2016 FC 269, 2016 FC 269

[2016] 3 F.C.R. 477 T-2225-12 2016 FC 269 Edgar Schmidt ( Plaintiff ) v. The Attorney General of Canada ( Defendant ) and Canadian Civil Liberties Association ( Intervener ) Indexed as: Schmidt v. Canada ( Attorney General ) Federal Court, Noël J.—Ottawa, September 21, 22, 23 and 24, 2015; March 2, 2016.

Constitutional Law — Examination of bills and regulations — Applicable standard — Action seeking declaration that “more likely than not inconsistent” standard should apply when Minister of Justice, Clerk of the Privy Council assume examination, reporting duties pursuant to Canadian Bill of Rights, s. 3, Department of Justice Act , s. 4.1 , Statutory Instruments Act , ss. 3(2) , 3(3) (examination provisions) when reviewing bills, draft regulations — Minister having to file report to House of Commons if ascertaining that proposed legislation, regulations inconsistent with Canadian Charter of Rights and Freedoms , Bill of Rights — Plaintiff arguing, inter alia, Minister’s

interpretation of examination provisions illegal, contrary to their grammatical, ordinary sense — Defendant arguing, inter alia, “credible argument” standard proper, reflecting Parliament’s intent — Whether standard of compliance mandated by examination provisions “credible argument” standard or “more likely than not inconsistent” standard — “Credible argument” standard appropriate, lawful — Plain meaning of statutes analysed — Statutory duty imposed on Minister to examine bills, regulations clear, non- ambiguous — Wording of provisions at issue not supporting nor including “more likely than not inconsistent” standard — Intent of legislator consistent, properly reflected in ordinary meaning approach — “Credible argument” standard met (i.e. no obligation to report) where argument in favour of not breaching guaranteed rights existing — Argument requiring substantial certainty that inconsistency not existing — Argument also having to be realistic, sound, serious, made in good faith — Structure of Executive, process by which policy developed into legislation, history and evolution of examination standard, realities of politics all weighing heavily towards

interpretation favouring “credible argument” standard — Parliament playing crucial examination role in identifying inconsistencies with guaranteed rights — That duty not to be placed on shoulders of other branches of government, such as Minister of Justice — Bill of Rights, s. 3 , Department of Justice Act, s. 4 having to be viewed through this contextual colouring — Context reflected through words enouncing Minister’s examination, reporting duties, pointing out respect for separation of powers — Constitutional, institutional contexts also supporting “credible argument” standard — Guaranteed consistency with rights attained through concerted efforts of three branches of government — Minister’s reporting duty not replacing scrutiny of Parliament; “credible argument” standard reflecting this — Action dismissed.

Construction of Statutes — Examination, reporting duties of Minister of Justice, Clerk of the Privy Council pursuant to Canadian Bill of Rights, s. 3, Department of Justice Act , s. 4.1 , Statutory Instruments Act , ss. 3(2) , 3(3) (examination provisions) — Whether standard of compliance mandated by examination provisions met by existence of credible, bona fide argument capable of being successfully argued before courts (i.e. “credible argument” standard) or by existence of argument more likely than not inconsistent with guaranteed rights (i.e. “more likely than not inconsistent” standard) — Key words in Bill of Rights , s. 3(1) , Department of Justice Act, s. 4.1(1) “ascertain”, “whether”, “are inconsistent” — While French wording in Bill of Rights (“ rechercher ”), Department of Justice Act (“ vérifier ”) slightly different, similar in nature, meaning, objective to “ascertain” — In both Bill of Rights, s. 3(2) , Department of Justice Act, s. 4.1(2) , word “ensure” used to define duty in regards to regulations — Also no discrepancy between vocabulary used in equivalent French versions — Both French versions using “ vérifier ” as equivalent of “ensure” — Clear “ vérifier ” proper intended meaning for “ensure”, not ”ascertain” — However, “vérifier” much weaker expression than “ensure”, implying less certainty of result — “ Vérifier ” thus weakening notion of certainty found within “ensure” — “Ensure” calling for certainty of result, “ascertain” calling for searching review resulting in conclusion — Both calling for certainty to be achieved, for result to be obtained — Plain language of Bill of Rights, s. 3(1), Department of Justice Act, s. 4.1(1) not supporting “more likely than not inconsistent” standard — Vocabulary, duties created in Statutory Instruments Act, s. 3 consistent with Bill of Rights, Department of Justice Act — Expression “does not trespass unduly” (“ n’empiète pas indûment ”) in Statutory Instruments Act, s. 3(2)(

c) confirming notion of certainty in “ensure” diluted — Intent of legislator consistent, properly reflected in ordinary meaning approach — Guarantee within expression “ensure” always mitigated. This was an action seeking a declaration that the “more likely than not inconsistent” standard should apply when the Minister of Justice and the Clerk of the Privy Council assume their examination and reporting duties pursuant to

section 3 of the Canadian Bill of Rights ( Bill of Rights ),

section 4.1 of the Department of Justice Act , and subsections 3(2) and 3(3) of the Statutory Instruments Act (the examination provisions) when reviewing bills and draft regulations. Pursuant to these provisions, the Minister must ascertain whether proposed legislation and regulations are inconsistent with the Canadian Charter of Rights and Freedoms and the Bill of Rights . If the Minister ascertains that an inconsistency with guaranteed rights exists, the Minister must file a report to the House of Commons. The plaintiff argued, inter alia , that the Minister’s

interpretation of the examination provisions is illegal; that the departmental

interpretation of the examination provisions is contrary to their grammatical and ordinary sense; is inconsistent with their entire context; frustrates the purposes of the provisions instead of fostering them; does not fit with the scheme of the relevant legislation; and does not respect the requirements of the rule of law.

In response, the defendant argued, inter alia , that the House of Commons has never expressed dissatisfaction with the application of the “credible argument” threshold; the “credible argument” standard is proper as it allows the Executive to propose policy development, even proposals that may attract legal risk short of clear unconstitutionality; and the “credible argument” standard reflects Parliament’s intent to allow each branch of government to perform its appropriate role in ensuring guaranteed rights are respected.

At issue was whether the standard of compliance mandated by the examination provisions is met by the existence of: (1) an argument that is credible, bona fide , and capable of being successfully argued before the courts, known as the “credible argument” standard; or (2) an argument that is more likely than not inconsistent with guaranteed rights, known as the “more likely than not inconsistent” standard. Held , the action should be dismissed. The “credible argument” examination standard used by the Department of Justice in its review of legislation under the examination provisions is appropriate and lawful.

The “more likely than not inconsistent” approach advocated by the plaintiff does not reflect the examination provisions. First, the plain meaning of the statutes was analyzed. The key words in subsections 3(1) of the Bill of Rights and 4.1(1) of the Department of Justice Act creating the duty to ascertain whether the draft legislation and any of its provisions are inconsistent with guaranteed rights are “ascertain”, “whether”, and “are inconsistent”. Examining the meaning of “ascertain” is key to the plain meaning analysis.

In French, the equivalent wording for “ascertain” in the Bill of Rights is “ rechercher ” but in the Department of Justice Act , it is “ vérifier ”. Even if the French wordings are slightly different, the words “ rechercher ” and “ vérifier ” are similar in nature, in meaning, and in objective to “ascertain”. In both versions, the Minister is being asked to verify or search whether or not draft legislation is in conformity with guaranteed rights. Therefore, the Minister is first asked to examine the draft legislation and second, to come to a conclusion, in other words to reach a result.

The duty is neither backward-looking nor forward-looking; it is present-looking only. In subsections 3(2) of the Bill of Rights and 4.1(2) of the Department of Justice Act , both the Bill of Rights and the Department of Justice Act use the word “ensure” to define the duty of the Minister of Justice in regards to regulations. There is also no discrepancy between the vocabulary used in the equivalent French versions of those provisions. Both French versions use “ vérifier ” as the equivalent of “ensure”. This helps guide the

interpretation of subsections 3(1) of the Bill of Rights and 4.1(1) of the Department of Justice Act , discussed above, where multiple terms were used. It is clear that “ vérifier ” is the proper intended meaning for “ensure”, and not “ascertain”. But even though “ vérifier ” is the clear French equivalent to “ensure”, the two expressions differ in their meanings: “ vérifier ” is a much weaker expression than “ensure”. “[ V ] érifier ” implies less certainty of result than “ensure”.

There is thus a dissonance between the meaning of “ensure” and “ vérifier ”, the effect of which is that “ vérifier ” weakens the notion of certainty found within “ensure”. To conclude on the matter of plain meaning, “ensure” calls for certainty of result whereas “ascertain” calls for a searching review resulting in a conclusion. In both cases, “ascertain” and “ensure” call for certainty to be achieved, for a result to be obtained. The statutory obligation imposed on the Minister to examine bills and regulations is clear and non-ambiguous. The plain language analysis does not reveal that an alternate

interpretation other than the plain language is warranted. The process and the content of the Minister’s duty to examine draft legislation and to report if an inconsistency is found is clear following a plain language reading of the examination provisions. The plain language of subsection 3(1) of the Bill of Rights and subsection 4.1(1) of the Department of Justice Act shows that the wordings of these sections do not support nor include a “more likely than not inconsistent” standard.

The French and English words “ascertain”, “ vérifier ”, “ rechercher ”, “ examiner ”, “whether”, “ si ”, “inconsistent”, and “ incompatibilité ” call for a certainty, for a definite result. That is not what the “more likely than not inconsistent” standard requires. The vocabulary used, and the duties created by subsection 3(2) , paragraph 3(2)(

c) and subsection 3(3) of the Statutory Instruments Act , in their plain meaning, are consistent with the analogous sections of the Bill of Rights and of the Department of Justice Act . Turning to the legislator’s intent, the expression “does not trespass unduly” (“ n’empiète pas indûment ”), used at paragraph 3(2) (

c) of the Statutory Instruments Act further confirms that the notion of certainty found within the word “ensure” has been diluted. In every scenario where “ensure” was used, whether through comparisons of equivalent expressions in different statutes, in the correspondent French versions of the provisions, or through historical discussions, the guarantee within the expression “ensure” was always mitigated. The intent of the legislator, as early as the 1960s and through to the 1980s, was consistent and properly reflected in the ordinary meaning approach.

The intent supporting these enactments and subsequent amendments cannot be changed on the basis that a former Minister referred to the verb “ensure” rather than “ascertain” to describe the obligations. Such a conclusion would not reflect the collective intent established over 25 years of legislative discussions. The Minister of Justice is required to examine and analyze any draft legislation, to find any inconsistency, and to conclude in no uncertain terms that the eventual Court challenge will result in a conclusion that the draft legislation will be found in breach of one or many of our Charter rights.

However, the Minister only needs to report that inconsistency if there is no credible argument to be made in favour of justifying that inconsistency. For the “credible argument” standard to be met (i.e. the obligation to report is not triggered), there must exist an argument in favour of not breaching guaranteed rights. This argument in favour of guaranteed rights requires substantial, but not absolute, certainty that an inconsistency does not exist. If a credible argument can be advanced, the examination obligations will be met and thus no report will be made.

Accordingly, if a credible argument that meets the above criteria is brought forward, there cannot be certainty that the legislation is inconsistent with the Charter and the Bill of Rights . A credible argument is an argument of a quality such that the courts could potentially justify the inconsistency pursuant to

section 1 of the Charter. To “ascertain” requires a substantial assessment that can only properly be executed if, in light of the facts at issue, an argument is realistic, sound, serious, and made in good faith. The “credible argument” standard finds its full meaning, impact and recognition in an evolving legal and judicial world. The reporting obligation has never been triggered in regards to a government bill and the probabilities of such a scenario occurring are very low due to the extent of the examination process and to the application of the “credible argument” standard.

Both sections 1 and 33 of the Charter function within the wider constitutional context of the examination provisions: they are formal legal tools but also incidentally promote the enactment of quality legislation. The overall process aims to address the potential breaches to guaranteed rights in a way such that potential breaches to guaranteed rights have been acted upon by the end of the process. At the outset of the process of checks and balances, all that may remain is a good, sound argument to show that sensitive provisions at play are legal and will be interpreted within the parameters of

section 1 of the Charter. The structure of the Executive, the process by which a policy is developed into legislation, the history and evolution of the examination standard within the Department of Justice, and the realities of politics all weigh heavily towards an

interpretation of the examination provisions that favours the “credible argument” standard over the “more likely than not inconsistent” standard.

As to Parliament, it is the final institution that studies bills from the government before they are enacted into laws. Bills undergo adetailed process of review. As such, Parliament plays a crucial examination role in identifying inconsistencies with guaranteed rights. Itis expected to assume its obligations to examine bills and debate issues that may affect guaranteed rights. Parliament must not place itsduties on the shoulders of the other branches, notably on those of the Minister of Justice. Each branch of our democratic system isresponsible for its respective role and should not count on the others to assume its responsibilities.

Section 3 of the Bill of Rights andsection 4 of the Department of Justice Act must be viewed through this contextual colouring. The context within which the examinationprocess and the reporting obligation exist is reflected through the words enouncing these duties. Words such as “ascertain”, “whether”,“there is an inconsistency” with our “guaranteed rights” point to respect for the separation of powers and the responsibilities imposed oneach branch that separation entails. Not only does the plain meaning

interpretation give full credence to the “credible argument”standard, the constitutional and institutional contexts also fully support it. Guaranteed consistency with rights is not the sole purview ofthe Executive and of the Minister, it is an ideal to be strived for collectively and attained through the concerted efforts of the threebranches of government working towards a common goal. Such is the way to ensure our laws are compliant with our guaranteed rights. In conclusion, each institution has its own roles and responsibilities.

Parliament should assume its respective responsibility to review anddebate legislation emanating from the Executive with its own chosen means. The reporting duty of the Minister of Justice, as it stands,cannot and should not replace the scrutiny of Parliament; the “credible argument” standard reflects this. STATUTES AND REGULATIONS CITED

An Act respecting the Department of Justice Act, S.C. 1868, c. 39. Bill C-537, Constitution Compliance Review Act, 41st Parl., 1st Sess., 2013. Bill of Rights 1688 (N.Z.), 1688/2, Art. 9. Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39(1),(2),(3),(4)(a). Canadian Bill of Rights, S.C. 1960, c. 44, s. 3 (as am. by S.C. 1970-71-72, c. 38, s. 29; S.C. 1985, c. 26, s. 105). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 33. Canadian Human Rights Act, R.S.C., 1985, c. H-6. Charter of Human Rights and Responsibilities 2006 (Vic). Department of Justice Act, R.S.C., 1985, c. J-2, ss. 4, 4.1.

Interpretation Act, R.S.C., 1985, c. I-21, ss. 10, 12. Official Languages Act, S.C. 1970-71-72, c. 38, s. 29. Statutory Instruments Act, R.S.C., 1985, c. S-22, s. 3. The Regulations Act, S.C. 1950, c. 50. TREATIES AND OTHER INSTRUMENTS CITED Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221. CASES CITED CONSIDERED: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Boscawen v. Attorney-General, [2009] NZCA 12(NZLII), [2009] 2 N.Z.L.R. 229; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200.

REFERRED TO: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015]1 S.C.R. 331; Schmidt v. Canada (Attorney General), T-2225-12, Noël J., order dated March 11, 2013 (F.C.). AUTHORS CITED Canada. House of Commons. Minutes of Proceedings and Evidence of the Special Committee on Human Rights and FundamentalFreedoms, 24th Parl., 3rd Sess., Issue No. 1 (July 20–29, 1960). Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Agriculture, 30th Parl., 1st Sess.,Issue No. 63 (18 November 1975). Canada.

House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, 33rd Parl.,1st Sess., Issue No. 25 (23 April 1985). Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and legal Affairs on Bill C-182, Statutory Instruments Act, 28th Parl., 3rd Sess., Issue No. 7 (February 16, 1971).

Canada. Parliament. House of Commons Debates , 24th Parl., 3rd Sess., Vol. 7 (1 August 1960) (Hon. Edmund Davie Fulton). Canada. Parliament. House of Commons Debates , 28th Parl., 3rd Sess., Vol. III (January 25, 1971) (Hon. John N. Turner). Canada. Parliament. House of Commons Debates , 33rd Parl., 1st Sess., Vol. 3 (27 March 1985) (Hon. John Crosbie). Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , 33rd Parl., 1st Sess., Issue No. 15 (12 June 1985) (M. Low). Côté, Pierre-André. Interprétation des lois , 4th ed. Montréal: Thémis, 2009. Côté, Pierre-André. The

Interpretation of Legislation in Canada , 3rd ed. Toronto: Carswell, 2000. Hiebert, Janet L. “Parliamentary Engagement with the Charter : Rethinking the Idea of Legislative Rights Review” (2012), 58 S.C.L.R. (2d) 87 . Hogg, Peter. Constitutional Law of Canada , 5th ed. Vol. 2, Scarborough, Ont.: Thomson/Carswell, 2007. McLean, Janet Margaret. Report on Pre-legislative and Reporting Mechanisms Existing in Other Commonwealth Jurisdictions , online: <http://charterdefence.ca/uploads/3/4/5/1/34515720/statement-of-janet-margaret-mclean.pdf>.

Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française , Paris: Le Robert, 1986, “ examiner ”, “ incompatible ”, “ rechercher ”, “ vérifier ”. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Webster’s Ninth New Collegiate Dictionary , Springfield, Mass.: Merriam-Webster, 1986, “ascertain”, “ensure”, “inconsistent”. aCTION seeking a declaration that the “more likely than not inconsistent” standard should apply when the Minister of Justice and the Clerk of the Privy Council assume their examination and reporting duties pursuant to

section 3 of the Canadian Bill of Rights ,

section 4.1 of the Department of Justice Act , and subsections 3(2) and 3(3) of the Statutory Instruments Act when reviewing bills and draft regulations. Action dismissed. APPEARANCES David Yazbeck for plaintiff. Alain Préfontaine , Elizabeth Kikuchi and Sarah Sherhols for defendant. Cara Faith Zwibel for intervener. SOLICITORS OF RECORD Raven, Cameron, Ballantyne & Yazbeck LLP , Ottawa, for plaintiff. Deputy Attorney General of Canada for defendant. Canadian Civil Liberties Association , Toronto, for intervener. TABLE OF CONTENTS Paragraph I. OVERVIEW 1–2 II. INTRODUCTION 3–74 A. Introduction 3–8 B.

Roles and Duties 9–14 C. Process 15–39 Step (1)—Developing a Draft Policy and a Legislative Proposal 16–23 (

a) Legal Risk Management as a Function of the Legal Services Unit 18–21 (

b) The Role of the Human Rights Law

Section 22 (

c) Preparing the Memorandum to Cabinet 23 Step (2)—Drafting the Bill 24 Step (3)—Certification of the Draft Bill or Draft Regulation 25–31 (

a) Certification of Bills 28–30 (

b) Certification of Regulations 31 Step (4)—The Duty to Report 32–37 (

a) Duty to Report Regarding Bills 32–36 (

b) Duty to Report Regarding Regulations 37 Step (5)—Bill is debated in Parliament and Royal Assent 38 Step (6)—Optional—Future Amendments 39

D. Arguments 40–74 Part (1)—Standard of Review 40–43 Part (2)—Justiciability 44 Part (3)—Appropriate Standard Debate and

Summary of the Parties Arguments 45–68 (

a) Plain Meaning 51–54 (

b) Legislator’s Intent 55–60 (

c) Constitutional and Institutional Context 61–68 Part (4)—The Intervener’s Position (Canadian Civil Liberties Association) 69–74 III. HISTORY OF THE PERTINENT STATUTES 75–90 A. Introduction 75–76 B.

Section 3 of the Canadian Bill of Rights 77–83 Part (1)—Bill C-60, 1958—First Draft of the Bill of Rights 78 Part (2)—Bill C-79, July 1960—Second Draft of the Bill of Rights 79–80 Part (3)—Enactment of the Bill of Rights, August 1960 81 Part (4)—Amendment to the Canadian Bill of Rights by S.C. 1970 as a Response to the Official Languages Act 82 Part (5)—Bill of Rights Amended in 1985 83 C.

Section 4.1 of the Department of Justice Act 84–85 D.

Section 3 of the Statutory Instruments Act 86–90 Part (1)—First Examination Procedure in the 1950 Regulations Act 86 Part (2)—Bill C-182’s Goal to Restore Parliamentary Control over the Executive 87 Part (3)—Amendment to the Statutory Instruments Act in 1985 to Ensure Consistency with the Charter 88–90 IV. PRINCIPLES OF STATUTORY

INTERPRETATION 91–104 A. Introduction 91–93 B. Applicable Principles 94–101 Part (1)—Driedger’s Modern

Interpretation 94 Part (2)— Sections 10 and 12 of the

Interpretation Act 95–96 Part (3)—Context and Colouring of the Statutes 97–98 Part (4)—Shared Meaning Rule 99 Part (5)—When a Statute is Almost Identical to Another Statute ( in pari materia ) 100–101 C. Steps for Proceeding to Analysis 102–104 V. ANALYSIS STEP 1—PLAIN MEANING 105–139 A. Introduction 105–110 B. Subsections 3(1) of the Bill of Rights and 4.1(1) of the Department of Justice Act (Bills) 111–124 Part (1)—What the Minister Must Examine 113–115 Part (2)—If the Minister Identifies an Inconsistency She Must Report 116 Part (3)—Observations 117–124 C.

Subsections 3(2) of the Bill of Rights and 4.1(2) of the Department of Justice Act (Exception for Regulations ) 125–127 Part (1)—The Meaning of “ensure” 126–127 D. Subsection 3(2) , paragraph 3(2)(

c) and subsection 3(3) of the Statutory Instruments Act (Regulations) 128–130 E. Conclusion on the Plain Meaning 131–139 VI. ANALYSIS—STEP 2—THE LEGISLATOR’S INTENT 140–173 A. Introduction 140–141 B.

Legislative History 142–160 Part (1)—July 1960—Minister of Justice Fulton ( Bill of Rights ) 142–147 Part (2)—August 1960—Minister of Justice Fulton ( Bill of Rights ) 148–149 Part (3)—January 1971—Minister of Justice Turner ( Statutory Instruments Act ) 150 Part (4)—February 1971—Minister of Justice Turner ( Statutory Instruments Act ) 151–153 Part (5)—March 1985—Minister of Justice Crosbie (Amendments brought after the enactment of the Charter ) 154 Part (6)—April 1985—Minister of Justice Crosbie (Amendments brought after the enactment of the Charter ) 155–157 Part (7)—June 1985—Mr.

Low (Application by the Department of Justice) 158–160 C. Conclusions on the Legislator’s Intent 161–173 Part (1)—Summary 161 Part (2) —The Examination Duty 162–168 Part (3)—The Reporting Duty 169–173 VII. ANALYSIS—STEP 3—CONSEQUENCES OF THE PROPOSED

INTERPRETATION 174–182 A. Defining What Is the Obligation 174–177 B. What the Obligation Does Not Entail 178–182 Paragraph

VIII. ANALYSIS—STEP 4—CONSTITUTIONAL AND INSTITUTIONAL CONTEXT 183–279 A. Introduction 183–186 B.

Section 1—The Judiciary’s Role 187–218 Part (1)—General 187–190 Part (2)—International Comparisons 191–214 (

a) Overview 191–193 (

b) New Zealand 194–200 (

c) United Kingdom 201–204 (

d) Australia — Australian Capital Territory (ACT) 205–207 (

e) Australia — Province of Victoria 208–212 (

f) Australia — Commonwealth of Australia (Federal Level) 213–214 Part (3)—Conclusion on the Judiciary’s Role 215–218 C.

Section 2—The Executive’s Role 219–265 Part (1)—Structure of the Executive 219–228 (

a) Cabinet 219–220 (

b) Cabinet Confidences and the Resignation of the Minister of Justice 221–224 (

c) Role of the Minister of Justice 225–228 Part (2)—Process before a Bill is Introduced in the House of Commons 229–238 (

a) Department of Justice 230–233 i. The Legal Services Unit 231 ii. The Human Rights Law

Section 232 iii. The Legal Services Branch 233 (

b) Certification 234 (

c) Memorandum to Cabinet 235 (

d) Leader of the Government in the House of Commons 236 (

e) The Minister of Justice’s Examination and Reporting Duty 237 (

f) A Similar Process is followed for Regulations 238 Part (3)—Conclusions on Process 239–252 (

a) How Lawyers within the Department of Justice Assume the Examination Responsibility 239–240 (

b) History of the Credible Argument Standard 241–247 (

c) The Effect of Applying This Standard 248 (

d) Statistics on the Supreme Court of Canada Jurisprudence 249–252 Part (4)—Conclusions on the Role of the Executive 253–265 D.

Section 3—Parliament’s Role 266–279 Part (1)—Parliamentary Process 269–271 Part (2)—Member of Parliament Irwin Cotler’s Bill C-537 272–273 Part (3)—Parliament’s Role in Examining Draft Legislation 274–276 Part (4)—Conclusions on Colouring in Regards to Parliament’s Role 277–279 IX. CONCLUSION 280–290 A. Outcome and Closing Remarks 280–289 Part (1)—What is the meaning of the legislative text? 281 Part (2)—What did the legislator intend? That is, when the text was enacted, what law did the legislator intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? 282 Part (3)—What are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislator is presumed to respect? 283–289 B. Costs 290 Paragraph The following are the reasons for judgment and judgment rendered in English by Noël J.: I. OVERVIEW [ 1 ] In this simplified action, Mr. Schmidt, the plaintiff, submits that the Minister of Justice and the Clerk of the Privy Council do not correctly assume their examination and reporting duties pursuant to

section 3 of the Canadian Bill of Rights ,

section 4.1 of the Department of Justice Act , and subsections 3(2) and 3(3) of the Statutory Instruments Act when reviewing bills and draft regulations in order to determine whether or not some of their provisions breach guaranteed rights protected by the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms . The Minister of Justice is responsible in regards to bills and some regulations, whereas the Clerk of the Privy Council in collaboration with the Deputy Minister of Justice is responsible for all other draft regulations. [ 2 ] Mr. Schmidt submits that rather than applying the so-called “credible argument” standard, the “more likely than not inconsistent”

standard should apply. For the reasons that follow, I come to a different conclusion. By interpreting the relevant statutes, I find that the “credible argument” standard applies. In reaching that conclusion, I will utilize the following interpretive tools: the plain meaning approach, the legislator’s intent, and the constitutional and institutional contexts. The declarations sought by Mr. Schmidt will not be made as it is the opinion of this Court that the arguments supporting the defendant’s position prevail. II. INTRODUCTION A. Introduction [ 3 ] Pursuant to

section 3 of the Canadian Bill of Rights , S.C. 1960, c. 44 (the Bill of Rights);

section 4.1 of the Department of Justice Act , R.S.C., 1985, c. J-2, and subsections 3(2) and 3(3) of the Statutory Instruments Act , R.S.C., 1985, c. S-22, the Minister of Justice must ascertain whether proposed legislation and regulations are inconsistent with the Canadian Charter of Rights and Freedoms (being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]) (the Charter) and the Canadian Bill of Rights . If the Minister of Justice ascertains that an inconsistency with guaranteed rights does indeed exist, she must file a report to the House of Commons indicating her conclusion. In regards to most regulations, it is the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, who will ascertain whether an inconsistency with guaranteed rights exists.

If indeed they opine that an inconsistency in regards to regulations is present, they will report their conclusion to the regulation-making authority. [ 4 ] The statutory provisions that create these examination and reporting obligations, taken together, are referred to as the “examination provisions”.

The Minister’s duty to examine proposed legislation and the subsequent reporting duty are triggered following the internal draft legislation development processes within the Department of Justice in conjunction with the client (who is the responsible department under the legislation). [ 5 ] The legal issue at hand is whether the standard of compliance mandated by the examination provisions is met by the existence of: 1. An argument that is credible, bona fide , and capable of being successfully argued before the courts, known as the “credible argument” standard; or 2.

An argument that is more likely than not inconsistent with guaranteed rights, known as the “more likely than not inconsistent” standard. [ 6 ] The defendant, the Attorney General of Canada, essentially represents the Minister of Justice who interprets the examination provisions to require the application of the “credible argument” standard in order to ascertain whether the Minister’s duty to file a report is triggered.

The Minister of Justice currently defines the “credible argument” as an argument that is credible, made in good faith, and capable of being successfully argued before the courts. [ 7 ] The plaintiff, Mr. Schmidt, argues that the Minister of Justice’s

interpretation of the examination provisions is illegal. He argues that the correct

interpretation of the examination provisions yields the stricter of the two standards, which he interprets as the “more likely than not inconsistent with guaranteed rights” standard. The plaintiff concludes that the departmental

interpretation of the examination provisions is contrary to their grammatical and ordinary sense; is inconsistent with their entire context; frustrates the purposes of the provisions instead of fostering them; does not fit with the scheme of the relevant legislation; and does not respect the requirements of the rule of law. [ 8 ] In response, the defendant brings forward the following general arguments: the House of Commons has never expressed dissatisfaction with the application of the “credible argument” threshold; Parliament confirmed it wants the Minister to continue to play her political and statutory roles, not become a judge ruling on the validity of proposed legislation; the “credible argument” standard is proper as it allows the Executive to propose policy development, even proposals that may attract legal risk short of clear unconstitutionality; the “credible argument” standard reflects Parliament’s intent to allow each branch of government to perform its appropriate role in ensuring guaranteed rights are respected; and the rule of law functions in symbiosis with other constitutional principles, namely democracy and the separation of powers.

B. Roles and Duties [ 9 ] One difficulty we face in this case lies in situating the legal issue within the wide framework of government. The following graph is a simplified visual representation of the institutional framework relevant to this case: Image

[ 10 ] In order to coherently approach the legal issue at play, I will first describe the three branches of government, namely the Executive, Parliament, and the Judiciary. But beforehand, I would like to insert two caveats: first, I will not pretend to fully describe the inner workings of government in their full complexity; the parties, through the voluminous evidence filed and through cross- examination, have provided a much fuller and more nuanced portrait. Second, the evidence filed has been redacted in order to properly protect solicitor-client privilege.

This Court does not have access to practical examples of the actualization of the examination and reporting duties. As such, the role of the Court is limited to determining the acceptability of the framework created by the examination provisions; the Court’s role does not entail determining the acceptability of any specific actions taken by the Minister of Justice. [ 11 ] For the purposes of the present reasons, I will limit my descriptions to what I consider essential. To do so, I have gleaned information from: 1. The statement of agreed facts submitted by the parties; 2.

The affidavit and cross-examination of Deputy Minister of Justice William Pentney; 3. The affidavit and cross-examination of Principal Analyst with the Parliamentary Information and Research Service of the Library of Parliament of Canada John Stilborn; 4. The affidavit and cross-examination of Corporate counsel with the Department of Justice of Canada Deborah MacNair; 5. The affidavit and cross-examination of Former employee in the Human Rights Law

Section of the Department of Justice of Canada Martin Low; 6. The affidavit and cross-examination of Former Director and General Counsel of the Legal Risk Division and current Director and General Counsel of the Law Practice Management Division at the Department of Justice of Canada Patrick Vézina; and 7. The affidavit and cross-examination of Former Chief Legislative Counsel and Assistant Deputy Minister of the Department of Justice’s Legislative Services Branch John Mark Keyes. [ 12 ] The Executive is responsible for leading the day-to-day operations of the Government of Canada.

It also develops policies that will eventually be crafted into bills. The Executive is composed of members from the elected political party in power. As the legislative branch of government, Parliament debates proposed legislation and eventually votes; determining whether or not bills will become laws. Parliament includes entities such as the House of Commons and the Senate, and their sometimes lesser-known subdivisions such as various committees, the Library of Parliament, and the Office of the Speaker, among others. The Judiciary examines laws for consistency with guaranteed rights and interprets legislation.

The Judiciary is composed of judges and prothonotaries who are appointed by the Executive. [ 13 ] Within the Executive branch, we find Cabinet, the entity that regroups the highest-ranking members of the elected government in power. The Prime Minister appoints Members of Parliament to the head of a certain ministry, making them ministers. For our purposes, only the Minister of Justice is relevant. The Minister of Justice is the Minister responsible for providing legal advice to Cabinet.

The Minister of Justice is focused on advising policy officials across government on how to achieve their policy objectives while respecting the Constitution, the Charter , and other legal rules. The Minister of Justice, as a single person, cannot properly provide legal advice to Cabinet. To perform her duties fully, the Minister of Justice delegates parts of her responsibility to the Department of Justice. Therefore, the Department of Justice is an extension of the Minister of Justice which helps her fulfil her role.

In a sense, the Department of Justice is a law firm that provides legal advice to the other ministries who are the clients. The person who is Minister of Justice in fact holds two major roles at once: that of the Minister of Justice, as the legal counsel to the Executive, and that of the Attorney General, as the federal government’s lawyer in all litigation. The Attorney General represents the legal position of the Executive in all litigation involving the federal government. [ 14 ] The Minister of Justice further delegates her responsibilities.

Notably, the Minister of Justice delegates the responsibility of managing the day-to-day operations of the Department of Justice to the Deputy Minister of Justice. In such capacity, the Deputy Minister of Justice may, for example, issue directives to Department of Justice staff. For the purposes of the case at hand, three of the many subdivisions of the Department of Justice are relevant: the Legal Services Unit, the Human Rights Law Section, and the Legal Services Branch. First, the Legal Services Unit assists various departmental clients in identifying legal issues, notably those involving the Charter .

The Legal Services Unit, under its Legal Risk Management branch (LRM), creates frameworks which other bodies use to discuss and analyze legal risk. Second, the Human Rights Law

Section provides advice when a risk of an inconsistency with guaranteed rights has been identified by the Legal Services Unit. The Human Rights Law

Section advises on risk of infringement and the likelihood of successfully defending a legal challenge. Third, the Legal Services Branch is specialized in drafting legislation and examining draft bills for consistency with guaranteed rights. The plaintiff, Mr. Schmidt, worked as legislative counsel within the Legal Services Branch. C. Process [ 15 ] In order to understand this case, it is important to fully grasp the detailed process by which political objectives become law. The following

section breaks down that process into six major steps. They are: (1) formulating a draft policy and a legislative proposal; (2) drafting the bill; (3) certifying the draft bill; (4) determining if the Minister’s duty to report is triggered; (5) debating and voting on the bill in Parliament, followed by royal assent; and (6) an optional review step if the law is amended in the future. Witnesses have specified at trial that such an optional step has never been put into practice although it exists in theory. Each step is further broken down into its smaller parts and processes.

For the sake of logical coherence, there will be some repetition as to the roles and duties expressed above. The specific process as to regulations is also omitted in the graph below but will be summarily detailed further down. The following graph is a simple representation of the process an idea undergoes to become a law:

Image Step (1)—Developing a Draft Policy and a Legislative Proposal [ 16 ] The process of creating a law begins with an idea, typically from a member of the Executive. This member of the Executive will seek legal advice from the Minister of Justice in order to realize his or her project. The Minister of Justice delegates this responsibility to give legal advice to the Department of Justice.

The member of the Executive mandating the Department of Justice with transforming that idea into a policy and eventually into a draft bill is known as the “departmental client”. [ 17 ] For this step, two previously mentioned sections of the Department of Justice are particularly relevant: the Legal Services Unit and the Human Rights Law Section. In consultation with all relevant parties, a draft policy will be developed which will serve to guide the elaboration of a legislative proposal. A legislative proposal details the parameters the Legal Services Branch must follow to transform the policy into a draft bill.

The legislative proposal is not a draft bill in proper form; it is rather the roadmap detailing what a bill will entail. The departments will consult with each other and revise the policy and the legislative proposal according to all the feedback provided. (

a) Legal Risk Management as a Function of the Legal Services Unit [ 18 ] To develop a draft policy and a legislative proposal, the Legal Services Unit assists various clients in identifying legal issues, notably those involving Charter rights. To do so, the Legal Services Unit develops and applies the concept of Legal Risk Management. [ 19 ] Legal Risk Management is an englobing concept that aims to aggregate different types of legal risk in order to guide decision- making. Other branches of the Department of Justice use the LRM framework to perform their own legal analyses.

The “Risk” portion of “Legal Risk Management” only refers to “risk to government operations”. It does not command the analysis of “risk to the state as a whole” or “risk to the public” because the client is a government department. This reflects the role of the Department of Justice as a “law firm”-type entity: principles such as solicitor-client relationship apply. LRM assesses issues such as the division of powers, administrative law, and guaranteed rights under the Charter and the Bill of Rights .

LRM applies when the Department of Justice is mandated to draft a bill, but no longer applies once the bill is before the Legislative Branch (Parliament) for consideration. The LRM policy does not dictate what Ministers (Members of Cabinet) can and cannot do; it only addresses how Department of Justice counsel advising the Minister of Justice must accomplish their duties. For example, LRM frameworks propose standardized vocabulary and various scales to describe risks. [ 20 ] When a LRM analysis is performed, a policy is analyzed on two fronts in order to ascertain its overall legal risk.

The first front is the risk of a negative outcome following a hypothetical court challenge. The second front is the impact of that negative outcome on government . The “impact” factor considers solely impacts on “government operations”, not on “the state as a whole” nor “in the public interest”. Factors influencing the “impact” analysis are, for example, administrative impact, reputational impact, financial impact, legal impact and so on.

Once the legal risk level has been determined, the legal risk evaluation is communicated to the client and the Legal Services Unit will suggest options to alleviate the legal risks identified. After that, the client department will be in position to decide what it wants to do about that legal risk.

Risk tolerance or risk aversion of the client is thus obviously an important factor. [ 21 ] If the LRM analysis determines a bill to be fully unacceptable or illegal, in this situation, a formal LRM risk evaluation will not be given to the client as the situation will be outside the scope of a formal LRM risk evaluation. Rather, the Legal Services Unit will refuse to evaluate and will instead advise not to follow that course of action.

If the client ministry does not agree and wants to proceed regardless, it is the Legal Services Unit’s policy to “Brief Up”, meaning to raise the issue to upper management. “Briefing Up” is performed under the duty of counsel working for the Legal Services Unit, not under the performance of a LRM Risk Evaluation. Ultimately, it is still up to the client to decide whether it will pursue development of the policy, but the effect of “Briefing Up” is that senior representatives of the Department of Justice will have discussions with senior representatives of the departmental client.

(

b) The Role of the Human Rights Law

Section [ 22 ] The second relevant

section of the Department of Justice at the policy and legislative proposal development stage is the Human Rights Law Section. The Human Rights Law

Section is a specialized

section which deals exclusively with human rights issues and Charter analysis. If the Legal Services Unit identifies potential inconsistencies in regards to guaranteed rights, it will consult the Human Rights Law

Section in order to obtain its specialized advice. (

c) Preparing the Memorandum to Cabinet [ 23 ] Following the multiple cycles of feedback from the relevant parties, the draft policy and the legislative proposal are inserted into a wider document called a Memorandum to Cabinet. A Memorandum to Cabinet is a document addressed to Cabinet from the client Minister, which contains all the information necessary for Cabinet to discuss and debate the merits of following through with an idea. It contains multiple types of opinions: financial, political, legal, etc. Cabinet may approve the memorandum, propose amendments, or refuse to usher the project any further.

Step (2)—Drafting the Bill [ 24 ] Assuming the Memorandum to Cabinet is approved, the instructions within the legislative proposal are forwarded to the Legal Services Branch of the Department of Justice in order to be transformed into a draft bill. Similar steps to the development of a draft policy (Step 1) are repeated in order to draft a bill. Notably, all the parties involved will provide feedback, analyze the project for inconsistencies with guaranteed rights, and consult each other.

If necessary, Cabinet may be asked to approve another Memorandum to Cabinet reflecting various opinions and amendments related to the project. It is important not to confuse the Legal Services Branch, which is primarily tasked with legal drafting, with the Legal Services Unit, whose role is fleshed-out in the preceding section. Their names are in part similar but their roles are not. Ultimately, the Legal Services Branch will obtain input and go back and forth with the client, the Legal Services Unit and the Human Rights Law Section, managing and analyzing risks, until the project is completed.

This step will transform the policy into a draft bill.

Step (3)—Certification of the Draft Bill or Draft Regulation [ 25 ] Once a draft bill or draft regulation has been drafted and is in its final form, it must undergo what is known as “certification”. “Certification” is a procedure by which a draft bill or regulation is checked by senior staff of the Legal Services Branch to confirm that the necessary examinations, such as the system of back and forth between branches of the Department of Justice, have been performed. “Certification”, when completed, communicates to the Legislative Branch (Parliament) that the necessary examinations have been performed when it receives the draft bill or regulation. [ 26 ] A key attribute of “certification” is that the resulting communication confirms to Parliament whether or not the examination has taken place.

It does not communicate what the examination is based on and does not communicate what analyses were performed and considered in order to reach the conclusion that the draft bill could indeed be certified. [ 27 ] The individual tasked with signing-off on the certification process does not communicate the reasons of his decision to certify or not to anyone but the Minister of Justice. The examination provisions do not require any other entity except for the Minister of Justice to consider the outcome of the assessment. The process of certification is different for draft bills than for draft regulations.

The following sections outline the differences in both processes. (

a) Certification of Bills [ 28 ] First, in regards to the certification of bills, a “legislative drafting counsel” or “drafter”, working in the Legal Services Branch, provides a memo containing an analysis as to the consistency with guaranteed rights of the draft provisions to the Chief Legislative Counsel. [ 29 ] Second, the Chief Legislative Counsel is the head of the Legal Services Branch.

The role of the Chief Legislative Counsel emanates from the Minister of Justice delegating her responsibility as Chief Law Officer of the Crown to certify draft bills to the Deputy Minister of Justice, who in turn delegates this responsibility to the Chief Legislative Counsel.

The task of the Chief Legislative Counsel, once he or she receives the memo containing the opinion of the drafter, is to certify that the proposed legislation has been properly reviewed for consistency with guaranteed rights. [ 30 ] Third, at this point, it is important to specify that the certification process, which is a specific step in the life of a draft bill, is not the same thing as the risk assessment process, which happens before certification, as the policy and drafting processes are ongoing.

The risk assessment, contrary to certification, is a more fluid and general concept part of the Legal Risk Management framework. Legal Risk Management and risk assessments are performed within the Department of Justice, whereas certification is a duty of the Minister of Justice herself (of which she has delegated the performance to the Chief Legislative Counsel). Certification reflects a statutory obligation of the Minister of Justice to inform the Legislative Branch (Parliament) of the finality of the certification process.

It is a separate and distinct obligation from the Minister of Justice’s duty to counsel Cabinet. (

b) Certification of Regulations [ 31 ] As for the certification of regulations, a drafter (i.e. legislative drafting counsel) within the Legal Services Branch certifies that a draft regulation has been examined. This process, for regulations, is known as “blue-stamping”; regulations do not require the approval of the Chief Legislative Counsel. Proposed regulations are generally pre-published in the Canada Gazette before they are presented to the regulation-making authority for adoption.

The purpose of pre-publication is to give members of the public who are interested in reviewing draft regulations an opportunity to do so. As is the case with counsel from the Legislative Services Branch who draft bills, counsel who draft regulations will also consult other departments such as the Human Rights Law Section. Furthermore, once regulations are enacted, the Standing Joint Committee for the Scrutiny of Regulations may review them. A “joint” committee is composed of members from both the House of Commons and the Senate.

Step (4)—The Duty to Report (

a) Duty to Report Regarding Bills [ 32 ] After a draft bill has been certified, it is forwarded to the Leader of the Government in the House of Commons. If he or she determines that the proposed legislation meets Cabinet’s requirements, the draft bill will be tabled, meaning introduced, into the House of Commons. Once the draft bill is tabled in the House of Commons, which is part of the Legislative Branch (Parliament), the draft bill is no longer a “draft bill”, but rather simply a “bill”. [ 33 ] Tabling the draft bill triggers the Minister of Justice’s personal duty to report to Parliament.

The duty to report, as per the examination provisions, calls for the Minister of Justice herself to ascertain whether the tabled bill is inconsistent with guaranteed rights. Contrary to certification, the duty to report of the Minister of Justice cannot be delegated; it is a personal duty of the Minister of Justice. The duty to report to Parliament is statutory and fulfilled by the Minister of Justice in her capacity as a member of the Executive.

Parliament benefits from a report but is not the client of the Minister of Justice. [ 34 ] If the Minister of Justice ascertains that a bill is inconsistent with guaranteed rights, she must table a report in the House of Commons stating her conclusion. In order to reach a conclusion, the Minister of Justice considers multiple factors, notably those of political and legal nature. The analysis and outcome of the opinion provided by a legal drafter to the Chief Legislative Counsel during the certification process most likely influences whether the reporting obligation is triggered or not.

Yet, it is but one factor among others the Minister of Justice will consider when ascertaining whether the bill is inconsistent with guaranteed rights or not. The Minister is not bound by any opinion held by other parties. [ 35 ] If the Minister does indeed table a report, the report will not be legal advice to Parliament but rather a simple communication warranted by statute. The content of such a report would be precise, narrow, and would bluntly state that the Minister of Justice has ascertained that some provisions are inconsistent with guaranteed rights.

The examination provisions do not oblige the Minister of Justice to provide context or content to the expression of her opinion as to whether the bill is inconsistent with guaranteed rights or not. Put simply, the examination provisions do not ask for a substantial report; they simply ask for a report on the existence of an inconsistency. That question is answerable with yes or no. [ 36 ] It is worth noting that the mechanism of the duty to report is not the only way by which the expertise of the Department of Justice may be disseminated.

If called upon to do so, during Parliament’s review of the proposed legislation, the Department of Justice will appear, through representatives, in committees and present other types of opinions which are more substantial. The Department of Justice may also be called upon to comment on any amendments being discussed. If indeed Cabinet intends to amend the bill, it will be reviewed internally by the different units of the Department of Justice. (

b) Duty to Report Regarding Regulations [ 37 ] In regards to regulations, following certification by a legal drafter (blue-stamping), it is the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, who will ascertain whether an inconsistency with guaranteed rights exists. If indeed they opine that an inconsistency is present, they will report their conclusion to the regulation-making authority. The considerations linked to the content and trigger point of the duty to report in regards to regulations are otherwise the same as with bills.

Step (5)—Bill is debated in Parliament and Royal Assent [ 38 ] The penultimate step in the life of a bill, once tabled into Parliament, is to be scrutinized, debated, and voted upon by both the House of Commons and the Senate. Typically, a bill will undergo three readings in the House of Commons, may be referred to a committee for in depth analysis, be amended, and finally voted on. These steps will be repeated as necessary in the Senate.

If the Senate proposes amendments, the bill will be sent back to the House of Commons and the process will begin anew until both Chambers vote yes on an identical version of the bill. Ultimately, the bill will receive the Head of State’s royal assent, also known as the Governor’s General approval (representing the Queen), and become law. Step (6)—Optional—Future Amendments [ 39 ] Deputy Minister of Justice William Pentney, during cross-examination, specified that the LRM risk assessment process might continue if amendments are proposed when the bill is before the Legislative Branch (Parliament).

To date, the certification process has never been repeated when amendments to a bill have been proposed. However, Deputy Minister Pentney, again in cross-examination, has indicated that the Department of Justice continues to analyze and determine whether proposed amendments would give rise to an opinion of inconsistency with regard to guaranteed rights. Such a situation has never arisen but Deputy Minister Pentney indicated there have been instances that came close. D.

Arguments Part (1)—Standard of Review [ 40 ] Although this case has not been directly called a judicial review but rather a simplified action, in essence the Court is asked to review the

interpretation the Department of Justice applies to the examination provisions. As such, the Court needs to determine upon which standard to consider the Minister’s

interpretation of the examination provisions. [ 41 ] The plaintiff submits that the standard of review is correctness. The plaintiff supports this argument by suggesting that the examination provisions are interpreted by the Minister not as an adjudicator but as an administrator of the law. The plaintiff further argues that the application of law calls for correctness because Parliament did not intend to give deference to the Minister when interpreting provisions that have to do with fundamental constitutional and institutional issues.

It is the plaintiff’s position that the examination provisions are a core component of the rule of law, and therefore should be interpreted strictly. To not interpret the provisions this way would undermine the rule of law.

[ 42 ] The defendant counters that the Minister’s

interpretation of the examination provisions must be evaluated on the standard of “appropriateness”. “Appropriateness” has never been proposed before as a standard by which a Court may consider review; it appears to be a novel proposition never dealt with by jurisprudence.

The defendant did not thoroughly define “appropriateness”. [ 43 ] This debate between the parties amounts to a non-issue as they are essentially arguing for the same standard, and that is correctness. “Appropriateness”, as summarily proposed by the defendant, is so similar to correctness, which is widely accepted in jurisprudence, that the debate is moot. The correctness standard of review will apply to the present reasons. Part (2)—Justiciability [ 44 ] It is important to note that the Court is only asked to interpret the examination provisions in order to determine what the correct standard is.

The Court is not asked to review specific acts of the Minister of Justice in application of that standard. To do so would be inappropriate, as no specific facts have been provided to the Court and such an analysis would most likely impede ministerial discretion and solicitor-client privilege. Part (3)—Appropriate Standard Debate and

Summary of the Parties Arguments [ 45 ] The plaintiff’s overarching goal is to establish the inadequacy of the current

interpretation by demonstrating that the true purpose of the examination provisions is to ensure the Executive only introduces bills into Parliament which are more likely than not consistent with guaranteed rights. The plaintiff attempts to establish that the current framework in which the examination and reporting duties are actualized permits fundamental breaches to the rule of law and needs to be declared unlawful. [ 46 ] The plaintiff submits that the “credible argument” standard currently applied is inadequate, as consistency with guaranteed rights must be attained.

A credible argument that is not likely to be accepted by the courts is never capable of ensuring compliance with guaranteed rights. When faced with a credible argument and a shortage of jurisprudence against which to weigh the acceptability of that argument, the plaintiff submits that the “credible argument” standard remains inappropriate. [ 47 ] Rather the plaintiff suggests that an argument made in a field of sparse jurisprudence against which to weigh its value should be treated more leniently and thus more easily concluded “more likely than not consistent” with guaranteed rights.

The practical result of this logic is that the zone of acceptability for arguments weighted against the “more likely than not inconsistent” standard expands if there is little material or precedent against which to analyze the proposed legislation, not that the “credible argument” standard is ever acceptable. [ 48 ] The defendant’s overarching goal is to establish that the current

interpretation of the examination provisions is correct by demonstrating that the purpose of the provisions is to deter inconsistent legislation from ever being developed in the first place and that such a mechanism is effective and respects separation of powers. The defendant, through evidence filed, aims to convince the Court that the deterring effect of the examination provisions against inconsistent legislation is effective and respects the roles and responsibilities of each branch of government. As such, the “credible argument” standard is the correct

interpretation of the examination provisions. The defendant argues that the plaintiff’s proposed

interpretation is wrong, as it simply does not reflect what the examination provisions say. Furthermore, Parliament is aware of the standard currently applied and is satisfied with it.

If Parliament wants to change the standard, it can enact legislation doing so; it has not. [ 49 ] The parties’ supporting arguments can generally be divided into three categories: those establishing the plain meaning of the statutes, those establishing the legislator’s intent, and those regarding the effects of the institutional and constitutional contexts colouring the examination provisions. [ 50 ] As the evidence relied upon by the parties appears in a further section, at this stage, I will simply summarize the parties’ contentions. (

a) Plain Meaning [ 51 ] The plaintiff submits that the plain meaning of the expression “to ascertain whether or not a bill is inconsistent with guaranteed rights” calls for the application of the “more likely than not inconsistent with guaranteed rights” standard. [ 52 ] The plaintiff cites many dictionary

definitions that support his idea that the word “ascertain” calls for a flexible result. The plaintiff desires a flexible

interpretation of the examination provisions because he believes the duty to report should be more easily triggered, notably every time the Minister of Justice does not deem the proposed legislation more likely than not consistent with guaranteed rights. The plaintiff argues that the

interpretation, which only triggers the duty to report when the Minister of Justice opines that a proposed provision is no doubt inconsistent, is erroneous. [ 53 ] The plaintiff submits that the common meaning between the French “ vérifier ” and English “ascertain” is flexible and does not imply reaching a conclusion by performing a thorough searching review. Rather, the meaning of “ascertain” could notably be “to discover fact”, “to make certain”, “to discover”, “to find truth or correct information”, and “to find out the true or correct information”. [ 54 ] The defendant counters that the plaintiff limits the

definitions of “ascertain” he cites to the Court as exceptions to other more common

definitions, which rather support the defendant’s

interpretation. The defendant suggests the plaintiff is only citing obscure and arcane meanings of “ascertain” while ignoring the more generally accepted

definitions. (

b) Legislator’s Intent [ 55 ] The plaintiff submits that the wording of the examination provisions key word “ascertain” means that the Minister of Justice must determine whether the proposed legislation is more likely than not inconsistent with guaranteed rights. The plaintiff opines that the French and English evolutions of the word “to ascertain”, over the course of legislative amendments and consolidations of the examination provisions, mean “to make sure”. In order to establish the Legislator’s intent, the plaintiff notably relies on statements given

by different Ministers of Justice over the years. [ 56 ] First, to support this idea, the plaintiff suggests that Minister Fulton’s comments to the Special Committee on Human Rights and Fundamental Rights and Freedoms in 1960 explaining his idea for an examination and reporting mechanism intended to create a context of full information for Parliament to consider. Therefore, if the Minister ascertained any inconsistency with guaranteed rights, the Minister would report to Parliament. [ 57 ] Second, the plaintiff suggests that Minister Turner’s comment in committee in 1971 discussing the statutory bill supports his

interpretation. Notably, the plaintiff suggests that the phrase: “Our duty should be to make sure that before registration it is in accordance with the Canadian Bill of Rights”, does not suggest that a credible argument in favour of consistency is acceptable.

Rather, the plaintiff suggests that this phrase means two things: first, that the legislative intent was that provisions need to be consistent with guaranteed rights, second, that certification and the absence of a report is understood as an endorsement by the Minister of Justice that the provision is consistent with guaranteed rights. [ 58 ] Third, the plaintiff submits that Minister of Justice John Crosbie’s statement to the House of Commons in 1985 reflected that the objective of the examination provisions was to “ensure consistency” and not simply to accept an argument in favour of consistency with guaranteed rights. [ 59 ] In essence, the core of the plaintiff’s argument regarding the plain meaning of the examination provisions is that the words “not inconsistent” really mean “is consistent”.

The plaintiff suggests the meaning of the examination provisions does not support the defendant’s thesis that an argument favouring consistency is sufficient, but rather that a result consistent with guaranteed rights must be achieved. If that clear result in favour of guaranteed rights is not attained, Parliament is dutifully informed that this result has not been reached. To further support his plain meaning analysis, the plaintiff submits that the wording “ascertain whether” is different than “ascertain that”.

The plaintiff submits that when you “ascertain whether”, you are confirming or negating the proposition that is at issue. A proposition must therefore either be consistent with guaranteed rights or not. There is no space for a credible argument in favour of consistency within this strict binary framework. [ 60 ] The defendant counters with his own cornucopia of dictionary

definitions and ministerial statements defending his thesis that “ascertain whether” calls for a searching review to be performed. One answer does not imply its negative opposite; determining that an inconsistency exists does not mean that the proposed legislation is automatically inconsistent. Rather, it is acceptable that there be a risk of inconsistency if such a risk is justifiable for credible reasons. It is the Minister of Justice’s prerogative to aggregate all risk factors, whether they are political or juridical, in order to reach her own conclusion. The Minister of Justice is not bound by the result of a legal analysis performed by Department of Justice staff. (

c) Constitutional and Institutional Context [ 61 ] The plaintiff submits that the defendant erroneously relies on the wider institutional context in which the examination provisions operate in order to establish his position. The plaintiff insists that the five internal documents contained in the statement of agreed facts are sufficient to settle the case in his favour. He argues the documents contained in the statement of agreed facts alone show that the Minister is not correctly interpreting the strict requirements of the examination provisions.

There is no need to look at other wider concepts: the context is narrow and everything the Court needs to fulfil its interpretative role is found within the law and the documents provided. [ 62 ] The plaintiff submits that according to Driedger’s principle of modern

interpretation, the context of the examination provisions is determined by the presence of the different pieces of legislation together making up the examination and reporting duties. In the plaintiff’s view, the wider context in which the examination provisions operate can be gleaned from a grammatical analysis of the English and the French texts. [ 63 ] The plaintiff argues that the examination provisions are divided in three grammatical structures: the infinitive verb “to ascertain”, the conjunction “whether”, and the proposition put at issue by “whether”.

The plaintiff proposes that the grammatical parts are independent from each other and ultimately reflect the notion that proposed legislation is either consistent or not; there is no in- between space for a credible argument standard to operate. The result of the situation examined by “whether” is binary: you have to choose one outcome or the other, consistent or inconsistent.

A negation is always in relation to a positive; if proposed legislation is not consistent with guaranteed rights, it is inconsistent; therefore the duty to report is triggered. [ 64 ] Addressing wider constitutional and institutional arguments, the plaintiff submits that the Executive of the day must respect the democratic process by which the Charter and our institutional frameworks were developed.

The plaintiff suggests that the credible argument standard currently applied by the Department of Justice does not respect the spirit of our constitutional framework as it allows the Executive to introduce legislation that is inconsistent with guaranteed rights. [ 65 ] The plaintiff argues that the rule of law calls for the Minister of Justice to lawfully fulfil her role. By applying the “credible argument” standard, the Minister is flouting the application of her statutory duties and thus breaching the rule of law. Public counsel within the government have a higher duty to objectively and fairly apply laws.

The main duty of the Minister of Justice, and incidentally of public service counsel, is to enhance respect for the Constitution and the law. [ 66 ] The plaintiff proposes that the Courts should only be consulted when state actors acting in good faith enact legislation and a citizen simply disagrees. A court’s purpose is to resolve good faith differences of view, not to discipline an unruly Executive that believes it is acting honestly and reasonably.

If the Minister of Justice does not have an honest and reasonable belief that she is acting in accordance with the law, then she is breaching fundamental principles. Thus, the unacceptable effect of the “credible argument” standard is that it allows the Executive to submit legislation to Parliament which it does not believe more likely than not consistent with guaranteed rights. Accordingly, the “credible argument” standard is a breach of the Executive’s duty and is not lawful. The “credible argument” standard is not consistent with the context of a democratic constitutional state.

The plaintiff argues the Executive should not override or disregard statutes passed by Parliament who delimit the quality of draft legislation. The plaintiff proposes that inconsistent legislation may only be enacted by invoking the notwithstanding clause.

[ 67 ] The defendant counters by proposing that the plaintiff ignores the true constitutional context in which the examination provisions operate. The plaintiff mistakenly assumes the only applicable constitutional principle is the rule of law. Rather, the defendant proposes the rule of law is in fact nuanced by other constitutional principles, namely democracy and separation of powers. Each branch has its constitutionally defined role to play.

The defendant argues the plaintiff conflates the duty of the Minister of Justice to be legal counsel to the Executive with the Minister’s statutory duty to report to Parliament. The Minister of Justice is the legal advisor to Cabinet and not to Parliament. Yes, she is mandated by the examination provisions to inform Parliament if she ascertains that an inconsistency with guaranteed rights exists, but her duty to Parliament does not extend to providing it with her legal advice.

Parliament has its own mechanisms and resources which allow it to form its own opinion in regards to inconsistencies and in regards to resolving them. The defendant suggests that the constitutional context in which the examination provisions operate clearly shows that the Minister of Justice’s duty to examine and report is meant to prevent inconsistent legislation from ever even being proposed to Parliament in the first place.

The examination provisions, in their proper constitutional and institutional context, currently operate efficiently as structural and political deterrents against inconsistent draft legislation. [ 68 ] The plaintiff responds that the fact that Parliament has other tools to study a bill does not mean Parliament should disregard the importance of the Minister of Justice’s obligation to examine and report. The plaintiff argues that the obligation to examine and report of the Minister of Justice is intended to support the other tools Parliament has at its disposal.

The Minister’s report, or lack thereof, is part of Parliament’s toolbox in assessing bills, as are debates, discussions and experts in committee. Parliament is not bound by the Minister’s opinion, but the information is for Parliament. Parliament, following that information, can use its resources to obtain more information. The plaintiff submits that regardless of all the other resources Parliament has to obtain information, the existence of those tools does not excuse the Minister for failing to accomplish her statutory duties as defined by the examination provisions.

Part (4)—The Intervener’s Position (Canadian Civil Liberties Association) [ 69 ] The Canadian Civil Liberties Association (CCLA) opines that the “credible argument” standard is not in the Executive’s interest, not in Parliament’s interest, and not in the public’s interest. The CCLA argues that lawyers within the public service, including the Minister of Justice, have a larger duty than simply to serve the Executive: they must uphold the rule of law. Part of that duty involves protecting citizens against the despotism of officials and providing an objective and balanced

interpretation of the law. There must be a fair inquiry as to what the law truly is, not an unwarranted stretching of the law to fit a client’s wishes. The CCLA submits that the effect of the “credible argument” standard undermines the rule of law by allowing the Executive to introduce laws in Parliament that have very little chances of surviving a challenge in front of the Judiciary. If the possibility of a successful challenge is very strong and the Executive still denies an inconsistency with guaranteed rights, such a situation is the antithesis of respect for the law. The CCLA understands that arguments justifying inconsistencies under

section 1 of the Charter may be broad and that the Minister of Justice cannot be expected to anticipate every possible scenario, but in the CCLA’s view, such a reality does not justify the “credible argument” standard. If every argument is accepted, the reporting requirement is essentially meaningless. [ 70 ] The “credible argument” standard fails to make the issue of whether there is a departure from guaranteed rights a site of democratic debate in Parliament.

The CCLA submits that the examination provisions should be interpreted in a way that facilitates Parliament’s role in engaging in meaningful discussion before legislation is enacted and before court challenges are initiated. [ 71 ] Parliament’s role is to represent the Canadian population through elections.

Section 1 and

section 33 of the Charter effectively reflect this fact as they foster careful debate and scrutiny within Parliament.

Section 1 states that reasonable limits on rights and freedoms guaranteed by the Charter must be “demonstrably justified”, placing the onus of justification on government not only at the stage when a law is challenged in court, but when limitations on rights are created in the law.

Section 33 contemplates that Parliament can and will frankly declare any departures from the Charter. To put it simply, the CCLA proposes that the Charter’s influence goes beyond being a tool to analyze the reasonableness of derogations to rights during litigation but in fact points to broader principles of separation of powers that should be construed as applying to the pre-legislative process. [ 72 ] Parliament’s responsibilities include determining whether limits placed on rights by legislation can be demonstrably justified. To properly fulfil this role, Parliament needs information.

The CCLA agrees that the internal processes within the Department of Justice to minimize risks are, in theory, effective at mitigating the risk of inconsistent draft legislation being introduced in Parliament. The problem lies not in the process but in the availability of the information confirming that this process has effectively taken place.

Under the current system, Parliament has no way of knowing on which credible argument the government will rely should a challenge arise due to solicitor- client privilege and the principle of cabinet confidences. [ 73 ] Furthermore, not all potentially inconsistent legislation is challenged in court; allowing such legislation to be enacted by Parliament, without it being informed of its dubious nature, opens the window to the public being ruled by laws inconsistent with guaranteed rights. Yes, the courts have their role to play, but the current system effectively skips Parliament’s role in reviewing legislation.

The CCLA, citing Professor Janet L. Hiebert in her

article “Parliamentary Engagement with the Charter : Rethinking the Idea of Legislative Rights Review” (2012), 58 S.C.L.R. (2d) 87 , proposes that the absence of a ministerial report on inconsistencies with guaranteed rights has dissuaded Parliament from participating in assessing the compatibility of proposed legislation. The CCLA also brings up the issue of imposing on the wider public the responsibility of contesting legislation it deems potentially inconsistent with guaranteed rights.

The CCLA does not believe any examination or reporting mechanism would eliminate constitutional litigation between individuals and the government; but a standard providing Parliament with access to more information about the vetting process would create more opportunities for Parliament to address concerns and reduce the amount of public challenges necessary. [ 74 ] As described i

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