Relevance – Charter Statements
Charter Statements align with the federal government’s priorities related to upholding Charter rights and freedoms, and ensuring greater transparency in the manner in which new legislation may engage these rights. While the purpose of Charter Statements is fairly well understood, there is a need for further clarification.
Alignment with Government Priorities
Charter Statements continue to reflect the government’s priority on openness and transparency, and the respect of Charter rights and freedoms.
The first Charter Statement tabled in Parliament on a voluntary basis related to Bill C-14, introduced in April 2016, that dealt with the legal framework to be applied to medical assistance in dying (MAID). In this particular case, the Charter Statement, referred to as a “Statement of Potential Charter Impacts”, was included in a broader reference document that had been prepared on this sensitive issue.
Following this first instance, Charter Statements were tabled upon the discretion of the federal government and its Minister of Justice. The fundamental purpose of amending the Department of Justice Act was to remove the arbitrary nature of this process, therefore adding a predictable component to the legislative process where all key stakeholders could assume that such an analysis would be provided to support the debate on a proposed bill.
Evaluation findings indicate that enhancing awareness on how a proposed bill may engage Charter rights and freedoms remains a government priority, as it raises the profile of Charter rights and freedoms and allows for a better understanding of how government initiatives may proceed in accordance with these rights, including cases where such rights are justifiably restricted.
“Charter Statements are not legal opinions, but they detail where the charter is potentially engaged by a piece of legislation that the government is putting forward. It provides a window into how government decisions are made or the thought processes that government went through in terms of putting forward a piece of legislation. This is something that has not been done before. This is something that is contained within Bill C-51. With the coming into force of that bill, the Charter Statements will be applicable to all pieces of government legislation.”
— Minister of Justice, Debate on Bill C-51 establishing the requirement to table Charter Statements, June 2017
The Continued Need for Charter Statements
There is a continued need for Charter Statements to fulfil the legal obligation under the Department of Justice Act. While the purpose of these statements is fairly well understood, there is a need to further clarify their intended purpose.
As they result from a legislative requirement, the need for Charter Statements is, in one sense, self-evident.
The added value of Charter Statements
The broader question is whether Charter Statements are needed insofar as they are a valued addition to the legislative process. Evaluation findings point to diverging opinions, including some views that criticize the lack of legal analysis contained in these statements, while others praise the perceived assurance they provide about the constitutionality of a proposed bill. This, in fact, points to an enduring lack of understanding of the intended purpose of these statements, more than four years after they became mandatory.
As previously noted, Charter Statements are expected “to inform” members of Parliament and the public on the “potential effects of the bill” on Charter rights and freedoms. Informing about the potential legal effects of a bill without providing a legal opinion has created some confusion and contributed to the persisting ambiguity about the purpose of these statements.
Section 4.1 and 4.2 of the Department of Justice Act
To understand the persisting ambiguity about the purpose of Charter Statements, it is helpful to contextualize them within the broader obligation vested upon the Minister of Justice (as per section 4.2 of the Department of Justice Act), to formally examine any new government bill for potential inconsistency with the Charter (as per section 4.1 of the Act).
Under section 4.1 of the Act, the Minister of Justice must proceed with a legal analysis of every new government bill to ensure that they are not inconsistent with Charter rights and freedoms. This work is done internally, based on legal advice, and only if an inconsistency with the Charter is identified and the Minister agrees is the Minister obligated to report it to Parliament (which has never occurred).
Department of Justice Act (R.S.C., 1985, c. J-2)
4.1 (1) (…) 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 Continued Need for Charter Statements
While not disclosing the legal advice prepared in accordance with section 4.1, Charter Statements do articulate the main considerations that informed the Minister of Justice’s conclusion that a proposed bill is not inconsistent with the Charter.
Stakeholders should therefore use these statements accordingly, understanding that they will never identify an inconsistency with the Charter, as this would be done through the process under section 4.1 (1). Along the same lines, Charter Statements do not guarantee that a proposed bill is constitutional, as this can only be settled by the courts.
Clarifying the purpose of Charter Statements
In light of these findings, while the overall nature of Charter Statements is fairly well understood, it would serve the interest of all stakeholders to bring further clarity on their intended purpose. Instead of being presented as essentially describing the potential effects that a bill may have on Charter rights and freedoms, it would appear preferable to emphasize the fact that these statements also articulate the key considerations that support the position of the federal government on the constitutionality of a proposed bill.
This would address concerns that Charter Statements are biased toward the government, or that they ignore other points of view. When it comes to constitutional law, there will always be varying perspectives, and Charter Statements present one such perspective, namely the position of the federal government.
The Continued Need for Charter Statements
A niche in the legislative process
Evaluation findings indicate that Charter Statements have found a niche in the legislative process. A review of parliamentary Hansard has found references to these statements during parliamentary proceedings, especially parliamentary committee hearings.
In addition, and as illustrated in Figure 5, the survey of non-parliamentary stakeholders who engaged in parliamentary committees indicates that most respondents were aware of Charter Statements, and most of those who used them found them useful (most respondents who did not use them indicated that their participation in a parliamentary committee did not involve a discussion of Charter rights and freedoms).
Finally, evaluation findings indicate that the courts are also turning to Charter Statements to confirm how a legislative provision may engage Charter rights and freedoms. This has particularly been the case for court decisions dealing with provisions of the Criminal Code. Courts from all levels, including the Supreme Court of Canada, have made reference to these statements in a manner consistent with their purpose.
Figure 5: Extent to which survey respondents have found Charter Statements useful
Figure 5: Extent to which survey respondents have found Charter Statements useful – Text version
| Extent to which survey respondents are familiar with Charter Statements | Number of Survey Respondents |
|---|---|
| Familiar | 73 |
| Not familiar | 36 |
| Others | 2 |
| Extent to which Charter Statements are used by survey respondents who reported they were familiar with them | Number of Survey Respondents |
|---|---|
| Used it | 37 |
| Did not use it | 33 |
| No response | 3 |
| Extent to which Charter Statements were useful to survey respondents who reported they had used them | Number of Survey Respondents |
|---|---|
| Useful | 25 |
| Not useful | 3 |
| Don’t know | 9 |
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