Canadian Government Executive - Volume 26 - Issue 02

GOVERNMENT clause one was approximately 90 pages of text whereas clause 122 was two lines in English, three in French. Deleting clause 1 would result in a 90-page difference in the bill, a far cry from a few-line change that would have been observed through a deletion of clause 122. Further counting discrepancies can arise depending which documents are used to count amendments, particularly if they reflect consolidated amendments. That is, suppose an amendment is made to replace line one on a page of a bill and an- other amendment is made right after it to replace line two on the same page. A com- mittee report might indicate one amend- ment – a combined amendment replacing lines “one and two.” Such an amendment could also find expression in the message sent by the House that amends a bill when reporting its amendments back to the House in which a bill originated. Someone counting motions in amendment from the transcript of a proceeding may see that two motions in amendment were adopt- ed, but certain documents might suggest only one amendment was made. This is also an issue when sub-amendments are made; should each proposal for legisla- tive change agreed to by the legislature be counted individually as an amendment? When amendments are proposed by one House to a bill originating in the other, the messages subsequently exchanged between the Houses may provide for ad- ditional amendments – but these may also be hard to count. For example, suppose the Senate adopts amendments and presents them to the House for its concurrence. The House might accept some amendments and reject others – or, it might propose fur- ther modifications to Senate amendments or propose amendments in consequence to Senate amendments (or even in conse- quence to its proposed changes to a Sen- ate amendment). Indeed, the counting can get quite tricky at this stage if one seeks to establish a figure for total modifications made by one Chamber or the other in the end legislative result. In limited cases, it may also be that a bill is modified from its original form but not through the express adoption of a motion in amendment or a deletion of a clause. For example, some Senate com- mittees have adopted a motion that the “Law Clerk and Parliamentary Counsel be authorized to make technical, numerical and typographical changes and adjust- ments to the amendments adopted by the committee.” Similarly, House of Commons Standing Order 156 permits the House’s Law Clerk to make non-substantive cor- rections to bills. Comparing the text of a bill between stages of the legislative process may re- veal that changes have been made but not as the direct result of any identifiable amendment proposed during the legisla- tive process. In some – albeit rare – cases, a change might occur without explicit amendment because the correction of an error is required. As explained by the Law Clerk of the Senate when testifying before the Standing Senate Committee on Fish- eries in 1999: The options for correcting a bill are two- fold. The first option is to correct the bill by amendment. If you wish to correct the bill by amendment, you can correct a small matter or you can make major changes. The second option is to correct the bill through your officers. However, that is called a “correction of a parchment error,” and obviously there is very limited room to make those sorts of corrections. […] A parchment error cannot be corrected if there is any possibility that we are going against the will of Parliament. 5 Parchment corrections, modifications under Standing Order 156 in the House or made under an authorization of the Law Clerk in the Senate can result in modifica- tions to the text of a bill though they are not truly amendments in the traditional sense and may not necessarily be evident at a particular moment. As such, a num- ber provided for ‘amendments’ at a par- ticular time during the legislative process does not necessarily reflect the number of modifications made to a bill at that time, let alone how many might be in the end resulting legislation. Moreover, it needs to be recalled that a single amendment can affect anything from one word to multiple pages of a bill. Depending on what information is being sought, it might be appropriate to speak of motions in amendments moved or ad- opted, per cent change of legislative text between stages, or even the total length of printed amendment text (for example, to compare the length of one legislative mes- sage to another in the Journals for a partic- ular House within a given session). How- ever, it must be kept in mind that changes may not always be evident if looking at only one language version of a bill. In ad- dition, because of the possibility of parch- ment corrections, any assessment prior to the Royal Assent version being available may be incomplete. References: 1. https://www.cbc.ca/news/politics/ c69-environmental-assessment- senate-1.5171913 2. https://www.hilltimes. com/2019/06/17/environmental- assessment-bill-c-69-enters-final- stretch-in-senate-red-chamber-di- vided-on-tanker-ban-bill-amend- ments/204419 3. https://nationalpost.com/news/ controversial-bills-c-69-and-c- 48-to-become-law-just-one- day-after-senate-enforces-arctic- offshore-oil-ban 4. Ruth M Dixon, Jonathan A Jones, Mapping Mutations in Legisla- tion: A Bioinformatics Approach, Parliamentary Affairs, Volume 72, Issue 1, January 2019, Pages 21–41, https://doi.org/10.1093/pa/ gsy006. 5. https://sencanada.ca/en/Content/ Sen/committee/361/fish/21ev-e Practitioners, scholars, and pundits all have differing ideas about how amendment counting should occur. The truth is that there is no one universally accepted way, and they all can lead to confusion. 16 / Canadian Government Executive // March/April 2020 Senate of Canada Building. Photo: Library of Parliament/Martin Lipman