Government reorganization and the transfer of powers: does certainty matter?

AuthorMalkin, Alissa

This article explains the process currently used by the federal executive to reorganize itself, then questions whether the resulting transfer of responsibility between ministers of the Crown for the exercise of statutory powers is sufficiently transparent. It explains that the method used to reorganize the federal public administration often results in a transfer of legal authority for the exercise of statutory powers from one minister to another. However, this occurs in a manner that may be very difficult to trace. Following a reorganization of government, it may be difficult to ascertain which minister of the Crown has legal authority and responsibility for the exercise of powers that may have important effect on individual rights or interests. It argues that this offends the principles of the rule of raw and responsible government, and concludes by suggesting some avenues of possible reform.

Cet article decrit la procedure qu'utilise actuellement l'executif federal pour restructurer son administration et cherche a determiner si le transfert de responsabilites qui s'ensuit entre les ministres dans l'exercice des pouvoirs conferes par la loi est suffisamment transparent. L'auteur explique que cette methode de restructuration de la fonction publique federale entraine souvent un transfert d'un ministre l'autre, et pas toujours tangible, de l'autorisation legale d'exercer des pouvoirs conferes par la loi. Apres une reorganisation administrative, il peut etre difficile de dire avec certitude quel ministre federal est legalement autorise et responsable d'exercer des pouvoirs qui peuvent avoir des repercussions importantes sur les droits ou les interets individuels. L'auteur soutient que cela entre en conflit avec les principes de la primaute du droit et du gouvernement responsable, puis suggere en conclusion quelques avenues de reforme possibles.

Table of Contents I. INTRODUCTION II. FORMING NEW GOVERNMENT BODIES BY ORDER IN COUNCIL A. Designation of a "Department" B. Transfers of "Control or Supervision" C. Integration Into the Rules Governing the Federal Public Administration D. Example: Canada Border Services Agency E. Government Reorganization III. REORGANIZATION AND THE TRANSFER OF POWERS A. The Carltona Principle B. What Happens to Statutory Powers When Government is Reorganized? C. Section 3 of the PSRTDA: Transfer of Powers by Operation of Law D. Caselaw on Section 3 of the PSRTDA IV. TRANSPARENCY A. Tracing the Transfer of Powers B. Example: Proceeds of Crime (Money Laundering) and Terrorist Financing Aa C. Varying Degrees of Certainty V. DOES LEGAL CERTAINTY MATTER? A. Certainty in the Conferral of Ministerial Powers B. The Rule of Law C. Responsible Government D. Does Certainty Matter? E. Possible Reform VI. CONCLUSION I. INTRODUCTION

Federal government reorganizations are not an infrequent occurrence, and the last few years have witnessed a number of them. Parts of one department are merged with parts of other departments to form a new department or agency, or responsibilities for programs are moved from one minister to another. Reorganization can be on a small scale, involving only a couple of portions of government, or it can be very extensive, such as the large-scale reorganization of December 12, 2003.

Despite the fact that, historically, the Crown possesses a Royal Prerogative power to organize (and hence re-organize) government, the organization of government in Canada has generally had a statutory framework. (1) Since Confederation, federal government bodies have most often been created by Parliament. Traditionally, changes to these administrative structures have been made by statute also. (2) Nevertheless, at times there is a perceived need to make changes more quickly than the legislative process would permit. In recent years, much use has been made of a technique, at least in the short-term, of forming new government bodies out of previously existing units of government. Using powers granted under statutes such as the Financial Administration Act (3) and the Public Service Rearrangement and Transfer of Duties Act (4), the federal Executive can carve pieces or sections out of existing departments, move them around and recombine them into functioning new government bodies. In this manner, new organizations can be formed and reorganization of government accomplished on any scale.

When this method is used, the legislative trail becomes a collection of Orders in Council--sometimes overwhelming in number published in the Canada Gazette, Part II. Piecing together the numerous orders involved in a reorganization, such as that of December 12, 2003, in order to understand what was accomplished might seem a bewildering task--particularly as the technique employed and the import of each step is nowhere set out systematically or explained in a publicly available document. (5) The discussion that follows, setting these steps out in some detail, is in part an attempt to redress this gap.

Like the organization of government, the powers and duties exercised by government officials also have primarily a statutory basis. Government action, insofar as it affects rights and interests of third parties, must have a basis in law. While government has a limited ability to act under the Royal Prerogative, for the most part the powers exercised by government officials are conferred by or under statute. As such, they can be exercised only in accordance with, or as contemplated by statute. Courts, in their role as guardians of the rule of law, will ensure that government acts in accordance with statute, which may include verifying that someone purporting to exercise a statutory power actually has the authority to do so. Federal statutes are clear as to the individual or office on whom statutory powers are conferred, and this provides a starting point for tracing the chain of authority from Parliament's initial delegate to the official who exercises the power in any given case.

As this article will show, when government is reorganized by the Executive using Orders in Council transferring and combining existing units of government, the legal authority and responsibility for the exercise of certain statutory powers will move also, by operation of law, between ministers or other officials. This movement of powers occurs in a manner that may be difficult for anyone but a court to trace. Following a reorganization of government, it might therefore be difficult for people to ascertain which minister has the legal authority and responsibility for any given statutory power. Does this matter? Is this discordant with other important aspects of our legal structure?

This article has two purposes. The first is to set out and explain the process used to reorganize the federal government and form new departments out of previously existing components. The second is to discuss the implications of this method in terms of the statutory powers exercised by officials in the reorganized branches of government, and to raise some questions about this in the context of our broader legal structure.


    As noted, most government bodies are created by statute. However, within departments and other statutorily created bodies exist a myriad of branches, divisions, sections, and the like that are not established in a formal, legal manner, but rather are formed administratively according to operational needs. Using powers granted under statutes such as the FAA and the PSRTDA, these smaller units can be carved out of departments, moved around and even re-combined into new government bodies. In a sequence of moves, each authorized by statute and effected by Order in Council, even large-scale reorganizations can be carried out in a series of small steps. (6) There are three main types of steps employed.

    1. Designation of a "Department"

      Conceptually, the first step taken by the Executive in forming a new government body out of pre-existing units of government is to select a single branch or division of an existing department and designate it as a "department" for the purposes of the FAA This is done by Order in Council under section 3 of the FAA, which authorizes the Governor in Council to add to Schedule I. 1 the name of any division or branch of the federal public administration, with a reference to its "appropriate minister." (7) Adding a branch of an existing department to the Schedule has the effect of severing it from its parent department. It is then a department in its own right for the purposes of the FAA. This gives it a recognizable status within the statutory framework governing the organization of the federal public administration and makes it subject to the federal financial administration regime.

      The minister responsible for the new "department" is the minister who presided over the parent department from which it was removed, and this will be indicated in Column II of the Schedule. However, often the decision is to have a different minister assume control of, and responsibility for, the new entity being formed. This change is then effected under the PSRTDA

    2. Transfers of "Control or Supervision"

      The PSRTDA is an extremely short and somewhat obscure statute, enacted in 1918. Once employed to make narrow, focussed adjustments to existing departments and the mandates of ministers, it has been used increasingly in recent years to effect numerous and at times sweeping changes in the structure of government. Section 2(a) authorizes the Governor in Council to transfer any powers, duties or functions, or the control or supervision of any portion of the federal public administration, between ministers or between portions of government. (8) Section 2(b) authorizes the Governor in Council to amalgamate and combine any two or more departments. (9)

      Amalgamations of departments have been carried out only rarely. (10) Transfers of powers and duties between ministers or portions of government...

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