Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families

Tabled in the House of Commons, April 29^th, 2019

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-92, An Act respecting First Nations, Inuit and Métis children, youth and families, for consistency 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-92 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 Bill is to affirm the rights and jurisdiction of Indigenous peoples in relation to child and family services and to set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children.

In clause 9, the principles for interpretation and administration of the Act include the best interests of the child, cultural continuity, and substantive equality, all of which are also reflected in the operational provisions of the Act.

In clause 18, the Bill addresses the rights recognized and affirmed by section 35 of the Constitution Act, 1982 in the context of child and family services. The Supreme Court of Canada has emphasized the importance of section 35 to the process of reconciliation. Together with the principles in clause 9, the Bill seeks to advance a purposive approach to section 35 and ultimately to contribute to reconciliation.

Clause 19 of the Bill ensures the application of the Canadian Charter of Rights and Freedoms to an Indigenous governing body in its exercise of jurisdiction in relation to child and family services on behalf of an Indigenous group, community, or people.

Clause 21 of the Bill gives the force of federal law to the laws of an Indigenous group, community, or people that has exercised its legislative authority relating to child and family services. These Indigenous laws would be given the force of federal law either where a coordination agreement has been concluded between the Indigenous governing body and federal and relevant provincial or territorial government(s) or where the Indigenous governing body has made reasonable efforts to enter into a coordination agreement within a one-year period but no agreement has been reached. Clause 22 provides that these Indigenous laws would then prevail over any conflicting federal, provincial, or territorial laws, subject to certain exceptions, such as the Canadian Human Rights Act.

Clauses 27-30 provide for the collection of information respecting child and family services and the individuals to whom those services are provided, and for the disclosure of that information to affected families and communities, including by way of agreements with provinces or territories and Indigenous governing bodies. These agreements would aim to, among other things, ensure that Indigenous children are identified as Indigenous when child and family services are provided in relation to them; support the improvement of those services; and facilitate the disclosure of that information to affected families and communities.

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 race or ethnic origin. 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.

The Bill seeks to promote substantive equality in the provision of child and family services to Indigenous children, consistent with the core values that underpin section 15 of the Charter. In recognizing the need to eliminate the overrepresentation of Indigenous children in child and family services systems, the Bill supports Indigenous peoples in their efforts to administer child and family services that reflect the best interests of the child, cultural continuity, and substantive equality.

While providing such support to Indigenous peoples and not to other groups could be considered a race- or ethnicity-based distinction that engages the protection of subsection 15(1), promoting substantive equality for disadvantaged groups often requires making distinctions. Subsection 15(2) of the Charter clarifies that subsection 15(1) does not preclude laws, programs, or activities that have as their object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race or ethnic origin.

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 from unjustified intrusions upon their privacy, including in relation to their personal information. Authorizing the collection and disclosure of information respecting child and family services and the individuals to whom those services are provided potentially engages section 8 of the Charter. 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 27-30 with section 8 of the Charter in striking a balance between the relevant privacy and state interests. The authorized information gathering and disclosure aims to improve the provision of child and family services to Indigenous children and would facilitate information disclosure to some of Canada’s most vulnerable families and communities affected by such services. Furthermore, the discretion conferred by these clauses on decision-makers — to gather and disclose information and to enter into agreements — would have to be exercised in accordance with the Charter.