5. Legislation
Bill C-9, An Act to amend the Judges Act
Topic: How will this Bill put an end to the millions paid out in legal fees over the last few years related to judicial conduct inquiries? Why does this Bill contain a statutory appropriation, a provision allowing for the payment of certain process costs directly from the Consolidated Revenue Fund (CRF)?
Context: Bill C-9, introduced in December 2021, proposes amendments to the Judges Act aimed at reforming the process for examining complaints about the conduct of federally appointed judges. It proposes a more efficient and cost-effective process, with a new funding mechanism allowing for payment of certain key process costs from the CRF. New safeguards to ensure proper financial controls of costs paid from the CRF are also proposed.
- The current process for reviewing complaints of misconduct against federally appointed judges suffers from important shortcomings. Left unaddressed, they risk undermining public confidence in the process and, by extension, in our judiciary. The Canadian Judicial Council, which administers the process, has called for reforms through its Chair, the Chief Justice of Canada. The Canadian Superior Courts Judges Association and others echo this call.
- Bill C-9, as passed by the House of Commons in December 2022, proposes reforms aimed at ensuring that the judicial conduct process commands the confidence of all Canadians, including members of the judiciary. The proposed reforms are sweeping in scope and would amount to a substantially new process.
- Key to the reforms as passed by the House of Commons are more efficient procedures that avoid the kinds of lengthy and costly judicial review proceedings that have helped drive high process costs over the last few years.
- A new funding mechanism is also proposed. It would ensure that the costs associated with public hearings can be paid directly from the Consolidated Revenue Fund. This is appropriate since such hearings are constitutionally required, unpredictable, and highly variable relative to regular operating costs. Safeguards to ensure rigorous financial controls for costs paid directly from the CRF would also be enacted.
If asked about an editorial recently published in the CBA’s The National written by a Department of Justice lawyer, which was critical of the Canadian Judicial Council and called for reforms to the judicial conduct process:
- I understand that the original version of the editorial you are referring to was published some years ago. In any event, it evidently does not take Bill C-9 into account.
- Bill C-9, as passed by the House of Commons last December, would effectively address the shortcomings of the current judicial conduct process, and render the process fairer and more transparent, as well as more efficient and cost-effective.
Background:
Bill C-9 was introduced in December 2021 and is currently at third reading in the Senate. The Minister appeared in support of the Bill before the Standing Committee on Justice and Human Rights on November 17, 2022, and before the Standing Senate Committee on Legal and Constitutional Affairs on March 23, 2023. The Bill proposes amendments to the Judges Act aimed at reforming the judicial conduct process, which applies to the judges of the provincial and territorial superior courts, the federal courts, and the Supreme Court of Canada (SCC). It also applies to the associate judges of the Federal Court and Tax Court of Canada. The same Bill was previously introduced in the Senate in December 2021 as S-3, and in May 2021 as S-5.
The constitutional principle of judicial independence has important implications for the design, and thus inevitably for the cost, of any judicial conduct process. It has been found by the SCC to require that judicial conduct processes be judge-led, and that a judge facing possible removal has a full opportunity to be heard and adduce evidence at a hearing. Lower courts have also found that a judge facing conduct proceedings has a right to paid counsel for the purposes of those proceedings. By necessary implication, a judicial conduct process must operate at arm’s length from the executive and legislative branches of government.
The current judicial conduct process suffers from a number of serious shortcomings, prompting calls for reform from the Chief Justice of Canada in his capacity as Chair of the Canadian Judicial Council (CJC), which administers the process, as well as from the Canadian Superior Courts Judges Association and other legal stakeholders. Key shortcomings include inefficiency and cost due to lengthy procedures, especially regarding review of Council decisions by the courts. The Bill would make comprehensive changes to the process, amounting to the implementation of a substantially new process. The proposed reforms fall into three broad categories, each of which has consequences for process costs.
(1) Overhauling the existing process for making recommendations to the Minister of Justice on whether a judge should be removed from office pursuant to s. 99 of the Constitution Act, 1867: Redesigned procedures, as passed by the House of Commons in December, would be fairer, faster, and more cost-effective. In particular, a shorter, more efficient appeals process would replace judicial review of CJC decisions through the federal courts, which has helped drive high process costs over the last few years. Senate amendments – if adopted – would add a layer of appeals to the process, allowing judges to appeal as of right to the Federal Court of Appeal before applying for leave to appeal to the Supreme Court of Canada. This would undermine some of the cost-savings and efficiencies of the Bill. The Senate proposed other amendments with a negligible impact on costs, including amendments regarding greater involvement of laypersons in the process, the consensual collection and publication of disaggregated data concerning complainants, and a few other matters.
(2) Creating new procedural steps for addressing misconduct not serious enough to warrant removal from office: Currently, the Council cannot impose sanctions for any misconduct found to be not serious enough to warrant removal from office unless the judge concerned agrees. The Bill would create fair and cost-effective procedures for imposing sanctions for less serious misconduct without the judge’s consent.
(3) Creating a new funding mechanism for the process with safeguards to ensure sound financial controls: Currently, annual costs vary significantly from year-to-year due to the constitutional requirement to hold public hearings for complaints that may warrant removal from office. This poses a financial and budgeting challenge because such complaints arise unpredictably, and costs will vary greatly depending on the complexity of the matters at issue. The Bill proposes a funding mechanism to address this variability: a provision allowing for payment of non-discretionary costs associated with public hearings directly from the Consolidated Revenue Fund (CRF). The Bill also proposes measures to ensure financial controls and transparency with respect to all costs paid directly from the CRF, including a review of all such costs and of the adequacy of financial control measures to be conducted every five years, with the results made public.
Day-to-day process operating costs, i.e. those not associated with public hearings, are relatively low and stable from year to year (less than $500,000 per year) and are paid from funds secured annually via the ordinary budget process by the Commissioner for Federal Judicial Affairs. The Commissioner is ultimately accountable for all process costs. His office provides the CJC with the necessary financial and administrative support to manage the process. Bill C-9 would leave these aspects of the current process unchanged.
Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts (An Act for the Substantive Equality of Canada’s Official Languages)
An Act for the Substantive Equality of Canada’s Official Languages was adopted by the House of Commons on May 15, 2023.
- On March 1, 2022, our Government tabled Bill C-13, entitled An Act for the Substantive Equality of Canada’s Official Languages. The Bill was adopted by the House of Commons on May 15, 2023.
- This Bill affects many facets of the federal linguistic framework. It aims to improve access to justice in both official languages and has a major impact on how we administer our legal system and our courts.
- In this regard, the Bill, as amended by LANG and adopted by the House of Commons, contains proposed amendments to the OLA that relate to my responsibilities as Minister of Justice: the bilingualism of the Supreme Court of Canada and superior courts, appointments to federal courts that would enable them to ensure sufficient institutional bilingualism to fulfill their obligations, the language evaluation and training of superior court judges by the Office of the Commissioner for Federal Judicial Affairs, as well as and the translation of final decisions of federal courts.
- With respect to bilingualism of the Supreme Court of Canada, the Bill proposes to amend section 16 of the Official Languages Act (OLA) so that it now falls to all federal courts, including the Supreme Court, to ensure that judges who hear proceedings can do so without the assistance of an interpreter, as is already the case for other federal courts. The federal government would be responsible for ensuring that the courts have sufficient bilingual capacity. This obligation would ensure that federal courts are able to assign a judge to each case who speaks and understands the official language chosen by the parties.
- The legislation would now reflect my current practice of requiring the federal government to consider the importance of equal access to justice in both official languages when appointing superior court judges.
- The Office of the Commissioner would be required to put in place measures to assess individuals who have indicated that they are bilingual in their application for appointment as a superior court judge. The legislation would also require the Office to provide language training for superior court judges, a role it already performs.
- The Bill also proposes to amend section 20 of the OLA to add a new category of final decisions of federal courts that must be made available to the public simultaneously in both official languages: those that have precedential value.
Question: Will all provincial and territorial superior court judges have to be bilingual?
Answer: No. I ensure that sufficient judges are appointed to superior courts whose combined knowledge of official language allow litigants to use the official language of their choice. To this end, I am holding consultations with the Chief Justices and my provincial and territorial counterparts, who are advising me of the current and future bilingualism needs of their courts.
Question: The compliance issues with section 20 have been well documented for a number of years. Won’t the amendments that you are suggesting make these issues worse?
Answer: Our Government is well aware of the compliance challenges that section 20 represents for some federal Courts. The Bill therefore provides for a delayed coming into force of one year for this specific proposal. This period will allow for measures to be taken to address better compliance with section 20.
Question: The preamble and provisions in Part VII of the OLA would refer to the provincial and territorial linguistic regimes and specify that the Charter of the French Language (CFL) states that French is the official language of Quebec. Several new provisions of the CFL, as amended by Quebec’s Bill 96, are challenged before the courts as being unconstitutional. If the courts agree with the plaintiffs, wouldn’t the Government have the obligation to withdraw the reference to the CFL in Bill C-13?
Answer: No. The mention of French as the official language of Quebec in the CFL is not new: it has been there since the adoption of the CFL in 1977. Bill C-13 simply recognizes this fact. The court challenges are aimed at amendments to the CFL brought by Bill 96 (and some similar amendments allegedly brought by the Constitution Act, 1867) and not to the CFL in its entirety.
Question: How would the new reference to the Charter of the French Language in the object of the OLA affect the interpretation of the other dispositions of the OLA?
Answer: The reference to the Charter of the French Language is done in the context of a broader reference to the diversity of provincial and territorial language regimes which all contribute to the advancement of the equality of status or use of English and French in Canadian society. This is not an incorporation by reference of the Charter of the French Language, which would make its provisions applicable to federal institutions.
Question: The Government of Quebec announced publicly that the CFL would be applicable to federally regulated private businesses (FRPBs) and the Office québécois de la langue française sent notices to over 800 of them requesting that they comply with the francization process of the CFL. Will you challenge this application of the CFL to FRPBs?
Answer: For the time being, we are following with interest the application of Bill 96 by the Government of Quebec. For several years now, a significant number of FRPBs have voluntarily subjected themselves to the francization process of the CFL: there is a distinction, however, between voluntary application and legal effect since, from a constitutional perspective, we cannot renounce to the doctrine of exclusive jurisdiction. In addition, a few FRPBs are already subject to the OLA in compliance with their privatization statutes (e.g., Air Canada and the CN). For FRPBs which are not subject to the OLA (i.e., the vast majority of them), Bill C-13 proposes a new statute, the Use of French in Federally Regulated Private Businesses Act (UFPBA), which would create rights and duties regarding the use of French as language of work and language of communications with the public in FRPBs in Quebec and in regions with a strong francophone presence. The UFPBA would also provide FRPBs the choice of opting for the CFL instead of the UFPBA.
Background:
With respect to section 16:
- In correspondence to the Indigenous Bar Association in respect of the 2021 Supreme Court of Canada appointments process, you noted the Government’s commitment to functional bilingualism, while indicating your confidence that there are exceptional Indigenous jurists able to meet this functional requirement. Considering the recent appointment of the Honourable Michelle O’Bonsawin, it is unlikely that this question will be raised.
With respect to the new sections 16.1, 16.2 and 16.3 added by LANG:
- This amendment was presented by the liberals at committee stage. Liberal and NDP MPs voted in favor of this amendment while Conservative and Bloc Québécois MPs voted against it.
- Section 16.1 would not result in all judges needing to be bilingual. Within the same court of justice, the number of judges who understand and speak English and those who understand and speak French would have to be sufficient for litigants to use the official language of their choice. Some judges could be unilingual (French or English) while others could be bilingual.
- Sections 16.2 and 16.2 codify the current practice.
With respect to section 20:
- There has been a policy change between the tabling of Bill C-32 amending the OLA and Bill C-13. Bill C-32 proposed to add a category of final decisions of federal courts that have to be made available to the public simultaneously in both official languages – those that have precedential value – while not having to translate other certain final decisions. Bill C-13 keeps the current obligation to having to translate all final decisions “at the earliest possible time”.
- Those changes were made considering concerns that were made by some stakeholders following the tabling of Bill C-32.
- The Bill does not define the expression “precedential value”, leaving to the courts the discretion to do so in internal policies or to apply it as they deem appropriate. This is already the case for decisions “of general public interest or importance” in the current section 20. This expression is not defined and left to the discretion of federal courts. The Bill envisions the same approach with respect to decisions having “precedential value”.
- Since C-13 has been tabled, it does not seem that public criticism was made with respect to the broadening of the scope of section 20.
If sections 16.1, 16.2, 16.3 and 20 were adopted in the currently proposed form, it is expected that the Courts Administration Service as well as the Administrative Tribunals Support Service of Canada and the Commissioner for Federal Judicial Affairs (in a lesser measure for the latter two) will make funding requests in an eventual Memorandum to Cabinet or through budget requests on the non-discretionary costs of resulting from the implementation of C-13.
With regard to Bill 96, there are five distinct court challenges before the Superior Court of Quebec.
These challenges are aimed at a variety of new provisions of the CFL regarding the administration of justice (e.g., the duty of moral persons who wish to file written pleadings in English before a court to join a certified French translation simultaneously, or else the court cannot accept the document). In this regard, in one of the court challenges (Mitchell), the plaintiffs requested and the court agreed to suspend the application of the challenged provisions until the final resolution of this case.
In another court case (English School Board of Quebec), the plaintiffs challenge in particular the constitutional validity of new obligations imposed on school boards by the CFL to use French, or French and English, in a variety of administrative communications, as well as the alleged amendments to the Constitution Act, 1867 which provide that the Quebecers form a nation, that French is the only official language of Quebec and the common language of the Quebec nation.
In another case (Rondeau), the Chief Justice of the Court of Quebec challenges the constitutional validity of a new provision of the CFL which provides that it is prohibited to require the knowledge of a language other than French from a person who would be appointed as a judge, unless the Minister of Justice is of the view that this knowledge is necessary.
The latest case was filed by the Assembly of First Nations Quebec-Labrador. They are of the view that the Act infringes on their rights to self-determination and to teach their children their ancestral languages.
As was done for the many court cases challenging Quebec’s Bill 21, the Attorney General of Quebec filed a motion asking that three of the four court cases be merged. This motion was granted.
Finally, the AGC is neither a party nor an intervener in any of these court cases, but you said publicly that if the question of the pre-emptive use of the notwithstanding clause of the Canadian Charter by Quebec made its way to the Supreme Court of Canada, you would ask the authorisation to intervene, whether in the Bill 21 case or the Bill 96 cases. The Prime Minister had also publicly indicated that he was considering sending this question to the Supreme Court of Canada.
Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms)
Bill C-21 is a comprehensive legislative package aimed at addressing firearms violence in Canada.
- On May 18, 2023, the House of Commons passed Bill C-21, the most significant legislation against gun violence in a generation. It includes a number of measures that aim to significantly reduce firearms violence and make Canada safer. The Bill is now with the Senate.
- Amongst other things, the Bill would amend the Criminal Code to address intimate partner and gender-based violence by creating a “red flag regime”.Itwould allow any individual who has reasonable grounds to believe that another individual poses a public safety risk to apply directly to a court for a short-term order prohibiting that person from possessing a weapon, including firearms.
- Bill C-21 also targets firearms smuggling and trafficking by increasing maximum penalties from 10 to 14 years for these and other related offences. It would also create a new offence of altering a cartridge magazine so that it is able to hold more than the legal number of cartridges.
- In addition, the Bill proposes to amend the definition of “prohibited firearm” to add technical criteria to prohibit future assault-style firearms. The Bill also includes a parliamentary review of the technical criteria five years after the provision comes into force.
- The Bill would strengthen the Criminal Code to help prevent the proliferation of 3D printed ghost guns.
- These are important changes that will target gun crime and improve the safety of our communities.
Question: How does the increase in maximum penalties for certain firearms offences in Bill C-21 intersect with Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, which repealed mandatory minimum penalties (MMPs) for certain firearms offences?
Answer: Bill C-5 received Royal Assent on November 17, 2022, and repealed MMPs for 13 firearms-related offences. These measures do not change the requirement of sentencing courts to impose penalties that reflect the seriousness of the offence and the offender’s culpability.
Bill C-21 proposes to increase maximum penalties for weapons and trafficking offences, which signals Parliament’s intent that these offences be treated more seriously and which I am confident the courts will continue to do.
Question: What factors are included in the new technical description that prohibit future assault-style firearms?
Answer: The amendment to the definition of “prohibited firearm” in the Criminal Code includes the following technical criteria: the firearm must discharge centre-fire ammunition in a semi-automatic manner and must have been originally designed with a detachable magazine that is capable of holding six or more cartridges.
The technical definition does not apply to firearms that are currently in the Canadian market. It would only apply to firearms designed and manufactured on or after the day that the provision comes into force.
Background:
On May 18, 2023, the House of Commons passed Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms). The Bill would amend the Criminal Code, the Firearms Act, the Immigration and Refugee Protection Act, and the Nuclear Safety and Control Act to protect public safety and address factors that contribute to gun violence. The amendments aim to prevent firearms-related harm, including gender based and intimate partner violence.
The Bill would amend the Criminal Code to:
- Increase maximum penalties from 10 to 14 years for firearms trafficking (sections 99 and 100) and smuggling (section 103), possession of a weapon obtained by the commission of an offence (section 96) and possession of a loaded (or easily loaded) restricted or prohibited firearm (section 95);
- Establish a “red flag” regime that would allow any individual to apply to a judge if they reasonably believe that another individual should not have access to firearms because they pose a danger to themselves or others;
- Amend the definition of “prohibited firearm” to include technical criteria that would prohibit future assault-style firearms. These criteria are that the firearm discharges centre-fire ammunition in a semi-automatic manner and was originally designed with a detachable cartridge magazine with a capacity of six cartridges or more. These criteria would apply to firearms that are designed and manufactured on the day or after the amendment comes into force and would be subject to a parliamentary review five years after the amendment comes into force;
- Amend the definition of “replica firearm” to clarify that the thing must exactly resemble, or resemble with near precision a regulated firearm;
- Address the proliferation of ghost guns by making it an offence to possess or distribute computer data where the person has either the intent to illegally manufacture a 3D printed firearm or has knowledge that the computer data is intended to be used to illegally manufacture a 3D printed firearm;
- Classify all ghost guns as “prohibited firearms” regardless of the physical characteristics of the firearm;
- Create a new offence of altering a cartridge magazine to exceed its lawful capacity;
- Authorize wiretaps for the proposed new offences and sections 95 and 96.
Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews) Miscarriage of Justice Review Commission Act
Bill C-40 proposes to reform the miscarriage of justice review process and establish an independent Miscarriage of Justice Review Commission to review, investigate and decision which cases should be returned to the justice system due to a potential miscarriage of justice.
- The establishment of an independent Miscarriage of Justice Review Commission was included in the Minister of Justice’s mandate letters in 2019 and 2021. It also responds to calls from commissions of inquiry into wrongful convictions, interested stakeholder groups and advocates for the wrongfully convicted.
- The goal of creating an independent commission is to help improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed, including for Indigenous peoples, Black persons and members of other racialized or marginalized populations. Addressing miscarriages of justice more quickly would help to mitigate the devastating impact they have on the potentially wrongfully convicted person, their family, victims and the integrity of justice system.
Question: How will the new commission-led process improve upon the current ministerial review process?
Answer: An independent commission, with 5 to 9 commissioners dedicated exclusively to miscarriage of justice reviews, would have a greater capacity to review miscarriage of justice claims more quickly. Bill C-40 also proposes to provide more flexibility in the threshold to conduct investigations and in the legal test for referral of cases back to the justice system. It also adds new decision-making factors to take into account the personal circumstances of the applicant and the distinct challenges that applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention to the circumstances of Indigenous or Black applicants.
Question: What would be the Commission’s budget compared to the current budget for the miscarriage of justice review process administered by the Department of Justice?
Answer: Bill C-40 proposes to reform the miscarriage of justice review process and establish an independent Miscarriage of Justice Review Commission to review, investigate and decision which cases should be returned to the justice system due to a potential miscarriage of justice.
Background:
The legislative reforms proposed in Bill C-40, which was introduced on February 16, 2023, would allow the Government of Canada to implement its plan to establish a new commission, as an independent administrative body, to review miscarriage of justice applications. Bill C-40 proposes to amend the Criminal Code to, among other things:
- Establish an independent body to be called the Miscarriage of Justice Review Commission;
- Replace the review process set out in Part XXI.1 of the Criminal Code with a process in which applications for reviews of findings and verdicts on the grounds of miscarriage of justice are made to the Commission instead of to the Minister of Justice;
- Confer on the Commission powers of investigation to carry out its functions;
- Provide that the Commission may direct a new trial or hearing or refer a matter to the court of appeal if it has reasonable grounds to conclude that a miscarriage of justice may have occurred and considers that it is in the interests of justice to do so;
- Authorize the Commission to provide supports to applicants in need and to provide the public, including potential applicants, with information about its mandate and miscarriages of justice; and
- Require the Commission to make and publish policies and to present and publish annual reports that include demographic and performance measurement data.
Calls for the establishment of an independent criminal case review commission for Canada have been made since the late 1980s, including in the reports and recommendations of commissions of inquiry into the wrongful convictions of Donald Marshall Jr. in 1989, Guy Paul Morin in 1998, Thomas Sophonow in 2001, James Driskell in 2007 and David Milgaard in 2008. Independent criminal case review commissions have been established in the following Commonwealth jurisdictions: England, Wales and Northern Ireland in 1997, Scotland in 1999 and New Zealand in 2020. The creation of the independent criminal case review commissions in those jurisdictions has led to significantly more applications being made. As a result, more wrongful convictions are being identified and remedied, compared to Canada. For example, the Criminal Cases Review Commission in England, Wales and Northern Ireland receives approximately 1,200 applications each year and as of the end of 2022 has led to the successful referral of 542 cases since 1997. The one in Scotland has received almost 3,000 applications since 1999, leading to the successful referral of 88 cases as of the end of March 2022. In Canada, since the last reforms to this Part of the Criminal Code were made in 2002, only 187 applications for review have been submitted for review, resulting in 23 successful referrals to date. The majority of those applicants were white and male. Therefore, the current system has failed to provide remedies for women, Indigenous peoples or Black persons in the same proportion as they are represented in Canada’s prisons.
The new independent commission will help to address this issue. An independent commission dedicated exclusively to miscarriage of justice reviews will help improve access to justice by making it easier and faster for potentially wrongfully convicted people to have their applications reviewed, including for Indigenous people, Black persons, and members of other racialized or marginalized populations. Addressing miscarriages of justice more quickly will help to mitigate the devastating impact they have on the convicted person, their family, victims and the integrity of justice system. The Government of Canada is committed to reforming and improving Canada’s justice system to ensure that all Canadians have access to fair and just treatment before the law. Bill C-40 seeks to make progress on that commitment and, in doing so, increase public confidence in the justice system.
Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts
Bill C-41 proposes to amend the terrorist financing offence in paragraph 83.03(b) of the Criminal Code in order to allow the Minister of Public Safety to facilitate activities for certain purposes, such as providing humanitarian assistance, where doing so would otherwise give rise to criminal liability for committing that offence.
- On March 9th, our government introduced Bill C-41, which proposes to amend the terrorist financing provision in paragraph 83.03(b) of the Criminal Code. That offence currently makes it a crime to, directly or indirectly, provide, make available, or invite to provide property or financial or other related services knowing that it will be used by or will benefit a terrorist group.
- The Taliban is a terrorist group under Canadian criminal law, in part because it is a listed entity under the Criminal Code. It is now the de facto authority in Afghanistan, but Canada does not recognize it as the government of Afghanistan.
- Canadian organizations that wish to provide humanitarian and other needed assistance to the people of Afghanistan find themselves at risk of breaching this terrorist financing offence because, for example, paying salaries to local employees who are taxed by the Taliban or paying taxes or other fees directly to the Taliban would be an offence.
- Bill C-41 proposes to remove this barrier to the delivery of life-giving and essential aid.
- The Bill proposes to create an authorization regime whereby the Minister of Public Safety may authorize Canadian organizations to engage in activities for the purposes specified in the legislation, such as providing humanitarian assistance, in areas controlled by a terrorist group. As a result, a person who receives an authorization and abides by its terms would not face any criminal liability normally provided for in paragraph 83.03(b).
- Another purpose for which an authorization could be obtained is to provide immigration services. This would help to accomplish mandate letter commitments of the Minister of Foreign Affairs and the Minister of IRCC directing them to work together to continue to facilitate the safe passage and resettlement of vulnerable people from Afghanistan, such as individuals who supported Canada and our allies, over the past two decades.
- Bill C-41 has been studied by the House of Commons Standing Committee on Justice and Human Rights. Clause-by-clause consideration was completed on May 31, 2023. One amendment that was made creates an exemption from the terrorism financing offences found in section 83.03 of the Criminal Code for the delivery of humanitarian assistance without the need to apply for an authorization. The House of Commons is now poised to consider the Bill at Report Stage/Third Reading.
Question: Is the reform in Bill C-41 really necessary? Properly interpreted, doesn’t the current offence already allow for providing such assistance?
Answer: The current terrorist financing offence in paragraph 83.03(b) has a broad reach and is limited only by its mental fault (or mens rea) requirement, namely that one must directly or indirectly provide property knowing that it will be used by or will benefit a terrorist group. Knowing includes wilful blindness, which means deliberate ignorance. There is no statutory defence to this offence. Without this reform, the ultimate authority on the interpretation of this offence is the courts. The proposed amendment would leave no doubt about the scope of the offence.
Question: Why did it take the Government so long to introduce this Bill in Parliament, given that the Taliban took over Afghanistan 18 months ago?
Answer: Developing an authorization regime that finds the appropriate balance between combating terrorism financing, while ensuring that needed assistance can flow to vulnerable populations in areas controlled by terrorist groups is a complex task. Cooperation among several government departments and agencies to resolve difficult issues, such as the scope of any carve-out to the offence, was essential but time-consuming.
Background:
Existing Law:
Section 83.03(b) of the Criminal Code, makes it an offence to provide money (among other things) knowing that in whole or in part it will be used by or benefit a terrorist group. This means that Canadian humanitarian NGOs (among others) that directly or indirectly provide property, including money, knowing that it will benefit a terrorist group, including ones that partly or wholly are the de facto authority in a country, could be charged with having committed a criminal offence. While to our knowledge no charges have ever been laid in respect of a person providing humanitarian aid, the Canadian government cannot guarantee that this would not happen.
Overview of the Proposed Authorization Regime:
Under the proposed regime, the Minister of Public Safety, or a person designated by them, has the authority to permit activities that would otherwise be prohibited by paragraph 83.03(b) of the Criminal Code when those activities are done in order to achieve specific purposes, such as providing humanitarian or immigration assistance. The approach could be for a specific activity or a bundle of activities to achieve one or more purposes, where warranted.
Global Affairs Canada (GAC), or Immigration, Refugee and Citizenship Canada (IRCC) for issues related to safe passage and immigration processing respectively, would first need to examine an application for an authorization, ensuring that certain key requirements have been met. For example, they would verify that the applicant is proposing activities covered by the exception, that the activity responds to a real and important need, and that the applicant is capable of administering funds in an appropriately transparent and accountable way. Once GAC or IRCC, as the case may be, is satisfied that those conditions are met, they refer the application, with their assessment of those conditions, to Public Safety.
Public Safety then would conduct a security review, with input from CSIS, RCMP, CBSA, CSE, and other relevant departments to determine whether to issue an authorization. Public Safety would benefit from the GAC/IRCC assessment, including in many cases the Canadian government’s involvement as a funder of the applying NGO. Information from the Canada Revenue Agency could also be taken into account for the purpose of the security review that helps determine the reliability of an applicant.
Authorizations can include specific reporting and compliance conditions, as well as any additional mitigation measures. It is anticipated that the process will develop (including potentially through more formalized guidance through regulations in due course). The mechanism is flexible enough to allow fairly broad permissions for trusted NGOs with well-established reputations and internal systems, and more targeted oversight for less well-established organizations, or for those that are less well known to the Canadian government.
Committee Hearings into Bill C-41:
Bill C-41 was studied by the House of Commons Standing Committee on Justice and Human Rights. Clause-by-clause consideration was completed on May 31, 2023. One amendment that was made at clause-by-clause creates an exemption for the delivery of humanitarian assistance without the need to apply for an authorization. This exemption would apply to the terrorist financing offences found in section 83.03 of the Criminal Code. The Committee is in the process of reporting the amended Bill to the House of Commons. Report Stage/Third Reading of the Bill is scheduled to begin in the House of Commons on Friday, June 9, 2023.
Bill C-48, An Act to amend the Criminal Code (bail reform)
Bill C-48 proposes targeted amendments to the bail provisions of the Criminal Code that aim to promote community safety and reinforce public confidence in the administration of justice, while respecting the Charter.
- On May 16, 2023, I introduced Bill C-48, An Act to amend the Criminal Code (bail reform), which aims to promote community safety and reinforce public confidence in the administration of justice, while respecting the Charter rights of accused persons.
- This Bill proposes targeted amendments to the bail provisions of the Criminal Code to address serious repeat violent offending with a weapon, offending with a firearm, and offending involving intimate partner violence. It also includes a preamble that affirms core principles underpinning the law of bail, and a requirement that a parliamentary review of Bill C-48 start five years after the Bill receives Royal Assent to help assess the effectiveness of the legislative measures.
- This Bill is the result of significant federal, provincial and territorial dialogue, cooperation and collaboration and has also been informed by engagement with other partners and stakeholders, including law enforcement, community organizations and Indigenous partners.
If asked about the impact of the Bill on the overrepresentation of certain groups in the criminal justice system?
- The federal government is committed to addressing systemic discrimination in Canada’s criminal justice system.
- In the development of Bill C-48, we considered potential impacts on Indigenous people, Black persons and members of other vulnerable groups who are already overrepresented in our criminal justice system and in pre-trial detention.
- This is why Bill C-48 proposes narrow amendments that target repeat violent offending specifically.
If asked whether there will be any federal funding to support the bail system and implementation of this Bill?
- The federal government recognizes the resource implications of administering justice and enforcement measures, including in relation to the bail system, which the provinces and territories are responsible for.
- This is why we have made funding available to support efforts to combat guns and gangs, which has been used to support relevant bail initiatives.
- We also recently announced $390.6 million over five years in funding directly to provinces and territories to help support a variety of initiatives to reduce gun crime and criminal gang activities. This funding builds on the initial $358.8 million invested into the Initiative to Take Action Against Gun and Gang Violence, first announced in 2017.
Background:
FPT Considerations:
Violent offending, including random acts of violence, have drawn widespread attention and concern across the country. There has been significant and growing concerns over the perceived leniency of the bail system for repeat violent offenders, including those facing firearms and other weapons related charges.
In October 2022, Federal-Provincial-Territorial (FPT) Ministers Responsible for Justice and Public Safety met and directed senior FPT officials to examine these issues and identify potential law reform options. Calls for reform intensified after the tragic December 27, 2022, shooting death of OPP Constable Grzegoz (“Greg”) Pierzchala, allegedly by someone released on bail and wanted on a warrant. On January 13, 2023, all 13 PT Premiers wrote to the Prime Minister insisting on urgent bail reform. On March 10, 2023, the Ministers of Justice and Public Safety hosted their PT counterparts for an urgent meeting on the bail system. At this meeting, the Ministers agreed that the bail system functions appropriately in many but not all cases, and that both legislative and non-legislative action is needed to ensure that the objectives of the bail system are being met. You agreed during this meeting to take urgent action to strengthen public safety through targeted Criminal Code bail amendments.
Bill C-48:
On May 16, 2023, you delivered on the federal government’s commitment by introducing Bill C-48, An Act to amend the Criminal Code (bail reform). This Bill proposes targeted amendments to the bail provisions in the Criminal Code that aim to promote community safety and reinforce public confidence in the administration of justice, while respecting the Charter rights of accused persons.
More specifically, the Bill would:
- Create a new reverse onus for accused persons charged with a serious repeat violent offence involving the use of a weapon;
- Add certain firearms offences to the reverse onus regime;
- Expand the existing intimate partner violence reverse onus so that it applies to accused persons who have been previously discharged for such offences;
- Clarify the meaning of a “prohibition order” for the purpose of an existing reverse onus; and,
- Require courts to consider an accused person’s history of convictions involving violence, and the safety of the community when making a bail decision.
It also includes a preamble that affirms core principles underpinning the law of bail, and a mandatory legislative review by Parliament starting five years after the Bill receives Royal Assent.
Former Bill C-75 Reforms:
Former Bill C-75 has been the subject of much debate and has been said by some to have broken the bail system by creating a system of “catch and release”.
Former Bill C-75, which came fully into force in December 2019, included the largest reform to the bail regime in the Criminal Code since 1972, and was the result of significant FPT collaboration. These amendments sought to modernize and streamline the statutory bail regime, while ensuring public safety and helping to maintain public confidence in the criminal justice system. Former Bill C-75 did not change the law on bail; it codified binding Supreme Court of Canada (SCC) case law, made bail harder to obtain for those accused of repeat intimate partner violence, and sought to reduce the number of accused persons in pre-trial custody for low-level, non-violent offences. Neither former Bill C-75 nor the SCC decisions changed the legal criteria for when accused persons can be detained by police or justices.
Bill C-48 proposes to strengthen the intimate partner violence reverse onus that was created by former Bill C-75 by expanding it to ensure that it also applies to accused persons who have been previously discharged for an offence involving intimate partner violence.
Bill S-11, A fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law (Harmonization)
The fourth omnibus harmonization bill, passed by the Senate and introduced in the House of Commons on February 7, 2023, aims to harmonize federal legislation with the private law of the provinces and territories in order for each linguistic version to take into account civil law and common law.
- The fourth harmonization bill results from the harmonization initiative of the Department of Justice. Harmonization consists of revising federal legislation in order that it adequately reflects the terminology and concepts of Quebec civil law and common law in both official languages.
- The fourth harmonization bill supports the commitment related to our mandate to promote access to justice. The Bill also aligns with the Government’s commitment to encourage the use of Canada’s official languages.
- The fourth harmonization bill contributes to the promotion of access to justice through the use in federal legislation of language that allows Canadians to recognize, in both French and English, the legal traditions of civil law and common law. This Bill also ensures a more efficient application of federal legislation by making the intention of the legislator clearer, particularly in the civil law context.
Question: Which federal laws would be harmonized by the fourth harmonization bill?
Answer: The fourth harmonization bill would amend 51 laws including the Bank Act, Insurance Companies Act, Access to Information Act, Financial Administration Act, Interpretation Act and the Official Languages Act.
Question: Is the fourth harmonization bill only intended to harmonize federal legislation with the civil law of the province of Quebec?
Answer: No. The Bill also harmonizes federal legislation with the private law of all provinces and territories, including common law provinces and territories.
Background:
Bill S-11, the fourth omnibus harmonization, is a result of the harmonisation initiative established by the Department of Justice (DOJ) following the coming into force of the Civil Code of Québec (CcQ) in 1994. In 1995, the DOJ adopted the Policy on Legislative Bijuralism. This policy aims to provide Canadians with access to federal legislative texts that, when dealing with private law issues, reflect, in both official languages, the legal system that applies to them. Since 1998, the DOJ has harmonized federal legislation with the private law of the provinces and territories, in particular with the civil law of Quebec. To date, three omnibus harmonization bills have been adopted (2001, 2004 and 2011).
Harmonization has its basis in Canadian bijuralism. Bijuralism is one of the manifestations of Canadian pluralism and the expression of the coexistence of the civil law and common law in Canada. Subsection 92(13) of the Constitution Act, 1867 gives rise to this co-existence by giving the provinces a broad residuary power over property and civil rights. Federal legislation also grants this power over property and civil rights to the territories.
The fourth harmonization bill would amend 51 statutes that fall under the responsibility of the following nine departments: Agriculture and Agri-Food Canada, National Defence, Finance Canada, Innovation, Science and Economic Development Canada, Justice Canada, Canadian Heritage, Health Canada, Treasury Board Secretariat and Public Services and Procurement Canada.
The Bill would make a number of harmonization amendments to the following four statutes that govern financial institutions: the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act and the Trust and Loan Companies Act. It would also harmonize a number of other statutes, including the Access to Information Act, the Canada Evidence Act, the Financial Administration Act, the Canadian Human Rights Act, the Interpretation Act, the Privacy Act and the Official Languages Act. Finally, the Bill contains consequential harmonization amendments to three statutes, which are necessary in order to ensure consistency with the harmonization proposals to the four statutes that govern financial institutions.
The proposed amendments are technical in nature and are non-controversial. The resulting changes are terminological. These changes are not intended to alter the legislative policy underlying the provisions in question. Rather, they ensure that the policy behind these provisions is implemented in light of both the common law and the civil law, in both official languages.
A public consultation was held from February 1st to May 1st, 2017. A consultation document, which included harmonization proposals was posted on the DOJ’s public consultations internet site for the duration of the consultation period. Interested Canadians were invited to comment. In accordance with the established practice, the consultation document was also sent to more than four hundred key stakeholders and members of the legal community, including: provincial and territorial Justice Ministers and their Deputy Ministers; Canadian associations of provincial and superior court judges; Canadian Judicial Council; provincial and territorial law societies; la Chambre des notaires du Québec; the Canadian Bar Association; associations of French language jurists outside Quebec; law professors and experts on civil law and comparative law; interested law practitioners; and, financial institutions sector stakeholders.
Results from the public consultation have shown that the harmonization initiative continues to be favourably received by the legal community stakeholders and has confirmed that stakeholders support the proposed amendments included in the consultation document.
Bill S-11 was passed without amendment by the Senate on December 15, 2022. The Bill was also introduced in the House of Commons on February 7, 2023.
Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act
Bill S-12 proposes to amend the Criminal Code and related statutes to respond to the 2022 Supreme Court of Canada decision in R. v. Ndhlovu, strengthen the sex offender registration regime, and empower victims of crime by amending the Criminal Code publication ban provisions and facilitating information sharing to victims.
Key Messages:
- Bill S-12 is a priority for the federal government. Without a legislative response to the Supreme Court of Canada’s decision in R. v. Ndhlovu, after October 28, 2023, judges will not be able to require individuals to comply with the National Sex Offender Registry.
- Bill S-12 is consistent with the Government’s overall response to sexual offending, including through various law reform initiatives and significant programmatic investments such as supporting the provision of independent legal advice to victims of sexual assault, and the National Action Plan to Combat Gender-Based Violence.
- The Government of Canada is unwavering in its commitment to keeping our communities safe and ensuring that victims of crime are treated with respect and dignity.
Question: Why isn’t the Government proposing to use the Notwithstanding Clause to maintain registration for all sex offenders?
Answer: Section 33 of the Charter was intended to be used only in the most exceptional circumstances. The Government does not feel that such circumstances exist in this case.
Question: Is the Government considering amendments given that some stakeholders have commented that the publication ban provisions do not go far enough?
Answer: The Government is always open to hearing the views of key criminal justice stakeholders and looks forward to the Parliamentary study to determine whether the proposals in Bill S-12 would meet its objectives.
Background:
Bill S-12 proposes legislative reforms to the National Sex Offender Registry regime and the Criminal Code publication ban provisions, among other things.
Sex Offender Registry (Background):
The National Sex Offender Registry is a law enforcement tool that provides police with up-to-date information on registered sex offenders, in order to help police prevent and investigate sexual offences. Currently, individuals are required to register if they are convicted of, or found not criminally responsible on account of mental disorder (NCR) for, a designated offence, listed in section 490.011 of the Criminal Code.
R. v. Ndhlovu:
In its October 28th 2022 decision in R. v Ndhlovu, the Supreme Court of Canada (SCC) found that two Criminal Code provisions relating to the registration of sex offenders were unconstitutional. The first one was the provision requiring automatic registration of all individuals, without any discretion. The second one was the provision requiring mandatory lifetime registration for those convicted of, or found NCR for, multiple sexual offences in the same proceeding, regardless of the nature of the timing of the offences. Both provisions applied more broadly than necessary to achieve their purpose, and therefore violated section 7 (life, liberty and security of the person) of the Canadian Charter of Rights and Freedoms.
The Court gave Parliament one year to respond to the issue of automatic registration and struck down the mandatory lifetime order immediately and retroactively. If new legislation is not adopted by October 28, 2023, courts will lose the ability to order new individuals to register, which would limit the registry’s effectiveness.
Publication bans (Background):
Publication bans are tools to protect the identity of victims. They must be issued in sexual offence cases if a prosecutor, victim, or witness request one. Such requests are often made by the prosecutor early in the proceedings, in order to protect a victim’s identity as quickly as possible. Publication bans can be revoked under the common law, but the process is not well known or understood. Some victims have expressed that the current legislative framework is not respectful of their autonomy as it imposes indeterminate publication bans on them without consultation. Attempts to revoke these bans can be frustrating and fruitless.
Proposals in Bill S-12 (sex offender registry):
The Bill has three main objectives:
- To respond to the recent SCC decision in R. v. Ndhlovu, which invalidated two provisions of the Criminal Code relating to the National Sex Offender Registry;
- To amend the Criminal Code and the Sex Offender Information Registration Act (SOIRA) to strengthen the federal registry; and,
- To empower victims and survivors by making changes relating to publication bans and access to information.
The Bill proposes a rebuttable presumption of registration on the sex offender registry in the majority of cases. The presumption could be displaced if the offender demonstrates that that their registration bears no connection or is grossly disproportionate to the objective of registration. Automatic registration would be retained in two circumstances: (1) For repeat sexual offenders; and (2) In situations of sexual offending against a child, when the Crown proceeds by indictment and a sentence of two years or more is imposed. With respect to mandatory lifetime registration, the Bill proposes to give judges discretion to order lifetime registration in cases where there is a pattern of behaviour that demonstrates an increased risk of offending.
Other proposed reforms would strengthen the sex offender registration regime by, for example, expanding the list of offences for which registration could be ordered (e.g., non-consensual distribution of intimate images, and extortion); creating a summons and a warrant to facilitate compliance; and requiring registered offenders to provide 14-days notice before travelling (domestic or international), and provide a more specific destination when available.
Proposals in Bill S-12 (publication bans/right to information):
The Bill proposes that a judge must inquire of the prosecutor if they have taken reasonable steps to consult with the victim before a publication ban is imposed, and to codify the procedure for revocation. It would further modernize the language to ensure that archived materials on the Internet could be removed if the subject-matter subsequently became subject to the publication ban, and add the non-consensual distribution of intimate images to the list of offences for which a publication ban could be ordered. It would further require courts to inquire of victims at sentencing if they wish to receive post-sentence information about the case, and to facilitate the provision of this information to victims by the Correctional Service of Canada.
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