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The Unreasonable and Transgressive Nature of Omnibus Bills

What I plan to do in these periodical contributions to Slaw is to examine debates and committee proceedings on bills that may be of special interest to lawyers and legal scholars. What I want to do in this first discussion is to look at the nature of “omnibus bills” and to consider whether such bills tend to erode the capacity of parliamentary scrutiny and may be, to that extent, inconsistent with one or another part of our Constitution.

Many lawyers and legal scholars will be familiar with the notion that “the test of the reasonable man [person] is the man on the Clapham omnibus.” Omnibus bills have nothing to do with public transit but one might wish that their use might offend the person on the Yonge Street subway.

Black’s describes an omnibus bill as:

1. A single bill containing various distinct matters, usu. … 2. A bill that deals with all proposes reality to a particular subject such as … an ‘omnibus crime bill’ dealing with different subjects such as new crimes” and penalties. 

What is problematic about omnibus bills, particularly ones amending the Criminal Code is that parliamentarians are obliged to vote yea or nay for the whole bill, particularly on second reading. “Second reading” (which is actually the first real vote on a bill) is often described as “approval in principle.” The problematic nature of omnibus bills begins with the difficulty of identifying the principle of the bill.

The first bill on which I worked in the parliamentary relations program of the then National Indian Brotherhood (N.I.B.) was an omnibus criminal code amendment bill with three major provisions. One was the abortion prohibitions under which Dr. Morgentaler would later be prosecuted. The second, the one in which the N.I.B. was interested was a gun control provision which, among other things, introduced the Firearms Acquisition Certificate (F.A.C.). The third I no longer remember but I remain confident that it bore no natural kinship to either abortion or gun control. Clearly a person, including a parliamentarian, could either support or oppose the abortion provisions while taking quite the opposite view of gun control. Indeed, following the Charter, the Supreme Court threw out the 1976 abortion provisions while the gun control provisions, far from being repealed have been enlarged upon. Even the repeal of the long gun registry would not necessarily repeal the requirement for a person to have the equivalent of an F.A.C. – a knowledge of gun safety and no convictions for violent crimes – before acquiring weapons.

Identifying the principle of a bill is important because the longstanding rule in Westminster-style parliaments is that no amendment to a bill can be offered that would change the principle of a bill after the bill has been given second reading in that Chamber, i.e., the Senate or the House of Commons. (Some of the most notable authorities on parliamentary procedure hold that a bill passed in one Chamber and sent on to the other should also not be amended in regard to its principle.)

Bills are commonly sent to committee after second reading to hear from the minister sponsoring the bill, departmental officials, independent experts and representatives of professional organizations interested in the bill. Several of the independent experts appearing before either the Commons Committee on Justice and Human Rights or the Senate Committee on Legal and Constitutional Affairs in the last session (3rd session, 40th Parliament) on criminal law amendments were concerned about the failure to provide additional funding concurrent with proposals that would increase the number of persons incarcerated at any one time. Representatives of an association representing Crown Attorneys and another representing Defence attorneys in Quebec offered their views on certain criminal law bills. The bill proposing to end the 2-for-1 policy of judges handing down sentences was opposed because it would increase the number of persons incarcerated while offering nothing in the way of educational, counseling or self-help programs. It was also seen as an intrusion by Parliament into a policy area long occupied by the judiciary. The attorneys general of the provinces indicated that they wished to reduce the 2-for-1 but only to 1.5 rather than 1-for-1.

Last session 15 government bills on criminal law were studied by the Senate Committee on Legal and Constitutional Affairs, nine of which had originated in passed the House of Commons. Several had to do with sentencing while others were concerned with creating new offences, e.g., prohibiting child pornography on the Internet, Controlled Drugs and Substances Act, DNA Identification Act, Protecting Victims from Sex Offenders.

Just as with the earlier example of the 1976 bill on abortion and gun control, favouring one of these measures but not another hardly establishes that a person is “soft on crime.” Wanting to protect children from child pornography and sexual assault does not bear any connection with changing the 2-for-1 rule and certainly does not reflect on the lower ratio to be preferred, 1.5 according to provincial attorneys general or 1-for-1 according to the Harper Government.

My central concern is that bills can not be properly studied, in committee or in Chamber, after second reading unless the principle of the bill can be clearly identified and even agreed upon by “reasonable parliamentarians,” if such can be found.

Criminal law does not have a monopoly on omnibus bills; it is simply the area where they are most demonstrably used to narrow the study of proposed legislation. The problem is no less egregious on several other legislative arenas of which I will mention only one here and save the others until they arise over the course of this new session (41st Parliament, 1st Session or 41:1).

Once upon a time it was customary for the Minister of Finance to introduce a veritable raft of bills in his budget. Lately, it has become common to introduce one omnibus Budget Implementation Bill. This raises the difficulties raised by a criminal law omnibus bill as well as some others. Although Stephen Harper threatened over the recent minority government parliaments that he would regard the defeat of a variety of proposals, and even defeat of bills in the Senate as votes of non-confidence, historically and constitutionally there are only two kinds of parliamentary proposals that constitute votes of confidence (or non-confidence should the proposals fail). The first is the Speech from the Throne. The second is “money bills”, a somewhat problematic term to which I shall return when the problem arises sometime in this Parliament.

Money bills can, as a result of s. 54 of the Constitution Act, 1867 only be introduced by a minister bearing a recommendation from the Governor General. It is this provision (and the centuries of British parliamentary custom preceding it) that leads money bills to be votes of confidence. The notion of money bills has two distinct elements: the issue of confidence; and the guarantee that the Crown will only have available the moneys voted for specified purposes by the House of Commons.

The more that money bills bundle together a vast array of conflicting or simply unrelated purposes the more difficult it is to reach the conclusion that the Commons voted funds for specific purposes. (Admittedly, this is part of a longer argument to which we shall, undoubtedly, return as this Parliament progresses.)

The greatest single insult to parliamentary or legislative supremacy over the Executive in our system of government was the supposed introduction of the 2003 budget by Mike Harris’s Minister of Finance (aka “Provincial Treasurer”) at a Magna plant. An online encyclopedia says that Eves and Harris were accused of violating centuries of parliamentary tradition. I would disagree with this characterization. Given the requirement, in sections 53 and 54 (discussed above) that money bills be introduced in the elected Houses with a recommendation of the Governor General (and the general rule that all such provisions regarding the House of Commons apply equally to Legislative Assemblies, more specifically set out in s.65) that whatever Mr. Eves did at the Magna plant was certainly not the initiation of the budgetary process.

Until Mr. Eves presented his budget legislation to the Legislative Assembly, together with the recommendation of the Lieutenant Governor, the budgetary process had not begun. The suggestion, by the Harris Government that what Eves did at the Magna plant was a part of a legislative process was a fabrication.

I know of no better defence against such fabrications than a general public, and particularly the community of legal practitioners and scholars who are well-equipped to challenge such rubbish.

More to follow.

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Comments

  1. Lots of stuff in this posting, Michael. My understanding of “Omnibus Bills” is that they are essentially “housekeeping bills” to make minor amendments to a number of statutes, but not to be used for the transmission of government policy, so you are right in this. However, politics does often trump parliamentary practice. In any event, the purpose of the bill should be found in the Preamble, or failing this should be found by the statement of the bill’s sponsor at 2d reading further to the rule in Pepper v. Hart(UK) which is admissible in Canada as evidence of the legislative intent of the particular bill.

    Of greater concern I think, is the use of what I call “skeleton” bills, which just set out a legislative framework then refer everything else to regulation, which do not go through parliamentary scrutiny.

    Thanks for the post, very thought-provoking.

  2. A good start on some interesting and important explorations, I would say. Thanks.

    Does a bill have to have a single principle? Why could it not have several principles, each reflected in one or more of its sections? Ontario has over the past 17 years developed a tradition of such bills, though ‘omnibus’ got a bad reputation with Premier Harris’s Bill 26 in 1995, since it was used to slash spending across a number of fronts and made a lot of legislative changes as it went.

    But the Harris and McGuinty governments have been very active in proposing catch-all, or portmanteau, or … choose your adjective… bills, under names such as the Red Tape Reduction Act, the Government Efficiency Act, or the Good Government Act. Most of the contents are housekeeping, i.e. politically uncontroversial items that would not support a free-standing bill. Most, but not all, governments of all stripes can’t resist slipping a few things in that are bigger, though not necessarily controversial.

    The concern of legislators, and the concern of lawyers trying to keep up with the law, is to know what is being done and why, across the board.

    One possible remedy to the ‘approval in principle’ issue that Michael raises is to send the bill to committee after first reading. This is certainly permitted in Ontario, though it is extremely rare. Such bills might benefit from that procedure, because there would be more room for creative amendment from all parties than there is after second reading.

    Ontario certainly knows about omnibus budget bills too, which stretch the notion of having to do with provincial finances. One of the most radical stretches occurred a couple of years ago when a budget bill extended the term of office of municipal politicians from three to four years. I expect that no Royal Warrant was needed for that part of the bill.