Cross-referencing: Chapter 2(B)(3)(c), “The Treaty-Making Process under the Vienna Convention”, pp. 49-51; Chapter 2(B)(9), “Interaction of Treaty Law with Domestic Canadian Law”, pp. 106-111
On 25 January, 2008, the Government of Canada announced a new policy concerning the tabling of treaties in the House of Commons before Canada becomes a party to them. Pursuant to the policy, the government will table the text of treaties “following their adoption by signature or otherwise” and will observe a waiting period of 21 sitting days before expressing Canada’s consent to be bound by such treaties. The purpose of the waiting period is to allow Members of Parliament to initiate debate and request votes on motions regarding the treaty.
However, the policy provides for exceptions to the tabling and waiting-period requirements in cases deemed “appropriate” by the Prime Minister – for example, where ratification of a treaty is urgently required. Further, the government only undertakes to “consider” any concerns raised by opposition parties during the 21-day tabling period, and retains the sole authority to decide whether or not to bind Canada to the treaty. Along with the fact that the policy is not an Act of Parliament, these provisos make it clear that the policy does not change the legal or constitutional locus of the treaty-making power in Canada. That power remains vested in the federal executive branch as an aspect of the royal prerogative power over the conduct of foreign affairs.
The policy contains at least two additional features of interest. First, the tabling and waiting-period requirements appear only to apply to treaties that involve a two-step approval process (e.g. signature followed by ratification); as well as to multilateral treaties “that do not provide for signature and for which there is no two-step approval process”. It is not clear whether the exclusion, from the policy’s scope, of bilateral treaties that do not involve a two-step approval process is deliberate or inadvertent – and if deliberate, what the justification for such an exclusion might be. Second, the policy appears incidentally to confirm the long-standing federal government practice of delaying ratification of or accession to treaties until any federal legislation required to implement the treaty has been enacted by Parliament.