Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 31 - Evidence - June 14, 2017
OTTAWA, Wednesday, June 14, 2017
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. to examine a document entitled Proposals to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain Acts and 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 begin our consideration of a Miscellaneous Statute Law Amendment proposal that was tabled in the Senate on May 9 of this year and referred to this committee on May 11, 2017.
The Miscellaneous Statute Law Amendment Program was initiated in 1975 to allow for minor, non-controversial amendments to federal statutes in an omnibus bill, frequently referred to as a housekeeping bill. Since then, 10 sets of proposals have been introduced and 10 acts have been passed, the last time in 2001. This is the tenth proposal to be tabled in Parliament.
Requests for amendments are forwarded to the legislation section of Justice Canada primarily by federal departments and agencies, although anyone can propose an amendment if it meets the program's criteria. To be included, the 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 Standing Senate Committee on Legal and Constitutional Affairs and the House of Commons Standing Committee on Justice and Human Rights for further review. If any member of either committee objects to a proposal for any reason whatsoever, that proposal is withdrawn.
After the two committees have studied the proposals, a Miscellaneous Statute Law Amendment bill is prepared, omitting any clauses to which a member of either committee objected. The Standing Committee on Justice and Human Rights has already reported on the proposal and has recommended that clauses 40 and 47 not be included in the act, so this committee need not concern itself with those clauses.
To assist us with this review, we have officials from Justice Canada with us this afternoon. Please welcome, from the Public Law and Legislative Services Sector, Mala Khanna, Deputy Assistant Deputy Minister; Jean-Charles Bélanger, Deputy Chief Legislative Counsel, Legislative Services Branch; Jacqueline Yost, Legislative Counsel, Legislative Services Branch; and Mélanie Beaudoin, Legislative Counsel, Legislative Service Branch.
Also in the room today and ready to come to the table to answer questions if we find it necessary are officials from Innovation, Science and Economic Development Canada; Canada Border Services Agency; Environment Canada; Parks Canada; Health Canada; Transport Canada; Indigenous and Northern Affairs Canada; Agriculture and Agri- food Canada; Treasury Board of Canada Secretariat; and Employment and Social Development Canada.
Thank you all for being with us today. The floor is yours. I'm assuming, Ms. Khanna, you have an opening statement.
Mala Khanna, Deputy Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice: Yes, I do. Thank you, Mr. Chair.
We're very pleased today to participate in your study of the proposals for the miscellaneous statute law amendment act, 2017. At the outset, I thought I would just clarify one point that you made, Mr. Chair, in your opening remarks. I believe that the last MSLA Act was given Royal Assent in February 2015.
The Chair: I wondered about that when I read it, because this committee dealt with it, actually.
Ms. Khanna: As I said, we're very pleased to participate in your study.
The document that you have before you was developed as part of the Miscellaneous Statute Law Amendment Program, and it's the result of significant collaboration between the Justice Department and members of Parliament.
As the chair noted, we previously appeared before the House of Commons Standing Committee on Justice and Human Rights on May 30. At that time, we were asked to address certain points during the examination of the proposals document and we provided answers to the members' questions. The committee presented its report on May 31 outlining its approval of the proposals document with the exception of clauses 40 and 47, which were withdrawn at the request of the sponsoring department.
I thought it would be helpful to use my remarks to put the program into context. I'd like to begin with a few comments about the history of the program, the factors considered before a proposed amendment is included and the applicable legislative process. Then I'll provide a general overview of the document's structure and content.
The Miscellaneous Statute Law Amendment Program was established in 1975 and is designed to speed up the adoption of minor amendments of a non-controversial nature to be made into Canadian laws.
The Honourable Otto Lang, former Minister of Justice and Attorney General of Canada, created this process for bringing forward minor amendments to federal legislation. Just as it is now, Parliament's focus was on bills making substantial changes to the law. It was difficult to make minor changes or to correct the occasional errors in our federal statutes.
Consequently, this program was created to make those changes without taking up too much time in either of the two houses of Parliament. Since the program was established, 11 bills of this kind have been passed and the current proposals would lead to the twelfth.
The legislation section of the Department of Justice is under my responsibility. It is responsible for the program, which is a means of correcting anomalies, inconsistencies, language that is out of date and errors that can sometimes find their way into federal statutes. More specifically, the program uses a bill to allow minor amendments of a non- controversial nature to be made to a number of federal statutes all at the same time instead of having a specific bill for each amendment.
If the amendments are not made through this program, some of them may never be made because they are not significant enough to justify the use of resources needed to draft and pass a bill just for that purpose.
[Translation]
The legislative process under the Miscellaneous Statute Law Amendment Program differs from the usual legislative process. Essentially, both houses of Parliament review the proposals in committee before the bill is prepared and introduced. If a member of either committee is opposed to any of the proposed amendments, it will not be included in the bill that is then prepared.
The reverse side of the cover page of the proposals document indicates the criteria that must be met for an amendment to be accepted under the program. Specifically, the proposed amendments must not be controversial, must not involve the spending of public funds, must not prejudicially affect the rights of persons or create new offences or subject a new class of persons to an existing offence. The non-controversial nature of the amendment is actually the main criterion that must be met under the program. When former Minister Lang created the program, he stated that the non-controversial nature is the essential criterion to be met in evaluating proposed amendments. In his opinion, it would not be difficult to establish that this criterion had been met, and a proposed amendment would be considered controversial if any of the parties opposed it.
Honourable senators, we can assure you that if a member of this committee or of a House committee, which also reviews the document, is opposed to any of the amendments in the proposals document, that amendment will be immediately withdrawn and will not be included in the bill that is prepared.
When the committees of both houses have completed their review and tabled their reports, a bill will then be prepared in accordance with the reports of the two committees. These reports will include the amendments unanimously adopted by the committees, as well as any necessary coordination mechanisms to ensure consistency between the bill and other existing legislation. The bill is then introduced in Parliament. Such a bill usually receives three readings and is adopted without debate or consideration by the committees, since the committees of both houses will already have considered the content of the amendments.
I will take a few minutes to explain how the proposals document is structured and to summarize its content. On the reverse of the document's cover page is a brief explanation of the background, criteria and legislative process associated with the program. After that is the table of provisions, and then the proposed amendments.
The document contains proposed amendments to 52 statutes. Part 1 contains proposed amendments to 24 statutes, in chronological order. Part 2 includes two provisions, each of which would amend the terminology used in several statutes. Part 3 includes proposals to repeal eight statutes which are now spent.
After the proposed amendments is a section entitled "Explanatory Notes.'' It contains notes that briefly outline the reasons for the proposed amendment, as well as the current version of the provision in question.
[English]
The proposed legislative amendments in the document correct errors in grammar and terminology and update the name of certain organizations. They also correct typographical errors, errors in references, the use of outdated terms and the discrepancies between the French and English versions.
The document also contains proposals to repeal certain spent legislative provisions and acts, such as back-to-work legislation and transitional regimes which are no longer needed.
Finally, some of the proposed amendments were also the subject of comments from the Standing Joint Committee for the Scrutiny of Regulations. Those amendments will in certain cases resolve issues raised by that committee.
[Translation]
Those are my opening remarks. My colleagues Jean-Charles Bélanger, Jacqueline Yost, Mélanie Beaudoin and I will be pleased to answer your questions.
[English]
The Chair: We'll begin questions from Senator McIntyre.
Senator McIntyre: I have a few questions.
[Translation]
I note that the English version of the statutes we wish to amend with the proposals for 2017 contain errors, and that there are more proposed amendments to correct the French version. How can that be since the two versions of federal statutes are supposed to be drafted at the same time?
Jean-Charles Bélanger, Deputy Chief Legislative Counsel, Legislation Services Branch, Public Law and Legislative Services Sector, Department of Justice: Thank you for the opportunity to provide this update. First, as was mentioned, the two statutes, the English and the French versions, are drafted at the same time in the federal system. That means that the two versions are of equal importance. That being said, it is a process that is subject to quite rigorous quality control. We work with revisers and people who come to give us instructions. Once the statute is drafted, the revisers revise them in both languages. They are jurilinguists, language specialists who check the terminology and the linguistic equivalency of the two versions. The next step is printing.
There are many people involved, which can sometimes lead to shortcomings in quality. Despite every effort, there are sometimes errors or omissions in one language or the other. That is why we are here to request your permission to make certain corrections in the rare instances of gender errors.
You must admit, however, that our batting average is still quite high, given the number of bills you are required to review every year, and the limited number of errors we are requesting permission to correct, some of which are the same. Some provisions are intended to correct the same errors. I think we can be proud that the quality of federal legislation is quite high, in both English and French.
I would also add that we learn something every time we are informed of things that went unnoticed in legislation. We draw lessons and endeavour not to repeat the same errors.
Senator McIntyre: In other words, you take steps to correct them.
Mr. Bélanger: Yes.
Senator McIntyre: Do you have sufficient resources for legislative drafting in French?
Mr. Bélanger: I can assure all the members of the committee that we utilize all the resources available for the drafting of legislation, in both English and French. Both versions are treated with equal care, on the part of the legal experts and everyone involved in the drafting process.
Senator McIntyre: Can you tell us whether you sometimes amend sections of the Criminal Code? I ask this because I noticed there are no amendments related to the Criminal Code in the document we are reviewing today.
[English]
Ms. Khanna: Perhaps I can start and then my colleagues can add.
The Criminal Code, just as any other statute, as errors are brought to our attention, they are studied, and if they meet the criteria, they would be included.
Senator McIntyre: I have a question regarding clause 16. Can you explain how clause 16 clarifies the Canada Labour Code?
The explanatory notes indicate that this amendment clarifies that an inspector may reject a complaint only if the employer and the employee have reached a settlement. Is that the first time this change is proposed?
Jacqueline Yost, Legislative Counsel, Legislative Services Branch, Public Law and Legislative Services Sector, Department of Justice: Thank you for the question. I have to admit, I don't want to overstep my knowledge. It is the first time that I'm aware that the request has been made. However, I can address the reasoning behind it, and if the senator wishes, we could come back to do a more thorough study as to whether this has been previously proposed.
The clients approached us in this case with a request that stakeholders had indicated that in the list in paragraph 251.05(1)(a), several subparagraphs would be clearer if we added the fact that the complaint has been settled as between an employer and employee, that there's no other way in that paragraph to settle and appoint.
We have our client here and they're willing to speak to the matter as well, if you would like.
Senator McIntyre: Well, all I wanted to know was the legislator's intent in passing the original wording and why this change is necessary. Basically, does it meet the MSLA criteria?
Ms. Yost: I can address the MSLA criteria.
When we were approached with this, when doing the analysis, we felt what this was doing was clarifying what was already the rule. So by adding the employer and the employee, if you look at the list in its entirety, there really was not another logical interpretation. Out of an abundance of caution, this was something that would help the reader understand what the settlement would be. We felt it met those four criteria for non-controversial amendments and were willing to go forward with it because the client department requested it and gave us their reasons. Again, our client department is here if you would like to speak with them.
Senator McIntyre: No, that's fine. I'm satisfied with your answer.
[Translation]
Senator Dupuis: Hello and thank you for being here. I have a few questions about specific enactments, but I will start with a general question. Mr. Bélanger, you talked about the parallel drafting of the two versions during the revision stages. My concern pertains more to the two versions matching, because there can be a system where each person drafts according to the principles of English or French. Those people never meet. There are certain cases, such as in clause 4 of the Aeronautics Act. The English version does not say the same thing as the French version, and this gave rise to a Federal Court decision. My concern is how the statutes are analyzed to connect the two versions. I do not know if that is at the drafting, revision or quality control stage. What is the connection between the two versions?
Mr. Bélanger: Once again, I am pleased to provide an update. When we say that legislation is drafted simultaneously in English and French, the versions are actually drafted simultaneously, by two people who sit beside each other and who meet with the project officers. We demand equal attention from those working on the English and French versions. When there are meetings about the drafting of a bill, the two versions are given equal attention. There is also constant contact between the two members of the same team.
With regard to revision, there is a team of English revisers and a team of French revisers. The same is true for the jurilinguists who review the legislation with respect to terminology, and they are the ones who help the legal experts verify the equivalency.
That is why it is such a huge job, drafting legislation in both languages that conveys exactly the same message. We insist that each version reflects the unique character of the language. There can be formal differences owing to the fact that there is one way to say something in French and another way in English, but the message must be the same. It is the daily task of each of the legislative drafting teams to ensure that the content of the two versions is the same.
That being said, as you noticed, there are many people involved and the legislation is drafted and amended. The drafting process is fluid and adjustments are made. Unfortunately, there are be oversights from time to time, and we aim not to repeat them. Some such oversights have been submitted to you here. As to clause 4 in particular, perhaps my colleague would like to explain. Also with us are officials from the appropriate department who could answer your question.
Senator Dupuis: It is not even a question of semantics, but of the legal content. If the two versions do not match as to the minister's right to appeal a decision, that is a major content problem.
Ms. Yost: Senator, thank you. I understand your concerns. Let us consider section 7.2, for instance. I think this is truly a case of human error. I cannot speak to the preparation of the bill, which dates back to 2004.
[English]
We work to the best of our abilities, and there are times, as my colleague alluded to, where errors come. And perhaps in restructuring the provision, the structure was changed during a drafting session and people simply did not catch how the link had been changed between who could appeal which type of decision.
What we're seeking to do with clause 4 is clarify that the intent was always that the minister would be able to appeal certain decisions and the correct decisions, not the decisions that were confirming his own decision. I don't see why he would want to appeal his own decision, but decisions that reverse the decision made, and could then bring it forward in the appeal process.
[Translation]
Senator Dupuis: In the Bankruptcy Act, as I understand it, there is an error in — so it amends paragraph 158(g) of the act. It seems that an amendment was made in 2005, but does that explain the change?
[English]
Ms. Yost: Thank you. In this case, this is a different situation, and perhaps we use correcting terminology. Calling it an error would be — perhaps next time we can find a better way to express it.
What happened is there were amendments to a defined term. We used to talk about settlements without adequate valuable consideration or gifts. In that case, the defined term was "settlement,'' which would be the dictionary term of what one understands as settlement, but then adding to it because they said it includes "gifts or settlement without adequate valuable consideration.''
What it was doing was taking the defined term, which was settlement plus gift, and restricting it only to that part of the definition that was "gift or settlement without adequate valuable consideration.''
So when they made the amendments, they changed the term to "transfer at undervalue'' to only target those things that were either given with no consideration — that is to say, a gift — or at an undervalue. Therefore, when you go into 158(g), we no longer need to talk about "gifts or settlement without adequate valuable consideration'' because we now have a defined term that really targets the subset of the old term. What we're doing is updating the language. It's not really an error because it existed before and it worked with the previous defined term, but if you read it through, we do consider it an error now.
[Translation]
Senator Dupuis: That is not very clear. The term used in the English version is very clear, unlike the French version. Section 13 refers to adding another type of order to a list of orders. Is that correct? This is an amendment to paragraph 103.3(1)(a) of the Competition Act and another type of order is added?
[English]
Ms. Yost: What it does is allow for an interim order to be made. In this part of the act, only the one section is not part of that and could be subject to an interim order and requires consultation with the minister as oversight.
Our client explained to us their reasoning behind it, and they're here to address that issue, if you would like to speak with them.
[Translation]
Senator Dupuis: With regard to section 51 of the Species at Risk Act, the issue is the internal consistency of the French version. Can you explain?
Mélanie Beaudoin, Legislative Counsel, Legislative Services Branch, Public Law and Legislative Services Sector, Department of Justice: In paragraph 49(1)(d) of the act, the term "monitor'' is used, with the French equivalent of "surveiller.'' In other occurrences in the act, the English term "monitor'' is translated as "assurer le suivi.'' So the issue is really consistency in the French version of the act. Where "monitor'' is used, the term "surveiller'' is used again, and paragraph 49(1)(d.1) refers to the action plan. We simply want to make sure the same vocabulary is used.
Senator Dupuis: So, it is to translate "monitor.''
Senator Dagenais: Thank you to our witnesses, I would like to turn to Bill C-7 regarding the unionization of RCMP officers. Senator Carignan had suggested that an error in the Public Service Labour Relations Act should be corrected. Subsection 64(3) of the act refers to paragraph (1)(a) of that section. That paragraph does not exist. It should read paragraph (1.1a). The House of Commons has refused to make this correction. Can you do it? Do you think it will take a long time? Senator Carignan was right; that paragraph does not exist.
[English]
Ms. Khanna: Thank you. The process for this exercise is very much a cyclical process. The Department of Justice sends out a call, receives proposals and puts them together for consideration. We can certainly take note of the member's comment and review it in the next cycle.
[Translation]
Senator Dagenais: You are saying there are different cycles. Is there a summer cycle and a winter cycle?
[English]
Ms. Khanna: The objective is to come forward on a much more regular basis. The last act was given Royal Assent in 2015, and we would hope to come back again within a similar time frame.
The Chair: I would like to follow up on that. In the last go-around, the committee removed two items from the list that was before us. So you're suggesting, in response to Senator Dagenais, that we cannot add anything? It would simply go into the queue for the next MSLA process?
Ms. Khanna: At this point, that would be our view, given the fact that we have our own process of consultation and consideration. The House of Commons standing committee must unanimously approve the report, as well as this committee, in order to move to third reading without debate. Those are the requirements.
The Chair: But there's nothing obviously to stop this committee from recommending the incorporation of a recommendation or two in our report, and then we'd have to see how you responded to that recommendation and how the house responded to it.
I'm not sure if you received a copy of the letter from the Standing Joint Committee for the Scrutiny of Regulations. They have made a couple of recommendations to the committee about the International Shooting Sport Federation issue and the discrepancy between French and English in section 53 of the Canada Lands Surveyors Act.
I guess if the committee agrees those changes should be incorporated, there's no commitment from you today — in fact, you're indicating that it's unlikely. I'm just curious about the process. You talked about consultation and consideration.
You talked about clients as well, and there are a number of clients sitting behind you. That's the way they were referred to. The joint committee's job is to study the regulations and make recommendations to the various ministries and to your clients. This is the heart of their job. Are they involved in this exercise? You've talked about notification and consultation.
I serve on that committee, and when I raised this issue, the staff there said, "We haven't heard about this.'' I'm really curious about why they're not part of this consultative process. This is their job. They have all kinds of concerns, whether it's a matter that would fall outside of MSLA and others, but it seems to me there's something missing in this consultative process.
Ms. Khanna: Thank you. I understand the chair's concerns and the standing committee's concerns. I believe that two of the proposals from the standing committee are reflected in this proposals document. The other outstanding items are on our radar and we can certainly commit to reviewing them for the next cycle, which we hope will be in the near future. If this committee would like to recommend the addition, we will certainly take that back.
The Chair: I guess my suggestion is that when you're going through this process again and asking your clients for their input, I think they should start to fall under the umbrella of "client'' and be notified. They should be asked for their priorities as part of this exercise going forward.
Senator Batters: I want to echo what the chair just said. He was actually chair of that particular committee, the Standing Joint Committee for the Scrutiny of Regulations, as was I for a short time. This is a committee of parliamentarians, of senators and members of Parliament. Their job every single week is to go through these different issues that might arise and provide recommendations. We would just expect that these types of recommendations would receive a lot more priority than it seems they have with this type of legislation.
[Translation]
Senator Dupuis: Based on the information you have provided about two examples that were raised by the Standing Joint Committee for the Scrutiny of Regulations, can you tell us which two examples have been included in the current act?
Ms. Yost: Actually, it is section 41, as well as paragraph 46(1)(a) and subsection 46(3).
[English]
Subsections 46(1) and 46(3).
[Translation]
Senator Dupuis: You said 46?
Ms. Yost: It is subsection 46(1). Paragraph 148(1)(a) of the Immigration and Refugee Protection Act would be replaced to correct the discrepancy between the French and English versions and to clarify that the person in question is designated by an officer. I think it is roughly the same thing in subsection 46(3), on the advice of an officer.
Senator Dupuis: Thank you.
I have a less important question. Can I ask it, while still respecting the process? I would like someone to explain again the provision stipulating that, unless all members of the House and Senate committees unanimously support an amendment, it must be dropped. Is that correct?
Ms. Yost: Yes.
Senator Dupuis: Okay, I wanted to make sure that I had understood this correctly. Thank you.
[English]
The Chair: Clause 13 regarding the Competition Act talks about another type of order. This is described as a missing cross-reference. I'm looking for an explanation of why this is not considered a substantive change.
Ms. Yost: My understanding is that Mr. D'Allaire is present.
[Translation]
Dominique D'Allaire, Director, Corporate, Insolvency and Competition Directorate, Innovation, Science and Economic Development Canada: Hello, my name is Dominique D'Allaire, Director, Corporate, Insolvency and Competition Directorate, at Innovation, Science and Economic Development Canada.
If I understand correctly, the question pertains to section 13, namely, why there is a new reference to section 90.1.
[English]
I apologize, I think the question was in English, wasn't it?
The Chair: Well, you describe it as a missing cross-reference and not a substantive change. You're adding a new type of order to the list of those that require consultation with the minister. We're just looking for an explanation as to why.
Mr. D'Allaire: Section 103.3 was introduced in the Competition Act in 2002, and it was intended to cover all civil remedies that exist under the act.
Section 90.1, however, was introduced subsequently in 2009, and it is a civil remedy. In our view, it was clear that the reference should have been added at that time to section 103.3 so that all civil remedies, as was intended, would be covered by this provision. What section 103.3 does is it allows the tribunal to issue an order on an interim basis, but it doesn't create a new power. Those powers do exist elsewhere in the act. In our view, it was an omission, and it has to do with the timing, when this provision 90.1 was introduced.
The Chair: Members, do we have any further questions for the witnesses?
Seeing none, thank you all. We appreciate your attendance and your response to our questions. It's very much appreciated.
Colleagues, the previous report, which was tabled in the Senate in 2014, talks about the process and the committee's study, spelling out the terms of reference, if you will, and explanatory notes about the proposal. Our conclusion was one line:
As a result of this review, the committee recommends the removal of two of the proposals. These proposals are listed below . . . .
I think we can follow the same format, which is essentially explaining the process. If there are any conclusions that you wish to make, now is the time to put them forward.
This is also from the last report:
The committee recommends that in the future, consideration be given that similar proposals be referred to the Standing Joint Committee on Scrutiny of Regulations for a better coordination . . . .
That was ignored. We may want to make reference to the failure to follow the recommendation of the 2014 report.
Personally, I think we should recommend incorporation of the recommendations from the joint committee and also comment on their failure to follow the advice of the committee with respect to consultation. I don't know if we want to make it in stronger language; I open that up for consideration.
Senator Batters: Maybe we could just reference that the Standing Joint Committee for the Scrutiny of Regulations is set up for precisely this purpose, and their recommendations should carry more significant weight than what appears is happening.
The Chair: We also commented on the time period, and I think they are making an effort. Between 2001 and the one we did in 2014, I think they clearly are committed to doing these more frequently, so we can endorse that. I guess we could also incorporate that in the report and commend them, I guess, for doing this. It won't only be criticism; we'll also give them a pat on the back.
Is that sufficient? Are we all in agreement?
Hon. Senators: Agreed.
The Chair: Tomorrow we will be dealing with Bill C-305, a private member's bill from the house.
(The committee adjourned.)