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| Catherine Latimer |
Let’s hope that the Power decision heralds a new approach in Parliament to Charter compliance in the development of legislation. While the minister of justice is required to certify that proposed legislation is Charter-compliant, there has been a slew of legislated reforms that have been struck down by the courts. It may be that the minister of justice accurately forewarned Parliamentarians of likely Charter noncompliance and the Parliamentarians decided to pass the offending legislation nevertheless. In that case, the potential for Crown liability following Power is more likely. Or, it may be that Parliamentarians weren’t adequately advised of the Charter risks, leading to questions about the quality of the legal advice from the Department of Justice. In light of the Power decision, it may be advisable for the Houses of Parliament to seek independent constitutional experts’ advice when considering legislative reforms.
It’s not unusual for witnesses before Parliamentary Committees to sound the alarm about likely Charter infringements of bills being studied. Consider Bill C-83, which introduced amendments to the Corrections and Conditional Release Act, intended to replace segregation provisions found by both the Ontario and British Columbia courts of appeal to violate prisoners’ Charter rights. Though witnesses representing the legal profession, human rights organizations and academia testified that these revisions would fail to correct the very deficiencies found unconstitutional by our appellate courts, a Charter statement provided by the Department of Justice provided Parliament adequate comfort to pass the Bill. But the unease was sufficient for Bill C-83 to include a rigorous review obligation. It requires a comprehensive review to start at the beginning of the fifth year after coming into force and a report of any needed changes to be tabled in Parliament within a year after the commencement of the review.
By June 21, 2023, the mandatory comprehensive review of Bill C-83 should have begun. By June 2024, a report and proposed amendments should have been tabled at Parliament. As of July 2024, this review has yet to start.
The decision in Power raises implications regarding the failure of Parliament to comply with legislated review requirements. When Parliamentarians, speakers and committee chairs were encouraged to begin the review of Bill C-83, they responded that a committee hadn’t been designated to conduct the review, that speakers can’t interfere with the work plans of committees and that their own internal rules govern whether a legislative review will take place. In effect, their position was that internal Parliamentary rules trump a legislative requirement that they themselves passed into law.
The decision in Power suggests that this insistence on Parliament as a “statute-free zone” may be wrong. Parliamentarians should be bound to respect their statutory duties, particularly when intended as a safeguard for Charter compliance. Does its failure to do so amount to a Power-like liability and potential damages for all those whose Charter rights have been violated since the delay or failure to respect the rule of law?
The Supreme Court of Canada has once again reaffirmed its commitment to protecting Charter rights and the rule of law. It’s time for Parliament to also respect these fundamental principles and review Bill C-83.
Catherine Latimer is the executive director of the John Howard Society of Canada.
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