Bill C-77: An Act respecting the Commissioner for Modern Treaty Implementation

Tabled in the House of Commons, December 10, 2024

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-77, An Act respecting the Commissioner for Modern Treaty Implementation, 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-77 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 provide for the appointment of a Commissioner for Modern Treaty Implementation, tasked with conducting reviews and performance audits of the activities of federal government institutions related to the implementation of modern treaties with indigenous groups. The Commissioner will not be empowered to issue legally binding decisions but will be required to prepare final reports respecting each review and performance audit for tabling in Parliament. The bill would grant the Commissioner a number of powers to support the Commissioner’s work, and would also create an office to support the Commissioner.

Access to Information (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 bill proposes that the Commissioner be entitled to free access to information from a government institution that relates to the fulfillment of the Commissioner’s mandate, the exercise of the Commissioner’s powers or the performance of the Commissioner’s duties or functions, and is entitled to receive from a government institution any information, reports and explanation that the Commissioner considers necessary. Since this provision creates a broad power for the Commissioner to access information in the possession of a government institution, it has the potential to engage section 8 of the Charter.

The following considerations support the consistency of the bill with section 8. The power in question would be used in a purely administrative context, where expectations of privacy are diminished. The information that may be sought is limited to information relevant to the Commissioner’s mandate, powers, duties and functions, and the power could only be exercised in relation to a government institution. Further, the Commissioner and persons acting on the behalf of or under the direction of the Commissioner would be subject to an obligation of non-disclosure, pursuant to which they would be prohibited from disclosing any personal, privileged or confidential information that may be sought in carrying out their functions.