The prime minister publicly released the mandate letters provided to his new ministers a couple of weeks ago, and the list of « top priorities » for Minister of Justice Jody Wilson-Raybould is almost staggering. Most represent campaign promises, including some that hardly had any meat on them at all, meaning the minister is left to develop important policy details, either as the main point-person on the file or in concert with other ministers.

Some of the priorities are relevatively straightforward:

Work with the President of the Treasury Board to enhance the openness of government, including supporting his review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.

Undertake modernization efforts to improve the efficiency and effectiveness of the criminal justice system, in cooperation with provinces and territories. This should include improved use of information technology to make the system more efficient and timely, exploration of sentencing alternatives and bail reform, and the creation of a unified family court.

Work with the Ministers of Finance and National Revenue to develop a modernized regulatory and legal framework governing the Charitable and Not-for-Profit sectors.

Introduce government legislation to add gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act, and to the list of distinguishing characteristics of “identifiable group” protected by the hate speech provisions of the Criminal Code.

Support the Minister of Canadian Heritage to restore a modern Court Challenges Program.

The last of these – reinstating the CCP, a program that helps fund legal challenges against the government – restores one of the Harper government’s very first targets for elimination when the Conservatives took power in 2006. It’s worth questioning why the government feels the need to fund legal challenges against itself: if the challenges are valid, why defend the laws in court? (Part of the answer: the CCP can be used to bring challenges against provincial laws/policies as well). Does a « modern » CCP include more than language and equality rights-based challenges? It’ll be interesting to see.

Other priorites are very, very pressing – and complicated:

Lead a process, supported by the Minister of Health, to work with provinces and territories to respond to the Supreme Court of Canada decision regarding physician-assisted death.

The Court’s decision striking down the Criminal Code prohibition on assisted suicide last year set a one-year deadline, which expires in February. It is unclear at this point whether the government will seek an extension so that it has more time to develop new legislation governing access. I don’t think it should, for two reasons: 1) extending the Court’s « suspended declaration of invalidity » means the old ban remains in place, technically speaking, which is an affront to the rights at stake. 2) an extension isn’t really needed: the Court’s guidelines make clear what elements of an absolute ban are constitutionally problematic, and given the core issue is consent, invalidating the old law doesn’t create a legal vacuum permitting euthanasia. Which raises the important question of whether we even need a new criminal law or whether regulating access to physician-assisted death should be left to the provinces and the medical community entirely.

Develop, in collaboration with the Minister of Indigenous and Northern Affairs, and supported by the Minister of Status of Women, an approach to, and a mandate for, an inquiry into murdered and missing Indigenous women and girls in Canada, including the identification of a lead Minister.

An inquiry should not be difficult to establish; the hard work will be dealing with its inevitably broad and crucial recommendations.

Review our litigation strategy.  This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.   You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system.  Outcomes of this process should include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians, and implementation of recommendations from the inquest into the death of Ashley Smith regarding the restriction of the use of solitary confinement and the treatment of those with mental illness.

This is multi-faceted. Some of this involves desperately-needed housing-keeping of the Criminal Code (perhaps a full review of the Code should be implemented at this point!), some of it reversing some of the Conservative government’s « tough on crime » legislation – particularly those elements still under legal challenge and that raise Charter issues.

But I think the government and Parliament needs to consider a broader culture of Charter scrutiny, including requiring statements of Charter compatibility for every bill introduced in the legislature, and more comprehensive committee review – perhaps a permanent standing committee like the UK’s Joint Committee on Human Rights, only less legalistic.

Work with the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous and Northern Affairs to address gaps in services to Aboriginal people and those with mental illness throughout the criminal justice system.

This is long past due.

Working with the Ministers of Public Safety and Emergency Preparedness and Health, create a federal-provincial-territorial process that will lead to the legalization and regulation of marijuana.

A lot of people are looking forward to this, and I think some are overstating its complexity. We have models: tobacco and alcohol. Let’s just hope Ontario doesn’t create the Ganja Control Board of Ontario.

Engage all parties in the House of Commons to ensure that the process of appointing Supreme Court Justices is transparent, inclusive and accountable to Canadians.  Consultations should be undertaken with all relevant stakeholders and those appointed to the Supreme Court should be functionally bilingual.

First, an instruction to the minister to appoint only functionally bilingual judges is needed in the absence of changing the Supreme Court Act to add a bilingual eligibility requirement, which according to last year’s reference opinion by the Court in the Nadon affair, Parliament cannot do without unanimous provincial consent.

Second, and more importantly: What does an « accountable » Supreme Court appointment process look like? Recall that under Harper a « bipartisan » committee generated a shortlist of candidates (drawing from a long-list provided by the minister of justice – hardly a meaningful reform) and SCC appointees appeared before a committee of MPs for a public « interview. » Both these aspects were abandoned by the Harper government. What will the Liberals put in place? I have ideas, if any of them want to give me a call.

Support the Minister of Public Safety and Emergency Preparedness in his efforts to repeal key elements of Bill C-51, and introduce new legislation that strengthens accountability with respect to national security and better balances collective security with rights and freedoms.

This was an issue that gave the Liberals a headache during the campaign. Can they find the right balance?

Support the Minister of Public Safety and Emergency Preparedness in his efforts to repeal key elements of Bill C-42 and implement our commitment to reduce the number of handguns and assault weapons on our streets.

What will the latter part of this look like?

Implement our platform commitments to toughen criminal laws and bail conditions in cases of domestic assault, in consultation with stakeholders and with the goal of keeping survivors and children safe.  You should undertake this work in consultation with the Minister of Status of Women and the Minister of Public Safety and Emergency Preparedness.

Also much-needed.

What’s missing?

I’d like to see the government revisit the new laws governing prostitution. The Conservatives replaced old criminal prohibitions that were struck down by the Court with a law that in some ways replicates the same problems. The Liberal government needs to address this.

I’d also like to see the Liberals re-evaluate the new provisions in the Controlled Drugs and Substances Act regarding the approval of new supervised drug injection facilities, which are arguably too onerous.

Canada still needs tougher laws in relation to animal abuse.

All that said, this is a tough agenda facing the new justice minister, and an important one for Canadians. Hopefully the outcomes are the result of thoughtful and consultative processes. Good luck, Ms. Wilson-Raybould!

Photo: Jody Wilson-Raybould – Facebook / Fair use

Emmett Macfarlane
Emmett Macfarlane est professeur adjoint de science politique à l'Université de Waterloo. Ses recherches sont axées sur les liens entre gouvernance, droits et politiques publiques, avec un intérêt particulier pour l'incidence de la Charte des droits et libertés, et le rôle de la Cour suprême.

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