Bill S-202 (Historical)

Statutes Repeal Act

An Act to repeal legislation that has not come into force within ten years of receiving royal assent

Statutes Repeal Act

[Robert Thibault, Liberal, West Nova, NS]

Mr. Speaker, I am pleased to speak to the House in support of this bill from the Senate. It will be very useful for all of Parliament.

It is not often that we get a chance to discuss a bill that we can agree on. This private member's bill seems to have the agreement of all parties. It has very good support in the Senate. It is not a bill that attracts a lot of attention. I have not received a lot of calls in my riding on this bill. It does not get a lot of media attention. The bill shows, for one thing, that Parliament can work and that there can be some good cooperation among parties.

The bill seeks to make Parliament work better in the future, to solve problems before they arise. There may not have been a thousand cases of where not having this type of bill has hurt Canadians, but I think we can see that the potential is there and in other instances where Canadians are not getting the benefit that Parliament intended. Previous speakers spoke about the bankruptcy protection act for workers which is an excellent example. It was passed by both Houses and it received royal assent but has not been brought into force.

I would like to begin by thanking the other place for its excellent work, and particularly Senator Banks, who has taken this on and has made great arguments. He has done a lot of good research on this matter. I think it advances the mark. I am not sure that it accomplishes the full task of what we should be doing. We should be asking very fundamental questions about why a bill can go through the House, be enacted, go through the Senate, committees, hear witnesses, be approved by both Houses of Parliament, receive royal assent, and then the government chooses not to put it into force.

Perhaps it is important for Canadians to understand that there is an operative clause in many of these bills, usually the last clause, that says the bill would come into force with the approval of the governor in council. That essentially means that cabinet would decide, and cabinet is government. There can be good reasons for that.

For example, the bill could be dealing with agreements that have to take place or be negotiated. It could have interprovincial ramifications, meaning that changes might have to be made to laws in other provinces. We have had that in certain instances with the Criminal Code where changes needed to be made in the provinces that have not happened. In those cases, we would see the reason behind it. We cannot have provincial acts and federal acts saying opposite things.

There could be other acts of Parliament that go through or are initiated with some discussion that gives reason for the original act to be not valid, sometimes counterproductive, or having a different intent.

Another example are international treaties or Canadian treaties with first nations that have to be taken into consideration. Sometimes they need negotiations and the act cannot be brought into force until those negotiations happen.

I believe there are 56 such acts of Parliament that have received royal assent but have not been proclaimed because they are waiting for governor in council proclamation. This raises the question of certainty. If I am going to be favourably affected by such an act, then I would want the certainty that the act would be implemented. If I am going to be negatively affected, or if it can change the outcome of my day-to-day decision-making processes, then I should have the right to know that also. I should have the right to know that the bill or the act will be proclaimed or withdrawn. I believe it is very good in that sense.

I find a 10 year time period a bit long. Some senators have suggested that perhaps it should have been a five year period. I would suggest that perhaps there could be other elements added to the bill, and the committee will certainly be reviewing this. Maybe there should be an annual listing of all the acts, not just at the 10 year period but at the one year, two year, or three year period. Parliament could be told where the legislation is in the process, why it has not been proclaimed, or what the holdup is. Parliament could be appraised of the situation. Again, I reference the bankruptcy provisions to protect workers.

The purpose of a bill passed by Parliament is to advise government, government being cabinet, to enact and put in place that piece of legislation so that the bureaucracy, civil servants, can make the decisions and take the actions that are deemed necessary by Parliament.

If we look at a bunch of acts that are not proclaimed or put into force, we could suggest that cabinet or government is looking at the effect of a private member's bill and sometimes even a government bill saying, “That is what the House thinks but we know better”. I do not think that is the intention and that is not how Parliament should work. Parliament is supreme and the governor in council should enact the will of Parliament as soon as possible. The only way we can know whether that is being done or whether there is justification for what government decides is that there be an annual review to look at each of the bills to see why they have not been put into force.

We live every day with ministerial discretion that gives a lot of power to a minister, not necessarily just the governor in council but as a minister independently. We have a bill before the House now on the modernization of the Fisheries Act. It is a very old act that needs modernization. I am looking forward to having a serious debate on it.

I wish we could have good consultations with the fisheries industry and the communities affected so that modifications could be brought to the proposed act. I am quite comfortable that 99% of it is good, but there needs to be some changes and clarifications and there has been a refusal to do so.

My point is that when we look at the old act, there is so much ministerial power and discretion, and the new act possibly gives more to a minister. In this case the Minister of Fisheries and Oceans could make a decision in which all would agree with the principle, as was announced a couple of weeks ago on licensing provisions and regulations in the lobster fishery in western Nova Scotia. That can have some negative effects and not give the opportunity for proper discussions and consultations on how to negate and minimize the negative effects and encourage the positive.

Protection of the independence of the inshore fleet is very positive, people want that, but they do not need an artificial effect of decreasing the value of their licences which is, in the case of family businesses, the pension plan of fishermen and their families. A quick decision by a minister without consultation and proper regard can have a negative impact. We must ensure we have those types of discussions.

In the case of bills that are brought before the House, usually we have a lot of discussions in various ways. We can have them go to committee at first reading, have public input at that time, have consultation prior to the bill being drafted, consultation after the bill is drafted, and consultation at second reading both in the House and the Senate. One would think that once that process has been followed, the will of the House should be supreme. It is in law but in practice sometimes it is not because the government will decide when it will bring a bill into force.

I was pleased to see that in this bill itself the drafter had the wisdom to put in the sixth article that this act comes into force two years after the day it receives royal assent. Ironically, had the drafter not done that and inserted the typical operative clause saying it would come into force at the proclamation of the governor in council, the bill might not be able to do at all what it seeks to do, which is to make sure these acts of Parliament are put into force unless there are valuable reasons not to, and there can be. I suggest that probably in most cases there are.

What is suggested now is a review in the ninth year. I would invite the committee to consider an annual review of all bills that are in limbo, all of them. I am sure only two or three would have to be debated. With that, I am pleased to add my support along with other members of the House to this important bill.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Mr. Speaker, on many occasions in the House we have differences on all sides of the House, sometimes minor and sometimes sharp, but today it is a pleasure to see a fair degree of unanimity in dealing with the occasionally mundane, but most necessary, mechanics of the efficient operation of the House.

It is for that reason that I am glad to have the opportunity to comment in a positive manner on Bill S-202. It is an important initiative and one that I know most, if not all, members of our party fully support.

Today I will focus my comments on the question of how much oversight would be appropriate in respect of the coming into force of legislation considering all the other responsibilities that Parliament has to discharge. To be more to the point, I would like to address the question of how soon Parliament's attention should be drawn to the fact that particular acts or provisions have not been brought into force.

As we know, Bill S-202 would require the Minister of Justice to report at the beginning of each calendar year on all acts and provisions that have not been brought into force in the past nine years. These acts and provisions would be repealed at the end of the year unless during the year they were brought into force or exempted from repeal by a resolution of either Houses of Parliament.

The only basis on which legislation would be reported would be how much time has passed since it was adopted by Parliament. No partisan or political motives could influence the content of this report, and to me that is very important. This single criterion ensures that at one point in time every provision that has not been brought into force will be brought to the attention of Parliament and the government will need to account for it.

The downside, if I may use that expression, of having this single criterion is that it treats all acts and provisions in the same way, regardless of their significance, which may range from granting important rights to making relatively minor technical amendments.

During the December debate, the hon. member for Rivière-du-Nord suggested that a 10 year period following the adoption of legislation was far too long and that any legislation that has not been brought into force within 5 years should be repealed. I would like to express some concerns about reducing the timeframe from 10 years to 5 years as she suggested.

Under the current 10 year period, the first report to be tabled by the Minister of Justice would include four complete acts and provisions in about 60 statutes. We need to keep in mind that the first report should be the longest because it will cover old legislation. That kind of systematic repeal of obsolete provisions was last done by the statute revision of 1985. We would expect the following reports to be shorter after the first set of repeals have been made under Bill S-202.

I have had the benefit of looking at a list of all acts and provisions that would be added to the list of legislation to be repealed if the bill were amended, as suggested by the hon. member, to refer to a five year period of repeal instead of a ten year period. This simple change would add one complete statute, the Specific Claims Resolution Act, and over 150 provisions in 18 statutes. That is a lot of legislation to be reviewed by Parliament.

When I compared the results created by reducing the repeal period from 10 years to 5 years, it left me with the impression that a number of these additional provisions would probably have been brought into force between 5 years and 10 years. I am concerned about spending too much time too soon on provisions that would probably not appear on the same list five years later because they would already have been dealt with in the meantime.

Multiple consequential amendments are sometimes dependent on a single action to be completed. For example, the Cape Breton Development Corporation Divestiture Authorization and Dissolution Act provides for the dissolution of the corporation and some things can only be done once the corporation is dissolved. For the same reasons, some provisions, for example deleting references to that corporation, can only be brought into force once the corporation ceases to exist.

We can find such provisions in the five year list but they would likely not appear on a ten year list. Is it the best use of Parliament's time then to simply review such provisions?

I understand the importance and am in favour of having proper parliamentary oversight but I am concerned that in most of these cases added by a five year rule it would simply exceed what is necessary to keep track of implementation of legislation by government. In other words, during the due course of time it will probably be dealt with.

I am not the sponsor of Bill S-202 but, from the previous debates at the other place, I understand that the aim of the bill is not to simply repeal everything as soon as possible.

As I mentioned last December, there are valid reasons why some legislation takes time to be implemented. I do not believe anyone in this House is in disagreement with this point. The effect of the bill would be to provide an opportunity to consider the validity of these reasons at some point in time.

What would be the point of asking Parliament to spend time on so many items that would eventually have been resolved anyway? Considering that it often takes years for particular statutes to be adopted by Parliament, is it necessary to systematically start reviewing their coming into force as quickly as four years after their adoption? In very particular cases, Parliament provides that a review of an act be undertaken after five or ten years. This is an exceptional measure to monitor the impact of significant legislation, like the Anti-terrorism Act which touches on fundamental rights and values.

The purpose of Bill S-202 is not to provide for such parliamentary review across the board. I am concerned that not all provisions that would fall under the five year timeframe would be of such an extraordinary importance as to require Parliament's attention after simply a few years of their enactment. If they are so important as to require Parliament's attention, nothing prevents parliamentarians from asking the responsible minister what is happening in that respect and questions can be raised much sooner than before the end of five years.

Although I concede there is no magic in the particular number of years, four, five, six, seven, eight, nine, ten, it seems to me that when legislation has not been brought into force within ten years there are reasons to be concerned that nothing has been done to bring it into force. However, relatively few acts and provisions should survive this timeframe.

I mentioned last December that there can be valid reasons why legislation might take a significant time to bring into force. These reasons often have to do with the need to make administrative arrangements before implementing new programs or measures, or the time required to coordinate them with provincial, territorial or foreign governments. Parliament, though, should be entitled, as provided in Bill S-202, to receive answers.

The other point I would like to make in this respect is that once a piece of legislation appears on the list in a given year, a resolution of either Houses of Parliament will be required to save it from repeal at the end of the year and such resolution will be required every year until the legislation is finally implemented or repealed.

Do we really want to hear about an international treaty implementation act every year for five years? Quite frankly, no. This House has many pressing, urgent, necessary and demanding issues to be dealt with but it is quite common for legislation like that to take years to implement. Parliament's time is precious and it should not be spent on issues that would be resolved in due time.

I am all in favour of a process that would require the government to explain thoroughly why legislation adopted by Parliament has not been brought into force. However, I am concerned that if we put in place a threshold that is too low, like a review within five years, we would spend time on issues that would have been resolved if we had simply waited a few more years. By waiting until 10 years, chances are that only significant problems would reach Parliament. Is that not our duty? It seems to me to be a much better use of Parliament's resources.

Finally, I will repeat that if a situation requires Parliament's attention before 10 years because it is pressing, it is urgent or it is a matter that should be dealt with by Parliament, nothing really prevents any member of the House to ask for explanations from the responsible minister.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I want to speak briefly to the bill but I definitely will be supporting the bill brought forward by my colleague, the member for Mississauga South. He is a tremendous legislator who has a great understanding of the House, how it works and how it might be improved.

In such a complex system, items can sit around for years or fall between the cracks and people do not know they are there. They complicate an already complicated system. We do not need anything to make the system more complicated or to hold up the business of the country so anything we can do to streamline that and make it more effective I am sure all parliamentarians would agree.

The process for some bills is that after they receive royal assent from the Queen or the Governor General, they must then be proclaimed. Some of them come into effect on a particular date specified in the bill. Those are not the types of bills we are talking about today.

Other bills must be proclaimed by the government and, if that does not happen, then the bill does not come into effect. It could sit on the books forever which could cause a very confusing situation. In fact, years and decades later someone could proclaim a bill that was anachronistic, that had nothing to do with the times and it could be very dangerous, inefficient or not useful at all. This bill would simply clean up that situation.

A number of colleagues have already said that they wonder why that situation exists but the present system makes it possible to exist. My hon. colleague from Mississauga discovered that and came forward with this legislation to help fix that situation.

The legislation would provide that bills which have not been proclaimed after 10 years would no longer be in effect or be eligible to be in effect. The government could bring it back in the future but the legislation would allow a decision time of 10 years so that it would not be clutter and that it could not, perhaps by mistake or anachronistically, be brought into effect when it was not really meant to do so.

One thing we would want to be sure of in this process is that a bill would not be lost by accident. All of a sudden 10 years is up and the bills that might have been important, that might have been waiting for some important reasons that were mentioned by the members of the government and some other speaker to be proclaimed, they die because of the bill. However, the bill makes provisions for that. Bills will not just quietly die because a report would need to be made to the House after nine years. It also contains provisions to ensure that everyone is aware that this is about to take place and to give good consideration.

Once again, it would improve the system. When something is happening which people may not have been aware of or other exigencies or other important priorities have come forward and people have forgotten about it, the legislation would bring it back to the attention of the House that Parliament had decided to do something, that both Houses of Parliament had agreed and had passed all the procedures and for some reason it is still sitting there. The legislation would bring it to a decision point and a timely decision would be made so it does not just sit there.

At the moment about 57 bills have actually had royal assent but have not yet been proclaimed. Three of those are over 10 years old. We are not talking about a huge number of bills but there are enough that the bill is necessary as a housekeeping amendment to make Parliament and the legislative process more efficient.

I strongly support my colleague's bill and I hope the House will support it too.

I want to use the remaining time to float another concept that parliamentarians might think about in the future, which is that all legislation should sunset. There is legislation that is so old and anachronistic that it does not make any sense. Currently there are so many laws and the system is so big that the laws simply remain in force. There should be a provision that after a certain time, maybe 20 or 30 years, every bill would expire or would have to be renewed through a vote of Parliament to make sure it was still relevant.

Parliamentarians are very good at creating programs, legislation, expenditures and laws. However, they are not very good at getting rid of them when they are no longer useful.

This would affect virtually all departments and agencies of government. They would have to review what was in place and not let legislation just sit on the books. This could lead to all sorts of work, but on the other hand it would lead to a very timely review of ancient, anachronistic and useless provisions that had been created in a different era.

In the acceleration of the knowledge based world changes happen very fast and laws become outdated fairly quickly. This idea would provide a check and an update on everything the government has put into place. At some timeframe in the future all laws and programs would be reviewed by the appropriate departments and ultimately by Parliament.

This is something for parliamentarians to think about when improving the parliamentary system in the future.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I would like to make a few remarks about Bill S-202, the statutes repeal act.

This bill as adopted in the other place is a valuable initiative. Like my hon. colleague, I am concerned about amending it to reduce from 10 to five years the period after which legislation could be repealed. I do not believe the purpose of the bill is to bring legislation into force as soon as possible. The appropriate time to do so is when the right conditions are in place, not as soon as possible. The real problem to be addressed is how to prevent the government from delaying indefinitely the coming into force of legislation.

Bill S-202 provides a good solution. By now we are all familiar with the process that Bill S-202 proposes to put in place. I do not intend to describe it in detail; I would prefer to focus on the problem it attempts to solve.

When Parliament is not in a position to bring an act or provision into force on royal assent, or identify a day for its coming into force, it has to rely on another mechanism to ensure that the legislation comes into force at the right time. The usual mechanism is to delegate to the government the power to select the day on which the act or provision would come into force. This is because the government should be in a better position after royal assent to assess when that time should be.

As we know, once Parliament has delegated to the governor in council the power to fix the coming into force date of legislation, it is a matter for the government to decide. As long as it considers from time to time the appropriateness of bringing the legislation into force, it has fulfilled its duties.

Until now, the only sanction the government could expect for failing to bring legislation into force was criticism in Parliament or elsewhere. Bill S-202 would ensure that the government could not consider indefinitely when legislation should come into force.

After 10 years the legislation would be repealed by operation of the law. By repealing the legislation after 10 years, Bill S-202 would ensure that the government seriously and regularly considered bringing legislation into force or it would lose the power to do so.

In addition, the reasons behind decisions not to bring legislation into force would have to be presented before Parliament in order for a resolution to be adopted deferring the repeal of the legislation. The bill would not, however, allow the government to easily dispense with legislation that it does not intend to implement at any time.

The report tabled annually by the minister of justice would put Parliament on notice that the acts and provisions it lists could be repealed at the end of the year. Any member of either house of Parliament could seek to prevent the repeal of legislation by proposing a resolution to that effect. In short, the government would have to publicly account to Parliament for the way it has exercised the power delegated by Parliament.

This new mechanism would improve our legislative process by implementing a mandatory parliamentary oversight nine years after powers have been delegated to the government to bring legislation into force. This would be an original process which has no equivalent, to my knowledge, in any of the Canadian legislatures.

Without any point of comparison, it is difficult to assess what would be the best parameter. Should legislation be repealed after 10 or five years? It is hard to assess, but considering how long it would take to re-enact legislation that would be repealed under this bill, should that be found necessary, I suggest that it might be better to keep a higher threshold. Therefore, in this regard, I disagree with the Bloc member who spoke earlier in favour of the five year threshold.

As my hon. colleague from Prince Edward—Hastings has mentioned before, there are many valid reasons why legislation might take time to be brought into force. I am concerned that if the repeal period were reduced from 10 to five years, the government might often be put in a situation where the conditions or circumstances necessary for bringing some legislation into force would not yet exist.

For example, not all the provinces or territories are ready to participate in a program or put in place a procedure needed to implement federal legislation. The procedures for enforcing federal offences under the Contraventions Act are a case in point. To keep such necessary legislation alive, the government would have to request either house of Parliament to adopt a resolution every year for a number of years.

A resolution is a good and transparent way to decide if an exemption from repeal should be allowed, but if after four years we have to seek resolutions to legislation that might take over 10 years to implement, it seems to me that Parliament would devote a lot of time to the same question that it cannot resolve because the coming into force depends on external factors. A good example of this is the Comprehensive Nuclear Test-Ban Treaty Implementation Act which was enacted in 1998.

[The Acting Speaker, Andrew Scheer]

Unfortunately for the hon. member, the time has expired for this hour of debate, but I will go to the hon. member for Mississauga South for his five minute right of reply.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, Bill S-202 has been proposed a number of times since 2002.

If members had read the summary they would have gotten the idea that there were some solutions in it to some of the questions that were raised. The summary states that the enactment provides that any act or provision of an act, i.e. a part of an act, that is to come into force on a day to be fixed by proclamation or order of the governor in council must be included in an annual report laid before both houses of Parliament if it does not come into force by the December 31 that is nine years after it receives royal assent. The act or provisions are repealed if they do not come into force by the following December 31, unless during that year either house, the Commons or the Senate, passes a resolution that it not be repealed.

There is that stop period in case matters come before either house that would make proper argument that repeal should not take place.

The enactment applies to all acts, whether introduced in either house. It applies to government bills, private members' bills, public bills and private bills that provide for a coming into force to be set by the governor in council.

This is simply a summary, but I would like to point out that the reaction of parliamentarians thus far has been somewhat of astonishment that there could be 57 bills that have received royal assent and have not come into force. What is happening? Never mind after nine years, why is there not an annual report of all the bills that have received royal assent and have not been proclaimed. The report could provide a basic statement for the reasons the acts have not been put into force.

I understand there are some bills that have some regulations that are very complex. For example, the reproductive technologies regulations took about two years to develop and they still have not been fully implemented. We can understand how some bills can take time and there is good reason, but in many of the bills it is clear from my review of them that there is no good reason for the failure to proclaim them.

We have had a very thoughtful debate at second reading. There have been some interesting propositions about how the bill may be further improved and considered by the standing committee which will call the necessary witnesses. Let us make absolutely sure that the legislation substantiates the wish we make each day as we say our prayer that we make good laws and wise decisions.

I thank all hon. members who participated in the debate. I believe there is broad support for at least approval in principle at second reading. Let us move the bill to committee so that we can consider further Bill S-202 on behalf of Senator Tommy Banks.

[The Acting Speaker, Andrew Scheer]

It being 12:03 p.m., the time provided for debate has expired.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Andrew Scheer]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Justice and Human Rights.

(Motion agreed to, bill read the second time and referred to a committee)