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Gary O'Brien
This article examines how the Senate of Canada attempts to ensure that
rights are protected when it examines proposed legislation. While some
believe that the Senate is uniquely situated to deal with minority rights
protection, its responsibilities in this area differ little from other
Canadian legislatures. Since there has been commentary from a number of
scholarly sources of Parliament’s response to the challenges raised by
the Charter, it is useful for the accuracy of the record to describe some
of the actions taken by the Senate for dealing with rights issues. The
article concludes with some options for reform which have been expressed
by individual senators which could provide insight into the kinds of institutional
reform the Senate may wish to undertake in the future concerning the protection
of rights.
A traditional view of parliamentary institutions is that legislatures deal
with the good of the community as a whole and that courts deal with the
fundamental rights of individuals. This theory has been seriously challenged
in the post-World War II era as legislatures around the world, prompted
by the adoption of such conventions as the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights, increasingly
brought a rights perspective and greater guarantees of freedom into their
deliberations. The Parliament of Canada has dealt with the subject of civil
liberties on many occasions in the last half-century. For example, in 1947
the Senate and House of Commons created a Special Joint Committee on Human
Rights and Fundamental Freedoms and a final report was tabled the following
year. In 1950, the Senate established its own Special Committee on Human
Rights and Fundamental Freedoms which expressed the opinion that a bill
of rights incorporated into the constitution would be desirable. A resolution
urging the advisability of introducing a Bill of Rights or a Declaration
of Rights was presented by the St. Laurent Government to the House of Commons
in 1952. In 1958, An Act for the Recognition and Protection of Human Rights
and Fundamental Freedoms (the Canadian Bill of Rights) was introduced by
the Diefenbaker government and adopted by Parliament in 1960. In 1977,
the Canadian Human Rights Act, introduced by the Trudeau government, was
enacted. However, it was the constitutional entrenchment of the Canadian
Charter of Rights and Freedoms in 1982 that directly focused the attention
of Canadian parliamentarians on the importance of examining how proposed
legislation may impact on fundamental rights.
Pursuant to section 24(1) of the Charter, it is the courts which ultimately
decide if anyone’s rights or freedoms as guaranteed by the Charter have
been infringed or denied. The courts now possess clear powers to nullify
legislation and as of 2002, 64 statutes have been invalidated as inconsistent
with the Charter. While judicial activism is a matter of much controversy,
it would appear that few parliamentarians want to abdicate to the judiciary
the difficult task of resolving how social policy should be balanced with
the conflicting Charter rights. Many would agree with the following assessment
expressed by Senator Raynell Andreychuk on the role of the Charter in
the law-making process: “…the Charter will rest not only with the Courts
because it does not speak to the courts alone. It speaks to parliamentarians
at both the federal and provincial level. Parliamentarians must take the
Charter into account, not after the fact by court analysis, but as a tool
before we pass legislation. We must integrate into our work the need to
reflect upon what the Charter says about the rights and freedoms of Canadians”.1
Despite the respect given to the Charter by legislators, a number of commentators
have been critical of the attention Parliament pays to it. James B. Kelly
states that with notable examples: “…parliamentary scrutiny from a rights
perspective is generally absent in Canada during the legislative process”.2
Janet L. Hiebert has written: “…If Parliament is to be a significant partner
in a constitutional conversation, its processes for Charter evaluation
need to be reassessed”.3
C.E.S. Franks states: “While the executive took
additional measures in pre-vetting to ensure that legislation met the new
standards imposed by the Charter, parliament did not, itself, add additional
procedures or mechanisms to review bills from a rights perspective…Consequently
entrenchment of the Charter has elevated the courts at the expense of parliament”.
4
Errol P. Mendes writes: “…the Supreme Court indicated that it will not
interpret the Charter in a vacuum. It will engage in a dialogue with Parliament
which has been proposed by leading constitutional jurists in Canada…We
do not really have an adequate dialogue at the moment. As one Department
of Justice official confided, what takes place is not really a dialogue
between the Supreme Court and Parliament, but between some Department of
Justice officials and the Court”.
5
International Comparisons
Many of those critical of Parliament’s Charter practices point to the United
Kingdom and Australian Parliaments as better models for protecting rights.
Both have adopted systematic procedures for vetting legislation from a
rights perspective.
In 1998, the British Parliament passed the Human Rights Act which incorporated
the European Convention on Human Rights into domestic law. The Act provided
for the creation of a Joint Committee on Human Rights with a mandate to
examine “matters relating to human rights in the United Kingdom (but excluding
consideration of individual cases)”. Under this term of reference, the
Joint Committee examines each bill introduced into either House and reports
before second reading approval any provisions of a bill which are likely
to raise questions of compatibility with ‘Convention rights’ within the
meaning of the Human Rights Act. The Act also specifies that ministers
responsible for introducing government bills are required to provide a
written statement, that in his or her opinion, the bill is compatible with
Convention rights, or that it is not compatible but the government would
like the House to consider the bill anyway. It should be noted that in
the United Kingdom the judiciary does not have a mandate to invalidate
legislation but only to make a “declaration of incompatibility” if primary
legislation cannot be interpreted in a manner consistent with Convention
rights. Parliament would decide whether to accept or ignore the judicial
declarations of incompatibility.
The Commonwealth of Australia does not have a Bill of Rights. However,
the Australian Senate has established a Standing Committee for the Scrutiny
of Bills which is mandated under its standing orders to report, in respect
of the clauses of bills introduced into the Senate, and in respect of Acts
of the Parliament, whether such bills or Acts “trespass unduly on personal
rights and liberties”. When a bill is introduced in either House, it is
examined by the committee’s legal adviser who provides a written report
to the committee whether or not it offends against the committee’s principles.
A committee’s Alert Digest is then circulated with adverse comments included
and tabled in the Senate. Ministers can then be invited to make a response
to the committee’s comments. Odgers’ Australian Senate Practice (2001,
p. 379) describes the subsequent actions by the committee as follows:
If the committee receives a response from a minister, that response is
reproduced in a subsequent report. In its reports which are also tabled
on a weekly basis during sitting periods, the committee re-states its concerns
about a bill, refers to the relevant ministerial response and then makes
any comments it considers appropriate, including any differences of opinion
between the committee’s view and that of the minister. In reporting to
the Senate, the committee expresses no concluded view on whether any provisions
offend against its principles or should be amended. These are regarded
as matters for the Senate to decide.6
Canadian Senate Practices and Procedures
While many senators have expressed high regard for the Charter and believe
they have a responsibility to examine bills from its perspective, in reality
that task is not easy. The Charter is written in broad language and there
is much discretion in interpreting such terms as “qualified rights”. Many
senators lack expertise in understanding the legal rules of interpretation
or detailed knowledge of Supreme Court jurisprudence. Law-making is just
one function they perform. They also understand that Charter issues are
essentially legal issues and that unlike questions of procedure there is
no one umpire such as the Speaker to decide such matters. As is well documented
by parliamentary authorities “The Speaker will not give a decision upon
a constitutional question nor decide a question of law…”.7
Nevertheless, the Senate has structured itself in a number of ways to deal
with Charter issues.
Senate Committees and Charter Issues
Of the 15 standing committees the Senate has established, three deal specifically
with Charter rights: the Standing Committee on Aboriginal Peoples, the
Standing Committee on Human Rights and the Standing Committee on Official
Languages. The Human Rights Committee was created on April 15, 2001 and
is authorized to examine upon reference from the Senate bills and other
matters “relating to human rights generally”. Likewise, the Official Languages,
created on October 10, 2002, studies bills and other matters “relating
to official languages generally” also upon reference from the Senate. Both
committees represent valuable platforms for those groups with interests
in protecting minority rights to come before Parliament to express their
views. These two committees allow senators to develop expertise, to pursue
policy studies on issues related to fundamental rights and to keep government
departments and agencies accountable.
The Senate also participates with the House of Commons in the work of the
Standing Joint Committee on the Scrutiny of Regulations which has a permanent
order of reference to review government regulations and other statutory
instruments. Each session the Committee requests and is given approval
to use as one of its criteria of review whether or not a regulation is
in conformity with the Canadian Charter of Rights and Freedoms or the Canadian
Bill of Rights and to report to both Houses accordingly. Offending regulations
may then be revoked.
The Standing Committee on Legal and Constitutional Affairs has a general
mandate which includes federal-provincial relations, the administration
of justice, law reform and the judiciary and its research staff is drawn
primarily from the Library of Parliament. Bills which may have Charter
implications are often referred to it. Some of the more important legislative
reviews undertaken by the Legal and Constitutional Affairs Committee are
as follows:
Bill C-220, An Act to amend the Criminal Code and the Copyright Act (profit
from authorship respecting crime), reported June 10, 1998. The Committee
held thirteen meetings on the bill and heard almost thirty witnesses. In
its report, the Committee specifically addressed the issue of “Freedom
under the Charter”. It concluded: “… your Committee is equally concerned
that Bill C-220 could restrict the Charter rights of Canadians to access
the broadest possible range of material about issues of significance to
their society…Although deeply mindful of the aversion that victims of heinous
crimes experience toward the potential of such harm, your Committee is
of the view, based on its understanding of Supreme Court of Canada Charter
jurisprudence, that Canadian courts are unlikely to conclude a social ill
currently exists of a scope to justify the sweeping measures contemplated
by Bill C-220”. The Committee’s recommendation that the Bill not be proceeded
with further was agreed to by the Senate.
Bill C-37, An Act to amend the Judges Act, reported October 22, 1998. –
The Committee held six hearings and heard from a variety of witnesses.
It proposed eight amendments to bill, including one touching on the definition
of the term “surviving spouse”. In its report, the Committee stated:
One area of contention with “surviving spouse” was the inclusion of the
phrase “of the opposite sex” in clause 1 of the bill with regard to who
may receive pension benefits. This concern was expressed by witnesses,
and by members of the committee, that the exclusion of same-sex couples
would be a violation of section 15 of the Charter of Rights and Freedoms,
particularly in light of recent court rulings. Furthermore, the current
Judges Act does not contain any definition of “surviving spouse,” thus
making this a new exclusion.
In order to correct this problem, the Legal and Constitutional Affairs
Committee recommends that clause 1 of Bill C-37 be deleted. In this case,
we feel that maintenance of the status quo is preferable to potentially
making bad law.” The Senate concurred in the amendment as did the House
of Commons.
Bill C-40, An Act respecting extradition, reported March 25, 1999 – The
Committee held eight hearings on the bill and took testimony from a number
of government officials and members of the legal profession. In this case
the committee did not propose amendments. However some members of the committee
seriously questioned whether the level of discretion available to the Minister
of Justice in extradition cases involving Canadians violated section 7
of the Charter regarding life, liberty and the security of the person.
They were unsuccessful in amending the bill. However, as James B. Kelly
writes: “In United States of America v. Burns, the Supreme Court of Canada
reviewed the constitutionality of the amendment Extradition Act and determined
that the unlimited discretion available to the Minister of Justice in cases
involving the extradition of Canadian citizens to jurisdictions with the
death penalty violated section 7 of the Charter. In effect, the Supreme
Court articulated the same concern with the Act as several members of the
Standing Senate Committee and disagreed with the Minister of Justice’s
certification that the amendments were constitutional.” 8
Bill C-7, An Act respect of criminal justice for young persons, reported
November 8, 2001 – The Committee held a series of meetings on the bill
and heard from over 60 witnesses. It recommended 13 different amendments
to 11 clauses of the bill. Some of them were based on the Committee’s interpretation
of the Charter and of the United Nations Convention on the Rights of the
Child and on its desire to see the legislation comply with these instruments.
The Senate as a whole disagreed with the Committee’s interpretation and
defeated its report. However, the Act was challenged in court and on October
18, 2004, two sections were struck down by the Provincial Court of British
Columbia as offending the Charter.
Pursuant to Rule 74(1), “The subject-matter of any bill which has been
introduced in the House of Commons but not read the first time in the Senate
may be referred to a Standing Committee for study”. This procedure was
used effectively in the Senate’s examination of Bill C-36, An Act to amend
the Criminal Code and the Official Secrets Act (the Anti-Terrorism Bill).
Because of the bill’s importance in the wake of the events of September
11, 2001 and because it clearly had potential Charter problems, the Senate
began examining the bill without waiting for it to arrive as it normally
would have after it had been adopted by the House of Commons. The special
committee which was charged with studying the bill heard from three ministers
and thirty witnesses and in its report of November 1, 2001, made a number
of recommendations to correct potential Charter violations. Because these
proposed amendments arrived early in Parliament’s legislative process,
the government was able to consider and act on them. The Senate’s important
contributions to improving Bill C-36 are generally acknowledged.
The Senate has established the practice of inviting those officials who
are concerned with Charter rights to appear before it in committee of the
whole which is essentially all members of the Senate sitting as a committee
in the Senate Chamber. Normally, Senate proceedings are not televised but
on these occasions permission is granted to provide for the coverage of
their testimony. Senators are able to obtain a better understanding of
the work of their offices and to learn of the difficulties they may be
experiencing. Privacy Commissioners (February 18, 1999; May 18, 2000; October
16, 2000; November 7, 2003) and the Chief Commissioner of the Canadian
Human Rights Commission (May 1, 2001) have appeared.
Other examples of Senate activism on Charter issues can also be mentioned.
Bill C-28, the Pearson Airport Agreements Bill, which was defeated in the
Senate on June 19, 1996, was given much scrutiny by senators from the perspective
of the Charter. On October 7, 2003 and again on November 3, 2004, the Senate
gave authorization for a committee examination of the implications of including
in legislation non-derogation clauses relating to existing aboriginal and
treaty rights of the aboriginal peoples of Canada. Concerns for the protection
of Charter rights were prominently expressed in the Senate debates on Bill
C-33, An Act respecting the water resources of Nunavut, which received
Royal Assent on April 30, 2002 and Bill C-39, An Act to replace the Yukon
Act, assented to on March 27, 2002. On September 26, 2001, the Social Affairs,
Science and Technology Committee tabled a report entitled: The Health of
Canadians – The Federal Role: Issues and Options which among other subjects
examined the issue about whether social programs like health care should
be part of any legal claim under the Charter.
Options for Reform
Senators seem relatively satisfied with the way Charter issues are dealt
with. For example, Senator Noel Kinsella, then Deputy Leader of the Opposition
and now Leader of the Opposition, has stated: “I have always been very
satisfied with manner in which colleagues in this house have examined legislative
proposals and tested those proposals against our Charter values. Although
we have our intense debates across the aisle, I have been impressed with
the sobriety with which all honourable senators bring their Charter analysis
to a bill before the house at any given time” 9 The Standing Senate Committee
on Human Rights in its report Promises to Keep: Implementing Canada’s Human
Rights Obligations dated December 2001 stated: “Although it is by no means
perfect, Canada’s machinery of government is responsive to its domestic
human rights obligations”.
However, some senators have made a number of suggestions on improving procedures
for Charter scrutiny. Senator Lois Wilson, who is now retired and who before
being appointed to the Senate was the first woman Moderator of the United
Church, testified before the Human Rights Committee about the need to alert
senators to potential Charter conflicts earlier in the legislative process:
…domestically there is no instrument by which parliamentarians can take
the time to examine the issues, receive testimony and then formulate the
legislation. We tend to do it after the fact: Does this bill conform with
the Charter and covenants? My wish list would be that we do that work before
the legislation is formulated. It is my hope this committee may see its
way to doing that or at least see that it is done by some group in the
system…Parliament also has the capacity for regional hearings, which is
a very strong thing in its favour. The subject of human rights needs to
be focused, as it is in Australia and the U.K., so that Parliament is alerted
when things are coming along that have human rights implications.10
Senator Serge Joyal believes that the government should be more willing
to share with Parliament the advice it receives from its officials about
the risk assessments they make of credible Charter arguments against a
particular bill. He has written:
According to the Department of Justice Act, it is the responsibility of
the Minister of Justice in respect of all Government bills to ascertain
whether any of the provisions thereof are inconsistent with the purposes
and provisions of the Canadian Charter of Rights and Freedoms.’However,
departmental advice received by the Minister remains confidential. Clearly,
the responsibility of ensuring that proposed legislation is consistent
with the Charter should not be the exclusive purview of one minister of
the Crown. Surely Parliament, collectively, must satisfy itself that any
given bill is consistent with the Charter before it is enacted. Anything
less would amount to an abdication of its legislative role to the courts.11
Proposals have also been made that Senate committees create formal checklists
of key review elements in order to improve their effectiveness in reviewing
legislation. Such checklists are used for example in Memoranda to Cabinet.
There have been suggestions that a formal rule be created whereby Senate
committees, in their reports on legislation, include a checklist indicating
they have considered a number of specific issues and stating any implications
which they view as significant. Along with such matters as regional issues,
costs and benefits and national finance, they would have to consider the
impact of the bill on gender equality, interests of minorities and human
rights.
Conclusion
Developing effective legislative practices and procedures to scrutinize
legislation from the perspective of the Charter of Rights and Freedoms
is a challenge since protecting and interpreting rights in effect means
interpreting constitutional law, not an easy task for legislators who have
many other issues of public policy to consider at the same time. As shown
by the parliamentary record, senators take their responsibilities in this
matter seriously and have established processes and practices to carry
out this function. As seen by proposals of individual senators, they will
continue to re-examine their practices and procedures and develop them
further as they see fit.
Notes
1 Senate of Canada, Debates, April 17, 2002.
2. James B. Kelly, “Governing with the Charter of Rights and Freedoms”.
The Supreme Court Law Review, Volume 21, 2002, p. 317.
3. Janet L. Hiebert, “Wrestling with Rights: Judges, Parliament and the
Making of Social Policy”. Choices: Courts and Legislatures (IRPP), June
1999, p. 37.
4. C.E.S. Franks, “Parliament, Intergovernmental Relations, and National
Unity”. Kingston: Institute of Intergovernmental Relations, Queen’s University,
1999.
5. Errol P. Mendes, “The Role of Parliament in Assessing Canada’s Implementation
of its Domestic and International Human Rights Obligations”. Presentation
to the Human Rights Committee, Senate of Canada, p. 7.
6. Australia. Department of the Senate. Odgers’ Australian Senate Practice.
Tenth Edition, 2001.
7. See Beauchesne’s Parliamentary Rules and Orders, Sixth Edition), c 324.
8. Kelly, op. cit, p. 321.
9. Senate of Canada, Debates, April 17, 2002.
10 Senate of Canada, Proceedings of the Standing Senate Committee on Human
Rights, April 15, 2002.
11. Serge Joyal, (ed.), Protecting Canadian Democracy: The Senate You Never
Knew. Canadian Centre for Management Development, McGill-Queen’s University
Press, 2003.
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