Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 32 - Evidence, April 24, 2002
OTTAWA, Wednesday, April 24, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-41, to re-enact legislative instruments enacted in only one official language, met this day at 4:36 p.m. to give consideration to the said bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Today, we will consider Bill S-41 for the first time.
Before I ask you to proceed, Mr. Minister, let me welcome you to this historic room in the East Block. We are delighted to have you and your departmental officials here today. Let me congratulate you on your appointment and foreshadow that you will appear before us quite regularly.
The Honourable Martin Cauchon, Minister of Justice and Attorney General of Canada: Thank you, Madam Chairman. The first time I met with John Ashcroft in the United States, he said: ``Mr. Cauchon, it is nice to meet you. Since I do not know everything, I have smart people from the justice department here with me.'' Today, I have done exactly the same thing. With me are officials from my department; they will answer any technical questions you may have.
[Translation]
I am here with Mr. Paul Salembier and Mr. Michel Aucoin, as well as other officials from the Justice department.
This is my first appearance before a parliamentary committee as Minister of Justice and Attorney General of Canada. Needless to say, I am happy to be here.
I am here today to discuss Bill S-41. I would like to thank Senator Joyal, the sponsor of the bill, a bill we have decided to table here, in the Senate.
Bill S-41, the Legislative Instruments Re-enactment Act, arises in the broader context of Parliament's duty to enact, print and publish its laws and other instruments of a legislative nature in both official languages of Canada. Its purpose is significant as the equality of status and use of English and French is a fundamental value of our country.
Before I present the purposes of this bill, allow me to clearly indicate to the committee that the Government considers itself justified in asserting that the vast majority of such instruments comply with the constitutional requirements. While by no means diminishing the importance of the fundamental values that underlie this bill, I wish to assure you that the Government's view is that the scope of the potential problem addressed by this bill is limited.
Thus, the essential purpose of this bill is to dispel any remaining uncertainty with respect to the constitutional validity of federal legislative instruments which may have eluded the bilingual requirements and whose status would not subsequently have been corrected.
Bill S-41 re-enacts, or provides for the reenactment of, certain instruments of a legislative nature that were originally enacted in only one official language. The bill proposes a distinct approach for each of two categories of legislative instruments. First, legislative instruments that were enacted in one official language only, but published in both official languages are, through this bill, automatically and retroactively re-enacted in both languages.
In addition, the bill confers regulation-making powers on the Governor in Council to retroactively re-enact, in both official languages, legislative instruments that were enacted in one official language and published in that language only or not published at all.
In order to fully understand the origins of Bill S-41, it is necessary that we first undertake a quick overview of the language rights of the Constitution Act of 1867.
[English]
Section 133 of the Constitution Act, 1867 explicitly requires that the acts of the Parliament of Canada and of the Legislature of Quebec be printed and published in English and French. The Parliament of Canada has always complied with this constitutional obligation with respect to its statutes.
However, from 1867 to 1969, the scope of the constitutional duty was not known. Prior to the enactment of the 1969 Official Languages Act, it may fairly be assumed that most federal regulations, Orders in Council and other such instruments of a legislative nature were made only in one official language; that is, only one version was signed by the Governor in Council. These instruments were then generally printed and published in the Canada Gazette in English and French. Of course, we now know through the judgment of the courts that such a practice does not meet the constitutional requirements applicable to such legislative instruments.
In 1979, the Supreme Court of Canada held that the requirement to print and publish the ``acts'' of the legislature in English and French necessarily presupposes their enactment in both official languages. In 1981, the Supreme Court of Canada elaborated upon its earlier decision by holding that legislative instruments that are made by or require the approval of the government, a minister or group of ministers are also subject to the requirements of section 133 of the Constitution Act, 1867.
[Translation]
As a result, the Constitution of Canada, as interpreted by the Supreme Court of Canada since 1979, requires that a broad range of legislative instruments such as regulations and orders-in-council of a legislative nature be made, printed and published in both official languages. The Constitution requires that the instruments be made, printed and published simultaneously in both official languages and that both versions of the instruments be equally authoritative.
We can therefore easily understand why there may have been a gap between the Government's practice and the constitutional language requirements. However, long before the court decisions of 1979 and 1981, the Government had taken measures that went beyond what was then thought to be required by the Constitution.
Beginning in 1969, the Official Languages Act has provided that rules, orders, regulations, by-laws and proclamations that are required to be published under an act of Parliament be, subject to some exceptions, made and published in both official languages. In 1988, the Official Languages Act was amended to reflect the requirements stated by the Supreme Court. As well, the Government's view is that the regulations that are part of the 1978 consolidation of regulations of Canada comply with the constitutional language requirements. Yet, in its third report tabled on October 30, 1966, the Standing Joint Committee for the Scrutiny of Regulations expressed concerns about the constitutional validity of some federal regulations because they were originally made only in one language.
In its response to the committee's report, the Government made clear that the 1978 Consolidation of Regulations of Canada corrected the technical difficulty associated with the five federal regulations identified by the committee. In addition, the Official Languages Act of 1969 and 1988 has greatly reduced the scope of the potential problem. Although the Government remains confident in the validity of its legislative instruments, the Standing Joint Committee for the Scrutiny of Regulations advanced contrary arguments.
My predecessor, the Honourable Anne McLellan, while maintaining the Government's position, indicated to the Standing Joint Committee for the Scrutiny of Regulations that she would ask her officials to study the issue in order to determine whether there were efficient and cost-effective ways to address this uncertainty.
Bill S-41 does in fact provide such effective and cost-efficient means to dispel any remaining uncertainty with respect to the constitutional validity of federal legislative instruments. Such a measure demonstrates the Government's respect of the rule of law and of the Constitution as well as its ongoing commitment to linguistic duality.
I believe this is a necessary bill and hope to have the support of this committee.
Senator Beaudoin: Mr. Minister, the Justice Minister's appearances before this committee always have a particular significance because of the minister's duties.
This is a very interesting piece of legislation. My only concern is to make sure that it is truly constitutional. Regulations are always presumed to be constitutionally valid. As long as the regulations are not challenged in court, they are presumed to be valid in their entirety. That is my first point.
Secondly, we do have the court's decision in Blaikie where it says that regulations must be made according to the same procedure as legislation, a procedure which is set out in the Constitution. You agree that section 3 is retroactive. Perhaps it could be clearer but I think it obviously is retroactive. Otherwise the bill makes no sense.
Mr. Cauchon: Sections 3 and 4 can only be retroactive.
Senator Beaudoin: I would like it if it were more clearly set out. Consolidation adds nothing legally or constitutionally. Consolidating statutes or regulations is simply an administrative process. It meets no constitutional or legal obligation. A consolidation only sets out what already exists.
If the validity of some regulations is challenged, the other party will have to prove that they go against the constitutional process. Would it suffice to say that we have an omnibus bill? The bill is retroactive. It is not an act, but regulations. However regulations are authoritative pieces of legislation, just as statutes are. I know of no better way to proceed. But I am not sure that this method is full proof. I am told that you do not even have a full list of all regulations which were enacted in one language only. This omnibus bill does not close the door.
On the other hand, if we look at the 1985 decision, the Supreme Court says clearly that these acts which were not passed in both languages are presumed valid throughout the period necessary to translate them. Could the same thing be said in an act? There are no precedents. We have no precedents. Unless it can be proven to me that there are better ways to go about it, I am willing to agree to this method, even if it is not full proof. If there is a challenge, the government will have to defend itself in court, where the regulations are presumed valid. It is easy to prove that there has been no regulatory act. This cannot be corrected, the facts cannot be suppressed.
I wonder what your experts can tell us on this issue. Even with this bill, some things will remain uncertain. If I could make a suggestion, I would recommend that the bill states clearly that sections 3 and 4 are retroactive. That can be said in a piece of legislation. It would greatly strengthen the process. That is my question. The method remains interesting to me. If it is the only solution, I see no objection. But I still have doubts.
[English]
Mr. Cauchon: Shall I answer right away, or should I wait until the end of the question period?
The Chairman: Normally, in this committee, questions are answered immediately. Senator Beaudoin may then have a follow-up question. Witnesses may speak directly to the senators; it is not necessary for them to go through the chair.
[Translation]
Mr. Cauchon: I would endorse to a certain extent what my former professor has been saying. Even the parts I do not agree with I find interesting, however.
Concerning the number of legislative regulations that would be affected by this bill, it is true that we do not know that number. This is precisely why we need a bill which will somehow preempt any future problem so that we do not have to keep coming back before Parliament to deal with that matter.
The legislative and legal wording used for interpretation purposes when referring to the retroactive aspect is basically the language found in sections 3 and 4.
Sections 3 and 4 refer to the concept of retroactivity. You will tell me that under the Interpretation Act, titles and annotations are not included in the interpretation of the act. I agree with that. This is how retroactive elements are mentioned usually, in the legislative drafting. If you want us to be more specific in the French version — the English text clearly refers to retroactive provisions — the department could certainly look into that if people insist that it do so. However, this has been the standard in legislative drafting at the department. This is what was used in the Quebec bill.
As for the means used, you hit the nail right on the head. We know of no other existing mechanism to cover such a situation. This method was used by the Quebec government when it found itself in a tight spot following the Supreme Court decision in Blaikie. The method that was used was confirmed by the Quebec Court of Appeal and that decision was not appealed to the Supreme Court. In the case which you referred to, the 1985 Manitoba case, the issue was barely mentioned. However, the Supreme Court has barely touched the problem, and never ruled on it. There is however something to be said about the fact that the matter was alluded to in the Manitoba case in 1985.
I agree with Senator Beaudoin. However, there is no better way to deal with the issue at this moment.
Senator Beaudoin: In the 1985 reference, it was relatively easy, although that decision is a masterpiece in itself. It is the most beautiful ruling I have ever read on the assessment of the constitutionality of legislation. Imagine saying that an act is invalid 90 years after it was passed! This is quite the constitutional monitoring feat!
They were dealing with a piece of legislation, but right now we are dealing with regulations. But under the Blaikie decision, the situation is the same for regulations as for the act itself. There is therefore a constitutional aspect.
It would probably make no sense to use a constitutional amendment to deal with the issue. Would it not be sufficient to have an authoritative, clearer, specific and retroactive bill to correct a situation that should never have arisen? I think it is an argument that could very well be put to a court. However, I would like to know if there are any other options. I do not know if the Department of Justice explored any other options. They should have. I mean, this has been going on for 20 years.
Mr. Cauchon: We are using this mechanism because there is no other way. This is the means that was used in Quebec, among other jurisdictions, and upheld by the Court of Appeal and also alluded to by the Supreme Court.
Senator Beaudoin: I remember the Quebec case, it was December 13, 1979 and I will never forget it. The Supreme Court had ruled that acts had to be enacted in both official languages.
Quebec at the time had for a year been passing bills in one language only, but they had a translation. If I remember correctly, they passed the legislation in the night that followed the Supreme Court decision. I have no problem with that, because the texts of those bills which had not been passed in English were ready, and those bills were passed again immediately by the Legislative Assembly, because the texts were available. This is rock-solid. However, we are faced with a different situation.
Mr. Cauchon: With section 3, you have the same situation.
Senator Beaudoin: Yes... Retroactively, though.
Mr. Tremblay: If you refer to the Quebec legislation in question, you will note that clearly, the bills which are mentioned are not attached as schedules. They use the technique of incorporation by reference. They are referred to but the text is not attached and the provisions are made retroactive, in other words those texts come into effect even though the original acts had been passed in French only. What we have therefore is a perfect reflection of the situation here in section 3.
Senator Beaudoin: Yes, but they were identified.
Mr. Tremblay: They were not identified in the Quebec bill and I could give you a copy of that bill right now.
Senator Beaudoin: What did it say?
Mr. Newman: I have it here: Take, for instance, section 2 of that bill. It says that:
The government may, through regulation or regulations, without amendment, pass by general reference any regulation when the French text and the English version of that regulation have been published in the Gazette officielle du Québec.
In the present case, we have the Canada Gazette and we are simply stating the rule of law which says that any existing text which has been published and proclaimed in French and in English in the Canada Gazette is thereby passed and re-enacted in both languages. We just fill the gap regarding the passing of the legislation.
Senator Beaudoin: What is the expression used? Did you say: ``is thereby re-enacted and reprinted''?
Mr. Newman: Are you talking about the Quebec legislation or ours?
Senator Beaudoin: The one you are talking about.
Mr. Newman: It says ``passed''. The same word is used in the definition.
Senator Beaudoin: The legal term is ``passed''.
Mr. Newman: Yes, but it is in the bill. It is, with respect, in the definition of the word:
``enacted'' includes issued, made and established.
Therefore, almost any term is encompassed.
Mr. Tremblay: The reason for those words is that whereas you enact legislation, you cannot ``enact'' a regulation or an Order in Council. It is the legal jargon...
Senator Beaudoin: It is the word ``édicter'' in French...
Mr. Tremblay: The word ``édicter'' is a word that we coined.
Senator Beaudoin: All right.
Mr. Tremblay: We invented the word ``édicter'' to deal with that situation because in the federal legislation the words ``issued'' and ``made'' were used occasionally, and in French, ``établi'' or ``pris''. We wanted to include the wording used in the enabling pieces of legislation to describe powers similar to the enactment of legislation.
Senator Beaudoin: The only new word is this word ``édicter''?
Mr. Tremblay: Exactly.
Senator Beaudoin: I am pleased with that word, that is quite clear.
Mr. Tremblay: Going back to the situation in Quebec, with the 1979 legislation we have a perfect mirror image. In fact, we borrowed a lot from that model legislative text. It is a perfect parallel because it refers on the one hand to texts which had been published or which are enacted automatically by general reference, without being reprinted, and retroactively. On the other hand, it provides for an enabling power for any other texts for which no published version could be referred to since there was none. In that case, the Quebec bill provides for the adoption of a future regulation, and what we are suggesting here is basically the same model.
The decision the minister referred to earlier concerned the Société Asbestos c. Société nationale de l'amiante case. The Superior Court of Quebec, whose decision was confirmed for other reasons in the Court of Appeal, said:
The court does not share the opinion of those who challenged the law enacted in Quebec in 1979. Those who opposed the law said that the Assemblée nationale had adopted a defective procedure. Each one of the acts involved would have had to go through, once again and individually, the whole process of the three readings required. The court does not share that opinion, whose only merit is that it places procedure above the public interest.
Indeed, the 1982 act has in itself legally fulfilled all the steps required by the regulation; all defective legislations were legally linked to the law, in the sense that they were incorporated by reference, and went through each and every step. It was necessary to fill the vacuum that the Supreme Court of Canada decision might create, and the public interest requires that legislation not be constantly called into question. After the ramifications of the Blaikie case, the law now has the stability required for social order.
Senator Beaudoin: That quotation is from the Court of Appeal?
Mr. Tremblay: It is from the Superior Court, confirmed for other reasons by the Court of Appeal.
Senator Beaudoin: It did not go all the way to the Supreme Court?
Mr. Tremblay: No, and there was no appeal.
Senator Beaudoin: There was no request for leave to appeal?
Mr. Tremblay: In fact, a request for leave to appeal was submitted to the Court of Appeal, which upheld the trial court decision for other reasons.
Senator Rivest: I must say that I have always liked section 133 of the Constitution, because it entrenched a special status for Quebec. Where obligations are concerned, a special status is easily granted; however, when it comes to rights, we have historically always had some difficulty obtaining a constitutional status that is in line with Quebec's reality within Canada.
That being said, here is my question. First of all, when did the department become aware of that legal vacuum? A fair bit of time has passed. Why was there such a long delay?
Mr. Newman: I have been at the department for almost 20 years. First, there was the Blaikie decision in 1979. In 1981, there was already a consolidation when the regulation was reorganized.
There was the committee report on the five regulations made in 1969, just before the Official Languages Act was passed. But these five regulations were already integrated into the consolidation and there was a lot of correspondence with the committee on that issue.
Let me give you an example. This situation goes back to 1992, ifmy memory serves me well. In Quebec City, they first referred to a proclamation that was published in the Canada Gazette in both French and English, but the Order in Council authorizing the proclamation — an Order in Council that was never published, but which they managed to find in the National Archives — had been passed in English only. That was in 1921. It dealt with a harbour in the Chicoutimi area.
So the validity of that proclamation had been challenged because the Order in Council was unilingual. That is the Alcan file. I do not want to go into all the details. At the time, they had attempted to establish a link between that issue and the decision made by the Supreme Court in the Sinclair case, a decision that you will undoubtedly recall. It was about the amalgamation of the towns of Rouyn and Noranda. There was a whole series of texts that were not necessarily legislative instruments. There were Orders in Council, but they were probably of an administrative nature. They were letters patent and notices. All these documents had been published in French only. The Court said that, when we look at the regime and the law in question, the net effect of all these instruments taken together, and not individually, was indeed a legislative effect.
The Supreme Court gave one year to the Quebec legislature to correct the situation. In all of the cases, the reference on linguistic rights in Manitoba, the Saint-Clair case, the Bournier-Collier-Albert case about the incorporation of unilingual documents in the back-to-work legislation, all these cases dealt with situations where, according to the Supreme Court, there was an attempt to contravene section 133. The court said that, for the sake of ensuring compliance with the principle of equality of access to both languages, it would not allow such a contravention, that it would be abusive and that the court would declare that these texts were of a legislative nature and would apply the letter of section 133. For the federal government, there was the Official Languages Act of 1969. Section 4 of that act provides that all texts, Orders in Council, proclamations that must be published in the Canada Gazette must be enacted in both official languages, and that goes back to 1969, well before the decision made by the Supreme Court. So the practice was already in place from 1969 on.
Were there loopholes? We do not know. We do not have any example, but it is possible. But the rule of law, from 1969, was that all published Orders in Council had to be enacted in both languages.
In 1982, the Charter of Rights reinforced what we already knew about section 133, which gave rise to a movement — Senator Beaudoin is well aware of that — for a new interpretation of the Official Languages Act and all of its aspects. That reform was undertaken. It took several years. It was under the Mulroney government. A new Official Languages Act was passed in 1988.
Section 7 of that legislation is in full compliance with the decisions made by the Supreme Court in the Blaikie case. It does not deal only with documents published in the Canada Gazette, but also all legislative instruments adopted by the Governor in Council and which must be approved by the government. We have good reasons to think that, since 1988, there should not have been any problems The only examples that were put forward by the committee go back to 1969, if I remember well, even before the first Official Languages Act. As well, many valid arguments had been put forward to the effect that the 1978 consolidation had improved the vast majority of regulations, because all regulations dating back to before 1978 had been re-enacted.
We knew that there was a potential problem in the Alcan case. We had lodged an appeal in that case, except that the legislative context was changed and the Order in Council in question was repealed in any case. We are fully aware that the Blaikie decision must be adhered to. We do not have any example where the government has not ensured compliance with the principle of equality of languages in this regard.
[English]
The Chairman: Before we continue with more questions, let me point out that the minister is only here for a short time. I have other questioners on the list, so perhaps the staff could keep their answers a little shorter.
[Translation]
Senator Rivest: Are there any cases where a lawyer has argued that there was a doubt, and would this bill settle all submissions made by some lawyers? Do you know whether there are any cases that are pending?
Mr. Cauchon: The only case that we know about is the Alcan case that has just been raised.
Senator Rivest: No lawyer has tried to raise that doubt. The minister said in his remarks: ``The Department of Justice was of the opinion that...'', and the legal advice given by the Department of Justice is very valuable, but it is not the final word. There have been several cases where legal advice given by the Department of Justice had not been upheld by the courts in the legal history of this country.
Mr. Cauchon: Do you have any examples? I know very few of them.
Senator Rivest: That's because you are new to the department. Could we not consider making a reference to the Supreme Court about how to proceed in this matter, instead of having a bill like this one?
Mr. Newman: Usually — and this is rather rare — a reference is made when there is a legal issue which the government considers important enough to set aside the appellate role played by the Supreme Court, and to say it, wants the court's opinion on certain issues.
Every week the Minister of Justice receives requests for a reference on some bill or some issue. A reference means that you request a legal opinion from the Supreme Court rather than from Crown officers. It is always a possibility, but we did not consider it for this bill. We believe that our legal opinion or our advice on this bill are sound and no reference is necessary at this time.
Mr. Cauchon: The issue is interesting and relevant, but I do not think it is really consistent with the idea of a reference as we know it or as we used it so far. The issue of official languages is extremely important for Canada. This bill is a safety measure. In our opinion, nothing indicates that some regulations were left aside. Nevertheless, we welcome and understand the joint committee's opinion, and we decided to proceed with this bill as a safety measure.
[English]
Senator Fraser: Clause 4(2) says that the re-enacted instrument is retroactive; that is fine. Clause 4(3) says that, even if it is retroactive, a person is not guilty of an offence committed under the re-enacted instrument if the offence was committed before it was published in both official languages or reasonable steps were taken to inform the individual about it.
Why was it done that way? I do not believe that was the practice in Manitoba or Quebec when they had to re-enact things. They just said, ``It is valid now; it has been valid all along. If you were guilty then, you are guilty now.''
Mr. Marc Tremblay, Senior Counsel, Official Languages Law Group, Department of Justice: We need to understand the scope of clause 4 of the bill. There are texts that were not published because they were exempted for various reasons. We are proposing to give retroactive effect to what is known as ``delegated legislation.'' There is a principle against the creation of retroactive offences. In fact, that principle is now enshrined in the Charter at paragraph (g) of section 11.
In order to protect this bill, to Charter-proof this bill, it is necessary in our view to exclude from future prosecution those offences to federal regulations that would have been so re-enacted from existence. In other words, only in those situations where the person had notice of the existence of the legislative instrument or where the offence took place after the re-enacted instrument was published do we feel that it would be legitimate for us to do so.
Senator Fraser: Would publication in one language have constituted reasonable steps to notify?
Mr. Tremblay: That would be an issue of law. It brings forward different considerations from language rights, in our view. If you consider the judgments of the Supreme Court that dealt with administration of justice in the past, the court drew a distinction between fundamental justice principles and language rights. Language rights means that you have a right to understand directly in your language when such a right is conferred on you. Fundamental justice principles only make it so that you understand in whatever language. It would have to be determined in a court of law; however, it is our position that such notice would likely be sufficient.
The Chairman: Honourable senators, the minister must leave in 10 minutes. Since his officials are willing to stay on, let us ask our questions of the minister, if we may, during the short time we have him here.
Senator Fraser: I have one more question, and I will leave it to the witnesses to decide whether it should be answered now or later. I understand what you just said. I guess we did not have the Charter when the Manitoba and Quebec cases were decided. Similarly, clause 4(5) states:
The re-enactment of a legislative instrument under subsection (1) is not subject to the same conditions, if any, that applied to the enactment of the legislative instrument it replaces.
I suspect this may be one for the officials to explain.
Mr. Tremblay: We have noted it and will come back to it after the minister has departed.
The Chairman: Since our time is so short, I will start with the committee members.
[Translation]
Senator Nolin: I would like to come back to this issue of an offence which technically does not exist because it has not been published in both official languages, as is still required under section 133, pursuant to which the complainant establishes that the accused was indeed aware that a version — English or French — existed, and that the offence had to exist by reason of the retroactivity provision in Bill S-41.
In my opinion subsection (g) in section 11 prevents the retroactivity of an offence provision, even if it was established by regulations and not by an act. Minister, I can wait until I can discuss this issue with your assistant.
I would like to come back to the retroactivity of regulations under section 4. As far as section 3 is concerned, I understand you apply it to acts and regulations that were published in both official languages but that did not follow the entire enactment process that would have conferred the same authority on both versions. I am talking about regulations that were published in one language only and this is where section 4 becomes an important tool for you.
Mr. Cauchon: Are you also talking about regulations that were not published?
Senator Nolin: Yes. This is the reason why we have been talking at some length about the 1969 consolidation. There was also a consolidation in 1949, and in the proclamation order it was clearly stated that the Clerk of the Privy Council had to keep a register of every bilingual act and statutory instrument taken by the ministers.
What happened between 1949 and 1978? You probably have versions in the other official language if the statutory instrument was passed in one language only. I think it is a matter of political will.
Mr. Cauchon: You would like to know whether we have a register with which a follow up of the regulations can be done?
Senator Nolin: Yes.
Mr. Cauchon: The department says we do not. Senator Beaudoin asked earlier whether you knew how many regulations could be affected by the bill before us today. We do not know that number.
Senator Nolin: You mentioned the precedent of Quebec. This precedent is relevant on the one hand, but not on the other, inasmuch as it explains a process. But the problem was limited in time; in other words, we knew when the problem had begun and when it ended.
We knew what legislation was enacted, from start to finish. It was almost secondary that the list of bills was not appended to the legislation. Today, we want to help you, but we don't know all the laws involved. Of course, we would not want the income tax regulations to be declared invalid tomorrow morning.
Please understand our problem. The tool you have developed is retroactive. We are questioning it because of its broad application. I am wondering whether it would be possible to restrict its application.
Mr. Cauchon: I understand your question. I think we can amend the bill so as to address those concerns and include a time limit.
Senator Nolin: I was going to suggest a limit because this cannot be a blank cheque which would automatically redress every mistake made in the past.
Mr. Cauchon: We could, for instance, refer to instruments enacted before section 7 of the Official Languages Act was passed on September 15, 1998. There are two possible amendments which we cannot table today, but which I will nevertheless explain to you. I think it would be a good idea to go back to the enactment of section 7 of the Official Languages Act.
Senator Nolin: Your archives contain registers, but the issue is whether the registers are complete.
Mr. Cauchon: That's a valid question.
Senator Joyal: I would like to draw your attention to another detail. As Senator Nolin mentioned, the Loi du Québec is extremely specific because section 1 of the act mentions the acts numbered 420 to 431, which were tabled with the Secretary of the National Assembly. It is easy to trace those bills.
Section 2, for its part, refers to regulations which were published in the Gazette officielle du Québec. So you can see the scope of the legislative baggage involved. As for the problem for which we are trying to find a solution, there nevertheless remains an important distinction compared with the Quebec legislation. You yourself, Mr. Minister, mentioned this in your speech on page 4.
I will read it in English.
[English]
In addition, the Bill confers regulation-making powers on the Governor in Council to retroactively re-enact, in both official languages, legislative instruments that were enacted in one official language and published in that language only or not published at all.
[Translation]
But that is very different. The notion of a bill's publication is introduced. The publication of a bill is an essential element of the principle whereby ignorance of the law is no excuse. No one can ignore the law because it is made public. If a piece of legislation is only published in one language, people can read it, but if it is not published at all, no one can know about it.
The Quebec legislation did not deal with this aspect at all. As I read it, the Quebec legislation clearly recognizes that we are dealing with legislation published in one language only.
Mr. Cauchon: But we are not dealing with legislation or laws in this case. Section 1 of the Quebec legislation deals with legislation, which is not our case. As for the parallel you draw with our legislation, what you are basically referring to also existed in Quebec, since it is provided for under section 3.
Senator Joyal: Yes, but they were not published in the official gazette. They were passed but not published. This is where it becomes tricky for a retroactive bill, which is supposed to be made available to citizens through publication — because publication is the main element — is not included in the legal aspect of the process. I am sure you clearly see the distinction. We have to find a legal solution to this problem. I am ready to support the proposal put forward by the department. We are trying to see how it fits in, legally and consistently, within Canada's legal system in light of rulings made by the courts.
Mr. Cauchon: This has more to do with how regulatory instruments are interpreted than with official languages.
Senator Joyal: The question here is whether this touches on the language issue. It concerns the publication aspect of things.
Senator Nolin: The question of whether the requirement exists or not?
Senator Joyal: Exactly.
Senator Beaudoin: Publication is covered in section 133, is that correct?
Senator Joyal: Correct. I am not trying to complicate the issue. We are merely seeking assurances that the no one will raise the issue. You mention this yourself in your comments.
Mr. Cauchon: We will verify that.
Senator Joyal: It is important that you do so before the next meeting.
[English]
The Chairman: Following this through — I want to make sure I understand it — are some instruments exempt from publication?
Mr. Tremblay: Yes.
[Translation]
The Statutory Instruments acts exempts certain instruments from publication requirements.
[English]
The Statutory Instruments Act exempts from publication requirements texts that have to do with national defence, security interests, intergovernmental affairs, et cetera. Again, it is not an issue of official languages. It is an issue of publicity of rights. The bill that is before the committee today would solve the issue in exactly the same way as the Quebec legislation did with respect to unpublished regulations in that regard.
With respect for Senator Joyal, he is in error when he states that the Quebec legislation did not deal with unpublished regulations. They did in exactly the same way we propose to deal with them.
[Translation]
Senator Prud'homme: Mr. Minister, I wish you the best of luck in the by-elections, as they will be your first as the Minister responsible for Quebec.
You note in your submission that section 133 of the Constitution Act requires federal legislation to be printed and published in both languages. You stated clearly that pursuant to the provisions of the Constitution Act, 1867, the acts of the Parliament of Canada and of the legislature of Quebec must be published in both English and French.
I am delighted that senators Fraser, Angus and Lynch-Staunton have more rights than do senators Gauthier, LaPierre and Poulin in Ontario. Section 133 is binding only on Quebec. My question may be somewhat unrelated, but can Quebec proceed to amend the Constitution directly, with the Government of Canada, as we have seen, or must it proceed by way of a general constitutional amendment? For the past 35 years, I have asking that all provinces be treated equally, but as everyone knows, Quebec is always treated differently and given special consideration, which no doubt pleases some of my colleagues.
Mr. Newman: If you are asking whether section 133 can be amended by way of an amendment under section 43 of the Constitution Act, the answer is yes. The general consensus among legal experts is that an amendment of this nature is possible, but to date, none has been enacted.
Senator Prud'homme: That will happen.
Senator Beaudoin: I am not at all certain that this will come to pass. The Blaikie ruling stated quite the opposite. The requirements set out in section 133 cannot be changed because they are entrenched in the Constitution.
Mr. Newman: You are absolutely right in so far as section 45 is concerned because this is not part of a province's own constitution. So said the court in Blaikie. I understood the question as being tied to section 43 and to a bilateral procedure requiring the approval of the Senate, the House of Commons and the Quebec National Assembly. Can section 133 be amended through section 43, as was the case when section 93 was amended in the case of Quebec? To my knowledge, no legal expert, except for one person who has since decided otherwise, has ever said that a legislature could not proceed bilaterally.
Senator Rivest: That happened in the case of New Brunswick.
Mr. Newman: Yes, in the matter of language rights for the province.
Senator Beaudoin: Quebec and Manitoba tried to do the same thing and the Supreme Court said they could not.
Senator Rivest: The consent of the Senate and House of Commons is required.
Senator Beaudoin: Yes, but this does not fall within the purview of section 43.
[English]
The Chairman: Thank you very much, Mr. Minister. You have stayed beyond your time. I would ask the officials to stay for a few minutes, please.
Senators may be interested in this. I am reading here from the Statutory Instruments Regulations. There is a most extraordinary list of things that are exempt from examination, publication. It certainly covers more than CSIS matters. The list includes notices served or sent by the Minister of Labour under subsection such and such of the Canada Labour Code; there is something about the Wheat Board; there is something about orders made by the Energy Supplies Allocation Board. The list goes on. We will get a copy of this list to members of the committee.
Are there further questions?
Senator Fraser: I was on talking about proposed section 4(5). First, I do not understand it; second, I do not understand why it is in the bill.
Mr. Tremblay: We must understand that we are dealing in the hypothetical. The texts may date back to the 1860s. It is likely that the regulatory authorities no longer exist.
Senator Fraser: That is proposed subsection (4).
Mr. Tremblay: Proposed subsection (4) has to do with the authorities; proposed subsection (5) has to do with the conditions that may have changed and can no longer be complied with.
Senator Fraser: Could you give a hypothetical example?
Mr. Tremblay: It would be impossible or impracticable to comply with the requirements. It would be impossible because the body no longer exists. In terms of being impracticable, let's take a possibility of a condition that consultations should take place. Why would we undertake consultations when these texts will have to, by virtue of the way this bill is drafted, undergo absolutely no change? Consultation would be futile.
If you have a text in one official language only that was not published, there is absolutely no scope for discretion, no scope for changing that original text. It must stay exactly the same. It may be necessary to have a translation produced of that text, and that translation might be subject to some debate before the committee. However, the original text will have to stay exactly the same.
Therefore, we say that it is impossible or impracticable to undergo the conditions that were originally applicable to a regulatory text. It may be impossible because the body may no longer exist or because the conditions would serve no ultimate purpose.
Senator Fraser: I am sorry to belabour this. Why would you not have actually said that here? As you know, I am not a lawyer; however, as I read this, the conditions could be all kinds of reasonable conditions, along with your impracticable and impossible family of conditions.
Mr. Tremblay: With respect, all conditions would give rise to the same considerations. These texts underwent the then applicable conditions to their enactment or adoption why back when. There is no issue of having them go through all the hoops again because that would serve no purpose.
The purposes served by the conditions set forth in the Statutory Instruments Act, for example, may have been different or nonexistent at the time. We are not proposing to have all these texts undergo new sets of requirements because some of these texts also no longer exist. We are reviving a legal situation that has existed in respect to them way back. We assume that for some purposes it will be useful that they continue to have effect, as they do. We also will have situations where a purportedly invalid regulation enacted, for example, in the 1920s and then repealed in the 1940s will also be revived and killed again.
We are giving validity. We are ensuring the validity of everything that was taken pursuant to those regulations. However, it would serve no particular purpose — in fact, it would create chaos in some situations — for us to take the 1920 regulation and make it go through the 2002 requirements or conditions in order to clear up a situation that is not relevant to that text.
Clause 4(5) is there for greater certainty, to ensure that we have provided for the powers in order that no one can come forward and say, ``There is some other technical problem that you have created.'' Quebec certainly has done something that resembles this in their act, but not quite with the same rigour and attention to detail that our drafters have shown. The idea is to ensure that there are no technical arguments that may arise to put a glitch into the for certainty measures we would otherwise be taking.
[Translation]
Senator Nolin: I would like to focus on clause 4(3)(b) respecting the creation of retroactive offences, that is where an instrument had been deemed to be invalid because it was not published in both official languages. A person may be charged retroactively if it can be proven that the substance of the legislative offence had been brought to the notice of the person who committed the offence.
Mr. Tremblay: Creating retroactive offences would call into question section 11(g) of the Charter. It should be noted that not all legislative instruments result in the creation of offences. A wide array of instruments are exempted. In these instances, the proposed corrective action aims to ensure that the time-honoured rule of law is upheld. Moreover, the Supreme Court held, in the reference on language rights, that the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order and that chaos and anarchy would ensue if legal rights, obligations and other effects arising from these legislative enactments were open to challenge.
Senator Beaudoin: Moreover, that is why Senator Beaudoin is so enamored of this reference.
Mr. Tremblay: Exactly. Clause 4 raises a host of issues that transcend your question. Specifically, you ask the following: could charging a person for a retroactive offence create problems? First of all, we have restricted the possibility of this occurring by proposing what we in fact have proposed in this bill. Therefore, a number of sine qua non conditions will exist whereby no person will be prosecuted. I draw your attention to the fact that these conditions are the same as those set out in the Statutory Instruments Act and listed in the Regulations Act since 1950, or at the very least in similar versions of this act. This is a long-standing rule of law, the validity of which has never been called into question in other instruments. We are merely applying the same restrictions that have been applied over the years in other legislative instruments.
If ever this was challenged in court, that is if ever charges were brought in a case where the conditions set out in subsections (a) and (b) had been met, and the matter of the constitutional validity of this charge was raised by the person being charged, and we were to argue that this provision is consistent with the Charter, and it was not, then this would be considered a reasonable limit under section 1.
Senator Nolin: Further to the minister's testimony, eventually we will hear about possible amendments to restrict clause 4.
The year 1969 was mentioned because it marks the anniversary of the birth of the Official Languages Act. I have a specific question for you. Do the 1949 and 1978 Consolidations represent an improvement over what was in place beforehand?
Mr. Tremblay: If our law clerks would care to add something further, by all means, I invite them to do so. To my knowledge, the Governor in Council ordered the 1949 and 1947 consolidations. Unlike the 1978 consolidation, they did not come about as a result of the enactment of the Statute Revision Act. Canada's statutory orders were consolidated in 1890. Starting in 1867, these orders, with some exceptions, were published in the Canada Gazette. A consolidation was done in 1890. Instruments of a legislative nature, as we know them today, were reproduced in both languages. To my knowledge, there was no legislative basis for this action. The consolidation was done for some other reason.
According to the foreword in the 1947 and 1949 consolidations, the decision to systematically publish statutory orders and instruments of a general nature is a relatively recent initiative, one that dates back to the early 1940s with the publication of orders respecting the war. Publication continued during the war years until the end of 1946. The 1947 consolidation of statutory orders and regulations provided for the publication of these instruments in the Canada Gazette. The same was true of the 1949 consolidation which also provided for publication. Therefore, for the purposes of the matter at hand, these various means are not a substitute for re-enactment.
Senator Nolin: If an instrument contained an error when consolidation occurred, that error is not affected?
Mr. Tremblay: No legislative authority could rectify the situation. In our opinion, this is not the case with the 1978 consolidation.
Senator Nolin: In 1993, someone from your department wrote to the Standing Joint Committee for the Scrutiny of Regulations — I could produce a copy of the letter — regarding the famous Public Lands Mineral Regulations. The letter said that during a meeting between Justice Department officials and members of the joint committee, never was there any hint that regulations deemed invalid prior to consolidation could suddenly become valid after consolidation had taken place.
Was this letter referring to the 1978 consolidation or to a previous consolidation?
Mr. Tremblay: I cannot speak for other drafters and what they had in mind. To my knowledge, this argument was made in response to certain questions from members of the Joint Committee about the 1978 consolidation. The Justice Department maintained that the 1978 consolidation rectified the situation, but not ab initio. A number of acts were adopted at the time, much as legislation would be adopted, and these were given effect, as were earlier regulations the validity of which had never been challenged by the courts. This brings us back to the notion to which Senator Beaudoin was alluding, namely that laws are presumed to be valid. Pursuant to section 13(2) of the 1978 legislation, regulations come into force and have effect as law as part of the Consolidated Regulations to all intents as if each such regulation has been made by the appropriate regulation-making authority — again, this is similar to what is said in the provision of concern to Senator Fraser — and all the requirements with respect to the making of that regulation had been complied with. Therefore, we stand by our position, but it must be said that this whole matter loses some relevance with the tabling of this particular bill.
Senator Nolin: You took the words right out of my mouth. Why is clause 4 being included at this time? We need to limit the scope of this provision. This would provide a partial response in terms of imposing a time limit on the application of clause 4.
Mr. Newman: Precisely. This committee does not want to be facing a similar impasse 10 years down the road. Much has already been written and said about this matter.
As my colleague and Senator Beaudoin pointed out, this problem has been presented to you — with the exception of the Alcan case — in a fairly hypothetical context, that is to the extent that the regulations in question pre-dated the 1969 Official Languages Act. Two of the regulations in question have been repealed and a new consolidation has been produced.
Often, the issue for a lawyer is to determine whether, in a particular case, the court would have ordered further action to be taken, other than what the Statute Revision Act had already accomplished. Since this act already included a series of provisions, would these have been given a narrow interpretation and found lacking? The regulations had already been published in both languages and had already been included in the consolidation in both languages. Therefore, the intent was never to do anything other than treat both languages equally. There was no attempt in this instance to violate the principle of the equality of status of the two languages.
As such, Justice Department has always maintained that the consolidation was adequate from a risk management standpoint, which is not to say that there are not other options. For this reason, the Minister, with the consent of the government, introduced draft legislation and is counting on the support of the committee to adopt the bill, the aim of which is to rectify a situation that pre-dates the Official Languages Act. It does not make provision for future actions. A time limit applies.
Senator Beaudoin: Obviously, I agree that section 43 which calls for bilateral action is the solution to the problem. As far as section 133 is concerned, I agree with you. If the federal and Quebec governments agreed, the Quebec government could be exempted from the requirements of this provision However, the federal government could not be exempted fully from the requirement to produce bilingual legislation because unanimity would be required. Are we agreed on that point?
Mr. Newman: Absolutely.
Senator Beaudoin: The second point I want to touch on is criminal law. We all agree that if an offence is committed before this legislation is enacted, no action will be taken, in accordance with the principle of international criminal law. I am not overly supportive of the principle of retroactivity in criminal law. Moreover, I am not comfortable with the idea of regulations creating a criminal offence. I believe this should be the domain of legislation. However, we occasionally see regulations taking on this role.
Senator Nolin: Just so everyone understands clearly, let me cite section 11(g) of the Canadian Charter of Rights and Freedoms:
Any person charged with an offence has the right
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law...
The scope of this provision is quite broad. We are not talking strictly about a criminal offence, but also about a legislative or regulatory offence.
Senator Fraser: That puts us in a difficult situation.
Mr. Tremblay: I would have to give the same answer I gave earlier. First of all, provision has been made for imposing limits. We are talking about charges that may be laid after this legislation is enacted, but charges in respect of an offence committed before the legislation was passed. This brings into play the whole notion of retroactivity, that is the creation of retroactive offences.
As I said earlier, we believe the limits are the same as the ones provided for in other enactments. Therefore, if the committee has a problem with these criteria, it will also have the same problem with the Statutory Instruments Act. We submit that this is a matter for another day. Moreover, we are prepared to defend the bill, just as we would be prepared to defend, if need be, the Statutory Instruments Act as setting reasonable limits.
Senator Beaudoin: That was not the question I had. If we adopt this bill in a month's time, next week or even tomorrow, offences that pre-date the act will not be targeted.
Mr. Tremblay: Yes, they will.
Senator Beaudoin: Retroactively?
Senator Nolin: According to section 4(3)(b).
Senator Beaudoin: That goes against every principle of international law.
Mr. Tremblay: That is how the law now stands, as you yourself pointed out, unless a court rules on the validity of certain regulations. Therefore, for the sake of argument, if we were to publish this bill, we would end up with legislation that purports to resolve the problem and that creates an offence in the process. Charges could be laid and a person could be convicted. As the Supreme Court held in the Manitoba reference, if the instrument on which charges are based is found to be defective from a constitutional standpoint, then these charges cannot stand.
This is the situation we now face. Existing instruments are deemed to be valid. No statement has been issued to the effect that they are invalid, but some uncertainty does prevail. In light of the Supreme Court's finding in the case of the two Manitoba references and in light of the excerpt of the court ruling cited earlier with respect to the rule of law — and the Supreme Court made it very clear that the rule of law exists to prevent chaos from erupting when a persons who had every reason to believe that he or she was subject to the rule of law nevertheless violates the law — I submit to you that to help a person shirk his or her responsibilities would run counter to the rule of law. The bill will prevent this from happening.
Obviously, the party seeking to lay charges will need to exercise some discretionary authority. This type of exercise is carried out daily by the Attorney General of Canada who must choose which battles to wage. If there is any doubt that the person against whom charges are to be laid had prior notification, then we will advise against laying charges. Clearly, we plan to advise our clients, namely the departments that adopt regulations, in a strategic way.
Senator Beaudoin: Why have you invoked section 1 of the Charter?
Mr. Tremblay: Ultimately, we believe that rights are not being violated. We believe it can be argued the legislation does not create unjustifiable retroactive offences. On the issue of justification, we need to turn to section 1, since section 11(g), unlike other parts of the Charter, makes no provision for internal limits.
[English]
The Chairman: As you can probably tell, we have had some technical problems with the translation. Hence, I missed some of your replies.
You may have touched on this when you were answering Senator Fraser's question. Are there many instances where an instrument was enacted in only one language and published in only one language, or is clause 4 of the bill primarily aimed at this great long list of instruments that were not published whatsoever?
Mr. Tremblay: I would have to answer that it is primarily aimed at the great long list, as you described it. However, we may find, when we go back to the library shelves, regulations that were taken in one official language only and were published during periods of great national turmoil, such as emergency situations. There are books on the shelves of publications that exist only in English, from during the war periods. If any of those instruments are still in effect — which they should not be because they were codified immediately after. One of the aims of the codification that followed the war periods was to say: ``Which instruments are still in effect? Let us translate and codify them.'' However, there may still be some; we cannot be certain that there are none.
Mr. Newman: I have a supplementary on that point. Every time we look at these instruments, we have to make a judgment call as to whether they really are regulations, that is, whether they are legislative in nature. For example, during the Second World War, there must have been 40,000 or 50,000 Orders in Council made, but the vast majority of them were administrative in nature. That is why we are saying: ``Are we going to devote resources to start looking historically at each one of those Orders in Council to determine whether it was legislative in nature or not?'' This is a technique that permits us to proceed in situations where we think there is a regulation of a legislative character that is worth re-enacting in both languages, for one of the reasons that my colleague has given. It is simply an enabling provision; it is not necessarily one we envisage having to employ very often. It is referred to as reasonable prudence on the part of a legal adviser.
The Chairman: I wish to thank the officials for attending here and for staying on after the minister had to leave.
The committee adjourned.