Charter Statement - Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts

Explanatory Note

The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of Charter considerations, recognizing that a bill may change over the course of its passage through Parliament. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts for compliance with the Charterpursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-39 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Promoting the rule of law by repealing or amending invalid Criminal Code provisions

Bill C-39 would repeal or amend several Criminal Code provisions that the Supreme Court of Canada has previously found to be of no force or effect because of inconsistency with the Charter:

  • Loitering (paragraph 179(1)(b)), found unconstitutional in R. v. Heywood, 1994;
  • Spreading false news (section 181), found unconstitutional in R. v. Zundel, 1992;
  • Unlawful object murder (paragraph 229(c)), part of which was found unconstitutional in R. v. Martineau, 1990;
  • Murder in the commission of offences (section 230), found unconstitutional in R. v. Martineau, 1990;
  • Impaired driving- presumption of accuracy of breath or blood samples (paragraphs 258(1)(c) and (d)), parts of which were found unconstitutional in R. v. St-Onge Lamoureux, 2012;
  • Abortion (section 287), found unconstitutional in R. v. Morgentaler, 1988; and
  • Credit for pre-sentence custody in sentencing (subsection 719(3.1)), part of which was found unconstitutional in R. v. Safarzadeh-Markhali, 2016.

These proposed changes would promote the rule of law, which the Charter’s preamble recognizes as one of Canada’s founding constitutional principles.

The Charter is a part of the Constitution of Canada, which is the supreme law of the land. Parliament, in enacting new legislation, must make every effort to respect the Charter. Canadian courts determine whether a law is consistent with the Charter. Laws found by the courts to be inconsistent with the Charter are invalid, depriving them of legal force or effect. This affirms the priority of the Charter and the rule of law.

A judicial declaration that a law is inconsistent with the Charter does not automatically remove unconstitutional provisions from the statute books, since changing the text of federal laws requires an Act of Parliament. Parliamentary repeal or amendment of invalid legislation can be considered a final step that fully vindicates the rule of law, since it ensures that the law “on the books” reflects the actual state of the law in Canada. This is Bill C-39’s overall purpose and effect.

The repeal of provisions of the Criminal Code finally declared invalid by the Supreme Court of Canada, as well as the amendment of provisions to remove language declared invalid by the Supreme Court of Canada, do not raise any significant new impacts on Charter-protected rights and freedoms beyond the general promotion of the rule of law.

Bill C-39 also includes amendments to repeal the prohibition on anal intercourse (section 159), initially proposed in Bill C-32. Although the Supreme Court of Canada has never considered the constitutionality of section 159, it has been found to violate the Charter by courts in five provinces and the Federal Court of Canada. For further information about the Charter considerations relevant to the proposed repeal of section 159, see the Charter Statement tabled in the House of Commons on November 21, 2016 in relation to Bill C-32: An Act related to the repeal of section 159 of the Criminal Code. It is available online at: Bill C-32: An Act related to the repeal of section 159 of the Criminal Code.
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