Department of Justice Canada Minister's Transition Book

Hot Issues

Justice Lead

Legal Aid

The Legal Aid Program supports criminal legal aid in the provinces ($127.3 million in 2019–20), criminal and civil legal aid in the territories ($5 million in 2019–20), and immigration and refugee legal aid in the six provinces (British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador) that provide these services ($54.5 million in 2019–20).

Stakeholders, including provinces, territories, Parliamentarians and the legal community, have repeatedly called upon the federal government to make greater investments in criminal legal aid and to provide dedicated contribution funding to the provinces for civil legal aid.

In August 2019, in response to the Government of Ontario’s decision to disallow the use of provincial funds for immigrant and refugee legal aid, the federal government announced an investment of an additional $26.8 million in immigrant and refugee legal aid for the 2019–20 fiscal year, to cover 100% of the costs in the six participating provinces.

Key Messages

United States v. Meng

On December 1, 2018, Wanzhou Meng was provisionally arrested at the request of the US pursuant to theCanada-US extradition treaty. Ms. Meng, a Chinese national, is the daughter of the founder of Huawei telecommunications and is a senior executive of the company. ‎The alleged fraud relates to her conduct as an officer of the company.      [Redacted]     .

Following a bail hearing in December 2018, the British Columbia Supreme Court released Ms. Meng on a number of strict conditions including electronic monitoring. The US formally requested Ms. Meng’s extradition on January 28, 2019. An Authority to Proceed was issued by the Minister’s delegate on February 28, 2019. A disclosure motion was recently heard by Justice Holmes of the British Columbia Supreme Court and further evidence and submissions were filed on October 9 and 16, 2019. It is anticipated that Justice Holmes will render her decision on this motion in several weeks.

The following dates have been set aside for pre-hearing applications as well as the extradition hearing:

Ms. Meng has filed a civil action against Canada and several Canada Border Services Agency and RCMP officers involved in her arrest. The civil action is separate from the extradition proceeding.

Key Messages

Quebec’s Bill 21

Quebec’s Bill 21, An Act respecting the laicity of the State, was adopted by the National Assembly of Quebec, received Royal Assent and came into force on June 16, 2019. The law prohibits certain public officials in positions of authority, including teachers, police officers, prison guards, prosecutors and judges, from wearing a religious symbol in the course of their duties. The law also requires public sector officials who provide services to the public and individuals receiving such services to have their faces uncovered. The law includes a declaration that it shall operate notwithstanding the Canadian Charter of Rights and Freedoms.

The law is at this time subject to two legal challenges before the Quebec courts raising constitutional and other issues. The Government of Canada currently has no role in this litigation.

Key Messages

Judicial Appointments

The Minister of Justice is responsible for recommending the appointment of judges to all superior courts (these are provincial/territorial superior trial courts and courts of appeal, as well as the Federal Court of Appeal, Federal Court, and Tax Court of Canada).

The appointment process is administered by the Commissioner for Federal Judicial Affairs, who supports the 17 Judicial Advisory Committees (JACs) that assess candidates and provide non-binding recommendations to the Minister. This appointment process was the focus of significant reforms in October 2016. These reforms were well received, but some stakeholders have suggested further refinements to the system to increase transparency, fairness, and the speed with which appointments can be made.

As of October 1, 2019, there were 47 vacancies overall (out of a total of approximately 1,200 federally appointed judges); the Federal Court (7) and the Ontario Superior Court of Justice (14) currently have the highest number of vacancies. High vacancy rates have been linked with reports of delays in court proceedings. Making timely appointments, including ensuring that all JACs are up and running, will prevent backlogs and resulting vacancies.

Key Messages

Conversion Therapy

Conversion therapy aims to change the sexual orientation of LGBTQ2 individuals to heterosexual; eliminate or reduce sexual attraction or behaviours between persons of the same sex; or change an individual’s gender identity or gender expression. The practice is known to cause harm to those who have been subjected to it. Medical and psychological associations have denounced the practice and certain provinces have banned health care providers from engaging in it with minors. Some existing Criminal Code offences could apply to conversion therapy, depending on the circumstances of a given case.

Key Messages

Impaired Driving

Although alcohol-impaired driving has been an offence since 1921 and drug-impaired driving since 1925, it remains the leading criminal cause of death and injury in Canada. Former Bill C–46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, significantly amended the Criminal Code impaired driving regime.

The Act simplified, modernized and strengthened the impaired driving regime and included reforms such as mandatory alcohol screening at the roadside, facilitation of proof of blood alcohol concentration, new drug-impaired driving offences, and the authorization to use new drug screening tools. A number of these reforms are currently being challenged under the Canadian Charter of Rights and Freedoms, and some continue to attract public attention, in particular mandatory alcohol screening at the roadside.

This area has long been the most litigated area of criminal law. Many of the measures put forward are intended to increase efficiencies in the criminal justice system to reduce delays in the courts. However, an increase in initial litigation following the implementation of some of the new reforms, such as mandatory alcohol screening, was expected.

There is a strong Parliamentary Record, including the Charter Statement to support the recent reforms. Department officials also continue to support the provinces and territories, which are primarily responsible for the litigation, [redacted]. Once the initial litigation on the new reforms has concluded, it is expected that the burden of impaired driving on the court system will be diminished.

Key Messages

Shared Lead

Medical Assistance in Dying

(Shared responsibilities with Health Canada)

On September 11, 2019, the Quebec Superior Court ruled that the medical assistance in dying eligibility criterion requiring a reasonably foreseeable natural death is contrary to section 7 and 15 of the Canadian Charter of Rights and Freedoms and is not justified under section 1 of the Charter. The “end of life” criterion from the Government of Quebec’s law was also declared invalid. The declaration of invalidity was suspended for six months (until March 11, 2020). The decision only has effect in Quebec.

Neither the Attorney General of Canada nor the Attorney General of Quebec appealed the decision as of now.

Key Messages

McLellan Report

(Shared responsibilities with Privy Council Office)

At the request of the Prime Minister, the Honourable Anne McLellan reviewed the roles of the Minister of Justice and Attorney General of Canada. Her report was made public on August 14, 2019. Ms. McLellan recommended that the current structure of the Department of Justice remain as it is, and concluded that our system benefits from the fusion of roles of the Minister of Justice and Attorney General of Canada. Ms. McLellan made eight recommendations to address concerns about the two roles being held by the same individual.

Key Messages

Trans Mountain Expansion Project

(Shared responsibilities with natural Resources, Environment and Climate Change, Fisheries and Oceans, Crown-Indigenous Relations and Northern Affairs and Finance)

The Trans Mountain Expansion Project (TMX) is a proposal by Trans Mountain Corporation, a subsidiary of Kinder Morgan, to twin the existing Trans Mountain oil pipeline and expand the Westridge Marine Terminal. The existing pipeline, built in 1953, runs from Edmonton, Alberta, to the Westridge Marine Terminal and the Chevron refinery in Burnaby, British Columbia. Following the August 30, 2018 decision of the Federal Court of Appeal that quashed the federal approval of the TMX project, the Government of Canada instructed the National Energy Board to reconsider its recommendation and take into account project-related marine shipping. On June 18, 2019, following the consultation process with Indigenous communities and the National Energy Board reconsideration, the Governor in Council decided to approve the TMX project, subject to 156 binding conditions.

Five applications for judicial review filed by Indigenous groups are proceeding in the Federal Court of Appeal challenging the June 18, 2019 Governor-in-Council decision approving the project. The hearing will be the week of December 16-20, 2019.

Key Messages

Carbon Pricing

(Shared responsibilities with Environment and Climate Change and Finance)

In June 2018, Parliament adopted the Greenhouse Gas Pollution Pricing Act to create minimum national standards for greenhouse gas (GHG) emissions pricing. The Act establishes a federal system applying as a backstop in jurisdictions that request it or that do not have a sufficiently stringent GHG pricing system. The federal government assesses provincial or territorial GHG systems annually for stringency and then decides to apply or suspend the application of the Act in those provinces or territories. The Act includes two complementary pricing mechanisms: 1) a charge on fossil fuels produced, delivered or used in the provinces and territories in question; and 2) a regulatory system prescribing emissions limits for large industrial facilities of the provinces or territories in question.

Four provinces have challenged the Act in the courts. Saskatchewan, Ontario and Alberta referred questions to their respective Court of Appeal on the validity of the Act, while Manitoba filed an application for judicial review of the validity of the regulations taken under the Act. In all four cases, the Attorney General of Canada is defending the constitutionality of the Act and the ability of Parliament under the constitutional division of powers to make laws for GHG emissions. In particular, Canada’s position is that the Act is constitutionally valid pursuant to the federal authority to make laws for the peace, order and good government of Canada.

On May 3, 2019, and June 18, 2019, the Courts of Appeal of Saskatchewan and Ontario respectively held that the Act is constitutional in whole. Both provinces appealed these decisions. On March 17 and 18, 2020, the Supreme Court of Canada is scheduled to hear the appeals of the Saskatchewan and Ontario references, respectively. From December 16 to 18, 2019, the Alberta Court of Appeal will hear the Alberta reference. The Federal Court will hear Manitoba’s application for judicial review in spring 2020.

Key Messages

Firearms

(Shared responsibilities with Public Safety and Emergency Preparedness)

The firearms legislative regime, set out in the Firearms Act, the Criminal Code and related regulations, is designed to strike an appropriate balance between protecting public safety while permitting legitimate uses of firearms, such as hunting, target shooting and gun collecting. The legitimate possession and use of firearms is regulated through the Firearms Act and with measures such as licencing, registration and storage requirements.

Recently, there have been calls to increase protections for public safety by banning handguns and assault rifles. Specifically, in response to a number of high-profile shootings in Toronto where handguns were used, the Mayor of Toronto wrote to the Minister of Justice proposing federal law reform to address gun violence, including a federal ban on handguns. In August 2018, Montreal city council unanimously adopted a motion asking the federal government to issue a sweeping ban on handguns and assault rifles across the country.

Key Messages

Online Hate

(Shared responsibilities with Canadian Heritage and Public Safety and Emergency Preparedness)

The spread of hateful speech over online services such as Facebook, Twitter and YouTube raises the question of whether new measures should be introduced, in addition to the existing hate propaganda provisions in the Criminal Code. There has been public discussion of measures such as a regulatory scheme requiring such services to remove or block access to content in a timely manner and how to mitigate possible impacts on elections from foreign and domestic sources.

The Criminal Code has a specific hate crime sentencing provision that applies to all Criminal Code offences and a specific hate crime mischief offence. There are also three hate propaganda offences in sections in the Criminal Code:

Key Messages

AGC v. The Caring Society and AFN et al.

(Shared responsibilities with Indigenous Services Canada)

In 2016, the Canadian Human Rights Tribunal found that Canada’s chronic underfunding of child and family services on reserve constituted systemic discrimination. Canada accepted that ruling. Since that time, the Tribunal has ordered a series of systemic remedies that Canada has implemented or is in the process of implementing. In September 2019, the Tribunal issued an Order awarding an estimated total of $5 billion to $6 billion dollars in compensation to children and caregiving parents or grandparents where children were removed from their homes or had services delayed or denied under Jordan’s Principle. Canada filed a judicial review of this decision during the election period and is seeking a stay of the compensation order on the basis of preventing irreparable harm to the public interest in the form of unrecoverable payments and damage to Crown-Indigenous relations.

Key Messages

Foreign Fighters

(Shared responsibilities with Public Safety and Emergency Preparedness and Global Affairs Canada)

The threat posed by foreign fighters, also known as Canadian extremist travellers, is significant and presents a number of operational challenges. Law enforcement, security, intelligence, and defence departments and agencies continue to monitor and respond to this threat through a coordinated, whole-of-government approach. Where possible, the Government of Canada pursues charges and seeks to prosecute such fighters to the full extent of the law. In instances where charges cannot be laid, all other options to address extremist travellers may be pursued, including using the Secure Air Travel Act; cancellation, refusal and revocation of passports; legally authorized threat reduction measures; and terrorism peace bonds. The Government of Canada cooperates closely with key allies, such as the Five Eyes, the G7, and INTERPOL, in addressing this threat.

Key Messages