What are minister of justice’s statutory responsibilities? | Catherine Latimer

By Catherine Latimer

Law360 Canada (August 4, 2023, 10:37 AM EDT) --
Catherine Latimer
Catherine Latimer
As Canada’s new Minister of Justice, Arif Virani has the opportunity to take a more expansive — and I would argue correct — interpretation of s. 4 of the Department of Justice Act than did his predecessor, David Lametti. The Act sets out the powers, duties and functions of the minister of justice and the attorney general of Canada, and s. 4 requires the minister to see that public administration is consistent with the law.

My hope is that Minister Virani will take a fresh look at his duties as minister of justice because a narrow interpretation of s. 4 of the Act could have potentially dangerous consequences for imprisoned people in this country, given the many identified failures to comply with the Corrections and Conditional Release Act and the Charter.

Let me explain what I mean by way of a recent example. In 2019, both the Courts of Appeal in B.C. and Ontario found that administrative segregation (or solitary confinement) provisions violated prisoners’ Charter rights by failing to provide inadequate independent oversight and by imposing cruel conditions of confinement. The Ontario Court of Appeal capped the duration of administrative segregation at 15 consecutive days. 

Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, was introduced to replace so-called administrative segregation with structured intervention units (SIUs). SIUs were meant to correct the Charter deficiencies of administrative segregation and still separate prisoners who posed a threat to guards or the prison population. But, unlike administrative segregation, SIUs were also supposed to mitigate the psychological damages of isolation by allowing SIU prisoners to spend four hours each day outside their cells and have two hours of “meaningful human contact.”

Correctional Services of Canada (CSC) often fell short of the statute’s promise. In 2021, Dr. Anthony Doob and Dr. Jane Sprott released an influential report that assessed whether SIUs were making progress toward the federal government’s goal of eliminating solitary confinement. They found that little had changed; SIUs were basically only a rebranding.

Doob and Sprott discovered that 195 prisoners, about 10 per cent of the placements, met the definition of prolonged solitary confinement and exceeded the 15-day cap for such restrictive confinement imposed by the Ontario Court of Appeal. “We think that the time has come for Canada to acknowledge that it still has solitary confinement and torture by another name,” they wrote. Doob and Sprott’s findings were accepted by Minister Bill Blair before the House of Commons Standing Committee on Public Safety and National Security.

So, clearly, the law was not being administered in a manner consistent with the Charter. Clearly, the federal government was aware of this concerning discrepancy. But Minister Lametti never directed CSC to stop this abusive practice even though it was inconsistent with Canadian Charter decisions, it was prohibited by the United Nations, and it could possibly constitute a violation of s. 269.1 of the Criminal Code

When I wrote to Minister Lametti urging him to rely on his statutory authority to address CSC’s continuing use of prolonged solitary confinement, he replied that his role as minister of justice was to act as an adviser. Although CSC repeatedly infringed upon the Charter rights of the people in its custody, which was a conclusion accepted by his government, he simply provided CSC with “timely and clear legal advice.” In other words, he was like an umpire calling balls and strikes without the authority to require the players to follow the rules.

What is the point of the minister of justice examining a bill for its consistency with the Charter but refraining from doing anything when he learns that the implementation of the bill by a government department was not in line with the Charter and therefore unlawful?

To me, the wording of his statutory obligation was clear: “[The Minister of Justice shall] see that the administration of public affairs is in accordance with law ... [and] have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces.”

“Superintendence” means oversight, responsibility, authority, control. Therefore, according to the Act, he should have been able to do more than advise. If the legislation has teeth, he could have acted if “the administration of public affairs” was not in accordance with the law, including the Charter.  

While there may be little judicial guidance on the minister’s duties under s. 4 of The Act, the comments of Justice Patrick Gleeson in Canadian Security Intelligence Service Act, RSC 1985 are illuminating. In that decision, Justice Gleeson noted that the minister of justice failed to meet his obligations under s. 4 because the then-minister of Justice did not intervene after he was notified that CSIS proposed to continue using unlawfully obtained information in its warrants. Justice Gleeson understood that s. 4 meant that the minister had authority over justice matters and thus bore responsibility if the administration of justice contravened Charter rights or broke the law.

Although I have pointed to ongoing prolonged solitary confinement as an example of public administration of correctional laws that was inconsistent with the Charter, my issue here is really about when and how the new minister of justice should act to address unlawful public administration based on s. 4 statutory obligations.

As Minister Virani knows, the minister of justice plays an important role in ensuring the law is upheld and Canadians’ rights are protected. My hope is that Minister Virani also knows that, for that role to work, he needs to do more than call balls and strikes. He needs to get in the game.

Catherine Latimer is the executive director of the John Howard Society of Canada.
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