Bill C-38: A Law's Journey And Impact

Bill C-38 is the name of various pieces of legislation introduced into the House of Commons of Canada. The most recent Bill C-38, introduced in 2022, is an Act to amend the Indian Act (new registration entitlements). It seeks to address the inequity of enfranchisement, enable deregistration by application, and remove offensive language from the Indian Act. Previous iterations of Bill C-38 include the Civil Marriage Act, introduced in 2005, and the Jobs, Growth and Long-term Prosperity Act, introduced in 2012.

Bill C-38: An Act to amend the Indian Act (new registration entitlements)

On December 14, 2022, the Parliament of Canada introduced Bill C-38, an Act to amend the Indian Act to provide new entitlements to registration in the Indian Register. The bill seeks to address the remaining inequities in registration and First Nations membership under the Indian Act.

Bill C-38 was tabled in the House of Commons on January 31, 2023, and it has yet to receive royal assent to become law. The bill addresses the impact of enfranchisement provisions in previous versions of the Indian Act. Before the 1985 amendments, when a person was enfranchised, they lost their status as an Indian and were removed from band lists, and this also affected their descendants. While the 1985 amendments restored the status of enfranchised persons and provided registration for their children, it did not place all descendants on equal footing.

Bill C-38 aims to address this inequality by providing entitlements to those affected, ensuring they are treated the same as those without a family history of enfranchisement. It also enables women who were automatically transferred to their husband's band to seek reaffiliation with their natal band, allowing them and their direct descendants to apply for reaffiliation. Additionally, the bill provides individuals with the option to remove their names from the Indian Register and any Departmental Band List.

Furthermore, Bill C-38 proposes to remove outdated and offensive terminology from the Indian Act, such as references to "mentally incompetent Indians," replacing them with more appropriate terms like "dependent person." The bill also includes provisions regarding claims for compensation, disallowing them under certain circumstances.

The bill has progressed through the legislative process, with the second reading completed in the House of Commons on March 22, 2024. It is currently awaiting royal assent to become law.

Bill C-38: Civil Marriage Act

Bill C-38, also known as the Civil Marriage Act, is a federal statute that legalised same-sex marriage across Canada. The bill was introduced in the House of Commons on 1 February 2005, and it received Royal Assent on 20 July 2005, thereby becoming law.

The Civil Marriage Act was the first piece of Canadian legislation to codify a definition of marriage, expanding on the traditional common-law understanding of civil marriage as an exclusively heterosexual institution. The Act defines civil marriage as "the lawful union of two persons to the exclusion of all others", thereby extending civil marriage to same-sex couples.

The bill was introduced as a response to the Supreme Court of Canada's decision in the Ontario case of M. v. H., which allowed a section 15 Charter challenge to the legislated opposite-sex definition of "spouse". This decision influenced legislative reform across Canada, with legislators in several provinces and territories enacting a range of legislative measures providing for various same-sex entitlements.

The Act's legislative process was lengthy and contentious. The bill was introduced by Justice Minister Irwin Cotler and was based on a draft bill produced by then-Justice Minister Martin Cauchon in 2003. It underwent a second reading between 16 February and 4 May 2005, followed by Legislative Committee hearings until 14 June. The bill was then reported back to the House of Commons, where it was adopted at the report stage on 27 June, with one additional substantive opposition amendment. It passed the House of Commons on 28 June by a vote of 158-133, with 32 government members opposing.

The bill was introduced in the Senate on 29 June and underwent a second reading from 4 to 6 July. Witness testimony before the Standing Senate Committee on Legal and Constitutional Affairs from 11 to 14 July echoed that given before the House Committee. The bill was reported back to the Senate on 18 July with no further amendments and passed on 19 July by a vote of 47-21.

The Civil Marriage Act came into effect on 20 July 2005, with Canada becoming the fourth country to legislate same-sex marriage.

Bill C-38: Jobs, Growth and Long-term Prosperity Act

The Jobs, Growth and Long-term Prosperity Act, also known as Bill C-38, is an Act of the Parliament of Canada. This omnibus bill was introduced by Jim Flaherty, Minister of Finance, under Prime Minister Steven Harper's majority Conservative government as a 2012 Budget Implementation Act.

Bill C-38 was given Royal Assent on June 29, 2012, and attracted controversy for its size (c. 450 pages) and the breadth of provisions that were not fiscally related. Elizabeth May, leader of the Green Party, claimed that:

> [I]n spite of the fact that most Canadians have no idea how seriously Bill C-38 will affect their lives, the Senate is about to begin hearings so that Conservative Senators can vote on it as soon as possible... This railroading version of democracy is tragic for Canada.

Part 1 of this enactment "implements certain income tax measures and related measures proposed in the March 29, 2012, budget." Other sections of C-38 amend the following acts:

• Environmental Violations Administrative Monetary Penalties Act
• National Energy Board Act
• Canada Oil and Gas Operations Act
• Nuclear Safety and Control Act
• Canadian Environmental Protection Act 1999
• Trust and Loan Companies Act
• Cooperative Credit Associations Act
• Northwest Territories Act
• Financial Administration Act
• Department of Human Resources and Skills Development Act
• Parks Canada Agency Act
• Trust and Loan Companies Act
• Insurance Companies Act
• National Housing Act
• Bretton Woods and Related Agreements Act
• Canadian Security Intelligence Service Act
• Federal-Provincial Fiscal Arrangements Act
• Government Employees Compensation Act
• International Development Research Centre Act
• Environmental Violations Administrative Monetary Penalties Act
• Old Age Security Act
• Statutory Instruments Act
• Investment Canada Act
• Canadian International Trade Tribunal Act
• Health of Animals Act
• Canada School of Public Service Act
• Corrections and Conditional Release Act
• Status of the Artist Act
• National Round Table on the Environment and the Economy Act
• Telecommunications Act
• Employment Equity Act
• Employment Insurance Act
• First Nations Land Management Act
• Canada Travelling Exhibitions Indemnification Act
• Canadian Air Transport Security Authority Act
• First Nations Fiscal and Statistical Management Act
• Canadian Forces Members and Veterans Re-establishment and Compensation Act
• Department of Human Resources and Skills Development Act, to add powers, duties and functions that are substantially the same as those conferred by the Department of Social Development Act
• Wage Earner Protection Program Act
• Immigration and Refugee Protection Act
• Budget Implementation Act 2008
• Shared Services Canada Act
• Assisted Human Reproduction Act

Bill C-38 also dissolves the Public Appointments Commission and its secretariat and dissolves the Canadian Artists and Producers Professional Relations Tribunal, transferring its powers and duties to the Canada Industrial Relations Board.

Bill C-38: Farm Debt Mediation Act

Bill C-38, the Farm Debt Mediation Act, was assented to on April 25, 1997. The Act provides for mediation between insolvent farmers and their creditors. It also amends the Agriculture and Agri-Food Administrative Monetary Penalties Act and repeals the Farm Debt Review Act.

The Act defines a farmer as any person, cooperative, partnership, or other association of persons that engages in farming for commercial purposes and meets any prescribed criteria. This includes the production of field-grown crops, the raising of livestock, and the production of eggs, milk, honey, and other agricultural goods.

Under the Act, a farmer who is facing insolvency can apply to an administrator for a stay of proceedings against them by their creditors, a review of their financial affairs, and mediation with their creditors. The administrator will then review the farmer's financial situation and appoint a mediator to assist the parties in reaching a mutually acceptable arrangement. The administrator may also recommend that certain creditors participate in the mediation process.

The Act replaces the appointed panel members of the Farm Debt Review Act with mediators who are hired through a bidding process. It allows farmers facing insolvency to apply for a 30-day stay of proceedings, which can be renewed for up to 120 days. The Act also provides for the appointment of appeal boards to hear complaints and grant, extend, or terminate proceedings.

The main purpose of the Act is to provide a framework for resolving disputes between insolvent farmers and their creditors. It aims to temporarily suspend the rights of creditors to take or continue proceedings against the farmer's assets and facilitate a mutually acceptable arrangement.

The Act has been the subject of debate, with some arguing that it does not go far enough to support farmers in financial difficulty. There are concerns about the substantial budget allocated to the mediation process and the potential for political patronage in appointments to appeal boards. However, it is generally seen as a step in the right direction towards alleviating the financial struggles of farmers.

Bill C-38: An Act to implement certain provisions of the budget

Bill C-38, or the Budget Implementation Act, 2023, No. 1, was tabled in the House of Commons on April 20, 2023, and received Royal Assent on July 21, 2023. The Act implements certain provisions of the budget tabled in Parliament on March 28, 2023.

Part 1: Amendments to the Income Tax Act and Other Legislation

This part of the Act enables the Canada Revenue Agency (CRA) to use electronic certification of tax and information returns and requires taxpayers to file electronically in certain circumstances. It also doubles the maximum tax deduction for tradespeople's tools from $500 to $1,000. Additionally, it provides that any gain on the disposition of a right to acquire Canadian housing property within a one-year period of its acquisition is treated as business income. It further excludes from a taxpayer's income certain benefits for Canadian Forces members, veterans and their spouses or common-law partners.

Part 2: Amendments to the Excise Tax Act, the Excise Act, the Excise Act, 2001, the Underused Housing Tax Act, the Greenhouse Gas Pollution Pricing Act and Other Related Texts

Part 2 of the Act clarifies that the international transportation of money benefits from Goods and Services Tax/Harmonized Sales Tax (GST/HST) relief and other special rules in the same way as a service of internationally transporting other kinds of freight. It also permits a pension entity, in specific circumstances, to claim the pension entity rebate or an input tax credit after the end of the two-year limitation period. This part specifies that crypto-asset mining is generally not considered a supply for GST/HST purposes and ensures that payment card clearing services are excluded from the definition of "financial service" under the GST/HST legislation.

Part 3: Amendments to the Excise Tax Act, the Excise Act, 2001 and the Air Travellers Security Charge Act

Part 3 amends the Excise Act, the Excise Act, 2001, and the Air Travellers Security Charge Act. Division 1 of this part temporarily caps the inflation adjustment for excise duties on beer, spirits, and wine at two per cent for one year, starting on April 1, 2023. Division 2 increases the air travellers security charge applicable to air travel that includes a chargeable emplanement after April 2024, for which any payment is made after April 2024.

Part 4: Enactment and Amendment of Several Acts

Part 4 enacts and amends several Acts to implement various measures. Division 1 amends the Bank Act to strengthen the regime for dealing with complaints against banks and authorized foreign banks. Division 2 amends the Pension Benefits Standards Act, 1985, to provide for variable life benefits under a defined contribution provision of a pension plan. It also amends the Pooled Registered Pension Plans Act to provide for variable life payments under pooled registered pension plans. Division 3 contains measures related to money laundering and digital assets. It amends the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Criminal Code to enhance Canada's ability to take economic measures against certain persons. Division 4 amends the Customs Tariff to extend the expiry date of the General Preferential Tariff and Least Developed Country Tariff to December 31, 2034. It also creates a new General Preferential Tariff Plus tariff treatment that will expire on the same date. Division 5 amends the Customs Tariff to remove Belarus and Russia from the list of countries entitled to Most-Favoured-Nation tariff treatment. Division 6 allows the Bank of Canada to apply any of its ascertained surplus to its retained earnings, addressing certain losses incurred from the purchase of securities as part of the Government of Canada Bond Purchase Program. Division 7 enacts the Canada Innovation Corporation Act, continuing the Canada Innovation Corporation as a parent Crown corporation. Division 8 amends the Federal-Provincial Fiscal Arrangements Act to authorize additional payments to the provinces and territories. Division 9 renews the authority to make Equalization and Territorial Formula Financing payments for another five-year period, starting on April 1, 2024, and makes technical changes to improve the accuracy of the programs. Division 10 amends the Special Economic Measures Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Justice for Victims of Corrupt Foreign Officials Act to strengthen Canada's ability to take economic measures against certain persons. Division 11 amends the Privileges and Immunities (North Atlantic Treaty Organisation) Act to enable the Paris Protocol to be implemented in Canada. Division 12 amends the Service Fees Act to clarify the definition of "fee", exempt certain fees from the Act's application, and make certain changes to the annual adjustment provisions. It also amends the Canadian Food Inspection Agency Act to provide for the application of sections 16 to 18 of the Service Fees Act to low-materiality fees. Division 13 amends the Canada Pension Plan to allow the Minister of National Revenue to share information with the Minister of Employment and Social Development for policy analysis, research, or evaluation related to the administration of the Act. Division 14 amends the Department of Employment and Social Development Act to grant the Minister of Employment and Social Development the authority to collect and use Social Insurance Numbers for administering or enforcing any Act, program, or activity under their responsibility. Division 15 amends the Canada Labour Code regarding leave related to the death or disappearance of a child, increasing the maximum length of leave from 104 to 156 weeks and repealing paragraph 206.5(4)(b) of the Act. Division 16 amends the Immigration and Refugee Protection Act to specify that a claim for refugee protection made by a person inside Canada must be made in person. It also grants the Minister of Citizenship and Immigration the power to specify the documents and information required for such a claim. Division 17 amends the Immigration and Refugee Protection Act to clarify that the Minister may give instructions regarding an application to sponsor a person who applies for a visa as a Convention refugee or as a person in similar circumstances. Division 18 amends the College of Immigration and Citizenship Consultants Act to provide that the College may seek an order to administer the property of any licensee who is unable to perform their activities. It also extends immunity against proceedings for damages to directors, employees, and agents of the College and authorizes the College to enter into information-sharing agreements with any entity, including federal or provincial government institutions. Division 19 amends the Citizenship Act to grant the Minister responsible for the Act's administration and enforcement the power to collect, use, verify, retain, and disclose biometric information from applicants. It also authorizes the Minister to administer and enforce the Act using electronic means and to make regulations requiring applicants to provide information or documents electronically.

Part 5: Amendments to the Canada Elections Act

Part 5 of the Act provides for a national, uniform, exclusive, and complete regime applicable to registered parties and eligible parties regarding their collection, use, disclosure, retention, and disposal of personal information.

Frequently asked questions