Bill C-34: An Act to amend the Investment Canada Act
Tabled in the House of Commons, February 10, 2023
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.
The Minister of Justice has examined Bill C-34, An Act to amend the Investment Canada Act, 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-34 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.
Rules for the protection of information during the course of judicial reviews
The Bill would enact a procedure for the protection of information on judicial review of decisions and orders made under Part IV.1 of the Investment Canada Act (the Act), which concerns national security reviews of investments. This framework is similar to ones that exist in several other legislative regimes. The Bill would require a judge, on request of the Minister, to hear evidence and information in the absence of the public, the applicant and their counsel if, in the judge’s opinion, disclosure of the evidence or other information could be injurious to international relations, national defence or national security or could endanger the safety of any person. The Bill would require the judge to ensure the confidentiality of sensitive information, the disclosure of which would harm international relations, national defence or national security or would endanger the safety of any person. Although this information cannot be disclosed, the judge would have to ensure that a summary of the evidence and other information that enables the applicant to be reasonably informed of the Government’s case is provided to the applicant.
Freedom of expression (section 2(b))
Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It includes the “open court principle” whereby members of the public have a right to receive information pertaining to judicial proceedings. Because the Bill would provide that the judge may receive evidence and information in the absence of the public and applicants in certain circumstances, it may engage section 2(b) of the Charter.
The following considerations support the consistency of this aspect of the Bill with the Charter. Like other Charter rights, the open court principle is not absolute and may be limited to advance pressing objectives. Protecting sensitive information from disclosure is a recognized and important state interest. The proposed power to require a closed hearing is limited to circumstances where the judge is of the view that the disclosure of the evidence or other information could lead to the specified harms. The remainder of the proceeding would be open to the public and the applicant. Any summaries provided to the applicant, as required by the Bill, would also become part of the publicly available court record. The judge would have the responsibility for determining whether the disclosure of the evidence or other information would lead to the specified harms, as well as ensuring that adequate summaries are provided.
Disclosure of information to law enforcement
The Bill would re-enact, with modifications, the existing provision that allows communication by the Minister, to certain investigative bodies, of otherwise privileged information collected for the purposes of the Act. Currently, the relevant provision allows for disclosure of such information by the Minister to an investigative body where the disclosure is for the purposes of the administration and enforcement of Part IV.1 of the Act (which concerns national security reviews of investments) and the receiving body’s lawful investigations. It also allows disclosure by investigative bodies for the purposes of their own lawful investigations. The Bill would also add the ability for the Minister to disclose otherwise privileged information to a government of a foreign state or an agency that is responsible for the review of foreign investments, for the purpose of national security reviews of investments. The disclosure of commercial information has the potential to interfere with a reasonable expectation of privacy and so could engage section 8 of the Charter.
Right against unreasonable 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 individuals against unreasonable intrusion into a reasonable expectation of privacy. A search or 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 assessment of the reasonableness of the law is a flexible one that takes into account the nature and purpose of the legislative scheme, and the nature of the affected privacy interests.
The following considerations support the consistency of these provisions with section 8. The disclosure of information to domestic investigative bodies is consistent with the purpose for which the information was collected, that is, to facilitate the review of investments for national security concerns in the context of that body’s lawful investigations. Further disclosure by investigative bodies for the purposes of their own lawful investigations would, like other disclosures of information in the course of a lawful investigation, be conducted pursuant to that body’s authorities, including any constraints imposed by statute, common law or the Charter. Disclosure to foreign investment review bodies is necessary for reciprocity, which serves the Act’s purpose by facilitating the provision by foreign bodies of information to assist the Minister’s national security reviews. It may also be consistent with the purpose of collection where disclosure is carried out for the purpose of facilitating the national security review of investments. Finally, these powers are all discretionary and would have to be exercised in conformity with section 8 of the Charter.
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