Bill C-19: An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
Tabled in the House of Commons, June 3, 2022
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-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures, 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-19 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. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter statement.
The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:
- Freedom of expression (section 2(b)) – Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It includes the “open court principle” whereby members of the public have a right to receive information pertaining to judicial proceedings.
- Right to life, liberty and security of the person (section 7) – Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose. The principles of fundamental justice also include a residual protection against self-incrimination.
- Right to be secure against unreasonable search or seizure (section 8) – Section 8 of the Charter protects against “unreasonable” searches and seizures. The purpose of section 8 is to protect individuals against unreasonable intrusions upon their privacy. A search or seizure that intrudes upon a reasonable expectation of privacy 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 it is carried out in a reasonable manner.
- Rights that apply to any person charged with an offence (section 11) – Section 11 of the Charter guarantees certain rights to persons who have been charged with an offence. Persons are “charged with an offence” within the meaning of section 11 if they are subject to proceedings that are criminal by nature, or that can result in “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, as may be the case where the fine or penalty is out of proportion to the amount required to achieve regulatory purposes.
- Right to be presumed innocent until proven guilty (section 11(d)) – Section 11(d) of the Charter guarantees the right of any person charged with an offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The right to a hearing before an independent and impartial tribunal is part of the unwritten constitutional principle of judicial independence. This right requires that judges be free to make decisions without interference with their financial security or security of tenure.
- Equality rights (section 15) – Section 15 of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, or other grounds analogous to those listed in section 15.
Part 3, Division 1 – Amendments to the Excise Act, 2001 and Other Related Texts (Vaping Products)
Division 1 of Part 3 would amend the Excise Act, 2001 to introduce a new excise duty on vaping products, applicable to both solids and liquids, with both to be taxed at equivalent volumes from the outset. The amendments would create new legal obligations, thereby increasing the range of conduct captured by applicable offences under the Excise Act, 2001. New offences include possession or sale of a vaping product without license, unless it is packaged and stamped to indicate payment of duty; and production, possession, sale, or offer to supply counterfeit vaping product excise stamps.
As the sanctions for the new offences include a term of imprisonment, the amendments potentially engage the right to liberty under section 7 of the Charter. In reviewing the measure, the Minister of Justice has not identified any potential inconsistencies with the principles of fundamental justice under section 7. The scope of the offences is tailored to their objectives, and upon conviction, a judge will have discretion to impose a fit and appropriate sentence.
Part 4 – Select Luxury Items Tax Act
Part 4 would enact the Select Luxury Items Tax Act to implement a tax on sales in Canada, and importations into Canada, of new luxury vehicles and aircraft with a retail sale price over $100,000, and new boats over $250,000. The tax would be calculated at the lesser of 20 per cent of the value of the luxury vehicle, aircraft or vessel (subject item) above these price thresholds or 10 per cent of the full value of the subject item. Part 4 sets out applicable reporting and filing requirements and rules for determining persons’ liability for the new tax. In addition, Part 4 includes numerous administration and enforcement provisions found in other taxation statutes to promote compliance with the statutory scheme.
Inquiry Powers of a Hearing Officer
The Select Luxury Items Tax Act would allow a person authorized by the Minister of National Revenue (a hearing officer) to make an inquiry that the Minister deems necessary for any purpose related to the administration and enforcement of the Act. The hearing officer would have the power to summon any witnesses to the inquiry, and to compel them to give evidence (oral or written), and produce any relevant documents or things. Any person who gives evidence or whose affairs are being investigated in the course of an inquiry would be entitled to be represented by a lawyer.
The powers to require individuals to appear at an inquiry and to give evidence potentially engage the liberty interest under section 7 of the Charter. The following considerations support the consistency of these powers with section 7. The purpose of the inquiry is to support the administration and enforcement of a statute that imposes a transaction-based tax on subject items. The inquiry powers are not available for the predominant purpose of furthering a prosecution against the witness. In addition, any incriminating evidence compelled during an inquiry may not be used in another proceeding if such use would violate the principle against self-incrimination. Furthermore, both the witnesses and subjects of an inquiry would have the right to be represented by a lawyer.
The power to require the production of documents or things at an inquiry potentially engages the protection against unreasonable search or seizure under section 8 of the Charter. The following considerations support the consistency of this power with section 8. The type of documents or things that may be required to be provided must be relevant to the administration and enforcement of a tax statute in a context where privacy expectations are reduced. Furthermore, an order to produce a document or thing is not particularly intrusive, as it does not involve entry into a taxpayer’s private property to conduct a search or seizure. Similar inquiry powers that exist in other tax statutes have been upheld by the courts.
Offences and Punishment
The Select Luxury Items Tax Act would establish several offences. These offences would sanction, among other things, the failure to file a return or to comply with an obligation or order, making or participating in the making of false or deceptive statements, and intentionally failing to pay tax as required under the provisions. A general offence provision would also be created to promote compliance with the new tax scheme as a whole.
As the new offence provisions could lead to a term of imprisonment, the liberty interest under section 7 of the Charter is engaged. In reviewing the offence provisions, the Minister of Justice has not identified any potential inconsistencies of the provisions with the principles of fundamental justice under section 7. The scope of the offences is tailored to its objective, and upon conviction a judge will have discretion to impose a fit and appropriate sentence.
Powers to Collect, Disclose and Use Information
The Select Luxury Items Tax Act would enact various powers to collect, disclose and/or use information. The Minister would be authorized to require any person to provide information or records (such as the unique identification number of a subject item and the status of a person as a registered vendor) for a purpose related to the administration or enforcement of the provisions. The Minister would be empowered to require a person resident in Canada or non-resident person that carries on business in Canada to provide any foreign-based information or record. The term “foreign-based information or record” would be defined as any information or record that is available or located outside Canada and that may be relevant to the administration or enforcement of the Select Luxury Items Tax Act. In addition, the new provisions would authorize the disclosure and use of confidential information (such as the name and address of an individual who purchases a subject item) in specified circumstances.
The provisions to collect, disclose and/or use information potentially engage section 8 of the Charter. The following considerations support the consistency of these measures with section 8. Privacy interests are diminished in the regulatory and administrative contexts. Similar powers to require the production of or permit the sharing of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under section 8. The amendments set out numerous measures to safeguard privacy interests including: a requirement for judicial authorization to compel information about unnamed persons; strict rules governing the permissible disclosure and use of confidential information; and the ability to judicially review an order to produce any evidence relating to confidential information or a requirement to provide foreign-based information.
Inspection, Requirement and Search Powers
The Select Luxury Items Tax Act would create a number of regulatory powers analogous to those in other similar laws. A person authorized by the Minister would be allowed to inspect the records, processes, property or premises of a person that may be relevant in determining tax obligations or entitlements, and to verify compliance with the new provisions. Authorized persons would have the ability to require a person to give all reasonable assistance in the context of the inspection including by answering all proper questions related to the administration or enforcement of the new provisions. Authorized persons would be permitted to search any building, receptacle or place – by way of a warrant – for any record or thing that may afford evidence of the commission of an offence under the new provisions, and to seize any such record or thing.
The proposed measures described above potentially engage section 8 of the Charter. The following considerations support the consistency of the measures with section 8. The inspection and requirement powers would not be available to further a penal investigation. Rather, they would be available for regulatory purposes (to determine tax obligations or entitlements and to verify compliance with the new provisions). In these circumstances, privacy expectations are reduced. In the case of dwelling houses (places occupied as a residence) where privacy interests are heightened, inspectors would only be authorized to enter with the consent of the occupant or by a warrant issued by a judge. A warrant would also be required to search and seize records or things that are expected to afford evidence of the commission of an offence under the new provisions. The warrants issued under these provisions would be obtained through judicial authorization on a reasonable grounds to believe standard, thus meeting the requirements under section 8 for a search or seizure to be reasonable.
Part 5, Division 2 – Amendments to the Nisga’a Final Agreement Act
The amendments to the Nisga’a Final Agreement Act would amend a provision to give force of law to the entire Taxation Agreement and repeal provisions that give force of law only to certain provisions of the Nisga’a Nation Taxation Agreement.
To the extent that the amendments could be considered to distinguish based on race or ethnicity in a way that engages the protection of subsection 15(1) of the Charter because they provide for different or unique tax treatment of the Nisga’a Nation, they do so in keeping with the purpose of section 15 to promote substantive equality and prevent discrimination, in this case by supporting the Nisga’a Nation in the exercise of its section 35 right of self-government under the Constitution Act, 1982. Promoting substantive equality often requires making distinctions in light of different group needs, capacities and circumstances, which includes the right of self-government.
Part 5, Division 15 – Amendments to the Competition Act
Division 15 of Part 5 includes a number of amendments to the Competition Act to enhance consumer protection and ensure a level playing field for all business. In particular, it would amend the Competition Act to enhance the Commissioner of Competition’s investigative powers in relation to affiliates of corporate respondents, and persons outside Canada who carry on business or sell products into Canada. In addition, the amendments would criminalize wage-fixing agreements among employers, which would be punishable on conviction by existing penalties under the Competition Act. The amendments would also increase the maximum amount of existing administrative monetary penalties that may be imposed for deceptive marketing practices and anti-competitive conduct. In addition, the amendments would clarify that incomplete price disclosure, by representing a price that is not attainable due to fixed obligatory charges, constitutes false or misleading representation, and would expand the definitions of anti-competitive conduct and agreements.
The proposed amendments to increase the maximum amounts of existing administrative monetary penalties that may be imposed under the Competition Act have the potential to engage section 11 rights. The following considerations support the consistency of the amendments with the Charter. The purpose of the penalties would be to promote compliance with the Competition Act, not to “punish.” While the amendments would authorize potentially high penalties, such penalties would be imposed where necessary to reflect the volume of commerce affected, and to provide sufficient economic incentives for compliance. Further, the imposition of the penalties would not involve criminal charges, prosecution, or sentencing. While the amendments would increase the maximum legislated cap, they would not prescribe any minimum penalties. In this context, the provisions would not authorize the imposition of penalties that would give rise to “true penal consequences” for the purposes of section 11.
As the sanctions for the new offence relating to wage-fixing agreements among employers include a term of imprisonment, the amendments potentially engage the right to liberty under section 7 of the Charter. In reviewing the measure, the Minister of Justice has not identified any potential inconsistencies with the principles of fundamental justice under section 7. The scope of the offence is tailored to its objectives, and upon conviction, a judge will have discretion to impose a fit and appropriate sentence.
Part 5, Division 16 – Amendments to the Copyright Act
The amendments to the Copyright Act would extend the general term of copyright protection from life of the author, plus 50 years to life of the author, plus 70 years. The amendments similarly extend the term of copyright for certain works of joint authorship and posthumous works.
Copyright provides authors and their successors with exclusive economic and moral rights in forms of expression, such as literary and artistic works. Extending the duration of these statutory rights may potentially engage freedom of expression as it is protected by section 2(b) of the Charter.
The following considerations support the consistency of copyright term extension with the Charter. Copyright ensures that creators can benefit from their work and helps to encourage the creation and dissemination of expressive works. This legislation extends the duration of protection for creators’ material and moral interests, which promotes and protects certain expressive values. The additional period of protection continues to be subject to limitations and exceptions, such as fair dealing (which affords users with rights to deal fairly with copyrighted material for various purposes such as research, private study, education and criticism). Further, the additional period of protection will be understood within the balance of rights set out in the Copyright Act, which strives to achieve an appropriate balance between the rights of creators and copyright holders and users, in the public interest. This legislation implements one of Canada’s obligations under the Canada–United States–Mexico Agreement, is consistent with that of many other nations, and may support Canadian creators in the international marketplace.
Part 5, Division 18 – Civil Lunar Gateway Agreement Implementation Act
The purpose of the Civil Lunar Gateway Agreement Implementation Act is to fulfil Canada’s obligations under the Memorandum of Understanding between the Government of Canada and the Government of the United States of America concerning Cooperation on the Civil Lunar Gateway (entered into on December 15, 2020). This Memorandum of Understanding was formed on the basis of a mutually beneficial partnership for peaceful purposes in relation to the detailed design, development, operation and utilization of the Lunar Gateway space station (a human outpost in orbit around the moon).
Power to Require Information or Documents
Division 18 of Part 5 would allow the Minister to require any person to provide information or documents that the Minister believes on reasonable grounds is relevant to the administration or enforcement of the Civil Lunar Gateway Agreement Implementation Act. This could include information needed to verify compliance with the statutory protections surrounding confidential data.
The power to require the production of information or documents potentially engages section 8 of the Charter. The following considerations support the consistency of this power with section 8. Privacy interests are diminished in the regulatory and administrative contexts. Statutory powers to require the production of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating criminal offences, have been upheld as reasonable under section 8. Furthermore, the Minister must have reasonable grounds to believe that the information or documents being sought are relevant to the administration or enforcement of the Civil Lunar Gateway Agreement Implementation Act. In reviewing the relevant provisions, the Minister of Justice has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8.
Deeming Certain Activities outside Canada as Indictable Offences
Division 18 of Part 5 would also amend the Criminal Code. The amendments wouldcreate two deeming provisions to allow for the criminal prosecution of indictable offences against crew members of the Lunar Gateway where the acts committed outside of Canada would attract criminal liability if committed in Canada. In particular, the activities must have taken place during a space flight on or in relation to the Lunar Gateway, or on the surface of the Moon.
The first deeming provision applies to a Canadian crew member (a Canadian citizen or citizen of a foreign state, other than a Partner state, who is authorized by Canada to act as one of its crew members). The provision provides that a Canadian crew member – who commits an act or omission outside Canada that would be indictable offence if committed in Canada – is deemed to have committed that act or omission in Canada. The second deeming provision applies to a crew member of a Partner State (a citizen of a Partner State, or a citizen of a state, other than that Partner State, who is authorized by that Partner State to act as one of its crew members). It would have similar effects to the first deeming provision, but the act or omission in question must have also threatened the life or security of a Canadian crew member or have been committed on or in relation to, or damaged, a flight element provided by Canada. The consent of the Attorney General of Canada would be required to begin any criminal proceedings that may arise out of the deeming provisions.
As the two deeming provisions could lead to criminal charges and a potential term of imprisonment if the individual is convicted, the liberty interest under section 7 of the Charter and the rights in section 11 for persons “charged with an offence” may be engaged. The following considerations support the consistency of the deeming provisions with section 7 and section 11. The measures would not be creating any new offences nor expanding the scope of existing offences or applicable penalties; it would simply extend the application of the Criminal Code to activities committed outside of Canada that would amount to criminal offences if committed in Canada. Furthermore, the measures would not seek to remove or limit any of the protections guaranteed under section 11 of the Charter to persons who have been charged with an offence, such as the right to a fair trial.
Part 5, Division 19 – Amendments to the Corrections and Conditional Release Act
Division 19 of Part 5 would amend the Corrections and Criminal Release Act to clarify the circumstances in which an inmate can be placed in a dry cell in order to detect and seize contraband. This new scheme would restrict the use of dry cells. Dry cells could be used where the institutional head is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband, or that contraband is being carried in the inmate’s rectum. The new scheme would not allow the use of dry cells for inmates believed to be carrying contraband in their vagina. The proposed amendments were informed by the Nova Scotia Supreme Court decision in Adams v. Nova Institution (2021) where the previous dry cell authority was found to be inconsistent with section 15 of the Charter because it had a discriminatory impact on the basis of sex.
In addition, the amendments add a requirement for an inmate placed in a dry cell to receive a visit from a registered health care professional once a day. The amendments also re-enact the authority to use an x-ray machine, with the consent of the inmate and of a qualified medical practitioner. An x-ray machine can be used where the institutional head is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband, or that contraband is being carried in a body cavity, which includes both the rectum and the vagina.
The amendments potentially engage liberty and privacy interests under sections 7 and 8 of the Charter. Since the provision authorizing the confinement of an inmate in a dry cell would impose additional restrictions and conditions on an inmate, this would engage the inmate’s residual right to liberty and so the provision must respect the principles of fundamental justice. Although inmates generally have a diminished expectation of privacy in prisons, given their intrusive nature, the dry cell and x-ray searches may engage the section 8 privacy interests of inmates.
The following considerations support the consistency of these amendments with sections 7 and 8. The use of a dry cell and the x-ray search would both be authorized by law. Both of these are important search and seizure tools aimed at addressing the serious problem of contraband in penitentiaries. Their use would be limited to specific circumstances connected to this purpose. The power to place an inmate in a dry cell is limited to instances where the institutional head is satisfied that there are reasonable grounds to believe that an inmate: 1) has ingested contraband; or 2) is carrying contraband in their rectum, and where there is an expectation that the contraband will be expelled. The placement must end if either of these conditions no longer exists. The x-ray search authority is only available where the institutional head is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband, or that contraband is being carried in a body cavity. Additionally, the amendments include several safeguards such as the requirement for a daily visit from a healthcare professional when an inmate is placed in a dry cell, and the requirement for consent from both the inmate and a qualified medical practitioner for undertaking an x-ray examination.
Part 5, Division 21 – Amendments to the Criminal Code
Division 21 of Part 5 would amend the Criminal Code to provide that everyone who, by communicating statements, other than in private conversation, wilfully (intentionally) promotes antisemitism by condoning, denying, or downplaying the Holocaust is guilty of an indictable offence punishable by imprisonment for a term not exceeding two years, or an offence punishable by a maximum of two years less a day and/or a fine not exceeding $5000 on summary conviction. The bill defines the “Holocaust” as “the planned and deliberate state-sponsored persecution and annihilation of European Jewry by the Nazis and their collaborators from 1933 to 1945”. The bill would amend existing hate propaganda provisions relating to forfeiture and Attorney General consent to proceedings, so that they apply to the new offence.
The offence would engage section 2(b) (freedom of expression) because it would prohibit defined acts of communication. The following considerations support the consistency of the offence with the Charter.
The objective of the offence is to prevent the intentional promotion of antisemitism through statements that condone, deny, or downplay the Holocaust. The offence is tailored to achieve its aim while remaining compliant with the Charter. It targets the wilful promotion of antisemitism. The requisite intention exists if a person intends or foresees as substantially certain, a direct and active stimulation of prejudice against or hatred towards Jews. The offence would not prohibit statements about the Holocaust communicated without such intention, and the offence does not apply to private conversation. The offence is subject to the same defences as for wilful promotion of hatred, namely, defences for true statements, good faith religious argument or opinion, statements relevant to subjects of public interest reasonably believed to be true, and pointing out statements in good faith for the purpose of their removal. These defences are examples of expressive activity that generally would not constitute wilful promotion of antisemitism or downplaying, condoning, or denying the Holocaust; their inclusion aids in making the scope of the offence more explicit.
The inclusion of a defence for true statements has the potential to engage the presumption of innocence in section 11(d) of the Charter because it operates in a way that requires the accused to prove, on a balance of probabilities, the truthfulness of their statements, for the defence to apply. The following considerations support the consistency of this defence with the Charter. In order to achieve the offence’s objective of preventing the intentional promotion of antisemitism, the burden is placed on the accused to make a convincing demonstration that the statements were true rather than merely to raise a reasonable doubt about their falsity. In these circumstances, the accused is in a better position to explain and attempt to prove the statements, rather than having the Crown prove beyond a reasonable doubt that all of the accused’s statements were false.
Part 5, Division 22 – Judges and Prothonotaries
Division 22 of Part 5 would amend legislation relating to the judiciary in Canada, which includes judges and judicial officers known as prothonotaries who perform certain judicial functions. Notably, the Judges Act would be amended to reflect salary adjustments determined by the existing formula set out at subsection 25(2), increase annual allowances for incidental and representational expenses in accordance with the recommendations of an independent advisory body, and introduce a new allowance that would cover reasonable travel expenses when a judge who receives a northern allowance under the Judges Act is required to travel for non-elective medical or dental treatment on a time-sensitive basis.
In addition, a new office of supernumerary prothonotary would be created in a manner consistent with the rules currently applicable to supernumerary judges. However, the length of time the new office of supernumerary prothonotary may be held would be fixed at five years, differing from the ten-year limit applicable to supernumerary judges. New provisions identifying the supervisory judge who may assign duties would also be introduced.
The Federal Courts Act would be amended to facilitate the implementation of these changes, including by way of a new regulation-making authority for the Governor in Council to fix the workload of a supernumerary prothonotary as a percentage of the workload of a prothonotary. The Tax Court of Canada Act would also be amended to introduce prothonotary and supernumerary prothonotary offices within the Tax Court of Canada. Measures that would affect judicial compensation under the Act and create the new office of supernumerary prothonotary have the potential to engage section 11(d), which protects the financial security and security of tenure of the judiciary as essential elements of judicial independence.
The following considerations support the consistency of these changes with the principle of judicial independence as it is protected by section 11(d) of the Charter. The proposed amendments addressing salaries and financial benefits are based on recommendations made by the sixth Judicial Compensation and Benefits Commission. The Judicial Compensation and Benefits Commission is an independent and objective body that reviews all matters potentially impacting the compensation and benefits of federally appointed judges and prothonotaries, in order to help protect them against interference with their financial security. In this case, the amendments would increase allowances and maintain the current formula with respect to salaries in accordance with the Commission’s recommendations, which the Government accepted.
The creation of the office of supernumerary prothonotary received favourable commentary from the sixth Commission. The rules respecting tenure, eligibility, duties, and salary closely follow the rules currently governing the office of supernumerary judge, with only minor modifications. Eligible prothonotaries may individually elect to hold the office of supernumerary prothonotary for up to five years.
Part 5, Division 30 – Amendments to the Canada Business Corporations Act
Proposed amendments to the Canada Business Corporations Act (CBCA)would require certain corporations to send beneficial ownership information to the Director appointed under the CBCA. The obligation would apply to information included in the register of individuals with significant control that corporations are obligated to keep under the current provisions of the CBCA (section 21.1). The information would have to be sent to the Director on an annual basis or when a change occurs. Proposed amendments would also authorize the Director to provide all or part of the information to an investigative body, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) or any prescribed entity. Because these powers to collect and disclose information have the potential to interfere with privacy interests they may engage section 8 of the Charter.
The following considerations support the consistency of the provisions with section 8 of the Charter. The proposed new provisions would apply to a narrow set of information, as set out in subsection 21.1(1) of the CBCA, which is necessary to identify the natural persons who own and control Canadian corporations. Given this narrow set of information, privacy interests in this information are diminished. There is a strong public interest in increasing transparency around beneficial ownership information, and in ensuring that relevant agencies have access to this information, in order to prevent and detect the misuse of corporations for illicit activities such as tax evasion, money laundering and terrorist financing. The creation of a central registry of beneficial ownership information pertaining to Canadian companies would also align with international standards and best practices in this area.
Part 5, Division 31 – Economic Sanctions
Division 31 would amend the Special Economic Measures Act (SEMA) and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) to create regimes allowing for the forfeiture of property that has been seized or restrained under those Acts. It would also amend the two laws to create new information gathering and sharing powers.
The proposed amendments would authorize the Minister of Foreign Affairs to require any person to provide information that the Minister believes on reasonable grounds is relevant to the making, administration or enforcement of an order for the seizure or restraint of property under SEMA or the Sergei Magnitsky Law.
The proposed amendments would also authorize a number of persons to assist in matters related to the making, administration or enforcement of measures imposed under those laws, and to collect and exchange information for that purpose. The parties that would be authorized to exchange information under each of the Acts are the Minister of Foreign Affairs, the Minister of Finance, the Minister of Public Works and Government Services, the Minister of Public Safety and Emergency Preparedness, the Director of the Canadian Security Intelligence Service, the Chief of the Communications Security Establishment, the President of the Canada Border Services Agency and the Superintendent of Financial Institutions.
Finally, the proposed amendments would authorize the Commissioner of the Royal Canadian Mounted Police (RCMP) to collect and exchange information with the same parties listed above for the narrower purposes of making of a seizure or restraint order, the seizure or restraint of property that is the subject of such an order or the making of an application for forfeiture of the property. These amendments potentially engage privacy rights under section 8 of the Charter.
The following considerations support the consistency of these powers with the Charter. The focus of the regimes created by SEMA and the Sergei Magnitsky Law is the implementation of economic measures against foreign states and foreign nationals who are responsible for breaching international peace or security or who commit gross violations of internationally recognized human rights or acts of corruption. These laws, which are not criminal in nature, support the imposition of sanctions against such foreign states and foreign nationals through various prohibitions or restrictions on engaging in specified activities with them and through the seizure and forfeiture of their property situated in Canada. The authority for the Minister to require information from any person is similar to requirement powers that have been upheld in similar contexts involving administrative or regulatory statutes. The provisions that permit the collection and exchange of information are tailored to limit any potential interference with privacy interests. The list of persons that may collect and exchange information with one another is clearly set out in the legislation and is limited to parties who are likely to have information relevant to the administration or enforcement of orders or regulations made under the two laws. The authority to exchange information with the Commissioner of the RCMP is only available for a narrowed set of purposes that excludes the investigation and enforcement of offences and that reflects the RCMP’s role in the administration of these laws, specifically with respect to the making of orders, the seizure and restraint of property and forfeiture applications. Finally, the discretion to require, collect or exchange information pursuant to the new provisions would have to be exercised in accordance with the Charter.
Part 5, Division 32 – Employment Insurance Board of Appeal
Division 32 of Part 5 amends Part 5 of the Department of Employment and Social Development Act to establish the Employment Insurance Board of Appeal (Board of Appeal). One of the provisions gives the Canada Employment Insurance Commission the authority to set out in regulations the circumstances for the Board of Appeal to hold hearings in private.
The “open court principle” under section 2(b) of the Charter applies to administrative tribunals exercising quasi-judicial functions like the Board of Appeal. The authority to allow for hearings held in private potentially engages section 2(b) of the Charter.
The following considerations support the consistency of the above noted proposal with section 2(b). The proposed amendments would enable the Canada Employment Insurance Commission to prescribe in regulations the circumstances under which the Board of Appeal may hold hearings in private. Respect for the open court principle is important to ensuring freedom of the press and the ability of the public to access information about Board of Appeal proceedings. However, in some circumstances privacy considerations may outweigh the open court principle. Specifically, private hearings may be necessary in certain circumstances to protect the privacy of persons going before the Board of Appeal, whose information is often of a highly sensitive nature (for example, medical reports). Any regulations setting out the circumstances for holding hearings in private must themselves comply with the Charter.
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