Bill C-30: An act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures

Tabled in the House of Commons, May 7, 2021

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-30, An act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures,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-30 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.

The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:

Part 1, Clauses 34 - 38 and 49 - Advanced Life Deferred Annuity

Clauses 34 to 38 and 49 of Part I would amend the Income Tax Act to permit funds from some registered plans to be used to purchase a new type of annuity, called an Advanced Life Deferred Annuity. The current tax rules allow funds from some registered plans to be used to purchase an annuity to provide income in retirement. An annuity provides periodic payments to an individual (called an annuitant) for the life of that individual, in exchange for a lump sum of funds. Generally, payments from an annuity purchased with registered funds must begin by the end of the year in which the annuitant reaches 71 years of age.

An Advanced Life Deferred Annuity will be an annuity for life purchased with a portion of an individual’s registered retirement savings. The commencement of the payments from this annuity may be deferred up until the annuitant reaches 85 years of age. These provisions potentially engage section 15 of the Charter because the tax rules for this annuity require that the annuitant start receiving payments by the time they turn 85.

The following considerations support the consistency of the provisions with section 15 of the Charter. The Advanced Life Deferred Annuity will provide individuals with additional flexibility for retirement planning, as they will have more choice as to when they would like to receive these funds. Payments from this annuity may be deferred up until individuals turn 85, rather than being required to start at age 71 as with other registered retirement plans. This measure will allow individuals to preserve more of their savings for their later years of retirement.

Part 1, Clauses 39, 47 and 48 - Canada’s Anti-Money Laundering/Anti-Terrorism Financial Regime - Tax Measures

Clauses 39, 47 and 48 of Part 1 would amend the Income Tax Act to permit the Canada Revenue Agency (CRA) to revoke an organization’s charitable status when the organization is listed under the Criminal Code for participating in or facilitating terrorist activities (“listed entity”). It would also allow the CRA to refuse, suspend or revoke an organization’s registration as a charity when a person of influence in the organization, such as a director or officer, held a similar position in – or controlled or managed – a listed entity. Finally, it would allow the CRA to temporarily suspend or revoke an organization’s charitable status where the organization makes false statements for the purpose of maintaining registration.

Revocation where organization is a listed entity

The proposed amendment potentially engages freedom of expression under section 2(b) and freedom of association under section 2(d). It may prevent associations that are registered charities from engaging in certain activities that may be expressive in nature – though some of a listed entity’s expressive activities would not be protected under section 2(b) where they involve violence or threats of violence. Many of a listed entity’s associational activities may also not be protected under section 2(d), which does not protect organizations associated with violent activity.

The following considerations support the consistency of the amendment with sections 2(b) and 2(d) of the Charter. Registered charities are provided public support through the income tax system, primarily through the tax credit for charitable donations and through exemption from paying income tax. The proposed amendment is a reasonable mechanism to ensure that public money, through favourable tax treatment, does not support organizations that have been listed as terrorist entities under the Criminal Code because there are reasonable grounds to believe they have been associated with terrorist activity.  The benefits of the amendment outweigh any impact on non-violent expressive or associative activity, which would be narrow in scope and low in value.

Person of influence in the organization

The proposed amendment potentially engages freedom of association under section 2(d). It may prevent associations that are registered charities from freely selecting their own directors, trustees, officers or similar officials.

The following considerations support the consistency of the amendment with section 2(d) of the Charter. The income tax system, through a tax credit for charitable donations and exemption from paying income tax, provides public support to registered charities. The proposed amendment would prevent individuals who have held influential positions in listed entities from infiltrating a registered charity and using that charity’s resources to support terrorist activities. The proposed amendment is a reasonable mechanism to ensure that public money, through favourable tax treatment, does not end up being used to facilitate terrorist activities. The benefits of the amendment outweigh the minor impact on an organization’s ability to appoint its preferred candidates to positions of influence.

Part 4, Division 2 – Bank of Canada Act and Pension Benefits Standards Act, 1985 amendments

Division 2 of Part 4 of the bill would enact subsection 22(1.31) of the Bank of Canada Act to authorize the Bank of Canada to publish certain information about unclaimed amounts in order to facilitate research into them. The information published must not include any person’s date of birth or Social Insurance Number. Division 2 amends subparagraphs 424(2)(a)(i) and 424(2)(b)(i) of the Trust and Loan Companies Act and subparagraphs 438(2)(a)(i) and 438(2)(b)(i) of the Bank Act, respectively, to require financial institutions to provide the Bank of Canada with the name of the person in whose name the deposit or instrument is held as well as their date of birth and Social Insurance Numbers, if they are natural persons. The proposed publication and sharing of information has the potential to engage s. 8 of the Charter.

The following considerations support the consistency of the above noted proposal with section 8 of the Charter. The collection of this information by the Bank of Canada is necessary in order to carry out the Bank’s functions in relation to unclaimed amounts. The purpose of publishing the information is limited to research on unclaimed amounts. Publication on the website is an efficient and effective means for the general public to determine if they have any unclaimed amounts and any privacy intrusion is minimized as the website cannot include social insurance numbers or dates of birth.

Division 2 of Part 4 also would amend the Pension Benefits Standards Act, 1985 to allow the Minister to designate an entity for the purposes of receiving and holding the assets of a pension plan relating to the pension benefit credit of any person who cannot be located, and of disbursing those assets in a lump sum. Proposed subsection 10.3(3.3) would require the administrator of the pension plan, or the trustee or custodian of a pension fund, to provide prescribed information to the entity about the pension benefit credit and about the person who cannot be located. Proposed subsection 10.3(3.4) would allow the designated entity to publish information about the unclaimed assets. This proposed sharing of information has the potential to engage section 8 of the Charter.

The following considerations support the consistency of the above noted proposal with section 8. The provision of information to the entity regarding people who cannot be located, and about unclaimed assets, is necessary in order to allow the entity to carry out its function of disbursing those assets.  The information must relate to the person or assets.  The publication of certain information is necessary in order to locate individuals whose assets have been transferred, so that the assets may be disbursed. This information also is limited to information relating to the assets in question.

Part 4, Division 6 – Justice for Victims of Corrupt Foreign Officials Act amendments

Division 6 of Part 4 of the bill would amend subsection 7(1) of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), which creates a duty to disclose whether reporting entities are in possession or control of property belonging to a listed person. The amendment is intended to reduce the administrative burden on reporting entities under the Act.The amendment would result in entities no longer being required to disclose that they are not in possession or control of property belonging to a listed person that Canada has sanctioned under the Act. In other words, it would remove the monthly “nil” reporting requirement. Reporting entities are still required to disclose, without delay, the existence of property in their possession or control belonging to a listed person. After that, the amendment would change the frequency that reporting entities are required to disclose that they have property in their possession or control from once a month to once every three months. The amendment engages section 8 of the Charter because the reporting obligations could include potentially private information.

The following considerations support the consistency of the amendment with section 8. The amendment would remove the monthly “nil” reporting requirement, which means that reporting entities would no longer be required to disclose that they are not in possession or control of relevant property. It would also change the frequency of reporting to once every three months. The amendment strikes an appropriate balance between privacy interests and the societal interest in ensuring that Canada’s sanctions regime is working as it is intended. The amendment would still provide for sufficient accountability with respect to any property in the possession or control of reporting entities. The amendment is intended to contribute to efforts to enhance the effectiveness and efficiency of Canada’s sanctions regime.

Part 4, Division 7 – Proceeds of Crime (Money Laundering) and Terrorist Financing Act amendments

Division 7 of Part 4 would amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The purpose of this Act is to help detect and deter money laundering and the financing of terrorist activities and to assist in the facilitation of investigations and prosecutions of money laundering and terrorist activity financing offences. The Act requires the implementation of reporting and other requirements for regulated entities, who are financial service providers and those that engage in businesses, professions or activities susceptible to being used for money laundering or terrorist financing. The Act also establishes the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) as the agency responsible for the collection, analysis and disclosure of information to assist in the detection, prevention and deterrence of money laundering and terrorist financing. In addition, FINTRAC also has a regulatory compliance function and is responsible for the overall enforcement of obligations under the Act.

Collection and Disclosure of Information

The amendments would create additional obligations for regulated entities regarding the collection and disclosure of information. The transportation of currency and other monetary instruments would be added as a regulated activity and therefore persons and entities engaged in that business would be subject to the registration, reporting, record-keeping and client identification and verification obligations under the Act. This would include companies providing armoured car services.

The amendments would also make changes to the criteria for “politically exposed persons” and “heads of international organizations”. These are positions that may be vulnerable to money laundering or terrorist financing related activities and regulated entities are required to take specific due diligence measures with respect to their transactions, such as additional record keeping requirements. The changes would clarify that in the category of “politically exposed persons”, the definition of “mayor” can be any person who exercises similar authority to that of a mayor regardless of their title and the population that they represent, and would also add heads of international sports organizations to the list of “heads of international organizations”.

The amendments would also update the categories of “designated information” under the Act to reflect recent regulatory changes to reporting obligations for regulated entities. “Designated information” is information FINTRAC must disclose to listed investigative entities, such as law enforcement and national security agencies, where the applicable legal threshold set out in the Act is met. The changes would require FINTRAC to disclose specified information regarding virtual currency transactions as well as information regarding the beneficial ownership of trusts. This information would include details of transactions and attempted transactions, including identifying information of individuals or entities involved in a transaction. Finally, the amendments also allow FINTRAC to collect information for the purposes of making assessments regarding the expenses for the administration and enforcement of the Act to be paid by regulated entities.

The amendments engage section 8 of the Charter because the collection and disclosure obligations could include potentially private information. The following considerations support the consistency of the amendments with section 8. The proposed changes are targeted updates to ensure relevant entities and individuals who may be vulnerable to money laundering or terrorist financing related activities continue to be included in the Act. The disclosure of information by FINTRAC to investigative agencies listed in the Act remains limited to specified information and is subject to a reasonable suspicion threshold. The information collected and disclosed under the Act is subject to confidentiality obligations. The amendments are not a significant expansion of the authorities in the legislation and are consistent with the balance struck in the Act between privacy interests and the important state objective of detecting and deterring money laundering and the financing of terrorist activities.

Penalties for Non-Compliance

In order to match the current penalties in the Criminal Code, the amendments would also increase the available maximum penalty for all summary conviction offences under the Act from six months to two years less a day for imprisonment. Monetary penalties would generally increase from a maximum fine of $50,000 to $250,000. For more serious offences, such as violations of reporting requirements, the maximum fine on a first offence would be increased from $500,000 to $1,000,000.

The amendments have the potential to engage section 12 of the Charter, which protects against cruel and unusual treatment or punishment. In the context of sentencing, section 12 prohibits grossly disproportionate punishments. The application of the proposed changes may result in the imposition of a higher sentence for an offender who commits an offence after the coming into force of the provisions as compared to an offender who commits the same offence and is sentenced prior to the amendments coming into force.

The following factors support the consistency of the measure with the Charter. As noted above, section 12 of the Charter protects against punishment or treatment that is grossly disproportionate in the circumstances. Higher maximum penalties are unlikely to breach section 12 because courts retain the necessary judicial discretion to impose proportionate sentences. While a disproportionate sentence in an individual case could be corrected on appeal, the validity of the underlying sentencing provision would not be in question.

Part 4, Division 8 – Retail Payment Activities Act

Division 8 of Part 4 would enact the Retail Payment Activities Act to establish an oversight framework for retail payment activities, and would amend other acts.

Collection, Disclosure and Inspection Powers

The Retail Payment Activities Act would require payment service providers to be registered with the Bank of Canada (Bank) before performing any retail payment activities and to submit an annual report to the Bank that sets out prescribed information. Payment service providers must give all assistance that is reasonably required, including any documents or information, to enable the Bank to carry out the objects of the Bill. Bill C-30 would also authorize the Bank to conduct special audits to ensure compliance with the Act. Persons authorized by the Bank may enter and search places, other than a dwelling-house, and examine and make copies of documents. Authorized persons may only enter a dwelling-house with a warrant, unless the occupant consents. Because the collection, disclosure and inspection powers have the potential to interfere with privacy interests, they may engage section 8 of the Charter.

The following considerations support the consistency of these new powers with section 8 of the Charter. These powers are necessary for the Bank to carry out its functions in relation to payment service providers. The collection, disclosure and inspection powers would be available for the regulatory purpose of verifying compliance and preventing non-compliance with the Act. They would not be available for the purpose of advancing a criminal investigation. In addition, a warrant would be required to enter a private dwelling-house. The Bank is required to treat as confidential any information received under the Act and is only permitted to disclose it in limited circumstances, including making the information subject to confidentiality obligations. As such, the proposed powers are similar to regulatory inspection and requirement powers that have been upheld in other contexts.

Authority to Disclose Registration Applications for National Security Purposes

The Retail Payments Activities Act would also require the Bank to provide the applications for registration that have been completed to the Minister of Finance or designated persons or entities for reasons related to national security. The Minister may direct the Bank to refuse to register or to revoke the registration of a provider for reasons related to national security or for non-compliance with the Minister’s order, undertakings or conditions. The Minister may also designate individuals for the purpose of verifying compliance with the Minister’s undertakings or conditions. Designated persons may enter and search premises, other than dwelling-houses, and examine and make copies of documents.

The following considerations support the consistency of these powers with section 8 of the Charter. The purpose for which such information may be disclosed is compelling, namely to enable the government to address risks posed to national security by payment service providers. Information disclosed by the Minister or a designated person or entity for national security-related reasons must be treated as confidential. Payment service providers must be notified of the Minister’s decision to review the application for registration for national security-related reasons. They must also be provided an opportunity to request a review of that decision and to make representations. The authorities strike an appropriate balance between privacy interests and the purpose of addressing risks to national security.

Amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA)

In addition, Division 8 of Part 4 would amend the PCMLTFA by adding a new provision authorizing the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) to notify the Bank if a payment service provider has been found guilty of contravening certain provisions of the PCMLTFA, if they have been served with a notice of decision or been imposed a penalty, or if they are not registered under the PCMLTFA. It would further amend the PCMLTFA to allow FINTRAC to disclose to the Bank information regarding a payment service provider if that information is relevant to the Bank’s objects under the Retail Payments Activities Act.

The amendments potentially engage section 8 of the Charter, as they may involve the disclosure of private information. The following considerations support the consistency of these amendments with section 8. The amendments do not represent a significant expansion of the authorities already included in the PCMLTFA and are consistent with the balance struck in that Act between privacy interests and the important state objective of detecting and deterring money laundering and the financing of terrorist activities. Information would be disclosed to the Bank where such information is relevant to carrying out the Bank’s objects under the Retail Payments Activities Act. The information disclosed would also exclude any information which would directly or indirectly identify a client of the reporting payment service provider. The Bank may not further disclose information received from FINTRAC without FINTRAC’s consent.

Amendments to the Financial Consumer Agency of Canada Act, the Payment Card Networks Act and the Canada Deposit Insurance Corporation Act

Finally, Division 8 of Part 4 would amend the Financial Consumer Agency of Canada Act, the Payment Card Networks Act and the Canada Deposit Insurance Corporation Act to allow the Commissioner of the Financial Consumer Agency of Canada (Commissioner) or the Corporation, as the case may be, to disclose information to Governor of the Bank of Canada for the purpose of carrying out the Bank’s objects under the Retail Payments Activities Act. Information may only be disclosed if the Commissioner or Corporation are satisfied that it will treated as confidential.

The following considerations support the consistency of these amendments with section 8 of the Charter. These amendments do not grant any new authority to collect information, but would be limited to information that is already in the government’s possession. Payment service providers would be aware of the compliance obligations that exist under these statutes. These powers would be used to carry out the Bank’s objects under the Retail Payments Activities Act. Information may only be disclosed if the Commissioner or Corporation are satisfied that it would treated confidentially.

Part 4, Division 17 – Telecommunications Act amendments

Division 17 of Part 4 would amend the Telecommunications Act to provide for the disclosure of information submitted to the Canadian Radio-television and Telecommunications Commission in the course of proceedings relating to the allocation of funding under section 46.5 of the Act to expand access to telecommunication services in underserved areas. The provisions would require disclosure of such information to federal departments and agencies upon request, where the minister or agency is authorized to provide financial support for access to telecommunication services in underserved areas, and considers the information to be relevant in coordinating such support. The provisions would also provide that the Canadian Radio-television and Telecommunications Commission may disclose such information to provincial departments and agencies upon request, where the minister or agency is authorized to provide financial support for access to telecommunication services in underserved areas, and considers the information to be relevant in coordinating such support. Further, the provisions would require the Canadian Radio-television and Telecommunications Commission to provide the Minister of Industry with information concerning the status of applications received under section 46.5 in relation to the allocation of funding to expand access to telecommunications services in underserved areas. These disclosure powers have the potential to interfere with privacy interests and to engage section 8 of the Charter.

The following considerations support the consistency of these powers with the Charter. The disclosure of information would be available for regulatory, not penal purposes, in which privacy expectations are generally diminished. In particular, the information that may be shared is voluntarily provided by applicants to the Canadian Radio-television and Telecommunications Commission for the purposes of obtaining funding, and any sharing is limited to information that is relevant to the government objective of coordinating telecommunications services in underserved areas. Further, any subsequent use by receiving departments and agencies is similarly limited, and receiving departments and agencies must treat the information as confidential. As such, the proposed powers are broadly analogous to similar powers to disclose relevant information for regulatory or administrative purposes that have been upheld as reasonable under section 8.

Part 4, Division 20 - Canada - United States - Mexico Agreement Implementation Act amendments

Division 20 of Part 4 would amend section 16 of the Canada - United States - Mexico Agreement Implementation Act to specify that the Minister designated under the Act may, in concurrence with the Minister of Finance, appoint dispute resolution panelists and roster members in accordance with Chapter 10 the Agreement. The purpose of the amendment is to ensure that the Minister of Finance shares the responsibility for the appointment of panelists and roster members.

These provisions re-enact distinctions between citizens of countries that are parties to the Agreement, and all other persons. These distinctions have the potential to engage section 15 of the Charter. The following considerations support the consistency of the provisions with section 15. For the purpose of international trade agreements, citizenship or nationality is used as a mutually recognized, objective criterion to identify persons who may serve as panelists for dispute resolution processes. Naming citizens of the countries to the agreement to dispute resolution rosters and panels, and in some situations of disagreement naming persons who are citizens of neither country, raises no arbitrary distinction but rather is fundamental to the nature of international trade agreements.

Part 4, Division 21 – Department of Employment and Social Development Act amendments (Social Security Tribunal)

Division 21 of Part 4would amend Part 5 of the Department of Employment and Social Development Act to make certain reforms to the Social Security Tribunal, including giving the Governor in Council the authority to set out in regulations the circumstances for the Social Security Tribunal to hold hearings in private.

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 like the Social Security Tribunal. The authority to allow for hearings held in private potentially engages section 2(b) of the Charter.

The following considerations support the consistency of the above noted proposal with section 2(b). The Department of Employment and Social Development Act currently allows that a Tribunal hearing be held in private if the Tribunal is of the opinion that the circumstances of the case require it. The proposed amendments would enable the Governor in Council to prescribe in regulations the circumstances for holding 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 Tribunal 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 Tribunal, whose information is often of a highly sensitive nature (e.g., medical reports). Any regulations setting out the circumstances for holding hearings in private must themselves comply with the Charter.

Part 4, Division 26 – Judges Act amendments

Federally appointed judges are entitled to a pension on retirement after spending a minimum number of years in office as judges. Division 26 of Part 4 proposes amendments to the Judges Act to change to how a judge’s entitlement to a pension is calculated in the event the Canadian Judicial Council recommends that the judge be removed from office.

The measures would suspend the counting of a judge’s years in office for the purposes of calculating their entitlement to a pension as of the date that the Canadian Judicial Council issues a report recommending that the judge be removed from office. The proposed amendments would allow for the judge’s years in office to be calculated as if the counting had never been suspended if the Canadian Judicial Council’s recommendation is rejected by the Minister, by Parliament, or on judicial review by a court whose decision is final. Judges’ own pension contribution obligations would also be aligned with this approach. These changes would only apply to judges who become subject to a recommendation for removal after the date on which the amendments come into force, and not before that time.

The amendments are intended to uphold public confidence in the integrity of the federally appointed judiciary.

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 requires that courts be free to make decisions without interference, including interference with the financial security of judges. This is part of the unwritten constitutional principle of judicial independence. Suspending the counting of a judge’s years in office for the purposes of calculating their entitlement to a pension has the potential to engage section 11(d), since it may affect whether a financial benefit is available to the judge when they retire.

The following considerations support the consistency of the proposed measures with the principle of judicial independence as it is protected by section 11(d) of the Charter. The proposed amendments are based on recommendations made by the Judicial Compensation and Benefits Commission. The Judicial Compensation and Benefits Commission is an independent and objective body that reviews all matters potentially impacting the compensation and benefits of federally appointed judges in order to help protect judges against interference with their financial security. Judges whose pension calculation is suspended would continue to receive salary increases and would not be required to contribute towards their pension during this period. If the recommendation to remove a judge is rejected, the counting of a judge’s years in office would resume as if it had never been interrupted. The amendments would thus preserve the financial security of judges and the independence of the judiciary.

Part 4, Division 32 – Old Age Security Act amendment

Division 32 of Part 4 would amend the Old Age Security Act toincrease the Old Age Security pension for individuals aged 75 years and older by 10 percent. This increase will begin in July 2022. The intention of these amendments is to provide additional financial support to seniors over the age of 75. Providing a benefit targeted to a group defined by age (seniors 75 years and older) and not to younger Old Age Security recipients could be considered a distinction that engages the protection of equality rights under section 15 of the Charter. However, courts have recognized that age-based distinctions may be necessary in complex benefit schemes, and this benefit is purely financial. These considerations support the consistency of the amendments with section 15 of the Charter.

Part 4, Division 33 – Public Service Employment Act amendments

Division 33 of Part 4 proposes a number of amendments to the Public Service Employment Act with a view to reducing and removing barriers to inclusion and diversity in the public service staffing process and enhancing the Act’s promotion of inclusion and diversity in the public service.

Division 33 would amend the preamble to the Act in order to emphasize the ongoing pursuit of diversity. It would add a new subsection 2(5), which would apply to investigations, to clarify that references to errors, omissions or improper conduct include ones that stem from biases or barriers that hinder persons who belong to an equity-seeking group. It would also add a new subsection 17(2), clarifying that the Public Service Commission may conduct audits to identify such biases or barriers. Amendments would require the employer, in the process of establishing or reviewing qualification standards, to conduct an evaluation to identify biases or barriers that the standard may include or create for persons belonging to any equity-seeking group, as well as to take reasonable steps to remove such biases or barriers, prevent them from arising, or mitigate their impact. It would also add a new subsection 36(2), which would impose similar obligations with respect to assessment methods. Finally, it would amend paragraph 39(1)(c) to extend the existing preference for Canadian citizens to permanent residents.

The following considerations support Division 33’s potential positive effects on equality rights under s. 15 of the Charter. By emphasizing diversity and inclusion, and explicitly addressing systemic bias and barriers, the amendment to the preamble, the new subsection 2(5), and the new language relating to audits would reinforce the duty on officials to consider these factors in performing their functions under the Act. The new requirements relating to qualification standards and assessment methods aim to ensure that officials proactively turn their minds to issues of systemic bias and barriers, which should serve to enhance compliance with section 15 and promote substantive equality, which courts have described as the animating norm of section 15 jurisprudence. Although the Supreme Court of Canada has upheld the citizenship preference under the Public Service Employment Act as a justified limit under s. 1 of the Charter, it is still open to Parliament to expand this preference to include both citizens and permanent residents.  This promotes the core aims and values that underpin section 15, by contributing to substantive equality for permanent residents.

Part 4, Division 37 – Canada Elections Act amendments

Subsection 91(1) of the Canada Elections Act prohibits persons or entities from making or publishing certain false statements about candidates and other key political actors during an election period with the intention of affecting the results of the election. Paragraphs 486(3)(c) and 486(4)(a) make contravening subsection 91(1) an offence. Division 37 of Part 4 would amend these paragraphs to clarify that in order to be found guilty of this offence, the person or entity making or publishing the statement must know that the statement is false. These provisions engage the right to freedom of expression in section 2(b) of the Charter, which has been broadly interpreted and includes protection for false statements.

The following considerations support the consistency of the proposed amendments with section 2(b) of the Charter. The provisions protect the integrity of the Canadian electoral process against the threat of false information. In Canadian Constitution Foundation v. Canada (Attorney General), 2021 ONSC 1224, the Ontario Superior Court of Justice found that subsection 91(1) was not a justifiable limit on freedom of expression because it did not explicitly require proof that the person or entity knew that the statement in question was false. The proposed amendments respond to this decision by explicitly including knowledge as an element of the offence. By clearly narrowing the provisions to capture only statements that are deliberately false, the proposed amendments ensure the provisions are carefully tailored to achieve their objective.