| REPORT OF THE COMMITTEE | WEDNESDAY, October 31, 2001 |
The Standing Senate Committee on Legal and Constitutional Affairs
has the honour to present its
NINTH REPORT
Your Committee, to which was referred the document entitled "Proposals to correct certain anomalies, inconsistencies, and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal an Act and certain provisions that have expired, lapsed or otherwise ceased to have effect" (Proposals for a Miscellaneous Statute Law Amendment Act, 2001) has, in obedience to the Order of Reference of Tuesday, June 5, 2001, examined the said Proposals and now reports the same, with the following comments:
The MSLA
Process
The Miscellaneous Statute Law Amendment Program (MSLA) was
initiated in 1975 to allow for minor, non-controversial amendments to federal
statutes in an omnibus bill. Since then, nine sets of proposals have been
introduced and nine Acts have been passed. The 2001 Proposals are thus the tenth
series of proposals in the program.
Requests for amendments are forwarded to the
Legislation Section of Justice Canada, primarily by federal departments and
agencies, although anyone can propose an amendment if it meets the program’s
criteria. To be included, the proposed amendments must meet certain criteria.
They must:
·
not be controversial;
·
not involve the spending of public funds;
·
not prejudicially affect the rights of persons;
·
not create a new offence; and
· not subject a new class of persons to an existing offence.
The
proposals are tabled in the Senate and the House of Commons, and referred to the
Standing Senate Committee on Legal and Constitutional Affairs and the House of
Commons Standing Committee on Justice and Human Rights. If any member of either
Committee objects to a proposal, for any reason whatsoever, that proposal is
withdrawn. The tenth set of
proposals was tabled in the Senate and referred to this Committee on June 5,
2001.
After the two Committees have studied the proposals, a
Miscellaneous Statute Law Amendment bill is prepared, omitting any clauses to
which a member of either Committee objected.
It is generally expected that this bill will receive speedy passage
through Parliament, since any potentially offensive clauses have been removed.
The 2001
Proposals contain 115 individual clauses, affecting over 40 Acts.
Four clauses were withdrawn at the request of the initiating department
(clauses 33 to 34, which would have amended the Canadian Environmental
Protection Act, and clauses 72 to 73, which would have amended the National
Capital Act). Your Committee
objected to seven proposals, which will be withdrawn.
A detailed description of the clauses to which your Committee objected
and the reasons for the objection are contained in Appendix “A”.
Your Committee
was concerned about the relatively large number of proposals that were
potentially controversial. For
example, several proposals suggested the removal of an approval requirement,
either by Governor in Council or by Treasury Board, for matters involving the
public purse. Another proposal
would have repealed a reference to a Parliamentary review of an Act when it
could not be substantiated that the review had taken place.
In a number of instances, specific information came to your Committee’s
attention only during the hearings on the proposals.
An example of
the difficulties experienced by your Committee can be found in the proposals to
amend the Nuclear Safety and Control Act, proposals which your Committee
ultimately approved. Two of these
proposals would eliminate the requirement for Treasury Board approval of various
expenditures, and on the face of the information available when the proposals
were tabled, appeared potentially controversial.
A third proposal would give the Commission legislative discretion to
authorize the return to work of an employee who “may have” received an
excessive dose of radiation, raising issues of safety and employee rights.
Initially, several members of your Committee expressed concerns that
these proposals appeared controversial.
However, the
Canadian Nuclear Safety Commission made available to your Committee several
senior expert witnesses who were in a position to fully explain the background
and circumstances. These witnesses
explained in detail why the agency felt that the proposals were
non-controversial. They also
provided your Committee with a package of background information, including a
series of Orders in Council delegating to the Commission and its predecessor the
powers technically exercised by Treasury Board over employees.
This enabled your Committee to make a determination that the proposed
amendments did indeed fall within the framework of the Miscellaneous Statute Law
Amendment Act (MSLA) process.
Unfortunately,
your Committee dealt with a number of other potentially controversial proposals
for which the same quality of information was simply not available.
While testimony from the Department of Justice is invariably helpful,
your Committee often requires the in-depth knowledge of the sponsoring
department to fully assess whether the various proposals fall within the
framework of the MSLA process. Your
Committee feels that an explanatory presentation by senior officials from the
sponsor of the proposal serves the interests of both the Committee and the
sponsoring department or agency.
Your Committee
has been following the MSLA process closely for many years.
Overall, we have been heartened by the extent to which the Department of
Justice has respected the recommendations of your Committee.
We take satisfaction in the major impact that the reports of this
Committee have had on improving the MSLA process.
However, we feel that the approach to this most recent set of proposals
gives cause for concern.
In our report on
the 1990 proposals (36th report, 34 Parliament, 2nd
Session, 28 February 1991), your Committee made the following recommendation:
“The
Proposals deal with two different types of amendments:
·
non-substantive anomalies, inconsistencies, archaisms, errors, and
the repeal of spent enactments;
·
miscellaneous amendments and repeals of a non-controversial and
uncomplicated nature. . .
“Most of the
contentious proposals fall within the second category, and are initiated by the
department administering the legislation rather than by the Department of
Justice itself. This category
requires closer parliamentary scrutiny, since it can easily contain amendments
that are substantive rather than technical.
What appears non-controversial and uncomplicated to the department
administering the legislation may appear both controversial and complicated to
members of the public affected by the amendment.
“For
these reasons, your Committee recommends that in future the Proposals be divided
into two Parts: one to deal with the true anomalies which should not be
substantive; and the other to deal with miscellaneous uncontroversial amendments
and repeals, which might be substantive as long as they otherwise meet Justice
criteria.”
Your Committee
suggests that the time may have come to revisit this recommendation.
While the majority of the present proposals are non-substantive and
non-controversial, there was insufficient information available to your
Committee in advance of the hearings to properly deal with those proposals that
were substantive. While the
explanatory notes provided by the Department of Justice were appreciated, your
Committee feels that substantive proposals, even if they are uncontroversial,
should be accompanied by background information prepared by the sponsoring
department. More specifically, we
make the following recommendations:
1)
Any proposals that involve the removal of an approval requirement should
be considered potentially controversial, particularly where public monies are
involved, and Parliamentary Committees should have all of the relevant
information at the time the proposals are tabled.
2)
Where spent enactments are to be repealed, a witness from the sponsoring
department should be available to explain the background, and confirm that the
enactment is indeed spent.
3)
References to a parliamentary review of legislation should not be
repealed unless there is written documentation that the review has indeed taken
place.
Appendix “A”
Clauses objected to and
withdrawn
ACT: Atlantic
Canada Opportunities Agency Act
Clause 5,
amending section 6(2), would have eliminated the requirement that the Governor
in Council approve agreements between the Minister of Industry and one or more
of the Atlantic provinces.
Clause 7,
amending section 13, would have allowed the Atlantic Canada Opportunities Agency
(ACOA) to enter into arrangements with the Enterprise Cape Breton Corporation (ECBC)
allowing the Corporation to exercise the powers of the Agency, “including the
power to enter into agreements that commit moneys appropriated by Parliament for
the purposes of the Agency.”
Clause 8,
amending section 19(1), would have replaced the requirement that the Board of
ACOA meet at least every three months with a requirement that they meet at least
once a year.
Your
Committee objected to these three clauses on the grounds that they were
substantive in nature and controversial.
ACT: Energy
Monitoring Act
Clause 59,
repealing section 42, would have repealed the section requiring that the Act be
reviewed by a Committee of the House of Commons.
Your Committee
felt that references to a parliamentary review of legislation should not be
repealed unless there is written documentation that the review has indeed taken
place.
ACT: National
Energy Board Act
Clause
74, amending the definition section, would have transferred certain
responsibilities with respect to navigable waters from the Minister of Transport
to the Minister of Fisheries and Oceans.
Your Committee
felt that there was insufficient information before them to deal with this
clause.
ACT: National
Film Act
Clause 75,
amending section 13(4), would have repealed
the requirement that the appointment of staff with a salary over a certain
amount, set by Governor in Council, be approved by the Governor in Council.
Your Committee
felt it should uphold the principle that, over some level, public
representatives ought to be approving the spending of public money.
ACT: Yukon
First Nations Self-Government Act
Clause 108,
amending section 10(6), would have amended the French version of the section to
bring the two linguistic versions into conformity.
Your Committee
was not convinced that the proposed change improved the Act.
This section deals with an important and sensitive policy issue, the
nature of enactments by First Nations as a subordinate or parallel authority.
A clearer explanation would be required to justify the proposed change.
Respectfully submitted,
LORNA MILNE
Chair