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The decline of evidence-based law making


The old adage holds that law is like sausages, you don’t want to see them being made. The problem is, in making our federal criminal and correctional law, seeing how things are put together is of decisive importance. 

The Department of Justice has responsibility for ensuring federal compliance with the Charter of Rights and Freedoms, the Bill of Rights, and for developing policies and legal reforms in key areas such as criminal justice. Unfortunately, it does this work behind closed doors, so the general public doesn’t get to see what is going on.

Recently Edgar Schmidt, named by the Canadian Lawyer Magazine as one of the top 25 most influential lawyers in Canada, opened a window on the process. He brought a lawsuit against the Justice Department, his employer, alleging that it had acted unlawfully by failing properly to review the constitutionality of draft legislation. The law requires the Justice Minister to assess whether any laws the government is proposing are inconsistent with “the purposes and provisions of the Canadian Charter of Rights and Freedoms” and to report any problems to the House of Commons. 

But Schmidt claims that the standard used by the department since 1993 was that the proposed legislation must be “manifestly” inconsistent with the Charter or Bill of Rights before it can be declared constitutionally non-compliant. This means that even if it is thought that the newly proposed legislation has only a 5% chance of success before the courts, the department can hold that there is no need to inform the House of Commons of a potential Charter compliance issue.

This revelation suggests that Members of Parliament may have been effectively misled about the Charter compliance of new federal legislation being developed. 

Clearly, both Parliament and Canadian society would benefit from an independent assessment of Charter compliance for new legislative and policy proposals, since this would provide some assurance that laws being crafted by the Justice Department are done so responsibly and in consultation with non-politicized experts.  

The case for independent assessment of the operations of the Justice Department was further strengthened earlier this month in an evaluation by its own Criminal Law Policy Section. That evaluation noted that the section’s focus on a myriad of short term but urgent issues had reduced its capacity to undertake core strategic policy planning, research, and consultations. Making matters worse was that despite the increasing demand for new criminal law legislation, the research and policy budgets in the department have been reduced

The evaluation found little evidence of effective training and other post-legislation implementation support from the department aside from assistance for litigation in criminal law and in Charter cases flowing from new laws.  

Earlier successful legislative reforms, such as the revamping of the youth justice system, were accompanied by: explanatory materials; meetings with police, judges, defence counsel, crowns and others with roles in implementing the new laws; data collection for subsequent evaluations; public education efforts; and resources for supporting programs. Many key stakeholders responding to the recent evaluation were not even aware that training and other implementation support was available through the Department.

The decline of research and consultation and the frenetic pace of piecemeal criminal justice legislative proposals is more suggestive of law-making in a sausage factory rather than of its careful evolution through a process of rational law reform. The credo of public servants is “fearless advice, loyal execution,” but the advice must surely be based on expertise informed by research and consultations. 

If the Justice Department’s own criminal law policy section has been so diminished that it can only achieve the loyal execution of established policy but lacks the resources to carefully and intelligently develop new policy, then it is only doing half its job.

Our history has shown that effective and fair criminal justice and corrections law reform results from a non-politicized quest for justice. Problems should be clearly defined, research done, consultation papers distributed, assessments made regarding constitutionality, and stakeholders and others should be consulted before legislative reforms emerge for Parliament to consider. The large number of new laws that have proved ineffective or been declared unconstitutional is evidence of the need to rethink the policy development and law reform process in Canada.   

The need for a transparent and independent role for academics, foundations, NGOs, stakeholders and concerned citizens in the designing of our laws has never been greater. We need to return to principle-driven, evidence-based approaches to law reform that benefit from the expertise of stakeholders in the pursuit of justice.

Catherine Latimer is the Executive Director of the John Howard Society and Broadbent Institute Policy Fellow.

Photo: Alex Guibord. Used under a Creative Commons BY-ND-2.0 licence.