Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence, June 19, 2003
OTTAWA, Thursday, June 19, 2003
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-24, to amend the Canada Elections Act and the Income Tax Act (political financing), met this day at 10 a.m. to give consideration to the bill.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: You will recall that last evening during our study of Bill C-24, a number of questions arose as to whether in certain clauses the English and French versions of the bill amounted to or represented the same things. Legal representatives from the law clerk's office were called in on short notice to assist us. We apologize for the short notice. As they had not had time to study all of the clauses in question, we asked them to look into the matter last night and provide us with some feedback this morning.
Mr. Audcent and Mr. Patrice are back this morning ready to offer their advice; we thank you for coming back.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: In the course of your study yesterday of Bill C-24, the committee asked me to review eight different provisions from a drafter's perspective. Of the eight, five contain errors and raise the question of whether they can be corrected clerically or must be corrected by amendment. The remaining three provisions involve apparent discrepancies in the English and French versions and raise the question of whether each language version in its own way adequately communicates these same legislative commands.
I was very appreciative of your decision to afford me the chance to review the provisions separately and report back to you today. I came to the Senate over 20 years ago from my first career as a tax lawyer, and the provisions of the Canada Elections Act under Bill C-24 are complex enough to have generated in me a sense of nostalgia.
Fortunately, the two Privy Council officers who were your witnesses yesterday, Ms. Michèle René de Cotret and Mr. Stéphan Perrault, were good enough to come back to my office and meet with Mr. Patrice and myself after your meeting yesterday. Their expertise saved us many hours and I thank them very much for their help.
I will walk you through each provision in turn. However, in answer to Senator Andreychuk's preliminary question, four of the provisions we examined are unchanged from the first reading copy presented by the government. This includes one provision involving error and all of the provisions involving stylistic issues.
We will be looking, in turn, at pages 31, 33, 34, 56, 63 and 80 of the copy of the bill as passed by the House of Commons and I would invite you to begin at page 31.
Honourable senators, we will be looking at the English version, line 34, and in the French version, line 35. An examination of paragraph (a) that appears on these lines quickly reveals a discrepancy between the English and French versions. The English version contains a reference to subparagraph 405.3(2)(b)(i) while the French version refers to sous-alinéa 405.3(2)(b)(ii).
Since both cannot be correct, we can conclude that there is an error. However, we do not know whether it is the English version or the French version that is in error. As we know, the error can only be corrected clerically if there is only one possible solution. That is what we must determine.
The purpose of 405.1(2), in which the error appears, is to provide for a calculation by which the amounts set out in the opening words of the subparagraph are multiplied by an annual inflation adjustment factor, with the resulting amount being used to effectively amend the provisions set out in paragraphs 2(a), (b) and (c).
If we begin our analysis by testing the hypothesis that the English version is correct and the French version is in error, the opening words in paragraph 2 will require us to multiply both amounts set out in paragraph 405.3(2)(b) by the annual adjustment factor. When I say ``the opening words,'' I am speaking, for example, of lines 27 to 31 in the English version.
The amounts set out in subsections 404.1(1) and 405.3(2) and paragraph 405.3(2)(b) shall be multiplied by the annual inflation adjustment factor referred to in subsection (1) and the resulting amounts apply
Paragraphs (a) and (b) will then instruct us to use the resulting amounts in paragraph 405.3(2)(b). At the top of page 33, paragraph (b) begins with ``the contributions do not exceed...'' In this way, the annual amount for registered party recipients set out in paragraph 405.3(2)(b)(i) will be adjusted by paragraph 405.1(2)(a). The specific amount for independent candidates set out in paragraph 405.3(2)(b)(i) will be adjusted by the amount set out in paragraph 405.1(2)(b).
Since this creates a comprehensive legislative scheme, it is possible that the English version is correct. Let us test the reverse hypothesis that the French version is correct and the English is in error.
The result would be that the reference to paragraph 405.3(2)(b) in the opening words of paragraph 405.1(2) would require both the amounts set out in 405.3(2)(b) to be multiplied by the annual adjustment factor. On page 33, both of those amounts would be multiplied, but only the amount set out in paragraph 405.3(2)(b)(ii) would be adjusted.
At a matter of legislative logic, there are two problems. First, the legislator is requiring a calculation to be carried out that will not be used.
I refer to the multiplication of the amount set out in 405.3(2)(b)(i) by the annual inflation adjustment factor. Second, the legislator would be providing for two adjustments of the amount set out in 405.3(2)(b)(i). One of these adjustments would be caused by paragraph 405.1(2)(a), the other one by 405.1(2)(b). Since the purpose of each calculation is to provide for an inflation adjustment, one of the two calculations would be superfluous.
For these reasons, I am led to the inevitable conclusion that the French version cannot be correct. Since the English version respects the legislative logic of the act while the French version leads to unnecessary calculations that will not be used, I can only conclude that there is one possible solution, which is to correct the French version to reflect the English one.
I can also conclude that the error can be corrected clerically.
I am in a position to advise this committee that the law clerk of the House of Commons is prepared to join with me to make the clerical correction in question.
Next, honourable senators, we turn to page 33, where I would invite you to look at English line 23 and French line 25. An examination of the opening words of proposed subsection (2.1) quickly reveals a discrepancy between the English and the French versions. The English version refers to (2)(b)(i) and the French version refers to à l'alinéa (1)a). Clearly there is an error.
A quick check will reveal that while the English reference is possible because there is a subparagraph (2)(b)(i), the French reference is not because there is no subparagraph (1)a). Furthermore, the subject matter of the English reference makes sense.
For this reason, I conclude that there is only one possible solution, which is to correct the French version to reflect the English version. I can also conclude that the error can be corrected clerically. I am in a position to advise this committee that the law clerk of the House of Commons is prepared to join with me to make the clerical correction in question.
I now ask senators to turn to English line 38 and French line 41 on the same page. An examination of (2.2) reveals a discrepancy between the English and the French versions. The English version refers to proposed subsection (2.1) while the French version refers to (1.1). Clearly, there is an error. A quick check will reveal that while the English reference is possible because there is a subparagraph (2.1), the French reference is not possible because there is no subparagraph (1.1). Furthermore, the subject matter of the English reference makes sense.
For this reason, I conclude that there is only one possible solution, which is to correct the French version to reflect the English version. I can also conclude that the error can be corrected clerically. I am in a position to advise that the law clerk of the House of Commons is prepared to join with me to make the clerical correction in question.
Honourable senators, I would invite you to turn to page 34 and look at English line 1 and French line 1. The opening words of proposed subsection (2.3) quickly reveal a discrepancy between the English and the French versions. The English version refers to subparagraph (2)(b)(i), while the French version refers to à l'alinéa (1)a). Clearly, there is an error. A quick check will reveal that while the English reference is possible because there is a subparagraph (2)(b)(i), the French reference is not possible because there is no subparagraph (1)a). Furthermore, the subject matter of the English reference makes sense. For this reason, I can only conclude that there is only one possible solution, which is to correct the French version to reflect the English version. Given this conclusion, I can also conclude that the error can be corrected clerically. I am in a position to advise this committee that the law clerk of the House of Commons is prepared to join with me to make this clerical correction.
There is one more error of this nature, honourable senators, at English line 12 and French line 15 on page 34. An examination of proposed subsection (2.4) reveals a discrepancy between the English version and the French version. The English reference is to proposed subsection (2.3), while the French reference is to (1.3). Clearly, there is an error. A quick check will reveal that while the English reference is possible because there is a proposed subsection (2.3), the French reference is not possible because there is no (1.3). Further more, the subject matter of the English reference makes sense. For this reason, I conclude that there is only one possible solution, which is to correct the French version to reflect the English version. I can also conclude that the error can be corrected clerically. I am in a position to advise this committee that the law clerk of the House of Commons is prepared to join with me to make the clerical correction in question.
The next item, senators, is on page 63, where we will look at English lines 10 and 11 and French lines 9 and 10. Honourable senators, Mr. Patrice dealt with this provision yesterday with you and gave his opinion that the difference between the English and the French versions was merely a stylistic difference between the languages that could not lead to a difference in meaning because there is only one electoral campaign return for candidates. In his view, each language version is clear and each says the same thing. There is no need for a correction.
Finally, honourable senators, there are two similar proposed sections found on page 56, at English line 3 and French line 2, and on page 80, at English line 8 and French line 7. I propose to deal with these two changes together because they both involve the same issues. These two provisions involve an apparent discrepancy between the English and the French versions. They raise the question of whether each language version in its own way adequately communicates the same legislative commands. Let us use page 80 as our reference because the same logic prevails for each of them.
We must begin at the bottom of page 79, where proposed section 478.3 (1) states: ``...financial agent shall provide the Chief Electoral Officer with an updated version of any document...'' The French version states: ``...l'agent financier produit auprès du directeur général des élections une version modifiée de tout document...''
In proposed subsection (2) at the top of page 80, the English version makes reference to the ``updated versions of the documents.'' Although it is not said, it is implicit that this reference is to the updated versions of the documents mentioned in proposed subsection (1). That is important, as we will see.
In proposed subsection (3), the French version refers to ``la version modifiée du document.'' As in the English proposed subsection (2), it is not said expressly but it is implicit that the reference is to the ``version modifiée du document'' mentioned in proposed subsection (1). This is all within the same section of the act and so it is acceptable drafting. However, in my view, there is another problem to be examined, honourable senators. It concerns the reference in the English version of proposed subsection (3) to ``an updated version of a document referred to in subsection 478.23(1).'' The French version makes implicit reference to, which I believe to be a proper reference, a document mentioned in proposed subsection (1). If you look at proposed subsection (1), you will see that it does not apply to all documents referred to in proposed subsection 478.23(1) but only to a subset of those documents, being those related to specified claims. I am looking now on page 79 at English lines 36, 37 and 38, where it states: ``...an updated version of any document referred to in subsection 478.3(1) that relates to a claim involving...'' It is a subset of the documents referred to in 478.23(1). When we look at proposed subsection (3), we see that the reference is to the entire amount of proposed subsection 478.23(1) and is not limited to the subset.
The issue is whether the legislative command in the English version in proposed subsection (3), where it states: ``...shall provide an updated version of a document referred to in subsection 478.23(1)...'' is not too wide, because it should refer to only the subsets referred to in proposed subsection (1). If it were considered to be too wide, it would be the proper subject of an amendment.
However, there is a further consideration to be taken into account. Proposed sections 435.35 and 478.23 use exactly the same language as the existing section 455 of the act. The idea is to have the same regime that is already applicable to candidates by virtue of section 455 apply to leadership contestants by virtue of proposed section 435.35 and to nomination contestants by virtue of 478.23.
If you were to change the wording of proposed sections 435.35 and 478.23, the result would be one language construct for candidates and another for leadership and nomination contestants. When Parliament uses the same language, the courts look for the same result. When Parliament uses different language, the courts look for different results.
For this reason, I have come to the conclusion that you are best advised not to amend the English version of proposed sections 435.35 and 478.23 but to let it be understood by its context. The context is adequate, as it includes the proposed section, the French version of the proposed section and the other two proposed sections.
Senator Kinsella: I am sure that I speak for all honourable senators in thanking our law clerk and his colleague for their counsel and hard work late into the evening, no doubt.
Did I hear you testify that you had people from the PCO advising you?
Mr. Audcent: Yes, you did, senator.
Senator Kinsella: This advice is totally independent, or is it coloured by advice from PCO?
Mr. Audcent: Senator, I work for the Senate, and my advice is my advice to you. However, these people know the act and the bill, and I do not. I had a cold start on this particular act and bill yesterday. Without their help, I would have had a much harder time understanding these provisions. They were able to tell me what the provisions were for and the goal. I felt I was very well served.
Senator Kinsella: Mr. Audcent, you advised us this morning that in your analysis, some of these provisions could be corrected clerically. Last evening, you advised us that when faced with these kinds of problems there are various solutions available to the house.
One option is to correct things clerically. There are other ways to proceed. I cannot remember the second way, but the third way was by amendment. Could you remind me of the second way?
Mr. Audcent: You could do nothing, in which case the law clerks would do the clerical ones. As you have now looked at it, I am not sure that should happen, but that could be one solution.
The second solution is this committee could adopt an order instructing me to make the corrections to which the law clerk of the House of Commons has already agreed. Of course, it is already out of his House. You know that that can be done, so you could put it in your report that you have instructed me to make the required corrections.
A third possibility is that you could do an amendment.
Senator Kinsella: Amendment is clearly one of the options, honourable senators, that we are being advised is available to us. We are a house of review facing proposed legislation that contains a number of errors. The testimony is that we have a number of proposed sections that contain errors. It is my opinion that this committee should make corrections as we go through the bill clause by clause. Otherwise, why are we here? We are here to make absolutely certain that the bill is saying what we want it to say.
My question for the witnesses: Is it your experience that these kinds of errors have been caught by the Senate committee and corrected by the committee?
Mr. Audcent: No, I do not think so, honourable senators. My personal experience is that most of the time when it comes up in committee that there are clerical errors, the committee will adopt an instruction to me to make the change.
Senator Kinsella: There have been some cases where we made the correction in committee, because I recall some in which I was involved.
Mr. Audcent: I am sure that is possible, yes.
Senator Kinsella: Last night, Senator Andreychuk placed on the record the concern that this committee has had in the past about receiving sloppy work from the other place. There is a consensus in the Senate that we do play our role in ensuring that this is minimized.
In your examination of these particular amendments, did you have an opportunity to trace the history of those clauses through the House committee? For example, the amendment that we are dealing with on page 31, did you see in the House of Commons committee discussion that indeed it was a government amendment brought in to correct an error in the bill, and in making that amendment to an error that they had apprehended, they caused this new error?
Did you have the time to look back at the history of that particular clause? More specifically, did it get fouled up, which is my assessment, in the House committee?
Mr. Audcent: No, I did not go back into the history. Pursuant to Senator Andreychuk's request, I obtained the information, but I obtained it from the PCO officials.
Senator Beaudoin: I understand that we should choose the amendment process, if I follow your argument. It is not a question of style. It is not a question of a purely clerical matter. It is a question of substance, because it is the same error in all the cases.
To me, it might be preferable to do the amendment in this committee.
[Translation]
Senator Robichaud: I would like to thank our witnesses who, I believe, have accomplished fairly complete work. Based on their evidence this morning, I am satisfied that the corrections, if we can designate them as such — as they are not substantial corrections — can be made through an order instructing our counsel to take the necessary steps with the House to make the corrections, as proposed. It's not necessary to enter into a process to amend all the articles if the corrections can be easily made, as suggested by our expert witnesses.
[English]
Senator Andreychuk: Mr. Audcent, the question I have is this: How on earth will the people across Canada be able to administer this? It is like the Income Tax Act. For the thousand dollars, you will have to hire someone to keep the books and keep it straight, and every paragraph refers to three other paragraphs. If this is supposed to promote transparency, I am not sure we will succeed, but that is an editorial comment.
You had one on page 31, two on 33 and two on 34. All of those you justified in a quite intelligible way, pointing to the logic of one language interpretation and, consequently, the lack of logic in the other one. Consequently, there is only one conclusion to which you could come. That made sense to me.
However, when you reached the ones on pages 56 and 80, you had us jump through several hoops to come to the conclusion that they are acceptable. It took more than just an analysis of the logic or lack of it. You had to apply an understanding of the application. In other words, the wording did not speak clearly to you. You had to look at it in context. You had to try to figure out what they meant.
It seems to me that that goes beyond a clerical error. A clerical error should be someone picking the page up, and, with some knowledge and understanding, being able to say, ``This follows through and it makes sense. The other language version does not follow through because it refers to non-existent sections,'' et cetera. Anyone could reasonably come to those conclusions.
However, on pages 56 and 80, you need an opinion to come to a conclusion. That says to me that someone else could reach a different opinion, if we are applying more than face-value logic to it.
Mr. Audcent: That is right, honourable senator. The ones that you are referring to on pages 56 and 80 are not clerical errors. There is no proposal to make any change to the parchment. The proposal is they would receive Royal Assent in the form they are in.
The question is not whether there is a clerical error that I as law clerk could change. The question is whether the language of these proposed sections is adequate for you to send forward to the Canadian public and whether the Canadian public can be governed by that language.
If you will recall — because it is really two similar provisions — your concern yesterday was fundamentally that the French version did not have the precision of the English. I pointed out to you that the English version has exactly that same level of precision in another place. Therefore, it is an acceptable level of imprecision in the French version, and yes, people will understand what it means.
I pointed out to you something you did not discuss yesterday, which is that the provisions of the English version seem to be overly broad. The issue is do you want to narrow it down to the subsets. In addressing that question, it is important to remember that these two provisions track the language of a third provision that is already in the act. Parliamentarians have already said, ``This is how we want it to read.''
The issue is if you were to change it, you would end up with an act in which the three provisions would not be the same. It would have the old one in one form and the two new ones in a different form.
My point was you would be inviting the courts to look for a different result if you use different language. Since the intention is for the three regimes to be the same and one is already in place, you are probably better off to use the same language.
Senator Andreychuk: As usual, you are two or three answers ahead of my questions. You are absolutely right. The first were clerical. With the others, you are inviting us to conclude that the language as is gives some clarity.
You are inviting us to accept the same sequential logic that you have accepted. What I am worried about is the very fine lawyers coming out of law school these days who will take it at face value, not knowing the discussions we have had here. They will look at it and perhaps wish to say that the legislative intent was to have a different result. You are inviting us to leave this.
It seems to me we need clarity. We need to be sure that you cannot come to two different conclusions, that we are not inviting unnecessary litigation, and what is more, we want people to be able to comply with this proposed legislation.
If there were any doubt, as there appears to have been around this table, would it not be better to ensure clarity rather than to leave it open to an interpretation, as you suggest? An invitation to interpretation could lead to another interpretation, as you well know.
If we are having that struggle with this proposed section now — and some of us have seen it differently from how you are inviting us to see it — would it not be better to clean it up and ensure that we are all singing from the same song sheet?
Mr. Audcent: I think everybody would agree that clarity is the goal of Parliament in order to speak as clearly as possible to the public so they can understand the laws that govern them.
Having said that, perfection is not always possible in this world. I think I have explained to you that you will not be able to get a perfect result in this case. The reason is that the provision governing candidates is already in the act and not before you. You can play with these two new provisions governing leadership and nominations, but not the one governing the candidates. The question is how will you create the best possible act in the end? Will you try to have three similar regimes, or will you try to amend the language here to make it perhaps a little clearer, but at the risk of creating an imbalance in the total picture of the act?
Senator Baker: I would like to slightly disagree with something that Senator Andreychuk said, that is, her suggestion that the proposed legislation must be precise and clear or it may lead to unnecessary litigation.
Yesterday, on a different subject all together, I was looking at the recent Supreme Court of Canada decision regarding the fishery. Interestingly, it appears that the Supreme Court is looking more than ever at the minutes of these meetings that we have. I have shown Senator Beaudoin where he has been quoted many times in decisions by the Supreme Court. I was looking at this sentence here:
A review of the minutes of the proceedings of the committee and parliamentary debates in Hansard offers little insight into the intention of Parliament in making this change in the forfeiture provision. In fact, no references were made to this specific provision in either the committee hearings or the parliamentary debate that preceded its amendment.
Then, of course, the Supreme Court of Canada goes on to examine exactly what Parliament meant. They took Driedger's Construction of Statutes and examined the grammatical and ordinary sense of the clause, the sense of the particular section of the act, the intent of the act, and then what they thought would be the intent of Parliament, in examining what is wrong with it.
I was also looking yesterday at a decision that examined a committee hearing involving a rather significant change to the Criminal Code in 1997. The judge says this:
A review of the Debates and Proceedings for 1997 discloses that section 487.3 was tacked on to a bill relating to major and unrelated Criminal Code amendments. Bill C-39 was introduced and passed into law in a very few days immediately before the House of Commons was dissolved. There was no reference or debate concerning section 487.3 at any stage of the parliamentary proceedings. Parliament passed a major amendment to the code in response to the Feeney decision of the Supreme Court of Canada. This Bill, C-16, was also passed under severe time constraints. The bill made a consequential amendment to section 487.3 respecting the sealing of information related to dwelling-house warrants. Except for a technical amendment made in the committee, there was no reference by any Minister to the provisions of 487.3 and, in the result, it appears that Parliament enacted 487.3 as drafted by the Department of Justice without debate or comment.
Mr. Chairman, I hate disagreeing with Senator Andreychuk, but I think that even where there are variances between the English and the French, where there is perhaps not clarity, the courts are consistently now looking to these committees and examining exactly what was said here, and then they use that information in pronouncing judgment. That is why I think that this committee and these witnesses are doing an important job in greatly clarifying what is meant by the proposed legislation. Perhaps it is then not necessary for us to go through an elaborate procedure to change the exact wording.
[Translation]
Senator Rivest: I would first like to thank the people who did the research. My remark will be rather general. I'm concerned about the fact that the House of Commons and the Senate adopt such a bill in the current circumstances. This bill comes out of nowhere, and there was no mention of it in the Speech from the Throne. It was not submitted to very wide consultation between the different political parties in Canada. In terms of electoral legislation, I feel that the first thing a government should do — this is the practice in Quebec —, would be to table the bill in the House of Commons, providing there is consensus. Here, the bill came up unexpectedly and created turbulence on the government side and disturbed all Canadian parties. Now, we find errors. Our colleagues noted seven or eight drafting error between the two versions. Note that it is always the French versions that have errors. This may be the delinquent side of francophones. I'm a little concerned because there may be other errors in both versions of this bill. Again, this bill came very quickly before both the House of Commons and the Senate, and officers cannot be asked to review it because it's quite a substantial bill. And now, the Senate will adopt this bill which is very important.
I raise this issue as part of our work, and we'll see how the corrections will be made, clerically or by amendment, for the errors identified. Nobody around this table was able to do the systematic work, no more than the officers of the Senate, the House of Commons or the Privy Council. We are going to adopt a bill that was drafted quickly and adopted by both Houses. There is legislative caution, given the importance of this bill.
We should think twice, no matter what the method chosen to correct the errors we note at this time. I believe it would be interesting if the Privy Council officials could take advantage of the Parliament adjournment period to look at it again, and more specifically at the difference between the English and French versions. This would reflect the most elementary caution in terms of Parliament's legislative practice.
We will get back to the five or six elements we identified, but all Canadian people, political parties and individuals who will contribute will want to do so in a safe and clear legislative framework, which is understood by everybody. If we rush the adoption of this bill, we could be entering the unknown, and political parties could have surprises if there are other discrepancies like those identified. We should be cautious.Erreur ! Signet non défini.
[English]
Senator Beaudoin: I would like to come back to one point after the intervention of Senator Baker.
Now it happens that it is French, but it could have been English. This is secondary, in my opinion.
However, there is something that worries me. There are errors in many places. Section 16 of the Charter indicates very clearly that it is not a translation; it is a version. Both versions are equal.
[Translation]
Both versions are equal and must be equal. Don't tell me that drafting is equal. It's wrong, it's a mistake. They said it at least three or four times. It happens to be that the errors are in the French text, but it could be the English text. They say there's an error, another error, and another error. These are very important errors; they are very visible.
At the Department of Justice, we managed to have great teams to draft bills. It's impossible that anything could have been neglected. I won't vote for that. I believe the bill should be amended. Both versions must be equal. There's only one way to do it, and that's by amending it.
We are thinking of giving an order to prominent lawyers. We will order them to correct this. To have both official languages equal, it must be done the same way, with the same talent and with the same result. That's what I think, and I will vote in that direction.
Senator Rivest: You are harsh.
[English]
Senator Joyal: Senator Rivest has raised an issue that needs to be commented on or answered by the witnesses before we move on to other aspects this morning, which is the fact that there might be other errors in the bill. He raised the issue that that matter should be cleared up before we move forward.
[Translation]
Messrs. Audcent and Patrice, as well as the Privy Council witnesses, are present in the room.
[English]
Can you assure us that you have gone through the bill systematically, that you have applied the same criteria to outline the various errors and that there are no more than those that you have outlined in your presentation?
Mr. Audcent: No, honourable senators. Reading bills from beginning to end is not part of our mandate. We could not possibly, with the resources of our office, render that service to the Senate. We respond to questions that are brought to us. If something is raised with us, we deal with it. We simply do not have the resources to go through bills of this size and compare them and see if we have picked up all the errors. That is really part of the legislative process for you and your assistants.
Senator Joyal: Can we ask the same question of the other two witnesses from the Privy Council?
[Translation]
Ms. René de Cotret: We asked to review the entire bill after the errors were found on pages 31, 33 and 34. This was done late last week, and the Department of Justice assured us there were no more errors in the bill.
[English]
Senator Joyal: I want to raise a second point. I certainly concur with Senator Beaudoin that corrections have to be made. We certainly need to get the proper assurance that, if there are errors, they will be corrected. The ones that are clerical, as the legal adviser of the Senate, Mr. Audcent, has pointed out — I do not need to repeat them, but they are 31, 33, 34 and 63 — can be corrected through the usual procedure that we call ``parchment'' errors. We have done that in the past. There is no doubt that has to be done, following the report we heard this morning. I certainly would like to commend my colleagues for having raised this issue, because I think it is part of the overall review process that the Senate must undertake.
I have no problem with 31, 33, 34 and 63 because those are ``clerical'' in the way that it was defined yesterday.
Mr. Audcent: Just for clarity, 31, 33 and 34 are clerical errors, but 63 concerns a stylistic matter and we do not suggest any change there.
Senator Joyal: Thank you for clarifying that, so 31, 33 and 34 are clerical and could be corrected through the usual procedure. When we vote on the bill at third reading, we will have the conviction, as legislators, that those errors will have been corrected. For 63, there is no a correction. There is also 56 and 80. The problem I have personally with 56 and 80 is that if we bring the precision to the bill that has been suggested, we are not maintaining concordance with section 455 of the present Elections Act. What is your response to that?
Mr. Audcent: That is why I suggested that you do not change it but leave it in concordance with section 455.
Senator Joyal: I will go a step further. If we make corrections to the present 56 and 80, what you are suggesting to us is that ideally, we should amend section 455.1 to maintain concordance of the definitions of the documents involved. Am I right?
Mr. Audcent: I do not believe that you are able to amend section 455.
Senator Joyal: You answered the question I want to get at. If we were to change 56 and 80, ideally, you suggest that we should change section 455 at the same time to ensure that there is no inconsistency in the act itself.
Mr. Audcent: Yes.
Senator Joyal: As you said, and you were ahead of me, 455 is not before us. In other words, it is not included in this bill.
Mr. Audcent: That is right.
Senator Joyal: In other words, you say that if we amended 56 and 80, we would introduce into the original act some kind of inconsistency with section 455.1, whose object is essentially the same list of documents that we have in 80.
Mr. Audcent: I made that point, yes.
Senator Joyal: In addressing the issues and being good legislators, as Senator Beaudoin suggested to us, what is the process for us to make those corrections?
Mr. Audcent: My suggestion to you was that you not make corrections.
Senator Joyal: Yes, but suppose we want to make corrections. How can we address that, or how can we do this?
Mr. Audcent: You could get an undertaking from the government to make a correction the next time that it amends this act or to bring in an amending bill immediately.
Senator Joyal: In other words, we would need, ideally, two things: Either a commitment from the government to amend the bill itself, pages 55, 56 and 80, or we could have a new bill under a government initiative that would address section 455 per se in the original act?
Mr. Audcent: Yes.
Senator Joyal: There are two ways to address this to avoid the inconsistency that would result if we amended pages 56 and 80 and not section 455.
Mr. Audcent: Yes.
Senator Joyal: Where is the government then?
Senator Andreychuk: Was it intending to have inconsistencies?
Senator Joyal: What we need to address is pages 56 and 80, since it seems there are two ways to do so. Our law clerk, our legal adviser, has suggested that we not create an inconsistency in the original act, and I do not think any of us, as good legislators, wants to do that. There are two possibilities, as I understand it. The government could commit to making the adjustment as soon as possible, and/or the government could introduce a bill. However, the other place is not sitting presently.
Mr. Audcent: I think you have to address another issue first, which is your own assessment of whether the correction is needed. I have raised an issue with you about the wording. It is certainly before you for consideration as to whether this wording needs correction, but I am not satisfied that it does. I pointed out that the language is not perfect, but that does not necessarily trigger a need for an amendment. I think that perhaps you would want to hear from the people who administer the act on whether the language on the substance of that issue would be improved.
Senator Joyal: In other words, there is another option, which is to not do anything because you feel that it could still be interpreted in a consistent manner in the context of the entire act?
Mr. Audcent: In fact, I suggested that it would be so interpreted.
The Chairman: I want to be perfectly clear, Mr. Audcent. Is it your evidence that subsection 478.3(3) is fine as it is written?
Mr. Audcent: Is it fine?
The Chairman: There is no problem with it?
Mr. Audcent: No. I think it is somewhere between what you are suggesting and what Senator Joyal is suggesting, unfortunately.
The Chairman: I will rephrase it. It is workable as written?
Mr. Audcent: That would be fair; yes, that is my evidence, that it is workable.
Senator Joyal: In his answer, Mr. Audcent has mentioned that the people who administer the act have administered a similar provision. They have already administered section 455 with exactly the same kind of original French version, to avoid the use of the word ``translation'' — as Senator Beaudoin has said, one is not the translation of the other. Both have their own life. My question is, was there any problem of interpretation, to your knowledge, with the present section 455 of the act?
Mr. Audcent: I did not speak to the officials, so I cannot answer for them. I did ask the officials from PCO, who are with me, whether they were aware of any jurisprudence. They said this is the sort of provision that does not come up for judicial decision and there would not be any jurisprudence on the question.
Senator Joyal: I see the legal adviser of the Chief Electoral Officer. Could we ask him to come to the table?
The Chairman: Absolutely.
Mr. James Sprague, Senior Practitioner and General Counsel, Elections Canada: I will be addressing the question with respect to the interpretation of the existing section 455 and how we would read the proposed sections that are in question right now. With respect to have there been any difficulties with the particular issue at hand and the interpretation of the existing section 455, the answer is no. There is no jurisprudence because we have not had an issue with respect to the administration of that section. When you look at the proposed sections in context, you have to realize that what you are talking about is essentially a return that consists of a return, an auditor's report and two declarations, by the financial agent and by the person whose document it is, saying that these statements are correct.
What the provisions in question are saying — whether in the context of a leadership contestant, a nomination contestant or a candidate — is when you file a return, which consists of your return, the auditor's report on the return and the two statements saying that this is correct, it may include a claim that has not yet been paid. It may not have been paid for a number of reasons.
The proposed sections provide that if you pay this claim legally according to one of the reasons delineated there — you have paid it out of time because the person to whom you owed the money died and you got an extension, or you got an authorization from the Chief Electoral Officer to pay it, or you got an order from the court to pay it, or you resolved a lawsuit with the person to whom you owed the money so you paid it — you are required to update your return. The provisions — subsection 1 in each case — say you have to update the relevant parts of the return.
Since there is only a return, an auditor's statement and the two statements saying it is correct, essentially, you will be correcting the whole thing, because subsection 2 says you do not have to file the auditor's return. You will correct your return, saying this is now paid, and you will put in the two new statements: I am the leadership contestant, or the nomination contestant, and I am saying this is correct; and I am the relevant financial agent for the person and I am saying it is correct. You will file those documents under subsection 1; and then subsection 3 says the documents that you had to file under subsection 1 must be filed within the time that is set out in subsection 3. We have not had any problems in interpreting this. I am not aware of how else we would interpret it. Is that of any assistance?
Senator Joyal: Yes, it answers my question. I think the witnesses from the PCO are here too. I saw from their head nodding that they did not have any problem with 455.
Ms. René de Cotret: That is correct, senator.
Senator Joyal: That is correct.
Ms. René de Cotret: I am with the Privy Council Office, and I do not have a problem with the interpretation given by Elections Canada to the way they apply the act.
Senator Joyal: Do you mean in relation to section 455?
Ms. René de Cotret: That is correct.
Senator Andreychuk: Ms. René de Cotret, we are being told there are three categories; one is in section 455 and two are in this bill. As I understand it, we could leave it as is if the intention of the government was to have all three categories treated alike. Where in the bill do I find the principle that all three have to be treated the same?
Ms. René de Cotret: You will find it, senator, implicitly by reading the whole of proposed section 435, which deals with leadership contestants, and the whole of proposed section 478, which deals with nomination contestants; and comparing them to the whole of sections in the 400s that deal with candidates. You will see that the vast majority of provisions dealing with the financial management of leadership campaigns and nomination contests are identical to those regarding the financial management of election campaigns of candidates. When we wrote these new provisions dealing with leadership contests and nomination contests we were trying to develop similar, and in most cases identical, rules to those of candidates.
Senator Andreychuk: If it is implicit, then the government has not stated that they want all three categories to be treated equally. I take it from your statement that it has not been explicitly stated; and secondly, that sometimes they are similar and sometimes equal. Why are they similar in some cases and identical in others if you want to treat them all equally?
Ms. René de Cotret: Let me rephrase what I said. We wanted to have parallel systems for all three types of political participants — the candidates, the nomination contestants and the leadership contestants. With respect to financial management, I think you will see that they are all identical. I am being careful because I know of certain variations. For example, the requirement for disclosure of contributions received is much more onerous for leadership contestants than it is for nomination contestants and candidates for an election.
Another example is registration, where you will see that the regime is much more flexible for nomination contestants than it is for both candidates and leadership contestants. There are small variations, but we wanted a parallel system for all these political participants and to extend the parallelism as broadly as possible, especially for the financial management.
Senator Andreychuk: It would be fair to say that you started out with an objective of having parallel systems and then you refine them to the various categories? There are differences?
Ms. René de Cotret: That is a fair statement.
Senator Kinsella: This has been such an informative discussion this morning. I am becoming more concerned as it goes on. I am trying to process this, and saying to myself, what is the context?
I was impressed when Senator Baker yesterday drew our attention to page 99 of the bill, where it speaks of the sanction, and if I understood him correctly, he was quite concerned with the severity of that sanction, seven years. You could run someone down intentionally with your car and you might get two or three years.
Our system is party based and we should be doing everything possible to encourage Canadians to participate in the political process by supporting the party of their choice. The reality is that ordinary Canadians do participate, thank heavens, in the party system, as volunteers, by and large.
They will be at risk because we have this very severe sanction. If we are going to have this sanction, mediocrity in terms of the intent of the law is not good enough. It is not good enough to allow things to be understood implicitly. It is not good enough to have implications flowing from a set of premises. It is not good enough to place at risk the people who make our party system work because of a lack of precision that we could very easily achieve.
The law clerk has identified how we could bring some precision through editorial changes where there are discrepancies.
I believe that in the past, editorial changes were made by unanimous consent, or if an instruction was given, by direct, considered decision. We have identified some errors. I have no comfort level that there are not other errors in this bill. I believe there are other errors and I have only begun to read it.
I am an ex officio member of this committee. You can appreciate it is difficult for us to read every bill in detail, and maybe others have been studying this for some time. I must confess that I have been reading the bill only in the last couple of days. My fear, as one legislator, is that I might not have caught all the errors. We have caught some, but there may be others. We have not had testimony that gives me any margin of comfort.
The bill is being rushed. I am not going to comment on what takes place in the other place. We have this bill here and the push is on to have it rammed through before we go home for the summer.
Without getting into the content of the bill, I have difficulty seeing certain political parties receiving millions and millions of dollars from the taxpayers of Canada when their stated objective is to tear our country apart. If they had a different objective as a political party, I might have a little more comfort. The governing party will be receiving millions and millions of dollars from this process. My own party will be receiving a modest amount. I do not want to go in that direction.
We cannot allow mediocrity to take hold in this place. We have to do the best job we can. Errors have been identified, amendments are possible, and I think it is incumbent upon us to deal with it.
Perhaps I can ask Madame René de Cotret directly: Did I understand correctly that PCO itself did not conduct a detailed cover-to-cover review, but rather you had asked colleagues in the Department of Justice and it is the assurance that you received from them that has led you to make the statement you made?
The Chairman: Before you answer, I want to clarify that the seven-year period that Senator Baker referred to yesterday is a limitation period and not a penalty. It is my understanding that the penalties, which are already in the act, are not being changed. They are the same as they always have been. Is that correct?
Ms. René de Cotret: That is correct.
Senator Kinsella, it is standard practice to have the Department of Justice do the review. They are the drafters.
The Chairman: May I interrupt for a second. I just want to let the committee know that Mr. Audcent has another appointment and has to leave, but Mr. Patrice will be staying. We thank you very much for your assistance and hard work, Mr. Audcent.
Ms. René de Cotret: If you are asking whether we have thoroughly reviewed the bill in the last week, no, we have not. We have done that throughout the process of the bill. Over the last week, we have had the Department of Justice do it. The department's editors and linguistic editors, drafters and linguists also reviewed it.
Senator Cools: I would like to apologize for being a little late. The meeting time was changed and I was made aware of the change too late to be here at the beginning. I just want to let members of the committee know that, and the chairman, in particular, because this is an important meeting.
I would like to begin my remarks by saying that what is before us is a larger problem than the bill itself. I think that Mr. Audcent said essentially that he has a tiny staff and does not have the resources to study every bill looking for mistakes and errors.
I am very mindful of the fact that whereas the magnitude and scope of government has expanded over the years, the resources for senators have not grown at even a small percentage of that rate.
I would like to personally thank Senator Furey. As chairman of this committee, he has allowed some young lawyers from his own staff — the name that comes to mind is Ed Conway — to assist many senators. Senator Furey, I would like to express my support to you, particularly for attempting to fill this huge void that exists in our resources.
Perhaps a good outcome would be to persuade Mr. Boudria to open up those purse-strings a little to provide us with more legal assistance. I wanted to say that at the outset.
Today we are hearing that no one studies a bill in detail from beginning to end. To the extent that these errors have come to our attention, the Senate should address that issue. However, that is not the problem before us.
Before us is the problem that two kinds of errors have been identified. However, it is my understanding that one kind of error can be fixed without difficulty and the others will be more difficult. I propose, Chairman, that we fix the ones that we can fix in the simplest way. The errors identified as clerical could be fixed in a clerical way. We know the difference between parchment errors, pagination errors and clerical errors.
I would not have a problem with the first group spoken to by Mr. Audcent that are on pages 31 and 33. Clearly, they are clerical errors. On page 34, at (2.3), the English version states: ``Despite subparagraph (2)(b)(i)'' and the French version states: ``à l'alinéa (1)a). That is clearly an error and possibly a typographical error. There is no intention to create a different result or to come to a different conclusion. There is no attempt at deception. Clearly, that one is an error.
For the purpose of our discussion, we should instruct our law clerk to fix those in a clerical way. If we proceed in that way, then we would need a motion to give him such an instruction; and I see no problem with that.
The other problems are on pages 56 and 80. Some members are suggesting that we operate by amendment, but as Mr. Audcent pointed out, that would present substantial and substantive problems because we would be faced with the challenge of trying to amend that which is not before us, in particular, section 455. Perhaps the committee should seek from the government an assurance that they have been made aware of this problem so they can act forthwith to correct those errors with either an amendment or a bill.
Before us is truly the lesser of two evils and we should proceed with that. I may be wrong, Chairman, but I am certain other senators have a point of view on this. I am satisfied that the first set of problems is quite simple —
The Chairman: Senator Cools, both points are well taken. There is another option with respect to the latter part of your comments, which is to do nothing. The evidence of Mr. Audcent suggests that that proposed section and the corresponding ones, the two parts, are workable and can operate on their own. You are quite right about the first part, which would require a motion to direct the law clerk.
Senator Cools: We should do that.
Senator Robichaud: We have come to the point in the discussion where I could move that we make the corrections as suggested by the law clerk in his presentation this morning so that the English and French versions correspond in the following clauses —
The Chairman: Would this be a motion to direct the law clerk?
Senator Robichaud: That is right. I have clause 25 before me and I will endeavour to reflect Mr. Audcent's suggestions. In clause 25, the first is on page 31 at line 35 in 405.1(2)(a) to correct the reference to subparagraph 405.3(2)(b)(ii) in the French version to subparagraph 405.3(2)(b)(i), as it states in the English version on line 34.
The second in clause 25 is on page 33, at line 25, 405.3 (2.1), to correct the reference to subparagraph (1)a) in the French version to subparagraph (2)(b)(i), as the English version states at line 25.
The third in clause 25 is at line 39 on page 33, 405.3 (2.2), to correct the reference to subsection (1.1) in the French version to subsection (2.1), as the English version states at line 38.
Senator Kinsella: Is Senator Robichaud preparing to move a motion? I think we are getting a bit ahead of ourselves. We must do clause-by-clause, which may solve the problem. We are still at the stage of hearing witnesses.
The Chairman: Are you suggesting then, Senator Kinsella, that at clause-by-clause we may be proposing amendments that would conflict with the motion that —
Senator Kinsella: — or amendments that may be congruent with Senator Robichaud's objective. At this stage of our meeting, if there are any more questions of our witnesses, we should ask those. We could then excuse the witnesses and do a clause-by-clause consideration of the bill.
The Chairman: I have no problem with that. Are honourable senators agreed?
Senator Robichaud: I have no problem with that.
The Chairman: I believe we have heard as much as we need to from our witnesses. Thank you, Mr. Patrice, for the diligent work you have done on such short notice. Ms. René De Cotret, thank you for being available and your assistance. Mr. Sprague, thank you for coming and sharing your views and for helping us in our deliberations. Our thanks as well to Mr. Perrault.
Perhaps we could do clause-by-clause consideration by grouping the non-controversial clauses. The ones that have been controversial will be dealt with independently. There may be a motion to refer those to the law clerk or there may be a motion to amend.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-24, to amend the Canada Elections Act and the Income Tax Act (political financing)?
Hon. Senators: Agreed.
The Chairman: There are 75 clauses in the bill.
Do honourable senators wish to consider each clause individually, or shall we, as I suggested, group them in blocks of five where they are non-controversial and deal only with the controversial ones individually? Is it agreed?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clauses 1 to 5 carry? They are on pages 1 to 3.
Hon. Senators: Agreed.
The Chairman: Shall clauses 6 to 10 on page 4 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 11 to 15 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 16 to 20 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 21 to 24 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 25 carry?
Senator Beaudoin: I have an amendment on this clause:
That Bill C-24 be amended in clause 25, in the French version,
(a) on page 31, by replacing line 35 with the following:
``405.3 (2)(b)(i);'';
(b) on page 33,
(i) by replacing line 25 with the following:
``(2.1)Par dérogation au sous-alinéa 2b)(i), si deux ,'' and
(ii) by replacing line 41 with the following:
``titre du paragraphe (2.1) à l'association enre-''; and
(c) on page 34,
(i) by replacing line 1 with the following:
``(2.3) Par dérogation aux sous-alinéa (2)b)(1), si une'', and
(ii) by replacing line 15 with the following:
``titre du paragraphe (2.3) aux candidat soutenu ».
[Translation]
Senator Joyal: Could you explain what exactly you want to do?
Senator Beaudoin: It's about the correction of an error in the French version that originates from the House of Commons. This is an error that must be corrected. It seems fairly substantial.
The Chairman: Senator Beaudoin, have you finished?
Senator Beaudoin: Yes.
[English]
The Chairman: Is there discussion on the proposed amendment?
Senator Joyal: I want to ask a question of Senator Beaudoin to be clear on what we are doing.
The purpose of your amendment is essentially to make the corrections that the legal adviser of the Senate identified in his report this morning?
Senator Beaudoin: Exactly.
[Translation]
It is an error in the French version.
[English]
Senator Kinsella: Speaking in support of the amendment, first, it is an error that the witnesses said was there without qualification as to the type of error. It is an error. We have apprehended it and we have a solution. This amendment resolves the problem.
I would point out to honourable senators that when this very paragraph was being examined in the committee of the other place, government amendment number 12 was brought forward. They argued to add a reference to proposed 404.32(b) in proposed subsections 405.1(1) and (2) as well as in proposed paragraph 405.1(2)(a) and (b), then also amend the English version. I will read the reason that committee brought that amendment forward.
The amendment to the English version of paragraph 401.1(2)(a) is to correct a drafting error. Currently, the English version of the bill refers to subsection 404.1 (3) as providing for the $1,000 limit for corporate and union contributions.
In fact, this amendment is found at proposed subsection 404.1(1).
If we do not correct this by way of amendment, honourable senators, the court, should there be a dispute, would look not only to this committee for evidence, but also to the House committee. In the House committee, they will find that they were making a change to correct something that ended up producing an error. The court will not be helped much by the proceedings of either place.
If we were not under the metaphorical time gun, we could do it properly. We are proposing an amendment that would correct the bill at the place where we see an error, that error having been confirmed by our law clerk.
The Chairman: I want to add to Senator Kinsella's comment that we did hear clearly from the law clerk that it was quite proper to correct this by way of having the clerks of both Houses deal with it.
Senator Kinsella: And equally by amendment.
Senator Beaudoin: One or the other.
Senator Smith: We heard from our law clerk that there is a bona fide, proper, appropriate, simple way of doing it. Do I take it that you are suggesting that we do it by way of amendment, which requires that it go back to the House?
Senator Kinsella: In my opinion it is not simply a clerical error. It is an error that has a history to it, as I mentioned when I gave you the background of what happened in the House of Commons committee.
However, I accept the advice of the law clerk that under certain circumstances, when these kinds of problems present themselves, one of the ways of correcting them is by the two clerks agreeing to make the change.
I believe that those clerical corrections can only be made by the clerks when there is unanimous consent of the Houses. Given that unanimous consent might not be forthcoming, to ensure that we have the bill corrected, the amendment would be far more prudent in my view.
Senator Smith: In other words, you would prefer the much more complicated route rather than the bona fide, appropriate and simple solution suggested by our law clerk?
Senator Kinsella: I do not think it is very complicated. I think it is straightforward. It makes the bill look better in terms of the legislative drafting.
This is why we are here. If we did not have a house of review, I suppose that these other techniques could be used. Why do we come to these meetings? That is my opinion.
[Translation]
Senator Beaudoin: This document mentions ``to correct a drafting error.'' It is a clerical error, if I may use the term — I believe the term is used in law faculties. This clerical error can be corrected by both lawyers. Since we are a House of reflection and amendments are allowed, why not do it right now. In my opinion, we should correct this through an amendment. Of course, it will be decided whether it.s appropriate to proceed by amendment or through both officers.
[English]
This is very simple. It is one way or the other.
The Chairman: The only point I would like to add to that, Senator Beaudoin, and then we will go to a vote on the motion unless someone has something pressing they would like to add, is that my understanding from Mr. Audcent this morning was that direction from this committee to the law clerks can cure it. I do not know where this concept of having to get unanimous consent from the house came into it, Senator Kinsella, but I understood from his evidence that with a direction by the committee to the clerks, if they were both in agreement — and he assured us both were — it would be done.
[Translation]
Senator Robichaud: I would like to make sure the correction involved in the Honourable Senator Beaudouin's motion can be made in the way suggested by the legal counsels. I would rather proceed this way than by amendment.
[English]
Senator Joyal: I want to be sure that it is on the record, and it was mentioned by the legal adviser of the Senate that, as I understood his testimony this morning, he had the concurrence of the clerk of the other place to do that. I think that, for us, is an important point. If we give instructions and in fact there is no corresponding will in the other place, then of course we will have to advise on the appropriateness of an amendment.
The Chairman: On each point that Mr. Audcent addressed, he made it clear that he had the concurrence of the clerk from the other place. I think the record will show that.
Senator Smith: I do not intend to support the motion of Senator Kinsella because I am satisfied that, based on what we heard from the law clerk — and as Senator Joyal has pointed out, he had a conversation with the clerk of the House of Commons — we do not need to go through a Hampton Court maze when we can walk through a door. I prefer to walk through the door with a simple, bona fide, traditional, correct, proper way to fix it.
Senator Kinsella: Senator Smith is referring to the motion proposed by Senator Beaudoin.
Senator Smith: I am sorry.
[Translation]
Senator Rivest: Did the legal counsel inform us that the Clerk of the House of Commons had agreed that the corrections could be made? In the event that we proceed by amendment, I understand that we could instruct our clerk to go on with the correction. Has the Clerk of the House of Commons been authorized by the House of Commons to make the corrections and respond to the request made by the Clerk of the Senate?
[English]
The Chairman: Mr. Audcent's evidence this morning was clear that on each of the errors he indicated were clerical, he had the consent of the clerk of the House of Commons to do this.
Senator Rivest: However, did the House of Commons agreed to allow the clerk —
The Chairman: I am sure the clerk would not do it without the authority.
Senators, we will go to a vote. It is moved by Senator Beaudoin that Bill C-24 be amended in clause 25, at pages 31, 33 and 34, as he has indicated. Do you require that I read it again, senators?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: I believe the ``No's'' have it. The motion is defeated.
Senator Robichaud, did you want to say something about that clause?
[Translation]
Senator Robichaud: Honourable Senators, I would like us to adopt the alternative suggested this morning by our legal counsel for clause 25, page 31, paragraph 405.1(2)(a).
[English]
To correct the reference to subparagraph 405.3(2)(b)(ii) in the French version to 405.3(2)(b)(i), as in the English version.
[Translation]
Senator Robichaud: This is the correction that was suggested. I understand that the Honourable Senator Beaudouin's motion addressed several corrections. However, this reference only applies, firstly, to clause 25, page 31.
Senator Beaudoin: If I may, Senator Robichaud, there are of course two possibilities. The experts indicated this very clearly, and I trust their evidence. We can proceed with an amendment or through the two officers. We just have to choose one of the two alternatives. For the benefit of equality in both languages, I would prefer proceeding by amendment. If this alternative does not gain a majority, then so be it.
[English]
The Chairman: While you are looking at that, Senator Robichaud, Senator Prud'homme has just drawn to my attention that we have a delegation present from the Kingdom of Bahrain, including the president of the upper house, Dr. Faisal Al-Mousawi — and we welcome you. I understand you are on your way to meet with the Speaker for lunch?
Senator Prud'homme: Yes.
The Chairman: Welcome, gentlemen.
[Translation]
Senator Robichaud: Senator Beaudoin tabled a motion we voted on. The purpose of this motion was to make certain corrections by amendment. To simplify the procedure, I suggest, for clause 25, that the corrections proposed by Senator Beaudouin be made through an order to the counsel, as suggested this morning.
Senator Beaudoin: But we have already voted.
[English]
The Chairman: Senators, we could just carry on. The motion has been defeated. At the end of the clause-by-clause consideration of the bill, if there is a motion to direct the clerks with respect to any of the clauses that we have passed over, they will stand as they are, with directions in some cases. I do not think we would be pre-empted at the end from giving directions to change it even though we stood the clause.
Hon. Senators: Agreed.
The Chairman: Senators, is it agreed that clause 25 be stood until the end of the proceeding?
Hon. Senators: Agreed.
The Chairman: Honourable senators, shall clauses 26 to 30, pages 35, 36 and 37 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 31 to 35, pages 37 to 39, carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 36 to 40, pages 39 to 60, carry?
Senator Joyal: I would like to register my division on clause 40 on page 40. That is, of course, the clause that establishes the threshold.
The Chairman: So noted. Honourable senators, they are carried on division.
Senators, shall clauses 41 to 45 carry, pages 60 to 63?
Hon. Senators: Agreed.
The Chairman: Shall clauses 46 to 50, pages 63 to 65, carry?
Senator Kinsella: On division.
The Chairman: On division.
Shall clauses 51 to 55, pages 65 to 66, carry?
Hon. Senators: Agreed.
The Chairman: Agreed.
Shall clauses 56 to 60, pages 66 to 98, carry?
Some Hon. Senators: On division.
The Chairman: On division.
Shall clauses 61 to 65, pages 98 to 100, carry?
Senator Baker: I want to register my very strong objection to this. I think a seven-year period for a summary conviction violates section 7 of the Charter. I would strongly advise the government to change this to allow the Criminal Code provisions to apply, as they should apply under section 34 of the Interpretation Act.
It would be quite simple, Mr. Chairman, to have a provision here for 18 months, as it always was in the case of summary conviction, and then to proceed indictably with no limitation, as is the law. However, to expect someone, some member of Parliament or some auditor to be held liable seven years after some simple mistake is unprecedented in Canadian legislation and, quite frankly, makes no sense at all.
The other issue is that there is no clear direction from the government. We have other legislation on the books that has similar wording without the seven years. There is confusion in the courts with no direction from the government as to what it means, that is, the required knowledge of the commissioner in order to bring a charge under the act.
The bottom line is that this should have allowed, as other legislation does, for the application of the Criminal Code, which makes a distinction between summary conviction offences and indictable offences. I just want to register my strong objection to it and I would suggest that it be passed on division.
Senator Beaudoin: May I ask a question of Senator Baker? Is it section 7 as interpreted in the B.C. Motor Vehicle Act, on the question of the charge?
Senator Baker: Yes.
Senator Beaudoin: I am inclined to agree with you entirely
Senator Baker: I would say it is an infringement of section 7 because fundamental justice in this case applies. If a charge is brought on summary conviction, all of our case law is based on the six-month principle, given that you have a relatively insignificant offence in which someone's entitlement to their justifiable rights, to basic justice, within that period of time is clearly outlined. The six months is there for summary conviction offences.
To complicate matters, in the Interpretation Act, it says, ``To the extent as otherwise provided in an enactment,'' which is an act of Parliament, ``the Criminal Code will apply for summary conviction and indictable offences.''
Well, here we have a provision that provides otherwise. I can tell the committee that this has been done twice before. One is the Environmental Contaminants Act, and the other is the Fisheries Act. That was done because it takes a longer time for investigators to investigate an offence concerning deleterious substances in rivers. That was basically the reason.
Here we have the department saying that it takes seven years to find out if someone has made a clerical error and can thereby be charged, or a candidate has made an error — seven years for a summary conviction offence. They could have simply said, ``Okay, let us make it 8 months,'' or the 18 months that was already there, but what was already there was not sufficient. It denied the principle of indictable offences under the act, because the 18 months applied to summary conviction and indictable offences. Is that not correct, Mr. Sprague? Yes.
Senator Beaudoin: I would agree with you.
Senator Baker: It is an objection, but we will leave it.
Senator Andreychuk: I want a clarification. I follow your reasoning, and it is compelling, and it obviously points out why this bill needs to be studied. What would you have in there? Would you just remove the seven years?
Senator Baker: Yes, of course I would remove the seven years. The seven years is put in there because the other two acts of Parliament are not working in the courts.
Senator Andreychuk: I understand that.
Senator Baker: The seven years that was put in as a limitation is not in the other acts. They should have left it the way it was, except to say, ``18 months from the time the alleged offence is committed,'' which was in the original act for summary conviction offences. Every time they go to court, they have to specify. ``How are you proceeding, summarily or indictably?'' They say, in the cases I have seen, ``We are proceeding summarily.'' They could have the provisions of the Criminal Code relating to indictable offences, which have no time limit. If you have a serious offence in which someone has defied the act in a terrible way, with contributions, say, or accepting money, why should there be any limitation on that? There is no limitation on any other act of Parliament if it is indictable; here it places a limitation on it, but what is worse, it places a seven-year limitation on summary conviction offences.
Senator Andreychuk: It should be the ordinary way.
Senator Baker: Yes, it should be. Why not have the Criminal Code apply rather than this?
Senator Joyal: The onus is heavier than in the Criminal Code.
Senator Andreychuk: I wanted to be sure we were thinking the same way.
Senator Kinsella: In terms of process, could the question be called from where we left off, up to the top of page 99, not including 63.1?
The Chairman: Okay. We will do that one on division?
Senator Kinsella: Yes.
The Chairman: Honourable senators, shall clauses 61 to 63, pages 98 to 99, carry?
Some Hon. Senators: Agreed.
The Chairman: That was clauses 61 to 63, pages 98 to 99, not including 63.1, which is the one you are worried about. I will do it again, honourable senators. Are clauses 61 to 63 carried?
Hon. Senators: Agreed.
The Chairman: Is clause 63.1 carried on division?
Senator Kinsella: No, we are asking for a recorded vote.
The Chairman: We want a recorded vote on clause 63.1, page 99. The clerk is preparing for a recorded vote.
Senator Baker: You are not correct in the 63.1; it is actually 63(1) that we are talking about. We are talking about section 514(1) of the act — the impugned act, in this case. The 63.1 is a different clause.
The Chairman: Honourable senators, we need to go back to 61 and 62; I will ask your indulgence to go back and redo 61 to 65. Honourable senators, are clauses 61 and 62 carried?
Some Hon. Senators: Agreed.
The Chairman: Is clause 63 carried? I believe you will ask for a recorded vote, Senator Kinsella.
Senator Kinsella: On clause 63(1).
The Chairman: That will be clause 63. Do you want a recorded vote?
Senator Kinsella: Yes.
The Chairman: It starts with me.
Ms. Marcy Zlotnick, Clerk of the Committee: The Honourable Senator Furey?
The Chairman: Carry.
Ms. Zlotnick: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Ms. Zlotnick: The Honourable Senator Baker?
Senator Baker: No.
Ms. Zlotnick: The Honourable Senator Beaudoin?
Senator Beaudoin: No.
Ms. Zlotnick: The Honourable Senator Bryden?
Senator Bryden: Yes.
Ms. Zlotnick: The Honourable Senator Cools?
Senator Cools: Abstain.
Ms. Zlotnick: The Honourable Senator Joyal?
Senator Joyal: Carry.
Ms. Zlotnick: The Honourable Senator Kinsella?
Senator Kinsella: No.
Ms. Zlotnick: The Honourable Senator Pearson?
Senator Pearson: Carry.
Ms. Zlotnick: The Honourable Senator Rivest?
Senator Rivest: No.
Ms. Zlotnick: The Honourable Senator Robichaud?
Senator Robichaud: Carry.
Ms. Zlotnick: The Honourable Senator Smith?
Senator Smith: Carry.
Ms. Zlotnick: Six carried, five negatived, one abstention.
The Chairman: The clause is carried.
Honourable senators, shall clauses 63.1 to 65, pages 99 to 100, carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 66 to 70, pages 100 to 102, carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 71 to 75, pages 102 to 106, carry?
Hon. Senators: Agreed.
The Chairman: We will revert to clause 25; we stood clause 25. Senator Robichaud?
[Translation]
Senator Robichaud: I propose that instruction be given to the legal counsels for the changes proposed by Senator Beaudouin to clause 25, that is, on pages 31, 33 and 34, to be made.
[English]
The Chairman: Senator Robichaud is moving that the proposed changes, the committee direct the clerk to —
Senator Cools: They are not changes but clerical corrections.
The Chairman: — the committee direct the clerk to make the corrections suggested by Senator Beaudoin. Do we need to read them out?
Hon. Senators: No.
Senator Cools: No, but I want us to be sure that we are not altering the bill substantially in any way. I think the words that we should be using here are ``to make the corrections of the clerical errors,'' because I think the intention of the motion is to essentially allow these corrections to happen on the premise that they are not substantive. I think the committee is accepting the position that these are misprints. To my mind, they are errors in production — when they take the documents from the various ministries and get them ready in the House of Commons for printing. I see this as an error in that process and I am treating it that way. I want it to be crystal clear that it is a correction of mistakes that were made somewhere along the line. They are typos almost, misprints.
Senator Kinsella: The opposition does not believe they are simply clerical errors. We will be voting against it, so on division.
The Chairman: Senator Robichaud, can you move the motion once again?
Senator Robichaud: I move that instructions be given to the law clerk to make the clerical corrections that were identified by the Honourable Senator Beaudoin to clause 25 in his motion.
The Chairman: Honourable senators, all in favour of the motion?
Some Hon. Senators: Agreed.
Senator Kinsella: On division.
The Chairman: Carried on division.
Honourable senators, is it your pleasure that clause 25 shall carry?
Some Hon. Senators: Agreed.
Senator Kinsella: On division.
The Chairman: Carried on division.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Some Hon. Senators: Agreed.
Senator Kinsella: On division.
The Chairman: Carried on division. Is it agreed that this bill be reported at the next sitting of the Senate?
Hon. Senators: Agreed.
Senator Cools: Could we put two lines into the report — not to take the time of the committee — in respect of Senator Baker's concern and Senator Joyal's? You do not want to?
The Chairman: No, I think it is in the record. Senator Baker is in the record.
Senator Baker: Senator Joyal is in the record as well as being against clause 40.
Senator Bryden: I want to be sure that the direction to the law clerk is also to make the changes to the other proposed sections. Have we done that?
Some Hon. Senators: No.
Senator Bryden: At what stage do we do that, or do we do it at all?
The Chairman: I do not think there is anything to change. The other was a stylistic difference, and it does not need any changing.
Senator Bryden: For clarification, all the ones that were clerical were in Senator Beaudoin's amendment?
The Chairman: Yes.
Senator Bryden: Thank you.
The Chairman: Thank you, honourable senators, for your patience.
The committee adjourned.