Human Resources Committee on Dec. 14th, 2021

[The Chair, Liberal, Bobby Morrissey]

Mr. Minister, that concludes the first round with your attendance. Thank you for the time before the committee.

We will suspend for a moment while we welcome two additional witnesses from two departments.

Again, thank you, Minister, for your time.

[Seamus O'Regan, Liberal, St. John's South—Mount Pearl, NL]

Thank you, all.

Merry Christmas.

[The Chair, Liberal, Bobby Morrissey]

We have to do a brief sound check.

I just want to advise that I'll be going back to the first speaking order, but each party will decide who they want.

There will be six minutes to Madame Chabot and six minutes to you, Mr. Boulerice. The Conservatives and the Liberals can decide who they want for their six.

We'll have a brief suspension while we do sound checks with the two joining witnesses.

[The Chair, Liberal, Bobby Morrissey]

I'm resuming the meeting.

At this time, we have about 20 to 25 minutes.

I want to welcome to the committee Mr. Wolfe. Is he on the screen yet?

[Douglas Wolfe, Senior Director, Strategic Policy and Legislative Reform, Strategic Policy, Analysis and Workplace Information Directorate, Labour Program, Department of Employment and Social Development]

I'm here, yes. Thank you very much.

[The Chair, Liberal, Bobby Morrissey]

There's Mr. Wolfe.

Is Madam Klineberg here?

[Joanne Klineberg, Acting General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

Hello, good afternoon.

[The Chair, Liberal, Bobby Morrissey]

Welcome.

We'll resume the second part of the meeting with witnesses, and for the first round of questioning, I will go to Mr. Ruff for six minutes.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you, Mr. Chair.

Thanks to the officials for showing up for today's committee meeting.

Unfortunately, the minister has gone. He did talk quite a bit about the importance of getting this bill through.

I guess my first question is this, and I know I've heard the minister try to answer it in the House before unsuccessfully. Would it not be a lot faster, considering the urgency, especially of the sick leave portion of this bill, to split this bill into two separate parts? Would that not definitely get it through the House and through this whole review process a lot faster?

[The Chair, Liberal, Bobby Morrissey]

Who do you want to direct your question to?

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

It's to whichever official wants to answer it. Go ahead.

[Andrew Brown, Assistant Deputy Minister, Policy, Dispute Resolution and International Affairs, Department of Employment and Social Development]

It's Andrew Brown with the labour program at ESDC. I'll jump in on that.

Thanks for the question, Member.

What I would say there is that these are priorities that have been identified by the government, both in terms of providing support to workers as well as protecting health care workers and patients who are trying to access the health care system. These are priorities that have been advanced for consideration by Parliament.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you. My question was this: Would it not go faster if we split this?

My next question is to Madam Klineberg on the justice department side. To me, this bill doesn't do a whole lot of anything new. These are already illegal: intimidation, trespassing, assault and obstructing people from getting to their workplace.

Could you elaborate a little bit on what specifically is new and we don't have already within our criminal laws?

[Joanne Klineberg]

Thank you for the question.

One thing that is specifically new in the bill is the offence of intimidating a health care provider or a person seeking access to a health service by making this a new offence. The penalty has been elevated. There is an offence of intimidation in the Criminal Code already that would cover this behaviour. It currently has a maximum penalty of five years, so creating a new offence is coupled with an increase in the maximum penalty for this offence. This recognizes the harms to those threatened, to the health care system and to those who may be unable to obtain services as a result of acts of intimidation directed at health professionals.

Other than that, the creation of this new offence as well as a new offence for obstructing access, in addition to the other measures in the bill, is the creation of two aggravating factors on sentencing that go beyond what is presently recognized by the courts under the common law for recognizing the gravity of offences when punishing offenders. Those are several new measures that are in the legislation.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Thanks, Madam Klineberg.

To expand on that, it somewhat makes logical sense, the importance of stopping people who are trying to stop people from getting to their work, especially vital health care workers.

Would it not then make sense to expand this to include other critical infrastructure that's so vital to our economy, to other key workers, essential workers, across this country? How difficult would it be just to make that simple adjustment to the bill, then, to expand it to include more than just health care workers but all critical infrastructure in the country?

[Joanne Klineberg]

Thank you for the question.

I think that is a somewhat complicated question for the following reason. There is an offence already called mischief to property that involves a lot of different kinds of misbehaviour towards property, public and private property, and also critical infrastructure.

The new offence that's been proposed for obstructing access to health facilities really targets one kind of misbehaviour towards property, and that is obstructing or impeding access into the property. It doesn't cover other types of criminal conduct such as damaging property, destroying property or rendering the property inoperative. It could be that, in the case of critical infrastructure, those are the kinds of behaviours that are more at issue, the kinds of wrongdoing that we're more likely to see, and they are not included in this specific offence in this legislation.

I think it's somewhat of a more complicated and perhaps different kind of issue in terms of the behaviour that people engage in when they're targeting critical infrastructure as opposed to health facilities.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Thanks.

I can acknowledge that portion of your answer. I guess I would just counter back that if that's all we're talking about, just the obstruction part with employees, it would make sense that it could apply just as easily to all those other critical sectors.

The minister tried to answer this, talking about the protection of free speech, peaceful demonstration, our unions, etc. I just want to make it crystal clear or get clarity that this bill will not stop or interfere with the ability of those Canadians who want to have free speech in his country and want to address their disagreement with where the government is going, or where certain sectors are going, whether or not it's health care.

[Joanne Klineberg]

Thank you for the question again.

In this regard, I will draw the committee's attention to the specific subsection of the bill that would create the defence that the minister and Ms. Wright referred to earlier.

In the legislation as it amends the Criminal Code, there would be a new proposed section 423.2. Proposed subsection 423.2(4) of that new offence includes the defence that says no person is guilty “by reason only that they attend at or near, or approach, a place referred to” in the offence “for the purpose only of obtaining or communicating information.”

I'm happy to inform the court that defence like this was first introduced into our Criminal Code in 1934. It presently exists in relation to several offences in the Criminal Code, and specifically offences that are like the one being created. This defence has been interpreted by the courts and applied by the courts, including in contexts involving protests and picketing. From a criminal law point of view, the criminal courts are very familiar with this kind of defence. The exact same language has been used precisely so as to inform the criminal courts that Parliament's intent is that they apply the same reasoning and the same principles in terms of this new offence.

It is very clear from a criminal law point of view that peaceful protests, peaceful picketing, will not result—cannot result—in a criminal conviction because of this inclusion.

[The Chair, Liberal, Bobby Morrissey]

Thank you, Ms. Klineberg.

Now we go for six minutes to Mr. Collins.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thanks, Mr. Chairman, and good morning.

My residents in Hamilton East—Stoney Creek have questioned the requirement for the medical certificate, or doctor's note, as some people may call it. They, like the minister referenced, might see it as a barrier or an obstacle to taking advantage of the benefit.

I know that time is of the essence, of course, as the minister referenced in his comments. I think there was also the comment that some of the stakeholders may have presented that there might be, with the requirement for the medical certificate, an unintended consequence of overwhelming the health care or medical community. My residents have raised with me that it's something they'd like to see modified or amended as part of the legislation. I'm curious to know how we landed on the strict requirement for a medical certificate as part of the legislation.

[Andrew Brown]

Thanks for that question, Mr. Collins.

In terms of how we landed upon that requirement for the medical certificate, I'd first like to note that it's not a general requirement. It is actually a tool that would allow employers to validate the medical leave requirement if necessary, so there isn't a requirement that an employee provide that medical note unless requested by their employer.

It wasn't intended to be a barrier to prevent employees from accessing leave, but we've certainly heard that from stakeholders and from you as you relayed on from your constituents. As we heard from the minister earlier, he's open to taking a look at language that would adjust the certificate requirement.

I think I would leave it there. This is a new element in terms of a paid leave. There are limited paid leaves currently available under the code, so this would be a tool for employers if they felt they needed to request some kind of validation from the employee.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thank you for the answer.

Through you, Mr. Chairman, my next question would be around the whole area of consultation with stakeholders in terms of unions, employers and employees who would be affected or impacted by the legislation.

Can I get an understanding, knowing that we landed on the 10 days and the requirement for a medical certificate, of what led us to that decision with the comments that we heard from stakeholders, because we're starting to hear from some of those very same stakeholders that the legislation, as written, needs to be amended in a couple of areas. I'm glad to hear some of the comments from some of the other party members around the same.

Can I also get an understanding of whether those issues were raised as part of the consultation and recommendations were made to the contrary? How did that work out prior to its coming to the House in its current form?

[Andrew Brown]

Thanks for those questions.

I understand that in trying to understand better what stakeholders have had to say with respect to the requirement for a medical certificate, we have heard from a variety of stakeholders and, as you point out, particularly from some in the health profession. They have been questioning the need or the added value of providing a certificate.

We have also heard from other stakeholders who have been concerned about not having the ability to check on the validity of an employee using the paid sick leave for its intended purpose. Again, the whole purpose of having a certificate requirement was that, within 15 days after the employee returns to the workplace, the employer would be able to request the medical certificate, if needed. That would be a validation, but the employer is not required to ask that from the employee.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thank you for that answer.

Through you, Mr. Chair, I would ask about the whole issue of the sense of urgency. We heard from the minister and we've seen rising case counts across the country that cause us some concern in terms of using all the tools available to all levels of government to combat the spread of the virus. I get a sense from some of the comments we've heard in speeches in the House and here at the committee that there's a desire to move this forward and further protect Canadians.

My question is—if and when it's passed, and I certainly don't want to jinx the process—how quickly does it make its way to the workers who will then receive the benefit. For my postal carrier who's delivering the mail and who may contract some symptoms or feel that it's safer to stay home because of some of the health issues they're experiencing, how quickly would the benefit flow through to the employees in federally regulated industries? Is that the first quarter of 2022? Is that something later next year?

Can we get some idea in terms of how quickly the benefit will flow through to the employees?

[Andrew Brown]

Thanks for that question as well.

We absolutely heard the urgency from the minister this morning in reference particularly to the omicron variant that is showing up across the country. In terms of how it would be brought into force and how the benefits would flow through to the workers in the federally regulated sector, the bill would come into force by order in council by the coming into force date, which has not yet been determined.

As soon as it is brought into force, it would start to apply immediately to workers across the federally regulated sector. As we've heard and as the bill is currently drafted, they would start to earn one day of paid sick leave per month worked from the time that it comes into force.