Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A u g u s t 2 0 1 4 45 departmental performance report, there were 24 references to the Charter, sprinkled liberally through the 86-page document. In Justice Minister Peter MacKay's most recent 2012/13 performance report there was one lone mention of it, a passing ref- erence to the need to ensure government legislation complies with the Charter. It's not an accident. Party insiders say Harper and other Conservatives consciously avoid mention of the Charter. "There's a thing in this party against putting the Charter up on a pedestal and everybody tugging a forelock as they walk by or genuflecting." That fundamental difference in view- points has, at times, resulted in tension as a Conservative government with a tough law-and-order agenda and a Parliament- should-prevail attitude has had to work with a Justice Department steeped in the Charter. Where DoJ officials were used to offering the justice minister a certain range of options when giving advice, they sud- denly found their usual range of options were rejected and they were being sent back to the drawing board. "We were in an uncomfortable period because we were debating things that in many instances we hadn't been considering for a long time and there is no question there was a skepticism about the courts and an unwill- ingness to take as an automatic 'well that shuts the argument down, you tell me there's a risk the court may rule against it, that's the end of it,'" recalls one source. "They wanted us to come back and say try harder. Come back with some fresh ideas. That's fair. It was uncomfortable but it was fair." The Conservatives, meanwhile, saw the Justice Department as deliberately dragging its feet and felt top officials dis- agreed with their law-and-order agenda. "The Department of Justice is far too prone to tell me why I can't do something instead of how I can do it," says a senior Conservative. "My argument . . . is I don't want to know why I can't do this. I want you to tell me how I can do it." The Conservatives were also less like- ly to be dissuaded by the prospect of their legislation being struck down by the courts. "I think they were prepared to accept a higher risk of a successful chal- lenge than the previous government had been," says one government source. That willingness to risk Charter chal- lenges was highlighted in 2012 when former Justice Department lawyer Edgar Schmidt took his own government to court, alleging the government wasn't tak- ing adequate steps to ensure laws it was adopting respected the Constitution. Conservative insiders say the govern- ment also sensed the court and Chief Justice Beverley McLachlin were against them, and that they had received reports McLachlin had made negative comments about the Conservative government at social functions. That tension came to the fore in the spring when Harper publicly criticized McLachlin in relation to a call she made to the PMO regarding possible concerns of the appointment of a Federal Court judge (before Marc Nadon's name actually came up) to the Supreme Court. NDP Justice Critic Françoise Boivin says a higher risk of Charter challenges means a higher cost to taxpayers. "When you go to the Supreme Court, it's not cheap." Cotler sees a lot of changes since he left the department. "The agenda has been much more of a crime-and-punishment agenda and the larger issues that a Justice Department can engage in and should engage in have not been part of it. For example, you take the Charter of Rights and Freedoms. We saw this as a cen- trepiece of our justice work." Cotler says the Charter transformed the lives of Canadians and took Canada from being a parliamentary democracy to a constitutional democracy but the Conservative government has tried to "marginalize it and mute it. This whole issue of the promotion and protection, not only of the Charter but the promotion and protection of human dignity as a central role of the minister and the department, seems to have been marginalized." That marginalization also extends to the pursuit of international justice, the responsibility to protect doctrine or prosecuting interna- tional war criminals, he adds. Cotler says the Conservatives con- tinued the work he started to democ- ratize the appointment of judges and to make appointments more transparent and inclusive and went forward with the appointment of Justice Marshall Rothstein that he was about to make when the government changed. However, where MPs were a minority on his selec- tion panel, Conservative MPs now form the majority, he points out. Public service insiders say they are concerned about the long-term impact of the changes in the Department of Justice — particularly the cuts, the lack of promotions, and the change in the work atmosphere for Canada's federal govern- ment lawyers. MacKay agrees the DoJ is a different place than it was just a few years ago. "I think the public may have the view sometimes of the public service being a nice, cushy job and I think some people come to public service because it used to have a reasonable work/life balance. The trend is away from that now, if it was there at all, and people are working tre- mendously hard and it's not really being recognized." "The agenda has been much more of a crime-and-punishment agenda and the larger issues that a justice department can engage in and should engage in have not been part of it." — Irwin Cotler, former Liberal Justice minister

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