Are there horizontal considerations and interdependencies with other priorities or issues (e.g. environment, rural, science, trade, etc.)?

Are they in citizen-focussed terms?

Does this initiative build on and fill gaps in existing policy and programs (federal, provincial)?

Does the proposal replace or overlap any existing program?

Will this initiative be sustainable (social, economic, environmental) in the longer term?

Have a range of options for the achievement of goals/objectives been considered?  The full range and choice of instruments (e.g. legislative, regulatory, expenditures)?

Has a feedback mechanism been incorporated into policy and program design to allow for evaluation, fine-tuning, and updating?

Is the policy based on sound science advice?

How do the overall societal benefits compare to its costs? Have the full range of risks been assessed?

Does the proposal respect the rights of Canadians and take into account their diverse needs (e.g. cultural, linguistic, etc.)?

Have Canadians been given an opportunity for meaningful input?

Is it consistent with current legislative (e.g. Official Languages Act, Privacy Act, etc.) and government policy and program guidelines or directives (e.g. Social Union Framework, Expenditure Management System,  Environmental Assessment,  F/P/T or international agreements such as  WTO and/or NAFTA)?

Have other departments been involved in the development of this initiative? Have opportunities for synergies (across issues and departments) been identified?

What is the plan for connecting this initiative with Canadians?

Have the particular federal interests been adequately identified?

How does the initiative balance the need for coordinated Canada-wide action with the need for flexibility to reflect the diverse needs and circumstances of provinces and regions?

Have mechanisms been established for ongoing monitoring , measuring, and reporting to Canadians on outcomes and performance?

Have eligibility criteria and public service commitments been made publicly available?

Has it been designed in a way that complements existing provincial programming and services?

Are measures in place to ensure equitable treatment of provinces/regions - in consideration of their diverse needs and circumstances? [Has consideration been given to the unique character of Quebec in policy and program design?]

If a substantial change in funding or design is being considered, have partners, particularly provinces and territories, been consulted or given advance notice?

Are the relative roles and contributions of partners clear?  How will they be publicly recognized?

Have opportunities for partnerships with communities, voluntary sector and private sector been considered?

Have mechanisms been established to consult with Aboriginal peoples?

Does the proposal assess non-spending options? 

Does it consider reallocation options? 

Would a joint F/P/T or partnership based effort result in a more efficient or effective program or service? 

What are the longer term funding issues associated with this proposal - for the federal government, and for its partners? 

Are there program integrity issues related to this initiative (e.g. non-discretionary/legal commitments, risks, strategic investments)? 

Has the initiative considered downstream litigation risks (e.g. potential for trade disputes, Aboriginal claims, etc.)

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:

• delays in drafting the bill because of unresolved policy questions;
• having to go back to Cabinet to clarify policy issues that were not adequately resolved in the original Memorandum to Cabinet;
• having to propose amendments in Parliament because the policy was still in flux after the bill was introduced or because the two language versions were not consistent;
• being left without the necessary legal authority after the Bill is passed to draft the regulations required to complete the legislative scheme.

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.

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:

• Does Parliament have constitutional authority to enact the legislation?
• Will it affect matters within provincial jurisdiction?
• Is it consistent with the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the International Covenant on Human Rights?

• Does the proposal raise any gender or other equality issues?

• Is it consistent with important Acts of general application, such as the Access to Information Act, the Privacy Act, the Official Languages Act and the Financial Administration Act?
• Do any of the proposed provisions unnecessarily duplicate provisions in the Interpretation Act, the Criminal Code, or any other Acts of general application? If they are not quite the same, is there a good reason for the difference?
• Do any elements of the proposal conflict with other legislation?

• Does the proposal deal with matters that are also dealt with by another bill that is being prepared or has been introduced in Parliament? If so, are the officials responsible for that bill aware of the overlap?
• Does the proposal respond effectively to any court decisions or legal opinions that gave rise to the legislation or any of its elements?
• Are there any international agreements to which Canada is a signatory that have a bearing on the proposal?
• Does the proposal rely on provincial private law (for example, contracts or property) to supplement it? If so, have both legal systems (civil law in Quebec and common law elsewhere) been considered?

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:

• 1999 Cabinet Directive on Environmental Assessment of Policy, Plan and Program Proposals, Canadian Environmental Assessment Agency;
• Regulatory Policy, approved by the Treasury Board in 1995;
• Federal Gender Equality Action Plan, approved by the Cabinet in 1995;
• Cabinet Directive on Law-making, approved by the Cabinet in 1999 (set out at the beginning of this Guide);
• Federal Identity Program.

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:

• the creation of public bodies and offices;
• the conferral of powers and duties on public officials;
• rules that regulate, prohibit, require or authorize particular activities;
• the creation of sanctions for non-compliance with the rules.

Some particular mechanisms that are often adopted include:

• licensing schemes directed toward controlling particular activities;
• monitoring and enforcement provisions.

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.

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:

• Acts
• Regulations
• administrative documents (for example, contracts, internal directives, bulletins, decision documents).

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:

• provisions that might substantially affect personal rights (search and seizure powers, penalties for serious offences, expropriation);
• provisions establishing the structure of public bodies or providing for senior appointments;
• controversial matters that should be addressed in Parliament;
• amendments to Acts, including the definition of terms used in Acts.

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:

• procedural matters, for example, how to apply for a licence;
• matters that are likely to need adjusting often, for example, prescribing interest rates, setting annual fishing quotas;
• technical matters involving scientific or other expertise;
• rules that can only be made after the department gains some experience in administering the new Act, for example, prescribing the time within which certain steps should be taken;
• fees applicable to a broad sector of the public.

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:

• substantially affect personal rights and liberties;
• determine important matters of policy or principle;
• amend or add to the enabling Act or other Acts;
• exclude the ordinary jurisdiction of the Courts;
• apply retroactively;
• sub-delegate regulation-making authority;
• impose a charge on public revenue or a tax on the public;
• set the penalties for offences (other than administrative monetary penalties).

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

• legal requirements that are to be imposed individually on a case-by-case basis;
• fees imposed in accordance with procedures such as those in sections 21-23 of the Department of Industry Act;
• non-binding guidelines;
• internal directives on administrative matters.

Recipients of powers

Who should powers be given to?

Regulation-making powers

• Ordinarily, the Governor in Council is authorized to make regulations. A rationale for departures from this practice needs to be provided in the MC.
• In some cases, independent regulatory tribunals, such as the National Energy Board, are given regulation-making powers, but their regulations are often subject to the approval of the Governor in Council.

Judicial and quasi-judicial powers

• Judicial and quasi-judicial powers must be exercised with impartiality and the delegates who exercise them should have the qualifications and security of tenure to ensure their impartiality.

Administrative powers

• Most administrative powers are given to Ministers who, in turn, have implied authority to authorize officials in their departments to exercise them.
• These powers should not be given to the Governor in Council, except powers to make very senior appointments or power relating to international obligations or publicly sensitive matters.
• Inspection and enforcement powers are usually given to classes of officials created to exercise these powers.

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:

• An Act to provide for the financial administration of the Government of Canada, the establishment and maintenance of the accounts of Canada and the control of Crown corporations;
• Financial Administration 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. It is also important to ensure that both language versions of the title are equivalent and idiomatic. You should beware of using a word in one language just because it is like a word in the other.

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:

• can often provide important background information needed for a clear understanding of the bill, or to explain matters that support its constitutionality;
• are placed at the front of the bill;
• should be drafted sparingly to avoid creating confusion about the meaning of the legislation.

Purpose clauses:

• indicate what the intended results of the legislation are;
• should highlight only the principal purposes;
• are included in the body of the legislation;
• generally have a greater effect on the interpretation of legislation than preambles.

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:

• geographically (for example, in particular provinces or territories);
• temporally (for example, to particular periods of time);
• jurisdictionally (for example, to the extent that particular matters are within the constitutional authority of Parliament);
• in terms of the subject matter governed by other Acts (for example, to the extent that particular matters are not regulated under other Acts).

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:

• binding the Crown may entail additional legal liability for government activities;
• not binding the Crown may render the legislation less effective if it governs an activity that the Crown carries on to a significant degree;
• agents of the Crown (for example, Crown corporations) generally benefit from Crown immunity, which may give them an advantage over private sector competitors;
• the Crown has not only a federal aspect, but also provincial and international (Commonwealth) aspects, any or all of which may be bound.

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:

• what name will it have?
• where will its headquarters be located?
• will it be a corporation?

• will it have the capacity of a natural person or will its powers be set out in detail?
• will it be able to enter into contracts, either in its own name or on behalf of the Crown?
• will it be able to acquire and dispose of property (note the Department of Public Works and Government Services Act and Federal Real Property Act)?
• will the Auditor General be its auditor (note the Auditor General Act)?
• will it be subject to the Canadian Environmental Assessment Act or review by the Commissioner for Sustainable Development under the Auditor General Act?
• will it be an agent of the Crown (and benefit from the non-application of legislation to the Crown)?
• which minister will be responsible for it?
• will it report to Parliament?
• how many members will it have?
• will there be executive officers (chairperson, secretary, etc.)?
• how will the members and executive officers be appointed? (see the next box)
• will the body, or any of its members or staff, be part of the public service and subject to general public service legislation such as:

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:

• how these officials are to be appointed;
• what their tenure of office will be;
• what their status or rank will be (for example, as a deputy head);
• what public service legislation will apply to them (see previous box).

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:

• create a special account in the Consolidated Revenue Fund;
• authorize a public body to deal with money without going through the Consolidated Revenue Fund;
• provide guarantees or indemnification;
• create an ongoing statutory appropriation;
• authorize the borrowing of money.

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:

• through the prosecution of offences in the courts;
• through offence ticketing schemes, such as the Contraventions Act;
• through the imposition of administrative monetary penalties or other administrative 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:

• they will be effective in obtaining compliance;
• there will be effective enforcement mechanisms, such as powers to conduct inspections or searches;
• the sanctions are appropriate for the seriousness of the noncompliant behaviour;
• the sanctions are variable enough to reflect the circumstances of the accused person in order to ensure that they receive equal treatment under the law.

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

• strict or absolute liability;
• the processes by which liability for and the amount of a sanction will be determined;
• the relationship of the administrative sanctions to criminal prosecution;
• the institutional structure of required impartial review.

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.

Enforcement powers

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:

• Guidelines for Granting Enforcement Powers under Federal Legislation,

Principles for the Attribution of Federal Enforcement Powers 

(See "Particular Legal and Policy Considerations" in this chapter)

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:

• the retroactive application of legislation;
• broad powers to grant exemptions from the legislation;
• power to subdelegate regulation-making powers;
• excluding the jurisdiction of the courts;
• expropriation of property;
• emergency powers;
• substantial restrictions on fundamental rights or freedoms;
• regulation-making powers dealing with matters that are usually provided for in Acts (see above "What should be in the Act").

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. 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:

• regulations made under the previous law;
• rights or benefits granted under the previous law;
• appointments to offices;
• offences committed under the previous law;
• judicial or administrative proceedings involving the application of the previous law.

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:

• an administrative body is abolished and another created to take its place;
• money appropriated for the purposes of the repealed Act is to be used for the purposes of a new Act.

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

• on a specified day;
• on a day dependent on a specific event (for example, the coming-into-force of another Act);
• on a day to be fixed by order of the Governor in Council.

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.

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:

• Have the affected departments or agencies had an opportunity to review the drafting instructions?
• Are there any outstanding issues that need to be addressed before final drafting instructions can be given?
• Are there other bills or Acts administered by other departments or agencies that will be affected by the legislation?
• Are there other Ministers who will have legal responsibilities or powers under the proposed legislation?
• Is there an agreement in place about the extent of those responsibilities or powers?

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:

• the complexity of the bill;
• the degree to which the underlying policy is developed or developing;
• the drafting resources available.

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:

• the work required to draft any necessary regulations (including any amendments to existing regulations);
• administrative, staffing and training arrangements needed.

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.

Contact Privy Council Office (Operations Branch) policy analyst responsible for your department

Consult early to define the proposal and discuss timing.

Contact your departmental Cabinet affairs unit

The departmental Cabinet affairs unit provides:

• guidance on procedures and requirements within your department;
• information on the requirements of the Privy Council Office;
• a copy of Memoranda to Cabinet: A Drafter's Guide;
• assistance in the policy development process.

See also Memoranda to Cabinet: A Drafter’s Guide, section E, the Good Governance Guidelines and the MC Preparation Planning Calendar.

Contact your departmental official responsible for parliamentary relations

Advise them that you are starting proposals for a memorandum to Cabinet that includes a proposal for a bill.

Contact Treasury Board Secretariat and Department of Finance policy analysts responsible for your department

Consult early to determine whether the proposal:

• requires adjustment to existing expenditures;
• requires new expenditures;
• impacts on government contingent liabilities;
• requires significant adjustments to existing programs;
• impacts on Crown corporations;
• has implications for official languages matters or labour-management relations.

Review the Good Governance Guidelines and the Preparing Bill-drafting Instructions for a Memorandum to Cabinet

Highlight matters to be considered as early as possible in the policy development process.

Draft Memorandum to Cabinet

For detailed advice, consult your Cabinet affairs unit and refer to Memoranda to Cabinet: A Drafter’s Guide.

Prepare the drafting instructions

Prepared by a team of knowledgeable officials that includes a member of the departmental legal services unit (DLSU). This team will also provide detailed instructions at the bill-drafting stage. For detailed information, see the "Checklist for Preparing Bill-drafting Instructions for a Memorandum to Cabinet".

Seek departmental approvals (including Minister’s approval) in accordance with departmental process

This step usually requires the preparation of briefing materials.

Have the draft MC translated in accordance with the departmental process

Give the translators the time and information they need to prepare an accurate translation. Have the translation reviewed by policy officials.

Organize interdepartmental meeting and circulate the draft MC to all departments concerned

Circulate to all departments whose Ministers sit on the policy committee that will consider the MC as well as to other departments involved in the proposal. Also include the PCO, TBS and Department of Finance analysts responsible for your department. Send out the draft MC in advance to allow departments sufficient time to digest the draft MC before interdepartmental meetings are held. See also Memoranda to Cabinet: A Drafter’s Guide, section E.

Interdepartmental meetings chaired by senior departmental officials

Brief other departments on the details of the proposal and determine their positions. Include their positions in the MC, and resolve any issues.

Finalize the MC, including the translation, and send to Minister in accordance with departmental procedures

Provide Minister with appropriate briefing materials, including the results of interdepartmental consultations. Check that the MC conforms to PCO content and formatting requirements as specified in Memoranda to Cabinet: A Drafter’s Guide.

Send two copies of the signed MC and electronic copies on diskette to the PCO Cabinet Papers Office

Prepare presentation material for the Minister to use at Cabinet and Cabinet committee meetings

Presentation materials may be a slide deck, talking points, additional briefing material outlining anticipated positions of other ministers and Qs and As.

PCO Cabinet Papers Office distributes the MC to the other departments

PCO analyst prepares briefing materials and briefs the Committee Chair

Briefing material is distributed only to the Committee Chair and PCO Ministers (the Prime Minister, the Deputy Prime Minister, the Leader of the Government in the House of Commons, the Leader of the Government in the Senate and the Minister of Intergovernmental Affairs).

Cabinet Policy Committee considers the MC and Drafting Instructions. PCO Cabinet Papers Office issues the Committee Report (CR)

Once the Cabinet Committee has decided on the proposal, a Committee Report is drafted by the Policy Committee Secretariat and issued by the Cabinet Papers Office. It is based on decisions made by the Committee in relation to the Ministerial Recommendations (MR) portion of the MC as well as any annexes to the MC (such as the drafting instructions). The Secretariat that drafts the CR may consult with the originating department and other interested departments to ensure that the wording of the CR accurately reflects the decisions of Ministers. See also Memoranda to Cabinet: A Drafter’s Guide, section A.

Cabinet Approval of CR and drafting Instructions, followed by issuance of Record of Decision (RD) by PCO Cabinet Papers Office

The full Cabinet considers the CR and accompanying drafting instructions. The CR and the MC are the basic documents for Cabinet discussion. If the Cabinet confirms the CR, an RD is issued. See also Memoranda to Cabinet: A Drafter’s Guide.