Bill C-23: An Act respecting places, persons and events of national historic significance or national interest, archaeological resources and cultural and natural heritage

Tabled in the House of Commons, October 24, 2022

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-23, An Act respecting places, persons and events of national historic significance or national interest, archaeological resources and cultural and natural heritage 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-23 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. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter statement.

Overview

The Bill would enact the Historic Places of Canada Act, which provides for the designation of places, persons and events that are of national historic significance or national interest. In doing so, the Bill would provide for transparent decision-making, including a stronger voice for Indigenous peoples in determining the designation of historic places, as well as obligations aimed at fostering the protection and conservation of the heritage value of such places. The Bill would also include provisions for the enforcement of the Act, such as a new offence punishable by fines for contravening the regulations or any condition of a license, permit, or other authorization issued under the regulations, as well as corresponding search and seizure powers.

Search and seizure powers

Bill C-23 proposes to authorize park wardens or enforcement officers to enter and search any place and seize any thing, by way of a warrant, in relation to which it is believed that an offence under the Act has been committed, or that is expected to provide evidence of such an offence. The Act would also authorize the exercise of such powers without a warrant if the conditions for obtaining a warrant exist, but it would not be practical to obtain one by reason of pressing circumstances. The proposed measures potentially engage section 8 of the Charter.

Right to be secure against unreasonable search and seizure (section 8) Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect individuals from an unreasonable intrusion into a reasonable expectation of privacy, including in relation to their private information. A search or a seizure that intrudes upon a reasonable expectation of privacy 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 it is carried out in a reasonable manner.

The following considerations support the consistency of the measures with section 8. A warrant would be required to search places and seize things that are expected to provide evidence of an offence committed under the Act. A warrant issued under these provisions would be obtained through judicial authorization on a reasonable grounds to believe standard, reflecting the usual protections for searches in the criminal investigation context and meeting the requirements under section 8 for a search or seizure to be reasonable. Further, warrantless searches or seizures would only be permitted where grounds for obtaining a warrant exist, but by reason of pressing circumstances it would not be practical to obtain one. The proposed search and seizure powers are therefore similar to existing authorities that have been upheld under s. 8 of the Charter.