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Submission to the Standing Committee on Justice and Legal Affairs Respecting Bill C-41

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BCCLA Submission to the Standing Committee on Justice and Legal Affairs Respecting Bill C-41, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act

Introduction

In the context of family maintenance enforcement, the B.C. Civil Liberties Association believes that governments should provide effective and meaningful assistance to those owed family maintenance. However, they must do so in a way that respects the rights and freedoms of debtors.

Standing Committee consultation process

First, the Association would like to thank the Standing Committee for the opportunity to provide our perspectives on the proposed legislation. We have a strong commitment to, and belief in the need for, meaningful opportunities for citizens and citizen groups to provide input into the creation of law and government policy. We would be happy to discuss our brief further if the Committee requires more information.

BCCLA submission on Bill C-41

Our brief will focus on three specific areas for reform proposed in the bill:

  • access to the Revenue Canada database
  • suspension/denial of passports to default debtors
  • suspension/denial of certain federal licenses to default debtors

Access to Revenue Canada database to locate debtors in non-compliance

The B.C. Civil Liberties Association does not oppose this amendment.

Under the existing law, the federal Family Orders and Agreements Enforcement Assistance Act permits the federal government to provide personal information to provincial enforcement agencies in order to locate family maintenance debtors who are in default. Presently, data banks controlled by the Department of National Health and Welfare and the Canada Employment and Immigration Commission may be subject to a search. Information that can be released is limited to the address of the debtor and the name and address of the debtor’s employer. Before undertaking a search, the provincial enforcement agency that requests the information must provide evidence that the person is a debtor who is in default and that it has taken all reasonable steps to locate the debtor without success, including search of all relevant provincial data bases. These provisions also apply to situations in which a child or children have left the province in abroga tion of a court order regarding child custody and access.

Bill C-41 proposes to extend access to the databases controlled by the Department of National Revenue. In the view of the B.C. Civil Liberties Association, adding these data bases to the list of accessible databases does not pose an unwarranted intrusion of privacy or violation of the civil liberties of the debtor. While there may be issues of the integrity of the Revenue Canada’s information data bases and perhaps compliance with reporting requirements, these are policy issues rather than civil liberties issues.

Generally speaking, the Association is concerned that personal information resident in government-controlled information banks that has been collected for a specific purpose should not be used for a different purpose without the consent of the individual who is the subject of the information. Such action tends to undermine the integrity of, and respect for, privacy of personal information controlled by government.

However, the Association recognizes that there is indeed a pressing societal need for access to this information in these circumstances. The financial plight of single parent families in this country and its connection to defaulting family maintenance debtors is well documented. We are reassured that the amendments require proof that all other reasonable steps to locate the defaulting debtor have been unsuccessful, or that the debtor has left the province, before this information is released, require that the federal Minister must ensure that all safeguards in a federal-provincial agreement have been satisfied before releasing this information, and require that the release must be made on a confidential basis.

Finally, we understand that access to the Revenue Canada information for family maintenance enforcement purposes is perhaps the only precedent thus far of access to Revenue Canada information for a purpose other than originally intended. We would be more concerned if this were an addition to a growing list of similar exceptions. However, we understand that this is a unique exception to the confidentiality of these data banks. Given the objective, we believe that it is warranted.

Suspension, non-renewal or denial of Canadian passport

The B.C. Civil Liberties Association opposes the proposal to suspend or deny passports for persistently defaulting debtors. The Association believes that the right to a passport is a fundamental aspect of citizenship.

This has been recognized in section 6(1) of the Charter of Rights and Freedoms, which gives every citizen the right to enter, remain in and leave Canada. Since the ability to leave Canada to go to a foreign country depends largely on a Canadian citizen’s ability to produce a passport either to receive a visa to travel to the foreign country or to be allowed entry at the border, we think that citizens’ entitlement to a passport is implicit in this Charter right.

Citizens have a fundamental right to mobility for good reason. Our ability to move about freely without restrictions is a foundation of a free and democratic society. The state should not be able to limit the freedom of citizens to move without exceptional reasons. Such a reason might include a case in which a person’s mobility may likely threaten state security. In the opinion of the BCCLA, enforcement of private obligations is not such an exceptional reason. Though we understand the importance of family maintenance and indeed have sympathy for families owed maintenance, in principle, this object is not sufficiently pressing to override the importance of mobility.

Furthermore, the Association believes that the denial of the passport contemplated in Bill C-41 may constitute a violation of the mobility rights in the Charter. Pursuing the Charter analysis, could this amendment be demonstrably justified in a free and democratic society? Even if the objective could withstand Charter scrutiny, we remain to be convinced by government that the means chosen are the least invasive of rights, and so would not violate the Charter.

One can realistically envision different scenarios in which this proposal would create unfair hardship. For example, these amendments go so far as to include the possibility of suspending a debtor’s existing passport privileges. A debtor in a foreign country with a valid passport might have the passport suspended due to a noncompliance even though the debtor does not intend to avoid payment—rather, something may have gone wrong with arrangements for payment.

Furthermore, it might be difficult or impossible to locate the debtor for notification of the pending suspension. That debtor would then be illegally present in a foreign country without a valid passport, and thus possibly subject to penal or other sanctions. Another example would be a debtor in persistent arrears who may have urgent need of a passport to visit a dying parent in another country. The legislation does not provide any possibility for exempting a person based on compassionate grounds; in fact, the Bill specifically disallows a right of appeal where the federal government suspends or denies a passport to a debtor.

We note that provisions in the Bill do require the provincial enforcement agency to request that a passport not be suspended or denied if the debtor cannot pay and other factors make it unreason able to use these measures. However, we are concerned that this request is at the behest of the agency and subject to its discretion. Where an agency acted unreasonably or delayed making this request, it might well be too late for the debtor to visit a dying relative.

Given this lack of basic due process protections, the Association does not believe that the Bill provides for a minimum impairment of the debtor’s right to a passport.

In sum, a citizen’s fundamental right to a passport should not be subject to suspension or denial on the basis of their noncompliance with family maintenance obligations.

Suspension, non-renewal or denial of Federal licenses

The Association opposes the proposal to suspend or deny federal licenses due to persistent default of family maintenance obligations.

Bill C-41’s provisions regarding passports also apply to federal licenses granted pursuant to the Aeronautics Act and the Canada Shipping Act. The conditions for suspension include:

  1. that there are persistent arrears (owing $3,000 or more or failure to pay in full for three payment periods) ]
  2. the provincial agency has made reasonable attempts to enforce the obligation, and
  3. that the provincial agency has sent the debtor notice of its intent to request a license suspension or denial.


The Association has several concerns about this proposal.

First, it is likely that the federal licenses provision would only affect a very small class of default debtors. Its effect would likely deprive these individuals of their livelihood since the licenses in the Schedule typically involve employment positions. Consequently, the law would create an inequality in that the vast majority of default debtors would not be subject to this drastic sanction. In the opinion of our Association, subjecting this narrow class of individuals to such a sanction seems to be fundamentally unfair.

Our second concern is based on the principle that citizens’ relationship with the state should be on a one-to-one basis with the multitude of government agencies. Each relationship should be distinct and independent. For example, our relationship with the Motor Vehicle Branch should be distinct from our relationship with the Ministry of Human Resources, which should in turn be independent of our relationship with the Department of Revenue Canada. This approach maximizes citizen autonomy and minimizes state interference with citizen liberty. The proposal to deny or suspend federal licenses would violate this principle, since it requires various departments and ministries across governments to facilitate denying a license that is otherwise valid and to which the citizen would otherwise be entitled.

Finally, we are concerned that this proposal would be self-defeating since many of these licenses are required for individuals’ livelihood. If we deny this license to them, we deny their ability to make money to satisfy their family maintenance obligation. Furthermore, it is not clear that this measure would induce compliance with the maintenance obligation, the obvious objective of the measure. If it would not in fact promote significant compliance, it becomes a purely punitive action against default debtors.