Legal and Constitutional Affairs

Thursday, June 9, 2022

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to table its

FIFTH REPORT

Your committee, which was authorized to examine the subject matter of those elements contained in Divisions 1, 21 and 22 of Part 5 of Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures, has, in obedience to the order of reference of Wednesday, May 4, 2022, examined the said subject-matter and now reports as follows:

Observation 1: Division 1 of Part 5: Provisions Relating to Canadian Pacific Railway (Tax Exemption)

Your committee has previously given consideration to issues relating to the Canadian Pacific Railway tax exemption. On March 1, 2022, the Senate referred Motion No. 14 to the committee, which pertained to a proposal to amend the Constitution of Canada by repealing section 24 of the Saskatchewan Act. The committee studied the motion and held hearings with 12 witnesses. It reported the motion back to the Senate on March 31, 2022 and recommended that it adopt the motion. The Senate subsequently adopted the motion on April 7, 2022.

Division 1 of Part 5 proposes a retroactive amendment to section 16 of the contract in the schedule to An Act respecting the Canadian Pacific Railway, chapter 1 of the Statutes of Canada (1881), to terminate certain tax exemptions granted to the Canadian Pacific Railway Company.

Further, additional provisions in this division are likely to terminate the continuation of legal proceedings pending before the Federal Court of Appeal and to grant immunity from litigation to the federal government retroactive to 1966.

The committee notes that the amendments in Division 1 of Part 5 engage important discussions about lands granted in Alberta, Saskatchewan, and Manitoba to the Canadian Pacific Railway on traditional Indigenous territories. The committee discussed with witnesses how recognition of Indigenous rights has evolved since the land grants and tax exemptions were granted to the CPR, since the prairie provinces’ boundaries were established, and since treaties were made with Indigenous Peoples regarding these lands and their rights.

The committee is concerned that it was not able to obtain information about how Indigenous Peoples have been implicated in or consulted on these matters. The committee recommends that the Government of Canada engage in meaningful discussions in the spirit of reconciliation with all relevant Indigenous communities impacted by the CPR lands in question to discuss how their rights may have been affected by these matters.

Observation 2: Division 21 of Part 5: Wilful Promotion of Antisemitism

It is indisputable that the Holocaust was a crime against humanity and a genocide that must never be forgotten. The Government of Canada’s 2022 budget provides $6.8 million over five years to the Department of Canadian Heritage and Global Affairs Canada to preserve the memory of the Holocaust and combat anti-Semitism.

The committee is concerned that Division 21 of Part 5 is a significant addition to the Criminal Code that is being introduced in a large budget implementation bill. Amendments to criminal laws may engage important constitutional and legal questions that require in-depth study in committee and thorough debate in the Senate.

Observation 3: Division 22 of Part 5: Amendments to The Judges Act

The amendments to the Judges Act are primarily financial in nature and a necessary response to the government’s acceptance of the recommendations of the report of the Sixth Quadrennial Commission on Judicial Compensation and Benefits.

The committee remains concerned about the high number of vacancies among federally appointed judicial positions across Canada. According to the Commissioner for Federal Judicial Affairs Canada, there are 57 vacancies as of June 1, 2022. The committee recalls its second priority recommendation contained in its final report on court delays released in June 2017, entitled Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada:

“The committee recommends that Superior Court Judges be appointed on the day of a known retirement of a Judge and the only exceptions to this immediate replacement would be an unexpected death or unexpected early retirement of a sitting Judge.”

Respectfully submitted,