PART 2
THE REGULATORY PROCESS

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6. PUBLICATION

Under section 10 of the SIA, the Canada Gazette is the official gazette of Canada and is published by the Queen's Printer. It comprises three parts: Part III, which is reserved for public Acts of Parliament; Part II, which contains regulations as well as certain statutory instruments and other documents of public interest; and Part I, in which are generally found instruments that are required by the enabling Act to be published but that do not meet the criteria of Parts I and II.

6.1 Prepublication — Canada Gazette, Part I

Proposed regulations are "prepublished" mainly to enable the public to have a voice in the regulatory process.

Most draft regulations are prepublished in the Canada Gazette, Part I, which is published every Saturday.^[30] Proposed regulations that are published in the Canada Gazette, Part I, are

• (a) those that are required by their enabling Act to be published in the Canada Gazette (statutory prepublication); and
• (b) those that are required to be published in accordance with the Government's policy on prepublication of proposed regulations (administrative prepublication).

This administrative prepublication policy was adopted in 1986 and implemented under the direction of the Regulatory Affairs Division of the Treasury Board Secretariat and the Policy Secretariat of the Privy Council Office.

The great majority of draft regulations are published in accordance with the administrative prepublication policy. In several cases, however, the prepublication requirement is set out in the enabling Acts.^[31] Generally speaking, these Acts have a significant impact on the public, and Parliament therefore considered it appropriate to make such a provision. The basic difference between administrative prepublication and statutory prepublication is that, in the latter case, there is no exemption from the requirement.

The administrative prepublication policy applies to regulations within the meaning of the SIA that are not exempted from publication under the Statutory Instruments Regulations; in other words, to instruments designated "SOR". Excluded, however, are draft regulations from the Canadian Radio-television and Telecommunications Commission (CRTC) and the Copyright Board, although these agencies can comply with the policy if they wish. In special cases, particularly emergencies, the Special Committee of Council may grant an exemption from prepublication.^[32]

One important element of the prepublication policy is the Regulatory Impact Analysis Statement (RIAS), which summarizes the content of the proposed regulations and is published together with the regulations.^[33] Regulations that are not subject to the prepublication policy are accompanied by an explanatory note instead of a RIAS.^[34]

6.1.1 Statutory prepublication

If prepublication is required by the enabling Act, the draft regulation submitted to the Regulations Section is accompanied by a notice of prepublication, which is examined by the Regulations Section along with the proposed regulation.^[35]

In such cases, the stamped copies prepared by the Regulations Section for prepublication in the Canada Gazette, Part I, bear, in the upper right corner, the designation "CG‑I/GC-I", instead of the designation "SOR/DORS".

6.1.2 Administrative prepublication

Regulations that are subject to the administrative prepublication policy are submitted to the Regulations Section together with an order in council or other executive order. A draft notice of prepublication need not be sent to the Regulations Section for examination.

6.2 Publication — Canada Gazette, Part II

The Canada Gazette, Part II, is published every second Wednesday.^[36] It contains

• (a) all regulations, except those exempted from publication under section 15 of the Statutory Instruments Regulations;
• (b) the statutory instruments and other documents referred to in subsection 11(3) of those Regulations; and
• (c) any statutory instruments or other documents directed or authorized by the Clerk of the Privy Council, pursuant to section 14 of those Regulations, to be published in the Canada Gazette, Part II.^[37]

The above regulations and other instruments are first examined by the Regulations Section.^[38] However, only regulations are required to be examined under the SIA. Statutory instruments and other documents are examined by the Regulations Section as part of an administrative process in which the Section acts as legal adviser to the Privy Council Office.

Subsection 11(1) of the SIA states that every regulation must be published in the Canada Gazette within twenty-three days after its registration. Subsection 11(2) stipulates that no regulation is invalid by reason only that it has not been published, but that no person shall be convicted of an offence for contravening a regulation that at the time of the alleged contravention was not published in the Canada Gazette, unless certain conditions are met.^[39]

6.2.1 Statutory prepublication

If proposed regulations have been prepublished in the Canada Gazette, Part I, pursuant to a statutory requirement and no changes to the regulations have been made after the consultation period, the regulations must be resubmitted to the Regulations Section for re-examination together with an order in council or other executive order which states that prepublication has already taken place. The proposed regulations are then published in the Canada Gazette, Part II.

If, however, changes have been made to the proposed regulations after the consultation period, the regulations must be resubmitted to the Regulations Section for re-examination and be

• (a) prepublished once again in the Canada Gazette, Part I, if the changes are substantive and do not result from consultation, or if the enabling Act requires further prepublication; or

• (b) published in the Canada Gazette, Part II, if the changes are not substantive or if the enabling Act exempts the proposed regulations from further prepublication, whether or not they have been amended.^[40]

6.2.2 Administrative prepublication

If proposed regulations have been prepublished in the Canada Gazette, Part I, in accordance with the administrative prepublication policy and no changes have been made to the regulations after the consultation period, the regulation-making authority need not obtain new stamped copies from the Regulations Section. It may submit the second set of copies (in both official languages) to the Privy Council Office for publication in the Canada Gazette, Part II.^[41]

If changes are made to proposed regulations after prepublication in the Canada Gazette, Part I, the proposed regulations must be resubmitted to the Regulations Section for re-examination.

6.2.3 Re-examination

When proposed regulations are submitted to the Regulations Section for re‑examination, all changes made further to prepublication should be clearly highlighted. Also, if the covering letter is not sent directly to the lawyers who examined the proposed regulations for publication in the Canada Gazette, Part I, the covering letter should state the names of those lawyers, the Regulations Section file number and the date of prepublication in the Canada Gazette, Part I.

Copies that were stamped more than six months earlier no longer have to be resubmitted to the Regulations Section for examination and restamping. However, resubmission is required either if the enabling provision has been amended since the date of stamping but before the regulations were made, or if another instrument that affects the regulations has been made in that period.

6.2.4 Printing errors

Errors occasionally occur during publication of the regulations in the Canada Gazette, Part II, with the result that published regulations do not correspond to the stamped copies from the Regulations Section. In such cases, the Registrar of Statutory Instruments at the Privy Council Office should be advised of the errors so that an erratum can be published in a subsequent issue of the Canada Gazette, Part II.

In accordance with the Privy Council Office policy, no erratum is published after the six-month period following publication of the regulations.

7. COMING INTO FORCE

It is important to distinguish between, on one hand, regulations within the meaning of the SIA and, on the other hand, statutory instruments and other documents that are not regulations. As a general rule, regulations come into force on the day on which they are registered, and statutory instruments and other documents come into force at the time at which they are made.

7.1 Date of registration

If there is no mention in the regulations of a coming-into-force date, the regulations come into force on the expiration of the day immediately before the day on which the regulation is registered pursuant to section 6 of the SIA.^[42]

Since March 1996, however, the Regulations Section has adopted a policy requiring all proposed regulations to include at the end a coming-into-force provision.^[43] If the proposed coming-into-force date is the date of registration, the coming-into-force provision should read as follows: "These Regulations come into force on < >". The blank space will be filled in by the staff at the Canada Gazette at the time of printing. In the case of Part I, the staff at the Gazette will insert the expression "the date on which they are registered". In the case of Part II, they will insert the actual date of registration. It should be noted that this practice applies only to regulations (instruments that have an "SOR" designation).

7.2 Date preceding registration

A regulation may come into force on the day on which it is made, or on a later day that precedes the day on which the regulation is registered, if

• (a) the regulation expressly states that it comes into force on a day earlier than the date of registration;

• (b) the Clerk of the Privy Council is advised in writing by the regulation-making authority, pursuant to subsection 9(2) of the SIA, of the reasons why it is not practical for the regulation to come into force on the day on which it is registered; and

• (c) the regulation is registered, pursuant to paragraph 9(1)(a) of the SIA, within seven days after it is made.

This does not mean, however, that a regulation can be retroactive — i.e., that it can have effect before the day on which it is made — unless authorized by the enabling Act. The period referred to above is the period after which the regulation is made and before which the regulation is registered.

Subsection 11(2) of the SIA provides that no person shall be convicted of an offence consisting of a contravention of any regulation that was not published at the time of the alleged contravention. However, according to that subsection, this defence is not available if

• (a) the regulation was exempted from the publication requirement or expressly provides that it applies according to its terms before it is published in the Canada Gazette; and
• (b) it is proved that at the date of the alleged contravention reasonable steps had been taken to bring the purport of the regulation to the notice of those persons likely to be affected by it.

Consequently, in order to allow for the successful prosecution of offences committed before the regulation was published, it is essential that the regulation include a provision stating expressly that it applies before its publication. That express provision is followed by the usual coming-into-force provision.

Example:

application prior to publication

  18. For the purposes of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations shall apply according to their terms before they are published in the Canada Gazette.

COMING INTO FORCE

  19. These Regulations come into force on (insert the date or the statement "the date on which they are made").

A regulation that is exempted from registration comes into force on the day on which it is made.^[44] The classes of regulations exempted from registration are found in section 7 of the Statutory Instruments Regulations.

A statutory instrument or other document that is not a regulation — including one that is registered under section 6 of the SIA — comes into force at the time at which it is made.^[45]

7.3 Date following registration

A regulation may come into force at a date later than the date of registration, in which case the later date is expressly stated in the coming-into-force provision.

7.4 Date provided for in the enabling Act

In certain Acts, Parliament has expressly provided for the coming into force of regulations made under those Acts.

For example, subsection 221(2) of the Income Tax Act states

  (2) A regulation made under this Act shall have effect from the date it is published in the Canada Gazette or at such time thereafter as may be specified in the regulation unless the regulation provides otherwise … .^[46]

In such cases, no coming-into-force provision is included in the regulations because the enabling Act expressly provides for the coming-into-force date, which is the date of publication in the Canada Gazette.

A coming-into-force provision is necessary if the regulations have a retroactive effect or if the date of coming into force follows the date of publication in the Canada Gazette.

Here are some examples of coming-into-force provisions that are used to give regulations a retroactive effect.

  5. These Regulations are deemed to have come into force on November 9, 1991.

  26. These Regulations come into force or are deemed to have come into force on November 29, 1991.

This last wording is used if the proposed regulations are stamped before the date mentioned but might not actually be made until after that date.

In tax regulations, including regulations made under the Income Tax Act and the Excise Tax Act, it has long been the practice to draft the coming-into-force provisions as follows:

  16. (1) Sections 1, 3 and 4 apply after October 8, 1986.

  (2) Section 2 applies after 1979.

The same approach is used for deferred coming-into-force provisions.

  (3) Section 12 applies after 1999.

It should be noted that, in these two Acts, the provision concerning the retroactive effect of regulations uses the words "come into force", whereas in their regulations the coming-into-force provisions use the word "apply".

8. PARLIAMENTARY SCRUTINY

Although Parliament has delegated a significant portion of its legislative power to the executive branch, it has retained responsibility for monitoring the way in which this delegated power is exercised. Under section 19 of the SIA, every statutory instrument, including regulations, is subject to review and scrutiny by a standing joint committee of the Senate and House of Commons, namely, the Standing Joint Committee for the Scrutiny of Regulations. Justification of this mechanism for reviewing the acts of government resides in the principle that legislative, executive and judicial functions must be exercised independently.

Exempt from such control are statutory instruments precluded under paragraph 20(d) of the SIA from being communicated by means of inspection or copying for reasons of national security or because such communication would result or be likely to result in injustice or undue hardship.

Similarly, the rules of practice and procedure of courts of law, such as the Supreme Court of Canada, the Federal Court of Canada and the Tax Court of Canada, are not subject to such control. The Committee decided, in the interests of judicial independence, to stop examining them, even though they involve the exercise of a legislative rather than a judicial function. Conversely, the rules of practice of administrative tribunals, such as the Canadian Transportation Agency and the Canada Labour Relations Board, whose members are appointed on a temporary basis, continue to be subject to review and scrutiny by the Committee.^[47]

To carry out its obligation, the Committee checks statutory instruments against various criteria approved by the Senate and the House of Commons at the beginning of each session of Parliament.^[48] Several of these criteria match those set out in subsection 3(2) of the SIA.

Besides having the power to send for persons and documents and to report its findings,^[49] the Committee may, under section 123 of the Standing Orders of the House of Commons, "make a report to the House containing only a resolution which, if the report is concurred in, would be an Order of this House to the Ministry to revoke a statutory instrument, or a portion thereof, which the Governor in Council or a Minister of the Crown has the authority to revoke". The Committee has exercised this extraordinary power on a few occasions, when a department refused to amend or revoke a statutory instrument. It should be noted that this power may be used only in the case of statutory instruments that the Governor in Council or a minister has the power to revoke, and not in the case of statutory instruments made by an agency or other body.

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