Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 71 - Twenty-Fourth Report of the committee
THURSDAY, May 13, 1999
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its
TWENTY-FOURTH REPORT
Your Committee, to which was referred the document entitled "Proposals to correct certain anomalies, inconsistencies, archaisms and errors in the Statutes of Canada, to deal with other matters of a non-controversial and uncomplicated nature therein and to repeal certain provisions thereof that have expired or lapsed or otherwise ceased to have effect" (Proposals for a Miscellaneous Statute Law Amendment Act, 1998) has, in obedience to the Order of Reference of Thursday, November 5, 1998, examined the said Proposals and now reports the same, including the changes tabled with the Committee by the Department of Justice which are appended to this report, 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 eight sets of proposals have been introduced and eight Acts have been passed. The 1998 Proposals are thus the ninth 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 any one 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 Standing Committee of the House of Commons on Justice and Human Rights. If either committee objects to a proposal, for any reason whatsoever, that proposal is withdrawn. The ninth set of proposals was tabled in the Senate and referred to this Committee on 5 November 1998.
After the two committees have studied the proposals, a Miscellaneous Statute Law Amendment bill is prepared, omitting any clauses to which 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 1998 Proposals are the largest set of proposals studied by your Committee since the 1990 proposals, which were the sixth series of proposals in the MSLA program. At that time, your Committee made several suggestions to improve the process, among the most important of which was that the explanatory notes should be improved and expanded. Your Committee was pleased to see that there has been a major improvement in the quality of the explanatory notes in this set of proposals.
Another concern expressed by your Committee in its report on the 1990 Proposals dealt with the relationship between the Standing Joint Committee for the Scrutiny of Regulations and the MSLA process. A number of the proposals put forth in 1990, as with the proposals now referred to your Committee, originated in concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations. In its report on the 1990 Proposals, your Committee noted:
Proposals originating with the Standing Joint Committee for the Scrutiny of Regulations, or in response to their concerns, usually involve ensuring consistency between the enabling legislation and existing regulatory practice... Your Committee has long been concerned that Parliamentarians must pass legislation with no knowledge of what the regulations may be. Unfortunately, regulations can be used to authorize practices or policies not contemplated by Parliament when legislation is passed. Therefore your Committee is especially concerned that some of the amendments proposed to validate regulations may retrospectively authorize practices never contemplated when the original act was passed.
One of the proposed amendments, which is dealt with in more detail below, revived this concern addressed in our study of the 1990 Proposals. Your Committee suggests that the MSLA process is not necessarily the most appropriate means for dealing with concerns of the Standing Joint Committee for the Scrutiny of Regulations that specific regulations are beyond the regulatory mandate of the legislation. Should a department or agency nonetheless wish to use the MSLA process to cure such a defect, we would strongly suggest that a letter from the Joint Chairs of the Standing Joint Committee for the Scrutiny of Regulations be tabled with the Committee to clarify that the Standing Joint Committee for the Scrutiny of Regulations accepts that the proposal is uncontroversial and does not affect rights.
One other point of general interest arose during your Committee's hearings on the MSLA: the question of whether the MSLA process could be used to repeal statutory provisions that had been declared by the Supreme Court of Canada to be of no force or effect. Officials from the Department of Justice explained their concern that the subject-matter of such decisions often continued to be controversial, and therefore not suitable for the MSLA process, even though the effect of the Supreme Court decisions was conclusive.
Members of your Committee remain concerned that there are some provisions in the Criminal Code which are no longer valid, and that these should be repealed so that Canadian citizens can ascertain the true state of law when they refer to the appropriate statutes. Your Committee strongly encourages the Minister of Justice to explore appropriate mechanisms for ensuring that provisions struck down by the Supreme Court of Canada are repealed in a timely manner. If the Minister feels that the MSLA is not the appropriate process, perhaps a Criminal Law Amendment bill, dealing with all inoperative provisions at once, could be considered. Another possibility would be to use the statute law revision process, provided that this would not cause undesirable delays.
Specific Proposals
The 1998 Proposals contain over 250 individual clauses, affecting over 80 Acts. Part 1 contains the main body of proposals, including all of the substantive amendments. Part 2 contains over 20 clauses correcting cross-references to the Income Tax Act. The revised Income Tax Act came into effect some time after the rest of the Revised Statutes, 1985, which therefore do not reflect the changes in the revised Income Tax Act. These are all changes that would have been made in the next statute revision process had the MSLA process not been available. Part 3 includes conditional amendments and the repeal of spent statutes. Conditional amendments deal with situations where a bill which has been introduced in Parliament affects the same provision as an MSLA proposal, and it is not known whether the bill or the MSLA Act will become law first.
The Department of Justice also tabled a number of changes to the original proposals with the Committee to allow for bills referred to in Part 3 which had passed since the proposals were introduced, and for new bills, affecting proposed changes, which had been introduced. As well, some proposals were withdrawn at the request of the initiating department. Finally, a recent change to the Ontario Courts Improvement Act, which came into effect on 19 April 1999, changed the name of the Ontario Court (General Division) to the Superior Court of Justice. Since clause 4(1) of the Proposals refers to this court, a further amendment to the Proposals was required. All of these changes and withdrawals are attached as an appendix to the report of your Committee.
Your Committee initially identified approximately two dozen clauses as potentially controversial. The Department of Justice reviewed these proposals, and five were withdrawn by the departments or agencies involved. Legal staff from three other departments or agencies appeared before your Committee to testify on six other clauses.
Senior counsel from the Department of Justice, representing the Property Law section of the department and Department of Canadian Heritage, testified on changes to the Federal Real Property Act and the Copyright Act respectively. In both instances their testimony was detailed, informative and persuasive. Your Committee is satisfied that the amendments proposed under these acts are consistent with the guidelines of the MSLA program.
The proposal which gave your Committee the most difficulty was a proposed amendment to the regulatory powers of the National Energy Board. The National Energy Board currently has a regulation allowing for the existence of a temporary restricted area, beyond the 30 metre safety zone, for 3 days to allow a pipeline company to stake the position of its pipes and right of way. The need for such a temporary safety measure has not been questioned, but the Standing Joint Committee for the Scrutiny of Regulations felt that the regulatory authority in the National Energy Board Act did not allow for such an extended, temporary restricted or safety zone. The Standing Joint Committee for the Scrutiny of Regulations is aware of the National Energy Board proposal and had not objected to the use of the MSLA process.
The witness for the National Energy Board acknowledged "that its proposal may be at the threshold of acceptability, and that it is the role and function of this Committee to decide whether this legislative proposal should be enacted." Your Committee commends the Board on this frank approach, and on ensuring that the Standing Joint Committee for the Scrutiny of Regulations was made aware of its proposal.
As Chair of your Committee, I wrote to the Joint Chairs of the Standing Joint Committee for the Scrutiny of Regulations to ensure that there was no objection to the MSLA process being used to validate the regulation which the Joint Committee had questioned. The Joint Chairs replied that they understood the difficulties involved, but felt the decision could most properly be made by your Committee:
There can be no doubt that the result of this legislative initiative would be to allow regulations to be made with regard to lands to which the Act does not apply at this point in time. As you have mentioned, this is being done to ensure that safety requirements are met. We understand the concern that this legislative proposal may fall outside the scope of the Miscellaneous Statute Law Amendment Program. We also consider that your Committee is the proper forum for the making of a decision as to whether or not this amendment should be approved.
On the other hand, your Committee must take into consideration that the National Energy Board based its case on the importance of the impugned regulation as a health and safety measure.
Although your Committee agrees that this proposal is at the limit of what is acceptable under the MSLA process, it feels that the amendment should be allowed given the particular circumstances surrounding the impugned regulation. Your Committee emphasizes that it is accepting the proposal only because of the safety implications, and that it would not normally approve a proposal that so pushed the boundaries of the MSLA process. Therefore, this decision shall not serve as a precedent for future MSLA Proposals.
Respectfully submitted,
LORNA MILNE
Chair