Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence
OTTAWA, Thursday, October 23, 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 11:02 a.m. to give consideration to the bill.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, let me begin by apologizing for my tardiness. I was delayed at another meeting. I apologize profusely for keeping you waiting.
Today we resume consideration of Bill S-12, to repeal legislation that has not been brought into force within ten years of receiving Royal Assent.
We welcome our colleague, Senator Banks, the sponsor of the bill, and officials from the Department of Justice, Mr. Keyes and Mr. Ricard.
I understand that the officials would like to begin with a brief presentation summarizing the review that they have undertaken since last appearing before us.
Mr. Daniel Ricard, Deputy Chief Legislative Counsel, Drafting Services Group, Department of Justice of Canada: Honourable senators, I would first like to extend our appreciation for being invited again before this committee to speak to this important bill. You may remember that when we appeared last June, some concerns had been identified.
The first is the idea that there should be a provision in the bill that would inform Canadians of any repeal of provisions or statutes. A second concern that was expressed at the time dealt with provisions that were partially in force. The third related to provisions that had been recently amended. Finally, there was a fair amount of discussion on the issue of whether the repeal should be automatic or with a process to allow a provision to remain in some circumstances.
At that time, we had agreed to review the statute books over the course of the summer to see exactly how many provisions and what kind of provisions were likely to be affected by the coming into force of Bill S-12.
I would like to summarize in the next two or three minutes the findings of our work over the course of the summer.
First, by way of methodology, I should mention that we have relied on the tables of public statutes as well as the consolidated statutes of 1985. I should also mention that the consolidated statutes capture all of the provisions pre- 1985 that were in force and many that were not.
It is not necessarily a guarantee that we have captured everything. However, those are the two current instruments that allow us, and anyone else for that matter, to look backwards and see what is in existence.
Once we had identified a rather long list of provisions, we proceeded to consult with various departments. This consultation has led to the production of a table, a copy of which honourable senators have before them in both official languages.
Before I take honourable senators through this table, I wish to mention that this exercise was somewhat time consuming and labour intensive because of the intricacies in reviewing past legislation. Often, we discovered that on the surface, a provision might appear to amend a particular act, yet when you scratch that surface, you realize that the amendment relates to another act. It gets to be somewhat tricky to collect a complete list of that which remains on the books.
If you turn to the table, I will take you through it. The first column on the left identifies the lead department. For example, the second item refers to the Department of Justice as well as the Department of National Defence. Oftentimes you have provisions that impact two departments.
The second column identifies the specific provision or statute that is on the books but not yet proclaimed. The third column is a summary of what the provision refers to.
The fourth column is a short analysis of the findings.
There are essentially four categories of results.
[Translation]
The first category was to decide which provisions could be repealed. In the case of about twenty of them, I believe, the lead departments decided to go ahead with the repeal because there was no basis to keep them today since ten years had elapsed without their having been put into effect.
There is another category that has been identified as affecting the rights of third parties. I would simply like to mention that when we talk about the rights of third parties, we are essentially referring to the provinces, certain foreign countries or industries. In certain cases, there are acts that are intended to regulate a particular industry.
The third category refers to «other concerns.» Usually, provisions were placed in this category when departments were not prepared to give a response with regard to what should be done. In some cases, I presume that, in time, departments would be in a position to tell us that the provisions should be repealed but, for now, they prefer to leave them on the books until a more thorough analysis can be done.
[English]
The last category, which contains only a handful, relates to provisions with respect to which there have been some subsequent amendments over the last 10 years. This is an issue because it relates to one of the concerns that we identified in June. There had been a good discussion on that topic when we met on June 5, 2003.
[Translation]
If I may make a correction, I would like to mention that towards the middle of the document, on page 9 or 10, when we refer to The Firearms Act, the Department of Justice is no longer responsible for it but rather it is the Solicitor General of Canada.
[English]
From our work over the course of the summer and on the basis of the research and analysis that came out of it, we have looked at the bill. Our view today is that, as we indicated last June, this bill has a very valid objective. I do not think anyone disagrees with the objectives of this proposed legislation.
However, given the comments that we have received to date, it seems to us that we should find a way to provide departments or ministers who may have reasons to believe that it is in the interest of this country to maintain existing provisions with an opportunity to do so.
For us, the challenge was to achieve a balance between, on the one hand, the objectives of this proposed legislation, and providing an opportunity for those who thought it important to express views with respect to a particular provision that would otherwise be at risk of being repealed.
The Chairman: Mr. Ricard, are you suggesting to the committee that the bill should contain provisions to exempt certain acts or sections of acts that particular ministers want to keep?
Mr. Ricard: No, I think we can make reference to a process that would allow for a decision to be made on whether provisions should remain. I can come back to that in a few minutes.
I will mention in passing that such a process already exists. Last time we met, there was a good discussion of the existing process in the context of the Miscellaneous Statute Law Amendment Act. I should also mention that Bill C- 205, which received Royal Assent only a couple of weeks ago, does contain such a process.
It seems to us that while the process needs to be amended somewhat, because it is not necessarily the same issue at stake, there are some interesting lessons that one can learn from Bill C-205 that, perhaps with some modifications, could be applied in this particular instance.
The Chairman: The thrust of this particular bill is to take off the books anything that has not been used in 10 years. Would you mind jumping ahead to the process about which you are talking? I am trying to envision how we could incorporate that.
Mr. John Mark Keyes, Director, Legislative Policy and Development, Advisory and Development Services Group, Department of Justice: Honourable senators, as Mr. Ricard mentioned, there are two models out there, both of which were mentioned in June in this committee. The first is the process for the Miscellaneous Statute Law Amendment Act. The second is Bill C-205.
I will briefly describe each of those processes and then suggest what we might pull out of those as lessons that might be applied in the case of Bill S-12.
In the package that was distributed to honourable senators, there is an extract from the "Guide to Making Federal Acts and Regulations."
[Translation]
The guide is entitled, "Guide to Making Federal Acts and Regulations." There are two pages in the document that briefly describe the nature of the process. The programme was established in 1975 and is administered by the Department of Justice. There is no legislative basis for the programme; it is based on an agreement between the Department of Justice, the Senate and the House of Commons.
[English]
The program is intended to bring forward non-controversial amendments to statutes in a timely way, without having to wait for them to be opened up in the regular process of revision. There are rigid criteria for making these amendments.
The essential criterion is that the amendments must not be controversial. Over and above that, the amendments must not involve spending of public funds. They must not prejudicially affect the rights of persons, and they must not create new offences or subject a new class of persons to an existing offence.
The legislation section of the Department of Justice is responsible for putting together proposals. It collects proposed amendments from a wide variety of sources. Periodically, typically every year or two, it prepares those proposals in legislative form in a document that looks like a bill. It is titled ``Proposals for Miscellaneous Amendments.''
The Minister of Justice then tables this document in the House of Commons. It is also tabled in the Senate. In the Senate, it is referred to this committee for study. In the House of Commons, it is referred to the Justice and Human Rights Committee.
Each committee then studies the prepared proposals to evaluate their merits, and particularly, to evaluate whether they meet the criteria, especially the criterion of non-controversiality. If any member of either committee considers a proposal to be controversial, it is removed from the package.
Once the committees have studied the proposals and reported on them, our department prepares a bill based on the committee reports. Basically, it includes all of the proposals that have the support of both committees.
This bill is then introduced by the Minister of Justice. It proceeds through Parliament in the usual way, although it tends to be enacted in fairly short order, because essentially, the proposals have already been studied. That, in a nutshell, is the miscellaneous statute law amendment program.
The program does not have a statutory basis and only encompasses non-controversial matters on which there is unanimity. It also requires the enactment of another bill to carry those amendments into effect.
As a result, we would suggest that perhaps the program is not really an apt vehicle for dealing with concerns surrounding the repeal of provisions that have not been brought into force.
The second process is one that was recently enacted inBill C-205.
It deals with the disallowing of regulations. The package that was circulated also includes a diagram that outlines the process of Bill C-205 as a series of boxes. Basically, that process involves a report by the Standing Joint Committee for the Scrutiny of Regulations recommending that a regulation be disallowed. That report is tabled in both Houses. If no minister raises an objection to that report within 15 days, it is deemed to be adopted. It becomes an order of those Houses and the government is then required to comply with the order and take steps to revoke the regulation.
Bill C-205 contains a process for a minister to table an objection to the disallowance report. It provides for an accelerated debate of that motion objecting to the report and a resulting vote in both Houses. If either House rejects the report, then that is the end of the matter and the regulation stands. If the Houses vote in favour of the report, then the disallowance order proceeds as it would if no objection had been made.
In a nutshell, that is the process of Bill C-205 that you see on one side of the sheet. On the other side is a diagram describing what we suggest might work for Bill S-12. First, it would begin, as the bill is drafted, with a list of repeals prepared by the Minister of Justice at the beginning of each year. It would be tabled within the first five sitting days of each House in each calendar year. The list would then be referred either to committees of each House or possibly a joint committee. They would have a chance to study the list and whether all of these acts or provisions should be repealed. They would also be able to consider whether there might be reasons that some of these provisions should be left on the books, at least for one more year.
The committees would then report to their respective Houses, and again, as with the Bill C-205 process, if no objection is made to the report, that report would be deemed adopted in 15 sitting days. The result of the adoption would be a repeal of those acts and provisions that are found in the reports of both Houses. That would come automatically at the end of the adoption of those reports.
Also, like Bill C-205, the proposal that we would put forward includes a procedure for a challenge of the report by a minister in either House. That challenge would come to a vote, again, under an accelerated procedure. If the result of the vote were such that the reports of the committees are rejected, then there would be no repeal. On the other hand, if the Houses vote in favour of the reports, the repeals would proceed as they would in the ordinary course.
We put that forward as a process modeled on something that exists and has recently been enacted. We have also discussed it with our minister and he supports this kind of approach in principle.
The Chairman: In effect, Mr. Keyes, you are recommending a couple of substantial amendments to the bill that we have before us this morning.
Mr. Keyes: That is correct. It would be a matter of adding a series of provisions to put in place the process that we have described here.
Senator Beaudoin: I must say that I am in favour of the bill because the time frame of 10 years seems reasonable. If a statute has not been put into effect for 10 years, then something is wrong somewhere. You agree with this, but you are against the automatic setting aside of provisions, in my understanding. You said that there might be valid reasons why they have not been put into effect.
I would like to see your proposed amendments, because you will amend the bill if we agree with this. If a bill has still not been put into effect after 10 years, I do not want an amendment to require us to wait another 10 years before the bill can be repealed in the suggested manner. The bill may be dead.
Senator Cools: And we may be dead too.
Mr. Keyes: May I try to address that concern? The procedure would only delay the repeal for one year.
Senator Beaudoin: One year?
Mr. Keyes: Yes, for just one year. The next year, the provision would appear on the list again. Again, the same procedure would have to be adopted. Each year there would be a review to see whether the reasons for keeping it on the books still exist.
Senator Beaudoin: I will take a legal case. Suppose the bill is related to acquired rights, such as in the Criminal Code, and nine years have passed and it is not in effect. Something should happen under this bill, but suppose no one is of the opinion that there is still an acquired right, what do we do? Could we not set it aside automatically? Would you want us to have a trial each time that we arrive at such a situation? This worries me. You are probably right when you say that it should not be entirely automatic. However, I want to be sure that, with your proposed amendments, it would not be indeterminate. Do you have a good reason for that? The only good reason I see is a right. The person has not pretended that he or she has acquired rights and there were some extraordinary circumstances. It is only after 11 years that we see that the bill should not be set aside. However, 10 years is a significant length of time, we cannot do that eternally.
Mr. Ricard: I take the point you are making about trying to create a process that is relatively quick. The process as laid out by Mr. Keyes speaks to that issue because it is relatively simple and efficient, and both Houses understand it because it was adopted in another bill.
Remember also that we are talking about provisions that are not in force, so they do not confer rights or obligations on anyone.
I will give you an example of the kind of rationale that comes to mind in thinking about why 10 years is not sufficient. There are many statutes, the Contraventions Act, for example, wherein the coming into force depends on ongoing discussions with the provinces. With some provinces, things have gone reasonably well for a long time. With other provinces, it takes more time.
This is one example of where it may take a number of years, whether it is 5, 10 or 15, before there is an agreement in place that would allow the coming into force of some provisions.
The same could be said of international agreements and treaties, where again, at times, ministers or Parliament may wish to wait for more countries to ratify before Canada puts a particular treaty into force within its own boundaries. These are the kinds of examples that have been given to us in support of a process that allows for some exceptions.
I should mention one more thing: Remember that the onus has shifted here. The onus is now on the minister of the Crown to ask that the provision be retained. That is a significant shift and should not be overlooked.
I am not here to say that the individual examples given by one department or another are good or bad, but rather that there appear to be sufficiently good reasons to warrant a discussion. We are trying to provide a mechanism for a discussion about the extent to which a provision should be retained. Committees could then decide whether it is a sufficiently good reason to keep it in the books.
Senator Beaudoin: You cannot do that eternally. There are some limits — 10 years is 10 years. We have a prescription in the civil code of Quebec. You have the same thing in common law also. If after 30 years there is no claim or no demand, you lose everything.
I do not think that it is against the Charter of Rights. We have to set limits.
What happens after 10 years? Do you put a notice in the newspaper saying that if no one is in a position to claim any acquired rights, the bill will disappear? Perhaps if you had something like that, I would accept it. I have some hesitation, because 10 years is 10 years.
Either in civil law or in common law, after a certain number of years, there is a prescription. To me, 10 years is reasonable. If there is no claim, demand or request, it is too bad, but the game is over.
Mr. Chairman, I would be ready to accept a notice saying that the bill has not been put into effect in due time and the minister has not been able to show why it should be retained. The bill, therefore, should die.
The Chairman: Before we move to other senators, I want to ask one quick question of Mr. Ricard.
First, thank you for this very comprehensive document that you prepared outlining the actual bills and their status. No doubt it took quite a considerable amount of time and effort to prepare it.
I notice that two complete acts are mentioned. The Canadian Heritage Languages Institute Act has not yet been brought into force and the analysis is that it should be repealed. The second was the Motor Vehicle Fuel Consumption Standards Act. Your note reads, ``no repeal, impact on third parties.'' Could you explain that for me, please?
Mr. Ricard: I am not the best person to speak to that. I am sure that officials from Natural Resources Canada could do a much better job than I could.
However, my understanding is that for a long time, the industry has agreed to voluntarily adhere to certain standards. The statute is in existence to be used if the department or minister thought that it was important to bring it into effect.
To an extent, they consider that the public policy results are being achieved in some other way than putting the bill into effect. They probably consider that to be a satisfactory outcome. Remember that legislation and regulation are not the only instruments that exist to ensure compliance, but they are often used when required.
I would like to defer that ultimately to officials from Transport Canada.
Senator Pearson: Thank you for the considerable clarity that you have brought to this issue. I was not here, Senator Banks, for the first introduction, but I am listening today. I am sure that it is bringing efficiency to the system that is lacking.
I am particularly interested in things such as the Chemical Weapons Convention Implementation Act, under the international acts. There is only a section of that act that has not been brought into force. You are looking at an anticipated coming into force through what we know about other countries having to come on board or, in the case of our neighbour to the south, going off board.
If we can find the right amendment to do what you are suggesting, I can see some reason to ensure that it is not automatic. I know that in the case of the international conventions, it often takes ages before there are enough parties for them to come into force internationally.
I would be interested in your opinion. It would seem to me that doing this once a year might put some pressure on people. Sometimes, bills do not get enacted because there must be some small agreement between province X and the federal government. It is on the side of someone's desk. It is not ill intentioned.
Do you think putting whatever amendments into this bill will create pressure to ensure some of these things do not slide into oblivion?
Mr. Ricard: At the moment, there is no mechanism that forces anyone to explain why a provision or statute is not in effect 10 years after it has been enacted. As I said earlier, Bill S-12 shifts the onus. The idea is that that particular provision would be automatically repealed unless the minister responsible came forward to table a motion indicating why he or she is of the view that it is important to retain it.
As Mr. Keyes indicated earlier, the extension is for one year, and then the process begins again the following year. My sense is that, as time goes on, it will become increasingly difficult. If you compare Bill S-12, even with the amendment, with the current situation, I think that it certainly changes the onus significantly.
Senator Joyal: Your explanation of Bill C-205 focuses essentially on the regulation aspects of a bill and does not touch on the enabling authority. There is a substantial difference between the two procedures: the one put into place with Bill C-205 and the one in Bill S-12. Under Bill C-205, the way I read it and heard your explanation, a regulation is deleted from the statutes on the basis of a report that has followed a specified procedure. In the case of this bill, there is a regulation in the process — it is regulation. We know there is a joint committee of the two Houses and that it is an ongoing process. The system has a built-in mechanism to deal with regulations that become obsolete and that is an accelerated process. It is certainly good governance.
This bill tried to achieve, the way I understand it, an automatic mechanism to delete some statutes that have not been in force for at least 10 years. Your objection is that there is no saving mechanism such that, if a minister were to protest that the bill or provisions of the bill should be kept, it would be valid for only one year. That way, the ball rolls back into the process each year, ad infinitum. In other words, the system would require that after a 10-year lapse, we would be back ``on the racetrack'' each year with different arguments for keeping the bill valid.
I can understand Senator Pearson's comment when she spoke about bills that have international impact with foreign governments, such as the implementation of international instruments and external conditions that are immediately out of reach for Canada. I can understand having a saving mechanism in that context. However, having one for the usual statutes is another matter and I am less convinced that this bill is not appropriate. Is it not necessary to have a complementary mechanism that is, in a way, parallel to Bill C-205, which deals essentially with regulations. Senator Banks is certainly willing to improve this bill and I see that we have stacks of amendments following hearings with your department. Could we not address your preoccupation by adding a provision to this bill that would deal with some exceptional circumstances? Would you be satisfied with that?
Mr. Ricard: We refer to Bill C-205 as an example of an approach. In our view, the merit of Bill C-205 is that while it deals with a different bundle of issues, it could be amended or adapted to work in the context of Bill S-12. We propose that because there seems to be some benefit to using similar mechanisms rather than myriad different ones.
More important than the mechanism, however, is the idea behind it, which is that we need a balanced approach that puts pressure on ministers of the Crown to come forward and explain why they think a provision should be retained, but at the same time, gives them an opportunity to make their case known.
The international agreement example is one to which many of us can relate. As I said earlier, other examples were given to us with which we may not be as familiar but that may be just as important. I am concerned about the suggestion that we have an exception for international agreements but not for other provisions. It seems to me that whatever the issue, whether international agreements or something else, the opportunity should be provided to someone who feels strongly enough to come forward and speak to the issue, whether by way of the example that is laid out in Bill C-205 or some other means. I suppose we could discuss that further, but underlying that is the balancing of the objectives on the one hand and the practical realities on the other.
Senator Joyal: What is the gist of Bill C-205? When the joint committee prepares a report that is tabled in the House, the minister then has to react. The report triggers a reaction, but what does the bill do? The bill also triggers a reaction, but it does not provide a similar saving opportunity. That is how I understand your explanation. Under this bill, a minister may save the regulation if he or she is provided with a suitable time frame in which to come forward and if there is a vote. Thus, there is a saving mechanism, but there is a triggering of a reaction, which comes from the committee.
The reaction is triggered by the lapsing of time. In one case, a committee studies the issue and comes to a conclusion. Under this bill, the triggering mechanism is the calendar year — turn the page and you may be immediately in the year to start the process.
Therefore, how can we ensure that the triggering mechanism is appropriate and occurs only with valid reason, such as consideration of international agreements?
That is my view of what we must consider if we are to meet the objectives of Senator Banks. There are statutes or provisions in our books that have not been put into force. I share the views of Senator Beaudoin; I think in a free and democratic society, citizens should know to what they are bound. They should know their obligations and what they can expect. There should be no statutes forever hanging over their heads that might affect them at some point in time. Parliament must legislate for something — it is a question of basic philosophy. We are not legislating just to keep piling up layers on layers, or to put more potential obligations on the heads of citizens. That is not the role of Parliament. When we legislate, it is because we have a specific purpose and specific needs to meet.
I believe Senator Banks' bill fulfills a fundamental democratic objective. It is essential to ensure we balance his objective, which we share around this table, with the proper system to take into account some particular circumstances. I do not see a contradiction per se between Bill C-205 and this Bill S-12 — except that in Bill S-12, we have to provide an opportunity to save a bill or a provision that deserves to be saved. However, as in Bill C-205, ministers have to come forward and explain, and there is a vote.
It is a very heavy process. It is the legislative process. That is why I feel that if you come to us with some suggestions on how we could complement this with fulfilling the bill's objective, we would certainly be satisfied that the purpose of this bill has been met.
I do not know if I am simplifying it too much, but that is the way I am trying to understand it.
Mr. Ricard: My sense is that the triggering factor inBill C-205 is significantly different from that in Bill S-12, in the sense that Bill C-205 provides for building mechanisms — there is a joint standing committee, regulations are reviewed and so on. In the context of Bill S-12, the mere passage of time is the triggering effect. In the context of regulations, it is very proactive; in the context of Bill S-12, it is certainly more reactive. The passage of time creates a point at which there is an automatic inclusion of a provision on a list. Once it is on that list, however, irrespective of how it got there, the safeguards that Senator Joyal described in the context of Bill C-205 are also captured in the proposal we are putting forward. The report is tabled with each committee of each House, the committee looks at it, makes a report, et cetera. While the trigger may be different, once the mechanism is engaged —
[Translation]
In the end, the process is quite similar.
Mr. Keyes: The result is also similar. It is the repeal of a regulation or of an act.
Senator Joyal: In effect, there is no fundamental contradiction between the desired effect and the establishment of a system. It is a matter of determining, within the process, how we safeguard what should be safeguarded, if it should be safeguarded at all. And, if it should, there must be a parliamentary will to do so.
Mr. Ricard: Exactly.
Senator Joyal: It is not only a matter of a minister saying: "I will send a letter; I agree we should keep that." We all know what would happen: In most cases, the letter will be signed.
[English]
The administration is always reluctant to not maintain something in the books. The presumption is that it could be useful one day. Let us put it in the basement; it might be useful one day. There is something in this bill that satisfies my democratic instincts and my perception of the role of Parliament that is more than instinctive.
How can we ensure, as you have in Bill C-205, that we have a saving system? I am addressing this to you.
[Translation]
Mr. Ricard: Could you repeat that please?
Senator Joyal: How do you see the possibility of improving or adding something to Bill S-12 to give us the means to keep in the Statutes of Canada an act or a provision of an act that would eventually be useful?
Mr. Ricard: For the moment, it is the model that Mr. Keyes referred to earlier, a model that is quite similar to the one used for regulatory purposes.
I would like to take this opportunity to go back to what you were saying before with regard to it not be enough for a minister to simply write a letter. In the example we have presented to you, the minister will have to be persuasive because the motion he brings forward would be submitted to a vote. If the motion is rejected, the committee's report is adopted, which means that the provision will be repealed at the end of the year.
Again, this is a mechanism that pressures the government to explain the rationale that justifies a further delay. It is a question of balance.
Senator Joyal: Would there be a fundamental contradiction if we were to amend Bill C-205 instead, adding that, after ten years, statutes or provisions that have not been put into effect or enacted would be automatically referred to the reporting committee? I am sorry, I did not read the bill this morning.
[English]
It is the law of statutory instruments, and I wonder if it would be legally sound to put something that would be the statute instead of the regulation in statutory instruments? I do not want to pronounce on that because I do not have the statutory instruments in front of me.
[Translation]
I do not mean a huge legal issue. Would it not be the way to go?
[English]
In other words, we would take those clauses of Senator Banks' bill and add them to the statutory instruments as a new section. Instead of a stand-alone bill, it would be an amendment to the statutory instruments that would bring the provisions of the statutes under the mechanism of Bill C-205 after 10 years. I am offering you something.
[Translation]
Mr. Ricard: We could certainly look at that option. I would like to make the general remark that, in the case of Bill C-205, we are essentially talking about regulations while in the case ofBillS-12 we talk about acts. It is a matter of grouping them. We will have to see.
[English]
Senator Joyal: Our researcher is handing me the act. Of course, it is an act to amend the Statutory Instruments Act. We understand what it means by ``statutory instruments.''
[Translation]
Those are statutory instruments.
[English]
It is not the statute, or provisions of statutes. They are essentially the instruments. I will have to look at that again.
Senator Bryden: I had the wonderful experience of serving on the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations for a number of years.
Bill C-205 gives a statutory basis to a process that was in place through some other instrument. The legal counsel of the joint committee were pressing hard for a statutory basis to be able to bring to a conclusion disputes with departments and deputy heads in which they disagreed on the interpretation of how regulations were being applied. A limited number of these instances, I believe, that are referred to under the part that deals with revoking regulations will relate to the fact that the regulations are revoked because they have not been used or because they are too old.
This report that comes from the Standing Joint Committee for the Scrutiny of Regulations basically says that they have worked for seven years with this department to get them to adjust the regulations to comply with the authorizing statute. They have not been able to make a decision.
Therefore, they make a report to the House of Commons. This puts it in statute. It is laid before the House of Commons, and it is not prevented. The report is adopted by the House of Commons and whatever action is recommended by that committee is taken. Normally, it is to disallow the regulation. That is their sanction.
You get a large pile of them every time you go to the meeting. Some are five, six or seven years old. The discussion has gone on and on. At some point, a final letter is written to the minister noting that unless the minister agrees with the committee, it will disallow the regulation because the department is in violation.
I find the chart that you have developed to show what actually happens in that situation to be very instructive. It is much more complicated beyond the chart. A significant number of things happen before you ever get to this point on the chart.
If you turn to the proposed process for repeals in the chart, Senator Joyal is right that the standing joint committee triggers the mechanism here. The trigger in Bill S-12 is the passage of time — a statute is too old.
I do not believe that you could put Senator Banks' draft bill under the umbrella of the Statutory Instruments Act, because we are talking about repealing actual statutes here. The chart provides the relief and opportunity. The minister is notified. The minister has a limited period of time in which to react. If he does not, then the system continues.
You do not even have to have closure of debate here. There is a limited time in which you can debate the issue. Then it either happens or it does not.
Presumably, if there were a good explanation, a statute would not necessarily appear on next year's list because people are agreed that it is there for a good reason and can stay. Perhaps we would cover what we are trying to do by grafting the saving provisions and the procedure outlined in this chart onto Senator Banks' bill.
Is it possible, somehow, to bring it under an act that already exists? There is nothing wrong with having a bill that would deal specifically with that issue of statutory law becoming too old without having been proclaimed, in a way that does not cause an international or diplomatic incident.
Mr. Chairman, there is really an opportunity here to make use of Senator Banks' concern and his bill and your concern to ensure that nothing gets inadvertently thrown out simply because everything is lumped in together. Let the trigger be a number of years and include the saving provision. Perhaps that is what you are proposing here.
I do not think we need to go all the way up the chart. The Minister of Justice makes his list, which activates the trigger and you notify the ministers.
The Chairman: Did you want to react to that, Mr. Ricard?
Mr. Ricard: Only to say that what you are describing is consistent with our proposal today, which is essentially to suggest an amendment. There are other issues with respect to which we did provide some draft text. In this instance, we chose not to because we wanted to have a discussion at the broader level. However, if it is the will of the committee that we draft something along the lines of what the honourable senator has just described and is reflected in the document we distributed, we would be happy to do that.
Senator Joyal: I was listening to Senator Bryden describing how these matters go on for years and years in the Standing Joint Committee for the Scrutiny of Regulations. It is the time factor that creates so much impatience that they write a report to deal with this.
I remember well, as will my colleagues around the table, when we decided to adjust the Official Languages Act, which was triggered through re-evaluation by the Standing Joint Committee for the Scrutiny of Regulations. There was a fight among the departments for years.
We know how the administration thinks sometimes. They hope for a new minister so that people will forget about the issue. Essentially, time kills everything. I feel that the time factor is the essential element underlying the committee's work on the statutory instruments. It is the same with this bill. There is not much difference between the two, in reality.
Senator Andreychuk: We are not looking for an exemption for the bulk of the work of the government, are we? Surely most acts and regulations should come into effect within 10 years. Will we be creating exemptions for those odd cases?
I came in during the discussion on international treaties. We are putting time limits on treaties more often now. There are some old cases that are triggered when sufficient signatories are on board. The majority, now, are imposing time limits. The future will take care of your concern.
On the other hand, if you were to attend international conventions knowing that there is unlimited time for compliance, would you not build that into the next bill? In other words, you would exempt the relevant act from Bill S- 12. It seems to me that would be another way of doing it. An international instrument may have an unknown implementation time — 5 or 10 years or another time frame — and some party outside of Canada may be the trigger. Would you not make such a case an exception to Bill S-12? You could build that into the bill. That would seem to be more forward looking than saying that we have had some dilemmas in the past. I would hope that we would build exceptions into future bills rather than have automatic exemptions. In that way, the trigger would be more responsible. It would meet the right of the public to know by what they are bound. Ten years is a long time in the life of an individual, of government and of Parliament. I would hope that it would work the other way round. Have you given any thought to that?
Mr. Ricard: Thank you, senator. You are right in reminding us all that Bill S-12 would deal with a rather small number of statutes or provisions in the absolute. It is still a significant number, but relatively speaking, it is not that bad.
The last time we appeared before the committee, in June, those of you who were present undoubtedly remember the discussion on the extent to which the answer lay not in Bill S-12, but in amending the coming-into-force provision of each piece of legislation so as not to leave it open ended. There was a good discussion around that issue, which was a slightly different approach from the one you are suggesting now.
The suggestion being put forward now is essentially to have a notwithstanding clause. For instance, a bill would be drafted and we would add, ``notwithstanding Bill S-12, this bill can stay on the books forever,'' or words to that effect.
Senator Andreychuk: You would have to make the case as to why it was an exception, and Parliament would hear it and then deal with the matter.
Mr. Ricard: That would be done at the time of introduction of the bill.
Senator Andreychuk: Exactly.
Mr. Ricard: Again, I am not at liberty to speak to that today because we have not discussed it internally. If this committee wanted us to pursue that option further, we would be happy to do so and report back.
Senator Banks: I hope that it would be agreeable to the committee if I take some time to think about what we have spoken about today, to give fair consideration to the matter. I have rather a lot to say, but I would like it to be informed by what we have heard today.
The Chairman: I do not see any problem with that, Senator Banks.
[Translation]
Senator Beaudoin: I agree with you. I have not been able to fully study the texts nor the plan that were submitted to us. There are certainly interesting things in there. I would like to reread Senator Joyal's explanations.
We can always propose amendments but, at some point, we have to study them in-depth. I think I would like to wait for the next session to give my final opinion.
[English]
The Chairman: Your point is well taken.
Senator Banks: I have discussed at some length a number of amendments with today's witnesses, and with which we are in agreement. We need to discuss those at some length.
The Chairman: That is not a problem, Senator Banks.
On behalf of the committee, I thank Mr. Ricard and Mr. Keyes for appearing today.
The committee adjourned.