5. Clause by Clause Document

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Part 5 – Division 1 – Clause-by-Clause: Provisions Relating to the Canadian Pacific Railway Company (CPR) Tax Exemption

Clause 174(1)

This clause deems clause 16 of the 1880 contract between Canada and CPR’s founders (1880 Contract), annexed to An Act respecting the Canadian Pacific Railway (1881), which contains the tax exemption claimed by CPR, to be of no force or effect as of August 29, 1966.

Clause 174(2)

This clause extinguishes, as of August 29, 1966, all obligations and liabilities of Canada and all rights and privileges of CPR under clause 16 arising out of or acquired under the 1880 Contract, any Act or Parliament or any instrument made in the exercise of a power conferred under an Act of Parliament.

Clause 175

This section provides that no action or other proceeding based on, or related to, clause 16 of the 1880 Contract may be brought or continued by any party against Canada.

Clause 176

This section provides that no one is entitled to any compensation from Canada in connection with the entry into force of section 1, referenced above.

Part 5 – Division 21 – Clause-by-Clause: Amendments to the Criminal Code (Prohibition – Promotion of Antisemitism)

Clause 332(1)

This clause proposes to amend section 319 of the Criminal Code by adding a new subsection (2.1) to create a new offence prohibiting anyone from wilfully promoting antisemitism, by condoning, denying or downplaying the Holocaust through statements communicated other than in private conversation. The maximum penalty would be imprisonment for a term not exceeding two years, on indictment or two years less a day imprisonment and/or a maximum fine of $5,000 on summary conviction.

Although the Criminal Code prohibits the wilful (intentional) promotion of hatred against certain identifiable groups, including those identifiable on the basis of religion, ethnic and national origin, and race, it does not currently criminalize the wilful promotion of “antisemitism”.

Clause 332(2)

This clause would amend section 319 of the Criminal Code to add a new subsection (3.1) to ensure that the existing defences under subsection 319(3) would be available for the new offence. These defences are: the defence of truth; the defence of relevance to any subject of public interest; the defence of expressing an opinion in good faith on a religious subject; and the defence of good faith identification of matters producing or tending to produce feelings of antisemitism towards Jews, for the purpose of their removal.

This clause would also modify subsections 319(4) to (6) such that these existing provisions relating to forfeiture of things used in relation to the commission of the proposed offence and Attorney General consent would apply to the new offence.

Clause 332(3)

The amendment would also define “Holocaust” in subsection 319(7) of the Criminal Code as “the planned and deliberate state-sponsored persecution and annihilation of European Jewry by the Nazis and their collaborators from 1933 to 1945.”

Part 5 – Division 22 – Clause-by-Clause: Federally Appointed Judges and Prothonotaries

Clause 1

This clause amends the definitions of “age of retirement” and “survivor” in section 2 of the Judges Act to delete the phrase “of the Federal Court”. This clause also adds the definition “prothonotary” to section 2.

Clause 2

This clause amends section 2.1 of the Judges Act to delete the phrase “of the Federal Court” and to change “make” to “made” since the time for making the election referred to in subsection 2.1(2) is past.

Clause 3

This clause amends the heading of Part I of the Judges Act to add a reference to prothonotaries.

Clause 4

This clause amends section 9 of the Judges Act, which establishes the salaries of the judges of the Supreme Court of Canada.

Clause 5

This clause amends section 10 of the Judges Act, which establishes the salaries of the judges of the Federal Court of Appeal and Federal Court.

Clause 6

This clause amends section 10.2 of the Judges Act, which establishes the salary of the Chief Justice of the Court Martial Appeal Court of Canada.

Clause 7

This clause amends section 11 of the Judges Act, which establishes the salaries of the judges of the Tax Court of Canada.

Clause 8

This clause adds a new section 11.1 to the Judges Act to establish the salaries of the prothonotaries of the Tax Court of Canada.

Clause 9

This clause amends section 12 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Superior Court of Justice of Ontario. This clause also amends paragraph 12(d) to increase the complement of the Superior Court of Justice by nine judges.

Clause 10

This clause amends section 13 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Superior Court of Quebec. This clause also amends paragraph 13(b) to increase the complement of the Court of Appeal by one judge.

Clause 11

This clause amends section 14 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Supreme Court of Nova Scotia.

Clause 12

This clause amends section 15 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Court of Queen’s Bench of New Brunswick. This clause also amends paragraph 15(c) to authorize the appointment of a new Associate Chief Justice for the Court of Queen’s Bench, and amends paragraph 15(d) to decrease the number of judges by one to reflect the conversion of a position into an associate chief justice position.

Clause 13

This clause amends section 16 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Court of Queen’s Bench for Manitoba.

Clause 14

This clause amends section 17 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Supreme Court of British Columbia. This clause also amends paragraph 17(d) to increase the complement of the Supreme Court by three judges.

Clause 15

This clause amends section 18 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Supreme Court of Prince Edward Island.

Clause 16

This clause amends section 19 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Court of Queen’s Bench for Saskatchewan. This clause also amends paragraph 19(c) to authorize the appointment of a new Associate Chief Justice for the Court of Queen’s Bench and amends paragraph 19(d) to increase the complement of the Court of Queen’s Bench by two judges.

Clause 17

This clause amends section 20 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Court of Queen’s Bench of Alberta. This clause also amends paragraph 20(d) to increase the complement of the Court of Queen’s Bench by two judges.

Clause 18

This clause amends section 21 of the Judges Act, which establishes the salaries of the judges of the Court of Appeal and Supreme Court of Newfoundland and Labrador.

Clause 19

This clause amends subsection 22(1) of the Judges Act, which establishes the salaries of the judges of the Supreme Court of Yukon. This clause also amends subsection 22(2), which establishes the salaries of the judges of the Supreme Court of the Northwest Territories, and subsection 22(2.1), which establishes the salaries of the judges of the Nunavut Court of Justice. This clause also amends paragraph 22(2.1)(b) to increase the complement of the Nunavut Court of Justice by one judge.

Clause 20

This clause amends subsection 25(1) of the Judges Act to set the effective date of the salaries established in sections 9 to 22 as April 1, 2020. This clause also amends subsection 25(2) to exclude the new section 11.1 of the Judges Act from the indexation calculation, and to provide that the ongoing effective date for annual salary indexation is April 1, 2021.

Clause 21

This clause amends section 26.11 of the Judges Act to delete the phrase “of the Federal Court”.

Clause 22

This clause amends subsections 26.4(1) and 26.4(2) of the Judges Act to add references to the prothonotaries of the Tax Court of Canada.

Clause 23

This clause amends the heading before section 27 of the English version of the Judges Act to “Special and Representational Allowances” to better align with the French heading.

Clause 24

This clause amends subsection 27(1) of the Judges Act to increase the annual incidental allowance for which judges are eligible from $5000 to $7500, effective April 1, 2020. This clause also amends subsection 27(1.1) to increase the annual incidental allowance for which prothonotaries are eligible from $3000 to $7500, effective April 1, 2020. This clause also creates a new subsection 27(2.1) to establish a new medical assistance allowance for which judges in receipt of a northern allowance under subsection 27(2) are eligible under certain conditions. This clause also amends subsection 27(6) to increase the annual representational allowance for which judges of the Supreme Court of Canada and judges in leadership positions in other superior courts are eligible, effective April 1, 2020.

Clause 25

This clause amends the heading above section 28 of the Judges Act to refer to “Supernumerary Office”.

Clause 26

This clause adds a new section 30 to the Judges Act to establish a supernumerary office for prothonotaries; define the conditions of eligibility; and clarify the duties, salary, and notice of election of a supernumerary prothonotary.

Clause 27

This clause amends subsection 42(4) of the Judges Act to delete the phrase “of the Federal Court”.

Clause 28

This clause amends subsection 43.1(6) of the Judges Act to delete the phrase “of the Federal Court”.

Clause 29

This clause amends subsection 50(5) of the Judges Act to delete the phrase “of the Federal Court”.

Clause 30

This clause amends subsection 69(1)(a) of the Judges Act to delete the phrase “of the Federal Court”.

Clause 31

This clause amends section 71 of the Judges Act to delete the phrase “of the Federal Court”.

Clause 32

This clause amends the definition of federal board, commission or other tribunal to add a reference to prothonotaries of the Tax Court of Canada.

Clause 33

This clause amends subsection 5(1) of the Federal Courts Act to increase the complement of the Federal Court of Appeal by one judge.

Clause 34

This clause amends section 12 of the Federal Courts Act by adding three new subsections: subsection 12(2) to create a regulation-making power by which the Governor in Council may set the maximum number of Federal Court prothonotaries; subsection 12(2.1) to create the office of supernumerary prothonotary of the Federal Court; and subsection 12(5) to create a regulation-making power by which the Governor in Council may define the workload of supernumerary prothonotaries.

Clause 35

This clause amends paragraph 4(1)(c) of the English version and subsection 4(1) of the French version of the Tax Court of Canada Act to increase the complement of the Tax Court of Canada by one judge.

Clause 36

This clause adds a new section 11.1 to the Tax Court of Canada Act in order to establish the office prothonotary of the Tax Court of Canada. The new section also: creates a regulation-making power by which the Governor in Council may set the maximum number of prothonotaries; creates a the office of supernumerary prothonotary of the Tax Court of Canada; clarifies the powers and duties of prothonotaries; defines the salary, allowances, and annuity of prothonotaries as provided in the Judges Act; creates a regulation-making power by which the Governor in Council may define the workload of supernumerary prothonotaries; provides that they have the same immunity from liability as a Tax Court of Canada judge; establishes that they are appointed on good behaviour and can be removed by the Governor in Council for cause; and provides that prothonotaries hold office until the age of 75.

Clause 37

This clause adds a new paragraph to subsection 20(1.1) of the Tax Court of Canada Act to give the Tax Court of Canada rules committee the authority to make rules in respect of the jurisdiction of Tax Court of Canada prothonotaries.

Clause 38

This clause amends paragraph 22(1)(c) of the Tax Court of Canada Act to add a prothonotary as a member of the Tax Court of Canada rules committee.

Clause 39

This clause amends multiple Acts of Parliament (specifically, the Federal Courts Act, the Garnishment, Attachment, and Pension Diversion Act, the Judges Act, the Tax Court of Canada Act, and the Expenditure Restraint Act) to change the English title “prothonotary” to “associate judge” (in French: “protonotaire” to “juge adjoint”). These amendments will come into force at a date to be set by the Governor in Council.

Clause 40

This clause is a transitional provision to confirm that the change reflected in Clause 39 is a change in title only. Any prothonotary or supernumerary prothonotary who is in office on the date Clause 39 comes into force continues in office as an associate judge. This clause will come into force at a date to be set by the Governor in Council.

Clause 41

This clause is a transitional provision to confirm that the change in title reflected in Clause 39 is a change in title only and does not affect the time in office by an individual appointed as a prothonotary, which will continue uninterrupted under the new title “associate judge”. This clause will come into force at a date to be set by the Governor in Council.

Clause 42

This clause is a transitional provision to confirm that the Tax Court of Canada rules committee may continue its work without a prothonotary member (as established in Clause **) until a Tax Court of Canada prothonotary is appointed.

Clause 43

This clause contains coordinating amendments to ensure that this Bill coordinates accurately with the amendments to the Judges Act proposed by Bill C-9, introduced in Parliament on December 16, 2021, in the event that Bill C-9 receives Royal Assent. The coordinating amendments will ensure that the Judges Act at each point in time accurately reflects this Bill’s objectives of creating the office of prothonotary of the Tax Court of Canada and changing the title of “prothonotary” to “associate judge”.

Clause 44

This clause confirms that the clauses relating to the change in title from prothonotary to associate judge (clauses 39, 40, and 41) will come into force at a date to be set by the Governor in Council.