Bill C-3: An Act to amend the Criminal Code and the Canada Labour Code

Tabled in the House of Commons, December 6, 2021

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-3, An Act to amend the Criminal Code and the Canada Labour Code, 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-3 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

Bill C-3 would amend the Criminal Code to create a new intimidation offence for conduct intended to provoke a state of fear in a health professional or a person who assists a health professional to impede the performance of their duties. The new intimidation offence also would apply to conduct intended to provoke a state of fear in a person to prevent them from obtaining health services. Further, the amendments would create a new offence for intentionally obstructing or interfering with another person’s access to a place where health professionals provide health services. This offence would include a defence to ensure that it does not apply where persons are at the place only for the purpose of obtaining or communicating information. The offences would be punishable by up to 10 years imprisonment on indictment or two years less a day by summary proceeding.

In addition, the Bill would make it an aggravating factor in sentencing for any offence when there is evidence that: (i) the offence was committed against a person providing health services, including personal care services, as part of their duties, or (ii) where there is evidence that the offence had the effect of impeding another person in obtaining health services, including personal care services.

These amendments could engage rights and freedoms under sections 2(b), 2(c), 7 and 12 of the Charter.

Intimidation and obstructing access offences

As noted, the Bill would create new intimidation and obstructing access offences in the Criminal Code. The intimidation offence would criminalize conduct intended to provoke a state of fear in a health professional or person attempting to obtain health services. The obstructing access offence would make it an offence to intentionally obstruct or interfere with a person’s access to a place where health professionals provide health services.

Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, and includes freedom of the press and other media of communication. Section 2(b) has been broadly interpreted as encompassing any activity or communication, aside from violence or threats of violence, which conveys or attempts to convey meaning. Section 2(c) is closely related to freedom of expression and protects participation in peaceful demonstrations, protests, meetings, picketing and other assemblies.

The following factors support the consistency of the amendments with sections 2(b) and 2(c) of the Charter. The intimidation offence would include a specific intent requirement, which means there would have to be proof that a person intended to provoke a state of fear in another person. As mentioned above, section 2(b) does not protect violence or threats of violence and similar considerations apply under section 2(c). Meanwhile, the obstructing access offence would allow for a defence for persons who are merely at a place to obtain or communicate information. Neither offence would prohibit peaceful protests or demonstrations. To the extent that the offences could have some effect on activities potentially protected by sections 2(b) and 2(c), it would be, at most, at the periphery of these freedoms. Section 1 of the Charter allows for reasonable limits on rights and freedoms where these are demonstrably justified. The important purpose of the measures, in seeking to protect persons providing and receiving health care services, may be viewed as striking a proportionate balance with any peripheral effect on the freedoms, and as being justified for this reason.

Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived of those rights except in accordance with the principles of fundamental justice. In creating new offences that have the potential to lead to imprisonment, the amendments could lead to a deprivation of liberty. In reviewing the relevant measures, the Minister of Justice has not identified any potential inconsistencies of the offence provisions with the principles of fundamental justice under section 7.

Aggravating factor for sentencing purposes

As noted, the Bill would make it an aggravating factor in sentencing for any offence where there is evidence that the offence was committed against a person providing health services, including personal care services, as part of their duties or where there is evidence that the offence had the effect of impeding another person in obtaining health services, including personal care services.

Section 12 of the Charter protects against cruel and unusual treatment or punishment. In the context of sentencing, section 12 prohibits grossly disproportionate punishments. Taking into consideration, as an aggravating sentencing factor, that an offence was committed against a person providing health services or that an offence had the effect of impeding a person from receiving health services could result in the imposition of higher sentences for such offences than otherwise would be the case.

The following factors support the consistency of the amendments with section 12 of the Charter.  Statutory measures establishing aggravating factors would not themselves provide for grossly disproportionate punishments. The amendments signal that the relevant aggravating sentencing considerations can include offences targeting health care providers or that impede persons from receiving health services. However, courts retain the judicial discretion to impose proportionate sentences in consideration of all the relevant circumstances of each case.