Notice to Readers
The consultation period on this draft has now closed. We are considering all input when finalizing the draft Cabinet Directive on Regulation. Thank you for your participation.
Governor in Council
Governor General in Council or Governor in Council means the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada.
Since December 2003, advice to the Governor General on behalf of the Queen’s Privy Council has been provided by the Treasury Board.
Treasury Board ministers consider the regulatory submission and decide whether to recommend that the Governor General make the regulations as presented in their final form.
Departments and Agencies
Federal departments and agencies must comply with this Directive and its related policies and guidance at all stages of the regulatory life cycle.
When drafting enabling legislation, departments and agencies will ensure that subordinate legislative instruments are subject to the requirements of the Statutory Instruments Act. Regulations should not be exempted from these requirements except in exceptional circumstances, when approved by Cabinet. Seeking to obtain an exemption from the Statutory Instruments Act to avoid the requirements of the Cabinet Directive on Regulation is not justified.
Requirements governing legislative instruments are set out in the Cabinet Directive on Law-making.
Treasury Board of Canada Secretariat
The Treasury Board of Canada Secretariat (TBS) is responsible for supporting Ministerial decision making and oversight. TBS is expected to:
- provide advice and guidance to departments and agencies concerning the development of regulatory proposals and compliance with the Directive;
- work with departments and agencies to provide ministers and the Cabinet committee responsible for Governor-in-Council decisions with the necessary information to make decisions on the issues before them;
- review regulatory proposals, challenge departments and agencies on the quality of regulatory analyses, and advise them when the directions set out in the Directive have not been met;
- promote policy coherence among new proposals, existing policies, and the government’s policy agenda;
- be the source of expertise on good regulatory practices; and,
- assess the effectiveness of the Directive and its implementation.
TBS is responsible for stakeholder education and awareness for the regulatory process and good regulatory practices.
It will also maintain current policies, guidance, and tools in support of the implementation of the Cabinet Directive on Regulation.
Privy Council Office
The role of the Privy Council Office (PCO) is to assess memoranda to Cabinet and legislative proposals with regard to instrument selection, regulatory implications, and consistency with this Directive and with the Cabinet Directive on Law-making. Under the Statutory Instruments Act, the PCO- OIC also has a number of responsibilities in the regulatory process:
- Together with the Department of Justice, examines regulations for any issues and advises the regulation-making authority.
- Within seven (7) days after making a regulation, the regulation-making authority transmits copies of the regulation in both official languages to PCO, which then registers them. PCO can refuse registration if it deems that certain sections of the Statutory Instruments Act were not followed.
- Coming into force:
- As normally regulations come into force the day they are registered or later as specified in the regulation, a justification must be provided to PCO for those that are expressed to come into force earlier than the day of registration.
- Quarterly consolidated index of regulations:
- prepares a quarterly consolidated index of all regulations and amendments to regulations in force at any time after the end of the preceding calendar year.
- Revisions and consolidation:
- after consultation with the Deputy Minister of Justice, can ask regulation-making authorities to revise or consolidate regulations.
Department of Justice
The Department of Justice provides legal advice to departments and agencies on the legality of proposals for enabling and subordinate legislation, and the legal requirements of the regulatory process.
In doing so, the Department of Justice provides drafting services to departments and agencies and, under the Statutory Instruments Act, examines all proposed regulations to ensure that they:
- have the necessary legal authorization to be made;
- are consistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, 1960;
- are not an unusual or unexpected use of the enabling authority; and,
- are drafted in accordance with established standards.
The Department of Justice also provides departments and agencies with legal tools and advice on the appropriate use of government instruments, regulatory techniques, international standards, and compliance and enforcement techniques.
The Department of Justice and Global Affairs Canada are responsible for advising on the effect of Canada’s international legal obligations, including their implementation in domestic law. The Trade Law Bureau, of the Department of Justice and Global Affairs Canada, is responsible for advising departments and agencies on Canada’s trade law obligations.
Q5. Is there any another aspect of the proposed CDR policy update that you would like to comment on? Please let us know.
Kayle Hatt - October 28, 2017
For section 6. - Consider defining "High Volume Regulatory Transactions"; Is this the same as "High-Volume Regulatory Authorizations" used in the 2012 Action Plan on Red Tape and Regulations?
For Section 6 - You specify that there is an obligation to "provide clear and transparent information and service to Canadians on regulations, and regulatory and legal responsibilities." I wonder if there should be an explicit requirement to provide plain language explanations where possible and appropriate.
Ken Whitehurst, Consumers Council of Canada - October 28, 2017
Departments and agencies should respect and pay for intellectual property created by non-partisan consumer groups. They should consider using the subscription and fee-based services of non-partisan consumer groups within their communications repertoire instead of requesting free service assistance (such as spreading public awareness), given that major Canadian consumer groups are highly dependent on social enterprise to fund their participation in public processes. Free agency effects are elucidated in the two reports cited in answer to Questions 2 & 3.
Modernizing regulations is vital to and we have seen good examples in the detailed processes undertaken by Health Canada through its food law modernization program and consumer product safety law modernization programs. The right changes in policy can have a profound impact on improving and sustaining regulatory compliance. However, in most cases there is still a need for a physical presence to verify compliance. While this can be resource intensive, smart enforcement can be as cost effective as smart regulation. Regulatory policy should support greater cooperation between federal departments and provincial and territorial governments to cross designate inspections staff - in particular in rural and remote areas where consumer regulations are less likely to be enforced.
The Consumers Council of Canada has been concerned for many years that there is no interdepartmental coordinating role within the federal government concerning consumer protection and impacts, to alleviate finger pointing among departments around consumer protection issues. The Council believes that in the absence of a ministry devoted to consumer affairs, consideration should be given to at least a permanent secretariat within the PCO for the purpose, to which consumer groups can address concerns. The Council has been a proponent as well for the development of an institutional role for consumer groups in relationship to the Internal Trade Secretariat as a way to address intergovernmental consumer affairs. It has similarly urged the development of consumer group capacity to participate in processes related to international trade agreements, some of which explicitly address consumer protection issues and call for civil society participation, such as CETA.
In addition, “consumer rights” in Canada are derivative of Canadian charter and common law rights and are not getting the attention from the Department of Justice they deserve. The lion’s share of justiciable issues in Canada relate to consumer problems, and yet they receive little or no attention, contributing to the exploitation of the vulnerable and the weakening of the middle class.
Please refer to:
GRIC - October 28, 2017
In an effort to improve regulatory alignment between the Conflict of Interest Act and the Lobbying Act, to ensure clarity and address ongoing confusion, the Government Relations Institute of Canada (GRIC) submits that:
The standard for determining whether a lobbyist has placed a public office holder in a conflict of interest should be the same as the standard for determining whether a public office holder was placed in a conflict of interest by a lobbyist. Nobody should ever be found to have placed a public office holder in a conflict of interest that the public office holder was never in.
The rules on what types of gifts a lobbyist can offer a public office holder should be the same as the rules on what types of gifts a public office holder can accept from a lobbyist. GRIC takes no position at this time on what definitions under the Lobbying Act should be when it comes to the value and nature of gifts that lobbyists can offer to public office holders. But we strongly recommend that, through this process, the opportunity is seized to ensure that the Conflict of Interest Act reflects the same definitions on the value and nature and “acceptability” of gifts that public office holders can accept from lobbyists, to avoid the confusion and conflict between the two statutes.
Post employment restrictions on public office holders should be streamlined, and administered and interpreted by a single authority, namely the Conflict of Interest and Ethics Commissioner. We further recommend that definitions be streamlined and consolidated under the Conflict of Interest Act, and that a loosening of the 5-year ban, for all categories of public office holders, be strongly considered.
In conclusion, GRIC reiterates that we view this as an opportunity to ensure that the Conflict of Interest Act and the Lobbying Act work together, and not at cross-purposes, and that duplication of effort be minimized by better harmonizing the efforts of those offices which were established to support the independent Agents of Parliament whose role it is to ensure compliance in regards to these two acts.
Bob Larocque - October 24, 2017
FPAC would like to meet if possible with Treasury Board to have a discussion on proposed updates/modification to directive. a dialogue following written comments is beneficial.