Bill S-6: An Act respecting regulatory modernization
Tabled in the Senate, May 10, 2022
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 of Justice 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.
The Minister of Justice has examined Bill S-6, An Act respecting regulatory modernization, for any inconsistency with the Charter. This review involved consideration of the objectives and features of the Bill.
What follows is a discussion of the ways in which Bill S-6 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.
As part of the regulatory modernization initiative, the Bill proposes to modernize a number of pieces of legislation that have an impact on the regulatory environment. The Bill repeals or amends provisions that have, over time, become barriers to innovation and economic growth, while adding certain provisions with a view to supporting innovation and economic growth. The aim is to facilitate innovation and business competitiveness by keeping the federal regulations relevant and up to date, while continuing to protect Canadians’ health and safety and the environment.
The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:
- Freedom of expression (section 2(b)) – Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
- Right to life, liberty and security of the person (section 7) – Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. These principles include the requirement that laws which engage these rights must not be arbitrary, overbroad or grossly disproportionate. 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 is so broad in scope that it includes some conduct that bears no relation to its 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.
- Right to be secure against unreasonable search or seizure (section 8): Section 8 of the Charter protects against "unreasonable" searches and seizures. The purpose of section 8 is to protect individuals against unreasonable intrusions upon their 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.
- Rights that apply to persons who have been charged with an offence (section 11): Section 11 of the Charter guarantees certain rights to persons who have been charged with an offence, including the right to a fair and public hearing before an independent and impartial adjudicator. Its protections apply only to persons “charged with an offence”. For the purposes of section 11, this occurs when a person is subject either to proceedings that are criminal in nature, or that result in “true penal consequences”.
Amendments to the Department of Citizenship and Immigration Act
Information disclosure power
The Bill proposes to amend the Department of Citizenship and Immigration Act to authorize the Minister of Citizenship and Immigration to disclose, for certain purposes, personal information under the control of the Department of Citizenship and Immigration. Specifically, the Bill would allow the Minister of Citizenship and Immigration to disclose any personal information under the control of the Department of Citizenship and Immigration within the Department for the purposes of exercising the Minister’s powers or performing their duties or functions. It would also allow the Minister of Citizenship and Immigration to disclose certain personal information to other parts of the federal government, to the provincial government or to a federal or provincial Crown corporation for the purposes of administering or enforcing any federal or provincial laws.
These powers to disclose personal information potentially engage section 8 of the Charter. The following considerations support the consistency of the provisions with section 8. The Bill would limit disclosure of information within the Department for the purposes of the exercise of the Minister’s powers or performance of their duties or functions. The personal information that could be disclosed outside of the Department under these authorities is limited to only that which relates to the identity of an individual, their immigration or citizenship status in Canada, and the contents or status of documents issued to the individual including information relating to the issuance, refusal, validity or termination of such a document.
Amendments to the Canada Land Surveyors Act
The Bill proposes to amend the Canada Lands Surveyors Act to strengthen the complaints and discipline processes that govern surveyors practicing on “Canada Lands”, which includes land in the three territories as well as Federal parks and First Nations reserves. The purpose of the amendments is to reduce the regulatory burden of the Minister of Natural Resources by enabling the Council of the Association of Canada Lands Surveyors (“the Association”), the body that regulates Canada Lands Surveyors, to make by-laws respecting a broader range of matters, and to improve labour mobility by ensuring that processes relating to becoming a Canada Lands Surveyor are carried out in accordance with the Canadian Free Trade Agreement.
Power to require information
The Bill would allow the Complaints Committee of the Association to require that members or permit holders respond to any request for information in respect of a complaint it is investigating. Requiring members or permit holders to provide information relevant to complaints for regulatory purposes potentially engages section 8 of the Charter. The following considerations support the consistency of the provisions with section 8. Privacy interests are diminished in the regulatory and administrative contexts. Statutory powers to compel the production of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating criminal offences, have been upheld as reasonable under section 8. In reviewing the relevant provisions, the Minister of Justice has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8.
Power of summons
The Bill would allow the Discipline Committee of the Association to summon and enforce the appearance of witnesses in relation to complaints before it, including the power to compel testimony and require the production of documents and other evidence necessary for the full examination of a complaint.
The power to summon a witness to provide testimony may engage section 7 of the Charter by depriving individuals of their liberty and so must accord with the principles of fundamental justice. The following considerations support the consistency of the Association’s power to summon witnesses with section 7. These provisions are tools to enable the Association to effectively investigate complaints from the public about Canada Lands Surveyors. The powers are discretionary, meaning that the Discipline Committee is empowered to determine whether it is appropriate to summon a witness in the circumstances, taking into account the impacts on liberty and other relevant considerations. This flexibility would allow the Discipline Committee to avoid impacts on liberty that would be arbitrary or grossly disproportionate. In reviewing the relevant provisions, the Minister of Justice has not identified any potential inconsistencies with the principles of fundamental justice.
The Bill would amend the Canada Lands Surveyors Act to require that hearings of the Discipline Committee of the Association be held in public by default. The provisions create an exception: hearings can be held in private where necessary for a reason of public order, including to ensure respect for professional secrecy or the protection of a person’s privacy, safety or reputation.
Under the open court principle, there is a presumption that court and tribunal proceedings are open to both the public and the media. Because the amendments would provide that discipline hearings may be conducted in the absence of the public and parties in certain circumstances, the exercise of this proposed power may engage section 2(b) of the Charter. The following considerations support the consistency of these provisions with section 2(b). There is a presumption that discipline hearings of the Association will be open to the public. The open court principle is not absolute and may be limited in furtherance of pressing state objectives, including those required for the exceptional private hearing such as where it is necessary for the protection of a person’s privacy or safety. The responsibility for assessing whether it is considered necessary to hold a hearing in private would rest with the Discipline Committee of the Association, which must exercise this power in accordance with the Charter. Decisions of the Discipline Committee must be in writing, set out reasons, and must be provided to the member or permit holder to whom the decision relates as well as the complainant.
Amendments to the Feeds Act, Fertilizers Act, and Health of Animals Act
Contravention of conditions or interim orders
The Bill would introduce authorities under the Feeds Act and Fertilizers Act to impose prescribed conditions for the approval or registration of feed and the approval or registration of a fertilizer or supplement. A person who manufactures, sells or imports feed would be required to comply with all of the conditions attached to their approval or registration of feed. Similarly, a person who sells or imports a fertilizer or supplement would be required to comply with all of the conditions attached to their approval or registration of the fertilizer or supplement. The responsible Minister would be allowed to impose any additional conditions that the Minister considers appropriate, including conditions to prevent harm to human, animal or environmental health. A contravention of the conditions would constitute an offence under the Feeds Act or Fertilizers Act.
The Bill would also amend the Health of Animals Act to enable the Minister to make an interim order that contains any provision that may be set out in the regulations made under the Act. To issue an interim order, the Minister must believe that immediate action is required to deal with a significant risk to human, animal or environmental health and safety. Contraventions of the terms of an interim order would constitute an offence under the Act.
The amendments to the Feeds Act, Fertilizers Act and Health of Animals Act would create new legal obligations, thereby increasing the range of conduct captured by applicable offences under the relevant statutes. As the penalty for these offences include a term of imprisonment, the amendments potentially engage the right to liberty under section 7 of the Charter. In reviewing the measures, the Minister of Justice has not identified any potential inconsistencies with the principles of fundamental justice under section 7. The scope of the offences is tailored to their objective, and upon conviction a judge will have discretion to impose a fit and appropriate sentence.
Amendments to the Pest Control Products Act
Conditions of authorization
The Bill would amend the Pest Control Products Act (PCPA) to empower the Minister of Health to issue, amend or renew an authorization for a specific person to manufacture, handle, store, transport, import, export, distribute, use or dispose of a pest control product. The Bill would also empower the Minister to issue a similar authorization in relation to a pest control product rather than to a specific person. When issuing either type of authorization, the Minister may impose conditions, such as requiring the reporting of information on the sales, health or environmental risks, and value of the pest control product.
The amendments authorizing the reporting of certain information about pest control products potentially engage section 8 of the Charter. The following considerations support the consistency of the amendments with section 8. 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 section 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. Furthermore, any confidential business information or confidential test data would continue to be protected under the PCPA.
The failure to comply with conditions attached to authorizations would constitute an offence under the PCPA. As the penalty for the applicable offences include a term of imprisonment, the amendments potentially engage the right to liberty under section 7 of the Charter. In reviewing the measures, the Minister has not identified any potential inconsistencies with the principles of fundamental justice under section 7. The scope of the offences is tailored to their objective, and upon conviction a judge will have discretion to impose a fit and appropriate sentence.
Power to recall
The Bill would broaden the power to recall pest control products. The amendments would allow the Minister to order the recall of a pest control product if the Minister believes on reasonable grounds that the product endangers human health or safety or the environment. The Minister’s power to recall would also include the ability to impose any appropriate measures, such as to stop the manufacture, import or export of the product. The Bill would create a new hybrid offence for the failure to comply with the recall orders or measures. A hybrid offence allows the prosecutor to choose between proceeding by indictment, where the maximum penalty would be a fine of $500,000 and/or three years imprisonment, or proceeding by way of summary conviction, where the maximum penalty would be a fine of $200,000 and/or six months imprisonment.
As the penalty for the new offence provision includes a term of imprisonment, the offence provision engages the right to liberty under section 7 of the Charter. In reviewing the provision, the Minister of Justice has not identified any potential inconsistencies of the measure with the principles of fundamental justice under section 7. The scope of the offence is tailored to its objective, and upon conviction a judge will have discretion to impose a fit and appropriate sentence.
Amendments to the Coastal Fisheries Protection Act
Contravention of a term or condition of a license or permit
The Bill would amend the Coastal Fisheries Protection Act to create an express statutory requirement to comply with any terms or conditions of a licence or permit under the Act. Anyone who contravenes the requirement would be guilty of an offence punishable on conviction by the existing fine amounts under the Act.
While not punishable by imprisonment, a contravention of the requirement to comply with the terms or conditions of a licence or permit would provide for criminal charges and prosecution that could engage fair trial rights under section 11 of the Charter. However, in reviewing the relevant provisions, the Minister of Justice has not identified any potential inconsistencies between the offence provision and the rights under section 11.
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