Quality of Democracy
#10Key Findings
Canada’s democracy is robust, with a fair, open and transparent electoral process, and thus scores well in international comparison (rank 10). Its score in this area has improved by 0.4 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. COVID-19 measures such as vaccine passports and mask mandates raised rights issues, but were broadly supported despite some vehement opposition.
Private media ownership is strongly concentrated. The law mandating access to government information has been updated, but does not apply to ministerial offices. Voting by mail was extended to all Canadians during the pandemic.
While corruption is minimal by international standards, several recent high-profile cases have emerged, including an influence scandal involving Prime Minister Trudeau. Parties receive individual donations and government funding. Concerns have been raised by past news of top politicians’ “cash-for-access” meetings with donors, and new laws have now increased transparency for fundraisers.
Civil rights and political liberties are well protected. While anti-discrimination laws are broad and proactive, the Indigenous community in particular reports persistent problems. COVID-19 measures such as vaccine passports and mask mandates raised rights issues, but were broadly supported despite some vehement opposition.
Private media ownership is strongly concentrated. The law mandating access to government information has been updated, but does not apply to ministerial offices. Voting by mail was extended to all Canadians during the pandemic.
While corruption is minimal by international standards, several recent high-profile cases have emerged, including an influence scandal involving Prime Minister Trudeau. Parties receive individual donations and government funding. Concerns have been raised by past news of top politicians’ “cash-for-access” meetings with donors, and new laws have now increased transparency for fundraisers.
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How fair are procedures for registering candidates and parties?
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Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
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A few restrictions on election procedures discriminate against a small number of candidates and parties.
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Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
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Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
The right to be a candidate in a federal election is laid down in the Canadian Charter of Rights and Freedoms (section 3), 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 stand 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?
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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.
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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.
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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.
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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.
While some national media outlets sometimes 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 and its percentage of the popular vote in the last general election. 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 of free airtime to federal and provincial parties, this does not represent a significant share of political advertising. However, whether or not this situation translates into unequal access is unclear, as campaign spending regulations impose de facto limits on how much parties can actually spend on televised advertising time.
The Canada Elections Act (S.C. 2000,c.9, s.350 (1)-(2)) restricts the amount any “third party” or outside group can spend on political advertising and activites during a normal-length political campaign to CAD 350,000 with no more than CAD 3,000 being spent in any one electoral district. The Act (s. 349.1(1)-(2)) also imposes 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 700,000.
Citations:
Canada Elections Act, S.C. 2000, c.9, https://laws-lois.justice.gc.ca/PDF/E-2.01.pdf
The Canada Elections Act (S.C. 2000,c.9, s.350 (1)-(2)) restricts the amount any “third party” or outside group can spend on political advertising and activites during a normal-length political campaign to CAD 350,000 with no more than CAD 3,000 being spent in any one electoral district. The Act (s. 349.1(1)-(2)) also imposes 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 700,000.
Citations:
Canada Elections Act, S.C. 2000, c.9, https://laws-lois.justice.gc.ca/PDF/E-2.01.pdf
To what extent do all citizens have the opportunity to exercise their right of participation in national elections?
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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.
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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.
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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.
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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.
All Canadian citizens 18 years and over have the right to vote. Permanent residents do not have the right to vote at any level of government. 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. Canadian citizens 18 years and over must be registered in order to vote. 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). This is generally done through checking a box on the tax return form but can also be done online or by mail. Additionally, Canada allows for in-person registration after an election is called. 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. Typically reserved for Canadians living abroad and Canadians with disabilities, voting by mail was extended to all Canadians for the 2021 federal elections held during the pandemic, after they applied online, by phone, or in person.
The Harper Conservative government, through the Fair Elections Act (2014), made some highly controversial changes to Canada’s election laws. These changes, which were seen by many as making it harder for disadvantaged Canadians to vote, were repealed by the subsequent Liberal government through the Elections Modernization Act (2019). This legislation allows voter information cards to be recognized as an acceptable form of identification, and it restores the rights of Canadians living abroad to vote no matter how long they have lived outside the country.
The Harper Conservative government, through the Fair Elections Act (2014), made some highly controversial changes to Canada’s election laws. These changes, which were seen by many as making it harder for disadvantaged Canadians to vote, were repealed by the subsequent Liberal government through the Elections Modernization Act (2019). This legislation allows voter information cards to be recognized as an acceptable form of identification, and it restores the rights of Canadians living abroad to vote no matter how long they have lived outside the country.
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?
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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.
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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.
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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.
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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.
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 2016 that the prime minister and other senior ministers were raising millions of dollars at private “cash-for-access” fundraisers, giving donors secretive cabinet access. The 2018 Act to Amend the Canada Elections Act (political financing) stipulates that party fundraisers must be advertised in advance, conducted in a public place, and be open to the media. Provincial practices and rules regarding political donations vary widely (Brock and Jansen, 2015). 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.
Citations:
David M. Brock and Harold J. Jansen, “Raising, Spending, and Regulating Party Finances in the Provinces,” Canadian Political Science Review, vol. 9, no.1, 2015, 55-74.
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.
Citations:
David M. Brock and Harold J. Jansen, “Raising, Spending, and Regulating Party Finances in the Provinces,” Canadian Political Science Review, vol. 9, no.1, 2015, 55-74.
Do citizens have the opportunity to take binding political decisions when they want to do so?
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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.
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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.
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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.
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Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
On the federal level, there are no opportunities for Canadians to make binding decisions on matters of importance to them through citizens-initiated referendums. Under the Canadian system, citizens do not have the opportunity to take binding decisions on issues of importance to them or vote on issues through a legally binding measure. There are no legally binding referendums. All referendums in Canada require legislation.
The same is true in the provinces. In 2021, a Citizen Initiative Act was being debated by the Alberta legislature. “Should the Citizen Initiative Act pass, prodding the government to create a new law or amend an existing one, or make a provincial policy change, would require a voter to gather written signatures within 90 days from 10% of the province’s electors – about 280,000 people” (French, 2021).
Citations:
Janet French. 2021. “Proposed law could see Alberta voters petition government for change,” CBC News, March 16. https://www.cbc.ca/news/canada/edmonton/proposed-law-could-see-alberta-voters-petition-governments-for-changes-1.5952191
The same is true in the provinces. In 2021, a Citizen Initiative Act was being debated by the Alberta legislature. “Should the Citizen Initiative Act pass, prodding the government to create a new law or amend an existing one, or make a provincial policy change, would require a voter to gather written signatures within 90 days from 10% of the province’s electors – about 280,000 people” (French, 2021).
Citations:
Janet French. 2021. “Proposed law could see Alberta voters petition government for change,” CBC News, March 16. https://www.cbc.ca/news/canada/edmonton/proposed-law-could-see-alberta-voters-petition-governments-for-changes-1.5952191
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To what extent are the media independent from government?
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Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
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The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
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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.
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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.
The only publicly owned media organization in Canada at the national level is the Canadian Broadcasting Corporation (CBC)/Société Radio-Canada (SRC), which runs radio and television stations. CBC/SRC is a Crown corporation operating at arm’s-length from the federal government as specified in the 1991 Broadcasting Act. Its programming features a variety of political views. Of course, privately owned media organizations can also take any political position they wish. All media is regulated by an independent body, the Canadian Radio and Television Commission (CRTC), without overt political influence.
To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?
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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.
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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.
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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.
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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 ownership in Canada is concentrated, with a small number of Canadian-owned and Canadian-controlled media conglomerates (Bell, Rogers, Quebecor) dominating the mainstream print and electronic media. There is a particularly strong media concentration in some parts of the country (e.g., the Irving newspapers in New Brunswick). This trend has accelerated with the shutdown of several dozen local newspapers following a deal between two national newspaper corporations, Torstar and Postmedia Group, in 2017.
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 generally express a centrist to center-right political orientation but some (such as the Globe and Mail and La Presse) make an effort to bring in left-wing perspectives in order to provide a balanced coverage of issues. Of course, the influence of mainstream newspapers has waned considerably in the last decade or so in favor of online sources of information and social media, where Canadians can find a great diversity of opinions and political perspectives. The public media (television and radio) generally presents a good diversity of political opinions and analysis.
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 generally express a centrist to center-right political orientation but some (such as the Globe and Mail and La Presse) make an effort to bring in left-wing perspectives in order to provide a balanced coverage of issues. Of course, the influence of mainstream newspapers has waned considerably in the last decade or so in favor of online sources of information and social media, where Canadians can find a great diversity of opinions and political perspectives. The public media (television and radio) generally presents a good diversity of political opinions and analysis.
To what extent can citizens obtain official information?
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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.
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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.
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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.
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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 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
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
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To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?
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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.
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The state respects and protects rights, with few infringements. Courts provide protection.
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Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
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State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
The state shows a high degree of respect for civil rights in Canada, and courts offer strong rights protection as they consider the Canadian Charter of Rights and Freedoms. The COVID-19 pandemic raised several rights issues as provincial governments made face coverings compulsory in public places, restricted mobility (interprovincial but also in some instances intra-provincial), implemented a curfew (in Québec only), and implemented a so-called vaccine passport whereby only citizens having had two valid doses of a vaccine against COVID-19 could eat in restaurants, work out in a gym, go to a movie theater, etc… The federal government closed the border for much non-essential international travel and mandated quarantines for Canadians coming back into the country as well as visitors. The federal government chose not to invoke emergency powers to tackle the pandemic, boosting instead the frequency of intergovernmental meetings with the provinces (Lecours et al., 2020). Most of these measures enjoyed broad support, but a vocal minority saw in the measures an unreasonable infringement upon their rights. A 2020 Royal Society of Canada briefing on rights and the pandemic makes the point that rights have limits but that governments must have a reasoned justification for infringement as they declare public health measures (p.5). Canada’s Human Rights Commissions (present at the federal level, in all ten provinces, and in two territories) played a strong rights advocacy role during the pandemic (De Silva, 2020).
Citations:
Colleen Flood, Vanessa MacDonnell, Bryan Thomas and Kumanan Wilson, Reconciling Civil Liberties and Public Health
in the Response to COVID-19. Royal Society of Canada, 2020. https://rsc-src.ca/sites/default/files/CL%20PB_EN.pdf
André Lecours, Daniel Béland, Nikola Brassard-Dion, Trevor Tombe and Jennifer Wallner, “The Covid-19 Crisis and Canadian Federalism,” Ottawa: Forum of Federations and Center on Governance of the University of Ottawa, occasional paper 48, 2020. http://www.forumfed.org/wp-content/uploads/2020/10/OPS48.pdf
Emmett Macfarlane, “Public Policy and Constitutional Rights in Times of Crisis,” Canadian Journal of Political Science, vol. 52, no.2, 2020, 299-303.
Nicole Da Silva, “A Human Rights Approach to Emergency Response? The Advocacy of Canada’s Human Rights Commissions during the COVIS-19 Crisis,” Canadian Journal of Political Science, vol. 53, no.2, 2020, 265-271.
Citations:
Colleen Flood, Vanessa MacDonnell, Bryan Thomas and Kumanan Wilson, Reconciling Civil Liberties and Public Health
in the Response to COVID-19. Royal Society of Canada, 2020. https://rsc-src.ca/sites/default/files/CL%20PB_EN.pdf
André Lecours, Daniel Béland, Nikola Brassard-Dion, Trevor Tombe and Jennifer Wallner, “The Covid-19 Crisis and Canadian Federalism,” Ottawa: Forum of Federations and Center on Governance of the University of Ottawa, occasional paper 48, 2020. http://www.forumfed.org/wp-content/uploads/2020/10/OPS48.pdf
Emmett Macfarlane, “Public Policy and Constitutional Rights in Times of Crisis,” Canadian Journal of Political Science, vol. 52, no.2, 2020, 299-303.
Nicole Da Silva, “A Human Rights Approach to Emergency Response? The Advocacy of Canada’s Human Rights Commissions during the COVIS-19 Crisis,” Canadian Journal of Political Science, vol. 53, no.2, 2020, 265-271.
To what extent does the state concede and protect political liberties?
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All state institutions concede and effectively protect political liberties.
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All state institutions for the most part concede and protect political liberties. There are only few infringements.
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State institutions concede political liberties but infringements occur regularly in practice.
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Political liberties are unsatisfactory codified and frequently violated.
The state and the courts generally show a high degree of respect of, and protection for, political liberties in Canada. The Canadian Charter of Rights and Freedoms provides a guarantee of “fundamental freedoms” in its section 2, thereby giving courts justiciable norms for the protection of political liberties. Citizens have ample room to express their political opinions in a variety of venues and to participate in politics through extra-parliamentary means such as lobbying and demonstrating in addition to having the right to vote in, and stand for, elections.
How effectively does the state protect against different forms of discrimination?
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State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
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State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
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State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
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The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
The Canadian Charter of Rights and Freedoms was enacted in 1982, with the aim of preventing discrimination based on gender, physical or mental disability, ethnic or national origin or religion (section 15). Citizens believing they are victims of discrimination from government legislation have, often successfully, challenged such legislation in court based on the Canadian Charter of Rights and Freedoms. Courts have stated that Canadians were also protected against discrimination linked to sexual orientation by section 15 of the Canadian Charter of Rights and Freedoms. The federal 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. There also exists a federal Court Challenge Program that provides funding for citizens seeking to raise in court rights issues of national significance.
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.
One piece of legislation that has been the subject of much political discussion around the issue of discrimination is Québec’s Bill 21 (Loi sur la Laïcité de l’État), which forbids public sector employees from wearing religious symbols while at work. This legislation is being challenged in court. The federal Liberal government has stated it does not agree with Bill 21 but it has not clearly said if and how it would formally oppose it if the case ends up being heard by the Supreme Court of Canada. This legislation is hugely popular in Québec and the Québec government has already invoked article 33 of the Canadian Charter of Rights and Freedoms (the so-called notwithstanding clause) that allows a parliament to adopt a law deemed by courts to be incompatible with sections 2 or 7-15 of the Charter.
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
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.
One piece of legislation that has been the subject of much political discussion around the issue of discrimination is Québec’s Bill 21 (Loi sur la Laïcité de l’État), which forbids public sector employees from wearing religious symbols while at work. This legislation is being challenged in court. The federal Liberal government has stated it does not agree with Bill 21 but it has not clearly said if and how it would formally oppose it if the case ends up being heard by the Supreme Court of Canada. This legislation is hugely popular in Québec and the Québec government has already invoked article 33 of the Canadian Charter of Rights and Freedoms (the so-called notwithstanding clause) that allows a parliament to adopt a law deemed by courts to be incompatible with sections 2 or 7-15 of the Charter.
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
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To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?
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Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
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Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
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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.
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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.
Canada’s government and administration rarely make unpredictable decisions. Executive action is generally guided and bounded by legislation. 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. In a minority government situation, the House of Commons can also make the government fall if it feels it has not authorized a policy or course of action.
To what extent do independent courts control whether government and administration act in conformity with the law?
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Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
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Independent courts usually manage to control whether the government and administration act in conformity with the law.
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3
Courts are independent, but often fail to ensure legal compliance.
2
1
1
Courts are biased for or against the incumbent government and lack effective control.
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, both federal and provincial, pursue their reasoning free from the influence of governments, powerful groups or individuals. The Supreme Court of Canada (SCC) is the country’s final court of appeal. The structure and proceedings of the SCC are grounded in the Supreme Court Act, last amended in 2019.
To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
10
9
9
Justices are appointed in a cooperative appointment process with special majority requirements.
8
7
6
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
4
3
Justices are exclusively appointed by different bodies without special majority requirements.
2
1
1
All judges are appointed exclusively by a single body irrespective of other institutions.
The current process for appointing Supreme Court of Canada judges has been in place since 2016. Qualified candidates apply through the Office of the Commissioner for Federal Judicial Affairs. An independent Advisory Board, composed of three members appointed by the Minister of Justice and four members appointed by legal organizations, evaluates the applications and submits a short-list of the best candidates to the prime minister. The Advisory Board also produces a public report on how it chose the names on the short-list. The prime minister then selects a nominee. The Minister of Justice and the Chair of the Advisory Board appear before the House of Commons Standing Committee on Justice and Human Rights to explain the decision. The nominee participates in a question and answer period with Members of Parliament and Senators, only for information purposes. The prime minister ultimately makes the decision on appointments to the Supreme Court of Canada, as the approval of neither the House of Commons nor the Senate is required. The appointment process is covered by the media. Although the appointment process is sometimes criticized for not involving the consent of either of the two federal legislative bodies or the provinces, appointments of individual Supreme Court of Canada judges are rarely controversial and most often widely praised.
Citations:
Robin MacKay and Maxime Charron-Tousignant, “The Role of the Supreme Court of Canada. Membership and the Nomination Process,” HillNotes, Ottawa: Library of Parliament, 14 June 2021. https://hillnotes.ca/2021/06/14/the-role-of-the-supreme-court-of-canada-membership-and-the-nomination-process/
Citations:
Robin MacKay and Maxime Charron-Tousignant, “The Role of the Supreme Court of Canada. Membership and the Nomination Process,” HillNotes, Ottawa: Library of Parliament, 14 June 2021. https://hillnotes.ca/2021/06/14/the-role-of-the-supreme-court-of-canada-membership-and-the-nomination-process/
To what extent are public officeholders prevented from abusing their position for private interests?
10
9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
5
4
3
4
3
Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Canada has historically ranked very high for the extent to which public officeholders are prevented from abusing their position for private interests. There is an Auditor General to audit government spending. There is also a Conflict of Interest and Ethics Commissioner to help prevent conflict between public duties and private interests. There is a strong investigative media. Generally, societal tolerance for corruption is really low. Nevertheless, a significant scandal emerged in 2019, when it came to light that Justin 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 produced a report endorsing the current structure, stating that “no further structural change is required in Canada to protect prosecutorial independence and promote public confidence in the criminal justice system” (McLellan, 2019, 1).
Citations:
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
Citations:
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