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Navigating the Legislative Process

 

Introduction

This guide provides understandable information on how to navigate the federal legislative process that are known to professional lobbyists but often not to the general public. It is meant to empower citizens who wish to actively engage in the process and have their voices heard in the development of legislation.

According to the Office of the Commissioner of Lobbying of Canada’s 2020-2021 Annual Report, there were 8005 federally registered lobbyists from 3269 organizations or corporations in 2020-2021. The pandemic year saw record numbers of communications since 2008 when records began; active lobbyists filed 28,918 communication reports, translating to 110 meetings per working day. Economic development and industry were the most commonly reported subjects of meetings between lobbyists and officials. Lobbyists comprised more than 84% of inquiries to the Commissioner of Lobbying and the general public only 6%.

Definitions

Legislation” is normally understood as laws and regulations but does not necessarily include guidelines and policies unless they are required by legislation. Laws are passed by Parliament while the executive branch of government issues regulations as permitted or required under those laws.

A bill is a law that has been proposed but has not yet been approved by Parliament. Bills may be introduced in either chamber of Parliament – the House of Commons or the Senate. Limitations to the contents of bills that may be submitted are discussed in the Limits to Federal Legislation section.

A bill is considered a government bill if it is submitted to Parliament by the elected government. Government bills generally seek to enact election promises. A proposal for a law that falls outside the scope of what was promised during an election, in early commitments, or in the case of urgent or exceptional situations (such as the COVID-19 pandemic) has little chances of being introduced as a government bill. Because the government has powers to allocate how time is spent in Parliament, government bills have the best chances of proceeding through all steps of the parliamentary process.

Private Members’ bills and Senate public bills, on the other hand, are submitted to Parliament by a Member of Parliament or Senator other than a Minister, Parliamentary Secretary, the Speaker, or the Deputy Speaker. A Private Members’ bill may be submitted by a member of the governing party without the bill being necessarily issued from or endorsed by the government itself. The submission of Private Members’ bills is regulated by a lottery system in the House of Commons to determine the order in which parliamentarians can present bills and debate of such bills can only take place during time specifically allocated for Private Members’ Business. The Senate has no such restrictions, meaning Senators can introduce as many bills as they want at any point in the parliamentary session, although their progress is not guaranteed.

Once a bill receives approval from Parliament and Royal Assent, it becomes law. All Canadian federal legislation before Parliament and its progress through Parliament is publicly available on the Parliament of Canada’s LegisInfo Website while the Department of Justice’s Laws Website is a directory of all federal laws.

 

The Legislative Process

In order to become law, a bill typically goes through five distinct consecutive steps in the House of Commons and the Senate and then it must be agreed upon in exactly the same wording by both Houses of Parliament before receiving Royal Assent.

Figure: The Parliamentary Process as it proceeds through the House of Commons (green) and the Senate of Canada (red) before receiving Royal Assent (yellow). Adapted from the House of Commons procedure note on the legislative process.

 

There are five steps in the legislative process within each Chamber of Parliament: first reading, second reading, committee study, report stage and third reading. Each reading is resolved by a vote where Members decide whether the bill should proceed to the next step or if it should be defeated and removed from consideration. The sponsor of a bill in each Chamber is responsible for calling for a vote when he or she wishes to proceed to the next reading or for a final vote on the bill.

First reading is essentially a formality to introduce the bill and there is no debate or vote.

During second reading, the principle of the bill is reflected and ultimately voted upon. There is no opportunity to amend the bill at this stage, only debate. Once the bill is adopted at second reading, it gets referred to a committee (or several committees) for the Committee Study. It is rare, but possible, for a bill to not be sent to committee after second reading in the Senate. This tends to happen when a pre-study was undertaken while the bill was still in the other Chamber or if it gets dealt with through a Committee of the Whole, which is normally reserved for urgent bills.

In the selected committee(s), the study is under the management of the committee itself, which often designates a steering committee to oversee the timeline and nature of the study. However, such has been done recently, a committee may choose for decision-making powers on important matters to remain among all committee members. Committee studies imply hearing witnesses and completing a clause-by-clause review, i.e., reading all the sections of the bill to approve or amend them. The committee then drafts a report with its proposals that will be sent back to the Chamber. A report can propose adopting the bill as is, propose amendments, propose the bill be defeated and/or make observations. If the bill is reported back to the Senate without amendment, it can pass directly to third reading, however, if the report recommends amendment or defeat of a bill, these recommendations can be considered by the Senate at report stage.

At Report Stage, the Chamber considers and votes on the report of the committee. If the Chamber adopts a report proposing the bill proceed with amendments, the bill enters its final stage. If the Chamber adopts a report proposing the bill be defeated, the bill does not proceed and is defeated. The Chamber may also choose to not adopt the committee report, in which case the bill will proceed to third reading in its original form prior to committee study.

Third reading focuses on debating specific provisions within the bill. New amendments can still be proposed at this stage in Chamber. At the end of third reading, a vote is called, and it is decided whether the bill is approved or defeated. If one Chamber amends the bill as adopted by the other Chamber, then the bill is returned to the other Chamber until there is agreement between both Chambers on the exact text of the bill.

Once both Chambers agree on the exact same wording of the bill, it receives Royal Assent from the Governor General and becomes law. However, many bills contain a coming into force provision which may specify that the requirements of the law or sections of it do not take effect until a specified date in the future.

Regulations to implement laws are developed by department officials and are adopted without parliamentary involvement. A Standing Joint Committee for the Scrutiny of Regulations, comprised of both Senators and Members of Parliament is empowered by law to review the legality of existing regulations but not their development, which is considered confidential (i.e., covered by Cabinet confidence).

The regulatory development process varies according to the department in charge. Some will include consultation processes, technical working groups or multi-stakeholder consultative committees before regulations are drafted. Regulations are pre-published and open for public comment before coming into force when required by the law and as a matter of practice, but exemptions can be granted. Comments received by the departments are not made public. In practice, regulations are often negotiated with those who will be subjected to it.

 

The Early Conception of Laws

The legislative process begins well before a bill is introduced in Parliament. The concept and rationale for a government bill may be initiated in a party election platform well before they may be elected. Typically, an election promise made by the elected government will make its way into the Speech from the Throne and ministerial mandate letters.

Sometimes government bills start-off as opposition MPs’ Private Members’ bills. For example, NDP MP Romeo Saganash’s Bill C-262 on recognizing UNDRIP and Conservative MP Rona Ambrose’s Bill C-337 to train judges on sexual assaults were both approved by the House of Commons but died on the order paper in the Senate when an election was called in 2019. They were then picked up as commitments by the Liberal government, introduced in the following Parliament as Government Bills C-3 and C-15, and passed in 2021.

It is therefore crucial to engage early to educate and inform legislators – individual parliamentarians, parties and the relevant departments of the federal government – in order to help shape laws well before they are introduced because changes are limited once a bill has been formally introduced and amendments have to remain within the scope or intent of the proposed bill.

Legislation-making is less deliberate and planned than it used to be in Canada. Canada has had a Law Reform Commission since 1971 staying abreast of international developments and the evolution of Canadian laws but it was defunded in 2006. In a way, that may leave more opportunities to propose laws by engaging early in public debates demanding specific electoral promises in that regard. The 2021 Budget proposed to re-fund the Commission which would present another avenue to influence the future of Canadian laws.

 

Limits to Federal Legislation

The Constitution and Federal Jurisdiction

Canada being a federation, the federal government can only legislate on matters of federal jurisdiction under the Constitution. Since the Supreme Court has opined that the Canadian Constitution is a “living tree”, its interpretation is ever-evolving as new matters which were not contemplated at confederation arise, such as climate change. Constitutional law is a very complex field but generally federal jurisdiction covers:

  • Public Debt and Property
  • Regulation of Trade/Commerce
  • Unemployment insurance
  • Direct/Indirect Taxation
  • Postal Service
  • Census/Statistics
  • Defence
  • Navigation/Shipping
  • Quarantine
  • Sea Coast and Inland Fisheries
  • Ferries (interprovincial/international)
  • Currency/Coinage
  • Banking /Incorporation of Banks/Paper Money
  • Weights and Measures
  • Bankruptcy
  • Patents
  • Copyrights
  • Indians/Indian reserves
  • Citizenship
  • Marriage/Divorce
  • Criminal law, including Criminal Procedure
  • Penitentiaries
  • Works connecting provinces; beyond boundaries of one province; within a province but to the advantage of Canada/or more than one province.

 

In addition, the federal government has shared powers with provinces over old age pensions, immigration, and agriculture. Emerging issues, such as the environment and health, normally fall within both federal and provincial jurisdictions. Lastly, the federal Parliament has the residual power under the Constitution "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces".

Other Considerations

Money bills and financial prerogative of the Crown
Under s.53 of the Canadian constitution, bills which appropriate funds (i.e., involve the use of public funds) or which impose or increase taxes (i.e., money bills), must be introduced in the House of Commons and can not be introduced in the Senate. Similarly, bills or amendments in both Chambers cannot infringe on the financial initiative of the Crown (i.e., executive branch), which has been interpreted as ruling an amendment inadmissible if it imposes a charge on the public treasury, if it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation which accompanies a bill.

Amendments must be within the scope of the bill
Since the general principle of a bill is debated and agreed upon during second reading, any amendment proposed either in committee or in third reading must fall within that agreed-upon principle, or scope of the bill. For example, one of the concepts most recommended by expert witnesses for inclusion in Bill C-12, the Canadian Net-Zero Emissions Accountability Act (CNZEAA), was the concept of carbon budgets. However, since the Bill was based on a foundation of 5-year milestone targets, amendments to include a carbon budget were ruled out of order by the Chair of the ENVI committee because they introduced a new concept which fell outside of the scope of the Bill as introduced and adopted at second reading. Hence, a concept has a better chance to become law if it is part of the bill as introduced initially in Parliament.

Preamble amendments must reflect body of the bill
The preamble of a bill typically provides its context, rationale, and intent. As a result, it may not be amended to include wording that is not relevant to the bill itself.

 

Public Participation in the Legislative Process

Mode of Engagement

Typical modes of participation include:

  • Submitting a brief to a Parliamentary committee
  • Testifying before a Parliamentary committee
  • Emailing or calling Parliamentarians directly
  • Meeting directly with Parliamentarians
  • Making a submission to a government consultation which can precede bills or occur once a first version of regulation is published

Direct engagement and one on one meetings with Parliamentarians matter just as much, if not more than engaging in the public-facing parts of the process (e.g., committees). However, Parliamentarians allocate different amounts of time to listening to stakeholders – some may be willing and eager to hear a new perspective on an issue, while others may expect the person requesting the meeting to demonstrate some level of expertise or experience in the relevant field.

In pre-pandemic times, one key lobbying tool was to organise meetings and gatherings for Parliamentarians and their staff usually held on or near Parliament Hill. This method is most widely used by large organizations or lobbying firms but can be implemented small scale to suit one’s needs. For example, a Parliamentarian may be open to sponsoring events and using their network to invite attendees.

Registering as a Lobbyist

If one receives a payment or salary to contact public office holders in government or Parliament concerning the making, developing or amending of federal legislative proposals, bills or resolutions, regulations, policies or programs they likely must register as a lobbyist. Under the current Lobbying Act, communications initiated by officials do not require registration, a loophole which the Commissioner of Lobbying recommends closing if and when the already-late mandatory review of the Act is undertaken.

In the recent past, controversial bills have generated significant mass e-mailing campaigns of repetitive content which are routinely intercepted by Parliamentary digital security. However, it is best to send personalized communications and engage in one on one phone or video conversations.

In order to avoid the unfortunate instance where an email may get lost in the deluge of chain letters, it may be helpful to CC members of the Parliamentarian’s staff which are often provided on the Parliamentarian’s webpage.

Key Parliamentarians with knowledge of and influence over the development of a bill include its sponsor and critic, those who have spoken publicly on the bill or have introduced similar bills in the past, and those who are members of related committees.

 

Time is of the essence

Timing is often an important factor in law-making. For example, any bill that has not been adopted by the end of a session, regardless of its progress, before an election or prorogation will die on the order paper. It can then only go forward if it gets re-introduced in the following Parliament.

It is crucial to leave time for official languages requirements. All documents and evidence shared with committee members and on public portals through the official committee process must be translated into both official languages first. Interpretation and translation resources being limited, this can mean significant time between submitting documents and them being shared. Interpretation delays can be expected in especially busy parliaments where many bills are being considered by committees concurrently or towards the ends of sessions when governments are looking to do as much as possible within a short period of time. If a submission is time sensitive, it might be wise to send documents in both official languages, if possible, and to also send them directly to the target parliamentarian(s), in the official language they understand.

Timelines can shift and the window for participation can close rapidly, or because of translation requirements the brief may be received but not distributed to committee members in time for it to be considered. This was the case with the ENVI committee’s study of Bill C-12 in May-June 2021; the committee progressed rapidly from study to clause-by-clause consideration of the bill and as a result the vast majority of briefs were not distributed before the deadline for Members to submit amendments to the committee Chair for consideration, greatly limiting the impact of official submissions on the bill’s progress.

 

Approaching Individual Parliamentarians

Members of Parliament

  • Some parliamentarians may not have accurate or complete information on a given issue and will likely have been only informed by professional lobbyists representing industry.
  • It is important to understand the background and interests of the MP: what is their role in the decision-making process? What is their role within the party? How have they voted in the past on related issues?
  • Generate an immediate connection by having a local representative from the MPs’ riding present during the meeting. This may require reaching out through networks to find locally active people. This will demonstrate the ability to leverage and mobilize power locally in a way that could influence election outcomes, especially when talking to people who are not necessarily allies.
  • Send briefing notes ahead of time that are ideally tailored to the interests of the MP. Try to organize educational calls between parliamentarians and experts or offer help informing/educating their constituents by supplying a speaker at a panel or constituency meeting.
  • MPs without an official position within their political caucus or cabinet may also be willing to take more risks, have less to lose, and can still ask questions, etc.

Senators

  • The Senate is Canada’s chamber of “sober second thought”. Senators are in office until the age of 75 unless they retire earlier, providing an opportunity for longer term engagement.
  • Through a process established by the Liberal government in 2015, Senators are now recommended for appointment by an arms-length independent committee who evaluate candidates based on non-partisanship and expertise, among other criteria. As a result, the majority of Senators are no longer affiliated with a party of the House of Commons.
  • In contrast to the elected House of Commons, the Senate is more representative of the Canadian population, with more Indigenous and immigrant representation. In addition, the Senate was the first Canadian parliamentary institution to officially attain gender parity in 2021.
  • Since the advent of independent senators, the rate of amendments to legislation has doubled without leading to deadlocks with the House of Commons.
  • A list of Senators, including information about who appointed them and when they must retire, can be found on the Senate of Canada website. Many Senators have personal websites that can be found in their profile on the Senate website.
  • Each Senator typically holds expertise in a particular field which they have spent their career developing and then they leverage that knowledge in their Senate work.

 

More Resources

Committee Websites

Committee websites contain information on the committee’s meetings, including providing minutes, transcripts, and notices of future meetings; information on studies and bills including meetings, witnesses, reports and briefs. The committee website also contains contact information for submitting briefs and information about how to subscribe to receive updates relating to committee work.

Senate committees: https://sencanada.ca/en/Committees/

House of Commons committees: https://www.ourcommons.ca/Committees/en/Home

Guide for Submitting Briefs

Briefs may be submitted to the clerk of the committee, whose email, mailing address, and phone number may be found on the contact page of the committee website.

The House of Commons provides a detailed guide for submitting briefs.

Other Official Sources

The Privy Council Office has published a long and detailed Guide to Making Federal Acts and Regulations (2001).

The Senate of Canada website has a useful video and infographic on how a bill becomes law.

The House of Commons has an Official handbook of procedure and practice (2017).

The House of Commons has a procedural guide to the legislative process.

The Office of the Commissioner of Lobbying has published a  Lobbying registration guide and can be contacted for more information.

The Government of Canada Department of Intergovernmental Affairs has a web page on the constitutional distribution of legislative powers.

 

Published October 2021

Note: The contents of this document are for information purposes only. Nothing in this document should be construed as legal or professional advice and you may not rely on the contents of this document as such.