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When Transparency Can Hurt Democracy

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A Department of Justice lawyer, Edgar Schmidt, recently challenged his employer in court, alleging that the process that the Department uses to analyze whether proposed legislation is in accordance with the Charter is against the law. Schmidt alleges in his claim that since 1993, the Department of Justice has not been informing the Minister about potential Charter inconsistencies as long as "some argument can reasonably be made in favour of its consistency - even if all arguments in favour of consistency have a combined likelihood of success of 5% or less."

This 5% chance of success rate is the cause of the controversy. Schmidt, in his claim, notes that section 4.1(1) of the Department of Justice Act legally obligates the Minister of Justice to analyze every bill to determine whether any provisions are inconsistent with the Charter, and to report these to the House of Commons. He asks for a judge to declare that this section require a "more-likely-than-not inconsistent" approach, essentially a 51% chance of inconsistency, as opposed to the alleged current 95% chance of inconsistency, to require notification to the Minister. The Department of Justice will not confirm its internal procedures, citing solicitor-client privilege and Cabinet confidence.

Two points of contention arise from this topic. The first is the manner in which Schmidt's case was handled by the Department of Justice. Geoff Hendry of iPolitics gives Schmidt credit for undertaking an audacious and selfless act. This exposure, indeed, has brought an important issue into the limelight, one which the government is not forthcoming about. Schmidt was suspended without pay after raising his concerns, prompting the Federal Court judge to tell the government lawyer that "It's unbelievable ... Your client has done everything it can to kill this thing. The court doesn't like that ... We see that in different countries and we don't like it ... Canada is still a democracy."

The second issue arising is the Charter screening process itself. Most commentators and opposition politicians have argued for a more robust and open mechanism of screening legislation for constitutionality. The 5% threshold is generally rebuked on the grounds that the government should not be proposing unconstitutional legislation which will later be struck down in court.

A Law Times editorial argues that the Department of Justice "should, of course, be informing both the public and Parliament about potential Charter violations in its laws and regulations." It is further argued that the 5% likelihood of success is a sorely inadequate threshold for informing Parliament. This issue, however, is less black and white than commentators make it seem. There can be no arguing that the 5% threshold is miniscule. However, rather than looking at the specific number, the process used to determine the number should be analyzed and be made as fair as possible.

It is crucial that all legislators and the public be aware of how the Department of Justice makes the decision to inform Parliament about Charter inconsistencies. Indeed, because all of Parliament's laws and all departmental regulations are screened by Justice, it is most appropriate that the manner in which Charter screening is undertaken should ultimately be decided by Parliament itself. Members of Parliament are ultimately accountable to the people, while the officials at Justice are under no such constraints.

In undertaking this process, Parliament should balance the value of transparency against the merits of genuine democratic debate. Why do these rights necessarily conflict? If this process were made public, a finding of unconstitutionality by Justice bureaucrats would basically kill the legislation. No government wants to be seen as acting unconstitutionally. The Opposition can simply point to the perceived illegality of the legislation as determined by Justice, which will basically quell any opportunity for the government to respond.

On the bright side, by making the Department of Justice's constitutionality deliberations publicly available, citizens will be able to tell when a government may be acting unconstitutionally. It could also save taxpayer money by preventing litigation on constitutional grounds if Charter-compliant laws are passed.

At the same time, democratic discourse may be diminished when Justice bureaucrats declare a law unconstitutional. What is the problem with giving such powers to civil servants? The decisions made are subjective and based on the perception of how judges might rule on the constitutionality of the legislation. Assigning a numerical percentage chance of likelihood of success is also extremely subjective.

The Toronto Star editorial board opines that "something is wrong" because two provincial courts have recently overturned human trafficking and mandatory minimum sentences on constitutional grounds. It is more appropriate to have the courts overturn the legislation, rather than civil servants at Justice. Had Justice declared the motion unconstitutional and this information made public, Parliament would likely have refused to debate the issue at all. While constitutionality of legislation is a paramount principle, both the government and opposition should come to their own conclusions about a law's legitimacy, rather than having the decision made by a bureaucrat. Parliament does not make the final decision, as the judiciary can ultimately check its power. And even if a lower court declares a law invalid, the government can re-evaluate its reasoning, and if it still believes that a law is constitutional, it may appeal the ruling to a higher court.

Making the Department of Justice's findings of constitutionality public will result in a chilling of democratic debate. The Charter, rather than being interpreted by numerous public officials and potentially judges at multiple levels of seniority, will instead receive a single interpretation by unelected Department of Justice officials. This is quite a deviation from the checks and balances that a healthy democracy should ultimately strive for.

Originally published in The Prince Arthur Herald.