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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 12 - Evidence, June 5, 2003

OTTAWA, Thursday, June 5, 2003

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-12, to repeal legislation that has not been brought into force within ten years of receiving Royal Assent, met this day at 11:07 a.m. to give consideration to the bill.

Senator George J. Furey (Chairman) in the Chair.


The Chairman: We have with us today officials from the Department of Justice: Ms. Katharine MacCormick, Chief Legislative Counsel from the Office of the Chief Legislative Counsel; Mr. John Mark Keyes, Director, Legislative Policy and Development, Advisory and Development Services Group; and Mr. Daniel Ricard, Deputy Chief Legislative Counsel, Drafting Services Group.

It is my understanding that Ms. MacCormick will make a five-minute presentation, in which she will provide comments on the Justice Department's reaction to this bill. Her presentation will be followed by a question and answer period.

Ms. Katharine MacCormick, Chief Legislative Counsel, Office of the Chief Legislative Counsel, Department of Justice Canada: There will be some limits to what I will be able to answer. Perhaps some of my remarks will help to explain that.

A housekeeping statute of this sort has a lot of appeal. That said, however, it is important to know the impact when one proposes to have an automatic repeal of various provisions. Knowing the impact is not as easy as it looks at first glance. We have put together a list — which is being distributed to you — based on the Table of Public Statutes. This list shows the total number of provisions and individual acts that have been enacted — they are in the statute book — but that are not yet in force. It is not divided yet by time.

As a result of a quick look through in February of this year, our understanding is that there are two complete statutes and roughly 60 provisions that were enacted 10 years ago but that are not yet in force. However, there are approximately 426 individual provisions in various statutes that are not yet in force — which would require some detailed analysis. The effort required to go through every one of these provisions will entail consultations with other departments. Once the provisions have been determined, we then have to know the impact, in the context of subsequent legislative activity.

Today, there are four concerns I should like to put on the table. There may indeed be other concerns, as the detailed analysis proceeds.

The four concerns are as follows. With respect to provisions that are more than nine or ten years old and have been subsequently amended, the amendment of that provision could have been fairly recent — it could have been last week. If it is an amendment from last week that was, say, a partial amendment to something much older, to correct an anomaly, is it really the intent of this legislation that that kind of provision would disappear, even though were it to be brought into force it would be brought into force with a very recent amendment? In other words, because of the automatic repeal, you may be removing from the statute book a basis of law that this chamber and the House of Commons may have considered recently. Do you need a process that allows you to examine that kind of thing case by case before there is an automatic repeal?

The second concern relates to partial coming into force provisions. We know that with respect to the Contraventions Act, for instance, it has been brought into force in some provinces but not in other provinces. Negotiations with individual provincial governments are required before it can be brought into force. Is it intended that those things not brought into force in certain provinces or only partially brought into force will be partially repealed? Will the intent be to repeal all of the provision, or do you keep the whole provision because part of it is in force? It is a question of interpretation, but what is the intent? Should there be a process to look at individual cases, to ask if we really want this repealed or not.

The third concern is in the context of international treaties. As we move in an era of globalization, we have international treaties that are negotiated subject to ratification, and a given country will sometimes have to implement particular legislation. There may be legislation to implement an international treaty that Canada has ratified but that is not yet in force internationally. If you were forced to bring that implementing legislation into effect to avoid the impact of this kind of repeal, you could potentially be putting Canada offside other countries in negotiating arrangements, where you are trying to harmonize between two countries or you are waiting for the final implementation before you commit Canada to a certain direction. It is not an extraordinary thing to contemplate a 10-year lapse of time when you are talking about international ratification of treaties.

The last concern is that this bill would purport to cause the automatic repeal through the tabling of a list of provisions by the Minister of Justice in both Houses of Parliament. There is no provision in the bill for the publication in the normal course, in the way in which it is usually done for repeal of statutes in the Canada Gazette. There could be a potential problem for access to the law for citizens of this country.

Those are the four general considerations that we think this committee should take the time to consider. If you do not build-in a process for flexibility, for an ad hoc consideration provision by provision, you could be creating more problems than you had anticipated.

The Department of Justice has begun a process to detail provision by provision and statute by statute. That exercise will take time. We will then have to consult with each of the departments responsible for the individual statutes so that we can put together a real sense of what the impact would be in the case of a particular statute. I would be happy to come back with that information at a future date, but I am not in a position to provide it today.

I would now be pleased to answer senators' questions.

Senator Beaudoin: I have two questions. One relates to the Constitution; the other relates to criminal law.

With respect to criminal law, when a bill reduces a penalty but the executive does not put it into effect, I have a problem with that. There is also a charter problem, because if the legislative branch reduces the penalty itself we have to obey that. The executive is responsible to the legislative power in our parliamentary system. At the very end, it is the vote of confidence. That is my first question. I do not know what was said in the fire brigade case — one of you referred to that. I should like to know more about this House of Lords case.

My second question is constitutional in nature. For centuries, the executive has lost power to the legislative branch. At first, the king was powerful; in time, Parliament became more powerful. We have two problems here. The legislative branch adopts a bill, but the executive does not put it in force. Is it not natural in our democratic system that the legislative branch has the final word? The executive, after all, is not elected; hence, if Parliament is legislating, it is the will of the population that is represented in that Parliament. How can the executive be in a position to say that it will not put something into force?

Ms. MacCormick: I am going to turn to Mr. Keyes, who may be able to speak to the fire brigade case that you mentioned.

I would simply make one comment. I am not here to give a legal opinion or to provide constitutional analysis on the way in which these provisions work. However, but from a strict, statutory interpretation point of view, there is something to be said for the fact that Parliament enacts provisions in statutes that by its very wording grants the authority to the executive to decide when to bring in force particular provisions. Some of those provisions are very detailed. You can bring a whole act, subsections into force, at the choosing of the executive. Perhaps the concern has to be addressed in that context when the chamber is considering a particular statute.

Senator Beaudoin: Who will stop the executive? We see in Montesquieu — I have the French expression — the following:


"Power must stop power."


The first constitution that was adopted in the world according to the principle of Montesquieu was that of the United States.

I think the executive has said this: "We have a delegated power, but we will not put that bill into effect." I agree with the latitude we give to the executive, but I do not agree with the fact that the executive may never put that into effect. It is anti-democratic. Parliament is there to restrict the power of the executive.

Senator Cools: Someone should tell them that.

Senator Beaudoin: That is what I am doing.

Senator Cools: The executive of this country does not know that.

Senator Beaudoin: Mr. Keyes, you indicated that there was a case in the House of Lords on this. What was decided?

Mr. John Mark Keyes, Director, Legislative Policy and Development, Advisory and Development Services Group, Department of Justice Canada: The case involved the fire brigades union in England. The House of Lords decided it in 1995. It involved legislation that had been passed by British Parliament to set up a scheme for compensating people who had been injured by criminal behaviour. The minister responsible for the scheme made an announcement saying that the government could no longer afford to put this scheme into force. That prompted the court challenge from the fire brigades union, whose members were often injured by arson and other criminal behaviour.

On the one hand, the House of Lords decided that there was no obligation on the executive to bring the legislation into force; on the other, it did censure the minister and said that the minister and the government could not put aside the possibility of bringing legislation into force, that it had to keep considering whether it was appropriate to bring the legislation into force. In that sense, it had an obligation, flowing out of Parliament's enactment of this legislation, to consider constantly whether the moment was right to bring the legislation into force. It recognized that although Parliament, in giving the power to set the commencement date, had granted a fairly broad discretion to the executive, there were some limits on that discretion.

Senator Beaudoin: The executive has to act at some time. The executive cannot say that they will never put that into effect.

Mr. Keyes: Exactly. The court said that you could never disclaim and say you are never going to bring this into force, that you always have to leave open that possibility.

Senator Beaudoin: There are some limits. Five or ten years is reasonable. In criminal law, I do not think they should have latitude.

Senator Cools: For the record, what was the name of the case?

Mr. Keyes: It is the Fire Brigades Union case. That is the name of the parties that brought the case, the Fire Brigades Union, 1995. It is House of Lord judgment number 7.

The Chairman: Mr. Keyes, if the courts are imposing that restriction on the executive, are you leading us down the road that it may be unconstitutional to take it all away by doing what we are trying to do here?

Mr. Keyes: Not at all. I would not be prepared to draw any conclusion like that from the case. It simply provides guidance on the scope of the power of the executive to bring legislation into force.

Senator Cools: What was the Parliament's response to the court's statements?

Mr. Keyes: I do not know. I have not followed up that aspect of the case.

Senator Cools: The Parliament could also act to oust that judgment if it wanted, but that is another matter.

Senator Joyal: This is a very fundamental constitutional issue in my mind, because it essentially raised the question: Where does the legislative power lie? In the British system, it lies in the doctrine of the supremacy of Parliament, that all the powers are in the Parliament and when they are granted to the Crown, the executive government, it is partially granted for a limited period of time. Parliament can always draw back on an authorization given to the executive system. The British system has a very coherent approach to this.

In Canada, we have a different constitution, because we have the Charter. The executive government is fundamentally constrained by the obligation in the Charter. We changed something fundamental. In other words, it is parliamentary democracy, while in the British system it is parliamentary supremacy. There is a nuance between the two.

As Senator Beaudoin said, the checks and balance in our system is different than in the British system, because our house is still an essential element of consent for legislation — something the British House of Lords lost, as you know, at the beginning of the 20th century. There are nuances between the British and the Canadian systems, but the fundamental question respects where the legislative power rests. It rests in our two chambers, in the Senate and the House of Commons.

When both Houses concur that an element of that legislative authority will be transferred to the executive government, it is always with the assumption that the executive government will use that authority within the limited scope of the statute or the mandate that they receive to look after issues. If the executive government does not use it, in a way it trumps the will of Parliament. Parliament should say to the executive, "At a point in time, if you have not used it, we should be aware of it, and we should act upon it." It meets the test of the second criterion of the House of Lords decision — I have not read it, so I say that with the proviso that I would have to read it — that when it is transferred to the executive they cannot have it forever. The theory is that the executive government has that mandate as long as Parliament has not repealed it and as much as it uses it for the purpose for which it has been granted. That is the second test of the House of Lords.

Last week, when we had the presentation by Senators Banks, Andreychuk, Beaudoin and others, we were preoccupied by that fundamental element of our constitutional structure, which is not well defined because we are in the field of convention. We are not in the field of clear statutory provision of the Constitution. Nevertheless, the House of Lords recognized the limited nature of the transfer of legislative power that is given to the government to decide when they are going to use the power that they receive and for how long they can keep it unused, which is almost an inference that if you keep it unused and do not pay attention to it, you are in a thwarting the will of Parliament.

That is essentially the theory. I have not been able to trace any elements of doctrines or writings in the constitutional textbook on this, but this is a fundamental element of what I call the definition of "where lies the power." In the United States, as Senator Beaudoin has said, it is "we the people." The sovereignty has been transferred to the people of the United States. In the British-inspired system, it is still within Parliament. It is not "we the people;" it is the Parliament.

In our system, in Canada, constrained by the Charter, "we the people" are protected by the Charter, but it is essentially the Charter that imposes itself on Parliament and on the executive government.

This bill is one that everybody will want, as you said yourself in your opening remarks. It seems to be good; there is nothing about it that would cause us to say that we do not need it anymore. It seems to be in the mood of the times. However, there is something more profound in this bill that we have to look into carefully, not because I am opposed to it but because we have to know exactly what we are doing and for which principles we are doing it.

It would be helpful to get your comments on this, and later on to get additional comments on the approach taken by the bill on the constitutional principles that are at stake — that is, when Parliament legislates it is for a specific purpose, and it yields to the executive government a mandate for a limited period of time, especially when there is the provision that the enactment has to happen within a period of time. When a time factor is put into a bill, it is because you have something in mind, not because you want to have it wide open forever. There are specific additional constraints when you call upon a time limit on what you want the government to do with specific responsibilities, be it international federal, provincial or merely local.

Mr. Chair, perhaps the witness could look into that for us — not because we are lazy but because we have other issues to pursue. It is a fundamental point that members of this committee should have an opportunity to reflect upon.

Ms. MacCormick: We would be happy to look into the principles that you are talking about. What you are suggesting is something that closely mirrors some of the concerns we have, that perhaps you need a process that allows consideration provision by provision, within an overall understanding that 10 years seems a reasonable time to contain things. However, why might you need an exception in a particular case? Why might you need an exception for implementing legislation for an international treaty? You might. Perhaps you need a process where Parliament itself can make a decision on that kind of thing.

Senator Joyal: The fourth point of your concern deals with the Canada Gazette. Senator Banks agreed to such an amendment; he even proposed 3.1. There is no conflictual approach on this.

Senator Banks mentioned two other amendments that he wanted to add to this. He wanted to exclude some statutes that were partially enforced or limit that — and that meets your second point. I think there is a way to meet your first and third concerns, especially with international treaties. We have ourselves raised it here. On federal and provincial issues, negotiations are sometimes authorized, and some provinces opt in and others do not, so you have to keep the possibility for it. Hence, I am sure there is a way to meet your concerns.

As much as I can interpret the will of Senator Banks, he was open to accept some amendments, to fine-tune the approach, to the point where your concerns would be met. In your four points, I feel there is a fundamental contradiction with the objective of the bill. As much as we can maintain the objective of the bill and answer your concerns, we should put forth our best effort to meet them.

If you look at the transcript of last week's meeting, you will see that Senator Banks has expressed some views such that we should be able to meet your concerns.

Senator Nolin: Can you explain the nature of the power of the executive? What is the nature of that power? Is it the prerogative of the executive to do that, or is it a mandate of sorts that you received under the law?

Ms. MacCormick: In my view, it is a mandate received under the law. The provision specifically included in a particular statute says that provisions of this act, or sections or subsections, may be brought into force by the Governor in Council at a later date.

Senator Nolin: After including a specific amendment to take care of the flexibility needed — it is apparent following your presentation that we should try to include in the bill some kind of a flexibility mechanism by which you are able to explain why you are doing what you are doing — do you feel it is reasonable for Parliament to question after 10 years what happened with the mandate that was given to the executive to put in force the law that was adopted?

Ms. MacCormick: Any question is reasonable.

Senator Nolin: We gave you a mandate 10 years ago. You have decided in your wisdom not to enforce part or the globality of a legislative item. Is it proper for Parliament to question why that mandate was not fulfilled?

Ms. MacCormick: In the same way that when a provision for the coming into force of a particular statute is open for consideration initially, it is quite appropriate for members, senators, to put their minds to the question of what time frame may be applicable for the exercise of the discretion. Rarely do we see any time frames put on, but I think it is perfectly reasonable to ask in that context. I do not see any particular difference that it is now being brought up in a generic sense. It is a reasonable question.

Senator Nolin: Once in a while, we ask some of these questions to ministers and to those who are in charge to apply the future law. Senator Beaudoin referred to Montesquieu. I think we will have to go back to the English Bill of Rights of 1689, where the supremacy of Parliament was agreed to by British Parliament. In terms of the right to question what happened with the law that we have decided to adopt, it is appropriate after 10 years at least to open the discussion between the executive and Parliament.

The process suggested by Senator Banks is a good one: Present a list with arguments and supporting rationale. That would probably refresh the minds of Parliament, who, in its wisdom, 10 years before decided to give you an open- ended authority to enforce whenever you want to do it. Do you have any comment on that?

Ms. MacCormick: In my role as an official at the Department of Justice, it is probably a good thing at the end of the day to have processes that ensure that the statute book is maintained and refreshed over time. I am not here with any instructions to speak on behalf of the government to that particular point.

Senator Nolin: There is no secret in sharing with Parliament the rationale as to why laws are not being enforced. That is why I am referring to the English Bill of Rights. There are some taxation dispositions not in force. It may be quite reasonable for Parliament to ask why. "We have had the authority to adopt taxes since 1689. Why are those tax dispositions not being implemented?" I think it is quite proper for Parliament to question that.

Senator Smith: When Senator Banks was here, I was open-minded on this. I asked him whether he was aware of anyone who had been adversely prejudiced because a law of the type that he is proposing was not in place. He said no.

If we go to this British House of Lords case, that is an intriguing, interesting and relevant case. What I think you were saying is that a bill was adopted whereby people who worked for the fire brigades who were injured and where there was some criminal aspect to it got compensated. Is that correct?

Mr. Keyes: Yes. It was a general scheme for compensation, not just for the fire brigades.

Senator Smith: However, it had never been enacted.

A scenario such as the following could happen: There may be a government in place, but eight years down the road a change of government could take place. The new government may be philosophically opposed to it. It may be convenient for that government to let two years go by, because they do not want to incur the costs. They do not have to go through rescinding the bill. They can just let time lapse. If I were a British fireman who fell into this category and 10 years later nothing was done, I would feel adversely prejudiced if I could not say to my local MP, "Implement this thing, because it solves my problem. It does not need to go through Parliament; it is already there." That ends my long preamble.

With respect to this long list of cases that we have here — to bring in legislation such as this requires due diligence. I would want some comfort that no one could be adversely prejudiced because a solution for their problem would evaporate without any debate in Parliament. Have you looked through this list with that kind of thought in the back of your minds?

Ms. MacCormick: There are currently two complete statutes that would be caught by this bill, and one is the Motor Vehicle Fuel Consumption Standards Act that was passed in the early 1980s. The other is the Canadian Heritage Languages Institute Act, which was assented to in 1991.

Senator Cools: Are these full acts?

Ms. MacCormick: Two full acts. The rest of the provisions that are listed there are individual, sometimes multiple, provisions of other statutes. What we are trying to do is itemize exactly what they are with some background. What is the substantive significance in the context of that statute of that particular provision that is not yet in force? Sometimes there are multiple amendments to a given provision. It takes time to put it together. The Department of Justice is not able, in and of itself, to put that impact in place. We have to consult with all of the other departments that know the program requirements. They have a better sense of what the true significance is. That is the exercise we are currently engaged in.

Senator Smith: In due course, we will have some information that looks at that?

Ms. MacCormick: Yes.

Senator Smith: If we do not know of instances where someone is prejudiced because such a law does not exist, but we were aware that a number of people could be prejudiced if this proposed legislation came in, that would trouble me. That is not to say that there is not a correct solution to this, but I do not like seeing people's rights prejudiced without any debate in Parliament, which could be the case. That is a rhetorical question that you do not have to answer.

The Chairman: Can you offer any explanation as to why the Canadian Heritage Languages Institute Act that has a date on it of 1991, which makes it 12 years old, has not been brought into force?

Ms. MacCormick: I am afraid I do not, sir.

Senator Nolin: With respect to list we have here, in terms of the Payment in Lieu of Taxes Act we are talking about money for municipalities. I do not have, in the list we have here, the content of the specific section of this act, but definitely that is money owed to municipalities. Going through the list, there is also the War Veterans Allowance Act dating back to 1995. That begs the question about where there is there any money there for war veterans.

I think the exercise Senator Banks is proposing is a yearly process by which you would have to bring to Parliament, through your minister, a rationale as to why old dispositions have not been put in to force. It is quite reasonable for Parliament to be instructed after 10 years.

Senator Buchanan: First of all, welcome to Mr. Keyes and Mr. Ricard. However, I wish to particularly welcome Katharine MacCormick, who is from Antigonish, Nova Scotia, and is a graduate of Dalhousie Law School. When I was first elected in 1967, she was probably a baby — or perhaps not even born. During my 13 years as premier, she was a teenager. Therefore, I think her presentation and answers here were excellent, and I have no questions.

Senator Cools: It must be that marvellous salt sea air. I must admit that I have a special affection for Nova Scotia. It goes back to that historical triangular trade. It was all that rum and salt fish — especially to Barbados.

On the question of writing based on Mr. Montesquieu and his whole notion of separation of powers, the British rejected those philosophical and conceptual frameworks of Montesquieu. The British systems opted for a fusion of powers, embodied and personified in responsible government and ministers. The separation of powers theory was rejected in Canada as it was in England. What the English chose to do was to separate personalities holding the jobs and to separate functions, but the powers are deemed to be fused. That is the first point.

The second point, Parliament still remains supreme in Canada. The courts current frolic into parliamentary and legislative arenas is running its course, one hopes. Parliament does remain supreme.

My questions are political questions and really should be put to the minister, who of course can be assisted by his officials. I am somewhat uneasy about putting some of these questions to these very cooperative individuals.

Nevertheless, my questions follow. With respect to those two acts you have just mentioned, I wonder if you could tell me who, how, where and when the decisions were taken not to bring them into force?

Ms. MacCormick: I am afraid I do not have the answer to any of those questions — the who, how, where or when.

They currently exist in the statue book. They are the responsibility of particular ministers. I am not privy to any information, nor, would I suggest, in a position to provide any information on how the decisions might have been made.

Senator Cools: How did you discover that these two bills in toto were never brought into force? What was the process that you employed? Did you do a search? Do you have it on your computer? Or do you go to your official who deals with bringing things into force? How would you have encountered these two bills?

Ms. MacCormick: We have based our research to date on the existence of this book, which is the Table of Public Statutes. The content of this book is put together by the editing and revising group at the Department of Justice, Legislation Branch. In looking through the detail here, at the end of each statute there is a listing of coming into force provisions, as well as a listing of those provisions that are not yet in force. Using that, we put together electronically the list that was circulated to everybody this morning of the provisions statute by statute of what is not yet in force.

Senator Cools: There is a flip side to this — and Senator Banks did not raise it — that is, clauses and provisions in law that are exhausted or have expired. For example, what Justice Lamar called the "Arbour clauses." We had the Judges Act bill before us, and a lot of us had some strong objections to what was being proposed in terms of creating a rent-a-Canadian judge phenomenon across the world. We objected to that, but we were willing to agree to one exception, that is, Madam Justice Arbour. She had already gone off to the UN, and her work there was being supported by order in council here. The bill was still before this committee. The government lost its nerve, did not want to create another order in council, and a Senate amendment provided an exemption from the Judges Act by name to Madam Justice Arbour. She is named individually in the Judges Act. That clause has been expired and exhausted for a while. Why is it still sitting there? I see a relationship between this kind of action, government action coming to Parliament to get what they need, and then choosing their own date to do whatever they want.

The Chairman: Was the clause enacted?

Senator Cools: Yes. The Senate had a lot to say about it.

Senator Nolin: It was not in any clause of the bill nor the Judges Act; it was in the preamble of the bill that we added the understanding that some amendments suggested by the bill were referring to Madam Justice Arbour.

Senator Cools: No. She is named. If you look at sections 55, 56 and 57, you will see it. I was looking at it just a few days ago.

Senator Nolin: I remember, because it was my amendment.

Senator Cools: It is there. This committee worked on it. It is the other side of the problem, which is when these provisions have been put —

Senator Nolin: What happens with those sections that have become elapsed?

Senator Cools: I am wondering how —

The Chairman: Senator, just a moment please. Rather than debate it amongst ourselves, we can find to do that. We have witnesses here. If you have a question, please put it to the witness.

Senator Cools: How do these decisions get made? On the one hand, my colleague says cabinet. However, that is not true; most of these decisions, we have discovered, come through the department, then the minister goes into cabinet. What is the process within the department to make these kinds of decisions?

Ms. MacCormick: I believe you are referring to what we would normally call "spent provisions" of statutes. They are put in place originally, but they only have one significance. With the passage of time, once in force, they are no longer needed.

There is a process under the Miscellaneous Statute Law Amendment Act. That is a joint process of both Houses where provisions like that can be included as a way of cleaning up the statute pool.

Senator Cools: Mr. Chairman, perhaps we could look at that process. We could look at that as an alternative or a way of embellishing the intentions of this bill. I think the intention and the spirit of this bill is excellent.

The Chairman: I think I understand the point you are making, but we would still be relying on individuals from the Department of Justice to give us more information on the point you are making; is that not correct?

Senator Cools: Yes.

Ms. MacCormick: The exercise that we are engaged in as a result of the current proposal in Bill S-12 would not include collecting a list of spent provisions. It would only include those provisions never put in force.

Senator Cools: Some of them have been spent, I am sure, because perhaps they were not deemed necessary after all.

The Chairman: Spent provisions would no longer fall into this category. If we want to go down that road, we will call somebody else to talk to us about it.

Senator Bryden: You said it would take a little time to be able to do the consultation to determine the status of the list that you provided. How much time is a little time?

Ms. MacCormick: That is a very good question. As we have attempted to go statute by statute, we started with Department Justice statutes simply to record exactly which provisions would be caught in the first year of a coming into force, if this bill were to come into force today, for instance. For about four statutes, it took one lawyer about a day and a half to work through the amendments, amendments on amendments, and cross references and consequential amendments that may be in a statute, not in the statute we thought it was in. It is detailed work just to create the list.

Once that list is together, we then have to consult with the policy elements of the various departments concerned, to say: "Why is this not in force?" They then have to put together some kind of research and delve into old records as to the original intent, why it is not in place, and whether there is currently a reason a department would want to object to its automatic repeal.

Hence, if we were to work on this continually over the summer, we would be in a position to come back in September or October, clause by clause, to tell you which ones are there and what they are all about.

Senator Bryden: Those would be the ones affected this year?

Ms. MacCormick: The bulk of what we are talking about would be caught in the first year of a coming into force.

Senator Bryden: The rest would be ongoing?

Ms. MacCormick: Yes.

Senator Bryden: That is not bad, as far as timing is concerned.

The problem that may occur is the same type of problem that occurs in the making of regulations. I had the pleasure of sitting on the Standing Joint Committee for the Scrutiny of Regulations. We often had before us a thick set of documents. Every two weeks, for two hours, we had these documents before us, some of which had been worked on for as much as 10 years, to try to resolve the fact that the regulations that had been created by the department had been found by our advisors to be ultra vires. I will use the simplest situation as an example. The committee was claiming that the statute did not empower them to make the regulation that they had made. It was clearly ultra vires.

The correspondence that went back and forth between that committee and the relevant department, be it Fisheries, Agriculture, Energy, or whatever, can take a very long time.

The Standing Joint Committee for the Scrutiny of Regulations operates under a provision that has been made by executive order. There has been some talk about making it statutory.

The committee has a disallowance provision. If, finally, the committee throws up its hands, declaring that the department has not been cooperative after 10 years, it can introduce something into Parliament, and it is called disallowance. The committee introduces a section that says that a particular regulation is disallowed, and it is debated in Parliament.

It is not a simple matter. The point is that you will have to consult with various departments to find out why something is there, why it has not been implemented, whether there is a chance that it should be kept there because it will be implemented at some point in the future.

You need to take that into consideration in saying that you can do this by the fall. I wish you a lot of luck, unless you get much more cooperation than we did.

Mr. Chairman, that is a good guess as to how much time will be required.

The value of this bill is perhaps to do something similar to that which the scrutiny of regulations procedure does for the regulatory process, for the process of empowering the executive to bring into force provisions of a statute over a period of time for different reasons. Currently, they are merely forgotten. If the statute is not needed, nobody raises it.

This bill would give reason to the department to address the question of whether a statute was still needed. It would be a mechanism to do that.

If you could provide this committee with a list that says, "We find no reason why that 10-year limit should not apply to these three provisions, but with respect to this one we are waiting for Luxembourg to agree to the statute, so we will wait for that" — is that the sort of information you could provide to us?

Ms. MacCormick: That is what we are hoping to provide.

Senator Bryden: That is what you are hoping to provide. We sometimes get off on a wrong tangent.

As we follow the normal course of Parliament, a bill comes into effect when it receives Royal Assent and is published in the Canada Gazette. Correct? That is how it normally occurs.

It is a different thing for a provision to say that a clause of a bill will come into effect on a particular date. We do not need this, except as a reminder to check it from time to time. Presumably, Parliament passed the section that says you have until such and such to implement this. Parliament can also amend the bill to take out that section. The entire bill would take effect as of the time you delete the one that makes provision for a specific implementation deadline date.

Once a year, we would be required to review statutes 10-year-old or older, and determine if they should be amended in a manner that removes the executive authority that was given. Since we delegated that authority to Parliament, we can take it back. I do not see us taking anything away from the executive as mentioned by Senator Beaudoin earlier.

In the days when Parliament was supreme, Parliament gave and Parliament took away. Somewhere within our bicameral system, the House of Commons and the Senate do what Parliament used to do — except that it is all supervised by the courts now. Nevertheless, we cannot stop a piece of legislation from the House of Commons. We delay it for 180 days two or three times but, ultimately, the House of Commons will have its way.

Senator Cools: That is not true. We can defeat bills. We have defeated bills. I have voted to defeat bills.

Senator Beaudoin: Legislatively, we have the same power as the House, except for the constitutional amendment.

Senator Cools: That is right.

Senator Bryden: Within the two Houses, we probably have as much control as the House of Commons and as the House of Lords had.

Senator Cools: No, we have more. We have more.

Senator Joyal: Prior to 1911, yes.

Senator Cools: We can defeat a bill outright.

Senator Bryden: The problem we now have — and this is my own prejudice — is that in 1982 the Constitution Act was created.

Senator Nolin: Do you want the name?

Senator Bryden: We have now the policing power of the Supreme Court.

Senator Cools: The Constitution never gave that to the court. The court took it onto itself.

Senator Bryden: To get to the point I want to make, if we do this bill the way it could come out, we are putting an aide memoire into our system that says that we will review those bills that have a coming-into-force provision that have gone past 10 years to determine what should be done in order that they not merely go on and on. We could do that if we spotted them. We could do it tomorrow. This is just a method to bring this forward to our attention.

Senator Beaudoin: I heard a moment ago that Parliament is supreme. It is not Parliament that is supreme in Canada. It is the Constitution that is supreme in Canada.

I do not have the Constitution with me. I know it by heart, nearly.

Senator Bryden: I agree with that, by the way.

Senator Beaudoin: It is either section 50 or 52 that states that the Constitution is the supreme law of the land.

Senator Cools: Precisely. However, that is a different point from saying where supremacy is in Canada. Supremacy is still with the people, meaning the Queen in Parliament in Canada.

The Chairman: Honourable senators, it is a wonderful exercise to debate all of these issues amongst ourselves. However, I do not think that while we have witnesses here this is the time and place for such debate. The witnesses' time would be better used if we had questions that we could specifically focus to those witnesses. I think Senator Nolin had a question, followed by Senator Joyal.

Senator Nolin: It is not a question. It is just a correction for the record. I misled the witnesses.


Senator Nolin: I would like to correct something I said earlier. The Judges Act does contain section 56.1, referring specifically to Madam Justice Arbour. However, that section has now lapsed since Justice Arbour no longer sits on the Court of Appeal for Ontario.


Senator Cools: I thank you for that. Senator Bryden moved that amendment in the chamber. I had no doubt where the amendment was, and it was in those sections of the Judges Act, which essentially forbids judges from doing any other kind of work, other than judicial work. It was an exemption to that particular section, and it was particular and peculiar to Justice Arbour.

That was the point. It was just that Senator Banks has done us a great service and is causing us to think and to wrap our minds around a lot of issues that we have not before.

There is one other point that is relevant to the witnesses here. Parliament passes bills, which become laws, and then Parliament has no mechanism of either recording what has happened or even keeping track of the process. As the institutions of governance developed, government grew like Topsy and mushroomed into multi-billion and multiple hundreds of staff. Parliament did not. One of the good things that might come out of this dialogue is that we may develop a mechanism here, within our system, of keeping track of these kinds of provisions, or similar provisions, within different acts and begin to build up what I would call a bank of it, or some information, and not to be so reliant. The problem that this particular Parliament has, more than most in the world, is that it is so terribly dependent on government.

Senator Joyal: I should like first to say to Senator Bryden, who has the merit of attending the Standing Joint Committee for the Scrutiny of Regulations, that it is something that the Senate does best. I am not saying that in any critical way of the other place, but it certainly is a democratic exercise that is something that is very important to us all as parliamentarians.

My question follows up on the point Senator Bryden has raised, which is the way this committee has dealt with in the past miscellaneous acts. I think Senator Beaudoin and Senator Nolin were in attendance at the last exercise we did here, and I see the researcher here, too, who was part of that the exercise then. We received a report of various acts and a recommendation to nullify them, to erase them from our statute books. For each one, we make a qualification. With respect to some acts, we have no objection to having it automatically erased or deleted. There are some whereby we object that they be deleted. There are then those on which we want additional information from the administration before we assent to those deletions.

I remember very well having large stacks of analytical documents. Hence, when we take a stand on a report, we know exactly what we are doing, because we are provided with the reasons, and we can, by ourselves, evaluate if those reasons are acceptable to us. It is a common exercise. I remember very well raising my hand with respect to two pieces of legislation on which I wanted additional information.

I think that is a satisfactory process, because we know what we are doing. It is not automatic. I raised this last week — section 2 is a clause de péremption automatique. I do not know how they translated that from French.


Just because of time past, the section automatically lapses or becomes irrelevant. That is where the point made by senator Bryden is important, if we could establish a similar process under section 2.


In the miscellaneous act we have a reasoning why this is useful, why this is not useful, why this section of that act deals with matters of an international or interprovincial nature, but then we would be in a position to say okay.


Senator Smith is concerned with the automatic aspect of it.


Some of the points also occupy the minds of Senator Smith and Senator Bryden, and it points out to us that what we are doing is not something blind, that it is something with information.

Hence, I believe the objective of the bill is sound, but we have to be sure we have an approach to the implementation of the objective of the bill that recognizes the points that you have raised in the three first points of your opening remarks. The fourth one has been dealt with. I think the author of the bill has agreed to deal with it.

I wonder whether, for our next meeting, we should not have from our researchers a briefing on the approach that we should follow on the miscellaneous act to see how we can recognize that approach in that bill, so that we are satisfied with points that Senator Smith and Senator Bryden have made. That would be helpful for us to move to the next step in our discussions.

Senator Nolin: Just on miscellaneous, if I may, we have some rules that we have decided to apply in this committee, dealing with those miscellaneous clean-up bills. Nothing substantive is to be dealt with by those bills. However, now we are dealing with quite substantive rights. There is a strategy, in some cases, I think, by the government for all kinds of good reasons not to enforce. I understand your point. We can have a transfer of information from the Department of Justice informing the committee on the rationale behind the various sections that are not in force.

Senator Joyal: If we read clause 2, it says the following:

In every calendar year, the Minister of Justice shall cause to be laid before the Senate and the House of Commons, on any of the first five days on which that House sits, a report listing every Act of Parliament or provision of an Act of Parliament that is to come into force on a day or days to be fixed by proclamation or order of the Governor in Council...

The key words are "a report listing every Act..." If it were merely a list like the one you have provided to us today, it would be not be sufficient for me to know what I am doing as a legislator. That is quite clear from all the questions that have been put to you and your colleagues, Ms. MacCormick, as to why the Motor Vehicle Fuel Consumption Standards Act or why the Canadian Heritage Languages Institute Act has not been proclaimed. Before we abolish those two statutes, I would certainly want to know the scope of the legislation, why the respective ministers through the last 10 years have not proclaimed the Canadian Heritage Languages Institute Act. This is an important issue in Canada. We all know that heritage languages is a sensitive issue in Canada for the Aboriginal people. I would not want to see a statute like that being automatically repealed simply because it has been 10 years.

The report will have to include a list of reasons — for instance, there will be an amendment. The report must be detailed, to include explanatory notes why bills, sections or provisions have not been proclaimed. Then we would satisfy ourselves on the basis of the report that we can say yes or we can say no. There is a problem with the way clause 2 is drafted.


It is a sunset clause.


It is automatic. Ten years, boom. Senator Beaudoin is concerned with the Criminal Code, which I believe is a very valid concern. Therefore, we must have a process attached to this that will give us the information we need. You have a big compendium of legislation and you know which ministers are responsible for those bills. Certainly, over the years they can come forward with an explanation, and then we can advise as to whether that should be done or not. We will then have a much more satisfactory approach. We reach the objective of cleaning the act, but we do it in a sensitive way, a way in which we pay respect to the objective and can judge for ourselves.

The Chairman: Senator Joyal, you are making a good point. There are a number of different ways of approaching this problem. One of them, certainly, at first blush, appears to be to incorporate in the legislation an expiry date. If we were to use more modern terms, supermarket-type terms, we could call it a best-before date. We can and we should explore those things. It is also important, emanating from the comments that you are making, that we have the miscellaneous statute law amendments people from the Department of Justice come in and speak to us so that we can we get their input and their understanding of where this is all going.

Senator Bryden: I have a supplementary question. It may be the case that, like the other process that we go through, we will end up with some that clearly were just forgotten, that they have no relevance. People such as yourselves would appear and say that you are satisfied there is nothing there. There may be others where, in fact, it is quite clear that there is good reason that you could give us, or whoever would be here representing the department, as to why they should be kept.

There may well be an area in the centre where what happens is, either you, the Department of Justice, or we give the department notice that we need to know why the operation of the 10-year limit should not apply to this section, and we need to know it from them or else it will apply. It is a way of getting action. So you have a clear case of when it should work and a clear case of when it does not work.

Then there is the area in the middle where, indeed, if what is happening is that a new or a different administration is trying not to face Parliament with it, they are just going to let it die so they do not have to pay up, or whatever, they have to come before us at least and indicate that.

Senator Nolin: Clearly, it could not be labelled as "national interest."

Senator Bryden: Does that sound as though it makes some degree of sense?

Senator Joyal: That would meet your concern, which is the one expressed in your first three points, and the objective of the bill that Senator Banks is proposing, and the concern that we share around this table about finding a mechanism that meets your concern and satisfies the overall objective of the bill.

Ms. MacCormick: The logic of categories like that works. I am having some difficulty in putting together in my own mind the criteria that would operate as an automatic exemption from the guillotine, if you will. You have described those things that should automatically go because they cannot be justified; those that should be automatically exempted, by what criteria I am not clear. I believe we can make a case probably on an ad hoc basis, depending on the provision, and that means there is no middle ground.

Senator Joyal: We are just trying to find a way of classifying, which is essentially what we are trying to do, or categorizing the various statutes and provisions that we have here, and trying to find a way to do that coherently, and in a systematic way, so that anyone — it might be another set of senators — who looks into it will understand immediately what it is all about, as we do with the miscellaneous bill. It is quite easy to understand how we have approached it. Perhaps you were not part of those discussions, but I think we could do that next time and revisit the procedure and see if the procedure is a good model for us to work on.

Senator Beaudoin: At the next meeting, we should come back on one point that we have to solve, that being that the latitude of the executive cannot be eternal. It goes against the main principle of our parliamentary system. As I said at the beginning, the power should stop the power somewhere. The executive is not 100 per cent powerful. It is a good thing that the executive be important and solid, but the latitude of the executive here, whether it is a relegated power or not, is not eternal. We have to do something, and if we have no jurisprudence on this, perhaps it is about time that we create our own precedent here.

We are the legislative branch of the state; therefore, I think we have the occasion to modernize our Constitution in this area, that the executive and the legislative act together but with limits somewhere. We should try to focus on this at the next meeting, because it is important.

Senator Joyal: Maybe then what we should do is see if it is appropriate to have a purpose clause added to the bill, on the basis of the reading and study we are going to do on the fire brigade union there, and see if there is a principle there that is fundamental to our system of government, as recognized in the preamble of the Constitution Act, 1867. We are going to have a system similar in principle to the one of Great Britain. There is, in the preamble of the Constitution Act, 1867, the recognition of constitutional principles. I would have to read the fire brigade union case, keeping in mind the context of Canadian system, as you said here, to see what we could do, what we should do and see if we come to a conclusion if we need to put it in the bill somewhere.

Senator Beaudoin: I am sure that we need an article on this point.

The Chairman: Thank you, senators and our witnesses. Thank you for attending here this morning. We will be having further hearings and hearing from further officials from the department. We may indeed have one or some of you back again. Thank you for taking the time to be with us this morning and for sharing your thoughts.

The committee adjourned.

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