Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18, Evidence - October 8, 2014
OTTAWA, Wednesday, October 8, 2014
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:16 p.m. to examine the document entitled Proposals to correct certain anomalies, inconsistencies and errors, to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada, and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we are continuing our study of a miscellaneous statutes amendment law proposal that was tabled in the Senate on May 15 of this year and referred to this committee on Wednesday, May 28. The committee held one meeting in May of this year.
The miscellaneous statute law amendment program was initiated in 1975 to allow for minor, non-controversial amendments to federal statutes in an omnibus bill. To be included in the program, any proposed amendments must meet certain criteria. They must not be controversial; not involve the spending of public funds; not prejudicially affect the rights of persons; not create a new offence; and not subject a new class of persons to an existing offence.
The proposals are then tabled in the Senate and the House of Commons and referred to the appropriate committee for further review. If any member of either committee objects to a proposal, for any reason whatsoever, that proposal is withdrawn.
To assist us with our review, the steering committee provided Justice Canada with a series of written questions and asked them to provide us with their responses. Those questions can be found in the briefing notes that were sent to all members earlier this week. I will point members to the appropriate questions as we proceed.
First, let me introduce the departmental officials who are here to assist us. From Justice Canada, we have Jean-Charles Bélanger, Deputy Chief Legislative Counsel, Legislation Section; Claudette Rondeau, Legislative Counsel, Legislation Section; and Julie Ladouceur, Legislative Counsel.
From Transport Canada, we have Alain Langlois, Senior Legal Counsel, Team Leader; Sylvain Lachance, Director General, Marine Safety; and Tom Oomen, Director, Highway, Border and Motor Carrier Policy.
My intention, unless someone has an objection, is to go through these series of questions and then give the officials an opportunity to respond. If committee members have questions at that point, we'll entertain them. Are there any problems with that approach?
Seeing none, the first question we provided in advance can be found in section B on page 3 of your briefing note. It's question 6 on the Bankruptcy and Insolvency Act. I believe Justice officials will respond.
Jean-Charles Bélanger, Deputy Chief Legislative Counsel, Legislation Section, Justice Canada: Thank you.
The existing text of the provision states that the cost of distress or, in the province of Quebec, the cost of seizure, is security on the property of a bankrupt under seizure for rent or taxes.
[Translation]
It is a mistake because claims, fees and disbursements are not securities.
[English]
Cost claim is not, in itself, a security for payment of those costs. Rather, the payment of the costs must be secured by security on the property. The way the sentence is written does not really make sense as it states that the costs are the security. The costs do not provide security for their own payment.
The same error is present in the French version of this provision. The existing text states:
[Translation]
. . . les frais de saisie constituent une sûreté de premier rang sur ces biens. . .
[English]
The proposed amendment would correct an error in the sentence and clarify the text of section 73(4). We believe that this is the most logical and least disruptive change to address the errors. The proposed amendment adds the words ''the payment of'' before the words ''the cost of distress'' and replaces ''are'' in the phrase ''are a security'' with ''is secured by'' so that the amended portion of the provision would state: ''. . . but the payment of the cost of distress, or, in the Province of Quebec, the cost of seizure, is secured by a security . . . .''
The equivalent amendment is made to the French version. The word ''les'' in the phrase ''les frais de saisie'' is replaced by ''le paiement,'' and the word ''constituent'' is replaced by ''est garantie par'' so that the amended portion of the provision would state:
[Translation]
. . . mais le paiement des frais de saisie est garanti par une sûreté de premier rang. . .
[English]
We have not been notified of any problems caused by the error and have consulted with the relevant legal services unit, which informed us that they are unaware of any problems caused by the error in the provision. They agree that the proposed amendment is unlikely to impact the operation of the Bankruptcy and Insolvency Act.
The Chair: Any questions?
[Translation]
Senator Joyal: I would like to welcome Mr. Bélanger and his colleagues from the Department of Justice. I understand from your answer that this is the result of a judgment or a debate that could have been before the courts and through which they would have identified the error and have led the department to recommend this change.
Mr. Bélanger: No, according to our information, this is not the case. This did not result from a problem in applying the legislation. This awkwardness in the expression became apparent when the provision in question was read, which is why the recommendation was made to correct it and replace it with wording that is more accurate.
Senator Joyal: Was it the Department of Justice that identified the lack of comprehension, or was it the individuals responsible for applying the Bankruptcy and Insolvency Act?
Mr. Bélanger: According to my sources, the mistake was found by our jurilinguists, our language specialists who help us draft bills. When you are constantly revising legislation, you can re-read provisions and identify awkward passages like this. That is how the error came to light.
Senator Joyal: Thank you.
[English]
The Chair: Does any other member have a question? No?
We'll move to the second question, section B, page 4. That's question 7, dealing with the Canada Shipping Act.
Mr. Lachance, I believe you will respond?
Sylvain Lachance, Director General, Marine Safety, Transport Canada: Good afternoon, senators.
With the entry into force of the Maritime Labour Convention, 2006, on August 20, 2013, Transport Canada has had to review all of its existing regulations and all relevant legislative provisions, whether under the Canada Shipping Act, 2001, or other pieces of legislation, including the Canada Labour Code, as well as all of its policies with respect to the protection of seafarers.
That work is still under way. We feel that it would be, therefore, premature for Transport Canada to propose any changes to the provisions, such as section 99 in Part 3 of the CSA, 2001, without having had the benefit of a more in-depth analysis. For this reason, Transport Canada would respectfully request that this committee have the proposal to amend section 99 of the Canada Shipping Act, 2001, removed at this stage — that is clause 24 — from the ''Proposals for a Miscellaneous Statute Law Amendment Act, 2014.''
[Translation]
Senator Joyal: Mr. Lachance, I read the notes on clause 24, and I share your opinion. It seems to me that there is a substantive change to the Canada Shipping Act, 2001. If we are asked to pass this amendment, we need to see during the study of the bill that there is an intention to invite both parties to ask that the minister become the adjudicator, rather than the intention of only one of the two parties to request that intervention. It seems to me that it is a decision of substance because, in one case, it ultimately becomes bound by the consent of the other person before adjudication can be obtained. I think that is a substantive change. As a result, do you not recommend that we approve the proposed amendment?
Mr. Lachance: We recommend conducting a more thorough analysis. In addition, in light of other instruments approved, including the Maritime Labour Convention, which was just passed not long ago, there will be other impacts related to similar clauses, and not just in the case of the Canada Shipping Act, 2001, but also for the Canada Labour Code. Therefore, we are asking that you not approve it and that you give us more time to analyze the overall impact.
[English]
Senator Joyal: I concur with the objection raised by Mr. Lachance.
The Chair: Anything else on this? No?
The third question is again on page 4, question 9, dealing with the Chemical Weapons Convention Implementation Act. We are expecting a written response from Foreign Affairs by the end of the week.
The fourth question is on page 5, question 12. This deals with the Department of Veterans Affairs Act. Again, Justice officials will respond.
Mr. Bélanger?
[Translation]
Mr. Bélanger: Unfortunately, because of the ''l','' the French version is incorrect.
[English]
The provision in the French version would not be deliberately drafted in such a manner. The existing text of the French version of (g.5) reads:
[Translation]
Le gouverneur en conseil peut prendre des règlements sous réserve des règlements pris au titre de l'alinéa g.4), l'autorisant à fixer les normes [...]
If the intention was to have the Governor-in-Council establish standards, we would have drafted it in a much more direct manner, such as ''le gouverneur en conseil peut prendre des règlements fixant les normes [...]''.
What is likely in this case is that an adjustment was not made. The introductory words of section 5 of the act were amended in 2000 by subsection 13(2) of an act to amend the legislative body concerning benefits for veterans. Unfortunately, since the minister is mentioned in the introductory words, we no doubt forgot to amend the paragraphs to insert the mention of the minister, which had disappeared, and the contracted pronoun is what was left. Therefore, we have the ''l''' and the ''lui,'' which referred to the minister, but that mention had been removed.
[English]
Employing the pronouns in the paragraphs to refer back to the person mentioned earlier in the text is a common and accepted drafting practice of French text.
At the time that section 5 was amended by an act to amend the statute law in relations to veterans' benefits, if the intent was that the Governor-in-Council would establish the standards, paragraphs 5(g.5) and 5(g.6) would have had to have been amended in the English version, because those paragraphs, unlike the French version, had repeated the word ''minister'' instead of using the personal pronoun. It's more a question of who is authorized to establish standards and enter into agreements relating to grave markers, services or assistance referred to in paragraph 5(g.1).
There are no implications to the proposed amendment to the administration of the act. It is our understanding that the department has applied this provision as it reads in the English version. The Governor-in-Council has made regulations under section 5 of the act. Those are the Veterans Burial Regulations, 2005, and those regulations authorize the minister to establish the standards and to enter into agreements. For example, subparagraph 3(1)(b)(ii) and section 7 speak to standards, and section 9 speaks to agreements.
Legal counsel from the sponsoring department confirmed that the minister has established standards in a policy document and enters into agreements with the Last Post Fund, which is refreshed every two years.
Senator Joyal: Is there a difference of treatment for regulations adopted by the Governor-in-Council? I understand they have to be published in the official Gazette, so there is a form of publicity of those regulations, versus those adopted by a minister.
Mr. Bélanger: Ministerial regulations are not subject to the requirements of the Cabinet Directive on Regulatory Management, though it is encouraged that they comply. Ministerial regulations don't have to go through the administrative portions of the regulation-making process. That's the difference.
Senator Joyal: In other words, there is an element of publicity that is not similar.
Mr. Bélanger: But encouraged.
[Translation]
Senator Joyal: Yes, I understand, but there is still a fundamental distinction between the two. The regulations remain regulations, but in terms of legal status and publication of by-laws, that is the objective of the regulations that are approved by the Governor-in-Council, so that they are published in the Canada Gazette and receive the publicity and formalistic nature of the legislation. Because, in principle, they are included in the legislation. You are well-versed in the distinctions; I do not need to hear more about them.
[English]
I'm not convinced that we should not stick to the Governor-in-Council regulation status, because it keeps to the publicity of the regulations. In my opinion, there is so much delegated responsibility through regulation that, as much as Canadians and people generally in public have easy access to those regulations through the official Gazette, it seems to me it's preferable to remain the status of a Governor-in-Council regulation.
Claudette Rondeau, Special Advisor and Legislative Counsel, Legislation Section, Justice Canada: Of course, it's your prerogative to choose whether to accept this proposed amendment or not, but it's our understanding that this provision is applied and interpreted in line with the English version. It's clear from the reading of it that the French version is not the correct version.
As my colleague was explaining, if the intent was for the Governor-in-Council to establish the standards or enter into the agreements, it would not have been drafted the way it is. In fact, paragraph 5(g.4) does have a provision that says the Governor-in-Council can establish standards.
[Translation]
Julie Ladouceur, Legislative Counsel, Justice Canada: To come back to the issue of publicity, in the Canada Gazette, for example, regulations from a minister are not subject to what happens at the pre-publication stage or to anything administrative, but they are still subject to the Statutory Instruments Act. As a result, there are certain requirements related to that legislation that will still apply. There is a certain publication and it is reviewed by the Standing Joint Committee for the Scrutiny of Regulations here. There are still some aspects that are preserved.
[English]
The Chair: I'm not clear on your position on this, senator.
Senator Joyal: I will be reviewing the process of adopting regulations that are under the responsibility of the Governor-in-Council, which in my opinion is a much more legalistic approach because it's directly delegated legislation, while general regulation has an inferior status in a way because it can be changed. There is a certain element of publicity, I agree, but it's never at the same level as the Governor-in-Council. I think nobody would bother with it.
The Chair: That's a broader discussion, is it not?
Senator Joyal: No, but the principle applies to this.
The Chair: Although the current practice is to recognize the English version. We shall move on.
The fifth and sixth questions we provided are on page 5, and they deal with the Immigration and Refugee Protection Act. We are expecting a written response on those questions this week.
The seventh question is on page 6 and deals with the Immigration and Refugee Protection Act. We have been provided with a response in writing, and I believe they are being distributed or have been distributed. I don't know if you want to take a look at that now, or we can come back to it afterward. We have witnesses here, so perhaps we should proceed and then return to this after.
The eighth question is on page 6, question 16, again dealing with the IRPA. Again, a written response is expected.
The ninth question is on page 7, the same legislation. The response to question 17 I'm advised is incorporated in the documents that were just distributed.
The tenth question is on page 7, question 18, and deals with the International Bridges and Tunnels Act. Do Transport officials have a response to that question?
Tom Oomen, Director, Highway, Border and Motor Carrier Policy, Transport Canada: Thank you, honourable senators, for the opportunity to answer.
In the International Bridges and Tunnels Act, in the French language version, there are two instances where the following expression is used in the French:
[Translation]
. . . le gouvernement provincial et l'administration municipale. . .
[English]
But then there is a separate instance where in the French it says:
[Translation]
. . . le gouvernement provincial et la municipalité. . .
[English]
So there is a difference between the two. In our view it's the latter that was intended — ''la municipalité'' — which refers to the whole apparatus of municipal government but council, whereas ''l'administration municipale'' refers to the bureaucracy. This is a minor amendment to change ''l'administration municipale'' to ''municipalité.''
The Chair: Questions or concerns on this? Seeing none, do we have any other questions that we wish to pose to our witnesses today.
Senator Batters: Thank you for being here.
I wanted to take this opportunity to say that the fact that we're doing a miscellaneous statutes amendment act is a good thing. Since I've been in the Senate, I've also been serving on the Standing Joint Committee for the Scrutiny of Regulations. Prior to that time, I worked for the Minister of Justice in Saskatchewan. It's quite a common practice in Saskatchewan to do miscellaneous statutes and amendments acts. I think they do it every year or two to clean up things. It's a useful process to clean up some loose ends. It had been a number of years since one of these was done and I'm glad to see that. I'm sure that involved a lot of work for you and your department.
Also, I want to take this opportunity to congratulate all those who have served on the Standing Joint Committee for the Scrutiny of Regulations, and the counsel on the committee, for their hard and often unheralded work in dissecting these types of matters and providing advice about how typographical errors or other errors can be rectified in this efficient way. Could you speak about how that relationship worked between that committee and some of the proposals that came forward?
Ms. Rondeau: I know from having worked on the file that we have some proposed amendments in there that originate from correspondence between the standing joint committee and the responsible departments. Usually we'll be contacted by the departments and they'll say, ''We've been in discussion with the standing joint committee. They raised this issue and we agree. Is this an appropriate amendment for this initiative? Does it meet the criteria of the program?'' Sometimes they do and we accept and put them in; other times we feel it might not meet the criteria, and we recommend they make the amendment in a different vehicle. That's usually how it goes.
Senator Batters: Does anybody else have any comment about that?
[Translation]
Mr. Bélanger: It is important to point out that the same rigorous review is carried out for the various provisions, regardless of where they are from. We look at each criterion in order to apply them very rigorously and in a way so that the document we submit to you contains what we think are provisions that are not controversial, do not involve the spending of public funds, do not create an offence, and do not affect the rights of persons.
[English]
The Chair: Is there anything else, members?
We have the question dealing with the Canada Shipping Act. We have had the recommendation of the committee that that one be withdrawn from the legislation. Senator Joyal has expressed a concern with respect to the provision dealing with the Department of Veterans Affairs and would like to have some time to consider that, if I understand him correctly.
Senator Joyal: Yes.
The Chair: We have not received additional responses. Unless there is a concern, perhaps we should defer consideration of our report until we have those additional responses in hand and then afford members time to consider any additional changes they wish to make until we finalize our report. Are we okay with that?
Hon. Senators: Agreed.
[Translation]
Senator McIntyre: Thank you for coming. I see that the first 10 series of proposals from the MSLA — the Miscellaneous Statue Law Amendment — have been submitted fairly regularly over the last 26 years. Unless I am mistaken, the last submission was in 2001. Why was the last time 13 years ago? Is that a good question?
Mr. Bélanger: Yes, and thank you for asking it. Basically, it was a long time ago. First, it is important to understand that we have to wait to collect a certain number of proposals to put together a collection that is worth being studied by your committee and the House of Commons committee. So that is one thing.
Then, since the amendments are minor, they are not, of course, as important as other initiatives you are dealing with. There is that factor, which means that, unfortunately, it may be too long before we meet. But the work continues. The program continues. We hope that when we have amassed more proposals, in sufficient number, we will have the opportunity to come back and present more proposals and submit them for your review.
Senator McIntyre: I understand that the amendments are necessary; otherwise they will definitely have an impact on the application of the act.
Mr. Bélanger: These improvements are basically desirable, and we would like to see them adopted. Unfortunately, the fear is that if they are not adopted as part of this program, for all kinds of reasons of priority, they will not see the light of day, which is why it is important to study them according to their merits.
[English]
The Chair: Thank you all for appearing here today. We will suspend briefly until we discuss the next matter on the agenda.
(The committee continued in camera.)