Effectiveness – Charter Statements
Charter Statements have become an established component of the federal legislative process. They are used by members of parliament, non-parliamentarian stakeholders, and the courts. They inform the legislative process and raise awareness of Charter rights and freedoms. Increasing the awareness of Charter Statements would enhance their contribution and use.
The Use of Charter Statements
Charter Statements have established themselves as a component of the parliamentary legislative process. They also serve as reference documents for stakeholders, and for the courts. However, the full extent of their use is unknown.
There are limitations to measuring the extent to which Charter Statements are used. In particular, they may be consulted by a wide range of stakeholders who will not directly reference them in their written documents or when testifying in front of a parliamentary committee. Keeping these limitations in mind, there is evidence that these statements are used in a variety of ways.
Who are using Charter Statements
As they are expected to inform parliamentary proceedings related to proposed bills, the primary audience of Charter Statements are the members of Parliament, and the non-parliamentarian stakeholders who engage in this process.
Evaluation findings indicate that these parliamentarian and non-parliamentarian stakeholders do use Charter Statements, although they rarely make a direct reference to them during parliamentary debates or committees. The analysis of Parliamentary Hansard concerning 45 government bills tabled in Parliament between December 2015 to September 2023 indicates that:
- 64% of these bills had five or fewer mentions of Charter Statements included in their associated speeches and debates in both the House of Commons and the Senate;
- 85% of the mentions of Charter Statements came from members of parliament;
- 10% of the mentions came from representatives of federal departments and agencies appearing in front of parliamentary committees;
- 5% of the mentions came from non-parliamentarian stakeholders appearing in front of parliamentary committees.
Interestingly, and as illustrated in Figure 5 (page 17), approximately half of the respondents from the survey of non-parliamentarian stakeholders who were familiar with Charter Statements used them, without necessarily making direct references to them.
Courts, at all levels and including the Supreme Court of Canada, are also using Charter statements, primarily to describe how new provisions engage Charter rights and freedoms.
Finally, there are a wide range of other users who consult the website where all Charter Statements are made available. Between December 2020 and August 2023, over 1 million visits were registered on that website, with an annual average of more than 300,000 unique visitors.
The Use of Charter Statements
How are Charter Statements used in Parliament?
As previously noted, members of Parliament are the ones who most often make direct references to Charter Statements in their speeches, or during parliamentary committee hearings. Because of the nature of parliamentary debates, comments made in relation to Charter Statements tend to be divided along partisan lines, with opposition parties questioning these statements, and the governing party supporting them.
During the period covered by the evaluation, the proposed changes to the Broadcasting Act dealing with streaming platforms, and the legislative initiatives on MAID triggered more than half of all references to Charter Statements in the parliamentary Hansard.
In the case of the changes to the Broadcasting Act, it is the issue of whether Charter Statements should be updated that became a focal point of debate. Following a proposed amendment to the bill (Bill C-10), there were persistent demands from opposition parties to update the Charter Statement. Ultimately, the federal government tabled an “explanatory document” that contained further details on the analysis included in the original Charter Statement. In addition, the Minister of Justice and the Deputy Minister of Justice, agreed to appear in front of the of parliamentary committee to discuss the Charter Statement and its explanatory document.
Having an explanatory document issued or having the Minister appearing with the Deputy Minister to discuss a Charter Statement, have proven to be exceptional cases.
In the case of MAID, the Charter Statement prepared for Bill C-7 was particularly used during parliamentary discussions on the bill’s proposed exclusion of individuals whose sole medical condition was a mental illness. Whether there was agreement or not with the analysis contained, there is evidence that the statement directly informed these discussions. When the government decided to extend this exclusion through Bill C-39, it is the absence of a Charter Statement during parliamentary hearings that was noted (see Figure 7 on page 21).
As for the debates on other bills, references to Charter Statements have tended to be of a descriptive nature, essentially referencing them to note that a proposed bill is potentially engaging a Charter right or freedom and, in some cases, questioning the analysis they contain.
“There are going to be legal experts who say there isn’t enough in the Charter Statement to say that the bill is completely in conformity with the Charter, and that’s never the case with any Charter Statement. There will be different legal opinions, depending on the weight any particular legal scholar, commentator or lawyer puts on any particular factor. I leave it to the lawyers, legal scholars and other experts to do that weighing in the public sphere.”
— Minister of Justice, Debate on Bill C-10 amending the Broadcasting Act, May 2021
The Use of Charter Statements
Other uses of Charter Statements
Even if they rarely make direct references to them, non-parliamentarian stakeholders use Charter Statements for their own internal analysis. As illustrated in Figure 9, survey respondents who used these statements found them generally useful in determining which provisions of a proposed bill may engage Charter rights and freedoms, the potential impact that may result, and the considerations behind the government’s position that the proposed bill is not inconsistent with these rights.
Along the same lines, representatives from Justice who were consulted indicated that Charter Statements are used for internal processes, such as developing briefing notes, preparing appearances in front of parliamentary committees, responding to questions raised by client departments and agencies.
A review of published court decisions between 2019 and 2023 identified 23 instances where Charter Statements were cited. Courts have largely used the applicable statement as references to describe how new provisions, typically in the Criminal Code, engage Charter rights and freedoms. Courts have been careful to not equate these statements as communicating the ultimate intent of the legislator, recognizing that they are instead provided to inform the legislative debate, and that the new provisions may vary from the original bill upon which the statement is based.
Finally, Charter Statements have found their way into peer-reviewed publications and grey literature addressing Charter rights and freedoms. Here again, they are used either in a descriptive fashion, or their content is challenged by authors offering diverging views.
Figure 9: Of those survey respondents who used Charter Statements, the following percentages found them useful for:
Figure 9: Of those survey respondents who used Charter Statements, the following percentages found them useful for: – Text version
| Categories of Charter Statements Usefulness | Percentage |
|---|---|
| Identifying provisions of government bills that may engage the Charter | 68% |
| Identifying potential effects the provisions may have on the Charter | 62% |
| Explaining considerations that support the constitutionality of government bills | 60% |
Contribution to Openness And Transparency
Charter Statements contribute to the openness and transparency of the legislative process by facilitating the debate on proposed legislative initiatives. Increasing the awareness of these statements would enhance their contribution.
No impact without awareness
Evaluation findings confirm that Charter Statements have become an established component of the federal legislative process. Parliamentarians have made references to them, and most non-parliamentarian stakeholders who knew about these statements and used them have found them helpful.
While statistics on the Charter Statements website indicate a fair amount of ongoing traffic, evaluation findings indicate that having more sustained efforts to make these statements known would be beneficial. As noted during interviews, Justice used to be more proactive in informing the public about new Charter Statements, through posts on social media for instance. At the time of the evaluation, there were no such efforts in place. Simply expecting stakeholders, particularly those outside Parliament, to follow the activities in Parliament, or to systematically consult the dedicated website, is not seen as sufficient.
Current structure and format
Varying views have been expressed on the extent to which the current structure and format of Charter Statements support the achievement of their intended purpose. While some stakeholders are satisfied with the current approach, others are calling for more detailed analyses to be included.
A closer examination of the views offered indicates that they are largely shaped by the initial expectations associated with these documents. For those seeking a formal legal advice, with assessments of legal risks, the current structure and format are necessarily falling short. For those who wish to better understand how Charter rights and freedoms are engaged by a bill, and what key considerations were used by the federal government to conclude that a bill is not inconsistent with the Charter, the current structure and format tend to be satisfactory.
On that basis, evaluation findings indicate that further clarifying the purpose of Charter Statements will, in turn, help to manage expectations about their structure and format.
Should Charter Statements be updated?
As previously noted, a large portion of parliamentary debates related to Charter Statements focused on whether they should be updated when significant amendments are made to a bill. While having Charter Statements that constantly reflect the content of a proposed bill, including its amendments, may be the subject of parliamentary debates, this falls outside Justice’s mandate.
Amendments to a bill that are proposed by Parliament are Parliament’s responsibility. If further information regarding potential effects of amendments is wanted, this could be obtained through Parliamentary resources (e.g. law clerks). Ultimately, Justice’s mandate is not to provide legal support to Parliament, including parliamentary committees, but to support the Minister as part of the Government of Canada.
Contribution to Openness And Transparency
Are Charter Statements informing parliamentary and public debate?
As noted during interviews, Charter Statements are tied to a parliamentary process that is complex, hardly predictable, and entrenched along partisan lines.
While evidence confirms that Charter Statements are informing some of this debate, their impact can only be assessed in this broader context where some stakeholders will systematically question these statements, while others will systematically support them. Put simply, it is challenging to obtain views that are entirely free of vested interests when it comes to assessing the contribution of Charter Statements.
Ultimately, however, in the absence of the Charter Statements requirement, stakeholders would have no alternative means by which they could be systematically advised of the key considerations that informed the Minister of Justice’s view that a bill is not inconsistent with the Charter.
Removing the Charter Statements requirement would only leave the obligation found in section 4.1 of the Department of Justice Act to examine any new bill for its inconsistency with the Charter, a process that is purely internal and protected by solicitor-client privilege.
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