THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 19, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:45 a.m. [ET] to study proposals to correct certain anomalies, inconsistencies, outdated terminology and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes and Regulations of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
I invite colleagues to introduce themselves.
Senator D. Patterson: Dennis Patterson from Nunavut.
[Translation]
Senator Dalphond: Pierre Dalphond, De Lorimier division, in Quebec.
[English]
Senator Klyne: Welcome and good morning. I am Marty Klyne, a senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Clement: Bernadette Clement, from Ontario.
[English]
Senator Simons: I’m Paula Simons from Alberta, Treaty 6 territory.
Senator Pate: I’m Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe. Welcome.
Senator Jaffer: Welcome. I’m Mobina Jaffer from British Columbia.
The Chair: I’m Brent Cotter. I am a senator from Saskatchewan, and I’m the chair of the committee.
Today, colleagues, we begin our consideration of a document tabled in the Senate and referred to our committee on June 20, 2023, entitled:
Proposals to correct certain anomalies, inconsistencies, out‑dated terminology and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes and Regulations of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect.
This is a bit of an unusual, though not unprecedented, task for the Legal and Constitutional Affairs Committee of the Senate, and some of you of greater long-standing will be familiar with this. What we are receiving is a series of recommendations made by the Minister of Justice regarding a certain number of statutes of Canada which require these non-controversial amendments. I’m going to provide a little bit of context for this, following which I’m going to introduce not only our guests at the table but also a number of others who are present to help us, and then we will begin to hear presentations, which will be followed by questions from senators.
For context, this document is a regular update of statutes, known as the Miscellaneous Statute Law Amendment Program, which studies over the years have shown to contain certain anomalies and inconsistencies. As is usually the case, we periodically update some of the acts of Parliament in order to have them better reflect legislators’ intentions. As some members may recall, 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.
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, which you have heard a little about already. To be included, the proposed amendments must meet the following criteria: They must not be controversial, they must not involve the spending of public funds, they must not prejudicially affect the rights of persons, they must not create a new offence and they must not subject a new class of persons to an existing offence.
The proposals will then be tabled in the Senate and House of Commons and referred to the Standing Senate Committee on Legal and Constitutional Affairs and the House of Commons Standing Committee Justice and Human Rights for further review, which explains how they have come to us. This legislative process, as you can tell, differs from the usual legislative process.
After the two committees will have studied the proposals and reported back to their respective chambers, a miscellaneous statute law amendment bill will then be prepared, omitting any clauses to which a member of either committee objected. You have a decent amount of authority and autonomy if something in the package is of concern to you. If a single member of either the House of Commons Standing Committee on Justice and Human Rights or this committee considers a proposed amendment to be controversial or to not meet the criteria, it is to be withdrawn. Each committee may also add new proposals for the other to consider, providing they meet the same noted criteria. Once the committees have reported to the House of Commons and the Senate on their reviews of the proposals, the Department of Justice legislation section then prepares the miscellaneous statute law amendment bill.
I understand the committee from the other place has yet to review the proposals, so we are the first ones to hear them and take a kick at some of the proposals. The last time our committee was seized of this proposal was in 2017. The clerk circulated copies of previous reports from 2014 and 2017.
Let me now introduce the officials we have with us: Riri Shen, Deputy Assistant Deputy Minister and Chief Legislative Counsel, Public Law and Legislative Services Sector; Victoria Netten, Advisory and Legislative Initiatives Services Senior Counsel, Public Law and Legislative Services Sector; and Philippe Denault, Advisory and Legislative Initiatives Services Senior Counsel, Public Law and Legislative Services Sector. They are joining us at the table to be available to make their presentations and field your questions.
Since there are a significant number of folks here in this room who contributed to this work and it doesn’t always get that high a profile or well recognized, I do want to take a moment, with your indulgence, colleagues, to acknowledge their presence here. It’s a long list, but I’m going to proceed through it anyway: Leah Gavin, legal counsel with Health Canada; Franco Bello, Policy Analyst, Offshore Management Division, Fuels Sector, Natural Resources Canada; Shawna Noseworthy, Senior Counsel, Agriculture and Food Inspection Legal Services, Agriculture and Agri-Food Canada; Donald Boucher, Director General, Sector Development and Analysis, Agriculture and Agri-Food Canada; Erika Shneidereit, Counsel, Legal Services (DOJ), Immigration, Refugees and Citizenship Canada; Uyen Hoang, Acting Director General, Citizenship Policy, Immigration, Refugees and Citizenship Canada; Kathleen Wyre, Director, Pensions Policy, Department of Finance Canada; Justin Chan, Director, National Security Policy Directorate, Public Safety Canada; David MacIntyre, Acting Manager, National Security Policy Directorate; Public Safety Canada; Rachel Heft, Manager and Senior Counsel, Transport and Infrastructure Legal Services, Transport Canada; Melanie Vanstone, Director General, Multimodal and Road Safety Programs; Transport Canada; Sean Rogers, Executive Director, Legislative, Regulatory and International Affairs, Transport Canada; and Simone Kendall, Manager, Legislative and Regulatory Affairs, Canada Student Financial Assistance Program, Employment and Social Development Canada.
Welcome to you all, and thank you for your assistance in the work we’re now about to undertake.
I think presentations will come from the Department of Justice for five minutes, following which we will engage you with questions from senators. Ms. Shen, you have the floor.
Riri Shen, Deputy Assistant Deputy Minister and Chief Legislative Counsel, Public Law and Legislative Services Sector, Department of Justice Canada: Good morning. I’d like to thank the committee members for allowing me to present these proposals. I’m pleased to participate in a study of your document entitled “Proposals for a Miscellaneous Statute Law Amendment Act, 2023.”
The proposals document was developed as part of the Miscellaneous Statute Law Amendment Program. The program is a result of significant collaboration between the Department of Justice and parliamentarians. To put the MSLA Program into context, I would like to begin with a few comments about the history of the program, the criteria used within the program to determine whether a legislative proposal should be retained and the applicable legislative process. Then I will provide a general overview of the proposal’s document structure and content.
As you’ve heard, the Miscellaneous Statute Law Amendment Program was established in 1975 and is designed to accelerate the adoption of minor amendments of a non-controversial nature to be made to Canadian laws. Former Minister of Justice and Attorney General of Canada, the Honourable Otto Lang, created this process of making minor amendments to federal legislation via one omnibus bill. Just as is the case now, the legislative agenda was very busy, making it difficult to make minor changes to or correct the occasional errors in each federal statute. Consequently, this program was created to make those changes without taking up too much time in either of the two houses. Since the program was established, 12 bills of this kind have been passed, and we are working on the thirteenth.
The Specialized Legislative Services Section of the Department of Justice, which is under my mandate, is responsible for the program. The program is a means of correcting anomalies, inconsistencies, archaisms 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 instead of having a specific bill for each amendment. In certain cases, if the amendments are not made through the program, they may never be made because they are not significant enough to justify the use of the resources needed to draft and introduce in Parliament a bill for that sole purpose.
[Translation]
The criteria that must be met in order for a proposed change under the program to be selected appear on the back of the cover page of the proposal document. Specifically, the proposed amendments must be non-controversial, not involve the spending of public funds, not infringe on human rights and not create an offence or subject a new class of persons to an existing offence.
The non-controversial aspect of the amendment is the main criterion to be met under the program. According to the former minister Otto Lang, compliance with this criterion would not be difficult to establish, and a proposed amendment would be controversial as soon as one of the committee members objected to it.
The legislative process under the miscellaneous statute law amendment program is different from the usual legislative process. Essentially, the two Houses of Parliament consider the proposals separately in committee, with a view to drafting and tabling a bill.
Honourable senators, we can reassure you that if a member of this committee or the committee in the other place that will also study the document objects to a proposed legislative amendment, this amendment will be withdrawn and will not be included in the bill that will then be drafted.
When the committees of both Houses have completed their review and presented their reports to their respective Houses, a bill will be developed by the Department of Justice in accordance with those reports, which will include the amendments that were adopted unanimously by the committees and any provision of coordination required to ensure consistency between this bill and other existing legislation. The bill will then be presented to Parliament.
I will now take a few minutes to explain how the proposals document is organized and to summarize its content. A brief explanation of the history, the criteria and the legislative process associated with the program are on the inside cover of the document. Then there is the analytical table, and then the proposed amendments.
The document contains proposals for 62 statutes. The first 53 sections contain proposed amendments to 26 acts, categorized in alphabetical order because these laws are part of the review of the Statutes of Canada, 1985, pursuant to the drafting practice. From section 54, the laws are classified in chronological order. Sections 131, 132 and 166 include amendments to the regulations to ensure consistency between the act and the related regulations with respect to changing the name of the Canada Agricultural Review Tribunal.
As a result of the proposed amendments, there is a section entitled “Explanatory Notes.” These notes provide brief explanations of the reasons for the proposed amendment, as well as the current version of the provision in question.
[English]
The proposed legislative amendments in the proposals document correct errors in grammar, terminology and update the names of certain organizations. They also correct typographical errors, errors in references, the use of outdated terms and discrepancies between the English and French versions.
The document also contains proposals repealing certain legislative provisions which are no longer needed. For example, section 12 of the Department of Transport Act, which predates and duplicates section 24 of the Interpretation Act and paragraph (e) of the definition of “provincial company” in the Insurance Companies Act, are no longer required as the company has amalgamated with another company, as defined in the act.
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 resolve issues raised by that committee, such as aligning the wording between the Prevention of Terrorist Travel Act and the Canadian Passport Order.
If I may, I would also like to take the opportunity to address an error in clause 27 of the proposals document. It proposes to amend paragraph 204(8)(e) of the Criminal Code. There is a typographical error there and a redundant phrase in the way the proposed amendment is drafted, which should be corrected. The phrase, “notamment par la délivrance de permis” appears twice, and the first occurrence of that phrase should be deleted.
A further item which we would like to draw to your attention is in respect of clause 58. Those amendments were given Royal Assent in the Budget Implementation Act, 2023, No. 1, which received Royal Assent after the proposals document was tabled.
[Translation]
Those are my opening remarks. Victoria Netten and Philippe Denault, lawyers within the Department of Justice, and I are here to answer your questions.
[English]
The Chair: Thank you, Ms. Shen.
Senator D. Patterson: Thanks for the presentation.
I think my question is to you, Ms. Shen. This is your file. You talked about the Miscellaneous Statute Law Amendment Program, or MSLA, being designed to accelerate these minor amendments, but looking at the time frames since 1975, the government was moving roughly every one, two or three years until 1987. Then, in 1992, it took five years to move the amendments forward. In 1999, it took five years. In 2015, it took four years. Now, this year, we’ve waited six years for this package to come forward. It seems like the reviews are being conducted less often these days. Can you explain why that is happening and who decides when to present a proposal to Parliament?
Ms. Shen: Thank you very much for your question.
The process within the federal government is a call-out for proposals, and departments also regularly provide to us a list of proposals that they would like to make through this process. With respect to the tabling of the proposals document, however, that is not within the control of the public service. We recognize that it has been several years since the last proposal was tabled. As you know, the pandemic interrupted the program and the process. At the time, it was nearly at the end of the collection stage when work was suspended due to the COVID-19 pandemic and more pressing associated priorities.
Since the amendments are minor and not controversial, they are not, of course, as urgent or as pressing as other initiatives that you may be dealing with. In light of other priorities and urgent matters, the process may take longer between the study of the proposals document and the tabling of the proposals. It does take a significant amount of coordination to prepare the proposals document, which can extend the time between the tablings. It is also necessary to amass a significant number of proposals to be brought forward in order to make efficient use of parliamentarians’ time.
Senator D. Patterson: Thank you for that. So it’s the Leader of the Government in the House of Commons that we should be interrogating on this, not you devoted public servants, I gather, from your answer.
I wanted to ask you about some clauses in these proposals before us relating to the Court of Appeal of Newfoundland and Labrador. It stopped being a division of the Supreme Court of Newfoundland and Labrador and became independent on its own in 2018. We now have more than a dozen clauses here before us dealing with that change that’s been around since 2018. Why did that one take five years to be brought to us?
Victoria Netten, Advisory and Legislative Initiatives Services Counsel, Public Law and Legislative Services Sector, Department of Justice Canada: There hasn’t been a Miscellaneous Statute Law Amendment Program proposals document tabled since that change was made, so this is the first document that has been tabled that would allow us to make a global change of that magnitude to the statute book, as it affects many statutes across the statute book.
Senator D. Patterson: Ms. Shen, I gather that your legislation section in the department has the resources necessary to collect and review these proposals for amendments in a timely manner?
Ms. Shen: Yes, we do have the resources. If I could provide an update in terms of the internal workings of our Legislative Services Sector, it is no longer the legislation section which manages the coordination process. It is the specialized legal services group, that legislative services section, that coordinates this process.
Senator D. Patterson: Thank you.
The Chair: I have two or three questions, if I might, with a little bit of a preamble.
I was the Deputy Attorney General for a period of time, and there was a legislative services unit in our department that fired on all cylinders and made terrific contributions. I have no doubt the kinds of work you and your colleagues do is equally effective. Senator Batters had the opportunity to be connected with that team in Saskatchewan as well. That is just a historical note continuing to the present. Thanks for the challenging and intricate work you do.
This is a large package, and I think Senator Patterson’s point is it presents a bit of a challenge for us to do what we call due diligence, if I might. It appears, Ms. Shen, you had a very well‑prepared answer to Senator Patterson’s question, and good for you. As a result, though, speaking for myself, I have only done some diligence on the changes. I wanted to ask you, not so much call them out or challenge them, about two or three that seemed unusual in the legislation in terms of the criteria. If it’s acceptable, I might do that. If necessary, you might call upon your colleagues to respond.
One of them, clause 8, is related to the Canadian Centre for Occupational Health and Safety Act. There is a provision in here that called upon the president to devote the whole of his time to the performance of his duties as president. That struck me as an unusual provision in a piece of legislation. There is some kind of cleanup work that’s being done in relation to this, but I wonder about the oddity of it.
Ms. Shen: For that one, I’ll have to turn to my colleagues for the answer.
Ms. Netten: The cleanup that we’re doing in this is to put gender-neutral language in the act. Unfortunately, it’s not an act that’s under the purview of the Department of Justice, so the actual wording of the current clause and why that’s in the act is not something we can answer.
The Chair: Okay. I got it.
My second question relates to a provision under the CSIS Act. This is section 11.14. I’m asking about this in the context of not making substantive changes, but this seems to articulate — I’ll just read the first part of subsection 11.14(1). It says that a judicial authorization, which sounds to me like a search warrant, issued under such and such a section shall specify — and then there is a list of criteria. On the surface, not knowing much deeper than that, that sounded fairly meaty in terms of what laws do. I’m curious to know how we see that as an non-consequential amendment.
David MacIntyre, Manager, National Security Policy Directorate, Public Safety Canada: I hope I can be of some assistance in answering your question. The purpose of this clause is to align the English text with the French. The French has a verb at the front of the section in each paragraph of the list, and it more directly specifies what the judicial authorization needs to do. The judicial authorization at subject here allows the Canadian Security Intelligence Service to retain a Canadian data set.
The Chair: The other one, based on an earlier answer, I think I figured it out for myself.
[Translation]
Senator Dalphond: Thank you very much for joining us this morning. It’s much appreciated, because you’re able to answer the more technical questions directly, and that’s great.
If we exclude two amendments — one on behalf of the courts of certain provinces and another to replace the word “vérificateur” in the French version of the statutes with the word “auditeur”, which represents the new accounting terminology now used around the world, including in France — how many of the amendments that we’re looking at does this cover? Is it 90% of the amendments?
Philippe Denault, Advisory and Legislative Initiatives Services, Senior Counsel, Public Law and Legislative Services Sector, Department of Justice Canada: I don’t have the exact number or specific statistics, but overall, there are still many others.
[English]
Ms. Netten: I don’t have the exact number or percentage, no. There are three major global amendments that are in this.
[Translation]
There’s the change of the word “vérificateur” to the word “auditeur.” The other change is to change the name of the Canada Agricultural Review Tribunal and the third seeks to change the name of the court.
Senator Dalphond: You’re talking about the Court of Appeal, so we’re talking about its actual name, rather than the Supreme Court, the appeal division?
Ms. Netten: Yes. This includes most of the changes. There are a few that are smaller, but they’re also in the document; you can say that these three changes represent 90% of the changes.
Senator Dalphond: Thank you.
[English]
Senator Batters: I really appreciate that Senator Cotter mentioned the excellent and unheralded work that is done by departments of justice across the country. I have familiarity with what was done in Saskatchewan with the great people in the legislative drafting area and legislative services area. They are real professionals. I recognize them for that.
Also, for a time several years ago, I was the joint chair of the Standing Joint Committee for the Scrutiny of Regulations, or REGS. I think it was the 2014 time frame that there was a recommendation about proposals being sent to the Scrutiny of Regulations Committee as part of this MSLA process. That was something I was certainly proposing and definitely supporting at the time. I was still on the Legal Committee at the time that the 2017 recommendation came about. We made the same recommendation, that some proposals be sent to REGS as part of the process. We made that recommendation again in 2017 because the 2014 recommendation had been ignored, basically, and that hadn’t happened. I’m wondering if that advice, then, on those reports has been followed on those recommendations from 2014 and 2017 about using the Scrutiny of Regulations Committee.
Ms. Netten: A letter was sent to the Standing Joint Committee for the Scrutiny of Regulations when the call went out in 2018, and the committee responded to us with some suggested changes that should be made through this program. We went through those suggested changes. In this bill are the ones that meet the criteria for this proposal document. As for the other ones, we wrote a letter back to the committee in 2019 signalling that certain ones were not appropriate for this program or they dealt with regulations, which we normally do not cover through this program. The ones that were flagged to us by the Standing Joint Committee for the Scrutiny of Regulations that met the criteria are contained in this proposals document, of which there are four.
Senator Batters: So that was back in 2018. That was when the first call went out, probably.
Ms. Netten: Yes.
Senator Batters: What’s the process going forward about how often you write to them? Is it an annual thing, as perhaps it should be, or is it every time it is decided for there to be one of these — as I’m sure I’ve said a number of times in the past when we’ve had these types of MSLA processes go through, this should be, as it is in Saskatchewan, regular. I believe in Saskatchewan, they actually do it on an annual basis when they deal with these types of statutes. It is usually every year or certainly every couple of years to do a good cleanup. Is that the sort of thing that you’re asking REGS, which should be dealing with these things frequently for more frequent recommendations?
Ms. Shen: Thank you for the question.
Since that initial letter was written, it was true that we have not written directly to the Standing Joint Committee for the Scrutiny of Regulations. However, internally, we do follow the proceedings of the committee. When proposed amendments to legislation are identified, there is an internal process for following up with client departments as to whether they would like to proceed with those amendments. It is ultimately the decision of departments.
Senator Batters: Thank you.
I was joint chair, and that ceased in 2015. Then we had an election and the government changed. Frankly, for the first few years when there was a majority government, they had more frequent meetings of the Scrutiny of Regulations Committee, but in the last several years, they have had extremely infrequent meetings. Sometimes they go months without having a meeting. I hope that process has worked itself out as well.
One last question that I have deals with one of the changes that you have. It’s clause 158, dealing with subsection 4(1) of the Prevention of Terrorist Travel Act, and, therefore, something that’s quite important. This amendment, as is explained in the explanatory notes, makes the subsection more consistent with a certain subsection of the Canadian Passport Order. Among other things, it would change the wording of a provision from “If a passport has been cancelled as a result of a decision of the Minister under the Canadian Passport Order” to “If the minister has decided that a passport is to be cancelled under the Canadian Passport Order.” Can you explain why it’s necessary to change that aspect of the wording to make it consistent with the Canadian Passport Order?
Also, is there any difference in practice between a minister deciding that a passport is to be cancelled and the passport being cancelled? For example, could there potentially be a lag between the Minister of Citizenship and Immigration’s decision and the actual cancellation of a passport? Also, is there potentially some lag time? We’ve heard in the last few years about things sitting on a minister’s desk, including things with potentially very significant consequences, for several months. I’m wondering if that’s the type of thing that is designed here.
Justin Chan, Director of Counterterrorism Policy, Public Safety Canada: Good afternoon. Thank you for the question.
In terms of what’s being asked here for the Prevention of Terrorist Travel Act, the language right now in the act basically states the minister can base his decision on the grounds that a cancellation is needed — or a refusal or a revocation — whereas the order specifies the threshold specifically that the minister must meet for those specific decisions. Therefore, it was the recommendation of the Scrutiny of Regulations Committee that there be an alignment between the two; otherwise, it could create an impression of two different thresholds for the same decision. I hope that answers your first question.
In terms of the second question about lag time, I run the Passport Program within Public Safety. I can assure you that when decisions are made by the Minister of Public Safety to either cancel, refuse or revoke, those decisions are made with immediate effect in concert with Immigration, Refugees and Citizenship Canada. Those can be done. We don’t need the physical passport in hand for a cancellation, but that could be cancelled in the IRCC’s system via a decision by the Minister of Public Safety.
Senator Batters: When you say “immediate effect,” what is the actual process? How quickly would that get from the recommendation to the minister to them actually doing it?
Mr. Chan: Like all decisions, it depends upon what’s on the minister’s plate. That being said, we do have processes internally with exigent requests being taken up. We also have a delegated instrument of authority within Public Safety where decisions can be delegated down up to my level as Director of Counterterrorism Policy. That is in exigent circumstances. For the sake of transparency and governance around the passport program, we try to go as high as we can in terms of approval level, but in an extreme scenario in which an individual is expected to travel imminently, that cancellation can be done, again, at my level.
I would just like to note that there are other tools as well. For example, there is the no-fly list, which also runs under my division, which can be used to prevent individuals from travelling for the purposes of terrorism.
Senator Batters: Good. Hopefully, it’s not just relying on the email, because we’ve had some issues with ministerial email in that office. Thank you.
Senator Simons: I don’t have Senator Batters’ background or knowledge about this process. This is the first time since I’ve been a senator that a bill like this has come forward. I’m just really curious. I’m the sort of person who gets twitchy if I’m going past a sign and someone uses an apostrophe incorrectly. I was an English major and copy editor at one point in my career. How many of these changes are because of reasons like that — the nomenclature has become politically incorrect, there was a mistranslation, things that are not just minimally consequential but really nonconsequential? How many of these, if they’re not changed, will actually make a difference to the way a law is interpreted? Are all of these — I don’t want to see “cosmetic” because that underplays their importance — but if there are delays, does anything bad happen, or do the people just twitch because, every time they look at it, it’s wrong?
Ms. Shen: Thank you. That is a very interesting question.
There are still many people who twitch if they see something. It’s safe to say that most, if not all, members of the Legislative Services Branch also tend to twitch. That said, we also recognize that words are important, so it is useful to update outdated terms or names if there is a shift in terminology — for example, the audit/vérification issue. We like to think there is an important aspect to updating the statute book for those purposes.
Senator Simons: I’m not saying we should wait another year — obviously, we should do this right away — but if it waited another year, does anything happen, or are we just sad?
Ms. Shen: That answer will vary depending upon the audience. For example, I can understand how it would be an irritant for many people, including for the people of Newfoundland and Labrador, to not have those references made up to date. Similarly, a lot of people are involved in audit and verification, so having that terminology reflect what’s appropriate in that field is important. People do feel those are important amendments for us to make.
Senator Simons: But it’s not as though some freeman on the land — a self-representing person — is going to come before the court in Newfoundland and say, “Oh, you’ve given me this, and the law says that, so therefore I don’t recognize the jurisdiction of your court.”
Ms. Shen: I’m not really in a position to answer that question.
The Chair: Perhaps the fewer suggestions Senator Simons makes along these lines, the better. Thank you.
Senator Pate: I’m similarly concerned about apostrophes and things.
As you go through this process, you no doubt also see substantive areas where development of the law has changed, or there are inconsistencies or overlapping pieces of legislation or provisions within existing legislation. Given that, last night, one of the observations we made again is the need for some overall review — for instance, a Criminal Code review. When you see those — because you inevitably must if you’re looking through these — what’s the process for notifying the officials that these are issues they might want to take up? Obviously, you can’t make the political decision, but you can certainly make recommendations. How often does that happen, to whom is it made, and what is the process for ensuring actions are taken on some of these?
Ms. Shen: Thank you.
You raised a really good point. It’s one we’ve been examining internally within Legislative Services Branch. I would say that, until now, we don’t necessarily have a formal process, which I agree is a problem.
We have a tendency to rely somewhat on corporate memory of individuals within client departments, legal services and within the branch itself. We try to do tracking of things that we identify so that, if the opportunity arises, we can make proposals for bringing those types of amendments forward prior to the MC process. We’re not necessarily always aware. Sometimes things move very quickly. We do try to find the opportunities to bring forward these types of things, but there may or may not be appetite at different levels to proceed with that.
The Chair: Following up from Senator Pate’s comment, if you get some suggestions from client departments that are meatier than qualifies for this process, do you have to kick a significant number of those proposals out of this process?
Ms. Netten: We do have some proposals that are put forward to the program that don’t meet the criteria because they are too substantive, and then we try to make recommendations for other legislative vehicles in which they could make those changes. We don’t usually have a lot of those, but there are some.
The Chair: I might have stolen Senator Pate’s line of questioning. Go ahead, senator.
Senator Pate: No, you haven’t at all. But supplemental to that, can you give examples of some that came up, for instance, during this process?
Ms. Shen: I don’t know that we can provide examples at this point. It’s something we’ll have to take back. I’m concerned about solicitor-client privilege or cabinet confidences.
Senator Pate: If there are examples, it would be helpful to have some of those, because it’s the kind of thing that I think this committee, in particular, is routinely concerned about. It would be helpful to know what the process is so that we could also perhaps alert folks within the bureaucracy to the issues, the very few who aren’t reading our reports.
Senator Jaffer: I have a number of questions. One is on section 158, which mandates the Prevention of Terrorist Travel Act. It seems to be clarifying the burden of proof to cancel a passport or not to issue it when it comes to terrorism offences. Could we get more details on that amendment, which is adding language of “reasonable grounds to suspect,” at paragraph 4(1) and of “reasonable grounds to believe,” at paragraph 6(1)(a)? It might be that the current test is interpreted and applied and that the law is here amended to make that compliance more obvious. Can you clarify that, please?
Mr. Chan: Good afternoon, senator. I’ll try to answer your question.
I would say that in terms of what’s being asked here, it’s not a creation of a new threshold. It is really just trying to align what is the language in the Canadian Passport Order — which I recognize is not a piece of legislation; it is a piece of, I would say, cabinet prerogative.
With regard to how that actually functions in terms of what a test might be for reasonable grounds to suspect versus reasonable grounds to believe, I would say that’s probably more of a legal question which, unfortunately, I’m not in a position to answer for you. I’m sorry.
Senator Jaffer: I’m wondering why at some point it reads “suspect” and at another point it reads “believe.” I know the definitions. I’m just wondering why.
Mr. Chan: I can’t speak to the original spirit of the drafting of the order, but I would say that, perhaps from a policy perspective, it is useful to have thresholds, for example, that are a bit lower with regard to reasonable grounds to suspect in potential exigent circumstances where an individual may seek to travel quite quickly. They can make that decision in a matter of days, if not sooner, to travel to a destination abroad to conduct certain activities, hence why, from a legal interpretation perspective, it would be useful to have that type of lower threshold to provide for the Minister of Public Safety.
Senator Jaffer: I have many other questions, but I can’t resist asking you this because you said you’re also in charge of no-fly zones. I’m on the Human Rights Committee, and we’ve had many presentations about children being on no-fly zones. Is the situation better now? Has that been cleared up so that it’s not so challenging for parents?
Mr. Chan: I would say the situation has vastly improved with the assistance of stakeholder partners, not only in the airline industry but also the No Fly List Kids organization. We’ve worked together with them over the last several years to implement two things.
One is the Canadian Travel Number, which provides basically a redress system for individuals who have the same or similar name as somebody on the no-fly list to be able to travel. We’ve mandated, as part of the Secure Air Travel Regulations, that airlines must provide that as an optional, additional piece of identification for travellers.
The other part is the implementation of the centralized screening system. Basically, for all individuals travelling to, from or within Canada, their names are vetted by the Government of Canada against the SATA list up to 72 hours prior to the departure of their flight. That is the main mechanism by which individuals are cleared, especially children. In the event that, for whatever reason, that system does not work for individuals, such as children, they have the option of the Canadian Travel Number.
I don’t have any specific statistics in front of me, but I’m happy to say that we’ve had a very good relationship —
Senator Jaffer: Can you provide the statistics to the clerk, please?
Mr. Chan: We have lots of data in terms of the success of both the centralized screening and the Canadian Travel Number.
Senator Jaffer: I don’t want drafts, but just an idea, please.
Mr. Chan: Sure.
Senator Jaffer: Thank you.
I also have a question on the Farm Products Agencies Act. I’m happy that the maximum age requirement of 70 years is gone, because that would be challenging for me. The 70 years of age has been taken out of the Farm Products Agencies Act at clause 34 of this bill. How are such amendments brought to the MSLA?
Donald Boucher, Director General, Agriculture and Agri-Food Canada: Good afternoon. Thank you for the question.
Effectively, this change was brought forward proactively, as we were made aware that potentially this provision about the age limit could be seen as a violation to the Charter of Rights. In the recent past, we have seen some cases where council members and board members on the Canadian Dairy Commission did age out without the possibility to renew — which, in practice, deprives us from a high level of expertise and competency to sit on those committees. That is why we are putting forward the repeal of this section.
Senator Jaffer: I have one more question. Why is the bill extensively replacing, through our numerous laws, “vérificateur” with “auditeur” in French — for instance, in clause 7 and 72?
[Translation]
Mr. Denault: I can answer that question. It’s standard language that was adopted at the international level. Essentially, we’re following this new normalization of language. It’s not necessarily natural to think that the term “auditeur” is a word in French, but it’s become customary in the profession. It’s simply for international language harmonization.
Senator Jaffer: Thank you for your answer.
[English]
Senator Clement: Thank you for being here. I have such respect for your work. Punctuation and words matter a lot. I’m often on “Team Twitch” for sure.
I actually have general question for you too, and the first one comes from my experience sponsoring Bill S-11, which was the legislation “pour parler d’harmonisation” between civil law and common law. It was super technical. I wondered about consultation before these technical types of work, consultation with Indigenous communities. Oftentimes the colonial system we live in was not designed to imagine this or what impact even technical use of words can have. I wonder, in terms of the process, how consultation fits in with the Indigenous communities.
My second question I will ask right out front is inspired by the Library of Parliament documents. We often don’t highlight how helpful those documents are. One of the questions that comes up is often in these types of technical processes, you identify “on va y aller avec le français plutôt que l’anglais,” we’re going to choose the English versus the French. How do you come to that decision to say, oh, well the French version is more accurate in this situation, or the English is more accurate in this situation?
Ms. Shen: Thank you very much for both of those questions.
In response to your first question, as we are all aware, the UN Declaration Act has been in force since June of 2021, and in particular there is section 5 which requires consistency with the UN Declaration of our laws and regulations. We did undertake an analysis of this following some interim internal guidance that we have on the consistency of laws.
That said, I agree with you that we are not always in the best position to determine which aspects may or may not have impacts on Indigenous communities. I think in this instance we did view these amendments as being largely technical and not having significant impact on Indigenous communities. I don’t know, and it may be that individual departments did consult, but I can’t speak to that. I think for the majority of them, that was probably not the case, but we did do the internal analysis to ensure that we are in compliance with our obligations.
Of course, with this process, if there is something that is identified in the course of the examination of the proposals, then parliamentarians are also available to raise an objection and then those proposals will be withdrawn.
For your second question, that is also a complex question because statutory interpretation is complex. Bilingual bijural statutory interpretation is complex. I can say we certainly have lots of lively discussions about that, both in the course of drafting and while we are implementing our laws and regulations. I think that we primarily look to clients for their views on what the policy intent is of the particular provision in question if we do identify a potential discrepancy. I think it’s fair to say that there are also times where there’s disagreement about whether something is a discrepancy or not. Reasonable people and lawyers can disagree on whether there is, in fact, a discrepancy or whether we think that the language used is appropriate.
Senator Clement: Do you all sit around a table and argue? What does that actually look like?
Ms. Shen: Definitely sometimes we do in the process of co-drafting. As a former drafter myself, I can say at the table when we’re sitting side by side as we’re drafting, we certainly have discussions about that.
We also have internal revision processes, so we have legistic revisers and jurilinguists who are also comparing both language versions. We have the experts in our bijuralism teams that also review our legislative texts, in addition to, of course, the client officials and legal services lawyers who are also reviewing the preparation of our legislative texts.
Senator Clement: On the answer to the first question, I want to push back a bit to say that I don’t think we’re where we need to be in terms of Indigenous consultation. I understand this is technical, but I think we’re not in the best position to determine if this has an impact or what impact this could have. I really want to push back and say we need to do better in terms of including that type of consultation, even for technical processes.
Ms. Shen: Thank you. I think many will agree with you on that. The government is actively working to try to come up with better processes in order to ensure that we are respecting our obligations. I think we all recognize that having the diversity of views helps us to have a better product at the end.
[Translation]
Senator Clement: Thank you for your work.
[English]
Senator D. Patterson: Ms. Shen, you referred to clause 58 in the Budget Implementation Act, 2023, No. 1, which I understood you to say superseded an MSLA proposal. I may not have understood that right. Could you give me a little more background on precisely what the legislative mischief was in that case?
Ms. Netten: The changes that are in the proposals document in clause 58 were made exactly as they appear in this document in the Budget Implementation Act, 2023, No. 1. The parliamentary process for the two sort of crossed. This document was already tabled, and the other bill received Royal Assent after this was tabled, so we cannot remove those provisions of our own volition.
Senator D. Patterson: I’m just curious how that happened or why that happened.
Kathleen Wyre, Director, Pensions Policy, Department of Finance Canada: I’m the Director of Pensions Policy at Finance, so I can speak to this. I would say this was an oversight on my team’s behalf. We had an opportunity. We made a number of amendments to our Pension Benefits Standards Act through the budget and, as part of that process, we took advantage that the fact that the act was open and received approval to make a few housekeeping changes. It was an oversight that we had also proposed them as part of this process. That is an unfortunate oversight on our part. We took the opportunity to make the changes when the act was open.
Senator D. Patterson: Okay, thank you.
The Chair: I have two or three questions, if I might, following up on the second question that Senator Clement asked.
I had worked as an adviser to the Canadian Judicial Council when they were rewriting the essentially code of ethics for judges, Ethical Principles for Judges. The effort this time around was to make it very much a kind of co-drafting exercise right from scratch. I’m just curious about the approach that your offices take in that context, Ms. Shen. Is that a similar approach, or are you mostly working in one language and then translating it to another?
Ms. Shen: Thank you very much for that question.
At the federal government level, we’ve been practising legislative co-drafting for a number of decades. That means right at the outset, a francophone and an anglophone legislative counsel are assigned to the file, and the pairs work together very closely. There are times when they might be working a little bit independently to advance a text, but all the way through they’re joined at the hip in terms of discussing substantive issues. It’s very important to us that neither language version be seen as a translation of the other because they are of equally authoritative status.
As I had mentioned previously, in addition to the co-drafting of the text from the outset, we have significant revision processes that ensure that the texts are parallel and equal. That said, as we can see from this process, from time to time, things do pass, even “Team Twitch.”
The Chair: We care about words, but you have to work with a lot of them, so there’s bound to be the odd little discrepancy.
My last question — and I’m asking this on behalf of Senator Boisvenu, Senator Patterson, Senator Jaffer and myself — is whether it’s possible to slip through a small technical, non‑consequential amendment to remove the retirement age for senators. Maybe in the next bill? I wasn’t expecting an answer.
I think that covers all the questions that senators have wanted to pose. I want to take a moment to thank each of the witnesses at the table and those who have joined periodically to respond to questions and all of you for your support in bringing this material together for us to consider.
The previous report, colleagues, which was tabled in the Senate in 2017, refers to the process and the committee’s study, spelling out terms of reference and explanatory notes about the proposal. With your agreement, I think we could follow the same format, essentially explaining the process as we put together our report.
If there are conclusions or observations you would like to make, now would be a good time to put them forward. In that context, I have one prepared — not brilliantly by me, but by others.
We have been informed that Miscellaneous Statute Law Amendment Program proposals under sections 61 and 62 relating to the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act would no longer be necessary as they are being addressed in a bill coming forward, Bill C-49, which is currently before the House of Commons. I think it’s a similar issue — and we’re just trying to identify it a bit in advance — to the one that Senator Patterson raised in questioning. That will be advancing in part of the regular legislative process that we tend to deal with. In light of the above, I would request that the proposed amendments contained under sections 61 and 62 of the enclosed MSLA proposals document be removed from further consideration by us, as well as clauses 27 and 58 that Ms. Shen highlighted, and that those changes be reflected in our report.
Are members in agreement with that observation?
Hon. Senators: Agreed.
The Chair: Thank you.
Are there any other observations that members would propose?
I don’t know that this is an observation, but it may be a comment, Ms. Shen, and now I’m speaking only for myself. This is a brilliant package of material. We are studying it in kind of a short period of time, so I think we’re not giving it necessarily due diligence but some diligence. Speaking for myself, I found it difficult to know exactly what was changing, and I’m wondering if in the future — unless you get that 75 thing through long after I’m gone, at least — if it’s possible to have a little bit more side‑by‑side comparison available. Maybe it’s there and I haven’t seen the documentation. It might help to expedite our dialogue so that we know precisely that a provision that looks like a big rights-type clause is actually just a change to a couple of words. Just a thought.
If the committee agrees to append observations and conclusions, is it agreed, then, that the Subcommittee on Agenda and Procedure be empowered to approve a final version of the observations being appended to the report, taking into consideration today’s discussion and with necessary editorial, grammatical and translation changes as required?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report the Miscellaneous Statute Law Amendment Program proposals with observations to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you.
I think that concludes our deliberations for today. Once again, I want to thank all of the attendees. We don’t usually have such a large audience, so we’re flattered by your presence. Thank you for your help.
Colleagues, once again, thank you for your diligence in consideration of this work.
(The committee adjourned.)