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

SECOND REPORT

Your committee, which was authorized to examine the subject matter of clauses 1 to 5 contained in Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code, has, in obedience to the order of reference of Thursday, December 2, 2021, examined the said subject-matter and now issues an interim report as follows:

The committee is mindful of the harmful impacts of the COVID-19 pandemic, which has persisted since March 2020.

While the committee appreciates the importance of protecting health professionals and access to health services, committee members raised several questions about the need to introduce the new offences proposed by Bill C-3, given that the Criminal Code already contains the offences of intimidation (section 423) and mischief (section 430). These offences are available for police to use in response to situations where people are being intimidated, obstructed, or impeded from accessing or providing health services. In response to these questions, the Minister of Justice justified the introduction of these new offences by the numerous requests he had received from various stakeholders in the health community for some time, following incidents that occurred in recent months. He also responded that he had not consulted directly with his provincial counterparts. The committee has previously raised concerns about how the Code has been amended on a piecemeal basis for many years and has become cumbersome and very complex as a result.

The committee reiterates the recommendation it made in its 2017 report, Delaying Justice is Denying Justice – An Urgent Need to Address Lengthy Court Delays in Canada:

The committee recommends that the Government of Canada establish an independent body of experts with a mandate to undertake a comprehensive and impartial review of the Criminal Code and provide recommendations for the modernization and reform of this law

The committee also notes that it looks forward to receiving and reviewing a summary of the Gender-Based Analysis Plus (GBA+) performed for Bill C-3 as promised by the Minister of Justice. The committee recommends that when introducing government bills, the Minister should concurrently table a summary of the GBA+ in both houses of Parliament, rather than waiting for this committee to request it.

Finally, the committee stresses that, based on the communicated need for urgent consideration of this bill, it was only able to undertake a limited pre-study and looks forward to receiving the bill for clause-by-clause consideration.

Respectfully submitted,

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to table its

SECOND REPORT

Your committee, which was authorized to examine the the subject matter of Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code, has, in obedience to the order of reference of Thursday, December 2, 2021, examined the said subject-matter and now reports as follows:

Bill C-3 amends two laws. The bill contains eight clauses, of which five (clauses 1 to 5) pertain to the Criminal Code, two (clauses 6 and 7) pertain to the Canada Labour Code, and one (clause 8) covers the timeline of the bill’s coming into force.

Your committee examined this bill during two meetings, hearing testimony from the Honourable Seamus O’Regan Jr., P.C., M.P., Minister of Labour, officials from Employment and Social Development Canada, and nine stakeholders.

Your committee also acknowledges the meeting held by the Standing Senate Committee on Legal and Constitutional Affairs, where it studied clauses 1 to 5 of Bill C-3 and heard from the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada and officials from the Department of Justice Canada.

Your committee would like to highlight the importance of collecting disaggregated data to inform the development of legislation, policies, and programs. Your committee heard that Employment and Social Development Canada and the Department of Justice, in collaboration with Statistics Canada, should gather and publish disaggregated data on the impacts of Bill C-3. Data on employees should be disaggregated by various population groups, including underrepresented, marginalized and equity-deserving groups; these data should be assessed in order to measure the uptake in the use of medical leave with pay by different groups and the impact of such leave on the health and productivity of employees. Data on employers should be disaggregated by different industries and sectors, as well as regions across Canada, including rural and urban areas.

Your committee heard that that if this bill is passed, Employment and Social Development Canada should develop a robust and effective information campaign, delivered in workplaces, on social media, through unions and all other communication methods, for employees and employers in the federally regulated private sector explaining these amendments to the Canada Labour Code and the new provisions for medical leave with pay.

Given the urgency of the pre-study of Bill C-3, your committee did not have the opportunity that it would have liked to hear from more stakeholders representing federally regulated employers, including small and medium enterprises. Your committee is aware that small and medium enterprises can experience financial challenges to a greater degree than larger businesses. Your committee heard that the amendments to the Canada Labour Code, requiring 10 paid medical leave days, could put additional financial pressure on many federally regulated businesses during a time when they are already facing financial challenges because of rising inflation rates, supply chain issues, COVID-19 restrictions and a labour shortage.

Your committee heard a majority of testimony in favour of the Government of Canada removing the requirement in Bill C-3 allowing employers to ask employees to provide a medical certificate for any medical leave with pay but acknowledges that fewer stakeholders representing employers than employees were able to appear during the pre-study. Your committee heard that requiring medical certificates can deter workers from accessing medical leave for several reasons: there are costs (time, travel and financial) to obtain medical certificates; workers’ recovery may be delayed if they are required to leave their houses to obtain medical certificates; and some workers do not have easy access in their community to a medical health professional. Furthermore, making certificates mandatory adds administrative work for doctors and it is not related to providing patients with medical care. Your committee acknowledges the extra burden that requiring medical certificates will have on certain groups of people, particularly low-income individuals, racialized people, single parents, and people living with a disability.

Your committee is concerned that Bill C-3’s provisions for medical leave with pay are based on an accrual method, whereby an employee accumulates one day’s medical leave with pay for each continuous month they work, to a maximum of 10 days annually. Witnesses explained that these provisions are not only a barrier to accessing adequate medical leave with pay, but disproportionately affect vulnerable populations, such as part-time, contract and temporary workers, many of whom are racialized people and women. Your committee therefore asks the Government of Canada to reassess the accrual method, examine what practices are used in other countries that provide medical leave with pay and consider the impact on high-turnover industries.

Your committee heard that employers are concerned that there is not a “greater right or benefit” provision in Bill C-3’s proposed amendments to the Canada Labour Code. This lack of provision could be interpreted to allow employees to “stack” medical leave with pay provided in collective agreements or other arrangements on top of the medical leave with pay proposed in the bill’s provisions. Under the Canada Labour Code, onlyDivisions II, IV, V, and VII of Part III – which include provisions for some types of leave – are subject to the “greater right or benefit” provisions, while the proposed provision of 10 days of medical leave with pay will fall under Division XIII. Your committee heard that adding a “greater right or benefit” provision to Bill C-3 would clarify that employees that already have access to equal or greater medical leave with pay do not also have access to the new provisions in Bill C-3.

Your committee requests that the Government of Canada undertake a review of the outcome of these amendments to the Canada Labour Code and that the report be publicly available. Given the unpredictable and evolving circumstances of the COVID-19 pandemic, the review could be delivered three to five years after the coming into force of these amendments.

Your committee was advised of the necessity for a consultation process and the requirement to develop regulations on the provisions related to medical leave with pay after the passing of Bill C-3, but before its implementation. Therefore, your committee encourages the Government of Canada, with the Minister of Labour’s support, to ensure that the implementation of these provisions be done as expeditiously as possible.

Your committee heard that the Government of Canada’s intention is to work with provinces and territories to ensure all Canadians have access to adequate medical leave with pay. Your committee welcomes this consultation process and suggests that the Government of Canada continue moving forward with consultations in a timely manner.

Respectfully submitted,