Legislative Process in Canada

Overview of the Legislative Process

The examination and enactment of legislation are often regarded as the most significant task of Parliament. It is therefore not surprising that the legislative process occupies a major portion of Parliament’s time.[1] But what exactly is the legislative process? There are those who have defined it as a structured series of actions whereby a legislative proposal is examined, debated, sometimes amended and ultimately either rejected or proclaimed as a statute. Indeed, formal action and consent are required at every parliamentary stage of what is, in fact, a much lengthier process starting with the proposal, formulation and drafting of a bill, normally by extra‑parliamentary governmental bodies.

In the Parliament of Canada, there is a clearly defined method for enacting legislation. This method is based on the examination of bills—formal legislative proposals that have been referred to by one authority as “the exclusive technical form for the exercise of the great functions of Parliament”.[2] A bill must pass through a number of very specific stages in the House of Commons and the Senate before it becomes law. In parliamentary terminology, these stages make up what is called “the legislative process”. The passage of a bill by the House of Commons and the Senate is effectively a request that the Crown proclaim its text as the law of the land. Once it has received Royal Assent, it is transformed from a bill into a statute. Because the process whereby a legislative proposal becomes first a bill, and then a law, takes place in Parliament, the end product―the statute―is often called an “Act of Parliament”.[3]

Traditionally, the legislative process begins with the introduction of a bill in one of the Houses of Parliament and ends with the granting of Royal Assent, which brings together the three constituent elements of Parliament: the Crown, the Senate and the House of Commons. To these stages of the legislative process some would add the proclamation of the bill when this precedes its coming into force. The process is complex, but its essence is simple—the validation of a statute by way of the approval of the same text by the three constituent elements of Parliament.

Set out below is a simplified overview of the legislative process.

The Legislative Process

In order to research statutes properly it helps to understand the legislative process, since it is often necessary to consult legislation while it is still in draft— or “bill”—form.

Most bills are public bills. Public bills are typically introduced by a member of Cabinet and relate to laws of general application throughout the jurisdiction. There are also private member bills, which relate to laws of general application and can be introduced by any member of the legislature. Members of the opposition party often introduce private member bills. If these bills are too controversial, they won’t pass third reading. Finally, there are private bills. These bills can be introduced by any member of the legislature, but they are not of general application. They typically relate to a particular organization or individual.

The political party holding the most seats in a legislature controls the legislative process. The party in power will introduce legislation that supports its political policies. Quite often, the Cabinet will discuss the general structure of, and policies to be achieved by a piece of legislation. Then, the staff of the ministry most closely associated with the legislation’s subject matter will work out the details of the legislation.

Once the draft legislation has been prepared it will be introduced into the legislature as a bill. A bill must pass through three stages, or “readings,” before it can become law. Outlined below is a description of the procedure for enacting Ontario legislation:

• First reading : The bill is introduced by the responsible Minister, who explains its objectives and makes a motion for its formal introduction. If the members vote in favour of the bill, it is assigned a number, printed and given to each member of the legislative assembly and scheduled for future debate.
• Second reading : The bill is debated in the House. There is then a vote as to whether the bill will proceed to the committee stage (or directly to the third reading stage, in some cases).
• [ committee stage ]: When a bill is “sent to committee” it is examined in detail by one of the eleven standing committees that oversee specific subject matters or ministries, or by a specially created committee (a select committee). Usually, the committee will include members of all the political parties represented in the legislature, but it will be controlled by the party with majority power.
  At the committee stage, the bill is discussed section by section. It is at this stage that changes are made – sometimes as a result of political compromise, sometimes as a result of a change in policy by the majority, and sometimes simply to improve clarity.
  The committee process may last a few days or a few months, depending on the bill. After examining the bill, the committee will decide whether to send it to the Committee of the whole House (for more study by the entire legislature) or directly into final debate in the legislature.
• Third reading : This constitutes the final debate of the bill. If the vote carries, the bill is sent to the Lieutenant-Governor for approval (“Royal Assent”). The bill is also assigned a statute chapter number at this time.

After a bill has been through the necessary readings, voted on and passed, it becomes an act of the Legislative body that passed it.

Federal bills are numbered using an alphanumeric system that identifies their origin and time of introduction. For example, Bill C-21 would be the twenty-first bill introduced in the House of C ommons in a particular session. Bills originating in the Senate are prefixed by an S. Provincial bills are numbered consecutively, and are assigned a different prefix depending on whether they are public bills (Bill 76) or private bills (Bill Pr 76).

Federally, a bill introduced in the House of Commons must pass through three readings, and then three readings in the Senate. Alternatively, the Senate itself can introduce legislation. In this case, the bill must pass three readings in the Senate and then pass three readings in the House of Commons.

Canadian Parliament: The Legislative Process

Cabinet ministers, the prime minister, ordinary MPs, and senators all can introduce bills in Parliament. Nearly all bills introduced by the government are passed during the session in which they are introduced. MPs introduce many bills, but only a small number ever reach the floor of Parliament for debate, and even fewer are approved. Only the government can introduce estimates. Government bills and estimates pass through several parliamentary stages before becoming law.

Bills must undergo three readings in Commons. All estimates are consolidated into the appropriation bill (the annual budget), which also undergoes three readings. The first reading is a formality at which point the bill is introduced and an order is given to print it. During the second reading, MPs debate the broad purposes of the bill and approve or reject it in principle. Debate at this stage can be lengthy, but the government can end it with a time allocation or a closure motion. After approval in principle, a bill is referred to a standing committee for detailed review. The committees examine and, to a limited degree, amend bills after second reading. At the report stage, committees present their findings. Often the report stage is combined with the third reading and a final vote on the bill.

The bill is then sent to the Senate to be debated and perhaps amended, in a process similar to that which occurred in Commons. Normally the Senate proposes only technical changes. If a new governing party has not been able to make appointments to the Senate and does not have a majority, the Senate will occasionally strive to defeat or to amend government bills significantly. The Senate can defeat, delay, or modify bills, but it rarely opposes the majority opinion of the popularly elected House of Commons.

The wording of the bills passed by Commons and the Senate must be identical. After any differences in the Commons and Senate versions of a bill are resolved, the governor-general gives royal assent to the bill in a formal ceremony in the Senate chamber, to which MPs are invited. Immediately upon royal assent, a bill becomes an act of Parliament and has the force of law, unless it contains a provision that all or part of the law will be put into effect later. When a law is proclaimed at a later date, it is done by means of an order from the government. [5]

History of the Legislative Process in Canada

Before Confederation

In the years preceding Confederation, the assemblies of the Canadian colonies relied on British parliamentary traditions in conducting their deliberations. The legislative assemblies of Upper and Lower Canada that were instituted by the Constitutional Act, 1791 followed British parliamentary procedure.[13] The legislative process of the Assembly of Upper Canada, however, was less elaborate than that of the Assembly of Lower Canada, which had adopted a larger number of rules of procedure in 1792.[14]

The first Canadian code of procedure, which was published in March 1793 under the title Rules and Regulations of the House of Assembly, Lower Canada,[15] contained provisions governing both the introduction and the passage of bills. At that time, committees were often assigned the task of formulating bills.[16] Every bill had to be introduced by motion, and be given three readings in both languages,[17] and could neither be amended nor referred to a committee before receiving second reading.[18] Every bill also had to be printed before second reading. After passage by the Assembly, bills were submitted to the Legislative Council for adoption and ultimately to the representative of the Sovereign for Royal Assent.[19]

At the time of the Union of Upper and Lower Canada in 1840, the legislative assemblies were obliged to agree on a common procedure. Most of the rules that were adopted at that time were those that had been in effect in the Assembly of Lower Canada.[20] The procedure for the passage of public bills remained essentially the same.[21] However, a number of new provisions were adopted to deal with private bills.[22]

Since Confederation

When the House of Commons of Canada met for the first time on November 6, 1867, its proceedings were conducted under the rules of the Legislative Assembly of the Province of Canada, including those related to the consideration of bills. On December 20, 1867, the House approved the report of a special committee that had been instructed to assist the Speaker in formulating its rules of procedure. The only major departure from the rules of the former Legislative Assembly of Canada related to the process for considering private bills.[23] In fact, the sections of the Rules of the former Legislative Assembly of Canada included under the heading “Proceedings on Bills”[24] were reproduced in full in the first edition of the Standing Orders of the House of Commons.

A number of the rules governing the legislative process that were in effect at Confederation remain in effect today. Some examples are: the Standing Orders prohibiting the introduction of bills in blank or in an imperfect form, those stipulating that all bills be read three times on different days, and those requiring that they be printed in both official languages and be certified by the Clerk of the House on each reading.[25]

In general, the evolution of the legislative process in Canada since Confederation has reflected the ever-increasing volume and complexity of the legislative work of Parliament, the need to expedite government business, which has come to require the great majority of the House’s time, and the corollary need to safeguard the ability of ordinary Members to introduce their own bills with a reasonable expectation that the latter might ultimately become law.

The rules governing the legislative process have been amended on a number of occasions since 1867 with the aim of facilitating the consideration of public bills, expanding the roles of committees and encouraging greater participation by Members of the House of Commons. For instance, until 1913, a Member had to seek leave of the House in order to introduce a bill, and his motion was subject to debate and amendment.[26] In April 1913, the House ordered that motions for leave to introduce a bill no longer be debated or amended.[27] In 1955, it modified the Standing Orders to give leave to the Member proposing such a motion to deliver a brief oral description of the bill.[28] In 1991, the House again amended the Standing Orders to the effect that motions for leave to introduce a bill were thenceforth deemed to be carried, without debate, amendment or question put.[29]

Some procedural rules were also amended to expedite the business of the House. Until 1927, for example, there was practically no time limit on the length of Members’ speeches. Debates on bills might sometimes continue for several days.[30] In 1927, the House adopted a Standing Order imposing a time limit on the speeches of most Members.[31] That fundamental rule remained in effect without amendment until the addition, in 1982, to the Standing Orders governing the legislative process, of specific provisions respecting the length of speeches and the period for questions and comments.[32]

Over the years, a number of special committees have examined the Standing Orders governing the legislative process.[33] In 1968, the House assigned the Special Committee on Procedure and Organization of the House the task of performing a thorough review of the legislative process.[34] In its Third Report, the Committee recommended changes intended to eliminate obsolete practices,[35] to provide more meaningful opportunities for Members to participate in the consideration and shaping of bills, and to identify the crucial stages in a bill’s passage.[36] The procedural changes subsequently adopted provided for the regular referral of bills other than those based on supply and ways and means motions to standing or special committees, for the restoration of report stage as a debating stage of the legislative process, for the reduction of the maximum length of speeches at report stage, and for the empowerment of the Speaker to select and combine report stage amendments.[37]

In the early 1980s, special committees instructed to examine House procedure once again tackled the twin issues of expediting and broadening the scrutiny of bills and of expanding the work assigned to committees. In March 1983, a report recommended that “legislative committees” be created and given the task of examining each bill in depth.[38] Although the recommendations resulting from that study were not adopted, the Special Committee on the Reform of the House of Commons again recommended, in 1984, that legislative committees be created and that bills based on ways and means motions also be referred to legislative committees. The Committee also suggested that the scrutiny of such complex bills in small committees composed of a group of specialist Members was preferable to study in a Committee of the Whole.[39] These two recommendations were reflected in amendments to the Standing Orders adopted on June 27, 1985.[40]

A few years later, in April 1991, the House made extensive changes to its Standing Orders. Among the provisions amended were those relating to the automatic adoption of motions for the introduction and first reading of bills; to the referral, by a Minister after consultation, of a bill to a standing or special committee instead of to a legislative committee; to the requirement that there be a period of two sitting days, as opposed to 48 hours, between the time a bill is reported and the commencement of report stage; and to the requirement of 24 hours’ written notice for any motion respecting Senate amendments to a bill.[41]

At the beginning of the Thirty‑Fifth Parliament in 1994, the Standing Orders were once again amended to increase the flexibility of the legislative process[42] by providing for the preparation and bringing in of bills by committees and for the option of referring bills either to standing, special or legislative committees. Bills based on supply motions continued, however, to be referred to a Committee of the Whole. In addition, it became possible for a Minister to move that a government bill be referred to a committee before second reading.
Notwithstanding these changes, the House soon reverted to the previous practice of referring bills only to standing and special committees, and it was not until February 2000, that a legislative committee was again established to study a bill (C-20, the Clarity Act).[43] Succeeding Parliaments have made occasional use of legislative committees, typically to consider controversial legislation.[44]

Source: House of Commons Procedure and Practice, Second Edition, 2009

Resources

Notes and References

1. Tardi, G., The Legal Framework of Government: A Canadian Guide, Aurora, Ontario: Canada Law Book Inc., 1992, p. 122.
2. [2] Redlich, J., The Procedure of the House of Commons: A Study of its History and Present Form, Vol. I, translated by A.E. Steinthal, New York: AMS Press, 1969 (reprint of 1908 ed.), p. 4.
3. [3] Stewart, J.B., The Canadian House of Commons: Procedure and Reform, Montreal and London: McGill-Queen’s University Press, 1977, p. 79.
4. [4] For further information on the stages relating to private bills, see Chapter 23, “Private Bills Practice”.
5. Encarta Online Encyclopedia

[15] At that time, this was a 73‑page document that had been prepared by a committee of the Assembly under the direction of Speaker Jean‑Antoine Panet.

[16] O’Brien, p. 174.

[17] To safeguard the uniformity of the instruments, bills relating to the criminal laws of Great Britain were introduced in English and then translated. Bills relating to the civil laws, customs and rights were introduced in French and then translated. This meant that several days might pass between the adoption of the motion to introduce the bill and the motion for first reading (O’Brien, p. 174).

[18] At that time, bills were referred to a Committee of the Whole or to a select committee. For an historical overview of Committees of the Whole in Canada, see Chapter 19, “Committees of the Whole House”.

[19] Every bill had first to be submitted to the Governor, or to the Governor’s representative, for assent in His/Her Majesty’s name. Assent could be granted or withheld, or the Governor could reserve assent and submit the bill for the “Signification of his Majesty’s Pleasure thereon” (Constitutional Act, 1791, (31 Geo. III, c. 31 (U.K.)), R.S. 1985, Appendix II, No. 3, ss. XXX and XXXI).

[20] O’Brien, p. 134.

[21] O’Brien, pp. 279‑80.

[22] O’Brien, p. 279.

[23] Debates, December 20, 1867, p. 333.

[24] For a number of years, the term “Bill” was used in both English and French. “Projet de loi” first appeared in the French version of the Standing Orders of the House in 1982.

[25] See rules 40, 43, 44, 48 and 93 of the first edition of the Rules of the House, which was adopted on December 20, 1867.

[26] See, for example, Journals, March 4, 1884, pp. 184‑5.

[27] Journals, April 23, 1913, pp. 507‑9.

[28] Journals, July 12, 1955, pp. 930‑1.

[29] Journals, April 11, 1991, p. 2913.

[30] See the comments in the Debates, April 19, 1886, pp. 789‑90.

[31] Journals, March 22, 1927, pp. 328‑9. Until 1982, the present Standing Order 43 governed the length of speeches during consideration of bills.

[32] Journals, November 29, 1982, p. 5400. See also Third Report of the Special Committee on Standing Orders and Procedure, presented to the House on November 5, 1982 (Journals, p. 5328).

[33] The Joint Committee on Legislation was established in 1923 to consider various matters, including the form of bills (Journals, June 14, 1923, pp. 469‑70). Also significant was the work, some decades later, of the Special Committees on Procedure and Organization of the House (Journals, December 19, 1963, pp. 705‑6, par. 2; March 25, 1964, p. 125, par. 9).

[34] Journals, September 24, 1968, p. 68; December 20, 1968, pp. 554‑62. See also Fourth Report of the Special Committee on Procedure and Organization of the House, presented to the House on March 13, 1968 (Journals, pp. 761‑7), prior to the dissolution of the Twenty‑Seventh Parliament.

[35] Journals, December 6, 1968, p. 432.

[36] For example, the first version of Standing Order 69, adopted in December 1867, read as follows: “That this bill be now read a first time”. That text remained unchanged until the amendments adopted in December 1968, which gave it its present wording: “That this bill be read a first time and printed”. The Committee intended to restrict the effect of the passing of the motion to consent to the introduction of the bill without any commitment beyond its being made generally available for the information of Parliament and the public. The new version reflected the Committee’s concern with the identification of the crucial stages in the passage of a bill, and its recommendation that the motion relating to each of the three readings be rephrased so as clearly to reflect the philosophy behind each stage of the process (Journals, December 6, 1968, pp. 432‑3; December 20, 1968, p. 576).

[37] Journals, December 6, 1968, pp. 432‑4; December 20, 1968, pp. 554‑62.

[38] Sixth Report of the Special Committee on Standing Orders and Procedure, presented to the House on March 29, 1983 (Journals, p. 5765), Issue No. 19, pp. 3‑12.

[39] First Report of the Special Committee on the Reform of the House of Commons, presented to the House on December 20, 1984 (Journals, p. 211), Issue No. 2, pp. 7‑10, 21.

[40] Journals, June 27, 1985, pp. 918‑9.

[41] Journals, April 11, 1991, pp. 2898‑932.

[42] Journals, January 25, 1994, pp. 58, 61; February 7, 1994, pp. 112‑20.

[43] Journals, February 10, 2000, pp. 869‑71.

[44] A single legislative committee was established during the Thirty-Eighth Parliament to consider Bill C‑38, An Act respecting certain aspects of legal capacity for marriage for civil purposes. Legislative Committees struck during the Thirty-Ninth Parliament included those established to consider Bills C-2, Federal Accountability Act; C-2, Tackling Violent Crime Act; C‑20, Senate Appointment Consultations Act; C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace); C-30, Canada’s Clean Air Act; and C‑35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences).

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Law is our Passion

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This entry was last updated: July 11, 2017