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

Minister of Justice
June 12, 2008

Part 3

Repeal and re‑enactment of legislative instruments under subsection 4(1) of LIRA

After all of the legislative instruments covered by subsection 4(1) of LIRA were identified, the departments and agencies responsible for them had to analyze them to decide whether their automatic repeal on June 13, 2008[16] would pose any problems that needed to be addressed.

As mentioned earlier, one of the mechanisms created by LIRA gave the Governor in Council temporary discretionary power to re‑enact by regulation the relevant legislative instruments:

4. (1) Where a legislative instrument was originally enacted in only one official language and, at the time of its enactment, was published in only one official language or was exempted by law from the requirement to be published in a government publication, the Governor in Council may, by regulation, repeal the legislative instrument and re-enact it in both official languages, without change to the version of the legislative instrument in the language in which it was originally enacted.

That power only allowed for validation of both linguistic versions of the original legislative instrument; it did not authorize any amendment of its content. LIRA also did not allow for any change to the periods during which these instruments were in force.[17]

However, LIRA was silent as to the criteria to be used to decide which instruments to re‑enact. The decision to re‑enact an instrument or not was left to the departments or agency responsible for the instrument, which could evaluate the practical consequences of the repeal in light of the nature of their activities. In general, the departments and agencies made their decisions in consultation with Justice Canada.

To provide some guidance, Justice Canada prepared a document entitled "Criteria to consider when evaluating instruments for report purposes and determining whether to re-enact them".[18] That document recommended the re‑enactment of legislative instruments that still had legal application to current rights and obligations. The vast majority of the departments and agencies used the document and their respective reports refer to it.

It should be noted that, even though some legislative instruments had been repealed and were no longer at risk of ceasing to have present effect, some departments felt it necessary to re‑enact them because of doubts that persisted regarding the validity of current operations that might nevertheless depend on them. For example, it was important to validate an order‑in‑council or regulation that was a link in establishing a chain of title to property.

As mentioned earlier, the decision as to whether to re‑enact a legislative instrument was made in light of the serious consequence set out in LIRA should an instrument not be re‑enacted, namely, automatic repeal as of June 13, 2008.[19]

Based on the decisions of the departments and agencies, the Minister of Justice recommended to the Governor in Council that five regulations be made to repeal and re-enact some 259 legislative instruments in both official languages. Those regulations were published in the Canada Gazette, Part II[20] and can be consulted on the Canada Gazette website at www.canadagazette.gc.ca. The English and French versions of those 259 legislative instruments have the force of law during the time in which they are in force[21], in accordance with the linguistic requirements set out in section 133 of The Constitution Act, 1867.

The list of legislative instruments that were repealed and re‑enacted under subsection 4(1) is found in Appendix A.

Part 4

Automatic repeal of legislative instruments by virtue of subsection 4(7) of LIRA

LIRA provides a third mechanism to ensure its objectives are achieved: the automatic repeal of legislative instruments referred to in subsection 4(1) that are not re‑enacted by June 13, 2008.[22]

This mechanism ensured that there was a diligent search for affected legislative instruments and that the decision to re‑enact such instruments would be made with due consideration since any legislative instruments repealed accidentally would have to undergo a further and in many cases much more laborious process to be re‑enacted than that established by LIRA.

In the case of legislative instruments for which there is still a valid enactment power, all of the steps in the usual regulatory process would have to be followed to re-enact them. For instruments made under enabling powers that no longer existed or which did not allow for the making of retroactive legislative instruments, it would be necessary to go back to Parliament to have it legislate on the matter.

Taking into account those considerations, departments and agencies decided not to repeal and re‑enact in both languages some 3,000 legislative instruments enacted in only one official language. It was concluded that those instruments were no longer in force or were obsolete and that they had no impact on present rights and obligations. Those legislative instruments are automatically repealed on June 13, 2008 by virtue of subsection 4(7) of LIRA.

Appendix B contains the list of legislative instruments identified pursuant to section 4(1) of LIRA but which were not repealed and re‑enacted.

Conclusion

All federal departments and agencies with responsibility for legislative instruments[23] were involved in the review of legislative instruments under LIRA and devoted the considerable resources to ensure its implementation and application and the achievement of its purpose. Once finished their work, they informed Justice Canada of their findings; Justice Canada reviewed those findings, provided comments back to the departments and agencies, and requested further research where necessary.

This review revealed that, using the search tools and advice provided by Justice Canada, departments and agencies reviewed all of the statutes passed between July 1, 1867 and September 15, 1988 and thousands of legislative instruments made under those statutes for which they had responsibility. This immense effort resulted in the identification of about 3,260 legislative instruments enacted in only one official language. After analyzing those instruments, the departments and agencies decided that 259 of them should be repealed and re‑enacted in both official languages because they affected current rights and obligations. The remaining legislative instruments enacted in only one official language are repealed by virtue of subsection 4(7) of LIRA on June 13, 2008.

Having examined the measures taken by the departments and agencies, I am able to conclude that LIRA was successfully applied and implemented and that both of its objectives were met. Doubts regarding the legal validity of all federal legislative instruments enacted in only one official language have been substantially dissipated and the accessibility of those instruments in both official languages has been assured either by their automatic re‑enactment or their re‑enactment by regulation.

Footnotes

  • [16] Subsection 4(7), LIRA.

  • [17] Subsection 4(2), LIRA.

  • [18] "Criteria to consider when evaluating instruments for report purposes and determining whether to re‑enact them", Department of Justice, November 28, 2006.

  • [19] Subsection 4(7), LIRA.

  • [20] SOR/2007-279, SOR/2008-75, SOR/2008-125, SOR/2008-154 and SOR/2008-1013

  • [21] Section 6, LIRA.

  • [22] Subsection 4(7), LIRA.

  • [23] Appendix C contains the list of departments and agencies involved in identifying legislative instruments.

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