A Little Due Diligence, Please

In the last couple of weeks, two laws with contentious moral underpinnings have made headlines. The first is Ottawa’s proposed prostitution laws that criminalize the purchase of sexual services and much of the communication, including advertising, which surrounds it. The other is Quebec’s law legalizing physician-assisted dying, adopted following a free vote with support from all parties in the National Assembly. Both laws raise serious concerns as to their constitutionality and raise an important point about law-making in Canada today: Are our elected lawmakers doing their constitutional due diligence?

Bill-36 was the federal government’s response to last year’s Bedford decision, in which the Supreme Court struck down sections of the Criminal Code aimed with preventing public nuisance as well as the exploitation of prostitutes. The provisions were found to infringe the rights of prostitutes under s. 7 of the Charter, by putting their lives in danger. Now, the amendments introduced by Bill C-36 are significant, and even go so far as to change the aims of the new prohibitions to discourage “the exploitation that is inherent in prostitution” – this with a view perhaps to affecting the constitutional analysis of the new prohibitions. For more on that, I’ll simply refer you to Michael Plaxton’s analysis – but the long and short of it is that the law might just be crafty enough survive a new Charter challenge. Even so, it is by no means a done deal that the bill will be found to be constitutional. The folks at Pivot Legal, which was heavily involved in both the SWUAV and Bedford cases, have certainly made it clear that they believe the bill “defies the spirit” of the Bedford decision. What does seem certain is that we’re going to re-litigate the issue, at great cost to taxpayers and, more importantly, at great cost to the marginalized people most directly affected by this law.

In Quebec, the story is a little different. There appears to be fairly broad support (though hardly unanimous), among the public inside the province, for physician-assisted dying. Of course the rub in this case is that assisted suicide and euthanasia are illegal under the Criminal Code. So the province is making the case that the law falls under provincial jurisdiction – because end-of-life medical care is a health issue. The feds are exploring their options. They could challenge the constitutionality of Quebec’s law and invoke federal paramountcy. Then again, Paul Daly has raised the intriguing possibility (though by no means a certainty) that Crown prosecutors in Quebec, could, in such a scenario, simply exercise discretion to prosecute cases of assisted suicide. Or Quebec’s Justice Minister could simply instruct prosecutors not to press charges against contraveners of the Criminal Code’s euthanasia provisions — hardly an ideal situation in a country where the rule of law is supposed to mean something. But the more likely scenario is that everybody will wait for the Supreme Court to hand down its ruling in Carter et al. v. Canada on whether the federal Criminal Code provisions against physician assisted-dying are unconstitutional. For now Quebec’s Health Minister has only affirmed that the province will move ahead in implementing the new law. At the same time the federal Minister Justice is warning physicians that they could be committing a crime. Caught in the middle of this whole mess are the end-of-life patients.

Of course, it is possible that Quebec’s right-to die legislation will survive intact. Indeed, the National Assembly had commissioned a report from three renowned legal experts who concluded that the province could implement a provincial framework for doctor assisted dying without coming into conflict with federal criminal law (though there are many who would disagree). But this is by no means an indication of common practice. Just a few months ago, Quebec’s previous government was assuring everyone that it had all the legal opinions it needed to give it comfort that its controversial Secular Charter would stand up to constitutional scrutiny. Then, following its defeat at the polls, the minister in charge of the file had a pretty rough time explaining why he hadn’t wanted to make them public.

So there has to be a better way to sort through these issues. No doubt, elected governments are entitled to push their legislative agenda. But where it’s obvious that a constitutional challenge will take place, it’s worth considering how Canadians could benefit from a more efficient and transparent mechanism for reviewing the constitutionality of our laws. Governments, current and past, have been known to ask the Supreme Court to resolve a political and legal impasse. But the reference function is not always appropriate as it carries it’s own set of risks (The Court may answer questions in an overly broad manner, for example). Irwin Cotler has introduced a private member’s bill that would require every bill introduced in Parliament to be examined by the non-partisan law clerk and parliamentary counsel of the House. But there is no guarantee that parliamentary officers will be effective at holding the executive branch accountable.

I’m not sure where the solution lies, and would love to hear people’s opinion on the matter. Regardless, we live in a constitutional democracy where navigating the legal system is a long, hard and expensive slog. Ottawa and the provinces owe it to their constituents to make sure they do their due diligence when adopting laws.



  1. David Collier-Brown

    I’m rather horrified to find that federal legislative draftsmen aren’t already tasked with reporting Charter risks to the legislators. I saw a newspaper report suggesting they were asked not to do so, but I didn’t think it credible at the time…

  2. I think the original post overstates the problem. All governments in Canada have specialists in constitutional law and if a policy proposal is seen to raise consstitutional issues (and we’re all pretty sensitive to them), their opinions are sought. Ontario does not assign numerical risks (90% chance of validity/invalidity) but high/medium/low risk. But the elected folks are allowed to choose a high-risk option for their own purposes, which may well accord with what they consider the public interest.

    I cannot recall an instance (and probably couldn’t talk about it if I could think of one) where a proposal was considered out-and-out unconstitutional by the specialists. If it were, then the ‘convention’ is that an Attorney General would have to so advise Cabinet, and if Cabinet insisted on the policy, the AG would have to resign. As I said, that’s a hypothetical.

  3. At the federal level, at least according to one (ex-) employee of the Justice Department, staff are told not to bring potentially unconstitutional proposals to the attention of the AG. Presumably to avoid the AG having to do his/her job in advising Cabinet (or to avoid having to resign when Cabinet replied, “Damn the Charter… full speed ahead!”).

    For further information on the whistle-blowing lawyer: Edgar Schmidt try here — http://www.theglobeandmail.com/news/politics/whistleblower-prompts-call-for-more-debate-on-whether-bills-violate-charter/article7449909/
    and there is more on Schmidt’s challenge to the constitutionality of the Attorney General’s instructions to the Ministry here: http://charterdefence.ca/index.html

  4. I suspect that both the Quebec and Federal governments are well aware of the possibly unconstitutional nature of these pieces of legislation.

  5. Sure, elected officials are entitled to push a high-risk option. But shouldn’t it then be made clear to the public and the other members of the legislature that they are taking that risk? It´s a question of tranparency.

  6. Informative article; thanks also to Anne V. for the links re whistle-blowing lawyer.

  7. Generally governments in Canada do not publish the legal opinions they receive, either from internal or external counsel. Others are free to state their opinions on government actions. Why would opinions on constitutional risk be different from any other?

    For that matter, governments do not publish all the policy options they consider in dealing with issues before them. Others can speculate about what else the government might have done, and say what the government should have done.

    Some US jurisdictions publish some or all of the legal opinions given to government. If you believe Canadian governments should follow that practice, feel free to argue it here – maybe in a new column, since it’s a much bigger topic.