Bill C-33: An Act to amend the Customs Act, the Railway Safety Act, the Transportation of Dangerous Goods Act, 1992, the Marine Transportation Security Act, the Canada Transportation Act and the Canada Marine Act and to make a consequential amendment to another Act

Tabled in the House of Commons, January 31, 2023

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-33, An Act to amend the Customs Act, the Railway Safety Act, the Transportation of Dangerous Goods Act, 1992, the Marine Transportation Security Act, the Canada Transportation Act and the Canada Marine Act and to make a consequential amendment to another Act, 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-33 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-33 would amend several Acts in order to strengthen the port system, marine security and railway safety in Canada, including to address issues identified in Transport Canada’s Ports Modernization Review completed in 2022 and the Railway Safety Act Review completed in 2018.  It would also make amendments to modernize the Transportation of Dangerous Goods Act.

Ports

Changes to the Canada Marine Act would expand the mandate of Canada Port Authorities to include traffic management for the purpose of promoting efficient supply chains, would  expressly authorize the development of inland port activities such as warehousing and logistics development, and would make changes to the governance of these authorities (including changes concerning borrowing plans, engagement with local and Indigenous stakeholders, board composition, environmental measures and reporting to the Minister). Changes to the Customs Act would facilitate timely inspection of shipping containers. Changes to the Canada Transportation Act would lower the threshold for reviews of investments for competition and national security purposes. Changes to the Marine Transportation Security Act would enhance the ability to deal with threats to security in an effective and expeditious manner, including through the creation of new authorities to make regulations, issue interim orders, issue directions and issue emergency directions.

Railways

The Bill would make a number of changes to the Railway Safety Act.  These include administrative changes such as creating more flexibility regarding the making of rules and exemptions, giving the Minister the ability to consult on rule decision-making, allowing the Minister to request relevant information on rule exemption requests, and instituting a regular five-year review. They also include substantive changes such as amendments to clarify that “safety” includes railway security, new prohibitions regarding unruly or dangerous behaviour on board trains or at stations and interference with railway equipment, new enforcement tools (assurances of compliance and compliance agreements), and new regulatory powers concerning security management systems and security clearances. The Bill would also amend the Canada Transportation Act to allow the use of automated systems in some types of decision making and to clarify the manner in which inspections may be made remotely by means of telecommunication.

Dangerous Goods

The Bill would amend the Transportation of Dangerous Goods Act, 1992 to provide new authorities to address ongoing and emergency safety risks, to create an Administrative Monetary Penalty scheme, and to create a registration requirement to provide Transport Canada with a reliable and comprehensive inventory of those engaging in regulated activities, including for example those who import, offer for transport, handle, or transport dangerous goods in Canada.

The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:

• Right to liberty (section 7 of the Charter)

  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. Offences that carry the possibility of imprisonment have the potential to deprive liberty and so must accord with the principles of fundamental justice.

  The principles of fundamental justice also include residual protections for the right to silence and for the protection against self-incrimination, which provide certain additional safeguards beyond those accorded by the more specific rights against self-incrimination in sections 11(c) and 13 of the Charter.

• Right against unreasonable 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 against unreasonable intrusion into a reasonable expectation of 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. The assessment of the reasonableness of the law is a flexible one that takes into account the nature and purpose of the legislative scheme, and the nature of the affected privacy interests.

• Fair trial rights (section 11 of the Charter)

  Section 11 of the Charter guarantees certain procedural rights to persons who have been charged with an offence. Its protections apply to proceedings that are “penal in nature” or that may lead to “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. Section 11(d) guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Customs Act

Making goods available for examination

The Bill would amend the Customs Act to require any person who has possession or control over goods that have been imported to make these goods available for examination or to deliver them to a secure area at the request of an officer.  The Governor in Council would be able to make regulations for the purposes of these new provisions, including regulations respecting the time and manner in which goods must be made available for examination or delivered to a secure area.  These amendments, by allowing for the use of the existing examination power under s. 99 of the Act, have the potential to engage a reasonable expectation of privacy.

The following considerations support the consistency of these amendments with section 8 of the Charter.  The provisions would merely allow for the exercise of the existing examination power under s. 99 of the Act.  This power, like several other search powers under the Act, has been upheld as reasonable owing to the recognition of diminished privacy interests in the border context, as well as the important state objective of controlling what goods can enter the country.

Railway Safety Act

Prohibitions

The Bill would prohibit interference with railway works, equipment or operations, as well as damage or destruction of railway works or equipment in a manner that threatens the safety of railway operations.  It would also prohibit behaviour that endangers or risks endangering the safety of a station, railway equipment, or individuals who are at the station or who are on board the equipment, as well as unruly behaviour toward employees or persons acting on behalf of a railway company. Further amendments would prohibit the obstruction of officers carrying out functions under the Act. As contravention of these prohibitions would be punishable by imprisonment under s. 41 of the Act, they could engage the right to liberty under s. 7 of the Charter.

In reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The behaviour prohibited by these provisions is closely linked to the Act’s objective, set out in para. 3(a), of promoting and providing for the safety and security of the public and personnel, and the protection of property and the environment, in railway operations, and should be interpreted through this lens. Unruly behaviour includes actions that jeopardize the safety and/or security of railway operations or property. This can include, for example, physical altercations between passengers and associated assaults of railway company employees who attempt to intervene, or direct threats and verbal abuse of onboard employees requiring police intervention. The prohibition on obstruction of officers also serves the Act’s objective of facilitating a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety and security.

Administrative Monetary Penalties (AMP)

The Bill would create AMP schemes for “Assurances of compliance” and “Compliance agreements,” which are two types of voluntary arrangements set out in the bill that allow a person, who there are reasonable grounds to believe has committed a violation, to avoid paying the usual penalty for that violation if they agree to comply with the relevant condition and abide by specified terms and conditions. With respect to both Assurances of compliance and Compliance agreements, failure to comply can result in a penalty twice the amount of the penalty that would have been payable had the person not entered into the arrangement. 

The amendments could result in the imposition of substantial monetary penalties and therefore have the potential to impact section 11 rights.  The following considerations support the consistency of these amendments with the Charter.  The proceedings leading to the imposition of a penalty would be administrative in nature. The purpose of these penalties would be to promote compliance with the Railway Safety Act and, in particular, to disincentivize abuse of these arrangements – rather than to “punish” as that concept is defined for the purposes of section 11 of the Charter. The penalties would not be subject to any prescribed minimums, and would be subject to maximums set out in the Act, or lower maximums prescribed by regulation. The amendments, properly construed and applied, would not authorize the imposition of a penalty that could give rise to “true penal consequences.” Finally, penalties would be subject to civil enforcement in a superior court but could not result in imprisonment for non-payment.

Transportation of Dangerous Goods Act, 1992

Offences

The Bill would re-enact the existing requirement to comply with all safety requirements that apply under the regulations when testing means of containment (i.e. containers, packaging or parts of means of transport used to carry dangerous goods) for compliance with regulatory requirements, while replacing the term “testing” with “requalification.”  The term “testing” would also be replaced with “requalification” in the existing prohibition on non-compliant use of compliance marks. Replacement of the existing term “test” with “requalify” would clarify that requalification (i.e. determining that a means of containment complies with regulatory requirements) does not always require that a test be performed. Amendments to come into force on a date specified by the Governor in Council would prohibit the design, manufacture, repair, requalification, and equipping of means of containment unless the person both holds a certificate of registration and complies with all safety requirements that apply under the regulations. As contravention of these requirements would be punishable by imprisonment under s. 33 of the Act, they could engage the right to liberty under section 7 of the Charter.

In reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The requirement to comply with regulations while requalifying a means of containment gives practical force to these regulations, which are in turn intended to ensure the safe transport of goods. The requirements related to compliance marks support compliance with the regulations by making it easier for users and officials to reliably identify means of containment that comply with safety standards. The requirement to obtain a certificate of registration would support the administration and enforcement of the Act by creating a reliable and comprehensive inventory of stakeholders who engage in regulated activities, and enabling effective communication with these stakeholders. The regulations themselves would have to comply with the principles of fundamental justice in order for the offences to be consistent with section 7.

Implementation report

The Bill would require, subject to regulations, any person who implements an approved emergency response plan to report its implementation to the Minister and any prescribed person, and to include in the report any prescribed information. Although the information to be included in these reports has yet to be set out in regulation, it is conceivable that reports could include information that is commercially sensitive or information about the actions of particular employees. A report on implementation of such a plan could engage section 8 of the Charter to the extent that it requires a person to provide to the Minister information that attracts a reasonable expectation of privacy in this context.

The following considerations support the consistency of this provision with section 8. Privacy interests are diminished in the regulatory and administrative contexts.  Powers to compel the production of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under s. 8. In reviewing the relevant provisions, the Minister has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8.

Duty to report

The Bill would re-enact the existing duty, on anyone who has the charge, management or control of a means of containment, to report any actual or anticipated release of dangerous goods if it endangers, or could endanger public safety. The Bill would add that this duty is subject to regulations. Compelled reporting could engage the right to liberty under section 7 of the Charter, and could engage the residual protections under section 7 of the right to silence and protection against self-incrimination.

The following considerations support the consistency of this duty with section 7.  Those subject to the duty are voluntary participants in a highly regulated activity.  The duty is limited to situations that could endanger safety, and so is tied to an important statutory objective.  In the course of a criminal trial, courts have the ability to exclude compelled statements where admission of the statements would violate s. 7.

AMP regime

The Bill would create an AMP scheme, which would serve as an enforcement mechanism for provisions of the Act or Regulations that would be designated by the Minister. Enforcement officers would be able to issue notices of violation, setting the amount of the penalty to be paid, if they have reasonable grounds to believe that a person has committed a violation. Persons who receive a notice of violation may pay the penalty, request to enter into a compliance agreement, or request a review by the Transportation Appeal Tribunal. In the case of a review, the Minister would be required to prove the violation on a balance of probabilities. Proceeding with a notice of violation would preclude proceeding with criminal charges.

The amendments could result in the imposition of substantial monetary penalties and therefore have the potential to impact section 11 rights.  The following considerations support the consistency of these amendments with the Charter.  The proceedings leading to the imposition of a penalty would be administrative in nature. The purpose of these penalties would be to promote compliance with Act rather than to “punish” as that concept is defined for the purposes of section 11 of the Charter. The penalties would not be subject to any prescribed minimums, and would be subject to maximums set out in the Act, or lower maximums prescribed by regulation. The amendments, properly construed and applied, would not authorize the imposition of a penalty that could give rise to “true penal consequences.” Finally, penalties would be subject to civil enforcement in a superior court but could not result in imprisonment for non-payment.

Enforcement powers

The Bill would allow the Minister to designate enforcement officers. It would also grant certain powers to such officers for the purpose of determining whether a violation has occurred, including the power to enter and search places, to require the attendance of persons, and to order the production of documents, information and data. Entry to dwelling houses would only be permissible with a warrant issued by a justice. As these powers could interfere with a reasonable expectation of privacy, they could engage section 8 of the Charter.

Privacy interests are diminished in the regulatory and administrative contexts.  Powers to enter and search places and to gather or compel the production of information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under s. 8. In reviewing the relevant provisions, the Minister has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8.

Marine Transportation Security Act

Offences – Contravention of regulations, orders and directions

The Bill would give the Minister the power to make regulations respecting threats or risks to the security of marine transportation and to the health of persons involved in the marine transportation system. Amendments would also give the Minister the power to issue interim orders where the Minister believes that immediate action is required to deal with a threat or to reduce a risk to the security of marine transportation or to the health of persons involved in the marine transportation system. Amendments would also give the Minister the power to issue directions to vessels to proceed to a place, remain at a place, or remain outside a specified area where the Minister has reasonable grounds to believe that the vessel is a threat, or poses a risk to, the security of marine transportation or the health of persons involved in the marine transportation system. This would be complemented by a power to direct operators of ports and marine facilities to allow the vessel to proceed to, moor, anchor or remain at the port or marine facility. An emergency direction power would enable the Minister, where the Minister is of the opinion that there is an immediate threat to the security of marine transportation or the health of persons involved in the marine transportation system, to direct any person or vessel to do, or refrain from doing, anything that the Minister considers necessary to respond to the threat. Amendments would also create the offences of contravening any regulation, interim order or direction made under these new powers, as well as any regulation made under the existing regulation-making power in subsection 5(1) of the Act.  As these new offences would be punishable by imprisonment, they could engage the right to liberty under section 7 of the Charter. 

In reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The offences in question give practical effect to the new powers described above and to the existing regulation-making powers, by helping to ensure compliance with regulations, orders and directions.

Offences – false or misleading information

The Bill would re-enact an offence of providing false or misleading information to a screening officer, with an increase of the maximum sentence to a fine of up to $500,000, or imprisonment of no more than two years less a day, or both. As this offence would be punishable by imprisonment, it could engage the right to liberty under section 7 of the Charter.

In reviewing the provision, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The prohibition on providing false or misleading information to a screening officer is directly linked with ensuring the effectiveness of authorized screening measures, which are aimed at preventing the unauthorized possession or carriage of weapons, explosives and incendiaries on board vessels and at marine facilities

Inspection powers

The Bill would re-enact existing powers of security inspectors to board and inspect any vessel, or enter and inspect any marine facility, for the purpose of ensuring compliance with the Act or any regulation, security measure or security rule, extending these powers to the purposes of ensuring compliance with interim orders and emergency directions made under the new powers described above.  This includes re-enactment of the power to require persons to produce documents for inspection or copying in the course of such inspections.

Privacy interests are diminished in the regulatory and administrative contexts.  Powers to enter and search places and to gather or compel the production of information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under s. 8. In reviewing the relevant provisions, the Minister has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8.

Administrative monetary penalties

The Bill would re-enact English versions of various provisions of the existing AMP regime in the Act, to clarify that the provisions apply to vessels as well as persons. Under this regime, if the Minister has reasonable grounds to believe that a person or vessel has committed a violation, the Minister may either enter into an assurance of compliance with the person or vessel, or issue a notice of violation setting out the applicable penalty. A person or vessel would be able to request review by a member of the Transportation Appeal Tribunal of Canada of a penalty set out in a notice of violation or a notice of default relating to an assurance of compliance. In both cases, the burden of proof would be on the Minister to establish the violation or the default. Determinations on these reviews could be appealed to the appeal panel of the Transportation Appeal Tribunal of Canada. The amendments could result in the imposition of substantial monetary penalties and therefore have the potential to engage section 11 rights. 

The following considerations support the consistency of these amendments with the Charter.  The proceedings leading to the imposition of a penalty would be administrative in nature. The purpose of these penalties would be to promote compliance with the Act rather than to “punish” as that concept is defined for the purposes of section 11 of the Charter. The penalties would not be subject to any prescribed minimums, and would be subject to a maximum of $250,000, or lower maximums prescribed by regulation. The amendments, properly construed and applied, would not authorize the imposition of a penalty that could give rise to “true penal consequences.” Finally, penalties would be subject to civil enforcement in a superior court but could not result in imprisonment for non-payment.

Canada Transportation Act

Power of entry using telecommunications

The Bill would clarify that, for the purposes of verifying compliance or preventing non-compliance with an Act that the Minister of Transport administers or enforces, or regulations made under such an Act, or determining whether a violation has been committed, a person is considered to have entered into a place when accessing it remotely by means of telecommunication.  It would also require that, when accessing a place not accessible to the public, the person must do so with the knowledge of the owner or person in charge of the place, and must be in the place for no longer than the period necessary for the purposes just described. As this power would have the potential to interfere with a reasonable expectation of privacy, it could engage section 8 of the Charter.

The following considerations support the consistency of this provision with section 8 of the Charter. The provision would not expand the existing inspection, verification and entry powers under the Act, but merely recognize that they already apply to electronic inspections.  It would help to ensure the reasonableness of the manner in which electronic inspections are conducted, both by ensuring notice to the subject of the inspection, and by requiring the official to limit the time spent accessing the place remotely to what is necessary.

Prohibition – Mergers and Acquisitions

The Bill would create a requirement for parties to a proposed transaction relating to a transportation undertaking in a port to notify the Minister and the Commissioner where the transaction is not otherwise notifiable under the Competition Act, and the assets or gross revenue from sales in or from Canada of the undertaking exceed $10,000,000. This would constitute a change from the current legislation, which incorporates the threshold set by the Commissioner of Competition under the Competition Act (currently, $93,000,000). Parties would also be prohibited from proceeding with the transaction, or a transaction notified under the existing section 53.1 of the Act, unless the Governor in Council approves the transaction and, in the case of an air transportation undertaking, the Canadian Transportation Agency determines that it would result in an air transportation undertaking that is Canadian. As contravention of this requirement and the associated prohibition would constitute an offence under section 53.6 of the Act, they could engage the liberty interest under section 7 of the Charter.

In reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The requirement to notify the Minister and the Commissioner of Competition serves the objectives of the National Transportation Policy set out in section 5 of the Act, in particular the policies that competition and market forces are the prime agents in providing viable and effective transportation services and that regulation and strategic public intervention are used to achieve economic and security outcomes.  It does so by enabling the Minister and Commissioner of Competition to examine proposed transactions for their impacts on competition and broader public interest considerations, including economic-based threats to national security. The lowered threshold for investment reviews would help to better ensure competition and national security by expanding the number of transactions that are eligible for assessment.                                          

Information requirements – Mergers and Acquisitions

The Bill would re-enact the existing obligation on parties to proposed transactions to provide information prescribed under subsection 114(1) of the Competition Act, as well as information with respect to the public interest that is required under any guidelines issued and published by the Minister.  It would also expand this obligation to the new required notifications described in the previous section. As the obligation to provide this information could engage a reasonable expectation of privacy, it could engage section 8 of the Charter.

The following considerations support the consistency of this provision with section 8 of the Charter. Privacy interests are diminished in the regulatory and administrative contexts.  Powers to compel the production of information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under s. 8. In reviewing the relevant provisions, the Minister has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8.

Canada Marine Act

Order Power

The Bill would give the power to the Minister, where the Minister is of the opinion that there is a risk of imminent harm to national security, national economic security or competition that constitutes a significant threat to the safety and security of persons, goods, ships or port facilities or the security of supply chains, to order port authorities and persons in charge of port facilities to take measures or stop any activity in order to prevent the harm. As failure to comply with these orders would be punishable by imprisonment under subsection 127(1) of the Act, they could engage the right to liberty under section 7 of the Charter.

In reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The order power would have to be exercised in a manner consistent with the principles of fundamental justice in order to be consistent with section 7 of the Charter.