Bill C-14: A second Act respecting certain measures in response to COVID-19

Tabled in the House of Commons, April 11, 2020

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency 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 inconsistency 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 on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-14, A second Act respecting certain measures in response to COVID-19, for any inconsistency with the Charter pursuant to his 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-14 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.

Part 1 - Amendments to the Income Tax Act

Clause 2 of the Bill proposes to amend the Income Tax Act to introduce an emergency wage subsidy as part of the Government’s response to COVID-19. This would provide a 75 per cent wage subsidy to eligible employers for up to 12 weeks, effective March 15, 2020.

Clause 6 of the Bill proposes two amendments to section 241 of the Income Tax Act, which governs the disclosure of taxpayer information. The first provision would allow the Minister to communicate publicly, in any manner considered appropriate, the names of any person or partnership who has made an application for the COVID-19 wage subsidy, this could include a corporation or an individual. The second provision would allow for the disclosure of taxpayer information to an official, such as name, address, employment and income information, for the purposes of the administration and enforcement of the Canada Emergency Response Benefit Act, enacted under C-13, An Act respecting certain measures in response to COVID-19.

Search and Seizure (section 8 of the Charter)

Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect people, including corporations as legal persons, from an unreasonable intrusion into a reasonable expectation of privacy, including in relation to their private information. Because the powers authorize the communication and disclosure of taxpayer information they have the potential to interfere with privacy interests and may engage section 8 of the Charter.

A search or a seizure will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and the search is carried out in a reasonable manner.

The following considerations support the consistency of the provisions in clause 6 with section 8. Both proposed provisions are administrative in nature and would apply in a context where privacy expectations are generally reduced. The purpose of the provision authorizing the Minister to communicate the names of those who have made an application is to allow for greater public transparency in the operation of the COVID-19 wage subsidy program. The information that may be communicated by the Minister is limited to the name of the person or partnership, including a corporation or an individual, who has applied for the wage subsidy. The Minister’s authority to communicate this information is discretionary and would be exercised in accordance with the Charter.

The purpose of the second provision to allow the disclosure of taxpayer information to an official is to permit the administration and enforcement of the Canada Emergency Response Benefit program. This is very similar to existing disclosure authorities in section 241 of the Income Tax Act, which permit the disclosure of taxpayer information for the administration and enforcement of a number of other federal statutes.