Death on the order paper

There was no walk in the snow, but on January 6, Prime Minister Justin Trudeau announced his resignation as Liberal leader and prime minister.

At the same press conference outside Rideau Cottage, he also announced that the Governor General had agreed to prorogue Parliament until March 24 to allow a Liberal leadership contest to choose his successor before he resigns.

Prorogation pauses Parliament but doesn’t suspend it. However, it does mean that the legislative agenda, as set out in the order paper, will be reset once Parliament reconvenes in March, and some key pieces of legislation may die. That said, the next parliamentary session may not last long as all opposition parties are threatening to vote non-confidence.

Legislatively, there’s a lot at stake, as few bills were passed during the fall sitting because of a Conservative procedural filibuster related to a privilege matter on an order for the production of documents to be handed to the RCMP — a move the government called an abuse of Parliament’s powers.

If the Liberal government doesn’t fall immediately upon Parliament’s return, outstanding bills can be re-introduced at the last stage they were passed in the House of Commons and re-numbered for the fresh order paper. Senate bills, however, will have to start over as they don’t have the same procedural mechanisms to restore their places.

A few bills in particular could cause problems if not passed upon Parliament’s return, one of them being Bill C-71, which sought to rectify the issue of “lost Canadians” under the Citizenship Act. The Ontario Superior Court had struck down section 3(4) of the Act because it created an arbitrary limit on passing Canadian citizenship, violating the Charter of Rights and Freedoms. The Court initially imposed a deadline of six months to pass a bill, but the government didn’t introduce it until that time had nearly expired. The Liberals were reluctantly granted an extension, but the filibuster thwarted further attempts to move the legislation along.  

“There was broad-based support for most of the bill, except for one provision that the Conservatives wanted tightened, but it got caught up in the filibuster,” says Amandeep Hayer of Hayer Law in Vancouver.

“A few weeks ago, the government got another extension and the court was not happy about granting it. I don’t think the government is getting another one.”

If the government falls when it returns in March and another extension is not granted, Hayer says that section 3(4) will be struck down. Then, everyone affected by that section will automatically become Canadian citizens on that day, retroactive to their date of birth.

The government has said it doesn’t know how many people that would apply to, but Hayer notes that the numbers the government has been using are those it expects to take advantage of that citizenship—somewhere between 100,000 and 200,000 people, many of them Americans.

“When we emigrate, we tend to emigrate to the U.S. A lot of Canadians have emigrated there, and many of their descendants still live there, and many of them want to come back,” Hayer says.

“The recent U.S. election seems to be propelling many of them to take advantage of these changes.”

He notes that Bill C-71 was the fourth or fifth attempt to rectify other past inequities in the Act, including sex-based discrimination around who can pass on their citizenship.

“There are other constitutional issues still floating around the Citizenship Act, and Bill C-71 was probably the first bill which would have rectified all of those, with the exception of the issue of adoptions,” Hayer says.

If it's not passed, other legislation that could have implications, particularly for the next election, include Bill C-65. It would amend the Canada Elections Act to increase accessibility in elections and to move the “fixed” election date back one week to avoid a conflict with Diwali.

“The issues that Bill C-65 sought to address aren’t going anywhere,” Connor Bildfell, partner with McCarthy Tétrault LLP in Vancouver.

“Right now, we continue to have a vigorous discussion about the balance between freedom of expression and addressing misinformation and disinformation in elections. Whoever wins the next election will have to grapple with that issue, and Elections Canada will have to continue to grapple with that issue.”

The bill's loss also means ongoing confusion around the privacy regime applicable to political parties. The B.C. Supreme Court ruled in May that the provincial privacy regime applied to federal political parties, and the bill had sought to declare that they were only subject to federal rules. However, that is now in doubt as the decision heads to the Court of Appeal.

Bildfell says the bill also included measures to enhance electoral integrity, including provisions relating to false or misleading statements about elections—the “Big Lie” after the previous U.S. election.

“Those provisions have died on the order paper, and it’s uncertain if they will be resurrected in the next iteration of an electoral reform bill that comes before Parliament,” Bildfell says.

“How do you address misinformation and disinformation in elections without chilling free speech? It’s an important question, and we just don’t know what the next government will do on that issue.”

Bills related to updating the federal privacy regime and combatting online harms have also fallen off the order paper.

David Fraser, a partner with McInnes Cooper in Halifax, speaking on his behalf and not the CBA’s Privacy and Access Section, says that he has mixed feelings about these bills dying, possibly out of a sunk costs fallacy, given how much effort he has put into improving the legislation at committee appearances. He hopes there is an opportunity for the departments to make improvements before a future version is tabled, both with respect to modernizing the Personal Information Protection and Electronic Documents Act (PIPEDA) and the online harms bill.

“I wouldn’t be surprised if a Conservative government took the view that PIPEDA is long in the tooth, and we might wind up with a better bill,” Fraser says.

“Hopefully, they would also not bolt it onto an artificial intelligence and data act, which was half-baked and was just the skeleton of a law. Now, we have the opportunity for the folks at the Department of Industry to come up with a better proposal and maybe do some consultations in the meantime. Maybe we’ll end up with a better artificial intelligence law.”

As for the online harms legislation, Fraser says that Bill C-63 contained better provisions than the government’s discussion paper in the previous parliament, but there was still legitimate criticism that would help improve the parts relating to online harms alone.

Conservative MP Michelle Rempel Garner tabled a private member’s bill that sought a different way to tackle online harms, which Fraser believes her party will likely pursue if they form government.

“Frankly a lot of this is a lack of law enforcement problem, and that may be a better approach to take,” Fraser says. “I don’t think part 2 or part 3 of Bill C-63 [concerning hate speech] we’ll see again, and I’m fine with that.”

Fraser adds that part four of the legislation, which dealt with mandatory reporting of child sexual abuse materials, would likely pass on its own with little problem, though for large online platforms, there are already reporting requirements, automatically passed on to the RCMP.

“I’m not sure there is a risk of harm in the meantime for it not having (this bill) passed,” he says.

“There are currently tools in the policing toolbox that can address these things, so putting this on pause for two years until a Conservative version is not leaving a significant gap if the police are willing to step up and use their current authorities for things that are particularly harmful. We’re not left with a vacuum where harm will flourish.”

Here are the other bills that died in both chambers:

• Bill S-6 is a technical omnibus bill amending different statutes as part of a regulatory modernization initiative to remove barriers to economic growth and innovation. It passed the Senate and was at the Industry Committee in the House of Commons.
• Bill S-7, as amended by the Senate, codifies the standard by which border officers can examine personal digital devices as being “reasonable grounds to suspect.” After sitting on the order paper for two years in the House, it was ordered to be passed following a ruling by the Ontario Court of Appeal.
• Bill S-11 is a technical bill that harmonizes federal law with Quebec civil law, ensuring that each language version of existing legislation accounts for both common and civil law. As of December 2022, it was introduced and passed by the Senate but was not debated in the Commons.
• Bill S-14 amends the Canada National Parks Act, including expanding several of their boundaries. It passed the Senate before the Christmas break in 2023 and was not debated in the House.
• Bill S-15 would create Criminal Code offences related to keeping elephants and great apes in captivity, barring certain exemptions. It just completed its third reading in the Senate in December.
• Bill S-17 is another technical bill to correct “certain anomalies, inconsistencies, out-dated terminology and errors” in a series of statutes and regulations. It is considered “noncontroversial and uncomplicated.” It completed third reading in the Senate before the summer break but was not introduced in the House.
• Bill C-23 would see greater Indigenous participation in the designation of historical places or sites of national historical significance and their conservation. It had only undergone several hours of debate at second reading.
• Bill C-26 introduced technical changes to the Telecommunications Act, focusing on enhancing system security against cyber-attacks and implementing components of the Critical Cyber Systems Protection Act. The bill was sent back to the House from the Senate with amendments in December.
• Bill C-27 is the federal government's promised overhaul of privacy legislation to make it more responsive to the digital era. It establishes a new Personal Information and Data Protection Tribunal. It passed second reading in the House in April, and had undergone extensive committee hearings that had not yet concluded.
• Bill C-33 included amendments to railway safety and sought to modernize the governance of federally owned and regulated ports. It had concluded committee study and had reported back to the House.
• Bill C-37 sought to amend legislation related to the Employment Insurance Board of Appeal ahead of the promised modernization of the EI system. It had yet to be debated.
• Bill C-38 enacts changes to eligibility for Indian status and is part of an effort to suspend a constitutional challenge launched by First Nations families looking to end the inequities and exclusion faced by those "enfranchised" under previous versions of the Indian Act. The bill reached second reading debate but did not pass that stage.
• Bill C-52 creates a new statutory framework for transparency and accountability in the air transportation sector. It aims to address challenges faced by airlines and airports since reopening after the peak of the pandemic. It saw second reading debate in November but did not pass to committee.
• Bill C-53 would formally recognize Métis governments in Ontario, Saskatchewan, and Alberta. It completed committee study in the Commons, but has drawn objections from the Assembly of First Nations, the Chiefs of Ontario, and some individual Métis settlements.
• Bill C-61, known as the First Nations Clean Water Act, was claimed by Indigenous Services Minister Patty Hajdu to have been "co-developed" with First Nations, though some groups dispute this. The government tried to fast-track it after committee study, but the opposition refused to.
• Bill C-63 is the government’s long-awaited online harms legislation, which differs vastly from the attempt in the previous parliament. It has drawn criticism across the board. While it saw some debate, the government attempted to split parts of the bill to accelerate them but did not get the cooperation to do so.
• Bill C-65 would amend the Canada Elections Act to increase accessibility in elections and move the “fixed” election date back one week to avoid conflict with Diwali. It also sought to create new offences related to spreading misinformation that would affect the conduct of an election. It was being considered in committee.
• Bill C-66 sought to change the military justice system, including removing sexual offences from military jurisdiction. It has yet to be debated.
• Bill C-71 amends the Citizenship Act to reverse previous changes that resulted in groups of “lost Canadians” losing their citizenship. It was not debated.
• Bill C-72 sought to ensure that any health-related IT is interoperable and prevent vendors from blocking data, aiming to promote a connected and secure health information system around the country. It was not debated.
• Bill C-73 would enact Canada's commitments under the Convention on Biological Diversity. It was not debated.
• Bill C-77 sought to create a Commissioner for Modern Treaty Implementation but was not debated.