Shortcomings the bill addresses
The bill appears to address at least two shortcomings in the examinations bills are currently receiving:
- First, originally all bills, including private members' bills, were examined under section 3 of the Canadian Bill of Rights. In 1985 the scope of examination was reduced to government bills. What this has opened the door to is the possibility of introducing contentious bills that may be more likely to contravene the Bill of Rights or the Charter by way of a private member's bill (which will not be examined under the current provisions) with the government choosing to support the bill. This is a real concern, not just theoretical. On May 8, 2013, The Globe and Mail reported that the federal Conservatives had pushed through more private member’s bills than any other government in Canadian history, and that they were boasting about it. The most recent example that may be a use of this technique is MP Russ Hiebert’s private member’s Bill C-377 regarding disclosure of union information. Cotler's bill would require Parliamentary counsel to examine all bills.
- Second, from the documents disclosed by the Attorney General in the federal court action that I have brought related to this issue and from statements made in Parliament, it is clear that when the Minister of Justice and Deputy Minister do the statutorily-required examinations of proposed legislation, they are asking only whether there is some argument to be made in favour of consistency with the Bill of Rights and the Charter rather than whether there are any provisions likely to be non-compliant or inconsistent. (See the home page of this site for the provisions and generally for more background.) Such an examination is clearly deficient for the purposes of a democratic legislature that wishes to enact laws that are constitutionally sound. Since the Minister apparently cannot be relied upon to provide the needed information, Cotler's bill proposes that Parliamentary counsel conduct an additional examination to the appropriate standard.
It will be interesting to see how the government responds to Cotler's bill. It addresses clear shortcomings in the current practice and for this it is worthy of serious consideration.
I have two significant reservations, however.
First, the executive branch needs to know its democratic duties. One of the main responsibilities of the executive branch of the state, including ministers and public servants, is to execute or carry out the decisions taken by the legislative branch (Parliament) in accordance with the best interpretation of those decisions. Citizens, and Parliamentarians as the citizens’ representatives, need to be able to rely on the executive branch to honour the decisions taken by Parliament and to implement them faithfully. If the executive wishes the state to take some other decision than the ones it has taken and expressed in legislation, it can propose the matter by introducing a bill to Parliament to amend or repeal that existing legislation.
At least as important is the responsibility of the executive branch to comply with the constitution. The Charter is a key part of Canada's democratic constitutional framework that sets out some limits to state action. One way of looking at the Charter is as part of the bargain between citizen and state: the Charter setting out certain rights and freedoms that the citizens reserve to themselves — ones the state may not infringe in its law-making. Entirely apart from any examinations of proposed legislation, the state has a duty to its citizens to respect the limits on state action that the Charter sets out. In my view, this means that no minister proposing a bill or regulation-maker proposing to make a regulation should be proposing anything that they themselves believe to be contrary to the Bill of Rights or the Charter. Only if a bill expressly states that it is being enacted “notwithstanding” the Bill of Rights or the Charter (the power to do so existing within the Bill of Rights and the Charter), is it legitimate to propose a bill that the Minister proposing it believes to be inconsistent with the Bill of Rights or the Charter.
Second, parliamentary officers are not always the solution; they do not always do better than members of the executive branch.
When I was looking for ways to deal with the whole issue of the performance or non-performance by the Minister and Deputy Minister of their obligations under the existing examination provisions, I thought it might help the Deputy Minister and his advisors to rethink their interpretation of these provisions (as requiring only some argument in favour of constitutionality) if I were to have an opinion from an independent expert in statutory interpretation on the question. The Public Servants Disclosure Protection Act permits someone who is contemplating a disclosure of wrongdoing to ask the Public Sector Integrity Commissioner, an officer of Parliament, to fund some legal assistance/advice for the public servant. I wrote to the Commissioner asking for such assistance in obtaining such an independent opinion.
The request was refused, partly because the Commissioner misunderstood what I considered to be the problem with the current examinations. His reply noted that I had not mentioned a single case where Justice counsel were being pressured to change their opinions -- a response that shows he did not understand that the issue is not about individual opinions but about the standard of examination, i.e. the question that legal counsel are asking themselves when they do the examination. It was also refused because the Commissioner thought that it was not likely that he would commence an investigation as a result of the contemplated disclosure.
I suggest that any commissioner who understood his role as including some elements of executive branch oversight and as being oriented to the interests of Parliament would have seen the importance of this issue, given that it concerns what information Parliament will be given about proposed legislation (will it only be informed of Charter problems presented by a bill when there is no argument left to be made in favour of Charter consistency?). Others certainly have seen the importance of the issue:
- Mr. Cotler has introduced Bill C-537 and previously asked numerous questions about the examinations bills had received.
- Committee member Françoise Boivin moved that the House of Commons Standing Committee on Justice and Human Rights study the examination process. Five MPs voted in favour of this motion and one member — the deciding vote — has stated that he was very sympathetic to the concern but voted against the motion partly because of pressure from the executive.
- MP Pat Martin raised the conduct of the Minister of Justice in regard to these examinations as a question of privilege. The substance of this question remains outstanding.
All of these indicate that at least some Parliamentarians considers this to be an important matter. The failure of the Integrity Commissioner to act on this matter reveals that relying on someone outside the Department of Justice to provide advice may not accomplish the intended result, as even parliamentary officers can defer inappropriately to the executive or fail to see what is important to uphold democratic interests.
When the executive branch refuses to carry out the decisions taken by Parliament and expressed in legislation and instead adopts an interpretation that disregards the ordinary meaning of Parliament's enactments, an interpretation that frustrates Parliament's evident purpose in making them, we have a democratic problem. (This is what I believe to be the case with regard to the examination provisions; we will see whether the Federal Court agrees.) When ministers of the state propose laws that they themselves believe are likely, very likely or even almost certainly contrary to the limits on state action that the Charter sets out, we have a democratic problem. When officers of Parliament fail to comprehend that their duties necessarily include holding the executive accountable — one aspect of Parliament’s role —, we have a democratic problem.
I don't think that the answer to these problems can regularly be addressed by having Parliament take over the role of administering its own legislation. This is simply impractical. Rather, the solution lies in executive branch understanding its role as the faithful executor of lawful decisions taken by the legislature and its duty to act within the limits to state action that the Charter sets out when it proposes new enactments to that legislature. And officers of Parliament need to understand they participate in Parliament’s democratic role in holding the executive accountable.
That being said, it is clear that the current examinations do not adequately assist Parliamentarians to do their duty to legislate in accordance with the constitution, and the solution Mr. Cotler’s bill proposes at least highlights their inadequacy and contributes to the debate on what should be done about it.