Regulations - Public Law

PARTI VIII: REGULATIONS

Cabinet has an executive power to create regulations which are like supplementary to legislation to fill in the gaps. Regulations can delegate power to other bodies aside from cabinet (Ex. Municipalities). Delegated legislation is referred to as subordinate legislation (conflicts are resolved in favour of a statutory provision). No conflict arises where delegated legislation imposes more onerous regulatory requirements than those enacted by a superior legislative body. Regulations deal with adjustment of rules over time. Parliament does not require notice when a regulation is created or published.

Regulations are governed by the Statutory Instruments Act RSC 1985 and the Statutory Instruments Regulation which set out the basic legal requirements that must be followed concerning enactment of legislation. It includes examination of the legality and registration of the instrument in the Canada Gazette. A principle policy document governing federal regulatory process is 2007 Cabinet Directive on Streamlining, which sets out requirements of assessments, procedures of notice and consultations.

Regulations are actually created by an order signed by the Governor in Council, minister or authorized person; it is law once it’s published in Canada Gazette and registered by Privy Council Clerk.

Beginning of 1986, Parliament instituted a disallowance principle whereby they can revoke statutory instrument by making a report and a resolution to house and Senate – resolution adopted within 15 days unless Minister files opposite motion at which point it is then debated.

When regulating, the government will:

1. Protect and advance the public interest in health, safety, and security, the quality of the environment, and the social and economic well-being of Canadians, as expressed by Parliament in legislation;

2. Advance the efficiency and effectiveness of regulation by ascertaining that the benefits of regulation justify the costs, by focusing human and financial resources where they can do the most good, and by demonstrating tangible results for Canadians;

3. Make decisions based on evidence and on the best available knowledge and science in Canada and worldwide, while recognizing that the application of precaution may be necessary when there is an absence of full scientific certainty and a risk of serious or irreversible harm;

4. Promote a fair and competitive market economy that encourages entrepreneurship, investment, and innovation;

5. Monitor and control the administrative burden (i.e., red tape) of regulations on business and be sensitive to the burden that regulations place on small business;

6. Create accessible, understandable, and responsive regulation through engagement, transparency, accountability, and public scrutiny; and

Require timeliness, policy coherence, and minimal duplication throughout the regulatory process by consulting, coordinating, and cooperating across the federal government, with other governments and jurisdictions in Canada and abroad, and with businesses and Canadians.

GUEST SPEAKER (REGULATIONS): SCOTT THURLOW

*Canadian Renewable Fuels Association Lobbyist

REGULATORY POLICY

This is a key instrument used by government to meet policy objective. The legislature gives the Executive power to carry out a goal of a statute (begins with Canada Gazette), which makes regulations creatures of statute. Parliament gives the authority to Ministers to use the help of officials who are experts to determine regulations. Most regulations seem to be unconstitutional on their face in relation to s. 91 and 92 (there is not the same level of scrutiny involved), particularly with majority governments

The Government is required to consult because of the Cabinet Directive on Regulatory Management (replaces the Government of Canada Regulatory Policy of 1999 and the Cabinet Directive on Streamlining Regulation. The Treasury Board is responsible for all regulations, the following policy and the stakeholder consultation. Consultations can be selective.

A regulation is not a law but rather a directive before the law with binding affect (so the government can choose whether or not to adhere to it in reality). Their creation is very arbitrary. Regulations are ubiquitous.

EX. Government unsure of how to regulate flow of carbon dioxide. They declared it toxic by way of a regulation.

• Began to regulate with specific sectors in government by way of their administrative discretion

LEGISLATIVE FRAMEWORK

• These regulations are enabled by way of legislation

• They should be consistent with the following pieces of legislation:

1. Constitution Act 1867

2. CA 1982 (+ Charter)

• Aboriginal Treaty Rights under s. 35

3. Statutory Instruments Act

4. Interpretation Act

5. User Fees Act

6. Financial Administration Act

EX. Speedometer in car with MPH and KM; this is governed by a regulation for auto manufacturers

CRITIQUE

• Can be very arbitrary

• Can rely very heavily on Ministerial discretion

ADVANTAGES

• Clarifies any of the legislation

• Makes for some certainty

• Make laws predictable and processed based

WHY DO WE HAVE REGULATORY POLICIES?

Regulations have a binding legal effect and rules that apply generally rather than specifically. They are referred to as secondary or subordinate legislation that are made by persons to whom or bodies to which parliament has delegated authority (Governor in Council, department, administrative agency, etc). They are supposed to be evidence based. They are a necessary foundation of market economies; used to provide transparency, productivity and competition. Regulations don’t have to be protective, because they can also be enablers (Ex. Can establish rules for fair markets and reduce trade barriers).

They are meant to ensure cooperation with provincial governments and are supposed to help smooth relations between stakeholders and government.

REGULATORY IMPACT ASSESSMENT STATEMENT (RIAS)

• Cost benefit analysis used to justify a regulation

Factors that are assessed:

1. potential impact of the regulation on healthy, safety, security, environment and social well being of Canadians

2. cost or savings to government, business or Canadians

3. potential impact on other federal departments or agencies (legal implications domestic and international)

4. degree of interest and contention among various products

5. overall expected impact

   1. use principle of proportionality

   2. departments and agencies must assess regulatory proposal

At the early stages, there is a lot of analysis rooted in precaution .The departments that craft them work with the Regulatory affairs Sector of the Treasury Board Secretariat to determine its overall expected impact. If it’s a risk, it’s a risk, and generally not implemented. RIAS allows for consultations (you can do this privately or through the gazette which comes out on Fridays at 230pm). RIAS’ identify public policy issues, and set objectives and outcomes.

It’s about selecting the right INSTRUMENTS:

1. fee (tax or fee based)

2. rule (thou shall not)

3. MOU (memorandum of understanding; we agree not to do X but without penalty)

4. Enforcement Agreement (we shall enforce your agreement)

*Government tends to pass enabling statutes, but they will also use regulations because people do not really pay attention

INTERPLAY OF RIGHTS

• S. 3 right in the Charter for voting

• Although it appears plain, you have the right to participate in elections, you have the right to free association, free press, influence government,

OTHER DIRECTIVES

• Cabinet directive on law making

• Cabinet Directive on the Environmental Assessment Policy, Plan and Program proposals (includes Copyright policy)

• A framework for the application of Precaution in Science based Decision Making about Risk

• Policy on Service Standards for External Fees (why passports cost so much)

Canada has some of the most regulatory regimes on environment, but not necessarily on C02, but rather compounds. They’ve done a half job in the sense that they just rushed to regulate this way.

• Environment is a criminal law provision under s. 91

• There’s an argument that you’re not talking about criminal law when you’re talking about something ubiquitous like the air

NOTE – Bill introduced in the Senate (S-12)

• Allows for the government regulatory policy to incorporate documents by reference

• Ex. If I create a rule that applies to emissions and I incorporate a study within it. IF a fact changes through an agency, then that carries with the regulation and there would be no need for consultation

A RIAS may not necessarily be included in the Gazette. The private consultations are usually dissected by the department before they are published so that they account for things that are not supposed to be made publicized. Often, the stakeholder will note that they don’t want their names or certain things to be mentioned, only in anonymity

Haig v Canada SCR 1993

Facts: Hague moved within 6 months of the Charlottetown referendum (moved from ON to QC). He litigated because he was not given the right to vote. Argument: The purpose of s. 3 of the Charter is to...