8. Identification of Priorities

Indian Residential Schools-Unmarked Burial Sites and Related Issues

Issue

The identification of unmarked and undocumented burial sites at former Indian Residential Schools has resulted in numerous calls for federal government action by Indigenous communities, leaders and organizations, as well as the non-Indigenous public. A class action was recently launched against the federal government in this regard (Good Eagle). A few other litigation files related to residential schools are still active. A submission was made in June 2021 by a group of Canadian lawyers to the Chief Prosecutor of the International Criminal Court seeking a potential investigation of Canada and the Catholic Church for crimes against humanity.

Background

The Government of Canada operated Indian Residential Schools in Canada in partnership with various religious organizations until 1969, when the Government assumed operation of the majority of these schools. The last federally run Indian Residential School closed in 1998. The devastating impacts of these institutions on Indigenous peoples has been documented in many reports and were the subject of a Government of Canada apology in 2008 and the Indian Residential Schools Settlement Agreement, concluded in 2007. The issue of missing children and unmarked burial sites was the subject of specific Truth and Reconciliation Commission of Canada’s Calls to Action (71 to 76), on which the Government of Canada had undertaken some work in partnership with Indian Residential School survivors and organizations over the past several years.

Over the past several months, communities have identified unmarked and undocumented burial sites at a number of former Indian Residential School locations. These findings have resulted in calls for federal government action, including investigations of burial sites. Crown-Indigenous Relations and Northern Affairs Canada has established Residential Schools Missing Children – Community Support Funding available to support research and identification of sites, commemoration and ceremony and bringing deceased children home to their communities where that is the family or community’s wish. On August 10, 2021, Ministers of Crown-Indigenous Relations and Northern Affairs, Indigenous Services, Justice and Canadian Heritage announced $321 million in additional support for Indigenous-led, survivor-centric and culturally informed initiatives and investments to help Indigenous communities respond to and heal from the ongoing impacts of residential schools.

Crown-Indigenous Relations and Northern Affairs Canada also announced work to establish a National Advisory Committee to advise communities and the Government of Canada on the work to locate burial sites, consisting of Indigenous knowledge holders and experts in areas such as archaeology, forensics, pathology and mental health. In August 2021, the Minister of Justice also announced the intention to appoint a special interlocutor to work with Indigenous peoples, provincial and territorial governments, communities and other relevant institutions, such as church entities, to identify needed measures and make recommendations relating to federal laws, regulations, policies and practices surrounding unmarked burials relating to residential schools. The Minister also committed to engaging with Indigenous communities and leaders on the mandate and choice of the special interlocutor.

Several provinces have also announced some funding and support for communities engaging in work related to unmarked and undocumented burial sites.

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Firearms

Issue

The issue of firearms control remains a priority for many Canadians, and is the subject of sustained attention in Parliament. Over the past number of years, successive federal governments have advanced legislative and regulatory reforms in respect of the criminal possession or use of firearms (including through sentencing measures), on the one hand, or the laws regulating the legitimate possession and use of firearms, on the other.

Background

Although the Minister of Public Safety and Emergency Preparedness leads on general firearms policy, the Minister of Justice shares responsibility for federal firearms policy and legislation. The Minister of Justice is responsible for the Criminal Code and its provisions relating to firearms, as well as related regulations enacted under the Criminal Code (for example, regulations concerning the classification of firearms). The Criminal Code defines three classes of firearms: 1) non-restricted (generally long guns, such as hunting rifles and shot guns); restricted (some handguns and some semi-automatic rifles); and 3) prohibited (fully automatics, some handguns and prescribed assault-style firearms). Firearms can also be prescribed through the classification regulations.

The Criminal Code provisions and regulations operate in tandem with the Firearms Act, which sets out the framework for the legal possession of firearms. The Firearms Act is under the responsibility of the Minister of Public Safety and Emergency Preparedness, and, together with its regulations, addresses the possession, acquisition, transport, and storage of regulated firearms by individuals and businesses.

In the last Parliament, former Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms), introduced in February 2021, was met with mixed reactions. Previous to that, on May 1, 2020, an Order in Council was enacted amending firearms regulations that prohibited approximately 1,500 makes and models of assault-style firearms and their variants.

Accompanying the Order in Council was an Amnesty Order that provided an amnesty period to protect affected individuals from criminal liability if they: (1) were in legal possession of a newly prohibited firearm, or prohibited device, at the time the Regulations came into force; and (2) held and continue to hold a valid license during the amnesty period. The Order provides affected individuals with time to come into compliance with the law. The Amnesty Order will expire on April 30, 2022.

Permitted activities during the amnesty period for affected owners are disposing of the firearm by having the firearm deactivated by an approved business; delivering the firearm or device to a police officer; legally exporting the firearm; and, if a business, returning the firearm or device to the manufacturer. The Amnesty Order allows for the transportation of a newly prohibited firearm for these purposes.

Owners are not permitted to use the prohibited firearms or sell them to individuals in Canada. However, the firearms may be used, if previously non-restricted, in two situations: 1) to hunt for the purposes of sustenance; or 2) to exercise a right recognized and affirmed by section 35 of the Constitution Act, 1982. Individuals and businesses are also no longer allowed to import the listed firearms and devices. No other use exceptions are included in the Order.

When the Order in Council and Amnesty Order were announced, there was a commitment to implementing a buy-back program and a grandfathering regime. Since the Order in Council and the Amnesty Order were enacted, a number of issues have been identified by stakeholders and the Order in Council has been challenged in court in seven separate Federal Court cases.

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Immigration and Refugee Legal Aid

Issue

The Department of Justice Canada’s Legal Aid Program is facing pressures due to ongoing and anticipated increased demand for immigration and refugee (I&R) legal aid, coupled with the Ontario government’s decision to disallow the use of provincial funds for such services. Decisions on whether to continue to offset provincial funding pressures with increased federal funding, and on whether to develop a new national program, will be required.

Background

The Legal Aid Program is a cost-shared program that provides contribution funding for criminal and I&R legal aid services to provinces to support fair legal proceedings for eligible persons and public confidence in the justice system. I&R legal aid assists eligible in-Canada asylum seekers in navigating the refugee determination process.

From a federalism perspective, the Supreme Court of Canada has held that legal representation before the Immigration and Refugee Board (IRB) has federal (aliens and naturalization) and provincial (civil rights in the province) aspects. In addition, immigration is a shared area of jurisdiction. However, the federal government solely controls asylum legislation and policy, and is responsible for all adjudicative mechanisms (i.e. decision-makers at the IRB, Immigration, Refugees and Citizenship Canada (IRCC) and the Federal Court). Given that obtaining asylum in Canada is a complex, legalistic process and the vast majority of asylum seekers do not have the funds to hire a lawyer, the federal asylum determination system would not be able to function fairly, effectively or efficiently without legal aid.

The annual $11.5 million federal allocation for I&R legal aid, which has in recent years been topped up through departmental reallocations and otherwise, is divided among the seven provinces that provide services in this area: British Columbia, Alberta, Manitoba, Ontario, Quebec, Newfoundland and Labrador, and Nova Scotia, according to a demand-based formula. Legal aid I&R case volumes in Ontario far exceed those of the other provinces.

Volume pressures

Up until the COVID-19 pandemic caused Canada to close its borders, Canada was experiencing a year-by-year increase in the number of asylum claimants. Given the increasing demand, Budget 2019 announced an additional $16.2 million for I&R legal aid for 2019-2020 and an additional $16.7 million in each of 2020-2021 and 2021-2022, increasing the federal allocation to $27.7 million (2019-2020) and $28.2 million (2020-2021 and 2021-2022). These investments aligned with and supported other federal investments in asylum seeker processing announced in Budget 2019, such as the $208 million over two years for the IRB, and the $452 million over five years to IRCC for “Enhancing the integrity of Canada’s borders and asylum system”.

In addition, on August 12, 2019, a further one-year investment of $26.8 million was announced, increasing 2019-2020 funding to $54.5 million. This additional funding was required to address a major budget shortfall faced by Legal Aid Ontario due to the Ontario government’s decision to withdraw financial support for I&R legal aid. A small portion of the additional investment was also provided to British Columbia and Manitoba to address funding gaps.

By 2019, over 64,000 individuals claimed asylum in Canada. However, in 2020, volumes dropped to approximately 24,000 claimants. Nevertheless, the backlog (estimated at approximately 75,000) of claims pending processing at the IRB and the Federal Court maintained legal aid demand. In 2020-2021, through the Economic and Fiscal Snapshot 2020, once again an additional one-year investment of $26.8 million was made available to ensure that I&R legal aid services could be maintained. As legal aid expenditure forecasts were reduced later in the fiscal year, Justice only accessed $20.3 million from the $26.8 million that was available, increasing 2020-2021 funding to $48.5 million.

To address funding pressures identified by key provinces, particularly Ontario, Budget 2021 announced another one-year investment of $26.8 million, increasing federal support for I&R legal aid to $55 million, which will ensure that all provinces providing services have the capacity to maintain service delivery levels throughout 2021-2022.

As border restrictions are progressively lifted, intake volumes are expected to rise and eventually return to the historical highs experienced prior to the pandemic.

Future policy development

Justice is examining the framework and long-term sustainability of the federal I&R Legal Aid Program. In addition to funding, equity and accessibility are also areas of concern. Currently, each of the provinces that provide I&R legal aid services does so according to its own policies and guidelines, resulting in varying availability of services for specific types of I&R proceedings across the jurisdictions. No publicly-funded services are available in three provinces or in any of the territories. Initial consultations with provinces and legal aid plans to explore future program delivery options were held in fall 2019; however due to COVID-19, further consultations were postponed until spring 2021 and are currently ongoing.

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United Nations Declaration on the Rights of Indigenous Peoples Act Implementation

Issue

Implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act).

Background

On June 21, 2021, the UN Declaration Act received Royal Assent andcame into force. The UN Declaration Act provides a framework to advance the Government of Canada’s implementation of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) in consultation and cooperation with Indigenous peoples.

The UN Declaration Act requires that the Government of Canada, in consultation and cooperation with Indigenous peoples, do the following:

Implementing the Act is a whole-of-government responsibility. Although the Minister of Justice is the lead minister responsible for implementation of the Act (pursuant to an Order in Council adopted further to section 3), the Ministers of Crown-Indigenous Relations and of Natural Resources also support this work. In addition, the Act expressly directs the Government of Canada (in section 5) and “other federal ministers” (in section 6) with roles in the implementation of the Act.

Recommended Action

The Act requires that this work be carried out in consultation and cooperation with Indigenous peoples. Given the two-year timeline for development of an action plan, it is recommended that an engagement process begin as soon as possible (in fall 2021) in order to ensure a meaningful and effective engagement process. Such engagement will need to take into account distinctions-based perspectives (First Nations, Inuit, Métis) and reflect the diversity within and amongst Indigenous peoples (urban, rural women, persons with disabilities, two-spirit, etc.). Concurrent outreach with provinces and territories and other sectors of society, such as industry, will also be undertaken. Budget 2021 announced $31.5 million to support the development of the action plan over two years. A significant portion of this funding is to support the participation of Indigenous peoples and organizations in this process.

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