moved that Bill S-202, An Act to repeal legislation that has not come into force within ten years of receiving royal assent, be read the second time and referred to a committee.
Mr. Speaker, it is quite an honour to present Bill S-202 to the House.
The members may wonder why it is an S bill. This bill was tabled in the other place by Senator Tommy Banks. It went through all stages of the legislative process, a very rigorous process. It has passed in the other place and is now referred to the House of Commons for consideration. It is now brought to the order paper and is before us like any other private member's bill. We are at second reading and we will go through the normal process that we otherwise would. I wanted members to be aware of that, and certainly the public.
I find Bill S-202 to be a very constructive bill. Its short title is called the statutes repeal act. It is an act to repeal legislation that has not come into force within ten years of receiving royal assent.
The public may wonder how both the House of Commons and the other place can do all of our work, do all the due diligence, get the bill passed and get royal assent, yet the bill is not be put in force. In other words, it is not active law. It sits in limbo until a subsequent government decides to proclaim the bill and put it into force, and there are some reasons for that. However, two full bills, which are over 10 years old, have received royal assent, but they have not been proclaimed. About 57 other pieces of legislation, which are amendments to other acts, are also over 10 years old and they still have not been proclaimed in Parliament by the government of the day.
We have to ask ourselves if we should have a procedure in which we can effectively create a sunset clause, with reasonable provisions. Should there be good reason for a bill not being proclaimed, or not being put into force, there will be an opportunity to do that without frustrating all of the work that has been done.
In checking the work already done already, I must admit this is a lot more complicated than members may think. There are a lot of constitutional and procedural questions and a lot of questions about what happens if a provincial jurisdiction has enacted similar provisions, but the Government of Canada has not. For example, if we repeal provisions, will that affect the provincial jurisdiction and the application of the law? There were some excellent questions on behalf of all hon. senators who participated in the debate.
Bill S-202 received third reading in the Senate on the June 22. The bill could prevent legislation, which has received royal assent but has not been brought into force, from sitting on the books indefinitely. The bill would not apply to acts which come into force upon royal assent, which means they would automatically come into force, or acts that come into force on a day specified within the legislation.
We often have the case where it says in the bill that it will come into force upon receiving royal assent, or that the bill will come into force, or active law, on a date indicated in that bill. However, there are bills that do not say that. They in fact have a coming into force clause; that is they will come into force when the government says they will, or an unspecified time.
Unless either the House of Commons or the Senate takes action, the bill would cause these acts to automatically be repealed if they have not been brought into force within 10 years of receiving royal assent. There are exceptions for provisions that have been amended before the bill comes into force. For instance, if there has been some action on that bill within the last 10 year period, there are provisos that this 10 year period would be extended for 10 years beyond when an amendment had been made.
According to testimony in the Senate, the Department of Justice was very active. As I have said, there are only two statutes that are affected by Bill S-202 in their entirety. They are the Motor Vehicle Fuel Consumption Standards Act, which passed in the early 1980s, and the Canadian Heritage Languages Institute Act from 1991. However, there is individual legislation amending the other pieces of legislation. I have examples of some 57 other acts that would be affected by this, but I will not to read them into the record. I am happy to provide hon. members with copies of them. It is in the Senate record should members like to look at some of those.
The short title of the bill is the statutes repeal act. Clause 2 says that the justice minister must within the first five days that the chamber sits in any calendar year give a report to the House of Commons and the Senate. The report must list every act or provision of an act that received royal assent more than nine years before December 31 of the previous year that has not come into force. In other words, on day one of the 10th year, we would have a report to both Houses of Parliament. This means the government of the day would have virtually a full year to determine whether it better take some action, or make some changes, or supercede it, or repeal it or somehow address it. If it does not, then this bill would in fact trigger.
Clause 3 states that any act or provision, which was listed in the annual report and has still not come into force by the end of the 10th year, would be repealed as of December 31 of that year unless either chamber adopted a resolution that the act or provision would not be repealed.
Clause 5 provides that any provision that was not in force and would have been repealed under the prevailing procedure would not be repealed if it had been amended at any time during the previous nine years. Ten years after that amendment, the provisions of the bill would apply if the amendment itself was not brought into force. If there is no action on a bill or an amendment to a bill within 10 years of it receiving passage in both Houses, then the cards fall and it would be repealed.
Bill S-202 has had three predecessor bills in its life. The original hearings were back in 2002. Senator Banks confirmed that the intent of the bill was not to impair government flexibility, and that is important to note, but to ensure that any act or provision that had not come into force within 10 years after being given royal assent was revisited. That is the important aspect of Bill S-202. It would provide a period during which we would have to look at it and find out whether action was necessary one way or another. Failing that, the act or the provision would automatically be repealed.
There are four options now with the possibility of a resolution in either House for stalling the appeal.
First, some provisions that are more than nine or ten years old may have been recently amended, for example, to correct an anomaly or problem. Is the intent of the bill that a provision that Parliament has recently considered be automatically repealed? The intent is not to do that. It is to ensure that there is some activity. As the senator has pointed out, there has to be some sort of sunset provision.
Second, what happens with a provision that is partially in force or in force in some but not all provinces? The Contraventions Act, for example, requires negotiations with a province before it can be brought into force in that province. The question really is, would such acts be partially repealed with respect to provinces where they were not in force?
The third option is with respect to international treaties. They may require implementing legislation and there could be a 10 year time lapse before international ratification was actually complete. The question would then be, how would the bill deal with this situation?
Fourth, justice officials were also concerned that the bill would cause an automatic repeal with no provision for publication of the statutes or provisions repealed.
I want to assure members that Bill S-202 has addressed all of those concerns. It has done so through changes providing: first, that a resolution adopted by either chamber operates to ensure that the provision is not repealed; second, that amendments to a provision before a bill comes into force to extend the period for another 10 years; and third, that all repealed acts or provisions must be listed in the Canada Gazette.
The bottom line is Bill S-202 does in fact respond to the questions that have been raised by justice officials and others with regard to us getting ourselves into a situation where we may cause some unintended consequences. The conclusion is that is not the case.
The senators who examined the bill also raised concern with Bill S-202. Could the repeal of a list of provisions be done by motions involving a senate and/or the House of Commons or is some form of assent or approval by the Queen's representative also required?
Section 17 of the Constitution Act states that the legislative power rests in the Parliament composed of the Queen, the Senate and the House of Commons. Senators felt it might be preferable if the legislation contained some recognition of the Crown. This is where the Senate gets into some aspects, which I do not often hear in this place, with regard to the constitutionality.
Justice officials were of the view that the bill itself was the legislative mandate required for the repeals and that the process in the bill was analogous to a sunset clause, which provided for the repeal at a specific time. The officials also referred to section 2.2 of the Interpretation Act, which provided for a deemed repeal in the case of provisions that were spent or no longer operative. Thus Parliament can anticipate a repeal that takes place some time later, but according to the rules established by Parliament itself.
In the case at hand, the rules would be established by Bill S-202. In other words, the bill would provide the mechanisms in which we could deal with this problem. In the view of the justice officials, this would overcome any constitutional difficulties with the repeals triggered by the bill. As I said, there are some 57 acts which are affected, but I will not go there.
To summarize, the only way this really comes up is if the legislation says that bill will come into force on a date to be specified by order in council, that is by the cabinet. When there is no specified date or it does not say it come into force on royal assent, then somebody has to do something down the road to trigger it.
There are a number of instances where there is good reason why we would not want to make it come into force immediately. There are transitional provisions and things to get prepared for it coming into to force. We understand that when we bring in new legislation, there are or can be consequences to a broad range of stakeholders. Therefore, the form of having an enforced clause sometimes is desirable and necessary.
In the case before us now, the Senate has discovered there are bills, having gone through all of the process in both Houses, sitting collecting dust in limbo. Also some 57 other acts have all kinds of interesting amendments. I cannot imagine what those people, who thought these were important at the time, are feeling. I am getting a little worried about the whistleblower legislation, Bill C-11. It has been over a year now, in the last week of the last Parliament.
When we have done the work, when Parliament has passed it, all Houses, when it has royal assent, we want to know it has happened. If it does not happen, maybe the House has to consider another amendment, something to the effect that if a bill does not get royal assent within a reasonable period of time, reasons should be given. That is accountability.
I thank Senator Banks for all of his hard work. I commend the senators for their due diligence on this. I have satisfied myself that they have asked all the important questions and considered, as part of their review, the important questions of the day. They have referred us a bill which is in very good shape.
I ask all hon. members to support Bill S-202.