Forms of Bills
The enactment of a statute by Parliament is the final step in a long process that starts with the proposal, formulation and drafting of a bill. The drafting of a bill is a vital stage in this process, one which challenges the decision makers and drafters to take carefully into account certain constraints, since a failure to abide by these may have negative consequences in relation to the eventual interpretation and application of the law and to the proper functioning of the legislative process.
Limits on Legislative Action
The Constitution of Canada sets out a number of rules that limit the legislative powers and activity both of the government and of Parliament.53 The Canadian legal duality sometimes results in differences in the application and interpretation of a federal statute, depending on whether the part of Canada in which it is being applied is governed by the common law or by civil law.54
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.55 Section 18 of the Constitution Act, 1982 further requires that both versions of federal statutes be treated as equally authoritative.
A decision by the government to transform a policy initiative into a legislative proposal triggers the drafting process.56 The Department of Justice prepares a draft bill, following instructions given by Cabinet.57 The Minister of Justice is required to examine every bill introduced by a Minister in order to ascertain that it is consistent with the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms.58
Bills are drafted simultaneously in both official languages. Once drafted, they must be approved by Cabinet, after which the Government House Leader customarily reviews them and recommends in favour of or against their introduction in Parliament. Generally, the Government House Leader asks Cabinet to delegate the latter responsibility to him or her.59
Private Members’ Bills
Members of the House of Commons who are neither Ministers, nor Parliamentary Secretaries, nor Speaker, nor Deputy Speaker may introduce bills for consideration under Private Members’ Business. Legislative services are made available under the authority of the Speaker of the House to assist them in drafting their bills. Before a bill is introduced in the House, the Office of the Law Clerk and Parliamentary Counsel will certify that it is acceptable as to its form and compliance with legislative and parliamentary conventions.
A private bill may not be introduced by a Minister. It must be sponsored by a private Member and founded on a petition which must first have received a favourable report from the Examiner of Petitions or from 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 optional for a public bill.61 The Standing Orders of the House include certain rules of drafting specific to private bills, as well as rules relating exclusively to bills for Acts of incorporation and to bills amending or repealing existing Acts.62
Drafting by a Committee
A committee may be instructed to prepare and bring in a bill63 or a committee may be appointed for that specific purpose. Motions to this effect made pursuant to the appropriate Standing Order may be moved only by a Minister. 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, recommend specific legislative wording.64 If the House concurs in the committee’s report, this will constitute an order of the House to bring in a bill based on the report.65
There exist many different drafting characteristics, depending on the purpose of the proposed legislation.66
- New legislation: Bills resulting from policy decisions 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.67
- Major revisions of existing Acts: Bills to revise an Act because it contains a sunset clause (providing that it must be revised after a certain period of time) or because of changing economic or social standards or circumstances.68
- Amendments to existing Acts: Bills to amend existing Acts. The amendments may be either of a substantive or of a housekeeping nature.
- Statute law amendment bills: Initiatives to eliminate anomalies, inconsistencies, archaisms or errors in existing legislation and to deal with other matters of a non-controversial and uncomplicated nature.69
- Ways and means bills: Initiatives based on ways and means motions, the purpose of which is to create a new income tax or other taxes, 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.70 Only a Minister may introduce a ways and means bill.71
- Appropriation bills: Initiatives 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.72 Only a Minister may introduce an appropriation bill.
- Borrowing authority bills: The government exercises its borrowing authority when there is a shortfall between its expenditures and its revenues.73
- 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 Parliament. The bill is entitled An Act Respecting the Administration of Oaths of Office and is numbered C-1 but is not usually printed.74 It is given first reading, but not second reading.75
- Draft bills: This expression is used to refer to the draft form of bills that have 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 was no agreed upon definition of an omnibus bill prior to the 2017 amendments to the Standing Orders. In general, an omnibus bill seeks to amend, repeal or enact several Acts, and is characterized by the fact that it is made up of a number of related but separate initiatives.76 To render an omnibus bill intelligible for parliamentary purposes, the Speaker has previously ruled that such a bill should have “one basic principle or purpose which ties together all the proposed enactments”.77 One of the reasons cited for introducing an omnibus bill is to bring together in a single bill all the legislative amendments arising from a single policy decision in order to facilitate parliamentary debate.78
The use of omnibus bills is unique to Canada. The British Parliament does enact bills that are similar in type, 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 voting.79
It is not known exactly when omnibus bills first appeared but, from the introduction of a private bill to confirm two separate railway agreements, it would appear that the practice existed as early as 1888.80 A number of omnibus bills were subsequently introduced and passed without any procedural objection to their form being raised by Members.81
It appears to be entirely proper, in procedural terms, for a bill to amend, repeal or enact more than one Act, provided that the requisite notice is given, that it is accompanied by a royal recommendation (where necessary), and that it follows the form required.82 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.83
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 attempted to invoke their “ancient privilege” to vote separately on each proposal which is contained in a complex question. Speakers of the House have nonetheless ruled that their power to divide complex questions could extend only to substantive motions and not to motions concerned with the progress of bills.84 However, an amendment to the Standing Orders passed in 2017 allows the House to vote on each unrelated matter in an omnibus bill. When a government bill lacks a common element connecting the various provisions or when unrelated matters are linked, the Speaker can combine clauses of the bill thematically and put several questions at second and third reading. However, the bill is referred to only one committee. This new Standing Order does not apply if the main purpose of the bill is to implement a budget and its provisions have been announced in the budget presentation.
Furthermore, in calling for the division of an omnibus bill, Members sometimes argue that the bill embodies more than one principle.86 Occasionally, Members also contend that the long title of an omnibus bill should refer to every act being amended. The Chair has ruled this unnecessary.87
When moved in committee, motions to divide omnibus bills have been ruled out of order. Unless a committee has been otherwise instructed by the House, it may report the bill only with or without amendment.88 Members have, from time to time, proposed motions of instruction in the House to divide bills already referred to committees.89
Committee Chairs have also ruled against motions to submit two reports on one bill in which each addressed specific topics in the bill, thus effectively dividing the bill.90 On the other hand, committee Chairs have ruled in order motions that a committee seek instruction to divide a bill.91
Despite their refusal to divide omnibus bills, Speakers have expressed deep concern for the right of Members to make themselves heard properly,92 and have accordingly felt the need on occasion to remind the House of the remedies available to Members faced with the dilemma of having to approve several legislative provisions at the same time.93
While there has never been an occasion on which the Chair has decided that a bill should be divided on the ground of complexity, there are 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.94 Later in the same session, another amending bill that dealt both with taxation and borrowing authority was introduced (Bill C-93). At the insistence of the opposition, the government withdrew the bill, on May 7, 1982, and subsequently introduced two separate pieces of legislation on May 10, 1982.95 The division of the omnibus bill resulted from the political process and not from any procedural argument. Finally, on March 2, 1982, in response to a point of order raised the day before, appealing to the Chair to divide Bill C-94, the Energy Security Act, 1982, Speaker Sauvé ruled that there were no precedents which would permit her to do so.96 This led to the famous bell ringing episode, as a consequence of which the government ultimately moved, and the House passed, a motion to divide the bill into eight separate pieces of legislation.97 Once again, the division of the omnibus bill was brought about by political interaction.
In the Forty-First Parliament, the introduction of omnibus bills led to several rulings from the Chair. Generally, the Speaker responded by reminding the House that until it adopted specific rules relating to omnibus bills, the Chair’s role was limited and, therefore, there was no reason to rule an omnibus bill out of order.98 In the Forty-Second Parliament, a Standing Order was added allowing for separate votes on unrelated matters in an omnibus bill.99
Bills in Blank or in an Imperfect Shape
Since Confederation, the Chair has held that the introduction of bills that contain blank passages or that are in an imperfect shape is clearly contrary to the Standing Orders.100 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.101 Although this provision exists mainly in contemplation of errors identified when a 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.102
Occasionally, bills contain provisions in respect of legislation not yet 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.103
Printing and Reprinting of Bills
Within a few hours of the introduction and first reading of a bill, it is printed and made available publicly. Every bill must be printed in both official languages.104 The bill will be reprinted after the committee stage, if it has been amended and if the committee orders that it be reprinted. It is then used as a working document for the House at 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, published in the Canada Gazette and, at the end of the year, in the Annual Statutes of Canada.105
The Chair has clearly ruled in the past that a bill in possession of the House becomes its property and cannot be altered materially, except by the House itself. Only “mere clerical alterations” are allowed.106 By issuing a corrigendum to the bill, the Speaker may correct any obvious printing or clerical errors, at any stage of the bill.107 Since 2009, the Law Clerk of the House of Commons has had the authority to make minor non-substantive corrections to bills. The Law Clerk is then required to report these corrections to the Clerk of the House of Commons.108