Laws are a very important component of Canadian society. They define the criminal justice process through the Criminal Code of Canada (1985), the fundamental components of our legal system through the British North America Act (1867), the way the elected government is chosen through the Canada Elections Act (2002) and the processes of incarceration and parole through The Corrections and Conditional Release Act (1992). While it is relatively easy for the public to access and read the law, the process of law making is a mystery to most. Laws in Canada are constantly being added, changed and updated through the procedures of the Federal Legislative Process.
The Parliament of Canada
The Parliament of Canada is made up of two houses, the Lower House and the Upper House. The Lower House is also referred to as the House of Commons and is composed of elected Members of Parliament (MP’s), one for each riding (a specific electoral geographic area of Canada), who are to represent the people who elect them. There are currently 308 seats in the House of Commons or 308 MP’s. MP’s are members of political parties (The Conservative Party of Canada or the New Democratic Party of Canada) and whichever political party has the most elected members after an election becomes the elected government. The leader of that political party becomes the Prime Minister of Canada who chooses particular MP’s to be Cabinet Ministers, specialized ministers in charge of certain important areas of Government (eg. Minister of Justice, Minister of Finance). The political party that receives the next highest number of elected Members of Parliament becomes the official opposition party and the party leader the Official Opposition Party Leader. The remaining parties have no official title but are still there to represent Canadians by keeping the government in check, proposing bills, and debating issues (Parliament of Canada, 2010).
The Upper House, or the Senate of Canada, is comprised of Senators who are appointed by the Prime Minister. There are currently 105 Senators in the Canadian Senate, approximately ⅓ the size of the House of Commons. The Senate is intended to act as an additional level of scrutiny and accountability to the Canadian people. In the words of the First Prime Minister of Canada Sir John A. Macdonald it was to be a place of, “sober second thought” (Parliament of Canada, The Senate Today).
The General Legislative Process
In order to create or amend any law, a Bill must be put before Parliament. A Bill is a proposed Act of Parliament in draft form or, in other words, a proposed law from either an MP or Senator that needs to be approved by her/his peers. Once proposed, a Bill must follow a specific legislative process in the house it originates from, either the lower or upper house, and if approved goes on to the other house to go through a similar process at that level. If approved at both levels the final step before the bill becomes law is Royal Assent from the Governor General of Canada, the Queen’s Representative in Canada. The Bill then officially becomes law (Parliament of Canada, 2010).
Types of Bills
There are three kinds of Bills that can be put before the House of Commons: Public, Private, and a Private Members’ Bills.
A) Public Bills
Public Bills are proposed changes or additions to the law which are initiated by the ruling government and sponsored by a Cabinet Minister. Public Bills are numbered consecutively from C-1 to C-200 in the House of Commons and from S-1 in the Senate. While Public Bills can originate from either house, they all follow the same general procedure. This process can take as many as ten years to complete and involves a complex and often winding route. In general, the process for passing a Public Bill will follow this format:
- Minister Decision – The Minister may take suggestions or recommendations and decide that legislation must be amended, created, or eliminated. This stage is considered the “birth” of the legislation and is also the stage in which a majority of potential legislative issues are dismissed.
- Cabinet “Memorandum” – A paper called a “memorandum” is written and signed by the Minister initiating the change and distributed to Cabinet. The Cabinet is comprised of Members of the House of Commons who are chosen by the Prime Minister and appointed as Ministers to head the various departments. This paper is not a Bill, but rather a policy paper which clearly outlines the particular recommendations of the Minister.
- Cabinet Vote – The memorandum is distributed to Cabinet and considered by the Ministers in the Cabinet Committee. The chairperson in charge of the committee will eventually command and record a vote of their Cabinet colleagues on the proposed changes. The vote and any recommendations will be forwarded to the full Cabinet for further consideration.
- Cabinet Approval – When the memorandum is approved, a Record of Decision (RD) is sent to the Privy Council officials. This RD repeats the recommendations of the initial memorandum with any changes made by the Cabinet committee. Cabinet then authorizes the drafting of the new Bill.
- Drafting of the Bill – A draft Bill is composed by the Legislative Council. The Bill must be written in such a way as to not interfere with or contradict other Canadian laws, such as the Constitution Act 1982, as well as be communicated properly in both official languages. The Bill must also properly reflect the intentions of the initiating Minister as well as the recommendations provided by Cabinet.
- Bill is considered in Cabinet – A printed copy of the Bill is considered in Cabinet. The Committee on Legislation and House Planning is a partial committee of Cabinet that reviews the proposed Bill clause-by-clause.
- Priorities and Planning Committee of Cabinet – This subcommittee of Cabinet is comprised of the Prime Minister and his or her closest advisors. The Deputy Prime Minister will introduce the Bill and advise the Prime Minister, in their view, of the importance of the Bill and the priority it should receive in Parliament. Once these decisions have been made, a copy of the Bill is signed by the Prime Minister.
- Bill is Tabled in Parliament – A notice of introduction of the Bill is given in Parliament. At this stage the Bill is officially introduced into Parliament and all Members of Parliament have the opportunity to read the Bill.
- First Reading – The Bill is formally tabled in Parliament. The term “first reading” is somewhat of a misnomer, as in fact at this stage no reading is done. This stage acts as the formal announcement to the public and the criminal justice community that Parliament will be considering proposed criminal legislation in the future. At this stage the Bill is assigned a C- or S- number representing whether it was introduced in the Commons (C), or in the Senate (S), although the majority of Bills are introduced in the Commons.
- Second Reading – At this stage formal discussion of the Bill begins in Parliament. The Minister initiating the Bill usually makes what is called the Second Reading Speech, which outlines the policy implications of the proposed legislation. In response, the Official Opposition and Justice Critics can also comment on the Bill and its proposed implications. Justice Critics are members of minority parties that act as watchdogs over the Federal Justice Minister within the House of Commons. After second reading the Bill, if it survives, is forwarded to the Standing Committee on Justice and Legal Affairs of the House of Commons.
- Standing Committee on Justice and Legal Affairs of the House of Commons – This stage is often the most important for a Bill. The Committee generally begins with the initiating Minister addressing the committee. This is once again followed by statements by Justice Critics. Witnesses will then be allowed to speak and offer their opinion concerning the content of the Bill. These witnesses often include several lobby groups including the Canadian Association of Chiefs of Police (CACP), the Civil Liberties Association of Canada, as well as any public interest groups such as Victims of Violence. The committee also examines the Bill clause-by-clause, analyzing the wording, content, implications, and perceived consequences.
- Report Stage – The Committee reports its findings and proposed amendments to the House of Commons. Here members of Parliament debate and vote upon the amendments recommended.
- Third Reading – This is the final reading in the House of Commons. It allows the House to review the Bill in its final form. The Bill is voted on for a final time and, if passed, goes to the Senate.
- The Senate Process – The Senate process is remarkably similar to the House of Commons process. The Minister who initiated the Bill, however, is replaced by a particular Senator chosen for the occasion. This Senatorial Minister of Justice represents the Minister on all levels concerning the Bill. At the Senate level, the Bill once again goes through first and second reading.
- Senate Standing Committee – This is the Senate’s version of the Standing Committee on Justice and Legal Affairs of the House of Commons. This committee though usually examines the actual wording of the Bill and makes grammatical or technical corrections rather than concentrating on general policy. If the Bill is successful, it will be passed to Senate for a third reading. The Senate then makes a final vote on the bill.
- Return to the House of Commons – If any changes were made in the Senate, the House of Commons must approve them through a vote.
- Royal Assent – The milestone for any Bill is the day it reaches Royal Assent. The Bill is assented to by the Governor General, who is the representative of the British Monarchy in Canada, in the presence of Senate and the House of Commons. After this formal ceremony, the Bill finally becomes an Act of Parliament and is then Canadian Law. However, sometimes a bill does not immediately take effect upon Royal Assent. Some bills contain a provision that states that the bill, or some aspects of it, will not come into force until a specified day, known as Proclamation (Parliament of Canada, 2010).
Example of a Public Bill
Bill C-48, the Protecting Canadians for Ending Sentence Discounts for Multiple Murders Act, is an example of a Public Bill. The bill, which was passed by Parliament on March 8, 2011, allows judges to sentence offenders who have committed multiple murders to consecutive parole ineligibilities. First degree murder carries a life sentence with a parole ineligibility of 25 years and second degree murder a life sentence with a parole ineligibility of 10 to 25 years. Prior to Bill C-48, offenders could not receive multiple periods of parole ineligibility if they committed multiple murders. This has now changed. In announcing the passing of the bill Justice Minister Rob Nicholson said “Families of murder victims can now take comfort in the fact that the sentencing process will now be able to acknowledge the value of each life taken” (Justice Canada, 2011).
B) Private Bills
Private Bills are unique as they usually deal with the needs of a select group or even one select person. The purpose of a private Bill is to amend the law dealing with some particular community or a Bill with the intent to effect only a small number of people in Canada. Private Bills are usually introduced directly into the Senate, thus avoiding much of the debate and time delays that affect Public Bills. When introduced into the Senate they follow the same procedure as Public Bills above and must also receive Royal Assent to become law. (Parliament of Canada, 2010).
C) Private Members’ Bills
A Private Members’ Bill is a proposed piece of draft legislation submitted to the government by Members of Parliament who are not Ministers of the Crown. Members of the public may initiate the introduction of a Private Members’ Bill by joining forces with a Member of Parliament. Members of the public must have a Member of Parliament’s “sponsorship” before any changes to the law will be considered by the House of Commons. Private Members’ Bills are numbered consecutively from C-201 to C-1000 in the House of Commons and from S-1 and up in the Senate. While the process for Private Members’ Bills to become law is similar to that Public Bills, additional steps and obstacles within the government make the process slightly more challenging. The process for a Private Members’ Bill involves:
- Preparing the Bill – As with a Public Bill, the “birth” of the Private Members’ Bill begins with a Member of Parliament. While private citizens may have proposed the original content of the Bill, the process can only begin with the sponsorship of a Member of Parliament.
- Checking with other Members of Parliament – Members of Parliament, prior to their formal work on any Bill, often check with other Members to ensure that they have not already initiated a similar Bill.
- Drafting the Bill – This is essentially similar to the process involved in a Public Bill. The only limitation upon Private Members is that they may not contain specific provisions or clauses concerning the allocation or expenditure of public funds or any increase in taxation.
- Order Paper – Once the Bill has been drafted, the Member must give the House 48 hours notice of their intention to introduce the Bill into legislation. This is done by providing the title of the Bill in the next day’s Notice Paper. The Notice Paper is given to every Member of Parliament a day before sitting in the House so that everyone is aware of what will be discussed. After 48 hours, the Bill then moves to the Order Paper under the heading Private Members’ Business – Items Outside the Order of Precedence. The Bill is now ready for first reading.
- First Reading – Unlike Public Bills, a Private Members’ Bill is actually read during first reading. The initiating member is given the opportunity to state the purpose of the Bill and the Bill is read for the first time. At this stage the Bill is not debated but rather ordered to be read again during the “next sitting of the House.” This step is critical to any Private Members’ Bill as it allows them to be entered into the Lottery, or the Draw for Order of Precedence.
- The Lottery – Unlike Public Bills, Private Members’ Bills are discussed in the House according to order of precedence. The order of precedence is decided through a lottery system. This lottery is conducted by entering all the Members names who have Private Members’ Bills. Thirty names are drawn to determine the order of precedence for thirty items. The lottery is usually held every three or four weeks.
- Standing Committee on House Management – After each draw, the Standing Committee on House Management is responsible for deciding which, if any, of the items are to be put to a vote in the House. At this stage the Member of Parliament may make a short presentation to the Committee explaining why the item warrants being put to a vote. An item of Private Members’ Business that is selected to be put to a vote is known as a votable item. This stage is one of the most difficult in any Bill’s life, as most Bills are lost in this stage of government elimination. Although all Private Members’ Bills are assumed to be votable by default, they must meet the criteria for votable items or the committee may decide to disallow a vote. The criterions are as follows:
- Private Members’ Bills must not be outside of federal jurisdiction;
- Bills must not discriminate in favour or against a certain area or region in the country;
The subject of the motion should be different from matters already on the legislative agenda;
- Bills must not be substantially the same as previous matters voted on in the current session of Parliament;
- Bills that are clearly unconstitutional or infringe upon provincial authority or the Canadian Charter of Rights and Freedoms will be set aside.
- Debate (Second Reading) – If a Bill has survived the scrutiny of the Committee, the Private Member may debate the Bill in the House of Commons. Private Members’ Business may only be addressed to the House during specific times known as the Private Members Hour. This may significantly slow the process in comparison to a Public Bill.
- Committee Stage – As with a Public Bill, any Private Members’ Bill is introduced to the Committee by the initiating Member. After this witnesses may be heard and finally a clause-by clause analysis is done probing the wording, intentions and the perceived consequences of the Bill. At this stage the Members of the Committee vote upon the Bill and report back to the House of Commons concerning the Committee’s findings and recommendations.
- Report Stage – The House of Commons considers the Committee’s recommendations and makes any amendments to the Bill that it sees fit. All amendments are voted upon within the House of Commons during the Private Members Hour.
- Third Reading – Identical to the process of a Public Bill, the House is given a final opportunity to vote upon the Private Members’ Bill before it goes to Senate.
- Senate Stage – As with Public Bills, any Private Members’ Bill that has survived a third reading in the house is sent to the Senate. The Member of Parliament is responsible, though, for finding a sponsor for the Bill within the Senate. The Private Members’ Bill is given first and second reading and also reviewed by the Senate Standing Committee. After this, the Bill is given third reading and eventually returned to the House of Commons.
- Royal Assent – Once the Private Members’ Bill has been approved by both the House of Commons and the Senate it receives Royal Assent. This Private Members’ Bill is now an Act of Parliament and part of Canadian Law (Parliament of Canada, 2010).
Example Of A Private Members’ Bill
Bill C-268 is an example of a Private Members’ Bill and was introduced by Conservative MP Joy Smith. The bill amends the Criminal Code to include a minimum sentence of five years in prison for offences involving trafficking of persons under the age of eighteen. The bill was first proposed in November of 2008 as Bill C-268 but did not pass the debate stage at second reading. The bill was passed and received royal assent on June 29, 2010 (Parliament of Canada, LegisInfo C-268).
The creation and amendment of law is a long and tireless process that demands not only a great deal of diligence, but also a great deal of time and effort. The process is also very complicated, often taking years to complete from creation of a Bill to the actual implementation of the law. While the Canadian system of government is a slow one and often criticized for its seemingly endless procedures, this is to ensure that new laws or amendments are fair to all Canadians.
Parliament of Canada. (2010). Compendium, House of Commons, Procedure Online. Legislative Process. Retrieved from http://www.parl.gc.ca/compendium/web-content/c_g_legislativeprocess-e.htm on March 7/2010.
Parliament of Canada. The Senate Today. Retrieved from http://www.parl.gc.ca/information/about/process/Senate/senatetoday/house-e.html on March 7/2010.
Parliament of Canada. LegisInfo – Bill C-48. Retrieved from http://www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?Language=E&query=7113&List=toc&Session=23 on March 15/2011.
Parliament of Canada. LegisInfo – Bill C-268. Retrieved from http://www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?Language=E&Chamber=N&StartList=A&EndList=Z&Session=23&Type=0&Scope=I&query=6704&List=toc-1 on March 15/2011.
Justice Canada. (2011). Parliament Passes Legislation Ending Sentence Discounts for Multiple Murderers. Retrieved from http://www.justice.gc.ca/eng/news-nouv/nr-cp/2011/doc_32597.html on March 15/2011.