Canada

   

Quality of Democracy

#11
Key Findings
Canada’s democracy is robust, with a fair, open and transparent electoral process, and thus scores well in international comparison (rank 11). Its score in this area has improved by 0.3 points since 2014.

Civil rights and political liberties are well protected. While anti-discrimination laws are broad and proactive, the Indigenous community in particular reports persistent problems, and the gender-based pay gap is large. An overhaul of national-security laws removed powers granted under the previous government, and improved oversight. Critics say it opens the door to digital surveillance.

Private-media ownership is strongly concentrated. The government has begun providing financial assistance to traditional media outlets suffering from advertising-revenue losses. The law mandating access to government information has been updated, but does not apply to ministerial offices. A court ruling has given overseas Canadians the right to vote no matter how long they have lived abroad.

While corruption is minimal by international standards, several recent high-profile cases have emerged, including a scandal involving Prime Minister Trudeau. Parties receive individual donations and government funding. Transparency concerns have been raised by news of top politicians’ “cash-for-access” meetings with donors.

Electoral Processes

#4

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
10
The right to be a candidate in a federal election is laid down in the Canadian Charter of Rights and Freedoms, with the associated procedures and responsibilities specified in the Canada Elections Act. There are virtually no restrictions on becoming a candidate for election. Almost all Canadian citizens 18 years old or over can present themselves as candidates for federal elections. Exceptions include members of provincial or territorial legislatures, certain judges, election officers, people who were candidates in a previous election but who did not conform to the expense-reporting rules, and persons imprisoned in a correctional institution. There is no cost to being a candidate in a federal election. A CAD 1,000 deposit is required, but this is reimbursed if the candidate’s official agent submits the electoral campaign return after the election within the prescribed time. Administrative procedures are not onerous (a nomination form is required containing signatures by either 50 or 100 people residing in the constituency in which the candidate wants to run, with the number depending on the electoral district’s population).

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
8
While national media outlets do demonstrate political orientations, in general there is fair and balanced coverage of election campaigns and parties. Under sections 335, 339 and 343 of the Canada Elections Act, every broadcaster in Canada is required to make a minimum of 390 minutes of airtime during each federal general election available for purchase by registered political parties. The allocation of airtime among the parties is usually based on a formula that takes into account factors such as the party’s percentage of seats in the House of Commons, its percentage of the popular vote in the last general election, and the number of candidates it endorsed as a percentage of all candidates. The Canadian system is primarily one of paid political advertising; that is, any broadcasting time used before an election has to be paid for. While CBC/Radio-Canada does provide a small amount free airtime to federal and provincial parties, this does not represent a significant share of political advertising in Canada. However, whether or not this translated into unequal access is unclear, as campaign spending regulations likely impose de facto limits on how much parties can actually spend on televised advertising time.
The Elections Act restricts the amount any outside group can spend on political advertising during a normal-length political campaign to CAD 500,000 (as of 2019), with no more than CAD 4,000 being spent in any one electoral district. New legislation also limits on pre-election spending; in the three-month period before the official start of the campaign period, non-party entities can spend no more than CAD 1 million, while political parties can spent up to CAD 1.5 million on advertising in this period.

Citations:
Parliament of Canada, Bill C-23: An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts, posted at http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId =6684613.

Sinha Awanish, “Canada’s Election Laws are Changing- Here’s what you need to know,” 10 May 2018, accessed on 27th October 2019. https://www.mccarthy.ca/en/insights/articles/canadas-election-laws-are-changing-heres-what-you-need-know

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
9
All Canadian citizens 18 years and over have the right to vote, including the mentally deficient and people who are imprisoned in a correctional facility. Until recently, the only exceptions were election officers and, following a 2015 Ontario Court of Appeal ruling, non-resident citizens who have resided abroad for more than five years. In January 2019, the Supreme Court of Canada ruled that Canadians living abroad for any length of time can continue to vote in federal elections. Canada has a system of universal voter registration; the government is in charge of registering its citizens to vote as a means of protecting their constitutional right (this stands in contrast with the United States’ system of citizen-initiated opt-in registration). Additionally, Canada allows for election-day registration for those who the universal registration system missed. Procedures for voting are not onerous. Adequate opportunity for casting an advance ballot is provided. There are four days of advance polling, ending the week before election day. Additionally, people can vote by mail if they cannot attend to a polling station due to physical incapacity or foreign residency.

The previous Conservative government made some highly controversial changes to Canada’s election law. The current Liberal government attempted to reconcile these issues with its Bill C-76, the Elections Modernization Act. This measure allows voter information cards to be recognized as an acceptable form of identification, and restores the rights of Canadians living abroad to vote in elections no matter how long they have lived abroad.

Citations:
Parliament of Canada, Bill C-23: An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts, posted at http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6684613.

Parliament of Canada, Bill C-33: An Act to amend the Canada Elections Act and to make consequential amendments to other Acts, posted at http://www.parl.ca/DocumentViewer/en/42-1/bill/C-33/first-reading

CBC (2019) “Supreme Count of Canada guarantees voting rights fpr expats” https://www.cbc.ca/news/politics/supreme-court-expat-voting-rights-ruling-1.4970305

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
8
The Canada Elections Act requires registered parties or electoral-district associations to issue income-tax receipts for contributions, and to make public reports on the state of their finances. Furthermore, the act requires registered parties to report and make public all contributions of more than CAD 20. Elections Canada provides access to the full database online for public use. Corporations, trade unions, associations and groups are prohibited from contributing to political parties. Only individuals are allowed to contribute. The amount that candidates and leadership contestants may contribute to their own campaigns is CAD 5,000 and CAD 25,000, respectively. Individuals receive generous tax credits for political donations. Annual contributions to registered parties, registered associations, electoral candidates, and nomination and leadership contestants are capped at a relatively modest amount of CAD 1,550. However, transparency in political financing is still seen as a problem. Public debate over transparency recently reignited after it was revealed in the press that the prime minister and other senior ministers were raising millions of dollars at private “cash-for-access” fundraisers, giving donors secretive cabinet access. Furthermore, provincial practices and rules regarding political donations vary widely. Fixed contribution limits, for example, range from only CAD 100 per year in Quebec to CAD 6,000 per year in New Brunswick. Yet, in other provinces like Saskatchewan, any individual, corporation, union or special interest group can make a political contribution of any size to a provincial political party.

In addition to individual donations, political parties are funded by the government. Each registered federal political party that received at least 2% of all valid votes in the last general election, or at least 5% of the valid votes in the electoral districts in which it has a candidate, is reimbursed 50% of its national campaign expenses and further “election rebates” for riding-specific expenses. Until 2015, such parties were also given a per-vote subsidy, largely considered to be the most democratic financing regime. A bill passed in 2012 reduced and later eliminated this subsidy, seen as negative from the perspective of fairness in party financing.

Citations:
Elections Canada, Administrative Compliance Policy for Political Financing, retrieved 2015 from http://www.elections.ca/pol/acp/adcom_e.pdf.

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
7
On the federal level, there are few opportunities for Canadians to make binding decisions on matters of importance to them through popular initiatives or referendums; on this level, it is impossible to circumvent the elected representatives. On the provincial level, British Columbia remains the only jurisdiction in Canada with voter-initiated recall and referendum legislation. It is worth noting that the Royal Commission on Electoral Reform concluded in 1991 that “in Canada, the particular vulnerability of the prime minister and cabinet ministers to the use and abuse of the recall would make this instrument of direct democracy especially detrimental to our system of representative democracy.”

Citations:
Forum Research. Media Release July 6, 2016, Two-Thirds See Need for Referendum on Electoral Reform, posted at http://poll.forumresearch.com/post/2547/two-thirds-see-need-for-referendum-on-electoral-reform/

Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, Minister of Supply and Services, 1991, p. 247.

Access to Information

#12

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
9
The only publicly owned media organization in Canada at the national level is the Canadian Broadcasting Corporation (CBC), which runs radio and television stations. Its independence from government control is ensured by statute. However, this independence has limits. For example, it is unlikely that Radio-Canada, the French-language division of the CBC, would be permitted to advocate the breakup of the country. Privately owned media organizations can of course take any political position they wish. In theory, if a government does not like the viewpoint of a particular media outlet, it can use the retraction of government advertising as a punishment. This is seldom done by the federal government or provincial governments, but is more common on the part of municipal governments. Electronic media are subject to licensing requirements, but this regulation is performed by an independent body, the Canadian Radio and Television Commission (CRTC), without overt political influence. The federal government does appoint the members of the CRTC, as well as the head of the CBC. The federal government has put forward measures, including financial assistance, to support traditional media outlets that are struggling to survive the loss of advertising revenue to Google and Facebook.

Citations:
CBC/Radio-Canada, Ottawa. Press Release February 2017, CBC/Radio-Canada shares its Accountability Plan, http://www.cbc.radio-canada.ca/en/media-centre/2017/02/01/

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
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 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
6
Media ownership in Canada is concentrated, with a small number of Canadian-owned and Canadian-controlled media conglomerates dominating the mainstream print and electronic media. There is also strong media concentration in some parts of the country (e.g., the Irving newspapers in New Brunswick). This trend has accelerated with the of projected shutdown of several dozen local newspapers following a deal between two national newspaper corporations, Torstar and Postmedia Group.

A case can be made that the lack of competition in the industry has led to a lack of diversity in views and positions. For example, mainstream media outlets rarely support social-democratic political parties. The mainstream print media argue that while their editorials generally express a right-wing or centrist political orientation, they make an effort to seek out contributors with left-wing perspectives and to provide balanced coverage of issues. Whether this is indeed the case is, however, doubtful. Although alternative sources of information such as online newspapers, magazines and social media (e.g., blogs) may help promote a pluralism of opinions, mainstream media likely will continue to play a crucial role in setting the national agenda. In this regard, the concentration of media ownership in Canada means that certain opinions are not represented to the degree that they are held by the general population.

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
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 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
7
Access to official information in Canada has been regulated by the 35-year-old Access to Information Act, which was generally regarded as antiquated. In response, the Trudeau government passed Bill C-59 in June 2019, a measure intended to reform the law and bring it into the 21st century. The new legislation has widely been seen as an improvement. Importantly, it expands the power of the Information Commissioner, giving this entity the authority to order institutions to release records at the end of an investigation when a complaint is deemed to be “well-founded.” When appropriate, the Information Commissioner will also be able to issue publication orders for new complaints that cannot be satisfactorily resolved through informal resolution mechanisms, as well as publish the results of investigations. Furthermore, institutions may now ask the Information Commissioner for approval to decline access requests that are vexatious, made in bad faith or otherwise represent an abuse of the right of access.

The Commissioner had previously expressed a number of concerns about the bill, which were subsequently resolved in committee before the measure was passed into law. One caveat is that the right to information does not apply to the Prime Minister’s Office or other ministerial offices. Government institutions can also decline a request if it concerns a large number of records, is deemed to be made in “bad faith” or would interfere with government operations.

As is the case elsewhere, access to information in Canada is often impeded by bureaucratic procedures and delays. The 2017 Freedom of Information Audit by News Media Canada awarded the system a grade of F for the disclosure of information, stating that the process for requesting and accessing government documents is slow and inefficient, and that very few requests are granted in a timely manner. It remains to be seen whether these realities will change under the new act.

Citations:
News Media Canada (2017) 2017 Freedom of Information Audit, posted at https://nmc-mic.ca/public-affairs/freedom-of-information/2017-freedom-information-audit/

Office of the Information Commissioner, Annual Report, 2018-2019, posted at https://www.oic-ci.gc.ca/ar-ra/2018/Home.html

Civil Rights and Political Liberties

#10

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
9
In general, the state and the courts show a high degree of respect for civil rights and political liberties in Canada. Of course, there is a trade-off between protecting the rights of individuals from government intrusion, and ensuring public safety and security from terrorist threats. Two security breaches in 2014, the shooting of a soldier on ceremonial duty at the Canadian National War Memorial in Ottawa and an attack on military personnel in Saint-Jean-sur-Richelieu, gave new impetus to the government’s plans to introduce new anti-terrorism legislation. In 2015, the government passed the Anti-Terrorism Act (Bill C-51), which introduced sweeping changes to the Canadian security apparatus. It includes expanded surveillance and intelligence sharing, a remodeling of the Canadian no-fly regime in the style of the United States, and expanded powers and courtroom anonymity for the Canadian Security Intelligence Service (CSIS). The bill was the subject of intense public debate as many civil libertarians and privacy advocates opposed the bill.

In a 2015 report, the UN Human Rights Committee expressed concerns about the bill. Two civil liberty organizations, the Canadian Civil Liberties Association and Canadian Journalists for Free Expression, have since launched a legal challenge to C-51 under the Canadian Charter of Rights and Freedom. For its part, the Trudeau administration passed Bill C-59, which made sweeping changes to the National Security Act. The measure removed some of the powers given to CSIS and the Communications Security Establishment (CSE; the country’s signals-intelligence agency) by the previous government, and introduced several oversight mechanisms designed to make these bodies more accountable. However, the bill also expanded the CSE’s mandate, giving it new abilities and roles. Many experts are worried about domestic data privacy, as the bill does not prevent the CSE from collecting data on Canadians via the internet. The Canadian Civil Liberties Association maintains that the bill stops short of repealing the measures in C-51 that had threatened civil liberties.

Citations:
Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts (2015). Retrieved from the Parliament of Canada website http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=8056977.

Canadian Civil Liberties Association, “CCLA with Civil Society Groups Issue Join Letter on Bill C-59 and National Security Law in Canada,” September 19, 2017, posted at https://ccla.org/ccla-civil-society-groups-issue-joint-letter-bill-c-59-national-security-law-canada/

Forcese, G. and K. Roach,”A Report Card on The National Security Bill,” Institute for Research on Public Policy (IRPP), June 22 2017, posted at https://policyoptions.irpp.org/magazines/june-2017/a-report-card-on-the-national-security-bill/

United Nations Human Rights Committee, Concluding Observations on Canada’s sixth report in relation to Canada’s compliance with the International Covenant on Civil and Political Rights, August 2015. http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhskswUHe1nBHTSwwEsgdxQHJBoKwgsS0jmHCTV%2fFsa7OKzz9yna94OOqLeAavwpMzCD5oTanJ2C2rbU%2f0kxdos%2bXCyn4OFm3xDYg3CouE4uXS

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
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All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
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State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
8
The state and the courts generally show a high degree of respect for civil rights and political liberties in Canada. In designing its anti-terrorism and national security laws, the government needs to strike a balance between the need to ensure public safety, and protecting the rights and freedoms of individuals.

The federal government has passed Bill C-59 in an effort to remedy flaws in the National Security Act introduced by the Harper government in 2015. The new measure comprehensively overhauls Canada’s national security laws, enhancing oversight and ministerial control, and addresses constitutional problems. Human rights and civil liberty organizations have welcomed the new accountability framework created by the bill, but have criticized provisions empowering the national security agency to conduct mass surveillance and cyber-attacks.

In a 2015 report, the UN Human Rights Committee voiced concerns about the excessive use of force by law enforcement officers during mass arrests in the context of protests on both the national and provincial levels.

Citations:
United Nations Human Rights Committee, Concluding Observations on Canada’s sixth report in relation to Canada’s compliance with the International Covenant on Civil and Political Rights, August 2015.

Canadian Civil Liberty Association, Civil Society Statement regarding Bill C-59, posted at https://ccla.org/civil-society-statement-regarding-bill-c-59/

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
8
Canada’s Charter of Rights and Freedoms was enacted in 1982, with the aim of preventing all types of overt discrimination based on gender, physical ability, ethnic origin, social status, political view or religion. Groups believing they suffer from the effects of discrimination continue to emerge. Basing their claims on the Charter of Rights and Freedoms, some have taken their cases to the courts, often winning. The Canadian government has established policies such as employment equity and pay equity to protect and promote the rights of disadvantaged groups (often called equity groups) such as women, ethnic minorities, Indigenous peoples and people with disabilities. These positive discrimination measures are controversial and their effectiveness is a subject of debate. A case in point is the gender-based pay gap. The lack of affordable childcare in Canada forces many women to drop out of the labor force or reduce their working hours during child-rearing years. This has a serious effect on women’s earnings levels. Full-time employed women in Canada earn on average 19% less than men; for women between 25 and 44 with at least one child, the pay gap is 29%, significantly higher than the OECD average (2010 data).

As so often, the experiences of Canada’s Indigenous population pose the greatest concern. Reports by the UN Special Rapporteur on the Rights of Indigenous Peoples (2014), the UN Human Rights Committee (2015) and Human Rights Watch (2018) found that the rights of Indigenous peoples were consistently violated, including unresolved treaty rights, violence against Indigenous women and girls, disproportionately high rates of incarceration, and inadequate access to clean and safe drinking water.

Heterogeneous provincial policies present another potential human-rights challenge in Canada. Conversion therapy, for instance, is banned only in Ontario and Manitoba, but continues to be legal elsewhere. Another case in point is the highly controversial Bill 21 passed in Quebec in 2019, which restricts government employees’ right to wear religious symbols if they are in positions of authority (e.g., school teachers, police officers or judges). This bill been criticized by several UN rapporteurs for violating the UN Covenant on Civil and Political Rights, which the Canadian government signed. Due in part to the bill’s popularity with Quebec voters, however, the federal government has been reluctant to interfere. In any event, further action by the federal government would have to entail taking the issue to court, basing the argument either on the constitution generally or specifically on the Canadian Charter of Rights and Freedoms.

Citations:
UN Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya (2014), posted at http://www.ohchr.org/Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2-MissionCanada_AUV.pdf

United Nations Human Rights Committee, Concluding Observations on Canada’s sixth report in relation to Canada’s compliance with the International Covenant on Civil and Political Rights, August 2015.

Equaldex. LGBTQ Rights in Canada, retrieved Nov 20 2019 from https://www.equaldex.com/region/canada

Human Rights Watch, World Report 2018, available at https://www.hrw.org/sites/default/files/world_report_download/201801world_report_web.pdf

OECD (2012), Closing the Gap – Canada, posted at
http://www.oecd.org/canada/Closing%20The%20Gender%20Gap%20-%20Canada%20FINAL.pdf

Rule of Law

#13

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
8
Canada’s government and administration rarely make unpredictable decisions. Legal regulations are generally consistent but do sometimes leave scope for discretion. Of course, the government can be expected to be challenged in court if its executive actions are not consistent with the law, which provides an incentive to comply.

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
9
The scope of judicial review was greatly expanded with the enactment of the Canadian Charter of Rights and Freedoms in 1982, which constitutionally entrenched individual rights and freedoms. Today, the courts in Canada pursue their reasoning free from the influence of governments, powerful groups or individuals.

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
6
It can be argued that the current process for judicial appointments in Canada, which is at the complete discretion of the prime minister, does not represent good governance, since the appointment needs no approval by any legislative body (either the House of Commons or the Senate). Indeed, potential candidates are not even required to appear before a parliamentary committee for questioning on their views. The prime minister has the final say in appointing chief justices at the provincial level, as well as for Supreme Court justices. The appointment process is covered by the media.

Despite their almost absolute power regarding judicial appointments, however, prime ministers have consulted widely on Supreme Court nominees, although officeholders have clearly sought to put a personal political stamp on the court through their choices. Historically, therefore, there was little reason to believe that the current judicial-appointment process, in actuality, compromised judicial independence. The current Liberal government has set up an independent, non-partisan advisory board to identify eligible candidates for Supreme Court Justices in an effort to provide a more transparent and inclusive appointment process. The first Supreme Court Judge nominated by Prime Minister Trudeau through this process was Justice Malcolm Rowe of Newfoundland and the second was Sheilah Martin from Alberta. Both appointments were widely praised.

Citations:
Nadia Verrelli, ed. (2013) The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal: McGill-Queen’s University Press)

International Commission of Jurists (2014), Response to concerns about interference with integrity and independence of the judiciary in Canada, posted at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/07/Canada-JudicialIndependenceAndIntegrity-CIJL-OpenLetter-2014.pdf

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
8
Canada has historically ranked very high for the extent to which public officeholders are prevented from abusing their position for private interests. Transparency International’s Corruption Perceptions Index ranks Canada among the top 10 least corrupt countries in the world.

In recent years, however, the country saw a number of high-profile corruption scandals. Perhaps the most consequential scandal revolves around an investigation of wrongful travel and living allowance expense claims by members of the Canadian Senate. The Senate expense scandal renewed calls to reform the Senate or abolish the upper house entirely, and in early 2014, Liberal Party leader Justin Trudeau expelled all 32 Liberal senators from the party, asking them instead to sit as independents, part of a proposed plan to overhaul Senate appointments to ensure it is a non-partisan body.

Another significant scandal emerged in 2019, when it came to light that Trudeau had used his powers as prime minister to influence the actions of the attorney general to prevent the criminal prosecution of SNC-Lavalin for bribing the son of former Libyan Prime Minister Muammar Qadhafi. The scandal also illuminated what many regard as a flaw in the governance structure of Canada’s justice system. The roles of the minister of justice and attorney general of Canada are held by the same person. When Attorney General Jody Wilson-Raybould resisted government pressures, the prime minister moved her to a different cabinet position, terminating her role as attorney general in the process. Wilson-Raybould later resigned, and was ousted from the Liberal caucus. A special adviser subsequently reviewed the roles of the attorney general and the minister of justice. In its report, the adviser concluded that the dual roles could compromise the ability to exercise independent judgment when making decisions about specific prosecutions, and that an attorney general serving as a member of the cabinet might be influenced to exercise his or her authority in specific prosecutions so as to promote the cabinet’s policy agenda and/or improve the electoral prospects of the government. However, the adviser’s report also stated that “no further structural change” would be required […] to protect prosecutorial independence and promote public confidence in the criminal justice system.”

Citations:
Report of the Auditor General of Canada to the Senate of Canada—Senators’ Expenses, June 4, 2015, posted at http://www.oag-bvg.gc.ca/internet/English/parl_otp_201506_e_40494.html

Report of the Office of the Conflict of Interest and Ethics Commissioner- Trudeau II Report, August 4, 2019, posted at https://ciec-ccie.parl.gc.ca/en/investigations-enquetes/Pages/TrudeauIIReport-RapportTrudeauII.aspx

Honourable A. Anne McLellan, P.C., O.C., A.O.E, Review of the Roles of the Minister of Justice and Attorney General of Canada,
June 28, 2019, posted at https://pm.gc.ca/en/news/backgrounders/2019/08/14/review-roles-minister-justice-and-attorney-general-canada
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