Bill C-49: An Act to amend the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act

Tabled in the House of Commons, June 12, 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-49 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-49 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-49 would build on the existing petroleum regulatory scheme to establish a new regulatory scheme for offshore renewable energy projects in Newfoundland and Labrador and Nova Scotia, through their respective Accord Acts. An offshore renewable energy project means any work or activity that relates to the exploitation or potential exploitation of a renewable resource to produce an energy project, that is not conducted by or on behalf of a government or educational institution.

First, the measures proposed in this bill include the expansion of the mandates of the renamed offshore energy regulators, and the establishment of a land tenure regime for the issuance of submerged land licenses to authorize the carrying out of offshore renewable energy projects. Second, the measures include the establishment of a Ministerial decision-making process respecting the issuance of submerged land licenses and the regulating bodies’ exercise of certain powers and performance of certain duties related to regulation of operations. Third, the measures provide that the Governor in Council may make regulations to prohibit the commencement or continuation of petroleum resource or renewable energy activities, and to regulate access to offshore infrastructure, including to enforce tolls and tariffs.

Information-Sharing Powers

The bill would allow for the designated federal and provincial Ministers to access any information or documentation relating to petroleum resources and renewable energy activities in the offshore area that is provided to the regulatory bodies for the purposes of the legislation. The regulatory bodies would be able to disclose information to governments where the matter deals primarily with a petroleum-related work or activity or with an offshore renewable energy project. 

Section 8 of the Charter protects against unreasonable searches and seizures. A “search” or “seizure” is state action that interferes with a reasonable expectation of privacy. Powers allowing for the collection or disclosure of information or the inspection of regulated spaces have the potential to interfere with privacy and must accordingly meet the “reasonableness” requirement under s. 8.

A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it meets three requirements. First, it must be authorized by law. Second, the law itself must be reasonable in the sense of striking an appropriate balance between privacy interests and the state interest being pursued. Third, the search or seizure must be 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.

Privacy interests are diminished in the regulatory and administrative contexts.  Powers to gather, compel the production of, or disclose 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 s. 8.

Offences – Contravention of Offshore Renewable Energy Regime

In establishing the regulatory regimes for offshore renewable energy operations, the bill would establish new offences for certain contraventions of its provisions and its regulations. In particular, the bill would expand the application of existing offences to those who undertake work or activity in offshore renewable energy projects without authorization by the new regulatory bodies. Pursuant to the bill, an offender found guilty of an offence may face imprisonment on either summary conviction or indictment.

Section 7 of the Charter protects against the deprivation of an individual’s right to life, liberty and security of the person, unless done in accordance with the principles of fundamental justice. Offences that can be punishable by a term of imprisonment deprive the right to liberty and must so accord with the principles of fundamental justice. 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 offshore renewable energy scheme described above, by helping to ensure compliance with regulations, orders, and directions. The enforcement scheme takes into account important considerations such as safety, the protection of the environment, and conservation.

Administrative Monetary Penalties (AMP)

The bill would expand the existing scheme for administrative monetary penalties for certain violations and certain orders and regulations made under the bill. The regulating bodies as established by the bill would have the ability to collect and administer penalties for certain contraventions of the offshore renewable energy regime. The penalties for these contraventions would not be more than $25,000 in the case of an individual.

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.

The Bill 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 up to the imposition of a penalty would be administrative in nature. The purpose of these penalties would be to promote compliance with the Bill and its regulations, not to punish. 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.