COMING-INTO-FORCE ORDERS

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General

Most statutes delegate to the Governor in Council the power to fix their coming‑into-force date.

The provision that authorizes the coming into force of the whole Act on one day is worded as follows:

  63. This Act comes into force on a day to be fixed by order of the Governor in Council.

The provision that authorizes the piecemeal coming into force of the Act is worded as follows:

  74. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

A more detailed formulation is sometimes used in an amending Act to provide for the coming into force of provisions enacted by the amending Act:

  221. The provisions of this Act, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.

Sometimes an amending Act will replace a provision in another Act (the main Act) that is not in force. When the amending Act comes into force, the amendment is merged into the main Act. Note that the new provision will come into force in accordance with the coming-into-force provision in the main Act. See Potter Distilleries Ltd. v. R.^[1] and the approach recommended in the Legislation Deskbook for amending an Act that is not in force.^[2]

Also, note that subsection 5(3) of the Interpretation Act provides that commencement provisions come into force on assent.

A coming-into-force order cannot provide for the coming into force of an Act or a provision of an Act on a day before the day on which the order is made because this would give the Act retroactive effect. The order could give the Act retroactive effect only if there is specific statutory authority to do so.

If a coming-into-force order states that an Act or a provision of an Act is to come into force on a particular day, the Act or provision comes into force on the expiry of the previous day.^[3]

If a coming-into-force order has been made that brings an Act or a provision of an Act into force on a particular day, once that day has passed, the order is spent and cannot be repealed or amended so as to fix another day as the day of commencement. Once the power under the Act to issue the order is exercised, only an Act of Parliament can change the commencement day. However, if a coming-into-force order has been issued to bring an Act or a provision of an Act into force on a particular day and that day has not yet arrived, the order can be amended or repealed.

If an Act provides that it expires, lapses or otherwise ceases to have effect on a day to be fixed by order, the above rules apply, except that the Act ceases to have effect on the beginning of the day after the day stated in the order.^[4]

Coming-into-force orders are not "regulations", but are "statutory instruments", within the meaning of those terms in the Statutory Instruments Act. Paragraph 11(3)(g) of the Statutory Instruments Regulations requires that orders fixing the day or days on which an Act or provision comes into force be published in the Canada Gazette, Part II. Paragraph 6(b) of the Statutory Instruments Act requires that they be registered by the Clerk of the Privy Council. Coming-into-force orders are designated "SI". The appropriate regulations section examines coming-into-force orders in its role as legal advisor to the Clerk of the Privy Council. The examination proceeds from an administrative practice and not from a legislative requirement.

Coming-into-force orders are published together with an explanatory note. (see explanatory note)

Checklist for drafting a coming-into-force order

1. Check if the coming-into-force provision in the Act provides sufficient authority for the type of coming-into-force order envisioned.

2. Check if there are coming-into-force provisions located elsewhere than at the end of the Act.

3. Check for previous coming-into-force orders to determine which provisions are already in force.

4. Check if any of the provisions that are being brought into force require the making of regulations and whether the authority to make those regulations is in force. If some of the provisions require regulations, determine if the regulations will be enacted when those provisions are scheduled to come into force. If any of the provisions to be brought into force contain a phrase like "subject to the regulations" or "in accordance with the regulations", or if the general regulation making section specifically refers to the provision to be brought into force, but there will be no regulations in place when the provision is to come into force, evaluate how the courts would likely interpret the operation of the provision without regulations and the associated legal risks.^[5]

   If the provision to be brought into force contains words like "must meet the requirements set out in the regulations" or "must provide the prescribed information or documents", the provision should not be brought into force until those regulations are enacted.

5. If only a portion of an Act is being brought into force, take into account the following limitations:

   • verify that what is coming into force is a provision,^[6] e.g. a legislative unit. A coming-into-force order should not bring a section into force but omit a specified word or words.

   • determine if some provisions are so closely related that it does not appear possible to bring one into force without the other. For example, if one provision establishes an agency and others set out its powers, the provisions setting out the powers should not be brought into force unless the one establishing the agency is also brought into force. Also, a provision that uses a defined term should not be brought into force unless the definition is also brought into force.

   • determine if the effect of the coming-into-force order would thwart Parliament's intent, for instance, by bringing into force an application provision but not its exceptions.

   • verify that what is being brought into force forms a sentence.

   • in an amending Act, if a provision replaces one or more sections with several new sections, the coming-into-force order should not bring any of the new sections into force unless one or more of the original sections are repealed and it is clear how the new sections correspond to the original sections (for example, it is clear from the subject matter of the new section X that it is intended to replace the original section X).

   • if one provision repeals several consecutive sections, those sections cannot be repealed piecemeal^[7].

6. Check the location of all headings. The article "AMENDING CLAUSES" (see note to item 13, B. REPLACEMENT) states that all headings within the block of sections described in the amending clause are implicitly included in the block being replaced.

By analogy, the practice is not to mention headings when referring to a group of consecutive provisions in a coming-into-force order, e.g. if the coming-into-force order says that sections 5 to 25 are in force, any headings in between those provisions are included. However, if the block of sections is preceded by a heading, the practice is to mention that heading.

Examples

Coming into force of the whole Act

When drafting a coming-into-force order that brings the whole Act into force, it is not necessary to expressly exclude the commencement provisions.

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 43 of An Act to amend the Young Offenders Act and the Criminal Code, chapter 19 of the Statutes of Canada 2005, hereby fixes December 1, 2006 as the day on which that Act comes into force.

Note that coming-into-force orders no longer refer to the date of assent.

Coming into force of the whole Act other than provisions in force on assent

When drafting a coming-into-force order that brings the whole Act-into-force other than provisions that came into force on assent, the coming-into-force order should mention the provisions that came into force on assent, except for the commencement provisions.

Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 47 of the Remote Sensing Space Systems Act, chapter 45 of the Statutes of Canada 2005, hereby fixes April 5, 2007 as the day on which that Act comes into force, other than section 46, which came into force on assent.

For reasons of concision, an Act should be cited by its short title, even if the Act is not in force.

Coming into force of a portion of a statute

There are two approaches that can be used when drafting a coming into force order that brings into force a portion of an Act. The first is to set out only those provisions that are coming into force.

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to section 14 of An Act to amend the Lobbyists Registration Act and to make related amendments to other Acts ("the Act"), chapter 12 of the Statutes of Canada 2005, hereby fixes January 31, 2006 as the day on which subsection 1(1) and sections 2 to 4 of the Act, sections 9, 10 and 10.3 to 10.6 of the Lobbyists Registration Act, as enacted by section 5 of the Act, and sections 6, 7, 9, 10, 12 and 13 of the Act come into force.

The second approach is to provide that the Act is coming into force except for the provisions that came into force on assent (other than the commencement provisions), the provisions that are otherwise already in force and the provisions that will not be brought into force. In the explanatory note for the order, it would be useful to identify the excluded provisions that are not in force and to indicate when the other excluded provisions came into force. If the number of provisions that are already in force is greater than the number of provisions to be brought into force, consider drafting the order using the first approach.

Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 47 of the Remote Sensing Space Systems Act, chapter 45 of the Statutes of Canada 2005, hereby fixes April 5, 2007 as the day on which that Act comes into force, other than sections 10, 15, 35 and 46.^[8]

Order amending a coming-into-force order

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to section 61 of An Act to amend the Copyright Act, chapter 24 of the Statutes of Canada 2006, hereby amends Order in Council P.C. 2006-1065 of July 25, 2006 by replacing paragraph (b) with the following:

• (b) September 1, 2007 as the day on which subsection 67.1(2) of the Copyright Act, as enacted by section 45 of An Act to amend the Copyright Act, comes into force;

• (c) January 1, 2008 as the day on which section 67 and subsection 67.1(1) of the Copyright Act, as enacted by section 45 of An Act to amend the Copyright Act, come into force.

Proclamations

Coming-into-force provisions in older statutes state that the Act or any of its provisions come into force on a day to be fixed by proclamation, rather than by order.

An order in council is required to authorize the issuance of every proclamation bringing an Act or a provision of an Act into force.^[9] The order in council may be repealed or amended at any time before the proclamation is issued. If the proclamation has been issued and the coming-into-force date has not passed, there must be a new order in council recommending that a proclamation be issued repealing or amending the former proclamation, and not an order in council amending the earlier order in council.

A proclamation cannot provide for the coming into force of an Act or a provision of an Act on a day before the day on which the order in council authorizing its issuance is made because this would give the Act retroactive effect. The proclamation could give the Act retroactive effect only if there is specific statutory authority to do so.

The proclamation can provide that an Act or a provision of an Act comes into force on the same day as the order in council authorizing its issuance, even though the proclamation is actually issued on a later day.^[10]

Part 4 – Table of contents

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Footnotes

• ^[1] (1981), 132 D.L.R. (3d) 190 (BCCA) aff'g (1980), 111 D.L.R. (3d) 167 (BCSC).

• ^[2] See section 3.6 of the Legislation Deskbook under the heading Commencement - Amendment of Provisions Not in Force.

• ^[3] Subsection 6(1) of the Interpretation Act.

• ^[4] Subsection 6(1) of the Interpretation Act.

• ^[5] See John Mark Keyes, "Required rule-making: When do you have to make delegated legislation?" (2001) 15 Canadian Journal of Administrative Law and Practice at 293.

• ^[6] See Reference re: Criminal Law Amendment Act, 1968-69 (Canada), s. 16, [1970] SCR 777.

• ^[7] See section 3.6 of the Legislation Deskbook under the heading Day of Commencement - Consecutive repeal or replacement.

• ^[8] Note that there is no mention that section 46 came into force on assent.

• ^[9] Subsection 18(2) of the Interpretation Act.

• ^[10] Subsection 18(3) of the Interpretation Act.