Guide to Making Federal Acts and Regulations

Particular Legal and Policy Considerations

When preparing legislative proposals, consideration should be given to the legal framework (See Chapter 1.2, "Legal Considerations") as well as Government policies, such as:

• 1999 Cabinet Directive on Environmental Assessment of Policy, Plan and Program Proposals, Canadian Environmental Assessment Agency http://www.ceaa-acee.gc.ca/0012/0006/sea_e.htm;
• Regulatory Policy, approved by the Treasury Board in 1995: http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&page=publications;
• Federal Gender Equality Action Plan, approved by the Cabinet in 1995,
• Cabinet Directive on Law-making, approved by the Cabinet in 1999;
• Federal Identity Program: 
  http://www.tbs-sct.gc.ca/Pubs_pol/sipubs/TB_fip/siglist_e.html

This legal and policy framework raises a number of particular considerations, which are described below. They are grouped under three headings:

• Constitutional Issues and the Cabinet Support System;
• Proportionality of Sentences for Offences;
• Enforcement Powers.

To ensure that constitutional issues (including the Canadian Charter of Rights and Freedoms) are properly taken into account in proposals for new programs or Acts, the Clerk of the Privy Council instituted the Cabinet Support System, with the support of the Department of Justice. The System requires all Memoranda to Cabinet (MCs) to include an analysis of the Charter and other constitutional implications of any policy or program proposal. The Clerk of the Privy Council wrote to all deputy ministers on June 21, 1991, for the purpose of implementing the System.

One of the reasons for the System is that successful Charter challenges in court can result in legislative provisions being struck down or program benefits being extended with significant financial costs to the Government. Another reason for the System is to avoid difficulties in federal-provincial relations. Also, experience has shown that litigation and other legal costs are frequently overlooked when officials estimate the costs of proposals.

The System requires that the Analysis section of each MC address:

• whether the proposal is likely to be subject to serious challenge on constitutional (including Charter) grounds and, if so,

• the risk of successful challenge,
• the impact of an adverse decision, and
• the possible costs of litigation, to the extent that they can be estimated;

• whether the proposal raises division of powers issues that are likely to be sensitive in the current federal-provincial context; and
• whether the proposal would have a significant impact on other federal legislation, and if so, which ones.

• whether the proposal would have a significant impact on other federal legislation, and if so, which ones.

If the constitutional implications will be minimal, a simple statement in the MC to the effect that they have been considered and been found to be insignificant would suffice.

If the legal implications are significant, a summary of the analysis should be included in the MC in the same way that analysis of any other significant factor is addressed. These significant implications should then be taken into account in formulating the recommendations to ministers.

If acceptance of a proposal would result in increased demands for legal services and require additional personnel or funding, this should also be included in the MC as a specifically identified part of the overall resource implications of the proposal.

Departmental legal advisers have primary responsibility for assisting their clients with the legal analysis. They are supported in their role by the Public Law and Central Agencies Portfolio of the Department of Justice, which has special expertise in constitutional issues and provides detailed assessments of these issues.

Although the Cabinet Support System is specifically concerned with MCs, its objectives apply throughout the policy-development process. Assessment of Charter implications for policy proposals neither begins nor ends with the MC process. Charter issues can be identified and risks mitigated well before an MC is drafted. Also, MCs are generally written at a high level of generality and principle. Drafting the fine details, such as administrative or regulatory arrangements, can result in new Charter issues being identified after an MC has been approved. Thus, assessment of constitutional and Charter risks must take place throughout the policy-development process.

The principle of proportionality of sentences for offences requires the severity of punishments to reflect the relative seriousness of offences. No two offences of comparable seriousness should be punishable by maximum punishments of substantially different severity. Likewise, offences of manifestly disparate seriousness should not attract the same maximum punishment. An Act should provide for different punishments for breaches of different provisions, unless all breaches are of comparable seriousness.

Departments contemplating the enactment of new offences should consult with the Department of Justice, initially through their departmental legal advisers, as early as possible in the policy making process to ensure that the penalty provisions applicable to the offences are consistent with those governing similar conduct in other Acts.

In determining the maximum punishment appropriate for an offence, the Department of Justice considers the following criteria, which were approved by the Cabinet Committee on Human Resources, Social and Legal Affairs in 1991.

• Does the offence involve risk of harm or actual harm?
• If so, is the harm to human life, health or safety? To property? To the environment?
• Is the harm short-term or long-term?
• Is it easily reparable?

The greater the harm or potential harm, the greater the need to deter the conduct giving rise to it and, therefore, the greater should be the punishment imposed on conviction.

• Is the misconduct difficult to detect?
• Is it detectable on routine inspection?

Since detection itself often acts as a deterrent to misconduct, an offence that is unlikely to be detected should be subject to greater punishment.

• Does the misconduct result in cost savings or profits for the defendant?

Misconduct that has economic value for the defendant will be more difficult to deter than other types of conduct. If the punishment is to deter non-compliance, it must exceed the savings or profit that may be realized by non-compliance.

In addition to these general criteria, consideration is given to aggravating factors that may increase the appropriate punishment in a given case. These are characteristics of the offence that cannot be known in advance; they will vary from case to case. However, the maximum punishment for a given offence should be assigned after considering the worst case in order to ensure that the sanction can have a deterrent effect on the violator and others. Mitigating factors can be taken into account by the sentencing court.

Aggravating factors are:

• previous convictions;
• failure to co-operate in the investigation or to abide by previous orders or warnings;
• harm caused to particularly vulnerable victims;
• duration of non-compliance;
• intention, knowledge or recklessness regarding non-compliance and its consequences;
• involvement of high-level management;
• actual costs saved or profit realized; and
• actual risk created or actual harm caused.

When considering the enactment of new enforcement powers, consideration should be given to:

• Guidelines for Granting Enforcement Powers under Federal Legislation;
• Principles for the Attribution of Federal Enforcement Powers.

These guidelines and principles are reproduced below.

Consideration should also be given to developing a compliance and enforcement policy for the purpose of implementing any enforcement powers that may be granted.

Sponsoring departments should also consult with the Department of Justice, initially through their departmental legal services units, as early as possible in the policy making process to ensure that the enforcement powers are consistent with those governing similar conduct in other Acts.

The following guidelines for granting enforcement powers under federal legislation were approved by the former Interdepartmental Committee of Deputy Ministers Responsible for Federal Law Enforcement.

1. Every federal statute should provide for and clearly define the powers required to ensure compliance with it.

An analysis of existing enforcement powers indicates that the number and nature of such powers are often inappropriate in terms of the defined mandate and required activities. In some instances the powers were conferred by a generalized reference to another statute, for example. "have for the purposes of this Act the powers of a police constable." Presumably the link is to the Criminal Code where the definition of peace officer includes a "police constable" with the status that definition implies.

To the greatest extent possible, powers should be contained in the statute concerned. However, the attribution of powers by reference to another statute may be deemed appropriate for reasons such as avoiding duplication of voluminous material on a multiple basis (and the inherent problems in its subsequent amendment). To be clearly defined, attribution by reference must avoid wide—sweeping generalities and be done with a precise reference to the statute concerned, for example, "have for the purposes of this Act the power to issue an appearance notice in accordance with section 496 of the Criminal Code." Powers will not be attributed in regulations; however, the activities derived from an attributed power may be set out in regulations.

The powers granted to enforcement officers should be sufficient to allow for the proper enforcement of the legislation for which the department has a mandate. Departmental officers and legal advisers must ensure that these powers are not excessive for the mandated task and do not arbitrarily or unreasonably interfere with individual rights and freedoms. These powers should be based on conditions or scenarios which have a reasonable probability of occurrence.

2. Enforcement powers, including the terms and conditions on which they may be granted and exercised, must be compatible with the Canadian Charter of Rights and Freedoms. In the granting of enforcement powers and the activities which flow from those powers, there must be an overriding consideration and recognition of the degree to which the Charter restricts Government's right to impose limits on individual freedoms.

3. Peace officer status or a similar approach to providing a general category of powers should be granted only to officials whose statutory duties include the enforcement of the Criminal Code, the Controlled Drugs and Substances Act and the Food and Drugs Act.

The intent of having an appointment such as "peace officer" is to provide the powers required for the maintenance of the public peace or local harmony. Originally, English criminal laws were intended to preserve the peace, and gave peace officers powers of arrest, detention and appearance.

The use of the term "peace officer" in legislation to describe either the status or powers of enforcement officers can cause confusion among officers concerning the extent of their powers and differing conceptions about the reach of their authority. This use of general powers could result in unwarranted and undesirable mandate expansion and overlap into areas in which another agency may have a more clearly established mandate and jurisdiction.

In the framing of the guideline, the original proposal was to limit the status of peace officer to those whose statutory duties relate to the enforcement of the "criminal law." The broad interpretation of that term would seem to take it beyond the tasks expected to be performed by a peace officer. For example, certain aspects of income tax, competition and consumer legislation may be viewed as criminal law.

Notwithstanding that statutes such as these may be regarded as "criminal law" and in many instances their violation has serious economic consequences for the nation, they are not directly related to the daily continuum of peace, good order and the expectation of quiet enjoyment. The enforcement of those matters can be effected by a law enforcement officer who has the necessary background of experience or professional qualification to identify, investigate and document a violation and ensure appropriate measures are undertaken. Peace officer status is not required to enforce those laws effectively. Enforcement officers may at their discretion seek support of a peace officer to minimize the potential for violations of the public peace during activities associated with the application of their own powers.

This guideline provides peace officer status only to those whose duty involves responsibility to enforce the Criminal Code, the Controlled Drugs and Substances Act and the Food and Drugs Act. These are considered to relate primarily to the public peace as described above.

In the granting of status as a peace officer or assigning peace officer powers, it will also be necessary to establish whether that status or those powers can be limited by the conditions for which they are required, for example, territorially, functionally or by class of person. Officers specifically appointed as peace officers in certain circumstances must exercise their powers within the limits mentioned in the legislation.

Reference is made to the judgment of the Supreme Court of British Columbia:

There are several categories of persons defined by s. 2 [of the Criminal Code] as peace officers ... Customs and excise officers are police officers (this means that they have the powers of a peace officer) when performing their duties under the Customs Act or the Excise Act. Their powers as police officers are not limited territorially, but are restrained functionally to the exercise of such powers as may be necessary in the performance of duties in administering those Acts. The same applies to fishery officers under the Fisheries Act, and to the pilot in command of an aircraft. None of these is empowered by the definition section or otherwise to act as a police officer for the purposes of the Criminal Code except in relation to specified duties. Outside of those duties they are civilians. (See R. v. Smith (1982), 67 C.C.C. (2d) 418, 427, appeal dismissed (1983), 2 C.C.C. (3d) 250, B.C.C.A.)

All decisions which reflect that the status of peace officer is merited shall be further assessed to determine if they should be limited by functional conditions, class-of-persons conditions or territorial conditions.

4. Every statute that provides for the granting of enforcement powers should set out appropriate review and redress procedures for persons affected by the exercise of the power provided in that statute.

Review and control procedures are imperative in the exercise of enforcement powers for the benefit of both those affected by the exercise of the powers in the statute as well as the officers required to undertake the activities and decisions associated with its enforcement. When powers are granted which affect the rights and freedoms of an individual in any way, ranging from arrest, entry to their premises, limiting their right to engage in either licensed or unlicensed activity or as a result of a decision not to act or sustain a complaint, the statute concerned must contain provisions to allow for a review or redress of the particular action which has been taken or is perceived to have been taken. This process of review or redress should be based on clearly established, well-understood accountability procedures related to internal supervisory control of enforcement actions of all officers as well as to third party review and investigation of the conduct of officers holding peace officer status or exercising peace officer powers in the enforcement of the statute. These procedures should as a minimum meet the FLEUR Guidelines Respecting Accountability Systems and Controls approved by the Committee of Deputy Ministers Responsible for Federal Law Enforcement dated May 1991.

5. Every statute that provides enforcement powers should provide and clearly define the protection(s) that officers require to fulfil their enforcement responsibilities.

In recent reviews it has been noted that some departments and agencies seek peace officer status for their officers solely in the belief that this is the only means whereby the officers may have the required protection in the execution of their duties.

Protections should not be conferred by a generalized reference to another statute in statements such as "have for the purposes of this Act the protections enjoyed by a peace officer."

To the greatest extent possible, protections should be contained in the statute concerned; however, where reference is deemed appropriate for reasons such as avoiding duplication of voluminous material on a multiple basis (and the inherent problems in its subsequent amendment), the granting of protection by reference is acceptable. It must, however, avoid wide sweeping generalities and be done with a precise reference to the statute concerned. Protection must be confined to that which is fully justifiable in terms of what is necessary and useful in the protection of the enforcement officer in the performance of the enforcement activity.

The following principles for the attribution of federal enforcement powers have been approved by the Interdepartmental Committee of Senior Enforcement Officials and must be respected in relation to the attribution and exercise of federal enforcement powers.

The legal framework of power

1. Provisions of the law which grant enforcement powers must be clear and unambiguous.

2. Before any person is permitted to exercise enforcement powers, organizations must ensure they are fully aware of the legal responsibilities inherent in their appointment. The justification to utilize such power must be based on a statutory or common law authority.

3. The nature and degree of any enforcement powers conferred shall be no more than is necessary to achieve the mandated task and shall be based upon conditions and scenarios which have a reasonable probability of occurrence. The overall powers of a peace officer do not accrue as an automatic entitlement and are limited to the particular mandate. The attribution of powers shall comply with the Guidelines for the Granting of Enforcement Powers under Federal Legislation.

The vesting of power

4. The basis for the appointment of an officer shall be set out by a clear and precise statement in legislation. This shall be supplemented by the necessary policy statements, which indicate who has been or may be appointed in accordance with that statement. This may be by individual person, a readily identifiable class or a category of person employed on a particular task.

5. Appointments shall be made by way of an appointment document or credentials that clearly state the power granted and any limitations upon that power.

6. The public has a reasonable expectation of being able to readily determine the identity and powers of the appointed officers and the standards of service that they have a right to expect from them.

Training Requirements

7. The vesting of power will be contingent upon officers meeting minimum performance standards related to particular training objectives. This training will be based on the course training standards issued by the Interdepartmental Committee of Deputy Ministers Responsible for Regulatory Reform. The minimum training standards may be supplemented by additional training deemed appropriate by the organization concerned.

8. A minimum threshold of training must be established before status enforcement power/status is granted.

9. To maintain the required standard, each organization will conduct refresher training and ensure a continuing program based on the evolving issues related to the enforcement duties concerned.

Operational Considerations and Practices

10. The enforcement of the criminal law (as defined for the purposes of the Guidelines for the Granting of Enforcement Powers Under Federal Legislation) in the federal sphere is the responsibility of the RCMP except where otherwise specified.

11. Limitations on powers shall be consistent with the minimum requirement to achieve the mandate concerned. Presence in a particular territorial area or association with a particular function is not a sufficient reason for organizations that have limited powers to broaden their enforcement activities.

12. Enforcement activity beyond the applicable statutory limitations shall be confined to dealing with endorsed warrants, cases of special jurisdiction and "fresh pursuit" within Canada. In the case of the latter, the case must be turned over to the police of local jurisdiction at the earliest moment.

13. The investigation of international and organized crime is the prime jurisdiction of the RCMP. Interdepartmental cooperation, agreement or other assistance in the pursuit of such matters may be developed on a case-by-case basis or through the continuation of an existing agreement or on the basis of a new or revised agreement as the circumstances may dictate.

Intergovernmental agreements: extension or delegation of power

14. The acquisition of power from other levels of government must be based upon a reasonable requirement. That power must be required to achieve the mandate of the applicable federal statute. Such powers must be set out in an agreement that explicitly indicates that the responsibility for oversight mechanisms and complaint resolution will remain with the federal organization to which the delegated officer belongs.

15. Delegation of any power to another level of government shall be by agreement that establishes the basic purpose for entering into the agreement. It must include the authority for such delegation and provisions for accountability and liability. The responsibility for oversight mechanisms and complaint resolution shall normally remain with the organization to which the delegated officer belongs.

16. Such agreements shall be managed in a manner that ensures standardization and coordination and facilitates the ready identification of persons granted such additional powers.

Review and redress

17. A review and redress process shall be established in all organizations whose officers possess enforcement powers. The process will be based on clearly established, well understood accountability procedures.

In February 1992, Treasury Board amended the Government's Regulatory Policy http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&page=publications to place a new emphasis on regulatory enforcement. The reasons for this change in policy included the need:

• to ensure more effective management of scarce resources;
• to emphasize that compliance, not punishment, is the primary objective of enforcement activity under regulatory Acts; and
• to minimize the Government's increased exposure to damages for negligent enforcement under recent case law.

Departments administering regulatory Acts are now generally required to have formal compliance and enforcement policies. In addition, they must ensure that adequate resources are available to discharge their enforcement responsibilities and to ensure compliance, where the Act binds the Government. Compliance issues should form an integral part of the policy development process for any new Acts or regulations. If those issues are left to the drafting stage, or later, there may be no opportunity to incorporate modern compliance and enforcement measures, for example, to make formal provision for negotiated solutions to non-compliance or for administrative monetary penalties.

Published compliance and enforcement policies are usually preceded by the development of an (unpublished) compliance strategy that addresses anticipated compliance problems. The final, published compliance policy typically includes the following elements:

• an overview of the policy purpose of the Act or regulation;
• the orientation of the program;
• a formulation of the major rules under which compliance is sought;
• an outline of the range of techniques to be employed for encouraging voluntary compliance, for monitoring compliance and for dealing with non-compliance (possibly including a range of alternatives to prosecution); and
• the factors that enforcement officials take into account in exercising their statutory powers.

A guide entitled A Strategic Approach to Developing Compliance and Enforcement Policies http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&Page=publications&Sub=astrategicapproachtodeve&Doc=astrategicapproachtodeve_e.htm was prepared by the former Regulatory Compliance Project of the Department of Justice and published by Treasury Board to help departments meet this new responsibility.

The Administrative Law Section of the Department of Justice provides advice and assistance on compliance and enforcement issues arising throughout the legislative process.

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