Eric Janse – Written Evidence (TWP0011)

Brief summary on the work of committees of the Canadian House of Commons

Most standing committees of the House of Commons are authorized to study any question relating to the departmental activities and policies set out in their mandate, provided to them by our Standing Orders.

Additionally, from time to time, the House refers to its committees the consideration of specific matters for in-depth study. This includes many reports and documents tabled in the House, by Ministers of the Crown or the Speaker of the House pursuant to the laws of Canada and pursuant to the Standing Orders. These can be, for instance, the annual reports of departments and federal government organizations on access to information and privacy protection, reports on the implementation of a given law, or draft regulations or instructions from the Governor in Council[1].

This, however, has not been the case historically for treaties, which are generally not referred to committees.

Brief history of the process of treaty scrutinization by the House of Commons

For a brief history of the treaty process in Canada, I would direct you to a background paper prepared by our Library of Parliament entitled “Canada’s Approach to the Treaty-Making Process”, prepared by our Library of Parliament, which explains Parliament’s limited role, and specifically that:

The ratification process is thus wholly controlled by the executive branch, although Parliament has had an ad hoc involvement in that process over the past 90 years. For example, between 1926 and 1966 only treaties of sufficient importance were submitted by the executive to Parliament for approval prior to ratification.19 Examples of the executive branch tabling treaties in Parliament following ratification were also relatively common until 1999.20 [2].

More recently, however, the federal government initiated a policy, whereby it announced its intention to table in the House all international treaties governed by international law which Canada intended to ratify.[3]

It may be of some interest, but there was a former MP who had a great deal of interest in this subject a number of years ago.  At that time he had presented two private members’ bills on the subject of treaties and the role of parliament.  More information on these bills is available on the Parliament of Canada website:

An Act to provide for the participation of the House of Commons when treaties are concluded

https://www.parl.ca/LegisInfo/BillDetails.aspx?billId=9441&Language=E

An Act to provide for the publication of treaties

https://www.parl.ca/LegisInfo/BillDetails.aspx?billId=9337&Language=E

Description of the current practice

As outlined on the Global Affairs Canada website, the policy for the tabling of treaties in Parliament highlights a specific nuance, namely whether the treaties require the implementation of legislation to be ratified or not.[4]

In either case, once the treaty documents are tabled in the House, they become sessional papers, and as is the usual practice, once documents are tabled in the House, they become part of the public record. A copy is kept at the Secretariat and another copy is deposited at the Library of Parliament for long-term preservation as well as for consultation purposes by Members of Parliament and the public. In many cases, the government will also provide additional copies to the parties in their respective lobbies.

As stated in the policy, and as explained in Bosc and Gagnon:

For a period of 21 days following the tabling of treaty documents, the government’s intention is to abstain from implementing them in order to allow for parliamentary examination and debate within that time frame. Although these treaties are not referred to parliamentary committees when they are tabled in the House, and there is no formal procedure concerning them, certain standing committees have used their power to initiate studies on matters pertinent to their mandates in order to conduct studies on some of these treaties and present reports.[5]

In addition to these subject matter studies undertaken by committees, Members of Parliament may debate the merits of treaties in the House of Commons and may pass a motion recommending action, including ratification. That being said, such a vote would have no legal force.[6]

Given that there is no specific rubric in the daily order of business of the House for such debates to take place, procedurally the mechanism for how such debates would be expected to take place are unclear.  Likely it would need to be done as a supply day motion, whereby an opposition party would put on notice and select a motion to debate the merits of a treaty as their opposition motion.[7]

Cases in which treaties do not require legislation

If no implementing legislation is required, the government has signaled its intention is to abstain from implementing these treaties for 21 days after tabling them in the House, in order to allow for parliamentary examination and debate within that time frame. In theory this allows an opportunity for the House to debate the treaty before implementation, although, as stated earlier, there is no formal provision or rubric that is allocated for this purpose.

Cases in which treaties require legislation

For treaties that require implementing legislation before the government can proceed to ratification, acceptance, approval or accession, the federal government’s policy is to observe a waiting period of at least 21 days before the introduction of the necessary implementing legislation in Parliament, which allows Members of Parliament the same opportunities to debate, present and possibly vote on motions, similar to the possibility to do so in relation to those treaties that do not require implementing legislation. Following the waiting period, the government may subsequently introduce the implementing legislation for these treaties, and will seek only when the legislation is adopted, the authorization from the Governor in Council to express consent to be bound by the treaty.[8]

As explained by the Library of Parliament background document, “Canada’s Approach to the Treaty-Making Process,” though the policy for treaties requiring a piece of legislation includes the addition of the legislative process for said bill, this review of the legislation does not afford an opportunity to amend the treaty itself:

The treaty itself may be included as a schedule to the bill in some cases; however, neither the treaty itself nor its principle or scope can be amended during the legislative process. Furthermore, implementing legislation often contains a provision by which the treaty is approved. In most cases, this approval is stated very simply, for example, by the expression “the agreement is approved.”[9]

Some recent examples that may be of interest

Here are some recent examples of treaties being tabled that were then followed by legislation:

1       The Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 2018

1. Treaty tabled in the House of Commons May 22, 2018
2. Bill C-79, introduced on June 14, 2018
3. First time debated at second reading on September 17, 2018

2       The Comprehensive Economic and Trade Agreement (CETA), 2016

4. Treaty tabled in the House of Commons on October 31, 2016
5. Bill C-30, introduced on October 31, 2016
6. First time debated at second reading on November 21, 2016

Summary: A limited role played by Parliament and by committees more specifically

As you can see, while the federal government in Canada does indeed have a policy in place to table international treaties in order to assure Parliamentary review, there is nothing binding and nothing in law which requires it. As suggested in the Library of Parliament briefing paper, “the tabling of treaties in the House of Commons remains a courtesy on the part of the executive, which retains full authority to decide whether to ratify the treaty after the parliamentary review”.

Indeed, as the author further explains, and the federal policy (section 6.3) explicitly states “in exceptional cases, the executive branch may still have to ratify treaties before they can be tabled in Parliament. To do this, the executive will seek approval from the Prime Minister for an exemption and inform the House of Commons of the treaty as soon as possible upon ratification”.[10] 

5 June 2020