03/05/2013 05:27 EST | Updated 05/05/2013 05:12 EDT

Show the Charter Some Respect

Section 4.1 of the Department of Justice Act used to be little known outside constitutional law circles, but it has recently received significant attention both in Parliament and in the media. This is a welcome development because it is this provision that requires the Government to vet its legislation for consistency with the Charter of Rights and Freedoms. Regrettably, there are troubling signs that the Government has not been meeting its obligations in this regard.

The law requires the Justice Minister to examine all Government legislation "in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions" of the Charter, and "report any such inconsistency to the House of Commons at the first convenient opportunity." While many in the media, academia, the opposition, and the courts have raised concerns about the constitutionality of Conservative bills -- some of which have been overturned by the courts -- no such reports of inconsistency have been tabled.

Consequently, at a hearing of the Justice Committee last fall, I questioned the Minister about his interpretation of Section 4.1. Specifically, I sought to know the standard by which he directs his staff to evaluate bills for constitutional consistency. Does he require legislation to be unassailably Charter compliant, for example, or is he satisfied if it merely stands a remote chance of being upheld by the courts?

At that time, the Minister did not provide a clear answer, but a Justice Department bureaucrat has since come forward claiming that, according to Department policy , a bill is deemed consistent with the Charter if its chances of being upheld are as little as five percent. The bureaucrat -- Edgar Schmidt -- filed a suit against the government and was subsequently suspended.

All of this may sound like mere legal minutiae, but there are real consequences when laws are passed that are constitutionally suspect. To begin with, defending such laws can prove very costly for Canadian taxpayers, who foot the bill. While there are certainly costs associated with implementing any government legislation, we ought not to invite protracted and avoidable constitutional litigation, particularly since, as Parliamentarians, we are responsible for oversight of the public purse. Moreover, by passing bills that have not been properly vetted from a Charter perspective, the Government further strains our already overtaxed judicial resources.

Disturbingly, the Conservative party has also been introducing Private Members Bills at a rate greater than in previous governments. These bills do not undergo Charter review within DOJ, and indeed many of these proposals contain potentially Charter-infringing provisions. Indeed, the recent call of Citizenship Minister Jason Kenney to revoke the citizenship of some Canadians in terrorism cases is being advanced through the PMB route instead of a Government bill which would be vetted. Other PMBs, such as those specifying mandatory minimum penalties, have also been proposed, raising the possibility that this route is being chosen specifically to circumvent Charter consideration.

It should be noted that there is also a cost associated with performing Charter reviews within the Department of Justice. This is money and time well spent if the Minister takes such reviews seriously, but if Charter analysis is, under this Government, a mere rubber-stamp process, we might well wonder what resources are being allocated to it, and whether these resources are justified.

Beyond matters of expense and appropriation of resources, however, it is critical that legislation comply with the Charter because of the essence of the document itself as the centrepiece of the Canadian Constitution. The Charter is an expression of Canada's fundamental values and freedoms, the promotion and protection of equality, and a safeguard against discrimination and the marginalization of the vulnerable. By introducing and passing bills that are inconsistent with it, the Government creates the impression that it values neither the Charter, nor the principles enshrined therein.

The Government has reinforced this impression not only through its minimal involvement in celebrations of the Charter's 30th anniversary, but by repeatedly defending positions that the courts have found unconstitutional. Among numerous examples, courts in B.C. and Ontario have struck down the Government's mandatory minimum sentences for gun crimes, the Federal Court did the same regarding cuts to pensions for disabled veterans, and the Supreme Court blocked the Government's attempt to close a safe injection site in Vancouver.

These cases demonstrate how little attention the Conservatives have paid to Charter concerns when developing legislation and policy. While we can disagree about how to interpret a particular clause of the Charter, no one -- least of all the Government -- should be treating it as an impediment, or worse, as a triviality.

Irwin Cotler is the Liberal Justice and Human Rights Critic. He is the former Minister of Justice and Attorney General of Canada and a Professor of Law (Emeritus) at McGill University.