Regarding the provisions of the Charter of Rights and Freedoms that I referred to in section 11, there are two that deal with retroactivity, but it's clear that they're focused on the criminal context—the imposition of criminal liability retroactively, the alteration of a sentence for conducts retroactively. The Supreme Court of Canada has made clear that there is no constitutional prohibition on retroactive legislation outside the criminal context. That's what they've said, and I've cited the Imperial Tobacco case where that issue was raised and the court was very clear in making those statements.
But of course the law can always evolve and not all issues have been addressed yet. I suppose we could imagine a situation where the civil consequences are so harsh that the courts might be tempted to say that they amount to, for example, a form of punishment even though the consequences are civil, and perhaps amount to cruel and unusual punishments or are sufficiently analogous to a criminal kind of punishment retroactively—possibly. I mean, it's not out of the question, but there is no case law to support that yet, and the threshold is normally set very high even in the criminal context for thinking about what constitutes cruel and unusual punishment.
So with bill like this that is really quite measured in its approach, in the sense that it seeks to target just serious crimes and doesn't seek to punish—because a member is to the return of contributions with interest—but rather seeks to deprive a member of a publicly funded benefit as a result of the commission of a serious crime, I think it would be very difficult to describe it as a cruel and unusual punishment or anything analogous to criminal penalties.
But the existing state of the law, just to be clear about this, is that there is no prohibition on retroactivity outside the criminal context in the Canadian Constitution. That's why I don't think retroactivity is a constitutional issue related to this bill. And I think we could even have a discussion of whether the bill is properly characterized as one that is retroactive, because to take into account events that occurred in the past to impose consequences now or in the future is not normally what's understood by retroactivity. For example, one could think of qualifications for admission to a profession. It's very common in the legal profession and other professions to require that those seeking admission to the profession have good character, which can often involve an examination of past behaviour, including criminal convictions. I don't think anyone would suggest that it's inappropriate to take account of what has occurred in the past.
I don't think retroactive legislation, when we normally talk about it, is meant to include any legislation that takes into account behaviour that occurred in the past. It's usually understood as altering preexisting rights and obligations. I think there would be a more serious issue regarding retroactivity and it may be more appropriate to use the word retroactivity if we were seeking with this bill to remove a pension that had already vested from a retired member.