9. First 100 Days

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Litigation Overview

Under the Department of Justice Act, the Minister of Justice is ex officio the Attorney General of Canada. The Attorney General has carriage of all civil litigation for or against the federal Crown and any department. He or she represents the Crown and not individual departments or agencies of the government. The Attorney General therefore seeks to protect the interests of the whole of government when providing advice and conducting litigation. If legislation or government decisions are challenged in courts, the Attorney General’s mandate is to vigorously defend the government’s position. In carrying out this duty, the Attorney General must act in the public interest, advance principled legal positions, and maintain high standards of civility and advocacy.

In the civil litigation context, departments generally act as instructing clients, although in having carriage of all litigation the Attorney General must keep in mind his or her duty to ensure that public affairs are administered in accordance with law. The Attorney General’s instructions are sought on all applications to intervene before the Supreme Court of Canada. Where litigation involves Indigenous peoples, it is conducted in accordance with the guidelines in the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples. The Attorney General’s litigation strategy also has to be consistent with the Principles guiding the Attorney General of Canada in Charter litigation.

The Attorney General is ultimately responsible for the federal prosecutorial function; however, to ensure the independence of the prosecutorial function, the Director of Public Prosecutions is responsible for initiating and conducting federal prosecutions (Director of Public Prosecutions Act).

The Assistant Deputy Attorney General has functional responsibility for all litigation conducted by or on behalf of the Department of Justice Canada. Litigation services are primarily provided by staff who are part of the National Litigation Sector, led by the Assistant Deputy Attorney General. The Department’s six regional offices (Atlantic, Quebec, Ontario, Prairies, British Columbia, and Northern), as well as the Civil Litigation Section and other groups in the National Capital Region, provide most litigation services and report directly to the Assistant Deputy Attorney General.

Significant litigation files

Departments generally act as instructing clients in the civil litigation context, although in having carriage of all litigation the Attorney General of Canada must keep in mind their duty to ensure that public affairs are administered in accordance with law. The Minister of Justice can also be the instructing client, where the matter falls within the policy responsibilities of the Minister and the Department of Justice Canada is the client department.

The files noted below will require the Minister’s approval (when the Department is lead) or might require the Minister’s input/intervention (when other departments are lead). Files that may require a Cabinet discussion have also been identified.

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Reports to be tabled before Parliament

Issue

Pursuant to various statutory provisions, the Minister of Justice and Attorney General of Canada is responsible for tabling a number of reports before Parliament that involve Justice Canada and a number of its portfolio organizations. Some of these reports will require immediate attention for tabling early in the Parliamentary session, whereas others will require attention in late 2021 or early 2022.

Background

After the dissolution of Parliament, the clerks of both Houses of Parliament no longer accept any returns, reports, or other papers required to be tabled pursuant to an act of Parliament, resolution or Standing Order of the House of Commons. Ministers must wait until the new Parliament is in session before tabling any documents.

Most annual reports may be tabled in one of two ways: “front door” or “back door.” When a report is tabled “front door,” it is tabled before the House of Commons by a minister or parliamentary secretary acting on behalf of the minister or, in the Senate, by a senator. A report tabled “back door” means that the tabling is not done formally in the House of Commons or Senate. It is deposited directly with the Clerk of the House or Senate. In both cases, the name of the document can be found in the Journals of the House or the Senate for that day.

For a minister to have the option to table an annual report “back door” in the House of Commons, pursuant to Standing Order 32(1), there must be a requirement for it to be laid in accordance with any act of Parliament or pursuant to any resolution or Standing Order of the House of Commons. If not, the only option is to table “front door.”

In the Senate, all of the annual reports that a minister is responsible for may be tabled “front door” or “back door” as Rule 14-1(6) only has a requirement that the document be laid before the Senate.

In the House of Commons, pursuant to Standing Order 32(5), annual reports that are tabled will automatically be referred to a standing committee so that they can be studied or used as information for ongoing examination. Annual reports that fall under the responsibility of the Minister of Justice are referred to the Standing Committee on Justice and Human Rights. In the Senate, a motion must be moved and adopted in order for the document to be referred to a committee.

Justice Canada’s Cabinet and Parliamentary Affairs Unit is responsible for coordinating the tabling of annual reports for the Department and for the portfolio organizations that have an arm’s-length relationship with the Minister of Justice. These responsibilities include preparing the necessary material and ensuring that the Minister’s office receives it in a timely manner for the Minister’s signature and subsequent tabling before Parliament by the Minister or the Parliamentary Secretary.

Considerations

The following reports will be provided to your office in the coming days and will require immediate attention for tabling early in the Parliamentary session:

1. Applications for Ministerial Review—Miscarriages of Justice 2020-2021 Annual Report

Pursuant to section 696.5 of the Criminal Code, the Minister of Justice shall submit an annual report to Parliament in relation to applications under section 696.1 of the Criminal Code. This report must be tabled before each House of Parliament within six months after the financial year in respect of which it is made (September 30) or, if the House and Senate are not then sitting, on the first day they reconvene.

2. Judicial Compensation and Benefits Commission 2020 Report

On August 30, 2021, the Judicial Compensation and Benefits Commission (Quadrennial Commission) issued its report, containing recommendations on judicial compensation. The report will need to be tabled in Parliament in the first 10 sitting days after Parliament’s return. For greater details, please consult the note entitled “Report of the 2020 Quadrennial Commission”.

3. Courts Administration Service 2020-2021 Annual Report

Pursuant to section 12 of the Courts Administration Service Act, the Chief Administrator shall, within six months after the end of each fiscal year (September 30) submit a report to the Minister of Justice on the activities of the Service for that year. This report must be tabled before each House of Parliament on any of the first 15 sitting days of Parliament once it is received.

4. Corruption of Foreign Public Officials Act 2020-2021 Annual Report

Pursuant to section 12 of the Corruption of Foreign Public Officials Act, the Minister of Foreign Affairs, the Minister of International Trade, and the Minister of Justice and Attorney General of Canada shall jointly prepare, within four months of the end of the fiscal year (July 30), an annual report on the implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the enforcement of the Act. The Minister of Foreign Affairs is responsible for tabling this annual report before both Houses of Parliament on any of the first 15 sitting days of Parliament after the report is completed. The Minister of Justice must approve the report in its entirety prior to the tabling.

5. Access to Information and Privacy 2020-2021 Annual Reports

Pursuant to section 94 of the Access to Information Act and section 72 of the Privacy Act, the head of every government institution shall prepare a report on the administration of these Acts within their institution during the fiscal year. The Minister of Justice is responsible for tabling the reports of the Department of Justice, the Administrative Tribunals Support Service of Canada, the Canadian Human Rights Commission, and the Public Prosecution Service of Canada. The reports must be tabled before both Houses of Parliament on any of the first 15 sitting days after September 1.

6. Departmental Sustainable Development Strategy (DSDS) Report 2020-2021

Pursuant to section 7(2) of the Federal Sustainable Development Act, the Attorney General of Canada shall submit an annual report to Parliament on the progress of the Government of Canada in implementing the Federal Sustainable Development Strategy at least once in each of the two years following the tabling of their DSDS. Environment and Climate Change Canada (ECCC) has requested that all Departments independently deposit their approved 2020-2021 DSDS Report before each House of Parliament no later than one year after the tabling of the DSDS 2020 to 2023. The 2020 to 2023 DSDS was tabled on October 6, 2020. In accordance with the Act and as per ECCC’s guidance, the Department of Justice Canada must table the 2020-2021 DSDS Report no later than October 6, 2021 (or at the earliest convenience once Parliament resumes).

7. Report on Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts

Pursuant to section 31.1(1) of the the Act to amend the Criminal Code (offences relating to conveyances and to make consequential amendments to other Acts), within three years after the day on which this section comes into force, the Minister of Justice must prepare a report setting out their conclusions and recommendations, and include robust data sets collected by government and non-government agencies on the effectiveness of the provisions enacted by the Act and the impacts resulting from them. The Minister of Justice and Attorney General of Canada must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after it is completed.      [Redacted]     

8. Service Fees 2020-2021 Annual Report

The tabling of stand-alone Fees Reports is a new requirement under the Service Fees Act, which came into force in June 2017. All federal entities listed in Schedules I, I.1 and II of the Financial Administration Act must table a Fees Report, in each fiscal year, pursuant to section 20(1) of the Service Fees Act. The Treasury Board is expected to provide more guidance regarding the tabling of this report in the upcoming days. In the past, this report was tabled at the beginning of November. Departmental officials are, therefore, expecting to table the report in early November 2021.

The following reports will require attention in late 2021 or early 2022:

1. Investigative Hearing and Recognizance with Conditions 2020-2021 Annual Report

Pursuant to section 83.31 of the Criminal Code, the Attorney General of Canada shall submit an annual report to Parliament containing information about how frequently the investigative hearing provisions and the recognizance with conditions have been used and whether the operation of these provisions should be extended. There is no statutory deadline for tabling this annual report; however, it is expected to be tabled at the end of 2021.

2. Statutes Repeal Act 2022 Annual Report

Pursuant to section 2 of the Statutes Repeal Act, the Attorney General of Canada shall submit an annual report to Parliament listing every Act or provision that has not been brought into force for ten years or more at the end of that calendar year. This report must be tabled before each House of Parliament on any of the first five days on which these Houses sit in every calendar year. According to the current Parliamentary Calendar, the tabling of the annual report in the House of Commons will be required between January 31 to February 4, 2022, and between February 8 to 11, 2022 in the Senate.

3. Canada Evidence Act 2020-2021 Annual Report

Pursuant to section 38.17 of the Canada Evidence Act, the Attorney General of Canada shall submit an annual report to Parliament containing information on the operation of sections 38.13 and 38.15. This annual report must include the number of certificates and fiats issued under sections 38.13 and 38.15. There is no statutory deadline for tabling this annual report; however, it is expected to be tabled at the beginning of 2022.

4. Terrorism Peace Bonds 2020-2021 Annual Report

Pursuant to section 810.011(15) of the Criminal Code, each year, the Attorney General of Canada shall submit an annual report to Parliament setting out the number of recognizances designed to prevent the commission of terrorism offences (terrorism peace bonds) entered into in the previous year. There is no statutory deadline for tabling this annual report; however, it is expected to be tabled at the beginning of 2022.

5. Federal Ombudsman for Victims of Crime 2020-2021 Annual Report

Pursuant to section 7 of the Terms and Conditions of Employment of the Federal Ombudsman for Victims of Crime, the Ombudsman shall submit to the Minister of Justice for tabling before Parliament, an annual report on the activities of the Office of the Ombudsman. There is no statutory deadline for either the submission of this report to the Minister or the tabling before Parliament. In the past, a government response was prepared following receipt of the annual report and both documents were tabled simultaneously before Parliament; however, there is no statutory requirement to provide a government response.

Conclusion/Advice

For each annual report that must be tabled before Parliament, a briefing note and all accompanying cover letters will be submitted to your office for approval and signature in due time. Regarding the Federal Ombudsman for Victims of Crime 2020-2021 Annual Report, instructions will be sought upon receipt of the report as to whether a Government response should be prepared.

Report of the 2020 Quadrennial Commission

Issue

On August 30, 2021, the Judicial Compensation and Benefits Commission (Quadrennial Commission) issued its report, containing recommendations on judicial compensation. The report will need to be tabled in Parliament in the first 10 sitting days after Parliament’s return, and a public Government response must be issued within four months of the report’s receipt by the Minister of Justice, i.e. by December 30, 2021.

Background

The Quadrennial Commission process was established in the Judges Act following the Supreme Court of Canada’s 1997 decision in the PEI Judges Reference. The Commission is intended to safeguard the constitutional principle of judicial independence by interposing a filter between the judiciary and the Government, and depoliticizing the process of setting judicial remuneration.

The Commission was statutorily mandated to commence its inquiry on June 1, 2020. Due to effects of the COVID-19 pandemic, however, the primary participants (the Government, the judiciary, and the prothonotaries) jointly requested a six-month postponement. The Commission granted the request and began its inquiry on December 1, 2020. The Commission received written submissions throughout the spring and held virtual hearings on May 10 and 11, 2021. On August 30, 2021, the Commission delivered its report to the Minister of Justice and counsel for the judiciary. Until it is tabled in Parliament, distribution of the report is limited.

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Reintroduction of Government Bills

Issue

Upon the dissolution of Parliament on August 15, 2021, all business in the House of Commons and Senate died on the Order Paper of each Chamber. In order for government legislation that did not receive Royal Assent before dissolution to be considered in the next session of Parliament, it must be reintroduced. While mostly used in the context of prorogation, it would technically be possible to re-instate a bill to the same legislative stage it was at when it died on the Order Paper, but it would require the Government House Leader to move a motion in the House of Commons to seek unanimous consent from all parties.

Background

At dissolution, there were five Government bills led by the Minister of Justice:

• Bill S-5, An Act to amend the Judges Act
• Bill C-6, An Act to amend the Criminal Code (conversion therapy)
• Bill C-22, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act
• Bill C-23, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)
• Bill C-36, An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech)

There were also two government bills led by other Ministers of the Crown for which the Minister of Justice was heavily involved:

• Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms)—Led by the Minister of Public Safety and Emergency Preparedness
• Bill C-32, An Act to amend the Official Languages Act and to make related and consequential amendments to other Acts—Led by the Minister of Economic Development and Official Languages

The Liberal Party platform committed to re-introducing a number of these bills—some within the first 100 days of the Government.      [Redacted]     

     [Redacted]     

Conclusion/Advice

Your decision, in consultation with the Government House Leader, will be sought on when and in what format to re-introduce the previous bills under the purview of the Minister of Justice in the 44^th Parliament.      [Redacted]     .

Forward Regulatory Plan

Posting an update to the 2021-2023 Forward Regulatory Plan

Issue

In accordance with the Treasury Board of Canada Secretariat Policy on Regulatory Transparency and Accountability, every department must develop a Forward Regulatory Plan and publish it on their departmental website by April 1 of every year. The Forward Regulatory Plan spans two fiscal years and is designed to improve the transparency and predictability of the federal regulatory system. The Forward Regulatory Plan is meant to be an evergreen document with periodic updates throughout the year.

Background

Regulation is a key instrument used by the Government of Canada to achieve various policy objectives and to improve the quality of life of Canadians. It is an important tool for protecting the health and safety and the environment, and for securing the conditions for an innovative and prosperous economy. Ministers have discretion over the initiatives to be included in their Forward Regulatory Plans as their publication is used for early public notification of initiatives that are under development.

A Forward Regulatory Plan identifies anticipated regulatory changes or actions that a department intends to bring forward or undertake over a 24-month timeframe. It also identifies public consultation opportunities and a departmental contact point for each initiative.

There are currently 10 regulatory initiatives listed on the Department’s 2021-2023 Forward Regulatory Plan:

• Amendments to Schedule II to the Privacy Regulations (Investigative Bodies)
• Order Amending the Schedule to the Family Orders and Agreements Enforcement Assistance Act
• Amendments to the Contraventions Regulations (Fisheries Act)
• Repeals and amendments to statutory instruments adopted under the Canadian Human Rights Act
• Amendments to the Contraventions Regulations (Schedules I.2, I.3, II.1 and III.01)
• Regulations amending the Release of Information for Family Orders and Agreements Enforcement Regulations
• Regulations amending the Family Support Orders and Agreements Garnishment Regulations
• Regulations Amending the Contraventions Regulations (Fisheries Act)
• Regulations Amending the Contraventions Regulations (Railway Safety Act)
• Regulation supporting amendments to the Judges Act to reform the judicial conduct process

Considerations

The Department of Justice Canada normally aims to publish the update to the Forward Regulatory Plan every fall. However, due to the election, the update to Justice’s 2021-2023 Forward Regulatory Plan was delayed.

Conclusion/Advice

The Cabinet and Parliamentary Affairs Unit will provide the proposed package to your office in the coming weeks for review and approval. The approved changes will then be posted to the Department’s website.

2021 Motion and 2022 Annual Report under the Statutes Repeal Act

Issue

The Statutes Repeal Act requires that, in every calendar year, the Minister of Justice table, before the Senate and the House of Commons on any of the first five days on which that House sits, a report listing every Act or provision that has not been brought into force for 10 years or more at the end of that calendar year. All Acts and provisions listed in an annual report will be repealed on December 31 of the year in which the report is tabled, unless they are brought into force or repealed before that date, or unless a resolution deferring their repeal is adopted by one of the Houses of Parliament before that date.

Background

The Statutes Repeal Act establishes an annual process to repeal provisions that have not been brought into force for 10 years or more. It came into force in 2010 and requires the Government to report regularly to Parliament on how it exercises its power to bring statutes into force by Order in Council. The Act also seeks to ensure the effective maintenance of federal statutes through the regular repeal of provisions that are not in force or needed.

The Minister of Justice tabled the 2021 annual report, prepared in accordance with the Statutes Repeal Act, in the House of Commons on January 26, 2021, and in the Senate on February 8, 2021. The 2021 annual report lists one complete Act and provisions of 14 other Acts for which 11 different ministers are responsible.

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Appointments and Vacancies

Key appointments required in the first 100 days

Issue

The Minister of Justice is responsible for recommending to the Governor in Council approximately 40 appointments to various organizations within the Justice portfolio in accordance with the open, transparent, and merit-based process established in 2016.

The Department of Justice and the Privy Council Office are tracking a few key appointments that will become vacant during the election period and others that may require attention following the election.

Background

The following appointments expired during the election period or shortly thereafter.

Canadian Human Rights Tribunal (Chairperson)

The term of the current Chair of the Canadian Human Rights Tribunal, David Thomas, expired September 2, 2021. Jennifer Khurana is acting Chairperson. An open, transparent, and merit-based process was undertaken      [Redacted]     

Office of the Ombudsman for Victims of Crime (Ombudsman)

The term of the current Ombudsman, Heidi Illingworth, expired October 1, 2021. The position is currently vacant. An open, transparent, and merit-based selection process is expected to be required for this position.

Supreme Court of Canada (Registrar and Deputy Registrar)

The Deputy Registrar, John David Power, was appointed as acting Registrar on June 1, 2020, to remain in effect until a new Registrar could be appointed or until he retires in December 2021. An open, transparent, and merit-based selection process was undertaken      [Redacted]     .

Accessibility Commissioner

The Accessible Canada Act, which created the position of Accessibility Commissioner, received Royal Assent on June 21, 2019. The Minister will be responsible for appointing the Commissioner because the appointment will be made under the Canadian Human Rights Act, which falls within the purview of the Minister of Justice. An open, transparent, and merit-based process was undertaken      [Redacted]     

Considerations

The Department will work with the Privy Council Office to determine the priority of upcoming appointments and whether or not open, transparent, and merit-based processes will be required.

Conclusion/Advice

It is recommended that the Minister’s office appoint a Director of Appointments who can act as point-person in managing Governor in Council appointments and participate on selection committees for upcoming vacancies. The Cabinet and Parliamentary Affairs Unit of the Department will advise the Minister’s office on next steps once guidance has been provided from the Privy Council Office.

Language Rights under the Divorce Act in Ontario

Issue

     [Redacted]     

Background

Former BillC-78, An Act to amend the Divorce Act the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act,received Royal Assent on June 21, 2019. For the first time, the Divorce Act includes an official languages rights provision (language rights provision), which allows proceedings under the Act to be conducted in French or English, or both, including the right to use either official language when filing pleadings, giving evidence and making submissions.

Considerations

Former Bill C-78 provides that the coming-into-force of the language rights provision will come for a province or a territory at the date to be fixed by order of the Governor in Council. The language rights provision is currently in force in Manitoba, Yukon and Nunavut.

Ontario has recently amended its Courts of Justice Act to improve consistency in French language rights across the province. The province would like to align the date of the coming-into-force of the language rights provision in the Act with the date of the coming-into-force of the Courts of Justice Act on February 1, 2022.

     [Redacted]     

Conclusion/Advice

     [Redacted]     

Ministerial Report on the Implementation of Former Bill C-46

Issue

The Minister of Justice is required to table a report on the impact and implementation of former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, (S.C., 2018, c. 21), in both houses of Parliament by December 18, 2021.

Background

The legislation came into force on December 18, 2018, and aimed to strengthen the provisions relating to impaired driving, with an overall objective to reduce impaired driving and deaths and injuries caused by impaired drivers in Canada. It supported the 2015 electoral commitment to legalize cannabis (former Bill C-45, the Cannabis Act) while also punishing more severely those who drive under its influence.

The report must cover the implementation and operation of the provisions, including whether they have resulted in differential treatment of any particular group based on a prohibited ground of discrimination. The assessment of the differential impact on some Canadians was included in the provision in response to concerns raised during the Parliamentary study that one of the legislative changes (mandatory alcohol screening) could lead to racial profiling.

     [Redacted]     

Bill C-45 also contained a review provision, and the Minister of Health will be briefed on this process by Health Canada officials.

Conclusion/Advice

     [Redacted]     

Indigenous Justice Initiatives

Issue

The Department of Justice is developing strategies to move forward with a set of actions and engagements that will produce tangible outcomes, such as a decline in the overrepresentation of Indigenous people as victims and offenders in the criminal justice system, and improved community safety and security through increased recognition and enforcement of Indigenous laws.

Background

General overview

In response to calls from the Truth and Reconciliation Commission of Canada’s Calls to Action and many previous reports, the Department of Justice has several initiatives underway aimed at addressing systemic discrimination against, and overrepresentation of, Indigenous people in the criminal justice system. The Department also has initiatives intended to support the revitalization of Indigenous laws, and increased Indigenous control over the administration of justice in their communities.

Core to this work is the National Action Plan in response to the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls. Given the complexity of the legal, policy and funding landscape in this area, as well as the need to respect and empower Indigenous-led solutions to longstanding issues in relation to the Canadian justice system, sustained and coordinated efforts involving Indigenous experts and leadership as well as multiple departments and provinces and territories will be required to produce tangible, improved outcomes for Indigenous Peoples and for Canada.

Indigenous Justice Strategy, Missing and Murdered Indigenous Women and Girls National Action Plan and Pan-Canadian Strategy on Overrepresentation

In January 2021, the Minister of Justice was mandated by the Prime Minister to develop an Indigenous Justice Strategy, in consultation and cooperation with provinces, territories and Indigenous partners, to address systemic discrimination and the growing overrepresentation of Indigenous people in the Canadian justice system.

In June 2019, the National Inquiry into Missing and Murdered Indigenous Women and Girls released its Final Report, including 231 Calls to Justice directed at all levels of government, Indigenous groups, social service providers, industry, media, and all Canadians.

In June of 2021, the co-developed National Action Plan in response to the Missing and Murdered Indigenous Women and Girls Final Report was released with a commitment to implement the plan. The Federal Pathway was released as the federal government’s contribution to the National Action Plan. As part of the release of the Federal Pathway, the Government of Canada committed to immediately implementing the priorities identified, and to clearly articulating the scope, timing, and accountability for implementation through an Implementation Framework to be developed in the fall of 2021. The Justice Canada component of the Implementation Framework will be developed in cooperation and collaboration with Indigenous partners, where possible, and will be validated through existing engagement opportunities with Indigenous groups led by the Department.

Budget 2021 included commitments to support engagement with Indigenous Peoples on the Indigenous Justice Strategy as well as to support implementation of the Federal Pathway.

Department of Justice officials launched pre-engagement discussions for the Indigenous Justice Strategy with eight Indigenous organizations and associations in late summer 2021, with the goal of building positive working relationships, co-developing a meaningful engagement approach, and outlining a shared scope with urgent priorities to be addressed by the Strategy. Departmental officials are also collaborating with federal partners to ensure alignment with the many other areas of engagement being undertaken with Indigenous partners. This includes engagement in the areas of Indigenous health, policing, community safety plans, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, the Missing and Murdered Indigenous Women and Girls Federal Pathway Implementation Framework, and the Department’s support to the British Columbia First Nations Justice Strategy. Engagement with provincial and territorial governments will also be required going forward.

There may be linkages between these initiatives and the mandate of the reconstituted Law Commission of Canada, once it is established.

Administration of Justice negotiations and enforcement of Indigenous laws

The Department of Justice participates in over 70 Crown-Indigenous Relations and Northern Affairs Canada-led negotiation tables at which the administration of Indigenous laws are a focus.      [Redacted]     

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Justice officials are also co-chairing a tripartite Collaborative Technical Table on the Enforcement and Prosecution of First Nations Laws. The table was launched by federal and Ontario Ministers and the Ontario Regional Chief in May 2021. The objective of this table is to identify issues and develop recommendations on how to overcome and bridge obstacles related to the enforcement and prosecution of First Nations laws, as well as to identify pathways to support the implementation of these recommendations.

On June 16, 2021, the House of Commons Standing Committee on Indigenous and Northern Affairs presented its report titled “Collaborative Approaches to Enforcement of Laws in Indigenous Communities”. The Committee report identified several issues relating to the lack of enforcement and prosecutions of Indigenous laws and bylaws, and issued recommendations. While a response to the Committee’s report is no longer required following the dissolution of Parliament, the report will continue to inform work at the federal level and could be revived by the Committee in the next Parliament.

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Modernization and Strengthening of the Official Languages Act

Issue

Tabling of a bill to modernize the Official Languages Act within 100 days of the election.

Background

All federal institutions have obligations under the Official Languages Act. However, some institutions have specific roles and duties in this area:

• The Minister of Justice and Attorney General of Canada is responsible for providing legal advice to the Government on official languages and representing the Government in court. The Minister is also responsible for drafting the laws and regulations of the Government and its departments in both official languages, and for promoting access to justice in both official languages.
• Canadian Heritage ensures interdepartmental coordination of the federal institutions’ implementation of the Government’s commitment to supporting and furthering the development of official language minority communities, and to promoting the full recognition and use of both official languages in Canadian society (Part VII).
• The Treasury Board Secretariat establishes policies and provides instructions to federal institutions and oversees their compliance with respect to the rights relating to communications with and services to the public (Part IV); language of work of federal public servants (Part V); and equal participation of English-speaking and French-speaking Canadians in the Public Service of Canada (Part VI).

In June 2018, the Prime Minister announced his plan to modernize the Official Languages Act. The Act was passed in 1988, and there was a consensus that it needed to be modernized. In August 2018, the Minister of Tourism, Official Languages and La Francophonie was mandated to begin a review of the Official Languages Act with the objective of modernizing it. Roundtables and discussion forums were held in 17 Canadian cities throughout the winter and spring of 2019.

In February 2021, based on the opinions of Canadians expressed during the roundtables, the Government presented its vision for official languages reform in the public document English and French: Towards a substantive equality of official languages in Canada. This document set out roughly 50 proposals, including some 30 legislative amendments, and regulatory and administrative measures covering the following themes:

• Recognition of linguistic realities in the provinces and territories and protection of Indigenous languages;
• Opportunities for learning both official languages and French immersion;
• Strong institutions for official language minority communities;
• Protection and promotion of French throughout Canada, including Quebec;
• Government of Canada leadership: strengthening the compliance of federal institutions; and
• An Act for the Canada of today and tomorrow: mandatory review of the Official Languages Act and its implementation.

On June 15, 2021, Bill C-32, An Act for the Substantive Equality of French and English and the Strengthening of the Official Languages Act, was introduced by the Minister of Economic Development and Official Languages.      [Redacted]     

Conclusion/Advice

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Revival of the Law Commission of Canada

Issue

     [Redacted]     

Background

In Budget 2021, the Government announced that it would re-establish the Law Commission of Canada to provide independent advice to the Government of Canada in respect of complex challenges, such as systemic racism in the justice system, legal issues around climate change, establishing a new relationship with Indigenous Peoples, and rapid technological shifts. The Budget proposed providing $18 million over five years, starting in 2021-2022, and $4 million ongoing.

The Law Reform Commission of Canada was first established in 1971 and existed for just over 20 years. It was then re-established as the Law Commission of Canada in 1997 and operated until 2006, when its funding was terminated. The legal framework for the Law Commission, the Law Commission of Canada Act, was never repealed and remains in place. It provides for an independent Law Commission composed of a full-time President and four part-time Commissioners, all Governor in Council appointees. There is also a small Secretariat (approximately 10 people) headed by an Executive Director. The research program is set by the President and Commissioners in consultation with an Advisory Council.

Though the Law Commission exists as a legal entity, it cannot function until it has a President in place and has funding via the Parliamentary appropriations process. In recent years, an open and transparent merit-based appointment process has been implemented for Governor in Council appointees.      [Redacted]     

Upcoming Events

Six-Month Calendar of Communications Opportunities

Fall: Announcements and Events

• Canada-US Cross-Border Crime Forum
• Appointment of Special Interlocutor on Indian Residential Schools Unmarked Burial Sites
• Economic and Fiscal Update (Finance Canada lead)

Public Environment Overview

Overview of Media Coverage (August and September 2021)

• Justice issues were generally part of the election narrative, although at a moderate level. Indigenous-specific issues received coverage throughout the election, with continued focus on residential schools.
• Generally, firearms and conversion therapy received the most attention, while abortion rights, Quebec’s Bill 21, and judicial appointments received moderate coverage.
• There were significant public campaigns from advocates on both sides of the issue of firearm control, including Canadian Doctors for Protection from Guns, the Canadian Anti-Hate Network, Danforth Families for Safe Communities and the National Firearms Association. The issue of firearm control received increased coverage following a question around maintaining the current ban on “assault weapons” during the French-language debate.
• There was a moderate level of national and regional coverage around the issue of conversion therapy during the election. Coverage included opinion and reaction to the non-passage of Bill C-6, An Act to amend the Criminal Code (conversion therapy).
• Quebec’s Bill 21 received increased coverage following a question in the English federal leaders’ debate. Coverage of the issue was divisive, with strong opinions expressed on each side. French regional and national media covered the issue more heavily.
• There was some coverage surrounding the transparency of the judicial appointment process after allegations surfaced regarding a March 2019 appointment made by Minister Lametti. The opposition has made calls for the ethics commissioner to investigate. It is anticipated that these calls for an investigation will continue.
• Coverage around abortion rights was generally in support of a woman’s right to choose, with questions around access to abortion a focus in some regions.
• There was also some interest in the possibility of criminalizing or banning protesters who harass healthcare workers or impede access to hospitals.

Overview of Main Social Media Engagement Issues (August and September 2021)

Social media conversations on justice-related issues were similar in scope/nature to what was observed in mainstream media coverage.

• Special Interlocutor and the Truth and Reconciliation Commission of Canada’s Calls to Action
  • The conversation peaked in August, when Minister Lametti announced the intention to appoint a Special Interlocutor to work with Indigenous communities and the Government to propose changes to federal laws, policies and practices that are related to unmarked graves at residential schools.
  • Key individuals involved in the conversations on social media relating to these topics included Charlie Angus and Mumilaaq Qaqqaq, as well as the Chiefs of Ontario.
• Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts/Bill C-36, An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech)
  • During the election period, there was a moderate level of discussion on many of the party platforms about the potential to amend the Criminal Code.
  • News outlets and lawyers heavily drove the conversation on social media.
• Conversion therapy
  • The main focus of conversations surrounding conversion therapy and Bill C-6 was in regard to the Bill not passing in the House before the writ dropped.
  • There was a high volume of discussion during the election regarding this Bill as various parties spoke in favour of passing the Bill and others spoke out against it/did not support it.
  • No Conversion Canada (a grassroots organization) and Dr. Kristopher Wells mainly generated the conversation on social media.
• Vaccine mandates
  • There was a high volume of mentions regarding vaccine certificates in Ontario and conversation around infringement of rights in regard to showing proof of vaccination.
  • This was a main conversation on social media during the election, as the Ontario mandate came into effect shortly after the election period concluded. Various parties had different ideas on how to approach the vaccine passport/certificate notion.
  • Reporters, healthcare professionals and media outlets drove the conversation on social media.
• Assault-style firearms
  • A main focus of conversation on this topic was questions about whether the assault-style firearms ban would be repealed. On social media, organizations such as PolySeSouvient and Canadian Doctors for Protection from Guns were vocal.
  • During the election period, the issue of firearms control received increased coverage after the French-language debate.
• Conscious rights
  • There was a moderate volume of mentions on social media around questions about conscious rights of healthcare workers in terms of abortions and LGBTQ2+ healthcare. The peak of conversation on social media took place during and after the electoral debates and the majority of conversation was in favour of a woman’s right to choose.
  • These conversations were highlighted by healthcare professionals and advocates.
• Meng Wanzhou/Extradition
  • This topic had a high volume of discussion leading up to and during the election period, as many parties discussed extradition and the legality of holding the individuals in each country and ultimately how that would affect the relationship with other countries.
  • The peaks of the conversations occurred when a decision was made on the sentences of the two Michaels as well as when the Meng Wanzhou hearing concluded.
  • There was a high level of discussion on social media by media outlets, legal professionals and advocates.
• Access to justice
  • Throughout the election period, the conversation about access to justice mainly happened on social media within the legal profession.
  • The conversation was steady and generally encouraged the various parties to commit to an equal, accessible justice system.

Overview of Public Opinion Research

• Canadians’ confidence in access to the criminal justice system and family justice system has been declining since the pandemic began.
  • Before the pandemic, about one-quarter of Canadians were confident that the criminal justice system was accessible (27%) or fair (23%) to all people.
  • Canadians’ confidence levels decreased following the declaration of a pandemic in March 2020, with fewer Canadians reporting confidence that the criminal justice system was accessible (22%) or fair (20%) to all people.
  • Similarly, prior to the pandemic, 24% of Canadians were confident that the family justice system was accessible to all people.
  • Canadians’ confidence levels decreased following the declaration of a pandemic in March 2020, with 18% of Canadians confident that the family justice system was accessible to all people.

(National Justice Survey 2021, Department of Justice Canada)

• The majority of Canadians believe that the criminal justice system is not fair for Indigenous Peoples.
  • 37% of Canadians strongly or somewhat agree that the laws and justice system are essentially fair for Indigenous Peoples.
  • Whereas, for the system as a whole, 69% of Canadians feel strongly or somewhat agree that it is essentially fair.
  • There’s a big gap in the perception of fairness of the system as a whole versus the fairness of the system for Indigenous Peoples.

(Fairness of Canada’s justice system and views on mandatory
minimum sentences, Privy Council Office Survey, July 2020)

• There is strong support for mandatory minimum sentences, yet more than half of Canadians support repealing some mandatory minimum sentences for certain types of crimes.
  • The majority of Canadians (55%) believe mandatory minimum sentences make the justice system more fair because they remove bias from judges and treat everyone the same.
  • Canadians support repealing mandatory minimum sentences for non-violent/non-sexual crimes (62%), drug offences (54%), and drug trafficking (51%). However, only 33% support repealing sentences for crimes where a gun is used.

(Fairness of Canada‘s justice system and views on mandatory
minimum sentences, Privy Council Office Survey, July 2020)

• Half of Canadians are not familiar with the United Nations Declaration on the Rights of Indigenous Peoples, yet they believe efforts to implement the Declaration would benefit reconciliation.
  • 68% of Canadians believe that protecting the human rights of Indigenous Peoples is the strongest reason to implement the United Nations Declaration on the Rights of Indigenous Peoples.

(United Nations Declaration on the Rights of Indigenous
Peoples, Privy Council Office Survey, August 2020)

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