FEDERAL COURT SIMPLIFIED ACTION EDGAR SCHMIDT. -and- ATTORNEY GENERAL OF CANADA PLAINTIFF'S MEMORANDUM OF FACT AND LAW PART 1- STATEMENT OF FACTS

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1 Court File No.: T FEDERAL COURT SIMPLIFIED ACTION BETWEEN: EDGAR SCHMIDT Plaintiff -and- ATTORNEY GENERAL OF CANADA Defendant PLAINTIFF'S MEMORANDUM OF FACT AND LAW PART 1- STATEMENT OF FACTS Overview 1. The action concerns the Minister of Justice's obligations in examining proposed legislation under section 3 of the Canadian Bill of Rights and section 4.1 of the Department of Justice Act, as well as the Deputy Minister of Justice's obligations under subsections 3(2) and 3(3) of the Statutory Instruments Act (the "examination provisions"). These statutory provisions require the Minister and Deputy Minister to examine bills introduced in the House of Commons, regulations and proposed regulations for compliance with the Canadian Charter of Rights and Freedoms and the Bill of Rights (the "guaranteed rights") and, in the cases of proposed regulations, to ensure that they are authorized by law. The Plaintiff, Edgar Schmidt, maintains that the Department of Justice's standard for examining the legislative provisions for these purposes is contrary to the examination provisions.

2 This standard used by the Department of Justice is directed to the question of whether a provision is manifestly unconstitutional or unauthorized. The existence of any argument that has some (even remote) possibility of being argued and accepted means that it is not manifestly unconstitutional or unauthorized. Under this standard, therefore, no report is made so long as some such argument exists, even if the likelihood of a successful legal challenge is almost certain. 3. Such an extremely low standard is contrary to the express wording and purpose of the examination provisions, which plainly are directed to fostering consistency with guaranteed rights and regulation-making within delegated authority. Accordingly, the examinations require the Minister and Deputy Minister to report any provision that is more likely than not to be inconsistent with the guaranteed rights or, in the case of a proposed regulator provision, more likely than not unauthorized. 4. Furthermore, the examination provisions are intended to safeguard fundamental, constitutionally protected rights, to ensure Parliamentary accountability and regulationmaking within the bounds of the law. Neither is achieved if the threshold is so low that a provision with nothing more than a faint chance of meeting a legal challenge can proceed without a report. As a result, this Court should declare the Department's interpretation of the examination provisions unlawful, and declare what standard is required by the provisions. Background (a) The Plaintiff 5. When Mr. Schmidt started the present action, he was a public service employee appointed to the position of General Counsel and Special Advisor in the Legislative Services Branch of the Department of Justice Canada. In that capacity, he supported the Minister of Justice and the Deputy Minister of Justice by examining legislation in accordance with section 3 of the Canadian Bill of Rights, section 4. 1 of the Department of Justice Act and subsections 3(2) and 3(3) of the Statutory Instruments Act, known collectively as the statutory "examination provisions."

3 - 3 - Agreed Statement of Facts, dated October 21, 2014 ["Agreed Facts"] at para 3; Canadian Bill of Rights, SC 1960, c 44, s 3; Department of Justice Act, RSC, 1985, c J-2, s 4.1; Statutory Instruments Act, RSC, 1985, c S- 22, s 3; and see Statement of Claim of Edgar Schmidt, dated December 13, 2012 ["Statement of Claim"] at para1 and 3 and Statement of Defence of the Attorney General of Canada, dated March 21, 2013 ["Statement of Defence"] at para 1 (b) The Examination Provisions 6. Section 3 of the Canadian Bill of Rights provides as follows: 3. (1) [... ]the Minister of Justice shall,... examine every regulation... 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 inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity. (2) A regulation need not be examined in accordance with subsection (1) if prior to being made it was examined as a proposed regulation in accordance with section 3 of the Statutory Instruments Act to ensure that it was not inconsistent with the purposes and provisions of this Part. 3. (1) [... ] le ministre de Ia Justice doit,..., examiner tout reglement... ainsi que tout projet ou proposition de loi soumis ou presentes a Ia Chambre des communes par un ministre federal en vue de rechercher si l'une quelconque de ses dispositions est incompatible avec les fins et dispositions de Ia presente Partie, et il do it signaler toute semblable incompatibilite a Ia Chambre des communes des qu'il en a I' occasion. (2) II n'est pas necessaire de proceder a l'examen prevu par le paragraphe (1) si le projet de reglement a fait I' objet de l'examen prevu a I' article 3 de Ia Loi sur les textes reglementaires et destine g verifier sa compatibilite avec les fins et les dispositions de Ia presente partie. Canadian Bill of Rights, SC 1960, c Section 4.1 of the Department of Justice Act mirrors section 3 of the Bill of Rights but provides for the examination to be in relation to the Charter. 4.1 (1) [... ]the Minister shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine everv regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and everv Bill introduced in or presented to the 4.1 [... ] le ministre examine, conformement aux reglements pris par le gouverneur en conseil, les reglements transmis au greffier du Conseil prive pour enregistrement, en application de Ia Loi sur les textes reglementaires ainsi gue les projets ou propositions de loi soumis ou

4 - 4- House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charier of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity. (2) A regulation need not be examined in accordance with subsection ( 1) if prior to being made it was examined as a proposed regulation in accordance with section 3 of the Statutory Instruments Act to ensure that it was not inconsistent with the purposes and provisions of the Canadian Charier of Rights and Freedoms. presentes a Ia Chambre des communes par un ministre federal, en vue de verifier si l'une de leurs dispositions est incompatible avec les fins et dispositions de Ia Charle canadienne des droits et liberles, et fait rapport de toute incompatibilite a Ia Chambre des communes dans les meilleurs delais possible. (2) II n'est pas necessaire de proceder a l'examen prevu par le paragraphe ( 1) si le projet de reglement a fait I' objet de l'examen prevu a I' article 3 de Ia Loi sur les textes reglementaires et destine a verifier sa compatibilite avec les fins et les dispositions de Ia Charle canadienne des droits et libertes. Department of Justice Act, supra, s Regulations corresponding to these provisions provide that every government bill is to be certified as having been examined as required. There has never been a report of non-compliance by a Minister of Justice pursuant to section 4.1 of the Department of Justice Act and only one with regard to non-compliance with the Bill of Rights. Canadian Charier of Rights and Freedoms Examination Regulations, SOR/85-781, s 3; Keyes Affidavit at para Subsections 3(2) of the Statutory Instruments Act provides that: (2) On receipt by the Clerk of the Privy Council of copies of a proposed regulation pursuant to subsection (1), the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that (a) it is authorized by the statute pursuant to which it is to be made; (2) A Ia reception du projet de reglement, le greffier du Conseil prive procede, en consultation avec le sousministre de Ia Justice, a l'examen des points suivants : a) le reglement est pris dans le cadre du pouvoir confere par sa loi habilitante;

5 - 5- [' ' 'l (c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; [" 'l Statutory Instruments Act, supra, s 3(2) [' "l c) il n'empiete pas indoment sur les droits et libertes existants et, en tout etat de cause, n'est pas incompatible avec les fins et les dispositions de Ia Charte canadienne des droits et /ibertes et de Ia Declaration canadienne des droits; [' ' 'l 10. Under subsection 3(3) of the Statutory Instruments Act, any issues arising from the Deputy Minister's examination are to be brought to the attention of the Clerk of the Privy Council who is to bring them to the attention of the regulation-maker Statutory Instruments Act, supra, s 3(3) (c) The Department's Role 11. Together, the examination provisions require that the Minister and Deputy Minister examine draft legislation with regard to the question of whether any of the provisions are inconsistent with the Charter and Bill of Rights, the rights and freedoms guaranteed to all Canadians (the "guaranteed rights"). When the Minister concludes that a provision of a government bill is inconsistent with the guaranteed rights, the Minister must report the inconsistency to the House of Commons. Similarly, but not identically, the Deputy Minister must report to the Clerk of the Privy Council when the Deputy Minister is not satisfied that proposed regulations are consistent with the guaranteed rights and are authorized by their enabling legislation, as this examination is directed "to ensure" consistency and authority. Agreed Facts at para 6; Canadian Charter of Rights and Freedoms, Part I of the of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ["Charter"]; Canadian Bill of Rights, supra, s 3; Canadian Bill of Rights Examination Regulations, CRC, c 394, s 3-7; Department of Justice Act, supra, s 4.1; Canadian Charter of Rights and Freedoms Examination Regulations, supra; Statutory Instruments Act, supra, s 3; and see Statement of Claim at para 9 and Statement of Defence at para 1

6 In performing the examinations, the Minister and Deputy Minister rely on legal advisors employed by the Department of Justice to perform the initial examinations. Where the person performing the initial examination concludes that a "credible argument" exists, the issue is raised no further, and the initial examination completes the process with regard to the statutory examination, except for certification. Charter Certification Process, attached as Appendix 5 to the Agreed Facts; Keyes Affidavit at paras 49, After a government bill is introduced or presented in the House of Commons, the Clerk of the House of Commons refers it back to the Department of Justice's Chief Legislative Counsel, for examination and certification that the bill has been so examined under the applicable examination provisions. To do so, a legal advisor in the Department of Justice's Legislation Section examines the bill and reports the results to the Chief Legislative Counsel who then certifies, on behalf of the Deputy Minister, that the bill has been examined. Charter Certification Process, attached as Appendix 5 to the Agreed Facts; Keyes Affidavit at paras 49, Only if the initial examination concludes that there is no "credible argument," and managers concur, is the issue referred to the Deputy Minister of Justice. And only if the Deputy Minister of Justice concurs that there is no "credible argument" is a statutory examination issue referred to the Minister. Finally, only if the Minister concurs that there is no "credible argument" does the Minister consider that the statutory obligation to report to the House of Commons is engaged. Statutory Examination and Legal Risk Management In Drafting Services, attached as Appendix 1 to the Agreed; Keyes Affidavit at paras 51-55; Charter Certification Process, attached as Appendix 5 to the Agreed Facts 15. For a proposed regulation, Department of Justice counsel examine it on behalf of the Deputy Minister. Only if the initial examination concludes that no "credible argument" exists in favour of the proposed regulation being authorized, or that no such argument exists in support of its consistency with guaranteed rights, and if managers concur, is the issue referred to the Deputy Minister of Justice. And only if the Deputy Minister of

7 - 7 - Justice concurs that there is no "credible argument" is a statutory examination issue referred to the Clerk of the Privy Council. Once the examination is completed, the regulation is "blue stamped" to confirm that it has been examined. Statutory Examination and Legal Risk Management In Drafting Services, attached as Appendix 1 to the Agreed Facts (d) The "Credible Argument" Standard 16. Before 1993, the Department of Justice had no formal standard for examining bills and regulations for compliance with the guaranteed rights. In 1993, the Department adopted the "credible argument" standard for its legal advisors to use in carrying out their examination on behalf of the Minister or Deputy Minister "to ascertain" whether any of the provisions in a bill are inconsistent with the Charter or Bill of Rights or, likewise, "to ensure" a regulation meets the examination criteria. In the Department's view, the examination provisions require only that there be a "credible argument" to support a conclusion of consistency with the guaranteed rights or a conclusion that a proposed regulation is authorized. Beaman Affidavit at (Questions 15-18); Statutory Examination and Legal Risk Management In Drafting Services, attached as Appendix 1 to the Agreed Facts; Statement of Defence at para The Department of Justice defines a "credible" argument as "one that is reasonable, bona fide and capable of being successfully argued before the courts." An argument is considered by the Department to be credible "if it is reasoned with a minimum level of strength or credibility"- that is, that it have some (even slight) possibility of being made and accepted. On this standard, the Minister's and Deputy Minister's reporting obligations are engaged only if there is no such "argument to support the validity of a proposed provision or its consistency with the Charter or the Bill of Rights." Statutory Examination and Legal Risk Management In Drafting Services, attached as Appendix 1 to the Agreed Facts; In Our Opinion, attached as Appendix 4 to the Agreed Facts at 19; Beaman Affidavit at 13 (Questions 25-26); Keyes Affidavit at para 34

8 The Department of Justice acknowledges that the "credible argument" standard has the following results: "because the threshold for reporting a Charter inconsistency is very high (i.e., the measure is manifestly unconstitutional, such that no credible argument exists in support of it), it will only be triggered in rare cases." Legal Risk Management in the Public Law Sector, attached as Appendix 2 to the Agreed Facts at 2; Effective Communication of Legal Risk, attached as Appendix 3 to the Agreed Facts at The Department of Justice has developed a rating scale for assessing the likelihood of successful legal challenge to a particular initiative or measure. There are five ranges on the scale: (1) "Very Low (0-20%)" (likelihood of successful challenge is non-existent to insignificant); (2) "Low (21-40%)" (more likely than not to survive challenge); (3) "Medium (41-60%)" (likelihood of successful challenge evenly balanced); (4) "High (61-80%)" (more likely than not that a challenge will be successful); and (5) "Very High (81-100%)" (likelihood of successful challenge almost certain). Legal Risk Management in the Public Law Sector, attached as Appendix 2 to the Agreed Facts at 11; Effective Communication of Legal Risk, attached as Appendix 3 to the Agreed Facts at page 12 of There is a special step on the scale- 5(a)- where level of likelihood has to be at the far end of the fifth range (81-100%), with an "almost certain" likelihood of a successful challenge, before the Department of Justice Considers that the Minister's statutory reporting obligation is engaged: This is engaged where the level of likelihood is at the far end of the fifth range and is due to manifest inconsistency between proposed legislation or regulations and the Charter. In such a case, the measure is manifestly unconstitutional, and no credible (i.e., reasonable and bona fide) argument exists in support of it, such that the Minister's statutory obligation to issue a report to the House of Commons, or the Clerk of the Privy Counsel's statutory obligation to advise a regulation-making authority, is engaged. Situations of this nature are very unusual and require distinct treatment by [Human Rights Law Section] counsel and managers (alongside other implicated [Department of Justice] counsel).

9 i I - 9- Legal Risk Management in the Public Law Sector, attached as Appendix 2 to the Agreed Facts at 11; Effective Communication of Legal Risk, attached as Appendix 3 to the Agreed Facts at page 13 of 14 (e) Mr. Schmidt's Attempts To Raise Concerns About The Standard 21. As a federal public servant, Mr. Schmidt questioned the appropriateness of the examination standard adopted by the Department of Justice. In his view, the standard's focus on whether there is any possibility (however slight) that a bill or regulation is consistent with the guaranteed rights misinterpreted the Minister and Deputy Minister's statutory obligations. The reporting obligations should be triggered whenever the Minister or Deputy Minister formed an opinion that the provision is more likely than not inconsistent with the guaranteed rights or that a proposed regulation is more likely than not unauthorized. He made numerous attempts to raise his concerns internally with senior officials, before disclosing his concerns to the Public Sector Integrity Cornrnissioner. When no action was taken, he initiated the present action. Statement of Claim at paras 18, 26, 27; Keyes Affidavit at paras 42, 43

10 - 10- PART II-ISSUES 22. The main issue in this action is whether the Minister and Deputy Minister and Department of Justice officials acting on their behalf are properly interpreting and applying the statutory examination provisions, and, if not, what the provisions actually require. 23. The Plaintiff respectfully submits that the standard being used misinterprets the examination provisions and is unlawful. The examination provisions require at least that the Minister and Deputy Minister form a considered opinion as to whether any provision is more likely than not inconsistent with the guaranteed rights or, in the case of proposed regulations, not authorized by law.

11 - 11- PART IV- ARGUMENT (1) The Chatter Preserves and Protects Fundamental Rights 24. The examination provisions concern the compliance of bills and regulations with the guaranteed rights, in particular the Canadian Charter of Rights and Freedoms, which forms part of the constitution of Canada. These rights are of great significance. As Peter Hogg explains, "The Charter of Rights, like any other bill of rights, guarantees a set of civil liberties that are regarded as so important that they should receive immunity, or at least special protection, from state action." Peter Hogg, Constitutional Law of Canada, 5th ed, vol 2 (Toronto: Thomson Reuters Canada Ltd, 2007) at ; Constitution Act, 1982, Part VII of the of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ["Constitution Act, 1982"], s 52(1) 25. According to the Supreme Court of Canada, the values underlying the Charter include human dignity, equality, liberty, respect for the autonomy of the person, and the enhancement of democracy. As the Supreme Court has explained, the Charter is a purposive document: Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for government action. Health Services and Support-- Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391, 2007 SCC 27 at para 81; Hunter v Southam, [1984] 2 SCR 145 at paras 16, 19, 28; R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at paras The purpose of the Bill of Rights, legislation that is quasi-constitutional in nature, is also to recognize and protect human rights and fundamental freedoms. Bill of Rights, supra, Preamble; see Authorson v Canada (Attorney General), [2003] 2 SCR 40, 2003 SCC 39 at para Furthermore, paragraph 3(2)(a) of the Statutory Instruments Act protects significant interests as well. Parliament has an interest in ensuring its delegates make

12 - 12- legislation that is within their authority. And the public has a democratic interest in Parliament's delegates legislating within the authority that Parliament has given. See D. Jones and A. de Villars, Principles of Administrative Law, 5th ed (Carswell: Toronto, 2009) at 174 (2) The Examination Provisions Mandate A Robust Vetting Process 28. The examination provisions impose a statutory obligation on the Minister and Deputy Minister to report any legislative provisions inconsistent with the Charter or Bill of Rights. When the Bill of Rights was being debated in the House of Commons, in 1960, then Minister of Justice Fulton stated that the statutory reporting obligation was an "inescapable and necessary implication" in the requirement to examine bills for inconsistency. The examination and report, together with the possibility of a notwithstanding declaration, serve to support open and transparent decision-making by Parliament. House of Commons Debates, 24th Pari, 3rd Sess, Vol 7 (1 August 1960) at 7373 (Hon Edmund Davie Fulton); Minutes of Proceedings and Evidence of the Special Committee on Human Rights and Fundamental Freedoms, 24th Pari, 3rd Sess (29 July 1960) at 701; Minutes of Proceedings and Evidence of the Special Committee on Human Rights and Fundamental Freedoms, 24th Pari, 3rd Sess (27 July 1960) at 573; Minutes of Proceedings and Evidence of the Special Committee on Human Rights and Fundamental Freedoms, 24th Pari, 3rd Sess (20 July 1960) at In 1985, Department of Justice Act was amended to ensure that government bills and regulations were examined for consistency with the Charter, similar to the requirement in the Bill of Rights. Both provisions included a new subsection (2) that provided for the coordination of the examination of regulations under the Bill of Rights, the Department of Justice Act and the Statutory Instruments Act. House of Commons Debates, 33rd Pari, 1st Sess, Vol Ill (27 March 1985) at 3422; and see House of Commons Debates, 28th Pari, 3rd Sess, Vol Ill (25 January 1971) at and House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs on Bill C-182, Statutory Instruments Act, 28th Pari, 3rd Sess (16 February 1971) at 7:22

13 With respect, the "credible argument" standard adopted by the Defendant for determining that question is inadequate to ensure that obligation is met. The Defendant's standard does not enquire about inconsistency; it enquires about "manifest inconsistency", looking for the absence of any (even faintly) "credible" argument in favour of the provision's validity. The corollary is that any argument "reasoned with a minimum level of strength or credibility" meets the standard, even in cases where it is a high probability that a legal challenge is "almost certain" to be successful, and regardless of the relative strength of the opposing arguments in favour of inconsistency. Legal Risk Management in the Public Law Sector, attached as Appendix 2 to the Agreed Facts at 11; Effective Communication of Legal Risk, attached as Appendix 3 to the Agreed Facts; and see Irwin Cotler, "The Constitutional Revolution, the Courts, and the Pursuit of Justice (Speech to the Canadian Bar Association, August 15, 2005) 31. For reasons discussed below, the statutory examination provisions plainly require a more reasoned and balanced assessment. The Department of Justice is improperly interpreting and applying the examination provisions. In order to comply with the statutory reporting obligations, the Minister and Deputy Minister must form a considered opinion as to whether any provision is more likely than not inconsistent with the guaranteed rights and examine the issue of the authority for a proposed regulation with a view to ensuring it is authorized. (3) A Textual Analysis Supports The Plaintiff's Interpretation 32. The basic rule of statutory interpretation first articulated by Elmer Driedger is now well-established in law: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Ruth Sullivan, Sullivan on the Construction of Statutes, 5th (Markham: LexisNexis Canada Inc, 2008) ["Sullivan"] at 1; Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27 ["Rizzo Shoes"] at para 21; Bell ExpressVu Limited Partnership v Rex, [2002] 2 SCR 559 at para 26; Canadian National

14 - 14- Railway Co v Canada (Attorney General), [2014] 2 SCR 135, 2014 SCC 40 at para The interpretation must take into account the legislative text, its context, its purpose, and the consequences of any interpretation. The words used must be given their ordinary meaning unless the context demonstrates a different one was intended or it is contrary to the overall purpose of the legislation. Otherwise, the ordinary meaning is the provision's presumptive legal meaning. Sullivan, supra at 3, 24, (a) The Defendant's Standard Improperly Requires "Manifest" Inconsistency 34. The Minister is required "to ascertain whether any of the provisions [of a bill or regulation] are inconsistent with the purposes and provisions" of the Charter or Bill of Rights. The Deputy Minister has similar (but perhaps even more demanding) obligations when examining regulations where the purpose is "to ensure" that there is no inconsistency. The fact that the legislation expressly requires that provisions of the bill and regulations be examined against the purposes and provisions of the Bill of Rights and Charter demonstrates that there must be a broad approach to examining their inconsistency with the guaranteed rights. Canadian Bill of Rights, supra, s 3; Department of Justice Act, supra, s 4.1; Statutory Instruments Act, supra, s 3; Interpretation Act (RSC, 1985), cl-21,s Instead, the Defendant narrowly interprets the Minister and Deputy Minister's statutory obligations. According to the Defendant, their duty to report an inconsistency with the guaranteed rights is only engaged when a provision is "manifestly unconstitutional" or when there is no "credible argument" whatsoever in support of it. This interpretation has no basis in the legislative text. Statement of Defence at para 4; Statutory Examination and Legal Risk Management In Drafting Services, attached as Appendix 1 to the Agreed Facts; Legal Risk Management in the Public Law Sector, attached as Appendix 2 to the Agreed Facts at 11; Effective Communication of Legal Risk, attached as Appendix 3 to the Agreed Facts; In Our Opinion,

15 - 15- attached as Appendix 4 to the Agreed Facts at 19; Beaman Affidavit at 13 (Questions 15-18, 25-26) 36. In the examination provisions, the term "inconsistent" is used without any qualifier. The ordinary meaning of the term "consistent," as the Defendant acknowledges, is "compatible or in harmony; not contradictory." The term inconsistent is simply its negation. Yet, the "credible argument" standard does not address the issue of consistency; it requires a provision to be "manifestly" or "certainly" inconsistent with the guaranteed rights. By inserting those qualifiers, the Department of Justice has adopted a higher threshold to engage the reporting requirement than the texts of the provisions provide for and therefore that Parliament intended. Statement of Defence at paras 7, 12; Beaman Affidavit at 13 (Question 26); Keyes Affidavit at paras A legislative provision can be inconsistent with the guaranteed rights, despite the existence of a "credible argument" in favour of consistency. When a court finds that a provision is inconsistent with the Charter, it is not because there was no argument in support of the opposite conclusion. It is because it was satisfied. that on a balance of probabilities the provision was inconsistent with the Charter. That is the standard to which the Minister and Deputy Minister must adhere in order to comply with the examination provisions. They must undertake a reasoned and balance assessment of whether it is more likely than not a provision is inconsistent with the guaranteed rights, regardless of the existence of any argument that supports its consistency. And if they form that opinion, they have an obligation to report the inconsistency. Canada (Prime Minister) v Khadr, [2010] 1 SCR 44, 2010 SCC 3 at para 21 (b) The Standard Is Simply "Whether" A Provision Is "Inconsistent" 38. The grammatical structure of section 4.1 of the Department of Justice Act (which is practically identical to section 3 of the Bill of Rights) confirms the provisions should be interpreted in this manner. It is structured as follows:... the Minister... shall examine [a bill or regulation]... in order to ascertain whether any of the provisions thereof are inconsistent with

16 - 16- the purposes and provisions of the Canadian Charter of Rights and Freedoms. 39. There are three grammatical components that make up the adverbial structure that sets up the purpose of the Minister's activity. First, the verb in the infinitive form ("to ascertain"), which describes the action to be carried out, indicating careful investigation and consideration. Second, the subordinate conjunction ("whether), which can be used with or without an express "or not," introduces the subordinate clause and essentially functions as shorthand for "the truth or falsity of' the proposition it introduces. Third is the proposition ("any of the provisions thereof are inconsistent with the purposes and provisions of the Charter") whose truth or falsity is to be the object of the activity of ascertaining. Thus, the Minister is to ascertain (his activity) whether (the truth or falsity of) any provision is inconsistent the purposes and provisions of the Charter (the proposition at issue) rather than, as the "credible argument" standard implies, whether there is any provision in respect of which no argument can reasonably be made in support of its consistency with the Charter. 40. By requiring the Minister to ascertain "whether" any provision is inconsistent with the guaranteed rights, the two provisions that use that language require the formation of either of two opinions: (1) that all provisions are consistent with the guaranteed rights (which is the positive equivalent of that no provision is not consistent with the guaranteed rights); or (2) that one provision (or more) is not consistent (i.e. inconsistent) with the guaranteed rights. 41. The examination provisions refer to inconsistencies because those are the provisions of concern. By analogy, a physician may ask herself whether any of the patient's organs or systems are not healthy or not well-functioning, because what she wants is for all of them to be healthy and it is the unhealthy ones that require her attention. However, the physician's question can equally be stated in the positive: "Is the patient fully healthy?" or "Are all of the patient's organs and systems functioning healthily?" Whether any organ or system is not healthy is the negative equivalent of whether a// the organs or systems are healthy. Neither statement is equivalent to whether there is any organ or system that has some possibility, however minimum, of

17 - 17- being healthy. A physician often works in a context where medical certainty is not possible. For a physician to act to promote a patient's health only when a particular illness is manifestly certain would disregard the patient's interest in good health. 42. To look for the absence of a "credible" argument in favour of the constitutionality of a bill or regulation, rather than making a reasoned and balanced assessment of its consistency with the Charter, undervalues and disregards fundamental rights that are guaranteed to all Canadians. The examination provisions require a reasonable assessment of whether, based on a balance of probabilities, the provision is consistent or not with those fundamental rights. (c) The French Text Supports This Interpretation 43. The grammatical structure of the French text of section 4.1 of the Department of Justice Act and section 3 of the Bill of Rights are parallel to the English text. Each have the infinitive verb, an operator "si" and a proposition. The verb '1s "verifier" in section 4.1 and "rechercher'' in section 3. Both, and especially "rechercher," suggest primarily the activity of careful investigation. The operator "si" is equally a truth or falsity operator, just as "whether" is in English. "Si" has the same implicit negative possibility (or notlou sinon) and a proposition follows whose truth is at issue. The independence of the proposition from the infinitive verb is the same in the French version as in the English version, and the proposition in the French version, equally with the English version, is simply about "incompatibilite"- the same word used in subsection 52(1) of the Constitution Act, The French version is consistent with the English version in requiring a careful investigation but has nothing to support the Defendant's narrow interpretation of the reporting obligation. Compare the similar language in the Canadian Bill of Rights Examination Regulations, supra, s 3(a) and Canadian Charter of Rights and Freedoms Examination Regulations, supra, s5(a) 44. The examination provisions themselves further confirm that the objective of the examinations is consistency with the guaranteed rights. The French versions of subsections 4.1 (2) of the Department of Justice Act and 3(2) of the Bill of Rights contain

18 - 18- the phrase "a verifier sa compatibilite avec les fins et les dispositions de Ia [Charte ou Declaration]." This wording makes it clear that examinations under the Statutory Instruments Act are intended to ensure consistency, not merely to search for some argument that may leave a provision almost certainly inconsistent. (4) The Broader Context Supports the Plaintiff's Interpretation (a) The Surrounding Provisions are about Consistency and Lawfulness 45. Paragraph 4(a) of the Deparlment of Justice Act, immediately preceding section 4.1, provides that it is the duty of the Minister of Justice to "see that the administration of public affairs is in accordance with law" ("veille au respect de Ia loi dans \'administration des affaires publiques"). The Oxford English Dictionary says that, in such a usage, "see" means 'To ensure by supervision or vigilance that something shall be done or not done." The French expression "veille" has a similar meaning. Accordingly, what the Minister is to ensure by vigilance is that the administration of public affairs is in accordance with law. The provision does not say that the Minister is to ensure that some argument can be made in favour of the legality of the administration of public affairs. The Oxford English Dictionary, 2nd Ed, sub verda "see" 46. Additionally, subsection 4.1 (2) provides that the Minister need not examine a regulation under subsection 4.1 (1) if it was examined under the Statutory Instruments Act "to ensure that it was not inconsistent with the purposes and provisions of the Canadian Charier of Rights and Freedoms" ("destine a verifier sa compatibilite avec les fins et les dispositions de Ia Charle canadienne des droits et liberles"). As noted above, "not inconsistent" is equivalent in meaning to "consistent." That is precisely what the French version confirms Parliament intends and understands by using the positive equivalent "compatibilite." Clearly, this is a duty, like that in paragraph 4(a), to ensure conformity with the guaranteed rights.

19 - 19- (b) All Three Examination Provisions Must Work Together 47. Section 3 of the Statutory Instruments Act has a different grammatical structure than section 4.1 of the Department of Justice Act and section 3 of the Bill of Rights but has similar, if more demanding, obligations. It requires the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, to examine the proposed regulation "to ensure" it is "authorized" and that it "is not... inconsistent" (that is to say, is consistent) with the Charter and Bill of Rights. See House of Commons Debates, 33rd Pari, 1st Sess, Vol Ill (27 March 1985) at The Department of Justice applies the same "credible argument" standard to this provision as it does to the others. However, "to ensure" a particular result requires more than merely looking for the existence of a "credible" argument. On its face, it requires that so long as a substantial doubt remains about whether a regulation is authorized or is inconsistent with the guaranteed rights, the matter must be reported. This wording is wholly incompatible with an examination that is satisfied once a "credible argument" exists in support of the regulation's lawfulness, ignoring the stronger arguments that the regulation is likely or almost certain to be unconstitutional or unauthorized. The statutory obligation demands a more robust standard. Statutory Examination and Legal Risk Management In Drafting Services, attached as Appendix 1 to the Agreed Facts; Keyes Affidavit at para 62; Beaman Affidavit at 13 (Question 26) 49. When the Department of Justice assesses a government bill or regulation, it must meaningfully distinguish whether it complies with the Charter, in order to meet the Minister and Deputy Minister's obligations. The "credible argument" standard fails to ensure that requirement is met, by setting the threshold for determining Charter compliance below an acceptable limit. As a "credible argument" can logically coexist with an opinion that a legislative provision is almost certain to be inconsistent with the Charter, on this standard, legislation may be introduced that has only a faint chance of surviving a Charter challenge.

20 The likelihood of a bill or a proposed regulation proceeding to enactment without any report as to its inconsistency with the Charier is more than theoretical As an example, according to an article by University of Ottawa professor Jennifer Bond, amendments to immigration and refugee legislation that provided for mandatory detention of certain foreign national seeking asylum in Canada, were introduced in Parliament without any report under the examination provisions. However, according to the author, these amendments were inconsistent with leading constitutional precedent and were self-evidently in violation of the Charier. In that and other instances, where the provisions passed the Department of Justice's examination process, and no report was issued, Professor Bond concludes that ultimately the "result is not only lack of report in situations of egregious Charter violation, but also impoverished constitutional debate and significant democratic deficit" Jennifer Bond, "Failure to Report: The Manifestly Unconstitutional Nature of the Human Smugglers Act" (2014) 51 Osgoode Hall LJ 377 at 28 (QL); see Janet L. Heibert and James B. Kelly, Parliamentary Bill of Rights: The Experiences of New Zealand and the United Kingdom (Cambridge University Press: Cambridge, UK, 2015) at 73; R v Nur, 2015 SCC 15 at paras 12, 51, 104; (5) The Purpose of the Provisions Supports the Plaintiff's Interpretation 51. As already discussed, the Charier and Bill of Rights affirm and protect fundamental rights and freedoms. A standard that allows bills to proceed without a "notwithstanding" indication (i.e. an express statement that the bill is to operate notwithstanding the Charter and Bill of Rights) or a report from the Minister of Justice while they are believed to be likely or almost certainly inconsistent with these guaranteed rights utterly fails to honour these purposes. Likewise, a standard that allows a proposed regulation that is likely or almost certainly inconsistent with these guaranteed rights, or unauthorized by statute, to be made without a report from the Clerk of the Privy Council or from the Minister of Justice utterly fails to honour these purposes.

21 -21- (6) The Plaintiff's Interpretation Best Fits the Legislative Scheme 52. Both the Bill of Rights and the Charter provide for the possibility that Parliament can override their provisions. Either an express "notwithstanding" provision in a bill or, alternatively, a report of inconsistency from the Minister of Justice, allows Parliament to have a reasoned debate as to whether it wishes to override the guaranteed rights or not A report allows Parliament to do any of the following: (1) to seek additional advice on whether the bill is inconsistent with the guaranteed rights (and potentially to form an opinion different from that of the Minister); (2) to amend the substantive provisions of the bill to render them consistent with the guaranteed rights; (3) to add an express "notwithstanding" provision to the bill to render it consistent with the Charter or Bill of Rights; or (4) to reject the bill if members do not consider the infringement of guaranteed rights justified. Canadian Bill of Rights, supra s 2; Charter, supra, s Thus, a report of inconsistency when a provision is considered to be at least likely inconsistent with the guaranteed rights fits with the scheme of the legislation that allows for express overrides and the accompanying open discussion and debate. See House of Commons, Special Committee on Human Rights and Fundamental Freedoms on Bill C-79, An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, 24th Pari, 3rd Sess (22 July 1960) at 405 and (27 July 1960) at 573 (7) The Rule of Law Calls for the Plaintiff's Interpretation 54. The extremely low threshold for Charter examination adopted by the Department of Justice is incompatible with the Minister's and Deputy Minister's duties to act in accordance with the rule of law. As the Supreme Court has explained, the rule of law is a foundational principle of Canadian democracy: The rule of law, as observed in Roncarel/i v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R 121, at p. 142, is "a fundamental postulate of our constitutional structure". As we noted in the Patriation Reference, supra, at pp , "[t]he 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known

22 - Z2- legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action. [... ] [... ] The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, 1985 Canlll74 (SCC), [1985]1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source. Charter, supra, Preamble; Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 67, 70, 72; Re Manitoba Language Rights, [1985]1 SCR 721 at paras 59, 63-65; Roncarelli v Duplessis, [1959] SCR 121 ["Roncarell!''] at The rule of law requires that state actors exercise their public duties in good faith, particularly where duty involves discretion in decision-making. As Ju.stice Rand explained in Roncarelli: "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or object is just as objectionable as fraud or corruption. Roncarelli, supra at The Supreme Court referred to the duty of the executive to act in a manner consistent with statutory objectives more recently in the Mount Sinai decision, where Justice Binnie observed: It is true... that the Minister's power under s. 138 is framed as a broad policy discretion to be exercised 'in the public interest'. Yet the discretion, however broadly framed, is not unfettered. At the very least the Minister

23 - 23- must exercise the power for the purposes for which it was granted: Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.), at p Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001]2 SCR 281 at para The duty to act in good faith in the exercise of public duty must include proper consideration of the Charter. In Arsenault-Cameron, where the Prince Edward Island Minister of Education denied French language education where children with first language education rights reside, the Supreme Court found that: The Minister has a duty to exercise his discretion in accordance with the dictates of the Charter; see Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Slaight Communications Inc. v. Davidson, [1989]1 S.C.R In reaching his decision, the Minister failed to give proper weight to the promotion and preservation of minority language culture and to the role of the French Language Board in balancing the pedagogical and cultural considerations. This was essential to giving full regard to the remedial purpose of the right The approach adopted by the Minister... increased the probability that his decision would fail to satisfy constitutional review by the courts. Arsenault-Cameron v Prince Edward Island, 2000 SCC 1 at para 30; and see Lalonde v Ontario (Commission de restructuration des sevices de sante), [2001]56 OR (3d) 505, 208 DLR (4th) 577 at paras Statutory provisions that are meant to safeguard the supremacy of the constitution and the rule of law cannot be interpreted and acted upon in a manner that undermines those objectives. This includes the examination provisions whose purpose is to ensure the House of Commons is made aware of any bill or regulation that is inconsistent with the Charter. In the absence of a report, Parliament is entitled to assume that, having carefully examined the bill or the regulation (in cases where the exceptions of subsections 4.1 (2) and 3(2) do not apply), the Minister has arrived at an informed opinion that it will withstand Charter scrutiny. That can only occur if the standard applied by Department of Justice legal advisors to determine that question squarely meets the objectives of the examination provisions.

24 For the reasons already outlined above, the Department of Justice (acting on behalf of the Minister and Deputy Minister) has adopted an unacceptable and unlawful standard for assessing Charier compliance and advising the Minister of his reporting obligations. Instead of assessing whether a provision is inconsistent with the Charier, as the examination provisions require, the Department's policy and practice is improperly focused on the core question of whether there is any possibility (even a slight possibility) of compliance. As a consequence, no report is made to Parliament in circumstances where it is almost certain that a bill or regulation is contrary to the guaranteed rights. Such a narrow reading of the Minister's reporting obligations cannot be sustained. 60. Similarly, the Department of Justice (acting on behalf of the Deputy Minister) has adopted an unacceptable and unlawful standard that fails "to ensure" proposed regulations are authorized, another situation where compliance with lawful authority is called for. Conclusion 61. The departmental interpretation of the examination provisions (1) is contrary to their grammatical and ordinary sense; (2) is inconsistent with their entire context; (3) frustrates the purposes of the provisions instead of fostering them; (4) does not fit with the scheme of the relevant legislation; and (5) does not respect the requirements of the rule of law. 62. For those reasons, the Department of Justice's interpretation of the examination provisions, and its application of the "credible argument" standard, is unlawful. The examination provisions require examinations that foster the protection of fundamental and guaranteed rights, informed decision-making by Parliament and the lawfulness of delegated legislation. The Defendant's interpretation does not support those purposes. It rather facilitates the introduction of bills and the making of regulations that are contrary to these guaranteed rights, without informing Parliament, as well as the making of regulations that are not authorized and therefore unlawful.