Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 32 - Evidence - November 29, 2017
OTTAWA, Wednesday, November 29, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-60, An Act 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, met this day at 4:16 p.m. to give consideration to the bill.
Senator Serge Joyal (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 beginning our consideration of Bill C-60, An Act 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 and referred to this committee on November 22, 2017.
[Translation]
This bill is the result of a report tabled by our committee on June 21, 2017. This report was prepared following recommendations made by the Minister of Justice to this committee regarding a certain number of statutes of Canada which needed certain non-controversial amendments. So it is a sort of update of statutes which studies over the years have shown to contain certain anomalies. And as is usually the case — I believe this is the twelfth initiative of this kind — we regularly update some of the acts of the Parliament of Canada in order to have them better reflect the legislator’s intention.
We have with us today three witnesses from Justice Canada.
[English]
I would like to introduce them.
[Translation]
First we have Mr. Jean-Charles Bélanger, Deputy Chief Legislative Counsel (Legislation), Legislative Services Branch, Public Law and Legislative Services Sector; Ms. Mala Khanna, Deputy Assistant Deputy Minister, Public Law and Legislative Services Sector, as well as Ms. Jacqueline Yost, Legislative Counsel, Legislative Services Branch, Public Law and Legislative Services Sector.
The honourable senators have the bill before them. Mr. Bélanger, do you or any of your colleagues have an opening statement or any comments you would like to make?
[English]
Mala Khanna, Deputy Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice: It is a pleasure to be here and we are happy to answer any questions the committee may have for us.
[Translation]
The Chair: Very well. You do not have an opening statement, but I understand that you would be willing to answer questions?
Jean-Charles Bélanger, Deputy Chief Legislative Counsel (Legislation), Legislative Services Branch, Public Law and Legislative Services Sector, Department of Justice: Certainly.
[English]
The Chair: Do any senators wish to ask any questions of our witnesses this afternoon?
Senator McIntyre: Welcome. I note that the bill proposes to repeal eight labour conflict laws. These include the Maintenance of Ports Operations Act, 1986 and the Maintenance of Railway Operations, Act 1995. My understanding is that those conflict laws have not been enforced for two decades. Why the long wait to repeal them?
Jacqueline Yost, Legislative Counsel, Legislative Services Branch, Public Law and Legislative Services Sector, Department of Justice: Thank you for the question. This was dealt with in the proposals document where there were certainly explanations as to why the acts in question — those eight acts — were no longer in force or effect and that repealing them would clean up the statute book. As to why it sometimes takes decades, as stated, we rely on our client departments, other federal departments and agencies, to bring their proposals to us, as well as proposals that we send out and find ourselves. In this round of proposals, we were given several acts that were identified as no longer being of use and, therefore, should be repealed. We took the opportunity to do it when it was presented to us.
As to why it didn’t happen earlier, I’m sorry, I would not have an answer for that. We are doing our best to sensitize people, both civil servants and counsel throughout the Department of Justice and the other departments, to the existence of the Miscellaneous Statute Law Amendment Program and to the usefulness of the tool to be able to make our statute book cleaner and more user-friendly.
[Translation]
Mr. Bélanger: As you know, there was a recess, during which we were unable to present any legislative proposals. We hope that this will be resolved and that we will be able to put forward legislative proposals on a more regular basis. We hope that this type of delay will not occur again.
Senator Boisvenu: I understand that there was a break, but it did not last 20 years. Can waiting 10 or 20 years before amending a law have an impact on citizens or enterprises, and what can this impact be?
[English]
Ms. Yost: Once a back-to-work legislation has been passed and a further collective agreement is either imposed, mediated or agreed upon, the legislation is no longer forcing the people back to return to their positions, so there is no impact going forward. It had its moment of usefulness in the legislation, and so it stays on the statute book as more of a historical document. However long the collective agreement is, three or five years, they replace each other. So the further back it goes, the less impact it stands to have.
[Translation]
Senator Boisvenu: There does not seem to be any follow-up system which would cause a law that becomes inoperative to be repealed one or two years later. It seems more like a Jack in the Box opens up suddenly to warn us that we need to repeal an act. Is there some possibility for the federal government, even in a very complex administration, to have a follow-up process that would allow us to abolish laws or regulations in a much more expeditious or efficient framework?
[English]
Ms. Khanna: Perhaps I can take that question. The process that we have in place for the MSLA Program is to consult departments and they provide their proposals for inclusion. Where we identify them at the Department of Justice, we will also do our own due diligence, but we are also relying on our departmental colleagues to bring them forward.
The idea is that it be a more regular cycle. So the last bill was introduced in 2015. Now there is this one and we have started the process for the next one. The hope is that we will be able to catch these provisions as they come up and then correct them or repeal them as the case may be.
[Translation]
Senator Dupuis: Do I understand that all of the laws that were repealed were laws involving maintaining working conditions or operations when there was a labour conflict?
[English]
Ms. Yost: Yes. They’re all back-to-work legislation.
[Translation]
Senator Dupuis: Perfect. Thank you.
[English]
Senator Batters: Thanks to all of you for being here. It’s very nice to be back in the Legal Committee again today, I have to say.
In June, this particular committee studied the proposed legislative amendments contained in the 2017 proposals. We don’t very often make recommendations when we consider legislative amendments at this particular committee, but on that particular occasion, we did. We recommended that the MSLA proposal should include two legislative amendments that were proposed by the Joint Standing Committee for the Scrutiny of Regulations. It’s very important committee. It maybe doesn’t get its just due. I was the chair of that committee. They do important work on this exact sort of thing. They sent our committee a letter.
We recommended that there were two particular amendments, one to the Criminal Code and one to the Canada Lands Surveyors Act, and we reiterated our concern in the report that this committee related that the Department of Justice failed to request the recommendations of the Joint Committee for the Scrutiny of Regulations.
When I see this, the joint committee’s two recommended amendments that we included in our particular report from this committee are not included in Bill C-60. Why is that, and how can you demonstrate that this government is actually taking the concerns relayed by two parliamentary committees seriously?
Ms. Khanna: I am aware of the two provisions that you are referring to, and the Standing Joint Committee for the Scrutiny of Regulations also did write to the Minister of Justice with respect to these concerns.
What I can say is that the proposals to include new provisions were considered, but the decision to not include them was made because it was felt that because the process for MSLA requires unanimous consent both in the House of Commons and the Senate to the proposals document, and because we had already appeared before the House of Commons and had received their unanimous support for the proposals document, it would delay the process to add these two new provisions in them when the Department of Justice is very much committed to ensuring that this process continues and would ensure that the follow-up be done.
It was not in any way to suggest that the provisions should not be considered in the process, but to keep this proposals document, the legislation and the program moving to move forward with this one and ensure that necessary follow-up was done so that if appropriate, they would be included in the next program.
Senator Batters: It’s actually because of the work of the Scrutiny of Regulations Committee that this Miscellaneous Statute Law Amendment Act is being done now by government. We continually pointed out that this would be a helpful way of fixing legislation that has long needed to be fixed rather than continually bringing it back before committee and making recommendations. That was the recommendation of that committee and this particular committee.
When you’re saying that you’re seeking unanimous consent and significant consent in both houses, the House of Commons and the Senate, one of the committees you’re dealing with, the Scrutiny of Regulations Committee, is a committee representing the House of Commons and the Senate. I would just ask you to please relay to the Minister of Justice my concern, anyway. We could deal with these types of things in a better way than has been done here.
When you have significant recommendations made by two parliamentary committees and then the minister decides to bypass them, I don’t think that’s a very good way to draft this type of an amendment act.
[Translation]
Senator Dupuis: I will continue in the same vein. If I understand correctly, in a letter from the Department of Justice tabled in the Senate on October 1 by the legislative deputy to the government representative in the Senate, the Minister of Justice states that these two recommendations of the joint committee were not included in the proposals. Consequently, they could not be accepted by the committees because they had not been included in the 2017 proposals. Is that the situation? Since the minister says that they may be included in the next process, can you confirm to us that these two recommendations will indeed be included in the next proposal of amendments or minor corrections?
[English]
Ms. Khanna: We’re very much aware of these two provisions and the necessary follow-ups have been done. The next round of consultations has begun, so I can say the necessary follow-ups are being undertaken.
[Translation]
Senator Dupuis: I have another question. The committee made a very detailed examination of the proposals in June 2017. You had given some very specific answers on certain points in particular. Can you tell us if there are differences between the proposals document we examined in June, which was quite thick, and what is contained today in Bill C-60?
[English]
Ms. Yost: Thank you for the question. The proposals document and a bill that is tabled in the House of Commons or Senate are formatted differently. In the reports, clauses 40 and 47 of the proposals document had been withdrawn and did not receive support at the time it was examined in committee, both at the House of Commons and in the Senate. So those two clauses were removed.
Additionally, the last half of the proposals document, which had things we call explanatory notes and explanations, was also removed. Due to the fact the proposals document had been reviewed and studied, we felt explanatory notes were unnecessary at the time.
The amending clause and the amended text are identical to the proposals document with the exception of three clauses, and those are clauses at the end in what you will see as Part 4, coordinating amendments. Those are clauses 72, 73 and 74.
I’m happy to explain how coordinating amendments work. Essentially, they are a mechanism by which we ensure that bills that have been tabled in either the House of Commons or the Senate in the session of Parliament before our bill is tabled and that amend one of the same provisions that we would be amending — that neither of the policy directives of either of those bills is wiped out. This is also in the case of clause 72 for the Yukon Act, which is an act that received Royal Assent and is in force, however, it has some provisions that are not in force. Those provisions, were they to come into force, would affect what we are amending through the MSLA.
The coordinations are a technical way of ensuring that if the bills receive Royal Assent and come into force, we are not either doubling up on the work or wiping out the other bill’s work through our amendments.
[Translation]
Senator Dupuis: Thank you for helping us to understand. So, in the proposals document, section 40 has been withdrawn from Bill C-60, as well as 41 or 42?
[English]
Ms. Yost: Clauses 40 and 47 were voted down. In effect, clause 41 became 40, et cetera, and then the numbers —
The Chair: Three numbers.
[Translation]
Senator Dupuis: What is interesting is that both of them deal with claims settlements. Can you tell us if section 40 concerns claims in Manitoba, and thus First Nations, and whether section 47 concerns claims settlements in Alberta and Saskatchewan? Why has this not been transferred from the proposal to the bill?
[English]
Ms. Yost: During the study of the proposals, the client department realized that the proposal they had made was inadequate to rectify the problem within the act. At that time, they requested the committee vote them down. For that reason, by not having the unanimous support of both committees, it cannot be included in the MSLA.
I believe if one were to go back to the transcripts, the client department had indicated they intended to bring a revised proposal forward for the next round.
[Translation]
Senator Dupuis: There was the matter of criminal law and surveyors. So these two provisions, sections 40 and 47, were withdrawn because there was no consensus or agreement on the part of the parties to go forward?
[English]
Ms. Yost: In effect, there are undertakings to follow up on various proposed amendments. The MSLA program is also designed for consultation. When you next see a proposals document, it will have more than four clauses. We will, however, be following up with the client department, which asked for clauses 40 and 47 to be withdrawn, to see if they have a proposal they feel should be included.
As Ms. Khanna also alluded to, we are making the necessary follow-ups for the two the standing joint committee had proposed and which did not receive the support of the reports in the House of Commons.
The Chair: At this stage, I will follow up on the question raised by Senator Batters, because there is a need there for further consideration by the Department of Justice.
As I understand the intervention of Senator Batters, the two recommendations that this committee made in its June report stems from the report of the Joint Committee for the Scrutiny of Regulations, which is a joint committee with the House of Commons. One would conclude that if, in that committee, there is a conclusion that is equally shared by the Senate and the House of Commons, the consultation has been made and there is a joint recommendation there.
For future states, that should be reconciled with the procedure that the Department of Justice follows, so that we don’t do exactly the same exercises twice, because that’s essentially what it amounts to, if I understand the point of Senator Batters. It could really streamline the process if the Justice Department paid consideration to the joint report of the Scrutiny of Regulations Committee. Otherwise, we’re going to do everything twice. Every time the committee would come with a report, it would be sent back for reconsideration.
It seems to me, especially when I look into the recommendations made in June, that it was — according to Part 3 of the bill, which is essentially a change of terminology. That’s exactly what it was for the Criminal Code and for the land surveyor, which is essentially a readjustment of the French version of the act. It seems to me that there is some sober second thought required by the Justice Department in relation to the conclusion of that joint committee.
I wanted to put that on the record so that we can improve on the process through the years. I have sat personally with some other senators — and I am looking at Senator Fraser — and we have done that exercise many times in the past. I think, when we can improve and accelerate the process, as Senator Boisvenu mentioned, that it is proper for the efficiency of our work. That’s the point I wanted to make.
Do honourable senators have any other questions in relation to information that can be provided by the witnesses?
Senator McIntyre: My question has to do with the harmonization of federal and civil law. I note that, in 2013, the government of the day passed Bill S-3, A third Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and civil law. My question is this: Is your department working on a new bill harmonizing federal and civil law?
Ms. Khanna: The fourth harmonization act and proposals were public consultations which were completed, I think, over the course of the summer. So the next step would be, then, to proceed with the fourth bill, the harmonization bill.
Senator McIntyre: Thank you.
The Chair: Are there any other questions, honourable senators, before we move to a clause-by-clause consideration of Bill C-60?
Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-60, An Act 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?
Is it agreed?
Hon. Senators: Agreed.
The Chair: Before we move, honourable senators, to a clause-by-clause debate on each and every clause of the bill, as you have noticed, there are 74 clauses of the bill, and I would rather propose — Senator Boisvenu?
[Translation]
Senator Boisvenu: I propose that we study the sections 10 by 10, that is to say 1 to 10, 10 to 20, et cetera.
[English]
The Chair: There is another way to proceed, which is to follow each part of the bill.
[Translation]
Senator Fraser: I was just going to suggest that we study it part by part.
[English]
The Chair: Is it agreed, honourable senators, that in the clause-by-clause consideration I will call the vote part by part so that we cover the whole of the bill and accelerate our work?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short tile, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall Part 1, entitled “Amendments,” containing clauses 2 to 61, carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division, thank you.
Shall Part 2, entitled “Terminology,” clauses 2 to 63, carry?
Hon. Senators: Agreed.
The Chair: Did I hear “on division”? No? Thank you.
Shall Part 3, entitled “Repeals,” clauses 64 to 71, carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall Part 4, entitled “Coordinating Amendments,” containing clauses 72 to 74, carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall Bill C-60 carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report? I don’t see any. Thank you.
Shall I report the bill to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators.
[Translation]
Mr. Bélanger, Ms. Khanna, Ms. Yost, thank you for your participation.
[English]
As some senators have expressed around the table, we hope to see you soon. Thank you very much.
Honourable senators, I would suggest that we move in camera for the further items on our agenda because it’s more of a housekeeping nature on the approach to our future work.
With your authorization, honourable senators, I would suggest that we move in camera. Agreed?
Hon. Senators: Agreed.
(The committee continued in camera.)