Understanding the regulation making process.

• Author: Salembier, Paul

The first part of this article provides an overview of the regulation making process of the Government of Canada. It examines the kinds of documents that are associated with that process and discusses the difference between the substance of what is found in an act and a regulation. The second part discusses the role of the Standing Joint Committee for the Scrutiny of Regulations, its jurisdiction, its working procedures, and its powers.

Paul Salembier (Justice Canada): The idea for a regulation starts in the sponsoring department. It is charged with developing the policy behind the regulation, including preliminary consultations with stakeholders, members of the industry and the public in general.

The department will then get internal approval for its policy. Formerly this was required to be done at the Deputy Minister level, and has now been delegated to the person in charge of the subject-matter of the regulation.

The department then sends a request over to the Department of Justice to examine the regulation under the Statutory Instruments Act. In fact the job description of the Regulation Section of Justice is written out in subsection 3(2) of that Act.

What the Act requires is first that the Deputy Minister of Justice ensure that every regulation is within the power of the statute under which it is made. Secondly, it says the regulation must not constitute an unusual or unexpected use of the regulation-making power. Thirdly, we check to see if the regulation is in compliance with the Charter and the Canadian Bill of Rights and that it does not unduly infringe on the liberties of Canadians. Fourthly, we have to be sure that the regulation is in proper legislative language. In practice this means regulations are usually largely rewritten by the time they leave the Department of Justice. Drafting is a unique style of writing and requires a very formal organisation of material. Normally, when officials of a client department put their ideas in writing, the ideas come to us in a very informal form.

Next the Department of Justice does something called "blue-stamping" of the regulation. If you work for a Minister you may see copies of regulations that have a blue stamp. This means that they have been seen by the Department of Justice. It should be noted that Justice does not hold out the stamp to be certification that the regulation is in compliance with the statute, the Charter or the common law.

If the Department of Justice has concerns regarding the legality of the regulation (for example, whether Cabinet has the authority to make the regulation in question), those concerns are conveyed to the instructing officer in the department sponsoring the regulation. That officer then decides whether to bring those concerns to the attention of their own Minister who in turn will decide whether to bring them to the attention of Cabinet.

Sometimes, but not always, there is a Department of Justice legal officer from the departmental legal services unit involved. That lawyer may decide, when a file is going to a Minister for signature, to note any legal concerns.

Under the Statutory Instruments Act, the Deputy Minister is required to advise the Clerk of the Privy Council about legal concerns. In practice this is only done if there is virtual certainty that the authority does not exist for the proposed regulation. Virtual certainty is a rare thing. Only about four times in the last twenty years has the Clerk of the Privy Council been so advised.

When the regulation leaves the Department of Justice, it goes back to the sponsoring department. When the department has received ministerial sign-off, they forward the proposed regulation to the Privy Council Office, which reviews the regulatory package, including what is called the Regulatory Analysis Impact Statement (RIAS) and the communications plan. The regulation then goes to Cabinet, which wants to see it at the proposal stage to approve it from a policy perspective. They will then approve it for pre-publication. The Privy Council Office usually wants to see the documentation 10 days before the Cabinet meeting.

Some statutes require that a regulation be put out for public comment before it can be made. Such statutes normally set a period of 45 or 60 days for comment. Most of the regulations are pre-published as a matter of policy. The government wants to make sure that the Canadian public is aware of what the executive branch is planning. Before they make the regulation, Cabinet wants to know that the public was informed and the regulation was made available for comment. Normally the Cabinet sets a 30-day period for public comment.

What happens after pre-publication? It is possible that after public comments are received the whole regulation has to be rethought, in which case it is possible that Cabinet will require it to be pre-published again. However, if the changes are minor, the regulation will go forward without a requirement to pre-publish again.

Departments can request an exemption from pre-publication. This exemption can be statutory or policy-based. The odd statute will say that a regulation is not required to be pre-published but most exemptions are policy-based. Policy-based exemptions are given only on very limited grounds. In fact, the department does not actually apply for an exemption, although people speak as if they do. Instead, they forward their regulations to Cabinet and say, in effect, "we have not pre-published this, but these are our reasons for wanting our regulations made right away without public comment". Some of the reasons that allow departments to short-circuit the system are emergency situations, where there are risks to health, safety or the environment, cases of political sensitivity, or where pre-publication would cause adverse effects or undermine the intent of the regulation. Exemptions may also be granted for minor changes such as correction of grammatical errors or French-English inconsistency, and for repetitive regulations, such as where board members have to be appointed every two years. These will be routinely exempted from the requirement to pre-publish.

Following Cabinet approval for pre-publication, the regulation goes to the Canada Gazette. Proposed regulations are published in Part I of the Gazette. Parliamentarians receive the Canada Gazette automatically, free of charge. Part I contains official government notices and copies of proposed regulations. Once the regulations have been pre-published in the Canada Gazette, the sponsoring department collects and reviews the public comments and makes any necessary changes to the regulation. If there are any changes that need to be made, then they go back a few steps in the process and re-submit those changes to the Department of Justice for examination (this includes blue-stamping again).

Once the department receives the final set of regulations that are blue-stamped, they again forward them to the...