Monday, June 10, 2024

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

TWENTY-THIRD REPORT

Your committee, which was authorized to examine the subject matter of the elements contained in Divisions 29, 30, 35, 36, 43 and 44 of Part 4, and in Subdivisions B and C of Division 34 of Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024, has, in obedience to the Senate’s order of reference of Thursday, May 9, 2024, examined the said subject-matter and now reports as follows:

The committee held seven hours of meetings from May 29, 2024 to June 6, 2024, and heard testimony from: the Minister of Justice and Attorney General of Canada; officials from federal government departments and agencies; legal experts; representatives from law enforcement, the automobile industry, and civil liberties organizations; experts and service providers related to substance use harm reduction.

General observations

The committee repeats its concern from its last report on a budget implementation bill (Bill C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023; Fourteenth Report, 44th Parliament, 1st Session) regarding significant amendments and additions to criminal laws, and others, that are introduced in such omnibus legislation. Amendments to criminal laws engage important constitutional and legal questions that require in-depth study in committee and thorough debate in the Senate.

The committee is concerned that there was not enough time or opportunity to receive evidence to thoroughly analyze the Bill C-69 provisions assigned to this committee and the impact of these 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 related to motor vehicle theft (Division 35) and the Controlled Drugs and Substances Act (Division 44). Having no clear connection to the government’s budgetary policy, the committee hopes that, in the future, such content would be introduced in separate legislation. Minister Virani, in his testimony before the committee, explained that the inclusion of non-financial items in the budget was caused by filibustering in the House of Commons. This is unfortunate as the Committee was forced to work within a truncated legislative review regime designed for the current political circumstances of the House of Commons, which constrains the Senate’s ability to properly apply “sober second thought.”

To reiterate, the committee recommends that these types of amendments should be introduced in separate bills as these are separate and more significant legislative matters than those logically contained in a Budget Implementation Act, and they have no clear connection to matters of financial policy.

The committee has reported in the past that decades of piecemeal amendments to the Criminal Code have resulted in a complex document containing at times inconsistent language or repetitive provisions. The committee repeats its recommendation for a comprehensive review and reform of the Criminal Code (see, for instance, the committee’s 2017 report Delaying Justice is Denying Justice at pp. 41 to 43.)

In addition, the committee recommends that when introducing any government bill, including a budget implementation bill, the federal government should undertake and publish a comprehensive Charter Statement and a Gender-Based Analysis Plus, examining the bill’s consistency with the Canadian Charter of Rights and Freedoms as well as its impacts on different groups of people. This would facilitate thorough and inclusive committee study of government legislation as part of the legislative process.

The committee also invites the government to clearly indicate what consultations have been conducted in the context of the preparation of this budget implementation bill, especially in connection with non-financial provisions, in compliance with Parliament’s expectation of consultation with Indigenous Peoples regarding legislation; and explain how this bill, including amendments to various acts found at Part 4, is consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

Finally, the committee observes that certain provisions of Bill C-69 that may have significant legal ramifications and that were referred to other Senate committees – such as Division 28 (amendments to the Impact Assessment Act in response to the Supreme Court of Canada decision on the constitutionality of that Act in Reference re Impact Assessment Act, 2023 SCC 23) and Division 33 (amendments to the Criminal Code to broaden the criminal interest rate offence) – may have benefitted from study by this committee, whose mandate is to examine matters relating to legal and constitutional matters.

Division 35 of Part 4 – New offences and other measures related to motor vehicle theft

Division 35 would create five new criminal offences respecting motor vehicle theft: theft involving violence or organized crime, possession and distribution of electronic devices used to commit auto thefts, and laundering proceeds of crime for a criminal organization. The amendments would also add a new aggravating factor for sentencing purposes: involving a young person in the commission of the offence.

The committee heard that motor vehicle theft has become a sophisticated criminal activity, and that it is a significant source of funding for organized crime. A witness testified that in Canada, over 105 000 vehicles were stolen in 2022, which is an increase of 21% compared with 2021, and higher than the relative increase in the United States during the same period. Young people, particularly low-income and racialized youth, are being used by organized criminal groups to commit vehicle theft. The new offences are intended to target this problem.

However, the committee also heard from some witnesses that harsher criminal penalties are ineffective in deterring crime, and that these amendments target the same young people the amendments are intended to protect. Witnesses also stated that the amendment adding the aggravating factor of involving a minor in the commission of an offence is overly broad; one witness raised concerns that the text in the English version of this provision (“involved”) does not have the same meaning as in the French version (“a amené”).

Many senators expressed concern that the young people being directed to commit vehicle theft are often the easiest to arrest, the most vulnerable, and those who will be most negatively affected by these amendments. These senators were particularly concerned regarding potential negative impacts of these amendments on Black, Indigenous, or other groups already over-represented in the criminal justice system, and whether these amendments align with the government’s anticipated Black Justice Strategy and Indigenous Justice Strategy.

The committee believes that a multifaceted approach is required to address the problem of motor vehicle theft, including anti-theft technology for new motor vehicles produced or sold in Canada, additional resources for law enforcement and the Canadian Border Services Agency to target vehicle theft, enhanced security at ports and other strategic locations, without overlooking the need to address the root causes of crime in general through social services and community supports.

Division 43 of Part 4 – Canada Disability Benefit appeals

Division 43 identifies a process for appeals and judicial reviews of decisions related to benefits under the Canada Disability Benefit Act, which is not yet in force.

The committee heard evidence that the proposed Canada Disability Benefit and its eligibility requirements are inadequate to achieve the benefit’s intended purpose, namely to help reduce poverty among working-age Canadians with disabilities.

The committee expresses concern about what appears to be restrictive benefit eligibility criteria, an inadequate benefit amount, and its potential inconsistency with the stated purpose of the Canada Disability Benefit Act.

Division 44 of Part 4 – Safe Consumption Sites

Division 44 would replace the current ministerial exemption provisions for supervised consumption sites (SCS) under the Controlled Drugs and Substances Act with a potential new authorization scheme established by regulation.

The committee heard that SCSs mitigate the harms related to overdose and substance use as well as help to improve other key health conditions. Proposals to open a SCS are often led by small, community-based organizations operating with budgetary constraints and minimal resources. Consequently, streamlining and simplifying the application and renewal procedures for a SCS would improve the process for applicants. SCSs and the regulations related to their operation need to be able to adapt and respond to current and evolving needs, including those of the communities in which they operate.

The committee recognizes that a multifaceted approach is essential to respond to substance use and the overdose crisis. Investment and resources related to mental health, complex medical care needs, housing, poverty reduction, and associated stigma are urgently needed.

The committee has no material observations regarding Divisions 29, 30, and 36 of Part 4, and Subdivision B and C of Division 34 of Part 4 of the bill.

Respectfully submitted,