Bill C-2: An Act relating to economic recovery in response to COVID-19

Tabled in the House of Commons, September 28, 2020

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-2, An Act relating to economic recovery in response to COVID-19, 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-2 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.

Canada Recovery Benefits

Bill C-2 proposes to enact the Canada Recovery Benefits Act to create three new temporary income support benefits for persons who are employed or self-employed who suffer a loss of income due to COVID-19. The Canada recovery benefit will provide income support payments for employed or self-employed persons who have lost income for reasons related to COVID-19. The Canada recovery sickness benefit will provide income support payments to employed or self-employed persons who have contracted COVID-19, or might have contracted it, or who have isolated themselves for reasons related to the virus. The Canada recovery caregiving benefit will provide income support payments to employed or self-employed persons who have substantially reduced their hours of work to take care of a child under the age of 12 years, or a family member who requires supervised care but cannot access their usual caregiver for reasons related to COVID-19.

In addition, Bill C-2 proposes changes to the Canada Labour Code that will permit employees in federally regulated workplaces to obtain leave from work associated with either the Canada recovery sickness benefit or the Canada recovery caregiving benefit.

This Bill also proposes to provide the Minister of Employment and Social Development with the power to require any person to provide any information or documents the Minister may require for any purpose related to verifying compliance or preventing non-compliance with the Act. The Bill would further add authorities to the Income Tax Act to allow officials administering that Act to provide taxpayer information to other government officials for purposes related to the Canada Recovery Benefits Act.

The Canada Recovery Benefits Act also would provide for an administrative monetary penalty that may be imposed for knowingly making a false or misleading representation in an application or for making an application and receiving a benefit under the Act for which the applicant knows they are not eligible. No penalty may be imposed if an applicant mistakenly believes that a representation is true or that they were eligible to receive the benefit. A monetary penalty cannot be imposed if a prosecution of an offence has begun or if three years have passed since the day when the act occurred. The purpose of a penalty is to promote compliance rather than to impose punishment.

The Act would also create offence provisions for knowingly using false identity information or another person’s identity information for the purpose of obtaining all or substantially all of another person’s benefits, counselling another person to apply for benefits with an intent to steal the benefits, or knowingly making three or more false or misleading representations to obtain benefits of at least $5,000. A person does not commit of an offence if they mistakenly believe that identity information is not false or mistakenly believe that a representation is true. An offence prosecution may not be commenced if an administrative penalty for the conduct has been imposed.

Equality Rights (section 15 of the Charter)

Section 15 of the Charter provides that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, including on the basis of age. These provisions potentially engage section 15 because eligibility for income support payments under all three benefits is restricted to workers who are 15 years of age and older. Eligibility for the Canada recovery caregiver benefit and for the associated leave period from work is also restricted to workers who are caring for a child under the age of 12 years. The following considerations support the consistency of the provisions with section 15.

Requiring that workers be at least 15 years old to access income support payments reasonably corresponds to the age at which workers may need the income they earn to support themselves. Younger children are generally dependent on an adult for financial support.

Restricting the Canada recovery caregiver benefit and the associated leave from work to workers who are caring for a child under the age of 12 years is reasonable as older children can stay at home without adult supervision. Extending eligibility for the benefit and the associated leave to workers taking care of family members of any age who require supervised care is consistent with a worker’s responsibility to provide care to their family members in these circumstances.

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 from an unreasonable intrusion into a reasonable expectation of privacy. A search or a seizure 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 the search is carried out in a reasonable manner. Authorizing the collection of information about individuals who are sick or in quarantine potentially engages section 8.

The following considerations support the consistency of the provisions with section 8. Information will only be collected for the limited administrative purpose of verifying information received when workers applied for the payments, as well as preventing non-compliance. In these situations, privacy expectations are reduced. Further, the information sharing powers would allow such sharing only for purposes closely related to the purposes for which the information in question is already collected and used. As such, the proposed powers are similar to existing powers that have been upheld by the courts in the administrative and tax contexts.

Fundamental Justice and Offence Rights (sections 7 and 11 of the Charter)

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 thereof except in accordance with the principles of fundamental justice. Section 11 of the Charter guarantees certain rights to persons who have been charged with an offence, including the presumption of innocence and the right to a fair and public hearing before an independent and impartial adjudicator. Its protections apply only to persons “charged with an offence”. Persons are “charged with an offence” within the meaning of section 11 if they are subject either to proceedings that are criminal by nature, or that result in “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, as may be the case where the fine or penalty is out of proportion to the amount required to achieve regulatory purposes. The following considerations support the consistency of the above provisions with the Charter.

The administrative monetary penalty provisions would not provide for imprisonment engaging s. 7 liberty interests under the Charter. In relation to whether they are criminal by nature under s. 11 of the Charter, the administrative penalties would not involve criminal charges, prosecution or sentencing. The administrative penalty regime would allow the Minister to make discretionary decisions to impose a penalty to promote regulatory compliance, or cancel or reduce a penalty. The amount of any penalty imposed would be closely tied to the amount of income support payments. In this statutory context, these provisions would not authorize the imposition of a penalty that would have true penal consequences for the purpose of s. 11.

The offence provisions would provide for criminal charges, prosecution and sentencing, engaging rights under s. 7 and under s. 11 of the Charter. 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 s. 7 or rights under s. 11.