Department of Justice Canada Minister's Transition Book
Identification of Priorities
Medical Assistance in Dying
Issue
Next steps in reforming the law on medical assistance in dying (MAID) as a result of the decision of the Attorney General of Canada not to appeal the Quebec Superior Court decision in Truchon c. Canada, declaring the “reasonable foreseeability of natural death” criterion in the federal regime to be unconstitutional.
Background
In June 2016, in response to the Supreme Court of Canada’s decision in Carter, MAID was decriminalized in Canada through amendments to the Criminal Code, which now allow physicians and nurse practitioners to provide such assistance to eligible competent adults in accordance with specified safeguards. Quebec has also enacted a comprehensive MAID regime under the End-of-Life Care Act.
In Canada, MAID has aspects that fall under both federal and provincial jurisdiction. The criminal law aspects of such assistance fall under exclusive federal jurisdiction and therefore apply consistently across the country. Criminal law codifies and reflects the basic moral code of a society. Its primary objective is to maintain a just and peaceful society; it is about the public interest, which is broader than the private relationship between a doctor and a patient. Concretely, MAID is an exemption from the crimes of murder and aiding suicide.
The provinces and territories are responsible for the implementation of MAID within the health care delivery system, and the practice is governed largely by medical regulatory bodies. The provinces and territories can legislate in relation to the health care aspects and civil law implications of MAID so long as their legislation does not conflict with the criminal law.
Quebec Superior Court Decision
On September 11, 2019, in its Truchon c. Canada (procureur général) decision, the Quebec Superior Court held that the “reasonable foreseeability of natural death” requirement in the federal MAID regime is unconstitutional on the basis that it unjustifiably limits rights guaranteed under section 7 (right to life, liberty and security of the person) and section 15 (equality rights) of the Canadian Charter of Rights and Freedoms. The Court also invalidated the “end of life” requirement contained in Quebec’s legislation.
The Court suspended its declaration of invalidity for a period of six months (until March 11, 2020) to allow both the federal and Quebec legislatures to respond. If the suspended declaration of invalidity expires without legislative amendments to the Criminal Code, eligibility for MAID would be different in Quebec than in other provinces and territories. Only in Quebec would persons be eligible for MAID when death is not otherwise approaching, without additional safeguards.
In October 2019, during the election campaign, the Prime Minister and the Minister of Justice and Attorney General indicated that Canada would not appeal the decision, and would amend the federal law to respond to the court’s ruling in a way that respects personal autonomy while protecting vulnerable people. The Government of Quebec also announced that it would not appeal the decision. The Quebec Ministers of Health and Justice have not indicated whether they intend to amend their legislation, but have acknowledged that the Quebec law cannot be more permissive than the Criminal Code regime.
From a policy perspective, the impact of the decision not to appeal the court decision and instead to amend the Criminal Code would be to broaden the scope of the federal MAID regime from one that offers the option of a medically assisted death to persons “nearing death” to one that offers this option to both dying and specified categories of non-dying persons.
Stakeholders’ Reactions
While societal acceptance of the MAID regime has increased since decriminalization in 2016, public and expert views on MAID in Canada remain deeply held, are informed by personal experiences, and are quite polarized. MAID is a highly complex societal issue, which requires reconciliation of different fundamental values, such as individual autonomy, respect for the value of life, protection of the vulnerable, and equality of all persons, including disabled persons. Debates about MAID in Canada mirror those taking place in other jurisdictions.
Recommended Action
[Redacted]
Engagement with the provinces and territories is also recommended given the impact of possible legislative changes on health care delivery, including medical professions and regulatory bodies who are central to the delivery and oversight of MAID in Canada.
Implementation of the McLellan Report
Issue
Implementation of the eight recommendations made within the McLellan Report to improve prosecutorial independence.
Background
On August 14, 2019, the Prime Minister made public the report of the Honourable Anne McLellan entitled Review of the Roles of the Minister of Justice and Attorney General of Canada. Ms. McLellan was asked to assess the structure of having the roles of the Minister of Justice and Attorney General of Canada (AGC) held by the same person and to make recommendations on that structure or to improve prosecutorial independence, if necessary.
No structural changes are recommended
Ms. McLellan concluded in her report that, in her view, no structural changes are required to protect prosecutorial independence and to promote public confidence in the criminal justice system. However, Ms. McLellan made eight recommendations to address any remaining public concern about having the same person occupy both roles.
Recommended Action
Recognizing that the next Government may wish to quickly move forward with the implementation of all or some of Ms. McLellan’s recommendations, the Department’s Policy Sector and Public Law and Legislative Services Sector, in consultation with the Public Prosecution Service of Canada (PPSC) and, where appropriate, the Privy Council Office (PCO), are addressing the recommendations as follows:
- The AGC develop a protocol to govern ministerial consultations in specific prosecutions. [Redacted] .
- The PPSC Deskbook be updated to clarify what the AGC may do when advised of a prosecution that raises important questions of general interest under section 13 of the Director of Public Prosecutions Act (DPPA). [Redacted] .
- The AGC consider releasing reasons when they decide to issue a directive, take over or decline to take over a prosecution under the DPPA. [Redacted] .
- Education programs be developed for parliamentarians, Ministers, exempt staff and officials that explain the unique role of the AGC, the proper approach to consulting with the AGC and the consequences of interfering with prosecutorial discretion. [Redacted] .
- Open and Accountable Government be amended to discuss the rule of law, the unique role of the AGC and that virtually all prosecutorial decisions are made by the PPSC without the involvement of the AGC. [Redacted] .
- The Minister of Justice and AGC’s oath of office be updated to reflect the AGC’s unique role. The Minister of Justice and AGC’s oath of office has been updated to reflect the AGC’s unique role. The draft oath was developed by PCO in consultation with Justice.
- The Department of Justice Act be amended to make explicit the AGC’s independence in the prosecution function and confirm that legal advice to Cabinet must be free of partisan considerations.
- The Department of Justice’s name be changed to the “Department of Justice and Office of the Attorney General of Canada.” [Redacted] .
[Redacted] .
Modernization of the Official Languages Act
Issue
Next steps in the modernization of the Official Languages Act (OLA), an issue that was raised by all political parties in the election campaign.
Background
All federal institutions have obligations under the OLA. That said, some institutions have specific roles and duties:
- As Minister of Justice and Attorney General of Canada, you are responsible for providing legal advice to the Government on official languages and representing the Government before the courts. You are also responsible for drafting laws and regulations of the Government and its departments in both official languages, and for promoting access to justice in the two languages. Finally, to date, the OLA remains under the responsibility of the Minister of Justice.
- The Department of Canadian Heritage (PCH) ensures interdepartmental coordination of federal institutions’ implementation of the Government’s commitment to supporting and furthering the development of official language minority communities, and to promoting full recognition and use of both official languages in Canadian society (Part VII of the OLA).
- The Treasury Board Secretariat (TBS) establishes policies and provides instructions to federal institutions to monitor their observation with regard to communications with and services to the public (Part IV), language of work (Part V), and equal opportunities for English-speaking and French-speaking Canadians in employment and advancement within federal institutions (Part VI).
Launch of the modernization exercise of the OLA
In June 2018, Prime Minister Trudeau announced his plan to modernize the OLA. In August 2018, the Minister of Tourism, Official Languages and La Francophonie, the Honourable Mélanie Joly, received the mandate to begin a review to modernize the OLA. Round tables and discussion forums were held in 17 Canadian cities throughout the winter and spring of 2019. An interdepartmental working group on the modernization of the Act, composed of representatives from PCH, Justice Canada, TBS and the Privy Council Office (PCO), was established in July 2019. [Redacted] .
Calendar
The Prime Minister, at his first press conference after the federal general election, responded affirmatively to a question on whether the modernized OLA was foreseeable in six months. The President of the Fédération des communautés francophones et acadienne du Canada (spokesperson organization for official language minority communities) reacted by saying that nothing prevents the Government from tabling a bill in the next six months.
The interdepartmental working group, at its meeting on October 24, 2019, reviewed a draft table that regroups proposals put forward by various stakeholders, [Redacted] .
Recommended Action
[Redacted] .
Immigration and Refugee Legal Aid
Issue
The Department of Justice Canada’s Legal Aid Program is facing pressures due to ongoing increased demand for immigration and refugee (I&R) legal aid, coupled with the Ontario government’s decision to disallow the use of provincial funds for such services. A decision on whether to continue to offset provincial funding pressures with increased federal funding will be required.
Background
The Legal Aid Program is a cost-shared program that provides contribution funding for criminal and I&R legal aid services to provinces to support fair legal proceedings for eligible persons and public confidence in the justice system. I&R legal aid assists eligible in-Canada asylum seekers in navigating the refugee determination process. In so doing, it contributes to the efficient and effective functioning of the process. The annual $11.5 million federal allocation for I&R legal aid, which has in recent years been topped up through departmental reallocations and otherwise, is divided among the six provinces that provide services in this area: British Columbia (BC), Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador, according to a demand-based formula.
From a federalism perspective, the Supreme Court of Canada has held that legal representation before the Immigration and Refugee Board (IRB) has federal (aliens and naturalization) and provincial aspects (civil rights in the province). In addition, immigration is a shared area of jurisdiction. In operation, immigration and refugee matters are effectively federal, with Parliament establishing the laws relating to immigration and refugee matters, including the processes to adjudicate asylum claims and enforcement procedures. Over 80% of I&R legal aid cases support refugee matters.
Volume pressures
Canada has experienced an increase in the number of asylum claimants over the past several years and continues to do so. The government’s asylum intake forecast projects that the number of in-Canada asylum seekers in 2019-20 will reach approximately 56,500. Given the increased demand for I&R legal aid, Budget 2019 announced an additional $16.2 million for I&R legal aid for 2019-20 and an additional $16.7 million in each of 2020-21 and 2021-22, increasing the status quo level of $11.5 million to $27.7 million (2019-20) and $28.2 million (2020-21 and 2021-22). These investments align with and support other recent federal investments in asylum seeker processing. Budget 2019 provided $208 million over two years for the IRB, and another $452 million over five years to Immigration, Refugees and Citizenship Canada for “Enhancing the integrity of Canada’s borders and asylum system”.
Legal aid I&R case volumes in Ontario far exceed those of the other provinces. In 2017-18, of the over 41,812 legal aid certificates issued for I&R legal aid, 23,127 (55%) were in Ontario compared to 14,317 in Quebec and 1,694 in BC. The previous year, Ontario accounted for 60% of certificates issued.
Ontario Government Decision and Federal Response
In August 2019, in response to the Government of Ontario’s decision to disallow the use of provincial funds for immigrant and refugee legal aid, the federal government announced an investment of an additional $26.8 million in immigrant and refugee legal aid for the 2019‑20 fiscal year, to cover 100% of the costs in the six participating provinces. This increased I&R legal aid funding to $54.5 million for 2019-20.
In October 2018, the Ontario Attorney General wrote to federal ministers to reiterate his view that Ontario should not have to subsidize federal responsibilities related to I&R legal aid and that funding stability was required.
Recommended Action
[Redacted] .
Family Information Liaison Units and Community Based Supports for Families of Missing and Murdered Indigenous Women and Girls - Funding Renewal
Issue
Funding for Family Information Liaison Units (FILUs) and community-based supports for families of missing or murdered Indigenous women and girls will sunset on March 31, 2020. A decision on whether or not to renew the funding is required in the near term.
Background
The National Inquiry into Missing and Murdered Indigenous Women and Girls (National Inquiry) was launched on August 3, 2016, to seek recommendations on concrete actions to address and prevent violence against Indigenous women and girls. Since 2016, in parallel to the National Inquiry and as part of the Federal Victims Strategy, Justice Canada has provided $21.59 million to support the development of specialized services for families of missing or murdered Indigenous women and girls, in collaboration with provinces, territories and Indigenous organizations.
Family Information Liaison Units
FILUs serve families of missing or murdered Indigenous women and girls, helping them access information about their missing or murdered loved ones that may be available from multiple government sources. FILUs are available in every province and territory and build on the existing victim services frameworks in each region.
Receiving information about a missing or murdered loved one is an important part of a family’s healing journey. Some families have questions about the investigations into individual cases, and the decisions made by government agencies. At times, families may not know where to turn to get answers, may have trouble accessing information, or may not be satisfied with the answers they have received. FILUs work directly with families of missing or murdered Indigenous women and girls to gather all the available information they are seeking related to their loved one from government agencies and services, including the criminal justice system (police, prosecutions, corrections), social services, child protection, health services, and other FILUs across the country.
FILU team members provide services in a manner that is family-centred, culturally-grounded and trauma-informed. If families need additional support, FILUs make connections between family members and cultural advisors, Elders, or counselling services and programs, depending on the family member’s wishes. FILUs across Canada work closely together and many of them are delivered in partnerships with Indigenous community organizations.
Community-based Supports for Families of Missing or Murdered Indigenous Women and Girls
The Department of Justice has also provided funding to Indigenous community-based organizations, non-governmental community-based organizations, and victim services to support the design and delivery of culturally-responsive, trauma-informed services for families of missing or murdered Indigenous women and girls.
Culturally-responsive services for families are those that are grounded in or informed by the various cultures of the families in need of assistance. A trauma-informed approach is grounded in client safety and empowerment. Trauma-informed victim service providers are guided by principles of creating a safe space, building trust, supporting client choice, respecting client control, and building on strengths. These principles are integrated into policies, procedures, practices and settings.
Projects were chosen for support with a view to addressing gaps where there are limited supports and services for families, and to increase capacity where services are already being provided by Indigenous organizations. Funding was available to organizations to undertake activities such as trauma or grief counselling, cultural ceremonies, workshops for families, or local or regional family gatherings.
Impact of these investments
Although a formal evaluation has not yet been completed, feedback and annual reports received to date indicate that the initiatives have improved the experience of families of missing or murdered Indigenous women and girls. They have done the following:
- Established a new model of victim services for family members – in partnership with provinces, territories and Indigenous organizations – that is culturally-grounded, trauma-informed and available across Canada.
- Overcome systemic and structural challenges that prevented family members from accessing information and assistance, such as geographical distances and jurisdictional barriers, elapsed time, or other challenges. Providing information about their loved one can play a significant role in a family member’s healing journey.
- Provided opportunities to build trust and confidence in the justice system (police, prosecutors, coroners, victim services) among family members by supporting meaningful dialogue and relationship-building between family members and criminal justice officials and agencies.
Government of Canada Commitment to Develop a National Action Plan in Response to the Final Report of the National Inquiry
On June 3, 2019, the final report from the National Inquiry was released. The development and implementation of a National Action Plan (NAP) was one of the key recommendations of the Commission and a common theme in the closing submissions. At the closing ceremony, the Prime Minister committed to working with Indigenous peoples to “develop and implement a National Action Plan to address violence against Indigenous women, girls, and LGBTQ and two-spirit people. We will work with Indigenous partners to determine next steps. And you have my word that my government will turn the Inquiry’s calls for justice into real, meaningful, Indigenous-led action.”
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Recommended Action
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