Charter Statement - Bill C-58: An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

Tabled in the House of Commons, September 20, 2017

Explanatory Note

The Minister of Justice prepares a "Charter Statement" to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice's most important responsibilities is to examine legislation for consistency 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 consistency 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. 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-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, for consistency with the Charter pursuant to her 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-58 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.

Freedom of expression (section 2(b) of the Charter)

By providing for proactive publication of specified information and materials related to the Senate, the House of Commons, parliamentary entities, ministers' offices, government institutions and administrative institutions that support superior courts, Part 2 of the Bill would expand the scope of information in the public domain.

Section 2(b) of the Charter protects freedom of expression, including freedom of the press. When determining whether freedom of expression has been limited by legislation or government action, the courts begin by considering whether a denial of access to documents would substantially impede meaningful public discussion on a matter of public interest. They then go on to consider whether there are factors weighing against disclosure of the documents, such as whether disclosure would impair the proper functioning of government institutions.

The Bill would expand the scope of information in the public domain. It would therefore enhance meaningful public discussion of matters of public interest. In order not to impair the function of public institutions and to protect parliamentary privilege and solicitor-client privilege, the Bill would maintain confidentiality over certain documents.

The right to an independent and impartial tribunal (section 11(d) of the Charter)

Clause 37 would add sections 90.03 to 90.09, 90.11 to 90.13 and 90.15 to 90.21 to the Access to Information Act to require the proactive publication of certain reimbursed expenses incurred by members of the federally appointed judiciary. This would include travel, conference and hospitality expenses and incidental and representational allowances of all individual federally appointed judges – including judges in the provincial superior courts (trial and appeal courts), the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada.

Section 11(d) of the Charter provides that individuals charged with an offence have the right to a hearing before an independent and impartial tribunal. The right to an independent and impartial tribunal includes the right to a court with judicial control over administrative matters bearing directly on the exercise of the judicial function. The obligation to disclose certain expense information of the federally appointed judiciary could, by making public the expense information of individual judicial decision-makers, engage the section 11(d) right.

The following considerations support the consistency of clause 37 with the Charter. The obligation to disclose information would be subject to two exceptions, which would both ensure continued preservation of the right to a fair and impartial tribunal. The first is section 90.22, which provides officials of administrative institutions that support the courts with the power not to disclose information that could interfere with judicial independence. The second is section 90.26, which excludes the Canadian Judicial Council from the proactive publication regime.