Bill C-37: An Act to amend the Department of Employment and Social Development Act and to make consequential amendments to other Acts (Employment Insurance Board of Appeal)

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-37, An Act to amend the Department of Employment and Social Development Act and to make consequential amendments to other Acts (Employment Insurance Board of Appeal), 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-37 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.

Authority to provide circumstances under which Board may hold private hearings

The Bill would amend 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 under which the Board of Appeal may hold hearings in private.

Freedom of expression (section 2(b))

Section 2(b) of the Charter guarantees freedom of thought, belief, opinion or 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. This principle also 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 this provision 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, such as medical reports. Any regulations setting out the circumstances under which hearings may be held in private must themselves comply with the Charter.