16 Federal Legislative Process
Introduction
“Legislative process” is the term for the progression of a bill through a legislative body. Along the way, it will go through a series of debates and votes. If all of these votes are successful, a bill will become an act . Why is understanding the legislative process important? Knowing how legislation progresses through a legislative body helps you understand where you are most likely to find meaningful discussion of past changes, as well as assess the likelihood of a proposed change actually being successful, and prepare for changes before they happen.
Types of Bills
Before an act is an act, it’s a bill. Bills generally were discussed previously. However, there are actually finer gradients to bills, that can greatly impact the likelihood of a particular bill successfully making it through the legislative process: Not all bills are created equal.
Federally, there are three ways to divide and describe bills (and the acts they may become): Firstly, by where the bill has been introduced, secondly, by whom the bill will apply to, and thirdly, by who has introduced the bill.
The first division is by which chamber the bill is first introduced in: Bills can be introduced in both the Senate and the House of Commons. A bill’s chamber of origin can easily be determined by its bill “number:” House of Commons bills have a “C-” prefix, while Senate bills have an “S-” prefix. Senate bills are numbered starting at 201. It may be interesting to note that fewer bills are introduced in the Senate, and therefor, far few acts originate as Senate bills. The argument can also be made that Senate bills are less likely to successfully travel through the legislative process, but this is not a hard and fast rule.
The second major division is based on to whom the bill will apply, should be it passed: Public bills speak to a topic of general impact, or public policy, and should they become acts, will apply to everyone equally. Private bills “confer special powers or benefits upon one or more persons or body of persons, or to exclude one or more persons or body of persons from the general application of the law.” Most private bills (although not all) are first introduced in the Senate, and can be identified by bill number, as private bills are numbered beginning at 1001 (so, usually S-1001+). Private v public does not usually have an impact on the likelihood of a bill’s chances of success in the legislative process.
On the other hand, who introduces the bill tends to be a significant predictor of a bill’s success. Government bills are drafted by the Department of Justice on the instructions of the Cabinet, and introduced in the House of Commons. They are introduced by the Minister relevant to the topic being addressed. In majority governments, Government bills stand an excellent chance of making it through the legislative process, as these bills will have the will of the governing party behind them. Even in minority governments, government bills still stand a good chance of being successful, as they usually are created with the input of other parties working in coalition with the governing party. Government bills can be identified by their number: C-1 to C-200 are reserved for government bills.
The other type of bills are private members’ bills (very different from private bills), which are introduced by any member of the House of Commons. Generally speaking, there is no requirement for a member to get permission from their party to introduce a bill. Essentially, any member of the House of Commons can introduce a bill on (nearly) any topic. These bills are, unsurprisingly, less likely to make it through the legislative process, when compared to Government bills. Often, private members’ bills only receive First Reading. While this may seem somewhat futile or frustrating, the process that surrounds the introduction of a bill does serve as a means to bring attention to a topic, regardless of the ultimate success of a bill. Private members’ bills are numbered starting at C-201. As private members’ bills “continue from session to session within a Parliament,” should a particular private members’ bill receive Royal Assent, that bill number will remain reserved (and unused) for the remaining session(s) of a Parliament, which is why we can occasionally see gaps in numbers for private member’s bills.
Learn more about types of Federal bills from the LegisInfo FAQ. Now that we’ve been introduced to the details of bills, bill numbering, and all that it can convey about the bill, how does a bill move through the legislative process?
First Reading
After giving notice to the Clerk of the House, a bill’s title will appear on the Notice Paper, after which it can appear on the Order Paper, where it will remain until it is introduced.
At first reading, a bill is introduced into the legislative body. Usually this is accompanied by a brief summary of its contents by the member introducing the bill. Debate does not occur at this stage, and the “why” or explanation for a bill is rare. While the printed bill itself may have an explanatory note as part of it (at the beginning, in most cases), very little context will appear in the debates. First readings often happen in bulk… At a given time, a bunch of bills will be introduced, simply by listing their name and bill number. Every bill introduced will receive first reading as long as it is in the correct format. In essence, receiving first reading is a low bar to clear.
For many bills, particularly private members’ bills, first reading is the beginning and the end. While these bills will continue to technically be able to progress until the end of the Parliament in which they are introduced, many if not most private members’ bills end their legislative process here.
Second Reading
Government bills (and some few private members’ bills) are far more likely to continue on through the legislative process, and receive second reading. At second reading, the bill will be justified with a speech from the sponsoring legislator (Minister or private member), and then be debated by members of the legislative body. This debate can range from very minimal to extensive and detailed. There is no requirement that the debate be limited to one day, and it is not uncommon to see multiple days for a bill’s second reading (assuming a majority government isn’t trying to ram something through in a hurry). Second reading debates tend to be one of the more fertile sources for material on legislative intent, second only to committee debates. That being said, as the second reading occurs in the entire legislative body, rather than a select committee, meaningful debate can be derailed by partisan wrangling, so as a researcher, it is important to be aware that not all debates are truly meaningful for our purposes!
Once debates are concluded at second reading, there is a vote. Should the bill successfully pass the vote, in many cases the bill will be sent to a committee,
Committees
Committees are specialized groups consisting of legislators from the House of Commons or Senate who, theoretically, have particular interest or expertise on a topic. Amongst other tasks, committees are where legislation is examined in more detail than in the House of Commons (or Senate). Currently, most bills are send to a Standing Committee which focuses on a particular topic.
In addition to House or Senate committees, there are also currently a handful of Joint Committees, most of which deal with very specialized topics, such as Medical Assistance in Dying. One current Joint Committee of particular interest to legislative researchers is the Standing Joint Committee for the Scrutiny of Regulations, as researching regulations is always challenging, so any helpful sources are wonderful to find.
Historically, it was not uncommon for a particularly significant or contentious bill to be sent to a special committee, which would be struck for the express purpose of debating that particular bill. An example of this is Minutes of proceedings and evidence of Legislative Committee G on Bill C-55, an Act to amend certain Acts in relation to pensions and to enact the Special Retirement Arrangements Act and the Pension Benefits Division Act. In older debates, the name of the committee where the the bill was being referred to would usually be explicitly listed, and the researcher would need to infer that if the debates simply stated something along the lines of “the bill is referred to committee” without a specific committee referenced, it is likely that the bill was referred to a Special Committee. These special committee reports/minutes and evidence can be more challenging to find, but the best technique to find whatever is available is simply to search a library catalogue by the bill number… And then attend to the date of publication to ensure you are looking at the correct “Bill C-55!”
Why are committee debates, standing or special, worthy of attention? Firstly, as mentioned previously, committees tend to be formed of legislators with a greater expertise in the topic being discussed, and therefore, the discussion is more likely to be meaningful and focused. Secondly, it is at this stage that interested organizations, individuals, and associations can be called as witnesses, and can make submissions and/or present directly to the committee. This brings an additional source of both expertise and information (these submissions tend to be very well researched and written, and often are available in libraries or on organization websites). Thirdly, and arguably most significantly, it is in committee that a bill will receive clause by clause analysis. This is where, as researchers, we are most likely to find the sort of focused, detailed analysis of why, exactly, something reads the way it does. That being said, it is not terribly uncommon to see something like “clauses 15-25 agreed to,” which is disappointing if your research focuses on section 18!
Committees are also, currently, the first place where a bill can be amended. It often comes as a surprise to researchers that a bill as first proposed, at first reading, is not necessarily how it will appear by the time it makes it through the legislative process! These amendments can expand or restrict the ambit of the bill, make its wording clearer, or remove wording that may be problematic. In scope, these amendments can range from changing a few words in a clause, to adding (or removing) entire clauses, sometimes resulting in an entirely re-numbered bill. This process of (potential) amendment is why it is standard to see at least a first and third reading/as passed version of a given bill, plus possibly a version “as amended” by a committee for use in the House of Commons at report stage (as in the Bill C-233 from the 44th parl, 1st sess).
Report State
After second reading, the committee reports to the House of Commons. This reporting is on the bill as a whole, not on a clause-by-clause basis, and may involve reporting that the bill has been amended. Debate by the House of Commons is limited to these proposed amendments, and after debate, the House of Commons has the opportunity to vote on accepting or rejecting on the bill as reported. Therefore, do not expect to find detailed debate of the bill as a whole, at this point, only any proposed amendments to it. If the bill was not amended by committee, it can proceed immediately to being voted on, as reported.
Third Reading
The third reading is the last opportunity for the legislative body to examine the bill. Usually there is little to no debate at this stage, and in most cases, the bill is more or less immediately voted on. Generally speaking, any bill that makes it to this stage is nearly always going to successfully complete the legislative process (at least in the current chamber).
And Again!
The Federal system is a bicameral system. This means that bills can be introduced in either the House of Commons or the Senate, and after going through three readings in the first body, then has to go to the other body and repeat the process. This concept can be quite challenging for researchers: Most bills that successfully traverse the legislative process and become acts begin in the House of Commons, so our reading of the debates tends to start here. This discussion can be incredibly detailed… and lengthy. Therefore, completing study of the House of Commons debates, and then having to face Senate debates can, at times, be discouraging. However, never fear! In most (but not all) cases, Senate debates are much less voluminous than House of Commons debates – in print, where House of Commons debates for a given session may take up a shelf or more in the library, the same session’s Senate debates are likely to only take up a foot or less of shelf space. In essence, while there are always exceptions, take heart from the fact that for House of Commons bills, once the House of Commons debates are read and it is time to move to Senate debates, you are likely to be two thirds or even three quarters done, not half!
Royal Assent
Up until this point, the bill is still a bill, not an act. The bill graduates to act status, and receives a statute number (ie Bill C-15 becomes SC 1994, c 1) upon Royal Assent (“RA”). Now legislated by the Royal Assent Act, SC 2002, c 15, which modernized the procedure of issuing Royal Assent, RA is the approval by the Sovereign of a bill that has passed both chambers. The actual Sovereign is not usually involved, as their representative in the form of the Governor General (or the GG’s representatives) exists to, in part, fulfill this role. Up until very recently, royal assent was in the name of the Queen, but with the death of Queen Elizabeth II, and the coronation of King Charles III, this has to changed to reflect that the Sovereign is now a King.
A common question is whether the Governor General (or even the Sovereign) can refuse to grant Royal Assent and therefore block the creation of a statute. In essence, while this is theoretically possible, it has been unconstitutional since 1926 for the British government to interfere in Canadian legislation and the Governor General has never refused to assent to a bill. While there a legislative mechanism (Constitution Act, 1867, RSC 1985, Appendix II, No 5, s 56) that remains in place that could theoretically permit this, as assent has never been refused, this legislation has remained untested. For the purposes of legislative research, it is safe to assume that if a bill is eligible for RA, it will receive it and become an act.
Do all bills actually make it through the legislative process? No. In fact, many if not most bills “die on the order paper” when a legislative session is prorogued/ended. Also as discussed previously, currently private members’ bills are permitted to continue through multiple sessions in a parliament, coming to a final end only when the parliament is dissolved, It is also not unheard of to see some government bills resuscitated in the next session, at the same stage (and sometimes even with the same bill number) where they previously died. Typically these are bills that are deemed of higher importance by the governing party, and often were quite close to achieving Royal Assent when the parliament or session ended. There have been cases in the past where a given bill appeared in multiple sessions, each time progressing a little bit through the legislative process, before finally achieving Royal Assent and becoming an act,
Coming Into Force
If a bill has made it all the way through the legislative process, received RA, and been assigned a chapter number, is it necessarily the law that must be followed? No! An act has to “come into force” before it has force or effect. Look at the end of the act (usually), to find out how it comes into force. Note, omnibus bills (bills that create or amend many acts) often have in-force information at the end of individual schedules or parts. An act can come into force in a number of ways:
- On Royal Assent: the date on which the act received RA.
- Deemed date: “This act comes into force December 31, 2021.”
- Might be dependent on something else: “This act comes into force sixty days after the coming into force of section 15 of An Act to Amend Another Act, SC 2021, c 5.”
- On proclamation: “This act comes into force on proclamation.” It is impossible to predict when proclamations will happen. Proclamations are published in the Gazette, and can appear shortly after Royal Assent, or never.
- Consult the Table of Public Statutes and Responsible Ministers. Look for your act (by name of original or amended act, not the amending act) in the alphabetized list, then look at the end of the act’s entries for the “CIF” (coming into force) information for both the original act (if post-dating the 1985 revision) and all of its amending acts.
- Retroactive: Usually retroactive in force dates are only for acts related to financial issues (especially taxation), to cover a complete fiscal year.
- Some combination of above: in force dates can cover a whole act… or sections (or subsections!). So, in a single act, some sections might be in force on RA, other sections might require proclamation, and other sections again have a deemed in force date.
- Talk to a librarian! Coming into force information can be complex and complicated. Get help to either verify your research, or be guided through the research process.
What About Regulations?
As subordinate legislation, regulations are not debated. The sections of the act that authorizes the creation of regulations may be debated, which would usually focus on the scope of the power to make regulations, such as the general topics that the regulations should address, or who should have the power to make regulations. This debate will not contain discussion of the detailed content of regulations (IE the debate may focus on who can permit a medication to be added to a regulation that lists medications allowed in a certain context… the debate will not mention whether Drug X will be listed).
However, you may be able to find Proposed Regulations in the Canada Gazette Pt I.
The Federal government has also set up a system to allow Comment on Proposed Regulations, from 2021 onwards. Not only does this give us a good look at the actual text of potential changes, but often will include a detailed Regulatory Impact Analysis Statement (RIAS), which may set out issues (as understood by the government), a rationale, the objective of the regulation, and other key information. As well, once the comment period closes, these comments are available to read. Prior to this, the Proposed Regulations in the Canada Gazette Pt 1 often had a RIAS as well, starting in 1987.
Regulations are in force upon date of registration unless otherwise specified. Regulations can also have a deemed in-force date or a in-force date dependant on something else, and like statutes, can come into force in a piecemeal fashion involving in a variety of methods. The one method which is not applicable to regulations is proclamation… Regulations are never brought into force by proclamation.
