Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 35 - Evidence, May 30, 2002
OTTAWA, Thursday, May 30, 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 11:05 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Before we proceed to clause-by-clause consideration of the bill, we should have the officials before us once again. I am informed that they have prepared an additional amendment that would replace the last page of the amendments they presented to us yesterday. Perhaps Mr. Tremblay could walk us through this revision.
Mr. Marc Tremblay, Senior Counsel, Official Languages Law Group, Department of Justice: Just to be clear, this is a replacement to the fourth motion that was discussed yesterday. To begin anew from where we left off yesterday, we had a motion dealing with section 7 of the 1988 act. That was followed by the clarification concerning exemptions from publication, and the third clarification on the retroactive prosecution clause, clause 4(3)(b). Those remain as they were yesterday. What you have before you now is a new motion with a variety of amendments included.
Taking this new document on a clause-by-clause basis, both the English and French versions of clause 6 remain the same as yesterday. No revival is the new clause 7 that brings forward the same ideas as were contained in one of Senator Beaudoin's motions from yesterday. The idea here being that we clarify further that the effect of this bill will not be to lend new life to an instrument that otherwise has been previously repealed or ceased to have effect. Proposed clause 8 has not been changed from the original bill. Only the numbering has changed.
The new proposed clause 9 is, I would suggest, the crux of the matter for today's discussion. At this point, perhaps I can step back and discuss the thinking and the process we underwent between the time we left you at 6:00 p.m. last evening and 11:15 this morning. We had a proposed motion for repeal that had been suggested by Senator Beaudoin at the end of a given period that could be set. The government's proposal was that the review and report clause undertaken by the Minister of Justice should suffice. Following discussion that took place yesterday, we undertook to go back and consider whether there was something more that could be put forward to cover the concerns expressed.
Here we are today. We met with the minister this morning and discussed this proposal with him. We continue to have concerns, as expressed yesterday, with the repeal provision. The concerns have to do in part with some of the wording that we could perhaps tighten up but, more fundamentally, with a situation that we exposed of the potential for creating uncertainty with respect to actions and transactions that would have occurred in the past with respect to these instruments. In other words, by repealing, are we throwing doubt on transactions and so on that have occurred in the past?
In our study overnight, a second concern — and perhaps a more important one — has been raised with respect to future uncertainty that would be created. You will recall that the repeal provision is inspired by the transitional provision of the 1970-71 regulations act — section 32, as it then was. The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations was unable to explain in any way or to cite any examples of texts that would have been repealed pursuant to that ``sunset'' clause.
That situation, according to the information we are now able to report upon, has been a source of continued uncertainty. We have a situation where, after 1972, texts that have not been re-enacted pursuant to that act are repealed. However, there is no list of those texts. There still may be federal authorities that, on all accounts, think they are acting pursuant to an instrument that is valid but that, in fact, has been repealed.
Thus, there is potential for a situation whereby many years after the legislated repeal has occurred and actions such as transactions or payments have continued to transpire on the basis of this repealed instrument, someone discovers that those activities have taken place on the basis of what had been a repealed instrument 15 years prior. Uncertainty arises as to the legal authorities under which federal regulatory bodies are acting upon and there is potential for claims in the future. That is exactly the situation that arose following the 1970-71 act. This is the risk that we are identifying for this committee's consideration today — a risk that could accrue if we have a repeal provision in this current bill.
In five years, or whenever the period would be fixed, texts would be automatically repealed without any notice to the regulatory authorities being given because no one has found them. Keep in mind that we will have gone through a review, identification and research process, but these texts have not been found or re-enacted; they are somewhere out there and the potentiality of a federal authority having not been notified that their instrument has been repealed, continues to act on it. Then, 15 years from now, or after the repeal, a problem arises because it is identified with wrongfully collected monies or with illegitimate transactions having occurred.
Our considered view, therefore, as had been suggested by the honourable senators yesterday, is that a strengthened review and reporting clause is the way to proceed. By putting forward sufficiently strong, clear indications of the measures that will be taken by the Minister of Justice, his colleagues and other federal authorities, the process will be reported on and will be open to public scrutiny. All will be able to politically reach a conclusion on the validity of the process, which will be open to scrutiny and criticism.
We will also list the instruments that were found through this thorough process and re-enacted and list the instruments that were found and not re-enacted. There could be two immediately apparent reasons why, in the second category after the fifth or sixth year, there may be texts in that situation. We could imagine that the day before the end of the fifth year a new text could come to light that we have not yet had a chance to translate. If it is repealed the next day, then that is the end of that text, all of the legal effects that it may have had and the uncertainty that may have ensued. However, under our process, it is put on the list, everyone knows it is there and that it has not been re-enacted.
Now there is potential for parliamentary scrutiny and the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations will have the list — as all parliamentarians would — and could call the responsible ministers forward to ask what they intend to do with those texts.
That is the proposed motion that is being submitted for your consideration this morning.
Mr. Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice: The only thing I would add by way of detail is that we did add the suggestion that clause 9 refer to both the implementation and the operation of clause 4. Also, tracking Senator Beaudoin's amendment, we not only put in a mention of this report on this comprehensive review and these lists, but also a description of the measures that would have been taken to identify the legislative instruments in question. It is a very transparent process and should take us in the right direction.
It provides for parliamentary scrutiny because the report would be laid before both Houses of Parliament. It should, we think, provide closure on this process, without creating additional uncertainties with respect to possible instruments that might be lurking out there. It will be a good faith process.
The Chairman: Will this amendment that you have put before us solve the problem that Senator Bryden brought up yesterday?
Mr. Newman: Mr. Keyes will address Senator Bryden's concern. In our view, it is not a concern that will manifest itself because of a provision in the Interpretation Act that deals with the repeal. The senator's concern was whether we had a repealing provision. In any event, the Interpretation Act states that the repeal of a legislative instrument does not have the effect of extinguishing legal effects in relationships, et cetera, that had occurred thereunder prior to the abrogation.
Senator Bryden: In relation to proposed clause 9 on your list, proposed subclause (3) reads: ``The report referred to in subsection (2) shall, in respect of legislative instruments of a class referred to in subsection 15(3) of the Statutory Instruments Regulations ...'' What does that say?
Mr. Tremblay: Those are the regulations exempted from the publication requirement because of national security and defence, et cetera. In those cases — and Senator Beaudoin's suggestion was also taken into account in respect of subsection 15(3) of the Statutory Instruments Regulations— it would be wrong to print out the name of these instruments because they are meant to be secret and stay secret. We would say how many we found.
Senator Andreychuk: If I understand your argument against repeal, you are saying that there would be uncertainty of the actions and transactions that occur. It troubles me that there could be a bureaucrat out there working with statutory instruments that do not comply with the Constitution. That was our fundamental point. I thank you for adding more to the comprehensive review because I think that ensures a measure of good faith.
However, you will obviously have to do a thorough review. If it is a thorough review, every department and section will have to go through the instruments they deal with and so it would be only one that slipped through. On that basis, you are prepared to say it is better that those transactions be protected than the Constitution complied with. Those arguments were being made yesterday.
It seems that if you were to repeal and discover that there is some material damage in one particular statutory instrument, there could be a way of remedying that or the government would pay the price. That seems to me to be a better public policy and constitutional approach than what you are saying and justifying no repeal.
Mr. Tremblay: Certainly, there is scope for a difference of opinion on what is the preferred approach here. In our view, a court of law looking at this situation — if that is the ultimate judge of the actions that the government has taken — will say that what we have proposed here is as good as could be done. What could a court order us to do better than what we have done now, than to look thoroughly for all texts, to identify all the ones that we found, to put them out there and re-enact them if we can, but we cannot correct texts we have not found.
I agree, that it is a problem at the margin, but it only takes one of these situations at the margin to create what could be a large problem down the road. It is a question of do you live with that one instrument being left alone and then deal with it before the court and argue, as was argued in the Manitoba Language Reference Case, for a remedy to that problem? Do you legislatively create a new problem, not constitutionally, that exists not because of the fault of the federal legislator, but because of the Constitution and the rulings of the court? The legislature would be creating the problem and then having to find a remedy to it. It is a question of doing the best and whether this is best or that is better. In our view, we have struck the right balance here.
Senator Andreychuk: You indicated that the 1970-71 act could have the same difficulty on the margins. Since that time, have you found any of these cases on the margin? Has there been one case? You put the question hypothetically. That is a practical example. We are saying that was a good approach constitutionally. You are saying, ``Well, there could be this hypothetical case.'' It is 2002. Has there been a case between 1971 and now?
Mr. Tremblay: From my personal experience, I cannot answer either way on that question. I can only relate what was related to me by our drafters who are experienced in this area. Perhaps Mr. Keyes can think of more examples.
What was relayed to me was that, in terms of federal regulatory practice, the 1970-71 section 32 of the Regulations Act has caused us headaches of trying to determine, when faced with an instrument, whether it had been, by the application of that section, repealed or not. These issues play out throughout the federal regulatory practice. I cannot cite specific examples where, in a court of law, that someone has brought up the issue. As we understand the question, it is a problem of displacing the problem from one area to the next.
Mr. John Mark Keyes, Director, Legislative Policy and Development, Department of Justice: I am afraid I cannot enlighten honourable senators on any of the details of these problems, either.
I will make a couple of points, though. The 1970-71 act just dealt with instruments that were in force at the time. It did not reach back into the past, as this bill does to a large extent.
Second, the fundamental problem we are grappling with here is that we do not know what instruments we are talking about. We are proposing an exercise to try to enlighten us, to go back, do the research, try to discover whether these instruments exist, if so, what is the nature of them.
We are suggesting that, rather than enacting a sweeping repeal clause at this point, it would be more prudent to await that review and let that review take care of the repeals rather than presupposing what that review may or may not find. A repeal clause now is a repeal clause that is being enacted without a clear view of what its effects would be. That, fundamentally, is the risk that we are suggesting.
Senator Beaudoin: This is one way to admit that we do not comply with the Constitution. We comply with everything we can at this moment. The spirit is good. There is nothing wrong with that. However, the fact is that there is no end. The Manitoba case dealt with instances of three and five years. I am not concerned with three years and five years. It is nothing in the history of a country.
There is a never-ending problem in constitutional law. We must correct the situation. If that correction takes three years or five years, that is all right. If we make an interim report that, too, is all right. If we make a list of those cases where we are sure that the repeal is acceptable, then I agree. I want there to be an end somewhere.
If Manitoba discovers something, they will probably go before the Supreme Court again. They solved the problem in Manitoba for the legislation. We must now solve the problem for the regulations. It is more difficult because we have more regulations than legislation. However, the principle of law is the same. We must end somewhere.
You say that if ever this matter is raised in the court, the court will be reasonable. They will be reasonable; there is no doubt about that. Perhaps they will say, however, that they will put an end to this, that we cannot live for a century like that. That is my problem. This is why we proposed a period of three years. However, the figure of neither three nor five years is set in stone. There must be something concrete somewhere.
If we do not discover everything, we know that we have done our best. If there is a challenge in court, the court will deal with it. That is their job. Our job is to legislate; their job is to interpret. Let us do our job 100 per cent, then. I am not quite sure that we are doing that now.
Senator Fraser: An initial point, which is not the core point, but on the government's proposal for clause 7, one of Senator Beaudoin's amendments addresses the same point and is more clearly written. If there were no objection to it, I like his version better, but I am not a lawyer.
The Chairman: Which one is that might I ask you?
Senator Fraser: ``An instrument that was repealed or ceased to have effect on or before the day on which this act ...'' It is easier to understand. That is Senator Beaudoin's clause 5. I do not care where the amendment is inserted I just think Senator Beaudoin's wording is clearer.
On the core point, I am sorry, but I am not persuaded by the arguments we have heard. The greater the transparency of a process, the better that process is. I think Senator Beaudoin is right. When we are talking about reparation of a constitutional wrong, we cannot leave it to convenience, which is what this boils down to. I think it is a very bad precedent to set, the government deciding whether or not it is worth going to all this extra effort. I can see similar arguments being made on more substantive cases. I do not think it is sufficient to say, ``this government is acting in good faith.'' I am sure this government is acting in good faith. However, this government is not eternal. The Constitution is supposed to protect us; with this, the Constitution does not protect us. The government's good faith is all that protects us here. That seems to me not a sufficient response.
Finally, as to your argument for uncertainty, I thought this bill was about diminishing or eliminating precisely that kind of uncertainty where someone would dredge up a regulation and take it to court and we would find ourselves in difficulty. If that is not what it is about, I do not know why we are bothering.
The Chairman: Are you prepared to answer?
Senator Fraser: It was not a question, but I thought it was important.
Mr. Newman: First, we are officials and, we are in the hands of the members of this committee as to what ultimately the committee will do.
With respect to ``good faith,'' I understand the concern in relation to the Constitution. When my colleagues and I mentioned good faith, what we mean is the Minister of Justice is committed, of course, to acting in good faith, in accordance with the Department of Justice Act and the rule of law and everything that applies to our actions. Beyond that, this provision now strengthens the review provision and the reporting provision, it sets a number of objective obligations and requirements and does not leave it entirely to the discretion of the Minister of Justice.
To clarify, it is not a question of relying on the good faith of departmental officials. That is why there is scrutiny, reporting, the lists and the material we have drawn from Senator Beaudoin's original proposal. It is my respectful view that we do not have to rely on the good faith of officials or the Department or the Minister of Justice to ensure respect for the Constitution. This proposal sets out rules of law that must be respected and that will be objectively assessed by both Houses of Parliament upon a formal review process.
That may not go as far as you want, senator, and I understand. I wanted to explain that this is much stronger than a simple good faith commitment on the part of officials before you today.
Senator Fraser: A point of clarification. My reference to good faith did not refer to the process that of course would be in law, it refers to the next step after that: the decision to re-enact or not to re-enact. Indeed, part of the decision is to engage in the search.
Mr. Newman: It has to be comprehensive.
Senator Fraser: At the end, there remains doubt and governmental or possibly parliamentary discretion.
Mr. Tremblay: Definitely.
Senator Joyal: I have two questions in relation to the proposed clause 9. The first is about the process. There is no doubt that what you propose this morning is clearer in terms of process because it sets a mechanism and a classification. The department undertakes within a year to come back to each House of Parliament with a report that would come with results in various categories, which is fair, in my opinion. It shows diligence.
We then move four years hence, which is in the first paragraph of proposed clause 9, where the Minister of Justice undertakes ``a comprehensive review of the implementation and operation of section 4.'' It stops there. There is no obligation to report other than the way you have undertaken to report in the first year.
My next point concerns the second paragraph of proposed clause 9, which says that you submit a report on the review to each House of Parliament, whereas in clause 8 you propose that the regulations stand referred to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations. Personally, I prefer to see the report referred directly to the committee as opposed to reporting to both Houses. If you do that, a motion is needed to refer it to the committee. If you make a motion, it is debatable. Parliament can debate as long as it wants to debate. Having consideration to the fact that we are dealing with something that needs to be acted upon immediately, why have you established a distinction between clauses 8 and 9?
Mr. Tremblay: Dealing with the first point, senator, if I understand your concern correctly, I believe that this draft meets the objective that you are pursuing, that is, that there is not a one-year review and a five-year review. There is, first, five years within which the work will be undertaken. Proposed clause 9(1) says that you do the work within those five years. We call that a ``comprehensive review.'' That is the comprehensive review that, within one year after the review has been undertaken, will be reported to both Houses of Parliament. It is a report on this comprehensive review.
The way it might work out is, if we assume that the Minister of Justice takes all of the time that is allowed him, his comprehensive review will take five years — presumably minus a day — and on the last day, he will have completed the work and undertaken the review. He is into the review and reporting stage, and he has one year from that time to report on the review that he has undertaken. It stretches it out to potentially the final process being tabled in the House within six years or such further time as may have been allowed.
Why both Houses of Parliament? Perhaps Mr. Newman will want to add to this. First, it no way takes away from the powers of the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations to which will be referred the instruments for the usual scrutiny process.
It adds a second level of public scrutiny at the highest possible level by being submitted to both Houses. It is not meant to be a narrowing down of the process but, rather, a more generous process. As there may be a need for an extension of time, the minister undertakes the review. If, after four or four and a half years, we discover something big that we had not anticipated — as unexpected things happen — the minister is now faced with a situation where there is a huge number of important texts that need to be translated and there are only six months left before he needs to report. He realizes we will need more time before his process comes to an end, so he goes to both Houses of Parliament and obtains an extension before the time at which he will be required to table the report listing all those that have been identified and re-enacted, and the rest of the list.
Obtaining that authorization from the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations was felt to be not the proper forum to obtain an extension of time. Since the time period had been granted originally by both Houses acting in the legislative process, it is proper to go back to the same Houses to obtain that extension.
Mr. Keyes: There is a difference in scope of each of those provisions. Proposed clause 8 and the referral to the scrutiny committee is focused on particular instruments that generally fall under the mandate of that committee, whereas the report and review in clause 9 has more to do with the entire operation of this bill, or at least clause 4 thereof, which is one of the key provisions. It is not focused just on the question of particular instruments; it goes more to the whole purpose of this bill. We felt it more appropriate that this go to the Houses themselves rather than just to the committee.
Senator Pearson: In this review, one of the important things is that it would start the day after the act came into force. That is, the work of actually identifying all these existing instruments and so forth, would be started; is that right? Is it adequately phrased to ensure that is happening?
Mr. Tremblay: Absolutely.
Senator Pearson: It should not be happening two days before the end of five years.
Mr. Tremblay: No. It is true that the language is framed, as these are always framed, with a deadline. We are on the record as having indicated that this work is undertaken and will continue to be performed throughout the five-year period. That is the spirit of the provision.
There may be start-up times. We are devising these provisions as the deliberations of the committee have advanced, so it is normal that we will need to adjust. If we assume bad faith and that the government is going to sit on its hands and wait, the remedy will be public scrutiny before both Houses of Parliament. That, we submit, is a fairly strong incentive.
Senator Pearson: You have been talking about the all the regulations, which have been published and, with the exception of the exempt instruments, do exist. You have lists of where they are, et cetera. It is not an impossible task to go over them all.
Mr. Tremblay: There are no lists, and that comes back to why no repeal.
Senator Pearson: If they are all published, do they not have to be listed?
Mr. Tremblay: They are not all published. All of the amendments are addressed to the clause 4 unpublished and properly exempted regulations. The process has begun. What has been undertaken so far, in the weeks of deliberation before this committee, has been figuring out how we will go about trying to find these documents and we do not have answers to that question. We have begun. It will be easier for some classes of documents. However, as we move away from the centre of certainty and further into unknown territory, the best that we can do is a thorough search and consult all the people who have been involved in current and past times in this process, identify, and then let public scrutiny play its role in judging the process that will have occurred.
Senator Pearson: It is a lot of work for articling students.
Mr. Tremblay: Lots of work for lots of people.
Senator Moore: Gentlemen, I am on the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations, as is Senator Bryden. I am looking at the brief that was presented to this committee by the co- chairs of the joint committee. They say that a transitional provision patterned on section 32 of the Statutory Instruments Act would represent a compromise to the two extreme positions that could be pursued, and they suggest a new subclause 7 to clause 4, reading:
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 am not hung up on the time, it could be longer than that as Senator Beaudoin suggests. However, I am concerned about the open-endedness — if I can call it that. Did you address that? You have not seen fit to use that amendment in your suggested amendments. Do you want to comment, please?
Mr. Tremblay: No, we have not seen fit, and that comes back to the discussion that it is essentially the same idea, worded slightly differently, as Senator Beaudoin's repeal clause. In both cases, after a period, acts that have not been re-enacted are repealed.
It is an option that is on the table. It is the option that we had examined previously, and we had given reasons why there are difficulties and problems relating to the uncertainty that such a measure will create. We have come back today once again and, in our considered view, the appropriate response is the strengthened clause 9.
Again, as my colleague has stated, we are here to help the committee. We recognize that is a concern. We have done our best to provide you with the information you need to consider the ramifications of any motions that might be put forward.
Senator Moore: I agree with what they say in this brief:
... 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.
I am not hung up on the year, but I would like to see some specific period of time. It does not matter to me whether it is three years or five years, but there should be a definite date provided.
Senator Bryden: I would like to look at your proposed clause 9, which states:
Within five years after the day on which this Act comes into force, the Minister of Justice shall undertake a comprehensive review of the implementation and operation of section 4.
There is a report within a year after undertaking that. You used the illustration that it might be then a six-year period. I believe it might very well be a nine-year period or an 11-year period. This says that the minister will comply with this section if, on the last day of the five years, he undertakes the review. Then within one year after the review is undertaken —
Senator Moore: It does not say complete the review.
Senator Bryden: If what you say is correct, could we not say:
Within five years after the day of which ... the Minister of Justice shall complete a comprehensive review of the implementation and operation of section 4.
Then, within one year after the review has been completed, the minister will put a report before both Houses of Parliament, unless the period is extended.
Mr. Tremblay: Certainly, various wording can be used. All I would point out at this stage is that clause 9(1) is in a sense open-ended. The minister only has to begin the review within the five years. However, clause 9(2) gives him one year within which to complete that and submit the report. It comes down to the ultimate period where the process will end. Right now that is six years unless otherwise extended. It can be extended, but on agreement. Yes, there are other options.
Senator Bryden: The only limitation is that a review will be undertaken and a report made within a year — there is one year from the time you start the examination until you report.
Mr. Tremblay: Yes.
Senator Moore: Yet it can be extended, too.
Senator Bryden: It would indicate to me that that might be a pretty perfunctory review. Why would you put the five years in? Why would you not say within one year the minister will report to the Houses of Parliament on a review?
Mr. Tremblay: I am not sure I follow. I think the answer is that the comprehensive review is what will require most time. In order for the minister, the PCO and the regulatory authorities to do the thorough job they will need to do, we need time. We need time to undergo the research, find the texts, sort them out, get legal opinions on their status, and decide what needs to be done with them. It may be over quicker than that but, at the end of the five years, the minister will have before him the piles of documents that need to be dealt with and he can begin drafting his report. He will have to have that report completed and submitted within one year of the first day he starts — unless he concludes there is reason to extend the period.
The reason he would extend would be to translate more of these texts before you start telling everybody out there that there are these texts that you have found and you have not had an opportunity to correct their potential defect, you may want to grant yourself a bit of time. Not knowing the scope of the problem, it is difficult to assess what will be required.
In the end, it is over in six years unless both Houses can agree to grant more time. It could be over in five years. Different formulas could be used. If you prefer the certainty of ``the minister has five years to review and the minister has one year to report,'' there is nothing wrong with that either. It is just that in the current model the minister may begin his review after year one. We may, in 12 months, discover that we have found nothing. We have undertaken the review and found nothing; why wait another four years?
Senator Moore: That is better than the other.
Senator Bryden: Why would you not say in the five-year period the minister would complete the review?
Senator Fraser: Or say ``shall review.''
Mr. Tremblay: It is a drafting choice but it could be done, yes.
Senator Bryden: In my opinion, it is a complete answer for the minister to say in Parliament, ``I have undertaken a review, I did it last Saturday and the five years is not up until next Monday.'' I mean, that is a complete legal answer. I know no one would rely on that. If it takes a year to do it, that is fine. However, I would guess that if the intention is to complete it within five years, people might get at it a little earlier.
The Chairman: With that final idea, I will turn to Senator Beaudoin.
Senator Beaudoin: The repeal clause is what it is important. Three or five years is not a big problem for me. A period of three or five years in one century is nothing. When we come to it in the clause-by-clause consideration, I wish to be concerned with the substance.
The Chairman: I will ask for agreement that the committee move to clause-by-clause consideration of Bill S-41, an act to re-enact legislative instruments enacted in only one official language; is it agreed?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry?
Senator Joyal: Madam Chair, I have an amendment to propose to clause 2 which states:
That Bill S-41, in Clause 2, be amended by replacing line 15 on page 1 with the following:
(a) an instrument enacted before the coming into force of section 7 of the Official Languages Act on September 15, 1988 by, or with the ...
Then, of course, the rest of the sentence in the clause is the same.
The Chairman: Is it your wish to adopt this amendment?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry, as amended?
Senator Beaudoin: We had proposed on our side the question of (b). However, after the explanation given by Mr. Tremblay, I understand that subclause (b) is all right, because the instruments that we are talking about are instruments that are not enacted, is that right? If you say, ``yes,'' I will say that I agree with subclause (b).
The Chairman: Mr. Tremblay?
Mr. Tremblay: I believe the answer is ``yes,'' yes.
The Chairman: Shall clause 2 as amended carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 4 carry?
Senator Joyal: Madam Chair, I have an amendment to clause 4. It states:
That Bill S-41, in Clause 4, be amended by replacing lines 11 to 13 on page 2 with the following:
guage and, at the time of its enactment, was published in only one official language or was exempted by law from the requirement to be published in a government publication, the Governor in
The rest of the sentence, of course, follows.
The Chairman: Is it agreed that this amendment carry?
Hon. Senators: Agreed.
The Chairman: It is agreed.
Are there any further amendments to clause 4 of the bill?
Senator Beaudoin: I have one, Madam Chair.
It states:
That Bill S-41 be amended in clause 4, on page 3, by adding after line 10 the following:
``(7) Upon the expiration of five years after this Act comes into force, any legislative instrument described in subsection (1) that has not been re-enacted in both official languages is repealed.''
Senator Joyal: Would it not be better to change ``five years'' to ``six years''? The minister must report in the sixth year. Further to the amendments that we have discussed this morning, I think it would make more sense to make it six years.
Senator Beaudoin: Yes, because of the famous clause 7. As I said very clearly, the substance is what is important. Six years is probably more logical.
Senator Moore: That will answer the suggestion of the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations.
Senator Beaudoin: Yes.
Senator Moore: I am for it.
Senator Bryden: I still have concern regarding what was raised earlier. By going to six years and with the department doing an investigation for five years, and then reporting, presumably, if the sixth-year repeal is to be a serious problem, we can then bring an amendment that says, ``Let us take that out and make it 10 years or let us eliminate it and here is why.''
Senator Fraser: We can always do that.
Senator Beaudoin: If the whole system may go as far as 10 years, then the repeal section may take place only after that in that sense.
Senator Bryden: What I am saying is going one step further. We have six years to get it so that the repeal section can stay there because there is no risk. We know that. If the department comes forward and says, ``If that occurs, we are very concerned that these implications will be there,'' then we can amend this.
Senator Beaudoin: Of course.
Senator Bryden: I agree with it, then.
Senator Fraser: We would have to consider it any way, by law, because we would have to authorize the extension. It would be a logical point at which to say, ``At the same time...''
The Chairman: To be absolutely clear, Senator Beaudoin has moved:
That Bill S-41 be amended in clause 4, on page 3, by adding after line 10 the following:
``(7) Upon the expiration of six years after this Act comes into force, any legislative instrument described in subsection (1) that has not been re-enacted in both official languages is repealed.''
Shall Senator Beaudoin's amendment carry?
Some Hon. Senators: Agreed.
Senator Joyal: On division, Madam Chair.
The Chairman: On division. Shall clause 4 as amended carry?
Senator Joyal: I have another amendment, Madam Chair.
It regards clause 4. It is an amendment that we discussed yesterday. It states.
That Bill S-41, in Clause 4, be amended by replacing lines 29 to 37 on page 2 with the following:
subsection (1) unless the contravention occurred after the instrument was re-enacted and published in both official languages.
The Chairman: Shall Senator Joyal's second amendment to clause 4 carry?
Hon. Senators: Agreed.
The Chairman: It is agreed.
Shall clause 4 as amended carry?
Hon. Senators: Agreed.
The Chairman: It is agreed.
Shall clause 5 carry?
Senator Joyal: Madam Chair, I understand that Senator Moore is raising an issue of the question raised by Senator Pearson yesterday. In that regard, there was the proposed text of an amendment by Senator Beaudoin yesterday about the uncertainty that some instruments that would be re-enacted would already have been repealed. I understand that this morning we received a new clause 7. Therefore, we do not need to deal with this matter.
The Chairman: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 6 carry?
Senator Joyal: Madam Chair, I would like to propose a new clause 6. It states:
That Bill S-41, in Clause 6, be amended by replacing lines 29 to 37 on page 3 with the following:
Equally authoritative
6. The English and French versions of an instrument re-enacted under section 3 or 4 are equally authoritative.
The Chairman: I wish to make it clear to honourable senators, as we go through this next proposed series of amendments that we are dealing with new clauses. This time we are dealing with Senator Joyal's proposed new clause 6.
In that case shall the new clause 6 carry?
Hon. Senators: Agreed.
The Chairman: It is agreed.
New clause 7.
Senator Joyal: As honourable senators know, we have circulated a new clause 7 this morning. I should like to propose new clause 7, entitled ``No revival'':
7. An instrument that was repealed or that otherwise ceased to have effect on or before the day on which this Act comes into force is not by virtue of this Act or any regulation made under this Act revived in respect of any period subsequent to its repeal or ceasing to have effect.
Senator Fraser: Is there any legal or other reason why we would use this wording rather than the wording proposed by Senator Beaudoin?
Senator Beaudoin: It is the same idea.
Senator Fraser: Yes, I thought Senator Beaudoin's was clearer.
The Chairman: Senator Beaudoin's proposed amendment was to clause 5. We have now passed that clause.
Senator Fraser: We could pick up the wording and put it in here.
Senator Beaudoin: I cannot disagree with what Senator Fraser is saying?
Senator Joyal: Is there any legal reason? We have our representatives from the Department of Justice here. They may wish to respond.
The Chairman: Mr. Tremblay, would you defend your wording in the new clause 7 as compared to Senator Beaudoin's wording of new clause 5(4)?
Mr. Newman: It is simply the same idea. It is drafted in the standard legal language of the Department of Justice. The style is similar to other clauses in legislation of this nature. That is the reason. There is no great mystery to it, really.
Senator Beaudoin: Is it exactly the same thing?
Mr. Newman: Yes.
The Chairman: Right or wrong, this is compatible with other pieces of legislation.
Shall new clause 7 carry?
Hon. Senators: Agreed.
The Chairman: It is agreed.
Senator Joyal: I should like to propose a new clause 8:
Exemption from Statutory Instruments Act
8.(1) The Statutory Instruments Act does not apply to an instrument re-enacted under section 3 or to a regulation made under section 4.
Referral for scrutiny
(2) Instruments re-enacted under section 3 and regulations made under section 4 stand permanently referred to the Committee referred to in section 19 of the Statutory Instruments Act for review and scrutiny.
The Chairman: Shall new clause 8 carry?
Hon. Senators: Agreed.
The Chairman: New clause 9, Senator Joyal?
Senator Joyal: I should like to propose a new clause 9:
Review
9.(1) Within five years after the day on which this Act comes into force, the Minister of Justice shall undertake a comprehensive review of the implementation and operation of section 4.
Report
(2) Subject to subsection (3), within one year after a review is undertaken pursuant to subsection (1), or within such further time as may be authorized by both Houses of Parliament, the Minister of Justice shall submit a report on the review to each House of Parliament that includes
(a) a description of the measures taken to identify legislative instruments referred to in subsection 4(1);
(b) a list of any legislative instruments that have been repealed or re-enacted under subsection 4(1); and
(c) a list of any legislative instruments referred to in that subsection that have been identified but that have not been repealed and re-enacted.
Exempt instruments
(3) The report referred to in subsection (2) shall, in respect of legislative instruments of a class referred to in subsection 15(3) of the Statutory Instruments Regulations, set out only the number of such instruments that are of the types described in paragraphs (2)(a) and (b).
Senator Pearson: I return to Senator Bryden's comments about ``completed.'' In the French version, it is even stronger.
Senator Fraser: They read: ``shall make'' and ``shall complete.''
Senator Bryden: Instead of saying in 9(1) that the Minister of Justice shall undertake a review, we could simply say that the Minister of Justice shall complete a comprehensive review within one year after a review is completed pursuant to that subsection.
Senator Joyal: I have no problem with that. We can change that to ``shall complete a review.''
The Chairman: The appropriate French translation of ``complete'' would be ``complet.''
Senator Bryden is moving a sub-amendment that the two words ``undertake'' and ``undertaken'' in the English version be replaced by ``complete'' and ``completed.''
Senator Beaudoin: In French, what word would you use?
Senator Moore: ``Achève,'' I would think.
Senator Joyal: I would prefer ``compléter.''
The Chairman: Senator Joyal, are you proposing that change to your amendment?
Senator Joyal: Yes.
The Chairman: In that case, we will let Senator Bryden off the hook. Senator Joyal has reworded his amendment. We are all clear on the rewording, are we? Are we agreed?
Hon. Senators: Agreed.
The Chairman: Honourable senators, I return to clause 1.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Carry.
The Chairman: Is it agreed that this bill be adopted with amendments?
Hon. Senators: Agreed.
The Chairman: Is it agreed that I report this bill, as amended?
Hon. Senators: Agreed.
The Chairman: I will not report this bill today but next Tuesday.
I thank the committee for the way in which we have worked together on this bill. It has been a remarkable achievement. I also thank the officials who have worked overnight, and I thank the minister as well for his cooperation. This is the way that bills should proceed through committee, and I thank you all very much.
The committee adjourned.