Review Report of the Minister of Justice Submitted under the Legislative Instruments Re‑enactment Act

Minister of Justice
June 12, 2008

Introduction

Legislative Instruments Re‑enactment Act

The Constitution of Canada, as interpreted by the Supreme Court of Canada, requires that legislative instruments, such as regulations and orders-in-council of a legislative nature, made by or with the approval of the government, be made, printed and published in both official languages.[1] This constitutional requirement was expressly set out in the Official Languages Act[2] in 1988. However, some doubts remained as to whether, between July 1, 1867 and September 15, 1988, there were adequate legal mechanisms to ensure that all legislative instruments made during that period met this constitutional requirement.

To address the situation, the Standing Joint Committee for the Scrutiny of Regulations recommended in 1996[3] that the government take steps to identify and re‑enact in both official languages any federal legislative instruments to which section 133 of The Constitution Act, 1867 applies that were not made in both official languages. The Legislative Instruments Re‑enactment Act [4](LIRA), which came into force on June 13, 2002, provides a means to address that recommendation.

The LIRA has two objectives: to eliminate doubt as to the legal validity of legislative instruments enacted in only one official language by re‑enacting them in both official languages and to provide access to bilingual federal legislative instruments. As the senators stated during debate on second reading, the Act ensures that "all of our legislative heritage … fully respects the principles of linguistic equality contained in the Canadian Constitution" [5].

To this end, LIRA establishes three complementary mechanisms:

  • First, it provides for the automatic retroactive re-enactment, in both official languages, of legislative instruments that were originally enacted in only one official language but which were published in both official languages at the time of their enactment.[6] Since those instruments were published in both official languages at the time they were enacted, they were already accessible in both languages and an automatic re‑enactment was the appropriate solution. LIRA does not require any reporting on this aspect of its implementation but it is believed that this automatic re‑enactment validated the vast majority of instruments enacted in only one official language.
  • Secondly, LIRA gives the Governor in Council retroactive regulatory authority to re‑enact certain legislative instruments in both official languages.[7] This authority cannot be used to address any defect related to the enactment of a legislative instrument other than the shortcoming of not having been made in both official languages.
  • Lastly, LIRA provides for the automatic repeal on June 13, 2008 of all legislative instruments enacted and published in only one official language and legislative instruments enacted in only one official language and exempted by law from the requirement to be published in a government publication, unless they are re-enacted in both official languages before then.[8] This mechanism guaranteed that there would be due diligence in identifying legislative instruments and that the decision to re‑enact them would be made prudently because, on June 13, 2008, the re‑enactment authority provided by LIRA would expire.

This second mechanism, which entails a discretionary power, is linked to a review process that reports on how this discretionary power was exercised by the government.[9]

The Minister of Justice was required to conduct this review by June 13, 2007 and to table a review report in both Houses of Parliament by June 13, 2008. LIRA also stipulates the content of the review report:

9. (2)...the Minister of Justice shall submit a report on the review to each House of Parliament that includes:

  • (a) a description of the measures taken to identify legislative instruments referred to in subsection 4(1);

  • (b) a list of any legislative instruments that have been repealed and re-enacted under subsection 4(1); and

  • (c) a list of any legislative instruments referred to in that subsection that have been identified but that have not been repealed and re-enacted.

Part 1 of this report provides the context and parameters of the review required by LIRA. Part 2 describes the action taken to identify legislative instruments enacted in only one official language. Part 3 reports on the measures and considerations involved in the re‑enactment of the instruments, if applicable. Part 4 deals with the application of the automatic repeal mechanism to legislative instruments enacted in only one official language and not re‑enacted.

Part 1

Context and parameters of the review prescribed by LIRA

The work involved in implementing LIRA is comparable to that required for the first federal consolidation of regulations in 1955 and for the second consolidation in 1978. All legislative instruments enacted by federal departments and agencies between July 1, 1867 and September 15, 1988 had to be identified. In a great many instances, the original versions of those instruments had to be found to verify whether they had been enacted in one or both official languages.

Following Parliament's passage of LIRA, Justice Canada was able to identify and assess the documentary sources available to assist in finding legislative instruments, most of which were quite old, and to set the parameters of the work to be done government‑wide to fulfil the mandate established by LIRA.

The first major challenge was identifying the legislative instruments referred to in LIRA. The oldest instruments are not available electronically. To find them, it was necessary to consult original documents and records, some handwritten. The depositories of these documents and records are scarce. Officials normally responsible for today's legislative instruments are not generally familiar with older instruments that have been archived for some time. Moreover, the way that legislative instruments are recorded and stored has of course evolved over time. An adapted research methodology was developed to address the specific needs of this project. Significant resources were mobilized government‑wide to identify legislative instruments enacted in only one official language. This undertaking also provided an excellent opportunity to discover Canada's legislative history and to support in a concrete way the objective of providing access to legislative instruments in both official languages. In future, consultation of legislative documents of significant value emanating from the Privy Council Office or stored by Library and Archives Canada will be much easier as a result of the funds allocated under the re‑enactment project for the transfer of those documents to electronic media.

Another major challenge was assigning responsibilities for identifying legislative instruments among the departments and agencies.[10] The structure of the government has changed constantly since 1867. There have been innumerable changes in mandates and responsibilities among departments, and innumerable agencies created and abolished during the period covered by LIRA. This made it difficult to establish a complete and accurate portrait of the various legislative responsibilities between 1867 and 1988. While departments normally prepare legislative instruments for ministers, the situation is different for the agencies. Only a small number of agency heads have the authority to enact legislative instruments, and only a small number of agencies have the authority to recommend the enactment of legislative instruments to their responsible minister. Justice Canada had to conduct preliminary research to determine the responsibility of each department or agency in this regard. Those entities confirmed their respective responsibilities and assisted in identifying instruments for which the same minister was responsible.

LIRA also presented challenges from a legal standpoint. In an effort to manage the application and implementation of this new Act, which conferred an important constitutional mandate on the government, it was necessary to conduct extensive legal analyses in several areas. As an example, since LIRA is silent on what is to guide the government's use of its discretion to determine the legislative instruments to be repealed and re‑enacted, Justice Canada had to develop criteria to guide departments and agencies in their decision‑making and to evaluate the government's responsibility when applying and implementing LIRA.

Needless to say, the legal context has changed profoundly since 1867. Some legislative instruments compliant with the standards of their era, except for their shortcoming in terms of official languages, no longer meet today's standards. The Charter of Rights and Freedoms, to give one obvious example, shines a different light on historic legislative instruments and the government had to take this into account when deciding which instruments should be re‑enacted.

This was the unique context in which the departments and agencies carried out the mandate conferred on them by LIRA.

Part 2

Identification of legislative instruments referred to in subsection 4(1) of LIRA

This part examines the measures taken by all departments and agencies between June 13, 2002, the date on which LIRA was passed, and June 13, 2007 to identify legislative instruments enacted in only one official language.

Justice Canada played a key role in supporting and coordinating this project. It created search tools to guide the departments and agencies in their work. It made arrangements with the department of Justice's library and Library and Archives Canada to facilitate access to relevant documents. It held two general information sessions for the dozens of people who conducted the government‑wide searches and it supported the efforts of departments and agencies throughout the period answering questions and providing legal advice.

Identification of Acts and provisions that allow for the enactment of legislative instruments

The first step was to ensure the validity of legislative instruments currently in force. Departments and agencies had to prepare a list of the statutes for which they were responsible in 1988. They worked from the 1989 Table of Public Statutes and Responsible Ministers and the 1988 Access Register. From these lists, they then had to go back to the original version of each statute to verify whether they were responsible for preceding versions of those statutes. Ultimately, departments and agencies had to include in their research all relevant statutes that were enacted and repealed between July 1, 1867 and September 15, 1988.

The next step was for departments and agencies to analyze all of those statutes to identify the provisions authorizing the enactment of instruments. It should be noted that each department also had to identify provisions enabling agencies under its responsibility to enact instruments.

Lastly, departments and agencies were required to determine which of those provisions authorized the enactment of "legislative instruments" within the meaning of LIRA. The expression "legislative instrument" is defined as follows in section 2 of LIRA:

"legislative instrument" means

  • (a) an instrument enacted before the coming into force of section 7 of the Official Languages Act on September 15, 1988 by, or with the approval of, the Governor in Council or a minister of the Crown in the execution of a legislative power conferred by or under an Act of Parliament; or
  • (b) an instrument that amends or repeals an instrument referred to in paragraph(a).

To assist the departments and agencies in identifying legislative instruments, Justice Canada conducted an extensive analysis of this definition, which resulted in the preparation of a document entitled "Criteria for classifying 'Legislative Instruments'".[11] This document sets out a list of essential criteria that an instrument must meet to be considered a legislative instrument within the meaning of the definition. The four main criteria defining a legislative instrument are as follows:

  1. The instrument was enacted by the Governor in Council or by a minister of the Crown, or with their approval;
  2. It includes a rule of conduct;
  3. It has the force of law;
  4. It applies to an indeterminate number of people or situations.

This document also provides a list of instruments that do not constitute legislative instruments.

The great diversity of instruments issued by the government over the years meant that, in some cases, the qualification of the instruments was complex and required a detailed legal analysis.

Once the statutes and provisions allowing for the enactment of legislative instruments were identified, departments and agencies were able to refer to them and to legislation of general application to determine whether those legislative instruments had to be published in a government publication[12] or whether they were exempted by law from this obligation. In both cases, it was necessary to verify whether these legislative instruments had been enacted in only one official language or in both, but the sources and documents to be consulted to make this determination were quite different.

Identification of legislative instruments enacted and published in only one official language

Using the statutes and provisions that gave them the authority to enact legislative instruments, the departments and agencies then had to find the legislative instruments that had, in fact, been enacted under that authority.

Here again, to ensure first and foremost the validity of the legislative instruments that might still be in force today, it was recommended that departments and agencies begin with instruments that were most easily accessible, specifically, those that were published and in force in 1988. Those instruments are now referred to as statutory instruments, and are a type of legislative instrument within the meaning of LIRA. To this end, Justice Canada recommended that the following documents be consulted: Consolidated Index of Statutory Instruments 1988, Consolidated Regulations of Canada (C.R.C. 1978), the 1978 Consolidated Regulations of Canada table of equivalency, and the Canada Gazette, Part II.

The next step involved finding other legislative instruments published and in force in 1988 and legislative instruments published and repealed prior to 1988. This process identified not only legislative texts repealed prior to 1988, but also all other legislative instruments that might not have been identified in the previous step, such as some orders‑in‑council that are not listed with the statutory instruments.

In this last step, departments and agencies had to consult the Canada Gazette extensively. For the period from 1947 to 1988, the process involved examining the indexes of Part I and II of the Canada Gazette. For the period from 1867 to 1947, the content of each volume of the Canada Gazette had to be consulted.

However, consulting the Canada Gazette was not enough in itself, since LIRA referred to a "government publication". This expression is defined in section 2 of LIRA and applies to certain publications with status as official as that of the Canada Gazette:

"government publication" means the Canada Gazette or any other official publication of the Government of Canada in which legislative instruments were published.

In order to ensure an exhaustive search, departments and agencies had to determine if any legislative instruments under their responsibility might have been published in a government publication other than the Canada Gazette, such as the compendiums of regulations published during wartime and certain consolidations of legislative instruments and, if applicable, carry out the necessary review of those publications.

It was agreed that if any legislative instruments were found to have been published in both official languages shortly after their enactment, then it was unnecessary to verify their original enactment since they were automatically re‑enacted by virtue of section 3 of LIRA. They were generally excluded from the subsequent search measures.

However, in cases where legislative instruments were published in a government publication in only one official language, researchers had to go back to the original version to verify whether they had been enacted in that language alone.

Identification of legislative instruments enacted in only one official language that were exempted by law from the requirement to be published in a government publication

Legislative instruments enacted originally in only one official language might have been exempted by law from the requirement to be published in a government publication. Such exemptions are normally found in the statute authorizing the enactment of those instruments, or in a legislation of general application such as the Statutory Instruments Act[13] or regulations or other instruments made under it.

Each department and agency was required to verify whether the statutes under its responsibility exempted legislative instruments from the requirement of being published in a government publication. This verification covered all versions of those statutes, from the one in force in 1988 back to the original version.

They also had to consult sections 7 and 15 of the Statutory Instruments Regulations[14] for the period covered by LIRA as those sections set out the classes of legislative instruments that are exempt from registration (which has the effect of exempting them from publication[15]) or from publication in order to determine whether those classes included the legislative instruments for which they were responsible.

Justice Canada then invited departments and agencies whose legislative instruments were covered by a publication exemption to search for those legislative instruments in their archives, the Privy Council Office registries (annual index of orders‑in‑council) from 1867 to 1988 and in the Canada Gazette Index for instruments in force in 1988, to verify whether these legislative instruments had been enacted in only one official language.

As a result of the measures described in this part, it was possible to identify the legislative instruments referred to in subsection 4(1) of LIRA.

Footnotes

  • [1] Attorney General of Quebec v. Blaikie et al. [1979] 2 S.C.R. 1016 (Blaikie no 1), and Attorney General of Quebec v. Blaikie et al. [1981] 1 S.C.R. 312 (Blaikie no 2).

  • [2] Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), s. 7.

  • [3] Third report (Report No. 59) of October 10, 1996.

  • [4] S.C. 2002, c. 20.

  • [5] Senate Debates (March 7, 2002) at page 1520.

  • [6] Section 3, LIRA.

  • [7] Section 4, LIRA.

  • [8] Subsection 4(7), LIRA.

  • [9] Subsection 9(1), LIRA.

  • [10] The only organizations involved in the review report are federal government organizations with the power to enact legislative instruments or to recommend the enactment of such instruments to the Governor in Council or to a minister of the Crown.

  • [11]"Criteria for classifying 'Legislative Instruments'", Department of Justice, April 2004.

  • [12] This expression is defined in section 2, LIRA.

  • [13] S.C. c. S-22, s. 20.

  • [14] Statutory Instruments Act, 1 C.R.C., c. 1509.

  • [15] Section 11, Statutory Instruments Act, R.S.C. 1985, c. 22.

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