Sunday, May 14, 2017

Demystifying Legislation Talk at the Canadian Association of Law Libraries 2017 Conference

The Canadian Association of Law Libraries (CALL) finished its 2017 annual conference in Ottawa last Wednesday.

One of the talks I attended was entitled "Demystifying Legislation: Drafting and Research" and featured three speakers who discussed how federal legislation comes about and how to research legislative intent.

The three speakers were:
  • Aleksander Hynna, legal counsel at Justice Canada
  • Wendy Gordon, House of Commons Law Clerk Office
  • Emily Landriault, University of Ottawa
Hynna described the often complex process that leads to the presentation of government bills in Parliament.

Many players are involved: Cabinet, political staff, Justice department legal counsel and jurilinguists, departmental subject matter experts, etc.

One interesting detail was the care with which those involved try to ensure that drafts in English and in French take into account legal issues and vocabulary from both the common law and civil law traditions. Drafts have to be truly blingual and bijural. English and French legislative drafters receive the same instructions and each drafts a version of the bill in light of what the colleague from the other language is creating. The process is not one of translation but rather of "co-drafting".

Hynna was able to give attendees the feeling of being inside the drafting room (an actual office space). He described in detail what he calls the back-and-forth "drafting shuttle" with drafts going back to departments and experts for comments which then get incorporated into newer versions, etc.

Gordon explained the process of drafting private members bills, bills sponsored by backbenchers which are not official government legislative proposals.

In the previous (41st) Parliament, 503 private members bills were introduced in the House of Commons. 34 made it all the way through Parliament and received royal assent. Most died on the order paper, Some 58 actually made it far enough in the debates but were defeated.

According to Gordon, royal assent is not the only measure of success. Often, bills are introduced to allow local constituents to have a voice in the political process, to spark debate, to put the parties on official record on a controversial issue, etc.

One important fact Gordon stressed is that her office, which is in charge of drafting private members bills, takes its role very seriously despite the low odds of success.

Contrary to government bills, private members bills are written in one language and translated. Research input comes from the Library of Parliament. MPs can ask for help on any topic within obvious limits: is the matter federal? does it comply with the Constitution? is there a similar bill on a similar topic in front of Parliament? As well, a private members bill can not raise money.

Drafting is done on a first come first served basis but not all bills are equal when it comes to them being introduced in the House. Priority is based a raffle or draw to establish an "order of precedence" for presentation in Parliament.

Finally, Landriault outlined the various sources for finding the intent being federal legislation. This is more familiar territory for any Canadian law librarian. She described sources such as government websites for backgrounders, the LEGISinfo parliamentary site for more recent bills as well as online parliamentary materials such as Hansard and committee reports and evidence. For earlier bills, print Hansard and print committee documentation are part of the law librarian's tool kit.

She did draw attention to the less well-known RIAS that help determine background for regulations. RIAS stands for the "regulatory impact assessment statement", a backgrounder that accompanies proposed regulations published in the Canada Gazette pt. I and official versions of new regulations published in the Canada Gazette pt. II.

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posted by Michel-Adrien at 8:18 pm

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