Report need be made only when no credible argument proposed legislation met standards

Federal appeal | Constitutional Law | Charter of Rights and Freedoms | Miscellaneous

Following examination of proposed legislation, report of inconsistency must be made to House of Commons or to regulation-making authorities and issue arose as to what threshold must be for reporting. Plaintiff brought action for declarative relief on basis that defendant Minister of Justice and Clerk of Privy Council were not properly performing examination and reporting duties in reviewing bills and draft regulations to ensure consistency with Canadian Charter of Rights and Freedoms and Bill of Rights. Action dismissed. Plaintiff appealed. Appeal dismissed. Given uncertain, difficult jurisprudential terrain of constitutional law and time when Minister was expected to assess proposed legislation, only responsible, reliable report that could be given under examination provisions was when proposed legislation was so constitutionally deficient, it could not be credibly defended. Federal judge did not err in agreeing that report need be made only when no credible argument could be made that proposed legislation met standards. Credible argument examination standard used in review of legislation under s. 3 of Canadian Bill of Rights, s. 4.1 of Department of Justice Act and s. 3 of Statutory Instruments Act was reasonable reading of what that legislation required. 

Schmidt v. Canada (Attorney General) (2018), 2018 CarswellNat 1122, 2018 FCA 55, David Stratas J.A., D.G. Near J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 494, 2016 CarswellNat 495, 2016 FC 269, 2016 CF 269, Simon Noël J. (F.C.).

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