House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit
2000 EditionMore information …
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16. The Legislative Process

Form of Bills

The enactment of a statute by Parliament is the final step in a long process that starts with the proposal, preparation and drafting of a bill. The drafting of a bill, in particular, is one of the most important stages in the process. At that point, the decision makers and drafters must take into account certain constraints; the failure to abide by these constraints may have consequences in relation to the interpretation and application of the law and the proper functioning of the legislative process.

Limits on Legislative Action

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.

Drafting Bills

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] 

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