Bill C-40: An Act respecting production, procurement and investment in relation to national defence and national security

Tabled in the House of Commons, November 03, 2026

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-40, An Act respecting production, procurement and investment in relation to national defence and national security, 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-40 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

Part 1 of the bill enacts An Act respecting production, procurement and investment in relation to national defence and national security, which establishes the Canadian Corporation for Defence Investment, a corporation whose mandate is to, among other things, carry out activities related to production, procurement and investment in respect of national defence for the benefit of the Canadian Forces or the Department of National Defence or for associated governments such as other members of the Commonwealth like the United Kingdom.

Part 2 amends the Defence Production Act to, in part, extend the application of that Act to supplies and projects related to national security and to services related to national defence and national security. The amendments would also provide the Minister of Public Works and Government Services with the authority to acquire supplies and services related to national defence and national security that are required for the purposes of a department, board or agency of the Government of Canada, subject to certain exceptions.

Right to liberty (section 7)

Part 2 of Bill C-40 would amend, by re-enacting, subsection 45(2) of the Defence Production Act. This provision makes it an offence to contravene any provision of the Defence Production Act other than section 27, which relates to the competitive procurement process, or any provision of the regulations.

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. Since this offence is punishable by imprisonment, it engages the right to liberty and must be consistent with the principles of fundamental justice in order to be consistent with section 7 of the Charter.

The following considerations support the consistency of this provision with the Charter. The offence gives practical effect to the provisions of the Act and the regulations, by helping to ensure compliance with them. The Minister has not identified any potential inconsistencies with the principles of fundamental justice.

Right against unreasonable search and seizure (section 8)

Part 2 of Bill C-40 gives the Minister the authority to require a person to provide information about the defence supplies and services they produce, handle or plan to acquire or provide, their sources of supply, and any facilities or accommodation available or adaptable for producing, storing, or supporting defence-related activities. The Bill also authorizes government departments to assist the Minister in obtaining information on defence supplies and services.

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 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.

Since these provisions would authorize the collection of information that could attract a reasonable expectation of privacy, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of the offences with section 8 of the Charter. 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.