Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 33 - Evidence
OTTAWA, Wednesday, May 1, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-41, to re-enact legislative instruments enacted in only one official language, met this day at 4:00 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we will begin this session of our deliberations on Bill S-41.
We have before us Mr. Pierre Foucher. I will ask him to proceed with his presentation.
[Translation]
Mr. Pierre Foucher, Professor, Faculty of Law, University of Moncton: Honourable senators, I am pleased to be here today to discuss Bill S-41. Thanks to the Internet and the efficiency of your clerk, I was able to access the transcripts of your first few meetings. Thus I can begin by responding to some of the concerns expressed at previous meetings.
First of all, in my view, section 133 does not require that all regulations always be published, even though the wording seeto say that. This is in fact a language right that is interpreted based on the context and, in my view, that means that if a regulation is to be published, it must be published in both official languages.
Second, in common law, strictly speaking it is possible to be convicted for a contravention under a regulation that has not been published. The case law continues to reflect the principle that ignorance of the law is no excuse.
In federal law, that principle has been changed through the Statutory Instruments Act, so that it is now the responsibility of the regulation-making authority to take reasonable steps to bring the substance of the regulation to the notice of the person concerned.
If that was done, a person can be convicted of contravening an unpublished regulation. Even though section 133 states that laws must be printed and published in both languages, the Supreme Court has ruled that the term ``law'' includes regulations and any legislative instrument. As well, the words ``printed and published'' include adoption.
Having said that, however, this does pose somewhat of a challenge. There may be regulations — we do not know how many, which ones, for how long, and we may never know — that run the risk of being null and void, unconstitutional and inoperative because they were not enacted in both French and English.
It is true that they are deemed to be valid as long as they have not been quashed by a court of law. But it would take nothing more than a general ruling for that to occur, such as in Manitoba in 1985, or the 1987 Mercure decision in Saskatchewan. Thus, one court decision would be enough to simultaneously invalidate all those instruments. In my view, that is what this bill is attempting to correct. It has two main goals: to respect Canada's linguistic duality and to preserve the rule of law.
Can a simple piece of legislation, as opposed to an amendment to the Constitution, actually correct this problem? My answer would be yes. Parliament is supreme and can make these laws retroactive. It can give retroactive effect to regulations if it states that clearly. The bill is clear on that point.
Also, there are precedents. Quebec re-enacted its laws in both languages in 1979; Manitoba had to re-enact all of its laws all at once once they had been translated, within the period of temporary validity; the provinces of Saskatchewan and Alberta were also forced to legislate in an omnibus fashion following the Mercure ruling, even though it was for what I would consider to be the wrong reason, namely to validate the unilingual English version of the laws and remove the requirement to legislate in both languages. So, in my view, this procedure is perfectly appropriate.
I would now like to address the matter of classes of regulations. As regards regulations that are already published in both languages, my view is that clause 3 of the bill solves the problem. As to regulations that were either published in English only or never published at all, I do have certain reservations.
Clause 4 of the bill says: ``Le gouverneur en conseil peut'' and ``The Governor in council may.'' However, bilingualism is an obligation. Therefore, this is not something that can be left to the government's discretion.
I therefore suggest amending clause 4 to make that an obligation. Since it would be unrealistic or unreasonable to have to go out and find all these legislative instruments, the obligation would come into play when the government became aware of the existence of an unpublished regulation or one published in English only that had been enacted in English.
Still on the subject of this clause, I do have a concern regarding regulations that are exempt from publication, under sub-section 15(3) of the Statutory Instruments Act. Bill S-41 states that these regulations will not have to be published.
It seeto me that the Canadian public has a right to know, even with respect to regulations that are exempt from publication, that a French version exists. I am therefore suggesting that a request be made to provide for a notice to be published in Part 1 of the Canada Gazette stipulating that a French version of an unpublished regulation is available.
My last point has to do with the retroactive nature of contraventions. The safeguard set out in the bill will be adequate if the substance of the regulation has been brought to the notice of the person concerned. In my view, that would have to be done in the official language of that person. If that had not been done in the person's language, I believe one could argue that the substance of the contravention had not been reasonably brought to the notice of the persons concerned if they are French-speaking. The fact that an accused is bilingual is not a valid criterion in language law. The Supreme Court ruled in Beaulac that even though Mr. Beaulac understood English, he had the right to be tried in French. The point here is not an accused's level of comprehension.
I am therefore suggesting two possible amendments: either that an accused will always be acquitted if the substance of a contravention has not been brought to his notice in his language or, as part of a more moderate option, that the court be invited in such a case to consider whether an acquittal is needed, given that an acquittal could bring the administration of justice into disrepute.
Under this second option, that would mean that an acquittal could bring the administration of justice into disrepute if the case involved a serious contravention under an environmental regulation, for example, such as significant pollution, even if the regulation had not been either published or enacted in both languages or brought to the notice of the accused in his or her language.
The test related to the administration of justice being brought into disrepute is one the courts are well familiar with; indeed, it is already applied in Charter cases. Including it in the bill would give them a series of tests with which they are familiar and could work with.
As a means of improving the bill, I think it could be useful to add a clause to safeguard all actions taken under unconstitutional regulations. I have suggested such a clause and taken my inspiration from a similar clause in the Saskatchewan statute. I am suggesting that the act come into force on the day of Royal Assent, rather than at a date set by proclamation.
I encourage you to pass this bill. While I agree that it seeto want to cover the federal government's past negligence as regards its respect for its constitutional obligations, appropriate and fair corrective action in this case involves translating and re-enacting the regulations. That is what this bill proposes to do. This will put the government federal on the same footing as Manitoba and Quebec in relation to the same constitutional obligation.
[English]
The Chairman: Thank you, Mr. Foucher. I understand that you have specific proposed amendments and they have just now been handed to me.
[Translation]
Senator Fraser: With respect to unpublished regulations, you are suggesting that the public needs to be advised that a French version is available through the Canada Gazette. Does the Canada Gazette publish the fact that a regulation has been passed that had not previously been passed? Is that how it normally works?
Mr. Foucher: I am not aware of those details. I do not think so. But you would have to address that question to the appropriate officials.
Senator Fraser: The matter of classes of regulations that are not normally published is something quite different. When we're talking about National Defence or national security regulations, telling people that we have passed such regulations could in a sense breach national security.
Mr. Foucher: It would just alert the public to the fact that such a regulation exists in that area. The substance of such a regulation would be brought to the attention of interested parties at the time it was enacted, even if it was not published.
Senator Fraser: You mean the people who read the Canada Gazette. I thought the purpose of clause 4 was to state that the regulations remained in force, even if the language requirements were not met. For example, if I contravened a regulation in 1972, I cannot now go back in time and say: reimburse me for the fine that I had to pay because the regulation was enacted in only one language. If we accept your suggestion, that would mean I could go back in time. When we met with departmental officials, I asked whether they believed that publishing in one language only would constitute a ``reasonable step.'' Their answer was ``yes,'' but they did not elaborate.
Because we are talking about the past, that is limited in time, and since the passage of the Official Languages Act, one assumes that everything is in order. It seemed to me that that was reasonable. Why create even more loopholes for people who did things they should not have done?
Mr. Foucher: For two reasons. First of all, we are talking about a regulation that is unconstitutional as long as it has not been translated and re-enacted, even though it is deemed to be valid. So, this is a violation of the Constitution. Second, there is a need for consistency with the spirit of the principle of equality of status for both official languages, which means placing both languages on an equal footing and providing for certain consequences when that obligation is not met. Once again, if we are referring to a situation where the substance of the contravention or the regulation has not been brought to the notice of the accused in his or her language, that does in fact provide an additional defence that is consistent with the spirit of linguistic equality.
Senator Fraser: So, you would say it is a question of priorities, in the final analysis?
Mr. Foucher: Yes.
Senator Fraser: Can you explain the very lengthy amendment to clause 7 in greater detail?
Mr. Foucher: This is what I call a safeguard clause. It may not be necessary — you may need to have fuller discussions on this with Justice Department experts — because there are case law doctrines that have just about the same effect. But for greater security in relation to permits, licences, leases, mineral rights and other itethat may have been granted — we are no longer talking about contraventions, but rather of decisions that could have been made under this class of regulations — we would simply say that they are valid and that decisions made under those regulations cannot be challenged.
Senator Fraser: In the new version you mean?
Mr. Foucher: Yes, which would be retroactive. Strictly speaking, that may not be necessary, but I think it provides useful clarification.
Senator Fraser: And it certainly could not hurt.
Mr. Foucher: No, it would in fact improve the bill.
Senator Nolin: Mr. Foucher, let me begin by thanking you for accepting our invitation. Thank you as well for the work you have done in this area. I think it will be helpful as we attempt to find a solution. We are not here to try to prove that the bill is ineffective, but rather to do what we can to make it effective.
First of all, coming back to the famous section 133, I would like to try and paraphrase your testimony; please correct me if I make a mistake. There is no obligation to print and publish. That is what section 133 says in the second paragraph; in other words, if a decision is made to publish or if publication is required, it must be in both language.
Mr. Foucher: Yes, that is certainly my interpretation.
Senator Nolin: Are there any rulings to that effect? If so, which courts handed down such rulings? Also, who decides and under what powers is there or is there not an obligation to publish?
Mr. Foucher: I can easily answer your first question. No, there are no rulings. The first ruling dealing with section 133 related to issues arising from the fact that legislative instruments had not been passed in both official languages. As a result, rulings have focussed on bilingualism, rather than the obligation to publish. What is the source of the obligation to publish? That is a very broad question. Could it be said to be derived from an unwritten principle in the Constitution? For now, it stefrom the sovereignty of Parliament. A regulation is a creation of Parliament — a delegation of parliamentary power. Parliament is supreme and can decide to force the government to publish its regulations, some of its regulations, all of its regulations or not all its regulations. Again, unless we are able to find a constitutional provision that establishes that obligation, then it clearly arises from the sovereignty of Parliament, because the regulation is subordinate to Parliament. In its Statutory Instruments Act, Parliament decided that most statutory instruments would be published, but that some would not.
Senator Nolin: Based on what you have said, we should interpret the second paragraph of section 133 as follows: all laws must be published and printed. But what about regulations that are made? No?
Mr. Foucher: No, it is the same as for laws.
Senator Nolin: Are there laws that do not have to be published?
Mr. Foucher: I believe that in that case, we would rely on the unwritten principle of democracy that was endorsed by the Supreme Court in the Secession Reference to say that laws must be published. But my point is that that does not stem from section 133. It comes from another part of the Constitution.
Senator Nolin: Regarding your safeguard clause, has it already been used?
Mr. Foucher: I modelled it — and that may be the reason why the wording is a little cumbersome — on the Saskatchewan clause.
Senator Nolin: Has it been interpreted?
Mr. Foucher: No.
Senator Nolin: So we can assume it is all right?
Mr. Foucher: Yes, we can assume that it covers every case. Once again, it may not be absolutely necessary because there are case law doctrines that have pretty well the same effect, but it would be more prudent to include it. As far as the bill is concerned, it would provide greater security.
Senator Nolin: My last question has to do with retroactivity. Are you satisfied that by adopting the amendments you are suggesting, we will be meeting our obligations under the Charter with respect to retroactive effect?
Mr. Foucher: Yes, I believe that what I proposed could be defended as constituting a reasonable limit in a democratic society on the principle of the non-retroactive effect of contraventions.
[English]
Senator Andreychuk: I would like to follow up on this line of questioning. Obviously, this is not my area of expertise in law.
However, it bothers me from a public policy point of view. Parliament's role is to enact laws on behalf of the people. I understand that not all regulations need to be published; but that would be set out in the act. When an act is passed, you make it clear as to what needs to be published and what does not need to be published in the public interest.
Let us say that a bill indicates that there shall be regulations, and you go to the Statutory Instruments Act and you see that it states they shall be published and you do not exclude yourself from publication, then is it all right to have the bill say, ``If we did not do what we should have done, it will be all right''?
What did you mean by ``it deems it to be valid but it still may not be constitutional.'' I did not quite understand your answer to one of the questions asked.
We are not dealing here with a Saskatchewan case. In Saskatchewan, all the laws were presumed to be valid. However, they were not in two languages. Thus, in Saskatchewan, it was said that all the laws that have been passed will be deemed to be valid, even though they were not in French; and henceforth the requirement of bilingualism will not be part of the Saskatchewan situation.
I think the average person understood that. Here, we are saying, ``We do not know how many laws we have. We do not know where they are. We do not quite know what the situation is. However, if we find A, B, or C, then it will be published in good law.'' Is that good governance?
That is what troubles me more than the specificity of what you are saying.
Those are the two areas that give me great concern. I do not know if it is in your expertise to answer them or not.
Mr. Foucher: I will try my best, senator.
As to your first question, senator, technically, these regulations are deemed to be valid until a court of law pronounces them invalid. Since we are discussing this topic, we know that there are problewith some categories of these regulations. They could be, indeed, declared unconstitutional by a court of law.
Furthermore, there could be a blanket judgment saying that all these regulations are null and void — as they did in the Manitoba Legislature — because the Constitution was not respected, and that they will be kept artificially operational until they have been translated and re-enacted. That could happen if someone finds one of these regulations and goes to court with a general case. I think this statute will prevent that from happening.
The point is that we are doing it now, before being told by a court of law that we should. If a court tells us to do this, I presume that the regulations would be deemed valid until they are translated and re-enacted, as was the case in Manitoba. We are in the same situation and this bill will prevent that problem from arising.
Senator Andreychuk: You are saying that this bill will deem the law to be valid but we have no guarantee that it will be constitutionally valid, that we will need a court challenge for the period.
Mr. Foucher: Not only for the period. We have the French versions, so we need only re-enact them and the problem will be cured. In Manitoba, they did not have the French versions on hand and they had to wait until the acts were translated.
In Manitoba, the same situation arose; it is just that the time frame was different. In the end, Manitoba re-enacted its statutes in both languages and everything that had been done was presumed to be valid. We are doing this before a court of law orders it to be done.
With regard to the public policy reason, what is the alternative? The alternative would be to be faced with a potential threat to some aspects of the rule of law. In 1992, one of these regulations came up in a court case and the court agreed that because a government decree was enacted in English only, the accusation was unconstitutional and must be dropped. This risk still exists.
The alternative to the bill is to do nothing and face the small risk of having the situation arise again. It is good public policy in the sense that it is preserving the rule of law and it is preventing this problem from systematically arising.
Furthermore, to oblige the government to translate regulations that it finds have not been published in both languages is respectful of official bilingualism. It steers Canada closer to its constitutional obligation.
Senator Andreychuk: We are talking about regulations. Would you have the same opinion about bills or acts?
Mr. Foucher: Yes, I think I would. The courts have said that the governments involved should re-enact acts. Had the courts not said that, but the government, realizing they were facing a problem, decided to translate and re-enact them, my answer would be the same. The Supreme Court seemed to tell us that this was the proper way to correct the situation. Indeed, in Quebec, this is exactly what happened. The English version existed already so they had only to pass a general law saying that everything previously adopted in French only is hereby re-enacted in both languages.
In Manitoba, when the translations were done, they passed a general bill providing for the re-adoption of them all. In Saskatchewan, they did it only for the English version. They removed the obligation for bilingualism and re-enacted everything, saying everything is valid.
Senator Andreychuk: If the regulations were published in neither French nor English, would your opinion be the same?
Mr. Foucher: Yes. If they have to be published, they have to be published in both languages. If they do not have to be published, they still have to be re-enacted in both languages.
[Translation]
Senator Joyal: I have four questions which I will ask you all at once. You referred to a point that we addressed earlier with respect to clause 4, paragraph (3)(b), which reads:
...it is proved that reasonable steps were taken to bring the substance of the legislative instrument it replaces to the notice of that person before the contravention occurred.
If you have read the transcript of our proceedings, you will recall the example of a regulation relating to the nuclear industry being brought to the notice of a person. If it were proven that the person had knowledge of the substance of the regulation, that person could be subject to prosecution.
You raised the point — and it is addressed in your suggested amendments — that the substance of the regulation must be brought to the notice of the person concerned in his or her language. I had that same concern when this example was cited. Could you elaborate on the obligations that were explicitly recognized in the Beaulac ruling on this matter? I see this as a very important element, in terof our understanding of clause 3, if we are to be in a position to properly assess what you are suggesting.
Second, with respect to clause 4.(1), you say — and I am referring to the wording in bold:
Where it is put to the knowledge of the Governor in Council [...]
Clause 4 does not refer to knowledge per se. As I understand your wording, it means that action must be taken to inform the government that a regulation has not been passed or published in both languages, whereas clause 4 does not refer to the knowledge the legislator requires — because we're talking about delegated legislation and therefore, in this case, the Governor in Council. Is your proposal not more restrictive than the current wording of clause 4? I am trying to define the scope of clause 4 in relation to what you are proposing.
My third question has to do with the principle of retroactive effect as it relates to legislative instruments. This is an extremely important element that is addressed in the Charter. Indeed, this is what clause 4(3) refers to in establishing a principle that is well known in the law in general.
In your practice as a constitutional expert, have you come across other examples of laws that would have retroactive effect, similar to what we have in this bill?
Finally, my last question deals with publication. You have read our discussions on this. Regulations have been passed without being published. When a regulation has not previously been published but must be, it has to be published in both official languages. We agree on that. But how can we validate, through a bill that is essentially linguistic in scope, an obligation to publish that might have been overlooked or omitted?
The bill does two things. First of all, it attempts to fill a linguistic gap. That is precisely what you referred to when you talked about a regulation being enacted in both languages but published in only one of the two languages, and then we switch assumptions. The fact remains that the bill will validate regulations that should be published but have not been. This is a further obligation: to correct a further flaw or omission in the legislation. I am not talking about regulations that are not required to be published under the Statutory Instruments Act. Some regulations do not have to be published in order to be valid. Here, we are responding to another flaw or defect, so to speak, in relation to certain regulations that should be published but never were, either in one language or the other. The bill aito correct two defects in the legislation passed by Parliament.
Mr. Foucher: In answer to your first question, the Beaulac ruling clarified what other rulings had already stated, which was that official bilingualism is not related to an accused's linguistic proficiency or ability. They are totally different things. Provincial court judges tend to say — for example, when a Francophone is arrested for speeding in the Prairies, which seeto happen regularly based on the case law — it does not matter, the driver understood English. It does not matter that Mr. Beaulac was not tried in French. He understands English, so he can defend himself. The Supreme Court was very clear in the Beaulac ruling.
[English]
That is not the point.
[Translation]
The issue is not whether you understand the language or not; the issue is linguistic equality. The purpose of linguistic equality is different from the accused's mens rea, his understanding or the warning he receives. I shift the focus of the bill back on linguistic equality, rather than the accused's effective knowledge. Having said that, though, that does indeed pose a problem if there is a regulation aimed at the nuclear industry whose contravention could have catastrophic consequences.
That is the reason we say that, strictly speaking, the substance of the contravention should be brought to the notice of the person concerned in his or her official language and that any violation automatically results in an acquittal. However, we are leaving ourselves open to situations where in relation to enforcement of a regulation, it would make no sense to acquit an accused for that reason. That would bring the administration of justice into disrepute. That's why the second option I am suggesting introduces an additional element, in that the judge would be called upon to assess the seriousness of the language violation compared to the seriousness of the contravention. Did I answer your question?
Senator Joyal: I understand the first point, that the substance of the regulation must have been brought to the attention of the person concerned in his or her official language. That is the person's right, regardless of his guilt or understanding of the official language. However, you then add a proviso: ``except when an acquittal would bring the administration of justice into disrepute.'' I have a bit of a problem with the second part of your proposal. That would essentially mean that the best interests of judicial integrity would take precedence over language rights. In practice, that is what this would mean.
Senator Nolin: But this is an assumption that is applied more broadly.
Senator Joyal: But we are talking about something constitutional.
Mr. Foucher: You are correct. That is why I have presented two options, either automatic acquittal, which makes the bilingual obligation fairly drastic, or a slightly modified version which involves referring to a test that the courts are familiar with, whereby they are called upon to assess the seriousness of the language violation in relation to the need to protect the integrity of the judicial system.
I do not remember all the tests provided for under sub-section 24(2) of the Charter, but I believe it does include the test of the seriousness of the contravention, the consequences of the contravention and the way in which the right was violated. Was it intentional? Was it inadvertent? Was it through negligence? There is a whole series of tests set out in the case law that judges are familiar with.
That somewhat mitigates the consequences of acquittal, in cases where public safety is at stake and where paramount considerations are such that acquitting someone on a technical detail such as this would be viewed as inappropriate. This is not necessarily an endorsement of permissiveness, if you will, nor is it a devaluation of language rights. It simply involves measuring language rights against other interests, as is commonly done when Charter rights are violated. For example, illegal seizures are unconstitutional. The judge's role is to determine whether the evidence should be accepted anyway, and his assessment, where a Charter violation is involved, for example, will be based on whether there could be significant consequences where first-degree murder is involved. In such cases, even where there is a violation of the Charter, evidence is admitted. I will leave it up to you to determine whether it is appropriate to move in that direction, and if so, how far you should go.
In answer to your question about whether my proposal is more restrictive than the other wording, there could be problebringing to the attention of the Governor in Council the fact that a specific regulation has been discovered not to have been published and to have been enacted in English only. The alternative is to leave all of that to the discretion of the Governor in Council. I am uncomfortable with that alternative, however, because the Constitution does establish an obligation. I believe the bill should reflect that obligation. Otherwise, we could suggest forcing the government to find these regulations, determine where they are, translate them and re-enact them — in essence, establish an obligation. I do not know whether it is reasonable to involve the federal government in an operation that would involve dusting off old regulations enacted in English only to correct that flaw, if there is another procedure available. The intention was not to be restrictive.
I must admit I drafted the wording quickly; so it is quite possible the formulation is a little cumbersome. Because I am not a legislative drafter, I did not pay attention to every little detail. My intention was not to be restrictive, but rather to establish an obligation for the Governor in Council. It would be like saying to the government: this is not subject to your discretion. If you discover one, you have to have it translated. But if you have not yet discovered any, I won't force you to go and look for them.
However, if an official does find something somewhere, he is the minister's alter ego — Her Majesty's representative and point of contact with the people. If he finds an order that was enacted in English and hasn't been published, it is his responsibility and obligation under the law to forward it to the Governor in Council, telling him that it must be translated. If he does not do so, the accused would be acquitted because the government would not have fulfilled its obligation.
[English]
The Chairman: I would just remind our witness before he goes on to the next questions that we have the Commissioner of Official Languages waiting to appear before us as well.
Mr. Foucher: Thank you, Madam Chair, I will try to accelerate.
[Translation]
As regards retroactive effect, are there laws that have had a comparable retroactive effect? They are rare, but there are some. There have been such laws dealing with municipal issues, for example.
The City of Moncton will be doing precisely that. It has recently been forced by the Court of Appeal of New Brunswick to translate and re-enact its by-laws. It will do so once again. There are precedents relating to linguistic and other matters, including municipal issues, and in other areas that I can not recall at the moment. I could find that information for you. But there are precedents.
In answer to your fourth question, Senator Joyal, I must admit that you have raised a point that I had not thought of and I believe you are correct. We would have to find a way of not revalidating regulations that should have been published but were not. I hadn't noticed that gap in the bill. That has to be given some thought in order to avoid the additional consequence of giving effect to a regulation that should have been published but was not, regardless of the language issue.
[English]
Senator Taylor: You mentioned that there are precedents for a corrective bill. In that regard, you mentioned Saskatchewan and Alberta.
I was in the Alberta legislature when the Speaker ruled that French was not an official language and that it could not be used. I was leader of the opposition at the time. I took the Speaker to task. What I found out was that the bill making French an official language had never received Royal Assent. Consequently, they won the case. Now you will not get thrown in jail, but you will get thrown out of the Alberta legislature if you speak French.
What was the corrective bill in Alberta? Perhaps you could explain it to me.
Mr. Foucher: Alberta did as was done in Saskatchewan. They simply suppressed the obligation to legislate in both languages. They decided that all bills that had been adopted in English only were valid. It was declared that everything done under these acts was valid. They then added some limited linguistic rights.
[Translation]
Senator Fraser: I just want to take this opportunity to relate an anecdote. We talk about the poor Francophones in Western Canada who have unilingual documents thrust upon them, but they are not the only ones in that predicament. The other day, I received an invoice for my property taxes in the new amalgamated City of Montreal, plus three pages of technical explanations in French. When I called to find out if I could receive the material in English, the answer I was given was no! I was told that in future, invoices would be available in English. But I was then told: no, Madam, it is too late now, the invoice has already been sent out in French. So, injustices remain a problem everywhere.
Senator Rivest: But they are rare!
Senator Fraser: Not as rare as you think.
I would like to go back to clause 7. I want to be sure I understand. It seeto me that with clause 7, you are closing the door that you opened with clause 4.
Mr. Foucher: In clause 4, we are saying that the regulation is translated and re-enacted retroactively. Technically, all actions taken under that regulation are automatically valid because we're talking about a regulation that was valid as soon as it was enacted. The only possible danger is that there could be a delay between the discovery of a regulation that has to be translated and re-enacted and the re-enactment per se.
It is possible that during that period, someone could come along and say: the fishing licence you were issued under this unilingual English regulation is null and void. If that were the case, my competitor could engage in illegal fishing.
Senator Fraser: Just during the transition period, you mean?
Mr. Foucher: Yes, because once the regulation has been re-enacted, it will be automatic. Any action taken under the regulation is automatically revalidated.
Senator Fraser: I think I understand now. Thank you.
Mr. Foucher: I wish you the best of luck in your study of the bill.
[English]
The Chairman: Thank you, Mr. Foucher.
We now have appearing before us from the Office of the Commissioner of Official Languages, Dyane Adam, Commissioner of Official Languages. With the commissioner is Johane Tremblay, Director, Legal Services Branch.
Welcome again, Adam, to this committee.
Dyane Adam, Commissioner of Official Languages: Honourable senators, thank you for inviting me to present my point of view on Bill S-41, an act to re-enact legislative instruments enacted in only one official language.
My office has followed closely the progress of your proceedings. I want to congratulate you for the attention you are giving to this important question. Like me, you are asking serious questions about the practical effects of this bill, which has actually resulted in the creation of a new French word, ``réédiction.''
As Canada's language ombudsman, I must emphasize the fact that language rights are at issue here. More specifically, we are talking about the fundamental right of Canadian citizens to have equal access to the laws of the country in either of the two official languages of Canada. Such equality of access to Canada's laws means that the English and French language versions of our legislative instruments must enjoy the same status. They must be equally authoritative in law.
[Translation]
Moreover, these are rights that were recognized at Confederation by section 133 of the Constitution Act, 1867, and confirmed and clarified in the Official Languages Acts of 1969 and 1988, and in the Canadian Charter of Rights and Freedoms.
Any infringement of this principle of legislative bilingualism is therefore highly significant, since this official bilingualism is the very framework of our historical and current language rights. We have built our entire edifice of linguistic duality on these embryonic and fundamental guarantees of genuine equality between English and French.
Fortified by these guarantees and the two Blaikie judgments rendered more than 20 years ago, we now learn, with some astonishment, that there are still a number of pre-1980 regulatory instruments — no one knows exactly how many — that were not re-enacted in both official languages.
The Department of Justice has stated that the bill now under consideration constitutes ``an efficient and cost- effective way'' to resolve doubts that the Standing Joint Committee for the Scrutiny of Regulations had expressed about the constitutional validity of certain legislative instruments that had originally been enacted in only one official language, most often English. Although I am disappointed at the lack of diligence in this matter, I fully endorse the Department of Justice's initiative. The situation must indeed be remedied at the earliest possible opportunity so that the constitutional obligation of legislative bilingualism is respected and the validity of our laws ensured.
[English]
I know that the Minister of Justice has shown great sensitivity to the concerns expressed by the committee. I have no doubt that you will give due attention to the proposals you submit to him to clarify and define the implementation of the proposed steps.
I share the concern expressed by some of you about this bill. As presently drafted, the bill applies to all legislative instruments that were enacted in only one official language since 1867. It would appear that the provisions of section 7 of the Official Languages Act, in force since 1988, have effectively guaranteed complete bilingualism in legislative instruments. However, it would be wise to include any legislative instrument adopted after 1988 in the bill in order to cover any possible oversights.
[Translation]
Let us now have a look at the mechanischosen by the Department of Justice for the re-enactment of legislative or statutory instruments. This bill provides two methods of re-enactment.
The first, under clause 3, provides for automatic re-enactment in both official languages of a legislative instrument originally enacted in only one language, but published in both official languages at the time of the original enactment.
The second, under clause 4, gives the Governor in Council the discretionary authority to re-enact a legislative instrument in both official languages, by regulation, where the legislative instrument was enacted in only one language and never published, or published in only one language, or published in both official languages some time after the original enactment.
In either case, whether re-enactment is automatic or on a case-by-case basis, it will apply retroactively.
In its presentation before the Committee, the Department of Justice assured us that these mechanisare based upon those used in the legislation enacted by Quebec in 1979 in response to the Supreme Court decision Blaikie. That said, I share the concerns expressed by several members of this Committee with respect to the breadth of the application of clause 4 and the inability of the Department of Justice to tell us precisely the number, the nature and the scope of the defective legislative instruments that will be encompassed by this clause.
This issue appears to be more critical, I might add, in relation to the instruments published in one language only. Clause 4 of the bill proposes a piece-work remedy. It fails to address the substantive underlying problem, which is that we have an unknown number of unilingual legislative instruments.
So the question is whether it would be possible, following the adoption of the bill, for the Department of Justice to address this uncertainty, at a minimum by preparing an inventory of legislative instruments according to their field of application. This inventory would enable the Governor in Council to exercise its power of re-enacting or repealing the instruments, in compliance with the obligations of section 133 of the Constitution Act, 1867.
[English]
Finally, Senator Fraser asked whether the text of clause 4(3)(b) meant that publishing a legislative instrument in one official language only would be sufficient in and of itself to prove that reasonable steps were taken to bring the substance of that instrument to the attention of that person before the contravention occurred.
The Department of Justice, while acknowledging that such a situation would implicate both official language rights and fundamental justice rights, said that it would argue nonetheless that publication in one language would likely be sufficient. It seeto me that such an interpretation of clause 4(3)(b) flies in the face of the very spirit of the bill, namely, the equality of status of French and English. I sincerely doubt that our courts would accept such an interpretation. It seeto me that clarification from the department is in order.
[Translation]
Given your expertise in regard to all issues related to constitutional and language law, I am confident that you will propose amendments that will serve to improve this bill. With your sound advice, the Department of Justice should be in a position to re-enact the regulatory instruments that may have escaped the bilingual requirements. This will ensure that we no longer need to resort to this type of legislation to correct non-compliance with the very foundation of our linguistic duality.
I am eager to hear your comments, and I hope I can respond satisfactorily to your questions. With me today is our Director of Legal Services, who will make up for my lack of legal training.
Senator Rivest: I share your discomfort with the term ``réédiction.'' I think there should be a different equivalent in French because that really isn't a very nice word.
At the Office of the Commissioner of Official Languages — I know there has been a great deal of debate about the breadth of section 133 — it is your view that this clause is purely linguistic in nature and does not establish a constitutional obligation to publish regulations or laws. Is that in fact your interpretation?
Ms Adam: Yes.
Senator Rivest: In terms of not knowing the number of departments that may not have met their obligations with respect to linguistic duality, you say that you want to know the facts. What is the point of knowing which regulations are involved once the bill has been passed and has validated all of them?
Ms Adam: We find it strange that there could be regulations in effect that are not at the very least identified or that we may be unaware of. It is important and perfectly reasonable, particularly since the process of digitally archiving documents is now underway in the large libraries, to have a central repository for legislative instruments governing the conduct of parliamentarians and citizens. The period could be as long as ten years.
Senator Rivest: Recently, a purely administrative secretariat within the Privy Council has been given responsibility for monitoring that exercise. The Department of Justice may have better things to do. So, there is already administrative body that could carry out that task. As you say, the period involved could be fairly lengthy, but the important thing is to keep an inventory.
Senator Nolin: Have you had time to look at Professor Foucher's proposal?
Ms Adam: I looked at it very quickly.
Senator Nolin: I will not ask you to give us an answer today or even comment on the proposed amendment, but perhaps you could submit your comments to us in writing.
[English]
The Chairman: That would be an excellent idea. You probably received them at the same time the members of the committee received them. It would be useful to us if you could think about them and write to us, but please do it very quickly.
[Translation]
Senator Nolin: In your brief, you make two fundamental comments. The first relates to a comprehensive inventory of defective legislative instruments and the second addresses the question of the spirit of the bill or constitutional obligations at the federal level.
In regards to the spirit of the linguistic obligations that fall to the federal government, do you believe the amendment proposed by Professor Foucher would meet your concerns?
Ms Adam: I will be sending you my comments in writing as soon as possible, but my immediate reaction is that it does not go far enough in respecting that spirit.
Senator Nolin: It is a little facile to say that it does not abide by the spirit. You will have to provide us with a more detailed explanation of what you mean by that and which documents you are relying on to make that argument.
Now, I would like to go back to the matter of the inventory. As I understand it, you do not agree with those who say this will entail a great deal of effort and substantial cost?
Ms Adam: Yes, your understanding is correct. At this time, we cannot possibly determine what the cost would be. We do not even know how many documents are involved. We only know that there are regulations that have not been enacted in both official languages; however, we are not aware of the nature or number of such regulations.
Senator Nolin: You said earlier that you did not agree with the idea of giving discretionary power unless it is subject to a time limitation. Since you will be sending us your comments in writing, perhaps you could suggest possible amendments that would address the idea of a time limit. I would remind you that when the Department of Justice appeared, officials referred to a possible amendment, from the Department itself, that would have the effect of circumscribing the time limit. Since there is a desire to use Quebec precedents, I would point out that the National Assembly defined a very specific time frame when it re-enacted its laws in both official languages.
Ms Adam: I will do that.
Senator Joyal: My first question has to do with the first paragraph on page 4 of your brief. You say:
As presently drafted, the bill applies to all legislative instruments that were enacted in only one language since 1867. It would appear that the provisions of section 7 of the Official Languages Act, in force since 1988, have effectively guaranteed complete bilingualism in legislative instruments. However, it would be wise to include any legislative instruments adopted after 1988 in the bill, in order to cover any possible oversights.
When the Honourable Minister of Justice appeared before the Committee, he said he agreed with the idea of making 1988 the cutoff date, and that after that, if the instruments had not been enacted, they would not benefit from that same general amnesty.
He stated that the formal obligation was established in 1988, with adoption of section 7 of the Official Languages Act, and that consequently, if the government has failed to take action, it must suffer the consequences. That would be a clear case of breach of an act of Parliament which is not all that old.
The minister was even open to the idea of amending Bill S-41 at clause 2, line 15, page 1, by replacing the current wording with the following:
An instrument enacted prior to the coming into force of section 7 of the Official Languages Act on September 15, 1988 by, or with the approval of [...]
In other words, he was shutting the door. Around this table, members seem to agree with that approach. This afternoon, however, you are proposing to reopen it by bringing it right up to the present time. As I understand it, the idea was to signal to the administration that there would be no possibility of amnesty from a specific cutoff date onward. It is important to act in such a way as to abide by the principles interpreted by the courts and as they would apply to all regulatory activities since 1867.
That is the first thing you may want to give some thought to. What is the answer? As the saying goes, ``we're damned if we do, and damned if we don't.'' I will leave that with you.
Second, on page 6 of your brief, you refer to a matter we raised with Professor Foucher relating to the language rights of the accused and the distinction that needs to be made between the contravention and language rights.
Sub-paragraph 4(3)(b) states that the regulation must been brought to the notice of the accused and that reasonable steps must have been taken to bring the substance of the contravention to the notice of that person. My view is that it must be done in the language of the violator.
I would ask you to elaborate on that particular point. Professor Foucher has given us his interpretation. I would like to know in legal terwhether you subscribe to that interpretation. That may be an important part of our future debate on Professor Foucher's proposals.
Ms Adam: With respect to your first question, Senator Joyal, I think it is really a question of attitude. We have opted for extreme caution. That is often the approach favoured by the Commissioner's Office, to be sure we cover all the angles. Given that there could be administrative mistakes even though the wording of the 1988 legislation is very clear as regards the administration's obligation to produce regulations or legislative instruments in both languages as well as to publish them, we want to be sure that any possible oversights would be covered.
In that respect, I believe we could accept either one or the other and making 1988 the cut-off year is also something we could agree to.
Ms Tremblay: To answer your second question, our concern regarding the application of clause 4(3)(b), the safeguard provision, had to do with the situation where publication in one language would be the basis for establishing that the prosecutor had taken reasonable steps to bring the substance of the contravention to the notice of the person concerned. In our view, that raises important issues relating to the equal status of French and English and defeats the purpose of both section 133 and the bill itself.
This would also run completely counter to the Supreme Court's recent interpretation of language rights in the Beaulac ruling. You are right: a judge could interpret the clause in the way you have stated and in fact conclude that these steps were not reasonable. However, the Department of Justice has said that were such a situation to arise, it would argue that this constituted a reasonable step and it is likely that view would be upheld.
Our position is that the Department of Justice should review all of that in the light of the principles of interpretation set out in Beaulac and consider the amendment suggested by Professor Foucher, which does go a little further.
Indeed, according to Professor Foucher, if the regulation-making authority had taken other steps, in addition to publishing in only one language, to bring the substance of the regulation to the notice of the violator, but did not necessarily do so in the language of the violator, that would mean that the violator could not be convicted.
That goes a little further. It calls into question principles, language rights and fundamental justice rights under section 11 of the Charter. What direction would the court take in a situation like this? One thing is for sure, publication in only one language would not be considered a reasonable step as it would violate the language rights provided for under the Charter.
Senator Rivest: In terms of the most likely scenario with respect to these regulations, I would say there is a good chance that prior to the adoption of Mr. Trudeau's and Senator Joyal's official languages policy...
Senator Joyal: You are giving me too much credit!
Senator Rivest: ... it would have been very surprising to see a fishing regulation or any other minor regulation drafted in French in the public service, which was primarily Anglophone at the time. The number of regulations that would not have met the provisions of section 133 is likely to be — certainly prior to the adoption of section 133 — extremely high. In the public service, there were practically no Francophones or bilingual employees at the time. How could they possibly have made regulations in French?
Senator Joyal: If I just could make a comment along the same lines as Senator Rivest, we must not forget that in 1969, when the first Official Languages Act was passed, in the view of the Department of Justice that I fought against, it was purely declaratory and non-binding.
So, from 1969 to 1976, until we obtained a ruling, because the law was only declaratory, the Department of Justice's view was that there was strictly speaking no obligation. As I say, it was purely declaratory.
As Senator Rivest has pointed out, if we go back in time, there were periods where a number of departments — and I will refrain from naming any so as not to start a war — operated exclusively in English.
You are aware of the findings of the Laurendeau-Dunton commission. It is not surprising that regulations would have been enacted during that period only in one of the two official languages.
It is important to try and understand all the progress and changes that have occurred. What we are trying to do in practice is operate with this corrective legislation. As the Supreme Court stated, we are providing a remedy to the current situation.
Ms Adam: Was your question what a reasonable remedy would be?
Senator Joyal: Exactly!
Ms Adam: I am not an expert on regulations, but I imagine that all regulations are not current or active. There must be regulations that have a different social scope, a broader scope.
Action could be taken to review this sort of thing. It would involve looking at the issue of what the remedy should be and whether it would be appropriate to go a little further, without necessarily automatically translating or redoing everything. That is the point I have raised and that we will be developing further, in response to Senator Nolin's invitation.
If I could just make a further comment, I was very interested in Senator Joyal's comment to the effect that the first Official Languages Act was interpreted by the Department of Justice as being purely declaratory, and the fact that as we speak, Part VII of the Act is under discussion and being interpreted as declaratory. It is history repeating itself. Thank you for that lesson.
[English]
The Chairman: I thank you very much for coming.
The committee adjourned.
OTTAWA, Thursday, May 2, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-41, to re-enact legislative instruments enacted in only one official language, met this day at 10:50 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we are meeting with the joint chairs of the Standing Joint Committee for the Scrutiny of Regulations. I would welcome the Joint Chairs of the committee, Senator Hervieux-Payette and Mr. Gurmant Grewal, as well as Mr. François Bernier, General Counsel to the Committee. We look forward to your presentation.
Mr. Gurmant Grewal, M.P., Joint Chair, Standing Joint Committee for the Scrutiny of Regulations: Madam Chair, I thank you for this opportunity to appear before your committee.
In its third report of the Second Session of the Thirty-fifth Parliament, report number 59, our committee reported to the House that certain federal regulations, while published in both official languages, had been enacted in only one official language, contrary to section 133 of the Constitution Act, 1867.
In all cases that have come to the attention of the committee, regulations that should have been enacted in English and French were enacted in English only. The issue of the constitutional validity of federal delegated legislation enacted in English only was first raised in 1992, in relation to the Public Lands Mineral Regulations.
The Department of Energy, Mines and Resources, as it was then, took the position that the constitutional defect was cured by the re-enactment of the Public Lands Mineral Regulations as per the 1978 Consolidated Regulations of Canada. That position was debated in an exchange of correspondence between counsel to the joint committee and the Deputy Minister for the Department of Energy, Mines and Resources between June and December of 1992.
On January 13, 1993, a meeting took place between our general counsel and Mrs. Ginette Williams, then Senior General Counsel for the Privy Council Office, to discuss the consolidation argument. The conclusion agreed upon in the course of that meeting was that a consolidation could not serve to validate an otherwise illegal regulation. It was agreed that, if the Public Lands Mineral Regulations were unconstitutional prior to 1978, the consolidation effected that year could not validate the regulations.
In a subsequent letter from the Deputy Minister of Energy, Mines and Resources, the so-called ``good faith'' argument was put forward in writing for the first time. In essence, the argument now was that the regulations made in English only in 1969 were valid because the Governor in Council was acting in good faith when he adopted them in only one official language.
Our committee never thought otherwise, but as we were to explain in our third report, the issue of the good faith of the Governor in Council in enacting certain instruments is entirely irrelevant to the issue of the constitutional validity of these instruments. The same letter also reiterated that the 1978 consolidation would be sufficient to ensure the validity of the Public Lands Mineral Regulations, even if the good faith argument were to be rejected.
This statement directly contradicted the position agreed upon between our general counsel and the Senior General Counsel to the Privy Council office and, on April 15, 1993, the general counsel wrote to Mrs. Williams to object to the continued use of that argument. In her May 13, 1993 reply, Mrs. Williams confirmed that there was never any suggestion during that meeting that the regulation that was invalid prior to a consolidation could be revived as a consequence of the consolidation. This statement was taken as final and conclusive. In fact, the so-called ``consolidation'' argument was not to be heard about for the next four years.
On January 6, 1996, the Honourable Anne McLellan, then Minister of Natural Resources, informed the committee that, after consulting with the Minister of Justice, she was endorsing the position taken by her department. As a result, the joint committee decided to report the matter to the Houses, and it did so on October 10, 1996.
Because the Public Lands Mineral Regulations had by then been revoked, and to show that those regulations were not a unique instance, the report made by the committee identified four other unconstitutional regulations. There can be no doubt that there are others. For example, it was recently asserted by the staff of the joint committee that the Income Tax Regulations are also unconstitutional as they were enacted in only one official language.
In its report, the joint committee recommended:
...that the government take steps to identify those federal regulations that are considered in force and which are subject to section 133 of the Constitution Act, 1867, but that have not been promulgated in accordance with the applicable constitutional requirements. Once those regulations have been identified, they should be re- enacted by the proper subordinate law-making authority in the form and manner required by the Canadian constitution.
The committee also requested the tabling of a government response to the report. The response tabled by the Minister of Justice on March 18, 1997 was nothing short of astonishing. Beginning in 1993, the government had consistently maintained that the regulations were valid because the Governor in Council was acting in good faith when he made those regulations in only one official language. The third report carefully reviewed the relevant jurisprudence and explained why this argument had no foundation in Canadian law. It came as a great surprise to find that the government response to the third report did not even mention this argument. The committee could only conclude that it was finally recognized as untenable and abandoned.
More surprising than the casual dismissal of an argument relied upon for the preceding four years, however, was the fact that the government returned to the discredited consolidation argument, notwithstanding the fact that this argument had been expressly disavowed by the Senior General Council of the Privy Council Office some four years earlier, and that had not been heard since.
In his testimony, the Minister of Justice told the committee that the government has clearly demonstrated that the 1978 Consolidated Regulations of Canada had resolved the issue of validity of the five regulations identified in our report. Obviously, we beg to differ.
Following the tabling of the government response, the chairmen wrote their letter of December 10, 1997, to the Minister of Justice. The reply that was eventually received two years later, failed to adequately address the issue raised by the joint committee, but it included, for the first time, an acknowledgement by the minister that the joint committee had put forward arguments that warrant serious consideration.
The minister went on to state that she had requested her officials to further study the issues raised and to suggest ways to remove any uncertainties regarding the validity of the federal regulations or legislative instruments which are still in force today. In light of that undertaking, the joint committee did not pursue the consolidation issue. The previous position of the committee in relation to that particular argument was that the validation of unconstitutional regulations lies outside the scope and purpose of the consolidation process as set out in the Statute Revision Act and that, as agreed by the Crown's own legal advisor, the consolidation process cannot serve to validate regulations that are void ab initio.
We are in full agreement with Senator Beaudoin's remark to the effect that the 1978 consolidation is irrelevant from a legal and constitutional point of view, and that a consolidation is, at best, a housekeeping process that has no impact on the constitutional status of the consolidated legislation.
We note, that some 20 years after the Blaikie decision, the federal government has yet to take measures to identify the extent of its non-compliance with section 133 of the Constitution Act, 1867. In this regard, I note that, when he appeared before the committee on April 24, the Ministerof Justice assured its members that the problem, which Bill S- 41 addresses, is limited in scope. Yet, in his testimony before the committee the next day, a government witness stated that the cost of identifying non-complying legislative instruments would be prohibitive. This last statement certainly suggests that the problem may not be as limited as the minister indicated.
The answer given by Mr. McDonald also raises two additional questions. As parliamentarians, are we being asked to accept that compliance with the Canadian Constitution is based on the results of a cost-benefit analysis? Is it acceptable to overlook constitutional requirements whenever the costs of compliance are deemed to be too high?
I also find it difficult to understand why it should be so complicated or costly for the federal government to identify non-complying legislative instruments in force. No one is concerned with instruments that are no longer in force but only with those that are being applied to citizens. If federal subordinate legislation is known, it would seem a simple enough matter to verify whether or not that legislation was properly enacted in both official languages. Why should that involve insurmountable costs? I assume, of course, that the federal government is aware of all regulations in force at the federal level.
I will now give the floor to my Joint Chair to provide you with the preliminary views of the Standing Joint Committee on Bill S-41.
[Translation]
Senator Hervieux-Payette: It is our pleasure to be here and to see that we now have a bill which addresses the problem. We can help you in your work and bring it to fruition.
Before I proceed with my comments on the bill before you, it is important that I note that the position of the Standing Joint Committee is based on the understanding that section 133 of the Constitution Act, 1867, provides that all legislative instruments to which it applies must be enacted, printed and published in both official languages. I understand that the Department of Justice has put forward its own reading of section 133 according to which section 133 requires the enactment, printing and publication of legislation in both languages, but only when it is in fact decided to print and publish the legislation.
In our opinion, section 133 says what it says: `` The Acts of the Parliament of Canada [...] shall be printed and published in both those Languages.'' Those languages being French and English of course. The act does not provide that acts shall be printed and published in French and English if they are printed and published, but enacts a simple and direct requirement that legislation be published in both languages. It is often stated as part of the so-called golden rule of interpretation that in reading statutes, ``the grammatical and ordinary sense of the words is to be adhered to.'' That is a very sound and sensible rule of interpretation and it finds application in this case. I see no justification for an interpretation that would transform this simple constitutional obligation into a conditional obligation applicable only if a legislative instrument is printed and published.
I have heard it said that the Department of Justice considers this interpretation of section 133 is justified on the ground that section 133 provides a language guarantee rather than a publication guarantee. Requiring all legislation to be published in both official languages is certainly a language requirement to my mind. That compliance with this linguistic requirement incidentally requires all legislation to be published does not alter the nature of the requirement.
I might also add that I have asked our legal staff to review the relevant case law and they have been unable to find even an obiter dictum that would lend support to the peculiar interpretation put forward by the Department of Justice. To the contrary, the language of the courts confirms that what section 133 requires is the publication in both languages of all legislation to which it applies. Nothing more and nothing less.
I invite members of this committee to consider the words of the Supreme Court of Canada in the Manitoba Language Rights Reference. The court described the purpose of section 133 as being to:
[...] ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike
and that:
Section 123 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print, and publish all Acts of the Legislature in both official languages (please refer to the Blaikie decision quoted above). It establishes a constitutional duty on the Manitoba Legislature with respect to the manner and form of enactment of its legislation. This duty protects the substantive rights of all Manitobans to equal access to the law in either the French or the English language.
Those words are equally applicable to section 133, of course, and financial implications were never raised in this interpretation.
I note that the Supreme Court did not refer to some acts of the legislature of Manitoba, but to all acts. I would now like to turn to the bill before you. The proposed definition of legislative instrument faithfully reflects the 1981 decision of the Supreme Court of Canada in A.G. of Quebec v. Blaikie and presents no problem. As my House colleague indicated, the joint committee recommended that subordinate legislation enacted contrary to section 133 be identified and re-enacted by the appropriate regulation-making authority. The approach chosen by the government with regard to Bill S-41 distinguishes between two classes of non-complying instruments. The first class of instruments is made up of those legislative instruments that were published in both official languages at the time of enactment, but that were not enacted in both official languages. Those instruments will be validated by proposed section 3 of the bill.
The second class of legislative instruments is made up of those instruments which, first, were not enacted in both official languages and second, were not published in both official languages at the time of their enactment. With regard to those non-complying instruments, the federal government apparently does not intend to take corrective action other than to confer on the Governor in Council a discretion to retroactively validate the instruments in question.
In reality then, Bill S-41 provides only a partial solution to the issue brought forward in the committee's report. Following passage of the proposed legislation, there would continue to be a number of unconstitutional regulations in place that will not have been validated.
It seems clear enough that proposed section 4 is premised on the continued application and enforcement of legislative instruments that the federal government knows to be unconstitutional. The propriety of this approach in constitutional terms seems questionable. Because it does not wish to engage in the task of identifying with precision the class of instruments referred to in section 4, the government is content to allow those legislative instruments to continue to be applied in spite of their unconstitutionality. In the event a person raises the issue of the unconstitutionality of such a legislative instrument, by way, for example, of a defence to criminal prosecution, the Governor in Council would intervene to deprive the person of their defence by retroactively deeming the unconstitutional instrument to have been validly made.
The preamble to the Canadian Charter of Rights and Freedoms states that Canada is a society founded on principles that recognize the Rule of Law. Is it too much to expect that in such a society, a government is under an obligation to take active steps to remedy constitutional defects of which it is aware and has been aware for at least 20 years?
It must be noted that the instruments referred to in section 4 are not unconstitutional only on the ground that they were enacted in only one official language. Section 4, as noted above, applies to instruments that were not enacted in both languages but that also were not published in both languages. On its face, section 133 of the Constitution Act, 1867, requires regulations to which it applies to be ``printed and published'' in both official languages. In our view, any legislative instrument referred to in section 4 would be unconstitutional even if it had been enacted in both official languages on the ground that it was not printed and published in both languages.
Section 4 of the bill does not appear to contemplate the existence of instruments enacted in both official languages but not printed and published in both languages. Of course, this is consistent with the hypothesis put forward by the Department of Justice according to which the government may choose not to print and publish a legislative instrument, in which case section 133 would not apply to that instrument. For reasons stated before, we do not agree with this hypothesis. I also wonder why the bill contemplates that a legislative instrument would be required to be enacted in both official languages if it is not published. According to the interpretation put forward by the Department of Justice, the non-publication of an instrument means that section 133 does not apply to that instrument. Then, why should the instrument still have to be enacted in both languages?
In summary, section 3 of the proposed legislation satisfactorily resolves the problem of constitutional non- compliance as regards all legislative instruments made in only one language but published in both official languages at the time of enactment. The members of the Joint Standing Committee on regulations are satisfied with this section.
As for all other non-complying legislative instruments, it seems to be the view of the federal government that it is acceptable to maintain these laws in place notwithstanding their unconstitutionality. The federal government is apparently incapable, 20 years after the second Blaikie decision, of identifying all instruments that form part of the corpus of federal delegated legislation.
It could well be argued that there is no justification for delegated legislation which does not comply with section 133 of the Constitution Act, 1867, either because it was not enacted in both official languages or because it was not published in both official languages, to continue to be enforced by public authorities, and that any such legislation ought to be formerly revoked or expressly validated.
An appropriate legislative model is furnished by section 32 of the Statutory Instruments Act which provided as follows:
Where a regulation or an amendment thereto has not been published in the Canada Gazette and is of such a class that, if it were made after the coming into force of this Act, it would not be exempted from the application of subsection (1) of section 11, it shall be deemed to be revoked on a day twelve months after the day on which this Act comes into force unless before that day it is transmitted to the Clerk of the Privy Council in both official languages, in which case the Clerk of the Privy Council shall, notwithstanding subsection (1) of section 7, register the regulation forthwith.
The alternatives that are consistent with the government's obligation to respect the rule of law, and in particular the use of English and French in legislative instruments, are, to identify all legislative instruments subject to section 133 of the Constitution Act, 1867, that do not comply within the requirements of that section and to re-enact them in such a way as to cure the constitutional defect, or to formally revoke all non-complying legislative instruments.
A transitional provision patterned on section 32 of the SIA would represent a compromise between those two approaches. Any instrument submitted for re-enactment with a year could in fact be re-enacted, but at the expiration of that time period, all non-complying instruments would be formally revoked. This is easily accomplished by adding to proposed section 4, a subsection (7) providing that:
Any legislative instrument referred to in subsection (1) shall be deemed to be revoked on a day twelve months after the day on which this Act comes into force unless the instrument is re-enacted under subsection (1) before that day.
I would note that such a clause would also parallel the solution adopted by the Supreme Court of Canada in the case of Manitoba, where the Court gave the province a certain period of time to comply with its decision.
[English]
The Chairman: I normally turn the questioning over immediately to senators, and if I have any questions, I usually ask them at the end, if there is time. However, because of what you have said, I will do it a little differently today.
Mr. Bernier, perhaps you can help us get our heads around what has been said. The senators of this committee have expressed certain concerns. I will make some statements and then ask you to correct me if I am wrong. Perhaps we can get something out of this. I believe that we have a real problem here and not an academic one.
A number of regulations or Orders in Council contravene language rights. The courts could decide at any time that some or all of those regulations are invalid and of no force or effect, and unconstitutional. The problem, however, is not academic; it is real. Therefore, the government must find a pragmatic solution to a real problem before the courts step in and tell us to do it.
Other than the language issue — although I am no longer certain of this after the evidence we heard this morning — it was my belief from listening to the previous witnesses that the regulations were properly enacted according to powers that were delegated by Parliament to the executive branch by proper legislative action.
These regulations have never been formally before the House or Senate like a bill, because they have not had to be passed by Parliament. The power to create them was delegated and, as such, it makes perfect sense that the power to fix a problem with them should also be delegated.
Furthermore, because of the exceptionally large number of regulations — we have now heard of four or five that may have technical problems — an omnibus bill to deal with all of them would comprise thousands of pages and require the efforts of hundreds of drafters, would cost the people of Canada umpteen thousands of dollars, and may not be practical. That, again, has been refuted this morning.
Do we have a job to do in connection with this bill, other than setting the boundaries that will govern the activity of the executive branch as they work towards solving what is a real problem, not an academic one? I am beginning to think that we have more than just a real problem on our hands; we may have a constitutional problem on our hands.
Any of our witnesses can take a crack at responding to my concerns, but perhaps we could start with Mr. Bernier.
Senator Hervieux-Payette: Perhaps, Madam Chair, I will refer to what I said in French and English. Bill S-41 solves part of the problem. We would, of course, like an addition to Bill S-41, and I think the pragmatic approach would be to eliminate regulations that are not re-enacted.
This compromise would deal with the question of having to rewrite numerous regulations. We have been told it is a gigantic problem, but no one has been able to tell me the scope of it. To me it is irrelevant. We are dealing with a constitutional matter. When we were dealing with the question of Blaikie in Manitoba, or when New Brunswick became officially bilingual, they translated everything. The federal government has helped the provinces deal with these matters.
Our committee is not suggesting that the problem can be solved overnight. Our proposal deals with the question of the size, cost and the time frame in which it should be done. I think we have come up with something quite reasonable.
Mr. François Bernier, General Counsel to the Standing Joint Committee for the Scrutiny of Regulations: I will pick up on two comments you made, Madam Chair. You referred to those regulations having been ``properly enacted.'' If by that it is meant that the subject matter of the regulations was within the scope of the delegation of Parliament, yes, I agree. When we review them, we do find ultra vires regulations from time to time. I am certainly willing to recognize that they were enacted in good faith. Obviously, neither the Governor in Council nor a minister, who are the authorities concerned, could have known prior to the second Blaikie decision that the Constitution required them to enact, print and publish regulations in both languages.
Having said that, if we look at it from a constitutional perspective, I must say that a regulation subject to section 133, irrespective of good faith, which was not enacted in both languages, printed and published in both languages, cannot be said to have been properly enacted by definition.
That is the problem. That is why this bill is before this committee.
In terms of the numbers and costs involved, I think the point has been covered quite well. As was pointed out, the minister himself referred to the problem as being limited in scope. We should reach an agreement. Is it a problem that is limited in scope, or would this involve millions of dollars and thousands of pages? I tend to doubt that. In order to answer that question, you have to know how many regulations are involved. They cannot comprise millions of pages. Even the Consolidated Regulations of Canada of 1978 do not make up millions of pages.
Let us keep in mind that section 133 only applies to regulations, legislative texts that are made by the Governor in Council or by minister or approved by one of these authorities, the central authorities of the state. That is a fairly limited class of instrument. Let us also keep in mind that most of those were, in fact, made and enacted after 1969 and would be perfectly in order constitutionally. Therefore, you are looking at this rather small class of instruments that would have been made before 1969, fairly old regulations, as well as regulations that lie outside the scope of the Statutory Instruments, Act because they were not made under what we call the ``magic formula.''
In terms of cost, this committee must ask whether you can put a cost on compliance with the Canadian Constitution. Equal pay for work of equal value, the elimination of discrimination, cost the Government of Canada quite a bit of money. The government, nevertheless, went ahead. The court did not say, ``We absolve you from complying and we will allow you to continue to discriminate because it would cost you money to remedy the situation.'' That is a fact of life.
The Province of Manitoba paid an enormous amount of money, with perhaps some help from the federal government, to meet its constitutional obligations. I find it a little odd that, today, the federal government, which has always intervened in defence of section 133 and has supported its application, would be invoking cost as a reason not to comply with section 133 of the Constitution Act.
Mr. Grewal: I think most of the points have been covered. In my opinion, it is the government's constitutional obligation to respect the rule of law. Cost is not a criterion in order to correct mistakes made in the past. The criterion is respect for the rule of law. When the justice minister and others come forward with that argument, I think it shows the government's arrogance not to admit that this is a mistake and to correct it.
[Translation]
Senator Rivest: I agree with what the witnesses said this morning. With regard to the scope, certainly, since 1969, there are still active regulations. But even between 1969 and 1976, Senator Joyal reminded us yesterday that the legislation of 1969 was not binding, but simply declaratory. It is therefore highly likely that regulations were made. Further, before 1969, the regulations which were in effect were no doubt enacted and published only in English because at the time the Public Service was dominated by unilingual officials.
When it is said that the constitutional requirement would not apply to regulations or orders which the government decided not to publish, and that the fact of not publishing would automatically exempt the government from its constitutional obligation, well, I find that argument fairly absurd.
Does this mean that if there is no linguistic obligation, when the government decides, for reasons it deems legitimate, not to publish a regulation, it can be enacted in Chinese? And would that regulation be valid? It would not be constitutionally valid.
But if it is passed in English, it must necessarily be passed in French, because in Canada, not only the text of section 133, but the case law as well, have established linguistic equality, and this country's values are based on linguistic equality. The Justice Minister's argument seems rather strange to me, because in a case where they decide not to publish a regulation, it could be passed in Chinese and it would be valid, which is totally absurd.
Mr. Bernier: I agree with you entirely. Senator Hervieux-Payette explained this well. In my opinion, in interpreting legislation — and I do have 20 years of experience in this field — we first take the ordinary grammatical meaning of the words. What does section 133 say? It says that the laws of the Canadian Parliament must be printed and published in both languages. That is all. In the Manitoba reference, the Supreme Court, regarding section 23 of the Manitoba legislation — and all the comments applied to 133 — expressed the imperative obligation to enact, print and publish all the laws of the legislature in both official languages, not only the laws that the legislature may decide to publish.
If section 133 had been meant to provide for publishing in both languages only the laws that the government decided to publish, the drafters of the 1867 Constitutional Act would have said so. After all, they were accomplished drafters with experience in drafting legislation. They would have said that if the laws of the Canadian Parliament are published, they must be printed and published in both official languages. We must take into account the words ``if they are published.'' The Justice Minister wanted to add a whole sentence to section 133. In reading the jurisprudence, we do not see any indication from the Supreme Court or from other courts that could lead us to believe that section 133 says anything but what it says.
[English]
Mr. Grewal: I am not a lawyer by profession but, by using common sense, if I agree with the interpretation by counsel and every layman in the country, I believe that the justice ministry is simply creating an interpretation or twisting the interpretation and hiding behind that as a reason not to act.
The Chairman: We will take it that the justice ministry does in good faith what it does. However, we may have questions.
Senator Fraser: What level of expensive expertise is required to track down all the regulations in question? Could it be done, for example, by hiring half a dozen law students for the summer for a couple of years and pointing them at the relevant books, or would you need to hire experienced, high-priced lawyers?
Mr. Bernier: I would find it difficult to concede that you would need a great many high-priced lawyers. Most of the legislation subject to section 133 is indexed already. The legislation in force is found in the Consolidated Index of Statutory Instruments. It is a simple matter. This is what we have done for the committee as we were exploring this. When we found that the income tax regulations had been enacted in only one language, we looked at when the regulation was first enacted. In the case of the income tax regulations, 1955 sounded like a likely date. We then asked the Archives of Canada to produce the original Order in Council in French, which they were not capable of doing. They provided us with an English copy of an Order in Council. To make doubly sure, we called again, explained why we were making the inquiry, and asked them to please look again for a French version, which they could not provide. The conclusion has to be that the Government of Canada is not in a position to produce the original enacting instruments; that it was only enacted in one language.
That is a simple enough task, and I would think that, as you suggested, law students could cover that range and do it in far less than two years.
Outside the Consolidated Index of Statutory Instruments, the situation is complicated because of the Statutory Instruments Act. The Statutory Instruments Act, passed in 1971, adopted definitions of ``statutory instrument'' and ``regulation,'' which, as interpreted by the Department of Justice, resulted in a certain class of delegated legislation, of regulations, if you will, not being dealt with under that statute, not being registered, published and, therefore, not being indexed. That is what we called the ``magic formula.'' Those would have to be hunted down. Even there, I would think that, if there is such legislation in place, surely departments are aware of it. Public authorities are aware of it, so it is a matter of informing all public authorities of this problem and asking them to report or send a copy to the central authority of all the legislation, the subordinate legislation, that they apply. Within the time line suggested here, that would take one year, or it could take two years. That would then allow the Governor in Council to validate and correct the situation. At the expiration of that period, all such legislation would be deemed to be repealed.
In a way, this is, as was pointed out, exactly what Parliament did in 1971, when the new Statutory Instruments Act came into place. Because of the definitions that were being adopted, there was a possibility that the legislation covered certain regulations that were not previously published or not previously covered by the old Regulations Act of 1950. Therefore, section 32 was adopted. Public authorities were given one year within which to identify any such regulation and transmit it to the Clerk of the Privy Council for registration. At the expiration of the year, time was up, and any such regulation was deemed to be revoked.
It worked in that instance, and I would assume that it would work now. It is a little difficult for me to envisage a situation where very important regulations would escape the attention of a whole department or commission or whatever public body is involved.
Senator Fraser: My next question has to do with the matter of publication, which has been exercising me all through this. Are you saying that every single regulation must be published in the sense of made widely available to the Canadian public? I do not think we believe in government by absolute secrecy, but we have been told here that there are different levels of publication, depending on the nature of the regulation. You are not quarrelling with that, I take it.
Mr. Bernier: If I may, I did read some of the testimony before this committee, and I understand there was some concern with the publication exemptions in the Statutory Instruments Act. It is important to point out that those are exemptions from publication in Part II of the Canada Gazette. It does not say it will not be published somewhere else. It could very well be. Therefore, I would not support the suggestion, and I have heard it made, that perhaps these provisions of the Statutory Instrument Act amount to a constitutional amendment. I think, on their face, all that those provisions say is these things do not have to be published in the Canada Gazette.
As to whether what form of publication meets the constitutional requirement of section 133, I can only make guesses. The Supreme Court, of course, would be the only body that could provide a definitive answer. I do expect, however, that the court would be sensitive to some of the factors to which you have alluded, and would probably accept something else than publication at large.
Having said this, however, I realize that whenever the words ``national security,'' ``national defence'' or ``international relations'' are mentioned, people tend to stiffen up a little. To the people who say it is essential that we have the power to hide regulations or not publish them, is it conceivable that an act of the Parliament of Canada would remain secret and not be published to the public at large? To my knowledge, it has never occurred, and I do not think it would occur.
It is a fact that the Official Languages Act does require all acts of the Parliament of Canada to be published, so you could not have an act of the Parliament of Canada kept secret or not published. If Parliament cannot keep one of its statutes secret, why should a mere delegate of Parliament have that authority? Is that not a reflection by Parliament that it is the nature of law that it is public?
Senator Fraser: I take your point, Mr. Bernier. Thank you very much indeed.
Senator Cools: What is this authority for saying that Parliament could not act in secret? Parliament has the power, at any given moment, under its exclusion of strangers provision to exclude people and to do things in secret.
Mr. Bernier: Section 133 of the Constitution Act states that acts of the Parliament of the Canada shall be printed and published.
Parliament can meet.
Senator Cools: Parliament can close its doors and meet in secret and pass laws in secret.
Mr. Bernier: Yes, but the act —
Senator Cools: I thought he said, ``acts in secret.''
Mr. Bernier: No.
Senator Cools: Parliament can meet in a secret session. They do it all the time during wartime.
Mr. Bernier: Parliament has done so, yes, you are correct.
Senator Andreychuk: Senator Fraser has touched on the points I wanted to raise. As I understand it, you are saying all regulations have to be published in some form or other, not necessarily in the Canada Gazette, unless they come under this magic formula?
Mr. Bernier: No, it applies even to those, senator. I will be very precise here: all regulations subject to section 133, which is by no means all regulations. It is only those made by the Governor in Council, a minister, or approved by the Governor in Council or minister. That is Blaikie No. 2. In Blaikie No. 2, the Supreme Court said, ``This is the subordinate law to which section 133 applies.'' You have a number of other regulations made by organizations such as the CRTC that are not covered by section 133.
Senator Andreychuk: Your point, therefore, is that it has to be publication in some form, but you cannot state definitively which form now, because the courts have not ruled on it.
Mr. Bernier: Exactly. I have looked at dictionary definitions of ``publish'' and of course the word ``public'' shares the same root. One's first inclination is to say ``publish'' means available to the public in some way. If a regulation were made governing the length of haircuts of CSIS employees, their benefits and where they can take holidays and so on, and that is printed in both languages and circulated in that format to all the employees concerned but not outside, can we say that that regulation has been published or not? That question remains. My guess would be that the Supreme Court might be sensitive to some of the concerns and might find that ``publication'' does not necessarily mean publication at large, but that is a guess.
Senator Andreychuk: That example relates to an employment issue, not a regulation. Perhaps you could think of a better example. If a regulation were to state that the employer has the right to determine dress code, et cetera, that surely does not violate national security. What is important is when they apply it and to whom, and that would not be caught by section 133.
Mr. Bernier: That is a good point, so I am glad I used the example because it brought out this point. Whenever regulations are made, that is a choice Parliament makes. Parliament decides in a certain case to use the legislative vehicle, if you will. Parliament could say in other cases, ``No, we will not use a legislative vehicle; we will not empower you to make laws; we will simply give you an administrative power,'' which would be the case in most employment situations. For example, they would say that the management of CSIS shall be in the hands of so and so. That person, in exercising that administrative function, certainly does issue written guidelines and so on, but none of those is delegated legislation.
Perhaps what this says is that, if we have decided certain things should not be published and should be kept secret, then perhaps certain things should not be done by way of legislation. Legislation in the form of an act of Parliament is inevitably and intrinsically by its nature public. If you want to do things in a way other than public, then you would simply grant an administrative power. That is certainly done. The board of internal economy in the House, for example, or the equivalent in the Senate do not have to publish their minutes and so on.
Senator Andreychuk: I was making another point. The scope of a regulation may specify that you shall do certain things. However, once you start administering that regulation, the things you do need not be made public. For example, in national security areas, you can say that certain officers have certain powers but we will never name people, et cetera, because that is the effect of the regulation as opposed to being the regulation, and that would not have to be public.
Mr. Bernier: That is correct.
Senator Andreychuk: It seems to me that the Constitution is subject to finances. The court did not take the position that, if there is a constitutional violation, it is a constitutional violation; it gave the government a period of time to comply. The argument being made here that it is so extensive and so costly is simply an argument for an extension of time to comply. It is not an argument to avoid the provisions of the Constitution.
Senator Hervieux-Payette: Under the Canadian Charter of Rights and Freedoms is the possibility for each individual to enjoy his or her full rights. If you had to fight to have each and every one of these illegal regulations validated before the courts, we are talking about a lot more money than doing the right thing with the regulations. If you go the route of going to the Superior Court, then to the Court of Appeal and on to the Supreme Court, you always end up with a bill that costs close to half a million dollars.
In order that the citizens of this country, including French Canadians, can enjoy their rights, they must have access to regulations in their own language. Not everyone is bilingual. Of course, this was included in the Constitution. I am offended not only by the question of dollars being raised so that everyone may exercise his or her right but also by having to fight this because the department is saying that they can, retroactively, make these regulations valid. I cannot understand it. They will re-enact the regulations and make them retroactive. That it is a rationale that I cannot buy.
Senator Andreychuk: When the Manitoba case was brought to the courts and the government realized it was going to be in that position, they were given time. The money argument has some weight, but it also has weight in buying time.
Mr. Bernier: That is only at the implementation level, it is not related to non-compliance.
Senator Andreychuk: Exactly.
Mr. Bernier: It does not go to non-compliance. Frankly, I suspect that this is a false argument. I think the Minister of Justice is right in that the problem is limited in scope. With respect to the witnesses who mentioned prohibitive costs, I think that is a situation where the bureaucratic imagination has run away.
Senator Andreychuk: My point was going to be that perhaps in the Manitoba case you can say there were caught off guard. However, if I understand your testimony correctly, you signalled this almost 10 years ago and they have had ample time to investigate.
Mr. Bernier: The Blaikie decision was rendered 20 years ago. I wish to point out, again, that the proposal that has been put forward by way of an amendment this morning does give time. It gives a year, which is exactly what the Supreme Court originally gave the Government of Manitoba, which had a far greater task. They did extend the delay later on, and Parliament can also extend the delay, if need be.
Senator Andreychuk: Madam Chair, you made some comments and I wanted to respond to one. You said that there is a constitutional issue as well as a practical aspect to this. I, for the life of me here, cannot understand how, in Canada, the government can tell us that they do not know what regulations they have and they have no means of getting them.
I spent many years studying the Soviet Union, where these laws were enacted and administered against citizens. At that time, I prided myself on Canada, where we had laws and the government was in control of those laws. Today, I find it curious to say that we do not know all of our laws.
The Chairman: The point I was trying to make, Senator Andreychuk, was that we have a practical problem on our hands and we must decide how we can best fix it.
Senator Andreychuk: I support you on that. The government now has someone in PCO looking at this, but we should be demanding of the government some process of consolidation so that there is, as was pointed out, some way that, at any given time, we know the sum total of the laws of land. I will leave that for later, when we are dealing with our report.
The Chairman: In the presentation before us it is stated:
...the consolidation process cannot serve to validate regulations that are void ab initio.
I should like to go on to Senator Joyal, but in the interests of accuracy to begin with, I would point out to Mr. Bernier that the Standing Committee on Internal Economy, Budgets and Administration holds its meetings in public, publishes its minutes and passes them in public.
Mr. Bernier: Full apologies, senator.
[Translation]
Senator Joyal: I would like to come back to paragraph 5 of the declaration where you mention that the regulations of the Income Tax Act were not enacted in both languages.
Let me say that this is merely a management issue. Did you not recommend as promptly as possible that the Minister of Revenue adopt these regulations again in both languages? This is quite a basic regulation in government management.
Mr. Bernier: Just two weeks ago we got a confirmation from the Canadian Archives that section 3 of the bill, in the case at hand, would validate the tax regulation.
Senator Joyal: But the bill has not yet been passed. Thus, during all these years when your services argued with the Department of Justice over the validity of your points of view, someone could have, based on the Blaikie decision, gone to court and requested that the tax regulation be declared invalid.
Mr. Bernier: The same applies to any other regulation covered by sections 3 and 4 of the bill.
Senator Joyal: So the adoption of the bill is an urgent matter.
Mr. Bernier: Of course.
Senator Joyal: You mentioned the year 1969 as the cut-off date for the application and scope of Bill S-41. When the Minister of Justice appeared before the committee, he said that he would be ready to limit the validity or application of this law to the year 1988, when the current Official Languages Act was enacted, given the fact that the former act was not binding, according to the Minister of Justice.
Would it be advisable to set 1988 as a cut-off date, the year when the Official Languages Act was passed, or should this be an open bill without an expiry date?
Senator Hervieux-Payette: We are talking about the 1867 Constitution Act. If the federal government waited until 1988 to create a more specific law, the same applies to the first Human Rights Act. Did people have any rights before the first Human Rights Act was passed? Some rights were recognized even without a detailed legislation and implementation of the Official Languages Act — which involves more than just publishing and drafting laws and regulations.
So I hesitate to say that the bill should be implemented starting with 1969 or 1988. When citizens have rights, or if their rights are curtailed, they must have access to the regulation. If there is no linguistic access and if this regulation is unconstitutional, I do not see why we should have a cut-off date.
According to basic principles, the 1867 act is to be applied in its entirety and not only in part. In my opinion, it all began in 1867. The Blaikie decision made the act more specific. That right did exist because the court recognized it.
I would be very unwilling to say that it starts in 1988 because this would mean that section 133 does not apply. I am trying to find a way to reconcile these options and I find it difficult, unless you have some constitutional way of validating the whole thing.
Mr. Bernier: I am at a bit of a disadvantage because, unfortunately, I was not expecting such a specific question about the Official Languages Act, and I did not bring the 1988 version with me.
Senator Joyal: I can give you one if you wish.
Mr. Bernier: Until 1985, it was deemed that the only regulations that had to be passed in both official languages were those that had to be published in the Canada Gazette. Quite a bit of legislation was left out.
If I am not mistaken, this opinion was arrived at quite hastily. Section 7 requires that any statutes passed in the exercise of legislative power that federal law requires be published in the Canada Gazette must be adopted in both official languages.
As a matter of fact, there are regulations in delegated legislation that do not have to be published in the Canada Gazette, but that are still subject to section 133 of the Canadian Constitution.
Setting 1988 as a cut-off date for the act will not solve the problem.
Under the Statutory Instruments Act, all regulations, such as those under section 15 that are made by the Governor in Council or by the minister, are exempt from publication in the Canada Gazette, part II. But nonetheless, these regulations are a form of legislation and they can be subjected to section 133, if this is done by the Governor in Council or by the minister.
There is no real difference in status under section 133, and I think that we cannot take for granted that whatever was done after the last review of the Official Languages Act was necessarily enacted in both official languages.
Senator Joyal: Coming back to a publication definition, because this is the point that we need to clarify, any statutory instrument enacted under a power delegated by Parliament must be printed and published, or made accessible, regardless of whether or not it is published in the official Gazette.
Senator Hervieux-Payette: Yes, this is what it means.
Senator Joyal: Under section 133 of the 1867 Constitution Act, such instruments are subject to the same rules of accessibility in both official languages. Is this how you would interpret it?
Mr. Bernier: That is an excellent summary. The only thing I could gather from the jurisprudence of the Supreme Court and of the other courts is that the publication must be an official one. I think that the Supreme Court would require this. In other words, the publication is approved by the State. This means that it is not a private publication. A law, a regulation or a legislative instrument that is not published by the government in the Canada Gazette but is published by private enterprise, for instance, would not fall under the requirements of section 133.
Senator Rivest: You mean by a government organization.
Mr. Bernier: Yes. Or it could also be approved. The point that concerns the Supreme Court in section 133 is the right to have access to the laws in one's own language. As for documents published by private printers, nothing guarantees that they fall under the act.
Senator Joyal: As you say, concretely, we must take the natural meaning of words and there is no such thing as a statutory instrument that is not printed. A text is comprised of words. Words are written down, and as soon as they are on paper, it is considered as printed.
Mr. Bernier: Currently.
Senator Joyal: As soon as a text is on a sheet of paper in more than one copy, it is deemed to be printed. By definition, if it is printed according to section 133, it must be published.
Ms. Hervieux-Payette: Yes.
Senator Joyal: This means that it must be distributed. The word ``public'' implies distribution and accessibility.
Mr. Bernier: If you mean that a printed text must necessarily be deemed to have been published, I do not follow you. I think that these things are different and for this reason two different words are used in section 133. Something can be printed without being published. Besides, all draft regulation must be submitted to the Clerk of the Privy Council in two copies, and thus, we could say that they are always published right from the start. But this is not publication.
I grant you that this is my personal opinion, but publication does not necessarily involve large-scale publication, which gives access to the general Canadian public, as in the official Gazette. This does mean more than just handing one or two copies to colleagues in the office.
Senator Joyal: My next question deals with what I would call the feasibility of the exercise, of enumerating or making an inventory of these regulations. Yesterday, we heard the Official Languages Commissioner recommend that we establish an inventory.
With regard to the inventory, there are two things to be taken into account: the identification, and the underlying costs. If we want to evaluate the impact of this approach, we must ensure that the time allotted be proportional to the amount of work to be done.
In the case at hand, you suggest one year. To refer to what previous witnesses said, given that we do not know how many regulations were not published, if we take this approach, should we not allow a reasonable amount of time? This reasonable timeline would be based on the unknown factors we will have to identify. In the case of Manitoba, the legislation concerned was already known. In the current case, theoretically — at least this is what we were told — we do not know how much work the identification will require.
Senator Hervieux-Payette: Let me make some comments to answer your questions. On the one hand, this issue has been studied by parliamentarians for 20 years and we know that regulations were published in only one language and that these regulations are therefore invalid. I think that there has been ample time to prepare an inventory.
Second, the implementation of a regulation is known to a government although it does not know the regulation. I wonder how one can administer or apply regulations without knowing that they exist. But on the other hand, how can a citizen follow regulations that even the government does not know about?
This is why our amendment makes sense. If all these regulations that are unknown, not applied or impossible to apply because no one knows about them were to become automatically obsolete after a year, we could work on those that are being applied, that are valid and known to the government. I think that one year is enough.
Nonetheless, steps have been taken to review the regulations. After all, it is up to the committee to look at all the regulations. These regulations are reviewed each time a new law is passed because each new act spawns an incredible bevy of regulations. Should we think that the government is unaware of its laws or of when they were enacted and that because of this, there would be regulations still linked to laws that have been repealed... Our statutes and our consolidation do not go back as far as 1920.
First, practically speaking, regarding the fact that we do not know how much work there is to do, I think that our hypothesis for a solution to this question is valid, useful and practical. We have come up with a practical solution. Those that must be amended will be amended in the coming year — rather, they will be translated, this is a translation job.
I do not think that this will be as huge a task as translating all of the regulations and laws of Manitoba. We are being told a horror story, but if we had gotten the real facts, after 20 years we should be able to determine the extent of the work to be done. So I do not accept the notion that this represents an enormous amount of work. I think that a year is a reasonable timeline. This approach already worked in the past. As our adviser says, if there is a problem and we are six months late, Parliament is sitting and it could legally grant an extension. But if after 20 years we start to increase the time we take to comply with the Constitution, I think it would be an error.
[English]
Mr. Bernier: Madam Chair, if I may add a couple of quick comments. The proposed one year is obviously not written in stone. This committee will do as it wishes with the proposed amendment.
It is not so important whether it be stated as one year or two years, but it is important that there be a deadline. The principle at stake is that we do not live in a society in which unconstitutional regulations continue to be applied to citizens of this country and continue to be relied upon by government authorities. We, as citizens, are entitled to a Constitution that is respected.
Clause 4 reflects an approach by the government whereby it is perfectly acceptable to continue to have unconstitutional regulations for the foreseeable future and, at some time in another 20 years, perhaps, we will validate the illegal regulations. That is the aspect of this bill that is less than acceptable in a society founded on the rule of law.
The Chairman: Thank you.
Senator Bryden: I will proceed cautiously because I did not have an opportunity to follow this as carefully as I would have liked, prior to today.
I have a concern about your brief. To be specific, let us look at page 6, paragraph 16 which states:
...the Joint Committee recommended that subordinate legislation enacted contrary to section 133 be identified and re-enacted by the appropriate regulation-making authority.
What makes it contrary to section 133? As I read section 133, an instrument would be contrary to it. For example, acts of Parliament of Canada and of the legislature are to be printed and published in both official languages. Thus, for our purposes, it is contrary to section 133 if it is not printed and published in both official languages. Is that correct?
Mr. Bernier: That is correct, keeping in mind that, in the Blaikie decision, the Supreme Court decided that ``printed and published'' includes ``enactment.''
Senator Bryden: That takes me to something else that I would like clarified. At the top of page 6, paragraph 14 includes the following quotation from the Supreme Court of Canada:
Section 123 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print, and publish all Acts of the Legislature in both official languages.
Did the Blaikie decision deal with that section?
Mr. Bernier: First, I should note that it is section 23. I apologize for that typo. It is not section 123 of the Manitoba Act, 1870.
Senator Bryden: It is section 23.
Mr. Bernier: Yes.
Senator Bryden: Is that the Blaikie decision?
Mr. Bernier: No, that is a reference to the Manitoba Language Rights Reference. There were two references. In the first reference, the Supreme Court found, as we know, that Manitoba was subject to section 23, which is identical to section 133 of the Constitution Act.
Senator Bryden: That is really my question. It states, if we correct the typo, that section 23 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print and publish. Is that what section 23 says?
Mr. Bernier: That, senator, is a quote from the Supreme Court, so I would assume that it must be right.
Senator Bryden: If we are interpreting section 23 of the Manitoba Act, 1870, does it state, ``print and publish, `` as section 133 states; or does it state, ``enact, print, and publish''?
Mr. Bernier: Section 23 of the Manitoba Act, 1870, states that the acts of the legislature shall be printed and published in both those languages, in French and English; and that is identical to section 133, recognizing, of course, that section 133 refers to the Parliament of Canada and the legislature of Quebec.
Senator Bryden: This quote, then, is the Supreme Court expanding ``print and publish'' to include ``enact.'' Is that correct?
Mr. Bernier: The Supreme Court had done that previously in the Blaikie decision. By the time it reached the Manitoba reference, it was already law that ``print and publish'' means, ``enact, print and publish.''
[Translation]
Senator Rivest: Do you suggest that the bill should include one or two year timelines that could be extended?
Senator Hervieux-Payette: Yes, this is one of the amendments. After 20 years, it is important to set a time limit if we want to get the job done. If it ever turns out to be an enormous amount of work, the time can always be extended, but I doubt that this will happen. If our proposal is accepted, many regulations will automatically become obsolete and will not have to be translated. I think that this will happen to most of the regulations.
Mr. Bernier: Let me say very frankly, that what is missing here is the will to settle the matter. If the government had set to work immediately instead of contesting the report of the Joint Committee for the Scrutiny of Regulations when it raised the issue, things would not have taken so long and the work would have been finished by now.
Senator Rivest: I have a sure-fire way to give them the will to act: I will challenge the validity of a tax regulation tomorrow morning!
[English]
The Chairman: Thank you. Senator Rivest, I would point out that the suggested amendment is written as follows:
...on a day twelve months after the day on which this Act comes into force...
I thank all of you for appearing before the committee today.
The committee adjourned.