THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 22, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with video conference this day at 4:16 p.m. [ET] to examine, and report on, the report on the Statutes Repeal Act for the year 2023.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good afternoon, honourable senators, and welcome to the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
The Chair: My name is Brent Cotter. I’m a senator from Saskatchewan and Chair of the Standing Senate Committee on Legal and Constitutional Affairs. I would like to invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu, the deputy chair of the committee.
[English]
Senator Prosper: Senator P.J. Prosper, Nova Scotia.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here on the shores of the Kitchissippi in the unceded, unsurrendered territory of the Algonquin Anishinaabeg. Welcome to all of you.
[Translation]
Senator Dupuis: I am Renée Dupuis, and I represent the senatorial division of The Laurentides, in Quebec. Welcome.
[English]
The Chair: Senator Dalphond, we might have skipped past you. Would you like to introduce yourself?
[Translation]
Senator Dalphond: I am Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.
[English]
The Chair: Honourable senators, we are meeting today to examine the report of the Statutes Repeal Act for the year 2023. It’s a little bit of an unusual initiative today. The 2023 annual report was tabled in the Senate on February 1, 2023, and referred to this committee on November 9 of this year. The motion adopted states that the committee must submit its report to the Senate no later than December 5 this year — hence it being embedded in our work today.
For context, the Statutes Repeal Act establishes that federal legislation that has not come into force within 10 years of receiving Royal Assent will be repealed. The intent of the act is to prevent legislation that has received Royal Assent but not been brought into force from sitting on the books indefinitely.
The act does not apply to legislation that comes into force upon Royal Assent or legislation that comes into force on a day or days specified within the legislation itself. However, in many cases, acts or provisions within acts come into force on a day to be fixed by the Governor-in-Council.
The Statutes Repeal Act causes the automatic repeal of legislation that has not been brought into force within 10 years of receiving Royal Assent unless there is a resolution from Parliament to defer the repeal of acts that might be listed in the annual report.
The report before us lists 21 acts that have not yet come into force either in whole or in part. The goal of today’s process is to provide senators with a forum to be briefed by department officials — which will occur momentarily — regarding the justifications for the deferrals contained in the annual report and to provide additional oversight on the report.
We are joined by officials from Justice Canada, who will be leading this presentation to help us understand the report and to provide context regarding acts and provisions listed in the annual report that will be repealed on December 31, 2023.
Before I introduce them, let me say, in addition — because you will notice that there are a few other people in the room — a series of officials knowledgeable about various pieces of the legislation are here to assist our Justice Canada officials. In fact, there are more than you see with your eyes presently. Due to fire code restrictions, some potential witnesses may need to wait and are waiting in the Senate foyer because the seating in this room cannot accommodate all of them.
To accommodate this and to optimize efficiency, a core group of officials are in the room, and a designated coordinator will help with the rotation of officials between the meeting room and the Senate foyer, as necessary, to assist senators in their deliberations today. I might say that this could affect the flow of the meeting and require a bit of patience on the part of members and probably officials in handling the questions.
That’s the groundwork for the dialogue today. I’m going to now introduce the two Justice Canada officials who will lead us through this work and make presentations momentarily.
Riri Shen, Chief Legislative Counsel of Canada and Deputy Assistant Deputy Minister, Public Law and Legislative Services Sector. Welcome back. Pascale Parker, Legal Counsel, Public Law and Legislative Services Sector, Specialized Legislative Services Section.
As I said, there are a large number of officials joining us as well. With your indulgence, I will not try to introduce everyone. If I did that, it would take us to the end of the meeting and we could all go home, so we won’t do that.
Welcome, Ms. Shen and Ms. Parker. Thank you for joining us. The floor is yours for five minutes. That will be followed by questions and dialogue with senators.
Riri Shen, Deputy Assistant Deputy Minister and Chief Legislative Counsel, Public Law and Legislative Services Sector, Department of Justice Canada: Thank you very much. Good afternoon. We are very pleased to participate in your study of the deferral of repeals pursuant to the Statutes Repeal Act. To put the Statutes Repeal Act into context, I would like to provide some general information about this act.
It was enacted in 2008, and came into force two years later. The act is a housekeeping measure for federal statutes and seeks to ensure the effective maintenance for federal statutes through maintenance of federal legislation through the regular repeal of provisions that are not in force and are no longer needed.
Section 2 of the Statutes Repeal Act requires that the Minister of Justice table an annual report before both Houses of Parliament on any of the first five sitting days in each calendar year. This report lists the acts of Parliament or provisions of acts of Parliament not yet in force that were enacted nine years or more before December 31 of the previous calendar year.
Under the Statutes Repeal Act, every act or provision listed on the report is automatically repealed on December 31 of the year in which the report is tabled, unless it comes into force on or before that date or unless, during that year, either House of Parliament adopts a resolution exempting them from appeal.
The thirteenth annual report under the Statutes Repeal Act was tabled on January 31, 2023, in the House of Commons and on February 1, 2023, in the Senate. Following the tabling of the annual report, the Legislative Services Branch of the Department of Justice contacts the departments responsible for the act and provisions listed in the report to verify whether their repeal should be deferred. Justice officials consult and work with implicated departments to ensure explanations are provided as to why they believe that provisions should be deferred from repeal for an additional year.
Our role in this process is also to emphasize that departments should be taking steps to either repeal or bring into force the acts and provisions, particularly when deferral has been sought for several years. However, the final decision on whether to request a deferral or not rests with the departments responsible for the items.
[Translation]
The reasons for requesting that the repeal of legislation be deferred are summarized as follows: when an external event must take place before the act and the provisions can come into force or be repealed — such as the coming into force of an international treaty or the passage of a provincial or territorial law — and when bills repealing, replacing or implementing provisions that are not in force are in progress. In some cases, additional time is needed to address issues in relation to which a decision is pending, or to obtain approvals required to bring provisions into force or finalize regulations. In other cases, additional time is required to complete policy or consultation work.
Sometimes, failing to defer the repeal of legislation could have an adverse impact on international relations, relationships with First Nations, Inuit and Métis communities, or relationships with the provinces and territories.
The Statutes Repeal Act stipulates that repeal reports are valid for only one year. Therefore, any act or provision for which repeal is being deferred will again appear in the next annual report.
The 2023 annual report contains 21 items. For 9 of those items, repeal has been deferred at least 8 times; for 8 items, repeal has been deferred 4 times or less; and 4 of the items in the 2023 annual report are new.
The resolution must be adopted before December 31, 2023. Otherwise, the act and the provisions of other acts listed in the motion will automatically be repealed through the application of the Statutes Repeal Act. This could lead to inconsistencies in federal legislation.
The repeal of certain provisions could even result in federal-provincial-territorial stresses, or impact Canada’s international relations or its relationships with Indigenous peoples. Furthermore, if the act and the provisions of other acts listed in the motion are repealed on December 31, federal departments will have to address the resulting legislative gaps by introducing new bills. Those bills would have to go through the entire legislative process, from policy formulation to Royal Assent. This would be costly and time-consuming.
In closing, I would like to point out that, because the motion seeking deferrals of repeal for 2023 has not yet been put on notice, the officials from the various departments will not be able to speak to the content of the motion.
That concludes my opening remarks, honourable senators. Pascale Parker, legal counsel at the Justice Department, and I would be happy to answer any questions you have.
[English]
As mentioned, delegates from the departments that are responsible for the items listed in the annual report are also attending today’s appearance to address concerns and questions that the committee may have. Thank you.
The Chair: Thank you very much. I’m going to invite colleagues to pose questions.
There are 21 statutes set out in this list. Can you say how many are being deferred in quantity at this stage?
Ms. Shen: Because the motion for deferrals has not yet been tabled, I’m afraid I’m not in a position to speak to that.
Senator Dalphond: I was wondering if we could take these bills one by one and ask officials to give us a two-minute answer on why it’s not in place. For example, the first one is the standard hours, wages and leaves for the staff of Parliament. Ten years later, why is it not in force? They could give us an explanation, and we will move to the next one and the next one. Then perhaps we could ask questions after that presentation. If everybody agrees, that’s my suggestion.
The Chair: Ms. Shen, could you manage that, do you think?
Ms. Shen: I think so. I don’t know if everyone has the list, but I could call out the act and the officials will know what they are responsible for.
The Chair: Why don’t you call out two in sequence so the next one could get ready. Are you okay with that, Senator Boisvenu?
Senator Boisvenu: My question is more on a general basis.
[Translation]
My questions are more general. They don’t pertain to specific acts.
[English]
The Chair: In a way, that was my question. Could we have a couple of general questions, if there are any, and then we would move to Senator Dalphond’s idea.
Ms. Shen, you could get ready with the first couple as we come to the idea that Senator Dalphond proposed.
[Translation]
Senator Boisvenu: How many departments does this review cover?
Ms. Shen: Pardon me?
Senator Boisvenu: How many departments does this exercise cover?
Pascale Parker, Legal Counsel, Public Law and Legislative Services Sector, Specialized Legislative Services Section, Department of Justice Canada: Thirteen departments are responsible for the acts in the 2023 annual report.
Senator Boisvenu: Will the provisions being repealed leave any legislative gaps, or is there an immediate replacement for the legislation being repealed?
Ms. Shen: This is about the operation of the act, so there is no legal opinion.
Senator Boisvenu: No legislation is being repealed through this exercise?
Ms. Shen: Forgive me, but I think I’m confused.
Senator Boisvenu: This exercise is about repealing or reviewing acts, is it not?
Ms. Shen: This is more about examining the report that was tabled earlier this year. The report lists all the legislation ready to be repealed through the implementation of this act. Usually, there is a motion to —
[English]
Senator Boisvenu: You can use English.
Ms. Shen: For the deferral, but because that notice has not yet been tabled, that’s why we’re not in a position to speak to the deferrals for the 2023 report.
[Translation]
Senator Boisvenu: You’re saying that legislation will be repealed as part of this final exercise. Are the departments consulted?
Ms. Shen: Yes, they are consulted. We coordinate everything to notify them that provisions in their acts can be repealed via this process.
Senator Boisvenu: You make sure that repealing the acts doesn’t leave any legislative gaps. Is that correct?
Ms. Shen: No.
Senator Boisvenu: Is that the department’s responsibility?
[English]
The Chair: Could I just interject for a moment, senator? These are laws that have never come into force, so there’s not really the possibility of a void. We’re just erasing a bunch that were passed by Parliament but never kicked in. Is that a fair description, Ms. Shen?
Ms. Shen: That’s a fair description.
Senator Boisvenu: Thank you.
The Chair: Are there other very general questions? Senator Pate and Senator Dupuis, and then we’ll try the Senator Dalphond idea.
Senator Pate: I want to thank our Library of Parliament analysts because they pointed out that Australia’s Standing orders currently require the government to table a list of acts and provisions that have not yet come into force, including the reasons why they haven’t, as a well as a timeline for the operation. It strikes me that would be a very helpful tool. Does something like that exist that could be provided to parliamentarians that might assist us; and if not, is that something that would be helpful for us to recommend?
Ms. Shen: I am not aware of the report having included the reasons for the proposed deferral. That’s certainly something that we can take back and look into.
Senator Pate: And perhaps an observation this committee could make. Thank you very much.
[Translation]
Senator Dupuis: Ms. Shen, can you explain this exercise, in concrete terms? This is the first time the process has come before a committee, so this is a precedent for us. I think the explanation would be helpful, not only for the people here — I’m not talking about those who worked on or drafted the bill, of course — but also for those following our proceedings.
What are you asking us to do today, and what impact will our decisions have on what you are asking of us? Thank you.
[English]
Ms. Shen: My understanding is we were asked by the committee to come to answer questions about the annual report. This is the first time that officials have been asked to come forward. I don’t believe there are any decisions to be made today because the motion for deferrals has not yet been tabled.
[Translation]
Senator Dupuis: Are you saying that this is a pointless exercise?
Ms. Shen: I wouldn’t say that it’s pointless. It’s more that we are here to answer questions about the process.
Senator Dupuis: Great. Thank you.
[English]
The Chair: If I understand it correctly, this is kind of an automatic thing that kicks in under this piece of legislation, and we’re getting the chance to look at the pieces of legislation that have just been sitting idle and never came into force.
Ms. Shen: That’s right, and we’re not in a position to say whether they will form part of the deferrals motion or not, but all the officials are here to be able to answer questions about the fact that they do appear on the report that was tabled earlier this year.
The Chair: Now, without inviting Senator Dalphond to ask any more questions — because he’s asked a very big one — I wonder if we could work our way through this. It would be helpful for the committee if could you be as succinct as possible, a minute or two describing them. Are we working in the sequence that they appear here?
Senator Pate: Sorry to interrupt you, Mr. Chair, but I’m wondering if that summary — and I like the idea that Senator Dalphond has included — could include the reasons why they have not come into force and the timeline. Thank you.
The Chair: You get the idea of what we would like to know and in as focused a way as we can because we have quite a few to work our way through.
Ms. Shen: I’m not sure that all of our officials here have the list in order, so after these, I will call out in order. Thank you.
The Chair: It will be a revolving chair, I guess. Ms. Pereira, are you on the first one, the Parliamentary Employment and Staff Relations Act?
Rachel Pereira, Director, Democratic Institutions, Privy Council Office: Yes, Mr. Chair.
The Chair: Okay, tell us the story.
Ms. Pereira: I can give you a brief summary of what it is and can explain sort of why it has been deferred several times to date. As you may know, the Parliamentary Employment and Staff Relations Act, which I will call PESRA, governs the labour relations of parliamentary institutions. It has three parts to it. Part I was enacted in 1986 and came into Royal Assent at that time. It relates to staff relations, so collective agreements and bargaining.
Part II is not in force and what I will speak to shortly, and that would apply Part II of the Canada Labour Code that relates to hours, wages, vacations, holidays and terminations on parliamentary employers.
Part III was brought into force in 2019 and 2021. It applies Part I of the Canada Labour Code that relates to occupational health and safety, as well as workplace harassment and violence prevention regulations.
As to why PESRA, Part II, has been deferred many times, in recent years, there has been a reluctance to bring it into force because of concerns that it doesn’t sufficiently respect parliamentary privilege, that is, Parliament’s ability to regulate and enforce its own affairs.
Second, I would say that other pieces of legislation since PESRA was enacted have been introduced and brought into force that relate to parliamentary workplaces. That includes the Accessible Canada Act, amendments to the Canada Labour Code and the Pay Equity Act. There are a number of potential issues that we need to better understand and understand these interdependencies, so the interdependencies of those pieces of legislation, collective agreements that have come into place. We would want to ensure that any advice to the minister takes into account the latest information, the current conditions over recent years and what the implications would be for those employees that are impacted by a repeal or not of the PESRA, Part II. That would require consultations with legal services and potentially with parliamentary stakeholders to inform any of those options and advice going forward.
The Chair: Are there any questions on this specific provision?
[Translation]
Senator Dupuis: Ms. Pereira, would it be possible to get the legal analysis behind the idea that the act interfered with parliamentary privilege? My understanding was that Part II of PESRA would capture the upper and lower chambers as federal employers going forward. Do I have that right? Do I recall that correctly?
[English]
Ms. Shen: The legal advice is subject to solicitor-client privilege, so I don’t think we would be in a position to share that.
[Translation]
Senator Dupuis: I completely understand. You know, the purpose of today’s exercise is also to help us understand. Have any bills been passed that never came into force, gathering dust on a shelf somewhere? Everyone thinks employees of the federal government are protected from harassment, bullying and violence, but you are telling us that the provision hasn’t come into force, and it’s not the first time, it seems. Some of it has been around since 1996. I realize that you can’t provide us with the legal opinion, but what is the rationale behind all this? Please answer in layman’s terms that a regular person can understand. What is the reason that this provision was never brought into force?
Ms. Pereira: I don’t have a good answer to that question.
[English]
What I would say is that as time has passed, the policy area has continued to evolve and requires of officials a different understanding of the environment of those pieces of legislation that I mentioned and how it may interact with Part II and whether it’s relevant anymore.
PESRA, Part I, for example, provides a legal framework under which many parliamentary employees can exercise their right to unionize and to engage in collective bargaining. It has resulted in several collective agreements that may offer more than the minimum standard of the Canada Labour Code that Part II would bring into force. Therefore, we would have to understand if it has been superseded over the years by what the reality of collective bargaining is today. That’s an assessment that needs to be carried out. What are the implications given what’s happened in the environment over the past many years? Is it relevant to some employees outside of those that are covered under Part I?
Senator Dupuis: I find that so interesting.
[Translation]
Sometimes, it’s all about timing. We just received information from the Senate’s administration about a harassment prevention plan and a pay equity plan. Some commissioner was supposed to have submitted it for approval.
Does the fact that Part II isn’t in force mean that the Senate is doing the work voluntarily? Is it something we are doing pro bono, or out of goodwill, because we want to comply, partially or fully, with our obligations under Part II, even though we aren’t legally required to do so?
[English]
Ms. Pereira: As you say, senator, the environment holds employers to account in some way given what has transpired in recent years. The fact that Part II is there may potentially serve as an incentive of some sort for those employees that are not subject to minimum Canada Labour Code standards. It’s likely that the existing agreements in place far exceed what the minimum Canada Labour Code offers. In that case, it could be irrelevant. But it may serve as some incentive for employers to keep a level of standards, which is why that assessment would need to be carried out on our end to determine whether there is a benefit to bring it into force or repeal it or defer it.
The Chair: This provision for repeal has been deferred repeatedly? Senator Prosper.
Senator Prosper: I have a quick question, and thank you for that detail that — the way I heard it, in any event — what could be negotiated through a collective agreement could be somewhat better than what you could get under Part II of the Canada Labour Code. However, it is dependent upon the environment and how things operate and maybe a minimal sort of standard there.
What I’m curious about is whether there are mechanisms — because I imagine if the landscape changes or shifts a bit, where you look at the legislation and wonder if you should have done this or that — to flag it and bring it up through the parliamentary process again. Or is it just deferred or repealed?
Ms. Pereira: I don’t know what’s going to happen going forward, but I can say that an assessment is under way for that purpose so we can inform the responsible minister to make that kind of decision as to what the next steps might be. We’re working with our colleagues in the labour program at Employment and Social Development Canada, and they are undertaking a detailed assessment — for the very reasons I just mentioned — to inform that future pathway. So that work will be undertaken.
Senator Prosper: Thank you.
Ms. Pereira: Thank you, senator.
The Chair: We might now move on to number two, if we may — the Contraventions Act. Thank you, Ms. Pereira and Ms. Gervais, we appreciate it. Ms. Gervais, could you tell us briefly the story about the Contraventions Act?
[Translation]
Marie-Claude Gervais, Senior Counsel and Deputy Director, Policy Sector, Programs Branch, Legal Services Department of Justice Canada: Thank you very much, senator. I’m delighted to be providing this quick overview of the ins and outs of the Contraventions Act, and the reasons why our department, first, did not give effect to these provisions and, second, recommended deferring their repeal. I’ll start with a bit of context.
[English]
The Contraventions Act provides an alternative procedure for enforcing federal offences — an alternative to the Criminal Code summary conviction procedures. This enables federal enforcement officers, or any other officers granted with such authority, to enforce federal regulations by issuing tickets, leaving the offender with primarily two options, either pleading guilty and voluntarily paying the amount of the prescribed fine or disputing the ticket. While providing offenders with better access to justice, it spares the offender from the ramifications of a Criminal Code conviction. I’m talking about a judicial record and/or potential imprisonment.
When the act was adopted, it provided the federal government with the ability to take advantage of the existing, well tested and experienced provincial ticketing schemes already in place. Therefore, the decision was made in those years — and we’re talking about the late 1990s — to rely entirely on those schemes, avoiding duplicating ticketing across the country.
The department has been successful. The regime is now implemented across the country, except in Alberta and Saskatchewan. The reason why those provisions we’re talking about today have not been brought into effect is precisely because they are solely related to the implementation of a federal autonomous ticketing regime. Given the decision made by our department, those provisions were not, at that time, of any relevance. We were determined to plead the rule of law with provinces and sell access to justice to all of them.
Repeatedly, Alberta and Saskatchewan have declined our offer. Recently, within the context of the pandemic, while negotiating the public health measures in order to prevent the spread of COVID-19 — and I’m talking about the Quarantine Act-designated offences as contraventions — both responded unequivocally that it was not their priority.
Why has the deferral been recommended for so long? Simply, our department has not, as things stand today, exhausted all of the options made available to us. We are currently analyzing the development of a potential new, innovative implementation model. This is all under study.
I can say that the deferral, until today, has had a lot to do with the nature and objective, what distinguishes it from other statutes in the Contraventions Act and our chances of success with those remaining provinces. Since we have not exhausted all the options, this deferral is meant to preserve our ability to bring them into force, should we decide and see fit to put aside the status quo in those remaining provinces — meaning Criminal Code proceedings — and finally be successful in providing all Canadians better access to justice in developing and implementing based on those not-in-effect provisions an autonomous ticketing schemes.
Senator Simons: I want to make sure I understand this. This was passed in 1992?
Ms. Gervais: Correct.
Senator Simons: It’s the year I was married. That’s a long time ago.
Ms. Gervais: Right.
Senator Simons: If something is deferred like this and the march of time passes on, surely some of them go stale on the vine and the things that they were designed to regulate — in this case, the Contraventions Act — what is the point of continuing to defer it? I fail to understand what would make you think, after all the successive Alberta and Saskatchewan governments have said no for the last almost 35 years, that tomorrow Danielle Smith or Scott Moe might wake up and say, “Yes, by gum, the Contraventions Act looks good to me.”
Ms. Gervais: We have been successful for many years. We have had the ability to develop a whole regime, which should be perceived and interpreted as a consistent whole.
[Translation]
In French, we would call it “un ensemble cohérent.”
[English]
Should those be repealed, the whole regime, along with its supporting regulations, which were adopted duly and rightfully, would then be dismembered.
Senator Simons: So in this case, because you have a patchwork of whom has accepted and who has not —
Ms. Gervais: We do.
Senator Simons: That makes sense, then, in this instance. I don’t know that it makes as much sense in other instances.
I would just like to say that I learned a new French phrase today — mettre en vigueur — which I think is beautiful. I would like to make more things mettre en vigueur.
[Translation]
Ms. Gervais: If it turns out that an autonomous ticketing regime needs to be implemented, senator, we could rely on these provisions. Even though they weren’t in force, they have actually played an important role thus far by virtue of being part of this consistent whole.
[English]
They enable us to analyze, support and interpret the spirit and letter of what this regime was meant to achieve. When we negotiate or enter into a discussion with a given jurisdiction, we do have to assess the compatibility of their existing scheme with ours. The statute has been considerably helpful to us in order to fulfill our duty.
Senator Simons: Well, that makes some sense. Okay.
The Chair: Mr. Barbarie, are you able to speak to the Comprehensive Nuclear Test-Ban Treaty Implementation Act? Briefly again, if you can.
Daniel Barbarie, Deputy Director, Nuclear and Chemical Weapons Policy, Global Affairs Canada: Good afternoon, senators. I’m hoping this might be one of the simplest of the acts on the docket today.
The Comprehensive Nuclear Test-Ban Treaty Implementation Act implements Canada’s obligations under the Comprehensive Nuclear-Test-Ban Treaty, or CTBT, which aims to prohibit any and all nuclear explosives and testing for nuclear weapons. The legislation would criminalize the involvement of any Canadian in any nuclear test explosion. It outlines departmental responsibilities and provisions for conducting on-site inspections.
The act implicates four departments — my own department of Global Affairs Canada, Natural Resources Canada, Health Canada and Environment and Climate Change Canada. Pending entry into force, the departments are currently provisionally implementing the elements of the act. As a signatory to the CTBT, under our legal obligations — because we have signed and ratified the treaty — we act as if it is in force. Although, unfortunately, the treaty is not in force. The treaty is not in force internationally because there are 44 Annex 2 states that have listed during the signing of the treaty in 1996, all of which have to sign and ratify the treaty for the treaty to enter into force internationally. Now, those nine states are China, the Democratic People’s Republic of Korea, Egypt, India, Iran, Israel, Pakistan and the United States of America. Most recently, in an interesting legal development, the Russian Federation has revoked its ratification of the CTBT. Those nine states have to ratify the treaty before it enters into force.
Now, again, it’s disappointing to say that we do not expect the treaty to enter into force in the near term, although I can reassure senators that, at this time, we do believe that there is a global norm against nuclear weapons testing. Only the Democratic People’s Republic of Korea has tested nuclear weapons in the 21st century.
That being said, the legislation and the reason that it is part of this process needs to be ready if and when the CTBT comes into force. This is the reason why we at Global Affairs Canada strongly advocate for the deferral of the repeal each and every year. At the current time, in the unlikely event that the ratifications take place, we do not want to be in a position that, I believe as Senator Boisvenu mentioned, the CTBT comes into place and suddenly Canada is not able to implement it effectively.
A second factor this year is — if more were needed — as I mentioned, Russia’s recent revocation of ratification of the treaty. The Government of Canada has publicly deeply regretted that action, and it would not be appropriate if Canada also through a repeal of the act went into place.
I’m happy to answer any questions, but like I said, I believe this will hopefully be a fairly simple one.
The Chair: I think it was. Thank you, Mr. Barbarie. I’m sorry, we do have a question.
[Translation]
Senator Dupuis: Is it problematic to keep a treaty implementation act in force when the treaty in question isn’t actually in place because it hasn’t been ratified by enough states to enter into force? It’s as though the treaty implementation act has no purpose right now.
Mr. Barbarie: Thank you, senator.
[English]
I disagree with that. In terms of the Comprehensive Nuclear Test-Ban Treaty Implementation Act, the states that have signed onto the treaty and have ratified it, are acting with its provisions in place. Those that have signed on, including Russia and the United States, have not conducted nuclear weapons testing since the treaty was brought forward.
There is a CTBT organization, the Comprehensive Test-Ban Treaty Organization, or CTBTO, in place in Vienna that provisionally monitors. That is the international monitoring system in place.
All that being said, while the treaty is not in force, we believe there is a global norm, and we need to be ready. There are a lot of elements that Canada does do. Canada has the second-highest number of international monitoring systems as part of the CTBTO. If we did not have the implementation act and if we were not enforcing it, as I said, we’re provisionally implementing it. If that was taken away, I’m not a lawyer, but that would cause legal challenges in terms of our provision of data to the CTBTO.
[Translation]
Senator Dupuis: I’m trying to understand the legal basis for why Global Affairs Canada decided to commit funding when it didn’t have a solid foundation for the legislative authority since the treaty isn’t in force.
[English]
Mr. Barbarie: The legal basis, in my understanding — again, I’m not a lawyer, and we can provide further information if I’m not providing a full reasoning — is that as we have signed and ratified the treaty, we do have obligations to the CTBTO. We pay assessed contributions to that organization. The CTBTO has an international budget now, but under the Statutes Repeal Act, this is about our domestic legislation to implement the CTBT, not about our obligations to the CTBTO. That’s why our minister and our ministry, the department, provide funding to the CTBTO on an annual basis to provisionally implement the treaty. I hope that answered the question.
Senator Dalphond: I’m not sure I understand the answer. The act is not in force, so the department cannot have any legal authority to act pursuant to it. It’s somewhere in legal limbo of parliamentary adopted laws that are in the fridge, or maybe the freezer. We say it’s in the freezer, but one day, if there are enough people signing the treaty, we will take it out of the freezer and put it into the oven because it will then be ready to cook. Fine. I understand what you’re saying, but this thing goes back to 1988. We are 25 years later, and we still have faint hope that we’ll need to take it out of the freezer at some point to serve to guests?
I really wonder if it’s the appropriate way to go. At the time we unfreeze it, maybe it will be obsolete because the technology will have changed. I don’t know. I find it amazing that we’re still keeping it in the freezer in case it might be useful.
The Chair: That sounded like more of a statement, a good one.
Senator Dalphond: Yes. Sorry. It’s not a question.
The Chair: With respect to the first part of — I don’t want to prolong this because we have quite a few more to go, Mr. Barbarie, and it wasn’t as simple as you had hoped.
Is the legislation the basis upon which these payments to the international organization are made or is that handled in another dimension of Global Affairs?
Mr. Barbarie: To the best of my understanding — I am not a financial expert either — that is handled separately.
In terms of the implementation act, for example, the main components of it are that any Canadian who would be involved in a nuclear weapons test explosion would be imprisoned for life. Or a Canadian who participates in such an activity outside of Canada, knowing that it would be a crime in Canada, would be imprisoned.
Now, to the senator’s point, there are some elements of this that are, shall we say, a bit unusual. Canada is a non-nuclear weapons state, with no interest in pursuing domestic nuclear weapons. We are a proud member of the Nuclear Non-Proliferation Treaty. Certain elements of it, to your point, don’t really apply in that sense. Nevertheless, the other elements of the treaty — the treaty is very long and talks about the monitoring system. It’s a very impressive treaty. Within six hours, any nuclear explosion in the world can be pinpointed to who did it, as we’ve seen a number of times in the 21st century.
All that to say — sorry, that’s a long response to your question — yes, those are separate. The implementation act has domestic elements, but Canada’s support of the treaty and our payment of assessed contributions is separate from the Comprehensive Nuclear Test-Ban Treaty Implementation Act.
The Chair: Are we able to move on to the next one? We’re going to have a hard time getting to December 5 if we don’t.
[Translation]
Senator Dupuis: Once we have the answers, I think we’ll be able to move quickly. I don’t think the December 5 deadline is a problem. I have one last question about this.
Could we get an answer from the department? I don’t mean today, because we don’t want to keep discussing it, but could we get a written answer from the department regarding the legal basis for spending public funds? That’s a real question. There are private members’ bills, in the House and the Senate, that wind up on ice, because there isn’t any funding. We understand that there isn’t a legislative basis for the funding. You are saying that, in this case, the executive branch can sign the treaties it likes. It has that prerogative, and we know that. However, why have a treaty implementation act with no legal basis? Could we get an answer to that, preferably by December 5? After December 5 is fine as well.
[English]
The Chair: Before you answer, Mr. Barbarie, I do think you made us a little nervous by describing this piece of legislation as being provisionally implemented. Without worrying too much about that, if you could provide the basis upon which funding supports the international obligations would be helpful. Hopefully that’s not too big of a question.
Mr. Barbarie: I don’t think so. I apologize if I’ve made anyone nervous. I will work with my colleagues to provide that information to you.
The Chair: Thank you, Mr. Barbarie. Thank you, Senator Dupuis. I will now invite us to move to the fifth topic, which is the Modernization of Benefits and Obligations Act.
Senator Simons: You don’t want to miss number 4.
The Chair: I’m sorry. I got a little ahead of myself there. Next is the Public Sector Pension Investment Board Act. Could you tell us a bit about it in a couple of minutes?
Domenico Mancini, Director, Pension Policy and Programs, Treasury Board of Canada Secretariat: Thank you very much, honourable senators. It’s a pleasure to be here with you today.
[Translation]
As the chair mentioned, item 4 in the report deals with not-in-force provisions of the Public Sector Pension Investment Board Act, which fall under the authority of the President of the Treasury Board.
[English]
These provisions actually relate not so much to the Public Sector Pension Investment Board specifically. In fact, they are provisions that amend the Canadian Forces Superannuation Act, or CFSA, which outlines the terms and conditions of the pension plan for members of the Canadian Armed Forces. They specifically amend certain provisions with respect to the supplementary death benefit under that act which are provided to members of the Canadian Armed Forces.
One of the key things in subsection 161(1) and subsection 161(4) provides regulation-making authority for the Minister of National Defence to introduce amendments under the CFSA with respect to the supplementary death benefit plan regarding various issues of that plan, so funding, administrative issues, and benefit and design.
The reason these provisions have been deferred since 2011 is because it is actually quite a complex web of regulation and legislation. We have not-in-force provisions under the Public Sector Pension Investment Board Act, related not-in-force provisions under the Canadian Forces Superannuation Act — and my colleagues from the Department of National Defence are here to speak specifically to those provisions — and because regulations have not yet been brought into force under that act, the idea is when those regulations are finalized these provisions would all come into force at the same time.
It has been a long time in the making. However, my colleagues from the Department of National Defence would be well placed to speak to developments in terms of the regulatory amendments that are in question, which are the impetus for bringing all of these provisions into force simultaneously.
The Chair: If I have it right, you need this regulatory platform to kick in when number seven kicks in.
Mr. Mancini: That’s correct.
The Chair: Ms. Shen, I wonder if you could change the sequence here a bit and invite officials to join the table and we might move next to number seven. They seem to be together, and then we will come back. This is a suggestion to sequence things.
Ms. Shen: We do not have any officials for the Yukon Act, which is item 6, in any event.
Senator Dalphond: The Public Sector Pension Investment Board Act, I’m trying to find in the legislation section 155, 157, 158 and 160. I go to the official legislation site and it says 133 to 168 blank amendments closed brackets. There is no text even in the law, so what do we suspend?
Mr. Mancini: I’m maybe not the best placed to speak to the legislative mechanism around this, but those amendments are already embedded within the Canadian Forces Superannuation Act. We have the pleasure of being equally implicated in the Statutes Repeal Act process as a result. However, there is little meat to dig into there within the Public Sector Pension Investment Board Act.
Senator Dalphond: I’m just trying to understand. Is there anything left in the public sector for these provisions? They’re not found in the law. They’re not there. It says 133 to 168 “amendments.” That’s it; there is no text. Where is the text? What do we suspend? We suspend the limbo?
Mr. Mancini: Correct. I might defer to my colleagues at the Department of Justice.
Ms. Shen: [Technical difficulties] grey on the consolidated database.
The Chair: In order to solve this problem, perhaps we could invite you to provide that bit of information about the status of those provisions.
Mr. Mancini: Not a problem.
The Chair: If you could provide that offline, Mr. Mancini. Would that be acceptable, Senator Dalphond?
Senator Dalphond: Yes.
Mr. Mancini: Absolutely, I would be happy to do that.
The Chair: Mr. Irwin, are you for number seven concerning the Canadian Forces Superannuation Act?
Stephen Irwin, Director, Pension and Social Programs, Military Personnel Command, Department of National Defence: Yes, Mr. Chair. I am here to represent the Department of National Defence regarding the Canadian Forces Superannuation Act.
The Chair: Can you give us a two-minute snapshot of this provision and the approach contemplated?
Mr. Irwin: I would be absolutely delighted to. The Canadian Forces Superannuation Act, which is the act that governs the pensions for the members of the Armed Forces, contains several provisions that received Royal Assent over 10 years ago but are not yet in force because regulations are not yet complete. Those changes, fundamentally, will take what has been administered directly by the act and allow changes to be undertaken in regulations. That touches items such as changes to supplementary death benefits, elective service, various pension provisions, the process for revoking benefits and rules regarding the surrender of benefits.
Those are all very administrative in nature. The challenge is that if you need to go back and amend those, as the world moves on and modernizes and we need to update things, it’s a Herculean effort to change legislation. The intent of these items not yet in force is to move them to regulations, which would be much easier to achieve.
Over the past year, we have made substantial progress in this regard. We have brought various new experts into our team, and we have a dedicated team working with us at the Department of Justice. I’m happy to say that we intend to have the drafts for those regulations completed before the end of this year.
The Chair: These provisions have been held in abeyance. Can you say for what purpose they achieve that?
Mr. Irwin: If we were to repeal at the end of this year, I don’t think we would get to the point of where they could actually be published in the Gazette next year allowing us to make those changes.
[Translation]
Senator Dupuis: If I understand correctly, you need to retain in the act the authority to define or manage a certain number of situations. Now you would like to move those situations so they are captured by regulations. I gather that you have to keep them in the act until the regulations are made. Do I have that right? Can you explain it over again, please? Thank you.
[English]
Mr. Irwin: My apologies if it was confusing. Right now, everything is in the act. We want to allow us to make changes in the future by changing regulations, by moving certain portions out of the act or the authority to make changes out of the act and into regulations.
[Translation]
Senator Dupuis: We are saying the same thing, then, but differently. Very good. Thank you.
[English]
Senator Pate: You have now piqued my interest as someone who is dealing with her father’s things as a former Canadian Armed Forces member. Can you give us an example of one of those provisions? You said the supplemental death benefits. What else would be in there?
Mr. Irwin: For example, there are regulations that govern when a person could potentially be in two pension plans at the same time and they may cause an administrative glitch that is hard to resolve because that glitch is not accounted for in the current regulations. This would allow us to make changes like that, which are relatively minor, but it allows us to modernize the approach to things.
The Chair: Thank you, Mr. Irwin.
When you tap your pencil, Senator Dupuis, that makes me think you may have another question.
[Translation]
Senator Dupuis: My question isn’t about item 7. I just want to make sure that we will get the answers regarding the Yukon Act.
I realize that no one can explain it today, but could the officials get back to the committee in writing?
[English]
The Chair: Is that possible, Ms. Shen? That would be great. Thank you. We won’t ask Mr. Irwin to answer that one.
There are a series of Budget Implementation Act on this list, 8 and 10. I’m hoping that might be the same person or people and we might do them more or less together. Is that possible? Am I being too hopeful?
Ms. Shen: [Technical difficulties] specific provisions are the responsibility of different ministers.
The Chair: Thank you, Mr. Irwin and Mr. Mancini.
Gentlemen, who is on Budget Implementation Act, 2005?
Levent Özmutlu, Director General, Strategic Policy Sector, Procurement Branch, Public Services and Procurement Canada: Perhaps I could start by describing some of the powers that are in the Department of Public Works and Government Services Act whereby the minister has the exclusive authority for the acquisition and provision of materiel. Effectively, we are talking about goods procurement. In effect, when we have other departments and agencies that are exercising their ability to buy goods, those authorities have been delegated to those ministers by the Minister of Public Works and Government Services or the Minister of Public Services and Procurement Canada.
The amendment, or Part 18, of the Budget Implementation Act of 2005 would effectively extend those authorities to the area of services procurement as well. So, in effect, if this provision were to be brought into force, the minister would also have exclusive authority over services procurement, which could then be delegated to other ministers to exercise those authorities. Currently, ministers are exercising those authorities based on the policies that have been established by the Treasury Board of Canada, and therefore the Minister of Public Works is not directly implicated in those.
In terms of why we still have this on the books after all these years is that we can foresee a scenario where we would like to potentially centralize the powers related to the procurement of services with a minister. That way, we could have additional standardization of approaches as it relates to things like, for example, Indigenous procurement, procurement with underrepresented suppliers and procurement related to more environmentally friendly goods and services.
It’s for that reason that it has been deferred up to this point in time. Practically speaking, the implementation of it, obviously, would require quite a bit of thinking, consultation and engagement with departments. That could explain part of the reason why it has not been fully enacted to date.
Maybe I’ll stop there and see if there are any questions on this one.
Thank you.
The Chair: That was helpful. Thank you. I am anticipating, Mr. Millar, that you’re on the Budget Implementation Act, 2009.
Matthew Millar, Senior Director, Pay Equity, Treasury Board of Canada Secretariat: Yes, that’s correct.
The Chair: Could you tell us a bit about that and why it needs the deferral?
Mr. Millar: I’ll try to be short and cover as much as I can as quickly as possible.
In essence, these sections of the Budget Implementation Act, 2009, provide the Federal Public Sector Labour Relations and Employment Board with the authority to hear and dispose of public sector pay equity complaints filed under the Canadian Human Rights Act. This complaint-based system for redressing gender-based differences in wages under the Canadian Human Rights Act has since been replaced with a proactive scheme to provide public sector employees in female-predominant job groups with equitable compensation under the Pay Equity Act. With the implementation of the Pay Equity Act, the authority to oversee complaints is provided to the office of the Pay Equity Commissioner.
However, there is currently one pay equity complaint before the Federal Public Sector Labour Relations and Employment Board that was filed by a public sector bargaining agent, the Association of Canadian Financial Officers, in February 2016. Hence, the purpose of the deferral is to keep the provisions necessary for the continuity of the pay equity complaint, which is currently in the final phase of a joint pay equity study between the Association of Canadian Financial Officers and the Treasury Board of Canada Secretariat to resolve the complaint. Once the complaint is resolved, transitional provisions in the Budget Implementation Act, 2018, can be brought into force to repeal the provisions in the Budget Implementation Act, 2009.
The Chair: So this is kind of a place holder until that matter is resolved, and then it will get wiped out?
Mr. Millar: Correct.
[Translation]
Senator Dupuis: That’s very interesting.
[English]
The Chair: I want to thank Senator Dalphond for the initiative. This is a real learning experience for us. I think it has made this exercise a valuable one, despite the fact that we will work hard to make the December 5 deadline.
Senator Dalphond: [Technical difficulties] model so that we get that document with another column that says why it is not, and then we have 5 or 10 lines. Then we could ask questions. But we’re doing it approximately.
The Chair: You’ll hear an observation from us for sure, I think, on that point.
Thank you, gentlemen. This is much appreciated. Thank you, Mr. Özmutlu and Mr. Millar.
We’re going back now to number 9, if we may. Ms. Shen, do you have a person or team for this? This is An Act to amend certain Acts in relation to financial institutions. We might then get ready for number 11, which is the Payment Card Networks Act.
Ms. Shen: [Technical difficulties] the Modernization of Benefits and Obligations Act. Perhaps after these two have appeared, we can go back to it.
The Chair: I got ahead of myself. I apologize. Thank you very much for bringing that to our attention.
Ms. Russell, are you on the financial institutions act? Take it away.
Barbara Russell, Director, Strategic Initiatives, Financial Institutions Division, Financial Sector Policy Branch, Department of Finance Canada: The act in question amends the definition of solicitation as it applies to the solicitation of proxies in the corporate governance parts of the federal financial institutions statutes. A proxy is a legal instrument that allows a shareholder to appoint another person, or a proxy holder, to attend and act on their behalf at a meeting of shareholders. The amending act brings the definition into alignment with the definition of solicitation in the Canada Business Corporations Act, which serves as the general framework for the governance parts of the statutes of the Bank Act, the Insurance Companies Act and the Trust and Loan Companies Act.
This has been deferred for several years because there have been a number of changes to the definition of solicitation in the Canada Business Corporations Act, and we’ve made amendments several times to bring the amending act up-to-date. We made amendments in 2019 to the Bank Act and in 2022 to this act that would amend the Bank Act, the Insurance Companies Act and the Trust and Loan Companies Act.
All of these changes will be brought into force when a set of related regulations come into force, and those regulations were pre-published in May of this year.
The Chair: So you’re close to not needing this, but you need it for a bit longer.
Ms. Russell: Yes, that’s right.
Senator Dalphond: [Technical difficulties] regulations in place?
Ms. Russell: Yes. As I mentioned, there were a number of changes to the Canada Business Corporations Act, so we wanted to keep the definition up-to-date.
The Chair: I think the answer was yes.
Ms. Russell: Yes.
The Chair: Thank you, Ms. Russell.
Are we jumping down now to the Payment Card Networks Act?
Mr. Marion, are you on the Payment Card Networks Act?
Nicolas Marion, Senior Director, Payments Policy, Financial Services Division, Financial Sector Policy Branch, Department of Finance Canada: Yes, I am. Thank you, chair, and thank you, members of the committee.
The Payment Card Networks Act was enacted in 2010, and, really, the purpose of the [Technical difficulties] practices for payment card networks like Visa, Mastercard, Amex and Interac, particularly as it relates to their relationships and services to merchants, either through acquirers or other payment processors.
The two provisions under the act for which their coming-into-force was deferred relate to regulation-making authority — for instance, to set interchange rates and the disclosure of interchange rates that merchants pay for accepting payment cards.
In 2010, instead of going forward with regulations, the government worked collaboratively with the payment card industry — the networks, the acquirers, merchant associations and individual merchants — to develop a code of conduct for the debit and credit card industry in Canada.
Since then, and more recently in 2020, the government undertook a multi-year, comprehensive review of that code of conduct, in part, to modernize it and ensure that it is still applicable, relevant and really delivers the public policy objectives in terms of supporting transparent fair business practices, particularly in support of merchants. That review is near completion but not yet.
The Chair: Does this mean you are holding those in abeyance in case you need them to put regulations in place if that project doesn’t turn out the way you hoped?
Mr. Marion: Correct.
[Translation]
Senator Dupuis: Do I understand correctly that, initially, the legislative approach was to give the government the power to make regulations? Has anyone made a strong enough case to convince the government to back off making regulations, in favour of working collaboratively with the industry so that it can regulate itself under a code of conduct? Are there questions about whether the code of conduct is stringent enough because complaints were made about the system?
Mr. Marion: I would actually say that the government worked very closely with the payment card industry in 2008-09, resulting in the code of conduct that was finalized and released in 2010. Consultations on the code of conduct took place in 2009, I believe.
That said, in order to ensure support across the payment card industry, the government decided to go ahead with legislation. It contained two provisions that would not come into force upon Royal Assent. The two provisions relate to the Governor-in-Council’s regulation-making authority. The code, itself, has been very effective for ensuring transparency and protecting merchants, in terms of the provisions around exiting certain contracts with service providers without penalty.
Senator Dupuis: The industry was able to convince the government that it could do a better job through self-regulation than the government could through regulations.
Mr. Marion: Once again, I wouldn’t say it’s a matter of self-regulating. Oftentimes, a non-regulatory code of conduct is more effective, to some extent, than regulations. That’s especially true when the provisions go beyond regulation-making powers. I don’t think the industry pushed for one over the other. I would say it has more to do with the government developing a code of conduct quite successfully.
Currently, as I mentioned, a multi-year review of the code is under way to make sure that it still meets the public policy objectives and protects merchants. If the review ends up showing that the code is not effective and a new one is needed, I think the government would consider moving ahead with the regulations.
[English]
Senator Dalphond: It’s a very short bill, eight sections.
[Translation]
Sections 6 and 7 are in grey. Why isn’t there a coming into force provision? Under the Interpretation Act, as soon as Royal Assent is received, the provision comes into force.
How is it possible that it’s not in force when it is? Is it due to section 8, which stipulates that the minister may, by order, exempt a payment card network operator from any of the provisions? The minister can’t suspend the act. The minister can only suspend application of the act for a specific operator.
Mr. Marion: The act is in force. Only sections 6 and 7 aren’t in force. When the act came into force, those sections were intended to come into force at such time as determined by the Governor-in-Council.
Senator Dalphond: That’s not in the act. Was the budget supposed to cover this act? I don’t understand. I don’t see a coming into force provision stipulating a date other than that established by Royal Assent.
Mr. Marion: I have to check.
Senator Dalphond: The Interpretation Act says that an act without a coming into force provision comes into force upon Royal Assent.
Mr. Marion: It may be an act—
Ms. Shen: That’s probably the case. I’m not terribly familiar with that particular act, but there is usually a provision stipulating that the Governor-in-Council has that authority. The sections probably appear in grey because those provisions are not yet in force. The reason is usually that the Governor-in-Council has that authority.
Senator Dalphond: Can you send us the information on where we would find that Governor-in-Council authority? It’s not in this act, so I assume it’s in another act?
Ms. Shen: Yes.
[English]
The Chair: Could I make a suggestion here? Could you, Mr. Marion and maybe Ms. Shen, provide the legal basis of the answer to the question Senator Dalphond is asking, which is basically the way in which Governor-in-Council implemented the act but not these two provisions? It seems to me that would be a simple, focused answer that must be a gazetted provision or something.
Ms. Shen: Typically in the bill that goes before Parliament, the provisions for that would appear in that bill, but then once the act has received Royal Assent, all of the provisions would appear on the consolidated database. The fact that those particular provisions have not yet been brought into force, that power would have been in the act that brought forward the bill. I don’t know if in this case it was a budget implementation act, for example, so that provision would appear in that statute as opposed to the actual bill that’s brought into force.
The Chair: Are you okay with that Senator Dalphond?
Senator Dalphond: If you can provide it, that’s fine, and don’t spend a week on that.
The Chair: I think that satisfies us on these. Could we move to the Modernization of Benefits and Obligations Act.
Thank you, Ms. Russell. Thank you, Mr. Marion.
Ms. Hitch, will you speak to the Modernization of Benefits and Obligations Act briefly?
Lisa Hitch, Senior Counsel, Policy Sector, Family Law and Youth Justice Policy Section, Office of the Senior General Counsel, Department of Justice Canada: The Modernization of Benefits and Obligations Act is a somewhat unique bill in that it was one of the last equality-seeking omnibus bills. So that particular statute is not a stand-alone statute. Instead, it amended 68 laws under the responsibility of some 12 departments and agencies. It was the Government of Canada’s response to the two Supreme Court of Canada decisions in 1995 under section 15 of the Canadian Charter of Rights and Freedoms, so Miron v. Trudel dealing with equal treatment for common law unmarried relationships and married relationships. Then Egan v. Canada dealing with the equal treatment of common law unmarried relationships of the opposite sex and unmarried common law relationships of the same sex.
The bill also accomplished a number of other things. It eliminated the last remaining provisions about illegitimacy and it evened out relationships around families. Over the many years since, the Department of Justice has continued to work with the 12 departments and agencies, and, at this moment in time, the last three remaining provisions of the more than 300 original provisions that are affecting the Employment Insurance Act parental leave benefits. Those provisions were enacted at a time when adoption laws in all provinces and territories did not allow same-sex partners of adoptive parents to also adopt and therefore to also be a legal parent.
We watched provincial and territorial law rather than creating a federal standard where we would insist that the provision could be paid regardless of having legal parentage to try and encourage provinces and territories to amend their laws to ensure that there was equal parentage access.
As the provinces and territories — which took many years — were coming to a point where provincial and territorial law all allowed adoption for same-sex couples and adoption for a same-sex partner of a parent, then we ended up in a situation where there were starting to be challenges around assisted human reproduction, or AHR, children who were born through AHR and surrogacy. There were similar issues in provincial and territorial law about whether the same-sex partner was a legal parent.
That delayed things somewhat longer as we kept watching for case law to see whether this was going to be an issue for the federal government. The idea was to ensure that parental leave benefits under Employment Insurance, or EI, could be paid in situations where the situation of the family met the policy purpose of the act, regardless of whether there was a barrier caused by provincial and territorial legislation.
Then, just as that was starting to even out in provincial and territorial law, the mandate letter for the minister — I will turn to my colleague to explain — required the minister to launch a modernization exercise for the Employment Insurance Act. Out of caution, further deferral from repeal was requested in order to ensure that nothing would come out of those consultations that we were unaware of, which would require, again, the federal use of the regulatory provisions.
Mona Nandy, Director General, Employment Insurance Policy, Skills and Employment Branch, Employment and Social Development Canada: Thanks, Ms. Hitch. Thank you, senators, for the opportunity to appear today.
As it stands now, there is ongoing work at the Department of Employment and Social Development Canada regarding the outcome of those consultations. As was noted earlier, the policy work and review is ongoing, and as such, the deferral of these provisions from coming into force — because they have never been brought into force and have never been enacted — is to ensure that the necessary flexibility remains within the EI program, which, as some of you may know, serves and is there to support over 2 million Canadians each year who may need to step away from work for life events, including to care for a newborn child or to support a child that they have brought into their family through adoption or surrogacy.
For those reasons and to retain that additional flexibility, these provisions have remained in place as a federal backstop while this review process continues.
The Chair: Thank you, both. It appears to be clear and precise enough to not warrant questions. Thank you, Ms. Hitch and Ms. Nandy.
This takes us to number 12. We are looking at a period of about another 35 minutes before we need to bring this session to an end. It would be nice to make it, if we are able, but I don’t want to rush the consideration.
As our next colleagues are joining us, let me say, in case I don’t get a chance at the end, as new as this process is and although advanced information would have been helpful, I do think we are really benefiting from the presentations of the officials today. We are learning a lot from the paper to the conversation, and I wanted to make sure that we expressed that thanks.
Now we’re at number 12, which is An Act to promote the efficiency and adaptability of the Canadian economy by — may I dispense?
An Hon. Senator: Dispense.
The Chair: Thank you. I don’t know who will lead us off on this one.
Samir Chhabra, Director General, Marketplace Framework Policy Branch, Innovation, Science and Economic Development Canada: Thank you, Mr. Chair. It is Canada’s anti-spam legislation, or CASL, which was originally brought into force in 2014. Certain provisions of CASL were not brought into force at that time, mainly with respect to giving industry a bit of extra time to develop compliance regimes and adapt to the new approach, particularly the private right of action, which is part of the enforcement framework, as well as some elements related to telecommunications messages, which are also covered under the Telecommunications Act.
Over time, including in 2017, when the Standing Committee on Industry and Technology, or INDU, also did a study on CASL, they recommended that the government undertake a review of some of its provisions. Following that, the government has taken steps towards modernizing its approach to privacy and data protection through originally Bill C-11, now Bill C-27, which also includes the Artificial Intelligence and Data Act, all a part of the Digital Charter implementation approach.
Although we can’t speak to this year, as our Justice colleagues mentioned earlier, in previous years, the logic from the government has been to seek deferral such that these other related and important pieces of legislation could move through, which would then better enable a fulsome and appropriate review of Canada’s anti-spam legislation.
Senator Simons: All right. This is one that I have a lot of questions about.
In terms of the nature of spam, the definition of spam has changed radically since 2010. I would be surprised if this act were still fit for purpose given almost no one under 50 has a home phone, given that spam today — I have received 4,000 identical emails about a current bill before the Senate, which all come from spam bots. I can’t imagine why you would want to keep this. It sort of reminds me, recently my husband made us give away our piano, which had been in the living room for a long time. Our daughter, who once played it, is 27 and now lives in another province, so I finally gave away the piano. How could this possibly be useful in the world today?
Mr. Chhabra: Thank you very much for the question. I certainly appreciate the thrust of it. I think we can all agree that we’re still facing certain challenges in regards to spam.
The legislation has had some demonstrable and important effects over time. I want to clarify two things. One, it has had some important and beneficial impacts. Second, we’re not here to talk about CASL as a whole but rather certain provisions that have not been brought into place.
On the impact of the bill, I think the year following its adoption, it had a marked 37% decrease in the amount of spam originating from Canada. A survey of Canadians’ inboxes themselves found that Canadians had 29% less email spam overall the year after this legislation came into place. There have been more than 3 million items or complaints registered with the Canadian Radio-television and Telecommunications Commission, or CRTC, regarding this.
Recently, enforcement action has been taken against dark web companies operating out of Canada that was made possible by virtue of the fact that CASL and CRTC were able to take action. Fines and penalties as a result totalled over $300,000 to four Canadians operating in that space.
This is very much an operative piece of legislation that is a foundation piece to our overall work on privacy and data protection. I certainly appreciate that the job may not be fully done to everyone’s satisfaction to this point, but I think that the legislation itself is doing a job. I think the government is committed under the Digital Charter to move forward in doing more with respect to protecting Canadians’ privacy via Bill C-27, which includes the Consumer Privacy Protection Act as well as the Artificial Intelligence Data Act.
Senator Simons: I’m just wondering if these provisions that you keep deferring haven’t gone stale.
Mr. Chhabra: Thank you again for the question. There are two elements to the provisions. The first is around a private right of action, which would be part of the enforcement framework underpinning CASL. The second is around telecommunications messages or voice messages.
I think it’s important that we take the time to complete the work on the other related pieces of legislation, particularly Bill C-27. There is also a cybersecurity review under way right now, particularly to make sure that there is an opportunity to do a fulsome and appropriate review of CASL as it stands following that to see where the interlinkages are and ensure the government is taking into account all possible avenues. Particularly with an enforcement framework, it would be important to maintain that ability and to think about once — assuming Bill C-27 goes through and gets Royal Assent, to look at the system fulsomely and see where the important linkages are and where certain enforcement actions need to be strengthened. Perhaps this would then be a consideration about whether CASL —
Senator Simons: Then you can give away the piano. Okay.
The Chair: Thank you, Mr. Chhabra. Are we able to move to the Financial System Review Act?
Ms. Russell, are you going to tell us a little bit about the Financial System Review Act provisions?
Ms. Russell: Yes, I can. Thank you.
The legislation amends the Bank Act to bring foreign subsidiaries of Canadian federally regulated financial institutions under the regulatory framework for foreign banks. The amendments broaden the definition of foreign banks to include the foreign subsidiaries of federal financial institutions. It also prohibits the foreign subsidiaries from making certain types of investments or from undertaking activities that would otherwise not be permitted under the Bank Act.
At the time of these amendments, or shortly after, there was some concern raised that there could be a negative impact on Canadian clients who go back and forth from Canada and the U.S., for example, that there would be a disruption in transferring funds between bank accounts. There was hesitation to bring this act forward, and so these amendments have never been in force.
When we deferred repeal last year, we indicated that it would be helpful to engage with key stakeholders and the federal financial sector agencies like the Office of the Superintendent of Financial Institutions, or OSFI, to determine how to go about resolving this issue and whether or not it’s a real issue that we’re working with right now. We also indicated that it would be appropriate to consider this issue in the context of our regular legislative review, which happens every five years. That review has started, and there was a consultation paper launched in October with a question that would cover the issue of the federally regulated financial institutions and their expansion abroad.
The Chair: How does the preservation of these through a deferral help you? Is it just another one of these — if this other stuff doesn’t help you out, you can at least avail yourselves of these provisions?
Ms. Russell: We see that there would be a certain type of risk because if, for example, a foreign subsidiary of a bank decided that they wanted to offer deposit-taking products in Canada, that would be running offside what is normally a requirement under the foreign bank part of the Bank Act. Keeping those provisions in place would allow us to move quickly with them if we did see any activities that would normally run counter to the Bank Act.
The Chair: That’s helpful. Thank you very much.
This would take us to number 14, I think. Perhaps, Mr. Scott, are you on 14, An Act to amend the Railway Safety Act, et cetera? Tell us about it, if you could.
Stephen Scott, Director General, Rail Safety, Transport Canada: Thank you, chair. For rail safety, in summary, the legislative clauses that were deferred from repeal date back to a piece of legislation from 2012. So, senator, I like to see this one in the microwave as opposed to in the freezer. That broader piece of legislation was a response to a policy review. It did take effect in 2012, and it generally strengthened the oversight and enforcement capacity of Transport Canada in the rail sector.
However, there is a small basket of clauses from that legislative exercise that are currently in the Railway Safety Act — way down at the bottom — but they haven’t taken force yet. These provisions are around the rule-making process. It’s a regulation-making authority that would enable Transport Canada to codify, through these procedural aspects, the rule-making process with more prescription. Right now, the rule-making process for developing rules is articulated in the Railway Safety Act, but at a high level. This would be a regulatory-making power to prescribe that process in more detail through regulation, should we exercise it.
In terms of why these provisions have not been used to date, two reasons, senators. Firstly, the rule-making process has evolved since 2012 through an open and collaborative engagement with railways. The process has substantially improved. It’s not without some limitations, but it’s in a good spot. So, in other words, we have, to a degree, achieved the policy objective through an alternative pathway. Then, the second reason I would highlight is that the regulatory focus has been elsewhere, namely, increasing oversight in enforcement in rail safety and the transportation of dangerous goods. We do have a continuous cycle of policy and regulatory modernization, so that agenda continues and goes forward.
For the rule-making process, currently we have launched a policy analysis exercise to take stock, do a gap analysis and assess if this type of regulatory-making power is something that is required going forward. Thank you.
The Chair: Great. Thank you, Mr. Scott. Ms. Russell, thank you.
This takes us to Protecting Canada’s Immigration System Act. Mr. Rogers, you are going to tell us about this one? The floor is yours.
Sean Rogers, Executive Director, Legislative, Regulatory and International Affairs, Transport Canada: Thank you, Mr. Chair and senators. Protecting Canada’s Immigration System Act in 2012 amended the Marine Transportation Security Act to increase penalties for individuals who fail to provide information that was required to be reported before a vessel enters Canadian waters or fail to comply with ministerial directions and for persons who provide false and misleading information. It also created a new offence with respect to vessels that fail to comply with ministerial directions and authorizes the making of regulations respecting the disclosure of certain information for the purposes of protecting the safety or security of Canada and Canadians.
These amendments — which also included changes to the Immigration and Refugee Protection Act, the Department of Citizenship and Immigration Act and the Balanced Refugee Reform Act — were intended to deal with irregular migration.
Following the passage of the amendments, there was realization that there was a need for program and operational adjustments within Transport Canada’s Marine Safety and Security Program, and during that same period of time, the Ports Modernization Review was also launched, and that included a review of the Marine Transportation Security Act with a view towards modernization, including the enforcement and penalties framework in the act.
These amendments to the Marine Transportation Security Act that were made as a result of Protecting Canada’s Immigration System Act are now part of Bill C-33, which is currently before the House of Commons Standing Committee on Transport, Infrastructure and Communities. Once those amendments to Bill C-33 are made, they will also include amendments to sections 70 to 77 of the Marine Transportation Security Act essentially to smooth out or finesse the application of those provisions. By that I mean it provides a more robust set of penalties regarding summary offences under the act. As well, Bill C-33 just brings the Marine Transportation Security Act into alignment with other Transport Canada acts when it comes to oversight and enforcement activity. When Bill C-33 is complete, that will make the necessary amendments to the Marine Transportation Security Act that will allow us to bring these amendments that we have been deferring to date into force.
The Chair: Okay. So you are just waiting — these will kick in once we see Bill C-33 —
Mr. Rogers: Yes.
The Chair: Okay. Got it. Thank you.
Mr. Ali, I’m hoping that you are the guy on a couple of these jobs and growth ones.
Muhammad Ali, Executive Director, Workplace and Labour Relations Policy Division, Employment and Social Development Canada: Both of them.
The Chair: That’s kind of exciting. Could you tell us about them?
Mr. Ali: Thank you. So sections 432 and 433 of the Jobs, Growth and Long-term Prosperity Act would amend the Canada Labour Code to require unions and employers to file a copy of their collective agreement with the Minister of Labour and Seniors as a condition for it to come into force. These amendments to the code have not been brought into force.
At the same time, you may want to know that currently under Part I of the Canada Labour Code, section 115 requires parties to file a copy of the collective agreement with the Minister of Labour once it is finalized.
Last year was the first year that sections 432 and 433 of the Jobs, Growth and Long-term Prosperity Act were eligible to be repealed by operation of the Statutes Repeal Act. The Minister of Labour and Seniors sought a deferral to allow the labour program more time to reanalyze amendments and their impact.
The Chair: That’s the first of the two.
Mr. Ali: These are both sections.
The Chair: Are these the provisions that you’re referring to, the 400 sections but also the 361 to 364?
Mr. Ali: Only 432 and 433.
The Chair: Okay.
Ms. Parker: We have someone here for the other provisions.
The Chair: There are a series of others, Mr. Ali. My hopes are being dashed. You have spoken to 432 and 433. There are a series of other provisions. Are they different? Are we going to hear that they’re different?
You can give us a quick snapshot of that, if you would. Mr. Wagdin, are you able to speak to the other provisions of our item 16, jobs and growth?
Kevin Wagdin, Director, Old Age Security Policy and Legislation, Seniors and Pensions Policy Secretariat, Employment and Social Development Canada: That’s correct, I am. Thank you very much.
I’m here to speak to sections 459, 460, 462 and 463 of the Jobs, Growth and Long-term Prosperity Act, which was the Budget Implementation Act, 2012.
Those provisions relate to a larger regime under the Old Age Security, or OAS, program that we call automatic enrolment. Essentially, what the budget implementation act of that year did was it introduced a suite of amendments into the Old Age Security Act that allowed the minister to waive the requirement for a benefit application for all Old Age Security benefits: the pension, the Guaranteed Income Supplement, or GIS, and the allowances.
We have been implementing automatic enrolment in a phased approach. In 2013, we introduced automatic enrolment to full pensioners who were already receiving Canada Pension Plan, or CPP, benefits. In other words, folks who we already had an existing payment relationship with. We expanded that in 2016. In 2017, we expanded to include automatic enrolment for the Guaranteed Income Supplement.
These provisions relate to the last two remaining benefits, which are the allowances and the allowance for the survivor, and those are benefits paid on a much smaller scale. Whereas we have about 7 million Old Age Security pensioners, at any given time, we only have about 70,000 allowance recipients.
The rationale for why this has been included as part of deferring the repeal of these provisions has been that in order to bring into force any of these phases, there are several different ships we have to bring into port. There are supporting regulations that have to be done. There are information-sharing provisions, typically with the Canada Revenue Agency so that we can obtain the information we would need. Most importantly, there is an IT system component. We are currently, as a department, in the process of moving all Old Age Security accounts from an older legacy system onto a new delivery system, and we’re expecting that in December of 2024. That’s why those measures have been included in the previous year’s recommendation for deferring the repeal of those provisions.
The Chair: Will you be able to let these go once that’s in place?
Mr. Wagdin: Our hope is we’ll be able to pursue the next best phase of automatic enrolment, essentially, whether that be the allowances or whether that’s potentially expanding to some of the other larger benefits so that we can maximize the impact of any of the next phases. We are currently doing all the requisite policy work and development work to make sure that we’re able to provide that service offering to as many people as possible.
[Translation]
Senator Boisvenu: It always worries me when the federal government talks about an IT system.
As you’ve been implementing the system, have you run into any Phoenix-like pitfalls?
[English]
Mr. Wagdin: I can’t speak to the system component itself; I’m not a technical expert. But the best briefing I’ve heard of this is that the current OAS system is old enough that it doesn’t know that the internet exists. There is a very dire need to be able to bring that platform onto a more modern IT platform without jeopardizing any of the payment of ongoing benefits to our over 7 million clients.
As I say, all indications are that we’re on track for December of 2024, which will be quite a coup for our department. We’re looking forward to that.
[Translation]
Senator Boisvenu: I agree.
[English]
Senator Dalphond: To follow up, I understand the problem was that those that were entitled by law to supplementary benefits were not able to apply for them because they didn’t know, it was too complex, whatever, so we decided to go to full automatization. Is it working well so far?
Mr. Wagdin: Yes. The legislation requires than an individual make an initial benefit application. That’s typically the way that it works for the Guaranteed Income Supplement. For the Old Age Security pension, it’s one application and then benefits for the rest of your lifetime.
What we’re able to do now is when we have sufficient information to be able to identify someone at age 64, we are able to put them onto our GIS lifetime list, and then any year that their income drops below the GIS threshold, we’re able to pick up them and put them into pay right away. Once that initial application is made, we’re able to pay them GIS benefits in any year that they’re eligible.
With the allowances, there are some slightly different eligibility criteria for those benefits. One of the things I should identify is those are only paid on a fixed term. It’s only for individuals who are 60 to 64. It’s almost like a transitional benefit into the OAS. For a full OAS pension, they need to have 40 years of residency in Canada. For an allowance, it’s only 10. So we want to make sure those information proxies have the level of accuracy that we would need to ensure that we’re paying the benefits properly, and we want to make sure that we’re able to obtain the best proxy for that eligibility information that we can before we’re able to do that.
What I will say is that none of these provisions affect eligibility for benefits. At any point, an individual is able to make an application for that benefit, and our department undertakes fairly robust takeup and communications activities to make sure folks are aware of all the benefits to which they’re entitled.
Senator Dalphond: Thank you.
[Translation]
Senator Dupuis: I’m going to continue along Senator Dalphond’s line of questioning.
Our experience shows that the older you get, the less digitally literate you are with communications. Does that mean that, in this case, the payments… You said that people would have to apply only once and then the benefits follow them.
You know, there are people who don’t receive social assistance because they never file an income tax return, and that’s a problem. You don’t capture those people.
How can you make sure you reach everyone? Do you work with community organizations or home economics associations to reach as many people as possible?
[English]
Mr. Wagdin: Thank you very much for the question. We have parts of our department that are solely dedicated towards client outreach, working with MPs’ offices, working with municipal organizations, seniors, stakeholders, et cetera, to try and raise awareness of these benefits.
Financial literacy and awareness of the benefits are certainly one thing. Oftentimes, we find that folks can self-censor. They might think that their income to too high to be able to receive one of these benefits.
One of the things that we try and do is provide as much education on our website as possible. We have just introduced something we call the Retirement Hub, which is nice central location for folks that’s providing as much information as possible about our benefits and other benefits as well. We want to make sure that we’re providing as much information without necessarily counselling someone on making a certain financial decision that may not be appropriate in their case.
But, yes, those takeup numbers that you’re referring to, they’re always front of mind in all of the work that we do. I’m very happy to say that with that automatic enrolment regime, almost half of all new pensioners since 2013 have been automatically enrolled. Over 1.7 million people that have been able to get their pension without the need for an application.
It’s a big step in the right direction for us, and we’re now working to refine it as much as possible and make sure that we can capture all of the folks that are humanly possible.
Senator Pate: Building on that, I’m curious. Many countries have gone to a process of digital registration from birth to help avoid a patchwork of systems. Is that something that’s being examined in addition to what you’re doing in terms of the new approach by December 2024?
Mr. Wagdin: The model that we’re pursuing right now essentially imposes no active action on the part of a client. If the person has been participating in the tax system, if the person has been active in the CPP or the Quebec Pension Plan, or QPP, program, we’re able to go out proactively, obtain information about that person and then go to them at age 64 and say, “We think you’ll be eligible in 11 months’ time.”
Senator Pate: I just got a notice like that because I just turned 64 last month, so I’m aware of that but it doesn’t look like it’s coordinated through Revenue Canada.
Mr. Wagdin: It’s not. It’s coordinated through Service Canada, unless an individual opts out of automatic enrolment, and there are reasons why somebody might. They may want a higher actuarially adjusted pension. But unless somebody tells us otherwise, we will put them into pay as of 65, and they won’t have to have taken any kind of a proactive step.
That was a model put in place in 2012. It’s always possible to improve on these models as you go forward, but it has been successful so far, and that’s sort of the model that we’ve been working towards at this point.
The Chair: Thank you, Mr. Wagdin.
If I could just make this observation. This is sort of a continuing education session for senators to some extent sometimes beyond the question of these deferrals. It’s terrifically valuable for us. I think we’re all appreciative. It’s making some difficulty in getting through the agenda. I’m wondering if I might just suspend the continuing dialogue on these legislation and deferrals and have a conversation with the committee along these lines.
There are about five left for us to consider. We are approaching a very hard deadline for stoppage today. To be honest, I don’t think in this dialogue we’ll make it through these remaining five. We are also facing some very packed agendas for the next couple of meetings and we are working to a mandated deadline of reporting back to the Senate by December 5.
If you are in agreement and if Ms. Shen can coordinate this, I would suggest getting brief written descriptions of the remaining five that can be shared among committee members. We’re producing a report here as opposed to some massive exercise in clause-by-clause amendments and the like, but that would provide members of the committee with the information about the remaining five and enable us to maintain the expedited process of deciding this.
Can I invite committee members to signal whether that would be okay and whether Ms. Shen could coordinate that over the coming number of days? They don’t need to be long, but along the lines and patterns we have been receiving, which if I may so on behalf of the committee, have really been excellent. In fact, you can see that a lot of these pique our interest more than just the topic we are all officially intending to examine.
Senator Simons: To follow up on Senator Dupuis comment, if we could at the same time get the information about the Yukon Act.
The Chair: I think we might proceed in that direction for the remaining five. Let me thank you both for your presentations, and to the five of you who will be providing a bit of information, thank you in advance.
This makes it possible for us to move a little bit further along if we may in these last five minutes or so. Have I asked something you think you can manage, Ms. Shen? Thank you very much.
Thank you for both the presentations you provided and the responses that your very large team have been able to provide to us today, and also for the degree to which each of you came prepared to provide us some focused information and understanding.
We are mandated to produce a report back to the chamber by December 5. My inclination is to suggest we produce a brief report for the Senate, which includes a short summary of who was invited, what we heard, nice tight descriptions on these topics and ask the analysts to produce a short explanation about the Statutes Repeal Act as part of the reporting back.
I might also raise the question about whether we might include either a recommendation or an observation. My sense is that it would be helpful to have those brief descriptions in advance. It might enable us to engage, essentially asking the question that Senator Dalphond asked except prior to it coming to us so that we can jump right into the conversations.
Senator Dalphond: Could we invite officials to compare to the Australian model, which I haven’t seen, but if it’s working they must have developed a kind of format?
Senator Simons: [Technical difficulties] — to see too. This has been so interesting. I’m sure members of the general public would also like to know.
The Chair: Along those lines, if you are comfortable with those couple of observations that might be crafted and reviewed by the Subcommittee on Agenda and Procedure to provide approval of the final version of that for the purposes of the report, it will enable us to make a timely progress to our deadline.
Is it agreed that I then table the report on the report of the Statutes Repeal Act for the year 2023 with these observations to the Senate in both official languages by December 5 at the latest?
Hon. Senators: Agreed.
The Chair: Thank you. Are there any other questions you would like to raise with respect to this?
I anticipated this to be a somewhat painful process today, and perhaps many of you here thought the same. I think it’s been quite enlightening if I may say. It’s a compliment to the senators about our appetite to learn more about the kind of work you do and the supports and services you provide to Canadians, and I want to thank all of you who came prepared, whether you spoke with us or not, to have helped us in those deliberations. It’s been inspiring for me and I think for many of the other senators.
[Translation]
Senator Dupuis: I want to thank the witnesses for being here. If they didn’t already think so, surely today’s meeting convinced them that senators take their work seriously. It gave us the chance to see that you take your work seriously as well, so it goes both ways.
Thank you for being here.
[English]
The Chair: This is good, and I hope we will have the opportunity to do it again next year.
That brings this meeting to a close. I want to thank all of the participants and those who came prepared to participate. Shall I say, Senator Dalphond, your idea proved to be invaluable to our discussions today. Thank you.
(The committee adjourned.)