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Department of Justice
The Department of Justice is being slowly starved of research capacity, lawyers and expertise. Successive budget and personnel cuts have hit the DOJ harder than many federal departments.
Planned cuts to the federal Department of Justice will result in the loss of 330 staff positions and budget reductions of $68 million by 2015. Further cuts will result in the disappearance of 400 positions by 2016-17. To date, lawyers have accounted for half of the cuts. Cuts to research and statistics staff – to 17 positions from 35 – accounted for about 20% of the DOJ budget reduction ($1.2 million) in April 2014.
The result is reduced federal capacity in areas such as business law, constitutional law, human rights and Aboriginal law.
According to reports, federal lawyers are shifting away from their historic role of providing independent legal counsel and “speaking truth to power.” Morale among government lawyers is reportedly at rock bottom in the wake of slashed research capacity, job threats, as well as concerns about instructions to lawyers to ignore likely violations of human rights laws.
DoJ Reports on Plans and Priorities show a steady downward trend in budget and human resources. The trend is eroding the Department’s collective capacity to act as the government’s independent counsel.
True, survivors of previous cuts are better rewarded today – in 2012, union negotiations by the Association of Justice Counsel resulted in increases of lawyers’ salaries by about 15%, bringing federal pay up to many provincial levels. While the union may have won that battle, DOJ appears to be losing the war in terms of capacity to fulfill its basic obligations.
By 2016/17, DOJ Report on Plans and Priorities shows that the Department will be whittled down to about 4,500 people. Cuts to research and statistics staff – to 17 positions from 35 – accounted for about 20% of the DOJ budget reduction ($1.2 million) in April 2014. Aboriginal law, tax law, regulatory and business law, and criminal law have felt the sting of the cuts.
The issue is not merely about a reduction in lawyers. Lawyers are given too little time to draft major bills. The Globe and Mail reports that more than thirty bills on justice, sentencing and corrections are in the works, and are being pushed through the system like “a sausage factory,” according to Mary Campbell, former director general of the corrections and criminal justice directorate. In the same report, lawyers were said to be given only one week to draft a new law on parole. Eighty-one percent of the Department’s lawyers say that the quality of their work has suffered because of short timelines.
Cuts to research and statistics mean that the capacity to deliver hard facts in response to policy proposals and draft legislation is also diminished. Indeed, this appears to be what was intended. “Previous legal research in the department sometimes caught senior officials off-guard . . . and may even have run contrary to government direction,” according to an internal report written for Deputy Minister William Pentney, obtained by the Canadian Press.
Central to the Attacks on Department of Justice: Hostility to human rights in many manifestations
Early on, Stephen Harper expressed open hostility about “Liberal courts” and “Liberal bureaucracy.” Early moves in this direction include the 2006 elimination of the Court Challenges Program and the Law Commission of Canada as well as budget cuts to numerous organizations with human rights and equality mandates.
Conservatives saw the Department as excessively focused on human rights, as compared to the emphasis placed by former Justice Minister Irwin Cotler, a strong advocate of the Charter and a constitutional scholar.
Disregarding the Charter has had consequences for the Conservatives. Cuts to the Department of Justice diminish the resources available to ensure that the government complies with its Charter obligations under the Constitution Act, 1982.
In December 2012, federal lawyer Edgar Schmidt began a court action seeking a declaration that the Minister of Justice and Deputy Minister were failing to take adequate steps to verify whether bills and regulations violate the Canadian Bill of Rights and the Charter. According to Schmidt, the Department of Justice “had its lawyers apply only a flawed and minimal screening test. It does not identify and report on legislation that the department itself considers to be almost certainly illegal and unconstitutional.”
Schmidt's allegations have not been proved in a court of law. However, the Attorney General’s statement of defence acknowledges that the Minister reports to Parliament only where he considers that “there is no credible argument to support the proposed measure… This requires substantial … certainty of inconsistency[.]” Practice directions from the Department to its employed lawyers, which were made public as a result of Schmidt’s lawsuit, confirm that before a provision will be reported as inconsistent, it must be considered to have a probability of being so found by a court of somewhere in the high 90s in terms of percentage.
The directions, entitled “Effective Communication of Legal Risk” contain a bar graph, shown at left, with the different risk levels and the consequences of each assessed level of risk (image from original DOJ document). The directions go on to say that the Minister’s statutory obligation is only “engaged where the level of likelihood is at the far end of the fifth range” and is “manifestly” unconstitutional. In other words, not only is the Minister’s responsibility said to be engaged only if the risk of losing a constitutional challenge exceeds 81%, the risk must be at the “far end” of the “very high” range, namely a risk of more than 90% or more of losing a constitutional challenge.
Hostility to human rights is apparent not only in the government’s approach to laws and regulations, but also in cuts to social programs with serous human rights consequences. In 2014, for example, the Federal Court of Canada issued a stinging rebuke to the federal government’s decision to reduce access to health care to refugee claimants and others seeking protection in Canada. The Federal Court of Canada found that cuts to the program which reduced access to health care and medication for vulnerable, ill people were illegal and discriminatory, and a violation of the Charter’s protection against “cruel and unusual treatment.”
Role or Position
The Department of Justice serves the democratic, constitutional Canadian state (and indirectly its citizens) under the leadership of the Minister of Justice.
In serving the state (or public), one responsibility of the Minister of Justice is to provide legal advice to the executive officers of the Canadian state (i.e., its ministers or the “government”). The Minister of Justice is effectively the chief legal advisory officer of the Canadian state. The same individual also serves as the federal Attorney General and bears the responsibilities of what is essentially the role of chief litigation officer of the Canadian state.
Because the person who is both Minister of Justice and Attorney General serves the state (or the public), that individual has a duty to give advice that is independent of the particular interests of the government of the day. There is a further duty to act in the litigation context in support of the rule of law and the public interest. The Department of Justice Act confirms this duty in assigning to the Minister of Justice the duty of assuring the administration of public affairs is in accordance with law.
Canadian law also requires that:
- the Minister of Justice examine government-sponsored bills and enacted regulations for compliance with the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms (“human rights laws”). If a provision of a bill or regulation is, in the opinion of the Minister, inconsistent with the Charter, the Justice Minister is obligated to notify Parliamenti; and
- the Deputy Minister of Justice examine draft regulations to ensure that they are authorized under their enabling Acts and that they are not inconsistent with the human rights laws already mentioned.
An explanation of these fundamental legal obligations and the distinct role of the Minister of Justice are mysteriously absent on the Department of Justice’s website, which refers to the Department by describing its structure, for example, as a medium-size government department containing about 5,000 lawyers.
iThese obligations are found in s. 3 of the Canadian Bill of Rights, s. 4.1 of the Department of Justice Act, the regulations made under those provisions, and in subs. 3(2) and 3(3) of the Statutory Instruments Act.
Implications and Consequences
Human rights: Cuts to the Department of Justice diminish the resources available to ensure that the government has the capacity to address complex legal issues effectively.
Democracy: If the Minister of Justice withholds information from Parliament that it is required to provide regarding the conformity of proposed legislation with human rights laws, then elected members are less able to make informed decisions. It is true that the Minister of Justice is not the formal legal advisor to Parliament, but the Minister nonetheless has clear legal obligations to Parliament that are set out by law. Similarly, if the Deputy Minister of Justice passively allows regulation-makers to make regulations that are likely or even almost certainly unauthorized by the relevant Acts of Parliament, the decisions of Parliament are being flouted.
The overall process of legislative drafting is weakened by these cuts to the Department, its staff levels and its research capacity, in all areas of its work.
Knowledge: To address the apparently unacceptable outcome that research might indicate that government plans are irrational or illegal, the Conservative government has decided to rid itself of the inconvenient legal research. Elected officials are thus no longer required to encumber their minds with facts. As well, by cutting the number of lawyers, as well as the statistical and research capacity available to lawyers, lawyers have to rush the drafting of complex laws, increasing the risk of costly and embarrassing legal challenges.
Rule of Law: The legislation governing the Department of Justice and the allegations contained in the Schmidt case raise important questions and issues: surely, there is a constitutional obligation on government to actually comply with the Charter, regardless of whether or not there is a statute or regulation saying so. If so, is there a proactive obligation on government to ensure that legislation that it proposes to Parliament has a reasonable prospect of actually being constitutional?
Rule of law: If the statutory provisions require a more rigorous examination than is being conducted of proposed legislation, then the law is not being followed. It is shocking that any government would feel free to introduce legislation in Parliament knowing that it is far more likely than not to be inconsistent with the Charter, part of Canada’s Constitution. It is equally shocking that the government would reduce the resources that the Department needs to carry out this crucial work.
Published on: 12 September 2014