Guide to Making Federal Acts and Regulations
Introduction
This section of the Guide provides departmental officials with information about preparing bill-drafting instructions to be included in a Memorandum to Cabinet (MC). Its aim is to provide them with a process that reflects the thinking involved in transforming policy into legislation. This process is presented in the form of a checklist that outlines a series of principal matters to be considered. Each matter is supplemented by detailed questions and comments. By responding to them, officials should be able to prepare drafting instructions that provide a clear, succinct picture of how the approved policy is to be reflected in legislation.
Most of the matters addressed at the MC stage will have to be addressed in more detail when the bill is drafted. But it is a good idea for departmental officials to begin thinking about them as early as possible so that they are well-prepared for the bill-drafting stage. It is particularly important to be ready to provide detailed drafting instructions in both languages so that each language version of the bill can be properly drafted.
Purposes of Drafting Instructions
The drafting instructions in an MC are the basis on which a Government bill is drafted and approved for introduction in Parliament. They both determine and limit what the draft bill is to contain. Drafting instructions serve a number of related purposes:
Format and Style
Drafting instructions should be written in clear, straightforward language. They should not be in "legal" language or attempt to dictate the wording of the bill. They should be prepared keeping in mind the purposes outlined above.
The checklist that follows covers a wide range of matters and prompts instructing officers to think about the details needed to draft legislation. However, many of these details do not have to be specifically expressed in the MC drafting instructions, and indeed they should not be.
The drafting instructions should steer a course between the extremes of too much detail and too little. On the one hand, the drafting instructions should be general enough to allow flexibility for minor policy questions to be worked out in the drafting process. On the other hand, they should not provide carte blanche authority to draft legislation for vaguely defined policy objectives, without any indication of how the objectives are to be achieved.
It is important to find a balance between high-quality information that provides an understanding of the most important issues and a degree of flexibility that allows for unforeseen questions to be addressed.
This checklist covers the following elements:
Getting Started
General Legal and Policy Matters
Legal Structure of the Proposal
Particular provisions
Technical legislative matters
Finishing touches
Matters |
Questions and Comments |
Main objectives of the proposal |
What are the main objectives of the proposal? It is essential for the sponsoring department to clearly articulate the precise purpose of proposed legislation, so that Cabinet and the drafters properly understand what the legislation is supposed to achieve. For amending bills that are intended to accomplish a number of different purposes, the instructions should explain these purposes separately in relation to the provisions that are to be amended. They should also include a general instruction to make consequential amendments to other provisions. |
Time needed to prepare drafting instructions |
Is there enough time to prepare the drafting instructions? Thinking through the detail of drafting instructions will raise policy issues that were not identified when ideas were expressed in general terms in the policy development stage. Time will be needed to address and resolve these issues. The sponsoring department must be prepared to spend the time necessary to produce a coherent set of provisions to implement their proposals. Unresolved issues haunt a legislative project until they are resolved and it is wiser and more efficient in the long run to resolve as much as possible at the Memorandum to Cabinet stage, before the actual drafting begins. The time spent in thinking through drafting instructions is well worth it. Good drafting instructions will avoid:
Departments should not rely on time frames that have been established before the legislative drafter has been consulted. The time needed to prepare the draft may be much greater than the department expects. |
Public commitments |
Has the Government or the Minister made any public commitments, either generally or about the specific legislative proposal, that will affect its contents or timing? Often when legislative policy is being developed, the Government or a Minister makes commitments about it, such as promising to consult with stakeholders or guaranteeing that the legislation would be framed in a certain way. They may also make general commitments, such as those in the Federal Gender Equality Action Plan approved by the Cabinet in 1995. These public commitments could affect the timing of the legislation or require it to be framed in a certain way. Stakeholders or provincial governments are sometimes consulted on the draft proposals. When the aim of consultations is a negotiated agreement on wording that is to be proposed in the legislation, drafters should be consulted before specific wording is agreed on. |
Matters |
Questions and Comments |
Legal context |
What legal considerations affect the proposal? This portion of the drafting instructions should be completed by the departmental legal adviser. It involves an assessment of the law related to the proposal in order to ensure that the resulting legislation will operate effectively. Some areas of particular concern are:
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Policy context |
Do any Government policies affect the proposal? There are a number of policies approved by the Cabinet that may have a bearing on the proposal. They must be considered to ensure that the proposal is consistent with them. These policies include:
http://www.ceaa-acee.gc.ca/0012/0006/sea_e.htm; http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&page=publications; sct.gc.ca/pubs_pol/sipubs/tb_fip/siglist_e.html. One of the best ways to ensure consistency with government policies is by consulting the officials who are likely to know about them. |
Resources |
Who will incur costs as a result of the legislation? If non-federal bodies will incur costs as a result of the legislation, a strategy must be identified for managing their reaction or obtaining their support. If there are new federal costs associated with implementing or complying with the proposed legislation, a source of funding will be needed before Cabinet approval. |
Legal instruments for accomplishing policy objectives |
How will the policy objectives of the proposal be accomplished? As discussed above in Chapter 1.1 "Choosing the Right Tools to Accomplish Policy Objectives", there are many legal mechanisms available for implementing policy objectives. These include:
Some particular mechanisms that are often adopted include:
For further information on these mechanisms, consult Designing Regulatory Laws that Work published by the Constitutional and Administrative Law Section of the Department of Justice. See also "Enforcement Powers" in this chapter. As far as possible, the instructions should provide a picture of how the legislation will actually work, describing the type of machinery envisaged and the necessary powers and duties, including how the legislation will be enforced. |
Matters |
Questions and Comments |
Combining matters in a single bill |
What should be included in a single bill? Related matters should be combined in one bill, rather than being divided among several bills on similar subjects. A single bill allows parliamentarians to make the most effective and efficient use of their time for debate and study in committee. However, matters should only be combined if it is appropriate and consistent with legislative drafting principles. Titles to Acts are among the most important tools people use to find the law. If very different matters are combined in one Act, it becomes more difficult for people to find the law relating to the matters that concern them. |
Types of legal instruments |
What types of legal instruments should be used? There are many legal instruments and other related documents available to implement policy. They fall into three categories:
Both Acts and regulations are forms of law, with the same legal effect. Administrative documents do not necessarily have legal effect. Additional differences among these categories involve the procedures used to make them. Statutes involve the parliamentary process while regulations are governed by the requirements of the Statutory Instruments Act. There are no general statutory requirements for other subordinate documents, although they are sometimes subject to particular requirements such as those relating to natural justice. The provisions of an Act must fit together in a coherent scheme with the regulations and administrative documents that it authorizes. This means that the authority to make regulations and administrative documents must be established by the Act, either expressly or impliedly. |
Provisions that should be in the Act |
What should be in the Act? Generally speaking, the Act contains the fundamental policy or underlying principles of legislation that are unlikely to change. The following additional matters are usually dealt with in the Act:
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Provisions that should be in regulations |
What should be in regulations? Regulations should deal with matters of a legislative (as opposed to administrative) nature that are subordinate to the main principles enunciated in the Act. This includes:
Some regulation-making powers require specific Cabinet approval. The drafting instructions must specifically provide authority to do any of the following things and the MC must provide reasons for requesting this authority:
Finally, consider what, if any, procedural requirements should apply to making the regulations, for example, are the requirements of the Statutory Instruments Act and the Regulatory Policy appropriate (see Summary of the "Regulatory Process" in part 3). Note, however, that if an instrument of a legislative nature is to be expressly exempted from the requirements of the Statutory Instruments Act and the Regulatory Policy, the drafting instructions must specifically provide authority for the exemption and the MC must provide reasons for requesting this authority. |
Incorporation by reference |
Should some matters be dealt with through documents or laws incorporated by reference? Legislation does not have to spell out all the details of what it requires or provides. It can instead refer to other laws or documents and incorporate their contents without reproducing them. If this is to be done in regulations, consideration should be given to whether particular authorizing provisions are needed. Incorporation by reference is also subject to constitutional requirements governing the publication of laws in both official languages as well as requirements relating to the accessibility and intelligibility of incorporated documents. Departmental Legal Advisers can provide guidance on these questions on the basis of the Legal Policy Statement on Incorporation by Reference issued by the Deputy Minister of Justice. |
Administrative instruments |
What should be dealt with through administrative instruments? Many of the elements of a regulatory scheme should be dealt with in administrative instruments, such as permits, licences, directives or contracts. These include
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Recipients of powers |
Who should powers be given to? Regulation-making powers
Judicial and quasi-judicial powers
Administrative powers
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Matters |
Questions and Comments |
Titles |
What will be the title of the bill? Each bill has a long title, which sets out the scope of the bill and gives a brief description of its purpose. The wording of this title should be left to the bill-drafting stage. A bill to enact a new Act also has a short title, which is used to identify the Act when discussing it or referring to it in other legislation. A short title is also sometimes included in an amending Act that is likely to be referred to in other Acts. A short title should succinctly indicate the Act’s subject matter. The following are examples of the long and short titles of an Act:
Finalizing the short title should also be left to the bill-drafting stage. However, a working title is needed from an early stage and care should be taken to establish an appropriate title since it often becomes more difficult to change as the proposal moves forward. Short titles must be consistent with the Federal Identity Program In the English version, the first word in the short title determines the Act’s indexed place in the statute book. Try to avoid words such as "Canadian," "National," "Federal" and "Government" because they make it harder to find the Act by its subject matter in a table of statutes. You may consult the Legislation Section when choosing a title. You must also consult the Machinery of Government Secretariat of PCO about the name of any new public body, which also usually appears in the title (see below "Public bodies and offices"). |
Preambles and purpose clauses |
Should there be a preamble or purpose clause? Preambles and purpose clauses should not be included in a bill without carefully thinking about what they would add to the bill and what they would contain. They should not be used to make political statements. They can have a significant impact on how the legislation is interpreted by the courts. Preambles and purpose clauses perform different, but overlapping functions. Preambles:
Purpose clauses:
When a bill amends an existing Act, only the amendments themselves are added to the text of the Act when it is reprinted in a consolidated form. The preamble is not included. In order to ensure public awareness of, and access to, background information for an amending bill, a purpose clause may be considered as an alternative because it can be integrated into the consolidated legislation. Both preambles and purpose clauses must be carefully reviewed by the Department of Justice for appropriate language and content. |
General application provisions |
Should the application of the Act be confined or expanded in any way? It is possible to confine or expand the application of the Act in a number of ways:
However, application provisions often raise complex legal questions that must be fully explored before they are included. For example, expanding the application of an Act outside Canada’s borders raises many international law questions, some of which are addressed in the Oceans Act. |
Application to the Crown |
Should the Act be binding on the Crown? Legislation does not bind the Crown unless the legislation expressly or impliedly provides that it does. You should consider whether the Act should do so, taking into account the following:
Other governments and departments affected by the legislation should be fully consulted before a provision to bind the Crown is included. |
Public bodies and offices |
What public bodies or offices will be needed? The creation of public bodies and offices are matters falling within the prerogatives of the Prime Minister. Proposals for their creation must be discussed with the Machinery of Government Secretariat and the Management Priorities and Senior Personnel Secretariat of the Privy Council Office. The nature and structure of public bodies and offices vary widely, depending on the functions they are to perform. The following are some of the important aspects to consider when creating a public body:
The Alternative Service Delivery Office of the Treasury Board Secretariat and the Constitutional and Administrative Law Section of the Department of Justice should also be consulted on these matters. Further information can be found in A Manual for Designing Administrative Tribunals published by the Constitutional and Administrative Law Section of the Department of Justice. |
Senior appointments |
Will the Act authorize the appointment of members of boards and tribunals and other senior officials? Mechanisms for appointing these officials fall within the prerogatives of the Prime Minister. Proposals for legislation dealing with these appointments must be referred to the Machinery of Government Secretariat and the Management Priorities and Senior Personnel Secretariat of the Privy Council Office, including legislation dealing with:
If the terms and conditions of employment of an official to be appointed by the Governor in Council are not described expressly in the legislation, they will be established by the Management Priorities and Senior Personnel Branch of the Privy Council Office within the parameters of sections 23 and 24 of the Interpretation Act. These appointments are usually made by the Governor in Council. |
Financial provisions |
Will there be provisions involving the collection or disposition of public money? The Financial Administration Act is the main Act governing the collection and disposition of public money. It will apply unless there is an express provision to the contrary. Particular attention should be paid to that Act when creating a public body or office. The Department of Finance must be consulted about any proposal to:
For additional information on financial provisions, see Department of Justice Financial Administration Act Commentary published by the Legal Operations Sector of the Department of Justice. |
Information provisions |
Will the legislation restrict or require the disclosure of information? The disclosure of information is governed by the Access to Information Act and the Privacy Act. It is also affected by legal concepts of confidentiality and privilege. Provisions affecting the disclosure of information should be reviewed in light of these requirements and discussed with the Information Law and Privacy Section of the Department of Justice. Proposals to authorize the use of Social Insurance Numbers require specific Cabinet approval. |
Monitoring compliance |
Should there be provisions for monitoring compliance with the legislation? Provisions for monitoring compliance should be considered to ensure that the legislation is effective. These provisions authorize or require inspections or analyses to be conducted on a routine basis (as opposed to when there is suspicion of wrongdoing: see below "Enforcement powers"). You should consider who will conduct the monitoring activities and the circumstances in which they may be conducted. |
Sanctions for non-compliance |
Will penalties or other sanctions be needed to ensure compliance with the legislation? Most legislation is enforced by the imposition of sanctions for non-compliance. They range from penal sanctions, such as fines and imprisonment, to administrative sanctions, such as licence suspensions or disqualifications. There are three basic methods of imposing sanctions:
Provisions for the imposition of penal sanctions should reflect the principles set out in sections 718 to 718.2 of the Criminal Code. They should be reviewed to ensure that:
If administrative sanctions are to be imposed, a mechanism will be needed for their imposition. The creation of this mechanism raises many legal and policy choices to be considered, including choices about
See also "Proportionality of Sentences for Offences" in this chapter and Designing Regulatory Laws that Work published by the Constitutional and Administrative Law Section of the Department of Justice. |
Should the Act authorize searches, seizures and other action to support the prosecution of offences? The Criminal Code provides a basic set of powers for the enforcement of federal legislation, including powers to make arrests, conduct searches and seize things (see "Acts of general application, Criminal Code" in Chapter 1.2). However, these powers may not be sufficient or they may have to be supplemented. Alternative or supplementary enforcement powers should be developed in accordance with:
Principles for the Attribution of Federal Enforcement Powers (See "Particular Legal and Policy Considerations" in this chapter) |
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Appeals and review mechanisms |
Should there be procedures for appealing or reviewing decisions of administrative bodies created or authorized to make decisions under the Act? Judicial Review The Federal Court Act provides that the Federal Court may review the decisions of any "federal board, commission or tribunal." This review concerns the legality of the decisions, as opposed to their merits. In most cases, applications for review are heard by the Trial Division of the Court. However, section 28 of that Act specifies bodies whose decisions are reviewed by the Court of Appeal. Appeals Appeals generally concern the merits as well as the legality of decisions. A right of appeal exists only if it is granted expressly by the Act. Appeals may be taken to the courts (usually the Federal Court) or to an administrative tribunal created by the Act (see also "Creation of public bodies and offices" in this checklist). A decision is not generally subject to judicial review if it is subject to appeal. Review It may also be appropriate to create other review mechanisms (in addition to judicial review and appeal). A decision-making body may be authorized to review its own decisions. Another body (Review Committee, Revision Office, Council, etc.) may be created to review the decision or an existing body (for example, the Cabinet) may be authorized to review them. Unlike appeals, which are limited to particular grounds of appeal, reviews may concern all aspects of the original decision, as if a new decision were being made. |
Dispute resolution mechanisms |
Should there be mechanisms for the resolution of disputes arising under the legislation? Consideration should be given to including provisions for the resolution of disputes instead of relying on the courts, whose procedures are usually costly and involved. Some examples of dispute resolution mechanisms are negotiation, mediation and neutral evaluation. The Dispute Resolution Services of the Department of Justice provides advice on dispute resolution mechanisms. Further guidance can be found in two documents published by the Department of Justice. The first is Dispute Resolution Reference Guide prepared by the Dispute Resolution Services. The second is Designing Regulatory Laws that Work prepared by the Constitutional and Administrative Law Section. |
Extraordinary provisions |
Does the proposal include any extraordinary provisions requiring specific Cabinet approval? Certain types of provisions should be specifically identified because they may be controversial. Ministers must be made aware of them so that they can properly assess whether they should be included in the legislation. These sorts of provisions involve:
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Matters |
Questions and Comments |
Sunset and review provisions |
Should provisions be included for the expiry or review of the Act? Caution should be taken when considering whether to include a "sunset" or expiration provision in a bill, since these provisions may result in a gap of legal authority if the new legislative regime cannot be brought into force in time. Similarly caution should be taken when considering inclusion of a provision for mandatory review of the Act within a particular time or by a particular committee given that this limits Parliament's flexibility. No alternatives to these provisions should be fully explored before proposing to include them. |
Repeal |
Are there any Acts or regulations that have to be repealed as a result of the legislation? If a new Act is proposed to replace an existing Act, the existing Act will have to be repealed. It may also be necessary to repeal particular provisions of related Acts as well as regulations. If these provisions or regulations are administered by other departments, these departments must be consulted. |
Consequential and coordinating amendments |
Are there any Acts or regulations that will have to be amended as the result of the legislation? New legislation often affects provisions in other Acts. One of the most common examples of this occurs when the name of an Act is changed. References to the Act in other legislation must be amended to reflect the change. You should also determine whether any other legislation amends the same provisions. If so, amendments will be needed to co-ordinate the amendments so that one does not undo the other. |
Transitional provisions |
Will any transitional provisions be needed to deal with matters arising before the Act comes into force? Whenever changes are made to the law, consideration should be given to matters that arose under the previous law, but which are still ongoing after the new law comes into force. These matters include:
Many of these matters are governed by the general transitional provisions in sections 43 and 44 of the Interpretation Act. However, these provisions may not provide the result intended in all cases. It may also be unclear how they apply in particular cases. Special transitional provisions are often needed, particularly when:
Finally, regulations made under existing legislation should be reviewed to determine which of them should continue in force under the new legislation and to ensure that they are compatible with it. Regulations should be expressly repealed if they are not intended to continue in force. This will avoid doubts about their status. |
Coming into force |
When should the Act come into force? When an Act comes into force, it begins to operate as law. An Act comes into force on the day it receives Royal Assent, unless it says otherwise. There are a number of options. It may come into force
An Act may also provide that different provisions may come into force on different days. If a provision for an Act to come into force retroactively is to be included, it must be clearly authorized by the drafting instructions. |
Matters |
Questions and Comments |
Internal consultation |
Will any other affected Ministers, departments or agencies of the federal government have to be consulted on drafting the bill? Ministers, departments or agencies who are consulted on the policy proposals should also be given the opportunity to comment on the drafting instructions. This is particularly so when consequential amendments are proposed to legislation administered by those departments. Consider the following questions:
You should also consider whether consultation may result in changes to the policy and whether Cabinet approval will be needed for the changes. |
External consultation |
Will any consultation with other governments, non-governmental bodies or the public be needed on the draft bill? Consultation on draft legislation may be carried out with persons outside the federal government if the MC states that intention and asks for the Cabinet’s agreement. You should also consider whether consultation may result in changes to the policy and whether Cabinet approval will be needed for the changes. |
Time needed for drafting the bill and implementing the Act |
How should drafting and implementation time frames be established? Ministers usually want to know how long it will take to draft the required bill. These time frames are rarely expressed in the MC or the resulting Cabinet decision, but are established on a less formal basis. They should be determined in consultation with the Legislation and House Planning/Counsel Secretariat of the Privy Council Office and the Legislative Services Branch of Justice, taking into account:
Implementation dates are also sometimes considered at this stage, although it is impossible to predict how long it will take Parliament to deal with the bill. Additional factors should also be taken into account in establishing implementation dates, including:
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Outstanding matters |
Are there any matters that still have to be resolved? It is sometimes not possible to resolve all policy issues without unduly delaying the preparation of the bill. In these cases, the MC may identify these matters and provide that they are to be resolved through a supplementary MC or by some other means. |