Litigation Year In Review 2017

PDF version

Foreword from the Attorney General of Canada

As Minister of Justice and Attorney General of Canada, I serve a dual role. In my role as Minister of Justice, I have responsibility for legislation and policy that falls within the Justice portfolio. In my role as Attorney General, one of my main responsibilities is the oversight and management of litigation involving the Government of Canada.

In my mandate letter, I was tasked by the Prime Minister to review the Government of Canada's litigation strategy. I was mandated to make decisions to end appeals or positions inconsistent with the Government's commitments, the Charter of Rights and Freedoms, or Canadian values. This has been a major focus of my work as Attorney General.

I continue to receive the support of the Cabinet Committee on Litigation Management, which situates our litigation strategies within a wider policy and financial framework. This allows our Government to gain a richer appreciation of the implications of our litigation positions for our public institutions. While the Committee does not have decision-making authority, nor does it direct the Attorney General, I am grateful to my colleagues for the insights and diverse perspectives that they provide.

Last year, I published the Litigation Year in Review 2016. It was the first time that an Attorney General of Canada published a report on the litigation decisions and strategies deployed on behalf of the Government of Canada.

This year's report highlights some of the litigation positions we took in the course of 2017, and focuses on four main themes:

  • compensating for past wrongs,
  • maintaining our commitment to human rights and the Charter,
  • defending our national security, and
  • intervening before the courts in the public interest.

Minister Jody Wilson-Raybould

These four themes are situated in the wider story of 2017: the 150th anniversary of Confederation, the 35th anniversary of the Canadian Charter of Rights of Freedoms, and the 35th anniversary of section 35 of the Constitution Act, 1982 and its recognition of the rights of Indigenous peoples.

2018 marks the 150th anniversary of the Department of Justice. This Litigation Year in Review offers an opportunity to look at what we have accomplished and look forward to the next 150 years of the work of counsel for the Attorney General of Canada.

The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.
Minister of Justice and Attorney General of Canada


The Attorney General of Canada is responsible for advancing the public interest through her oversight and conduct of litigation involving the federal government, as well as through the constitutional and legal advice she provides to the Government and its Ministers.

In her mandate letter, the Attorney General was tasked by the Prime Minister to review the Government's litigation strategy, including by making early decisions to end appeals or positions that are not consistent with the Government's commitments, the Canadian Charter of Rights and Freedoms ("the Charter"), or Canadian values.

In 2017, in fulfillment of this mandate commitment, the Attorney General carried out her litigation responsibilities with a view to:

  1. compensating for past wrongs,
  2. maintaining our commitment to human rights and the Charter,
  3. defending our national security, and
  4. intervening before the courts in the public interest.

The important litigation positions highlighted below were taken in collaboration with the relevant Ministers responsible for the issues.

(1) Compensating for past wrongs

The Attorney General has placed an important focus on changing the Government's approach to litigation involving Indigenous peoples. This change in approach is reflective of the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples, which guide the work required to fulfill the Government's commitment to renewed nation-to-nation, government-to-government, and Inuit-Crown relationships. These Principles are shaping how the Government is managing litigation involving Indigenous peoples, including the way legal arguments are framed and articulated, the nature of defences that are advanced, and an increasing emphasis on resolving rather than litigating claims.

The "Sixties Scoop" was a dark and painful chapter in our history. Indigenous children were removed from their homes by child welfare services, separated from their families and cultures, and placed in foster care with, or adopted by, non-Indigenous families. In many cases, this happened without the consent of the families or community leadership.

In 2017, counsel for the Attorney General – working in partnership with officials from the former Indigenous and Northern Affairs Canada – negotiated an agreement in principle for many of those affected by the Sixties Scoop to resolve multiple class actions including Brown v Attorney General of Canada, Meeches et al v Attorney General of Canada and others. The settlement is an acknowledgment of the trauma and harm caused by past government actions, and is the first step in resolving the Sixties Scoop litigation. The Government of Canada is committed to working with other Indigenous parties, individuals, families and communities impacted by the Sixties Scoop, and with the provinces and territories that have already shown leadership in this area, to resolve the remaining litigation.

"Today, we offer a long overdue apology to all those whom we, the Government of Canada, wronged. We are sorry."

 – The Right Honourable Justin Trudeau, Prime Minister of Canada

Apology to LGBTQ2+ Canadians delivered in the House of Commons
November 28, 2017

This year, the Government of Canada also recognized the historic unjust treatment of LGBTQ2+ persons in the public service and armed forces, and affirmed the Government's commitment to promote a culture of healing, respect and remembrance.

In a number of cases, including Ross v Canada and Roy v Canada, former public servants had initiated class actions against the Government of Canada alleging discrimination, harassment and firings in the public service of Canada and the Canadian Armed Forces based on sexual orientation. The Government of Canada agreed that wrongs had been committed. The Prime Minister's apology on behalf of the Government of Canada to members of the LGBTQ2+ community for that systemic harassment and discrimination was an acknowledgement of that wrong. As part of the Government's wide-ranging activities related to the apology, the Attorney General supported the Government's mandate by helping to negotiate an agreement in principle to settle a class action claim involving many affected public servants and military personnel.

(2) Maintaining our commitment to human rights and the Charter

The past year provided several opportunities for the Attorney General to put into practice the Government's commitment to conducting litigation in a manner consistent with the Charter.

There will be difficult cases in which counsel for the Attorney General is called upon to defend a Charter challenge, even when the Government of Canada is committed to changing and improving the law. Consistent with the principles for conducting Charter litigation, the Attorney General must generally defend Parliament's laws until they are changed. The courts expect the Attorney General to present full and fair argument to assist them within the adversarial process to arrive at decisions that fairly consider all arguments.

(3) Defending our national security

The Attorney General plays a crucial role in supporting government partners in matters of national security, public safety and criminal justice. Canadians must recognize the vital work that our security agencies engage in every day, professionally and in good faith, to keep us safe from the security threats we face. However, we must also never lose sight of our obligations to respect human rights, and the inevitable costs when such obligations are breached.

"I hope Canadians take away two things today: Our rights are not subject to the whims of the government of the day, and there are serious costs when the government violates the rights of its citizens."

 – The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada
July 7, 2017

(4) Intervening in the public interest

The Attorney General sometimes intervenes in cases to which she is not otherwise a party to provide a specific perspective to the court that may not otherwise be presented. These interventions are almost exclusively at the appellate level, unless federal legislation is implicated. The Government may raise issues that are relevant to the matter at hand and that reflect a broader perspective on an issue. To that end, the Attorney General intervened in more than 30 cases in 2017 before the Supreme Court of Canada, appellate courts, and other courts across the country.

"The remedy for any treaty breach found by the Court should further the objective of reconciliation. A remedy that does not respect the iterative, collaborative, consultive, relationship-building, and consensus-oriented aspects of the land use planning process would not advance reconciliation."

 – Factum of the Attorney General in the intervention in First Nation of Nacho Nyak Dun, et al v Government of Yukon

Date modified: