Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for June 7, 2006
OTTAWA, Wednesday, June 7, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-202, to repeal legislation that has not come into force within ten years of receiving Royal Assent, met this day at 4:17 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: I would like to extend a warm welcome to all honourable senators in this important meeting. Today we will be discussing Bill S- 202, to repeal legislation that has not come into force within ten years of receiving Royal Assent. Honourable senators who have served on this committee before will know that this is not new matter to come before this committee and it is not the first time that Senator Banks has been before this committee to talk about The Statutes Repeal Act. In fact it has had three predecessors, all of which were previously introduced by Senator Banks.
Senator Banks, we are honoured that you could come here today and we know that you have spent a lot of time talking with officials in the Department of Justice and other officials. I also understand that the bill, as first presented by you in another Parliament, has changed materially from the one that is before us.
I will invite honourable senators to question you after your presentation. Once again, welcome. You have the floor.
Hon. Tommy Banks, Sponsor of the Bill: Thank you very much, Mr. Chairman. I am pleased to have been asked with such alacrity to appear before you on this bill, which is, as you have said, the fourth time around.
In its effect, it is not substantively different from what was originally proposed, but there is a modification which exists in clause 5 of the present bill, which is new and which takes into account a modification that makes this more palatable to the department and to the government.
The original form of this bill, in the other parts, was not much different from the present form. To give honourable senators an idea, its purpose is to remove from the statutes of Canada those acts of Parliament or sections of acts of Parliament which had been approved and passed by both Houses of Parliament and received Royal Assent more than 10 years ago and have not been brought into effect.
There are many good reasons that the government needs from time to time to say in a bill that this act of Parliament will come into effect at a date to be determined by the Governor-in-Council. We all know some of those good reasons. However, sometimes acts just fall by the wayside. Notwithstanding that, it has been my contention in respect of this bill that even if that discretion has been granted by Parliament to the Governor-in-Council, after some reasonable time has elapsed the Governor-in-Council, the government, the cabinet, aught to be obliged to come back to Parliament to reiterate why it wishes to retain that authority that Parliament has granted to it, and that absent doing so the section of the act of Parliament should be repealed perforce.
A significant difference in the form of the bill that is before you now from its previous iterations is in two places: The last provision which is, ironically, the coming into force provision, which says that this act will come into force two years after the day on which it receives Royal Assent. That is an accommodation that is made specifically to take into account that the government and the department — and not only the Department of Justice but other departments as well — will have a load of work to do on the first occasion on which the process that is envisioned in this bill will take place.
It is important to note that in subsequent years the list of bills that will be dealt with by this process will be very short by definition. The first list, however, will be long. That two-year interregnum between the Royal Assent to this bill and its coming into force is to allow the departments the time to deal with that fact.
There is an additional year in which the departments can deal with that fact that is built into the act. What happens under this act if it were in force, is that at the beginning of each year the Minister of Justice would lay before both Houses of Parliament a list of those acts which had been passed by both Houses of Parliament and received Royal Assent nine years or more than nine years before the beginning of that parliamentary session. Built into the bill is a year that goes past, during which time the government may either come to Parliament and give reason that it should continue to have the discretion that Parliament has granted to it. It can go before either House of Parliament and either House of Parliament can remove an act of Parliament or a section of an act of Parliament from the list. That is also a new wrinkle. The rationale for that is that either House of Parliament could have, when it was introduced, defeated the bill and so it is logical that either House of Parliament should be able to save the act.
The other provision is in section 5 of the proposed act. This is an answer to a concern expressed by the Department of Justice, not by any politicians or any minister, but only by the Department of Justice. The Department of Justice needs a clear means of removing an act of Parliament from the list to which I have referred, which act was modified in some way in the nine years prior to the coming into force of this bill.
Clause 5, to which I commend your attention, says that section 2, which is the operative clause of the bill, does not apply.
Senator Joyal: Could you give an example to facilitate you presentation? It is very theoretical and an example would make it easier to follow.
Senator Banks: Do all senators have this list dated today, June 7, 2006? It talks about the list that would have been in place as of and up to April 5, 2006.
I do not know which, if any, of these provisions might have been amended, but let us look at the last item on the first page, the Contraventions Act to which Senator Baker referred in his debate in the chamber. An asterisk indicates sections in the act that were modified or replaced by the Statutes of Canada in 1996.
Imagine that date was not 1996 but rather 1998 or 2002, so it would be within the last nine years. The effect of clause 5 is that it restarts the clock, in effect, as I understand it, on any provision. By ``the clock'' I mean the nine-year clock that determines when the minister lays before Parliament the list of acts that would be caught by this bill if it were to become an act. If a section of an act of Parliament has been modified in the nine years before the coming into force of this bill, it restarts the clock and removes that act of Parliament from the list.
Senator Joyal: In other words, if Parliament adopts legislation through which another section of an act is amended, it restarts the clock for the rest of the act, proclaimed or not proclaimed?
Senator Banks: Yes. Clause 5 states:
Section 2 does not apply to any provision amended by an Act that was assented to during the nine calendar years preceding the year this Act comes into force, or to any provision that is necessary for it —
— and the word ``it'' applies to an act that was assented to, and I think that we might want to change the word ``it'' to say, ``or to any provision that is necessary for the amended provision,'' or words like that.
Senator Joyal: Yes, ``the amended provision.''
Senator Banks: And continuing:
...to have effect, until the calendar year following the ninth anniversary of that assent.
If a section of an act has been amended, it obviously cannot have an effect if the rest of the act is not in force. On this list you will see sections of acts that have not been brought into force.
I am not by any means an expert on the question that you have asked, but I assume that if a section of an act was amended by an act of amendment, that would be caught by clause 5. The reason this is here is not because I love it. This is here because the department wanted a better opportunity to save sections of acts that had been amended during the time to which this refers.
The Chairman: Senator Banks, officials from the department will be here tomorrow, and this is certainly a question we can put to them.
Senator Banks: I think everyone here understands the thrust of this act. I will conclude by telling you that I have met with those officials of the department and with others who have indicated to me that the department is pleased by these two provisions. They are pleased with the changes they bring about, the greater flexibility that is given and the less rigidity that is now contained in the bill than was the case in the previous versions. As I said, I regard those as concessions — although I hate to use that word — because they are the halfway point between some of the original proposals for amendment which were, for example, the Governor-in-Council can issue an order exempting an act or a section of an act from this act. That would obviate the whole point. The whole point of this is to oblige this government and all successive governments — and I would have wanted to oblige preceding governments — to get to work and clean out the attic.
I have reason to think that the government in this case, as was the case with the previous government, and the department are not displeased with the prospect of this bill proceeding.
The Chairman: You should probably add the minister, because the minister's consent and approval is also important in the department.
Senator Banks: It is. I asked that question of one of the minister's officials today, and he indicated to me that the minister and the government are kindly disposed to this bill.
The Chairman: However, they have a few more steps to go through internally before it is positive.
Senator Banks: As do we.
The Chairman: In terms of statutory interpretation, the Interpretation Act has given us much guidance on how we should interpret a statute and has given us assistance with the use of words. Some of the classical ones are the words ``shall,'' which is mandatory, and ``may,'' which is permissive.
I notice that clause 1 of this bill says, ``This act may be cited...'' There is your permissive ``may.'' Clause 2 says, ``...the Minister of Justice shall cause...,'' and clause 4 says, ``The Minister of Justice shall publish...'' The operative section, clause 6, uses neither ``may'' nor ``shall'' but says, ``This act comes into force...'' The verb is in the present tense.
Why would you not use the language from the Interpretation Act for an operative section like that?
Senator Banks: I thought that was the standard language. If not, I will be happy to change it. I want it to have the greatest possible force. If it should say ``This act shall come into force,'' I would be mightily pleased to make that change.
The Chairman: I am wondering why you would depart from the classical statutory use of words such as ``shall'' and ``may'' in the Interpretation Act.
Senator Banks: I did not look at it, Senator, and I apologize for that. I was sloppy.
Senator Zimmer: That touched on my question. ``May'' and ``shall'' are not as strong as ``come.'' Perhaps it was your intent to ensure that it does happen. I am not sure whether that helps.
Senator Banks: I appreciate that. I believe that I have seen this language elsewhere, but I am not expert enough to assume that I have.
Senator Zimmer: As you said in the Senate, you want to clean out the attic. By using an operative word like ``come'' places more force on the issue of making it happen.
The amendment restarts the clock. By what new date would the government be obliged to implement the new act which has been amended? Would there be a time limit on that?
Senator Banks: This stalls it for a year. The act would be caught by this provision. That is to say, by having been amended, it comes back on the list the following year, as I understand it and as I read this. It would continue to be there.
Senator Joyal: For another nine years?
Senator Nolin: No, it is not one year, nine years.
Senator Banks: No, it states,
Section 2 does not apply to any provision amended by an Act that was assented to during the nine calendar years preceding the year that this Act comes into force.
Senator Nolin: It is during the nine years.
Senator Banks: Right. That does not mean that that act will not show up on the list the following year; I think that it will. And then I think it runs out in nine years. It does not say ``nine years before the effect of this act,'' it says ``nine years before the coming into effect of this act.'' If this act comes into effect, for example, this year and the House of Commons passes it this year and it receives Royal Assent this year, it will then come into force, in 2008. If you count back from 2008, nine years, you are at 1999. The 1999 amendments are caught, 2000 amendments, et cetera, but 2008 amendments are not caught. That safety net that runs out nine years after this act comes into effect.
Senator Zimmer: It would not kick-start another nine years?
Senator Banks: No, it would not. This whole provision, as I read it, ends in nine years after this act comes into effect. It does not talk about the effect of the act. It does not talk about the act that is being caught by this act, it says,
...or to any provision that is necessary for it to have effect until the calendar year following the ninth anniversary of that assent.
Senator Nolin: I refer to the assent of the amendment of that specific act, not this one.
The Chairman: Senator Nolin, can you start again? We did not get any of that.
Senator Banks: Sorry, I will correct myself. Senator Nolin is right. The nine years I am talking about is in the first sentence:
Clause 2 does not apply to any provision amended by an act that was assented to during the nine calendar years preceding the year that this act comes into force.
Senator Nolin: There is another part to that section and that is the one I want to discuss. It is much clearer in French, to be honest. In French it says to the effect, that to any provision that is necessary for it to have effect until the calendar year following the ninth anniversary of that assent. The assent of what? Of the amending clause, not this.
Senator Banks: No.
Senator Nolin: It means nine years.
The Chairman: It is nine years.
Senator Nolin: Whenever we have an amendment to an act.
The Chairman: It opens for another nine years. That was my interpretation from reading it.
Senator Nolin: That is my reading of it.
Senator Rivest: Yes, that is it.
Senator Joyal: That is why I wanted to have an example. I think this question should be asked at the student bar exam next year.
Senator Nolin: I agree. It should be on the bar exam.
Senator Banks: It really does help to substitute ``the amended provision'' for the word ``it'' in my limited understanding.
The Chairman: Are you asking for an amendment to your bill, in English?
Senator Banks: Yes, I think so, to make it more consistent with what, apparently, is better clarity in the French version.
Senators, please correct me if I am wrong, but I understand that in reading the first sentence of clause 5, that an exemption here would apply to an amendment made during the nine years prior to this act coming into force. Continuing that thought, those acts that were amended between 1999 and using our hypothetical date 2008, are caught by this exemption and it is they that are referred to when we continue reading the last part of the paragraph which says,
...any provision necessary for that amended provision to have effect, until the calendar year following the ninth anniversary of that assent.
That assent took place between 1999 and 2007. Acts that are amended subsequent to 2007 would not fall under the provisions of clause 5 because they would not have occurred within nine years preceding the coming into force of this act.
Senator Joyal: That is the other trick of the section.
Senator Nolin: Why do we not ask the department why they drafted this in this way?
The Chairman: It is ambiguous to say the least.
Senator Joyal: Senator Banks is right. There is an illogical situation on the principle. If an act is amended after the period of nine years or within the period of nine years, it has the effect of restarting the clock for a provision that has not come into force. Suppose that we restart the clock with a new amendment to the act, the same act that Senator Baker mentioned? It means the same principle should apply. In other words, an amendment that is not in force is always saved by a new amendment and we start the process again each nine years. That is not what your reading is of clause 5.
Senator Banks: Correct.
The Chairman: But the government may need that provision. Take the Contraventions Act. They are negotiating with provinces and there are still some provinces not in. They certainly do not want the act becoming law until those other provinces are brought in. If they make an amendment at year eight, they still do not want it coming in if there are other provinces with whom they are still negotiating.
Senator Banks: That is another one of those provisions that we could say to Parliament you need to come back and explain what is going on here.
Let me explain why I think the interpretation that I have given you of clause 5 is correct, if you read it carefully. That is to say that clause 5 only catches amendments to acts that were passed during the nine years before this proposed act comes into effect. I believe that is an approach that we have made with the government. The original idea was simply to be able to remove an act, or a section of an act, by fiat of some kind, to which I objected. I do not mind the government having that extra time to deal with a huge load of stuff that is in the attic, as I have characterized it.
I think the department has taken into account and paid attention, I modestly suggest, to my argument. We do not want to obviate the whole point of the bill in the long term. After the nine years has gone by and this thing becomes operative and everyone understands it and the list is much shorter in the subsequent years, everyone will have figured out that this will happen to these bills and we will not need to have this possibility of pulling something out of the process that is envisioned by this bill.
Senator Joyal: My question is hypothetical. Suppose that tomorrow we hear from the Department of Justice that your interpretation is not the one that the department favours, but, rather, it favours the one that I have proposed to you — I am sorry; I hope I am wrong. Would you accept that clause 5 be amended to reflect that?
Senator Banks: I would be less happy with it. However, a step in the right direction is better than no step at all. I would defer to the wisdom of this committee in a minute because you know a lot more about this process than I do. This committee understands about the likelihood of something proceeding so that we can at least have some hope that this huge backlog will not continue to build up. Well, it is not all that huge, but this backlog of legislation exists and could, unhappily in some cases, be brought into force tomorrow afternoon.
There are provisions of the Maritime Shipping Act and things like that in here that should not be brought into force tomorrow because they are inappropriate. There are many others that are not dangerous at all. I am sure that there are quite a number of acts and provisions of acts on this list which the government will come forward, whether or not it is under clause 5, and say we need to continue to have this discretion. I trust that Parliament would say that is reasonable in those circumstances.
I am trying to avoid situations like the one that happened with the Public Service Commission Act; an amendment was introduced and passed that removed the capital P, S and C out of it in order to make the definition clearer. That amended the act. I would not like an amendment of a comma or a capital to remove an act by definition from the purview of what I contemplate in this bill.
I would not jump up and down, Senator Joyal, if the interpretation is wrong, although I have read this many times and I think the first sentence governs the second, if I can put it that way. Unfortunately, I cannot read it in French, though.
The Chairman: I do think Senator Joyal makes an extremely important point to you, the proposer of the bill. If you and the department are not ad idem in understanding the language in English and French of a particular clause in the bill, this is the time and place — that is, in committee — to make it explicit and clear.
That is what I take to be Senator Joyal's point, which I think is an excellent one. We are not only public policy makers but also framers of clear legislation. Any thought of ambiguity should be removed and this is the place to do it.
Senator Banks: That is the point. In that respect, I would not only defer to but simply accept whatever opinion at which this committee might arrive.
Senator Joyal: On this point, I want to be very clear to our colleague and witness that this committee has been rather sympathetic to the objectives of Senator Banks. We have studied this bill three times in the past. Each time, we have tried to improve it and to help you in that cause. I think that the questions that were asked by senators on both sides during all the sessions were posed to try to make your objective happen. It is to ensure that this provision, which is open to interpretation and difficult to understand, would be made easy to understand for anyone who has the responsibility to implement it, which will not be our responsibility once it is out of the Senate and the other place. It will be the Department of Justice and other authorities within the government administration who will implement it. It is our objective to ensure that we all have the same understanding of the scope of clause 5.
Your interpretation is certainly defendable, but we would like to see how the Department of Justice interprets it to make sure we can reconcile it. Maybe you will be here tomorrow when the officials from the Department of Justice are here so that we can reconcile that issue.
Senator Banks: What time is the meeting?
Senator Joyal: It is at 10:45 in the morning.
Senator Banks: I will certainly try to be present.
Senator Joyal: That would enable us to try to reconcile that as much as we can. It is your objective to make the bill effective in a way that is fair for the government and for the legislative process; that is essentially what we have had here all the time. As I said, we always try to be favourable to your objective because I think it has support on all sides of the House. You heard that last week when we discussed it in the chamber. That is all I wanted to add on that.
Senator Banks: As I said, I will happily accept the advice of this committee. I know that the committee will bear in mind what the object of the bill is supposed to be and that the committee will understand better than I that a provision which is inserted into the bill which would have the effect of obviating its effect is one that I would not agree with — and I trust that honourable senators would not agree with.
I will take the advice of the committee and happily defer to what the committee recommends with respect to the bill, having to do with this or any other bill.
Senator Baker: Senator Banks, could we refer back to the question that the chair posed to you at the beginning when he correctly explained that the Contraventions Act was awaiting the approval of certain provincial governments? As the chair said, the proclamation could not be made for those sections applicable to those negotiations with the provinces. Under your bill, that Contraventions Act would be struck down, according to the wording, after the nine- year period, if it were not amended.
Senator Banks: Unless the government comes to one or the other Houses of Parliament and convinces that House that it ought to continue to have that discretion granted to it. That is written into the bill and presumed in the bill. The bill makes the presumption that the government will, in respect of some acts of Parliament, come before one or the other Houses of Parliament and say we need to have this bill removed from that list which is now before you, and here is why.
That is as important a part and function of the bill as the removal of legislation. It is a red flag that will remind a government that has been granted that discretion that at least when 10 years have gone by, the government will have to revisit the question, come back to Parliament and justify that discretion again.
Senator Baker: How often after that would they have to justify it?
Senator Banks: Every year.
Senator Joyal: According to his reading of clause 5.
Senator Baker: That is what I am getting at.
Senator Banks: Even if an act were not caught by clause 5. Even if it were the Canadian Heritage Languages Institute Act, which is an entire act in here — and, by the way, the Motor Vehicle Fuel Consumption Act, which is an entire act; why is that not proclaimed? — take an entire act that has not been amended. The only acts caught by clause 5 are acts that have been amended in the nine years before this bill comes into effect.
The government may come to us, to Parliament or to the other place and say that they need to have the Canadian Heritage Languages Institute Act; we need to continue to have the discretion to bring it into force. If they can convince Parliament that is so, then that will be so. That is not caught at all by clause 5.
In the first place, the government has a year after that list has been laid before Parliament to determine a number of courses of action. One is to bring the act into effect. The second is to come to Parliament and say here is why we will not bring this act into effect.
I remind senators of the point of my argument, which is that the coming into force act is a discretion that is granted to the Governor-in-Council, not to determine whether an act is brought into force but when. I contend that 10 years is enough time that the government should have to come back and say we still need that discretion; we still need to have this in our back pocket but now is not the time to do it, so please give us another two, three, five or 10 years.
Senator Baker: The word ``government'' that you are using would be the Department of Justice.
Senator Banks: No, it would be the Governor-in-Council.
Senator Baker: The government of the day.
Senator Banks: Yes, it would be the government of the day.
Senator Baker: Let me read a sentence to you from the Ontario Court of Appeal. The case is R. v. Duale Dore, 2003. What was under consideration was a question of law as it relates to a provincial law and, indirectly, to a federal law.
It says,
...the Attorney General has elected, under section 50 of that act, to proceed as a contravention and not pursuant to the information originally laid. This is the only section of the act that addresses the issue of destruction of fingerprints and requires destruction in the limited circumstances described. However, section 50 has not been proclaimed in force.
It has not been proclaimed in force, and that is the very section, namely section 50 of the Contraventions Act. That is not as it applies to the Contraventions Act, however. This is a different application by the Attorney General in this particular case that he wished to have to use the Contraventions Act in another act and in another circumstance
The matter is complicated because you would have the government of the day coming before Parliament and saying it needs an extension on the time limit for a specific reason. Would you also speculate that Attorneys General of the provinces, if it affected them in their legislation, would also be given a similar opportunity?
Senator Banks, in some cases it will be very complicated when one act which is not proclaimed within the 10 years has been used in another act of Parliament, and has been used by an Attorney General in a province. You might end up with the federal, whoever it is of the day, saying that even though they did not meet the guideline, they do not really want to go ahead with it anyway. The problem is that we are left with other acts and provincial statutes, depending upon that one. Do you get my point?
The Chairman: I think this is a question for the law students at the bar.
Senator Joyal: If you answer question one; you can go to question two.
Senator Baker: Have you thought about that aspect Senator Banks?
Senator Banks: No, I have not; I am incapable of thinking about it because my mind is still boggled by clause 5.
I do not know the law, as you well know, but I cannot imagine that circumstance. One of the provisions of this act is that actions taken are published in the Canada Gazette, and notice is thereby given. I would imagine that another jurisdiction that would be taking into account some operative aspect of an act would have been notified that act has been repealed.
Senator Baker: Suppose you are using a provincial law enforcement officer under the Contraventions Act, for example, in a ticketing, to do the work of the federal government as well as the provincial government, but it is not proclaimed. That would add an additional complication. You must have not only the federal representatives saying that they wish to have it, there would have to be a check on the people who were actually doing the presentation to Parliament in that case.
The ticketing that Senator Nolin was promoting, as far as the Controlled Drugs and Substances Act was concerned, was not to be done by federal officials but by provincial jurisdictions.
Senator Banks: I cannot imagine using the Contraventions Act as the most cogent example because it will be caught by clause 5. It is not in any trouble until at least, given my interpretation, nine years from the coming into force of this act.
Senator Baker: Senator, you have all kinds of other laws made in the meantime, based on the Contraventions Act. You would not only be getting rid of the Contraventions Act, but you would be striking down 100 other laws that had been made that were making use of the Contraventions Act.
Senator Ringuette: You cannot make provincial law if a federal act is enacted.
Senator Nolin: That is the very reason the department knows the problem generated by the Contraventions Act. They know they are still in negotiations with the provinces. Some have accepted; some have not. That is a very good example why they would introduce a motion either in the other place or in the Senate saying, here is the reason why this is not in that act.
The Chairman: I agree with Senator Nolin. Maybe Senator Baker could put that question to the department along with the other question.
Senator Nolin: We cannot ask Senator Banks to look into the error of a province, thinking that a law has an application that it does not. It is up to the province to look at what is in operation.
Senator Banks: I know several Attorneys General. With respect to the Contraventions Act, but even with respect to other acts, I cannot imagine that any of them would be so derelict as to not know when an act that they have incorporated by reference, or whatever, into a provincial statute has been repealed. They would take steps to obviate whatever they are doing under it, or to introduce an amendment to the provincial legislation that would say the same thing as the provision of the Contraventions Act on which they relied.
Senator Nolin: As you know, Attorneys General and the Minister of Justice meet regularly. In advance of tabling such a list, I am sure the list would circulate among the provincial colleagues. I can imagine that taking place. Everybody knows that act will be on the list.
Senator Banks: I do not think we have to take into account sloppiness that might occur on the part of a provincial Attorney General when we are making legislation.
The Chairman: Senator Banks, I am new to this committee and new to this bill, I have a quick question. One of the things that always concerns me with all bills coming to the Senate from the House of Commons and all bills that come before us are to ensure that the Senate, as a sovereign body, is always protected. Parliament consists of the House of Commons, the Senate and the Crown. I do not like to see bills where a particular act can take place with only the consent of the House of Commons.
With that in mind, I was curious with the language you use here in clause 3. You state, ``...either House of Parliament adopts a resolution.'' Why would you not insist that any such change always has to come to the Senate? For instance, there used to be provisions that certain Officers of Parliament could be appointed removed or so on with the consent only of the lower house or House of Commons. Once again, we, the Senate, were excluded. Why would you not say both Houses of Parliament? Here your language is ``...either House of Parliament adopts a resolution.'' Why did you choose to word it that way?
Senator Banks: The rationale is that either House of Parliament could have defeated the legislation; therefore, either House of Parliament should be able to save it. No bill coming from either House going to the other can be made law until both Houses of Parliament agree.
Senator Nolin: Senator, they did agree.
Senator Banks: This maintains that independence of both of the Houses. If we send this bill to the House of Commons and it disagrees, then this bill will not become an act of Parliament. One House of Parliament will have decided that this bill will not become an act. The reverse, I think, ought also to be true.
Senator Ringuette: I find that this is an excellent bill because it brings accountability to all the legislation to which we agreed. We, as legislators, agree to legislation with the view that government will enact it. We adopt legislation with the intent that government will go through with every section of the legislation. However, if it does not, I do believe that we need a means to know why and this bill provides for that accountability.
If a bill is not enacted, we should have the ability, after nine years, to ask why not. Is it because it is redundant? Is it because it is not agreed upon because it requires other provincial legislation, and so on? In my opinion, it is a good bill because it will bring accountability to the legislation to which we have agreed.
Senator Robichaud: No, because if nothing happens it is just written off with no reason. If there is a motion brought to either House then they say why they want to keep it, but no one has to say why if nothing happens, it is gone.
Senator Baker: Your private members' bill is dead.
Senator Banks: We must understand that very often it is the case when both Houses of Parliament pass an act; there are sections in it that they understand are not going to be brought into force right away and for very good reason.
However, I agree with you that if this provision has not been brought in after ten years it goes away. For that to happen automatically would presume dereliction on the part of everyone. There are enough flags here and enough notice given that it does what you say, Senator Ringuette. It says that this was Parliament's intent. If this has not happened by now, please come and tell us why it has not happened by now.
Senator Ringuette: That is right, and exactly to reinforce what I was saying, Senator Baker, is that there is this one year that we will know after nine years there is a year of transition before Parliament decides wants to do.
Senator Banks: The first time, when it will be a longer list, it is three years.
Senator Robichaud: Parliament will not decide anything unless there is a motion that comes to either House. It is gone unless somebody takes it upon himself or herself to put a memo or a motion asking the minister in question why these sections are not being brought into force. Otherwise, it is gone.
Senator Banks: That is why the proposed act provides that the Minister of Justice must lay before Parliament a list to call to the attention of ministers and to every minister of Parliament, if you do not do something with this in three years it is gone. In the first time around, you have three years. After that, if you do not do something with this in the next year, either proclaim it, bring it into force or ask for an extension it will be gone. It will never be the case that something will slip by.
Senator Zimmer: Senator Banks, I believe this is a very good bill. When I heard in the Senate that we automatically presume once a bill is passed and received Royal Assent it will be enacted, so I think your work is very well done.
It is good to question the reasons for an amendment. My fear is that this may be used by the government or by the department to continue to delay the bill forever. The question, if it starts the amendment and the clock is restarted they get another nine years. Hopefully we will have that clarified tomorrow.
However, my fear is that this could be used as a tool to delay it and never enact it. We could include clauses in the bill to ensure that does not happen. I still have a bit of a fear there. You get a new amendment, you start a clock, there is another nine years, hopefully there will be measures in there to provide that does not occur and that could be used to continue to do that forever. We can address that tomorrow, I hope.
The Chairman: On international treaties, which often take a lot of time, under Senator Banks' bill it will be necessary for the government to come before both Houses and explain the state of the negotiations and why it wants more time and how much more time it wants, as I understand it.
Senator Banks: Correct.
Senator Joyal: I have two points. Do I interpret correctly clause 3, when you state that the resolution adopted by either House of Parliament maintained — to use a medical term — the respiratory system for a year.
Senator Banks: That is correct. That act or the section of the act will appear again on the list in the following year.
Senator Joyal: It is on that basis of the interpretation of clause 3 that you contend that clause 5 should be on the basis of one year, as well.
Senator Banks: I agree, yes. Not only on that basis. My reading of clause 5 understands that it is safe for a year and comes back. However, that would be my intent and desire that it is safe for a year, but you have to ask again.
Senator Joyal: The fact that the bill can be saved by either House of Parliament will be interpreted or put into operation against the participation of the Senate.
The government will go into the House that they control more easily, which is the House of Commons, while in the Senate a request of that nature would normally be looked into more carefully, for the very nature of the Senate that you yourself are very able to exemplify.
The purpose of your bill is to compel the government to justify itself. Would it not be better to include both Houses of Parliament because the minister's explanation is more likely to receive a thorough, independent look here than in the place where the majority always wins the day on more or less partisan arguments?
Senator Banks: If this committee decides that would be wiser, then I would certainly agree with it.
Senator Joyal: You understand my point. The government will go where it is easier to get assent, and we know how, in the other place, it is deemed to be adopted, and most of the time it is presented as a matter of housekeeping and maintenance, and that is the argument that wins the day on a Friday afternoon.
Senator Banks: It does, but I also must point out that until February of this year, the other way around would have been the case. If the previous minority government had wanted to save a bill, which it would be less likely to do in the previous Parliament, it would have come to the Senate to save it.
Senator Joyal: I am not sure, even though the government would have had a majority in the Senate, that the government would not have had a thorough study. I am thinking of some members in particular. I do not want to name them.
Senator Banks: I fully understand your question, senator, and if this committee were to suggest an amendment to the effect that it ought to be both Houses of Parliament, I would not object to that at all.
Senator Joyal: In fact, it is more difficult for a government to win two votes than to win only one, and if we want to give your bill the teeth that it needs, it would be better to have both.
Senator Banks: That is the reverse and corollary argument to the one I gave when I answered the chair's question, and that is to say that it requires both Houses of Parliament to pass a bill into an act, and it should therefore require both houses of Parliament to save it.
The Chairman: I am much happier with the answer you gave a Liberal member of this committee than the one you gave to a Conservative member of this committee on exactly the same question.
Senator Zimmer: If I could add levity, maybe we could invoke your law based on your comment prior to February 3 and we could invoke your new amendment for five and one half years.
Senator Banks: Do I hear eight?
Senator Robichaud: What happens if there is a motion is both Houses and one is accepted and the other refused?
Senator Banks: If this bill were to say ``both,'' then it would stay on the list.
Senator Nolin: It would be safe, and that is the point I am making. You do not need two Houses. The law already exists. The decision has already been accepted by everyone, duly amended, properly sanctioned, and it needs to be put into force. That is the only missing point.
The motion is to keep it alive for a year. It is not to kill it. If the government does not move, it will die, and that is the government's prerogative. We make the laws but the government puts the laws into motion.
Senator Banks: That is correct.
Senator Nolin: Unless they have a very well crafted section that says ``it will.'' It is properly written in French ``la loi entre en rigueur.'' No one is there to question the intent of Parliament.
[Translation]
Senator Robichaud: These laws are not the focus of the bill before this committee.
[English]
Senator Nolin: We know that when we adopt laws that have ``may'' in the coming into force section. We understand why that might be, and usually they have explained why. Now, we are into the reverse. The law already exists, and the intent of this act is to make it die, or, if the government explains why, it stays alive for another year. You do not need two Houses to do that — only one.
Your question was about two different votes on the same motion. What would the result be? It would stay alive. I would love to tell you that both Houses are needed, but I do not think they are.
[Translation]
Senator Robichaud: I do not think so either.
[English]
Senator Nolin: I would love to see the Senate be the place. You need one place or one motion. We want to keep it alive for a year. What is the political gain in making a law that is already in existence stay alive for another year? I do not understand. I would understand the reverse. It would need two Houses to create a law or amend a law. This is to keep it alive.
[Translation]
Senator Robichaud: What if the minister were to table a motion in the House of Commons to extend this for an additional year and what if the motion was rejected? What happens then?
[English]
Senator Nolin: They can put it into force during the remainder of the year.
Senator Robichaud: Yes, but that motion will come within the year. Sometimes things happen at the last minute here.
Senator Nolin: The minister needs to table it. May I argue on your behalf?
Senator Banks: Yes, better you than me.
Senator Nolin: The minister has five sitting days at the beginning of the year to introduce such a motion.
Senator Robichaud: Not the motion.
Senator Nolin: Yes, yes, the list.
Senator Banks: The list.
Senator Robichaud: The list, yes. Then the list stays there for a year, and any minister has to put down the motion before the end of that year, and he can wait until the last day in September to do it.
Senator Nolin: Yes.
Senator Banks: Correct.
Senator Nolin: And ministers are usually in the House of Common, by the way.
Senator Robichaud: They still can put the motion down.
Senator Nolin: Through the minister in the Senate.
Senator Robichaud: The Senate is the very same thing.
Senator Nolin: I do not think we need both Houses to achieve that.
[Translation]
Senator Robichaud: No, I do not believe so. I do not see any partisanship at this level.
Senator Nolin: The opposite in fact is true, because the law is already in force.
Senator Robichaud: Precisely.
[English]
Senator Banks: If it is opposed to in both Houses, the safety net is that it is brought to the attention of Parliament — of whichever House of Parliament. I am assuming that there is good intent on the part of all members of both Houses of Parliament. If this exemption, if I can put it that way, is brought by the government before, let us assume, the House of Commons year after year after year —
Senator Nolin: The list is tabled in both Houses.
Senator Banks: Yes, someone will wise up to the fact that this needs attention. It will be brought to the attention of Parliamentarians, and that is, as I said before, as important as the actual repeal function.
[Translation]
Senator Robichaud: In fact, if the motion is defeated in the waning days and if they do not have the time to arrange for —
Senator Nolin: They truly wanted to see the legislation adopted. Correct?
[English]
Senator Banks: The cartoon version of that would be, Senator Robichaud, on November 19, the minister proposes a motion in the House of Commons to remove the act from the list, and it fails. Then the government has the final option of bringing it into force. That saves it.
[Translation]
Senator Robichaud: Yes. I do not have a problem with that, unless Parliament is prorogued.
[English]
Senator Joyal: I think your hypothetical question is if one house refuses it within the year the government can come to the Senate.
Senator Banks: Yes, if it fails in one place, it can go to the other.
Senator Joyal: Or, as you said, the government can proclaim it, and that is it. That is the end of it.
Senator Nolin: Both Houses adopted the law nine or ten years ago. Could one House say one thing and another House say another thing, and what would be the result? That could very well happen. That is why I do not think you need two Houses. I think you need one, to prevent a conflict, because you would have a political problem there. The law already exists. The will of Parliament was already expressed.
The Chairman: Senator Banks, have you anticipated drawing or drafting any regulations to set forth the rules under which this act is to operate?
Senator Banks: No, I do not think that any are needed. The advice I have received is that, in the event a government brings forward a motion that would take care of it, either in the case of removing an act from the list or of amending the act.
The Chairman: Honourable senators, are there any other questions that you would like to put to this witness, the Honourable Senator Banks? If not, that concludes our work for today.
At tomorrow's meeting, we will have officials from the Department of Justice. We learned today that there are at least two questions of clarification that we would like to put to the department. Senator Banks, if it is at all possible for you to be here, we would love it.
Senator Banks: I cannot. I have a meeting that goes from 8 a.m. to 10:30 a.m.
Senator Joyal: I suggest that Senator Nolin act as a proxy for the honourable senator.
The Chairman: If there is no further business before the committee at this time, the committee is adjourned until 10:45 tomorrow.
The committee adjourned.