Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce

Issue 5 - Reports of the Committee

TUESDAY, June 11, 1996

The Standing Senate Committee on Banking, Trade and Commerce has the honour to present its

FOURTH REPORT

Your committee, which was authorized by the Senate on March 21, 1996, to examine and report upon the present state of the financial system in Canada and to present its final report no later than December 12, 1996, respectfully requests that it be empowered to engage the services of such counsel and technical, clerical and other personnel as may be necessary, and to adjourn from place to place within Canada for the purpose of its examination.

Pursuant to section 2:07 of the Procedural Guidelines for the Financial Operation of Senate Committees, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that Committee are appended to this report.

Respectfully submitted,

MICHAEL KIRBY
Chairman

TUESDAY, June 11, 1996

The Standing Senate Committee on Banking, Trade and Commerce has the honour to present its

FIFTH REPORT

Your committee, to which was referred the Bill C-19, An Act to implement the Agreement on Internal Trade, has examined the said Bill in obedience to its Order of Reference dated Thursday, May 30, 1996, and now reports the same without amendment, but with an observation which is appended to this report.

Respectfully submitted,

MICHAEL KIRBY
Chairman

APPENDIX (A) TO THE REPORT

OBSERVATION ON BILL C-19

Clause 9 of Bill C-19, An Act to implement the Agreement on Internal Trade, gives the Governor in Council sweeping powers; subclause 9(1) provides as follows:

For the purpose of suspending benefits or imposing retaliatory measures of equivalent effect against a province pursuant to Article 1710 of the Agreement, the Governor in Council may, by order, do any one or more of the following:

(a) suspend rights or privileges granted by the government of Canada to the province under the Agreement or any federal law; and

(b) modify or suspend the application of any federal law with respect to the province.

While it is true that these extraordinary powers are circumscribed to the extent that they must be "for the purpose of suspending benefits or imposing retaliatory measures of equivalent effect against a province pursuant to Article 1710 of the Agreement," they are still quite remarkable and potentially vast. It must be remembered that the Governor in Council is being given the power by this clause to override or modify laws which have been duly passed by Parliament, which means that great care must be exercised in its wording.

Officials from the Department state that subclause 9(3) makes clear that the powers in subclause 9(1) are restricted. Subclause 9(3) reads as follows:

For greater certainty, the making of an order under subsection (1) shall be in accordance with and subject to Chapter 17 of the Agreement, in particular,

(a) the requirements for standing set out in paragraph 1704(8) of the Agreement; and

(b) the conditions and limitations set out in paragraphs 1710(3), (4) and (10) of the Agreement.

This provision attempts to clarify subclause 9(1) by indicating the limitations that are placed on its words.sub clause 9(3) is indicated to have been added "for greater certainty." This creates the impression that the limitations are self-evident or clear, although the fact that the clause is required at all means that there is some uncertainty or room for doubt. The structure of the clause as it now appears is less than clear -- one reads subclause 9(1), and it is later limited insub clause 9(3).

While it may be unlikely that the Governor in Council would misuse the powers to issue orders granted in clause 9(1), and that clause 9(3) provides some assistance in interpreting the powers set out in clause 9(1), the committee continues to have concern.

The committee believes that for the sake of clarity, it would have been preferable if clause 9 had been drafted differently. The powers granted in subclause 9(1) should be clearly enunciated and their restrictions set out in one place, rather than in a separate and subsequent subclause. Instead of saying "these are the powers, and, by the way, they are restricted as follows," it would be preferable if the powers and their limitations were set out together. Alternatively, it is not uncommon for introductory words to be added to a provision, such as "Subject to subsection (3), ..."

The committee appreciates that legislative drafting is not easy and that in a bill's passage through Parliament, amendments are often made which detract from the flow or logic of a bill. Nevertheless, at the end of the day, it is incumbent upon departmental officials to ensure that the drafting is clear and proper, and that any necessary changes are made.

APPENDIX (B) TO THE REPORT

THURSDAY, May 30, 1996

The Standing Committee on Internal Economy, Budgets and Administration has examined and approved the budget presented to it by the Standing Senate Committee on Banking, Trade and Commerce for the proposed expenditures of the said committee for the period ending March 31, 1997 for the purpose of its examination of the present state of the financial system in Canada as authorized by the Senate on Thursday, March 21, 1996. The said budget is as follows:

Professional and Other Services $ 37,260
Transport and Communications 110,757
All Other Expenditures 8,800

TOTAL $156,817

Respectfully submitted,

COLIN KENNY
Chairman