Design And Delivery – Charter Statements
Justice has established efficient processes and protocols to support the development of Charter Statements. The parliamentary process to adopt new bills can vary greatly and this can affect the timeliness of Charter Statement tabling. Content included within statements can support gender-based analyses by providing insights on how rights and freedoms of Canadians may be engaged by a legislative initiative.
Processes And Protocols
Clear and effective processes and protocols have been established to facilitate the drafting and coordination of Charter Statements. Expanding reference documents and templates would further enhance this process.
As section 4.2 of the Department of Justice Act provides limited guidance on the form and content of Charter Statements, HRLS in collaboration with other relevant groups within Justice, has incrementally developed the processes and protocols to support a consistent approach to drafting Charter Statements.
As part of this process, HRLS has developed templates, guidance, and reference documents that have successfully supported legal counsel assigned to draft Charter Statements.
In addition, HRLS has assigned a coordinator of Charter Statements, who is supported by a paralegal, with the responsibility of overseeing and facilitating the various steps and milestones that Charter Statements must successfully complete before they are being tabled in Parliament and released on the website.
Building on these achievements, evaluation findings indicate that it would be helpful to further expand the reference documents and templates used by legal counsel drafting Charter Statements. In particular, there is a variety of reference documents on Charter rights and freedoms that are constantly used when identifying the rights engaged by a proposed bill. Further increasing the range of reference documents and templates that can be systematically used when developing the statements is expected to have a direct impact on the effectiveness and efficiency of the process.
Roles And Responsibilities
Roles and responsibilities for developing Charter Statements are generally well defined and understood. Ensuring that all key stakeholders are aware of their expected contribution requires ongoing attention.
Evaluation findings indicate that the roles and responsibilities of key stakeholders involved in Charter Statements are well defined and understood. This is particularly the case for all those within HRLS, and the legislative drafters from the Legislative Services Branch, who are well aware of the requirement for these statements, and the need to have the process initiated as promptly as possible.
Where some challenges remain is within the LSUs. The extent to which legal counsel working in LSUs engage in legislative initiatives varies greatly. As such, there are some legal counsel who may never participate in a Charter Statement process or may do so sporadically. Yet, early indications to HRLS of possible legislative initiatives greatly support an efficient planning of this process. When legal advice is sought early from HRLS, this automatically signals the potential need for a Charter Statement. However, when no such legal advice is required or sought, and no information is shared on an emerging legislative initiative, this may create more challenges in ensuring that resources are available when the drafting process is initiated, and the Charter Statement must be developed.
During interviews, it was suggested that ongoing training and awareness activities would ensure that new and existing legal counsel in LSUs are sufficiently knowledgeable about the process, and of their role as part of it.
Timeliness of Charter Statements
The legislative process used for adopting new bills in Parliament varies greatly, which can affect the timeliness of Charter Statements. Additional factors external to the HRLS may also contribute to issues related to timeliness.
Experience to date
As noted in the description of Charter Statements, Justice has set an operational goal to table statements around the time the second reading process is initiated, to meaningfully inform the ensuing debate. This is in line with the practice in Australia to have statements of the same nature tabled in parliament.
Charter of Human Rights and Responsibilities Act (Australia)
“28 (2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on the member’s behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving the member’s second reading speech on the Bill.”
During the period covered by the evaluation, 42% of Charter Statements were tabled before or on the day that the second reading process was initiated. As illustrated in Figure 6, Charter Statements that concluded that a proposed bill had no impact on Charter rights and freedoms tended to be tabled more promptly than those statements indicating potential impacts. This reflects the fact that the latter group typically involves more complex legislative initiatives.
Figure 6: Proportion of Charter Statements tabled before the start of the 2nd reading process (n=106)
Figure 6: Proportion of Charter Statements tabled before the start of the 2nd reading process (n=106) – Text version
| Type of Charter Statements Tabled Before 2nd Reading | Percentage |
|---|---|
| No-impact statements tabled before 2nd reading | 53% |
| Potential-impact statements tabled before 2nd reading | 35% |
Looking at those statements tabled after the start of the second reading process, the median delay was 12 days.
Key factors affecting timeliness
Several factors contribute to the timeliness of Charter Statements, including:
- Complexity of the associated bill;
- Extent to which HRLS was engaged in a timely manner;
- The strategy established by Parliament to adopt the bill, recognizing that some bills will pass all three readings the same day, while others will take months to be adopted;
- The tabling process which is outside the control of the Department.
Timeliness of Charter Statements
Findings regarding timeliness of Charter Statements
While most Charter Statements were tabled after the start of the second reading process, evaluation findings indicate that the timeliness of Charter Statements has not been identified as a significant concern.
Looking at the survey of non-parliamentarian stakeholders, 88% of respondents who had used Charter Statements and offered an opinion on their timeliness indicated that they were available in a timely manner some or all of the time.
As for parliamentarians, the analysis of their work (as recorded in the Parliament Hansard) indicates that concerns expressed in both houses of Parliament or during parliamentary proceedings tended to address other aspects of the Charter Statement process, such as whether they should be updated following proposed amendments to the bill, or the level of analysis contained in these statements.
This is not to say that the timeliness of a Charter Statement has not been raised during parliamentary debates. The process around Bill C-39 on MAID provides a good illustration of the challenges that may emerge in aligning a Charter Statement with the parliamentary process (see Figure 7). In that case, House of Commons parliamentary committee work was limited to one session held on the evening of February 14, 2023, one day after the start of the second reading process. The bill completed the second and third reading the following day, February 15, 2023, and the Charter Statement was produced on that same day. As such, the statement was essentially in place for the work done in Senate, which began on February 16th, and ended on March 9, 2023, but it did not inform the work of the House of Commons committee.
Figure 7: Key milestones for Bill C-39
Figure 7: Key milestones for Bill C-39 – Text version
House of Commons Proceedings
- First reading: February 2, 2023
- Second reading (start): February 13, 2023
- Committee hearings: February 14, 2023
- Second reading (end): February 15, 2023
- Third reading: February 15, 2023
- Charter statement: February 15, 2023
“Isn’t the Charter Statement supposed to precede the bill? We should have that Charter Statement now.”
— Member of the parliamentary committee
Gender-based Analysis Plus
While a GBA Plus is not undertaken when developing Charter Statements, the previous assessment conducted as part of the policy development process is considered.
Evaluation findings confirm that Justice does not undertake a GBA Plus when developing Charter Statements. However, HRLS legal counsel may review the GBA Plus that was undertaken as part of the policy development process that led to the applicable Memorandum to Cabinet (which is a mandatory analysis). As this analysis emphasizes how different groups of Canadians could be impacted by a new bill, it may provide, in turn, insights on which groups of Canadians may see their rights and freedoms engaged by the proposed bill.
Some of the stakeholders consulted suggested that it would be helpful for Charter Statements to more readily bridge the information they contain with GBA Plus considerations, as applicable.
Finally, 35% of respondents from the non-parliamentarian stakeholder survey indicated that Charter Statements had been somewhat or very useful in identifying potential GBA Plus implications of proposed government bills (see Figure 8).
Figure 8: How useful Charter Statements are in identifying potential GBA Plus implications of government bills?
Figure 8: How useful Charter Statements are in identifying potential GBA Plus implications of government bills? – Text version
| Usefulness of Charter Statements Identifying Potential GBA Plus Implications | Percentage |
|---|---|
| Never or rarely useful | 17% |
| Somewhat or very useful | 35% |
| Don’t know | 48% |
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