Charter Statement - Bill C-81: An Act to ensure a barrier-free Canada

Tabled in the House of Commons, June 20, 2018

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 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-81, An Act to ensure a barrier-free Canada ("Accessible Canada Act"), 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-81 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.

Overview

The purpose of the Accessible Canada Act is to benefit all persons, especially persons with disabilities, through the progressive realization of a barrier-free Canada. It would require the Government of Canada and the federally-regulated public and private sectors to identify and remove barriers, and to prevent new barriers, that hinder the full and equal participation in society of persons with disabilities. It would focus on barriers in the areas of employment, the built environment, information and communication technologies, the procurement of goods and services, the delivery of programs and services, transportation, and other designated areas.

The Accessible Canada Act would grant the Governor in Council, the Canadian Transportation Agency, and the Canadian Radio-television and Telecommunications Commission the authority to recommend or establish accessibility standards intended to reduce barriers and to improve accessibility ("accessibility standards"). The Act would also create the Canadian Accessibility Standards Development Organization to develop and recommend accessibility standards for use by any person or entity, including any government in Canada or elsewhere.

Compliance with regulated accessibility standards would be enforced by a new Accessibility Commissioner within the Canadian Human Rights Commission, by the Canadian Transportation Agency, by the Canadian Radio-television and Telecommunications Commission, and by the Federal Public Sector Labour Relations and Employment Board, depending on the source of the accessibility standard and the area in which it applies. Compliance with regulated accessibility standards could be enforced through inspections, compliance audits, compliance orders, administrative monetary penalties, and individual complaint adjudications, depending on the nature and activity of the regulated entity.

Bill C-81 would create new proactive requirements for regulated entities in the federally-regulated public and private sectors. These requirements include the preparation and publication of accessibility plans, the receipt of public feedback on the accessibility plans, and the preparation and publication of progress reports in relation to the accessibility plans.

Considered as a whole, the Bill would promote the aims and values of section 15 of the Charter (equality). It also potentially engages section 8 (search and seizure) and section 11 (legal rights applying to those "charged with an offence").

Equality Rights (Section 15 of the Charter)

Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of mental or physical disability.

Bill C-81 would promote the aims and values of the Charter's equality rights. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as equally deserving of concern, respect, and consideration. A central aim of equality in relation to persons with disabilities is to ensure reasonable accommodation by modifying the built environment, transportation systems, communication technologies, employment practices, and the provision of goods and services in order to remove and prevent arbitrary hindrances to their equal participation in society. Bill C-81 would implement a proactive and systemic approach to identifying, removing, and preventing barriers that might deprive persons with disabilities of an equal opportunity to make for themselves the lives that they are able and wish to have. The duties of regulated entities in Part 4 of the Accessible Canada Act would impose specific obligations to implement this approach. Other aspects of the proposed regime, including the development of accessibility standards and the availability of individual remedies, would supplement the duties of regulated entities.

Bill C-81 would also promote equality for persons with disabilities by ensuring representation in decision-making. Clauses 42(4), 44(3), 47(4), 49(3), 51(4), 53(3), 56(4), 58(3), 60(4), 62(3), 65(4), 67(3), 69(4), and 71(3) would ensure that the experiences and views of persons with disabilities are given consideration by requiring regulated entities to consult persons with disabilities in preparing, updating, and reporting progress on accessibility plans. Clause 23(2) would ensure that the experiences and views of persons with disabilities are given consideration by requiring, as far as possible, that the majority of the Board of Directors of the Canadian Accessibility Standards Development Organization are persons with disabilities. In addition, Clause 132(2) provides that persons with disabilities and organizations that represent the interests of persons with disabilities must be consulted as part as the independent review of the Accessible Canada Act required by Clause 132(1) of the Bill.

Search and Seizure (Section 8 of the Charter)

Bill C-81 would grant the Accessibility Commissioner, the Canadian Transportation Agency, and the Canadian Radio-television and Telecommunications Commission powers of inspection, investigation, and production for the purposes of verifying compliance and preventing non-compliance with the Accessible Canada Act and its regulations, and for the purposes of dealing with an individual complaint. The powers of search and seizure in the context of inspections, investigations, and production have the potential to engage section 8 of the Charter.

In order to verify compliance and prevent non-compliance with certain provisions of Bill C-81, regulated accessibility standards, requirements to make and update accessibility plans, and related requirements. Clause 73 would authorize the Accessibility Commissioner to enter any place, including a conveyance, in which the Accessibility Commissioner has reasonable grounds to believe there is any record, report, electronic data or other document, or any information or thing relevant to that purpose. The Accessibility Commissioner would be empowered to carry out limited searches and seizures in those places, including remotely by means of telecommunication. Clause 74 would empower the Accessibility Commissioner to order the production of any record, report, electronic data or other document that the Accessibility Commissioner has reasonable grounds to believe contains information that is relevant to verifying compliance and preventing non-compliance with the Act.

Clauses 164(2) and 176 would amend the Telecommunications Act and the Canada Transportation Act respectively to give inspectors or enforcement officers designated under those Acts similar powers of search and seizure for the purpose of verifying compliance or preventing non-compliance with the Accessible Canada Act. Clauses 164(3) and 184 would amend the Telecommunications Act and the Canada Transportation Act respectively to authorize inspectors and enforcement officers to require production of documents or information for this purpose.

An individual who has suffered physical or psychological harm, property damage or economic loss as the result of, or otherwise been adversely affected by, a contravention by a regulated entity of regulated accessibility standards (or certain related regulations) would be able to file an individual complaint with the Accessibility Commissioner (Clause 94), the Canadian Transportation Agency (Clause 173), or the Federal Public Service Labour Relations and Employment Board (Clauses 185 and 195), depending on the source of the accessibility standard and the area in which it applies. Bill C-81 does not propose any changes to the Canadian Radio-television and Telecommunications Commission's existing powers to receive individual complaints related to accessibility.

In order to investigate an individual complaint, Clause 98 would grant the Accessibility Commissioner the same powers as those granted for verifying compliance and preventing non-compliance with the Act (as set out under Clause 73(2)(a) to (l)). The Accessibility Commissioner would also have the power to enter any place, including a conveyance, other than a dwelling-house; to converse in private with any person in any place entered into in the context of an investigation of a complaint; and to carry out any inquiries in that place that the Accessibility Commissioner sees fit.

In the transportation context, the Canadian Transportation Agency would maintain its existing powers to inquire into whether there is an undue barrier to the mobility of persons with disabilities in the federal transportation network, in accordance with the relevant provisions of the Canada Transportation Act (Clause 172(1)). The scope of these inquires would be expanded so that the Agency could consider whether an individual has suffered physical or psychological harm, property damage or economic loss arising out of a contravention of certain regulations, or whether that individual has otherwise been adversely affected by such a contravention (Clause 173).

The powers of search and seizure in the context of inspections, investigations, and production have the potential to engage 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 following considerations support the consistency of Clauses 73, 74, 98, 164(2)-(3), 176 and 184 with section 8 of the Charter. The inspection, investigation, and production powers would be available for regulatory purposes (e.g. to determine whether accessibility standards are met), not to further criminal investigations. In addition, these inspections would primarily occur in government and federally-regulated workplaces and places of business. These considerations tend to diminish privacy expectations. The proposed powers are broadly analogous to powers that have been upheld by the courts in other similar contexts, such as in the enforcement of labour standards in industrial sectors.

Rights of Persons "Charged with an Offence" (Section 11 of the Charter)

Clauses 77 to 93 would set out a scheme for administrative monetary penalties for certain violations of the Accessible Canada Act and of certain orders and regulations made under the Act. The Accessibility Commissioner would be empowered to issue notices of violation, based on reasonable grounds to believe that a regulated entity or person has committed a violation, with warnings or monetary penalties. Recipients of a notice of violation and a monetary penalty would have a right to request the Accessibility Commissioner to review the matter or to enter into a compliance agreement followed by a reduction in whole or in part of the penalty. In reviewing a matter the Accessibility Commissioner would determine on a balance of probabilities whether the regulated entity committed the violation. A regulated entity would not have a defence by reason that they exercised due diligence to prevent the violation or reasonably and honestly believed in the existence of facts that, if true, would exonerate them. Liability for a violation may extend to persons exercising managerial or supervisory functions for the regulated entity and who directed, authorized, assented to, acquiesced in, or participated in the commission of the violation. The Governor in Council would be empowered to make regulations fixing the penalties (up to $250,000) and determining other aspects of the scheme for administrative monetary penalties. Clauses 177-83 would amend the Canada Transportation Act to empower enforcement officers to order similar administrative monetary penalties for contraventions of accessibility-related regulations made under that Act and for contraventions of the requirements for accessibility plans under the Accessible Canada Act.

Section 11 of the Charter guarantees certain procedural rights to persons who have been charged with an offence, including the presumption of innocence and the right to a fair and public hearing before an independent and impartial adjudicator. Its protections apply only to persons "charged with an offence". Persons are "charged with an offence" within the meaning of section 11 if they are subject either to proceedings that are criminal by nature, or that result in "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.

Bill C-81 would create an administrative process for the issuance of a notice of violation and the payment of a monetary penalty, not one that is criminal by nature involving criminal charges, prosecution and sentencing. However, because Clause 77 would give rise to the possibility of substantial monetary penalties it has the potential to engage section 11 rights if it would impose "true penal consequences". The following considerations support the Bill's consistency with the Charter. The purpose of these penalties would be to promote compliance with the Accessible Canada Act (Clause 78), not to "punish" as that concept is defined for the purpose of section 11 of the Charter. Regulations to be made under Clause 91 would ensure that penalties are calibrated to promote compliance with the Accessible Canada Act and not to constitute "true penal consequences" as that concept is defined for the purpose of section 11. There is no minimum prescribed penalty, and the mere possibility of a substantial monetary penalty does not engage section 11. The Bill properly construed and applied would not authorize the imposition of a penalty that could have "true penal consequences".