Bill C-41: An Act to amend the Criminal Code and to make consequential amendments to other Acts
Tabled in the House of Commons, March 21, 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-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts. 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-41 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.
Bill C-41 would amend the Criminal Code to create a regime that could permit specifically authorized persons to carry out, in a geographic area that is controlled by a terrorist group, activities that would otherwise contravene 83.03(b) of the Criminal Code. An authorization granted under the new regime would allow an eligible person to carry out specified humanitarian or aid related activities that would, without the authorization, contravene the existing criminal prohibition against directly or indirectly providing or making property available to a terrorist group.
The Public Safety Minister would be responsible for making authorization decisions after a referral by the Minister of Foreign Affairs and/or Citizenship and Immigration, as the case may be. An application could be referred where Ministerial decision-makers are satisfied that the proposed activity furthers a purpose recognized in the Bill, such as the provision of humanitarian assistance or the provision of health services; responds to a real and important need in the relevant geographic area controlled by a terrorist group; and will be subject to transparent and accountable reporting in relation to the administration of funds. Where these conditions and any additional requirements set out in regulation are met, the Public Safety Minister may grant an authorization if they are satisfied that there is no practical way to carry out the proposed activity without creating a risk that a terrorist group will use or benefit from the property or financial or related services at issue and the benefits of carrying out the proposed activity outweigh that risk. A robust national security review will inform the Minister’s assessment and consideration will be given to the assessments of the Minister of Citizenship and Immigration and/or the Minister of Foreign Affairs within their respective areas of expertise, risk mitigation measures, and any other terms and conditions that may be included in the authorization.
Exception to an existing offence (section 7 of the Charter)
In introducing the new authorization regime, the Bill reproduces the existing terrorist financing offences at section 83.03 of the Criminal Code. To them, it adds a limited exception to the offence currently set out at section 83.03(b) of the Criminal Code. As the underlying terrorist financing offences at section 83.03 of the Criminal Code are punishable by way of imprisonment, their re-enactment, as modified by Bill C-41, engages the liberty interest protected under section 7 of the Charter.
Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
The following considerations support the consistency of the proposed offences, as amended by Bill C-41, with the Charter. The terrorist financing offences reproduced in the Bill advance Canada’s international commitments to respond to the threat of terrorism, including through measures to address terrorist financing. The scope of the offences was defined to target terrorist activity and terrorist groups. The required proof includes specific intent or knowledge in relation to the prohibited conduct. All existing safeguards remain unchanged. The proposed authorization process will support the responsiveness of existing anti-terrorism measures to evolving geopolitical conditions. It will allow critical activities, such as the provision of humanitarian aid, health services, education services, programs to promote human rights, and resettlement services, to be undertaken by authorized persons in certain regions without threat of criminal liability where circumstances warrant. The Bill uses the model of a criminal prohibition subject to Ministerial exemption that has been upheld as Charter compliant – a prohibition combined with a discretionary power to grant exceptions that must be exercised in accordance with the Charter.
Information provision, sharing and disclosure (section 8 of the Charter)
The Bill includes provisions to enable the Public Safety Minister and supporting government agencies to gather and share information for the purpose of administering the regime. Under the Bill, an application for an authorization may be deemed to be withdrawn if the applicant fails to comply in a timely manner with a request to provide information that ought to have been included in the application or fails to provide any additional information requested by the Public Safety Minister as required. Authorizations may be revoked where the person to whom the authorization is granted fails to comply with any reporting requirements or fails without reasonable excuse to provide any information requested for the purposes of a security review. The Bill also authorizes certain government departments and agencies to assist the Public Safety Minister in the administration and enforcement of the regime, including by collecting information from and disclosing information to the Public Safety Minister and each other.
Statutory authorities to collect information and to share information within the federal government potentially engage 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 intrusions upon their 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 following considerations support the consistency of the information gathering and sharing powers described above with section 8. The measures apply to information relevant to establishing that the conditions for granting or maintaining an administrative authorization to undertake otherwise criminal activities have been met. Applicants will provide some information voluntarily in order to seek an authorization. Where information may be shared between specifically identified federal departments and agencies, it is for the limited purpose of assisting the Public Safety Minister in the administration and enforcement of the authorization regime. The government entities that have been listed have roles, responsibilities and/or information relevant to the effective administration of the regime. In the case of taxpayer information, it may be disclosed by the Canada Revenue Agency solely for the purpose of national security reviews conducted under the regime. Statutory powers authorizing the collection and disclosure of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating criminal offences, have been upheld as reasonable under section 8.
Judicial Review (section 2(b) of the Charter)
Under Bill C-41, persons seeking an authorization would be able to apply to the Federal Court of Canada to seek judicial review of decisions made by the Ministers of Public Safety, Foreign Affairs or Citizenship and Immigration. Due to the criteria governing the issuance of authorizations, which include national security considerations, judicial review proceedings have the potential to involve sensitive information. The Bill would create a framework to facilitate the protection and use of sensitive information in such proceedings. This framework is similar to ones that exist in several other legislative regimes.
On judicial review, a judge must, on the request of the relevant Minister, hear submissions on evidence or other information in a private hearing if the judge is of the opinion that the 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. These submissions would be heard in the absence of the public, the applicant and their counsel (i.e. a hearing held in private). The judge would be obligated to ensure the confidentiality of the evidence or information if the judge determined that its disclosure would be injurious to international relations, national defense or national security or would endanger the safety of any person. Although the information could not be disclosed to the applicant, the judge would have to ensure that the applicant is provided with a summary of the evidence and other information that allows the applicant to be reasonably informed of the Government’s case. These confidentiality provisions could be triggered at any time during a proceeding, on the request of the relevant Minister.
These provisions of the Bill have the potential to engage section 2(b) of the Charter, in particular the open court principle. This is because, when the threshold set out in the legislation is met, the measures would require portions of judicial review proceedings to be conducted in the absence of the public, the applicant and the applicant’s counsel and preclude the disclosure of certain information to the public and the applicant, including the applicant’s counsel.
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.
The following considerations support the consistency of these provisions with the Charter. Like other Charter rights, the open court principle is not absolute and may be limited where there are pressing state objectives. Protecting sensitive information, the disclosure of which could harm international relations, national defence or national security or endanger the safety of any person, is a recognized and important state interest. The proposed hearing process would be tailored to limit the use of closed proceedings to those situations where closed hearings are necessary to protect sensitive information. The presiding judge would have the responsibility for assessing whether the release of the information could lead to the listed harms. Most importantly, the process would only apply to those portions of the judicial review proceedings that involve sensitive information. The remainder of the hearing would be open to the public and the applicant. Finally, any summaries of evidence provided to the applicant under these provisions would become part of the publicly available court record.
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