In Schmidt v. Canada (Attorney General), 2018 FCA 55 (CanLII), the Federal Court of Appeal considered statutory provisions which instruct the Minister of Justice to examine proposed statutes and regulations and ascertain whether they are inconsistent with the Charter. One key provision, s. 4.1 of the Department of Justice Act, provides as follows:
... the Minister shall ... examine ... every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.
The critical issue identified by the Court was how certain the Minister must be. Is the Minister to report to Parliament when it is “more likely than not” that the legislation is inconsistent with the Charter? Or must the Minister conclude that there is “no credible argument” available to support the constitutionality of the legislation? (at para. 59)
This focus on likelihood suggests that the Court has in mind not the Minister’s own conclusion about the constitutionality of the proposed legislation, but rather a (necessarily uncertain) prediction about what the result of a hypothetical court challenge might be. Consider the signficance which the Court assigns to the existence of a merely bona fide argument for constitutionality.
If the Minister of Justice believes that there is a bona fide argument based on the current state of the law that a court will accept that the proposed legislation passes muster—that it is arguably compliant with both the Canadian Bill of Rights and the Charter—she cannot come to the conclusion that the proposed legislation is inconsistent with guaranteed rights. (at para. 66)
If it were the Minister’s own conclusion that were at stake, the mere presence of a bona fide argument could hardly have such a drastic effect. The Minister could, after all, come to a contrary conclusion even in the presence of a bona fide argument. If, on the other hand, the Minister's task is to predict what a court might do, then this passage is at least intelligible. A court might, after all, accept a bona fide argument, even if the argument does not convince the Minister.
Why does the Court see the Minister's task as making a prediction, rather than forming the Minister’s own conclusion on the matter? The policy concern identitied by the Court is to avoid a chilling effect on the development of government legislation. Consitutional law is variable, and the courts can reach unexpected results—even results that explicitly overturn previous decisions (para. 90). Legislation which you expect to be struck down might, after all, be upheld by a court (para. 86).
Put bluntly, the executive is not limited to proposing measures that are certain to be constitutional or likely to be constitutional (para. 87).
If what is at stake is a prediction about how a court will rule, then this makes considerable sense. Some legislative objectives are sufficiently important that it is worth trying to convince a court that the legislation is constitutional, even if you think you are unlikely to succeed. Indeed, when acting as Attorney General in an actual court challenge, you would not expect the government's lawyers to concede a constitutional challenge just because they are unlikely to succeed, so long as some reasonable argument can be made.
Yet what of the Minister’s own conclusion with respect to the constitutionality of the legislation? This will not necessarily conincide with the Minister's prediction of how a court might rule. Consider an extreme case, in which the
Supreme Court would need to reverse itself on a clear precedent in order to uphold the proposed legislation. You are unlikely to think this is a probable result, no matter your own estimation of the strength of your argument. Yet, it is still perfectly possible for you to reach your own conclusion that you do have the better argument—that the court ought to overturn its previous decision. That is, after all, the argument you would be making to the court.
It is equally possible for the Minister to form his or her own conclusion that proposed legislation is unconsitutional, even if there is some bona fide argument that a court might accept. Now, this is not a situation which is likely to arise very often. For one thing, the Minister is intimately involved in the drafting of government legislation. If the Minister has serious concerns about constitutionality, it will often be the case that these can be addressed by modifications to the proposal. Furthermore, the Minister can legitimately be expected to be sympathetic to the importance of the goals to be achieved by the proposed legislation. This will, quite legitimately, mean that the Minister's own application of s. 1 of the Charter will be more likely to justify the legislation than will a court’s. Finally, one can legitimately expect that the Minister will tend to find whatever innovative legal arguments are needed to uphold the legislation to be more plausible than a court ultimately will. So, you would not expect the Minister to conclude very often that proposed legislation is inconsistent with the Charter. Yet it is certainly possible.
So, the question arises: what is the examination requirement interested in? Is it interested in the Minister’s prediction about how a court will resolve a hypothetical case? Or is it interested in the Minister’s own conclusion with respect to the constitutionality of the legislation? In other words, what mischief is s. 4.1 of the Department of Justice Act aimed at?
The Court rightly notes that s. 4.1 is not needed in order to provide parliamentarians wth legal advice about the constitutionality of legislation. After all, such advice is readily available to them through other sources (para. 82 to 84). Yet consider the significance of that observation. If Parliamentarians are capable of analyzing the constitutionality of legislation for which the arguments are evenly balanced, surely they need even less help in cases where no bona fide argument is available, not more help!
What mischief, then, is actually addressed by s. 4.1? Consider, again, the position of a Minister of Justice who has concluded, in the Minister’s best judgment, that proposed legislation is unconstitutional—and yet the government insists on proceeding with it. Such a Minister has an awkward problem to resolve, even in the absence of the examination provisions. Should the Minister resign in protest? Should the Minister respect Cabinet confidentiality (not to mention solicitor-client privilege) and remain silent? Should the Minister respect Cabinet solidarity by voting for the legislation, which the Minister has concluded is unconstitutional?
In the absence of s. 4.1, these would be vexing questions, difficult for the Minister to resolve without breaching conflicting obligations. In the presence of s. 4.1, the proper course of action is clear: a Minister in such a position shall make a report to Parliament. This is, therefore, a mischief which s. 4.1 actually addresses. While the form of s. 4.1 imposes an obligation on the Minister, its function is not to burden the Minister, but rather to relieve the Minister from a situation in which conflicting obligations are otherwise not easily resolved.
These conflicting obligations do not turn on whether the Minister can think of some credible argument that a court might accept. Instead, they arise because of the Minister’s own best judgment that the legislation is unconstitutional. If the Minister forms such a judgment, it is necessarily the case that the Minister considers that accepting contrary arguments—even credible ones—would be a mistake. The Minister’s dilemma arises not because the Minister believes a legal challenge will be lost, but rather because the Minister believes the legislation to be unconstitutional.
If this analysis is correct, then the traditional standard applied by the Minister—no credible argument—is asking the wrong question. Instead, the Minister ought to apply the Minister’s best legal judgment to come to the Minister’s own conclusion with respect to the constitutionality of the legislation. This necessarily requires attention to the decisions of the courts. However, it is the Minister’s own judgment which creates the dilemma which it is the function of the examination provisions to resolve.