Part 2 - Making Acts

Chapter 2.2 - Development and Cabinet Approval of Policy

  • Overview: This Chapter supplements section 3 of the Cabinet Directive on Law-making by providing information on the various steps involved in policy development and Cabinet approval. It sets out the Good Governance Guidelines and goes on to describe how to prepare a Memorandum to Cabinet (MC), which is a Minister's vehicle for proposing and explaining a legislative measure to the Cabinet and for obtaining its approval. The MC provides context for the drafting instructions that must be developed as part of the MC.
  • In this chapter
    • Summary of the Cabinet Policy Approval Process
    • Good Governance Guidelines
    • Preparing a Memorandum to Cabinet
    • Preparing Bill-drafting Instructions for a Memorandum to Cabinet
    • Particular Legal and Policy Considerations
    • Activities and Products for Policy Development and Approval
    • MC Preparation Planning Calendar
  • You should also consult: Memoranda to Cabinet: A Drafter's Guide, published by the Privy Council Office.
  • Audience: Officials involved in developing legislative policy and seeking Cabinet approval, particularly those involved in writing or reviewing an MC.
  • Key Messages
    • Before seeking Cabinet approval, thoroughly consider the complex and wide-ranging issues involved in the preparation of legislation.
    • Ensure that the bill-drafting instructions in the MC are detailed enough to give Cabinet a clear understanding of what the proposed law is to do and how it is to do it.
    • Carefully consider the drafting instructions in order to identify and resolve potential legislative and administrative difficulties.
    • Identify sources of funds to cover resulting financial implications for the Government of Canada arising from the implementation of the legislation.

Summary of the Cabinet Policy Approval Process

Memorandum to Cabinet and drafting instructions

After a proposed bill is included in the Government's legislative program, the next step is to prepare a submission to Cabinet to seek policy approval and authority to draft the bill. This is done by way of a Memorandum to Cabinet (MC), prepared in accordance with the guidance documents issued by the Privy Council Office. MC drafters should refer to Memoranda to Cabinet: A Drafter's Guide , the Good Governance Guidelines and the MC Preparation Planning Calendar. When a bill is being proposed, the MC includes an annex of drafting instructions, which provides the framework for drafting the bill. This is a critical component of the MC that demands much care and attention (see also Preparing Bill-drafting Instructions for a Memorandum to Cabinet in this chapter).

Main Steps in Cabinet Approval Process

The main steps in preparing an MC are:

  • The sponsoring department writes the MC, including the drafting instructions, in cooperation with departmental legal advisers. The Privy Council Office (PCO) should be consulted as early as possible in the process. As set out in the MC Preparation Planning Calendar, the sponsoring department must alert PCO to the draft MC at least 6 weeks before the Cabinet Committee meeting at which it is to be presented. Other departments and central agencies should be consulted as issues arise during the preparation of the MC.
  • The sponsoring department hosts a substantive interdepartmental meeting at least 3 weeks before the Cabinet committee meeting to discuss the policy implications of the MC. The meeting includes PCO and the other central agencies as well as all departments whose ministers sit on the Cabinet policy committee that will consider the MC, and other interested departments. The sponsoring department then revises the MC taking into account comments from departments and ensures that it has the support of central agencies and other departments.
  • As the central agency that serves as the secretariat to the Cabinet and its committees, PCO performs a challenge function on matters of process, most notably on what consultations are appropriate and on how public interest is determined. It also looks at issues of horizontality and the appropriate level of government intervention, particularly in terms of efficiency, affordability, federalism and partnerships.
  • Once finalized, the sponsoring minister signs the MC and it is sent to PCO. PCO is responsible for distributing the MC to deputy ministers and ministers, for scheduling the item on the agenda of the appropriate Cabinet policy committee and for briefing the committee chair.
  • The Cabinet policy committee considers the MC.
  • If approved, PCO issues a Cabinet Committee Report (CR), which is then considered by the full Cabinet.
  • If there are financial implications, a source of funds must be identified before full Cabinet considers the CR. If the CR is ratified, PCO issues a Record of Decision (RD). Both the CR and the RD are based on the recommendations and drafting instructions contained in the original MC.
  • The policy committee or full Cabinet may require changes to the proposal. In such cases, the sponsoring minister may be asked to return with a revised MC, depending on the nature and scope of the changes. A revised CR and RD may also be issued to reflect the changes.
  • Once the RD is issued, PCO sends copies to all ministers and deputy ministers (in practice usually to the departments' cabinet affairs units) and to the Legislation Section of the Department of Justice.
  • At this stage, drafting may begin.

In exceptional circumstances, where it is necessary to meet the priorities of the Government, drafting may begin before the Cabinet authorization has been formally obtained if the Leader of the Government in the House of Commons so authorizes. This authorization is granted on the advice of the Director of the Legislation Section and the Assistant Secretary to the Cabinet (Legislation and House Planning/Counsel) in consultation with the relevant PCO policy secretariat.

Who does what in the Cabinet Approval Process?

The Cabinet makes policy decisions, including decisions about how policies will be implemented in legislation. These decisions are communicated through the Cabinet's approval of drafting instructions in a memorandum to Cabinet.

Most departments have units responsible for developing policies — including legislative policies — relating to matters for which they are responsible. The officials who work in these units are responsible for linking the various parts of the department in order to develop policies that respond to public concerns and can be effectively implemented.

Because each department is organized differently, it is possible here to describe only two groups of departmental officials: instructing officers and departmental legal advisers. They are responsible for explaining the objectives of the proposed legislative measure in an MC.

Officials in the Operations Secretariat of the Privy Council Office must be involved from the earliest stages.

Others who may assist in one way or another are legislative drafters in the Legislation Section of the Department of Justice.

Instructing Officers

An instructing officer's role is to co-ordinate the efforts of their department. The efforts include analysing and recommending the alternatives available to achieve the policy objectives, as well as communicating to the Cabinet the potential substance of the bill for which authorization is being sought, once the Minister has made a decision. This substance is expressed in the detailed instructions for drafting the bill.

The instructing officers' responsibilities include preparing the bill-drafting instructions for the MC and usually extend to many other aspects of the project, including the communication of detailed instructions to the drafters at the drafting stage.

This stage requires a considerable amount of work. The instructing officers must ensure that the approach adopted has been thoroughly examined. Clear and coherent drafting instructions can be formulated only with a thorough analysis of the issues that may arise. "Preparing Bill-drafting Instructions for a Memorandum to Cabinet" illustrates what elements of the proposed legislative measure must be brought to the attention of Cabinet.

Those who prepare the MC drafting instructions should also provide instructions at the bill-drafting stage. This will provide continuity and ensure that the drafters have the background information they need to draft the bill. The team of instructing officers must:

  • be knowledgeable about the subject matter of the proposal;
  • be able to formulate the instructions and answer questions about them in both official languages and ensure that each version is well-written and says the same thing;
  • be able to make policy decisions as drafting proceeds, or have access to decision makers.
Departmental Legal Adviser

The legal adviser's role is essentially to check the legal aspects of the proposed legislative measure and advise the instructing officer.

First, the legal adviser verifies that the proposed measure is needed to achieve the department's objectives.

Second, if it is needed, the legal adviser checks the legal aspects of the drafting instructions in the MC to ensure that the instructions are consistent in all respects with the applicable legal rules. To assist in this task, he or she may seek the services of the specialized legal counsel at the Department of Justice. If the proposed instructions are legally defective, the legal adviser must propose alternative solutions.

Third, the legal adviser provides information on what is involved in submitting the MC in terms of time constraints, procedure, essential elements of the proposed legislative measure to be brought to the attention of Cabinet and the consequences of Cabinet approval.

Fourth, the legal adviser advises on general principles and policies that may affect the proposed legislative measure, such as policies relating to gender equality, bijuralism and access to government information.

The legal adviser may also act as the instructing officer.

Privy Council Office

The involvement of PCO, beginning at the earliest stages of the development of an MC, is crucial. As the central agency that serves as secretariat to the Cabinet and its policy committees, PCO, and in particular the Operations Branch, is responsible for reviewing policy proposals and providing a foundation to enable consensus on recommendations to Cabinet. It also ensures that policy proposals can be considered strategically by ministers.

Officials in the Operations Branch of PCO perform four functions:

  • advising the departmental officials on policy questions and the Cabinet System to ensure coherence with the Government's broad agenda priorities and policy framework;
  • ensuring that Departments follow through on the Government's commitments so that they are addressed;
  • ensuring that the sponsoring department has followed all steps in the process, including consultation with appropriate departments and agencies;
  • posing questions about the proposed legislative measure, including questions about whether it is needed at all;
  • ensuring that other interested central agencies are aware of the proposed legislative measure so that it can be thoroughly studied before Cabinet sees it.
Legislative Drafters

Legislative drafters do not systematically participate in preparing the MC. Their main function is to draft legislation once Cabinet has approved the MC. However, departments are increasingly seeking their help— particularly with respect to the formulation of the drafting instructions—to avoid problems at the drafting stage.

Legislative drafters have both a sense of how the legislative process works as well as an overview of federal legislation as a whole. They can assist instructing officers on the following points:

  • the policy rationale for the proposed legislative measure,
  • determining the legal form the measure may take,
  • fitting the measure into the body of federal legislation,
  • determining the content of the drafting instructions,
  • inserting certain types of provisions into the measure,
  • selecting a comprehensive or specific solution to resolve a particular problem,
  • determining the time required for drafting and printing the bill.

The advice of legislative drafters may save the instructing officer time and trouble. For example, it may avoid having to go back to Cabinet to obtain authorization to include essential provisions.

Legislative drafters may also advise on general principles and policies that may affect the proposal, particularly on generally accepted drafting principles, such as those expressed in the Legislative Drafting Conventions of the Uniform Law Conference of Canada.

Good Governance Guidelines

The Good Governance Guidelines are a set of analytical criteria for use by departments and Ministers in the assessment and development of policy. They were developed as part of a broader exercise designed to improve policy-making in the federal government and facilitate high quality policy discussions in Cabinet Committees.

Policy Basics Test Has the problem been adequately identified and are the goals and objectives clearly defined

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?

Public Interest Test How would the proposal meet the needs of Canadians?

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?

Government Themes Test How would the proposal contribute to the Government's priorities as set out in the Speech from the Throne, the Budget, etc.?

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?

Federal Involvement Test What is the rationale for federal involvement in this area (e.g. constitutional, legal, scope of issue)?

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?

Question of Accountability Test Has an adequate  accountability framework been developed? (in particular for multi-stakeholder arrangements)

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?

Urging Partnerships Can this initiative benefit from joint planning and collaboration?

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?

Efficiency and Affordability Test Will the proposed option be cost-effective? 

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.)

Preparing a Memorandum to Cabinet

Form and Content

A Memorandum to Cabinet (MC) is a Minister's vehicle for submitting and explaining a proposal to the Cabinet and for obtaining its approval.

An MC conforms to a predetermined structure and style. This makes it easier for Ministers and their advisers to locate the information that interests them so that they can express an opinion on the proposal.

An MC is written in the two official languages and presented in a bilingual format. Both versions must be of equally high quality. This is because an MC is the cornerstone of the drafting process. An inadequately translated version that does not use appropriate terminology may create confusion and waste valuable time. Ministers should be able to expect a carefully written text, regardless of which language they use. Detailed guidance on the form and content of MCs is provided in Memoranda to Cabinet: A Drafter's Guide, published by the Privy Council Office .

An MC is composed of two main parts: the Ministerial Recommendation and the Analysis. Drafting instructions for the bill are also included in an annex.

Ministerial Recommendation

The Ministerial Recommendation describes the current situation (the problem) and the solution (legislative measure) being proposed. The financial aspect of the solution is also addressed. This is the only place in the memorandum where the Minister expresses his or her opinions and observations.

The Ministerial Recommendation also includes a communications synopsis and overview which sets out the main elements of the proposed legislative measure in respect of which communications come into play. The format is provided by the PCO.

The communications plan is contained in an annex to the MC and prepared by officials responsible for the department's public relations in close collaboration with the Minister's office. The plan anticipates possible public and media reaction to the proposed legislative measure and shows how the Minister intends to present and explain the proposal to the public, in both the short and long term.

The Ministerial Recommendation concludes with the Minister's main recommendation:

It is recommended that: ... the Legislation Section of the Department of Justice be authorized to draft [title of the bill] in consultation with [the responsible department(s) or bodies] and in accordance with the drafting instructions set out in annex [...]

Analysis

The Analysis describes various options that have been considered, the advantages and disadvantages of each one and their financial implications. It does not express an opinion; it is, instead, a detailed and objective explanation of the context and solutions.

Bill-drafting Instructions

The annex of drafting instructions serves two essential purposes.

  • It provides the members of Cabinet with enough information to understand the substance of the proposed legislative measure and make an informed decision, specifically by bringing the main questions to their attention.
  • It establishes the framework within which the people most directly involved in the drafting process (legislative drafters, instructing officers and departmental legal advisers) will have to work.

Detailed guidance on preparing drafting instructions follows.

Preparing Bill-drafting Instructions for a Memorandum to Cabinet

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:

  • act as a key mechanism for the Cabinet's control over the legislative process by giving Ministers a more detailed view of how the policy they are approving will be reflected in legislation;
  • provide an opportunity for the sponsoring department to think through its proposals;
  • provide an opportunity for other departments to appreciate how, if at all, the proposals will affect them;
  • guide the legislative drafters who eventually have to draft the bill;
  • serve as a benchmark for assessing whether the draft bill does what Cabinet authorized, or whether additional authority must be sought for particular provisions of the bill.

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.

Checklist for Preparing Bill-drafting Instructions for a Memorandum to Cabinet

This checklist covers the following elements:

  • Getting Started
    • Main objectives of the proposal
    • Time needed to prepare drafting instructions
    • Public commitments
  • General Legal and Policy Matters
    • Legal context
    • Policy context
    • Legal instruments for accomplishing policy objectives
  • Legal Structure of the Proposal
    • Combining matters in a single bill
    • Types of legal instruments
    • Provisions that should be in the Act
    • Provisions that should be in regulations
    • Incorporation by reference
    • Administrative instruments
    • Recipients of powers
  • Particular provisions
    • Titles
    • Preambles and purpose clauses
    • General application provisions
    • Application to the Crown
    • Public bodies and offices
    • Senior appointments
    • Financial provisions
    • Information provisions
    • Monitoring compliance
    • Sanctions for noncompliance
    • Enforcement powers
    • Appeals and review mechanisms
    • Dispute resolution mechanisms
    • Extraordinary provisions
  • Technical legislative matters
    • Sunset and review provisions
    • Repeals
    • Consequential and conditional amendments
    • Transitional provisions
    • Coming into force
  • Finishing touches
    • Internal consultation
    • External consultation
    • Time needed for drafting the bill and implementing the Act
    • Outstanding matters

Getting Started

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:

  • 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.

General Legal and Policy Matters

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:

  • 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?
    • Note that the Cabinet Support System instituted in 1991 requires the Analysis section of the MC to address the legal implications of the proposal, particularly those relating to the Charter and the constitutional division of powers. (see also "Constitutional Issues and the Cabinet Support System" in this chapter).
  • Does the proposal raise any gender or other equality issues?
    • Consult the handbook entitled "Diversity and Justice: Perspectives on Gender Equality", the gender equality specialists in the various sections of the Department of Justice or the Office of the Senior Advisor on Gender Equality and Diversity in that Department.
  • 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?
    • Any conflicting legislation should be specifically identified and the conflict should not be resolved by a general "notwithstanding" provision.
  • 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?
    • You can consult the Civil Code Section of the Department of Justice about legal concepts and institutions of the civil law of Quebec.

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:

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.

Legal Structure of the Proposal

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:

  • 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.

Particular Provisions

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:

  • 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?
    • if so, section 90 of the Financial Administration Act requires parliamentary approval for the incorporation of a corporation or the acquisition of shares on behalf of the Crown.
  • 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:
    • Financial Administration Act
    • Public Service Staff Relations Act
    • Public Service Employment Act
    • Employment Equity Act
    • Public Service Superannuation Act
    • Access to Information Act
    • Privacy Act
    • Official Languages Act

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").

Technical Legislative Matters

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. 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.

Finishing Touches

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:

  • 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.

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:

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.

Constitutional Issues and the Cabinet Support System

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.

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.

Proportionality of sentences for offences

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.

Harm:
  • 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.

Likelihood of detection:
  • 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.

Profit motive:
  • 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.

Aggravating factors:

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.

Enforcement Powers

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.

Guidelines for Granting Enforcement Powers under Federal Legislation

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.

Principles for the Attribution of Federal Enforcement Powers

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
  1. 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.
  2. Appointments shall be made by way of an appointment document or credentials that clearly state the power granted and any limitations upon that power.
  3. 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
  1. 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.
  2. A minimum threshold of training must be established before status enforcement power/status is granted.
  3. 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
  1. 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.
  2. 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.
  3. 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.
  4. 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
  1. 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.
  2. 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.
  3. 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
  1. 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.
Developing Compliance and Enforcement Policies

In February 1992, Treasury Board amended the Government's Regulatory Policy 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 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.

Activities and Products for Policy Development and Approval

The following table identifies key steps of the process of policy development and approval and describes the associated activities and products. This table should be used with the MC Preparation Planning Calendar, which follows it and provides guidance on the timeframes that should be built into the process.

Step Activities and Products

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.

MC Preparation Planning Calendar

Weeks before Cabinet Committee (CC) Meeting Monday Tuesday Wednesday Thursday Friday

Six Week Minimum:

Notification by Sponsoring Department(s)

Sponsoring Dept(s) alerts PCO that MC draft is forthcoming next week. Review of timelines and identification of horizontal linkages and Key Departments to be involved in MC preparation.

       

Five Weeks:

At least 72 hours to review MC prior to Key Departments' Meeting

First draft of MC distributed to Key Depts (including sharing an initial draft MC, without prejudice, with Key Depts for feedback on initial directions).

   

Meeting with Key Depts to review first draft of MC.

 

Four Weeks:

At least 72 hours to review MC prior to Inter-departmental

     

MC second draft distributed to Inter- departmental community for review.

 

Three Weeks:

Inter- departmental

 

Inter- departmental meeting (minimum 21 days before CC meeting)

     

Two Weeks:

Final Drafting Stages

MC third draft to Inter- departmental Community for review.

   

If required, Key or Full Inter- departmental meeting.

 

One Week:

MC to PCO

French/ English submission of MC to PCO

 

for CC (Social Union) meeting.

 

French/ English submission of MC to PCO for CC (Economic Union) meeting.