Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence for February 10, 2005
OTTAWA, Thursday, February 10, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-5, to repeal legislation that has not come into force within ten years of receiving Royal Assent, met this day at 10:55 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the Chair.
[English]
The Chairman: We have on our agenda Bill S-5, to repeal legislation that has not come into force within 10 years of receiving Royal Assent. Our first witness is the Honourable Senator Banks, the sponsor of the bill.
Hon. Tommy Banks: This is, as our colleagues from Justice Canada have pointed out, my third kick at the cat with this bill. It is in a slightly different form now than it once was. For those members who have not heard me before on this bill, I will not bore you with the story of how it came about, although it is quite interesting.
This is a list that is two years old and has not been updated since then, and from which I doubt that anything has been detracted and to which others may have been added since. It is a list of 47 acts of Parliament or sections of acts of Parliament, which have been passed by both Houses of Parliament, have received Royal Assent and have not been brought into force. My point, and my contention, is that when the will of Parliament has thus been expressed, and when the delegation of authority has been given by Parliament to the Governor in Council to determine on what date an act or a section of an act ought to come into force, there should be some reasonable time limit on when and how long that authority, having been granted by Parliament to a government, can last.
I have arbitrarily chosen, for the purposes of the bill, 10 years, because I think that it is not possible for any Parliament to reasonably expect a government, the colour and stripe of which you cannot possibly determine 10 years after the fact of such delegation, to continue to have that right. I believe that in many cases, and in many cases on this list, the circumstances which gave rise to the bill or to the section of the bill and to Parliaments having passed it will be unquestionably different 10 years hence and that the authority having been granted by Parliament ought not to exceed 10 years. I would not much care if it was 11, 15 or 20 years, but at the moment, absent Parliament's action on something, when a bill has been introduced, passed, received Royal Assent and become an act of Parliament, it can, and in these cases has, stayed on the books literally forever.
These bills can, at some future time, be brought out of the back pocket of some future government and used in circumstances in which it might be inappropriate. Bill S-5 is also, in effect, cleaning out the attic, because all of these statutes are on the books and can be brought into force at any time by whatever government happens to be in power at the time.
When I first devised and introduced this bill, it was called Bill S-12. It became Bill S-11, and it is now Bill S-5. It is now in a slightly different form than when it was first introduced.
The main thrust of the bill is that in the first few meetings of a given Parliament in any calendar year, the government will lay before that Parliament a list of those statutes or sections of statutes which have received Royal Assent, which are therefore acts of Parliament and have not been brought into force at that point for nine years. Absent the government's coming back to Parliament and obtaining, in effect, a re-delegation of the authority, on the following December 31, that bill would be repealed.
The first list that would be presented, if this bill were to become an act, would be presented to Parliament two years from the time that this bill would come into force as an act of Parliament. There is a lot of notice. No act of Parliament would be removed from the statute books until three years after that, so there is a lot of notice. The government has had, in each of these cases, and successive governments of different stripes have had in each of these cases, no less than 10 years, and by the time this bill comes into effect, at least 12 years old, and some sections of acts of Parliament on this list are approaching 20 years old, so this will not be a surprise to anybody.
My point is that Parliament having expressed its opinion and intent, ought to have some assurance that the government or the government after that, will act on that intent, or the government after that should be obliged to come back to Parliament and ensure they still have the authority that has been delegated to them by Parliament to make that determination.
The department had suggested, in the past, six amendments to this bill — and I agree with three of them. The first — and it is subject to an explanation which I hope to be able to ask about later — says that an act or a provision is excluded from the application that I am talking about if it is already in force in respect of anything or any part of Canada. I agree with that, if I understand it correctly, and I will want to ask some questions about that.
The second proposed amendment was that an act having been amended — which is not an uncommon occurrence — ought to restart the clock. I do not agree and will argue against that amendment to the present bill because it is a very easy thing to change, to exaggerate, a comma to a semicolon or an ``and'' to an ``also'' and the bill has been amended and the 10-year clock starts in. I do not think that is a good idea.
The third proposed amendment suggests the publication in the Canada Gazette of a list of all the acts to which this has applied. I agree with that and it is incorporated in the present bill.
The fourth recommendation was one that authorizes the Governor in Council to issue an exemption from this Act. That would, in my view, simply and completely obviate the point of the Act and I would oppose such an amendment.
The fifth one concerns the ability of the Minister of Justice to evaluate the effect of repealing acts that fall within the responsibility of other departments. After further consideration, they said they now believe that the concern can be addressed administratively through a consultative process without the need to amend the bill. I agree with that. That is moot.
I agree with the sixth proposal for amendment — it was a minor technical amendment — to amend the language in the English version; rather than saying ``not brought into force,'' replace that with the words ``was not in force'' in order to make that consistent with the French version. I agree with that.
I am going to quote some words of others about this bill rather than use my own because these people are more qualified than I am.
When he was responding at second reading of Bill S-12, Senator Kinsella said, ``It is important for a number of reasons, not just in terms of housekeeping, but in terms of issues of substance.'' Later, he said:
For example, section 248(4)(b) of the Emergencies Act was amended providing for the detention, imprisonment or internment of Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. I find a provision like that in a statute to be morally and politically repugnant...
That provision has never been brought into force happily. If the government, in other circumstances, felt that those kinds of powers were necessary after a ten-year period, then the government could come back to Parliament and say, ``We still need to have those kinds of measures.''
Even though we have not brought them into force, we need to have in our back pocket the capacity to bring them into force. He went on to say:
There is a virtual principle or sunset principle contained in this bill that I find to be salutary from a human rights perspective, and it is one reason that I support this bill.
My third point, in conclusion, honourable senators, is it seems to me that there should be some kind of accounting for measures not been brought into force. Parliament should be told why these measures have not been brought into force.
To further quote Senator Kinsella, he said:
It is a good idea in terms of public policy...in terms of the security of the rights and freedoms of Canadians from measures that may have made sense at the beginning of a decade but make no sense at the end of the decade. The time line that is being proposed makes eminent sense.
At the time that we were last discussing this in this committee, a precedent was referred to, honourable senators, which was thought to be useful. It was a British case which had gone to the law lords and had to do with a British fire brigade which sought, in the interests of its pension funds, to oblige the government of Britain to bring into force certain provisions of an act which had not yet been brought into force and which were subject to a coming-into-force provision similar to one I am referring to in my bill.
The government declined to bring those sections of the act into force, and the fire brigades took the government to court to attempt to oblige the government to bring those sections into force since they had been passed by Parliament. The court, and eventually the law lords, responded saying it would be inappropriate for the courts to become involved and to force the government to bring sections of an act into force.
Lord Keith of Kinkel observed that the executive, ``is unquestionably answerable to the Parliament'' and that the failure of the Home Secretary, in this case who was specifically designated, ``may be a breach of duty owed to Parliament, but that is a matter for Parliament to consider.'' He said that for the courts to find for the injured in this case, unions, would represent ``an unwarrantable intrusion by the court... and an usurpation of the function of Parliament.''
The fire brigades failed to have the courts oblige the government to bring those sections of the act into force. I would like to quote you some parts of the written judgments of the law lords having to do with the obligation of the government to act upon acts of Parliament when they have been delegated the authority to determine when they are brought into force. In this case the authority was to get delegated to the executive and specifically to the Home Secretary.
Lord Browne-Wilkinson said that to hold that the executive has ``an absolute and unfettered discretion'' whether or not to bring a section of an Act into effect:
...would lead to the conclusion that both Houses of Parliament had passed the Bill through all the stages and the Act received the Royal Assent merely to confer an enabling power on the executive to decide at will whether or not to make the Parliamentary provisions a part of the law. Such a conclusion ... is not only constitutionally dangerous, but flies in the face of common sense.
He went on to say:
... It follows that the decision of the Secretary of State to give effect to the statement ... that `the provision in the Act of 1998 will not now be implemented' was unlawful.
The law lords determined that the announcement by the Home Secretary that he would not, and the government would not, bring these provisions into effect was unlawful. I resume the quote. He said: ``... The Secretary of State made the attempt to bind himself not to exercise the power conferred by s. 171(1). And such attempt was an unlawful act.''
In the act of Parliament being considered here, section 171 is the coming-into-force provision, delegating to the Home Secretary the power to determine the effective dates of sections 108 to 117:
... it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute and, to an extent, to pre-empt the decision of Parliament....
Lord Mustill, writing in the same judgment, observes that:
... Parliament has its own special means of ensuring that the executive, in the exercise of delegated functions, performs in a way which Parliament finds appropriate ... for it is the task of Parliament and the executive, not the courts, to govern the country. In recent years however, the employment in practice of these specifically Parliamentary remedies has on occasion been perceived as falling short, and sometimes well short, of what was needed to bring the performance of the executive into line with the law, and with the minimum standards of fairness implicit in every Parliamentary delegation of a decision-making function.
Lord Lloyd of Berwick, writing in the same decision, said:
It might cause surprise to the man on the Clapham omnibus that legislative provisions in an Act of Parliament, which has passed both Houses of Parliament and received the Royal Assent, can be set aside in this way by a member of the executive. It is, after all, the normal function of the executive to carry out the laws which Parliament has passed, just as it is the normal function of the judiciary to say what those laws mean.
He went on to say, on the executive:
I agree ... that s. 171(3) throws light on the purpose for which Parliament conferred on the Home Secretary the power to bring the sections into force. But quite apart from s. 171(3), I would construe s. 171 so as to give effect to, rather than frustrate, the legislative policy enshrined in ss. 108 to 117, even though those sections are not in force. The mistake ... is to treat the sections as if they did not exist. True, they do not have statutory force. But that does not mean that they are writ in water. They contain a statement of Parliamentary intention, even though they create no enforceable rights. Approaching the matter in that way, I read s. 171 —
— which is the Coming into Force Act —
— as providing that ss. 108 to 117 shall come into force when the Home Secretary chooses, and not that they may come into force if he chooses. In other words, s. 171 confers a power to say when, but not whether.
He stated, further:
If that is the right construction of s. 171, then the intention of Parliament in enacting that section is exactly, and happily, mirrored by the reaction of the hypothetical man on the Clapham omnibus. The Home Secretary has the power to delay the coming into force of the Statutory provisions in question; but he has no power to reject them or to set them aside, as if they had never been passed.
Lord Birkenhead, writing in the same decision, said:
Parliament enacts legislation in the expectation that it will come into operation. This is so even when Parliament does not itself fix the date on which that shall happen.
The law lords have, in their writings, I believe, pronounced in favour of the thrust behind the point of my bill. That is to say, there must be some reasonable circumspection of the time during which the executive may continue to operate on the basis of a delegated authority to determine the coming into force of what is, after all, an act of Parliament.
Thank you, chair.
The Chairman: Thank you, Senator Banks.
Senator Nolin: Thank you, Senator Banks. You raise an important question, and I thank you for raising it.
No one is questioning the power of Parliament to pass laws. However, we have to put that in balance with the right of the executive to choose, in the public interest, the appropriate moment to implement them. I think we both agree on that. The executive is more than the police of a law that was adopted by Parliament. How can we maintain that proper balance if we adopt your bill?
Senator Banks: I do not think that the bill is an impediment to that balance. I think what the bill does, rather than getting in the way of that balance, is simply to ensure that that future government is obliged, at what I have arbitrarily suggested to be 10 years — it could be 15 or 20,but I think that 10 is a happy medium — to come back to Parliament by some means, and I do not suggest that I know enough about procedure to determine what that means should be, and say, ``We still need to have in our back pocket the authority to bring this act of Parliament or this section of this act of Parliament into effect,'' and to have Parliament, in effect, if you like, reiterate.
I understand why it is necessary to have coming-into-force sections, because there are all kinds of conditions precedent and things having to do with treaties and the like which need to be operating in the question of determining when an act or sections of an act will come into force. There are perfectly legitimate reasons. My only question is how long that goes on. I do not think that the balance that you quite rightly talk about is impeded or made unfair or unreasonable by saying that the government, the future government, needs to come back to Parliament by some means, in some way, wave a red flag and say, ``We have not brought this into force. We are reminding you that this has not been brought into force. We are reminding you that we still need it, and here is why we still need it.'' I want Parliament to be able to say yes or no again at that point. It is a reminder, and nothing more. I have used this term in discussions this morning with the folks from the department.
I am not suggesting that a bill needs to be reintroduced or a bill of reinstitution needs to be introduced. I do not know what the mechanics will be. That can be determined, and perhaps that ought to be a subject of an amendment to the present bill. I would agree with that as long as it is a great big red flag and not something that can be slipped under the door, attached to the tail of something else or made to seem insignificant, and not something that will be slipped into a committee and sluiced through the system.
The reason we had the notwithstanding clause worded the way it is, and the way it has to be worded the way it is in any bill that seeks to employ it, is so that it is a great big red flag saying, ``We are going to break the law now, folks. We are going to contravene the Charter now.'' That exactly is what I am talking about. I want the government to come back after 10 or however many years and say, ``We have not brought this into force.'' Otherwise, we are not paying attention to this. Most of us have not paid attention to these 47 acts of Parliament.
Senator Nolin: Probably 90 per cent of them are just sitting there.
Senator Banks: They are insignificant. However, there are entire bills here. The Motor Vehicle Emissions Act is here, lock, stock and barrel. It has never been brought into force. I suspect that if we looked at it now, we would not want it to be brought into force because it was devised at a time in which questions having to do with motor vehicle emissions have been completely obviated by time and history. However, that bill is sitting there and can be brought into force tomorrow. It does not make sense.
Senator Nolin: It is a measure of cleaning up the past, for the most part, and there is a component of the appropriateness of re-alerting a Parliament, 10 years later, that there is something it should be aware of. That is your intent.
Senator Banks: Yes, and to ensure that that government, however far into the future, is obliged to make that warning to Parliament and to obtain, once again, Parliament's continued authority to have the right to determine the coming into force.
Mechanically, we will be dealing in the first instance. If this bill were to become an act tomorrow the first effect of the statutes that would be affected by it would happen three years after that. The bill allows two years before this bill comes into effect.
Senator Nolin: There would be a definite deadline.
Senator Banks: Yes, and it is three years after the fact. It would be in the first case a long list, longer than 47 because there have been some added to it since then. I know none have been taken from it since then.
The only time we will be dealing with a long list is that first occasion because after that, it will be a much smaller, shorter, less complicated list.
Senator Nolin: I remember being a young lawyer, reading the Quebec Environment Protection Act. There was a series of sections dealing with various industries, aluminium, not being into force. The obvious reason was the economy. I still do not know if those sections of the law are in force.
Let me give you a scenario and this will be my last question. Let us say that your bill is now the law of the land and we receive a bill with a notwithstanding clause, saying notwithstanding any other act of Parliament, this law will come into force at the pleasure of the Governor in Council.
Senator Banks: I am not smart enough to answer that question. I do not know what trumps what.
Senator Nolin: You understand that is a tool that Parliament can decide to give to the government at one point in the future.
Senator Banks: Yes.
Senator Nolin: You understand that.
Senator Banks: That within itself would be a great big flag and I would never vote for such a thing.
Senator Nolin: It reminds one of the Canadian Bill of Rights before we had the Charter.
Senator Banks: Yes, I have prepared a stock amendment which I intend to use from this day forward. Each time there is a bill before the Senate, it contains a notwithstanding clause that amends it to say — the delegation is made to determine that it could come into force at a date and time to be determined by the Governor in Council — in the next paragraph, but if it has not been brought into force four years from the date on which it received Royal Assent, it is repealed.
Senator Nolin: Thank you.
Senator Ringuette: I am a new member of this committee, so therefore I am looking at your bill for the first time. I have now been given the list of 47 acts or sections, and the analysis that has been forwarded to us by Justice Canada.
I looked at the dates of these bills and all of a sudden, I am looking at the fact that members of Parliament and senators do bring forth private members' bills, as this one is, and sometimes they are not 100-per-cent favourable to the government in place. If your bill is not accepted by both Houses, then there might be entire private members' bills that have been approved and sanctioned but never enforced by the government, or sections of that they do not see in a favourable light but as parliamentarians representing the public, we see as needed.
Senator Banks: I do not think there are many private members' bills that have coming-into-force provisions in them. I do not know that. I am just guessing.
Senator Ringuette: It would be interesting to make that analysis. I do not know how many of these 47 we have here would include portions of, or entire, private members' bills.
Senator Banks: I should correct myself. Every bill has a coming-into-force provision. I doubt that many private members' bills have provisions which delegate the authority to determine the day of coming into force to the Governor in Council. I do not know that, but I doubt that it would be true.
Senator Ringuette: Many of these government bills come into force after the minister has drafted the regulations which we never see, of course.
Senator Banks: The Scrutiny of Regulations Committee sees them.
Senator Ringuette: I will probably have more questions when the Justice people are in front of us.
Senator Banks: I want to give an example to Senator Ringuette. I want to call your attention to two facts. First of all, the dates of the bills on the list that you referred to, many of them, you will note, say 1985. That is a reorganization date. Many of those bills, if not most of them, far predate 1985 by many years.
The second thing is what Senator Nolin pointed out to us. The Canadian Heritage Languages Institute Act was passed by Parliament and received Royal Assent in 1991. It is a great act. Parliament intended that this act should be given force and effect. It has to do with our heritage languages and setting up an institute to promote them.
It is not in effect. The reason it did not come into effect at the time, I am surmising, is that in 1991 we did not have a lot of money. It was put on the back burner. This act has never been brought forward. Now that we are in a surplus position, I think this act should be enacted but it will be in the attic and we will never hear about this act because it does not come to our attention. 1985 was a reorganization date and not the date on which these acts were originally given Royal Assent.
Senator Joyal: Senator Banks, there is an important principle involved in this bill which is fundamentally linked to the definition of what we call democracy. Democracy is a system through which the will of citizens are expressed in institutions that have the responsibility to frame that will into legal terms and to make it compelling to the executive, so that the executive has the responsibility of implementing it once Parliament has expressed its will in the usual form, that is, once the House of Commons, the Senate and Her Majesty have given Royal Assent.
By leaving legislation pending for so many years, to me it is a forfeiture of the will of Parliament. Democracy demands that citizens know with certainty what is the legislation to which they have to submit themselves, or they have to benefit from, as you said about the official languages institute that you mentioned.
The essential objective of putting a term to the absolute discretion of the executive over time, is to put a target date because if we do not, then it would become what I call ``tyranny of the executive.'' The executive would not be justified to explain why they do not proclaim it. The bill has touched on something fundamental in the institution of Parliament: to ensure that this bill, as I have expressed before, remains totally objective. The important element is to ensure that we give way to the capacity of the government to govern, that is, at the point in time to revisit their capacity to proclaim or to not proclaim. If government does not revisit its will to proclaim, then the will of Parliament will supersede that discretion. That is essentially how the mechanics of Bill S-5 should be framed.
As you will recall, in previous discussions on this bill, we expressed that some aspects of it needed to be refined to manage that kind of balance in the system. Are you satisfied that you have answered the concerns expressed by the Department of Justice when we first began our study of the bill?
Senator Banks: Senator Joyal, it is interesting that someone smarter than I might want to introduce an amendment to this bill, which I would look at carefully, that would set out, in ways that I cannot conceive, the means by which that extension could be obtained by the government, because you are right. The government has to be able to govern. I want to remind all of us that the executive to which this authority would be delegated is not the executive that would exercise executive authority at the time of such a repeal, or not, of the statute that would come into play. It would be a different group of people and that is part of the problem. If we were to say that we would delegate this authority to that ministry or to that Governor in Council, and that authority would end at the call of an election or the end of the next Parliament, then that would be fine. However, a different group of people would have this delegated authority given to them; they are not the same people to whom Parliament originally delegated that authority.
I anticipate that an amendment would need to be introduced to this bill to state the means by which the then executive could come back to Parliament years hence to state that it must retain the authority to bring a section of an act into force. As the bill stands, without an amendment, upon return to Parliament, the executive would lose this authority three years hence. That is because the bill, once passed, would not come into effect until two years after it receives Royal Assent. After that, another year would pass before anything would happen. That is the red flag that I referred to earlier when I answered another question.
I simply want to ensure that the means to include that in the bill is not by way of a simple amendment, because we could amend a phrase and start the clock again, or by way of a process that would have it fall under the Scrutiny of Regulations Committee, to which we in Parliament pay little attention; forgive me. There are better ways. I talked to officials from the Department of Justice this morning and mentioned that a process can look wonderful on paper, for example the former constitution of the U.S.S.R. There has never been a better constitution but there are practical effects when it comes down to the application of what is on that paper. There are better means by which an executive, through suasion and experience, and its application, can see things go through Parliament that do not have red flags attached and fireworks going off around them — things that can proceed through the system without a great deal of attention paid to them.
I would argue, and will argue, when such an amendment is made to this bill, which I anticipate, that it will need a great big red flag on it. The example I gave earlier was the kind of red flag that the notwithstanding clause in a given bill is intended to have. It is a big red flag that indicates we are about to contravene the Charter. In this case, I would like it to be a great big red flag that says, ``This is an old piece of legislation, but we still need the authority to determine when it will be'' — not, if it will be — ``brought into force.''
Senator Joyal: We can expect the Department of Justice to provide us with the substance of the amendments that should be added to Bill S-5 to ensure the balance of the interests of the government to govern and those of Parliament to remain master of the legislation and the will of the people. Senator Banks, do you expect that the justice department will come forward with the substance of what should be acceptable to ensure that objective is satisfied?
Senator Banks: I expect we might hear about it today. I want only to assure that it clearly circumscribes the tyranny to which you referred. In the absurd, Parliament, as other Parliaments have done from time to time, could pass a bill granting all authority to Don Cherry. That would be the will of Parliament. We could do that but if we do, there should be a time when someone would have to ask, ``Do you still want to do this?''
Senator Joyal: I am sure there would be limits in place before we appointed Don Cherry but I would be the one to open a debate. If we are to be given the text of a proposed amendment later today, I would like to look at it and get your views on it so that we can make progress in the study of this bill.
Senator Banks: I will look to the views of others as well as my own, senator. Thank you.
The Chairman: Senator Banks, do you agree with the proposed process for appeals that was furnished by the justice department?
Senator Banks: One minute while I verify the version.
The Chairman: It is from December 31.
Senator Banks: I have not seen that one until just now.
The Chairman: You have a copy.
Senator Banks: I do and I do not agree with the second box, which says, ``Committees study list and consider which Acts/provisions should be repealed.'' Allow me to finish reading it.
Senator Milne: On this point, may I just point out on some of these proposed amendments that I assume come from the justice department, on the one that I have here — Bill S-5, new clause 2.l be amended by adding after line 19 — then go to subsection 5:
(5) The motion shall be debated without interruption for not more than one hour, during which time no senator or member may speak for more than ten minutes.
It seems to me that Justice Canada is displaying a vast ignorance of the Rules of the Senate of Canada.
Senator Banks: The Senate would never agree to such a thing.
Senator Milne: No.
Senator Joyal: On the question of procedure, maybe it would be a good thing to table those documents, so that they are printed in the minutes and we can refer to that. Perhaps somebody could move that those documents be circulated.
The Chairman: Do you all have copies?
Senator Milne: So the minutes will reflect what we are speaking of.
Senator Banks: In answer to your question, chair, as I said, I am looking at this diagram for the first time. I will leave it to later discussion to determine whether this is appropriate. I have some reservations about it on the face of it.
The Chairman: May I suggest that you remain in the room while we hear from the officials from Justice Canada.
Senator Banks: I certainly will, thank you.
The Chairman: We will now hear from Mr. John Mark Keyes, Assistant Deputy Chief, Legislative Counsel from the Drafting Services Group and Ms. Christine Landry, Senior Counsel with the Legal and Policy Advisory Section.
[Translation]
Mr. John Mark Keyes, Acting Deputy Chief, Legislative Counsel Drafting Services Groups, Justice Canada: It is a pleasure for me to appear before this committee to discuss Bill S-5, the sponsor of which is Senator Banks. We closely followed your proceedings on the previous bills, namely Bill S-12 and Bill S-11, and we want to take this opportunity to do what we can to help.
We recognize the value of the proposed legislation, in that it creates a mechanism which, on the one hand, will prompt the government to review on a regular basis the advisability of enforcing legislation or certain legislative provisions, and, on the other hand, will allow for the review of legislation and the repeal of provisions that no longer serve a purpose.
In addition to presenting testimony to the committee, we have met with Senator Banks on several occasions to discuss his bill and possible amendments to improve upon its provisions. As I indicated earlier, the Senator has addressed a few of our concerns. Moreover, we have noted certain amendments, particularly to clause 4 which provides for a list of acts and provisions that have been repealed to be published in the Canada Gazette.
[English]
When we appeared before the committee in April of last year, we discussed two additional changes that our minister supports. We are here today to continue to advance those as changes for your consideration.
The first change concerns the repeal of provisions that have been amended since their original enactment. The bill, as tabled, would repeal these provisions if 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 been repealed, 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 when a provision is amended, the amendment should be considered as injecting legislative activity into the provision — in a sense, renewing it. Accordingly, the clock for bringing the provision into force would be reset so that it begins ticking from the time of the amendment, rather than from the original enactment of the provision.
I would note that the Province of Nova Scotia has considered this issue when, in 2001, it enacted legislation similar to Senator Bank's proposal — legislation for repealing provisions that have not come into force. In the case of the Nova Scotia act, the time period is five years.
The Interpretation Act of Nova Scotia was amended to add a new section 22(a). This section prolongs the period for repeal, as we have suggested for Bill S-5, by restarting the repeal period at the date of the latest amendment to the provision that was amended.
The second change that we have suggested would deal 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 a little longer so that it can fulfill 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 into force. The Contraventions Act is one example that we have in federal legislation today. Similar reasons may arise when an act involves an international agreement, particularly one that must be ratified by a number of other countries. Ratification may take some time.
Because good reasons may exist for keeping a provision on the books, we would suggest that there be an opportunity for parliamentarians to consider whether, in fact, an act or a provision should be repealed. If the repeal is to take place on their watch, they should have a say in its repeal.
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 would be modeled on Bill C-205, enacted a couple of years ago, which enacted an amendment to the Statutory Instruments Act. It added section 19.1 to the Statutory Instruments Act.
It is included in the documents that we have circulated for your consideration. One of the charts is our proposed procedure for Bill S-5. The other chart shows you an outline of the procedure under Bill C-205, the Statutory Instruments Act provision.
We have also drafted motions to add this process to the bill.
Senator Milne: Excuse me, sir, I have just heard from the interpreters in English and they do not have a text. They are trying to follow as best they can, but they are asking you to slow down a little bit.
Mr. Keyes: We have also drafted motions, which have been circulated for your consideration as well, to add this process to the bill, as well as to make the first change I discussed earlier — to reset the appeal period.
Finally, when we appeared previously, we had circulated a table that we prepared listing the acts or provisions that would be affected by the bill if it were enacted. We have now updated this list to cover provisions that would be affected if the bill were enacted this year, and if, as it provides, it were to come into force two years later in 2007. I believe copies of that table have also been circulated.
We would welcome any questions or comments that the honourable members of this committee may have about our proposed changes, and the motions that we would propose to accomplish them. I would also indicate that we are certainly more than prepared to work with Senator Banks in trying to modify what we have proposed. I am quite encouraged by his comments that his concerns might be met by putting in a red flag. I believe there is great scope for accommodating that in the procedure that we have put forward.
The Chairman: At the April 2004 meeting of this committee, Senator Joyal mentioned a Supreme Court of Canada decision in a referendum case. The court stated that we cannot change the legislation capacity only with an act of Parliament. The mechanism proposed has an impact on the abrogation process itself. Are you in a position to address the constitutional issue related by the committee in April 2004?
Mr. Keyes: The view that I expressed before, and I would repeat it today, is that I do not believe there is a constitutional problem raised with this bill. The bill establishes a mechanism for repeal. That mechanism is before Parliament; and if the bill is passed, it will have been approved as a piece of legislation.
In principle, what is proposed is not different from other statutes that have built into them sunset provisions, for example, which provide that the act is repealed after a certain period of time. There is also a provision in section 2(2) of the Interpretation Act that provides a deemed repeal in the case of provisions that are spent or no longer operative. We have examples of Parliament anticipating a repeal that takes place some time later but takes place according to rules that have been established by Parliament itself. In our view, that overcomes any constitutional difficulty about changing the enactment process.
[Translation]
Senator Rivest: I would like to emphasize the merits of Senator Banks' initiative. I believe that with the Senator's cooperation, we will have a mechanism in place for repealing statutes that no longer have any significance for Canadians in general.
You referred to an analogous provision in Nova Scotia. Do any of the other provinces have plans to bring in a similar initiative to repeal legislation that is no longer of any real value to the public?
Mr. Keyes: To my knowledge, Nova Scotia is the only province to have brought in such a provision. There is no comparable mechanism in place elsewhere in the country.
Senator Rivest: Quebec, for instance, has at certain times revised its statutes. When the provinces and the Justice Department undertake this kind of statute revision process, do they not seize upon the opportunity to clean up their legislation, so to speak?
Mr. Keyes: That is exactly what happens. Each time statutes are revised, outdated provisions and those that serve no useful purposes are repealed. At the federal level, we have the miscellaneous statute law amendment process. This process is employed on a regular basis to make minor legislative changes, and, on occasion, to repeal certain provisions as well.
Senator Rivest: Statute revision is an administrative, not legislative, process whereby officials do not actually repeal statutes as such. They remain on the books. However, there is no legislative mechanism in place to repeal a statute that is not in force. Senator Banks' initiative will create such a legislative mechanism to repeal legislation that is no longer relevant.
Mr. Keyes: You are correct about the statute revision process at the provincial level. Normally, this is a function of the executive branch of government. The process is somewhat different at the federal level. The revised statutes must be tabled to Parliament. Another piece of legislation, the Statute Revision Act, is required and it is this act that receives royal assent.
Senator Rivest: In provincial jurisdictions, is there no statute to validate this process?
Mr. Keyes: In certain provinces, there is one.
Senator Rivest: We do have this type of legislation on the books in Quebec.
Mr. Keyes: That is correct. Statute revision legislation provides for delegated authority, but the actual revision itself is not debated or brought forward by the legislature.
[English]
Hon. Pierette Ringuette: I am looking at the suggested amendments that you have brought forward. One is that clause 3 on page 1 be amended by replacing lines 20 to 24 and rewording clause 3 as follows:
When each House has adopted a report in respect of the same annual list, every Act or provision that is indicated for repeal in both reports and is not in force by December 31 following their adoption is repealed on that day.
That seems to undermine our normal legislative process of the House of Commons adopting bills or reports and then referring them to the Senate. This seems to say that the report will be tabled in both Houses at the same time, that both Houses will deal with it at the same time, and that both Houses will have to concur in their recommendations. If one House reports slightly differently in regard to one section of a bill to be repealed, the whole process is invalid because the reports do not concur.
I am not a legal mind, but this does not follow our parliamentary process.
Another amendment is that Bill S-5 be amended by adding after line 19 on page 1 the following:
2.1(1) A list laid before either House is referred to the committee of that House —or to the joint committee...
These amendments seem to dictate how we will manage our business with regard to the issues involved in this bill; therefore, I have great reservations. I have not had the time to look at the other two recommended amendments.
Mr. Keyes: I suggest the starting point should be to look at the bill as Senator Banks has proposed it. The repeal under that process takes place on the basis of a list that the Minister of Justice prepares, without any further involvement by either House of Parliament. The list is prepared and within a year any provisions on that list that are still not in force are repealed, so there is no further involvement. It is an automatic mechanism in the bill.
We are proposing additional parliamentary involvement — involvement by each House — in this process so that each House can look at the list. Rather than it simply being a list prepared by the Minister of Justice, the list would also be examined by committees of both Houses.
The procedure is based fairly closely on the procedure for the annulment of regulations that is found in section 19.1 of the Statutory Instruments Act.
Senator Ringuette: Do you not find that the way Senator Banks is proposing the bill does not put the onus on Parliament, but rather on the minister and the related department, to justify the reinforcement of authority on that section to Parliament? You are suggesting a reverse process here, that the onus be on Parliament.
Mr. Keyes: The proposed procedure is designed to allow the list to go through fairly quickly. Only if one of the committees decides that something should be struck off the list and reports that, will it be struck off the list.
It stays on the list unless one of the committees takes action to remove it. Once the report is made to each House, the report will be deemed adopted unless a motion is tabled to debate the report and to bring further changes to the report.
As I said, this is modelled on the procedure for the annulment of regulations, intended to put the default on annulment and to require the government to come forward and justify why the regulation should not be annulled.
Similarly, under the Bill S-5 procedure we are proposing the government would have to come before the committee and justify why a particular provision has to be taken off. It would have to convince the committees it needs to be taken off. The onus is on the government to take things off the list.
Senator Milne: I would suggest very strongly that you confer with Senator Banks about these amendments. I am looking at this same at one that Senator Ringuette was looking at, the second amendment, the long one. Looking at 2.1(4) and 2.1( 5), these are completely contrary to the rules of the Senate right now. This is not the way we proceed in the Senate. I rather suspect the rules committee of the Senate would not change its rules to suit the Department of Justice.
You want to look more carefully at the way the statutory — whatever it is that comes before legal every now and then to get rid of unwanted sections or unused sections of various bills — you look much more closely at the procedure outlined in that methodology because this does not agree with it.
We never meet on Wednesday at one o'clock and, second, we never confine someone to speak for not more than 10 minutes. These are contrary to the Rules of the Senate of Canada. You have to take that into consideration when you draft up some amendments like this.
Mr. Keyes: Your comments may well be worth considering in terms of section 19.1 of the Statutory Instruments Act because it was enacted with procedures like this. Those amendments originated in the other House.
Senator Milne: We are not following them because we do it here in the Standing Senate Committee on Legal and Constitutional Affairs, following our own rules.
The Chairman: Any other questions?
Senator Joyal: Those amendments add something very important in terms of what I call, parliamentary reality, in the process of enacting legislation or declaring a legislation of no effect.
The original proposal of Senator Banks of Bill S-5, at section 2 and 3, it says, ``the Minister of Justice shall cause to be laid before the Senate and the House of Commons, on any of the first of five days on which that House sits, a report...'' The key word is, ``the Minister of Justice shall cause to be laid ... a report.'' That is the procedure that you suggest.
Then, in section 3, it says: ``Every Act or provision listed in the annual report that has not come into force on or before December 31 of the year in which the report is laid is repealed ....'' In other words, it is the report and the expiration of time that nullify the existence of the legislation.
What you propose here, as much as I have been able to read quickly, is a different procedure. The procedure would be that once there is a report, both Houses have to concur on the report at a specific time. We can discuss the procedure, as Senator Milne has appropriately mentioned. Once the two Houses have expressed their will in their report, then the legislation is abrogated.
You add something very fundamental to the proposal of Senator Banks. You ask for the Parliament to take a stand whereas, with Senator Banks, it was just the mere fact that the report was laid and that after a period of time, automatically the report came into force.
To come back to the question earlier on, the constitutional question, I do not want to bother my colleagues with this but I think it is important. When the will of Parliament has to be expressed to abrogate legislation, should we go through a simple vote on a report or should we not go through the three steps which are usually the steps to amend a legislation: if we amend the legislation it revives the bill because Parliament has an opportunity to pronounce on the bill, as you said in the opening remarks.
If we are to abrogate some of the legislation, should we not follow the usual procedure of three readings, and not a single vote? I do not want an answer now. I know it is a complex question.
I am sure that Senator Banks understands the point I am trying to make here. It follows from Senator Ringuette's point at the beginning. I am expressing the same view that she is expressing in a way that we are sure that what we are doing, if we adopt your proposal, meets with the normal procedure of the legislative will of Parliament.
Mr. Keyes: Senator Joyal, you have very well expressed the issue that is before the committee. It is one of, on the one hand, trying to have a procedure that is expeditious and accomplishes the objectives of the bill but, on the other hand, allows a proper amount of legislative scrutiny for the process. The challenge is to find a balance between those two.
Senator Mercer: This is a picky point, to go on with what Senator Milne said. I find it amazing that the Department of Justice would not know that Parliament does not sit at one o'clock on Wednesdays ever. The House of Commons seldom sits then as well because it is caucus day. I am surprised that there is not somebody in the justice department who watches CPAC and finds out what is going on here. These are picky things but it is annoying and it shows a lack of respect by the department.
Senator Milne: I have just one further suggestion to make, which you make take into consideration that may simplify the procedure of perhaps going through the list, and then having a bill introduced in one or the other Houses to remove these items.
What if we added a section that says, after the report is tabled, an item can be removed from the list or be deleted by a motion from both or either Houses of Parliament?
The Chairman: Some of the suggestions made by the members of the committee today could be taken into consideration when you meet with Senator Banks and work on some amendments. I think Senator Banks mentioned at first that he would be willing to amend the bill so that the bill is acceptable and can be adopted.
Would you agree with that, Senator Banks?
Senator Banks: I would, and thank you for making that point and we have begun to discuss that.
There is a thought that I want to be sure we have in our minds.
I understand why the operation of this bill would be seen to be inconvenient by the bureaucracy. I can see some hairs standing up on the backs of necks, because no one wants to give up authority once it has been given, in any respect.
We have talked a lot about the automatic nature of Bill S-5. It is not really automatic, because there is nothing in Bill S-5 that talks about the onus to which Senator Ringuette referred.
The list that is perceived in Bill S-5 is not one that goes merely to Parliament. I assume that the ministry would see the list as well, in its other capacity. It is not as though once that list has been done, we are all doomed, and the acts of Parliament are gone. There is a year during which the government of the day can simply say, ``This is now in force and effect.'' That is the first remedy that argues that this is not an automatic procedure. The government simply brings the act into effect.
Second, some time during that year the government can come back to Parliament, by means that I hope we will discuss, and say, ``Notwithstanding this, in the case of this particular provision of this particular act of Parliament, we need an extension of the authority that has been granted to the ministry.''
It is not automatic. It is not that once the list is laid, the guillotine blade is up. There is a year during which all sorts of remedies can be exercised, not the least of which is the bringing into force of that section of the act. It is not a doomsday scenario. I have omitted in the act to say, because I thought it was self-evident, that there was a year during which all sorts of remedies could be brought the bear.
The Chairman: I suggest that you meet with Senator Banks and work on some text that can be furnished to us, and studied by us as soon as possible.
Mr. Keyes: We will certainly do that.
The committee adjourned.