Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 32 - Evidence, April 25, 2002
OTTAWA, Thursday, April 25, 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 10:52 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum.
Today, is our second meeting on the consideration of Bill S-41, to re-enact legislative instruments enacted in only one official language. I welcome our witnesses from the Privy Council Office, Mr. Gerard McDonald, Ms Michèle Currie and Mr. Anthony Chapman.
[Translation]
Mr. Gerard McDonald, Director of Operations, Regulatory Affairs and Orders in Council, Secretariat of the Privy Council Office: Thank you, Madam Chair, for the opportunity to address the committee today. My understanding is that the committee would like some information on Canada's regulatory policy and process, the role of the Regulatory Affairs and Orders in Council Secretariat, and their application to Bill S-41.
[English]
At the outset, I should indicate that in our opinion, clauses 4, 5 and 6.1 serve to exempt the regulations made under the bills proposed framework from the requirements of the regulatory policy and process.
Nonetheless, I will gladly give you a brief description of the regulatory policy before turning to an overview of the supporting regulatory process, which I will use to illustrate our secretariat's role in the implementation and monitoring of the policy.
Canada's original regulatory policy was adopted in 1986 as part of a government-wide initiative to enhance Canada's international competitiveness and to ensure balance between social and economic goals. The policy was a first among OECD nations and it embodies principles that have since been incorporated into the OECD's own guidelines on regulatory governance.
[Translation]
The policy underwent its most recent update in 1999. At that time, it was amended to make explicit the requirement that departments and agencies respect all relevant government policies and Cabinet directives.
In addition, the text was revised to reflect the creation of the Regulatory Affairs and Orders in Council Secretariat, which assumed responsibility for supporting the Special Committee of Council in implementing and monitoring the policy.
[English]
The policy's objective is to ensure that use of the government's regulatory powers results in the greatest net benefit to Canadian society. To this end, it provides the primary policy and analytical framework for making regulations and sets out guiding principles and specific requirements for the use of authorities delegated by Parliament.
These requirements include that regulatory authorities demonstrate the existence of a problem or risk and that federal intervention be justified; that all possible means — regulatory or otherwise — of addressing the problem or risk be considered; that stakeholders, including industry, labour, consumers, other governments and interested individuals, be consulted on all phases of the identification of problems and the development of the regulatory solution; that intergovernmental agreements be respected and that opportunities for intergovernmental coordination be exploited; that benefits and costs of the regulatory intervention under consideration be assessed, that the benefits justify the costs, and that limited government resources be used where they will do the most good; that adverse impacts on the economy be minimized; that systems be in place to manage regulatory resources effectively; that compliance and, where appropriate, enforcement policies be implemented; and that regulators have the resources for monitoring compliance and enforcing the regulations.
[Translation]
A number of organizations are involved in implementing the policy. In fact, the policy itself sets out responsibilities for departments and agencies, the Treasury Board Secretariat, the Department of Justice, the Privy Council Office and individual Canadians.
While the policy provides the principles and requirements that the government has laid out for itself, it is the regulatory process that grounds these ideals in the day-to-day workings of regulatory officials.
The process is founded on the principles of consultation, transparency, and communication, all of which are reflected in the regulatory policy.
[English]
The process begins with stakeholder consultation. Initial consultations seek to identify and understand the risks or problems to be addressed to determine if federal intervention is warranted and to determine the best means of intervening.
If, following discussions with stakeholders, it is determined that regulation is the best way to proceed, a proposal would be developed collaboratively with the stakeholders. It is important to recognize that consultation should be a continuous process. In fact, many departments make extensive use of sector-specific publications, advisory groups, Web sites and discussion papers to keep their stakeholders informed and up-to-date.
The analytical process underlying the development of the proposal should also be open and transparent to ensure that the information being used is accurate and up-to-date. Once the optimal solution is developed and consulted upon, the regulations are drafted and approved by the Department of Justice for consistency with the enabling statute and the rest of Canada's legal framework.
Once approved by the Department of Justice, the regulations, along with a regulatory impact analysis statement, RIAS, are submitted to the sponsoring minister for approval. The RIAS describes the proposal and why it is being undertaken, and it summarizes the consultation and analytical process that underlie it. RIAS also provides a departmental contact name to whom interested parties may direct their views.
In the case of the typical Governor in Council regulations, the RIAS and the draft regulation would be forwarded to our secretariat. We would review the submission for its consistency with the regulatory policy and other applicable government policies, and we would address any concerns with the department.
[Translation]
The submission would then be placed on the agenda of the Special Committee of Council for pre-publication approval. If approved by the committee, the RIAS and regulation would be published in part I of the Canada Gazette, which would begin a public comment period. During this period, any interested party can make their views known to the sponsoring minister and department.
If comments are received, the department has an obligation to respond to them by amending the proposal or by explaining why an amendment is not warranted.
The comments received as well as the departmental responses must be summarized in an updated RIAS that would again be signed by the sponsoring minister and be submitted for final approval of the regulations.
Our secretariat would review the results of pre-publication and again work with the department to ensure that all relevant information is presented to ministers.
[English]
If approval is granted by the SCC, the regulations would be registered pursuant to the Statutory Instruments Act, subsequent to its receiving the Governor General's signature and be published in Part II of the Canada Gazette. The regulation would have legal effect upon the registration or on the date specified in the regulation and would be permanently referred to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations.
In total, the typical regulation is made available for public scrutiny at least twice. The public is provided with an opportunity to comment on the proposal — the consultation component; the ability to scrutinize the basis on which ministers are making decisions for its accuracy and relevance — the transparency component; and early notice of upcoming regulatory changes — the communications component.
[Translation]
Of course there are exceptions that do not follow every step of this process. These include technical amendments that have little to no effect on those being regulated, amendments that reduce regulatory burden, or items that respond to emergency situations. However, the majority of proposals to the Governor in Council follow the established process and satisfy the requirements of the policy.
As you may have surmised from my discussion of this process, the provision of support to the Special Committee of Council is central to our Secretariat's role.
[English]
The Regulatory Affairs Division provides SCC ministers with substantive briefings and advice with respect to the regulatory submissions to the Governor in Council, and monitors and coordinates implementation and monitoring of the regulatory policy.
The Order in Council Division manages the process for submitting items for Governor in Council approval, manages the SCC agenda and ensures that all orders in council receive appropriate and timely approvals prior to being registered pursuant to the Statutory Instruments Act. The public is also provided with access to approved orders in council.
I would like to conclude by thanking the committee on behalf of my colleagues for the opportunity to appear today. We hope our presentation has been helpful in enhancing your understanding of the regulatory policy and process and we are happy to answer any questions that you may have.
The Chairman: Thank you, Mr. McDonald.
Senator Beaudoin: Yesterday, we listened very carefully to Minister Cauchon, Mr. Tremblay and Mr. Warren. We have two options on Bill S-41. We could pass the bill as it stands — which is interesting because it is well done. To a great extent, the bill follows what has been done in the Quebec legislature and in Ottawa in 1985 when the Supreme Court, in its case reference, said that the laws adopted in English only are ultra vires — invalid. However, they are deemed to be valid for the time that is necessary to re-enact and publish them.
This is a very clear-cut decision of the Supreme Court for the laws. We are not concerned with the laws now; rather we are concerned with the delegated legislation, by-laws and regulations.
We have three or four retroactive articles that are well drafted. However, we must look at the heart of the matter. If a law is enacted in English only, the law is truly invalid. The deeming clause was only for three and five years. This was done and it succeeded well. However, it was the ruling of a court, which is part of the Constitution of Canada. The Constitution is composed of the constitutional laws, decisions of the Supreme Court — courts generally — and the conventions of the Constitution. We are not concerned here with those conventions.
Could we transpose that in the field of legislation? Bill S-41 reaches to the limit of the legislative power. We cannot do more than that. The only way to conclude that this is appropriate is to say that legislation of Parliament, with retroactive clauses, is good enough to remedy what has been done. That impresses me, I must say.
The other option is to say that the regulations are valid until they are declared invalid because they are unilingual. That is difficult because it is vague and we do not know the numbers. What is the period of time? We do not know that either. However, we do know that they were adopted illegally — unconstitutionally even — which is why we have to look at this matter.
If we adopt the second theory, it will never end, in a sense. It will end one day when we know exactly how many regulations are involved, but it would be on a case-by-case basis. I conclude from that, and I wish to have your opinion, that this is much better than doing nothing — the ``wait and see'' option. However, it may be that one day, if there is a challenge in court, the court may derive a conclusion different than the one enshrined here. I do not know what the possibilities are, but they exist. I would like to know what you think about that.
Mr. McDonald: Senator, our view is that the proposed legislation before you is the best possible solution to address the problem that has been presented to the government. We do not think it would be possible to go back and try to find every regulation that has been made in only one language so that we can rectify the situation en masse.
Senator Beaudoin: Do you not think it is possible?
Mr. McDonald: We do not think it would be feasible to do that because the cost would be prohibitive.
Therefore, we feel that dealing with the situation on a case-by-case basis, as we become aware of problems, is the most efficient way to do it.
Senator Beaudoin: I am having difficulty following you. Are you saying that the case-by-case basis may be adopted? What do you mean exactly?
Mr. McDonald: When it is brought to the attention of a department that a particular regulation may have been passed in only one language, this legislation gives them the opportunity to rectify that situation.
Senator Beaudoin: Each time?
Mr. McDonald: Yes, each time, as it comes to their attention.
I should note that we have not been faced with this particular problem in recent years.
Senator Beaudoin: I heard the name of the Alcan case where there was a challenge in court for a regulation enacted in only one official language. I do not know what happened to it.
Mr. McDonald: I am not aware of that particular case, senator. I'm sorry.
Senator Beaudoin: If we go on a case-by-case basis, it is relatively easy. However, you want to have an omnibus solution.
In other words, what the Supreme Court stated in the Manitoba reference of 1985 was clear-cut, very brilliant, and no one objected to it because the alternative at that time was simple. It was chaos. They applied the rule of law and the de facto doctrine. They deemed everything to be validly enacted for the time necessary to re-enact in both languages. It is perfect. It could not be better.
We are not concerned with the statute here. We are concerned with regulations. Regulations, however, have to be authorized by a statute. This omnibus statute is enabling all the regulations to be under a statute, and this is done retroactively. That is the purpose of the bill.
However, we are not the Supreme Court. We are the legislative body. The legislative power is a big power, and we go to the end of our powers, with which I agree. This is what you prefer yourself, is it not?
Mr. McDonald: We prefer the method that is in the bill, yes. We feel that is the preferred way to do it.
Senator Beaudoin: However, we are concerned that it may be challenged one day.
Mr. McDonald: I cannot offer a legal opinion on that, senator. It would be up to the Department of Justice to provide us with their best advice in that regard.
Senator Beaudoin: I will vote in favour of the bill as it is. We have two theories, unless there is a better one. This is the one for which I will vote.
You are definitely in accord with the method of solving this problem. It does not mean that we could not do otherwise.
Mr. McDonald: Of course not.
Senator Beaudoin: It does not mean that we cannot proceed on a case-by-case basis. I am still open. If I have an expert on my side, I will select the second theory, but if there is none I will select this one.
The Chairman: I would point out to the members of the committee that our witnesses today are not lawyers. We should not be asking them for definitive legal positions on some of these questions.
Senator Fraser: You believe that this bill does not apply to you. I assume that is because it is re-enacting old legislations that were done before your division existed?
Mr. McDonald: I should clarify. I did not mean to imply that the bill does not apply to us. We will still be implicated in whatever regulations would be remade as a result of this bill. They would have to come through our office. We would do our due diligence and scrutiny as required and ensure that they were published correctly.
I indicated that we did not feel that the regulatory policy for which we are responsible would apply to regulations made under this bill. The regulatory policy carries with it a requirement to consult on the regulation, to pre-publish it, to ensure benefits, and these sorts of things. We do not feel it would apply to regulations being remade under this bill.
Senator Fraser: Your involvement would basically boil down to ensuring that the translations were appropriate?
Mr. McDonald: No. Ensuring that the translations are appropriate would be the responsibility of the Department of Justice and their legislative drafters. They would need to ensure that the English and French match up.
It would be our responsibility to ensure that whatever is being proposed will not contravene any existing government policy before it is officially made and published.
Senator Fraser: I found your description of the policy extremely interesting. It seems to involve everybody in the country except Parliament.
Senator Cools: That is not unusual.
Senator Fraser: At what point does Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations become involved?
Mr. McDonald: First, senator, all regulations are, as you know, made subject to enabling legislation. In approving the legislation, Parliament does deliberate on the powers that they will be give to the executive.
Second, whenever a regulation is being proposed, there are usually advance consultations by departments, which may include parliamentarians. As well, it is officially pre-published in the Canada Gazette where anyone, including parliamentarians, may comment.
Senator Fraser: At what point does it go to the joint committee?
Mr. McDonald: Any regulation is permanently referred to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations. The joint committee has the power to review any regulation that is made by the government.
Senator Fraser: After?
Mr. McDonald: After it is made, that is correct.
Senator Fraser: Thus, everybody in the country is consulted ahead of time except parliamentarians. That is a slightly facetious question.
Mr. McDonald: I would make one other point, senator. A number of pieces of legislation actually require that regulations either be tabled in the House or be referred to appropriate standing committees before they are published.
Senator Fraser: In your list of requirements, which is an interesting and admirable list, the one thing that struck me was the line at the bottom of page 2 in the English version of your text. One of the requirements was ``that adverse impacts on the economy be minimized.'' Of course, regulations can have adverse impacts on non-economic aspect of society as well. Why would only the economy be singled out for mention here?
Mr. McDonald: That was a decision of the government when it wrote the policy. I should note that although the economy is mentioned, it does not preclude other aspects of society being analysed when a regulation is considered.
I also mentioned that the policy requires that the benefits to society outweigh the costs of the regulation. We consider that the benefits include not only economic benefits but also any social benefits that may accrue as a result of a regulation being passed.
Senator Fraser: Similarly with costs or are costs simply a question of dollars?
Mr. McDonald: No, it is not; it is both economic and social considerations.
[Translation]
Senator Joyal: Since when has this policy you explained in your presentation been in effect?
[English]
Mr. McDonald: The present policy has been in place since 1999, but previous versions of the policy have existed since 1986.
[Translation]
Senator Joyal: Before 1986 was there any organization within Privy Council responsible for coordinating the regulatory process?
[English]
Mr. McDonald: No. Privy Council was responsible for the coordination of the process with respect to the approval of the regulations. I believe that prior to 1986, there was some responsibility for Treasury Board to review the regulations, but there was no explicit government policy.
[Translation]
Senator Joyal: Therefore, there was no government authority responsible for ensuring the publication of a regulation before it took effect?
[English]
Mr. McDonald: I am not sure whether there was a requirement for all regulations to be published prior to 1986. The Statutory Instruments Act, of which there were various versions dating back to the 1940s, did require publication of regulations once they were made. The prepublication may not have been required.
[Translation]
Senator Joyal: The problem I see in terms of publication is due to the fact that, as the minister mentioned yesterday in his presentation, the bill deals with two types of regulations: regulations that were enacted in one language only or that were published in one language only. It deals with this problem but it also validates regulations that were never published at all.
It seems that unless there are exceptions — such as those raised yesterday by Madam Chair — unless the enabling legislation says that the regulations will not be published, in which case they cannot give rise to an offence, the principle we have always followed in our common law, — I use the word ``common'' here to mean ``applicable to all, in all systems'' — is that no one can be charged for an offence to an unpublished regulation.
I am trying to understand how, under the system that existed before the policy you outlined this morning was implemented, this bill will validate regulations that have not been published.
I can understand if we correct a technical defect when they were enacted or published in both languages, or even one language only. But if they were never published, this is a very serious substantive defect. These regulations do not exist for those to whom they apply.
I am trying to reconcile the principles of our law with a bill that would provide amnesty to these regulations — a sort of general amnesty, or general validation of regulations that were never published. If they were never published, how could people know about them. How could those to whom they apply know about them?
We are doing here something very important in the field of law. I am trying to understand how it was possible, before your policy, which I understand quite well, for a regulation to be passed and signed by the governor in council or by the relevant minister without being published, a fundamental defect that we are now trying to purge. I am trying to understand who, within Privy Council — or the Department of Justice or Treasury Board, as you mentioned — was responsible to ensure that all regulations setting out an offence would be published.
[English]
Mr. McDonald: I should clarify my previous statement. The requirement for publication does not come from the policy, which came about in 1986. The requirement for publication comes from the Statutory Instruments Act. I understand the first versions of which appeared as early as the 1940s. I do not have the exact dates, although we could get that information from the Department of Justice.
Those regulations were published. I believe that, even before such time, most regulations were published in the Canada Gazette as well. However, we would have to research that. As far as I know, that requirement for publication was carried out by the Privy Council Office through the Orders in Council organization.
[Translation]
Senator Joyal: This is what I understand also. The government organization responsible for the Canada Gazette has always been part of the Privy Council Office. I stand to be corrected, but since the beginnings of the legislative process in Canada, of Canada as it exists today — I am not talking here about governments before Confederation — publication of regulations and legislation has always been a responsibility of Privy Council.
So I am trying to understand how, under the process we are trying to put into place with this bill, a regulation that was supposed to be published in the Canada Gazette and was not could still be part of the regulatory corpus of Canada without being in effect since it was not published. As you say, publication is required by the act that establishes regulatory authority.
[English]
The Chairman: Senator Joyal, I hesitate to interrupt but I have before me the Statutory Instruments Act. Section 11. (2) states:
No regulation is invalid by reason only that it was not published in the Canada Gazette, but no person shall be convicted of an offence consisting of a contravention of any regulation that at the time of the alleged contravention was not published in the Canada Gazette ...
There are other ways of letting regulations be known. I am looking at some of the exemptions that were under the Canada Wheat Board legislation. This is the pertinent part.
Senator Beaudoin: Could you read the first sentence again, please?
The Chairman: ``No regulation is invalid by reason only that it was not published in the Canada Gazette, but no person shall be convicted of an offence...''
Senator Beaudoin: If we stop there, I have a question on that very point. They clearly say that no regulation is invalid by reason only that it was not published in the Canada Gazette. Are we amending the Constitution? Do not forget that it is delegated legislation. It has to be published somewhere. We are the legislative power. We do not comply with the Constitution in saying that.
The Chairman: There are other ways of publishing regulations.
Senator Beaudoin: We will come back to that.
The Chairman: Some are under the Wheat Board, some are under the Canada Labour Code, some are under the Aeronautics Act, some are under the Special Import Measures Act and some are under the Canadian International Trade Tribunal Act.
[Translation]
Senator Joyal: But they do not create offences. This is the fundamental difference between what we are trying to do and what existed previously. The provision you quoted includes the remedy, but it does not say who was responsible for publication. The provision says that if somebody failed to publish, no one can be convicted. This is the principle of publicity of legislation which we know very well and which takes precedence over the duty to comply. Publication is a requirement. I am trying to understand who was responsible previously for managing publication. Publication is very important. If a regulation was not published, in practical terms no one can be charged with contravening a regulation that is not public.
So what I want to know is who was responsible for publication, if indeed the Canada Gazette remains a responsibility of Privy Council?
[English]
Mr. McDonald: Ultimately it would be the Clerk of the Privy Council who has the responsibility to ensure that regulations were published.
Senator Beaudoin: He has no choice. He has to publish everything.
[Translation]
Senator Joyal: The regulation has to be published because by definition, regulations set out offences. Therefore, by definition, there is a requirement to publish the regulation — and we are not talking about one language or another — we talk about publication, period.
[English]
Mr. McDonald: I am not disagreeing. As far as we know — as I have indicated, we have not done the research — but all regulations were published. There are specific exceptions in the Statutory Instruments Act.
Senator Beaudoin: Who decides that one bylaw will be published but another will not?
Mr. McDonald: The Statutory Instruments Act defines what is published and what is not published.
Senator Beaudoin: This does not respect section 133 of the Constitution.
Senator Fraser: Could we get a definition of ``publication,'' please? For these purposes, does publication have to mean in the Canada Gazette, or are there other forms of publication that meet the requirements of the Constitution and the principles of natural justice?
Mr. McDonald: According to the Statutory Instruments Act, as it now exists, ``publication'' is publication in The Canada Gazette.
Senator Fraser: However, there is a long list of organizations, including the Wheat Board. There is no point in making a regulation with regard to the Wheat Board if no one knows about it. How do people who are affected by the regulation find out about it?
The Chairman: How are the things that are exempt from publication made known?
Mr. McDonald: They would be advised by the minister responsible for that regulation. For example, for the minister responsible for the Wheat Board would be charged with ensuring that the people at the Wheat Board are aware of what changes have been made. Likewise, if they do something with respect to aviation security, the Minister of Transport would have to advise those responsible in that area of what changes or implementations are necessary.
Senator Fraser: Aviation safety is a very interesting example. Did I understand that if you are creating an infraction it must be published in the Canada Gazette? With regard to safety, presumably if you do not obey the regulations you are committing an infraction.
Ms Michèle Currie, Coordinator, Special Committee of Council, Privy Council Office: I am not a lawyer and I do not know the section in the Statutory Instruments Act, but I know that before a regulation is published in the Canada Gazette we can present the Order in Council to an individual upon arresting them, and this is valid. When people are arrested on vessels for instance, they are provided with a copy of the Order in Council as proof that the law has been passed.
The Chairman: Even though the regulations have not been published.
Ms Currie: Yes, they can be arrested if they are presented with an Order in Council.
[Translation]
Senator Nolin: Can you confirm that the Income Tax Regulations were enacted only in English? This research was done by the Joint Committee and the Income Tax Regulations were enacted only in the English language.
[English]
Mr. McDonald: I am afraid I cannot confirm that, senator.
[Translation]
Senator Nolin: At the time of the codification in 1949, the clerk of the Privy Council was given the authority to consolidate, to collect, to research and to compel the various ministers and departments to provide English and French versions of all statutory instruments, past and future. Is that true?
[English]
Mr. McDonald: Yes, that is my understanding.
[Translation]
Senator Nolin: So how can you tell me that you do not know if the Income Tax Regulations were enacted. You cannot confirm they were enacted only in the English language, contrary to what was required, that is enactment in both official languages.
[English]
Mr. McDonald: I am sorry, senator, I do not have that information in front of me.
[Translation]
Senator Nolin: Would it be possible for you to find out?
[English]
Mr. McDonald: We can certainly look into it, yes.
[Translation]
Senator Nolin: My last question will be on section 133 of the Constitution. In view of the Blaikie 2 decision of 1981, how can you come here and explain or try to convince us that an act of Parliament can exempt a legislation or a statutory instrument from publication? How can we do that? As Senator Beaudoin argued, the Statutory Instruments Act also ranks as an amendment to the Constitution. The Constitution is crystal clear, as Senator Beaudoin mentioned. Since Blaikie 2, we know that this includes regulations. Acts of parliament must be printed and published in both languages, under section 133. This goes over and above the Statutory Instruments Act. It is a fundamental principle. I would even go so far as to say that it is one of the reasons Quebec entered into Confederation.
How could an act of Parliament allow you not to publish?
[English]
Mr. McDonald: I am not a lawyer and I would defer to Department of Justice lawyers to explain how the Statutory Instruments Act was drafted and the constitutionality of that act.
Senator Beaudoin: Madam Chair, I think we will have to ask the experts from the Department of Justice to come back. There is one here this morning. The Blaikie case is clear. Section 133 of the Constitution, along with sections 91 and 92, were requested by Cartier and Macdonald.
It is obvious that if it is a statute, the reference case of Manitoba settled everything. It is a clear-cut decision. However, the more I think about this, the Blaikie case put the delegated legislation in the same group as legislation of the same nature. The Blaikie case is a decision of the Supreme Court. We know that all decisions in constitutional law made by the Supreme Court form part of the Constitution itself.
The first point is the text. The second point is the decision. The third point is convention. That is very clear in our jurisprudence.
If Blaikie has to be followed — and we have to follow it because it is part of the Constitution — it means that delegated legislation must follow exactly the same destiny as section 133 of the Constitution Act.
I cannot understand how we can say that an income tax law or a law that is not too interesting for the public will not be published. Where is our power to do that? I cannot see it.
We have now opened a point that we missed yesterday. I admit that I missed it yesterday. For me, delegated legislation, because of the Blaikie case, is in the same category as legislation.
The Chairman: Before Senator Joyal speaks, I have a suggestion for the committee. We have an official from Justice here who is prepared to come to the table. We may get some clarification from him on this specific issue. However, we will have to have the officials from Justice back before we move to clause-by-clause consideration of the bill.
If the committee agrees, perhaps the Justice official, Mr. Marc Tremblay, can shed some light into these dark and increasingly murky corners.
Senator Andreychuk: Madam Chair, I could not be here yesterday because I was forced to be in the chamber on another bill. I am pleased that you will have the officials back. I do not know whether the officials from the Department of Justice covered the fact that so much substantive law is being moved into regulations. If they are coming back, I wanted to forewarn them on the record of this point. We have noted from time to time both individually and collectively that it is becoming more and more important what goes into regulations in delegated legislation. Not only should they address the question of delegated legislation and its consequence, they should also address the fact that there has been a trend for efficiency to move more and more substantive matters into regulation. I point in particular to Bill C-11, the immigration bill.
I hope they will be to address those issues.
The Chairman: You are served notice, sir.
Senator Joyal, do you have anything more to ask of the Privy Council officials?
Senator Joyal: I want to make a quick comment on Senator Beaudoin's point about having missed something yesterday. I do not think we missed anything. The purpose of the exercise is to have the witnesses help us and to have the exchanges that we have had to ensure that we understand very well all the implications — constitutional and legal — of a bill that appears as technical as this one on the surface of it. I feel at ease and secure that we are doing the right thing when we are questioning our witnesses who are helping us to understand what the bill contains and its implications.
The Chairman: Certainly, matters have been raised today with which I was having some problems yesterday because, quite frankly, I was having problems with the translation. I was switching from channel to channel. Once you lose the thread of an important thought, it is gone.
Mr. Tremblay, can you help us?
Mr. Marc Tremblay, Senior Counsel, Official Languages Law Group, Department of Justice: Madam Chair, before I shed some light on it, perhaps I could ask the indulgence of the committee to have the essence of the question repeated. I was having a background discussion when the question was asked, and I may not have captured the precise nature of the questions.
[Translation]
Senator Nolin: My question is this. Under what power could the Parliament of Canada ignore the second paragraph of section 133, especially since the Blaikie 2 decision of 1981? More precisely, how could the Parliament of Canada allow an instrument, a delegated legislative instrument, not to be published?
Mr. Tremblay: I understand the question. Let me emphasize first of all that the precise issue of the requirement to publish, despite the wording of section 133, has never, to my knowledge, been considered by any court.
As we know, section 133 is a provision dealing with the language of publication and not publication or printing per se. Other acts of Parliament have, from time to time, dealt with publication or printing requirements — I obviously did not come here with all this information.
[English]
The Chairman: Before you go too much further, Mr. Tremblay, I wish to point out that the exact words of section 133 are: ``The acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.''
Mr. Tremblay: Thank you, Madam Chair. I appreciate that, as I indicated, that precisely the words read ``printed and published,'' but I would argue, and it is the position of the Government of Canada, that that must be read with the following words ``in both official languages'' or ``in English and French'' at the time in section 133.
To go back one step, the essence of section 133 was not to ensure that some documents were published; it was to ensure that when documents were published or printed they would be published and printed in both official languages.
From that, we can go on to the basic assumption that we have followed.
[Translation]
The laws of Canada have obviously always been passed, always been printed and always been published in both official languages. Is it conceivable that at some point in time we might stop publishing legislation? This is not a matter of linguistic rights, it puts into play other rights, other considerations.
It is our view that section 133 is a provision of a linguistic nature that aims at ensuring equal status for English and French when Parliament passes a law, when Parliament enacts a regulation and government enacts an order in council. I would also draw to your attention that this position of the government is also set out in section 7 of the Official Languages Act. I do not have it before me but if my recollection is correct, it says that, if published, these instruments shall be printed and published in both official languages.
Somebody just handed me a copy of the Act. The English is always easier to read due to the nature of legislative drafting.
[English]
If printed and published, shall be printed and published in both official languages.
[Translation]
This is the provision in the Official Languages Act that applies to legislative instruments we are dealing with here and which, in my view, fully conforms to the requirements of the Blaikie decision.
It says, in English:
[English]
``Any instrument made in the execution of a legislative power conferred by or under an act of Parliament, et cetera, shall be made in both official languages.''
[Translation]
This, in our view, is the constitutional requirement that arises out of section 133.
[English]
``That it be made, and if printed and published, shall be printed and published...''
[Translation]
In French, ``sont établies dans les deux langues officielles, les actes pris dans l'exercice d'un pouvoir législatif'' et leur impression et leur publication éventuelle se font dans les deux langues officielles...''
For a very long time some regulations have been exempted from the publication requirement. Today, these situations are set out in the Statutory Instruments Act — we discussed this briefly yesterday — when there are reasons not to publish, such as national security considerations, and in our view this is consistent with the constitutional standard as long as these instruments are enacted in both official languages. Whether they are published or not is another issue. Dealing with a person accused of contravening these regulations, a non linguistic question arises: did that person have knowledge of an applicable rule of law? This is why the Statutory Instruments Act says that ``no person shall be convicted of an offence the person did not know about''. We are using the same standard in clause 4(4) of the bill before you.
Senator Nolin: I would like to get this as clear as possible. We accept section 133, there is no argument. Since 1981, the court widened the interpretation of the second paragraph of section 133, extending it to regulations. Do we agree so far?
Mr. Tremblay: Completely.
Senator Nolin: You say that the words ``printed'' and ``published'' in the second paragraph of section 133 only deal with linguistic rights and that the government's interpretation of this is manifested in section 7. In other words, you are going to enact them in both languages, make the regulations in both languages, create them in both languages; both whether they will be published in both languages is another matter.
Mr. Tremblay: Publication in both languages, per se, is not a matter of linguistic rights. In this regard, the Official Languages Act and, in our view, the Constitution also, draw their spirit from other considerations. Constitutional law, the right to be informed of laws provides the sub-text to which linguistic rights apply. The Official Languages Act is not incompatible with other federal pieces of legislation that provide for exemptions from publication.
That being said, as my colleagues from Privy Council pointed out, the vast majority of instruments are indeed published. It is only very specific categories that have been established by Parliament under the Statutory Instruments Act, I should note, that are exempted from the publication requirement.
I would like to return to the question of contraventions, because people have been saying there cannot be an offence if the regulation has not been published. I would say that there can be no offence when there is no knowledge of the contravention: there is a distinction to be made between knowledge of the offence and publication of a regulation. I do not purport to have as much expertise regarding the whole regulatory process as my colleagues of the Privy Council Office or the Department of Justice, but I can still say this. Whenever a regulation is exempt from publication and when this instrument establishes an offence, steps must be taken to make people expected to comply aware of its existence.
There are all sorts of specialized industries, such as the nuclear industry, for example. I am not saying these industries are exempt from publication, but let us just take the nuclear industry as an illustration. It would not be very useful in its case to publish very technical, complex and scientific regulations. What needs to be done is to ensure that people who manage nuclear power plants are informed of the regulatory requirements that apply to them.
So there are several industries and sectors where other means are used, apart from publication. Offences can be created. There are several other types of instruments that are not published and do not create an offence, as I emphasized yesterday. But when an offence is created, in the absence of publication other means must be used to bring these regulations to the attention of those people expected to comply.
[English]
The Chairman: Before we go any further, I am reading from section 133 of the Constitution Act, ``The Acts of Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.''
When we come to the legislative and other instruments part of the Official Languages Act, it says, under section 7. (2):
(2) All instruments made in the exercise of a prerogative or other executive power that are of a public and general nature shall be made in both official languages and, if printed and published, shall be printed and published in both official languages.
In other words, the definition of instruments that are of a public and general nature is in the act.
Mr. Tremblay: I wish to point out that, for greater clarity, you should read ``if printed and published'' as applicable to all three of paragraphs, (a), (b), (c) of 7. (1) and a cross-reading of both the English and French makes that more clear.
The main point is that we have used statutory language in section 6 that corresponds to what the court has said. Section 133 said, explicitly, as we have noted: ``... printed and published in both official languages.'' We have now added ``enacted,'' which is the word that the Supreme Court added in Blaikie No. 1 and Blaikie No. 2.
Again, our position is that the very heart of section 133 is that both official languages are on an equal footing; if they are enacted, they are enacted simultaneously in both official languages. If they are printed or published — which they have always been — they are printed or published in both official languages.
The requirement that statutes be printed and published, in our view, is a requirement that arises independently of section 133 of the Constitution, just as the requirements that regulations be published exist because the Statutory Instruments Act makes it so, and where the Statutory Instruments Act does not make it so, the Official Languages Act does not add a publication requirement.
Senator Fraser: Thank you for your help, Mr. Tremblay. Just so I fully understand, what does ``publication'' mean? I find it inconceivable that a democratic system would have a regulation that was not published within the ordinary meaning of the word, that is to say, communicated to all those who might be affected by it.
If publication means putting it in the Canada Gazette so that every single citizen has access to it, that is one thing. However, if publication means — as I would have taken it to mean — communication to those affected, then I cannot understand how any regulation would be unpublished. Where are we here?
Mr. Tremblay: We are talking about publication for the purposes of the Statutory Instruments Act and, hence, for the purposes of section 7 of the Official Languages Act. Where the act states that regulations are ``printed and published,'' it means publication in the Canada Gazette. Therefore, we do have two categories of texts.
I would begin by saying the bill corrects the language problem. We do not believe as a government that we have another problem, but there are two issues. There is the language issue, and there is what I would qualify as more generally a knowledge-of-the-law issue, under which knowledge of the law can be then subdivided into publication in the Gazette or ``other means'' of bringing to the attention of the public. Both formal publication in the Gazette and ``other means'' to bring regulations to the attention of their specific public can be used to try to give a general illustration of why this might be.
We have dealt today with regulations in a more formal sense and orders in council by the Governor in Council, but what are generally referred to as internal regulations that are made, for example, for the conduct of defence matters. They may or may not be actually covered by section 133 because, for example, they may not be of general application. We are not talking about whether or not section 133 applies to those. We are talking about whom their public would be. It would be a disservice to Canada in many ways if such internal regulations of how our army conducts its matters were put out in the Gazette, but officers are required to adhere to these norms, and they may be court-martialled if they do not adhere to them. They have been informed. They have received the copies.
Senator Fraser: In both languages?
Mr. Tremblay: Yes, in terms of how National Defence communicates to its officers. If they have legislative character — and now we are back into the language sphere — those norms have to be enacted in both official languages and would be made available to personnel in both official languages, yes.
Senator Fraser: You have several times — both yesterday and today — referred to regulations that do not create offences. Could you give me an example of what you mean? It would seem to me that any regulation that sets down a rule — thou shalt do something — would ultimately mean that if you do not do it, you have committed some sort of offence. Can you explain to me the distinction we are talking about here?
Mr. Tremblay: Not being an expert in regulations, I would have to search them out.
Senator Fraser: Do you have a hypothetical example?
Mr. Tremblay: There are standards and norms for thickness and presentation of documents for which there is no penalty for non-compliance, especially when the norms apply internally to government, the assumption being that once a rule is set, the state conforms with its own rules and has internal mechanisms for ensuring compliance.
The Chairman: This is helping to clarify my thoughts on the same matter. I have just been told that clause 2, the definitions part of this bill, defines ``government publication,'' ``legislative instrument,'' ``instruments published in both languages'' and ``enacted,'' but it does not define ``publish,'' when that word is used alone, or ``publication.'' Since ``publish'' is used alone, the court must interpret it differently from government publication and must use the ordinary meaning. That is what you have been suggesting, Senator Fraser. Am I right?
Senator Fraser: Then we are back with the concept.
Mr. Tremblay: No. The definition here is meant to capture the fact that, as discussed yesterday, in the 1940s, during war years, there were other official publications made. Because we are dealing with regulations that existed prior to the publication requirements in the Statutory Instruments Act, we are dealing with two different concepts here of publication. The Statutory Instruments Act definition of publication is the one currently in force, but it was not always so.
If we go back to 1867, there was no Statutory Instruments Act, but there have always been official publications under different statutes. To understand fully the more fulsome answer, we have to go back to the 1869 Official Printers Act, and then there is a 1950s version of that act and a 1970s version of that act, until finally, it is made redundant by the adoption of the Statutory Instruments Act in the early 1970s. We do have different concepts of publication, but they all refer to the Official Printer of the Queen.
Senator Cools: Yes, I would say they are expressions of publication, but however you cut it, at the end of the day, they are all official government or Queen's Printer type publications. They are not intended to be publications of some private individual.
Mr. Tremblay: That is correct. The documents, to which we refer in clause 3 of the act, are only documents that were printed in the Canada Gazette. Then there is a principle of statutory interpretation to explain how a court would interpret the words that follow, ``or any other official publication.'' The court would take its cue from the first word, Canada Gazette, and then ``other official publication'' would have to be things very much like the Canada Gazette. I do not have the list with me, but there are things that are called ``Orders and Regulations of War,'' 1944, 1945, et cetera, and they are available on the shelves of the library. Senators may visit the Library of Parliament and see that the volumes do appear in those war-time years with the official names and they bear a number of different names over the years, but they were official publications of government.
Senator Beaudoin: I will start with section 52, Part VII of the Constitution Act, 1982. No one has talked about it, but it is there and it reads:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
``Any law'' would, obviously, include the Official Languages Act.
Section 133 is in the Constitution of Canada. In that field, it is the supreme law of Canada. The second paragraph in section 133 clearly states that, ``the acts of the Parliament of Canada and the Legislature of Quebec shall be printed and published in both those Languages.'' They are not talking at all about the Official Languages Act, which came many, many years later.
In the laws of Canada, Quebec and Manitoba — there is a reference to Manitoba — it is very clear that the laws of Quebec and the laws of Canada are under the obligation to be ``printed and published.'' This is very clear. The acts of the Parliament of Canada and Quebec must be printed and published in French and in English. If you want to modify that, you must modify the Constitution. You cannot modify that by changing the Official Languages Act.
You do not submit section 133 of the Constitution to the Official Languages Act. It is the reverse. The Official Languages Act is only an act. It is perhaps quasi-constitutional, but it is only an act. Every act is submitted to the Constitution of Canada. You cannot change that.
You cannot explain what the Constitution means in an ordinary statute. From where are you taking that authority? It is like the Civil Code existed in 1866; it is stated that the Civil Code is in French and in English. No one ever raised a problem with that.
The Chairman: We are not talking acts; we are talking regulations and instruments.
Senator Beaudoin: That is point number two. We have a decision of the Supreme Court that says that delegated legislation should be in both official languages. It is a judgment of the court and, therefore, it is part of the Constitution.
I cannot accept that we could change the Constitution by a simple statute. The only thing that may happen is that the Supreme Court in interpreting the Constitution is really constitutionalizing the law.
The Official Languages Act has nothing to do with that. The act shall be in French and English because the Constitution says so. You cannot modify that by a simple statute. There is no exception. If the court says that delegated legislation is of the same nature as legislation, we follow the Constitution.
Mr. Tremblay: I appreciate that there may be a legal debate around these issues.
[Translation]
Mr. Tremblay: What I can tell this committee today is that the legal opinion of the Department of Justice in this regard differs from yours.
Senator Beaudoin: So what do they say, in short?
Mr. Tremblay: Let me clarify. I understand what you say when you state that section 133 is part of the Constitution. Section 18 of the Charter is also part of the Constitution and section 52 ensures the primacy of the Constitution. It was never my intention to suggest that section 7 of the Official Languages Act changes the Constitution whatsoever. I simply wanted to illustrate the fact that the government has for a very long time been of the opinion that section 133 should be interpreted as not requiring publication but as requiring the equal treatment of English and French, whatever that treatment might be. For example, under section 20 of the Charter, if a service is provided in English, it must also be provided in French. As to whether a service should be provided or not, neither the Official Languages Act nor the Charter impose anything.
Senator Beaudoin: The Constitution says so.
Mr. Tremblay: In our opinion, section 18 and section 133 simply state that when an enactment takes place, it must be done in both official languages; when a legislation is published, it must be published in both official languages; when a legislation is printed, it must be printed in both official languages. I understand that there is room for debate. However, it is my duty to tell you that the Official Languages Act says what it says, that this is deemed valid and that you have before you a bill that is based on each of these elements, the Official Languages Act as it exists.
Senator Beaudoin: Which means that section 133, in your opinion —
[English]
``... shall be printed and published in those Languages.'' When it is decided somewhere else that it should be printed and published?
[Translation]
Mr. Tremblay: Absolutely.
Senator Beaudoin: But it says the opposite. It says that the act shall be printed and published. You say that it shall be published and printed in English and in French only when another act says that this shall happen. You are changing completely the Constitution.
Mr. Tremblay: There is no requirement for another act to say so. I am not able to explain all of the subtleties and legal opinions of the Department of Justice. I already stated that the position of the Department of Justice regarding the interpretation of section 133 is to the effect that section 133 deals with the text, the actions such as they exist. The power of Parliament to make laws does not come from section 133 either. The power of Parliament to make laws comes from somewhere else. Therefore, when section 133 says that Parliament makes laws, it does not only say that Parliament makes laws but that Parliament shall make them in both official languages. In the same way the section says that Parliament publishes its laws in both official languages and prints them in both official languages. I remind you that the bill before you is not dependant on the resolution of this issue, which is much wider and very complex.
Senator Beaudoin: With all due respect for lawyers, when it says here, in 1867, that the acts of Ottawa and Quebec shall be published in both official languages, no one at that time thought there would come a day when a Department would decide this would happen only where there are linguistic rights and where there are acts to be published. They simply said this is a bilingual country in the legislative sphere. That is all they said. I wonder how something can be added to the second paragraph without violating the Constitution. Only a constitutional amendment could achieve t[Translation]his.
[English]
The Chairman: I sincerely hope that when the officials from the Justice Department come back before us they will be able to answer this question and to clarify the matter for us.
[Translation]
Senator Joyal: On the same subject, Madam Chair. I appreciate the efforts of Mr. Tremblay to try to define the various levels of requirement to enact and to publish. It seems to me that when something is enacted and printed, there is a text. Regulatory activity always takes the form of a text. In order for this text to be valid, it must exist in both languages. I think we can easily agree on this part.
There is a provision in the Constitution that clearly states that this text shall be published in the Canada Gazette or by other means, such as a circular, and that it must be done in both official languages.
Paragraph 4(3)(b) says that no person shall be convicted of an offence unless:
(b) it is proven that reasonable steps were taken to bring the substance of the legislative instrument it replaces to the notice of that person before the contravention occurred.
The substance of the legislative or regulatory instrument must be in both languages. I understand your earlier example where you referred to the nuclear industry. Let us assume we make a regulation that is of interest only to a very limited group of people and that a determination is made that the text shall be published, but without specifying the means. There is no mention of the Canada Gazette. If the regulation says that it shall be published in the Canada Gazette, we know that it must be done. If the text simply says ``shall be published'', it is obvious that this means that the text shall be printed and distributed — this is what my colleague Senator Fraser tried to get at earlier.
A person in Canada cannot be accused of contravening to a regulation if the text brought to the notice of that person or that is so deemed does not exist in both languages.
Mr. Tremblay: I think I agree with you, but to ensure I understand correctly, I will repeat in my own words what I heard you say.
Let me say first of all that a federal act, a legislative or regulatory instrument that is published in my view necessarily implies publication in the Canada Gazette. The Statutory Instruments Act is the only legislation that controls this so- called official publication. I believe that nowadays — this is a quite recent change — there is also publication on the Internet since we now operate in a new world.
I believe what you said is correct, that the instrument has to be enacted in both official languages to be constitutional. This is the objective of clauses 3 and 4 of the bill: ensure once and for all that this shall be the case of all instruments.
Let us assume, for the purpose of this discussion, that the technique is valid and effective, in other words that we can incorporate by reference, in a global fashion, and with retroactive effect. These instruments, despite any potential defect, would be legally considered as having been enacted in both official languages. Therefore they will be valid, in our view, under section 133 of the Constitution Act of 1867 as we interpreted it. They are valid and comply with the requirements of the Official Languages Act of 1988, as they are specifically laid out — in other words, they have been enacted. If they have not been published, once again, we rely on the language of the Official Languages Act. If they have been published and printed, they must be published and printed in both languages. If they are not published or printed, obviously, they cannot be published or printed in both official languages, but a text exists in both official languages. This is why, where the clause says:
...reasonable steps were taken to bring the substance of the legislative instrument it replaces to the notice of that person...
— we switch to a different concept. We are not dealing anymore with this concept of publication or printing. We refer to another legal concept, that of knowledge. This concept has its equivalent in criminal law, for example the mens rea and the actus reus — the knowledge of what one was doing. But knowledge is a legal concept that does not relate to linguistic rights.
I can tell you that if you do such and such a thing, you will be contravening a federal regulation; so you nod your head and understand that what you were about to do is an offence and that you have been so notified and that you are liable to prosecution. You do not have any published text, but you have knowledge. You would also have knowledge of the substance of the offence — at least it could be said you would have that knowledge — given your knowledge of English. Therefore, Senator, you would have knowledge if I explained the substance of the offence, but in the English language.
So these are aspects that are not related to linguistic rights. They are related to issues of natural justice that are found also in other areas such as criminal law, for example. These criteria are repeated in the Statutory Instruments Act.
[English]
The Chairman: Mr. Tremblay, for a short résumé of what Senator Joyal was saying — this is going on for a very long time — perhaps we could get something from you in writing.
[Translation]
Senator Rivest: I do not agree at all with my colleague. I believe that section 133 is indeed a linguistic provision that does not create any obligation for the Parliament of Canada or the legislature of Quebec to enact laws, to print and publish regulations. The best proof is that similar provisions were created for New Brunswick when this province received bilingual status. The same language as that of section 133 is found in the legislation dealing with the exercise of regulatory power. Before parliamentary proceedings in New Brunswick became bilingual, the legislator of New Brunswick had the power to enact, print and publish laws and regulations as it wished.
In this sense, in my view, section 133 is a simple provision. It is important, fundamental and constitutional, but it only guarantees linguistic equality between French and English. They could have added Chinese, for example, if we had another language. This would have been fully within the ambit of section 133 which is of a purely linguistic nature and which, in my opinion, is not the basis for the right of the Parliament of Canada and the legislature of Quebec to pass laws and regulations and to print them. I believe there is a different legal basis for this right. If I understood you correctly, this is also the interpretation of the Department of Justice. I believe this is the role and this is what we recently did in New Brunswick.
Despite all the appeal of Senator Beaudoin's argument, I believe this is merely a linguistic provision. And the Department will be able to provide additional information in this regard.
[English]
Senator Beaudoin: May I ask one more question? If Senator Rivest is right, it means that we may have laws in English only in Quebec.
The Chairman: Excuse me senators, you are allowed to disagree all you like on your own time. However, time is running on and I am sure we are trying the patience of our witnesses from the Privy Council Office.
Senator Cools: I am a little troubled. Essentially we are being told that the last paragraph of section 133 of the BNA Act should be read as though the words ``shall be printed and published'' mean ``shall be enacted and printed and published,'' which I do not see the Supreme Court of Canada had the authority to do. I understand these are about power relations more than anything else, and if they do something and government accepts it, then it is.
My understanding is that the BNA Act was never enacted in French. It was never enacted in two languages. I am beginning to wonder seriously about the limitations of this process before us. What would the impact of this doctrine that everything should be enacted in two languages be on the BNA Act in terms of what you are proposing to us, Mr. Tremblay, as a retroactive application?
Mr. Tremblay: The bill that is before the committee today would have absolutely no bearing on the text of the Constitution Act, 1867, because the bill deals only with legislative instruments as defined, and the Constitution Act, 1867, is of a different nature, of course.
Senator Cools: I knew that. I did not think you had to use the little time that we have to tell me that. I know very well what the act is about.
I am talking about your constitutional concept of the meaning of section 133 in the long run. What impact does that have, legally and politically, for all the previous enactments, for a century or two, that were only enacted in English? I know perfectly well what is in the bill before us. I am speaking about the impact of such a point of view on the entire system of governance. For those of us who sit here, we see how the law has been developing in the last many years.
Mr. Tremblay: I may be a little off-track, so do correct me and stop me if I am. The legislation of Canada has always been adopted, enacted, printed and published in both official languages. The big picture since 1867 is clear.
Senator Cools: I would describe much of that as policy initiatives. They are just pure good governance. However, you are going further than that. You are constitutionalizing, and you are saying that the Constitution means something else.
Mr. Tremblay: With respect, I think the spirit of this bill is not to constitutionalize but merely to follow the Constitution, to follow the requirements that the Supreme Court has stated to exist.
Senator Cools: The spirit of this bill is about retroactively enacting regulations, and that is a very serious matter, not one to be taken lightly.
What happens if some members start to amend some of these provisions? How can one do that sort of thing retroactively? It is dangerous, I think, honourable senators. We better look at this seriously. I have many concerns about enacting measures retroactively for 100 years. It makes me nervous. Why do we not re-enact or cause to be re- enacted the BNA Act, and while we are at it, a few other acts?
The Chairman: Thank you, Senator Cools.
Senator Cools: I flag it to the committee because these are serious questions.
The Chairman: These questions are out there, Mr. Tremblay, and I hope that when you come back to us, we will have good and clear answers.
The committee adjourned.