Guide to Making Federal Acts and Regulations

Chapter 1.2 - Legal Considerations

This chapter supplements section 2 of the Cabinet Directive on Law-making.

Federal Acts and regulations, and indeed federal law generally, form a single system. If a legislative proposal is to be implemented effectively, it must be expressed in legislation that takes the federal legal system into account and fits into it. A good understanding of this system is essential. This Chapter provides an introduction to its major elements, which consist of 4 groups of laws:

• the Constitution
• quasi-constitutional Acts
• Acts of general application
• rules of law that are of general application.

The significance of these laws varies. The Constitution is the most fundamental law. If another law is inconsistent with the Constitution, it has no force. The second group of laws are called quasi-constitutional because they too express fundamental values and they generally override other inconsistent laws. However, they are not subject to the rules for amending the Constitution since they can be amended by another Act of Parliament. The third and fourth groups include Acts and other rules of law that generally apply, unless another Act clearly says otherwise.

• The Constitution
• Quasi-constitutional Acts
• Acts of General Application
• Rules of law that are of General Application

All Government officials involved in the law-making process and other interested persons.

Officials involved in law-making activities must understand the legal framework for legislation and other government action.

The Constitution

Canada is governed by a Constitution that rests on British constitutional tradition and includes numerous Acts and orders in council. The Constitution Act, 1867 and the Canadian Charter of Rights and Freedoms are among the most important of these.

The Constitution Act, 1867 allows us to answer the question: "What can an Act deal with?" It establishes two levels of government in Canada: federal and provincial. Each exercises full legislative power over the matters within its jurisdiction. Constitutional law, as elaborated by court decisions, defines what these matters are, as well as their limits.

The Constitution also provides a number of rules that define the legal framework for making laws, for example, rules requiring the bilingual publication of Acts or governing the procedures of Parliament and the provincial legislative assemblies.

The Canadian Charter of Rights and Freedoms allows us to answer the question: "How can an Act deal with its subject matter?" It governs how legislative objectives may be achieved, rather than the matters that may be dealt with. The Charter imposes limits on government activity in relation to fundamental rights and liberties.

Because the Charter is part of the Constitution, Acts and regulations are ineffective to the extent that they are inconsistent with the Charter. It is legally possible for Parliament to override explicitly certain of the rights and freedoms guaranteed by the Charter. However, Parliament has never exercised this power and a government would obviously be extremely reluctant to propose a bill that would have that effect.

Another important part of the Constitution is Part II of the Constitution Act, 1982. It recognizes and affirms the existing aboriginal and treaty rights of the Aboriginal peoples of Canada.

The Minister of Justice is responsible under the Department of Justice Act for seeing that the administration of public affairs is in accordance with law. This responsibility includes ensuring that all government actions are consistent with the Constitution. Two specific mechanisms are in place for this purpose:

• the Cabinet Support System (See "Constitutional Issues and the Cabinet Support System" in Chapter 2.2)
• the certification of Government bills. (See "Certification of Government Bills" in Chapter 2.4)

It is also important to keep in mind that since the Quebec Act of 1774 Canada has had two systems of law: common law and civil law. The application of an Act may differ depending on whether it is being applied in a part of Canada that is governed by one system or the other. The common law applies throughout Canada in matters of government law. However, private legal relationships are governed by civil law in Quebec and by common law elsewhere. This has a number of effects, particularly on the sources of law and the interpretation of an Act.

Quasi-constitutional Acts

Besides the Canadian Charter of Rights and Freedoms, there are a number of "quasi-constitutional" Acts that can limit policy choices in the preparation of Acts and regulations. These Acts apply except to the extent that other Acts exclude their operation. Thus, as with the Charter, it is legally possible to override them, but this is very rarely done and those involved in the preparation of Acts and regulations should assume that the quasi-constitutional Acts will apply.

Whether the quasi-constitutional status of these Acts derives from one of their provisions or from court decisions, the justification for it is the same. These Acts express values that are very important in Canada. Any derogation from them must be explicit.

This requirement of explicit derogation protects the values expressed in those Acts to the maximum extent possible, short of entrenching those values in the Constitution. It also ensures accountability to the public for any decision to derogate.

The most important quasi-constitutional Acts are:

• Canadian Bill of Rights
• Canadian Human Rights Act
• Official Languages Act
• Access to Information Act.

The first of these quasi-constitutional Acts to be enacted was the Canadian Bill of Rights. It is a precursor of the Charter, recognizing and declaring a series of human rights and fundamental freedoms. The Minister of Justice's responsibilities in relation to the Bill are similar to those described above in relation to the Charter.

The Canadian Bill of Rights provides that every law of Canada is to be interpreted so as not to infringe the recognized rights or freedoms, unless it expressly says otherwise. The only explicit derogation from the Canadian Bill of Rights took place during the October Crisis. It was included in the Public Order (Temporary Measures) Act, 1970, which replaced the regulations made in 1970 under the War Measures Act.

The Canadian Human Rights Act is an important aspect of our national human rights protection. Human rights legislation sets out many of the fundamental values of our society. The Act itself prohibits discrimination in employment, services, contracts and accommodation.

In contrast to the Canadian Charter of Rights and Freedoms, which protects individuals primarily against acts committed by governments, human rights legislation protects against discriminatory acts committed by the federal government, businesses and individuals in areas of federal jurisdiction. The Act applies to such areas as telecommunications, banking and interprovincial transportation and was designed to provide an informal, expeditious and inexpensive mechanism for the resolution of human rights complaints.

The courts have recognized that Acts dealing with human rights prevail over other legislation. The Canadian Human Rights Act therefore prevails over other federal Acts.

The purpose of the Official Languages Act is to ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions. It particularly applies with respect to the use of the official languages in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions. This Act also supports the development of English and French linguistic minority communities and generally advances the equality of status and use of the English and French languages within Canadian society.

Section 82 of the Official Languages Act says that Parts I to V prevail over all other Acts, except the Canadian Human Rights Act.

The Access to Information Act provides a right of access to information in records under the control of federal government institutions. The right is provided "notwithstanding any other Act", but it is subject to certain exemptions, including those for:

• information obtained in confidence from another government;
• personal information;
• trade secrets and other confidential information supplied by a third party; and
• information whose disclosure is restricted by certain Acts of Parliament, such as the Income Tax Act.

Refusals of access may be reviewed by the Information Commissioner, who can make recommendations to a head of a federal government institution and report to Parliament. Also, the Information Commissioner or a person who requests access to information can apply to the Federal Court for a review of the matter.

The Access to Information Act provides specific solutions to problems of reconciling a right of access to government information with the need to keep some information confidential or secret.

Unjustified proposals to circumvent the Act can not only cause difficulty for sponsoring departments in having Acts enacted by Parliament, but can also lead to anomalies in the law and the eventual ineffectiveness of the Access to Information Act. Any proposal to exempt information from the operation of that Act should be brought to the attention of the Information Law and Privacy Section of the Department of Justice.

Acts of general application

Besides the Constitution and quasi-constitutional Acts, a number of other Acts can limit policy choices in the preparation of bills. These other laws apply except when some other law excludes their operation. They differ from quasi-constitutional Acts in that they do not express values that are as fundamental and so it is easier to exclude them. These Acts affect the preparation of bills in two ways.

First, because courts presume that they apply except when some other Act says otherwise, provisions excluding their operation must be drafted explicitly.

Secondly, drafters presume that there has been no political decision to exclude one of these Acts if no such decision is mentioned in the Cabinet Record of Decision. Instructing officers who wish to override this presumption bear the burden of persuading their minister that a recommendation to that effect should be included in the ministerial recommendations section of the Memorandum to Cabinet (MC). Ministers who are persuaded to do so will have to justify their decision to Parliament and the public.

Like the Constitution and the quasi-constitutional Acts, these presumptively applicable Acts support values found in Canadian society. Policy makers can rely on the solutions that these Acts provide instead of having to develop their own solutions. Departmental legal advisers and drafters in the Legislation Section of the Department of Justice can provide assistance in this regard.

The requirement to explicitly exclude these Acts in other Acts or regulations and in Cabinet Records of Decision:

• protects those values;
• ensures that ministers and, ultimately, parliamentarians decide whether other values are more important in the circumstances under consideration; and
• helps to ensure that public servants do not inadvertently create political controversy.

Those involved in the preparation of bills will take into account the requirement of explicitness so as to ensure that any political decision to exclude the operation of a presumptively applicable law is legally effective.

Finally, it is often undesirable in Acts and regulations to provide specifically for the application of a rule that already applies generally. Such a provision may cast doubt on the application of the rule in other Acts or regulations. Alternatively, it may tempt the courts and others to assign some other unintended meaning to the particular provision, since the courts assume that every provision has some legal effect and is intended to do something rather than nothing.

The most important Acts of general application are:

• Criminal Code
• Financial Administration Act
• Interpretation Act
• Privacy Act
• Statutory Instruments Act.

The Criminal Code not only creates criminal offences, it also deals with the investigation and prosecution of offences. For example, it authorizes the issuance of search warrants and states the rules of procedure for laying charges and conducting trials. In addition, Part I of the Code states many fundamental rules of criminal law dealing with such things as the presumption of innocence (section 6), excuses, justifications and defences to charges (section 8) and liability for attempting to commit an offence or participating in its commission. Part XXIII sets out principles and procedures governing the imposition of sentences for offences.

Subsection 34(2) of the Interpretation Act provides that the Code applies to all offences created by a federal Act or regulation (unless it otherwise provides).

The following are examples of provisions in the Code whose duplication in particular cases may turn out to have unintended consequences:

• rules that extend liability for the commission of offences to persons who attempt to commit them or participate in their commission;
• the power to obtain a search warrant from a justice of the peace where there are reasonable grounds to believe that an offence has been committed; and
• the power to obtain a "telewarrant" from a justice of the peace where it is not practical to appear personally before the justice.

The Financial Administration Act provides the legal basis for the Government’s financial management accountability. For this purpose, it contains:

• provisions governing public money, including public spending and keeping the accounts of the Consolidated Revenue Fund;
• the legal framework for the maintenance and control of public property by public servants;
• the legal framework for managing the public debt;
• general provisions that apply to Crown corporations.

The Act also establishes two departments: the Department of Finance and the Treasury Board. The Treasury Board is given wide powers to administer the federal public service, including powers relating to the management of human resources.

Because this Act is a basic law that supplements other laws, those involved in legislative projects should understand it well in order to avoid needlessly duplicating its provisions. For example, new legislation should not duplicate the provisions of the Act that authorize fees to be prescribed for government services or facilities (section 19ff.). Similarly, provisions for the payment of interest on debts to the Government need not be included because they are also covered (section 155.1).

Interpretation Acts were originally enacted to avoid the repetition of rules that are commonly included in individual Acts. Rather than repeat the rules each time a new Act is drafted, they were collected into a single Act that says they apply generally, except when another Act or regulation provides that the rule does not apply.

The rules contained in the Interpretation Act cover;

• how legislation operates in terms of when it comes into force (section 6) and where it applies (section 8);
• definitions of commonly used terms such as "corporation" or "year" (sections 35 to 37);
• other interpretational rules, for example, that references to nouns in the singular include the plural (subsection 33(2)) and transitional rules that apply when legislation is amended or repealed (sections 42 to 45));
• administrative rules, for example, about the issuance of proclamations (section 18), the administration of oaths (section 19), appointments (section 23), and the exercise of powers, including the delegation of powers (section 24).

The following are examples of Interpretation Act rules whose duplication in particular cases may turn out to have unintended consequences:

• the power of departmental officials to exercise, on behalf of the minister presiding over that department, powers conferred by law on that minister;
• the power of regulation-making authorities to amend or repeal regulations;
• the power of appointing authorities to terminate appointments and to remove, suspend, re-appoint and reinstate public officers; and
• the survival of rights that vested under an earlier Act or regulation and other rules respecting the temporal operation of Acts and regulations.

The Privacy Act protects the privacy of individuals with respect to personal information about themselves held by federal government institutions, and provides individuals with a right of access to that information. Refusals of access may be reviewed by the Privacy Commissioner, who can make recommendations to a head of a federal government institution and report to Parliament. Also, the Privacy Commissioner or a person who requests access to information can apply to the Federal Court for a review of the matter.

Unjustified proposals to circumvent the Privacy Act present the same concerns as proposals to circumvent the Access to Information Act and should be brought to the attention of the Information and Privacy Law Section of the Department of Justice.

The Statutory Instruments Act provides for the examination, registration, publication and parliamentary scrutiny of regulations. A fundamental principle of Canadian law is that everyone is presumed to know the law. This principle cannot be accepted or be effective unless it is supported by a system that enables those affected by a law to have reasonable access to it. The Statutory Instruments Act provides a means of making regulations public by requiring them to be registered with the Clerk of the Privy Council and published in the Canada Gazette Part II. (See "Making Regulations" in part 3).

Bills containing powers that are to have effect as law are usually drafted so that the exercise of those powers will result in a "regulation" for the purposes of the Statutory Instruments Act.

The publication requirements of the Statutory Instruments Act are not always appropriate. However, drafters will take issue with proposals to get around the Act if there is clearly no effective system in place under a law to make it known in both official languages to those affected by it. The justification for any derogation from the Act must therefore provide alternative solutions to the problems that the Act resolves. For example, the MC should explain what steps will be taken to:

• publicize a document that is to have effect as law if it will not be registered or published under the Act;
• ensure that the document is legally effective;
• make the document available to Parliament.

Legal principles of general application

In addition to rules stated in Acts of general application, there are also a number of important principles that form part of the legal system. They operate in much the same way and must also be taken into account in developing legislative proposals. The following are examples of these principles:

• the rules of natural justice and procedural fairness, which require that a person whose rights or interests are affected by an administrative decision be given a reasonable notice of the proposed decision and an opportunity to be heard by an unbiased decision maker;
• respect for the ordinary jurisdiction of the courts, including the jurisdiction of the Federal Court of Canada under the Federal Court Act to hear and determine an application for judicial review in which relief is sought against a federal board, commission or other tribunal;
• the prospective operation of Acts of Parliament and regulations, which limits retroactive interference with rights;
• the principle that Acts of Parliament and regulations generally have effect throughout Canada, including the internal waters and the territorial sea, but not outside Canada;
• respect for and compliance with Canada's treaty obligations and Canada's other obligations under international law;
• the principle that property should not be expropriated without compensation;
• the requirement that one must have a guilty mind in order to be guilty of an offence; and
• the need to be very clear when providing that a person is to be penalized for contravening an Act or regulation since the courts give them the benefit of the doubt when penal provisions are ambiguous.

Despite the applicability of a general principle, it is sometimes not good legislative policy to silently rely on it. For example, the requirement of notice is an important element of the rules of natural justice. If the Act is silent, the courts may have to determine which persons have a sufficient interest in a proposed decision to be entitled to notice of it and how much notice those persons are entitled to. It is often preferable for an Act to answer these questions specifically.

Another example relates to the requirement that one must have a guilty mind in order to be guilty of an offence. The law distinguishes between true crimes, where the required mental element of the offence is knowledge or intention, and strict liability offences, where the offence has no mental element as such, although there is a defence of due diligence. (A third class of "absolute liability" offences, where there is no defence of due diligence, is not relevant here.)

If the Act is silent, the courts may have to determine whether an offence is a true crime or a strict liability offence. It is sometimes preferable for an Act to answer this question, especially where the same Act contains both true crimes and strict liability offences. A common instance of this occurs when a regulatory Act contains mainly strict liability offences but also offences of obstructing enforcement officers and providing false or misleading information. These offences should be specified as true crimes through the use of words such as "willfully" or "knowingly" because they are akin to Criminal Code offences prohibiting similar conduct.

In answering these kinds of questions specifically, policy making is guided and structured, rather than limited, by presumptively applicable principles.

There is a difference between specifying what would otherwise be uncertain and merely duplicating a rule of law that is applicable in any event. If the rule of general application does not need to be expressed, then expressing it is not only useless, but possibly dangerous, because it may cast doubt on the application of the rule in other Acts.

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