Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 34 - Evidence
OTTAWA, Wednesday, May 8, 2002
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:12 p.m. to give consideration to the motion, together with the Message from the House of Commons concerning Bill C-15A, to amend the Criminal Code and to amend other Acts; and to give consideration to Bill S-41, to re-enact legislative instruments enacted in only one official language.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have two items on our agenda today. We will begin with the motion in amendment to Bill C-15A. Our first witnesses are officials from the Department of Justice, Ms Lucie Angers and Ms Morency, who will explain to us quite clearly why one of the amendments proposed by the committee was not accepted in the House of Commons. Following that, we will move to our deliberations on Bill S-41.
Ms Angers, please proceed.
Ms Lucie Angers, Counsel, Criminal Law Policy Section, Department of Justice: Honourable senators, I am pleased to appear before you today to address concerns that were raised by Internet service providers in respect of their liability under Bill C-15A. If it pleases the committee, I should like to make a brief opening statement and then answer your questions.
As honourable senators are aware, the concerns over ISPs' liability were raised mainly by the industry, in particular by the Canadian Cable Television Association, CCTA, and the Canadian Association of Internet Providers, CAIP. The Canadian Cable Television Association was of the view that an ISP that merely provided the facilities that other people use to communicate or store content could be said to be transmitting or making available child pornography. Therefore, they would be affected by the proposed legislation in Bill C-15A. They believe that ISPs would be exposed to criminal liability for transmitting or making available content even in cases where the ISP did not know that the content was child pornography.
Bill C-15A does not apply to such cases. As the former Minister of Justice mentioned when she appeared before you last November, ISPs that have neither knowledge nor control over the child pornography that is transmitted via, or stored on, their servers will not be liable for transmitting or making available child pornography. The main reason is that it is considered a central tenet of criminal law that there is no guilty act without a guilty mind. In other words, a person cannot commit a crime unknowingly.
The inclusion of terms such as ``knowingly'' or ``unknowingly'' in Criminal Code offence provisions would bring into question the intent requirement for other Criminal Code offences, which generally do not have that qualification but are, nonetheless, interpreted as requiring a guilty mind. In fact, common law presumptions, such as the presumption of mens rea, requires Parliament to explicitly state when it does not desire subjective mens rea when enacting a criminal offence. Therefore, as Parliament did not explicitly exclude the mens rea presumption, it must be assumed that Parliament wanted the offence to be of a criminal nature.
According to the Supreme Court of Canada decision in Sault Sainte Marie, such an offence requires the Crown to establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness towards them.
Since 1993, it has been an offence to distribute child pornography. If we were to apply the ISPs' argument to the 1993 provisions, then Internet service providers could be, and probably would have been, charged for distributing child pornography in the last nine years, even though they would have done so unknowingly. This committee will recall that the ISP witnesses acknowledged to honourable senators that, indeed, no ISP in Canada has been prosecuted to date for the distribution of child pornography.
We want to make it clear that ISPs are not committing a child pornography offence when they do not have knowledge of the content of the material stored on, or going through, their systems. Under Bill C-15A, this would not change.
Senator Beaudoin: If I follow your reasoning, I fail to see how the amendment proposed by Senator Nolin should not be accepted. It is a criminal law offence. If we do what you suggest, we will have to do the same for other cases that may arise in the future. We are not concerned about that, we are concerned about the use of the word ``knowingly'' because that is an important word. One cannot be guilty of a criminal offence if he or she has no intention — mens rea — to commit a crime. I understand the difficulty this presents. However, when you say that we should not do this because we would then have to do it from this point on, that, in my opinion, is not a very clear-cut argument.
If, at one moment in the history of any legislation, we find we must do something, then we do it. That may change our idea of how we must draft legislation in the future. A drafting change may become an obligation to be fulfilled in all cases in the future. However, such is life.
We are more and more, I hope, as we say in French,
[Translation]
Time is a great teacher. The Criminal Code is based on intent. If that means greater conciseness is required in future, then so be it.
Ms Angers: Initially, you wondered what the problem was in adopting the amendment as proposed. We want to be in a position — and I know this is what you want as well — to press charges against an Internet services provider who only supplies the means of conveying the content, if in fact he knows what that content is. For example, some people believe that a pedophile could actually become an Internet service provider. If the proposed amendment is adopted, this means a pedophile who is an Internet provider helping people of like mind could potentially be absolved of any criminal liability. All he would need to do is set up the system which would allow people like himself to distribute or make available child pornography.
[English]
We say a custodian of computer systems who merely provides the means or facilities does not commit an offence, but we want to capture that ISP who merely provides the means or facilities, if he does so intentionally, if he knows that his facilities are being used for the purpose of transmitting child pornography.
Everyone agrees with the fact that the amendment put forward was certainly not intended to exempt ISPs who were committing an offence from criminal liability. However, the result could be that, in some cases, you might be exempting from criminal liability those who you would want to cover.
[Translation]
Regarding your second point, the inclusion of the concept of ``knowingly'' or ``willingly'' in Criminal Code offence provisions could create problems in terms of both existing as well as future Criminal Code offences. As I explained, common law presumption requires Parliament to explicitly state when it does want an offence to be of a criminal nature. I am not talking here about criminal offences. Here is where you include, for example: ``with a legitimate reason for so doing that can be proven.'' You insert wording to prevent this from being considered an offence of a criminal nature and more of a liability issue. Because of these two considerations the proposed amendment is problematic.
Senator Beaudoin: I have learned that in the field of criminal law, one can never be too concise.
[English]
Senator Andreychuk: If I am following your comments, you wish to be sure, and you do not wish to accept the amendment, because you will catch an Internet provider out there who might avail himself of the opportunity of simply providing the machinery. It would seem to me that the opposite would then apply. Those who had no intention would be trapped in the same way. That is our concern.
How do you propose to get out of that impasse? If an Internet provider simply provides the hardware, then he is no different from anyone else. If he is providing the service to his friends who are transmitting this material, you would then be dealing with conspiracy and aiding and abetting. The Crown would have to prove certain elements of the offence, not simply that he provided the apparatus,
That is precisely what I think the law would be like with a clarification. Without the clarification, the man — I said ``man'' and I was quite rightly chastised by Senator Taylor last time — or woman, the provider, who simply provides the hardware, never intending to commit an offence, could be caught. How would that person be treated differently?
In our debate in the Senate, some senators expressed the opinion that they wanted those who transmit this material to be convicted. I was trying to make the point that they may be just transmitting and they have no obligation to monitor who uses the equipment 100 per cent of the time. Of course, if they come across this activity, they would be guilty of an offence if they did nothing about it.
Ms Angers, you use the counterargument to get at the pornographers. I am trying to save the amendment. How do you protect those who have absolutely no intent to transmit child pornography at all? How do we protect the industry and get at the real perpetrators?
Ms Angers: Everyone agrees that we want to go after the persons who knowingly transmit or make available child pornography, that is clear. I agree that the problem is the way in which this is done.
You are right to say that the ISPs have no obligation, and certainly there is no wish by the government to have ISPs monitor the content on the Internet. First, that is not possible, and, second, it is not something that could be done without legislative amendments, obviously.
The problem is that, while they cannot have that obligation, in some cases they will know their facilities are being used for that purpose. For instance, as you might know, the government is considering the possibility of establishing a tip line that would help in denouncing sexual exploitation or child pornography to a body of some sort. Therefore, this body is intended to help in preventing child pornography from being transmitted.
While they would have an obligation to monitor content, when a complaint is made to them, they could, depending on how the line is established, report that back to the ISP, for instance. If they reported that to the ISP and the ISP did nothing, you would have a problem if this exception were included in the Criminal Code. The ISP would still merely only be providing the facility or the means to transmit the child pornography, but you would still want to go after them because they have the knowledge. They know that this is being transmitted. That is when the way in which we interpret criminal offences comes into play because, in the transmission or making available for distribution, it is implied that there is an element of mens rea. Not only do you have to commit the act — that is, the transmission — but you must also have the intention to transmit. In a case where the ISP is merely serving as a facility, they would not have the knowledge.
In the other case, however, where the ISP has been told by either the police or by the tip line or whomever that they are serving as a facility, that an offence is being committed, then you would want to catch them. However, the wording in the amendment as proposed would create problems because they would be merely providing the means or facilities.
Senator Andreychuk: You are making my point. If an ISP does anything to gain knowledge, whether they do it themselves or whether the information is given to them, they then fall into category of being a facilitator of child pornography; that is to say, they cross the criminal line. The minute they have knowledge, however they get it, they cross that line. The dilemma that I am talking about is not when they cross the line, it is when they do not have the knowledge and do not cross that line and are simply providing the hardware.
If I were sitting as a judge in Regina, Saskatchewan, and I were referred to the Criminal Code which reads, ``Everyone who transmits...'' and if I were so fiercely offended by what I saw, by what went through that line — and I am not a specialist in new technologies at all — I would adopt the common interpretation and find that the ISP transmitted it, he provided the line.
I want to know two things. First, does the government intend to go after these people or not? I am referring to the fact that they simply provided the service; in other words, not crossing the line and having knowledge. Do you not think there is a danger that the police, the courts and others, who may be very emotionally charged and want to stop child pornography, will not have the expertise you have, and trap them if we do not have clarification or a clear signal from the government?
The clear signal from the government could be, first, that we are not going after the hardware, we are not going after the providers. Second, if we want, through tip lines, et cetera, we will do it through the telecommunications system.
Ms Angers: You are saying that, in the cases where they do not have knowledge, you do not want to go after them. That is certainly the intention of the government as well. For example, if you do not have knowledge of the fact that child pornography is being transmitted, then there is no offence because it is implied in either the transmitting or making available that the ISP must want to transmit child pornography. If the service provider is unaware that it is happening because it is only that conduit that is being used for that purpose, the service provider cannot be prosecuted because there is no guilty intent.
Senator Andreychuk: No court could say, ``He should have known that this kind of thing could have happened and therefore, he is guilty.''
Ms Angers: There are many Supreme Court of Canada cases on these issues, including Sault Sainte Marie, Wholesale Travel and others since the Charter. The cases make it clear that Criminal Code offences that do not contain wording that brings them to a lower level of criminal negligence, for instance, imply that, in addition to having committed the offence, you must also have the intention to commit the offence. Contrary to regulatory offences, the criminal law principle is clear that you must have both in order to be able to be charged and found guilty of an offence.
On your second point you asked if there was a danger that the courts would be able to find those ISPs guilty. As some of you will know, the law was enacted in 1993. Since then there has not been a case where an ISP has been charged for distributing. As your reasoning applies to the transmission offence, it could also apply to the distribution offence because, obiously, the purpose of the Internet is to make information available to many people. They are also distributing because they are distributing to a lot people. However, no charges have been laid since 1993.
Obviously, we cannot guarantee it will not happen. We do not control the courts. There is solid case law on this issue. I can assure you that that is the intention of the government.
[Translation]
Senator Nolin: We all agree that we want the same thing. I hope no one takes too seriously the statements in the House of Commons about the Senate's real intentions. None of my colleagues has. As I said, we all want the same thing, namely that the perpetrators be stopped, that they be brought to justice and that they be convicted. However, we do not want innocent parties to be caught in the process.
There is one interesting and unique feature about Canada's justice system: Parliament passes laws which in most instances are enforced by other jurisdictions. True, the past should foretell the future, but that is not always a given.
I understand your comment about my proposed amendment. On re-reading it, I have to say that I do appreciate your concern. Would you still have a problem with it if I added the word ``knowingly'' after ``every person''?
Ms Angers: You would modify the offence provision?
Senator Nolin: Not to include a defence. I would add the word ``knowingly'' or ``willingly''after the reference to ``every person'' in paragraph 3. Would you still have the same objections then?
Ms Angers: This brings us back to the first problem I mentioned, namely the problem of politics with a small ``p.'' It would be somewhat disconcerting to include expressions such as ``knowingly'' or ``willingly'' to criminal offence provisions. This merely adds to something that is already implicit, owing to the fact that the offence is already included in the Criminal Code, and it would diminish the presumption of mens rea. Whether or not the concept of ``knowingly'' is introduced, it is already implicit in the offence provision because in order for an offence to be of a criminal nature, there must be intent on the part of the perpetrator. I understand very well where you are going with this.
Senator Nolin: I would agree if the Criminal Code did not contain that expression. So, let me list a few. I will begin with Bill C-15A, clause 5.(3), paragraph (4.2):
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly [...]
That paragraph is easy to understand. I will quote one that supports my point. Section 202 of the Criminal Code deals with bets and bookmaking, and says:
202.(1) Everyone commits an offence who
(i) wilfully and knowingly sends, transmits, delivers or receives any message by radio, telegraph, telephone, mail or express that conveys any information [...]
Do you see the analogy I am making?
All I am trying to do is to ensure that some provincial attorney, for reasons that would certainly be non- professional, will not decide to take on some small Internet service provider in his area — not AOL, Yahoo or Sympatico — and manage to put it in a bind. I am trying to preclude any such attempts.
I understand the word ``knowingly.'' I know Sault Ste. Marie. But no one can say that mens rea is included in the Criminal Code and that we should not include it. I do not accept that.
When I hear courts telling Parliament that it has not done its work properly, I do not like it. We would not like to have anyone tell us, 10 years from now, that we have not done our work properly. The offence included company XYZ from a given place; it was up to you to do your work properly. We would not be happy to discover that we had had the chance to draft a bill in the proper form and had not done so.
Ms Angers: As you know, the Criminal Code has been in existence for some time now. I am sure you know other examples. The number of Criminal Code offences where the words ``wilfully and knowingly'' can be found is extremely small. As you say, they can be found in the Criminal Code. But is it necessary for our purposes to include those expressions? The problem is that if you add the word ``knowingly'' to the act of transmission, would you not need to add the same word to production and distribution? If you add it to that, the courts may ask themselves: how should we interpret the other offences? This means that we will be adding the expression to all pornography-related offences: ``knowingly'' transmits, distributes, imports or exports. According to the general principles of the Criminal Code, this is not necessary because it is implicit, but there are of course exceptions.
Senator Nolin: You are raising precisely the defence the attorney would raise to counter of a charge of having transmitted material. The council would say that section 202 requires a mens rea. How is it that there is none in section 163.1? Thus, it was not necessary.
Ms Angers: However, in the area of child pornography, there is a great deal of case law.
Senator Nolin: Indeed, we may be discussing this at an upcoming meeting. We would be willing to amend the Code to narrow that defence.
Ms Angers: The minister stated that he was interested in studying the matter. But as for including the world ``knowingly,'' it is not included in other offences in the area of child pornography. There is solid jurisprudence stipulating that these offences require a criminal intent, and thus a mens rea.
Thus, there is no great danger insofar as the definition of child pornography is concerned, as interpreted in offences under obscenity provisions.
There is a great deal of jurisprudence which states that these are offences that require a mens rea. The fact of including the word ``knowingly'' for one of these offences could lead the courts to wonder about the others.
You referred to subsections 163.1 and 164.2. We did not say that the offence as such was to knowingly access child pornography. Certain questions were raised. When we say that someone ``accesses child pornography inadvertently,'' I am sure it has happened to you to surf the net and come upon something you had not been looking for, simply because of the way the thing works. Certain stakeholders told us that they did not want to be prosecuted because child pornography had appeared on their screen by mistake, without their knowledge or consent.
The word ``accesses'' could lead to confusion because it could be interpreted as meaning ``accesses inadvertently.'' It is a word which according to the dictionary could lend itself to that type of definition. That is why we define ``accesses'' as meaning ``knowingly and wilfully.'' The word is not included in the offence as such, it is to be found in the definition of the word ``accesses,'' because it could be misleading. The government's intent was certainly not to persecute people who inadvertently wind up at a child pornography site without having tried to go there.
[English]
The Chairman: While we are doing this, we must keep in mind that the bill and the amendments are not before us. We have a motion before us.
Senator Nolin: I am not saying that I will do that here. I can do that in the Senate. I certainly want to do a good job.
Senator Joyal: I would refer to the discussion at the clause-by-clause stage of the bill.
[Translation]
Senator Nolin proposed an amendment which was a line of defence. If I remember correctly — I do not have the transcript — the interpretation that could be given to the defence raised a certain number of questions.
My colleague Senator Grafstein raised an objection. Personally, I abstained. If I remember correctly, one of us said: It would be different if the word ``knowingly'' were included.
I know, Madam Chair, that we are somewhat out of order because we are discussing another possible amendment. With all due respect to my colleagues and the open debate that is being held in the Senate, I want to draw the witness' attention to the brief submitted to us by the Canadian Cable Television Association on December 6, 2001. I do not know if you have a copy of the brief. Toward the end of it, they discussed the addition of the word ``knowingly.'' The reason why this amendment was proposed was essentially a matter of interpretation. I will read the text slowly to allow my colleagues to remember the testimony of the Association:
... In the event that the legislation is not amended to include such an exemption, however, CCTA submits that the bill should at least be consistent in its use of the word ``knowingly.'' When several offences are created in the same section ...
This is the case in 133...
... one which requires express knowledge on the face of the provision and others which do not, there is a reasonable presumption that the offencesthat do not have an express knowledge requirement could be construed as strict liability offences. Accordingly, in the event that the Internet intermediary exemption is not adopted, CCTA submits that the provision should be clarified to include the word ``knowingly'' as an express element of all the offences in sections 163.1 or to exclude the word in the case of ``accessing.'' Either way, the bill's approach should be consistent.
So, the argument submitted to us concerned the consistency of the section itself. You made a presentation on the philosophy of the Criminal Code as a whole. I agree with the definition of the mens rea. In this specific instance, in the Code, in section 163, there are at least two levels of offence. There are offences punishable by 10 years, and others by 5 years. The difference between the two is very marked. It is not a nuance. It is double. It is twice as serious, in the eyes of the law.
How would you respond to this argument put forward by the Association, with regard strictly to section 163?
[English]
I know we are not directly on the point of the motion that has been referred to us.
The Chairman: You are moving further afield from the motion before the committee.
Senator Joyal: I recognize that, but I would submit that this is part of the final deliberations of our committee.
[Translation]
Ms Angers: Indeed, I read the brief submitted by the Canadian Cable Television Association. I think there is some confusion with regard to the inclusion of the word ``knowingly.'' As I explained earlier, the word knowingly is not added to the offence as such, but to the definition of what the offence means.
The offence could have been interpreted as including behaviours which Parliament did not want to target, that is to say the case of someone who inadvertently finds himself on a child pornography site without having meant to go there, but simply because of the way the site can suddenly pop onto the screen, although this is very infrequent as compared to adult pornography, which does appear more often.
I do not believe that the way in which the offences relating to child pornography have been drafted are inconsistent, quite the opposite. The intent was simply to ensure, for one of the offences, which perhaps was not very clear because of its meaning according to the dictionary, such as Le Petit Robert, that there would be no confusion. They wanted to make sure that in all cases, people could only be prosecuted for knowingly or wilfully having wanted to access child pornography or for having attempted to have such pornography transmitted to them.
Those are the offences as such. I do not believe the government has been inconsistent in its approach to these offences. It is a good thing that the definition of one of these offences states that the intent of the legislation is not to punish someone who inadvertently happens upon such a site and attempts to turn off his computer. That is the distinction.
That is why the proposal submitted by the Canadian Cable Television Association is perhaps not entirely appropriate to the framework set out in section 163.1.
[English]
Senator Andreychuk: I am still somewhat perplexed that we want to get at child pornographers. We want the action in the courts and the education system to allow people to understand the horrific consequences of such pornography. If there is doubt here, it seems to me that we will end up much as the B.C. Sharp case concluded. People will have the idea that anyone who is anywhere near child pornography, or utilizes child pornography, should be trapped in the net.
While I think the judge was well within his rights to make the decision that he made, that was not the public expectation. From what I read in the House of Commons Hansard and the apparent level of emotions involved, it was obvious that they did not have a clear, rational approach to the issue as you have. They became very emotional, just from the use of the words ``child pornography.'' When I was speaking to this in the Senate, I also felt very emotional. I questioned what was meant by ``a transmitter'' and so on. That was the reaction of those in the house who had not studied it fully.
If an Internet service provider finds himself or herself charged in any jurisdiction, how will that person get out of the situation if there is that kind of emotionlism surrounding the case, as we saw in B.C.? That is why clarification, as you quite rightly pointed out, was necessary for those who might accidentally find it on their screens. What about all the smaller Internet providers that might face this situation? I do not think it is fair to fall back on the fact that we have had the laws since 1993 and nothing has happened.
We know how you can ride the waves of awareness and understanding and the horrific consequence of one act that can skew public opinion. Why would you not want to protect the industry so that the action is against the real child pornographers and not deflected into another area? I am asking a public policy question.
Ms Angers: You are asking why we do not want to protect the industry. The intention of the government is to protect the industry; to not impose on them obligations that they do not have; and to not prosecute them in cases where they do not have a guilty mind. Most ISPs are law abiding citizens, but it is relatively easy to become an ISP. There will be ISPs with guilty minds, and the government does not want to protect them. It is possible for anyone to become an ISP. The concern is obviously in relation to small ISPs. The government will not go after them if they do not know the content of their servers. I gave the example of pedophiles becoming ISPs, and that is a real concern. That could be envisaged by some of them to reduce their responsibility if such emotion is brought forward.
The general precepts of criminal legislation imply, if it is a criminal offence, you must know that you are committing a criminal act in order to be found guilty. We have that guarantee for offences in the Criminal Code. For instance, if the crime is murder, the person knows that it is a criminal offence and must want to commit the murder. Child pornography is not different in that respect. The prosecutors will go after the guilty minds, as opposed to going after the persons who have no intent to commit an offence.
Once again, to reinforce this, as the minister said when she appeared before you, the government's intent is certainly not to go after the Internet service providers who only provide the means and the facilities, it is to go after those who know that their service is being used for that purpose. We agree that we should certainly go after them.
The government believes that the wording presently does capture your concern. Additional wording to that effect could have a negative impact on the interpretation of other provisions of the Criminal Code.
[Translation]
Senator Nolin: Let us suppose we have the amendment before us and that it proposes the addition of the word ``knowingly.''
[English]
Just so everyone understands, the idea is to add the word ``knowingly'' after the word ``anyone.''
[Translation]
You referred to the interpretation the courts give to this group of offences in section 163.1, which does go back nine years. That is indeed an argument in favour of making the text of our offences more precise. The Supreme Court, which in the Sharp case had decided on a broad interpretation of two defences, had later on added two new defences which had not been provided for in the Code. They decided to act, as is their right and certainly their duty. The interpretation the Code gives to section 163.1 must certainly be considered if we want to draft an amendment to the Code that will wear well.
After that preamble, you still believe that the word ``knowingly'' would not be necessary, even if a lawyer wanted to use another section, such as section 202, for instance, which establishes a parallel between the actions. It deals with transmission by telephone and telegraph. The parallel is obvious between transmitting information by Internet and transmitting information by telephone or telegraph. Indeed, I am surprised that the Internet was not added as a means of transmission in that section.
If I were a Crown prosecutor, I would use the argument that a lesser degree of proof is needed under section 163.1 (paragraph three) than under section 202. And the Court of Appeal of the Province of Quebec would concur.
Ms Angers: The problem is that the vast majority of offences in the Criminal Code require criminal intent. We do find the words ``knowingly'' or ``wilfully'' in certain provisions of the Criminal Code, but that is really the exception rather than the rule. One cannot know the entire Criminal Code. To each his or her area of expertise.
However with regard to paragraph 202,1(b), for instance, the cases specifying that the action must be performed in a willful manner, such as the present case, could lead one to think that since it was deemed necessary to specify it in these instances, it should be specified in cases of child pornography. The problem, however, is the impact that such a change would have on the other provisions.
You were alluding to the fact that child pornography had been in the Criminal Code since 1993. Provisions concerning obscenity, however, were included in it from the very beginning. They have always been interpreted in the same way, and required a criminal intent. If you add the word ``knowingly'' for a single one of these offences, from the political point of view, this could cause interpretation problems wherer the other are concerned. People would then believe that you meant to say that the other offences need not be performed knowingly, whereas there is a common law presumption to that effect. Everyone agrees on what needs to be done. It is the way in which it should be done that is controversial. How to conciliate these issues with the actual text of the Criminal Code, which has remained the same since 1867?
The Sharp affair caused a great deal of controversy by allowing two exceptions for certain types of behaviours. The Supreme Court thus opened the door to numerous debates. We recently saw one consequence of this in Judge Shaw's decision in the new Sharp affair. Be that as it may, the Supreme Court never questioned the fact that these offences, possession offences in this instance, required a guilty intent on the part of Mr. Sharp. The problem was not so much at the level of the offence, which did require a wrongful intent, but rather at the level of the definition as such, which according to the court was too broad and covered behaviours that should not have been covered, including that of two young people of seventeen who could not take photographs of their sexual relations.
The Supreme Court never stated that the offence, in the absence of the words ``knowingly'' or ``wilfully,'' included child pornography. It never said that because these words were not included in the offence, it should be interpreted as a liability offence.
Senator Nolin: The Supreme Court never questioned the offence. It raised certain questions having to do with the offence and Mr. Sharp's fundamental rights. The Court did not have to rule on Mr. Sharp's wrongly intent, it had to rule on the conflict between the offence and his fundamental rights.
Ms Angers: I agree with you. It is simply the way in which it responded. All of the constituent elements were reviewed: possession, defence, the text of the definition, etc. It gave a general overview of all the different elements that must be proven when there is a possession offence.
Senator Nolin: It developed the test of the defence very well.
Ms Angers: Quite so.
Senator Nolin: We know exactly what the provision means and we must act accordingly. That is what Judge Shaw did in British Columbia.
[English]
The Chairman: I have also allowed a wide range of expressions all around the motion.
Senator Beaudoin: I agree that this is a question of interpretation, and that the Supreme Court has, so far, liberally interpreted that provision. Two days ago, the Chief Justice of Canada, Madam Justice McLachlin, said that we are more liberal in that area than the United States.
**You say that that is good enough because, when there is no intention, no mens rea, the Supreme Court will certainly say so. There is no risk that that person will be found guilty.
In our system, we have the presumption of innocence. We must establish clearly that the person is guilty beyond a reasonable doubt. Those are the fundamental principles of the criminal law.
On balance, it is the opinion of those on this side that we should have an amendment because that would be a positive step. You respond by saying, although that is true, even if we do not have that amendment, we should not be concerned because the Supreme Court will cure the evil. The Supreme Court will not make a finding of guilt.
We are the legislators, and we must do the best we can. If I had the choice between including the word ``knowingly'' or not, I would include the word ``knowingly.'' That is my argument, but it is a question of interpretation. I am simply sharing my opinion.
The Chairman: Thank you for your opinion, Senator Beaudoin.
Senator Fraser: This has been a fascinating discussion. As honourable senators are aware, I was not here for most of the study of this bill. Thus, I had no previously adopted position to defend. However, I have followed the discussions with interest and I have reviewed some of the material in preparation for this examination of Bill C-15A. It has been most instructive.
The discussion of whether the word ``knowingly'' should be inserted in clause 3, is very interesting. On balance, I believe that Ms Angers has swayed me. However, that is not the issue we are in a position to address. We are in a position to address the fact that the House of Commons has rejected an amendment that the Senate proposed. I think the House of Commons did the right thing. The amendment they rejected would have opened the door wide to people who knew what their customers were doing.
Therefore, I move:
That the committee recommend that the Senate do not insist on its amendment numbered 1(a) to Bill C-15A, to amend the Criminal Code and to amend other acts.
The Chairman: Is there further discussion on the motion, honourable senators? Hearing no response —
Senator Beaudoin: Excuse me. We were saying that we were out of order since the beginning. What are we voting on?
The Chairman: We are voting on the motion that the Senate has referred to us, that the Senate do not insist on its amendment numbered 1(a) to Bill C-15A, to amend the Criminal Code and to amend other acts. That is all that we have before us.
Senator Andreychuk: This is the first time that I have been involved in a motion being referred to a committee. Seeing the landscape of the committee, I recognize that we will not insist on the amendment. If that were to be the case, would we be contemplating comments to our report?
My concern is that the minister said that they do not want to go after Internet providers if they solely provide the equipment and nothing else.
Senator Fraser: They do not know.
Senator Andreychuk: Do you want to use the word ``knowingly''?
Senator Nolin: I hope that is what they want to do.
Senator Andreychuk: What is important is that there is a lot of confusion out there now. I am sure if a poll were taken that said, ``Do you want to get at Internet providers?'' the response would be that people do not want child pornography of any kind. Either we support that position or we support what I thought was the government's position. The government's position is: ``We do not want to entrap Internet service providers who solely provide the hardware. If, however, they are in any way involved in child pornography by knowing what is on their system, by setting up a system, et cetera, and it falls into the category of now being a perpetrator of child pornography, that of course is a different situation.''
There must be a clear signal given from this committee that it is what the government said that we are supporting when they said they were not going after Internet providers, if they are solely and exclusively providers only, without knowledge. We should suggest that, somehow or other, the government provide some information to courts and prosecutors across Canada. I do not think that will come about. Hearing that there have been no cases since 1993 does not bring me comfort.
We should do something to encourage the government, through its federal-provincial-territorial working group, to make it clear what the government's intent was by this legislation in order that it not entrap honest Internet service providers.
The Chairman: I have been advised that there is precedent for a motion such as this. If we decide to go that route, it would reinforce the government's position, and I see no problem with that. If we vote in favour of this motion, surely the committee will allow the steering committee to comment in the report, that we are essentially reinforcing what has been told to us by the government on this issue.
At this point, if honourable senators are agreed, I will call the vote on the following motion:
That the committee recommend that the Senate do not insist on its amendment numbered 1(a) to Bill C-15A, to amend the Criminal Code and to amend other acts.
All in favour?
Hon. Senators: Agreed.
The Chairman: We are agreed. There are abstentions. I cannot report abstentions, but we will report with very short and simple observations.
With the permission of honourable senators, I will report Bill C-15A tomorrow afternoon.
Senator Beaudoin: When you say an abstention is not recorded, what does that mean?
The Chairman: I mean that it is recorded in our minutes. However, I do not report to the Senate that there were abstentions.
This part of the committee meeting is concluded. I shall report to the Senate tomorrow afternoon on this motion, with observations.
We shall proceed to the second part of our meeting on Bill S-41, to re-enact legislative instruments enacted in only one official language.
We have before us, from the Department of Justice, Mr. Newman, Mr. Tremblay and Mr. Keyes.
Please proceed.
Mr. Marc Tremblay, Senior Counsel, Official Languages Law Group, Department of Justice: Honourable senators, before we begin, I should like to state once again the respective roles of the witnesses before you this evening. As honourable senators are aware, I am responsible for this bill within the department and have had carriage of this file since 1998.
Mr. Newman has been involved in a great deal of language rights litigation over the past twenty years or so, including both Manitoba language rights cases directly relevant to the issues today, and the Brunet and Sinclair cases in the Supreme Court on language rights. Mr. Newman was also the project director for the 1988 Official Languages Act.
Mr. Keyes is an expert in legislative policy and has written extensively on the very topic underlying this bill, delegated executive legislation. We hope Mr. Keyes will be able to respond to concerns of the committee on issues regarding the Statutory Instruments Act and regulations in general.
With those comments, we are ready to answer your questions.
Senator Fraser: In previous proceedings, the principal argument advanced for addressing this difficulty the way Bill S-41 proposes, that is, to re-enact legislative instruments if they are drawn to the attention of the Governor in Council, was that it would be too huge a task to do a systematic search and find all the instruments that failed on linguistic grounds. However, we heard testimony last week to the effect that this would not be that burdensome a task, given that these are all official acts. There are records of them. They can be found if a systematic search is done, without too much difficulty and without imposing hugely burdensome costs on the people of Canada.
The suggestion was made that we should redo them all properly as Manitoba was obliged to do. Why should we not do that? How heavy would this burden be?
Mr. Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice: In 1992 I had to look at some of these instruments in respect of a case that was before the Quebec Superior Court where an Order in Council dating from 1921 was at issue. The Order in Council had never been published because it was not required to be published. It simply authorized the making of a proclamation. The proclamation was printed and published in both official languages in the Canada Gazette.
I wanted to ascertain the existence of the impugned Order in Council. I went first to the offices of the Privy Council. Much older documents are no longer located on the premises. I had to consult the National Archivist and, indeed, go to the National Archives. It took quite some work to, first of all, locate the document I thought I was looking for. As I said, since it was an Order in Council, I believed it would have been recorded. Whether the registration processes were as they are today is another story. It was quite difficult for me to determine whether a second language version had been made at the time. I had to conclude that that probably was not the case.
On top of that, the Order in Council that I was looking at was, in my view, administrative in character and not legislative. I had to make a judgment call in that regard. It simply authorized the making of a proclamation, which meant it was an executive instrument on its face. However, there is controversy in the cases as to whether certain proclamations should not be considered to be of a legislative character nonetheless, despite the fact that they do not themselves contain a rule of law nor do they simply apply laws. In this case, it was a proclamation bringing into force the provision of an act.
In my consultations at the time, I was given to understand, because I wanted to get a better picture of what was out there, that it would not be easy. It would not necessarily be efficient, because, as this committee knows, the government has relied upon the 1978 consolidation of regulations where all regulations that were supposed to be in force were, in a sense, re-enacted in both official languages in 1978. We were looking at instruments that, for one reason or another, were not considered necessary to be published at the time. I would suggest we would be sort of looking for needles in a haystack.
In other words, our sense is that there are probably not many instruments out there that might cause a problem in the nature of the one I mentioned from 1921. Nobody has raised examples. The parliamentary committee on the scrutiny of regulations has been assiduous in pointing out the existence of five regulations that they have managed to find that were actually printed and published in the Canada Gazette but perhaps not provided in both official languages. They have never pointed out any regulation or any instrument of a legislative character that has not been published.
The point is that we would have to look at all these instruments. You cannot just send a few summer students to do the job, as someone, I understand, suggested. You must make a legal judgment on each one, and then you must look at them in the context of the legislation itself, and conclude, perhaps, that a certain instrument is not in the nature of legal character, in and of itself, but perhaps the net effect of the instrument, taken with the law in question, could be considered that way.
That was the case in a series of instruments in the Sinclair case, where there were letters patent, a notice to the public and other documents that the legislation contemplated, and these instruments were published in the Quebec Official Gazette, but only in French. The court decided that the instruments, taken together with the scheme of that particular piece of legislation, which was to effect the amalgamation of Rouyen-Noranda, were of a legislative character when taken together. There are these judgment calls, as I indicated.
Manitoba was under an obligation because it had done nothing in either language. The distinction we have drawn between the Manitoba, Quebec and federal situations is that throughout our history we have never attempted to put one language on a lesser footing than the other. The intent all along, through publication in the Canada Gazette, was to ensure that Canadians would have access to those documents published in the Canada Gazette in English and in French. There was never any question about one version being lesser than the other. You could rely on what was published in the Canada Gazette. There has never been an attempt to circumvent in any way the requirements of section 133 of the Constitution Act of 1867 or section 18 of the Charter, for that matter. Measures have been put in place through both the 1969 Official Languages Act and the 1988 Official Languages Act to ensure that the administration of the affairs of the Government of Canada are in accordance with the rule of law.
The issue, once again, is: What is the extent of the problem? Is it worth the number of resources that might be required to do that search, to systematically go through everything that may have been done, to make the determination, on the basis that there might be one, two or three of these instruments that are significant enough to warrant doing it on a systematic basis.
Senator Fraser: I appreciate that one would require experienced legal minds to make the final determination in cases where the precise nature may appear unclear. My strong recommendation is: When in doubt, fix it.
However, I cannot see that the initial task of tracking instruments down would require the efforts of many senior lawyers. There are only a limited number of places or sources, and it may be boring to wade through the old documents, but that is why we have junior lawyers.
Mr. John Mark Keyes, Director, Legislative Policy and Development, Department of Justice: As Mr. Newman described, once you have found the instruments, the judgment has to be made. The exercise of finding these instruments will be daunting. You might begin by looking at all of the Orders in Council that were ever passed, but that might be just the tip of the iceberg because we are talking about all of the powers granted under federal statutes, not just those given to the Governor in Council. We are talking about powers given to ministers and other officials.
The great problem is that there is no central registry for all of these documents that are made in the exercise of various statutory powers. You would have to start by looking at the statutes to see what powers have been granted over the years; compile a list of all these powers reading back to each of the successive statute provisions; reading all the laws passed since those revisions; compile a list of what potentially may be legislative powers and who is exercising them; and then try to track them down in the archives of the various departments. I am not sure how you would do that.
You would perhaps start by combing the records of the offices of ministers and those who had statutory powers to see what records would turn up. You would have to go through a considerable volume of paper to try to find these instruments because there has been no central registry system for them. As Mr. Newman said, it is like looking for a needle in a large paper haystack.
Mr. Tremblay: The senator has provided us with the opportunity to draw a parallel with Manitoba, which is quite apt. It is interesting that Manitoba tabled a report by the Minister of Justice to the Manitoba Legislative Assembly regarding the validation of Manitoba's laws, wherein they explained the process that they had to go through. They had to search through all of the government's files, through all of the departments identified as having had regulatory powers delegated to them. I can certainly leave a copy of this. It is a bilingual document prepared by the Government of Manitoba.
I turn now to the important table. We are not saying that the cost is the major impediment here. For Manitoba's entire process, just before completion, it was $6.85 million. It is not an astronomical sum, but they note that it does not include all of the real costs; rather, it includes the directly attributable costs. The main costs are not those of translation. It is not because they found an inordinate number of documents, but it was the searching that was the major part. Approximately $5 million was spent for the search and about $1 million for the translation.
They noted that to quantify the contribution of all the agencies involved and many people across the government who were involved was impossible. For example, in the Department of Justice alone, 20 legal services division lawyers worked for an extended period on one aspect of the project related to regulations. That is the problem we are dealing with here — the unknown, unpublished regulations. That employed 20 lawyers. All counsel staff, 31 at the height of the project, worked on the project. These numbers are not included in the $5-million figure. It is a significant exercise and one that is fraught with imperfections.
[Translation]
Senator Beaudoin: I would like to go back to that issue. We did not talk at length about section 18 of the Canadian Charter of Rights and Freedoms. The laws, archives, proceedings and records of debates of Parliament are printed and published in French and in English, and both versions of the laws are equally authoritative.
It seems to me that that section has solved the problem since 1982. Does section 18 allows certain regulations not to be published? I would like an answer to that. Section 133 refers to laws. The Fathers of Confederation were not very conversant with delegated power in 1867. There have been two cases that dealt with the matter. The first was Blaikie, in which it was said that regulations had to be published. The other, from 1992, stated that certain documents, certain regulations could be exempted from publication. It was said very clearly.
Since it is a decision of the Supreme Court, we say that:
[English]
This is the law of the land; it is a decision of the Supreme Court; and it is part of the Constitution.
It was clearly said that the legislative regulations must be published but that some need not be published if they are not in the public interest. This is clear-cut. What has happened since 1982? We now have section 18. Is it possible to say that we do not have to publish some of those regulations? If they are of a legislative nature, the delegated legislation or regulations should be published and adopted in both languages. If it is not of a legislative nature, then we may just get rid of that.
The fact is that section 18 is there, and it is right at the centre of the Constitution. The argument that it is costly and difficult is not a valid argument. I was involved in the Supreme Court of Canada Blaikie case in 1985. No one pleaded that.
[Translation]
The Beaulac decision states:
I wish to emphasize that mere administrative inconvenience is not a relevant factor.
[English]
I do not think we may invoke that. It may be costly, difficult or long, but it must be done.
I accept that certain delegated legislation does not need to be published.
Senator Fraser: They still need to be enacted, though.
Senator Joyal: They need to be enacted.
Senator Fraser: Yes, in both languages.
Senator Rivest: In both languages, yes.
Senator Beaudoin: Exactly. Section 18 is very clear. Laws, archives, et cetera, are to be printed and published. There is no exception.
Mr. Newman: I agree up to a point. What section 18 does not do is track the language of Blaikie. It does not say, ``shall be enacted, printed and published,'' which is unfortunate, in a sense, I suppose. Furthermore, it does not say, ``laws and legislative instruments,'' or ``laws and regulations,'' et cetera.
[Translation]
Basically, this repeats what is said in section 133. In fact, sections 17, 18 and 19 of the Charter, overall, repeat section 133, for the federal government, but also for New Brunswick. The case law interprets sections 17, 18 and 19 in the same way as section 23 of the Manitoba Act and section 133.
Senator Beaudoin: Nothing more?
Mr. Newman: Not to my knowledge, and certainly not within the framework of section 18 of the Charter. Section 18 concerns the same area as sections 23 and 133. This is said first in the Reference re Manitoba Language Rights and in the Société des Acadiens judgment.
Senator Beaudoin: Yes, but laws are printed and published in French and in English. There are no exceptions.
Mr. Newman: No, and there are no exceptions where section 133 is concerned, either. The acts of Parliament are printed and published in both languages. It is not because section 18 says substantially the same thing as section 133 that this changes anything. Whether you refer to section 133 or section 18, they must be interpreted in the same way, it seems to me. I do not say this to reduce the scope of either section 18 or section 133, but to say that both require that the acts of Parliament be enaded, printed and published in both languages, first, and secondly, to the extent that the Blaikie decision specified this, as well as the 1992 decision in the Reference re Manitoba Language Rights, the same thing applies to statutory instruments. That is the reason why I had distributed to senators this excerpt from the 1988 Official Languages Act which contains these same requirements.
You pointed out that section 7 of the 1988 Official Languages Act did not state absolutely that texts had to be printed and published in both languages, that this was a breach of section 133. What I understand of sections 18, 133 and 23 and of what was done through the Official Languages Act in sections 7 and the following, is that the legislator's intent was to trigger an interpretation based on the object of these linguistic guarantees, i. e. equality of access, universality of access to the legislatures, laws and courts, for francophones as well as anglophones.
If you look at what was done to implement sections 133 and 18 of the Charter and sections 5 and the following of the Official Languages Act, you will see in section 6:
All Acts of Parliament shall be enacted, printed and published in both official languages.
As for legislative instruments and regulations:
Any instrument made in the execution of a legislative power conferred by or under an Act of Parliament that is made by, or with the approval of, the Governor in Council or one or more ministers of the Crown [...] shall be made in both official languages [...].
And at the very end, it says:
... if printed and published, shall be printed and published in both official languages.
The Official Languages Act is neutral on the issue of whether or not there is an inherent requirement in section 133 concerning printing and publication. I believe that the intent of section 133 is first and foremost to establish the equality of status of both languages when laws are enacted, printed and published.
Senator Beaudoin: But there is section 18. I like the Official Languages Act. It puts both languages on the same footing. That is all well and good, but it is not the Constitution. The Constitution is what impresses me. Section 18 says:
[English]
The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
In my opinion, that goes further than section 133.
Mr. Newman: How can it go further?
Senator Beaudoin: Because it says so.
Mr. Newman: I do not see what it says in section 133 as being different that what is interpreted in Blaikie, with all due respect, because in Blaikie the court held that the words of section 133 not only provide, but require, that equal status be given to both the English and French languages, not only with respect to the printing and publication but with respect to the enactment of the legislation. Except for the fact that the words are expressly there, and they are also in the Official Languages Act, both versions are equally authoritative. I do not see what it adds to section 133.
Senator Beaudoin: There is a difference. The Parliament of Canada may amend the Official Languages Act tomorrow. You may try to amend section 18 tomorrow; but you will not succeed.
Mr. Newman: In regard to what, senator? Is it in regard to the equality of status? That rule is already set, as you yourself said, in Blaikie. The interpretation in Blaikie of section 133 is a rule of law. Everyone accepts that equality of status is required by section 133, and by sections 18 and 23.
Senator Beaudoin: The decisions of the Supreme Court of Canada on the Constitution are part of the Constitution.
Mr. Newman: There you go; we are in agreement on that point.
Senator Beaudoin: It is stronger than the Official Languages Act.
Mr. Newman: Whether or not it is stronger, all I am saying is that, in respect of section 133 of the Constitution, section 18 of the Charter, and section 23 of the Manitoba Act, the requirements appear to be that legislation must be enacted in both languages. That must be done simultaneously, and both language versions are equally authoritative.
As well, the requirement extends to delegated or subordinate legislation of the type identified by the Supreme Court of Canada in Blaikie No. 2, and as refined in the 1992 decisions of the Supreme Court of Canada, Reference re Manitoba Language Rights No. 2 and in the Sinclair case.
Senator Beaudoin: I agree with that.
Mr. Newman: All we would say from this perspective of language is what is essential is that both languages versions be equally authoritative and be treated with equal status. The question as to whether there is an actual requirement to print and publish may arise under section 133, it may arise in common law, or under section 7 of the Charter as a principle of fundamental justice, but it does not have a bearing, in our respectful view, on this particular piece of legislation.
Senator Beaudoin: Is it possible, since 1982, section 18, to have an Order in Council that is not published?
Mr. Newman: That is not published?
Senator Beaudoin: I am referring to one that is not of a legislative nature. They say here ``printed and published.'' There is no exception. This is the law of the land under section 18.
Mr. Newman: That is right.
Senator Beaudoin: That is not the opinion of Joe Blow. It is the Supreme Court of Canada opinion in the Blaikie case, and that is on the same level as the provisions of the Constitution. I think we all agree on this.
Mr. Newman: May I try this on for size, senator, with respect?
I would refer to what was done in 1988 to deal with the very issue. The whole point of the 1988 Official Languages Act was to implement and respect the constitutional guarantees relating to language, including those in relation to enactment and bilingual legislative processes. Perhaps the English version will put clarify what I am saying when I say the following in French.
[Translation]
...If printed and published, shall be printed and published in both official languages.
[English]
In English it states that legislative instruments shall be made in both official languages.
That is key, I think we all agree. That is what Blaikie is about because that is what ensures equality status and equal force of law. It goes on to state that, if printed and published, it shall be printed and published in both official languages.
The phrase ``shall be printed and published in both official languages'' is exactly what is contained in section 18 of the Charter. You are saying that sections 133 and 18 require printing and publication per se. That may well be, but it has never been decided.
Senator Beaudoin: It is clear-cut.
Mr. Newman: It has not been decided at the level of delegated legislation, and we know that, under the Statutory Instruments Act — and this is the same in many countries — there are classes of delegated legislation, of regulations, that are not published at least in the sense of published in the Canada Gazette because of the very nature of the instruments at issue. Our colleague, John Mark Keyes, will speak more to that practice.
Senator Beaudoin: I followed you until about the last 10 miles.
Mr. Newman: They are a hard 10 miles to walk.
Senator Beaudoin: When you say they must be published in both official languages, we agree. Statutes must be published at all times. The regulations, if they are of a legislative nature, must also be published at all times. It is only in some cases when it is not in the public interest that we may say that it is not mandatory to publish those regulations. This is only found in the act. The act is important, but it is not the Constitution. How can you restrict in the Official Languages Act what is already in the Constitution?
Mr. Tremblay: The Official Languages Act does not restrict publication. If anything restricts publication, it would be the Statutory Instruments Act.
Mr. Newman: Which is why we are handing it over to Mr. Keyes.
Senator Beaudoin: Even if it is another act that is at fault, it is still unconstitutional.
Mr. Keyes: Senator Beaudoin, perhaps we could go back to the language of sections 133 and 18. They state that they apply to acts and to statutes. We ordinarily understand that those words to means bills that are passed by Parliament and that they do not include delegated legislation.
Senator Beaudoin: I agree.
Mr. Keyes: It may be significant that in 1982, after the Blaikie decisions, when section 18 was enacted there was no express reference to delegated legislation. It continues to use a word that we understand to apply only to bills passed by Parliament. It uses the word ``statutes.''
Senator Beaudoin: Where do you see that? Are you saying that section 18 has not more impact than section 133?
Mr. Keyes: No, I am not saying that.
Senator Beaudoin: It has.
Mr. Keyes: I am suggesting that it may be significant.
Senator Beaudoin: Are you saying that section 18 covers less than section 133?
Senator Joyal: That is what he implies.
The Chairman: Perhaps I can quote from Blaikie No. 2. This has no page references that will make sense to anyone because it has been downloaded from the Internet. This document states that they both emphasize some connection between the legislature and delegated legislation apart from the delegation itself. This connection is the decisive factor in so far as the subjection of Government regulations to section 133 of the BNA Act is concerned.
Senator Beaudoin: ``Is concerned?''
Senator Joyal: It is clearly stated in section 133.
The Chairman: It is right there.
Mr. Keyes: Yes, it is quite clear that there must be a connection between the delegated legislation and Parliament. That is why many forms of delegated legislation are not covered by section 133, for example, municipal bylaws. There is not a sufficient connection between the municipality and the legislature in that case. Therefore, municipal bylaws, which are a form of delegated legislation, are not subject to section 133.
The Chairman: We are not talking about municipal bylaws here; we are talking about section 133 of the BNA Act as far as it applies to the regulations of the Government of Canada.
Mr. Keyes: Yes, I agree.
Senator Beaudoin: In 1867 there was very little delegated legislation. Compared to what is going on today, they are two different worlds.
The most important amending statute was enacted in 1982, in my opinion, the Charter of Rights and Freedoms. It is the heart of the Constitution.
If I read the second paragraph of section 133 and section 18, I conclude that section 18 is larger. It does not restrict section 133.
Mr. Keyes: I did not mean to suggest that there is any difference between section 18 and section 133.
I should like to go back to the point that you made, namely, that in 1867 there was very little delegated legislation. At that time, the act probably did not apply. In fact, there was no regular system for publishing delegated legislation throughout the Commonwealth. The first general statute for publishing delegated legislation was enacted in 1891 in England. The first statute enacted federally in Canada in that regard was in the late 1940s.
Throughout this period from 1867 onward, we see a growth in the significance of delegated legislation. We also see a development in systems for publishing and making these forms of law known. From the beginning, there never was a uniform system that applied to all of these forms of delegated legislation. They were growing and the systems of publication were evolving.
It is fair to say that, through that progress, we see greater and greater publication and more attention paid to delegated legislation, but there have always been types of delegated legislation that have not been caught by those formal systems. I would suggest that there have been good reasons for that.
In looking at what the Constitution requires, it is important to look at how our systems of publishing delegated legislation evolved. In the case law, particularly relating to Blaikie and to Manitoba, it is fair to say the courts have taken a fairly pragmatic view about these requirements in some cases.
Senator Beaudoin: The difficulty is this: In 1985, the Supreme Court of Canada, in effect, said, ``You have legislated only in English. All your legislation is ultra vires, but it is deemed to be valid for the minimum number of years. If you translate it within three or five years, it will be valid because of the de facto doctrine and the rule of law, because we are a democracy.'' It is beautiful. It is a masterpiece of the Supreme Court.
When the Supreme Court makes a ruling, it is as in the Constitution. It may do that. Parliament may legislate, but the difficulty lies in deciding what form that legislation should take. In my opinion, we must consider the delegated legislation. We must find a way, perhaps by passing a bill, to say that, retroactively, that delegated legislation is deemed to have been adopted in both languages. I want to find a way to do that. I would support a bill that would settle this problem.
My difficulty lies in how we do that. We must do it properly. I am not in favour of retroactivity in constitutional law. It goes directly against international law. If we have a list of all the delegated legislation, and we will, I might be ready to accept that we should pass a bill that would deem that they have been enacted. However, I am not yet entirely convinced. Something is missing in the reasoning to reach that conclusion.
Mr. Keyes: What is an important element of the Supreme Court cases is the de facto doctrine. In a sense, when Manitoba was validating its laws, it was doing so retroactively. However, it was not creating new sets of laws. Most people probably thought they were valid laws until they were questioned constitutionally. It does seem to go against the principle of creating laws retroactively. In another sense, it is simply trying to restore the de facto law that was there and to put it on a sound footing.
Senator Beaudoin: We must translate them. I cannot see how we can avoid that.
The Chairman: If I may just come in here again on Blaikie No. 2, because two paragraphs further on from what I was reading to you before, it goes on to say that the particular form of words used matters little. It states that they can be assimilated with the enactments of the government and, therefore, of the legislature, as long as positive action of the government is required to breathe life into them. This is what we are looking for here, positive action from the government.
Senator Andreychuk: I was going to attack this differently. If I understood the Blaikie case and the de facto element, it found that these were laws that people thought were their laws anyway, and it was now deeming them to be in both official languages.
What troubles me in the methodology you have used on that same point is that it stretches Blaikie to a point beyond which I am willing to go. We do not know which laws we are dealing with. We cannot even collate them, yet, we are prepared to say that they are all right in both official languages.
We go one step further in Bill S-41. We are saying, if they were not published in either official language, we will deem them to be all right. Is that not really stretching it much further than the judgment? Is it not going beyond the de facto recognition that the courts gave to the dilemma in the Manitoba case?
Mr. Tremblay: The issue is, what can the government do to restore —
Senator Andreychuk: Not ``can;'' what ``should'' it do.
Mr. Tremblay: But what can it do? We cannot go back to 1867 and make them anew. People have acted on the understanding that these regulations, these Orders in Council that created various legal orders and on which people have ordered their affairs for 125 years were the law of the land. We have been told after the fact that that was not the case. Only so much can be done to correct this important irregularity that nobody knew, in good faith, would be applicable before the courts pronounced on it.
We are combining here two techniques that the Supreme Court has said are valid techniques; and both techniques the court has identified in the context of language rights litigation.
One is a technique of incorporation by reference, which basically means that, in one act of Parliament, you would not be required to reset, reprint, and have the words of all the texts to which you refer reappear. You may simply refer to them. They are presumed to be exactly as if they had been included in the legislation.
Clause 3 has that effect. It incorporates, by reference, all of these published regulations in the exact same way with the exact same legal effect as if we had gone to all of the gazetted versions since 1867, gathered them all up, reassembled them, reset them, reprinted them, republished them and put them to Parliament for a vote. There would be tens of thousands of pages of such gazetted text, but it would have no different legal effect either way. We would have exactly the same situation.
The court recognized in the Manitoba Language Rights Reference case that incorporation by reference is an acceptable and legitimate technique. It is a technique that is used regularly.
The Chairman: We are not quibbling with clause 3. We are concerned about clause 4.
Mr. Tremblay: We were quibbling, I believe, with both in the previous discussions. We were saying that we had some problem with the fact that these texts were gazetted and that we were going back to make them anew.
As for clause 4, we have explained that we are dealing with, again, a difficult historical situation, where all steps have been taken in good faith to restore the legal order. We could leave things as they are. We have been living with the situation as the courts have left it. There have been no cases of successful legal challenges of any federal regulations, Orders in Council or other instruments. There was the Alcan case that we have discussed, and that is the only example we have. Nobody has been able to find any of these texts and bring them forward.
We are suggesting that the legislator provide the government with a reasonable means to correct the situation, if ever a problem is identified.
Senator Andreychuk: Mr. Tremblay, on the one hand, you are telling me there are thousands of regulations, and you do not know where they are. On the other hand, you are saying it has only been raised in a few cases. I am very confused. Nobody has done a spot-checking analysis to see whether we have many or very few.
Are we to presume that virtually all of our laws were not printed and published in both languages and that all of our laws, by way of regulation and legislation, were not published? Surely that is not the proper inference. Some were published in both languages at some point in time. Surely, most of what was necessary to be published was published. I would have gone along with that.
You are telling us that everything was done in good faith, but I do not think that good faith is the issue here at all. As another witness who appeared before us said, in a democracy such as Canada, citizens have a right to know what the laws are, and we have you coming forward saying that you do not know.
The court took a pragmatic approach and found that time was required to redress this situation. Perhaps, in this case, it will take not one or three years but 10 or 20 years to collate and gather the laws. However, something is fundamentally missing in your argument when you say bureaucracy and the government have no idea where the laws and the regulations are and have no way of getting at them.
Mr. Tremblay: That is not quite right.
Senator Andreychuk: If I were the Prime Minister, I would direct one department, as a test case, to find out whether its act and regulations are in order.
Mr. Keyes: Senator Andreychuk, I would certainly agree with you if clause 4 were to automatically re-enact all of the unpublished regulations that exist in the abstract and no one is quite sure what they are. However, this bill would not re-enact them all. It gives the Governor in Council the responsibility to, first, identify them and then to re-enact them by regulation, in both languages. These regulations must be pulled out of a mass of paper and highlighted as delegated legislation that must be re-enacted and validated.
I was trying to indicate the challenge of finding these by saying that we think there are relatively few of these instruments, but that they are buried in a mass of paper and powers. There are many thousands of powers and probably millions of pages of paper. The challenge is to find what we think are a relatively few instruments buried amongst a whole mass of others that exercise powers.
Mr. Tremblay: It is true, in addition, that the great majority of the ones that are of significance to the public are not exempted from publication, and those will have been resolved. We are being told repeatedly that this committee has no problem with clause 3. I remind honourable senators that the vast majority of these texts have been codified. The ones that the Standing Joint Committee for the Scrutiny of Regulations had problems with are all codified and published. We have a vast array of federal regulations that were, indeed, published in both official languages, for which potential problem the solution will lie in clause 3.
We are really talking about things beyond the more easily identifiable ones that are at the core of our federal regulations and are published. We are talking about the other texts that are, as Mr. Keyes put it, among the millions of pages.
Senator Andreychuk: On what basis are you saying these texts are beyond reach? You have brought no evidence to support the conclusions you are drawing.
Clause 4 states, ``The Governor in Council may...'' That makes it permissive. Surely, if we are not complying with the law, the word we should use should be ``shall.'' I would feel better if it the wording were, ``The Governor in Council shall...'' by regulation, repeal and institute whatever process is necessary to identify and correct the problem. That would involve a time lag.
In the future, with the new technology, we will be able to ascertain whether there is a law that covers any given circumstance. It seems to me that we are not approaching this with a view to using modern technology to meet the expectations of society.
Mr. Tremblay: That is because this problem goes back to 1867 when we did not have the technology we have today.
Senator Andreychuk: Today we have to manually find them. Are we bound by laws that have not been properly enacted? The government is applying, but they are not valid.
Mr. Keyes: I would suggest that we are not and that the government would have a great deal of difficulty trying to enforce secret laws against the public, whether in a penal context or any other context. There are a number of cases that deal with what you might call an ``implied'' requirement of publication and the question of whether there is, at common law, a duty of the government to publish its laws.
One of the most important of these is a decision from about 25 years ago involving police regulations in Toronto. In that case, a reporter wanted to obtain access to internal police disciplinary regulations. The newspaper went to court to try to force the police commission to divulge.
In that case, the judge clearly found that there is no common law right, generally, of the public of access to even things like these regulations. However, the court said that it would be unthinkable to apply one of these regulations against a person to the prejudice of his or her rights if that person had had no knowledge or notice of it.
As a matter of how the legal system handles these unpublished or less than formally published laws, there are substantial protections that have always been in the legal system. As a practical matter, the government would have found it very difficult, if not impossible, to apply any of these secret laws, if indeed they exist, against members of the public to the prejudice of their rights.
[Translation]
Senator Rivest: Publication in both languages is a constitutional obligation pursuant to section 133. You are raising reasonable and practical justifications concerning financial and administrative difficulties. But the fact remains that this is a constitutional obligation which must be satisfied.
Someone may drive through a red light and provide a thousand reasons to explain why he broke the speed limit. There is a legal problem. Could a citizen force the government, in spite of all administrative and financial considerations, to respect its constitutional commitments under section 133? I understand that there has not been a case, but someone could insist that the government respect its constitutional obligations.
Mr. Newman: You have asked a very good question. At the Department of Justice, we would reply that this is a hypothetical question. What happens in a legal dispute is that someone is faced with a regulation. This happened in the Alcan case. As the person runs the risk of being charged with an offence pursuant to the legislation, the legislation in question is challenged.
Senator Rivest: Just as in Quebec, the CEQ (Quebec Teachers Corporation) raised the fact that the laws had not been enacted in English. It used that argument. But someone could ask for that in any case. It is hypothetical, but possible.
Mr. Newman: Yes.
Senator Rivest: It is hypothetical, but it could happen. I'm very happy that you are providing, as an official, some explanations. There is a political decision to be made that is not ours or yours to make.
I wanted to clarify the issue of enactments, of the publication and printing of laws. There are many references to section 133 in the Official Languages Act. The Government of Quebec, the Government of Canada and the Government of New Brunswick follow the same constitutional rules with regard to the enactment of laws. That is why I do not think that section 133 is the basis for the fact that laws must be enacted, published, etc.
It has been said repeatedly that section 133 and the Official Languages Act stipulate that the Parliament of Canada, the National Assembly of Quebec and the Legislature of New Brunswick must publish and print their laws in both languages for other considerations.
Perhaps I am mistaken, but the constitutional obligation of enacting and publishing is not based on section 133.
Mr. Tremblay: We are in agreement. We do believe that the debate may be ongoing. This bill is interesting. Section 133, section 18, the Official Languages Act, and even the Statutory Instruments Act are all neutral. If there is such an obligation, a court will say so at some point.
Senator Rivest: Let us say, hypothetically speaking, that the Government of Canada has not fulfilled its constitutional obligations. It is thus exposing itself to legal sanctions sooner or later, even if they are hypothetical. If it decides for administrative and financial reasons to not make the necessary corrections because that seems to be the government's decision, someone can ask it to do so or initiate a legal challenge, as there has been in Quebec, with ALCAN, for instance. This could be used by someone who follows our debates. In that case, the hypothesis could become a reality in short order.
Mr. Newman: Let's look at the Manitoba case again. All of that province's legislation going back to 1890 has not been translated and reenacted. Rather, Manitoba chose to translate laws that were still valid, where it was worthwhile to do so. It also chose private laws which created, among other things, the Société franco-manitobaine. The fate of the other laws was deemed to be a matter of judgment. One cannot say that the province did not respect its constitutional obligation by not translating certain laws it deemed obsolete. Invalid laws no longer have any legal effect. So to say that the Government of Canada is not respecting its constitutional obligations by choosing not to verify everything and translate everything, is quite a leap, with all due respect, because it is quite possible that we are in full compliance with our constitutional obligations, and that was the intent of the Official Languages Act of 1988.
Senator Rivest: That is your opinion, but could there be others?
Mr. Newman: No.
Senator Joyal: I would like to make a comment on the redundancy of section 18 with regard to section 133. There is a principle of statutory interpretation which states that a statute exists to say something and if legislators drafted section 18 in 1982, it is because they wanted to say something, and we must try to understand what they wanted to say.
In addition, Mr. Keyes, there is another fundamental legal principle: that which is incidental is ancillary to the principal provision, unless an exception has been made. In this case what is incidental are the regulations. They follow the legal nature of the principal, unless in the law that provides for the creation of consequential provisions, a specific exception has been made for the different nature of those provisions. I do not think that your reasoning to the effect that that which derives from the legislative authority delegated by Parliament to a minister or Governor in Council to make laws, changes the nature of the act. On this aspect, once again, there is an abundance of doctrine.
I would like to go back to section 4. If we were to suppose that the decision was to translate the regulation — if we found ourselves, for instance, in the same position as Manitoba, where the Supreme Court enjoined us to translate, if we wanted to be reasonable, rational and practical, according to your experience of legal administration in Canada, what approach should we choose? Should we begin with the departments whose regulations are the most useful to the majority — I was thinking of income tax regulations, because a witness told us that the income tax regulations were unconstitutional since they had been enacted in only one official language. I imagine that we should then have to determine the most useful regulations, those which concern the greatest number of people. Afterwards, we would choose statutes that have been consolidated, since those regulations are already known to us.
There are whole shelves full of consolidated regulations in libraries. We must disabuse ourselves of the notion that all of the regulations were thrown into the air and are floating about everywhere. The opposite is true; the vast majority of Canadian regulations is known.
Mr. Tremblay: Their case would be settled by section 3.
Senator Joyal: Exactly. Let us try to be practical and constructive in this debate. All of this considered, which approach would you advocate in a case like that one, while taking into account the costs and the workload that can be absorbed on a daily basis without creating chaos?
Mr. Tremblay: We have to be cautious. The bill which is before you today was examined by the Department of Justice. Interesting points of view were put forward. Our preference is already expressed in the bill. We are really talking about section 4, that is considered to be at the limit. We will have to see whether the suggestions that have been put forward are acceptable. The suggestion for instance of creating a duty for the Governor in Council cannot be effected through legislative drafting. The Governor in Council does not represent the executive. We cannot force the babinet to act in this way. It is a matter of language. A law could not impose a clearer obligation than the Constitution already imposes. We would have difficulties at the level of language, but the concept according to which a given action should be undertaken is positive, if that were the point of view selected by the committee. It is however not our first option. We would consider, rather, a second option similar to that which is currently before the committee. However, aside from restricting the obligation to previous acts — only acts from before the 1988 act would be involved — we could also conceive that to force the administration to act the revisions would have to be done within three or five years, failing which the enabling power that will have been created through this bill would lapse.
Yes, there would be some uncertainty, but the government would be willing to live with that uncertainty, knowing that all its legislative instruments were valid. This would probably be our second suggestion to the minister, before adopting a model to implement research that would have to be exhaustive to be effective. So, why have created section 3, a fine technique that garnered everyone's agreement and would apply to the vast majority of relevant texts, to then initiate an exhaustive research? One looses the advantage of it, to some extent.
These are fringe benefits and as you go down the scale, it is certain that the benefits for government decrease. The minister would have to decide how he wishes to proceed.
Senator Joyal: You heard the witnesses comment section 4(3)(b) — and I am repeating what they said:
(b) it is proved 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.
You heard at least two witnesses, among these the Commissioner of Official Languages, who referred to the Beaulac decision and who seem to have established very clearly in our minds that the substance of the instrument must have been brought to the notice of the person in the official language of that person, regardless of whether or not the person knows the other language. I believe the Commissioner of Official Languages sent a letter to the members of the committee which has not yet been tabled. She reiterates that element very clearly in page 3 of her letter, which she submitted after having been asked for comments when Professor Foucher testified.
The approach you propose is that of the government. Would you accept an amendment to section 4(3)(b) to recognize that particular aspect concerning the official language of the person, so as to give effect to the Beaulac decision?
Mr. Tremblay: Once again, as officials we must proceed with caution. We have no instructions from our minister in this regard.
Once again, it is a matter of perspective. The perspective of Professor Foucher and of the Commissioner of Official Languages on this matter is very interesting.
That being said, the approach or interpretation of the principles, or of the distinction between linguistic rights and principles of natural justice is debatable. In the Beaulac decision, Justice Bastarache indicated that there was a history of confusion between the two notions; one concerns understanding and the other the existence of linguistic rights.
He said: ``I would like to put an end to it, but obviously the debate continues as to where linguistic rights begin and where the right to understanding ends.'' I will not claim to solve this issue today. When new legislative instruments are enacted under section 4, the government will study the recommendations that will have been submitted to it in that regard.
Senator Beaudoin: I read Mr. Bernier's text. You do not arrive at the same conclusion on the issue of one year or two. I am very open. One year, two years, three years, it is not the end of the world. However, he is somewhat stricter insofar as the remedy is concerned. Sections 3 and 4 are very close to constitutional law. The Parliament has the right to legislate, of course, and in its domain, it is sovereign. He goes quite far, because he says that it is a ``deeming clause.'' The Supreme Court did so in the Manitoba case. This was accepted, it is a decision of the Supreme Court, it is as if it had legislated. Can we do the same thing? This is what we are attempting to do with sections 3 and 4. I agree that sections 3 and 4 are better than nothing. If I had a choice between doing nothing and accepting sections 3 and 4, I would accept sections 3 and 4. They are much better than nothing at all. But there in an unknown factor in all of this. The court could arrive at the conclusion that Parliament may not enact sections 3 and 4 without a constitutional amendment. That is the only problem we have. It is quite an extraordinary task, but the problem is to determine whether, when the bill is challenged — because it likely will be challenged — the court will not arrive at the following conclusion: yes, you have done a great deal of work, but you need a constitutional amendment for this to be considered as valid as the Manitoba decision.
The court may also say that this is delegated legislation. A decision has been handed down concerning the Manitoba laws. This basically concerns delegated legislation. Parliament has done what it could because Parliament may delegate legislation. In that sense, it would be valid. It is not beyond question. You go as far as possible, but I am not sure that this solves the problem which is before us.
Mr. Newman: Rather than the Manitoba example, let us look at the Sinclair affair in Quebec, for instance, where what was at stake was precisely a series of orders, letters patent and notices. In that case, the Supreme Court had given the Quebec legislature a year to re-enact the legislation and orders concerned. The Brunet, Albert et Collier case dealt with documents incorporated into back-to-work legislation in Quebec. The documents were in one language only and they had to be re-enacted in both languages. This law aims to comply with the Constitution by solving — without waiting for a Supreme Court decision in this regard — a situation that existed in the past and will no longer exist in the future. The question that is raised, thus, is the following: are certain measures valid or not? How will a court interpret such a law? Firstly, it will benefit from the presumption of constitutionality. There will be a reading down of the act if it goes too far in certain respects, but it will also be interpreted according to its pith and substance.
The pith and substance of the law mean that insofar as its effects are concerned, the federal legislation will be in compliance with sections 133 and 18 of the Charter with regard to the past. In this connection, Parliament and legislative techniques must allow it to comply with section 133.
It is useless when claiming linguistic rights to insist on procedures that are beyond the adoption of new procedures, beyond the publication in both languages or beyond what the Blaikie decision already requires since 1992. This does not serve the cause of promoting language rights. The bill wishes to establish the equality of both languages.
It is in that perspective that the bill must be looked at. If the 1978 consolidation had been examined by a court, as had always been claimed, would the court have demanded more than what has been done because they have adopted new rules concerning printing and publication in both languages? The bill aims to have both official languages respected, nothing more. I believe that all of that would have been taken into consideration if the issue had been brought before the courts. This was not done. Thus, the constitutionality presumption is at play here.
Senator Beaudoin: Yes, I would accept that. Perhaps the court would say: ``Listen, you have done everything you could. You attempted to validate, in a retroactive manner, regulations that had not been translated.'' This can be done at the governmental and legislative levels, and a bill is a legislative tool. Perhaps they will not go any further and will give their benediction to the bill by saying that this all that can be done at the legislative level.
Mr. Tremblay: As you know, our bill is modelled on the Quebec legislation. We considered the Quebec Superior Court's ruling in the Société Asbestos case which we referred to during our first appearance before the committee, and from which I quoted certain excerpts. One court has already examined the model for our bill and stated that it was quite reasonable for the government to create this instrument to right a historical wrong.
Senator Beaudoin: The Société Asbestos ruling was not appealed?
Mr. Tremblay: As I said on April 24, there was a request for leave to appel, but this issue was not debated by the Appeal Court and the appeal was denied on other grounds. This means that the ruling holds; the validity of the Quebec law was not questioned. The Appeal Court, which would have had the opportunity, had it wanted to do so, to question its bases, did not do so. The proceedings stopped at the Appeal Court level, and did not go on to the Supreme Court.
[English]
The Chairman: Trying to settle the dilemma that we have before us and in full agreement with the premise behind this bill and what it is trying to do, what, then, would be wrong with following the approach that they did in Manitoba, where they identified the regulations that were currently in use and were not in compliance with section 133 of the BNA Act and cleaned those up? One could do that fairly easily with an amendment along the lines suggested to us by the Standing Joint Committee for the Scrutiny of Regulations that added subclause (7) to clause 4, that any legislative instrument referred to in subsection (1) shall be deemed to be revoked on the day — 12 months, two years, whatever would be a reasonable period of time — on which this act comes into force unless the instrument is re-enacted under subsection (1) before that day.
That would give you the freedom you need to cure the problems with the regulations that are in constant use, which you must be fairly well aware of, and not to worry so much about the obscure ones for which you would have to search for hours. If those do arise and cause problems in the future, then a bill could be drafted to remedy the problems.
Mr. Tremblay: Two distinctions are important. Manitoba could have started with tabula rasa. It could have proceeded from the premise that none of its legislation past a given date, and none of its legislative instruments would be left behind. It could have had a wonderful project of society-building where it could have said, ``What laws do we need? Enact those. What regulations do we need? Enact those,'' and be done with it. However, in a sense, it undertook a bigger enterprise, but one that was much more circumscribed.
The second distinction is that Manitoba had the benefit of a court ruling that protected things that had been done under the laws that would cease to exist. It is not a course of action that we want to take, but unless a court decides that the federal regulations or legislative instruments are invalid and then grants us, temporary validity and the use of the other safeguarding doctrines of de facto and stare decisis and so on, and unless we have a judgment to that effect, if our exercise done under the model suggested by the Standing Joint Committee for the Scrutiny of Regulations failed in some way, and we missed one instrument somewhere —
The Chairman: You would then get a court instruction to do something.
Mr. Tremblay: In the meantime, how would we find out we had missed one? Someone would have find it, as in Alcan. Someone would challenge the fact that land may have been given to someone else or a licence given to a competitor. It would create the very types of uncertainty that we are trying to avoid here.
Someone suggested the other day that there is a "damned if you do damned if you don't" attitude. We are proceeding on the assumption that the government must take whatever reasonable measures it can to resolve an issue. We have done so in constant and repetitive phases from 1969, 1978, 1982, 1988 and post 1992 with the Manitoba Language Rights Reference. Our knowledge of this issue and the way we deal with regulation and regulation-making has evolved, but we cannot have certainty that the method we will use will be perfect unless we undertake a massive and complete search of government documents to ensure that the legal effects under these acts are protected.
The Chairman: If you are to undertake a massive search to ensure that these measures are protected, surely to goodness five years would be adequate. If you had not found these things after five years, they could be deemed to be revoked without any problem whatsoever.
Mr. Tremblay: There is certainly some reasonableness to the assumptions you are making. Again, however, we could make a mistake. When I called the legal services department of Revenue Canada to find out about these regulations that had been identified, the 1955 regulations, I found out that they had never looked at the 1955 regulations. They had a consolidation in 1978 and amendments upon amendments. The people who deal with this deal with documents that are contemporaneous today. They have no reason to go behind those.
However, a taxpayer may have a reason to go behind those documents. They may say, ``We have an argument we think is reasonable with respect to the tax regulations.'' Certain texts that are, perhaps, more arcane may have created a legal order upon which other texts have been built through the years. To believe that it is easy for federal regulatory authorities to know that these things have been built upon through the years is not an assumption that can be borne out by the facts.
The reality is we can be dealing with ancient texts that have, over the years, been amended, and so on. The original text could have contained a problem, an unsuspected problem. It is a question of degree of risk.
The Chairman: Well, more power to them if they do that kind of research, find the problem, and point it out. Then the government can correct it.
Senator Beaudoin: If a problem statute were referred to the Supreme Court of Canada in a reference case, nothing would preclude the Supreme Court of Canada from giving an advisory opinion that this mechanism is acceptable, and the court could give its blessing. That is the best thing to do, perhaps.
My first reaction is probably to say it is not the end of the world to go before the Supreme Court in a reference case. We have done it 125 times. This is big enough to be the objective of a reference case. The court may say, ``No, this is acceptable,'' or it may say, ``You need a constitutional amendment.'' However, the court may say it is acceptable for two or three reasons. Since it is a decision of the court, it is a constitutional reply. In my opinion, a reference case is a possibility.
The Chairman: If you ever said to the ordinary citizen of Canada that the Department of Justice is unable to spend the time and the money to find all the incorrect instruments that were enacted in the past, I think the ordinary citizen would conclude that the government is trying to hide something, and would question what it is trying to hide. I have some problems with that.
Senator Fraser: My difficulty is similar, though not identical.
For 35 years, public policy in this country has rejected arguments from private persons, institutions and corporations that it would be too costly to comply with the Official Languages Act. No organization in this country has greater resources and probably none has more battalions of lawyers than the Government of Canada. For us to fall back on an argument that, in my view, we rightly have rejected for everyone else in the country, strikes me as very difficult to justify.
That is a political statement. You do not have to respond to it. It is something I am finding harder and harder to avoid as we get further into this matter.
The Chairman: I will give you the chance to respond, and then we will stop for the evening and let you off the hook.
Mr. Keyes: The difference in what we are discussing here today is the extent of the obligation. On our part, there is no argument. If there is an obligation, it is a constitutional obligation. The government must comply, regardless of the cost. The question is: What, exactly, is the extent of that obligation, particularly, in terms of resurrecting instruments and republishing instruments?
In terms of trying to assess the extent of that obligation, we are suggesting that it is relevant to understand what it would take if the obligation were such. That is relevant to understanding and coming to a conclusion about what it is reasonable to expect the government to do and what a reasonable obligation is in terms of these matters.
That is the nub of the question: How far does the Constitution require us to go in terms of resurrecting these instruments?
Our position is the instruments you are talking about under clause 4, without any action by the government, are probably invalid. They probably have no legal significance. Are we talking about some sort of obligation to resurrect them? That is the nub of the issue here. That is where we are saying there is no obligation to resurrect them but if we do not resurrect them, then we, the government, must live with the consequences of a whole series of invalid instruments.
The Chairman: I believe that Mr. Tremblay told us that many present regulations may be built on the foundation of these unconstitutional regulations.
Mr. Keyes: That is correct. If that is the case, then the government will have to bear the responsibility of validating its current regulations.
Mr. Tremblay: To clarify that, many of those will have been consolidated. What we are dealing with will have been corrected through clause 3.
However, we are dealing with the anterior period, and I brought a Supreme Court of Canada case, Air Canada v. British Columbia, where the Supreme Court considered a similar issue of giving retroactive effect to legislation. People were coming back and saying, ``We want the taxes back that we paid on this previously ultra vires act.'' That type of situation might arise if we miss, if there are court judgments and if our technique is not complete.
Mr. Keyes' point is that, from 1978, 1969, 1978, 1982, et cetera, the corpus of federal legislation regulations has increasingly been bilingual. We are reducing the number, and people are aging. As regulations disappear from use and are replaced by new and valid regulations and instruments, a process that has already begun, the possibility that something arising from the past will come back will become a moot point. It began in 1969 and it is ongoing.
The Chairman: I hope we made you gentlemen aware that we see problems with this.
Thank you very much for your patience.
The committee adjourned.