Evidence of meeting #49 for Public Safety and National Security in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Counsel, Criminal Law Policy Section, Department of Justice
Yes, the charter statement was tabled on June 21, 2022. As with any legislation or drafting of legislation, the Minister of Justice has a duty to ensure that amendments to the bill are compliant with the charter as well.
As with any other bill, amendment or motion, officials do an analysis as to whether it engages the charter, and we provide that advice to the Minister of Justice.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Has there been any updated charter analysis, or are you continuing to use the same charter analysis from June 21, which did not take into account these new amendments that we're dealing with today?
Counsel, Criminal Law Policy Section, Department of Justice
The charter statement is tabled at the beginning when the bill is tabled. Currently, that is the only statement, I believe, that's tabled at the beginning of the bill.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Therefore, there has been no updated charter statement related to these new amendments, so we don't know what their impact is on the charter.
Counsel, Criminal Law Policy Section, Department of Justice
If you have a motion in mind that you want to bring forward in terms of impact, what I can say is that some of the motions that have been put forward today could engage some charter provisions—for example, open court principle in terms of the red flag regime.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
We heard during committee study from a number of indigenous witnesses who indicated that there had been no consultation with indigenous communities on the original Bill C-21. I would guess that if there has been no consultation on the original Bill C-21, there probably hasn't been consultation on these amendments.
Can you confirm whether or not this consultation has taken place on these amendments?
Counsel, Criminal Law Policy Section, Department of Justice
The department has not engaged in any consultations on these amendments.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Is there any concern that, based upon the settled law in Canada—which is the United Nations Declaration on the Rights of Indigenous Peoples that was passed in, I believe, the 42nd Parliament—first nations peoples have not provided their free, prior and informed consent to this legislation being passed?
November 22nd, 2022 / 5:25 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
In terms of the UN Declaration on the Rights of Indigenous Peoples, every initiative that the government brings forward, including to cabinet, has to consider the declaration and any intersection with the legislation. That is done similar to a gender-based analysis that would happen when we bring forward....
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
You have decided for first nations that they have been consulted without actually consulting them. Your gender-based analysis, your first nations consultation.... The department has said and the government has said that basically you have abided by UNDRIP because you have decided without even asking first nations whether they gave their free, prior and informed consent for this legislation.
Counsel, Criminal Law Policy Section, Department of Justice
Again, what I can say is that when we are developing policy initiatives and they are protected by cabinet confidence or privilege—
Counsel, Criminal Law Policy Section, Department of Justice
—we cannot consult, but we do ensure that we take all the different factors into consideration, such as charter or UN declaration impacts, impacts on indigenous populations, LGBTQ, gender-based analysis. We do various impact analyses on the government initiatives.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Thank you.
I just think it will come as a big surprise to first nations and indigenous peoples in this country that the government thinks it can pass legislation and pass amendments to legislation in committee, and that the government will unilaterally say that it has abided by UNDRIP without even having any formal process to engage with first nations in any way.
I don't think that's what people meant by reconciliation in this country. I think what they wanted to see and what the witnesses were talking about was the grassroots. They said it wasn't even good enough if the government just talked to the national chief. One of the committee members said that we talked to the national chief, but indigenous witnesses.... My experience with indigenous peoples in my community is that you don't just go to the chief; you have to go to the elders. You have to bring it to the nation and the community.
It doesn't appear like the government took any steps to even engage with the chiefs, with the elders or with any members of the community to deal with this. I would argue that this is violating not only the spirit but also the letter of the law in terms of UNDRIP and free, prior and informed consent, also potentially touching on the section 35 rights of aboriginal peoples, which are ingrained in the charter.
When we're talking about semi-automatic rifles and shotguns, what assurances can you give that the section 35 rights of indigenous peoples will not be impacted by these amendments that relate to semi-automatic rifles and shotguns?
Counsel, Criminal Law Policy Section, Department of Justice
A section 35 analysis is usually undertaken by a court based on the totality of the circumstances, anyone who is claiming the right, the court that is determining the right, etc. It's not the department that would determine that. What I can say, for example, on the red flag regime and the limitation on access and the emergency weapons order prohibitions is that there are provisions that allow for indigenous sustenance hunting and anyone exercising a treaty right currently in the Criminal Code under section 113. If there are any prohibitions, they can be lifted for such purposes. Those are some of the provisions we have considered in that vein.
Do you have anything to add, Paula?
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Is it the position of the government that in the drafting—because this all speaks to prior and informed consent. You know, consent can't be given after the fact. The word “prior” means beforehand. Is it the position of the government or the department that it's not the responsibility of the government to seek out that free, prior and informed consent, and that it's the job of the courts to sort it out after the fact?
Liberal
The Chair Liberal Ron McKinnon
I'm not sure if the officials are able to weigh in on the position of the government on something like this.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Well, I don't necessarily mean the government, as in the partisan government, but I certainly think the department could. They just stated that it's the job of the courts to decide a section 35.
Liberal
The Chair Liberal Ron McKinnon
I certainly think the officials know their boundaries. If they wish to answer within those boundaries, that's great.
Counsel, Criminal Law Policy Section, Department of Justice
We have no comment.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
I'm going to keep going here.
Have the Justice Department, the RCMP and Public Safety, in drafting these amendments, considering....
When I first saw this list of firearms from, I believe Mr. Chiang's or Mr. Noormohamed's amendment, it was about 310 pages. The first thing that struck me was that this was the May 2020 order in council list of firearms, and they just copied and pasted them over, but then, on closer inspection, I discovered that a significant number of potential new firearms had been added.
Has there been a financial analysis done by the department on the potential cost to the government of buying back these potentially newly prohibited firearms?
Liberal
The Chair Liberal Ron McKinnon
Pardon me, Mr. Lloyd. I don't think that's in the scope of this amendment. The actual buyback provisions aren't dealt with here. It's just a matter of definition. I'm hoping we can bring things back a little bit more to this.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
I'll try, Mr. Chair, respectfully. I will try.
I just think it's interesting. You're correct, I guess, that the buyback is different from this. The consequence of this amendment will be an increased financial.... Well, I guess I can ask this.
If this amendment passes and these newly prohibited firearms are added to the list, would these firearms be included in the government buyback?
Counsel, Criminal Law Policy Section, Department of Justice
I agree that it is speculative.