The Constitution of Canada sets out a
number of rules that define the limits on legislative action and circumscribe
what may be done by the government and
Parliament. [52]
The
effect of the legal duality, which is one of the unique characteristics of
Canada, may be to create differences in how a federal statute is applied and
interpreted, depending on whether the part of Canada where it is being applied
is governed by common law or civil
law. [53]
Bills must be enacted, published and
printed simultaneously in French and English. Section 133 of the Constitution
Act, 1867 requires that bills proceed in both languages through the entire
legislative process, including first
reading. [54]
Section
18 of the Constitution Act, 1982 further provides that both versions of
the statutes are equally authoritative.
Government Bills
The production of a government bill begins
when the government decides to transform a policy initiative into a legislative
proposal. [55]
The
Department of Justice then prepares a draft bill, following the instructions
given by Cabinet. [56]
The Minister of Justice is required to examine every bill introduced by a
Minister, and to ascertain that it is consistent with the Canadian Bill of
Rights and the Canadian Charter of Rights and
Freedoms. [57]
When a bill has been drafted in both
official languages, it must be approved by Cabinet before being introduced in
Parliament. The Government House Leader is responsible for reviewing the bill
and recommending that it be introduced in Parliament. Generally, the Government
House Leader asks Cabinet to delegate this responsibility to him or
her. [58]
Private Members’ Bills
Members of the House of Commons who are not
in Cabinet may introduce bills that will be considered under Private
Members’ Business. Members have access to legislative services, which are
under the authority of the Speaker of the House, for drafting their bills.
Before a bill is introduced in the House, the legislative services of the House
of Commons will certify that it is acceptable as to its form and compliance with
legislative and parliamentary
conventions. [59]
Private Bills
A private bill, which is sponsored by a
private Member, is founded on a petition which must first have received a
favourable report by the Examiner of Petitions or by the Standing Committee on
Procedure and House
Affairs. [60]
While the
form of a private bill is similar to that of a public bill, a private bill must
have a preamble, which is not mandatory for a public
bill. [61]
The Standing
Orders of the House also provide for certain rules of drafting and,
specifically, rules relating to bills for an Act of incorporation and bills
amending or repealing existing
Acts. [62]
Drafting by a Committee
A committee may be instructed to prepare
and bring in a
bill [63]
or a
committee may be appointed for that specific reason. In both cases, a motion for
the preparation of a bill by a committee may be moved by either a Minister or a
private Member. A committee that has been instructed to prepare a bill shall, in
its report, recommend the principles, scope and general provisions of the bill
and may, if it deems it appropriate, include recommendations regarding
legislative
wording. [64]
If the
House concurs in the committee report, this will be an order of the House to
bring in a bill based on the report.
Other Drafting Characteristics
Bills may also have other drafting
characteristics, depending on the purpose of the proposed
legislation.
- New legislation: Bills resulting
from a policy decision or, in some cases, to implement treaties, conventions or
agreements, to accept recommendations arising out of a report of a Task Force or
Royal Commission of Inquiry, to carry out administrative measures, or to deal
with emergencies. [65]
- Major revisions of existing Acts: Bills to revise an Act because it contains a sunset clause (certain Acts provide
that they must be revised after a certain period of time) or because of changing
economic or social standards or
circumstances. [66]
- Amendments to existing Acts: Bills
to amend existing Acts. The amendments may be of either a substantive or a
housekeeping nature.
- Statute law amendment bills: An
initiative for the purpose of eliminating anomalies, inconsistencies, archaisms
and errors in existing legislation and to deal with other matters of a
non-controversial and uncomplicated
nature. [67]
- Ways and Means bills: An initiative
based on Ways and Means motions, the purpose of which is to create a new income
or other tax, to continue a tax which is expiring, to increase a tax or to
extend the scope of a tax. These bills are governed by specific provisions of
the Standing
Orders. [68]
Only a
Minister may introduce a Ways and Means
bill. [69]
- Appropriation bills: An initiative
introduced in the House in response to the adoption of Main or Supplementary
Estimates or Interim Supply. These bills are also governed by specific
provisions of the Standing
Orders. [70]
Only a
Minister may introduce an appropriation bill.
- Borrowing authority bills: An
initiative to seek authority to raise money when public revenues are not
adequate to cover government
expenditures. [71]
- Pro forma bills: A pro forma bill is introduced by the Prime Minister at the beginning of each
session. It affirms the right of the House to conduct its proceedings and to
legislate, regardless of the reasons stated in the Speech from the Throne for
convening the House. The bill is entitled An Act respecting the
Administration of Oaths of Office; it is numbered C-1 but is not printed. It
is given first reading, but not second
reading. [72]
- Draft bills: This expression is
used to refer to the draft form of a bill that has not yet been introduced in
either House. Occasionally, the House may have the draft of a government bill
sent to a committee for examination. As the bill has not yet been given first
reading, the committee may examine the proposed legislation without being
constrained by the rules of the legislative process, and may recommend changes.
The government can then take the committee’s report into consideration
when finalizing the draft of the bill.
- Omnibus bills: Although this
expression is commonly used, there is no precise definition of an omnibus bill.
In general, an omnibus bill seeks to amend, repeal or enact several Acts, and it
is characterized by the fact that it has a number of related but separate
parts. [73]
An omnibus bill has “one basic principle
or purpose which ties together all the proposed enactments and thereby renders
the Bill intelligible for parliamentary
purposes”. [74]
One of the reasons cited for introducing an omnibus bill is to bring together in
a single bill all the legislative amendments resulting from a policy decision to
facilitate parliamentary
debate. [75]
The use of omnibus bills is unique to
Canada. The British Parliament does enact this kind of bill, but its legislative
practice is different, specifically in that there is much tighter control over
the length of debate. In the Australian Parliament, the opposite practice seems
to be followed (the procedure allows for related bills to be considered together
for the purpose of debate and
vote). [76]
It is not known exactly when the first
omnibus bills appeared, but as may be seen from the introduction of a private
bill to confirm two separate railway agreements, the practice seems to go back
to 1888. [77]
A number
of omnibus bills have been introduced and passed without any procedural
objection to their form being made by
Members. [78]
It appears to be entirely proper, in
procedural terms, for a bill to amend, repeal or enact more than one Act,
provided that the necessary notice is given, it is accompanied by the Royal
Recommendation (where necessary), and it follows the form
required. [79]
However,
on the question of whether the Chair can be persuaded to divide a bill simply
because it is complex or composite in nature, there are many precedents from
which it can be concluded that Canadian practice does not permit
this. [80]
Members have often rejected the
government’s reasons for introducing omnibus bills and have argued that
some omnibus bills are not acceptable. Frequently, they have cited their
“ancient privilege” to vote separately on each proposal which is
contained in a complex question. However, the Speakers of the House have ruled
that their power to divide complex questions could extend only to substantive
motions, and not to motions dealing with the progress of
bills. [81]
In calling
for the division of an omnibus bill, Members sometimes argue that the bill
contains more than one
principle. [82]
Occasionally, Members also contend that the long title of an omnibus bill should
refer to every act being amended. The Chair has ruled that this is not
necessary. [83]
Motions to divide omnibus bills have on
occasion been moved in committee, but these have been ruled out of order. Unless
a committee has received an instruction from the House, it may only report the
bill with or without
amendment. [84]
Committee chairs have also ruled against motions to submit two reports on one
bill in which each addressed specific topics in the bill, thus in effect
dividing the bill. [85]
However, committee chairs have ruled in order motions which would allow a
committee to seek an instruction to divide a
bill. [86]
Despite the refusal to divide omnibus
bills, the Speaker has expressed deep concerns about the right of Members to
make themselves heard
properly, [87]
and so
has occasionally felt the need to suggest what remedies Members have to deal
with the dilemma of having to approve several legislative provisions at the same
time. [88]
While there has never been an occasion
when the Chair has decided that a bill should be divided on the ground of
complexity, there are however three cases that are of particular interest. In
1981, during examination of Bill C-54, An Act to amend the statute law
relating to income tax and to provide other authority for raising funds,
Speaker Sauvé ordered that Part I of the bill, relating to borrowing
authority, be struck because the necessary notice had not been
given. [89]
Later in
the same session, another amending bill that dealt with both taxation and the
borrowing authority was introduced (Bill C-93). At the insistence of the
opposition, the government decided to withdraw the bill, on May 7, 1982, and
introduced two separate pieces of legislation on May 10,
1982. [90]
The division
of the omnibus bill in this case was brought about by the political process and
was not the result of any procedural argument. The most noteworthy case is Bill
C-94, Energy Security Act, 1982. On March 2, 1982, in response to a point
of order raised the day before, asking the Chair to divide the bill, Speaker
Sauvé ruled that there were no precedents which would permit her to
divide the bill. [91]
This led to the famous “bell-ringing” incident, as a result of which
the government ultimately moved, and the House passed, a motion to divide the
bill into eight separate pieces of
legislation. [92]
Once
again, the division of the omnibus bill was brought about by political
interaction.
Bills in Blank or in an Imperfect Shape
Since Confederation, the Chair has held
that the introduction of bills that contain blank passages or are in an
imperfect shape is clearly contrary to the Standing
Orders. [93]
A bill in
blank or in an imperfect shape is a bill which has only a title, or the drafting
of which has not been
completed. [94]
Although this provision deals mainly with errors identified when the bill is
introduced, Members have brought such defects or anomalies to the attention of
the Chair at various stages in the legislative process. In the past, the Speaker
has directed that the order for second reading of certain bills be discharged,
when it was discovered that they were not in their final form and were therefore
not ready to be introduced. [95]
Occasionally, bills contain provisions that
refer to legislation that has not yet been enacted. In April 1970, some Members
argued that a bill should be regarded as imperfect and should not be debated
because it incorporated provisions of two statutes which had not yet been
enacted. Although Speaker Lamoureux ruled that the bill was in order, he pointed
out that this question could be raised again on third reading, if the House was
asked at that stage to adopt a bill which was dependent on the adoption of other
legislation. [96]
Printing and Reprinting of Bills
Within a few hours after a bill has been
introduced and given first reading, it is printed and distributed to Members.
Every bill must be printed in both official
languages. [97]
The
bill will be reprinted after the committee stage, if it has been amended and the
committee orders that it be reprinted. It is then used as a working document for
the House at the report stage. After adoption at third reading, the bill as
passed by the House in its final form is reprinted for the Senate’s
consideration. Ultimately, it is reprinted in the form of an Act after receiving
Royal Assent, and it will then be published in the Canada Gazette and, at
the end of the year, in the Annual
Statutes. [98]
Clerical Alterations
The Chair has clearly ruled in the past
that when a bill is in possession of the House, it becomes its property, and
cannot be materially altered, except by the House itself. Only “mere
clerical alterations” are
allowed. [99]
By
issuing a corrigendum to the bill, the
Speaker [100]
may
correct any obvious printing or clerical error, at any stage of the
bill. [101]
On the
other hand, no substantive change may be made to the manner in which a bill was
worded when it was introduced, or when a committee reported on it, otherwise
than by an amendment passed by the
House. [102]