Bill C-20: An Act respecting additional COVID-19 measures
Tabled in the House of Commons, July 21, 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-20, An Act respecting additional COVID-19 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-20 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.
Bill C-20 is emergency legislation intended to allow Canada to address the extraordinary situation created by the COVID-19 outbreak.
Disclosure of Information for the Purpose of a One-time Payment to Persons with Disabilities
This part of the Bill proposes to amend a number of Acts to authorize the disclosure of information for the purpose of administering a program that would provide a one-time payment to persons with disabilities. The one-time payment is intended to address extraordinary expenses incurred by Canadians with disabilities during the coronavirus pandemic. In particular, the Bill would amend the Pension Act, the Department of Veterans Affairs Act, the Children’s Special Allowances Act and the Veterans Well-being Act to authorize the disclosure of information collected under those Acts to the Department of Employment and Social Development Canada or to the Canada Revenue Agency. Disclosure would only be authorized if it is required for the administration of the program to provide the one-time payment. The Bill would also amend the Income Tax Act to authorize the use and disclosure of taxpayer information to an official of a department or agency of the Government of Canada solely for the purpose of the one-time payment.
Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect individuals from unreasonable interference with a reasonable expectation of privacy, including in relation to their private information. Authorizing the disclosure of information about entitlements to disability benefits potentially engages section 8 of the Charter. A search or a 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.
The following considerations support the consistency of the provisions with section 8 of the Charter. The purpose of the amendments is to facilitate the administration of a program that would deliver a benefit to persons with disabilities. The amendments would create statutory authority for the disclosure of information. They would be similar to existing disclosure authorities in both of the amended Acts, which permit the disclosure of information for the administration or enforcement of other legislation and programs that provide financial benefits to Canadians. Disclosure would only be permitted to the extent that it is relevant for the administration or enforcement of the program to provide the one-time payment.
Time Limits and Other Periods
This part of the bill would allow for the temporary extension or suspension of time limits and other periods set out in federal Acts that would otherwise be difficult or impossible to meet as a result of the exceptional circumstances created by the coronavirus pandemic. The Bill would not apply to time limits or periods in investigations or proceedings related to offences. In addition, the Bill would not apply to time limits or other periods established by or under the Corrections and Conditional Release Act. The Bill would also require certain orders made under the Act to be presented to Parliament and published on a Government of Canada website for a period of at least six months.
Time limits in proceedings
This part of the bill would suspend statutory time periods in relation to proceedings before courts. The suspension of time periods would include limitation or prescription periods for starting proceedings, including appeals, or for doing something in a proceeding.
The time period suspension would start on March 13, 2020 and would end on September 13, 2020 or on any earlier day fixed by order. Courts would be allowed to vary the suspension of a time limit but not beyond the six-month maximum. They could also make orders regarding the effects of a failure to meet a time period before its suspension. This could include orders that cancel or vary those effects. Suspensions of a time period could also be lifted by the Governor in Council in certain circumstances.
In some circumstances, the suspension of time periods in proceedings could engage Charter rights, such as those under section 7 of the Charter. Section 7 guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The principles of fundamental justice include a requirement of procedural fairness. In some situations, the suspension of time periods in proceedings could affect the fairness of an individual proceeding. At a general level, if a proceeding relates to the legal determination of any Charter right, a suspension of time periods that delays the proceeding could delay a decision about whether a right has been violated and the granting and nature of any remedy.
Where Charter rights are affected by the suspension of time periods in proceedings, consistency with the Charter is supported by the discretion given to courts to vary the time period suspension and the effects of failing to meet a time period in individual proceedings. As emphasized for greater certainty in this part of the bill, this discretion must be exercised in accordance with the Charter as well as in a way that respects the rule of law and provides certainty in proceedings.
Other time limits and periods
This part of the bill would also allow the Minister responsible for an Act or regulations set out in the Schedule to the Bill to make an order suspending or extending a time limit or other period set out in a provision that is listed in the Schedule. The maximum period for a suspension or extension of time would be six months, beginning no earlier than March 13, 2020 and not extending beyond December 31, 2020. An order may also provide that the suspension or extension of time applies only with the consent of a court, body or person specified in the order, that the suspension or extension applies unless a specified court, body or person decides otherwise, or that a specified court, body or person may vary the effects of an order.
These provisions of the Bill would not themselves engage rights or freedoms guaranteed by the Charter, but would grant Ministers the ability to make orders in relation to provisions identified in the Schedule that in some cases could have effects on Charter rights or freedoms. In circumstances where Charter rights may be affected by an order made under these provisions, the Charter requires that the Minister making the order must consider the reason for making the order and its effects on rights or freedoms guaranteed by the Charter. An order may also give discretion to courts, bodies or persons in respect of application of the order. As emphasized for greater certainty, the Act is to be interpreted in accordance with the Charter as well as in a way that respects the rule of law and provides certainty in proceedings.
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