Sean Fine outlines many of the « justice- » (or at least law-) related files that will require the incoming government’s attention. Some of these are quite urgent, such as assisted suicide legislation and ongoing court challenges to laws enacted under the Conservative government. Some others, while lacking the immediate spur of court-imposed deadlines, ought to be dealt with promptly as well, such as anti-terrorism legislation and the treatment of prisoners. There might be a couple of less important items on Mr. Fine’s list (is there really any need for a revived Court Challenges Programme? There seem to have been plenty of those even without federal funding), but clearly, there will a lot of work to do, and to do quickly.

Indeed, I can think of a few more tasks for the incoming Justice Minister (some of these fall within the broad categories outlined by Mr. Fine, but I think they are worth mentioning specifically):

  1. Restoring and extending the right to vote to expatriates, who are now disenfranchised after five years abroad. The Supreme Court has been asked to rule on the constitutionality of this disenfranchisement, but Parliament can save the Court’s time and taxpayers’ money by legislating. Justice demands no less.b. To all Canadians, millions of them, who might lack the identification documents required under the amendments to the Canada Elections Act enacted over the last few years. Again, there are ongoing court challenges about this, but Parliamentary intervention would be speedier and more efficient. Fraud during in-person voting, which these rules ostensibly prevent, is a marginal if not non-existent phenomenon anyway, and it has been empirically shown that voter confidence in the electoral system, which is invoked to justify them in court, is not increased by more stringent identification rules.
  2. Preventing a repetition of the Senate appointments mess. Let’s suppose the Prime Minister will deal with the outstanding vacancies and set up, as he promised, arrangements for future appointments to go to deserving individuals. That would not be quite enough. It is also important to lock future Prime Ministers, who might not be committed to the Senate as an institution, into nevertheless making it work in accordance with the constitution until they can gather the necessary support to reform it. You’d think that a commitment to the Rule of Law, which demands that government officials abide by existing laws, including s. 32 of the Constitution Act, 1867 would obviate the need for legislative action on that front, but two of the three main contenders for prime ministerial office lacked that commitment. So Parliament should enact a law specifying that Senate vacancies are to be filled within, say, 180 days ― and not at the Prime Minister’s convenience. (A bill to this effect was considered by Parliament a few years ago, but never passed.) The matter might be debatable, but I think that such legislation would be a valid constitutional amendment under s. 44 of the Constitution Act, 1982, because it would not change anything to the Senate’s role or function within the constitutional architecture.
  3. Strengthening the process of the vetting of legislation for compliance with the Canadian Charter of Rights and Freedoms ― and, ideally, with all constitutional rules ― by the Department of Justice. Again, there is an ongoing court challenge on this issue, and again, it would be much better if the government were proactive and improved things without having to be forced to do it by a judge. A government committed to the Rule of Law should make sure its legislative proposals are constitutional, instead of waiting and seeing which of them will be struck down, potentially after working years and years of injustice.

Bonus: Re-writing the citizenship oath. Admittedly, this is a pet peeve of mine, and not a matter of great urgency. Still, there is no reason we need the confusing and much misunderstood reference to Queen in our citizenship oath. Australia makes do without it, and we can too. Besides, the oath as an imposition on the conscience of those who take and in my view (although not in that of the Ontario Court of Appeal), an infringement of the Charter. Ideally, we should get rid of the oath altogether, but failing that, an oath to Canada, or to the Canadian constitution, would be much better than the one to the Queen.

All that to say, I hope that Mr. Trudeau has already given some thought to who his Justice Minister will be. And I hope that that person will be able and willing to hit the ground running. There is a lot of work to be done.

Leonid Sirota
Leonid Sirota teaches constitutional law at the Auckland University of Technology Law School. He is a graduate of the Faculty of Law, McGill University and the New York University School of Law. His main interests are Canadian constitutional law, other areas of public law and legal theory.

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