Bill C-2: An Act to provide further support in response to COVID-19

Tabled in the House of Commons, December 6, 2021

Explanatory Note

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.

Charter Considerations

The Minister of Justice has examined Bill C-2, An Act to provide further support 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-2 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.

Overview

Bill C-2 proposes to enact the Canada Worker Lockdown Benefit Act, along with consequential amendments to other legislation. The Canada Worker Lockdown Benefit Act would provide targeted and time-limited income support in geographical regions that are affected by a public health lockdown imposed to curtail the spread of COVID-19. The income support would be available to employed and self-employed individuals who have been impacted by the lockdown, and have, consequently, experienced a reduced income of at least 50%. The benefit would be available to individuals who are 15 years of age and older. The benefit would not be available to those who are unable to work because of their refusal to comply with terms of employment imposed by their employer relating to COVID-19 vaccination. The Canada Worker Lockdown Benefit Act would also allow the disclosure of information between relevant ministers in order to verify an individual’s eligibility to receive the benefits. It would also authorize the Minister of Employment and Social Development to impose monetary penalties and it would create new offences.

Bill C-2 would also amend the Canada Labour Code to provide for a leave without pay to workers who are unable to work for a reason that relates to COVID-19, for instance because they need to take care of a family member, of a child below the age of 12 or because they have contracted COVID-19.

Eligibility restrictions based on age

The Canada Worker Lockdown Benefit Act would restrict eligibility to workers who are 15 years of age and older.

The amendments to the Canada Labour Code would provide for a leave without pay to an employee who is unable to work because of a reason related to COVID-19. One of the reasons listed is to care for a child who is under 12 years of age, for example, if their school is closed or the child has COVID-19.

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 two requirements could potentially engage section 15 as they create a distinction based on age. The following considerations support the consistency of these provisions with section 15.

First, requiring that workers be at least 15 years old to access income support payments under the Canada Worker Lockdown Benefit Act 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.

Second, limiting the leave without pay under the Canada Labor Code to workers who take care of children under the age of 12 is also reasonable as older children can usually stay at home without adult supervision. However, there are circumstances where a child over the age of 12 may also require adult care or supervision, for example due to disability or serious illness. To accommodate these kinds of circumstances, the Canada Labour Code currently allows workers to take leave without pay to take care of a family member of any age who requires supervised care.

Eligibility restrictions based on a vaccination policy

The Canada Worker Lockdown Benefit Act would provide that the refusal by an employee to comply with terms of their employment imposed by their employer relating to COVID-19 vaccination does not constitute a qualifying reason for unemployment or reduced employment. This means that employees who are required by their employer to be vaccinated and who choose to not be vaccinated, would not be eligible to apply for the lockdown benefit.

Some employees may be unable to be vaccinated due to disability, religion, or other grounds that are protected by section 15 of the Charter and by human rights laws. Because federal, provincial or territorial human rights laws apply, the terms of an employee’s employment (including a requirement that the employee be vaccinated) are not allowed to discriminate against employees on these grounds. This means that employees who cannot be vaccinated because of their disability, religion or other protected ground, would be eligible for the benefit if they meet all of the other criteria to qualify.

Information disclosure powers

The Canada Worker Lockdown Benefit Act would give the Minister of Employment and Social Development the power to require any person to provide any information or documents the Minister may require for any purpose related to verifying compliance or preventing non-compliance with the Act. It would also allow the Minister of Health to disclose information obtained under the Quarantine Act, for instance names and dates of birth, to the Minister of Employment and Social Development to verify an individual’s eligibility to receive benefits under the Canada Worker Lockdown Benefit Act. The bill would also allow officials administering the Income Tax Act to provide taxpayer information to other government officials for purposes related to the Canada Worker Lockdown Benefit Act.

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, including in relation to their private information. 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.

Allowing for the collection and sharing of information about individuals who are applying to the lockdown benefit or who have been subjected to the Quarantine Act potentially engages section 8 of the Charter.

The following considerations support the consistency of the provisions with section 8. Information would only be collected for the limited administrative purpose of verifying information received when workers apply to the lockdown benefit, as well as for preventing non-compliance. In these situations, privacy expectations are reduced. Further, the information sharing powers would allow such sharing only for purposes closely related to the purposes for which the information in question is already collected and used. As such, the proposed powers are similar to existing powers that have been upheld by the courts in the administrative and tax contexts.

Notice requirement – Canada Labour Code

The amendments to the Canada Labour Code would provide that an employee who intends to take a leave of absence must give written notice to the employer of the reasons for the leave and the length of the leave that they intend to take. The employee would also need to give written notice to the employer of any change in the length of the leave of absence taken. Further, the employer would have the discretion to require an employee to provide a written declaration in support of the reasons for the leave of absence taken.

These requirements could potentially engage section 8 of the Charter. The following considerations support the consistency of these amendments with section 8 of the Charter. The information to be shared by employees corresponds to new eligibility requirements in a self-reporting regime. An employee would need to disclose information to their employer for the limited administrative purpose of verifying their eligibility to the leave related to COVID-19, as set out under the Canada Labour Code. In this context, privacy expectations are reduced. The proposed powers are comparable to powers that have been upheld by the courts in similar circumstances.

Enforcement regime

The Canada Worker Lockdown Benefit Act would establish offences. It would be an offence to knowingly use false identity information or another person’s identity information to obtain a benefit or to steal all or a substantial part of another person’s benefit or counsel a person to apply for the benefit. It would also be an offence to knowingly make three or more representations that are false or misleading if the total amount of the benefits that were or would have been paid as a result of the applications is at least $5,000. A person would not be committing an offence if they mistakenly believe that the identity information provided was not false or if they mistakenly believe that a representation was true. Finally, no prosecution for an offence would be instituted if a penalty for the same act had already been imposed.

Section 7 of the Charter 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. In creating new offences that have the potential to lead to imprisonment, the amendments could lead to a deprivation of liberty. In reviewing the relevant measures, the Minister of Justice has not identified any potential inconsistencies of the offence provisions with the principles of fundamental justice under section 7.