Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6 - Evidence for April 22, 2004
OTTAWA, Thursday, April 22, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-11, to repeal legislation that has not been brought into force within 10 years of receiving Royal Assent; and Bill C-17, to amend certain acts, met this day at 10:58 a.m. to give consideration to the bills.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we will resume our study of Bill S-11, to repeal legislation that has not been brought into force within ten years of receiving Royal Assent.
You will recall that we commenced our study last session, when the bill was known as Bill S-12. We thank our witnesses from the Department of Justice for appearing for this return engagement. We again welcome Mr. Daniel Ricard, Deputy Chief Legislative Counsel, and Mr. John Mark Keyes, Director, Legislative Policy and Development.
There is one housekeeping item. Our agenda indicated that there would be Web cast for this meeting. I am informed by the clerk that it is always Web cast; it is not always televised. This meeting will obviously not be televised this morning.
Gentlemen, you have an opening presentation. Please proceed.
[Translation]
Mr. John Mark Keyes, Director, Legislative Policy and Development, Department of Justice: It is a pleasure to be back here again with you to discuss Bill S-11, the sponsor of which is Senator Banks. As my colleagues noted during our previous appearances before the committee, we recognize that this bill is a valuable tool for reviewing legislation and for ensuring that it achieves its stated purpose.
In addition to appearing before this committee, we met with Senator Banks on several occasions to discuss his bill and possible changes to improve upon its provisions. The Senator has responded to several of our concerns. Specifically, we have noticed that changes have been made to the bill since the last session, notably to clause 4 which calls for legislation and provisions that have been repealed to be listed in the Canada Gazette.
We strongly endorse these changes.
[English]
When Mr. Ricard and I last appeared before the committee in October, we discussed two additional changes that we would continue to suggest on behalf of our minister.
The first change concerns the repeal of provisions that have been amended since their original enactment. The bill as tabled would repeal those provisions if they were enacted more than 10 years ago. However, this would leave behind an amendment to a provision that has ceased to exist. This would cause confusion. What would be the effect of an amendment to a provision that has ceased to exist? This is far from clear, particularly if the amendment relates only to a portion of a repealed provision.
We would suggest that an amendment be seen as injecting legislative activity into the provision — in a sense, renewing it. Accordingly, the clock for bringing the provision into force should be reset so that it begins ticking from the time of the amendment rather than from the time of the original enactment of the provision.
The second change that we would continue to suggest has to do with the automatic nature of the repeal after 10 years. Although the passage of 10 years suggests that a provision is not needed, it is not conclusive. There may be a case for keeping the provision on the books at least a little longer so that it can fulfil Parliament's purposes in enacting it.
There are many possible reasons for keeping a provision on the books. For example, when an act involves provincial and territorial governments, time may be needed to make the administrative arrangements necessary to bring the act in force. The Contraventions Act is one example of this. Similar reasons may arise when an act involves an international agreement, particularly one that must be ratified by a number of other countries. Ratification often takes some time.
Since good reasons might exist for keeping a provision on the books, we would suggest that there be an opportunity for parliamentarians to consider whether an act or provision should be repealed. If the repeal is to take place on their watch, they should have a say in it.
To accomplish this, we have suggested that the bill be amended to include a procedure for reviewing whether acts and provisions ought to be repealed.
This procedure might be modeled on Bill C-205 that was enacted last year and which created a process for the disallowance of regulations. We have circulated, through the clerk, a diagram that outlines on one side of the page the Bill C-205 process and, on the other side, the outline of what we would suggest for Bill S-11.
I would be pleased to review the process in detail if honourable senators would consider that useful at this point.
The process would begin as it does in the bill at the moment. The Minister of Justice would annually table in both houses a report within the first five sitting days of each calendar year. The report would contain a list of all of the acts or all of the provisions that have not been brought into force within the previous 10 years.
Our procedure proposes to have that list referred to committees of each house or to joint committees, if that is the will of both houses, to study whether all the provisions and acts on the list merit being repealed.
The committees would then report to each house. They would report back either the original list or a modified or shortened list to exclude some acts or provisions that members of the committee consider should be kept at least for another year.
That report would be tabled, as I said, in each house. Then members of each house would have an opportunity to have some input into the list. That would be through a procedure that would permit them to table a motion to strike off the list any act or provision that is on the list. That is where the procedure resembles the procedure that is in place for Bill C-205 in relation to regulations.
That procedure would require the motion to be debated in one hour on the following Wednesday. If there is more than one motion, then the procedure would require those motions to be taken up in succession, if need be, on subsequent Wednesdays, until all of the motions had been disposed of.
Once those motions had been disposed of, the list — as amended by those motions if it was amended — would then be deemed to be adopted by that house. Once the lists are adopted in both houses, there would be another deemed repeal at that stage of items that appear on both lists. For example, if one house had decided to remove an item from the list and the other house had kept it on the list, that item would not be repealed. In order to be repealed, it would have to appear on both lists.
The process takes place in a fairly expeditious manner. The adoption of the reports, the repeals themselves, would be simply deemed by the act. It would not be necessary to have motions or resolutions in the Houses to that effect. The House procedure would simply involve debate on and consideration of the motions to strike matters from either list.
In a nutshell, that is the outline of the procedure that we would propose.
In conclusion, we suggest, as I said, the two changes to the bill that I have just outlined. We have given some thought to how the bill might be amended to make these changes. We would be pleased to work with Senator Banks and with the committee to prepare the amendments required to give effect to those changes.
The Chairman: In the proposed process for repeals in Bill S-12, the original bill, the diagram you showed us indicated committees reporting to each house on which acts and provisions should be repealed. Then the process could be changed by a ministerial motion to oppose adoption of the report and that would kill the whole report. Your change for Bill S-11 indicates that all that is now required is a motion to delete an act or provision. You could take out one section and the report could still stand.
Mr. Keyes: That is correct. It is a much less drastic procedure. It allows for surgical changes, rather than making it an all-or-nothing question on the list.
Senator Andreychuk: You suggested that there be two amendments and you told us you would be pleased to work with the committee in order to draft those amendments. That would be helpful.
Is this procedure the same procedure used for revoking regulations? Are there some minor adjustments? I cannot remember whether it is identical or not.
Mr. Keyes: There are certainly adjustments. We have taken from Bill C-205 the requirement for a debate automatically to be scheduled on the subsequent Wednesday, for time limits on that debate and bringing the matter to a vote. Those are the items that we picked up from Bill C-205, to ensure that the matters are dealt with expeditiously.
The remainder is, largely, a reflection of Bill S-11, rather than a process for regulations.
Senator Andreychuk: When I became a member of this committee, we were doing one of the first regulation revocations and reports. I asked under what authority we could cancel regulations by virtue of motions and processes through committees. I was satisfied at that time that it was constitutionally and legally valid.
Under your proposal, we will end up repealing acts by virtue of motions in Parliament, as opposed to introducing bills that would revoke statutes. Is that correct? I have not studied the constitutionality of that or the administrative aspects.
Mr. Keyes: That might be one way of characterizing it. I prefer to characterize it as a repeal that is taking place on the basis of the bill that is before this committee now. It would be revocation through an act of Parliament, through an act that is passed as Bill S-11. The resolution procedure is simply a component of that process that would be laid out in the statute itself for the repeal. It is still a repeal by Parliament, but through a mechanism that is established by an act of Parliament.
Senator Andreychuk: It is important that we see the amendments to determine how the deeming provision will fall into place. If we do not have that, we will have to introduce a revocation bill, per se, at every session. You have to incorporate a mechanism for revocation in this bill that has ongoing responsibility. I am interested in any discretionary steps. That is slightly different from introducing regulations.
Mr. Keyes: Yes.
Senator Andreychuk: Has that been considered? This does not fall within my area of expertise, and I do not know whether it falls within yours. I am certainly not casting any aspersion. Is that deeming mechanism constitutionally sound? Does it fall within normal parliamentary practices?
Mr. Keyes: I would draw a parallel between that and sunset provisions. In statutes we sometimes set a date for the expiration of the act. In a sense, here Parliament is doing the same thing, although it is a little more complicated than just specifying a particular day for a particular act. It is setting dates for repeal. The act will simply put in place a mechanism for establishing that date.
Senator Andreychuk: We establish dates for the mechanism to come into effect. It is not infinity. It is not an unknown. It is a time certain. Therefore, it is a specific process on which we can rely.
Mr. Keyes: That is right.
Senator Joyal: When you look at the two charts on Bill S-11 and Bill C-205 — and, I have the French chart in front of me — in Bill C-205, on the last third section of the page, it says:
[Translation]
End of the procedure.
[English]
You have a window there that does not appear on Bill S-11. Can you explain the procedure and the adoption process in Bill C-205? In the other one you have to have formal adoption of the resolutions by the two Houses if you want to abrogate the bill.
Mr. Keyes: Under Bill C-205, the question is to repeal or not to repeal, or to revoke or not to revoke the regulation. Thus, the diagram for Bill C-205 sketches out each of those two possibilities. The box "fin de la procedure" indicates a situation where the motion is adopted, so there is no repeal and the procedure comes to an end. The alternative is that the motion to oppose is defeated and then the procedure continues because it has not been blocked by the motion. It continues to the central box — a repeal of the regulation.
With Bill S-11, we envisage a much more surgical approach, namely, that the motions would not be opposed to the list as a whole, in the same way that the Bill C-205 motion is opposed to the entire repeal. The motions would simply deal with elements of the list. If those motions were to remove every single item on the list, then it would result in a situation where there would be no repeals at all.
Senator Joyal: That would be the end of the procedure.
Mr. Keyes: That would be the end of the procedure. Perhaps we could outline that as a possibility on the diagram. We were assuming that, in the ordinary course, some items would be left on the list and you would end up with some repeals.
Senator Joyal: One of the major differences between the two, as I read from the chart, the last window on Bill S-11, at the bottom the page, is that there is abrogation of the acts in the list of the two reports.
In Bill C-205, there is the abrogation by Governor in Council or the minister. In the case of Bill C-205, there is a further administrative or executive act that must be added to the parliamentary process that we do not have in Bill S- 11, if I understand it correctly. Am I right or wrong?
Mr. Keyes: Yes, that is correct.
Senator Joyal: In other words, once the process of abrogation of regulation is confirmed by both chambers, then it is assimilated to an order of Parliament to the proper authority to abrogate the regulation. It is what it is. In the case of an act, the will of Parliament is complete by the expression of the two votes in each respective House on the matter of abrogation. That is one of the differences between the two.
Mr. Keyes: That is right.
Senator Joyal: I now come to the point raised by Senator Andreychuk that the will of Parliament is expressed only through a motion and it is not given Royal Assent. There are three components involved in the passage of a bill: the concurrence of the House of Commons and the Senate, and Royal Assent. When we abrogate a bill, as Bill S-11 proposes, we express the will of the two chambers — that is, the two Houses — but there is no assent by the third element of Parliament in that initiative.
I raise this point because when we abrogate a regulation we give an order to the specific constituted authority that is vested with the capacity to propose the regulation and enact it. In the case of a bill, when we abrogate a bill, which is essentially an expression of legislative intention that would have a binding effect, we are relieved from the third element of the will necessary to form a binding enactment. Did you ever consider that as an element? Are you satisfied that we can do that in that way?
Mr. Keyes: Your point is well taken. Under the process, the House and the Senate would still have some input into the list. However, there would be no formal recognition of Her Majesty's role in that, unless it were through a minister of the Crown who would be able to bring forward a motion on behalf of Her Majesty.
Certainly, an additional step could be added. We could tack on another step to the process that would involve the tabling of a bill for the formal repeal of all of the items on the list. That is a matter for the committee to consider whether that additional step would be merited. Would it add anything to the process? We do have that step for regulations, but regulations are not made by Parliament itself, they are made by another body.
Senator Joyal: It is a delegated authority from Parliament.
Mr. Keyes: The regulations are often fairly technical. The additional step is in Bill C-205 to safeguard against gaps if a repeal takes place too quickly. It is to allow the regulatory authority itself to prepare something to replace the regulation. The step is there to give it the flexibility to choose the timing of the repeal and to take whatever other action may be necessary from a policy standpoint to deal with the matter.
With statute repeal under Bill S-11, as we proposed it, there would be no additional step. This is Parliament, itself, dealing with an act of Parliament, rather than dealing with something that has been made by a subordinate body.
Senator Joyal: In the case of regulation, it is delegated regulatory authority that is vested in Parliament and Parliament gives power to the executive, either to the Governor in Council or to a minister of the Crown.
When we respect that circle of abrogation, there is no question in my mind of any missing link.
I totally support the objectives of Senator Banks' bill. I have said it many times in the previous incarnation of this bill, that is, Bill S-12 and in discussions on this bill. I just want to ensure that what we are doing is constitutionally sound.
The Senate is often asked to vote on bills that contain clauses that abrogate sections of certain acts. However, those bills must go through the complete legislative process of being adopted by both Houses and given Royal Assent. We do that regularly. In this instance, we want to abrogate sections of acts or acts that become obsolete or are of no use. However, to do that in the legislative capacity of Parliament, which essentially contains the three elements, in my opinion, raises an issue of one of the links being missing in the normal legislative chain. The section specifies that Parliament is composed of the Queen, the two houses and so forth. In the case of enactment of legislation, it would be bound by that section. In the case of an abrogation for one reason or the other of an act, especially if it is seen as not being of any use, it could be done by a simple resolution.
Mr. Keyes: On that point, senator, I would not characterize this as a repeal by resolution. The resolution procedure is to prevent the repeal rather than to accelerate or effect the repeal.
The repeal would be taking place by operation of the act itself. The procedure for the motion is simply a component that is part of that statutory mechanism. The motion itself is not a motion for repeal. It is exactly the opposite. It is a motion for no repeal or not to take any legislative action.
The Chairman: The change to a motion to delete an act or provision is more like a miscellaneous amendment now as opposed to a full removal of the entire clause. Is that correct?
Mr. Keyes: I did not quite follow.
The Chairman: This motion to delete an act or provision puts it more in the category of a miscellaneous legislative law amendment. Is that correct?
Mr. Keyes: It does bear some similarity to that procedure. Tradition has been that, when miscellaneous proposals are put forward to committees, if any member of the committee objects to the proposal, it is removed from the package. In that sense, it is similar to the approach taken for the miscellaneous statute law amendment bills.
The Chairman: To return to the concern of the department that gives rise to all of this, it is based on, from what I am hearing, the effect on third parties, mostly other departments that would be affected or provincial-federal operations or international operations. Is that correct?
Mr. Keyes: Those are good examples of concerns we have in mind.
Senator Joyal: I am still wrestling with that. Perhaps it would be good for other senators to question our witnesses before I come back to this.
Senator Andreychuk: I wanted some clear understanding, as I am not a legal expert in this area, as to whether we can interpret the legislative authority, being Bill S-11, if we passed it, for future actions.
Frankly, I do not see the difference as does Senator Joyal between Her Majesty's role and Parliament's role. We are two arms of the legislative body. If Her Majesty passes Bill S-11, she confirms a process that deals with her rights. If we pass Bill S-11, we confirm a process that affects our rights on legislation.
That is why I wanted to know right at the start whether this is constitutionally sound. I cannot think of any other act where you build in machinery that binds future Parliaments to a process to that significant extent. Regulations are not a good example, because you have said that regulations are our delegated responsibility. We can complete the circle because it is what we do out of the house and back into Parliament.
This would be a unique way of handling legislative parliamentary and Her Majesty's authority. Is it constitutionally sound? Do we have any precedents for doing it? Part of it was the time certain, the mechanism itself, and whether the bill is legislatively sound from that perspective. I know of no examples.
Mr. Keyes: I do not know of any examples at the federal level. Provincially, the Nova Scotia legislature has enacted a provision to do much the same as this.
In other jurisdictions, again, I do not know of anything quite like this. Although, for example, in Australia, the Australian Parliament has a procedure that requires ministers to table lists of provisions each year that are not in force, but the repeals must take place in the regular way.
You are quite right that this is exceptional. I am not in a position to offer a constitutional opinion on it. I can simply point out that there is some similarity between this and sunset provisions that we have included in legislation, where Parliament builds into the act the provision for the repeal without a subsequent bill having to come forward later to accomplish that repeal.
Senator Andreychuk: Sunset provisions, as you have quite rightly pointed out, are as close as you can get to some parallel. However, a sunset provision simply repeals an act, as opposed to being a mechanism that has some effect in the future.
I know that precedents tend to lean the other way, because every so often we have a total clean up of the Criminal Code where we try to rationalize, do some housekeeping and take out outdated provisions, and we do it by introducing a revised Criminal Code. That is the other way of doing it.
Senator Banks has questioned why bills that have been passed for 10 years have not been enacted. Why are they on the books? It is misleading to the public, and it is not efficient to encourage enforcement, on a timelier basis, of the act.
That leads to a constitutional question as to whether this mechanism is sound, if we cannot find some precedent or authority for using it. I am not an expert. Reading your explanation led me to a conclusion that we should ponder that point and ensure that it is sound from a constitutional standpoint.
Senator Joyal: I do not want to extend the discussion for too long, but let me put in a nutshell my question on this.
In a sunset provision of a bill, Parliament as a whole — the three elements — has consented and assented to the fact that, under certain circumstances or by the mere passage of time, a bill will have no effect. I have no problem with that at all. It is within the complete parliamentary process and it involves all three elements of Parliament. When Her Majesty assents to a bill that contains a sunset clause, she formally expresses her acceptance that the provisions of an act will no longer apply under certain circumstances or with the passage of a period of time. I totally agree with that. As part of our legislative activities, we regularly deal with a bill that abrogates other legislation or substitutes other legislation.
When we abrogate, in principle, legislation as a kind of general authority conferred by Parliament — because Bill S- 11 would be a parliamentary act and it would be assented to by the Queen if the two Houses adopted it — we habilitate Parliament with the authority to in fact change the will of Parliament on bills that are not specified in that habilitating authority. It is unknown, in fact, which bill will be affected.
I have a problem with the fact that the expressions of the three constituting elements of the legislative authority of Parliament are not present in the proposal of Bill S-11 or in the chart that you mention, on the basis that, as you know, section 17 is quite clear; it reads that there shall be one Parliament for Canada consisting of the Queen and Upper House, styled the Senate, and the House of Commons. That is the constitutional definition of Parliament. Of course, section 91 says quite clearly that it shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for peace, order and good government.
Can Parliament, through an act of Parliament, circumvent the nature of Parliament by stating that, in certain legislative decisions, only the consent of two elements shall be required? In a way, that is what we are doing.
Senator Andreychuk: Can we bind future Parliaments?
Senator Joyal: I am not in a position to offer a final position on this but, as the Supreme Court stated in the Referendum case — the famous Manitoba case where the court expanded on legislative power and capacity — we cannot change the legislative capacity through a simple act of Parliament. That is an easily understood constitutional principle. Can we have a habilitating statute such as this to change something in the abrogation process, or must the abrogation process be subjected to the same test of the three elements of the enactment process?
Senator Andreychuk: We may need to hear from other witnesses who can go into that subject.
The Chairman: Would you care to comment?
Mr. Keyes: I do not think we can comment much further. Your points are well taken. The Manitoba Referendum case is certainly worth taking a close look at in relation to this bill. This morning, we are not in a position to comment on it further.
Mr. Daniel Ricard, Deputy Chief Legislative Counsel, Department of Justice Canada: The only comment I would add relates to the reference that we would be binding future Parliaments. Nothing precludes Parliament from enacting another bill eventually if it feels that this one is too cumbersome or whatever. The idea is, as opposed to repealing each statute, after 10 years, on an individual basis, that this process would be more efficient, perhaps, in ensuring that there is one process that applies to all statutes that have been on the books for 10 years but never proclaimed.
Parliament could always amend the act if it wants.
The Chairman: In your opening statement, you refer to the issue of amended acts and not having the clock start until the date of amendment as opposed to the date of the act coming into force.
I go back to the suggested change that was made in Bill C-205 with respect to ministerial motions on reports to delete an act or provision, which, as you said, Mr. Keyes, would allow you to tailor the report more precisely rather than just eliminate it.
Would that not also take care of the issue of when the clock starts and when it should not start?
Mr. Keyes: It would certainly be a mechanism for trying to deal with that issue, although our view is that it would be better to take care of the issue at the outset rather than putting it on the report or putting it on the list and dealing with it in committee. If one of these provisions went through and was repealed, you would be simply left with a later amendment and a good deal of confusion about what its significance is, because the underlying provision has been repealed.
Our view is that that is a fairly clear case of when you would not want to repeal a provision, even though it was more than 10 years old. Our view is that it should be addressed specifically in the bill rather than being left to the procedure that we are suggesting.
Senator Joyal: I want to conclude on a positive note, because I do not want to prevent this bill from being put to the chamber. You made two suggestions. We have the sponsor of the bill with us. Would it be possible for you to come back with suggested wording that would meet with the acceptance of the sponsor of the bill so that we can deal with this bill expeditiously? We would like to get answers to our questions on the issue of the constitutional authority to repeal an act of Parliament.
Mr. Keyes: Yes, we would certainly be delighted to assist you in drafting the wording of provisions needed to make the two changes that we are suggesting.
The Chairman: Thank you very much. We look forward to seeing you again before the conclusion of matters pertaining to Bill S-11.
Honourable senators, we will now resume our study of Bill C-17, to amend certain acts, which we commenced prior to the Easter break.
With us again from the Privy Council Office are Ms. Ginette Bougie, Director, Compensation and Classification, and Ms. Joan Arnold, Director of Pensions Legislation Development, Pensions Division.
Thank you for taking time to come back and be with us in our deliberations on Bill C-17. I know there were some specific questions that senators had for you. I am not sure if you want to make a presentation before we go to questions, or if you would just like to make an opening comment or two. Did you want to make an opening comment?
Ms. Joan Arnold, Director, Pensions Legislation Development, Pensions Division, Treasury Board of Canada Secretariat: No, we do not.
Senator Joyal: I would invite you to make opening comments. Considering that we discussed this bill three or four weeks ago, perhaps it would be appropriate for us to hear from you the overall context in which those proposals and amendments take place. As much as I can recollect, your last presentation was succinct, but I do want to hear from you the objective of the amendments that occupy a large section of this bill.
Ms. Ginette Bougie, Director, Compensation and Classification, Privy Council Office: With respect to the disability allowance, three lieutenant governors wrote to the Prime Minister a few years ago expressing their concerns with respect to the fact that, if they do not complete five years of service but become disabled, their salaries stop, they get no remuneration and they are not entitled to a pension. Therefore, if they have to resign, they are without any type of financial income. As well, there is no protection for survivors if this happens.
Two or maybe three have been in this situation in the past and who came in previously and asked for special consideration because they felt they were being badly treated and were destitute or in financial difficulties because of the situation they found themselves in.
The problem is, to a certain extent, that lieutenant governors, except for more recent years, have tended to be appointed at a later stage in life. While they are employed as lieutenant governors, or while their appointments last, they are covered under the public service benefits plans like health care, dental care and long-term disability. However, with long-term disability, the insurance plan stops at age 65. With respect to public servants like us, we can then be on a disability pension. We receive a pension. However, for lieutenant governors, if they do not have their five years, they are not entitled to a pension and therefore are left without income.
This will allow lieutenant governors, who are over age 65 and who have not completed their five years of service for pension purposes, to resign, to be in receipt of a disability allowance, which is equivalent to what they would receive under the insurance plan if they were under 65, but only up until the time they would have the five years of service to qualify for a pension. During that time, while they are on the disability allowance and before they collect their pension, they would be able to continue coverage for expenses such as prescription drugs, all their health care if they have to be hospitalized, the dental care plan, those sorts of things.
Senator Joyal: Let us try to understand the situation. What raised a question in my mind when you made your presentation some weeks ago was that I had the impression that the system that is proposed in Bill C-17 for lieutenant governors was along the lines of the system in place for other civil servants in the system — the public service disability benefit plan and long-term disability plan — and I totally agree with that.
In the case of the lieutenant governors, I am somewhat concerned when we try to situate them in the scale of comparable levels of responsibility and salaries in the overall government system of Canada. I have some difficulty equating their status to say a judge, because judges are not appointed late in life, not at age 72. They have a minimum life span of professional activity. It is the same for a deputy minister or someone at the EX level. When we do a comparison in the system, there is an expected minimum of years of service. In the case of a lieutenant governor, the appointment is for a short term of five years. It seems to me that for such a short term of office or service to the public, with that much of a benefit accruing out of the performance of those functions, there must be some kind of balance between the benefit you receive and the duty that you assume for the time you are a lieutenant governor.
When I say that, I would link it with the previous intervention I made. I certainly do not underestimate the important component of the Crown in the legislative process. You were in the room when I made that argument. I am not one who thinks they do not exercise an important constitutional responsibility. I think they do have a very important constitutional responsibility, but I am trying to equate the benefit they will receive with duties they perform and the time for which they perform those. If a lieutenant governor, after two years, becomes ill, and after two years of public service has the same benefit or equivalent benefit of someone who spends 10 years on average in a comparable position in the public service, I think it is fair that we ask ourselves if it is right or balanced.
The Chairman: Before you answer that, could I also add to Senator Joyal's question? I should know the answer to this but unfortunately I do not. Is a lieutenant governor fully pensionable after five years, after one term?
Ms. Bougie: We have looked at parliamentarians, and we have looked at the judges, and the pension plans are different in each case. With respect to lieutenant governors, they are eligible for a pension after five years of service, but they have to be at least age 60 to receive their pension.
Ms. Arnold: The full pension is 30 per cent of their salary.
Senator Joyal: Can we call it salary or compensation?
Ms. Arnold: I believe it is called a salary.
The Chairman: If a lieutenant governor were re-appointed, would that 30 per cent increase or is that fixed?
Ms. Bougie: It is fixed.
Senator Joyal: Whatever the length of service, it is 30 per cent?
Ms. Bougie: That is correct. A lieutenant governor is appointed for five years. However, at the request of the government, they can continue until the government is prepared to appoint someone else, but the limit is 30 per cent of salary. Even if they serve six or seven years, that is the limit.
Senator Andreychuk: I have a question for further clarification. Are you saying that this bill specifies a period of up to the five years, in essence?
Ms. Bougie: Yes.
Senator Andreychuk: After five years, is a disability component built into the 30 per cent pension, so they may be reimbursed for prescription drugs and so on, or or it is simply a pension after that? Are there any disability benefits?
Ms. Bougie: It is simply a pension at that point. If they are 60 and have completed five years, including the disability benefit, it is their pension.
Senator Andreychuk: If a lieutenant governor were 43 years of age at appointment, and two years later became ill, would we be talking about a pension payment based on that three-year period?
Senator Joyal: In the example you mention, the person would not be in receipt of a pension until age 60.
Ms. Bougie: That is correct. This is similar to parliamentarians. In 2001, we introduced a provision which did allow parliamentarians who did have to resign prior to being eligible for a pension, because of disability, to be able to continue in their pension plan, to receive a disability allowance and the benefits plans like health care up to the maximum of six years of service. They would qualify for a pension, which does not become payable anyway until they are 55.
Senator Joyal: Do they continue to contribute to the pension fund during that period of time so that, when they reach the admissible age to draw the pension, they have the maximum pension that would be covered within the time span of their electoral mandate?
Ms. Bougie: Yes, they would continue to pay their portion of the contributions.
Senator Joyal: Does a lieutenant governor contribute to his pension funds, or does it accrue automatically from the treasury?
Ms. Arnold: They contribute seven per cent.
Senator Joyal: What happens to the contribution of the pension when the lieutenant governor is disabled? Suppose, after two years, the person is disabled. They would come under the disability plan. Would they continue to contribute to the pension during that period of time?
Ms. Bougie: They would have to continue to contribute their portion of the contributions.
Senator Joyal: Is it 7 per cent of their salary?
Ms. Bougie: Yes.
Senator Joyal: When you say that they receive a pension of 30 per cent, are there other positions within the public service of Canada, including judges and others in the whole system of government, where the pension is 30 per cent? Is 30 per cent the minimum?
Ms. Bougie: The formula for judges is two thirds of their final salary at termination, but they do have to have the factor of 80.
Ms. Arnold: A judge must have at least 15 years of service.
Senator Joyal: That is what I thought. They must serve for 15 years to get the maximum pension.
Ms. Arnold: Yes, and they must also satisfy an age threshold.
Ms. Bougie: There is a provision for disability pension in the Judges Act.
Senator Joyal: I know. Which position or positions in the public service would entail a pension of a flat 30 per cent?
Ms. Arnold: To my knowledge, no other position entails a flat 30 per cent. Most of are based on a percentage accrual per year of service.
Senator Joyal: That is normally the built-in factor. As long as you serve, you build your pension to a maximum within a threshold of age. That is the normal system. That is why I am trying to understand in which situation we are defining the Lieutenant Governor in relation to the working of the system. On what basis did you determine that 30 per cent is a fair and reasonable percentage?
Senator Andreychuk: I believe that in another bill we passed we determined that it was fair.
Ms. Arnold: This is Lieutenant Governor's Superannuation Act.
Senator Joyal: Is there a criterion that specifies that this is the minimum pension?
Senator Andreychuk: If I recall our discussion at that time, it related to the fact that some had worked for 15 years, 22 years, 25 years and 30 years. Our discussion focussed on the uniqueness of the office. I was around when we passed that bill. It is frightening to recall how long ago that was. Perhaps I need to be pensioned.
Senator Joyal: In other words, the disability protection included in Bill C-17, is one that is not based on any condition other than the fact that the person who is appointed happens to become disabled in whatever period of time after his or her appointment.
Ms. Bougie: The way the insurance program works — and that is why we called this disabilities allowance — for public servants, if I were to become disabled, under the insurance plan, I would receive 70 per cent of my salary. If I decided I wanted those years to count for pension purposes while I am on disability, I would have to pay the contributions and I would have to pay to get the insurance coverage during that period.
If, after two years, I still meet the criterion of being disabled, then I would be eligible for a disability pension. A disability pension is based on the number of years of service I have actually served to that date. I could then get access to benefits such as health care and dental care. As a pensioner, those could continue.
With the lieutenant governors, before age 65, they are eligible for up to 70 per cent of their salary as disability insurance. When they turn 65, as is the case for public servants and for parliamentarians and for any insurance plan, that coverage terminates. Therefore, this was to continue them on a disabilities allowance at least until they can reach the minimum five-year requirement for their pension. That is all it was designed to do, and to give them access to the benefits. Normally, if they are disabled, they will have expenses with respect to hospitalization, prescription drugs and all sorts of things like that.
Senator Joyal: You explained it well. We are creating an exception for a period of time over 65 that must continue until they reach the five years.
Ms. Bougie: That is correct.
Senator Joyal: We are making an exception.
Ms. Bougie: Yes.
Senator Joyal: I thank you for having stated that because it is an important point. When the bill was presented, it was presented as if we were just normalizing the situation. In fact, we are creating something special due to the particular conditions under which the lieutenant governors are asked to perform their duties. That is an important element and it should be on the record because that explains the particular nature of this bill.
Ms. Bougie: It is an exception similar to the exception we made with respect to parliamentarians who become disabled just before they turn 65 or after age 65.
Senator Andreychuk: Is it not more than an exception? We are recognizing that the type of people who are filling that office come from broader backgrounds and, therefore, have broader income capabilities and so on. Formerly, many lieutenant governors were people who had independent means. We are now appointing people from all walks of life and perhaps broader income capabilities, et cetera. That is also a factor. That is why it has become an issue. Some could not self-finance their disability whereas, in the past, most could.
Senator Joyal: I understand that point. Maybe in the past the persons who were selected to be appointed by the Governor in Council were people with some kind of professional background or long-term experience, because it is seen as a "senior position," but, by today's standards, sometimes the representative character of a person is as important as the length of time the person has been occupying a profession in particular.
All the clauses that deal with this issue in the bill go from page 4 to almost page 11 of the bill. Am I correct?
Ms. Arnold: Yes, you are correct.
Senator Joyal: Can you explain the various elements of all those clauses that have to do with an amendments related to survivors?
Ms. Arnold: It does appear that there are many amendments, but most are of a consequential nature. They will accommodate a situation where a lieutenant governor, who has become disabled and who has left office but will continue to contribute to the pension plan. It was necessary to accommodate that idea of having left office but continuing to contribute to the pension plan. That meant we had to open all of these sections of the act.
Many events and provisions are keyed to the time at which a person leaves office and ceases to contribute. In this case, because of the nature of the amendments we are making in order to allow these individuals to continue to contribute to acquire five years of pensionable service, they have left office, but they continue to contribute. The act was not built like that in the past. The two things happened at the same time. We had to accommodate that particular circumstance. That leads to every amendment that is in the bill that has to do with the Lieutenant Governors Superannuation Act.
Senator Joyal: Can you explain the status of the survivor's benefit that is proposed on page 8 and following?
Ms. Arnold: We had to open those sections of the act in order to accommodate these people who continue to contribute because, in order to get a survivor benefit, the survivor has to be in the relationship with the lieutenant governor at the point when he or she ceases to contribute. Because we have these people contributing at a point after they leave office, we had to put in a reference to the provision 4.1, which requires this disabled person to continue to contribute after he or she has left office. It was a matter of opening these sections to put in a reference to 4.1.
Ms. Bougie: It is to provide the same survivor benefits that they would have been eligible for had they continued sitting as a lieutenant governor for the full five years.
Senator Joyal: When you say "in a relationship," you mean in a conjugal relationship.
Ms. Arnold: Yes, either a spouse, or in a relationship of a conjugal nature.
Senator Joyal: Is there a period of time for that conjugal relationship?
Ms. Arnold: It has to be at least one year.
Senator Joyal: That is the same as in all other federal legislation.
Ms. Arnold: That is correct.
Senator Joyal: That is independent of the fact that in some provinces there is a different time frame for the recognition of legal implications in such a relationship.
Ms. Arnold: All federal benefit programs are keyed to one year.
Senator Joyal: They fall under the federal system in relation to that.
Ms. Arnold: Yes.
Senator Joyal: Could you comment on the death benefit on page 10, clause 9?
Ms. Arnold: I believe that is a provision that allows for a lump sum of the person's contributions to be paid if there is no survivor to whom a pension could be paid. Therefore, there is a payment of a lump sum.
Senator Joyal: How much is that?
Ms. Arnold: It is any amount by which the total amount of the contributions that the person has made exceeds the total amount that was actually paid out as pension.
If the individual starting to collect the pension only collected it for a short period of time and that individual died, whatever amount he or she had paid in as contributions that exceeded what he or she had actually gotten as a benefit would be paid out to that individual's estate.
Senator Joyal: It is like a payback of contribution.
Ms. Arnold: Essentially, that is it. It is only in a situation where there is no eligible survivor.
Senator Joyal: It is not an additional benefit. It is just a matter of paying the contribution back to the estate.
Ms. Arnold: That is correct, and the same provision is in other pension statutes. In the MPs' plan, there is a provision of that nature as well.
The Chairman: I would thank you, Ms. Arnold and Ms. Bougie, for coming back to share your expertise with us. I wish you all the best in your future endeavours.
Colleagues, before we adjourn, may I suggest that we schedule Bill C-17 for clause by clause for the next session.
Hon. Senators: Agreed.
The Chairman: Thank you.
The committee adjourned.