Bill C-13: An Act respecting certain measures in response to COVID-19
Tabled in the House of Commons, March 24, 2020
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-13, An Act respecting certain measures in response to COVID-19, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-13 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
In addition to the measures discussed below, certain provisions in the Bill which do not themselves engage rights or freedoms guaranteed by the Charter, grant the ability to make orders that may potentially engage the Charter. In these circumstances, the Charter requires that those making the order must balance the reason for making the order with its effects on rights or freedoms protected by the Charter.
Bill C-13 is emergency legislation intended to allow Canada to address the extraordinary situation created by the COVID-19 outbreak. The Bill would include new investments to limit the spread of the virus in Canada and address its broader impacts on Canadians, the Canadian economy, and around the world. The measures in the Bill are aimed at protecting Canadian workers, businesses and the strength of the Canadian economy during the exceptional and uncertain situation created by the current pandemic. The majority of the provisions in the Bill involve fiscal measures and financial authorities that have not been identified as engaging rights and freedoms protected by the Charter.
What follows are provisions in the Bill that potentially engage rights and freedoms guaranteed by the Charter.
Part 2 – Canada Emergency Response Benefit Act
Clause 8 of the Bill proposes to enact the Canada Emergency Response Benefit Act to create a new temporary emergency income support payment for workers who suffer a loss of income due to COVID-19. The program will provide up to 16 weeks of income support payments for workers who have ceased working due to COVID-19.
Section 10 of the Act proposes to empower the Minister of Employment and Social Development to require individuals to provide any information or documents the Minister may require for any purpose related to verifying compliance and preventing non-compliance with the Act.
Equality Rights (section 15 of the Charter)
Section 15 of the Charter provides that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, including on the basis of age. These provisions potentially engage section 15 because eligibility for income support payments under this program is restricted to workers who are 15 years of age and older.
The following considerations support the consistency of the provisions with section 15. Requiring that workers be at least 15 years old to access income support payments reasonably corresponds to the age at which workers may need the income they earn to support themselves. Younger children are generally dependent on an adult for financial support.
Search and Seizure (section 8 of the Charter)
Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect individuals from an unreasonable intrusion into a reasonable expectation of privacy. A search or a seizure will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and the search is carried out in a reasonable manner. Authorizing the collection of information about individuals who are sick or in quarantine potentially engages section 8.
The following considerations support the consistency of the provisions with section 8. Information will only be collected for the limited administrative purpose of verifying information received when workers applied for the payments, as well as preventing non-compliance. In these situations, privacy expectations are reduced. As such, the proposed powers are similar to powers that have been upheld by the courts in the administrative and tax contexts.
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