Charter Statements are documents prepared by the Minister of Justice upon the introduction of a new bill. They are a tool designed to reassure the public that the government has considered potential constitutional problems that may arise as a result of its proposed law. A Charter Statement notes the potential constitutional issues that the legislation may present, and how these issues could be justified. However, a Charter Statement itself will not explicitly say if a Charter right would be violated by a provision in the bill that is proposed.
Under section 4.1.1 the Department of Justice Act, it is the responsibility of the Minister of Justice to ensure that bills introduced into Parliament comply with the Charter. Charter Statements are one way of doing this. Therefore, to ensure that the public is aware that the government has taken its responsibility seriously, it has tabled Bill C-51 - An Act to Amend the Criminal Code and Department of Justice Act. This Bill states that Charter Statements will become mandatory for every piece of legislation introduced once it is passed. As stated by the current government, “[r]equiring the introduction of a Charter Statement for every new Government bill represents a new, more open and more transparent way of demonstrating respect for the Charter.”
The practice of identifying a bill’s constitutionality has manifested in different ways before the introduction of Bill C-51. Before the use of Charter Statements, ministers presenting new bills gave their implicit approval of a new bill’s constitutionality. Academic James Kelly points out that “Charter vetting” has always been a mandatory practice, as “[a] department cannot submit a memorandum to cabinet unless the DOJ [Department of Justice] has assessed the risk of judicial invalidation and must certify its constitutionality.”
An Example of a Charter Statement: Bill C-45
Charter Statements are a separate document that accompanies a bill upon its introduction to the House of Commons. Every Charter Statement begins with an explanatory note, stating the purpose of a Charter Statement, which is the same for each bill. This note makes clear that the statement is not a comprehensive overview of Charter considerations, as bills see a number of amendments from their first reading in the House of Commons to their Royal Assent. It also identifies section 1 of the Charter as a balancing mechanism, noting that even though there may be a violation of the Charter in the proposed legislation, it may be one that can be justified by the government. Further, each Charter Statement makes a point of including that a Statement “is not a legal opinion on the constitutionality of the Bill.”
Following this explanatory note is a brief explanation of the bill’s purpose, along with an overview of the Charter “engagements” the bill presents. For example, in Bill C-45, the Cannabis Act, potential engagements with the Charter are categorized by different topics the legislation addresses. Some of these include criminal offences created through the Bill, restrictions on promotion/packaging/labeling, and “ticketable offences and administrative monetary penalties”. Regarding criminal offences, the Statement identifies that these provisions could engage section 7 of the Charter, which deals with life, liberty, and security of person. The statement explains what section 7 of the Charter is, and that “[a]ny criminal prohibition that gives rise to the possibility of imprisonment engages the section 7 right[.]” It also provides considerations that support the consistency of the provisions with the Charter that potentially engage section 7, citing case law and explanation. Therefore, the Charter Statement points out that the criminal offences provisions in Bill C-45 may engage section 7 of the Charter, letting the public know that this is a possibility, not a certainty. In short the government has, as a matter of its accountability to the public, considered this possibility and nonetheless feels confident in tabling the Bill.
James B. Kelly, “Parliament and the Charter of Rights: An Unfinished Constitutional Revolution” Policy Options 1 February 2007, online http://policyoptions.irpp.org/magazines/the-charter-25/parliament-and-the-charter-of-rights-an-unfinished-constitutional-revolution/[Parliament and the Charter of Rights]
Department of Justice Canada, “Cleaning up the Criminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter” Government of Canada 07 June 2017, online <https://www.canada.ca/en/department-justice/news/2017/06/cleaning_up_the_criminalcodeclarifyingandstrengtheningsexualassa.html>
Department of Justice, “Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts” Government of Canada29 May 2017, online <http://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c45.html>