[Recorded by Electronic Apparatus]
Wednesday, November 20, 1996
.1754 
[English]
The Acting Chairman (Mr. Maloney): I would like to call the meeting to order.
Our witness this afternoon is Professor Roderick A. Macdonald from McGill University.
Mr. Macdonald, we have roughly 45 minutes - 25 minutes for your presentation and then the question and answer period of a roughly equivalent amount. You have a brief, which you've circulated for us, Mr. Macdonald. At this point, the meeting is yours.
Professor Roderick A. Macdonald (Faculty of Law, McGill University): Thank you very much for inviting me. I realize we're at the end of a long day, so I would propose to perhaps say what I have to say with somewhat less nuance and a little bit more bluntly, simply to make the point, and then I can add the nuances in questions thereafter.
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I'm led to believe that generally the subcommittee has heard favourable comment about this bill. I would like to say that is not at all my opinion. I think this bill is flawed in a number of significant ways, and I would like to point out in general terms what the nature of those flaws are. I don't have any illusions about the character of the parliamentary process, but I think at least it's important to record these problems.
I've prepared a brief, and I apologize for the fact that I was not able to produce it in French. I have never presented a brief to a parliamentary committee, either in Ottawa or in Quebec City, that has not been in French and English, but as you can tell from the date, it was only two days ago that I was able to find the time to get to work on it.
I have two sets of comments: the first general and the second comments of detail.
I believe the first question to ask is, what's the purpose of a bill like this? It would seem to me that when you ask the question that way you come up with two answers or two elements.
First, this is a bill that is supposed to provide a framework, a constitution, if you will, for structuring the process by which delegated legislation is made, brought into force, and promulgated.
Secondly, it is intended to provide, in general terms, a statement of sanctions for a failure to respect the conditions that are set out in that constitutive act.
Whenever you have legislation of that character, the most important principle, I believe, is comprehensiveness. This bill is not comprehensive. It has a quite particular and formalistic definition of regulation, for starters. In addition, it has numerous clauses that permit the Governor in Council to exempt any particular regulation from the regulatory process it establishes. In addition, as you can tell from the last 100 sections of the statute, it is shot through with a number of explicit exclusions for the regulatory process.
Lastly, it attempts to accomplish too much with one definition. We know that once you describe something as a regulation, it has implications for the application of the Charter of Rights and Freedoms; it has implications for the application of section 133 of the Constitution Act; it has implications for the application of common-law principles such as delegatus non potest delegare, and so on. This bill purports to give a very particular definition of regulation that does not adequately address all of these concerns.
In the general part of my brief, I have focused on four points, two that I'd like to signal here.
The first is that whenever you have a formal definition of an instrument, it is an invitation to abuse. In any definition of what counts as legislation, what counts as a regulation, what counts as - to use another example from a field of mine - a security interest in property, if you define formally, you can be certain that those who wish to avoid the application of a procedural regime will simply define the instrument they're producing slightly on the margins of your definition. No definition that is not a teleological or a functional definition should ever ground legislation of this character. The definition of regulation must be stated in teleological terms.
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Second, there is what I identify in the brief as the principle of the tacitly permitted operative here. The best example I can cite of previous legislation of this character is the so-called Freedom of Information Act. Anybody who has done an analysis of the Freedom of Information Act knows that the act sets out criteria for access to documentation, but it also provides governments with an ironclad excuse, a peremptory justification, for not revealing. As we all know, most of the critiques of the Freedom of Information Act have been directed to the fact that once you don't fall within one of the permissible categories, there is no justificatory burden carried by the government to say why documents won't be released. It is simply enough to say that you're not in this category, good-bye, go home.
That's what has happened here. The bill is set up in such a way that there are peremptory exclusions that are permitted to the government, non-justified. For example, subclause 5(1) states:
- 5.(1) The Governor in Council may, by regulation, exempt regulations from the application of
the regulatory process.
- There is no statement whatsoever about why. There is no statement whatsoever about what
kinds of regulations, for what purposes. It is a peremptory exclusion. When you're setting up a
constitutional document of this character, which is supposed to define the morality of
regulation-making in the federal sphere, that's unacceptable.
Do you want secret legislation? No. So there should be a general norm of publication. Is there a general norm of publication in this act? Unfortunately, there is not a general norm of publication.
Do you want legislation that is retroactive? In principle you would say that you don't want legislation that is retroactive. But if you look, paragraph 23(1)(a) in fact authorizes the making of retroactive regulations. It says it is possible for a document to come into force before the day it is registered and even before the day it is made. Now, if something is going to come into force before the day it is made, it is retroactive. It means that what you do today may be turned into an offence tomorrow.
Again, one would generally want a document that sets out a charter of regulation-making to specify the impact of non-compliance. You would want the sanction for non-compliance with the regulatory process to be so severe that it would serve in some sense as a prophylactic. The sanctions are not severe at all. In fact, I wonder. If you look at clause 11, it says:
- 11. No person may be convicted of an offence or subjected to a penalty for a contravention of a
regulation that was not published...unless...the person had actual notice.
In my brief I talk about the problems with an actual notice standard. But look at (b):
- (b) reasonable steps had been taken to bring its substance to the notice of persons likely to be
affected by it.
- In other words, you don't have to publish the regulation, and a person can be convicted of an
offence under a regulation - an unpublished regulation - if ``reasonable steps had been
taken'' to bring it to his attention. If this clause passes muster under section 7 of the Charter of
Rights and Freedoms, then I think the Supreme Court should resign en masse. This is a travesty.
Yet here it is: ``reasonable steps had been taken'' to bring it to somebody's attention. Secret
legislation, make reasonable steps, and I'm convicted. It's completely unacceptable in a charter
for the regulation-making power.
Paragraph 2(2)(c) astounds me, because the implication of 2(2)(c) is that by regulation you can modify a statute. You're using a subordinate instrument to modify primary legislation. It's inexcusable that such a possibility should be written into the Regulations Act. I happen to think it is probably unconstitutional to do so, and I would hope the Supreme Court would find it contrary to the charter. But there it is.
Once again, in subclause 5(1):
- 5.(1) The Governor in Council may, by regulation, exempt regulations from the application of
the regulatory process.
I'm jumping a bit ahead. If you look at the sanction set out in subclause 9(2):
- (2) Notwithstanding subsection (1), the Clerk may refuse to register a regulation that was not
reviewed under section 7, but should have been.
Subclause 10(4):
- (4) No regulation is invalid because it was not published
Let me now jump to clause 16, on incorporation by reference. I appreciate that many organizations, trade associations, Canadian standards associations, have devoted enormous amounts of time to developing detailed standards for a wide range of activities and it would be an unnecessary duplication for a regulation-making authority to rethink, from the ground up, a regulatory structure when there is an adequate and thoughtful regulatory structure there in a trade area.
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Incorporation by reference is not in itself an evil. Incorporation by reference is an evil if it is a way of enacting norms that are not made bilingually, which is often the case; if it is a way of enacting norms that are not scrutinized properly by the deputy minister and that are not published properly; and, most importantly, look at subclause 16(5):
- (5) Material may be incorporated by reference as amended from time to time
- This is an ambulatory incorporation. This presumes that you can have a regulation that says,
``We incorporate the forest regulations of the Canadian Forestry Association,'' and lists them.
You think you've got a regime. The next day the Forestry Association can change the
regulations, and they have the force of law.
Two more points. I draw your attention to clauses 21 to 24. Already I had noted the possibility of a retroactive effect of regulations in 23(1)(a). What I would like to know is why one even contemplates the possibility of delegated legislation coming into force before it's published - not before it's made. Paragraph 23(1)(a) is beyond the pale. But I would like to know why you would want to set up, as your general cadre here, a principle that says regulations can come into force before they're published. As a statement of principle it's inexcusable.
Finally, clause 25:
- Every regulation stands permanently referred to any committee of the Senate, of the House of
Commons, or of both Houses
Not only does exemption from the regulatory process get you out of requirements of review, publication, and registration, it also subtracts that instrument from the purview, I believe, or the oversight of the parliamentary committee. I stand to be corrected on that, but that's how I understand what subclause 25(1) says.
In addition, subclause 25(2) incorporates 26(g), which is the capacity of the Governor in Council to make regulations exempting any regulation from publication, indexing, inspection and copying - in reference to the parliamentary committee. So not only is a whole range of delegated instruments not defined as a regulation and therefore exempted from all these processes, but even if you have something that four-square falls within the definition you've given, by regulation the Governor in Council can bang it out. On what basis? The conduct of federal-provincial affairs.
We all know that there's almost nothing that occurs in Canada that would not fit the definition of conduct of federal-provincial affairs. The conduct of international affairs, the defence of Canada.... I can buy defence, but the first two seem to me....
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If you want to exempt a bona fide regulation from the regulatory process, you should do it in a statute. You don't do it in a regulation itself. This is simply hiding the fact that you're hiding the ball.
I'm sorry to have been so aggressive in my presentation, but I realize that it's the end of the day and you're tired, and no doubt you've heard a lot of people tell you that this is a wonderful statute. I think that if I were the Minister of Justice I would be embarrassed, frankly, to have my name associated with a piece of legislation like this.
Thank you.
The Acting Chairman (Mr. Maloney): Thank you, Professor Macdonald.
Mr. Lebel.
[Translation]
Mr. Lebel (Chambly): Thank you, professor. We're sorry we made you wait so long. If you did wait so long it shows that you're very interested in this bill.
I won't come back to the points you mentioned, because we all understand them very well. I understand and share them, for the most part. You say that the French version of the bill is superior to the English. Could you briefly explain why? You didn't give any reasons.
Mr. Macdonald: Amongst the most severe criticisms of the old Statutory Instruments Act, it was said that the French and English used was difficult to understand and that the grammar and the syntax were not elegant. I find, from a purely linguistic and grammatical point of view the French version to be better written than the English. It's a matter of pure form.
Mr. Lebel: Fine. Thank you for having drawn our attention to clause 2(2)c) which provides that an Act of Parliament can be repealed by a regulation. I had noticed that myself, previously. This is really usurping the powers of the House of Commons. I'm making note of your recommendation on that and I commend you for your presentation. I find it quite satisfactory. I thank you. I have no further questions in view of the late hour.
[English]
The Acting Chairman (Mr. Maloney): Mr. Kirkby, don't you have any questions?
It would appear, Professor Macdonald, that your presentation has stymied the committee.
I would like the committee members to realize that Professor Macdonald has cancelled his class this evening at McGill to stay with us this evening. He has rearranged his schedule and we appreciate that very much.
We also appreciate the nature of your brief, the clarity with which it was written, and the constructive criticisms, as well as the points about the positive aspects of the bill. The points you have made will certainly be taken under advisement by the committee. They're actually very good points. We have heard favourable comments about the bill, but in some of the areas you've zeroed in on we have heard criticisms as well.
[Translation]
Mr. Lebel: Is it too late for another question]
The Chairman: Go ahead, Mr. Lebel.
Mr. Lebel: Other professors have come here before you. Do you know the Quebec's Statutory Instruments Act? I suppose so.
Mr. Macdonald: Yes.
Mr. Lebel: You know that the Quebec legislation provides for consultation beforehand. You haven't said anything about that. What do you think? May we ask you? I don't have the translation of your brief and I haven't read through the version I was handed. That's why we're going beyond the scope.
Mr. Macdonald: The main objective of my brief was to put forth the thesis that a statutory instruments act is, in a way, the Constitution governing regulations. So I strictly concentrated on those aspects of legislation where, in my opinion, the principle set out was wrong, where a brand new principle had to be formulated. I find there are many inconsistencies here.
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As for the matters concerning the idea of a consultation beforehand, I shall not say that all regulations must necessarily set such a process in motion. So I did not look at that aspect. If I were to enunciate a principle, I would try to identify a certain kind of regulation. I could be stipulated that for such or such kind of regulation a process should be provided for consultation beforehand. However, that is not part of the fundamental criteria I wished to point out.
Mr. Lebel: I understand. Thank you.
[English]
The Acting Chairman (Mr. Maloney): Is there anything else?
Professor Macdonald, thank you very much for being with us again. We apologize -
Prof. Macdonald: May I make a two-minute conclusion?
The Acting Chairman (Mr. Maloney): Certainly you may.
Prof. Macdonald: I strongly believe the time is right to have this bill. I'm not contesting the idea of this bill. And I strongly believe that the general structure of the bill.... You want review by experts within the Department of Justice. You want a registration process. You want a publication process. You want a reference to a standing committee. I believe all of that is on the right track, because this is the cadre, this is the basic structure.
What I find troubling is that the Constitution as established is shot so full of holes and exemptions and possibilities for skirting around it that it doesn't function as a Constitution. It's more like a wish list, and that's not what you want with an act as fundamental as this.
This is foundational for the delegated legislation process, and if it's foundational and you believe a principle to be important, you have to state it with some bite. You have to state it with some comphrensiveness. You have to put a heavy onus on anybody who wants to derogate from it. There must be substantial justification for that, and it's not present at all. That's the basic structure of my concern. It's not that the theory of the bill is wrong. I think what it's trying to do is right. It just doesn't do it with sufficient rigour.
The Acting Chairman (Mr. Maloney): Again, thank you very much.
We are going to adjourn to the call of the chair, which I understand will be until Monday at 3:30. That meeting will be in camera.
Thank you, gentlemen.