Week 5 - Executive Power and Federalism

Centralization Thesis

• Argument: Over time, political power in a federal system tends to become increasingly concentrated in the central (national/federal) government, even if the constitution formally divides powers between levels of government

• In Canada, power is divided among different spheres of government, with each level exercising authority within its own jurisdiction. Sections 91 and 92 of the Constitution Act, 1867 allocate powers between the federal and provincial governments

• Federalism accommodates Canada’s geographic size, economic diversity, and linguistic differences by allowing provinces to enact laws that reflect local preferences and regional priorities

  • Result: federalism permits significant policy variation from one province to another

• Canada is a decentralized federation → provinces possess substantial autonomy and constitutionally protected powers

• Charter interpretation shaped by the balance of power between the federal and provincial governments, though Supreme Court rulings have often favoured the federal government

  • This creates tension between federalism and rights protection: federal and provincial governments operate within separate, non-hierarchical jurisdictions, and the federal government cannot directly interfere in provincial policymaking

• However, SCC sits at the top of the judicial hierarchy, and its justices are appointed by the Prime Minister

  • The Charter can enable the federal government, through federally appointed courts, to centralize authority and shift power away from the provinces toward Ottawa

• How they do this:

• 1) Courts can strike down provincial legislation, intervening in provincial policymaking and acting as an indirect arm of the federal government by invalidating policies Ottawa opposes

• 2) Provincial autonomy is weakened when courts impose uniform national standards, reducing policy diversity and forcing provinces to abandon locally tailored policies in favour of federally enforced norms set by judges appointed by the Prime Minister

  • Judicial (or “legislative”) courts allow the federal government to achieve policy outcomes through the legal system that it could not secure through the political process

Does the Charter have the potential to undermine provincial autonomy and the ability of the provinces to establish policies that accord with local needs and preferences? Has the centralization thesis been realized? What does the work of Sigalet and Snow suggest?

• Early Activism: appeared that the centralization thesis might be realized, as the SCC engaged in strong judicial activism by interpreting rights broadly and applying them aggressively, resulting in significant legislative invalidation

• Between 1985–1986: 64% of rights claimants succeeded before the SCC, with provincial legislation struck down more frequently than federal laws, supporting concerns about centralization

  • Intrusion into public policy, provincial legislation struck down more than federal, controversial judicial activism

• However, this early phase of judicial activism did not persist, and the rate of legislative nullification began to decline

• By 1989, federal legislation was struck down more often than provincial legislation, signaling a shift away from early trends

• The general consensus became that while the centralization thesis was plausible, it had not yet fully materialized and remained more theoretical than real

  • A key factor preventing the thesis from being realized was the Court’s federalism jurisprudence - SCC constrained its own role, preventing excessive centralization through Charter interpretation

• 2011-2020: A renewed pattern, with provincial legislation struck down at higher rates (62%) than federal legislation (51%)

• Partisan conflict between the Trudeau Liberal government and Conservative-led provinces has fuelled claims that the federal government is overstepping its constitutional authority

  • Provinces have responded by invoking section 33 (the notwithstanding clause) more frequently than ever before

• As a result, it is increasingly difficult to argue that centralization is not occurring, as the Charter is now significantly affecting provincial governance

  • The Charter is increasingly constraining provinces’ ability to legislate, thereby undermining provincial autonomy over public policy

How did the executive respond to enactment of the Charter and the invalidation of federal legislation?

• The executive branch has three components: the Crown (represented by the Governor General), the political executive (the Prime Minister and Cabinet), and the permanent executive (public servants and the bureaucracy who assist in developing law and policy)

• In the early years of the Charter, the courts engaged in strong judicial activism, adopting a non-interpretivist approach and signaling that they took Charter complaints seriously and were willing to strike down legislation

• This judicial approach convinced both the political and permanent executive that legislation had to carefully consider Charter rights or risk being invalidated by the courts

• As a result, a new rights-conscious culture emerged within the bureaucracy, requiring laws to be drafted with explicit attention to Charter compliance

• The primary way the executive adapted its law-making process was through Charter proofing

Charter Proofing

• Two streams of CP, used to assess policy initiatives of charter compliance before rights are put into law

• 1) Aimed at helping line departments (ministries) draft legislative proposals in a way that is charter compliant 

  • How its carried out: every line dept has its own legal services unit (LSU), in early stages of formulating a bill, ministry lawyers in LSU will examine proposed bills to look at whether there are any charter compliance issues

  • They rely on guidelines from lawyers in DOJ, they have lawyers in HRLS who train and provide guidelines to lawyers in LSU, to engage in charter proofing

  • Later in policy making process DOJ will assess for charter compliance 

  • DOJ level: how do they carry out charter proofing? Create a charter risk analysis

What is a Charter statement? According to Macfarlane, Hiebert and Drake, have Charter Statements succeeded in bringing Parliament into discussions about whether prospective legislation is Charter compliant?

• Legislative amendment that took effect in 2019 (Bill C-51) 

• Have charter statements succeeded: trio of political scientists say no, have not brought parliament into discussion of legislation because they lack in information one would find in a charter risk assessment, which is better suited

  • Don’t give enough info for members to have discussion of rights interpretation and reasonable limits

  • Charter statements actually are very general, identify charter rights that may be impacted by bill, and whether impact would be positive or negative, also raise some relevant principles and general commentary on relevant case law

  • But do not promote conversation about charter violations and reasonable limits - exactly what parliament should be doing but they cannot because charter statements not comprehensive enough to allow discussion to occur - failure and not informative

  • Parliament has no role in interpreting charter, and no dialogue between courts and MPs, parliament has no clue what bills they are passing/striking down

What are the benefits of Charter risk assessments? On what grounds are they criticized?

• CRA: primarily refers to the federal government's mandatory Charter Statements, assessing potential impacts of proposed laws on Canadian Charter of Rights and Freedoms rights

• Charter scholars say it's great: better drafted legislation from a rights perspective, government decreasing chance of struck down legislation

• How are charter risk assessments undertaken? Look at other previous court cases

  • Manfredi and Kelli: you only use what the court says is right or wrong, distortion of democratic process - legislators must turn their own minds and rely on their own interpretations to draft legislation, not according to what the court said

How does s. 4.1 (1) of the Department of Justice Act (1985) provide a second stream of Charter proofing?

• Two streams of CP, used to assess policy initiatives of charter compliance before rights are put into law

• 2) s 4.1(1) bills be scrutinized for charter compliance before submitted to House of Commons, and requires Minister of justice to report and flags to House if any language inconsistency exists between bill and charter

  • MOJ has obligation under statute to examine proposed legislation and notify house if any inconsistency with charter exists

  • How many times has it happened (% of all bills presented): have never notified house that a bill coming before it has a charter inconsistency

    • Yet ⅓ of legislation has been struck down since 1984 (beginning of charter)

Who is Edgar Schmidt and what legal challenge did he mount against the federal government?

• In 2012, Schmidt filed a lawsuit against the DOJ, the Minister of Justice, and the Deputy Minister of Justice, arguing they were not complying with section 4.1(1) of the DOJ Act

• Schmidt claimed that DOJ Charter-proofing practices were unlawful because they failed to fulfill the obligation in section 4.1(1), meaning there was effectively no real Charter review of legislation

• His claim was supported by four internal DOJ documents, which instructed DOJ lawyers to state that proposed legislation was Charter-compliant and provided a standard for identifying Charter issues under section 4.1(1)

  • Under this standard, all that was required was the existence of a “credible argument” that legislation complied with the Charter (at least 5% chance of being passed)

• Schmidt advanced three main arguments:

  • 1) The credible-argument standard failed to ensure that proposed legislation was actually Charter-compliant, meaning section 4.1(1) was not being meaningfully applied

  • 2) He challenged the credible-argument standard itself, arguing that the threshold for Charter compliance should be higher, specifically the balance of probabilities (51%), where legislation should be more likely compliant than non-compliant.

  • 3) Schmidt questioned who is responsible for challenging unconstitutional legislation if the Minister does not fulfill their duty under section 4.1(1), noting that this burden shifts to individuals, which is costly and inaccessible, contrary to Parliament’s intent that the Minister identify inconsistencies.

• Schmidt lost the case in 2016, appealed unsuccessfully to the Federal Court of Appeal in 2018, and was denied leave to appeal by the Supreme Court of Canada

• Both courts held that the credible-argument standard was acceptable for determining whether Charter issues needed to be reported to Parliament

• The Federal Court of Appeal justified its decision by narrowly interpreting the Minister’s obligation under section 4.1(1)

  • The Court emphasized the distinction between consistency and inconsistency, holding that section 4.1(1) only requires the Minister to report legislation that is clearly inconsistent with the Charter

  • As long as a credible argument for Charter compliance exists, the Minister cannot conclude the legislation is inconsistent and therefore has no duty to report it to Parliament

• In practice, this means nothing has changed, as Parliament is unlikely to receive reports of inconsistency because identifying them would make legislation appear problematic

• Reporting inconsistency could expose legislation to judicial invalidation and draw public attention to potential Charter violations

  • This raises the question of when Parliament will have a meaningful opportunity to assess whether legislation complies with Charter rights and what this means for dialogue theory

• Any dialogue about rights and reasonable limits is occurring between the courts and the executive (Cabinet and the Prime Minister), not between the courts and Parliament, since Parliament does not independently assess Charter compliance

federalism jurisprudence 

• Judicial decisions in which SCC has shown respect for federalism and nature of federal system by interpreting charter rights flexibly to accommodate policy diversity among provinces

• Court goes out of its way to allow provinces to create policy to fit their needs and preferences

• Argument that court’s sensitivity to importance of federalism that stopped centralization thesis from happening

Auton v. BC (2004) (SCC)

• Example of federalism jurisprudence

• Charter challenge to BC medicare protection act (MPA)

• MPA provided funding for core medical services - designated/determined by federal government under Canada health act (CHA)

  • MPA also said that province could fund non-core services, could choose to do so that were not designated under CHA

• At the time, BC not providing funding for new behavioural therapies for autistic children, non-core therapies that government had chosen not to fund

  • Were funded in other provinces

• Auton brought an equality claim under s15 of charter, claiming it was discrimination based on disability that government did not fund those services

  • If Auton had succeeded it would have led to the court establishing a national standard (everyone would have to fund this service)

  • BC on why they didn’t fund: 1) therapies are controversial, 2) small population dispersed over very large geographic area, makes delivery of care expensive

    • Regional differences of this province have to be taken into account when court decides if we have violated s15, court agreed

  • In refusing to propose a national standard, court showed respect for policy differences for provinces, sensitivity to provincial autonomy, insulated BC from effects of charter

    • Affirmed importance of federalism and importance for provinces to serve their populations in a way that is right for them

Political Executive, Permanent executive, Line Department/Ministry

• Political Executive: PM in Cabinet

• Permanent Executive: Public servants, bureaucracy - who help Political Executive to craft law and policy

• Line Department/Ministry:

  • Legal Services (LSU)

  • Human Rights Law Section (HRLS) - same as LSU

  • Department of Justice (DOJ)

Risk Analysis

• Everyone engages in this procedure

• Smaller component of a broader risk assessment

• Consider 1) DOJ lawyers assess likelihood of legislation being struck down, how it may be saved as a reasonable limit under s1; 

• 2) What will the consequences be if the government loses? how will public policy be affected, financial consequences for government if it has to design and implement new policy; 

• 3) Making suggestions to modify proposed legislation, what they think will improve legislation from charter perspective (spectrum: low risk of nullification to manifestly unconstitutional - department either required or not to follow DOJ lawyers advice)

• Accompanied by charter risk assessment, help cabinet decide if they should proceed with legislation and advance it to parliament

Policy Distortion

• When governments abandon their own reasoning about what the Charter should mean and how to balance rights with public policy, instead deferring to judicial interpretations

  • Governments should not shape legislation primarily out of fear of how courts might respond, as anticipating judicial reactions too early can lead to policy distortion

• Manfredi and Kelly argue that this practice is anti-democratic because it shifts decision-making authority away from elected officials, who should have the final say in public policy, not the courts

• Democracy is undermined when legislators rely on courts rather than their own judgment—this reflects judicial supremacy, not genuine democratic dialogue

• Example: When legislators draft or revise legislation specifically to mirror prior court rulings rather than independently assessing Charter compliance

• According to Manfredi and Kelly, this shows that the legislature has subordinated itself to the judiciary in the policy-making process

• Legislators must turn their own minds to the Charter, including how rights should be interpreted, what constitutes reasonable limits, and which policy options they believe comply with the Charter

• Governments should act based on their own constitutional judgment, not avoid or adopt policies solely because they fear a law may be struck down by the courts

The Credible Argument Standard

• An internal government document stated that as long as a credible argument can be made that a bill complies with the Charter, officials should simply state that it is Charter-compliant.

• A “credible argument” does not need to be a winning or likely argument—only one that is capable of being reasonably argued in court.

• Under this approach, Department of Justice (DOJ) lawyers are expected to advise the Minister of Justice that there are no Charter issues under section 4.1(1).

• Even if legislation has only a 5% chance of being upheld, the existence of a credible argument is enough for the DOJ to treat it as unproblematic.

• In such cases, there is no obligation to warn or advise the Minister or Parliament about potential Charter risks.

• As a result, legislation can be deemed Charter-compliant even when there is a 95% likelihood that it will ultimately be struck down by the courts.

Dialogue Theory

• Dialogue going on about rights and reasonable limits going on between the Court, Cabinet and PM

Charter Statements

• These changes were a response to the Schmidt litigation and to criticism that there was insufficient legislative oversight of Charter issues.

• Previously, elected officials had little role in assessing whether bills raised Charter concerns, as they lacked access to legal analysis and could not meaningfully discuss potential issues.

• Under section 4.2(1), the Minister of Justice now has an obligation to produce a Charter Statement when new legislation is tabled.

• Charter Statements are intended to 1) identify how a bill may engage Charter rights and freedoms and to 2) explain why the bill’s sponsor believes it complies with the Charter

  • The goal was to increase transparency and improving democratic dialogue between legislators and courts

s. 4.2 (1) of the Department of Justice Act (2018)

Department of Justice Act, 1985

4.1 (1) Subject to subsection (2), the Minister shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are consistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any inconsistency to the House of Commons at the first convenient opportunity.

Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act and to make

consequential amendments to another Act, 2018, c.29, s.73.

Royal Assent 2018; in force on December 13, 2019.

73 The Department of Justice Act is amended by adding the following after section 4. 1:

Charter statement

4. 2 (1) The Minister shall, for every Bill introduced in or presented to either House of Parliament by a minister or other representative of the Crown, cause to be tabled, in the House in which the Bill originates, a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms.

Purpose

(2) The purpose of the statement is to inform members of the Senate and the House of Commons as well as the public of those potential effects