Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for June 8, 2006
OTTAWA, Thursday, June 8, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-202, to repeal legislation that has not come into force within ten years of receiving Royal Assent, met this day at 10:45 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, our committee is meeting to have further consideration of a bill called Bill S- 202, to repeal legislation that has not come into force within ten years of receiving Royal Assent.
Yesterday, this committee heard evidence from the proposer and promoter of the bill, Senator Banks, and he is with us today. Today, we are honoured to have before us senior officials from the Department of Justice who have reviewed this bill and who will give us an overview of the government's position and the department's position in relation to this bill. We have John Mark Keyes, Acting Chief Legislative Counsel, and Christine Landry, Senior Counsel, Development and Special Projects Section of the Department of Justice.
I asked before we began if you had seen any of the transcripts of evidence of yesterday's hearing where a few questions were raised about clause 5 and so on. You indicated that you had an opportunity to have a cursory view. In the course of your presentation today, I would be grateful if you could respond to the two specific questions raised yesterday. Welcome and you have the floor.
[Translation]
Mr. John Mark Keyes, Acting Chief Legislative Counsel, Department of Justice Canada: Mr. Chairman, it is a pleasure for me to appear once again before this committee to discuss Bill S-202 sponsored by Senator Banks. We closely followed your committee's proceedings on previous versions of the bill — namely S-12, S-11 and S-5 — and we are happy to have the opportunity to participate in the debate process once again.
We noted during these proceedings, in particular during debate on May 31, that there was widespread support for this bill. It was acknowledged that this bill establishes a mechanism that would encourage the government to reconsider on a regular basis the advisability of having certain acts and certain legislative provisions come into force. At the same time, it would provide an opportunity to review acts and repeal provisions that are no longer useful.
In addition to testifying before this committee, we have met with Senator Banks on several occasions to discuss his bill and possible amendments to improve upon it. The senator did address the concerns that we raised earlier and has made a significant number of changes to his bill.
Clause 3 now provides a mechanism to delay the repeal of an act or provision by way of a resolution by either House of Parliament.
Clause 4 provides for the publication in the Canada Gazette of the list of acts or provisions that have been repealed.
Clause 5 deals with provisions that have been amended over the past nine years with a view to determining the year in which they are to be repealed, on the basis of the year in which assent to amend them was given.
[English]
We deeply appreciate the openness and understanding Senator Banks has demonstrated for the concerns we raised previously. When we appeared before this committee on previous versions of the bill, we circulated a table listing the acts or provisions that would be affected by the bill if enacted. The table has been updated to cover provisions that would be affected if the bill were enacted this year and if it were to come into force in 2008. We provided copies of the updated table to Senator Banks and understand he passed them along to you yesterday. Copies were also provided to the clerk of the committee for any of you without copies.
I would be pleased to answer questions about the technical aspects of the bill and how it might work in practice, particularly those provisions that reflect our suggestions about previous versions of the bill. I cannot comment on the position of the government. This is still being determined and remains in the hands of our minister and his cabinet colleagues.
I believe one of the questions you wanted me to address related to clause 5.
The Chairman: The application of clause 5.
Mr. Keyes: I will start with that provision and address the questions that were raised.
This is really a transitional section. It deals with provisions that were amended prior to this bill being enacted. It is not looking ahead to provisions that might be amended in the future. It is only looking at provisions that were amended in the nine years before this bill, if it is enacted, comes into force. The section is intended to deal with a transitional question about how the act would operate with respect to those provisions.
Our view is that, for the future, we would draft amendments with this act in mind, and draft them in a way to avoid problems that might otherwise occur. That has not happened and cannot happen with amendments that were drafted in the past because this bill has not yet been enacted.
Briefly, it is a problem where a provision was enacted, for example, 10 years ago and subsequently amended five years ago. The question is — what would the result be if you repeal the original provision and are still left with the amendment hanging out by itself?
This transitional provision is intended to avoid confusion about that result. It is also intended to revive the original provision as was stated yesterday. Senator Banks, I think, used the expression ``resetting the clock.''
It would be revived for a period of 10 years following the amendment. If the amendment was made five years ago, the clock would have started running then and four years from now it would come up on the list for repeal. The operative date is the date the provision was amended rather than the date on which the provision was originally enacted.
The Chairman: If a bill was in its eighth year and had not yet been proclaimed — say it was a bill with 500 sections and one section was amended — does that one section mean that the nine-year clock begins again on that whole bill?
Mr. Keyes: Not on the whole bill, but on the particular provision and any other provisions affected by it or related to its operation.
I have brought a couple of examples of such cases to give you a better sense of the problem.
Senator Banks: Before we do, I have to ask for a confirmation. You said that it is looking forward and not back. If I understand it correctly, the last year in which the exemption in clause 5 would apply would be the year in which this act would come into force.
Mr. Keyes: That is right.
As it reads, it says:
Section 2 does not apply to any provision amended by an Act that was assented to during the nine calendar years preceding the year this Act comes into force...
If an amendment was assented to after this act comes into force, clause 5 has no application.
The Chairman: It is transitional.
Mr. Keyes: Exactly.
The first example I brought is the Contraventions Act. By the way, these examples are noted in the table that was circulated. At the end of that table, you will see the last two pages list the provisions that would be affected by clause 5. I have taken these examples from that list.
The Chairman: For the record, you are talking about the Contraventions Act and you have given us two pages from that act. The first is chapter 47, page 30, which deals with sections 61, 62, 63 and 64. In addition, you have attached section 170 of the Youth Criminal Justice Act in English and French.
Mr. Keyes: Yes. A particular provision here is section 62 of the Contraventions Act. It was enacted in 1992 so it is more than nine years old. Ordinarily, it would be on the list — i.e. section 62 would be on the list. It is still not in force, having been enacted in 1992.
Section 62 deals with the powers of the court in dealing with young offenders and talks about the committal of those offenders and other ways in which the court might dispose of the offender.
In 2002, the Youth Criminal Justice Act was enacted and section 170 of that act contained a consequential amendment to the Contraventions Act. You can see that on the third page of the handout.
That amendment replaced paragraph 62(2)(a) with a new one. Basically, the amendment was replacing a previous reference to the Young Offenders Act with a reference to the Youth Criminal Justice Act. Therefore, it was consequential to the Youth Criminal Justice Act, which replaced the old Young Offenders Act.
The result is that today we have most of section 62 having been enacted in 1992, but paragraph (a) was enacted more recently. What clause 5 of the bill would do is reset the clock for the whole of section 62, because you have to read it all together. Paragraph (a) does not make sense unless it is read with the rest of subsection 2. Subsection 2 does not make sense unless it is read with the other sections as well. The effect here of clause 5, because of the 2002 amendment, would be to reset the clock on the whole of section 62 so that it starts from 2002 rather than from 1992.
Senator Joyal: It is not for one year.
Mr. Keyes: That is correct.
Senator Joyal: We had that discussion yesterday. There was an understanding that a possible interpretation could be that it was setting the clock for one year on the same basis that clause 3 of the bill is providing for when a resolution is adopted by either House of Parliament.
This one is different. It restarts the clock at the year the enactment was adopted.
Mr. Keyes: That is it exactly.
Senator Joyal: We wrestled with that yesterday to try to understand it. Senator Banks noted that the fifth line of clause 5 states ``or to any provision that is necessary for it'' and suggested that the word ``it'' be defined as being the amended provision. That would make the interpretation of the section clearer.
Mr. Keyes: I believe that is certainly the intention here with the word ``it.'' I agree that it would improve the clarity of the provision by amending it in that way.
Senator Joyal: In other words, this is transitional only for an amendment to an act that is in force but the amendment has not been proclaimed.
Mr. Keyes: That is right. The amendment is not in force and the original is not in force either.
Senator Joyal: The effect of Parliament legislating on that act — that is, bringing an amendment to that act — has the effect of reviving the old act for a period of 10 years.
Mr. Keyes: Not the whole act, just the amended provision.
Senator Joyal: That amended provision.
The Chairman: In this case, section 62.
Senator Joyal: You said you have another example.
Mr. Keyes: The second example is the Comprehensive Nuclear Test-Ban Treaty Implementation Act. The front of the package is in English and the other side is in French.
This is section 13 of the act, which was enacted in 1988. Again, it is something that will be 10 years old in 2008. Section 13 is still not in force in that act. It would ordinarily be on the list for 2008 because it was enacted more than 10 years ago.
However, on the next page you see section 183 from the Courts Administration Service Act, which was enacted in 2002. There are a whole series of changes that this section enacts, but one change in paragraph (h) is a change to subsection 13(2) of the Comprehensive Nuclear Test-Ban Treaty Implementation Act.
The purpose of this change is to update references to the Federal Court. It replaces the expression ``Federal Court Trial Division'' with ``Federal Court.'' That expression occurs in subsection 13(2), which I have indicated with an arrow in the third line.
The amendment adjusts the name of the court. Again, if section 13 were repealed, there would be questions about the significance of what the amending provision is now. It is changing a name in something that is being repealed.
Here we are suggesting that the logic would be the same. If Parliament has seen fit to amend a particular provision, it is as though it breathed new life into it and affirmed that it still has currency. Therefore, the clock should be reset to the date of the amendment.
The Chairman: Is your department satisfied with the two-year provision in clause 6? Do you have sufficient time?
Mr. Keyes: The resolution would be effective for only one year.
The Chairman: The act comes into force two years after. Is the two-year period enough? Is the department satisfied with that?
Mr. Keyes: Yes, I believe we could be ready in two years.
Senator Joyal: Could you live with one year? This bill has been in the mill for many years. It has been before the Senate three times.
Senator Banks: I believe it was 2002.
Senator Joyal: I refer to page four of the briefing note prepared by our researcher, Ms. Young: ``If this bill were to be passed by both chambers and receive Royal Assent in, say October of this year, it would not come into force until October 2008. The first report with the list of Acts or provisions would be laid before both chambers in early 2009, and the first Acts or provisions would be repealed on 31 December 2009. Waiting until 31 December 2009 for the first Act or provision to be repealed pursuant to the provisions of Bill S-202 seems like a long time.''
Do you not think one year would be sufficient so that it could be implemented by December 31, 2008 instead of 2009?
Mr. Keyes: I see the force of the argument that this bill in various forms has been proposed for several years. Certainly, we have been discussing it within the government over those years. All departments are aware that this is being proposed and we have canvassed them on the implications of the bill.
As to the acceptability of one year versus two years, I cannot say what the government's view would be on that. I see the strength of the point you are making.
Senator Joyal: The bill has two saving provisions — clause 5, which is a transitional provision, and clause 3, which provides that either House of Parliament can adopt a resolution that the act or provision be repealed. We have a saving mechanism such that you are protected by clause 5 and then by clause 3 with the resolution. If something comes forward as being forgotten, Parliament could act on that basis. The whole of the bill would come into force sooner rather than later.
Mr. Keyes: I agree. That adds more force to the argument that you present.
Senator Joyal: Originally, if I remember correctly Senator Banks, the bill did not contain clause 5. It was added later in the third version and the last part of clause 3 — the saving resolution of Parliament — was not in the original version of the bill.
Senator Banks: Not in the same way that it is now. That bill was first read on December 11, 2002. You are right, Senator Joyal. The saving provision was not there. Clause 3 simply said that every act or provision listed in the annual report that is not brought into force on or about December 31 of the year in which the report is tabled is repealed. There was no escape provided.
Senator Joyal: That is what I remember from the first version of the bill.
Of course, I am not opposed in principle to postponing the implementation to two years. I understand you want to ensure that the whole system is aware that this bill is not new and is in its third version. You have appeared here each time the bill has been brought forward and all areas of administration are aware of the impact of the bill. You gave us a list of all the acts that could be affected by it.
If you were to tell me that the government would accept the bill, I would say ensure that we have the benefit of the bill. If the government were to say no to this bill, I would prefer to make it more effective.
The Chairman: Mr. Keyes can speak only for the department and not for government so I would sense reluctance on his part to speak to that.
Mr. Keyes: That is right, I cannot speak for the minister or for the government as to whether they would be prepared to accept the amendment. I can only give my view as to the merits of the strength of the argument behind it.
Senator Joyal: Thank you.
The Chairman: Are there more questions?
Senator Andreychuk: I am not concerned about the two-year time limit but I am concerned that we set a time limit and start working to that end. Had we done that at the outset, we would be into the process already. My concern is getting on with the job.
You or other departmental officials made a compelling case the first time around that it would take some time to sift through all the legislation to ensure that you are in line. It would be less of a problem for Justice Canada but more of a problem for those in other ministries. Are you satisfied that would happen in the two-year period? Could you handle and manage the administration and costs involved, et cetera?
Mr. Keyes: I believe we have done a good job in terms of consulting other departments. We have done this largely through the legal services of each department. We have assembled the list of provisions as we see them covered and consulted on the basis of that list. We have done a substantial part of the work already that would be needed to get this running.
Yes, I would say that there would be no difficulty with this coming into force in two years.
Senator Andreychuk: The compelling reasons before are less compelling now because some of the work has been done.
My other question is a practical matter. Many things fall through the cracks when there is a subamendment to an act resulting in much toing and froing. If we pass this act, I am concerned that some amendments would not have been put into force because of some reasons that we all accepted, yet there is a compelling reason to have had those amendments. It will get caught. I am thinking of the same-sex benefit legislation for which we set aside the coming into force of the section concerning the Indian Act. At that time, as I recall, department officials or ministers said that they needed time to consult and negotiate with the Aboriginal communities as is their right.
As far as I know, that section has never been implemented. I am trying to remember when that was but certainly it was in the 1990s. I am concerned about other human rights and social justice issues that have not been implemented, not necessarily because the bureaucracy is at fault. We would be eliminating them and effectively causing an injustice. Have you given any thought to that?
Mr. Keyes: Yes. That is what the resolution mechanism is intended to deal with, recognizing that in some cases 10 years may not be enough time to wait.
The resolution mechanism requires the government to come forward and explain, albeit to explain every year. If those explanations are cogent and continue to be cogent, we would assume that either of the Houses of Parliament would accept them and pass the resolution. That resolution mechanism should be the key to dealing with the concern you are identifying. Certainly, we advanced that mechanism on the basis that there are some examples such as the ones you have mentioned where understandably it would take more time to bring them into force. Coming into force depends on negotiations with other governments, countries and particular groups that may be affected by the legislation.
Senator Andreychuk: You are talking about other countries and treaty implications were really the question, but in considering this, I was reflecting that it was not about international treaties. Will we be as alert to some social justice issues as we will be to international obligations? That is really my point. Would it be a policy statement to look for those in the resolution?
Mr. Keyes: When the initial list is prepared and tabled at the beginning of the year, each department would be expected to look at those lists and ask why these provisions are still not in force and consider whether there is still a justification for keeping them on the books, and continuing to try to bring them into force at some point.
Senator Baker: What would you think of amending the resolution mechanism in paragraph 3 to replace the three concluding words ``not be repealed'' with ``be proclaimed''?
Mr. Keyes: That would mean that rather than the mechanism being to remove it from the books, it would bring it into force. This would change considerably the complexion of the bill. You would be bringing into law and into effect something that will have some legal effect and have implications for the country, for the community.
That is rather different from repealing something that has never been in effect. If you are repealing something that is not in force, at a practical level it does not have any effect on people's rights and obligations.
What you are proposing would be to suddenly give effect to these things.
Senator Baker: No, a resolution of a chamber saying that something should be proclaimed does not give effect to the measure. It would give effect to a warning to the government that they would have to do something.
Mr. Keyes: You would still be leaving it up to the government to make the proclamation or the Order-in-Council.
Senator Baker: You could interpret it that way. What do you think of changing those words to ``be proclaimed''? Do you have any opinion on that?
Mr. Keyes: In a sense, those words are behind all of these provisions. When the legislation is initially enacted and the power to bring it into force is given to the government, the assumption is that eventually the government will do that.
A resolution affirming that is really not going beyond that initial intent of the provision. It might raise the question of whether there is now a time frame to be imposed. If the resolution does not say anything about time then, again, is it adding anything to the initial intent that was there when the legislation was enacted?
The Chairman: It also does not give a time period for the proclamation. The language of Senator Baker does not.
Senator Baker: The reason I am suggesting this is because of the final words you used yourself a moment ago — the intent of the legislation. Some of these bills were passed here. Six or seven measures were passed and senators around this table voted in favour of the provisions of those bills.
Take the first one, for example, where we passed section 254 of the Criminal Code. Section 254 of the code did a balancing act because what you are dealing with there are presumptions. If you take somebody's breath sample, the presumption is that the content of alcohol in that person's body was what was there when the person was driving in the previous two hours. That gets over an evidentiary hurdle for the prosecution. It is an identity presumption. Then you have an evidence presumption further on with the certificate, the first two you identified, 258(1)(c)(i) and 258(1)(g)(iii)(A).
When Senator Joyal was passing this particular measure, I am sure he looked at —
Senator Joyal: I thought you were going to say when I was giving the sample.
Senator Baker: I am dealing with institutional memory here. You are dealing with the enactment of a presumption, getting over an evidentiary problem for the prosecution. You have to have something balancing that. The balancing factor was, in my estimation, reading it and looking at the case law on it, that you had to provide that evidence to the accused.
I think I am correct in that assumption because you see case after case of charter challenges because it is not proclaimed.
There are other sections there the same way. Failure to proclaim provisions in force did not violate the rights of the accused under the charter. This is from the Prince Edward Island Court of Appeal, 1997. The accused was acquitted at trial on the grounds that the failure to proclaim into force sections 258(1)(c)(i) and 258(1)(g)(iii)(A) violated his rights under the Canadian Charter of Rights and Freedoms.
If you go on, the judgment was in agreement with the Court of Appeal of Nova Scotia, which made the same judgment. This year, 2006, you come up to the Alberta Court of Queen's Bench. The accused's rights under 11(c) and 11(d) of the Canadian Charter of Rights and Freedoms were not infringed by non-proclamation of section 258(1)(c)(i) of the Criminal Code, which provides that the accused be offered a specimen of his breath in an approved container for his own use at the same time he provides the same sample to the Crown, and section 258(1)(g)(iii)(A), which provides a similarly worded condition for admissibility of certificate of qualified technician.
I understand that this is probably the most litigated part of the Criminal Code. However, there are other examples that I can draw out where today in our courts there are charter challenges because this section has not been proclaimed. It was a balancing act when it was passed. The legislators probably would not have passed it in the beginning if that were not there, and they deal with presumptions.
There is a huge problem with the non-proclamation of sections of the code like that. There is a value in this bill. I can see something must happen, one way or the other. With passing laws here, you look at a law and think, ``We can pass that because this is there.'' However, all of a sudden, you look at it 10 years later and this is not there but that is there. This is a huge problem. There is a need for the bill, but should we have it drafted so that it simply goes back on the non-active list if we do pass a resolution saying that this should be taken off the list, but not be taken out. I have better examples of that in the act we were discussing yesterday.
When the Department of Justice sees all of these judgments in the courts — that is, at the provincial court level, by way of appeals to the Supreme Court and Court of Appeal and charter arguments about something that is not proclaimed — is there a bell that goes off saying, ``We either have to proclaim or not proclaim it; we are causing confusion in the courts.'' Is there a built-in mechanism in justice? I do not know if you want to comment on that.
The Chairman: I would like to hear from the witnesses on that.
Mr. Keyes: We have our criminal law policy group who are responsible for looking at exactly these kinds of developments that are going on in case law. You are absolutely correct in saying that there are some significant cases around these very provisions. They are the only cases I know of, though, relating to non-proclamation. As you suggested, this has something to do with this being the most heavily prosecuted part of the Criminal Code — that is, the breathalyzer and impaired driving provisions. Uniformly across the country, once these cases have been concluded, each court has decided that the failure to proclaim does not amount to an infringement of section 7 rights or other rights under the charter.
This is a good practical example to use to consider the implications of what you are suggesting, senator, of switching the mechanism so that, rather becoming an off switch to repeal, it becomes an on switch. The basic provision here requires enforcement officials to provide a breath sample to the person who has not given that sample. I have colleagues in the department who can deal with this more effectively, but I will give you my understanding of it. It has never been proclaimed because we do not have the technology. We do have not a device, a vessel or a container that can capture a sample of breath and allow someone to take it away and have it analyzed. It is not like a blood sample that can be put into a container and taken to a lab to be analyzed. The technology is not there.
When this was enacted back in 1968, there was some expectation that that technology would be invented.
Senator Baker: And in 1984 and in 1985.
Mr. Keyes: Yes, when the revision was renewed. However, the technology never arrived. I do not know if there is still some prospect of this being invented, but it has not been invented yet. If the government required this to be put into force today, it would create a practical problem with enforcement. This is tied to a series of presumptions that are integral to the enforcement of the breathalyzer provisions of the Criminal Code. If you brought this into force, these would no longer operate because enforcement officials would not be able to comply with the requirement to provide the container. The presumptions would then disappear. Ironically, you would bring this into force but at a practical level you would remove the presumptions and make the enforcement of impaired driving more difficult if this were brought into force without more.
The Chairman: You have given a practical explanation for why the word ``repeal'' should stay and ``proclaimed'' should not be substituted. The person to whom the question should be put is probably Senator Banks, the originator of this bill. I am sure he gave real thought as to why he would want the motion repealed and not proclaimed. Senator Banks, could you tell us whether you considered having it proclaimed rather than repealed?
Senator Banks: The first part of clause 3 says that the government has the option of doing that ``unless it comes into force.'' The list having been delivered to Parliament by the department calls to the attention of Parliament and to the government that something will happen to this bill. It will either be excused from repeal by a resolution or it will be repealed. There are three possible things that can happen to an act or a section of an act of Parliament after it is laid before Parliament. The government and Parliament have one year in order to determine what those options are.
Three options are better than two in the case of the acts that are to be caught by this because, in the example given by Senator Baker, we have heard what some of the implications might be. I think there is a larger proportion — and I would ask our witnesses if this is so — of things in here and certainly there are some entire acts in here which we obviously do not want to have there any more. We are not going to bring them into force and effect and this is to make the business of revising the statutes a little easier the next time we do it and to clean out the attic. In short, three options are better than two.
Senator Joyal: To follow up on the case brought forward by Senator Baker, since the technology does not exist to implement that provision, it means that the first option Senator Banks mentioned would not come into force. The decision would be: Should we repeal it — that is, let it die after a year — or should Parliament be called upon to adopt a resolution? What would you do in such a case?
Mr. Keyes: I am not really in a position to answer. That would really be more a question for my colleagues in criminal law policy, who are better aware of the situation and any implications. It will be one of the three options. I cannot say too much more about which one the government would choose or which one Parliament would choose.
Senator Joyal: To understand the process that this bill will trigger, as said by Senator Banks a moment ago, on each and every section of bills that have not been proclaimed, the administration will have to check one of three boxes. You proclaim, you delete or we keep it living for a year. That is the exercise you will undertake each year for all those provisions that will come to term but would not have been proclaimed within the period of nine years. That is the exercise the administration will have to do regularly each year.
Senator Andreychuk: It is more than the administration, because every time there is a problem, governments find solutions that look good in print. We are as sloppy as others in saying, ``This is a great idea.'' However, we do not investigate to see if it is practical and workable.
When these are repealed, some of us who were around when we passed them may be a little red-faced. We will be more cautious at the start. It is not always the bureaucracy.
Senator Joyal: Senator Andreychuk has a good point, because as much as it has an impact on the administration, it can have an impact on legislators as well. When we look the Criminal Code, we might want to look at which aspects of the Criminal Code have not been proclaimed before we add another section to the code. The effect of this might be to revive for another nine years a section that has not been proclaimed. I am thinking of the Criminal Code because for this committee it is one of the fundamental pieces of legislation that we are called to look into more regularly than any other legislation.
Mr. Keyes: However, the transitional provision would not operate on future amendments, so it would only be amendments made in the coming year, before this act comes into force.
The Chairman: Ms. Young, our researcher, has reminded me that under the current rules, any senator, at any time, can introduce a motion under the appropriate part of our daily routine of business for a section that is not in force to be brought into force. Senators can stand up in the chamber and ask the government to act upon our motion. That right exists.
Mr. Keyes: Yes, you are absolutely right that this does not provide a role only for the government. The list is tabled in both Houses, and so it is published to members of both Houses, and the resolution procedure is one that can be invoked by any member of those Houses.
Senator Baker: I would like to ask a question on a different act but before doing so, I wanted to point out that approved containers for blood and so on are gazetted under the Criminal Code. I noticed there was a change in the Canada Gazette last year of the approved container. There is a constant responsibility on the part of the Department of Justice to make changes and for the law enforcement people to come up with containers that are reliable and which can be sent in the mail to testing facilities.
As everyone knows, the breath samples which are commercially on the market today in a bottle or the roadside test, which is different from the breathalyzer, which is used consistently by law enforcement officers at roadside, are self- contained. The legislation brought a requirement for the government to come up with a container that would be approved, containing whatever solution to enable preservation for a reasonable period of time so that the accused could go and get a test done. That was the understanding and that is the way the legislation reads, completely separate from the police station.
I understand what you are saying that the common response would be — although I have never seen it given — that there is no such instrument invented yet. This has not been used, but I imagine I will see it soon in some cases because it would make a great Charter argument that the legislation probably should not have been passed in the first place.
Let me give you the example of the Contraventions Act. Hybrid offences are considered to be indictable, even though the Crown might decide to go summarily at trial. For a relatively minor offence, if one can call it that, an accused can be fingerprinted and photographed, which everyone is, if it is a hybrid offence. If it is an offence declared under the Contraventions Act, it is an even lesser standard. It is less than what one would consider to be an offence that is summarily charged.
Under the Identification of Criminals Act, we passed a recent amendment which stated that any offence under the Contraventions Act would automatically mean that somebody would not be identified as a criminal under the act. They would not have their picture taken and fingerprinting done. The point is that section 50 has not been proclaimed, which knocks everything out of kilter. So if section 50 of the Contraventions Act were to come up as one of the identified sections on this list and it was terminated — it was amended in 1996 but never proclaimed and this now 2006 so time has run out — how would you envision that to be treated under this bill?
In other words, we have all this legislation that was passed based on a section of a bill which has not been proclaimed. How would that work?
Mr. Keyes: I would assume that it would be considered for a resolution to defer any repeal. If Parliament has recently enacted legislation under the Identification of Criminals Act that depends on the existence of this older section, that is a good reason for one of the Houses to pass a resolution to keep section 50 alive so that it can be brought into force at the appropriate time.
Senator Baker: The problem now is that you see many cases coming up where someone's fingerprints and photograph are used for an offence that was clearly not indictable and the charges were dropped. The person presents a defence under the Contraventions Act and says, ``Well, this would be considered a contravention so therefore my fingerprints and my photograph should not have been used then to charge me in an offence down the road, something more serious.'' You see this in many assault cases. Because that has not been proclaimed, the courts always say, ``Sorry, but those fingerprints and photographs are legitimate. They do not have to be destroyed.'' However, the fingerprints and photographs would not be in existence if that section of the act were proclaimed and one could use it as an defence. If section 50 were to be stricken, then you, as the Department of Justice, could come forward and say, I presume, ``Just a minute. This affects a whole raft of legislation. We cannot tell you why we have not proclaimed it, but we would like for it not to be struck down.''
Mr. Keyes: Yes, I believe that is how it would unfold. If you or any other member of the Senate or the House were minded to bring that legislation forward yourselves, you could as well, and not only seek the resolution to keep it on the books for another year but also prompt some discussion about why this is not being brought into force.
This becomes not only a mechanism for keeping it alive but a mechanism for increasing accountability, in scrutinizing the government and asking why section 50 is still not in force.
Senator Baker: Fingerprints and photographs today for an offence that is considered a contravention remain on the books for future use by the police, all because we have not proclaimed a section which indirectly protects it. Therefore, would it not be better if we had those three words in there?
The Chairman: ``Not be proclaimed.''
Mr. Keyes: It might solve that particular problem, but the difficulty is what would it do in another circumstances?
The Chairman: Senator Banks has told us the reason.
I would like to ask if honourable senators have questions or comments.
Senator Zimmer: I had a question but Senator Joyal covered them in the beginning and Senator Baker clearly outlined my other two. I have no questions.
Senator Ringuette: As I said yesterday, it is a good mechanism to keep all of us in check in regard to legislation. As well, it keeps the executive branch accountable as to why, if a section is not sanctioned, legislators may have made a mistake. It may be that the executive branch may not want to accept the legislative branch of government going forward.
This measure will bring a lot of accountability into the system. I agree with that.
The Chairman: Senator Banks, do you have anything for further clarification?
Senator Banks: No. I am grateful for what the department and the witnesses have said.
I want to remind senators of something I said yesterday and that Mr. Keyes has just reinforced. None of the effects of this bill, in its practical application were it to become an act, are any more important than the other. Equally important with repeal or any of the other questions, or a motion by any member of either House of Parliament to bring a provision into effect, is the mere fact that this has been called again to the attention of Parliament. That is just as important as any of the other provisions.
That was pointed out when the Law Lords were examining the cases I have cited. One of them said that there is absent a demonstrable continued attention to the question of when this section of an act would be brought into force. It appears that the government has decided it will not be brought into force. The calling of attention to these things that are all hanging out there, some of which need to be brought into force and some of which need not be brought into force, et cetera, is just as important as any other aspects of the bill.
Senator Joyal: I am reading together section 2 and clause 3 of the bill. They refer to the year delay that is contemplated for the operation of the act.
Section 2 states:
In every calendar year, the Minister of Justice shall cause to be laid before the Senate and the House of Commons, on any of the first five days on which that House sits, a report listing every Act of Parliament or provision...
Therefore it is in the House of Commons and not in the Senate.
Senator Banks: No, it states, ``shall cause to be laid before the Senate and the House of Commons.''
Senator Joyal: I am sorry. I am concentrating on the delay aspect.
The bill states ``five days.'' Let us use an example. Let us say that the House sits on January 21. The Minister of Justice will have five sitting days from that date, according to the Interpretation Act. Is that right?
Mr. Keyes: That is right.
Senator Joyal: The House of Commons sits from Monday to Friday. Thus, they have a week after which they must table the list. As provided in clause 3 of the bill, either House of Parliament must then adopt a resolution. It means that there must be a vote. It is not just on the Order Paper.
The reason I ask is because I have seen motions stay on the Order Paper for months and months, if not years. Suppose there is a motion on the Order Paper but it is not adopted or voted upon within that year. That year is counted after the first five days after which the list has been tabled. Let us say the list was tabled on January 26. Does that mean either House has up to January 26 of the following year to adopt it?
Senator Banks: No, clause 3 overrides that.
Senator Joyal: Clause 3 of the bill states:
Every act or provision listed in the annual report is repealed on December 31 of the year on which the report is laid unless it comes into force on or before that December 31 or during that year either House of Parliament adopts a resolution...
We have only —
Senator Banks: The calendar year.
Senator Joyal: In other words, the last sitting day of December of that year.
Senator Banks: The short answer is that I have been colloquially referring to the year during which the government has a chance to do something. It is not really a year. It is from the time whenever Parliament first sits during a calendar year and December 31 of that calendar year.
Senator Joyal: We are talking of the year and we think that the counting of the year starts from the date the report is tabled. It is not so. It is within the same calendar year the resolution has to be adopted, which means voted upon. In fact it is less than a year.
Senator Banks: It will always be less than a year.
Senator Joyal: We keep saying one year but it is not exactly what the deadlines are here.
Senator Banks: That is right; it is not quite one year. It will always be somewhat less than a year.
Senator Joyal: It could not be more than a year. It is always less than a year. It will always be, in fact, 10-and-a-half or 11 months.
I want to be sure what we are doing here because it means that on the last day of our sitting we will have to look at the Order Paper to check which motions have not been adopted. We know that if those motions are not adopted on that day that will signal their end.
What kind of guidelines will you develop to alert the various departments that this is the process and that they must report to you? What kind of machinery of government will you have to put into place in order that the bill can be implemented by the administration?
Mr. Keyes: We will do largely what we have already been doing. Within our branch we will prepare the list of provisions that would appear in the calendar year. Working through the departmental legal services units, we will ensure that each department affected by provisions on that list is made aware that they have provisions on the list and that they know that if they want them to be preserved they have to take steps to have their minister propose a resolution.
It may also be possible, in working with the Privy Council Office, that these resolutions will be amalgamated into a single resolution. Rather than having a whole series, the government will decide which provisions it wants to keep, and then it would propose those as a group in a single resolution. Those are all mechanics that I see no difficulty in working out. I think it is a workable scheme.
Senator Joyal: When you contacted the various departments to make the list with which we were provided, did you encounter any departments that said the system would be too cumbersome? The Department of Transport, for example, has much legislation to monitor. Did you face any systemic objection to implementation?
Mr. Keyes: ``Objection'' may be a bit strong, but certainly there were concerns about the implications and the additional effort that would have to go into justifying a resolution and briefing the minister. However, at the end of the day, the view in the Department of Justice is that this is manageable.
The Chairman: Mr. Keyes and Ms. Landry, I would like to thank you on behalf of the committee for coming here today. Your explanations have helped us a lot. As you know from reading yesterday's transcript, we had a number of questions about the interpretation of clause 5. You began today by giving us two sentences that helped to clear that up for me. You said that clause 5 is a transitional clause, and as long we read it with that this mind, it becomes clear. Second, you said that it does not look forward. This is to help us get in and then the clock starts to tick. That helped us in our understanding. It helped us to understand what Senator Banks was doing in drafting the bill, so we thank you for that very much.
Senators, that concludes our work today on Bill S-202. However, before we leave we have some internal committee work. You have before you a copy of the budget for the Standing Senate Committee on Legal and Constitutional Affairs for the fiscal year ending March 31, 2007. You will notice that the biggest part of this budget is for 50 working meals at $500 each for a total of $25,000 and for other professional services at $42,000. If you look at budgets for other years, you will see that this is certainly not out of line, particularly compared to 2003-04.
Senator Andreychuk: I have sat on this committee for 10 years. It has always been understood that the committee would meet in Ottawa. Because we are dealing with criminal legislation, we need to meet with the ministry.
I was intrigued to see that we added travel expenses for $27,000. I see $42,500 and $27,610. I am looking at this for the first time. We added legal counsel and had a particular purpose for doing that in the past, but I am intrigued as to why we have added travel expenses.
The Chairman: As you know, I am brand new to this committee. I have never sat on this committee in my 16 years in the Senate, so your institutional memory is much better than mine.
However, I understand that there are a number of conferences that are very relevant to the work of this committee from time to time, and this budget item is for transportation for up to six senators to go to a conference or conferences. I believe that would be educational and informative. Although it is in the budget, it does not necessarily have to be spent. There is no intention that this committee will travel to hold public hearings from Newfoundland to Victoria.
Senator Joyal: I want to corroborate what Senator Andreychuk has said. I, too, am a long-serving member on this committee. I have been a member of it since I entered the Senate in 1997, and I have never travelled with this committee.
I have no objection to having travel expenses. Perhaps there will be a bill that we will want to bring to Canadians.
Senator Andreychuk: This is for conferences and seminars.
The Chairman: If a situation arose by way of a special study or a statute, we would have to make an application to Internal Economy to fund that. Those types of special applications are made from time to time, but there is nothing here for that.
Senator Zimmer: Even if we adopt this budget, it does not mean that we would necessarily spend the funds. It would depend on the circumstances and we would still discuss it.
The Chairman: Yes.
Senator Joyal: For the amount of legislation we deal with and the amount of hours we work, this committee is one of the least expensive.
Senator Baker: I move the adoption of the budget.
The Chairman: Is it agreed that the budget for the fiscal year ending March 31, 2007 be approved?
Hon. Senators: Agreed.
The Chairman: Thank you.
The committee adjourned.