Friday, June 2, 2023

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

FOURTEENTH REPORT

Your committee, which was authorized to examine the the subject matter of those elements contained in Divisions 30, 31, 34 and 39 of Part 4, and in Subdivision B of Division 3 of Part 4 of Bill C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023, has, in obedience to the order of reference of Thursday, April 27, 2023, examined the said subject-matter and now reports as follows:

The committee held five hours of meetings in May 2023, and heard testimony from: the Honourable David Lametti, Minister of Justice and Attorney General of Canada; officials from the Department of Justice Canada; officials from the Department of Finance; Philippe Dufresne, Privacy Commissioner of Canada; Jennifer Poirier, Team Leader, Senior Legal Counsel Office of the Privacy Commissioner of Canada; Stéphane Perrault, Chief Electoral Officer, Elections Canada; Anne Lawson, Deputy Chief Electoral Officer, Regulatory Affairs, Office of the Chief Electoral Officer; Rachel Huggins, Co-chair of the CACP Drug Advisory Committee, Canadian Association of Chiefs of Police; Jean-Pierre Larose, Chief Nunavik Police Service ; Jonathan Noonan, Lawyer with Noonan Piercey; and, Michael Rowe, member of the CACP Law Amendments Committee, Canadian Association of Chiefs of Police.

General observations

The committee repeats its concern from its last report on a budget implementation bill (Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures; Fifth Report, 44^th Parliament, 1^st Session) regarding significant amendments and additions to criminal laws that are introduced in such legislation. Amendments to criminal laws engage important constitutional and legal questions that require in-depth study in committee and thorough debate in the Senate. This concern is equally relevant to amendments to electoral laws that also engage important democratic values and legal questions.

Bill C-47 is 430 pages long. There was not enough time or opportunity to receive evidence to thoroughly analyze its provisions assigned to this committee and the impact of its amendments. This does a disservice to the legislative process and the committee’s mandate that includes the scrutiny of legal and constitutional matters. This is particularly concerning regarding amendments to the Criminal Code and the Canada Elections Act.

The committee recommends that these types of amendments should be introduced in separate bills.

The committee has reported in the past about the decades of piecemeal amendments to the Criminal Code that result in cumbersome, sometimes repetitive, or inconsistent provisions, and in the need for comprehensive review and reform (see for instance, the committee’s 2017 report Delaying Justice is Denying Justice at pp. 41 to 43.) The committee reiterates past recommendations that an independent body should undertake a comprehensive review of the Criminal Code. The newly revived Law Commission of Canada could undertake such a review, including a study of all provisions in the Code that pertain to violence against women, particularly intimate partner violence and family violence.

Division 30 of Part 4 - Canada Post Corporation Act

In response to the Supreme Court of Newfoundland and Labrador’s decision in R. v. Gorman (2022 NLSC 3), this clause amends section 41(1) of the Canada Post Corporation Act to limit Canada Post’s authority to open nonletter mail. The amendment establishes an objective standard based on reasonable suspicion to justify the search of any nonletter mail. The committee notes the testimony of Mr. Jonathan Noonan, defence counsel for the accused in R. v. Gorman, who was of the view that the amendment will bring this section into constitutional compliance.

The committee notes that the restrictions on the ability to open mail are stricter for Canada Post than other private carriers operating in Canada, and that the Canada Post Corporation Act includes different privacy protections for letters compared to nonletter mail in the care of Canada Post. Furthermore, these rules prevent police from searching and seizing any letter or nonletter mail that is in the care of Canada Post.

The Canadian Association of Chiefs of Police (CACP) testified that:

[If] police have reasonable grounds to believe that a package of fentanyl or a prohibited weapon is being sent through the mail, the police cannot lawfully detain or search the letter or package until it has been delivered to the addressee.… Canadian laws must be modernized and include the necessary judicial oversight to protect privacy and safeguard citizens from harmful material being trafficked through the postal system.

The committee notes the testimony of CACP representatives and Nunavik Police that the trafficking of contraband using Canada Post, including in letter-sized mail, is an urgent problem. The committee is particularly concerned about the public safety risks and consequences of trafficking fentanyl through Canada Post, including to remote communities.

The committee also notes the testimony of CACP representatives and Nunavik Police that Bill C-47’s proposed amendment to the Canada Post Corporation Act does not permit Canada Post inspectors to open domestic letter mail to intercept contraband, as they are authorized to do with nonletter mail. Consequently, the proposed changes do not address the issue of trafficking contraband, particularly fentanyl, using letter mail through Canada Post.

The committee notes that the Assembly of Manitoba Chiefs, representing 62 First Nations, has requested changes to section 41(1) of the Canada Post Corporation Act to allow Canada Post inspectors to open letter mail to search for contraband, when reasonable grounds exist. The committee also notes that Canadian customs officers have been authorized to open international letter mail to intercept contraband following the passage of Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, in 2017.

The committee therefore recommends that Parliament and the Government of Canada give urgent attention to addressing these concerns.

Division 31 of Part 4 – Royal Styles and Titles Act

This section enacts the Royal Styles and Titles Act, 2023, which states that the Parliament of Canada assents to the establishment of the Royal Style and Titles for King Charles III for Canada. These are:

Charles the Third, by the Grace of God King of Canada and His other Realms and Territories, Head of the Commonwealth.

The Act is similar to the previous Royal Styles and Titles Act, R.S.C., 1985, c. R-12, which was originally enacted in 1953 following the accession of Queen Elizabeth II, except that it does not include the title “Defender of the Faith” or refer to the United Kingdom.

The committee did not receive evidence regarding Division 31 of Part 4 during its study.

Division 34 of Part 4 – Criminal Code (criminal interest rate)

This section amends the Criminal Code to, among other things, lower the criminal rate of interest and limit the cost of borrowing. It lowers the criminal interest rate from an effective annual rate of 60% to an annual percentage rate of 35%. In real terms, if the interest rate is expressed as an annual percentage rate for both, the actual rate decreases from only 47% to 35%. This section also authorizes the Governor in Council, by regulation, to fix a limit on the total cost of borrowing under a payday loan agreement or to exempt bridge financing.

The committee recognizes the importance of having a clear and consistent criminal rate of interest that is set at a reasonable level to protect Canadians from unfair or otherwise problematic lending practices. Individuals who use high-cost credit products with high interest charges or who are vulnerable to predatory lending practices risk being trapped in a cycle of debt. The committee also recognizes that many Canadians benefit from the ability to borrow money from stable lending institutions or other reliable sources of credit. Even with the amendments made to the criminal rate of interest – reducing it from 47% to 35% – too many of the most economically marginalized individuals will remain isolated from these institutions or other reliable sources of credit and are likely to remain trapped in cycles of debt. The committee recommends that the government undertake further study into other ways in which the government may further assist the most economically marginalized to escape poverty.

Division 39 of Part 4 - Canada Elections Act

The committee recognizes that all federal political parties must have robust safeguards in place to protect Canadian electors’ personal information. These safeguards, or the lack thereof, can impact Canadians’ trust in political parties and, by extension, the electoral process in general.

This section amends the Canada Elections Act to “provide for a national, uniform, exclusive, and complete regime” for the collection, use, disclosure, retention, and disposal of personal information by federal registered or eligible political parties. The amendment creates a framework for a potential future regime. It does not actually establish any such regime.

The committee urges the establishment of a national, uniform regime in relation to federal political parties’ use, collection, disclosure, and retention of electors’ personal information.

The committee again emphasizes that amendments to the Canada Elections Act should be introduced in a separate bill to allow for thorough study. Such amendments to the Canada Elections Act should be undertaken only after consultation with the Chief Electoral Officer and the Privacy Commissioner of Canada, which was not the case with this bill.

Subdivision B of Division 3 – Criminal Code (digital assets)

This section amends the Criminal Code and related laws to expressly allow for the search, seizure, detention and return of digital assets that are proceeds of crime. This section also expands the list of offences for which the Attorney General may seek a warrant for the disclosure of income tax information for the purposes of a criminal investigation.

The committee heard evidence regarding the challenges for criminal investigations brought on by the evolving forms of digital assets and currencies.

The committee was unable to assess the appropriateness of tools and procedures that are needed to respond to the evolving challenges inherent in searches and seizures in criminal investigations that involve digital assets and the various forms of virtual, digital, and non-traditional currency.

The committee again emphasizes that amendments to criminal laws should be introduced in a separate bill to allow for thorough study.

Respectfully submitted,