[Recorded by Electronic Apparatus]
Tuesday, November 19, 1996
.0912 
[Translation]
The Chairman: The meeting of the Sub-committee on Bill C-25 is now open. I would like to welcome our witnesses from the Barreau du Québec. I am sorry that we are a little late this morning. I had forgotten that the meeting was to begin at 9:00 and not at 9:30. I'm sorry, Mr. Lebel.
Mr. Lebel (Chambly): As they say, a fault confessed is half redressed.
The Chairman: I would like the witnesses to begin by introducing themselves and presenting their brief. Then, the members of the committee will ask questions.
Mr. Marc Sauvé (Lawyer, Legislative Services, Barreau du Québec): Mr. Chairman, thank you for your invitation and for allowing the Barreau du Québec share with you its observations on Bill C-25. My name is Marc Sauvé and I am a lawyer at the Legislative Services for the Barreau du Québec.
The Barreau du Québec, as you know, is the professional order of Quebec lawyers. There are almost 17,000 lawyers in Quebec, and membership in the Barreau is compulsory in order to practice law within the province. The primary mandate of the order is to protect the public. There is therefore a mandate to protect the public. Our comments will be made in light of this mandate.
Without further ado, I would like to introduce the people who are with me. First of all, Mr. Louis Masson, a lawyer in Quebec City and member of the Barreau du Québec Committee on Administrative Justice. He will be presenting the general outline of our brief. We also have Ms Claire Carrier, who is also a lawyer in Quebec City. I will now ask Mr. Masson to outline our brief.
Mr. Louis Masson (Lawyer, member of the Administrative Justice Committee, Barreau du Québec): Ladies and gentlemen, on behalf of the president of the Barreau du Quebec, we would like to thank you for giving us the opportunity to express our concerns and our point of view with respect to Bill C-25.
.0915
These concerns relate, as far as we are concerned, to two principles that we believe are important. The first is that of open participation which we feel must prevail when adopting Canadian regulations, and the second involves the certainty that must also prevail during implementation and consultation of the regulation, and access to this regulation.
In this regard, the Barreau supports the bill that is presented, in substance and as a whole. We would like to point out some changes which might constitute significant improvements and make certain suggestions, the first one being the most important. It can be found on pages 7 to 10 of our brief, and relates precisely to this open participation.
In our opinion, it would be desirable and even important that all draft regulations be published beforehand and that with the preliminary publication there be sufficient notice to allow all interested parties to forward their comments to the regulatory authority.
Such an approach would no doubt involve a change in practices, but also present a number of advantages. The first advantage would be to encourage participation which would allow a true consensus to emerge. It would create a true, open and transparent participation in the expression of various points of view, that of the public and that of the industry affected by the proposed regulation, which can only result in positive suggestions and an improvement in the proposed regulation.
This form of preliminary intervention, preventative in nature, seems to us much preferable to an intervention after the fact which would then, of course, be challenged, sometimes through political means, and sometimes legal.
Such a consultation can be costly and can cause immediate and apparent time constraints, but we feel that the immediate and apparent costs are offset by the cost of future challenges. This is what we have been doing in Quebec for years. This is a way of doing things which is transparent and which is now familiar to all regulatory authorities. To put it simply, it works.
Everyone is familiar with the draft regulation. People can make comments. As far as I know, there are few recorded cases of abuse of the situation, except that the industry which is affected and involved can submit written comments to the regulatory authority, which may or may not take them into account, since it has the last word with respect to the regulation. The resulting regulation is often more adequate, more appropriate. Finally, when we allow people and the industry which is affected to express themselves, the regulation which results is of a better quality.
Along the same lines, and since we are studying a bill which will guide regulations no doubt for many years to come, the Barreau proposes that Bill C-25 constitute a true framework legislation which could be used as criteria for possible public hearings when the proposed regulation is so important as to affect large segments of the population and significant groups of people.
This is of course an innovative approach that we are proposing, but we believe that the study of this bill is indeed a unique opportunity, which we may not have again, to put forward such innovative ideas. Why could this bill not become framework legislation to which the various departments of the federal government could refer when the projected regulation is so important that it would be desirable to hold public hearings?
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Once again, there are precedents. There are federal bodies that use public hearings to decree either tariffs, or policies which would affect the Canadian public as a whole. An example would be the Canadian Radio and Telecommunications Commission, which does so regularly. There again, the resulting regulation is the richer for having had so many people participate.
Therefore it is innovative, of course, but since we are studying a bill which will guide us and guide jurists no doubt for many years to come, the Barreau does not hesitate to take the opportunity it has been given to formulate this second suggestion.
Therefore, there is a first proposal on what already exists in other provinces of the federation, that is the prepublication of the regulation, and participation in its elaboration, and a second suggestion which is certainly new, that is holding public hearings which, we feel, can present certain important advantages in some cases.
We have now come to the bill as it is worded, and this is the third and next-to-last part of our presentation. We would like to begin with what seems to constitute the highlights of this bill and we will end with an analysis of the technical points which are of concern to us.
What we believe are the main points and the improvements, are first of all a net improvement with respect to the definition of ``regulation'' proposed in the bill, a definition which we feel is more in line with Canadian case law, a definition which will favour uniformity in the adoption process. There is a tendency to eliminate this distinction between regulations and regulatory texts, and here we find the principle that we put forward in the preamble, the principle of certainty with respect to regulations, which is important, particularly for the jurists.
Therefore, it is a second improvement beyond the definition of registration of the regulation. There again, previously, our perception of things was that registration was limited to certain types of regulations, and now, it is extended to all regulatory documents. Therefore, once again it is an improvement.
With respect to the publication as well, we find in the bill what appears to be an improvement. However, we must not frustrate these improvements by resorting too easily to exceptions in the case of various bills. We feel that the principle of certainty must guide the regulatory authority so as to ensure that no doubt exists in the minds of citizens and in the minds of jurists with respect to the existence or validity of a regulation or lack thereof.
Here also, we consider that the bill is an improvement on the old Act, but care must be taken to ensure that these improvements are not accompanied by too many exceptions in specific pieces of legislation.
Lastly, I would like to make a number of comments. We have done a clause-by-clause consideration of the bill in our brief. I will not read it to you, but will explain our concerns to you in this regard.
Our first concern deals with the coming into force of the legislation. We focus on that on page 13 of our brief. Of course, the federal legislation states that the regulation comes into force from the moment of registration. That has been the situation for years, but we believe it is far preferable and far more consistent with the aim of giving certainty to the regulation, which we indicated to you, if the regulation were to come into force at the time it was published.
That is the situation in Quebec. The regulation comes into force once it is known to all concerned, that is once it is published. That constitutes a change, but consideration of this bill certainly provides an opportunity to address together the possibility of changing the way things are done. In our view, by making the coming into effect of the legislation simultaneous with its publication, we would be meeting the objective of certainty for the public.
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We also noted inconsistency between the French and English versions of subclause 4(1), and the possibility of misunderstanding in subclause 5(1). We are concerned with the way these provisions have been drafted. We discussed the issue on page 4 of our brief.
Subclause 5(3) makes it possible to extend the application of the regulatory process to a document other than a regulation, but we wonder whether this is an adequate way of informing the public of such cases where the application of the regulatory process does or does not apply to a document.
On page 5, we also talk about the notion of ``readability''. I'm not sure how this word should be translated, but we consider that it would be more appropriate to talk about the intelligibility of the regulation.
Under paragraph 7(4)(d), which we discuss on pages 5 and 6 of our brief, the Deputy Minister of Justice is exempted from reviewing what are referred to as minor or non-substantive amendments to a regulation. It does not seem to us to be very sensible to exempt from review such amendments which, at first sight, may appear minor, since we know that even minimal corrections to the wording of a provision may sometimes have serious consequences for the people affected by the regulation in question.
We also addressed the need to set limits on the power to exempt a regulation from such review, as provided for under subclause 7(5) of the bill, and we discuss this on page 6 of our brief. On the same point, that is our concern to ensure certainty in the regulation, we consider that there are difficulties involved in simply exempting a regulation from such a review. However, that is what is allowed under subclause 7(5), and we consider that the criteria are broad enough.
With respect to subclause 9(2), which we discuss on page 6 of our brief, we have questions about the consequences of the clerk refusing to register a regulation. Would that affect the coming into force of such a regulation? It may do, but here also we think that questions may be raised.
Clauses 11 and 26 of the bill deal with the penalty for contravention of a regulation, and we look at that issue on page 11 of our brief. First, the French version talks about sanctions, which seems to us to be a far broader concept than the term used in the English version, which is clearly limited to penalties. Therefore, in this regard there is inconsistency between the two versions.
On page 12, we discuss subclause 12(2) of the bill. We note that there may a discrepancy between the printed medium and the electronic medium. The bill does not state which shall have precedence, nor what safety procedures will be available to lawyers and the general public.
Lastly, clause 16 of the bill addresses a point which was looked at briefly by the Supreme Court in a relatively recent case, for which you will find a reference on page 12 of our brief. It concerns the case on language rights in Manitoba which was referred to the Supreme Court. The court looked briefly at the question of making reference to a regulation which may itself not have been adopted in both of Canada's official languages. The reference may even make it possible to look at standards where the original version might be in a language which is not even one of Canada's official languages. The English or the French might simply be translated from a text originally written in German or Spanish.
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First, the provision provides answers to certain questions, but does not resolve all the problems arising from regulation by reference.
When we look at the history of regulation by reference, we see that in the past it rarely occurred that a regulation was not adopted by the regulating authority or government services. That happened so infrequently that lawyers were not concerned about it. Because of various factors, particularly the increasing complexity of standards and the wish to cut costs, there is now a growing temptation to apply standards which are not controlled by the regulating authority or even by the government.
There are some indications that this approach is becoming more and more common. Initially, lawyers were faced with exceptional situations which, in our view, are tending to occur more frequently. We consider that the legislation already deals with certain problems, but not all, including future reference to standards adopted in language other than our two official languages. Our brief expresses our concerns in that regard.
In conclusion, there are two comments I would like to make. Subclause 21(1) provides that certain provisions of the bill take precedence over other pieces of legislation. Since this bill has many characteristics of the framework legislation, why would it not have precedence over all other acts?
Finally, the transitional provision under subclause 28(1) seems a little strange in that it seems to us to be more than a transitional provision. It makes it possible to maintain, under the new legislation, exemptions provided under the old Act, and even in the case of new regulations. Therefore, this provision goes beyond what is generally thought of as transitional provisions.
In summary, we recognize that this bill seeks to improve on the existing situation. As I stated, our two main concerns, which we would like you to keep in mind in your deliberations and in drafting the final version of the bill, are the following: first, open participation in the adoption process, and second the principle of certainty. Since it should be kept in mind that whenever lawyers or the public are not certain of the existence of a regulation or whether it has or has not been adopted, such uncertainty entails extra costs and is generally to the detriment of both the authorities and the public.
Ladies and gentlemen, you suggested that I take 20 minutes. That time is now over. Unless my colleagues have something they wish to add, we would like to thank you for listening to us this morning. We have nothing to add, and we will be pleased to answer any questions you may have.
The Chairman: Thank you, Mr. Masson. Your comments are very much appreciated. You have dealt with a large number of points,
[English]
details that I think are very important. I've noticed a couple myself and you've mentioned them too. I think we have to look at them, and as I read your brief more completely I think I'll probably find others. I want to thank you for those points.
First I want to go to Monsieur Lebel.
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[Translation]
Mr. Lebel: Thank you for your presentation, which was very detailed and interesting.
I must say that I was surprised to see that the definition of ``regulation'', as presented here, seemed fully satisfactory to you. You even said that this was an improvement on the definition in the old Statutory Instruments Act.
However, witnesses here and elsewhere have told us that the definition of ``regulation'' is vague and ambiguous, particularly in regard to various documents and texts. The definition is as follows:
- ``regulation'' means a document that is made under an Act of Parliament and expresses rules of
conduct that are unilaterally imposed, have binding legal effect and are of general application...
- I think that the words ``unilaterally imposed'' are important here.
Mr. Masson: Yes, that raises a lot of basic questions.
On the first point, the definition of ``regulation'', administrative law has changed. It is constantly changing. In the past, lawyers had no hesitation in identifying what was a regulation and what was not. Well, that has all changed, and the borderline between what is and what is not a regulation is becoming increasingly unclear, thus giving rise to questions.
The imagination of the authorities is boundless. In the past, you had a regulation and it was clear. Now, there are more and more guidelines, etc. You have heard from a good number of learned legal specialists. We consider that the definition there may not perhaps be as precise as everyone might like, but the case law defining what is or is not a regulation is not crystal clear either. We consider that including under the definition of a ``regulation'' everything related to it and then submitting it to the process does constitute an improvement. Of course, it is not perfect, but the concept of a regulation is one which case law is developing and one which is not always clear.
Second, you raised the issue of the unilateral character of the regulation. A regulation is always an act imposed by the state, but there is nothing to prevent the state from consulting beforehand. You are not going against the unilateral character of a regulation by inviting people to become involved in developing it.
However, we are not proposing a parity-based organization, because then we would no longer be talking about regulations. That is not what we are proposing. We are not proposing parity-based organizations, but rather consultation in the process.
Of course, I do not have the other opinions. The definition there is vague, but case law does establish certain criteria and standards, and that seems to us to be an improvement.
Mr. Lebel: I think that there is a contradiction between subclauses 4(1) and 4(2). Subclause 4(1) reads as follows:
4. (1) The regulatory process applies to any regulation made under an enabling provision that calls it a regulation or specifies another type of document to be used to exercise the power conferred by the enabling provision, such as an order, rule, bylaw, list or guideline.
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Therefore it is stated that it is a regulation.
Let us imagine, for example, because I've seen this as Joint-Chair of the Joint Committee on the Scrutiny of Regulations, that the director of financial and banking institutions sends a directive to all banks under his jurisdiction, telling them that from now on a certain amount of money will be withheld... This is done in the form of a letter and can be challenged. One of the bankers complains about that directive. I honestly do not think that could be considered to be a regulation, as defined in subclause 2(1). However, if you refer to subclause 4(1), you could argue that it is a regulation subject to challenge and to the application of all the rules governing regulations.
Other witnesses who have appeared before the committee told us that they saw a contradiction there. The one provision created a taste and the other an appetite, but there is a contradiction. Is that not the view of the Barreau du Québec?
Mr. Masson: Yes, but this contradiction is inherent in the changing notion of a regulation. You gave us a specific example, that of a director of financial institutions who sends out a directive affecting all the financial institutions in this country, that is businesses handling and moving around hundreds or even thousands of billions of dollars.
Since you are asking me the question, I would say that such a directive certainly has as great an impact as other regulations and could very well be considered and dealt with as a regulation. Its contravention could even be subject to punishment by the courts.
In that regard, the label placed on the text is trivialized to some degree by stating: Regardless of all the imagination you show in trying to create something which you won't call a regulation, but which will have the same effect, this could well be included within it.
In that respect, it is an improvement. However, the problem is that the notion of a regulation is changing, fluctuating and cannot always be easily crystallized in a short piece of legislation. There is no doubt that it is not perfect.
Mr. Lebel: I would just like to take this opportunity while you are here to add something else. I think it is clause 7 which allows the Governor in Council to exempt certain regulations from the application of the regulatory process.
Mr. Masson: It is clause 5.
Mr. Lebel: Yes, it is in fact clause 5. As you can see, we were in recess last week. Subclause 5(1) reads:
5.(1) The Governor in Council may, by regulation, exempt regulations from the application of the regulatory process.
The Governor General is someone for whom we have a great deal of affection and enormous respect. We know, however, that in practice it is not the Governor General himself who uses those powers. It is the minister himself or herself. We know that some ministers are very jealous of their prerogatives and they don't even want to see their colleagues putting their noses into their area of responsibility.
Therefore, aren't you afraid that this might cause some ministers who are a little more scrupulous than others to systematically exempt regulations from the regulative process? Take the example of the Minister of Indian Affairs and Northern Development.
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We know that any regulatory amendment, however small, is the subject of absolutely incredible challenges, if only to change the number of a section. Therefore, the Minister of Indian Affairs and Northern Development may often exempt regulations from the regulatory process to make a purely administrative correction.
In so doing are they not giving an example to others? In the end, that approach would almost become the rule, and thus all regulations would be exempted from the control of Parliament. The people responsible in the present government for monitoring regulations will find it difficult to identify them because they will not have been published or subjected to the regulatory process.
The other day, someone from the department told me that if I was looking for a regulation, I should ask my member of Parliament. I answered that I was the member of Parliament. There is something not right there.
Mr. Masson: While you were asking the question, I was looking for examples. In the proposed legislation, there are already a number of exceptions provided for, and the temptation to which you refer is already in the bill. There are a number of examples. You spoke to me earlier about a question concerning Aboriginal societies. I think there are even draft amendments.
You are right, and that is also one of our concerns. This principle of certainty, which is in the legislation and to which we attach great importance, should not be too easily set aside by certain provisions, such as clause 5. On page 4 of our brief, we discussed that point. We do in fact consider how easy and tempting it would be to set aside such principles by allowing too many exemptions.
Mr. Lebel: Is that one of the Bar's concerns?
Mr. Masson: Yes, it is one of our concerns.
[English]
The Chairman: Mr. Kirkby? Mr. Maloney.
Mr. Maloney (Erie): I have a question, Mr. Chairman.
You have recommended pre-publication of regulations with sufficient prior notice. What period do you think would be reasonable under the circumstances?
Mr. Masson: In Quebec, generally speaking, a delay of 45 days is the delay that you will find in the Gazette du Québec.
Generally speaking, persons interested in a specific regulation, in a matter that will affect their industries in the coming years, are certainly able to present complete comments during a delay of 45 days, and if they are not more interested,
[Translation]
they will forget that time limit.
[English]
For the specific industries affected by regulations, my experience - because we often do it - is that a delay of 45 days is the usual delay and is perfectly comfortable for the regulatory authority, for the representatives of the industries, and for the lawyers who prepare the written briefs concerning specific matters.
Mr. Maloney: You've also recommended public hearings. Would this be in all cases -
Mr. Masson: Certainly.
Mr. Maloney: - or in cases where there are strong recommendations or objections? How would you envision this?
Mr. Masson: First, we think this project of regulation should be a loi-cadre to permit other authorities to use the mechanism in this law to go to public hearings. And we think public hearings are useful only for regulations that will affect important groups of the population. They are not useful in all cases.
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Mr. Maloney: Who makes the determination of what is an important group?
[Translation]
Mr. Masson: Obviously, the regulatory authority, namely the minister or his representatives. But there could be some procedure for recourse.
[English]
Mr. Maloney: Thank you.
[Translation]
The Chairman: We still have time for one or two questions.
Mr. Lebel: Is the process long in Quebec? Here, it says that you need seven days of publication and 23 days in the Canada Gazette. So that means it would take 30 days to pass a regulation. That seems to be the major irritant right now.
Mr. Masson: No. That is not long and it speeds up the process, because it is transparent. When everyone is involved in the development process, the regulatory authority is more protected. What happens when there's no consultations? The minister has to hold unofficial consultations; he is unsure of what to do, there is no structure, there is a risk of error, etc., and don't forget, there isn't even any established procedure for this.
Federal legislation does not even allow for it. It should at least do that. As you said earlier, each department has its own way of doing things. Every minister has his own way of doing things as well, which is perfectly reasonable. Every department has its own procedures. Of course, I am not involved in government decisions, but in my view, that way of doing things is certainly less secure for the authority than having a public notice, than knowing that all representatives affected by the regulation will inform you of all their concerns.
Let's say it takes 45 days. That 45-day period is a much better investment than what we have now. I don't think it will increase the time limits. In fact, it will shorten them, because it will be public. Once the authority has heard everyone, he or she can say: ``Finally, our regulation is all right and we can proceed.''
You also avoid a lot of disputes later on. When a regulation is published and upsets an industry, the reaction is much stronger. There has to be some agreement. It would be reached in public. I am talking more about the legal backlash. There can be much stronger resistance than when you invite people to get involved in the process. So you do not waste any time with that. I think you save time.
Mr. Lebel: Thank you.
[English]
The Chairman: Thank you very much, Mr. Lebel.
I want to thank you very much for your presentation this morning, Mr. Sauvé, Mr. Masson, and Madame Carrier. It's been very helpful. You've posed a lot of very interesting questions.
I want to say the transparency, the openness, and the process you put forward is something we will look at. Of course, we'll leave it to the department in their wisdom to decide, and to the members of the committee, but I want to say I appreciate very much your presentation.
As I mentioned at the outset, I think your comments regarding the relation of English to French is very important - that can be very tricky - and your analysis of the bill as a whole. Thank you very much for coming.
Mr. Masson: Thank you.
The Chairman: Our next witnesses are from the University of Ottawa. I would like to welcome Ed Ratushny, professor of law at the faculty of law; and Jamie Benidickson, associate professor at the faculty of law.
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Gentlemen, I want to apologize. We're a little late in hearing your presentation. I know Mr. Benidickson has a class and will be leaving at about 10:30 a.m. If we could begin, we'd like to hear your presentation, and then if you have some time, we'd like to be able to ask some questions if that's possible.
Professor Ed Ratushny (Faculty of Law, University of Ottawa): Thank you for the invitation to appear before you.
We are administrative law generalists. This is not any particular area of expertise, but it is an area we have a little bit of familiarity with.
In reviewing this bill, our first focus of attention was the definition itself, in subclause 2(1):
``regulation'' means a document that is made under an Act of Parliament and expresses rules of conduct that are unilaterally imposed, have binding legal effect and are of general application....
Of course, if it's called a regulation, it's also a regulation.
One of the concerns we have is that the bill provides very little guidance in terms of when a particular instrument is legally binding. The courts have used a variety of criteria, including the language of the enabling provision, of course, and such characteristics as whether they are of general application or not. But the question of general application relates more to the distinction between an order and a regulation than to whether it's binding or non-binding in law.
So the issue of binding in law sort of begs the question in the definition, because that's an important issue and one that the definition doesn't help us with very much.
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There is a provision in the Statutory Instruments Act that provides for a determination, at least the government stating its position, on whether or not a particular instrument is binding in law. That seems to be absent from this bill, and is a fundamental issue that perhaps should be addressed.
Professor Benidickson wanted to say a little more about that section.
Professor Jamie Benidickson (Faculty of Law, University of Ottawa): I had what are perhaps reflections more than anything concrete about the concept of ``unilaterally imposed'', the language incorporated in the definition.
Having heard your previous witness discuss, in a way I agree with, the fact that the understanding of regulation is something that has evolved and is continuing to evolve, I do have some concerns about the ``unilaterally imposed'' phrasing here. Let me see if I can review some of those.
The usual language in enabling legislation might refer to a power to make or to issue or to prescribe regulations rather than to impose them. One asks first, then, whether the use of the word ``impose'', in particular the words ``unilaterally impose'', is an accurate description of the manner in which regulations are created.
We have various regulation-making processes, some of which permit regulations to be made or issued on the basis of the advice of, or pursuant to recommendations submitted by, some other body. These are often thought to impose constraints on the ultimate content that can be produced by the body that signs off, in effect.
We also have regulation-making initiated by some bodies and clearly subject to the approval of others. Although at the end of the day one ends up with the force of law, one assumes that this interaction between recommendations and advice and the requirement for eventual approval produces something that is short of unilaterally imposed.
We have regulation-making authority in various statutes that involves its own processes. Some of those are quite elaborate processes. For example, under the Canadian Environmental Protection Act certain decision-making involves the explicit participation of committees, consultation with provinces who might be affected, and things of that type. I think that clearly establishes a process that separates the outcome from a document that is unilaterally imposed.
There are many processes of consultation. Certainly there are debates about the extent to which consultation and participation is effective and valuable and contributes to the outcome, but they are certainly there. It strikes me that the presence of such processes separates the eventual outcome of a regulation from something that is unilaterally imposed in the sense that I believe most people might read that language and understand it.
We have at a policy level an approach to regulation-making frequently involving the regulatory impact analysis statement. The intent of that process is to attempt to ensure that regulations, when they are completed, have taken into account the views of parties who might be affected.
So if one were to say that ``unilaterally imposed'' might be interpreted by some as involving decisions that are implemented without regard for the consequences, then we clearly strive, in a modest way at the moment, to take those consequences into account. I think the phrase, as well as possibly being inaccurate, as I've suggested, may also be unfortunate in the context, if I could put it this way, of a democratic and parliamentary system of decision-making. At one level, our involvement as citizens in compliance with the law is an involvement on the basis of consent through a parliamentary process supported by the electoral system.
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The authority to make regulations is a delegated authority. It is carried out on behalf of parliamentarians. It would strike me that parliamentarians, although they recognize their function as creating law, at the end of the day would interpret their role as something other than unilaterally imposing rules of conduct on the citizens to whom they're responsible.
I think one should also, in being cautious about that phrase.... I'm really just offering some reflections on how it struck me -
The Chairman: Perhaps I could interrupt. I don't like to do that, but in the interest of time, sir, although this is very interesting, is it going to hurt the legality and what the definition tries to do?
Prof. Benidickson: At the end, I have to ask whether the phrase ``unilaterally imposed'' adds much to the issue of the binding legal effect that Professor Ratushny has said is absolutely central and with which I agree.
Prof. Ratushny: To pick up on Professor Benidickson's point a bit, the previous witness had made some comments about opportunities for submissions and time delays before regulations come into force and so on.
This is a rather complex and diverse question, because different statutes have different requirements. Some require reasonable consultation before making regulations, while others specify that the time limits are to be involved before regulations comes into force. Some have specific requirements for consultation.
So it does make it difficult to generalize, but I think it's fair to say that there's a general movement to increase opportunities for participation that exist before regulations come into force.
I think that's reflected in all of the Treasury Board policies and requirements for regulation-making requiring the body that's going to make the regulation to articulate the impact and specifically provide opportunities for consultation, particularly on the part of stakeholders.
So that is a large question. It's one that's difficult to pin down. I'm not sure that a general time limit of so many days is appropriate for all regulations because of this other diverse context that contributes to participation.
To move on, in paragraph 2(2)(a), there is reference to proceedings before:
- a tribunal or agency designated under paragraph 26(a);
- federal board, commission or other tribunal
- That phrase has received considerable interpretation by the courts because of jurisdictional
questions, and it might be helpful to have some uniformity in that respect.
Clause 4 applies the regulatory process to instruments that are made under enabling statutes, but again it doesn't help very much in terms of whether a particular instrument is binding or non-binding in law. Some of the terminology that's used in clause 4 perpetuates the difficulty and complexity of determining whether something is binding in law.
For example, the term ``guideline'' is used. We know that in law it can be called a guideline, but it can be interpreted that Parliament had intended this guideline to be binding despite its name. So there's a question here as to whether it might be helpful to straighten out the terminology a bit. If it's going to be a regulation, call it a regulation. If it's to be a guideline or a directive or something like that, then perhaps it should not be binding.
This question of whether it's binding in law is fundamental to this issue. I think citizens should be able to determine whether a particular instrument is binding in law without having to have it litigated in the courts.
With respect to clause 5, there is some concern about the generality of this authorization - I know it was raised in the previous discussion - and the ability of the Governor in Council to exempt regulations from the application of the regulatory process.
Subclause 5(4) appears to provide some constraints or limits on the Governor in Council in using that exemption power. If regulations are to be exempted, it says that the powers of the Governor in Council:
- are to be exercised in a way that respects the public interest in principles of legality, accessibility
and government accountability in making regulations and other documents, taking into
consideration the importance of
- certain goals and so on.
So these words are of a general nature, and perhaps they don't have much practical effect. Moreover, the wording in subclause (4) itself is problematic. You'll see that the powers are to be exercised in such a way that they respect the public interest in principles of legality, accessibility and government accountability, while really the exemption is a departure from those principles. What we're talking about is moving away from accountability, legality, accessibility, because it's going to be done by cabinet.
What we're talking about really is an exception based on the things that are in paragraph 5(4)(a). This is the justification for departing from those principles. It's because of some special concerns involving safety, health, the environment and sustainable development. It's a particular public interest that has to transcend and take priority over the general process because of the need to act quickly.
I think the wording of that subclause requires some revisiting in order to make clear what is involved there. The question, apart from the wording, is a one of accountability. Should the Governor in Council have that general power, or should it be authorized in the specific statute under which the regulation is being made?
For example, if the regulation deals with a health matter, then it will be made under a particular statute that deals with health and so on. Perhaps it should be included specifically in that particular legislation - that the Governor in Council may exempt - with more objective criteria as to what is to be considered the basis for exempting. If that occurs, then of course you have the possibility of judicial review, of having it challenged on the basis of legality and objectivity.
.1015
Another approach might be to require the government to articulate in each case, to publish, perhaps in the Gazette, the basis on which this exemption is occurring so that there can be some public accountability, at least in Parliament, if the government is loosey-goosey about departing too easily from the requirements of the legislation.
An example of a statute that specifically allows departure is paragraph 26(g) on page 11 of the bill. It provides for exemption from publication if the publication indexing could be reasonably expected to injure, and certain standards are defined there.
You could have similar provisions with respect to health, environment, safety and so on in those statutes, provisions that authorize the creation of those specific regulations.
The Chairman: If I may, Mr. Ratushny, I don't want to interfere....
Mr. Benidickson, you were going to leave at 10:30 a.m. Before you go, I wonder if you have any other remarks. I would like to know what you would suggest instead of ``unilaterally imposed''. Was it ``established''? Do you have anything to add?
It's a good point. Maybe other members have questions on what you've said or will have on anything else you wanted to state before you go.
Prof. Benidickson: I played around with that a little bit. ``Established'' was one word I came up with. ``Authoritatively implemented'' was another. But I was still having some difficulty sensing what was being added to ``binding legal effect'' even as I started to play around. I do not have a specific proposal, although I did explore.
The Chairman: If any other members wish to ask Mr. Benidickson a question, they can do so, but I don't want to interrupt Mr. Ratushny, because he's making some very good points.
Mr. Kirkby.
Mr. Kirkby (Prince Albert - Churchill River): We should carry on.
The Chairman: Okay.
Prof. Ratushny: Under subclause 7(1), we have the review by the deputy minister of justice. Our reading of this is that it applies only to regulations. Yet the regulatory process more generally in clause 4 would apply not only to regulations but also to other instruments that are not binding.
I haven't had a chance to discuss this with people in the Department of Justice, but that's our reading. We may have missed something, but it seems as though regulation, starting with the definition in clause 2, is something that's legally binding. But under clause 4, it's subject to the regulatory process, whether it's binding or not. So something that is just truly a guideline doesn't have binding legal effect and is still subject to the regulatory process if it's made pursuant to the authority of a statute.
But then when we get to subclause 7(1), the deputy minister of justice review, it's limited to regulations that have binding effect. I don't see the reason for that distinction. If you're going to subject something that is not binding to the regulatory process, why not subject it to scrutiny by the deputy minister of justice as well? In other words, have the regulatory process apply comprehensively throughout.
There may be good reasons for non-binding guidelines or directives to be reviewed by the deputy minister of justice. They can also be outside of the scope of authority the enabling statute gives. The enabling statute says you can do A, B, C and D. Even though it's not legally binding, that authority should be confined to A, B, C and D, not making guidelines in areas that don't fall within that jurisdiction. I know there are other checks and balances, but I think the role of the deputy minister of justice should be applicable as part of the entire regulatory process.
.1020
That's generally what we have to say. We welcome any questions or comments that members of the committee might have.
The Chairman: Thank you very much, gentlemen.
[Translation]
Mr. Lebel.
Mr. Lebel: Were you here for the presentation made just before yours by the members of the Barreau du Québec?
I had to leave for a few minutes, and when I came back, you were discussing unilateralism. I was under the impression you supported measures such as a hearing prior to passing the regulations, as was the Barreau. Was that your intention?
[English]
Prof. Benidickson: I was suggesting that to a considerable extent the existence of advanced notification and processes for consultation and participation separate our regulatory process from something that would be appropriately and accurately described as unilaterally imposed. Indeed, I welcome and encourage the openness of the process. Insofar as we continue to move in the direction of participatory processes, it seems to me the notion of a unilaterally imposed regulation as an element of the definition becomes less satisfactory.
[Translation]
Mr. Lebel: Thank you.
[English]
The Chairman: Mr. Kirkby.
Mr. Kirkby: With respect to the unilaterally imposed questions that you've raised, now that many regulations are becoming far more technical and require far more input from stakeholders to make them effective or even the least bit relevant, government on its own simply does not have the knowledge in many areas to put forth regulations that would be of assistance and it would proceed without consultation at its peril.
Although there may be words to describe ``unilaterally imposed'' in a way that fits our common understanding of the way regulations are developed and put forward, could this phrase simply not be referring to the...? Ultimately, it is the responsibility of Parliament to say, ``Bang! There you go after....'' That's the process and maybe we could say it in a nicer way, but that is the impact of it. It is unilaterally imposed. So while we could look for a nicer word, could this simply not reflect the reality of the situation?
Prof. Ratushny: Let me give you an example to show where it could have some legal consequence. If you have a particular statute that says it is a requirement that before any regulation can be made under this section it must be published sixty days in advance and opportunities must be provided for public input into that regulation, it's possible that a court could say this is not a regulation under the act, because they could interpret that as not being a unilaterally imposed regulation. That regulation is different from others because it statutorily requires public participation.
So I think that while there's a general value in expressing the language in a more participatory way, there may also be some - not many - specific legal consequences as well.
.1025
Mr. Kirkby: Would you be able to point to any specific cases indicating that that interpretation would be possible or probable?
Mr. Ratushny: No, I don't think the term ``unilaterally imposed'' has had a statutory existence in the past. I'm not aware of any litigation on it .
The Chairman: Have you any further questions, Mr. Kirkby?
Mr. Kirkby: No, thank you, Mr. Chairman.
The Chairman: Mr. Lebel.
[Translation]
Mr. Lebel: I would like to go back to the question asked by my honourable colleague. The Barreau answered it. At the end of the day, it is the regulatory authority that passes the regulation even if there are prior consultations. That is where the word ``unilateral'' really comes into play. The Barreau said that even if there had been a consultation, the regulation is ultimately passed by a regulating authority. If I understand correctly, in your mind, the term "unilaterally" would nearly ban consultation, public hearings, etc. That is your concern, is it not, Mr. Ratushny?
[English]
Prof. Benidickson: I wouldn't be certain that it would have the effect of preventing or discouraging participation. I was somewhat uncomfortable with the word because of its potential to be understood as a poor description of what happens in terms of process, although I do agree with you that in terms of ultimate authority it appropriately reflects, in simple terms, that the buck stops here. If that's what is intended, I think that's what is conveyed. I make the point that for ordinary readers of the statute, for people who are not as familiar with the understanding that you have, this may be misleading. It might be a source of resentment.
The Chairman: Mr. Ratushny, going back to the definition, which I think is very important and is something we all want to make sure is satisfactory, you mentioned that it doesn't give much guidance as to saying when something is legally binding. Would that best be in the definition, or do you think something to that effect could be put somewhere else in the bill? I want to get your feeling on that because I think it's important.
Prof. Ratushny: Under the Statutory Instruments Act there was a provision -
Prof. Benidickson: Section 4 of the Statutory Instruments Act addresses what is described in the marginal note as ``doubt as to the nature of proposed statutory instrument''. It provided that in cases of uncertainty, in effect there is a reference procedure to the deputy minister of justice, who shall determine whether or not the instrument would be a regulation if issued, made or established.
It at least created a mechanism to resolve the doubt - perhaps not finally, because of the opportunity of courts to revisit the question, but at least for the purposes of establishing that this is the intention or understanding of the government about the status of this instrument.
Prof. Ratushny: More specifically, to respond to your question, I think if it were possible to more clearly establish in advance whether a particular instrument is binding or is only of a more general nature, within this particular document it would be invaluable.
The Chairman: Thank you.
Prof. Ratushny: We have case law where they are called ``guidelines'', but the court says that even though they're called guidelines, the intent of the statute clearly is that they are to be binding. And we have directives where the court has said, because of the wording of the statute, they're not intended to be binding.
.1030
It would be helpful if either in the enabling statute or through this particular bill, which will become a statute eventually, there were some way of defining in advance whether it has the effect of law. We know that an act of Parliament has the effect of law, and this is delegated legislation. But it sometimes also delegates something beyond law-making, and that is to issue more general guidelines, directives, whatever they may be.
Since that distinction is so fundamentally important, I think we should struggle to try to provide notice in advance as to what the effect is.
The Chairman: Thank you very much.
In the absence of any further questions I want to thank, on behalf of the committee, both of our witnesses for their presentation. I want to compliment you both on making some very powerful points in a very distinct and direct way. I think your presentation has been very helpful to this committee and, hopefully, to the process that we all want to see achieved. Mr. Benidickson, thank you for staying with us, and Mr. Ratushny.
Prof. Ratushny: Thank you, and good luck in your task.
The Chairman: Well, a little luck is not going to hurt. Thank you again.
I think we'll take a five-minute break before our next witness.
.1032
.1042
The Chairman: I would like to reconvene and welcome our third witness this morning, Mr. Daniel Mockle, from the Université du Québec à Montréal. Mr. Mockle is associate professor of public law and president of the administrative law section of the Canadian Association of Law Teachers. He's a very eminent authority in the field of regulations. I would ask him to make his presentation, but before he does that, I would ask him to put a little biography of himself on the record, so we appreciate the quality of the testimony we're about to hear from this eminent professor.
Mr. Mockle, please.
[Translation]
Mr. Daniel Mockle (Associate Professor of Public Law, President, Administrative Law Section for the Canadian Association of Law Teachers, Université du Québec à Montréal): I would first like to thank the committee for taking the time to hear my presentation.
I would like to put a few things into context. As part of my research, I did a doctorate specifically on the notion of regulation and para-regulatory practices, and my thesis was published. In fact, you will find references to it in the document I will hand out, which is just an outline because I unfortunately did not have time to prepare a brief.
I have been President of the Administrative Law Section of the Canadian Association of Law Teachers since 1989. I was President of the Canadian Association of Law Teachers in 1995-96, and I am now the outgoing President.
For several years, I was involved in the Law Reform Commission of Canada, from 1982 to 1988, where I worked as a consultant in the Administrative Law Section.
As for the Administrative Law Section of the Canadian Association of Law Teachers, every year a meeting is organized as part of the Learned Societies Conference. Last June, at the 1996 meeting held at Brock University in St. Catharines, I organized a meeting to deal specifically with Bills C-62 and C-25 to discuss the issues related to these bills with well-known experts on regulation. We all know that Bill C-62 died on the Order Paper, but that Bill C-25 was renewed in March. You will find the list of speakers on the small sheet of paper I gave you. Let me now get back to my presentation.
I felt it was important to come to Ottawa because Bill C-25 is not just an update of the Statutory Instruments Act, but a bill that raises many questions. It is undeniably a huge improvement over the Statutory Instruments Act. I would first like to say that I am very pleased about that. I hope Bill C-25 will pass, because it would correct the many deficiencies found in the Statutory Instruments Act.
I would like to remind you that some of my colleagues had some very harsh criticism of the Statutory Instruments Act, especially my colleagues Garant and Issalys of Laval University who, in their 1991 publication entitled Loi et règlement, said the Statutory Instruments Act was a conceptual disaster.
.1045
I would also like to point out that in its fourth report in 1980, the Standing Joint Committee on Regulations and Other Statutory Instruments advocated the replacement of the Statutory Instruments Act with a new Act. So that was about 15 or 16 years ago. You can see how long it takes to make changes in federal administrative law.
Let me give you a little background. I would especially like to inform the members of the noteworthy changes to regulations. You can no longer think of regulations in a traditional sense...
[English]
The Chairman: If you could speak just a little more slowly I'd appreciate it, just for the sake of the translators.
Mr. Mockle: I'm always too fast.
The Chairman: We've got plenty of time. We're interested in what you have to say, so please continue.
[Translation]
Mr. Mockle: Today I would like to focus on the problems of openness, access, transparency and advertising of standards. It is essential to do so, because the meaning of regulation is changing a great deal right now. Bill C-25 is an example of that, especially in clauses 16 to 19, where there is reference to so-called technical standards that could be included in references. In terms of public law, we have dealt with the multitude of standards that do not have the status of a regulation, which are non-regulatory standards, but have an impact nonetheless. This is really a prescriptive issue.
In the first point in my outline, I am simply referring to practices or standards which currently cannot or could - I will use the conditional - not be regulatory in nature, just because I want to inform the members of those changes that could affect the interpretation of regulation. I first wanted to remind you of that.
Internal administrative practices: The terms ``infra-regulatory'' and ``para-regulatory'' are well-known terms in Quebec, being used in administrative law books. They are just multipurpose internal administrative practices. I have published a number of things on that. Of course, you could put them into categories, talk about budget rules, internal regulations for users in federal establishments such as airports and prisons.
There are also guidelines. They are really just self-imposed limits on discretionary power to serve as guidelines to the appreciation of cases. In 1978, in the Capital Cities case, the Supreme Court ruled that the administration had the power to set rules that have a direct impact on the appreciation of cases in all areas of administrative involvement, be it for subsidies, loans, compensation or benefits.
Finally, there is a phenomenon that is gaining scope and which is nothing new, and that is the establishment of general policies by federal organizations. There are no publications on this either.
For the environment, for instance, the federal government has just made a commitment this year or last year. It set very ambitious goals for the environment. The Environment Department, in fact, published guidelines on ``the greening'' of government operations. Those are very important publications. The government put forward a management code for the environment as well as a ``Green Government'' guide.
These are the general policies that affect the entire federal government, all federal institutions, by setting higher environmental standards.
Those guides and policies are not regulatory in nature. They are not regulations as such. So that is the first major area where it is very difficult for users, the general public and even law professors to get any access.
.1050
The second area, and this pertains to Bill C-25, is the establishment of technological standards. That is what the legislator meant by the term ``incorporation by reference''. They are clauses 16 to 19 relating to the inclusion of technical standards.
Here's a merely technical comment. I think the term ``incorporation'' is poorly used, as is the term `` integration''. If you incorporate or integrate, you obviously incorporate things that will have the same effect or are of the same type. It would be preferable to use the term ``inclusion'', because if you include something, the included thing can still be distinct from all of the others.
Therefore, clauses 16 to 19 describe a situation related to the globalization of trade and standards. Right now, all Western governments are having a lot of trouble following technological developments, which is related to the establishment of standards by international organizations, and by large public or private organizations. These are technical and technological standards. Because markets are going global, governments obviously prefer rules and references that apply to everyone, which explains why it is very tempting to use the reference to integrate technical standards set by foreign, public or private authorities.
There are major issues to be resolved in that area. I think the development is inevitable, but you must nonetheless cushion some of the blows related to those references through positive measures in terms of access, if not publication.
Here is one last example, substitution standards. You know that the famous bill on regulatory effectiveness died on the Order Paper. In that bill, Treasury Board suggested substitution standards that would not have been regulations and would not have had any regulatory value, just like the technical standards and the para-regulatory or infra-regulatory practices I pointed out to you.
First of all, you have a wide field of regulation in the broadest sense. This is truly the notion of regulation in the broader sense, which nevertheless comes from government organizations. This comes from the federal administration, be it by incorporation, by concurrence or by internal formulation. You have here a broad field which, for all intents and purposes, escapes a truly serious legislative framework, with the exception, of course, of what is being proposed in Bill C-25.
I decided to discuss these issues at the outset simply to raise the members' awareness of the fact that regulation is now a complex phenomenon that goes beyond the framework of Bill C-25 in many regards. The bill reflects a part of official regulation.
In addition, I wanted to emphasize the accessibility and openness of these standards. The problems in this area are serious since in Bill C-25, for instance, the measures advocated under clause 16 to publicize these technical standards do not go very far.
You have clause 17, among others, which simply prescribes reasonable measures that are left to the discretion of the administrative authority so that the concerned parties can eventually gain access to these standards. These measures are completed by subsection (f) of clause 26, with the possibility of including a written version, a more complete literal version, by electronic means associated with the dissemination of the Canada Gazette.
In an effort to foster greater openness, I'm advocating that these technical standards be disseminated in whole by electronic means. Their dissemination should be systematic, complete, and in both official languages. I feel this is important given the considerable impact that these technical standards will have for Canadian industry and for the general public.
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Bill C-62, for example, contained better provisions in this matter. It provided for the complete publication of substitution standards in the Canada Gazette, with a few exceptions. Clause 14 provided that substitution standards would be left at the disposal of the public, but clause 11 stipulated that the notice of agreement of substitution standards be published in the Canada Gazette.
At the regulatory and para-regulatory level, there are no provisions for the dissemination and accessibility of these standards. It would be useful and urgent to create an electronic site. As for technical standards - and here there could be some discretionary power and it would therefore be left to the discretion of the departments and agencies of the federal government - there could be an electronic site for the dissemination of policy guides and manuals of interest to the public.
Before discussing the effects of inaccessibility or lack of openness, I would like to briefly get back to the issue of the definition of the notion of a regulation. I heard my colleagues speak earlier. In my text, I proposed changes to the notion of regulation in form only. You have the definition in Bill C-25, you have the one I am proposing as an amendment and finally, you have another material definition that currently exists in Canadian law, that of the Quebec Regulations Act.
I would like to point out that from a purely technical standpoint, the term ``unilateral'' is recognized and utilized in administrative law books in Canada. It is a summa divisio between bilateral and unilateral acts. Obviously, regulations are not contracts. They are not acts that require the approval of third parties.
Of course, the unilateral nature of regulations is alleviated by consultation and negotiation, but it is truly a unilateral act, in the sense that it is truly the regulatory authority that takes the final initiative to propose certain standards through publication. The law is also considered a unilateral act in public law doctrine. Therefore, I'm very surprised that my administrative law colleagues are coming here to contest the unilateral nature of the notion of regulation. It is obvious.
This may surprise lay people, but the notion of a unilateral act is widespread in Quebec law faculties. It is also used by Canadian regulation experts in all books on public law and administrative law. I simply want to propose a version that may be more elegant and more complete in some respects, but it is important that the definition that will be used by Parliament be a simple one.
The definition that I am proposing contains the three criteria of form, substance and effect proposed by the Supreme Court in the ruling entitled ``Second Reference re: Manitoba Language Rights''. This decision goes back to 1992. The court clearly specified the three dimensions, and the legislature does not have much room to manoeuvre to escape this definition, which seems to me fair and uses the main parts of definition that were proposed previously, in reports such as the MacGuigan report or those of public law professors. Here are a few comments about this definition.
Our main concern with regard to openness, transparency and publicity is that Bill C-25 may not be sufficiently oriented toward openness. Subsection 26(g) provides for the existence of secret regulations. Therefore, this reiterates provisions that existed in the Statutory Instruments Act and targets three areas.
.1100
I think that such secret regulations, which were severely criticized by public law professors, should be strictly limited to essential matters. I find it unfortunate that in 1996, it was deemed appropriate to extend secrecy in the area of federal-provincial relations.
Of course, I'm not a professor who works on so-called constitutional issues of federal-provincial relations, but I think it is unfortunate to announce in this way that there are still secret regulations. One could provide for secret regulations in foreign affairs, defence and the security of Canada, but to evoke federal-provincial relations in this way is somewhat surprising. I think that these are practices that hark back to another era, a time when the publication of regulations in Canada was far from widespread.
It was only in 1950 that the first Regulations Act was passed. It became the Statutory Instruments Act in 1972. Therefore, not so long ago, the publication of regulations was something that could not be taken for granted in Canada. In Quebec, it was only in 1986, with the Regulations Act, that systematic provisions were put in place for the publication of regulations.
If I had a suggestion to make to the committee today, it would be to recommend that the publication of regulations in federal law be systematic. As indicated in section 15 of the Quebec Regulations Act, failure to publish would be a defect in form and substance that would invalidate the regulation. I think that the publication and dissemination of anything regulatory is highly important. I'm also concerned by the fact that the first provisions in the bill still leave considerable scope for government discretion to exempt certain regulations from the regulatory process in clause 5.
Incidentally, I have a minor technical observation concerning the presentation that preceded mine. Clause 4 is genuinely aimed at texts that have a regulatory character because the federal legislator, in numerous pieces of legislation, uses the terms ``rule'', ``order'', ``list'' or ``directive'' to designate texts that truly have regulatory value.
Therefore, these are not texts that have no constraining value, as the two previous witnesses have claimed. These are indeed regulations because the federal legislator has for a long time used many expressions to designate the notion of a regulation - there is obvious terminological disorder in this area. Thus, it is indeed regulations that are targeted in subsection (1) of clause 4.
The non-publication of regulations and the difficulty in accessing anything that represents a broadening of the notion of regulation causes problems. In fact, by using a graph that I designed, I have proposed a system of concentric circles to raise your awareness of the broadening of the notion of regulation. I'm still working in this area. I'm supervising a doctoral student who is working specifically on issues related to regulation.
Therefore, accessibility is a fundamental element and here I would like to quote my colleague Patrice Garant of Laval University:
- ...it is not enough for a standard to exist; it has to be known by those who are administered by it.
Let me point out that the notion of the rule of law is founded on the notion of openness, publicity, and knowledge of regulations. I could quote many British authors and I could give you a whole course on the rule of law, but I think that this is really not the time or place to make that kind of presentation.
I could also raise your awareness of the theory of imprecision in constitutional law, where it is exclusively provided that in laws and regulations, citizens should benefit from reasonable notice. So it's really a notion of reasonable warning.
.1105
In many of its decisions of the past few years, the Supreme Court has reiterated the criteria of the theory of imprecision, notably that of reasonable warning. You have that in R. v. Nova Scotia Pharmaceutical Society, for example, which goes back to 1992, in the Haywood case of 1994, and, more recently, in Canadian Pacific Limited v. Her Majesty the Queen in Right of Ontario, which dates back to July 1995.
Non-dissemination and non-publication have specific effects in law. I simply recapitulated them in my second point. The standard that is not published is non-binding and the administered cannot make use of it. They cannot be bound by these standards, because no one is supposed to be ignorant of the law, but that is provided they have been informed of the existence of such a law. There is also the problem of judicial knowledge that would arise.
A judge is only obligated to familiarize himself with certain texts and documents provided, of course, that they have been published according to the rules. This is the case of laws and regulations. Therefore, failure to publish regulations brings about specific effects. I'm concerned that some regulations can be kept secret and that eventually, in the context of the application of a law, they be suddenly enforced by publishing them overnight in the Canada Gazette simply because circumstances related to certain events required that action be taken as soon as possible.
You can see that the failure to publish is something that brings about effects where there are certain matters at stake. The main point of my presentation today is to draw the attention of parliamentarians to the fundamental role that they must play in the area of openness, publicity and accessibility. This is an area in which you can easily come to a consensus, regardless of your political stripes. I think that members of Parliament of all parties can easily come to an agreement about the necessity of having an open government. This is open government, namely the need to have transparency, openness and the publication of regulations.
In this regard, Bill C-25 could be improved in order to eliminate the drawbacks that may result in making it too difficult for the public to gain access to certain types of documents.
In point (b), I am proposing the possibility of creating electronic sites which would not reproduce texts in their entirety, but at least point out their existence. In public law, we call this flagging.
Flagging includes brief references to the authorities responsible for preparing a text. The technical number of the document or text is provided. The publishing date, the official title, and often the number of pages and a brief summary are also included. If the federal government adopted new policies in the area of the environment, it would be so easy and pleasant to be able to obtain access to these new policies, standards and guides by electronic means.
I think that we could achieve substantial progress in the dissemination of public policies of general interest and also the dissemination of standards that may seem more technical, but that are of direct concern to the administered, such as procedural regulations in the area of the operation of administrative justice in federal law, which are called the directives for the assessment of files.
I think that we have to show a little bit of imagination to foster publicity and accessibility. Of course, I used to work at the Law Reform Commission of Canada. I've often had to discuss these matters with federal officials. The first question we are asked as soon as we propose a solution or some reform is: ``How much will this cost?''
On that, I'm relatively confident. I think that the creation of an electronic site would not bring about ruinous expenditure by the federal government. The publication of texts on paper is very expensive. If, on the contrary, Web sites were created, access methods that reflect to the realities of our time, we could achieve significant savings.
.1110
Those are the main points of my presentation. I would like to point out to members that Bill C-25 recognizes and confers to the executive considerable discretionary powers, be it to exempt regulations from the regulatory process or exempt the Department of Justice of the examination it must conduct of certain bills.
In the area of so-called technical standards, namely clauses 16 to 19, important matters are at stake. In fact I would like to make a few comments on the nature of these new standards, but they are of a more technical nature. I may do so if you have questions on this subject.
I would invite members of Parliament not to have too romantic a vision of parliamentary control and thus to be realistic, pragmatic, and ensure that through Bill C-25, control mechanisms can exist, especially to ensure that accessibility is something real, a tangible reality for the Canadian public.
[English]
The Chairman: I'd like to begin the questioning with Mr. Lebel.
[Translation]
Mr. Lebel: Thank you for your presentation, Mr. Mockle. You are the first of our witnesses to point to the effect on judicial knowledge as an effect of failure to publish. That's really the other side of the coin, and we were not called upon to elucidate that issue.
When you talk about judicial knowledge, you're alluding to a judge who's called upon to make a decision pursuant to a regulation that he hasn't seen, hasn't read or that he may not even know exists. Is this what you were referring to when you talked about judicial knowledge in your presentation?
Mr. Mockle: The rule of judicial knowledge is a simple one: laws and regulations that have been published don't have to be pleaded especially before a judge. Therefore, they're supposed to...
Mr. Lebel: It is a foregone conclusion that the judge knows them.
Mr. Mockle: It is a foregone conclusion. If they have not been published, the onus is on the parties to prove the existence of these standards, be it a regulation, a directive, a policy or some manual that may have regulatory value. It would therefore be sufficient to debate the matter before the judge.
There's a question of evidence. Judicial knowledge only applies to what has been published. I simply wanted to remind you of that.
Mr. Lebel: I've noted your suggestion concerning flagging non-regulatory texts, and regulatory ones as well I suppose, because if you want to do the minimum, you might as well do the maximum.
Electronic publication is not a logistics problem for the government. It's individuals who do not all have computers to search on Internet who must be made aware of electronic publications.
I can understand what you are asking for but do you not think it is too early to give it concrete form in new legislation when in actual practice it may not be accessible to everyone?
Mr. Mockle: The Act could be worded so that the federal government or the Department of Justice would be expected to take reasonable measures, circumstances permitting, to set up a site for dissemination and flagging.
It's merely a matter of the wording or the drafting of the Act so that federal authorities are given wide latitude and are encouraged to give greater dissemination to policies considered to be of public interest.
At the present time there is nothing in the legislation. It is a secret universe and unfortunately an unpredictable one. As a law professor I'm often accidentally informed about the existence of a new policy although it is an important and essential one.
All the departments and agencies are constantly developing policies and these policies are often articulated in the form of directives which later end up as a regulation or sometimes an Act. We have seen this kind of process take place.
.1115
Mr. Lebel: To sum up, Mr. Mockle, you have focused on the intent underlying this more precise definition of regulation.
Mr. Mockle: Yes, I quite agree with you on that.
Mr. Lebel: The definition of the regulatory process is perhaps a bit more precise. However, there are some drawbacks; the fact that certain regulations are not publicized, particularly with respect to federal-provincial relations, the power to exclude regulation from the regulatory process and a host of other matters. When we take all these factors into consideration, are we not missing a fine opportunity to come up with a good Act that would be of general application, as is desired, but that would also provide for the publication of such texts so that they can be made known to citizens and to those who are responsible for administering justice? Here of course I'm talking about judges.
I know that our witnesses, and I say this to my colleagues, are not going to start attacking the legislation. They've all been quite favourable and commended us but when we look at the substance, it's a bit like a legal opinion on a legal ruling. People don't say that the judge really messed it up. They say that he's a nice judge but when you examine the ruling in detail, you realize he's completely mistaken from A to Z.
This is the impression I get from Mr. Mockle's presentation. I recognize him as a specialist in administrative law whose reputation is widely known. Do you not think that this no-publication provision will result in a serious omission all for the sake of piddling economy?
Mr. Mockle: I wouldn't like to have my comments construed as strongly opposed to Bill C-25. When I stated at the outset that I had a fairly positive impression of this bill, I meant to be taken at my word. It represents huge progress in relation to the Statutory Instruments Act. Congratulations to you. I'm very pleased at this but there are still a number of small things to be corrected. I think that there are improvements to be made, particularly with respect to accessibility. I certainly don't want to leave you with the impression that it is basically bad legislation. There are a few clauses to be improved.
I don't have enough time to make comments on the form of the French version. For example is ``prendre'' the right verb to be used in reference to a regulation? I have my doubts. One can take a decision, adopt an act but I do not think that one can take a regulation. One can make a regulation. These are the kinds of technical comments I would have with respect to improving the bill and some stricter requirements for the federal authorities to ensure the dissemination, publication and accessibility of texts. This would not require very significant amendments. Sometimes, it's just a matter of a few words.
Mr. Lebel: Mr. Mockle, I'm not asking you to demolish the bill. That is not at all my intention. It is obvious that you and I cannot look at this from the same end of the telescope. As you said, politicians must represent their constituents who expect to be informed about legislation, regulations, etc.
As far as your presentation is concerned, it's a bit like being present at the birth of a fine-looking baby, but one who is stillborn. Which is more important to you, the beauty of the child or its lack of life? For us as politicians, publication is absolutely essential when a regulation, an Act or a standard is adopted. I consider this to be an impediment. Is that not your view?
Mr. Mockle: No. Historically, opposition parties call for a greater amount of openness and advertising whereas government authorities are more inclined to secret, state security considerations and other issues of that type. In my view, Bill C-25 does reflect an orientation I consider to be quite valid.
I think that the inclusion of technical standards by reference is something inevitable. It is simply a matter of ensuring that there is accessibility in both official languages of the country. It will be very much appreciated. As a matter of fact, international authorities responsible for developing these standards will probable adopt one of two attitudes. Either everything will be in English, or, because they are international authorities, it will be disseminated in many languages so that it can be made available to a wide range of commercial and state interests throughout the world. So it will be disseminated in German, Italian, Spanish, French and English.
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But the problem of accessibility still remains, especially since these technical standards will probably be evolving very quickly. They are technical standards in the area of high technology, telecommunications, nuclear energy, etc. These are high tech areas where science is evolving so quickly that the standards will have to be constantly amended.
Accessibility becomes essential. The public at large in Canada must have a way of being informed and of following the evolution of these standards.
There are also problems of a constitutional order that I could raise, but this would mean making another presentation on the usual procedure for ratifying international treaties under Canadian law. Here, international standards are being incorporated into Canadian law. There are also issues of constitutional law, but that would require another presentation and I don't have the time.
[English]
The Chairman: Thank you very much.
Mr. Maloney, do you have any questions?
Mr. Maloney: I have just a couple, sir, if I might.
The previous witness talked about subclause 2(1) as providing very little guidance as to when something is legally binding. You've clarified clause 4, which I appreciate. You say the wording in clause 4 means it is legally binding, which I find helpful.
They also mentioned we should be doing something in this bill to correspond to what is in section 4 of the Statutory Instruments Act, which further talks about binding and non-binding. Do you feel that should be done, or do you think the bill is sufficient in that regard the way it is now?
[Translation]
Mr. Mockle: It might be a good idea in the case of subsection (1) of section 4, since there is some possibility for confusion because of the use of the terms set out in the subsection. However I do think it is clear because subsection (1) refers to:
- ...to be used to exercise the power.
- So we are talking about directives, regulations, orders or lists in which a regulatory power is
exercised. These texts are undeniably regulations in the substantive sense.
The only thing we can expect in legislation relating to regulation is a greater openness to advertising, a greater transparency. Furthermore, I should point out that Bill C-25 does not only apply to so-called regulatory standards because there are now technical standards included by reference that will not be regulatory standards.
As a matter of fact, this does raise a number of conceptual issues of interest to specialists in regulation.
Bill C-25 sets out to mark the path for the integration in Canadian law of standards that are not regulatory. Why not do likewise for infra-regulatory or para-regulatory matters, for public policies developed by federal agencies? Go ahead! This is the right time to encourage greater transparency and more public information on government action.
I don't know whether I've answered your question. I hope so.
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[English]
The Chairman: Merci, and I know you have. That's been very helpful. Thank you.
There's just one other area and that regards standards. Michelle Swenarchuk of the Canadian Environmental Law Association in her presentation said:
- A fundamental deficiency of these processes is that they do not produce standards for
performance; they merely produce processes for certifying management systems.
Fundamentally, they certify, through confidential auditing, whether a company has a
management system that delivers whatever its environmental goals are. These goals need not
entail any substantive steps toward environmental protection. The documents do not set
standards; they merely require compliance with local standards.
[Translation]
Mr. Mockle: If I understand your question, you are referring to the standards set out in clauses 16 to 19. Is that so?
[English]
The Chairman: Yes. How can we deal with documents that really don't have norms, that have their own local...?
[Translation]
Mr. Mockle: It's difficult to explain in words. As far as the integration or inclusion of these standards is concerned, there are regulations of domestic law, in other words Canadian regulations, that include standards developed by other organizations. The effect of this inclusion is to make such rules or technical standards binding, to make them normative although they are not considered to be regulations.
One of the most fascinating sections is section 18. It is fascinating because of the problems it gives rise to, particularly with respect to penalties. Section 18 specifies that no person may be subjected to a penalty for the contravention of a provision of a regulation that incorporates material by reference, unless, and this is the first exception, the offender was reasonably informed or the material was reasonably accessible to the person. The second exception comes into play if reasonable steps have been taken. I'd also like to point out that these requirements are also to be found in Bill C-25 with respect to unpublished regulations.
It's quite interesting to see that there is the integration of standards that are not considered to be regulatory standards but that could eventually result in effects such as penalties in particular. When the term penalty is used in public law, in administrative law, it normally refers to penal and administrative penalties.
From the point of view of the consistency of the section, if there are penalties that may result from the technical standards, the penalties are not directly linked to the technical standards but to the fact that such standards have been incorporated into the regulations themselves.
So it is the regulation resulting from a particular piece of federal legislation that probably does contain provisions of a penal nature, possible fines or administrative sanctions and it is the provisions of the regulation that will be able to facilitate the imposition of such penalties.
The reference to a penalty must be seen as a reference to penalties to be found in the regulation incorporating the so-called technical standards. I hope that you do see that there is a nuance. It's an important one. It is a subtlety in the wording, a rather particular nicety. It is not the technical standards as such that will result in penalties but the fact that they have been incorporated in a regulation and this is the reason why we specialists have raised a number of questions. This is an example of a new type of regulation, it is not considered to be regulatory in the strict sense of the word but it can nonetheless bring about indirect effects and penalties. You see that there is some subtlety and this is why it is necessary to better understand the notion of regulation and to extend the possibilities for analysis. So regulation must not be understood solely in terms of delegated legislation or subordinate legislation, as has always been our tradition in Canadian public law.
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I didn't quite answer your question. There are standards that are incorporated. The link in relation to internal standards is affected by this inclusion technique but the standard included does not become a regulatory standard as such, hence the need to use the term ``inclusion'' rather than ``incorporation''.
If we talk about incorporating or integrating, that implies a mix. They would become standards of the same nature. The term ``inclusion'' avoids this type of confusion. If you include a part of the text or a document in another one, the part which is included does not merge into the whole, it remains distinct. So there is an essential distinction between the standards to which the inclusion is added, the regulatory standards retaining their regulatory character, and the technical standards which are of another nature. So the important point is the way in which these two types of standards are connected.
As for your question in relation to local standards, it's a very complex one. If I got into it, it would take me a good ten minutes because there are issues relating to constitutional law for the ratification of international treaties. The usual procedure for ratifying international treaties requires under constitutional law a procedure for incorporation or implementation through federal legislation, and there are fantastic possibilities to short circuit this usual ratification procedure to attempt to find at the international level elements of soft law with respect to standards. There is a possibility here to incorporate them directly. An administrative authority will do this. The Department of Justice, another department or a federal agency will be able to incorporate them directly through regulation in Canadian substantive law, in other words in Canadian law as such.
There are also issues relating to constitutional law but strictly speaking this procedure is not one that allows for short circuiting of international agreements and treaties because these technical standards do not constitute law, they are not regulatory standards. You are incorporating something that is not regulatory and through the regulatory procedure you are adopting it directly as part of the internal Canadian order, hence the possibility of dispensing with the usual procedure for treaties, agreements and ratification and the slow and cumbersome machinery that this implies as well as the possibility for parliamentary scrutiny.
As far as regulations and standards are concerned, these are developments that allow for an acceleration in the production of standards. There will be more and more of them. These standards are increasingly technical, scientific, or a combination of both, and the possibilities for parliamentary scrutiny will become increasingly rare. Since the issues are too technical, parliamentarians will not have the time, the technical means or the necessary resources to audit all the standards being produced.
I hope that this has answered some of your concerns.
[English]
The Chairman: Thank you, Professor Mockle. You not only answered my question, you answered two questions I didn't know I had when I asked the first question. That's been very helpful. In fact, I must get that. That's quite a great explanation of the whole question of standards, which I must say has somewhat confused me in going through this process.
On behalf of all members of the committee and all of us present, we want to thank you very much for your presentation. It's been a pleasure to have you with us and it's been very helpful. We know you've come at great inconvenience to yourself, and we appreciate what you've done and the information you've given us.
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Prof. Mockle: Thank you very much, merci.
The Chairman: The next meeting is in room 705 this afternoon at 3:30 p.m. Also, we've decided that we'll have an in camera meeting among just members of the committee on Monday afternoon at 3:30 p.m., so we'll get that set up.
I'm adjourning the committee until 3:30 this afternoon.