PART 5
DEVELOPING REGULATIONS
The Basic Steps and the Plain Language Approach

---

6. REVISE THE DRAFT REGULATION

Usability testing will identify changes you wish to make to the wording, policy concepts, organization or presentation style. Revisions can take time, depending on the test results received. Sometimes there are policy or legal reasons that prevent you from changing the regulations to respond to certain comments.

When all of the team members are satisfied with the final draft regulation, the drafters from the Regulations Section will "blue-stamp" the document and give it to the counsel from your Department Legal Services Unit. The blue stamp indicates that the document has been reviewed in accordance with the Statutory Instruments Act and that it is ready for the other steps in the regulatory process. Any necessary changes should also be made to the RIAS to be sure it reflects the final version of the regulation.

7. THE REGULATORY PROCESS

The steps to follow so that the regulation is approved and in force will depend on who must make or approve the regulation. The three possibilities are:

• (a) the Governor in Council makes the regulation,
• (b) another entity (such as a minister, agency or tribunal) makes the regulation, or
• (c) another entity makes the regulation with the approval of the Governor in Council.

Here is a list of the basic steps of the regulatory process, all of which are described in more detail below :

• (a) pre-publication in the Canada Gazette, Part I
• (b) ministerial recommendation (in all cases)
• (c) Treasury Board recommendation (when required)
• (d) regulation-making entity makes the regulation
• (e) approval by Governor in Council (when required)
• (f) registration, Clerk of the Privy Council
• (g) publication in the Canada Gazette, Part II

 

7.1 Pre-publication in the Canada Gazette, Part I

There may be either a statutory requirement for pre-publication or a Treasury Board policy that requires it. The drafters on the team can identify the category into which a regulation falls. You may request an exemption from the Special Committee of Council if there is no statutory requirement to pre-publish. Exemptions may be given for a number of reasons, including where sufficient exposure has been achieved through other means (e.g. newsletter or Internet) and the costs of publication in the Canada Gazette outweigh its benefits.

If the Governor in Council is to make the regulation, it must be forwarded via the Assistant Clerk of the Privy Council to the Special Committee for approval for prepublication. If another entity is to make the regulation, alone or with the approval of the Governor in Council, the regulation can go directly to the Canada Gazette for pre-publication.

7.2 Ministerial Recommendation

All orders of the Governor in Council must be recommended by the "sponsoring minister". In other words, the minister whose department is responsible for proposing the regulation writes to the Governor in Council, recommending that the regulation be officially "made" or approved, as the case may be. If the minister is not available, the acting minister can usually fulfil this role.

Once the ministerial recommendation is made, the regulation is sent to the Special Committee and then to the Governor in Council, via the Assistant Clerk of the Privy Council.

A ministerial recommendation is not sought if the Governor in Council has no role in the making of the regulation.

REFERENCE DOCUMENTS

The ministerial recommendation should be drafted in accordance with the instructions and examples contained in the following:

Directives on Submissions to the Governor in Council and Statutory Instruments/Directives sur les présentations soumises au gouverneur en conseil et les textes réglementaires, Privy Council Office (1985).

7.3 Treasury Board Recommendation

Whenever a regulation has financial implications, such as fees for the use of services or facilities or for the enjoyment of rights or privileges, a recommendation of the Treasury Board is required.

REFERENCE DOCUMENTS

• The Federal Regulatory Process, An Interim Procedures Manual for Departments and Agencies, Regulatory Affairs Directorate (1991). In particular, see Section C of Chapter 2, Regulations Requiring the Recommendation of Treasury Board.

• Treasury Board Circular 1987-15: Orders in Council Requiring the Recommendation of Treasury Board. Treasury Board Submissions Guide, Submission and Cabinet Document Centre, Treasury Board (Sept. 1994).

• Treasury Board 1996 Regulatory Process Guide, Treasury Board (July 96).

7.4 Regulation-making Entity Makes the Regulation

The actual making or signing of a regulation by the regulation-making authority is essential to its validity. A regulation that has not been made by the proper regulation-making entity has no legal effect.

For this reason, there must be an official document certifying that the regulation has been made. The name of this document varies according to whether the authority making the regulation is the Governor in Council, a minister, an agency or another entity. For example, when the Governor in Council or a minister makes a regulation, the official document is called an order. When the regulation-making authority is some other entity, the form of the making document may depend on the practice of the entity or may be described in the Act that created the entity. In all cases, you can contact the legislative drafters on the team for assistance in drafting this document.

REFERENCE DOCUMENTS

Where the regulation-making document is an order of the Governor in Council, which is called an "Order in Council", refer to the following for more information on drafting instructions and examples:

Directives on Submissions to the Governor in Council and Statutory Instruments/Directives sur les présentations soumises au gouverneur en conseil et les textes réglementaires, Privy Council Office (1985).

7.5 Registration, Clerk of the Privy Council

A regulation must be registered within the seven days after its making. To register a regulation, send it to the Clerk of the Privy Council, who will record the name of the regulation, the name of the regulation-making entity, the authority under which it was made, the date on which it was made and the date of registration. The regulation will be assigned an "SOR number" at that time, the acronym "SOR" (for Statutory Orders and Regulations) followed by a number which distinguishes that regulation from others.

Registration is crucial because the date of registration is often the date on which a regulation comes into force.

Some (a very few) regulations are exempt from registration. The drafters on the team can tell you whether your regulation falls into an exempt category.

REFERENCE DOCUMENTS

For more information on the registration of regulations, refer to the following:

Statutory Instruments Regulations, C.R.C., c.1509, sections 4 to 9. Interpretation Act, R.S., c. I-21, section 6.

7.6 Publication in the Canada Gazette, Part II

A regulation must be published in the Canada Gazette, Part II, within 23 days after the date of its registration. The Assistant Clerk of the Privy Council will coordinate the publication after it has been registered.

Some regulations are exempt from publication. The drafters on the team can tell you whether your regulation is exempt. A regulation cannot be ruled invalid just because it has not been published in the Canada Gazette, Part II. Conversely, it is not likely to be enforced, because someone cannot be convicted of contravening a regulation that had not been published by the time of the alleged offence unless reasonable steps were taken to inform potentially affected persons of the substance of the regulation.

REFERENCE DOCUMENTS

• Statutory Instruments Act, R.S., c. S-22, sections 10 to 12.

• Statutory Instruments Regulations, C.R.C., c. 1509, sections 9 to 15.

---

• [ Previous Page 
• | Table of Contents 
• | Next Page ]