‘difficult dialogue’ between SARC and the Cabinet that had emerged under the Victorian Charter in the 3-year time period investigated.

What are the lessons to be drawn from SARC as a Joint Committee charged with rights-based scrutiny?

  • A rights-based scrutiny committee is only effective if its members act independently and are freed from the party Whip when assessing statements of compatibility.
  • A member of the opposition must chair a rights-based scrutiny committee, as this provides the ability to call witnesses and conduct hearings that may challenge ministerial certification.
  • A rights-based scrutiny committee must be a Joint Committee because of the advantages that upper houses poses as scrutiny chambers that do not exist in lower houses.

The Value of Upper Houses as Scrutiny Chambers

Upper houses are less partisan and this is for a number of important reasons. In the case of the Australian Senate, which is the only elected upper house under consideration, Senators serve for 6-year terms, whereas members of the House of Representatives have a three-year term. The longer term allows Australian Senators to focus on policy work, as opposed to constituency work, and has produced a more collegial body because of the longer periods between elections.

A longer term is not enough to produce a less-partisan chamber, and there are additional characteristics of upper houses that support the establishment of a Joint Committee in Canada with responsibility for rights-based scrutiny.

Although the House of Lords is composed of appointed and hereditary Peers, it is a less partisan chamber than the House of Commons because of balanced party representation where no party has a majority in the Lords (see current standings here). While the Conservatives are a majority in the House of Commons, the Conservatives in the Lords only number 251 out of 822 members (31%), followed by Labour (213 or 26%) and a crossbench of 179 members (22%).

In the United Kingdom as in Australia, ‘crossbench’ is the term for independent members or those from very small parties such as the Greens in Australia. The Australian Senate is based on the Single-Transferable-Vote system (STV), whereas the House of Representatives uses Preferential Voting (PV). This has produced the following notable characteristic similar to the relationship between the Houses of Parliament in the United Kingdom: a majority party generally controls the lower house, whereas the Australian Senate is rarely composed of a majority of government members.

In the current Australian Senate of 76 members, the Coalition of Liberals and Nationals led by Prime Minister Malcolm Turnbull has 33 members (43%); the Australian Labour Party has 25 Senators (33%) and a crossbench of 18 members (24%). The Green Party is the largest contingent of crossbenchers at 10 Senators.

In truth, a rights-based parliamentary scrutiny committee would be most effective if it were located solely in an upper house, given that the government rarely controls a majority of the members, and a government bill considered incompatible by this committee would have to be responded to in a thoughtful and constructive way because government members are generally in the voting minority.

In Canada, because of the democratic deficit that exists in an unelected Senate, a human rights scrutiny committee cannot be a committee solely of the appointed upper house, and would need to be established as a Joint Scrutiny Committee.

However, given the approach of the Trudeau Liberals to the Senate, while in opposition and in government, the conditions for a less partisan and more independent chamber may exist that would benefit right-based scrutiny by the proposed Joint Scrutiny Committee on Human Rights – first, the decision in January 2014 to remove all Senators from the Liberal caucus, and secondly, the appointment process announced as part of the Minister of Democratic Institutions mandate letter to ‘Bring forward a proposal to create a new, non-partisan, merit-based process to advise the Prime Minister on Senate.’

As of January 2014, Canada now has a large number of crossbenchers in the Senate, and the new appointment process may result in a less partisan body. With the appointment of 22 non-partisan appointments to fill the Senate vacancies, 28 former Liberal Senators and 10 independents, a potential cross bench of 60 Senators in the 105-member chamber is a strong possibility.

Perhaps for the first time in many generations, the Senate can perform its role, independently, as a chamber of sober second thought, which would be to the benefit of rights-based scrutiny by a Joint Committee charged with this responsibility.

Have these Parliamentary Bills of Rights Been Effective?

In Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom (Cambridge University Press, 2015), this question was explored in collaboration with my co-author, Janet Hiebert. We concluded that rights-based scrutiny by the JCHR in the UK and Select Committees in New Zealand had not been particularly effective. In this book, we considered the issues of prisoner disenfranchisement, drug policy, anti-terrorism legislation, and equality for gays and lesbians.

There are a number of reasons why rights-based scrutiny has not been effective in the UK and New Zealand:

  • Ministerial statements on compatibility failed to generate meaningful rights-based scrutiny because of the composition of the scrutiny committee that favoured the party in office. This conclusion held whether the party in office was a majority government, as in the United Kingdom, a minority government (New Zealand), a coalition government (UK and New Zealand) or a minority government supported by ‘supply and confidence’ agreements with minor parties (New Zealand);
  • Even when opposition members on parliamentary scrutiny committees disagreed with ministerial certifications of compatibility, they rarely succeeded in having a report of incompatibility passed because the committee tended to divide along party lines;
  • Scrutiny committees are most effective when chaired by members of the opposition, a member of the governing party that was a former minister, or a backbencher without ministerial ambition;
  • Scrutiny committees gain effectiveness when crossbenchers are appointed, as they mediate between the parties of government and opposition;
  • The limited role provided to the courts under the Human Rights Act 1998, the Victorian Charter of Human Rights and Responsibilities Act 2006, and the New Zealand Bill of Rights Act 1990 was probably the most significant reason why statements of incompatibility rarely saw Parliament refuse to pass a bill into law.

The cost of reporting rights-based inconsistencies to Parliament in Australia and the UK is very low for two important reasons: because of majority governments, Parliament has generally been unable to require that a bill comply with rights and freedoms before it is passed; and secondly, the courts are unable to review Acts of Parliament under any of these parliamentary bills of rights and declare them unconstitutional.

Would a Joint Scrutiny Committee on Human Rights be effective?

In Bonfires of the Liberties: New Labour, Human Rights and the Rule of Law (Oxford University Press 2010), K.D. Ewing discusses the futility of the Human Rights Act 1998, which he attributes to the reality of parliamentary democracy (page 2): ‘This is the problem of centralized power and executive dominance, and the ability of governments with the support of the House of Commons to do pretty much what they want.’

Given that these assessments of parliamentary bills of rights in the United Kingdom, New Zealand, and Australia have, for the most part, been pessimistic, why should we expect that the Canadian experience with a Joint Scrutiny Committee on Human Rights would be any different?

There are a number of reasons why we can expect the Canadian experience to be more successful:

  • Canada can learn from parliamentary bills of rights and design scrutiny procedures that overcome the limitations experienced by the JCHR, SARC, and Select Committees in New Zealand;
  • The Canadian Charter of Rights is different from any of these parliamentary bills of rights. It is supreme law, it is entrenched in the constitution, and Canadian governments, for the most part, have attempted to design legislation that is compatible with the Charter of Rights and Freedoms;
  • The Liberal government of Prime Minister Justin Trudeau has indicated that it will comply with the Charter of Rights in a substantive way, and respect the parameters established by the Supreme Court of Canada;
  • The Canadian courts are provided with important responsibilities under the Charter of Rights that do not exist in the any of the bills of rights under consideration. The Canadian courts can declare Acts of Parliament or the provincial legislatures unconstitutional, can amend the Charter in areas such as equality rights through ‘analogous grounds’ and can fashion remedies that the courts consider ‘appropriate and just in the circumstances’ under section 24(1).
  • In the United Kingdom, select courts can make ‘declarations of incompatibility’ under section 4 when legislation departs from the Human Rights Act 1998. Under section 36 of the Victorian Charter, select courts make ‘declarations of inconsistent interpretation’. However neither of these judicial declarations affects the legality of laws that continue in force despite negative rulings under section 4 of the Human Rights Act 1998 or section 36 of the Victorian Charter.
  • In New Zealand, the role of the courts is even more restricted. Under section 4 of the NZBORA, the courts cannot declare acts inconsistent with rights and freedoms, and under section 6, the courts must ‘prefer’ an interpretation of an act as consistent with the NZBORA.

Reasoned Statements of Compatibility and Strong-form Judicial Review

The ability of the courts in Canada to declare legislation ‘of no force or effect’ under section 52 of the Constitution Act, 1982 is an example of what Mark Tushnet refers to as strong-form judicial review in Weak Courts, Strong Rights (Princeton University Press 2008). The presence of strong-form judicial review is an important reason why the Canadian experience may be more successful than either that of the United Kingdom or New Zealand.

The remedial powers of the Canadian courts under section 24(1) of the Charter of Rights, in combination with a reporting duty that requires the Minister of Justice to explain whether a government bill is compatible with the Charter of Rights, and more importantly, on what basis a government bill is compatible, could result in a more successful example of rights-based scrutiny by a parliamentary committee.

The form that a statement of compatibility takes, therefore, is very important as it can determine whether a parliamentary committee can engage in rights-based scrutiny when a minister submits a report to Parliament on a bill’s consistency with the Charter of Rights.

For instance, the approach to statements of compatibility in the Australian Capital Territory (ACT) is not particularly useful, and does not generate rights-bases scrutiny. Under the ACT’s Human Rights Act 2004, the Attorney General is required under section 37 to issue a compatibility statement on every bill submitted to the Assembly.

The Crime Legislation Amendment Bill 2014 is an example of the standard approach by the ACT Attorney General, where this minister simply states that a bill is compatible without providing a reasoned opinion establishing the basis of compatibility. This approach lacks transparency, as compatibility may be based on the Attorney General’s conclusion that a limitation on a right is demonstrably justified and reasonable. However, by simply stating that a bill is compatible, a parliamentary committee is placed at a serious disadvantage in determining whether, in fact, compatibility has been established.

Instead, the Minister of Justice in Canada should adopt the practice in the United Kingdom (see Terrorist Asset-Freezing (Temporary Provisions Bill) 2010 at paragraphs 36-49) or Victoria, where the responsible minister is required to provide a reasoned report why a government bill is considered compatible with the human rights instrument (see Tobacco (Control of Tobacco Effects on Minors) Bill).

In these reasoned statements of compatibility, the responsible minister discloses when a bill infringes a protected right and why the minister considers the infringement a reasonable limitation, and thus consistent with either the Human Rights Act 1998 or the Victorian Charter.

Requiring the Minister of Justice to provide a disclosure statement modelled after the United Kingdom and Victoria could generate rights-based dialogue at the Joint Scrutiny Committee on Human Rights between the Minister and the committee.

As the test of reasonableness is subjective and contestable, a reasoned statement of compatibility may see the Joint Scrutiny Committee disagree with the report issued by the Minister of Justice and inform Parliament that, in the opinion of the committee, the government bill in question is incompatible with the Charter of Rights and Freedoms.

This compatibility disagreement would occur before the second reading debate on a government bill, and would require the government to provide either a stronger justification for proceeding with a bill that the Joint Scrutiny Committee on Human Rights has indicated is inconsistent with the Charter of Rights, or alternatively, propose amendments to reconcile these rights based inconsistencies noted by the JSCHR.

The Structure of a Joint Scrutiny Committee on Human Rights

As the main task of this committee will be to assess the statements of compatibility issued by the Minister of Justice in regard to government bills, the experience of SARC suggests that a committee chaired by a member of the government and based upon party standings in Parliament will be less than effective as a scrutiny committee.

There is a real danger that, if the Joint Scrutiny Committee is based upon party standings in the Parliament of Canada, it will divide along party lines when assessing statements of compatibility, with government members support the report issued by the Minister of Justice, and the opposition parties rejecting the statement of compatibility. In such a scenario, the opposition members would be outnumbered and out-voted, and the Joint Scrutiny Committee would simply accept the Minister of Justice’s statement of compatibility without proper consideration.

Composition

Appointing a government member as chair creates real challenges for the effectiveness of a scrutiny committee, as the New Zealand experience also demonstrates. As we found in Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom, despite the minority status of many governments under the Mixed Member Proportional (MMP) electoral system in New Zealand, as well as the Standing Orders of the House of Representatives that committee membership should reflect party standings, the government generally had majority control – either on its own or in partnership with its ‘supply and confidence’ partners – of the critical committees that reviewed the section 7 reports under the New Zealand Bill of Rights Act (NZBORA) issued by the Attorney General.

We concluded that rights-based scrutiny in New Zealand proved to be less than effective; despite the Attorney General reporting that government bills appeared inconsistent with the NZBORA on 32 instances between 1990 and 2014.

The limited ability of Select Committees in New Zealand to amend legislation to ensure compliance, once the Attorney General reported inconsistencies to the House of Representatives, occurred for a number of practical parliamentary reasons:

  • Select Committee chairs from the governing caucus tended to have ministerial ambition, and clearly understood that challenging the compatibility of government bills or amending bills to ensure greater compatibility would undermine their career ambitions;
  • Select Committees chaired by a government member that reviewed the vast majority of section 7 reports (Justice and Electoral, Law and Order, and Social Services) were composed of a majority of government members, despite the minority status of most governments under MMP.

As voting occurred along party lines, committee members from the governing party always passed government bills despite the Attorney General issuing a statement of incompatibility under section 7 of the NZBORA. Thus, party-political considerations dominated Select Committees, and the scrutiny mandate was of secondary importance.

  • Parliamentary scrutiny committees are only as effective as their composition. If the governing party constitutes an overall majority on a scrutiny committee or the lower house of Parliament, statements of incompatibility or committee disagreements with ministerial certifications of compatibility will have little or no impact on the bill in question.

Like the Standing Committee on Public Accounts in the Parliament of Canada, a member of the opposition should chair the Joint Scrutiny Committee on Human Rights. The JSCHR should not reflect party standings in Parliament, members of the governing party should be in the minority, and crossbenchers from the Senate should be appointed to ensure that the committee has an independent composition or component.

The structure of the committee is essential to ensure that Parliament receives an independent assessment of Charter compatibility when the Joint Scrutiny Committee reviews a government bill to ensure that it does more than simply endorse the report issued by the Minister of Justice.

The ideal chair of this committee is a former government minister from an opposition party: in effect, an individual that understands the machinery of government that produces government bills, and a person that is independent from the government caucus with an important profile in Parliament.

As I indicated previously, the current chair of the JCHR in the UK is the ideal profile for the chair of the proposed Joint Scrutiny Committee on Human Rights: the current chair of the JCHR, Harriet Harman, is a former Labour minister from the Blair and Brown governments, as well as the former interim Leader of Her Majesty’s Most Loyal Opposition and interim Labour leader.

Staffing the Joint Scrutiny Committee on Human Rights

Creating a Joint Scrutiny Committee is important. Properly staffing the JSCHR is of vital importance to allow it to properly assess the statements of compatibility issued to Parliament by the Minister of Justice.

In the United Kingdom, the JCHR employs a full time legal advisor and an assistant legal advisor to support the committee in scrutinizing government bills and to assess their compatibility with the Human Rights Act 1998. As well, the Scrutiny of Acts and Regulations Committee of the Victorian Parliament appoints a Human Rights Advisor that performs a similar role.

In the research conducted for Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom (Cambridge University Press 2015), one issue we noted was the resistance by departmental officials and government ministers to the vetting of statements of compatibility by scrutiny committees and their legal advisors.

This occurred for a very practical reason – a team of policy officers and legal officials within the bureaucracy developed the statement of compatibility presented by the government minister, whereas a single legal advisor attached to a scrutiny committee generally authored the assessment of the statement of compatibility. In effect, because of the organizational resources devoted to developing the policy and ensuring that it was, in the minister’s opinion compatible, government officials were generally sceptical about the quality and thoroughness of the rights-based scrutiny performed by parliamentary committees supported by a handful of legal advisors.

This highlights the need to properly staff scrutiny committees to overcome bureaucratic and ministerial resistance to parliamentary committees tasked with rights-based scrutiny.

To provide some organizational context to this scepticism, the Human Rights Law Section at the Department of Justice in Ottawa employs 28 legal counsels, and the Legal Service Unit at Health Canada has 41 legal counsels. With the exception of the Department of Foreign Affairs, every government department has, within its organizational structure, a Legal Service Unit that is staffed by lawyers from the Department of Justice roughly the size of Health Canada’s.

Within the House of Commons, the Office of the Law Clerk and Parliamentary Counsel has 7 Parliamentary Counsel (Legal) and 4 Parliamentary Counsel (Legislation). Every parliamentary committee has a Procedures Clerk who relies on the Office of the Law Clerk and Parliamentary Counsel for legal and constitutional advise on bills before it.

For the current Parliament (2015-), there are 25 Standing Committees of the House of Commons that are supported by the 11 members of the Office of the Law Clerk and Parliamentary Counsel.

The potential for departmental and ministerial scepticism toward the work of the proposed Joint Scrutiny Committee on Human Rights exists in the Canadian context. This scepticism could be addressed in several ways:

  • Adopt the practice of the JCHR in the United Kingdom and appoint a full-time legal advisor with an international reputation in the area of public law or public policy. The first legal advisor of the JCHR between 2000 and 2004 was David Feldman, Professor of Law at the University of Cambridge. Professor Feldman has served as a Judge of the Constitutional Court of Bosnia and Herzegovina (2002-10) and as a Vice-President of the Court (2006-09);
  • Alternatively, significantly increase the size of the Office of the Law Clerk and Parliamentary Counsel Office to support the scrutiny activities of the Joint Scrutiny Committee on Human Rights, as well as the work of all parliamentary committees.

Conclusion

Of the countries and bills of rights considered, the Canadian Charter of Rights and Freedoms is the oldest document and the Parliament of Canada is the least reformed institution in respect to human rights and parliamentary scrutiny.

The Trudeau government recognizes the underdeveloped nature of parliamentary scrutiny, and has expressed concerns with the former Harper government’s approach to the Charter of Rights and Freedoms.

A better path can be chartered toward a new relationship between the Canadian Charter of Rights and the Parliament of Canada by adopting four simple, incremental, non-constitutional changes:

  1. Require the Minister of Justice to issue reasoned statements of compatibility that accompany every government bill when it is introduced into Parliament. This would replace the current unworkable statement of incompatibility that is required under section 4.1.1 of the Department of Justice Act;
  1. Create a stand-alone Joint Scrutiny Committee on Human Rights to receive these statements of compatibility;
  1. Construct the Joint Scrutiny Committee on Human Right in a way that allows it to break free from government control and leadership. This would help to ensure that this committee engages in rights-based scrutiny of ministerial certifications under a revamped section 4.1.1 of the Department of Justice Act;
  1. Provide the Joint Scrutiny Committee on Human Rights with sufficient human resources to conduct independent assessments of ministerial statements of compatibility. To be most beneficial, these reports should be available to parliamentarians before a government bill proceeds to second reading.

 

 

 

 

 

 

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.

 

 

The Senate after the Election: How will the NDP and the Liberals react?

Although the Senate is a much-maligned institution, it plays a vital role in our bicameral parliament. The current debate on the Senate, and the stated positions of the opposition parties that seek to form government after October, downplay its centrality to the functioning of any government. I am not referring to the embarrassment that Senators may cause a future government, or how they may undermine confidence in the Prime Minister. Instead, a very practical issue exists that the two opposition parties have downplayed – the need to have a caucus in the upper chamber that ensures the passage of legislation referred to it by the House of Commons.

The Leader of the Government in the Senate is responsible for the management of the government’s legislative agenda, which is principally introduced in the House of Common. This individual coordinates with the Leader of the Opposition in the Senate to ensure the passage of government bills, once received from the House of Commons, and reviewed by the appropriate Senate Committee. In short, the government that resides in the House of Commons requires individual Senators to adopt, support, and drive its legislative agenda until Royal Assent is granted.

Leaving aside the Conservative party, which has a disciplined caucus and a workable Senate majority despite 22 vacancies, how do the stated positions of the Liberals and NDP square with this basic principle of Canadian parliamentary democracy, which is bicameralism?  Who will be the Leader of the Government in the Senate if either of these parties form government after the October election? Will the Senate Liberal Caucus – what the expelled Liberal Senators are now referred to as – be welcomed back into the fold, once Justin Trudeau realizes that being Prime Minister without a Senate majority and a Leader of the Government in the Senate makes passing any bill rather complicated? I wonder whether the Liberal advisors surrounding Justin Trudeau now realize that their practical ‘reform’ of the Senate is misguided as it creates real constitutional consequences for the act of governing.

Of the two opposition parties, the NDP predicament is far more serious. Unlike the Liberal party, which at least has a former Senate caucus that may be reintegrated as a minority party in the Senate, or at the very least, support government bills, the NDP caucus does not have a single Senator. In recent parliaments, it has not been unusual for the Official Opposition to be lead in the Senate by a party other than the one that performs this role in the House of Commons. During the periods in which the Bloc Québécois, the Reform Party and the Canadian Alliance lead the Official Opposition in the House of Commons, the Progressive Conservatives and the Conservative Party performed this role in the Senate.

For a party committed to abolishing the Senate such as the NDP, the absence of senators in its caucus is a perfectly understandable position. For a party that is a government-in-waiting, this is a serious constitutional situation, and requires the NDP to inform Canadians how it would interact with the Senate if it forms the next government.   Would Thomas Mulcair appoint NDP Senators to ensure that the Leader of the Government in the Senate is drawn from his own party? Alternatively, would the NDP ask Conservative senators or Senate Liberals to represent the government in the Upper House? Would an NDP government act as if Parliament is unicameral, and simply expect the Senate to pass its legislative agenda without scrutiny?

The NDP response to this practical issue may simply be that it intends to abolish the Senate, and the absence Senators is a short-term problem. However, altering the Senate is a long-term constitutional project that extends beyond the life of the next Parliament.

If the NDP or the Liberals form government, this would be the first time that a government residing in the House of Commons would not have Senators in its caucus. More significantly, the government would not be lead in the Senate by a member of the same political party. Our system is based on peace, order, and good government. Our parliament is bicameral and both houses advance legislation toward Royal Assent. The length of the current campaign provides ample time for the opposition parties to tell Canadians how they intend to work with the current Senate to pass legislation, as the Liberal and NDP positions create a potential crisis for parliamentary democracy after the October election.