MDRN-23

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 12

34th Meeting, May 10, 2017

Witnesses: Prof. James B. Kelly, Political Science Faculty at Concordia University, and
Roberto De Luca, Staff Lawyer, Canadian Civil Liberties Association 0

The Special Senate Committee on Senate Modernization met this day at 12:01 p.m. for consideration of methods to make the Senate more effective within the current constitutional framework. 1

Senator Thomas J. McInnis (Chair) in the chair. 2

The Chair: Welcome. During this phase of its work, the committee is focusing on the role of the Senate in Canadian governance and its relationship with the House of Commons. In particular, we are looking at how the Senate can best complement the House of Commons, without either duplicating or overpowering it. Today we shall focus on the role of the Senate in studying legislation to ensure that it is compliant with the Canadian Charter of Rights and Freedoms. Today we are pleased to have two experts on the Charter as witnesses. 3

Professor James B. Kelly, from the Political Science Faculty at Concordia University, holds a PhD from McGill University and a bachelor's degree from the University of Toronto. He has held visiting appointments at McGill University and also at the University of Melbourne, Australia. His research focuses on the judicialization of politics associated with the introduction of bills of rights in parliamentary systems, such as Canada, Australia, New Zealand and the United Kingdom. Dr. Kelly is the author and co-author of four books, including Governing with the Charter, published in 2005. Currently, he is writing a follow-up to this book. 3-1

Roberto De Luca is a staff lawyer with the Canadian Civil Liberties Association, a non-profit, non-partisan national organization working to protect the constitutionally guaranteed rights and freedoms of everyone in Canada. Mr. De Luca primarily works in the organization's Fundamental Freedoms and National Security programs. He is called to the Bar of Ontario and holds a JD from Stanford Law School, a PhD in Government from the University of Texas at Austin, and a BA/MA from the University of Alberta. His academic work has focused on liberal theories of multiculturalism and group rights, as well as constitutional and normative issues associated with conflicts between rights and freedoms. 3-2

Welcome, gentlemen. I don't know who wants to proceed first. What we will do is hear from you if you have some prepared remarks, and then it will be open for questions. 3-3

James B. Kelly, Professor, Political Science, Concordia University, as an individual: I'd like to start by thanking the Senate Modernization Committee for the invitation to appear and to speak about greater transparency in regard to the Charter of Rights and Freedoms. The brief that I submitted to you is based upon research findings of my recent book, which is entitled Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom. I co-authored this book with Janet Hiebert from Queen's University, and it was published by Cambridge University Press in 2015. 4

In my short remarks today, I want to suggest the consideration of four reforms based upon this comparative assessment of bills of rights and parliamentary reform in New Zealand and the United Kingdom, as well as related research that we conducted on Australia. 4-1

Two of the suggested reforms involve the Minister of Justice and the current reporting duty under section 4.1 of the Department of Justice Act. Finally, two of the proposed reforms in my brief pertain directly to the Senate and its place within a revised Charter scrutiny process conducted by and between the two Houses of Parliament. 4-2

Before outlining the four suggested reforms, I want to state that I think the current Minister of Justice, Jody Wilson- Raybould, has instituted an important change in regard to the reporting obligation under the Department of Justice Act. The Department of Justice now releases what they call Charter statements on bills introduced by the Minister of Justice to the House of Commons. 4-3

I believe this is a very good start, but I believe that there are a number of practical problems with the current approach that my brief attempts to address. 4-4

The first is that it's unclear whether these Charter statements are actually formally submitted to Parliament. In comparison to New Zealand, the United Kingdom and Australia, the responsible minister actually attaches what's called a statement of compatibility, and it's the first part of a bill that is introduced to Parliament. What this statement of compatibility does is make the minister or the government's case why the bill in question is compliant with the domestic rights instrument in the respective jurisdiction. I think this practice should be adopted in Canada, and I speak about that more in my brief. 4-5

The second problem with this new approach is that there's no indication that the Minister of Justice directs these statements of compatibility or Charter statements to any parliamentary committee for review. Again, in comparison with New Zealand, the United Kingdom and Australia, there is a dedicated parliamentary committee that receives these statements of compatibility, reviews them and, more importantly, reports its own independent assessment of compatibility to parliaments. Again, I'll speak more about this. 4-6

The third and final limitation with the new approach by the Minister of Justice is that this practice only applies to bills sponsored by the Minister of Justice, so it means that, in the context of a bill before Parliament today, Bill C-37, which is the amendments to the Controlled Drugs and Substances Act, which is liberalizing access to safe injection facilities, is not subject to a Charter statement. I think those are three limitations with, ultimately, what is an important and positive development. 4-7

The four changes that I'd like to suggest to ensure a more transparent approach to Charter scrutiny by the Minister of Justice and the place of the Senate within a revised legislative process are the following. I'll briefly go through them, though they appear in more detail in my submitted brief: 4-8

The first is: I believe that there must be statutory changes to the Minister of Justice's reporting duty under the Department of Justice Act. Currently, it's a statement of incompatibility. The government must simply indicate when a bill is not compliant with the Charter of Rights, and a statement under section 4.1 has never been placed before Parliament. A more positive and transparent approach is the requirement of what are called "statements of compatibility." This exists, again, in the jurisdictions that we surveyed in our book. The difference between a statement of incompatibility and a statement of compatibility is that what the government does generally in these jurisdictions is indicate whether a right is engaged and, if a right and freedom is engaged, that leads to the government's justification why the engagement is reasonable in a free and democratic society. That's the difference. A statement of compatibility is a more fulsome disclosure of the government's constitutional position on a bill. 4-9

I would add that I believe that, in cases in which Parliament is legislating in response to judicial invalidation, such as Bill C-14, medical assistance in dying, or Bill C-37, that statement of compatibility is essential—why the government bill either complies with a court ruling or, if it departs from a court ruling, the government's reasoned position why that is constitutional. 4-10

The second—and this pertains more directly to the Senate—is that I think there needs to be a dedicated parliamentary committee with a sole mandate to receive, review and address statements submitted by the government on behalf of the minister in question. I would also extend this to private members' bills that proceed beyond second reading. 4-11

I would suggest this committee should be modelled after the Joint Committee on Human Rights in the United Kingdom, as well as the Parliamentary Joint Committee on Human Rights that exists in Australia. Both of these committees have a mandate to receive, review and release an independent assessment of the government's legislation in regard to the domestic rights instrument in question. 4-12

In the Canadian context, I would suggest this joint committee should be structured in a similar fashion to the recent special joint committee that was constituted on physician-assisted dying, which is a joint committee of both houses, where the government did not control the majority of the committee members. 4-13

The work of the special joint committee was impressive and considered this issue in a bipartisan fashion. This bipartisan spirit may have been the by-product of the sensitivity of the issue before the committee. However, the bipartisan nature of this committee, I would argue, was in part the result of government members constituting a minority of the committee. I would suggest any scrutiny committee to engage the Charter of Rights should be modelled after that committee. 4-14

The third suggestion I would place in terms of a transparent and revised Charter scrutiny process would be to amend section 4.1 of the Department of Justice Act to require the Minister of Justice to respond to the compatibility assessments produced by this proposed special joint committee. 4-15

In the case of government bills, where this joint committee would disagree with the minister's statement of compatibility, the Minister of Justice, I believe, should be required to submit a second report when reintroducing the bill at perhaps third reading that addresses the compatibility disagreement that may exist between the minister's statement of compatibility and the independent assessment provided by this proposed joint committee. 4-16

In this respect, a compatibility disagreement would see the Minister of Justice make two reports to Parliament. The first when the government introduces a bill, and perhaps at third reading, once the proposed joint committee has finalized its independent assessment of Charter compatibility and reported to the House of Commons. 4-17

The second report should see the Minister of Justice, I believe, address perhaps the compatibility disagreement that may be raised by this joint committee. 4-18

The fourth reform I would suggest is we need to rethink the legislative relationship between the two Houses of Parliament in regard to the Charter of Rights. Unlike Australia and the United Kingdom, the Parliament of Canada lacks any mechanism to resolve legislative disagreements between the Senate and the House of Commons. I believe this weakness is evident in two high-profile government bills amended by the Senate in recent years, the medical assistance in dying bill, Bill C-14, and secondly, Bill C-37, where a set of amendments have been sent back to the House of Commons. 4-19

By rethinking the legislative resolution, what I mean is if we look at these other jurisdictions, particularly Australia and the United Kingdom, in the case of Australia, if there is a legislative disagreement between the two houses on amending a bill, there is the ability under the Australian constitution to have a joint sitting of both houses. In the case of the United Kingdom, there's the Salisbury Doctrine in regard to government bills that are part of a governing party's election manifesto. We don't have either of these resolution mechanisms presently, either as a principle or as a procedure. As I've indicated in my brief comments, I think both Bill C-14 and Bill C-37 demonstrate that in an era of a more independent, non-partisan Senate, which is tasked with acting as a chamber of sober second thought and is performing this role, it's something that we need to contemplate, the absence of these reconciliation mechanisms between the two houses. 4-20

I'd like to close by thanking you for your time and I look forward to your questions. 4-21

The Chair: Thank you very much. 5

Roberto De Luca, Staff Lawyer, Fundamental Freedoms Program, Canadian Civil Liberties Association: Thank you to the committee for allowing the Canadian Civil Liberties Association the opportunity to appear before you today. It is an honour to be here. 6

Founded in 1964, we are an independent, national, non-governmental organization, working to protect the rights and freedoms cherished by Canadians and entrenched in our Constitution. 6-1

We particularly welcome the opportunity to speak about ways in which the Senate might have a more active role in reviewing legislation to ensure that it is compliant with the Charter. In recent years, we at the CCLA have become increasingly concerned about the frequency and ease with which laws with clear constitutional vulnerabilities have been proposed and passed by Parliament, only to be challenged later and, in some cases, be struck down by the courts for violating the Canadian Charter of Rights and Freedoms. 6-2

In response, CCLA has published its Charter First report, which seeks to address what we believe are critical accountability and transparency gaps in our federal law-making process that can enable the advancement of arguably unconstitutional laws. 6-3

We at CCLA are particularly concerned that at no point in the current process are our government ministers or parliamentarians required to publicly defend the constitutionality of the laws they propose with rigorous legal analysis. At the same time, many parliamentarians do not have the resources or expertise to effectively assess the constitutionality of the laws they are asked to enact. 6-4

This has forced affected individuals and public interest organizations, such as the CCLA, to launch Charter challenges as the only available recourse. This is particularly unfortunate insofar as some of these costly challenges could likely have been avoided had Parliament been given the resources to fulfill its duty of upholding the Charter. We detail several examples of such avoidable constitutional failures in our Charter First report. While these lengthy cases play out, the laws in question remain on the books, unfairly restricting the fundamental rights and freedoms of Canadians. 6-5

Meanwhile, the limited safeguards we do have are not working. 6-6

As discussed, under section 4.1 of the Department of Justice Act, the Minister of Justice is required to report to Parliament when he or she finds government legislation to be inconsistent with the Charter, but department officials have suggested that the minister need only report when there is no credible argument to support a bill's constitutionality. This standard is so low that not a single report relaying concerns about Charter compliance has ever been made to Parliament. 6-7

In sum, CCLA's primary concern is with a system that is failing, not with a particular government or individual. The goal of our Charter First campaign is to see that new checks and balances are introduced into Canada's federal law-making process, ones that we believe will raise the standard of Charter compliance of bills tabled and passed in Parliament. These mechanisms would provide more transparency and accountability to Canadians, as well as more information and resources to parliamentarians in their consideration of Charter issues. 6-8

While the new legislative process we propose in our Charter First report includes a new process for government bills introduced in the Senate and for Senate public bills, our report ultimately advocates for a comprehensive scheme that would need to be brought about through a combination of legislation and procedural changes in both the House of Commons and the Senate. 6-9

As such, we recommend that this committee take this opportunity not only to consider a more robust role for the Senate as a legislative body capable of fostering a more active Charter review process, but also to consider advocating for more a more holistic reform of the legislative process that would allow Parliament to live up to its duty to uphold the Charter as the fundamental guarantor of individual rights and freedoms. 6-10

Accordingly, I would like to use my remaining time to discuss five major proposals for legislative reform that we advance more fully in our Charter First report. 6-11

First, the Senate and House of Commons should review and revise their respective amendment admissibility rules to allow committees to debate and vote on amendments that address Charter concerns regardless of whether they go beyond the scope and principle of a bill. 6-12

Second, Parliament should amend the ineffective section 4.1 of the Department of Justice Act such that the Minister of Justice is required to issue a detailed statement of Charter compatibility when a government bill is introduced in Parliament. The statement should lay out the government's principled position regarding how, on a balance of probabilities, the bill complies with the purposes and provisions of the Charter. 6-13

Third, Parliament should create a position of Charter rights officer, with a staff and mandate to provide independent assessments of the Charter compliance of bills, and to serve in an advisory role to parliamentarians and parliamentary committees on Charter issues. 6-14

Fourth, for all government bills, the Charter rights officer should issue an independent assessment of Charter compliance, ideally prior to second reading in the House of Commons or Senate. If amendments are made at any subsequent point, the officer should issue addendums, ideally before final votes on a bill are taken. 6-15

Fifth, for any private member's bill or Senate public bill that passes second reading in the House of Commons or Senate respectively, the Charter rights officer should issue an independent assessment of Charter compliance. If amendments are made at any subsequent point, the officer should issue addendums, ideally before final votes on the bill are taken. 6-16

The CCLA again thanks the committee for permitting us to participate in their vital task of modernizing Canada's Senate and finding ways to take a more active role in reviewing legislation to ensure that it is compliant with the Charter. 6-17

The Chair: Thank you. 7

Senator Joyal: Welcome, Professor Kelly and Mr. De Luca. My first remark will be about the untenable position in which the Minister of Justice finds him or herself according to section 4.1 of the Department of Justice Act. No Minister of Justice in Canada will ever come forward with a report advising Parliament or the government that the proposed bill has Charter violating provisions in the bill. No Minister of Justice will ever do that. So to think that the Minister of Justice of Canada will ever come forward with an independent assessment concluding on the flaws or the failure or the doubtful impact of the bill on section 1 of the Charter, the reasonable limit in a free and democratic society, is to dream in colour. I have sat 20 years around this table at the Standing Senate Committee on Legal and Constitutional Affairs; I have never seen it. I have been in the cabinet also for four years and it has never happened either. So I don't believe that the system can trust the Minister of Justice to advise parliamentarians, independently, of their role and capacity to assess whether a bill is Charter compliant. I don't believe in that. I'm sorry to tell you that. 8

How do we address this? Is there a way for parliamentarians to be able to challenge the report made by the Minister of Justice that a bill is compliant? I have seen governments stating, "Well, we think our bill is compliant. We have reasons to believe it. If parliamentarians or citizens are not happy with it, the court system is there. They just have to go to court and challenge the bill." 8-1

So how can we approach it? We have two proposals made by Professor Kelly and you, Mr. De Luca. 8-2

Professor Kelly, I doubt that your proposal would be practical. To be able to challenge a bill on Charter grounds, you have to be a Charter expert. It's not for everybody to think that you read a bill and you come to the conclusion that this clause of the bill is Charter violating. 8-3

How could the capacity of parliamentarians to challenge a bill express itself? I believe more in the approach of Mr. De Luca, whereby they will be like the Parliamentary Budget Officer, as you know, who is a trusted officer, independent, with means to study the figures of the Department of Finance and come forward with an appraisal if that program will cost $10 billion or $5 billion or $2 billion, and so on. We have at least an independent opinion outside government circles. To try to put ourselves within government circles, to me, is a failure. 8-4

Look at Bill C-14, Professor Kelly. We came up with a report on the joint committee—I know, I was on it—which, in our opinion, was Charter compliant. The government came with a bill, in my opinion, that was not Charter compliant. The government refused to test the bill with the court, even though there was a reasonable amount of proof that the bill was not compliant. What was the government proposal? Go to court if you don't like the bill. We're in court, and we have read the brief that the Department of Justice has tabled trying to uphold the constitutionality or Charter basis of the bill. 8-5

In other words, the system is tilted in favour of supporting the government legislation. In my opinion, we need to counterbalance that with, as with the Parliamentary Budget Officer, an opinion that would be outside government circles and could put on the table the real arguments and not just tell parliamentarians, "Well, if you don't like it, go to court," or "yield to the elected majority." We were told in the Senate, those of us who thought that the bill didn't comply with the Charter, "Hold your nose and vote it, because the elected House of Commons has voted to violate the Charter rights of citizens." 8-6

The system cannot work like that, in my opinion, unless you decide that you maintain the incapacity of average parliamentarians, be they in the Senate or in the House of Commons, to be able to appraise whether a bill is Charter compliant. 8-7

It seems to me that your suggestion, Mr. De Luca, is much more realistic with what we've seen in Parliament since the Charter was enacted in 1982. I think the past speaks for itself. How parliamentarians react to Charter violations, not only the government but also parliamentarians. There is even an opinion in the Senate that we should yield to the violation of the Charter if the House of Commons has decided to enact that legislation. So we still have some problems to solve in relation to Charter compliance. 8-8

I think the proposal that you put forward seems to me to be much more in sync with the reality that we have lived with in Canada in the last 40 years that we have had the Charter as being a guide for parliamentarians to maintain the credibility. Because there is a cost to pay when a bill is not Charter compliant and it's found to violate the will of Parliament by the Supreme Court. Then we turn back and we accuse the court of judicial activism, thwarting the will of parliamentarians. Somebody at a point in time has to cut that knot somewhere. Where is the responsibility? If parliamentarians don't assume the responsibility, we shift it to the court; and then we turn back to the court and say that the courts are activists and against the will of Parliament. 8-9

Canadians believe in their rights. The only protection they have is the Charter, not the government will—the Charter and the court. Where do we fit in that system? Where do parliamentarians fit in that system? In my opinion, that's the question we have to address. The Senate has to make up its mind on what it wants to do when a reasonable number of senators come to the conclusion that a bill is violating the Charter. That's the result of my experience in relation to your brief, which is very good, by the way, to propose at least alternatives to the situation in which we're caught up in now. 8-10

Mr. De Luca: Thank you for the comments and question. I'll start by saying I think I very much agree with the overriding point that it's unrealistic in the current scheme to expect the Minister of Justice to make a report critiquing the constitutionality of laws that are then being tabled by the government, and the proof of the pudding is in the eating. The fact that there has not been a report since the Department of Justice Act was enacted with this provision in 1985 shows, I think, that the current system is not working. The reason we favour the creation of—in addition to flipping the requirement and compelling the Minister of Justice through statutory compulsion requiring a report—demonstrating Charter compliance on a balance of probabilities standard, the first prong of that is requiring the Minister of Justice to show compliance. 9

But the reason we do favour the independent institution of a Charter rights officer is a concern that a second body that might provide assessments on any such report from the Minister of Justice, if it were lodged within parliamentary committees, might be too prone to be politicized, and a concern that the political makeup of committees might favour argumentation and politicization of Charter issues. With an independent committee, and a long-standing institution of a Charter rights officer, that sort of long-standing constitutional expertise and a more distant, dispassionate remove from the sort of political demands that can be faced in a committee would help offer a check on the reports that would be submitted by the Minister of Justice. That is the logic of an independent Charter rights officer. 9-1

Mr. Kelly: I would like to respond to the questioning by Senator Joyal. A couple of points: Like the Canadian Civil Liberties Association, I'm not advocating for the use of statements of incompatibility. I recognize that they are unworkable. They are probably unconstitutional under section 52 of the Constitution Act. I am advocating for the use of statements of compatibility for the reasons that you have outlined. 10

I do want to talk a little bit about statements of incompatibility that, really, it's not unrealistic. I'm going to use the case of New Zealand to demonstrate this. New Zealand has the New Zealand Bill of Rights Act 1990. It has a provision called section 7. Under section 7, the Attorney General is required to report to Parliament when a bill introduced is incompatible with the New Zealand Bill of Rights Act. To set up the context, in New Zealand, the Attorney General is a member of Parliament and is a member of cabinet. 10-1

Since 1990, the Attorney General in New Zealand has issued over 70 statements of incompatibility. I believe that 35 of these involve government bills. In no instance has an Attorney General in New Zealand ever resigned from cabinet because of these statements of incompatibility. So what I'm trying to suggest is that perhaps it's how the position of Attorney General or Minister of Justice is considered or characterized. 10-2

Now, in the case of New Zealand, they have a constitutional convention that, when the Attorney General is reporting to Parliament, he or she is reporting not as a member of cabinet but as the chief legal officer of New Zealand. So I understand what Senator Joyal is saying about the difficulty of statements of incompatibility. The problem may not be that this is a theoretical or abstract position that I'm advocating. The problem may be how the position of Minister of Justice or Attorney General is contemplated in Canada. In a paper that I published with Matthew Hennigar in the International Journal of Constitutional Law, we advocated that perhaps the way to address that difficulty in the Canadian context is to separate the two portfolios into having an Attorney General acting as—again, this can still be a parliamentarian. It can be a member of cabinet. In the United Kingdom, the Attorney General is a member of cabinet but did report, in several important cases, against the government of the day, that their action in question was unconstitutional. So I'm not convinced that this is an unrealistic suggestion. I think we have to perhaps identify some of the practices in Canada. We're the only jurisdiction that I can think of where the Minister of Justice is simultaneously the Attorney General. That may just be a historical layover from the United Province of Canada, where the co-head of government was Attorney General. I wrote a paper years ago, with Matthew Hennigar, on this as well. I'm not suggesting that we have statements of incompatibility. I think that, similar to the position of the Canadian Civil Liberties Association, the more fruitful approach is for the Department of Justice Act to actually require the government to release its reasoned position why it believes the bill in question is compatible with the Charter of Rights. But that's, again, very different from a statement of incompatibility. Like the Canadian Civil Liberties Association, I want to speak about the question of capacity, whether or not parliamentarians or senators could actually engage in this sort of work. 10-3

In my brief, I suggested: If we look at the Joint Committee on Human Rights in the United Kingdom, the committee has a permanent legal advisor, as well as two part-time legal advisors that support the committee in its assessment of whether or not the government's bill is compatible. So I'm not advocating this to be a responsibility that is solely that of parliamentarians. Clearly they would be supported. Again, the JCHR in the United Kingdom, I think, is a good model of the resources that should be provided to parliamentarians to allow them to engage in this sort of assessment. 10-4

The final point I want to talk about is: I do actually think parliamentarians have the ability to engage on the Charter of Rights. The part that I think is most important is not whether or not the right or freedom is infringed upon. Clearly, you need to have a legal background to engage in that sort of analysis. For me as a political scientist, that's not the most important part of Charter assessment. It's whether the limitation is reasonable in a free and democratic society. I do not believe having a law degree is required to engage what the values of a free and democratic society are. 10-5

So on that point, Senator Joyal, I would disagree with that part of your question. I'm not advocating this to be a role solely performed by parliamentarians. I agree with the Canadian Civil Liberties Association but wouldn't go so far as creating a Charter officer. I think this should simply be the work of a legal advisor, a permanent legal advisor, appointed to this proposed committee. 10-6

Secondly, the values of a free and democratic society are not purely judicial principles. In that regard, I think parliamentarians from both houses are well possessed to engage in those sorts of deliberations. 10-7

Senator McCoy: That sort of answered my question, which was going to be: Have you engaged in some of the debate and scholarly review of the point that we parliamentarians are tending to abdicate our role by continuously appointing more and more officers of Parliament and, therefore, not taking on the responsibility to which we were either elected or appointed? Question to either or both. 11

Mr. De Luca: I think it's definitely an important question. I think part of what both of our proposals are trying to do, whether or not you envision assessments of constitutionality coming from within parliamentary committees or whether or not you see it coming from an independent institution, such as a Charter rights officer, the real thrust of our recommendation of a Charter rights officer has to do with, first, continual reporting to Parliament regarding the Charter issues that might be engaged, with the kind of legal sophistication one might be able gather from experts. So, partly, it would help dialogue within either of the chambers by providing these continual reports on the Charter issues that might be engaged or the particular balancing issues that might be relevant to the legislation at issue. 12

But in addition to that, we would view the assessments of something like a Charter rights officer not as authoritative statements but also as opportunities for parliamentarians to have an institutional body from which they could further seek advice. So the office would be taking more of an advisory role. In that sense, it would be very much not as a delegation of the need to discuss the Charter implications that might be relevant to legislation but as something that would attempt to spur dialogue regarding the Charter and constitutional issues. 12-1

One of the things we try to detail in our report, by going through some of the bills and legislation that were passed with what we believe are Charter issues, is that one of the concerns isn't simply that the legislation had what we view to be constitutional flaws that would have been caught by a better design, but also that a lot of these flaws were simply not sufficiently discussed and debated in Parliament in a public sense. So the real effort of this institution would be to foster that dialogue. 12-2

Mr. Kelly: Thank you for your question. The one part of the Charter First report by the Canadian Civil Liberties Association that I disagreed with was the creation of the Charter officer. Perhaps they weren't intending it to be a new officer of Parliament, but that was my concern with that suggestion. 13

In my brief, I advocated for creating a legal advisor that directly supports this committee, as opposed to a Charter officer who provides sort of an independent assessment that the committee could rely upon. In advocating that, for me as a political scientist, I'm in favour of emboldening parliamentary institutions themselves as opposed to officers of Parliament being emboldened. 13-1

That's where I would disagree with the Canadian Civil Liberties Association, though I do think there needs to be an actor that can support the committee in its compatibility assessments. 13-2

In my brief, I talked about the Joint Committee on Human Rights in the United Kingdom, which for many years—if the committee was to be established and would consider a legal advisor, the JCHR approach was perhaps the most appropriate. The JCHR appointed a leading public law scholar to serve as its permanent legal advisor. The most notable one was David Feldman. He is a professor of law at Cambridge. 13-3

Again, I'm agreeing with the Canadian Civil Liberties Association that you do need to have a resource for the Senate, this committee or joint committee in terms of whether it wants to engage or assess the government's position of compatibility. Where we disagree is where this individual would be located. Based upon the research we did in our book, Parliamentary Bills of Rights, the most Parliament-centred approach is to have a legal advisor within the respective committee. 13-4

Senator McCoy: I must say, I'm impressed with the advocacy of both of you for encouraging us to up our game, I suppose you might say, in terms of Charter expressions. 14

I'm sorry, though, but I am going to disagree with one of the comments in your brief; namely, that we don't have any mechanisms to resolve differences. We do, actually, follow the Salisbury convention. There might be four other parliamentary conventions that I know of that are alive. They may not have been used very frequently—certainly not in the last decade. By our count, since 1960, we have had very few amendments, period, that have gone back to the House of Commons and been accepted. 14-1

You will have seen, though, in the last year an increasing number of amendments, so I would imagine these conventions and the discussion about them in the Senate and House of Commons is going to become increasingly more public. We're probably going to become increasingly more adept at handling the resolution of such differences of opinion. 14-2

Thank you. 14-3

Senator Eggleton: I see merit in both of your proposals. The bottom line here, I gather from both your presentations, is that, first of all, we need to get these compatibility or incompatibility statements out in the public forum, to the parliamentarians to start with, before they pass a law in either house. 15

Second, we need to get a second opinion. You get the Justice Department to provide the initial opinion, but somebody then needs to look at it and say they either agree with it or they think it's wrong for some other reason. That could be done by the Charter officer you're proposing, but it could also be done by somebody in-house attached to a committee. It could also be done by engaging outside legal services from time to time to get different opinions and different kinds of expertise that people might have in terms of legislation. 15-1

So I agree with Senator Joyal that the government is not about to issue notices of non-compliance on its own bills, but they might on other bills. I would like to you comment on whether they should be commenting on every bill, private bills or Senate public bills. There are also government bills that are initiated in the Senate. In some of these cases, they may issue incompatibility statements out of the department. 15-2

The advantage I see of the committee is that if you structure it similar to the physician-assisted dying, the government forces on the committee will not have a majority, particularly with the independent senators present, that would be the committee that keeps control of it, so there is some merit in that. A concern I would also have there is that it could add to the length of the legislative process. I'm not sure where it injects into the legislative process. It seems logical it would precede any other committee examination of the merits and substance of the bill—get it straight on the Constitution first. 15-3

You might comment on that as well, because if you get a second opinion, that's the main thing. It could go directly to the committee that is doing the substantive review as opposed to a special joint committee, as suggested. But it could go either way. 15-4

What are your comments on a few of those issues? I'm particularly interested as to whether all bills, private or public, should be subject to this process. 15-5

Mr. Kelly: Thank you for your question. I'll start with whether all bills should be subject to this process. I do not believe they should, and I will explain why. 16

What should by right or by statutory requirements have a statement of compatibility would be any bill introduced in response to a court invalidation of a statutory provision. If we look at Bill C-14 or the "respect for communities act," introduced by the former Harper government in terms of safe injection facilities, we would have benefitted from understanding why the government felt its legislative response was compliant with the Supreme Court decision. In that circumstance, statements of compatibility should be a requirement when a government is responding to a previous judicial declaration of invalidity. 16-1

The practice in New Zealand has been to have a statement of compatibility for every bill, and the likely problem with that is that important resources are squandered within the Department of Justice or the Crown law office in New Zealand, because not every bill has rights issues. In New Zealand, it's to the point where a bill to regulate the fisheries industry is required to have a statement of compatibility—how that bill relates to the New Zealand Bill of Rights Act. 16-2

You would have to be strategic in terms of the bills that would be subject to this process. Most government bills generated by the Department of Justice clearly would benefit from statements of compatibility, as would public security, health and so forth, but some departments less so. 16-3

In terms of private member bills, I would advocate that not all private member bills should be subject to a statement of compatibility except those that pass second reading. 16-4

The reason that I'm advocating this is if we look at the former Harper government—this is a paper I released last summer—they were increasingly using private member bills to amend the Criminal Code. Since Confederation, I think only 23 or 21 amendments to the Criminal Code have come via private member bills. So again, I wouldn't suggest all bills being subject to this process. It should be bills that are in response to invalidation, select private member bills that affect criminal justice policy legislation, and clearly bills introduced by the Ministry of Justice. 16-5

Mr. De Luca: Thank you for the question. I agree with much of what Professor Kelly had to say. In our report, there is one difference. There is one thing we don't recommend and that we don't have an organizational position on. We do not recommend that a compatibility statement should be issued for private member bills. 17

Instead, similar to Professor Kelly, our recommendation is that the Charter rights assessment should take place if a private member bill passes second reading. Part of the issue, as discussed, is a resources concern. Having that threshold of a second reading limits these sorts of Charter comments and assessments to much fewer private member bills. 17-1

We do not recommend that the Minister of Justice issue the compatibility statement. 17-2

Senator Eggleton: Okay, let me get this straight. You're saying if a bill of any kind passes second reading, that there should be a compatibility statement at that point? Automatically? 18

Mr. Kelly: On private member bills. 19

Senator Eggleton: Yes. Okay. 20

Mr. Kelly: I want to address the question by Senator Eggleton. You made an important point that there should be more public disclosure of these Charter statements, and we're seeing a little bit of that with the Department of Justice creating part of its web page. Added to that—this is what I advocated in the brief—I think it is also necessary to have a statutory obligation that the Minister of Justice is required to respond to an assessment created by a parliamentary committee. The reason that I'm advocating this is in light of the work that we did in terms of Australia. They have a process where statements of compatibility are required for bills, and ministers are required to respond to a committee's compatibility disagreement. 21

In this case, I'm talking about the Australian State of Victoria, and the difficulty is there is no requirement on when the minister is required to respond to the committee. In an article I published in the Australian Journal of Political Science three or four years ago, we found the ministers were responding, but generally when the bill was passed. So I would say yes, having these statements of compatibility in the public realm is important. Having a statement of compatibility or a counter-statement of compatibility produced by committee is also important. I think what is most important is having a statutory obligation on the sponsoring minister to respond to the committee. 21-1

In my brief, I suggested perhaps at the point of the bill being reintroduced at third reading, the minister should have a statutory obligation to respond to the committee and its compatibility disagreement. 21-2

Senator Dupuis: Mr. De Luca, I want to understand the motivation, from the Senate's perspective, for creating a rights officer position. From the perspective of your organization or of any organization of citizens interested in Charter compliance, the creation of this position would help obtain a very useful legal opinion when preparing a court challenge of a bill for non-compliance with the Charter. 22

In your brief, you said that certain House of Commons and Senate rules should now be modified. I want you to be clearer. In other words, the Senate has a responsibility as a legislator. I understand there's a crisis of confidence in the legislator, whether the legislator is the House of Commons or Senate. By creating an independent officer position, we may be giving ourselves a tool that would increase trust through a more complete and detailed review of Charter compliance. Can you be more specific about how the Senate could enhance its own Charter review, regardless of whether we create the independent officer position? 22-1

Mr. De Luca: Thank you for the comment. To address the specifics of the procedural rules that we have in mind, part of the issue is they do work in tandem with the idea that there will be reports coming from some sort of institution regarding Charter compliance along the way as amendments are received, so it might come at committee or report stages. 23

One of the primary amendments we have in mind is that an amendment concerning Charter compliance should be allowed after second reading so that the prohibition on an amendment that goes to the purpose and scope of the bill should not block a Charter-based amendment. Basically, the Charter should always be on the table. I don't think it's necessarily required by the other institutions we're proposing, but it is somewhat part of the design in so far as without these assessments and without the obligation that the Minister of Justice provide compatibility reports, if there weren't these additional measures, we would need to discuss. You might have problems with those using opposition to a bill, just dressing things in Charter language, so as to delay proceedings, et cetera, to filibuster proceedings. So that's one of the specific amendments we have in mind. But the extent to which it requires the other institutions, I think that is a question. 23-1

A similar one, and this is very important for any constitutional analysis, is that similar prohibitions on preamble and amendments going to the preamble. This is in part because the preamble, when you're doing a Charter analysis, often goes to the heart of the statutory purpose and looking at the reasonable limits on Charter rights, and what Parliament had in mind in enacting a bill. So for precisely that reason, limits on amendments to the preamble should also give away when there are Charter concerns, and possibly addressing reasonable limits on Charter rights, showing precisely what the government justification is for the limit. 23-2

Senator Stewart Olsen: I do not mean to be provocative in any way, but you can always find two lawyers who disagree totally on the Charter. I truly don't believe any government is going to put forward a bill that they don't think is Charter compatible. 24

It will introduce a certain stasis in government if you have to try to enact or put forward laws and you have to do all of this. For instance, when the Senate was trying to change the rules in the Senate with the Harper government, our constitutional expert said one thing, and the Supreme Court said another. I'm not sure this is a reasonable process. 24-1

Mr. Kelly: Thank you for the question. Your point was you can find two lawyers to disagree, right? But I would suggest that we're not really able to assess that under the current process. 25

If we look at the Schmidt case, I think what came out of that was—and this was part of the presentation by the Canadian Civil Liberties Association—that the government standard for incompatibility is so low that it will never be triggered. I think that's part of the problem. I think what came out of the Schmidt case if was that if there's a less than 5 per cent chance that a bill will be found unconstitutional, then it's considered compatible. That's not, in my opinion, a reasonable standard. 25-1

Two lawyers can disagree about constitutionality and compatibility, but with a standard that's so low, I don't think where they will come to any disagreement. What I'm advocating is not requiring governments to disclose incompatibility. What I'm asking for is having them present their reasoning why they believe the bill is compatible as a way to facilitate a more fulsome parliamentary debate on the merits of legislation, but I don't believe that's what we're getting or what we have gotten from any government. This is all governments, Liberal, Conservative and so forth. 25-2

Again, I've talked about the Respect for Communities Act. That was a direct response to a Supreme Court of Canada decision. I believe the government—and this is why I'm advocating statements of compatibility—is under an obligation to justify its bill in light of the Supreme Court decision. But that's not what our legislative process is providing for. 25-3

I believe that is the merit of a statement of compatibility. It makes the government disclose not why it believes a bill is incompatible, and again I realize those are unrealistic expectations, although New Zealand demonstrates it can happen. What we need, I think, is governments justifying what they're doing in light of the Charter of Rights and how it's compatible. 25-4

To go to Bill C-14, I believe the Minister of Justice was completely correct when she said we don't have to completely comply with the Supreme Court ruling to be compatible, meaning the legislation doesn't simply need to be a cutting and pasting of the Supreme Court decision. That being said, though, I think it's imperative on governments to justify their legislation in light of the Charter of Rights, and that's what a statement of compatibility provides and I think that's the value of it and that's what I'm advocating for. 25-5

Mr. De Luca: I have a few things also to add to that. The first is to talk a little more about the Schmidt v. Canada case. One of the important things is that the language in the Department of Justice Act actually says a report is required in the event of inconsistency. 26

So the standard of no credible argument or there are various internal standards that are sometimes discussed but the internal Department of Justice standards are quite low, that's an internal interpretation. I think that speaks somewhat to the incentives problem that you've discussed. There's a problem in compelling a government that's tabling its own legislation to then speak to the weaknesses of it. 26-1

As Professor Kelly was saying, part of our recommendation is attempting to compel justification for government bills so that then they can be engaged in terms of what exactly the justification is. 26-2

I also think that if, by statute, you were to require proof on why the bill is Charter compliant on a standard of balance of probabilities, there are other Charter and constitutional ways in which a government attempting to pass legislation that was dubious constitutionally or on Charter grounds, there's another route to take, and that's section 33 of the Charter and the notwithstanding clause. 26-3

Part of our discussion in the Schmidt intervention was that I think part of the logic of the Charter, both in section 1 and in section 33, is the belief that we envision departures from the Charter might make sense in a free and democratic society, but when we do depart from the Charter, we will more openly and frankly acknowledge it. Part of our concern in our intervention in Schmidt was that the fact that there has been no report since 1985 shows an unwillingness to live up to that constitutional design, where section 1 and section 33 are meant to bring these things out in the open. 26-4

Senator Stewart Olsen: When you speak of the standards in the department being about 5 per cent, or low, how do you know that? I've never heard of people setting a standard in a department that says, "Oh, well this is 50 per cent compliant, so therefore we think we can slip it through." I've never heard of that before. 27

Mr. Kelly: Edgar Schmidt created a website called Charterdefence.ca and posted various documents from his court case. One of them was a redacted Department of Justice manual on Charter assessment and compatibility, and there was a series of thresholds. The 5 per cent threshold was part of the document and that was part of Schmidt's case that the government was not honouring its statutory obligation under the Department of Justice Act. That's where that figure I'm citing is coming from. 28

Senator Gagné: If the Senate adopts this unilateral analysis system, should it systematically block a bill that the House of Commons wants to pass if it finds the bill incompatible? How do we reconcile the minority protection role of the Senate, as guardian of the Charter, with the deference owed to the elected House? 29

Mr. Kelly: Thank you for your question. I'll answer it with regard to the approach in the United Kingdom and the Joint Committee on Human Rights, because the Joint Committee on Human Rights is providing statements of compatibility or assessments of incompatibility. 30

In the United Kingdom, a negative report by the JCHR doesn't block a bill, because that's not the intention of the Joint Committee on Human Rights releasing its report. Its intention is to release either a report that agrees with the government, but if they're disagreeing with the government, it's simply to influence or educate parliamentarians when a bill is returned to the House of Commons or to the Lords, if that's where it's originating. 30-1

These are not intended as blocking or veto mechanisms. These statements of compatibility are in the parlance of an attempt to facilitate rights-based dialogue amongst parliamentarians and to, first of all, provide for a critical assessment of the government's position that its bill is compatible, and if the committee disagrees with that, to inform and educate parliamentarians generally that there might be compatibility issues. The assumption of this dialogue model, if we go back to the work of Hogg and Bushell, that brought the metaphor into the Canadian context, was ultimately it's for Parliament to decide which assessment it agrees with and whether or not to amend legislation. 30-2

Again, the intention is not to create gridlock within the legislative process, to allow a committee or a group of parliamentarians to block a bill if they provide a negative assessment; it is to provide a counterpoint for the continuing dialogue which is part of the legislative process when a bill is proceeding through the two houses. 30-3

Mr. De Luca: In our model, we're of the same opinion that the compatibility report and the assessments provided by the Charter rights officer wouldn't block legislation. There would be the initial burden of showing whether or not the tabled bill meets the balance of probabilities standard. 31

To bring it back to my earlier comment, one thing that this dialogue might compel is the argument that if that burden isn't met, Parliament still has other tools by which to pass the legislation, and that kind of argumentation might be more robust if this dialogue was taking place. It wouldn't be a complete block of the legislation but a requirement to acknowledge when section 33 is being invoked, or a clear demonstration of the section 1 limits that Parliament has in mind. 31-1

Senator McCoy: Perhaps you've answered the question I had around New Zealand. I recall you said there were 70 statements, 35 of which were statements of incompatibility. 32

Mr. Kelly: They were all statements of incompatibility; 35 are in regard to government bills. 33

Senator McCoy: What happened after these statements were put forward? 34

Mr. Kelly: I could say "buy my book," because we talk about it in there. 35

Senator McCoy: Would you autograph it for me? 36

Mr. Kelly: Yes, sure I will. 37

Senator McCoy: A first edition becomes valuable for grandchildren. 38

Mr. De Luca: [Kelly? vE] The book was entitled Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom, and one thing we noted in it was even though they have these disclosure processes, they have statements of compatibility and dedicated parliamentary committees that receive them and can provide counter-arguments. We found little indication that the legislative outcome was being altered. That's for a variety of reasons. I could outline them, and I'll do that briefly. 39

There's the theory of the model, and then there's the practice. We were finding that the practice of the model—when I say "we," my co-author, Janet Hiebert—the government generally was being alerted by the Attorney General that bills were incompatible, but the legislation was ultimately passing in the form in which the government wanted it. 39-1

Did that discredit our findings? No. I think what we pointed to in the book was that every Parliament is different. In the case of New Zealand, it's a mixed member proportional electoral system. Their Bill of Rights is not constitutional; it's statutory. The courts are unable to declare statutes unconstitutional. There were a number of constitutional differences that may explain that outcome that even though the Attorney General was alerting Parliament, legislation was passing in the form that the government intended. 39-2

Our argument was that perhaps was a result of their having what's called a "weak-form Bill of Rights." The courts could not invalidate legislation, so there was no political cost for the government to report against its own legislation or to make statements of compatibility that could be challenged. It's the same in the United Kingdom. Even though they have the United Kingdom Human Rights Act of 1998, the courts can't make declarations of unconstitutionality. They can only make declarations of incompatibility, which have no force of law. 39-3

Perhaps the experience in New Zealand and the United Kingdom with robust reporting obligations and limited effect might be explained by the status of the court in the Bill of Rights. I would argue that those limitations identified in our book don't exist in Canada, and therefore you may see robust reporting obligations resulting in legislative amendments. Why? Because of the status of the Supreme Court and the ability of legislation that has been identified as—which we know won't happen—incompatible or has justifications for compatibility that are on very questionable grounds, may result in amendments because of the ultimate ability of these bills to be reviewed and struck down by our courts. 39-4

I did talk about this in the brief that even though the experience of these other bills of rights may not be very positive, I'm not convinced that the Canadian outcome would be the same, because we have important differences. 39-5

Mr. De Luca: I agree with everything Professor Kelly mentioned. He's really the expert in this field, so I won't attempt to speak with the knowledge he does. 40

One thing I would say is that even in a case, for instance, such as New Zealand, where the reports have little effect in the sense that the legislation still goes through, there are often opposition statements to the bill that make reference to the reports. 40-1

In one sense, the result is the same, in that the legislation still goes through in spite of concerns that might be voiced through the report and through, say, backbenchers referencing the report. What is more difficult to say in the Canadian case, and even possibly New Zealand, is what are the long-term consequences of this citation of reporting? If such a citation makes its way through court analysis in a subsequent event, there might be long-term effects to this dialogue that aren't easily captured by whether the legislation is passed or not passed. 40-2

Senator McCoy: Am I taking it as true that in looking at these processes you're saying the overall time from introduction to final passage of a bill was not affected by this process? Would that be your observation? 41

Mr. Kelly: We didn't note that there was an extended parliamentary timetable for bills to be passed. In New Zealand, it's a different case, whereas the United Kingdom has a dedicated parliamentary committee to do this. In New Zealand, the assessments of compatibility are the responsibility of every select committee. It just became one of the functions of the committee. It wasn't delaying or extending the parliamentary timetable for the passage of legislation. 42

Senator Eggleton: Is there any concern about the Charter rights officer—and, of course, the Justice Department officials, they're in the same entity, the Government of Canada, the same paymaster. I realize that you can make the Charter rights officer an independent officer of Parliament. You could do it like the budget officer. But it strikes me that in this case there's a more head-on collision possible in terms of the officials in the Justice Department giving a legal opinion and this other person giving a counter-legal opinion. Is that of concern or do you think that would work okay? 43

Mr. De Luca: We think it would work okay. Certainly, there's a possibility of friction. There's a wealth of expertise within the Department of Justice, so the Charter rights officer would be in the somewhat sensitive position of sometimes confronting those analyses. I think part of what would be required is ensuring that the institution was set up with enough independence that it simply didn't become an appendage or a yes-saying institution. 44

Just to add to that on the appointment process we have in mind, we don't fully flesh out how the institution would be composed. The appointment mechanism we have in mind is something similar to the Auditor General, by a resolution of both houses and with agreement of all leaders of the major parties, and I think part of the purpose there is giving it sort of more of a consensus independence that, I think, would help in that regard. But the point is well taken. 44-1

Mr. Kelly: When Janet Hiebert and I were doing the research, we did a number of interviews in the United Kingdom with government lawyers, as well as members of the special joint committee. One of the tensions we noted was not a conflictual tension. The tension was the committee having the government take its position seriously. What I mean by that is: One of the challenges these parliamentary committees face is that, when a minister comes before the committee to justify the bill, as we know, the minister has an entire department providing support, assessing the legislation, whereas these committees tend to be staffed by one or two legal advisers. That tended to be the challenge that the committee faced, that the government's position was, "We've had 50 lawyers review our bill and provide us with an assessment that this is compatible. Why should we accept the position of one legal adviser?" 45

That was really the challenge. The way they tried to get around that in the United Kingdom was to appoint a notably senior and public figure, like David Feldman, to serve as the legal adviser to the committee. So there's always going to be that tension between the committee and the sponsoring department and minister. I'm not sure how you get around it beyond the JCHR approach. 45-1

Senator Joyal: I was listening attentively to Professor Kelly when he was answering Senator McCoy on the basis of the difference of systems between New Zealand, Australia and Canada. There is a fundamental difference that, in my opinion, structured the two sets of systems in the British tradition, which is the fact that Canada is a parliamentary democracy and Australia, New Zealand and Britain are essentially parliamentary supremacy. That is, Parliament has the last word. While we don't have the last word, the court has the last word, and the court frames our legislative initiatives. As you stated properly, there's section 1, which is the reasonable limit, but even the court has recognized that the reasonable limit is an evolutionary criterion. What is a reasonable limit today might not be a reasonable limit any time down the road. We've seen it with civil marriage. I could list all the court cases whereby even the Supreme Court has changed its opinion, i.e., medical assistance in dying. The court has changed its opinion from the early 1990s, not the 19th century, 1992, in the Sue Rodriguez case. The fact that the Parliament of Canada is limited in its initiative to respect the rights and freedoms of its citizens adds additional responsibility on parliamentarians' shoulders to make sure that, when they adopt the legislation, they ask themselves if that legislation is Charter compliant. When the Justice Act was amended in 1995 to add section 4.1 compelling the Minister of Justice to issue an inconsistency—and I read the act; I have it in front of me: ". . . to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms...." 46

The purposes and provisions. "Purposes" is the remedial nature of the Charter, as you well know, Mr. Kelly. So the litmus test is very high in terms of what the Department of Justice has to meet. We've seen that, in the last 40 years, it has not produced any real results. It is not on the Department of Justice's statement that any parliamentarian has been able to prepare his or her position in relation to the bill if the bill needed to be amended or to be opposed because there was a Charter violation in the bill. We have seen—I would not say countless, but—numerous decisions of the Supreme Court that have set aside legislation that was adopted in Parliament with the real knowledge that we were breaching the Charter. I can name the last one. You know it better than I. Bill C-51, in my opinion, is not Charter compliant. We will know it in the test court. Bill C-14 is not Charter compliant. The Minister of Justice of Quebec will refer the reasonably foreseeable death criteria to the Quebec Court of Appeal probably 30 days from now. 46-1

There are many decisions with which we're confronted as parliamentarians whereby we have to ask ourselves, "Is that bill Charter compliant?" When I say "Charter," purposes and provisions. If we don't have the capacity individually to make that pronouncement—and we have the obligation to make that pronouncement, contrary to our counterparts in New Zealand or Britain—then our responsibility is: With which tools will we be equipped to make that pronouncement? That, in my opinion, is the essential question we have to ask ourselves. Should the Senate, as a house of sober second thought, be gifted with those tools, considering that we come in second and are supposed to have a broader perspective, more reflexive, more independent, more sober, and everything else that you know are the characteristics of our legislative work. This is essentially, in my opinion, the question we're faced with: Do we satisfy ourselves that the way we do our job is fine, or do we come to the conclusion that there are fundamental needs to add to the individual capacity of senators and the institution to perform its constitutional duty? 46-2

As much as I think it's good—and I certainly don't question the comparative basis that you took, Professor Kelly, in relation to New Zealand and Australia; my first degree was in comparative law, so I know what it is to understand what others do—I think we have to focus essentially on the very nature of the Canadian system and how the system is defective and how our chamber could be improved in terms of its assessments of Charter purposes and provisions compliancy. I think that's essentially the fundamental issue that this committee is wrestling with in its reflection and its report to the whole of the chamber on what we propose should be a revamped approach to our capacity to test the Charter rights of Canadians in relation to bills that we're seized with pronouncing on. 46-3

Mr. Kelly: In answer to your question, my first book was entitled Governing with the Charter. As you may recall, I interviewed you for that book. 47

Senator Joyal: So now we have a conflict of interest. 48

Mr. Kelly: No, but, in the book, I argued—and I agree with you—the conclusion in that book was that I think there is a problem in terms of parliamentarians having an effective role in Charter scrutiny. In the book, I took issue with the criticism of judicial supremacy or judicial activism and argued that perhaps it's executive supremacy within the legislative process that might be the cause of judicial activism in the sense that we don't have appropriate mechanisms to allow ordinary members of Parliament from either house to scrutinize the government's legislative agenda. That's why I talked about executive supremacy maybe being what we need to confront within the Charter process. I completely agree with you that we need to have an enhanced capacity. Where I would disagree with you is that I'm not convinced that our Constitution establishes a system of judicial supremacy or that the courts are the final word on the Charter. The courts are only the final word on the Charter of Rights if parliamentarians allow the court to be the final word on the Charter of Rights. I'm not advocating the use of the notwithstanding clause here. I'm suggesting that the way to ensure that the court is not the final word is to increase the capacity of parliamentarians to engage in engagement of the government's legislative agenda from a rights perspective. 49

I do think the comparative experience is educative for Canada because these are systems that have attempted to create or facilitate Charter scrutiny within their legislative bodies, but it hasn't facilitated legislative changes. What we don't have in Canada are these processes. What I think we have to the benefit of Canada are important institutional differences, a strong court, the ability to declare legislation unconstitutional, and that if this enhanced capacity were to be instituted, we may have different legislative outcomes. 49-1

I agree with you that the capacity question is very important, but I don't think we should simply be deferring Charter scrutiny to the courts. 49-2

Senator Joyal: It's the worst thing, in my opinion. 50

Senator Dupuis: I'll follow up on what you said, Mr. Kelly. I want to take another look at your second recommendation. You spoke about the possibility of creating a joint parliamentary committee to review all the bills that pass second reading. Would the joint committee on the Charter intervene before second reading? How would it work? 51

Mr. Kelly: Thank you for the question. In terms of the proposed joint committee, my suggestion was not that the committee only intervene at second reading. That was a point with regard to private member bills. As we know, most private member bills are dispensed with after first reading. That was simply to narrow the focus. 52

The Chair: On behalf of the committee, I want to thank Professor Kelly and Mr. De Luca for your valuable and provocative comments. It has certainly got us thinking about this. 53

Honourable senators, I want to remind you that next Wednesday, we shall continue our work when our witness will be the Right Honourable Ken Macintosh, Presiding Officer of the Scottish Parliament. 53-1

We stand adjourned. 53-2

(The committee adjourned.) 54

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