Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11 - Evidence for May 29, 2003
OTTAWA, Thursday, May 29, 2003
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-12, to repeal legislation that has not been brought into force within ten years of receiving Royal Assent, met this day at 10:58 a.m. to give consideration to the bill.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: We begin hearings today on Bill S-12, to repeal legislation that has not been brought into effect within 10 years of receiving Royal Assent.
We have before us today, Senator Banks, who needs no introduction except to say he is the sponsor of the bill.
Hon. Tommy Banks: Honourable senators, I will not bother you with the provenance of this bill, except to say that I certainly would not have had the knowledge or foresight to come up with it if had not been brought to my attention by a constituent, who inquired why a bill in which she had a particular interest had been passed by both Houses of Parliament and received Royal Assent but nothing happened.
Since I was a new senator, my initial reaction to that was to get all huffy and say there is either some bureaucrat or some person in cabinet who feels above Parliament and is thwarting the will of Parliament — and Parliament is supreme, is it not? My then-assistant, who knew a lot more about these things than I do, suggested I should read the entire bill, including the little pieces at the end. I did that and found the coming-into-force provisions.
I then asked how many acts of Parliament there are extant of which that is true; that is, were passed by both Houses of Parliament, received Royal Assent and are sitting there not having been — or parts of them — brought into force. The answer is a substantial number, 47 by my most recent count.
It occurred to me that, in some of those cases, many of which date from approximately 1985, although some go back further, they are acts of Parliament which may have been seen to be useful in the back pocket of the government at the time, and kept for when appropriate and useful.
I understand that any government needs to be able to do that, and sometimes needs to be able, because of other conditions precedent, to say that they will bring this part of the bill into force when this or that happens. I understand that that flexibility is needed. I also believe that the circumstances that obtain when a bill is conceived of and written will be different 10 years after the fact. There may be circumstances in which we should take a second look at the application of a bill if it is being brought into force 10 years or more after it has been given Royal Assent. That is the reason for my drafting this bill.
The bill, in its present form, says, in effect, that if an act of Parliament, or any part of an act of Parliament, has not been brought into force nine years after it received Royal Assent, then the Minister of Justice must place it on a list that must be laid before both Houses of Parliament during the first part of a Parliamentary session. Absent action in respect of it, the act will, perforce, be repealed in the following year.
This does not remove that act, or part of the act, from the arsenal or quiver of the government, because if the present government, or any government 10 years or even 50 years hence, wishes to bring it into force, they can do so. They can do that the following afternoon, or on December 31 of the year in question. This does not remove the flexibility of the government to retain the act, or the part of the act, that is on that list. All the government needs to do is to bring it into force.
However, in the absence of such action, the government of the day would be obliged — and I think that this is appropriate and proper — to come back to Parliament, to revisit the act. I think it is appropriate and prudent that Parliament should then be able to look at that act as though it were a new one and determine whether the situation that obtained 10 years previously, when it was passed by Parliament, still obtains and whether the act in its then present form is still appropriate or needs to be modified.
This is not a removal, in my view, of the flexibility that governments must have to keep acts in their back pocket and to bring them into force when all of the ducks are in a row. In my view, the number of years for which a government ought to be allowed that flexibility is subjective. I happen to have picked 10 years. My first thought was five years, but a government needs more flexibility than that. Therefore, I have arbitrarily picked 10 years as the magic date.
Having said that, there are some amendments that I think should be made. Before I get to them in particular, I will tell you that I have had conversations with the government House leader, Mr. Boudria, to whom I sent this bill when it was first drafted and before I presented it for first reading, to obtain his reaction to it. He took the time, for which I am very grateful, to have some of his staff and officials examine the bill and run it past a number of other people in other departments.
The minister told me that they found some resistance to the idea of this bill on the part of bureaucrats. They see it as removing arrows from their quiver. However, at the political level, neither the minister nor any of his colleagues had any misgivings about the bill and thought that it was, if I have read him correctly, a good one.
I also met with officials of the Department of Justice, since it is the Minister of Justice who would be responsible for bringing the lists to which the bill refers to both Houses of Parliament. The justice department officials have made suggestions for some amendments. I agree with some of them and I will call those to your attention.
To dispose of the no-brainers, if I can put it that way, first, there is a technical amendment to the English version that would align it with the usual drafting conventions, which I did not observe when I drafted the bill, and with the French version. That would be to replace the reference in lines 18 and 21 of the bill that say ``not brought into force,'' with the words ``was not in force,'' in order to be consistent with conventional drafting language and to make the French and English versions also consistent.
One concern that the Department of Justice had originally related to the Minister of Justice's ability to evaluate the effect of repealing those acts that fall under the responsibility of other ministries. However, after our meetings, and after further consideration, the Department of Justice now believes that issue can be properly addressed administratively and need not be of concern to us.
One amendment that they have suggested, and with which I absolutely concur, relates to keeping Canadians informed of these statutes and provisions of statutes that are to be automatically repealed. It would be advisable to require that a formal notification be placed on the public record, and the logical place would be in the Canada Gazette.
I would propose an amendment that would, I think, be clause 3.1, which would say that the Minister of Justice shall publish in the Canada Gazette a list of every act or provision repealed under clause 3, after the fact, so that we all know that it has been done.
I will tell you about two other amendments proposed by the Department of Justice with which I disagree.
The first relates to statutes that are only partly in force — and I do not actually disagree with this one. I will leave it to your committee, which is much better equipped than I, to make a judgment call on this. There are some of those in the list that you all have. It is a list of statutes that would, if this were to happen today, be affected.
The proposal is that an act or provision is excluded from the application of proposed subsection 1 of this bill if it is in force in respect of anything or in any part of Canada. There are some parts of some acts referred to in this list that are in force in some parts of Canada and not in others. It may well be the case, and I will leave it to you to decide whether to consider this amendment, that those statutes that are in force in some parts of Canada but not others should be left alone.
The second request of the Department of Justice for an amendment is one with which I do not agree. It is related to the possibility of a provision not yet in force being amended, which is not an uncommon occurrence.
The Department of Justice recommended the delaying of the automatic repeal until 10 years from the year of the amendment. That could be achieved by including a paragraph in proposed subsection 2 (b) that it did not come into force on or before that December 31 and was not amended by an act that was assented to less than nine years before that December 31.
I object to that proposal and would vote against that amendment because it would obviate, if a future government were the least bit Machiavellian, the entire purpose of my bill. The government need only introduce an amendment, merely a word or a comma, and that would put the automatic repealing of that bill 10 years further out. That would be a bad idea. It would be imprudent, and it could result in an escape mechanism that would be counter to the intent of the bill.
To reiterate, it is not the intention of this bill to remove a government's flexibility or the capacity to keep an act of Parliament in its back pocket to bring into force when certain other conditions precedent have happened.
It is my contention that 10 years is enough. If an act has received Royal Assent and not been brought into force for 10 years, it is time to look at it again. Failing that, it ought to be repealed.
Senator Beaudoin: I agree generally with the principle of this bill, but there is one thing that we have not discussed.
For many centuries, the legislative branch was the most important. This bill relates to the legislative branch and to the executive branch. We would give much power to the executive by leaving something as is for nine years.
We could provoke a vote of confidence in the House of Commons on this. The executive would have to answer to the legislative branch. However, it is a power that has existed for many centuries in the executive branch of the state.
The Criminal Code is worrying me a little, because if we legislate on the degree of offences, the legislative branch would be doing that for the very obvious reason of wishing to be more liberal toward the accused. The executive may choose not to react for 10 years.
How do we solve that? We may solve it by a debate or a vote of confidence.
Perhaps 10 years is too long for criminal law. If it is something like circulation sur les biens de l'État, if it is a statute that is amending the Criminal Code in favour of the accused, perhaps 10 years is too long.
What is your reaction to my comments?
Senator Banks: Some parts of the Criminal Code are referred to in the list. None of those that have not yet been brought into force, however, are examples of the kind of statute that you have described. That is to say, the government has not, as far as I know, failed to bring into force any part of the Criminal Code that would have the effect of liberalizing the penalties under the code.
I would hope that Parliament would not tolerate that and would do something about it.
This is a stopgap measure to say that even if some future government were to fail to bring into force a part of the Criminal Code, or any other statute that would have the effect of liberalizing or strengthening it, there is a failsafe at 10 years. It may well be that prudence would require that a clause of this bill say that in respect of the Criminal Code only, a certain other limit applies.
I do not know. As I said earlier, I picked the 10 years arbitrarily.
A balance has to be found, senator. A government must be able to govern.
Senator Beaudoin: Ten years for laws is fine with me. However, I have a problem with it in respect of the Criminal Code.
Ten years is too long. Do not forget that the Charter of Rights and Freedoms applies both to the legislative branch of the state and to the executive branch. I have no case on this because there simply is no case. Perhaps the court will decide that 10 years in criminal law is too long and we should, therefore, restrict it. That is my only concern. I agree entirely with the rest of the bill and with the amendments that you have put forward.
Senator Banks: It would be fairly easy for you to draft an amendment such that the Criminal Code needs to be addressed. You know this better than I, but for the record, many of those acts that show ``1985'' in this list are a good deal older than that. They show 1985 because they were revised then.
Senator Smith: My apologies for my late arrival. If you answered these questions earlier, please advise me and I will read the minutes.
Do you have examples of prejudicial, negative, unfortunate incidents that would not have occurred if such proposed legislation as this currently existed?
Senator Banks: No.
Senator Smith: Have you ever heard of any?
Senator Banks: No, I have only had them in my mind through reading this list. I certainly do not pretend to know enough about their potential application, except to say that generally, I believe that if a government has not brought an act into force for 10 years, then it needs to be looked at again.
Senator Smith: I do not quarrel with that, but I am curious. Senator Beaudoin said that he was aware of some. Perhaps he could fill us in.
Senator Banks: For example, there are aspects of the first one on the list, the Aeronautics Act, which simply deal with a situation that no longer applies. It is a different game today.
Senator Smith: I am not talking about that so much as about whether a prejudicial incident occurred that would not have occurred with the proposed legislation in force.
Senator Banks: Not that I know of.
Senator Smith: You have answered that. What about other jurisdictions? Are you aware of other legislative jurisdictions that have such legislation, or is this circumstance cutting edge? I am always open to the cutting edge and new ground.
Senator Banks: I have not asked that question and I have not researched it. I do not know the answer.
Senator Smith: With what speed will we deal with this, Mr. Chairman? Perhaps staff could determine whether there are other jurisdictions that face this situation.
Senator Cools: It is quite common. I agree with you that the problem is common. However, we do not have any knowledge of other jurisdictions in this respect.
Senator Smith: I am trying to get a handle on this.
The Chairman: We have approached the Department of Justice officials to ask if they would like to appear. I am certain that they could answer some of these questions.
Senator Smith: If they do not like this, they may not try so hard in their research.
The Chairman: There is a law professor from the University of Ottawa, Ms. Sullivan, who will probably be appearing as well.
Senator Smith: This is my last question. It would seem to me that when you reach that last year, one of two things happens. Either it is proclaimed, according to this, or, at the end of the year, it evaporates like mist on a hot day at noon.
Senator Banks: Exactly. The colloquial would be: ``Use it or lose it.''
Senator Smith: Is there a third option? If it is reviewed and we are not ready to either proclaim it or have it evaporate for solid policy reasons, is there another option?
Senator Banks: Parliament is supreme. If the ministry comes before Parliament, asks it to do something and Parliament concurs, then that is the answer.
I am not sure that a mechanical means of doing that should be included in this bill because I am not sure that one such application would apply to all of the different examples.
Senator Smith: Well, that could be an idea: where there is uncertainty, we could put it on a list that would be reviewed annually for the next two years. I am thinking out loud and not jumping to any conclusions. However, when Parliament is not quite ready to bring it into force for valid policy reasons, but it may be in a year or two, then perhaps it could add the legislation to a list that would be reviewed each year.
Senator Banks: If I were the minister in that case and I wanted to keep the bill, then I would say that I would come back with respect to RSC-20, and because it will disappear and I need it, we will now call it Bill C-21. Thus, it is a new bill that will repeat the original. My point is that, in answer to your question, I believe that the government of the day, whatever it is 10 or 20 years hence, ought to be obliged to come back to Parliament to do exactly what you are talking about, and that Parliament, and no one else, ought to be able to decide whether that continuation should occur.
Senator Smith: If that were to happen in many instances, and if there were obstreperous opposition for any reason, it could result in a great deal of legislative delay. I am not leaping to any conclusions, but I am probing with an open mind the basic merits of your sound suggestion.
Senator Andreychuk: You mentioned the justice department in your assessment when you said that there was a resistance to this bill applying to statutes that are not fully implemented.
Senator Banks: They are enforced in some parts of the country but not in others. I am sorry to interrupt you, senator, but many of the things referred to on this list are not complete acts but simply sections of acts. I think they recognized that if a section of an act has not been brought into force within 10 years, perhaps it should go away or they should look at it again. That is what it boils down to. However, the justice department's reservation, as I understood it, was not that a section of an act ought not to be repealed, but that it was in force in one province but not in another. The question was whether there should be something to state that although it is not in force in Saskatchewan, it is in force in Prince Edward Island, so perhaps that section ought not to be repealed. That makes sense to me, but I do not know enough about the mechanics of this to know how to fix it.
Senator Andreychuk: There has also been a recent development. I understood that governments delay enactment because there are certain administrative things that need to be in place or certain actions that need to be taken. Certainly in the years that I have been here, there has been a trend toward acts seeming to come from nowhere, and the relevant department is seeking a longer time rather than a short, one- or two-year implementation period because of negotiations with the provinces, et cetera. That has given me some trouble. It certainly came to a head and concerned me very much when we had Bill C-23 before us, which contained a clause that dealt with Aboriginal women's rights.
I do have to refresh my memory. I may be a little inaccurate in my recollections, but I believe the department indicated that they would not be enacting that section until such time as they could negotiate with Aboriginal leaders to ensure that women's rights would be afforded. I was very frustrated at the time because it was not a new issue; they should have known about it. It had been before the courts for years. The courts had said that women, not just on reserves but all Aboriginal women, should be afforded the full rights under the Charter of Rights and Freedoms. The government was saying that they needed more time. I think the Aboriginal leaders said, yes, they would negotiate, but they needed more time.
Consequently, we passed legislation saying that those particular sections would not be enacted until certain conditions were met. Have you reflected on that kind of situation, or have Department of Justice officials discussed that with you?
I have not done any analysis to see if that was an isolated case or if there are more. It seems to me there was a trend toward longer enactment periods and exempting of certain sections because we had not done our homework. In some cases, the action was legitimate, but in other cases, if I may be frank, it was just further delaying an uncertain issue.
Senator Banks: Neither the justice department nor anyone else discussed that particular issue of the rights of Aboriginal women with me. However, in reference to the thrust of your question, I am not unmindful of the fact that this bill, if it comes into being, would not only clean out the attic, so to speak, but would also have a salutary effect on the situation that you described. The government would know that this limit existed and that could be a spur to action. For a start, bureaucrats can say to their respective ministers that a certain arrow in the quiver will be lost in three years if something is not done about it. I am speaking colloquially here.
I believe it will act to clean up detritus, but also as a spur to help ensure that a government will not treat an act with a cavalier attitude that, in a sense, is getting in the way of the will of Parliament. That is what it boils down to. Parliament has passed an act — hello!
Senator Andreychuk: That leads me to my second question. I am far removed from law school.
Senator Banks: Not as removed as I.
Senator Andreychuk: We will compare notes later. I have thought about the thrust of the bill. What if they will not enact the bill? I always take it that the bill is the government's, but when it becomes legislation, it is an act of Parliament and therefore the government must enact it. If we have a carte blanche kind of act that is triggered by the minister, are we, constitutionally, delegating something we have no right to delegate?
Senator Banks: I do not think we are delegating anything.
Senator Andreychuk: We could repeal them act by act. We could repeal the Aeronautics Act, for example, or the Agricultural Products Act. Perhaps we could even do all the acts en masse. We could even set a time limit for the cleanup. I am concerned about the future. Is it within our constitutional rights? I am not an expert on that.
The Chairman: We may have someone appear before us who may be able to answer your question. However, are we constitutionally correct to try to bind future Parliaments as well?
Senator Banks: This is not a constitutional amendment. Future Parliaments could repeal this proposed act.
Senator Beaudoin: Two branches are involved here, executive and legislative. When the legislative branch is speaking, the executive should listen. That was my point from the beginning. This is why, in criminal law, it is certainly unconstitutional. The criminal law should be applied as soon as possible. That is another thing.
Senator Banks: I agree. I would hope that no one would find that this bill, in whatever form it might evolve, would be any more unconstitutional than any other bill. All bills deal with something that will happen in the future. Every act of Parliament deals with something that will happen in the future.
Senator Andreychuk: This is delegating discretion to the executive, which is within the purview of Parliament, but we want to be sure it is constitutionally sound. It may be. We should hear from a constitutional expert. If it does not comply with the Constitution, how do we make it comply? The intent is desirable. I have not heard anyone say that it is a bad idea or that we should not do it. We are all saying that is what we want, but we must be sure it is on solid ground.
The Chairman: That is a good point, Senator Andreychuk. We will endeavour to have someone come before the committee to whom we can put those types of questions.
Senator Joyal: When I read the bill just before coming in, I, like Senator Andreychuk, was remembering my years at law school. I was saying to myself that what we are doing with this bill, especially with clause 3, is bringing in what we call, ``une clause de péremption obligatoire.'' How do we translate that? It is more than a sunset clause. It is an expiration. Let me use an example from ordinary life. If you buy some yoghurt with an expiration date of June 3 and eat it later than that date, it is at your own risk. Here, the expiration would be automatic for all the legislation. In other words, there is an element of automaticity in clause 3.
That raises the issue of the capacity of the executive government to maintain the availability of some powers granted to it through legislation if a certain set of circumstances happens in the future. Your bill has the very sound objective of cleaning up the books. There is a preoccupation with the fact that Canadians should not be led to believe that some legislation is in place when in fact it is not, and that government should automatically lose that power after a certain period of years. The proposal has a lapsing quality that we would put now in any legislation and a date would be set.
In terms of watching the executive government, I was in the House of Commons for ten years and have been here for almost six years. I have seen many bills with clauses that the government deemed not to be useful until certain things happened. In such cases, the government might have to take certain actions, including coming back to Parliament.
Let us take the Emergencies Act as an example.
The government does not have those powers. If a set of circumstances occurs, the government can trigger those powers. It is fundamental to the maintenance of law, order and good government in Canada.
When Parliament granted specific responsibility to the executive, it might have taken into account those sets of situations that we do not know when and how they might happen. When you put in the pre-emption clause of 10 years and it expires, it would mean that if the government has not proclaimed some sections of an act, they would have to reintroduce the provision to reinstate it. The direct consequence of proposed section 3 would be to compel the government to reintroduce legislation.
I have not gone through all 47 statutes that you have given us. It is helpful that you have given it to us in that way. It would compel the government to reintroduce that legislation.
Senator Banks: That is correct.
Senator Joyal: For me, it raises a problem in terms of those special powers that the government might need that are not used except in certain sets of circumstances. As Senator Andreychuk has mentioned, the government has to suspend some provisions of bills pending negotiations with provinces, Aboriginal peoples or foreign governments. We all know that those kinds of clauses exist in many bills.
Where is the right balance between housekeeping and being able to trigger certain powers? We all agree that statutes get dusty on the shelves and should be cleaned up. On the other hand, there is no doubt that governments should have the ability to trigger a certain capacity to enact some regulations, for instance, and not have to go back to Parliament. There are cases where we think that those powers are an exception to fundamental principles, either Charter principles or institutional principles, and that the government should come back to ask Parliament to do that.
I am not trying to create worst-case scenarios. I am trying to understand the corridor in which we will put the government in the future.
The title of your bill is generally very convincing — an act to repeal legislation that has not been brought forth within 10 years of receiving Royal Assent. In principle, we all think that those obsolete things should be cleared up. However, when we look at legislation that has granted specific powers to the government, the probability of the need has not necessarily disappeared after 10 years.
I feel that there is some will to look at the list of those bills and see what kind of impact there would be if a 10-year rule were applied. If the proposed section 3 had been in force today, what would have happened in practical terms to all those bills? In other words, submit the test that you propose to those bills, and see if we would deprive government of authorities that are not threatening to Canadians, but are in fact there for peace, order and good government, in case some unforeseen situation happens to pop up in the future.
I am trying to reconcile your objective, which is very sound, with the margin of authority that the executive government has to have in implementing a particular policy or responsibility.
Senator Banks: Honourable senators, I cannot talk about the constitutional aspect and whether it is appropriate for this act or any other to bind future governments to certain things. However, before writing this, I carefully considered the automatic nature of the matter. My first suggestion was to make a list of all the bills, bring in a repeal act and they would be gone. That would be easy.
I was also mindful, as I said in my response to Senator Andreychuk, about the spur that could be applied to governments in some cases to not treat legislation with disdain.
You used the magic word, and it is ``balance.'' On the one hand, the effect of this bill, were it in place, would be to constrain the flexibility of a government with respect to the length of time that it can keep a bill out of force and be able to bring it into force on a moment's notice, given that something has happened.
On the other hand, the less desirable side would be to remove that flexibility from the government.
As I said in my opening remarks, I recognize that government must be able to govern and that there are many circumstances in which the government needs to retain great flexibility. The length of time that I happen to have chosen is completely arbitrary.
However, my argument in response to yours would be that ``the son'' of the War Measures Act is in place. It has been proclaimed. The Emergency Measures Act has been proclaimed. We trust that the executive will not act on it, except in certain circumstances.
Those acts are in force today. We do not run around putting people in jail willy-nilly or publishing lists of names saying, ``These are bad guys,'' but those laws are in force. It is right, in the circumstances that you described, and to which Senator Andreychuk referred, simply because of a demonstrable and irrefutable change to the landscape in which the bill was first introduced, that there should be a time limit.
Notwithstanding flexibility, a government should have to come to Parliament and justify the need for a certain piece of legislation. In each of those cases, there would probably be some tinkering done to bring that section of that bill more in line with the circumstances of the day.
The government should have the flexibility, in extraordinary circumstances, to do things that it would not otherwise do. I do not agree that holding a bill and not bringing it into force is the right way to do that.
The two examples I will give you are the son of the War Measures Act and the Emergency Measures Act — they are both in place. They are in force. We know, or we trust, that the ministry will not apply them except in extraordinary circumstances, but they are in force.
Senator Joyal: I am not contending that the national emergency act is not in force. I know very well that it is in force because it was used. We all know that.
I am saying that if I were in the justice department — and I do not want to speak for them, because most of the time I would debate them — I would try to find a way around it, because they draft legislation. If they would ask Senator Smith or Senator Jaffer or any one of us around the table, how could I get around clause 3 of this bill, they would say, ``notwithstanding section 3 of the act, those powers will remain in force for'' — when it is a limited time.
Senator Banks: That would be called to the attention of Parliament.
Senator Joyal: They would say, notwithstanding any other act, this bill is this and so on. In other words, they would still be able to go around it.
Senator Banks: If Parliament agrees.
Senator Joyal: Yes, but we all know, especially you, how government governs in the other place and in this place — how they try to get their legislation adopted. Sometimes, that legislation is written in such a way that it is very difficult, even for us around this table — some bills have one section that is 17 pages long, for example — to understand it. We were witnesses here to the fact that — and Senator Andreychuk and Senator Cools will remember — we adopted a bill that was a clear contradiction of another bill, and nobody saw it. The Department of Justice found it six months later, and it was their own legislation.
We start with the presumption that what the Department of Justice proposes has been submitted to all the tests in the system, so that when it comes to us it respects other legislation — that it is just an example to show you what we have done. That is essentially the point; that I would need to, in fact, put proposed section 3 to the test of reality. In other words, if we applied pre-emption to all those clauses of bills — the 47 that you gave us — to the test of clause 3, what would be the practical result? Would we find ourselves, in some specific circumstances, in dire straits?
I am not opposed to the idea of cleaning the shelves. I think it is a worthwhile objective. It is how we do that in a way that protects the capacity of the executive government to respond to a specific set of circumstances that might occur when Parliament is not in session, and when it would be too difficult to go through all the processes of consultation and so forth. That needs to be put in place, and we all know the system. To me, that point should be clear — making sure that we respect the executive prerogative, as I say, to govern for the peace, order and good government of the country.
Senator Banks: I agree with that. I suspect that, down the line, if this were to come into force, we would find that in 90 per cent of these cases, it would be inconsequential and very easily solved. However, in others, it would be an inconvenience, at the very least.
I think that is a small price to pay, if I can put it that way, since this will not happen without notice or without a lot of options. This will not happen without 10 years' notice to the government and, if the bureaucrats are doing their jobs, continual reminders that we are going to lose this if we do not do something about it.
Even on the 11th hour of the 11th day before this happens, the government can proclaim the legislation — bring it into force — but not necessarily apply it. I think that the good that the bill would do, both in terms of cleaning out the attic and as a reminder to government that it is Parliament that makes law — notwithstanding that they have to have a degree of flexibility in applying it — would outweigh the inconvenience, if I can use that word, of obliging government to come back to Parliament if something needs to be kept in force after 10 years. It is a small price to pay.
However, as to the legality and the constitutionality, I agree with the idea of applying each of these — and taking the time, by the way, to apply proposed section 3 — and say, what would be the effect? However, we would also have to take some time — and I think it would be wise to do this — to apply it not just to the bills on this list; these are here because they are more than 10 years old. How about the legislation that we passed last year? We need to look at that too, and find out what the effect of proposed section 3 would be on it.
Senator Joyal: Of course, that is part of the overall outlook.
Senator Cools: I would like to thank Senator Banks for his initiative and for his obviously considerable work in bringing forth this bill.
I would also like to lend my support to it. Perhaps there are one or two elements here and there that should be improved, or will be improved, and Senator Banks is obviously open to improvement. However, the intention of this bill is extremely sound and, I would add, very necessary.
I have had the opportunity to serve in this chamber with some people who used to be viewed as some of the mighty minds of the law in this country — people like Dan Lang, for example, and even Jacques Flynn. The issues that Senator Banks has brought forward have preoccupied many of the great legal minds that used to serve in this place. The whole phenomenon of proclamation dates that are so wide open as to be 20 or 30 years in the execution is really alien to the notion of Parliament.
I understand some of the concerns, but I think that the thrust of this is very much in order and very much needed. We must remember that 10 years is a long time in the history of this administration; 10 years is three Parliaments later. Therefore, it is unparliamentary, in a way, that something is being proclaimed 10, 15 or 30 years after those Parliaments have given up the ghost and long expired.
If you go back into the mists of time, when a bill would come into force at a date to be fixed by the Governor in Council, the intention was a few weeks down the road, or a few days down the road. The intention was never 20 years down the road. The question you have to ask is, after the complexion and the composition of Parliaments have changed, how is it that laws are being brought into force that, if a particular Parliament were to look at it, it would come to a different opinion? That is the principle at which Senator Banks is looking.
How long does it take for the will of Parliament to become law, to go into force? I think it is a very profound point, because I have sat here for many years and I can tell you I have seen a lot of questionable things pass into law and a lot of novelties that went unnoticed.
I understand Senator Joyal's concern about flexibility, but my experience with the Government of Canada is that it is not short of the flexibility to get any bills that it wants through two Houses. I have seen them do it with remarkable ease.
There are a number of phrases here that I would fine-tune. The drafting could be greatly improved. However, if a statute, an act of Parliament that has received Royal Assent, is still sitting there and has not been called into force 10 years later, I think Parliament should take a look at it. I would submit that this list that you have provided is the tip of the iceberg.
I know of a troublesome one in another jurisdiction. This particular bill was given Royal Assent in one provincial jurisdiction, and then, because something did not happen, the other government chose not to put it into force and to proclaim it. This is what Parliament has to guard against; we need to understand clearly that what you are talking about here is the will of Parliament.
In addition, I am of the opinion that once the government has a majority of supporters in the two Houses, they will not face any problems in renewing any segment or any section of a bill. I just wanted to let Senator Banks know that his preoccupation is not a new or a novel one. It has bedevilled many for a substantial amount of time. Hopefully, Senator Banks will pursue this.
I think we should have a wide range of witnesses on this. I am particularly interested in obtaining some insights into why, for example, some of these bills or provisions have not been proclaimed. Over the years that I have served here, we have inquired about different clauses in bills and been told that it is there just in case, or whatever. The explanations are usually satisfactory because we know, and a group of witnesses from the department actually told us, they did not want to come back to Parliament for donkey's years. Governance is not supposed to be conducted without Parliament, at least in our system, although there may be some who question that, even today.
To come to my question directly.
You said that it was the Department of Justice, and I was somewhat saddened that it was the Department of Justice rather than the minister. This is another thing. I have been here for years, and we used to deal with ministers when making amendments and not staff. That is neither here nor there.
You said that in clause 2(b), they wanted you to change the words, ``had not been brought into force,'' to read, ``was not in force.''
The long title of the bill contains the same words, ``that has not been brought into force.'' Clause 2(b) is a repetition of what is in your long title. If you are accepting their proposal, were they proposing to amend the long title, too?
I am not sure I was clear. The long title says, ``an act to repeal legislation that has not been brought into force,'' and clause 2(b) says, ``that had not been brought into force.'' Why is the wording acceptable in the long title and not in the substantive provision?
Senator Banks: It would not be. I did not pay attention to that. For the sake of consistency, both with respect to the content of the bill in each of the languages, and also because, as they pointed out, if was not consistent between the English and French versions in the body of the bill, it would also not be within the title. I presume that it ought to be changed.
Senator Cools: I noted that inconsistency.
Senator Banks: An oversight.
Senator Cools: My other question has to do with clause 3. The intention of that clause is to make sure that Parliament speaks again if a sufficient body of time has elapsed?
Senator Banks: Not necessarily, because, looking at clause 3, if on December 31 of the year in question the government brought the act into force, the bill would not affect it at all. I expect that if the government brought an act into force on December 31, it would call the matter to the attention of Parliament, but not to the high attention of Parliament. That is not quite the object. The object is to say to a government in the future that if they keep it beyond December 31, then they must bring it to Parliament's attention.
Senator Cools: What I am trying to say to you is that this is one remedy that you have proposed to deal with something that is a huge problem. Many senators with whom I have had discussions over the years have wanted to limit that clause that occurs in some bills, ``to be brought in at a date to be fixed.'' I have known senators who wanted to say, ``at a date to be fixed within three years of Royal Assent,'' for example, because there has been a lot of concern that the time is too wide open.
I just wondered if you had wrapped your mind around fixing something like that in that individual way, within each piece of legislation as we pass it? In other words, you would be inviting senators and members of Parliament to scrutinize more closely the use of those words in every individual act.
Senator Banks: Precisely.
Senator Cools: Have you also considered the possibility that, depending on the particular act, those clauses would include that the bill is coming into force on a date to be set by the Governor in Council within X months or X years? To my mind, what would happen here is, if the government did not act within that time frame, they would have a few problems. That is one solution. I am wondering if you contemplated it? I am not necessarily suggesting it, but such a solution would be speaking to each individual act rather than to a blanket action. I think a blanket response is always a little anxiety-provoking.
Senator Banks: I thought about that a lot.
Senator Cools: Good.
Senator Banks: That clause or section of every bill or act, which is called the ``coming into force,'' would, I think, have attention called to it by this bill. I would think that members of both Houses of Parliament would pay very careful attention to it. There are a number of things that that coming-into-force clause could say, including that it must come into effect within X years, and including ``notwithstanding Bill S-12, the repeal act, it will not be affected by it.'' It will be called to the attention of Parliament and more attention will be paid to it, in both a forward direction and backward in time. That is precisely the purpose.
Senator Cools: That is your real intention with the bill?
Senator Banks: Exactly.
Senator Cools: I would not mind hearing specifically from the Minister of Justice on this particular item of perhaps limiting the proclamation clauses within individual bills. I would not mind either obtaining some insights into how those clauses have been used over the past 50 years.
People will tell you that many clauses are routine.
The Chairman: Senator Cools, I do not want to cut you off, but in the earlier part of our hearings we did say, for many reasons, and you have raised another valid one, that we had requested the Department of Justice officials to come to committee so that we could put some of those points to them. Indeed, that is our intention.
Senator Cools: I am posing a particular question about using a general clause.
The Chairman: We may well want the minister to come and answer it.
Senator Cools: You are dealing with the direct relationship between Parliament and the minister. There were many of these great powers of discretion being handed out over the years that were intended to last for a few weeks, and they have dragged on for years. It is time to look at it. I commend your effort.
Senator Banks: In a quick response to Senator Cools, getting the present minister and department officials in and telling them that we would rather that they dealt with this by constraining the coming-into-force time would be a good thing in the short term.
In the long-term, I do not know what the next Minister of Justice or the Minister of Justice 25 years hence will have to say about that. We need something like this.
Senator Cools: We do need something, especially to clean up the past.
Senator Jaffer: Senator Banks, this is an important step that you have taken. I agree with you that if a minister wants an act in force and has a deadline, he will bring it into force the day before that deadline. It would not be an issue.
What if a bill is 20 years old? Is there a retrospective? Should there also not be a grandfathering of bills that are older than 10 years? Will there be a list of bills that would be dead were this bill to be proclaimed?
Senator Banks: No, this bill only refers to acts of Parliament that have received Royal Assent and have not been brought into force. The bill in its present form would capture any act of Parliament, whether it was 10 years old or 50 years old.
Senator Jaffer: I did not put my question correctly. Say an act is 20 years old and it has not come into force.
Senator Banks: It is on this list.
Senator Jaffer: It is more than 10 years?
Senator Banks: Ten years or more. This bill, as it is written, would include any act from —
Senator Jaffer: — which is 10 or more years old.
Senator Banks: — and has not been brought into force.
Senator Smith: Perhaps the point Senator Jaffer was getting at is that no bills would expire automatically without them coming to the attention of Parliament at least once.
Senator Banks: That is right.
Senator Joyal: That is not what clause 3 says.
Senator Smith: That is a very desirable thing. None of them are evaporating automatically without Parliament having them brought to their attention at least once.
Senator Banks: Is that not so, Senator Joyal?
Senator Joyal: It should be clarified. We all understand your objective, and there is consensus on the desirability of that objective, Senator Banks. It is, as I said, ``le clause de péremption automatique.'' You do not have to look into it. It immediately evaporates through the lapsing of time. Legally, there is an element of reassessing the impact of the bill.
Senator Banks: That is true, but that happens nine months after notice has been given to Parliament.
Senator Smith: That applies if it is coming to its 10th birthday. What if it is 25?
Senator Banks: Proposed section 2 says that the list will be laid before Parliament. It will detail acts that were enacted by Parliament and received Royal Assent nine years ago or more. There is at least nine or ten months' notice to Parliament before this happens.
Senator Jaffer: What if a bill has been sitting there for 20 years?
Senator Banks: Then it would be on the first list that Parliament would receive. If this bill came into place, the first list that would be placed before Parliament and the government would be a long one.
In the second year, it would be a short list, and it would be a short list forever thereafter. In the case of each act of Parliament to which this bill would apply, and before repeal would occur, Parliament would have at least nine, and most often ten or eleven, months' notice that that would happen.
Senator Joyal: On this very point, Mr. Chairman, I think colleagues will remember, when we were discussing the bill on regulations that were published only in one language, we asked for the Department of Justice to appear. We had a discussion around this table that was similar to this one.
Senator Beaudoin: It was a good one.
Senator Joyal: We had to ask the Department of Justice for a delay to give them time to go through all the statute books in order to tell us by what date the regulations would be nullified if they were not in both languages. You remember that discussion?
Senator Andreychuk: You recall the answer? First of all, it was impossible to do, and secondly, it was too costly.
Senator Joyal: The first day would go back to 1867.
Senator Banks: I have tried to be assiduous in my work and I believe that this list goes back to 1867. There may be something that I missed, but I do not think so.
Senator Beaudoin: We had a long debate this morning. It was very interesting, but in my opinion, a little too long.
There is one point that worries me, and I hope that we will hear from experts on this. The executive must respond to the legislative branch. In my opinion, we have opened a great debate.
In a true democracy, the Crown cannot do what it is doing. For example, they cannot keep a statute from coming into force for 10 years or 20 years. That is certainly undemocratic. There is no doubt in my mind.
Parliament has taken, over the centuries, all its powers from the Crown. They restrict the Crown all the time, and I think it is a good system. We should do the same with this.
I cannot accept that a bill is not brought into force after five or six years, and especially one dealing with the Criminal Code. To me, it is really undemocratic. I cannot accept that because in our system, the executive has to respond to the legislative branch.
It is the core of the matter — the core of the Constitution.
Senator Andreychuk: What is the question?
Senator Beaudoin: There is no question, except that perhaps we should study it.
Senator Joyal: The concern is the constitutional aspect of the bill. It may appear to Senator Banks that we are simply a group of fancy lawyers around this table, but we are senators, as you know, and we have to advise the Crown.
Senator Beaudoin: Exactly.
Senator Joyal: It is important for us to understand the implications for the institutional structures of Parliament and the Crown, and to that end we have to reconcile the two objectives that are at stake in Bill S-12. Again, we are certainly open to ensuring that we understand all of the implications so that we are able to follow up on it appropriately.
The Chairman: Thank you, Senator Joyal. Senator Banks, you have the impression, I am sure, that most senators think the bill is a good one that needs further exploration. We will proceed to hear from some Department of Justice officials on questions that were raised this morning, and if need be, beyond that. Senator Banks, I thank you again for bringing this worthwhile piece of proposed legislation to our attention.
Senator Banks: I am presuming that you will not be in a rush with this bill. May I, from time to time, propose suggestions for witnesses?
The Chairman: Absolutely, please do that.
The committee adjourned.