Mr. Chair, vice-chairs, and honourable committee members, I'm pleased to be here today on behalf of the Canadian Bar Association.
The Canadian Bar Association is a national association representing approximately 36,000 members of the legal profession. Our primary objectives include improvements in the law and the administration of justice. It is through this lens that we have prepared our written submissions and appear here today.
Our written submission was prepared jointly by the privacy and access law section of the CBA, the constitutional and human rights law section, and the pension and benefits law section, which I am from.
Our written submissions and our comments today are focused solely on the clauses of Bill C-4 that repeal the former Bill C-377. Those are clauses 12 and 13 of Bill C-4.
The CBA has previously expressed a number of concerns with respect to Bill C-377, both in our written submissions and in appearances before the House of Commons finance committee, the Senate banking, trade, and commerce committee, and the Senate legal and constitutional affairs committee. I am a past chair of the pension and benefits law section, and I was the one who appeared on behalf of the Canadian Bar Association at each of those committee hearings.
As I've said, the CBA supports the provisions of Bill C-4 that repeal Bill C-377, which inserted into the Income Tax Act extensive reporting requirements for labour organizations and labour trusts. The CBA remains of the opinion that Bill C-377 was fundamentally flawed and it triggered serious concerns from a privacy, constitutional law, and pension law perspective.
I'll leave it to my colleagues to speak more at length about this, but from a privacy point of view, the disclosure of salaries and wages of employees and contractors of independently governed organizations went well beyond what previously existed, or what has previously existed, in Canadian law, and was inconsistent with the privacy protections embodied in numerous privacy policies and constitutional jurisprudence in Canada.
To the extent that Bill C-377 would have required particularized disclosure, it obliged disclosure of personal information that is normally considered amongst the most sensitive, such as financial information and information about political activities and political beliefs. In particular, from our legal profession's perspective, the CBA was concerned, as it was throughout the process with Bill C-377, that appropriate provisions were not made for information that's usually protected by solicitor-client privilege.
Solicitor-client privilege has been called a fundamental civil right, one which the Supreme Court of Canada has said must be protected by stringent norms in order that it remains as close to absolute as possible. There were minor exemptions for solicitor-client privilege in the final version of Bill C-377, but legal advice can be provided in a number of different transactions and contacts. The overriding concern the CBA had was that the bill in its entirety did not make provision for the protection of solicitor-client privilege.
The CBA believes Bill C-377 lacked an appropriate balance between any legitimate public goals and the respect for private interests protected by law.
From a constitutional law perspective, we believe that Bill C-377 was certainly open to challenge under both paragraph 2(b), freedom of expression, and paragraph 2(d), freedom of association, of the Charter of Rights and Freedoms. We know, in fact, that it already was subject to a legal challenge, I believe in Alberta.
In particular, the requirements that a labour organization file a statement detailing its disbursements for political activities, lobbying activities, organizing activities, and collective bargaining activities, we believe, could have been found to be unconstitutional, counter to the charter's protections of freedom of expression and freedom of association.
We also believe that section 149.01 of the Income Tax Act, which was inserted by Bill C-377, interfered with the internal administration and operations of a union, which the constitutionally protected freedom of association precludes unless the government interference qualifies as a reasonable limitation upon associational rights. In that regard, it was unclear to the Canadian Bar Association exactly what the justification was for these severe infringements.
In a recent case, the Supreme Court of Canada said that the charter protects a union's ability to communicate and persuade the public of its cause, and that impairing its ability to freely express itself as it sees appropriate would be an unjustified infringement on section 2(b) protected rights.
Just as the Supreme Court of Canada has affirmed that section 2(b) of the charter protects a union's freedom of expression, it must also protect its freedom not to express.
Let me conclude on the pension and benefits concerns. Our concerns stem from the fact that Bill C-377 was broadly drafted and applied to labour organizations and labour trusts. The definition of “labour trust” was so broad that it included any fund in which a union member was a beneficiary. As we know, a great variety of types of benefits may be offered to employees and union members, and the small list of exemptions contained in Bill C-377 was not sufficiently broad. The list of exempted plans in the bill failed to encompass things such as charities, non-profit organizations, RCAs or retirement compensation arrangements, education and training initiatives, and mixed-purpose benefit plans. A plan that provided death benefits, for example, would have to disclose information about individuals who receive such benefits.
As a result of these concerns, the CBA is fully in support of the provisions of Bill C-4 repealing those provisions of Bill C-377.