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Standing Committee on Justice and Human Rights


NUMBER 058 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, May 30, 2017

[Recorded by Electronic Apparatus]

  (1540)  

[English]

    Our clerk is down trying to get the witnesses through security, but I thought we might at least, before they come in, agree on a schedule for the next couple of meetings.
    As everybody has seen, Ms. Roussel's nomination for the Director of Public Prosecutions came through. We received the documents, together with her curriculum vitae, today. She is available to testify next Tuesday, and I am wondering if committee members would be willing to have her here next Tuesday.
    Is it necessary?
    It's apparently part of the requirement that she meet the committee.
    Well, I know she'll do very well.
    Is everybody okay with next Tuesday?
    Sure. It sounds good.
    Wonderful.
    That's June 6.
    Yes.
    The other question is that we've received the analysts' notes to start our legal aid recommendations. Currently we have the MSLA, which we need to finish today. If we don't finish this, it would go on to Thursday. If we do finish it today, which I'm not sure we can because of the votes, would we be ready on Thursday to do the recommendations on legal aid, or would you like to carry that over until next week to have more time to study the analysts' report?
     Would we be okay to do that next Thursday? Of course, if Bill C-46 comes, we may revisit that as a group. Is everybody good with that?
    Today, while we are waiting for the witnesses, what I will recommend with the MSLA is that we go one after another, and if anybody has questions or comments on any clause, we'll discuss it with the witnesses, and then if there is any objection, it will be withdrawn, as we need unanimous consent to proceed with each of the provisions.
    At this point, until the witnesses get here, I'm pretty stymied as to proceeding, so let's just briefly recess while we wait for the witnesses.

  (1540)  


  (1540)  

    I would like to welcome our witnesses from the Department of Justice. They have come to help us answer any questions we have on the Miscellaneous Statute Law Amendment Act, 2017.
    We are joined by Mala Khanna, acting deputy assistant deputy minister, public law and legislative services sector; Jean-Charles Bélanger, deputy chief legislative counsel, legislative services branch, public law and legislative services sector; Jacqueline Yost, legislative counsel, legislative services branch, public law and legislative services sector; and Mélanie Beaudoin, legislative counsel, legislative services branch, public law and legislative services sector.
    Welcome.

[Translation]

    We were discussing how this meeting will proceed. We are ready to begin our study.

[English]

    We're going to be starting with clause 1. We will come to you as any member of the committee has questions going through the list. If there are no questions and everybody is in accord, we will just approve unanimously that number. Is everybody good with that?
    I notice somebody has comments. We have a vote. Are the comments necessary?
    Yes, I mean the opening remarks.
    We had prepared opening remarks, but we're happy to proceed as you have laid out.

  (1545)  

    I think we should proceed, given the fact that the bells are going to start ringing at four o'clock.
    We're happy to do so, and I would like to express our sincere apologies for being late. There are many people downstairs.
    We understand. Security is very difficult these days.
    Ladies and gentlemen, we're going start with clause 1, and we will proceed.
    Clause 1 is on the short title, proposals for a Mr. Speaker, a Miscellaneous Statute Law Amendment Act, 2017. Is clause 1 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Good. I'll assume it's without objection if I don't hear an objection.
    Is clause 2, amendments to the Aeronautics Act, okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 3, also on an amendment to the Aeronautics Act, okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 4 okay with everyone?
    Some hon. members: Agreed.
    The Chair: On clause 5, if nobody else on the committee has questions, I have questions on clause 5. Is everybody else okay?
    My question relates to the changes to subsection 25(2) of the Bankruptcy and Insolvency Act. We've now changed the English to say, “All payments made by a trustee under subsection (1.3)”, and in the French we're saying, “ faits par un syndic”.
    Instead of saying “All”, which would be “Tous les”, we're saying “Ces”, and we've made reference to it being under subsection (1.3) in the English, so it should be “par un syndic au paragraphe 25(1.3)“.
     That's not there in the French. Can somebody explain why?
    What it boils down to is that English drafting conventions and French drafting conventions are slightly different. As an anglophone drafter, I will admit that we do tend to have more cross-references than our francophone colleagues do. In this case, we also changed the French version. Originally, it said “tous paiements ”. Out of an abundance of caution, when subsection 25(1) was split out and the other subsections were added, the payments moved to subsection 25(1.3). In French, changing “tous” to “ces” is a cross-reference in itself. It's a linking word that sends you back to the payments in the immediately preceding subsection. Therefore, we do have equivalence between the two.
    Why wouldn't you say “tous paiements” and then reference subsection 25(1.3)? That would have been much clearer, at least to me as a reader in French.

[Translation]

    Indeed, as my colleague mentioned, it could have been written a number of ways. In this case, it was felt that the same result was obtained by using the word “ces”. So, the subsequent subsection was referred to and, therefore, restricted the payments referenced in subsection 25(1.3).
    Yes, there was more than one way of doing it. However, in this case, we are working in the context of statute law amendments. We want to be as little invasive as possible and make as few changes as possible to the text of the provision. For all these reasons, we have simply decided to substitute the word “tous” for the word “ces” which happens—
    You mean that you substituted the word “ces” with the word “tous”.
    We are replacing the word “tous” with the word “ces”. The initial expression was “tous paiements”, which wasn't clear because “tous paiements” could mean “tous paiements dans la loi”. By replacing the word “tous” with the word “ces”, we are referring to the payments involved immediately prior, in subsection 25(1.3).

[English]

    I'm not a legislative drafter. If you're telling me that this is what you intended, I am not going to object. I feel that it would have been clearer the other way.
    Members of the committee, are you good with that explanation?
    Some hon. members: Agreed.
    The Chair: All right, now we move to clause 6. Does any member of the committee have any points on clause 6?
    If not, I have the same question on paragraph 50.4(8)(c), where we have amended the English to refer to paragraph 50.4(8)(b.1), but the French has not been modified.
    An hon. member: It's in there.
    The Chair: The old French is not being modified; it doesn't reference (b.1).

  (1550)  

    Again, this is a very similar explanation to that which my colleague and I gave when we spoke to the previous clause.
    In this case, there is no current cross-reference in the French version of paragraph (c). In the English version, there is a cross-reference to paragraph (b) in the current (c) and that needed to be corrected to (b.1).
     In the interests of being minimally invasive in making the corrections that are necessary, we try to be as conservative as possible when drafting the MSLA.
    Again, there is an equivalence between the English and the French. It just reflects what we call le génie de la langue. Each language has its own way of expressing things, its own rules of grammar, and its own rules of linking words, so the English and the French come to the same substantive result without being exactly word for word identical, because that would actually cause problems.
    I understand that, but again, in the English we are saying “five days after the day the certificate mentioned in paragraph (b.1) is issued”, and in the French we are saying “dans les cinq jours suivant la délivrance du certificat”. We are not saying “visé à l'alinéa b.1)”.
    When we are making the English precise, I just don't understand why we are not doing an equivalent thing with the French.

[Translation]

    The French legislative style tends to use more demonstratives because the principle of reading the article from beginning to end is applied. When the same generic term and a demonstrative are used, there is no possible confusion, and it is clear that we are talking about what has just come before, the French version tends to omit the internal references.
    Is this the only certificate of surrender referred to throughout the legislation?
    With respect to this section, as it reads from beginning to end, it must be clear that the certificate of surrender referred to above is the one just mentioned in the preceding subparagraph.
    Thank you.
    I'm still having difficulty understanding why the English version is clear and very precise, and the French version isn't. If you, the drafters, say that this is the right way, I won't object, but I find that it's much less clear now in French than it is in English.

[English]

     Again, I'm not the legislative drafter.
    Is everybody good with proceeding? I've offered my comments.
    Is everyone okay with clause 7?
    Some hon. members: Agreed.
    The Chair: In clause 8, we have exactly the same thing again, where paragraph (b.1) is referenced in one language and not in the other, but I'm not going to push it any further.
    Is clause 8 approved?
    Some hon. members: Agreed.
    The Chair: We'll go to clause 9.
    Mr. Nicholson.
    I wonder why you're changing the words there. The current words refer to a “gift or settlement without adequate valuable consideration”. Everybody understands that, something you get without adequate valuable consideration, or a gift. Now you have this new term in there, “transfer at undervalue”. Are you trying to consolidate the two? Is that what it is? Most people understand if you say, “I got a gift,” or “I got something without adequate valuable consideration.”
    What is the rationale for the new wording?
    Absolutely.
    In this case, “transfer at undervalue” has now become a defined term in the act. When we use a defined term, we go back to the definition in the definition section. Previously, the word “settlement” was defined. It said, “settlement includes”. Then it had “gift,” “contracted without valuable consideration,” and a few other things.
    In this particular instance, the current version speaks to a gift, or settlement without adequate valuable consideration, which means that they were using “without valuable consideration” to restrain the dictionary meaning of “settlement”.
    When the defined term has “includes”, you take the definition and you add to it, so it was taking a portion of the defined term.
    When they replaced the defined term “settlement” and used “transfer at undervalue” to speak only to things that were a disposition of property with no consideration and without fair market value, what it did was to clearly bring in “gift” and “settlement without valuable consideration”. That only deals with those things, and not with a regular settlement where we have fair market value.
    In order to have consistency within the act, we are asking to substitute the defined term, which clearly includes both “gift” and that portion of the defined term “settlement” that is “at undervalue”, and that defined term no longer exists.

  (1555)  

    That was clear.
    It's very technical. I understand.
    While Mr. Nicholson is thinking about that, may I also ask you a question?
    Absolutely.
    I actually have no objection to the proposed MSLA language, but I went back and looked at the defined term that's now being used, “transfer at undervalue”.
    This is one for which I have the opposite feeling. The French, I think, is very clear, because we're using “ou en reçoit une qui est manifestement inférieure à la juste valeur marchande de celle qu’il a lui-même donnée”, which I understand very well. In English, we're now saying, “for which the consideration received by the debtor is conspicuously less than the fair market value of the consideration given by the debtor”.
    In English, “conspicuously” means something very different. I can understand using “evidently less”, “obviously less”, “plainly less”, or “clearly less”, but “conspicuously” seems to have an intonation that you need to be able to see it. I don't think that means “manifestement inférieure”.
     Thank you.
     I can assure you that not only drafters work on the legislative council. We have a team of jurilinguists. We also have revisers. We work in teams for the co-drafting, which Canada's very proud of. We do not draft one language version and then translate it into another. The English and the French are equally authoritative and are drafted at the same time, in concert with our colleagues in our sector who also are experts in French and English and equivalencies.
    We obviously cannot speak to the drafting of any legislation and the process that went into it, but I can assure the committee that we make every effort to ensure that the English and the French say the same thing, correctly and clearly, for the native speaker. They come up to the same substantive results.
    Mr. Nicholson.
     If the terms “gift” and “without adequate valuable consideration” are no longer required, why wasn't this captured the last time we had one of these pieces of legislation? It seems to me the references there go back to 2005, when they changed some of the terminology.
    I understand your question. The MSLA is an ongoing process. Not all our client departments are aware of the types of things we attempt to do to bring coherence and consistency through this process. We are constantly reaching out, and we are working to educate people so that when they do find oversights and errors—things such as an institute has changed its name and they need a global amendment—they can come to us, so we can make efficient use of parliamentary time.
    Okay.
    It was not included in the last one, but we don't have a back date. We don't say that if you didn't catch it by this date, we're not going to do it.
    That's fair enough. Thank you very much.
    I'd like to make one request or recommendation. Having practised in this area of law, I don't think the term “conspicuously less” is the right term in English. I've never seen that word used to clarify something that is less than fair market value. You used the word “conspicuously”. Again, it “plainly”, “obviously”, “clearly”.... I'd ask you to go back and think about that for the next cleanup you do, to see if that is really the right word for “manifestement”, because I don't think it is.

  (1600)  

[Translation]

    We have taken note of your comment, Mr. Chair.
    Thank you, but we aren't going to make this change now.

[English]

    Does anybody have any objections to this clause?
    Is clause 9 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Okay, we're good with that one.
    The bells have started to ring, but we had unanimous consent to go through it when the clerk was helping to get the witnesses.
    Is clause 10 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 11 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 12 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 13 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 14 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 15 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 16 okay with everyone?
    Some hon. members: Agreed.
    The Chair: May I ask one question, again out of complete curiosity?
    We're adding the words “between the employer and the employee” for the purposes of settlement under the Canada Labour Code. What other settlement could there be if there wasn't an agreement between the employer and the employee? Why did we feel we needed to introduce these words?
    The client approached us with this proposal, and as with all proposals, it is the department itself that brings it forward. We were asked, out of an abundance of clarity, to put in that the complaint has to be settled between the employer and the employee. If you require further information, we do have [Inaudible—Editor] available.
    I assume you would agree with me that this is really an abundance of caution approach. I can't think how else it could be settled, but that's fine with me.
    Is everybody good?
    Some hon. members: Agreed.
    The Chair: Clause 17 deals with the Motor Vehicle Safety Act.
    I have another drafting question. In clause 17, we're adding “specified in the order”. I understand that, and I think it makes it clearer, but in the French, why would we not say dans l'arrêté? Why would we not be introducing that into the French?

[Translation]

    The French version reads: “Le ministre peut, par arrêté, ordonner à toute entreprise ...”.
    I'll jump down a few lines, “... de donner, de la manière qui y est précisée...”.
    The word “y” refers to the order. It amounts to the same thing.
    Right. I understand.
    Thank you.

[English]

     Is clause 17 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 18 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 19 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 20 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 21 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 22 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 23 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 24 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 25 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 26 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 27 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 28 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 29 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 30 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 31 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 32 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 33 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 34 okay with everyone?
    Some hon. members: Agreed.
    The Chair: We are on clause 35.
    Mr. Chair, I would like to ask a question.
    You're changing the number of square kilometres that are protected. You're increasing it. Was it just a calculation error, or did this actually increase the protected area?
    This is a question, which I certainly understand why it's being asked.
     If you note, we are not asking to change the boundaries of the park. The boundaries remain the same. What has happened is there has been a movement. Something called the North American Datum 1927 has been replaced by the North American Datum 1983. It's a mapping technique. The mapping technique is more modern and it enables the more accurate calculation of the actual surface of the earth. Because we're not dealing with a smooth sphere, this datum allows them to take account of the hills and valleys. It hasn't changed the boundaries of the park; it just gives us a number that more accurately reflects how many square kilometres are contained within those boundaries.

  (1605)  

    Fair enough.
    Is everybody good with clause 35?
    Some hon. members: Agreed.
    The Chair: Excellent.
     Is clause 36 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 37 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 38 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 39 okay with everyone?
    Some hon. members: Agreed.
    Clause 40, as everybody has seen by the distributed document, has been withdrawn. The department has asked to come back with that the next time there's an MSLA. We need a motion to have it not included.
    May I get a motion to have it not included?
    Mr. Nicholson.
    (Motion agreed to [See Minutes of Proceedings])
    The Chair: Can we do the same for clause 47, with the same mover and same agreement?
    (Motion agreed to [See Minutes of Proceedings])
    The Chair: Perfect. Clauses 40 and 47 are withdrawn.
     Is clause 41 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 42 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 43 okay with everyone?
    Some hon. members: Agreed.
    On clause 44, I have a question.
    I understand that, for international standards, we're replacing the word certificats with brevets. Why, in clause 44, do we leave in the word certificats and put “c) déterminer les catégories et classes de certificats et de brevets” instead of just replacing certificats with brevets, like we have everywhere else?

[Translation]

    Thank you for your question.
    In fact, the client explained that the objective was to make things as inclusive as possible. Currently the convention refers to “brevets d'aptitude”, certificates of competency, which are basically documents attesting that someone has the necessary competency to practise the profession involved.
    However, the convention also refers to “certificats d'aptitude”, or seaworthiness certificates, which are basically the same, but apply to sailors specifically. Consequently, in order to be able to regulate in this area as well, since both documents relate to positions on board ships, as provided for in subsection 100(c), we have to preserve both categories in order to be as inclusive as possible.
    Is this the only reference to the word “certificat” that remains in the law?
    May I recommend that you address your inquiry to the representatives of the client department to obtain further information in this regard?
    I see that the word “certificat” is being replaced by the word “brevet” all through the act.
    That change is being made to that part of the act.
    Yes, I understand, but the word “certificat” is no longer being used in that part of the act.
    As I said, this becomes very technical. I don't want to mislead you. As I said, I have a colleague here from Transport Canada and she might be able to answer these questions in greater detail.
    Thank you.
    Is the Transport Canada representative here? I simply want to make sure that I understand the reason behind this.

[English]

     Just for the minutes of the meeting, would you let us know your name, Madam?
     I am Jane Weldon, director general of marine safety and security at Transport Canada.
    Thank you for the question.
    There are in fact other references to certificates in other parts of the act, so, as my colleague was saying, we're just trying to be very cautious and make sure that we don't end up in a situation where something is definitively a certificate. We don't have the problem in English, because the word has a breadth of meaning.
    Yes. It just seems that maybe it would have been easier to say certificat in French, but I understand that the other conventions are using brevet. I understand it. Okay, that's clear.
    Thank you very much.
    Sorry for jumping in so much.
    Is clause 44 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 45 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 46 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Clause 47 has been withdrawn.
     Is clause 48 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 49 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 50 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 51 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 52 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 53 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 54 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 55 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 56 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Mr. MacGregor has a question on clause 57.

  (1610)  

    In several of the clauses, we're changing the French language version—clauses 50, 51, 57, 58, 59. I know the legislation is drafted in both languages at the same time. I'm just wondering, is there a reason behind some of the errors in the French?
    I attended a conference recently on legislative and judicial bilingualism, and this was a concern that was raised in the drafting of the legislation at the same time. Do you feel the department had enough resources in doing this just to make sure that no errors are made in the future? I'm just curious.

[Translation]

    First, I want to assure all members of the committee that regarding federal legislation, equal importance is afforded both the English version and the French version. As the member of the committee pointed out, bills are drafted simultaneously by anglophone and francophone law editors. This means that one version is not subject to the other. There is no translation.
    I can assure you that they are revised with equal care in English and in French by law revisors and jurilinguists.
    There are a lot of people involved. Sometimes we have the flaws that are inherent in our good qualities. Despite all of this care, it can happen—that is why we are here—that we subsequently pick up things that could have been drafted better in one language or the other.
    There is also something else to be considered. Legislative language is a living thing. It evolves. Over the years, some expressions may become archaic, and other terms may be considered preferable. In those cases as well, improvements can be made.
    That said, it should be acknowledged that given the volume of legislative texts that are submitted to you on a yearly basis, and the small number of corrections required, if I may say so myself, I would say that our batting average is pretty good.
    As parliamentarians, you may rest assured that the bills you are called on to examine were the subject of meticulous care, both in English and in French. We also take into account the two Canadian legal systems, the common law and civil law.
    In addition, I can ensure that at the end of an exercise like this one, we take the lessons we learn from comments that are made on one or the other version.

[English]

     Are you okay with that, Mr. MacGregor?
    Yes.
    Perfect. We only have a few minutes before we have to go to vote.
    Is clause 57 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 58 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 59 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 60 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 61 okay with everyone?
    Some hon. members: Agreed.
    The Chair: Is clause 62 okay with everyone?
    Some hon. members: Agreed.
    The Chair: To save time, on part 2, which is all terminology between clauses 64 and 65, is everybody okay with the terminology in part 2?
    Some hon. members: Agreed.
    The Chair: On part 3, the repeals, is everybody okay with the repeals from clauses 66 to 73?
    Some hon. members: Agreed.
    The Chair: Mr. Clerk, do you need any other resolutions from the committee?
    May I have approval to send this report to the House?
    Some hon. members: Agreed.
    The Chair: That's unanimously approved. Excellent.
    I'd like to thank our witnesses and all the committee members.
    As of now, we don't have a meeting on Thursday. We have planned for meetings next Tuesday and Thursday. If anything changes, I will be in contact with all of you, since we're now rushing to a vote.
    That was a great day, everybody. Thank you.
    The meeting is adjourned.
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