Omnibus Bills: Constitutional Constraints and Legislative Liberations.

• Date: 22 March 2017
• Author: Dodek, Adam M.

OVER THE PAST DECADE, the use of omnibus bills has become routine in the Parliament of Canada. Omnibus budget implementation bills have grown in size to several hundred pages and acquired their own political term with a decidedly negative connotation: "omnibudget bills". These omnibus and omnibudget bills have been a source of controversy and, at times, political protest. In its 2015 election platform, the Liberal Party of Canada promised to change the House of Commons' Standing Orders to end the "undemocratic practice" of using omnibus bills. This article analyses the understanding, use, and history of omnibus bills in the Parliament of Canada. It argues that such bills undermine parliamentarians' ability to responsibly and effectively carry out their duties to examine and debate legislation. Omnibus bills reveal a tension between the doctrine of the separation of powers and the principle of democracy. Excessive deference to the doctrine of the separation of powers has allowed omnibus bills to become a threat to parliamentary democracy in Canada, and the balance needs to be recalibrated. This paper considers various ways in which omnibus bills might be restrained and the constitutional challenges that such options present. It considers the role of the House of Commons, the Senate, the Governor General, and the courts. Ultimately, this paper concludes that in the absence of action by Parliament

AU COURS DE LA derniere decennie, le recours a des projets de lois omnibus est devenu une sorte de routine au sein du Parlement du Canada. Les projets de lois omnibus d'execution du budget n'ont cesse de voir leur nombre de pages grossir au point d'atteindre plusieurs centaines et on a meme fini par les qualifier, avec toute la connotation politique negative que cela suppose, de <>. Ces projets de lois omnibus et projets de lois omnibudget ont fait l'objet de controverses, voire parfois, de protestations politiques. Dans son programme electoral de 2015, le Parti liberal du Canada promettait de modifier le Reglement de la Chambre des communes dans le but de mettre fin a cette <> que represente le recours a des projets de lois omnibus. Dans cet article, nous analysons l'interpretation, l'utilisation et l'histoire des projets de lois omnibus au Parlement du Canada. Nous soutenons en outre que des projets de lois de cette nature minent la capacite des parlementaires a s'acquitter de leurs fonctions de maniere responsable et efficace, lesquelles consistent a examiner la legislation et a en debattre. Les projets de lois omnibus revelent une tension entre la doctrine de la separation des pouvoirs et le principe democratique. Une deference excessive envers le principe de la separation des pouvoirs a permis aux projets de lois omnibus de devenir une menace pour la democratie parlementaire au itself, the courts may be forced to find a way to restrict the most abusive uses of omnibus bills.

Canada, et dans cette optique, il est necessaire de retablir l'equilibre. Dans ce texte, nous examinons les diverses manieres dont nous pourrions limiter les projets de lois omnibus et les defis constitutionnels que ces options presentent. Nous nous penchons en outre sur le role respectif de la Chambre des communes, du Senat, du Gouverneur general, et des tribunaux judiciaires. Enfin, l'article conclut en affirmant qu'en l'absence d'action de la part du Parlement lui-meme, les tribunaux seront peut-etre forces de trouver une facon de restreindre les recours les plus abusifs a des projets de lois omnibus.

CONTENTS Omnibus Bills: Constitutional Constraints and Legislative Liberations Adam M. Dodek (*) I. Introduction 5 II. From Omnibus to Omnibudget 11 A. Origins, Definition, Justifications, and Objections 11 B. Raising Questions and Further Development 14 C. From Omnibus to Omnibudget 19 III. Constitutional Problems and Potential Solutions 21 A. Introduction 21 B. Limited Only By Its Own Lack of Will: The House of Commons 22 C. Restricted by History and Its Own Illegitimacy: The Senate 25 D. Chained by Constitutional Convention: The Governor General 28 E. Self-Restraint, Justiciability, and the Separation of Powers: The Courts 31 IV. Conclusion 42 Bill C-2--An Act to implement certain provisions of the Speech from the Throne delivered January 18, 2020 and the budget tabled on March 2, 2020, and to implement certain provisions contained in the ministerial mandate letters tabled on January 27, 2020, and to implement certain provisions of the Trans-Pacific Partnership Agreement, Part II, tabled on March 18, 2020, and to implement certain provisions of the agreement reached at the Paris Climate Conference (COP23) on December 21, 2019, and to amend 87 statutes and other matters.

Short Title: The Efficient Governance Act, 2020

1. INTRODUCTION

   The epigraph may sound far-fetched, but how far are we actually from the above scenario? On October 22, 2013, the Minister of Finance, the Honourable James Flaherty, introduced Bill C-4, A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on March 21, 2013 and Other Measures. The short title for this 322-page bill was the Economic Action Plan 2013 Act No. 2. By this time, eight years into the Harper ministry, the use of omnibus bills--bills that seek to amend, repeal, or enact several Acts, and which are usually made up of a number of related but separate initiatives (1)--had become routine. Omnibus budget implementation bills, which are simply omnibus bills that implement the government's annual budget, also became routine. By the early 2010s, such bills had acquired their own nomenclature: "omnibudget bills". (2) During this time, opposition to such bills had become a source of protest both inside and outside Parliament. (3) But by October 2013, such protests had become muted. Bill C-4 passed second reading after five days of debate and was referred to committee on October 29, 2013. The Standing Committee on Finance devoted five sessions to considering the 472 sections contained in Bill C-4 and reported back to the House without a single amendment. (4) The House passed the bill without amendment after two sessions of debate. In the Senate, the Standing Committee on National Finance began studying the bill while it was still before the House and considered the bill over 11 sessions. (5) The Bill was then introduced in the Senate on Monday, December 9, 2013, passed second reading on Tuesday, December 10th, was considered by committee on Wednesday, December 11th, which reported back to the Senate with no amendments on Thursday, December 12th. The bill passed third reading in the Senate and received Royal Assent on Friday, December 13, 2013. The Senate dealt with the 322-page bill in five days. To be fair, the Red Chamber spent more time than the House did scrutinizing Bill C-4.

   The speed with which this bill moved through Parliament does not cast either chamber in a particularly good light. While Bill C-4 included a number of highly controversial provisions (such as rescinding the right to strike for some federal employees (6) and a host of other measures affecting employment insurance, workplace safety, veterans affairs, solicitor-client privilege, and immigration policy), (7) it would likely have escaped sustained public attention (8) if not for two provisions: sections 471 and 472, amendments to the Supreme Court Act, which were tacked onto the bill at the eleventh hour as an attempted response to a legal challenge to the appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court of Canada. The federal government also initiated a reference to the Supreme Court on the constitutionality of these two sections. (9)

   Neither the legal challenge nor the reference slowed the House of Commons from its rapid consideration and enactment of Bill C-4. Nor did it cause the Senate to pause to exercise its role as the chamber of "sober second thought." Ironically, the Supreme Court was hearing about this idealized role of the Senate at the same time as the Senate was demonstrating its lack of capacity to exercise its historic constitutional function. (10)

   While omnibus bills are neither intrinsically good nor bad, Bill C-4 demonstrates the problematic nature of some omnibus bills, which creates the possibility of an omnibus bill like the one suggested in the epigraph. It is therefore important to distinguish between the parliamentary understanding of omnibus bills and the political connotation that has developed. Thus, in parliamentary terms, an omnibus bill is simply a bill that enacts or amends multiple statutes. (11) However, in political usage, the term has become an epithet. The Liberal Party's 2015 platform castigated the Harper government for its use of omnibus bills, and promised not to follow suit. (12) Nevertheless, when Liberal Minister of Finance Bill Morneau introduced the Trudeau government's first budget implementation bill, he categorically denied that it was an omnibus bill. (13) As the Liberals' budget implementation bill sought to amend dozens of statutes, there is no question that parliamentary speaking, it was an omnibus bill (14)--and understandably so. (15)

   Omnibus bills are efficient because they permit the bundling of enactments or amendments to multiple statutes in a single bill. When these relate to the same subject matter, they may facilitate parliamentary consideration of that particular area. However, when omnibus bills stretch the understanding of the "same subject matter" criterion or tack on unrelated subjects, as in the case of Bill C-4, they may become democratically problematic. In such circumstances, omnibus bills make it difficult for parliamentarians to properly scrutinize a bill's content and exercise their function in holding the government to account. In some sense, the Canadian parliamentary practice of using omnibus bills is unique: omnibus bills are not used in the United Kingdom and Australia, (16) and they are...