COMING-INTO-FORCE PROVISIONS

(DISPOSITIONS D'ENTRÉE EN VIGUEUR)

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This article, unless otherwise noted, applies to regulations within the meaning of that term in the Statutory Instruments Act.

In general, every regulation concludes with a coming-into-force provision.^[1]

1. Location and form

The coming-into-force provision is the last provision of regulations, although it is placed before the schedules in new regulations that contain schedules and in amending regulations that add or replace whole schedules.

The coming-into-force provision is in bold type if any preceding provisions are in that typeface (for example, amending formulas, repeal provisions and transitional provisions). In all other cases, it is not in bold.

2. Date of registration

Unless regulations are to come into force on a specific day or on the occurrence of an event, regulations come into force on the day of their registration by the Clerk of the Privy Council.^[2]

The coming-into-force provision reads as follows:^[3]

  10. These Regulations come into force on the day on which they are registered.

Statutory instruments and other documents that are not regulations generally come into force when they are made, not when they are registered.^[4]

3. Date expressly mentioned

If regulations are to come into force on a given date - which generally cannot precede the making of the regulations^[5] - the coming-into-force provision sets out that date:

  43. These Regulations come into force on January 1, 2008.

If there is a high probability that the regulations may be made or registered after January 1, 2008, the following provision may be used to avoid an unauthorized retroactivity:^[6]

  43. These Regulations come into force on January 1, 2008, but if they are registered after that day, they come into force on the day on which they are registered.

Sometimes it is necessary that regulations come into force at a particular time, for example:

  3. These Regulations come into force at 00:00:03 a.m. PDT on February 2, 2007.

In fiscal regulations, such as those made under the Income Tax Act and the Excise Tax Act, there is a well-established practice of drafting coming-into-force provisions as follows when the coming into force occurs on a future date:

application

  16. Section 12 applies after 2008.

4. Date related to an event

In some cases, the coming into force of regulations is conditional on another event, such as the coming into force of an Act or one of its provisions.

  12. These Regulations come into force on the day on which section 43 of the Canada-Israel Free Trade Agreement Implementation Act, chapter 33 of the Statutes of Canada 1996, comes into force.

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

If there is a high probability that the regulations may be made or registered after section 43 comes into force, the following provision may be used to avoid an unauthorized retroactivity:

  12. These Regulations come into force on the day on which section 43 of the Canada-Israel Free Trade Agreement Implementation Act, chapter 33 of the Statutes of Canada 1996, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

5. Multiple dates

In other cases, it is provided that regulations come into force in stages.

Example 1:

  9. (1) These Regulations, except subsections 3(2) and 4(2), come into force on the day on which they are registered.

(2) Subsections 3(2) and 4(2) come into force on December 1, 2007.

Example 2:

  21. (1) These Regulations, except section 10, come into force on November 1, 2007.

(2) Section 10 comes into force on December 1, 2007.

Example 3:

  13. (1) Subject to subsection (2), these Regulations come into force on March 1, 2007.

(2) Items 2.3, 2.4 and 3.2 of Part 2 of Schedule 3 to the Contraventions Regulations, as enacted by section 6 of these Regulations, come into force on June 1, 2007.

Example 4:

  4. These Regulations come into force

(a) in respect of passenger cars, on September 1, 2007; and

(b) in respect of multipurpose passenger vehicles and trucks, on September 1, 2008.

6. Retroactivity

Some Acts provide for the making of regulations with retroactive effect. The coming-into-force provision of the regulations uses the verb "deem" to express the fiction of going back in time for the coming into force.

Example 1:

  6. These Regulations are deemed to have come into force on November 9, 2003.

Example 2:

  22. These Regulations come into force, or are deemed to have come into force, on November 29, 2007.

The wording in example 2 is used if the proposed regulations are stamped before the date mentioned and there is a high probability that they will not be made until after that date.

In fiscal regulations, such as those made under the Income Tax Act and the Excise Tax Act, there is a well-established practice of drafting coming-into-force provisions as follows:

application

  16. (1) Sections 1, 3 and 4 apply after October 8, 2005.

(2) Section 2 applies after 1999.

7. Marginal notes

In new regulations, if marginal notes are used and there are no headings, the marginal note is "Coming into force". If there is a heading "COMING INTO FORCE", the marginal note should reflect the day that the regulations come into force. For example, if the regulations come into force on registration, use "Registration" or, if the regulations come into force on a day expressly mentioned, use that day as the marginal note: "January 1, 2007". If the coming into force is tied to the coming into force of an Act, use the citation of the Act: "S.C. 2007, c. 6".

8. Amending regulations that are not in force

Sometimes it is necessary to amend a provision of a regulation (the main regulation) that is not in force. In this case, the amending regulations should use the coming into force provision set out in item 2 above so that they will come into force on the day on which they are registered. The effect will be that the amendment is merged into the main regulation on the day on which the amendment is registered. The amended provision will come into force in accordance with the coming into force provision in the main regulation. This approach is consistent with Potter Distilleries Ltd v. R.^[7] and the approach recommended in the Legislation Deskbook for amending an Act that is not in force.^[8]

Part 4 - Table of contents

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Footnotes

• ^[1] There is an exception when an Act expressly provides for the coming into force of its regulations. See item 7.4 in Part 2 - DATE PROVIDED FOR IN THE ENABLING ACT.

• ^[2] See section 9 of the Statutory Instruments Act.

• ^[3] Drafting Advisory No. 1998-1

• ^[4] See DATE OF REGISTRATION, item 7.1 in Part 2 for more details.

• ^[5] See DATE PRECEDING REGISTRATION, Item 7.2 in Part 2 for the exceptions to this principle.

• ^[6] If the regulations were made on January 1, 2008 but not registered within 7 days after that date, the problem would not be retroactivity but an inconsistency between section 43 and the effect of subsection 9(1) of the Statutory Instruments Act. Paragraph 9(1)(a) of that Act provides that regulations cannot come into force before registrations unless the regulations expressly state that they come into force on a day before registration and are registered within 7 days after being made. Thus, if the regulations containing section 43 were registered on January 9, 2008, 9(1)(a) would not apply and the regulations would come into force, not on January 1, 2008, but on registration.

• ^[7] (1981), 132 DLR (3d) 190 BCCA aff'g (1980), 111 DLR (3d) 167 BCSC

• ^[8] See section 3.6 of the Legislation Deskbook under the heading Commencement - Amendment of Provisions Not in Force