At the time this article was published
Herbert Marx represented d'Arcy-McGee in the Quebec National Assembly. This is
a translation of an extract from Chapter 1 of his discussion paper
entitled "L'Avenir de la justice au Québec", published in February
In Canada, legislative power is shared
between the federal government and the provinces. In Quebec, the National
Assembly and the Lieutenant-Governor exercise this power. Passage of a bill
involves the following stages: 1) introduction in the National Assembly; 2)
adoption in principle; 3) detailed study in committee; 4) consideration of the
committee's report; 5) adoption; 6) assent by the Lieutenant-Governor. As a
rule, the law becomes effective either on the day the bill is assented to or on
a date established by proclamation published in the Quebec Official Gazette
(Part 2). In addition, the law very often provides for regulations by the
government, a minister or a regulatory agency to complement its content. These
regulations usually become effective on the day of their publication in the
The Proliferation of Legislative Texts
An examination of legislation and regulation
in Quebec reveals that governments have done more and more legislating in
recent years. Taking into account bills of a public nature, private bills,
regulations and municipal bylaws, the number of legislative provisions
currently in force and for which "ignorance is no excuse" can easily
be assessed at over half a million. This should not be surprising in view of
the fact that a single law may contain hundreds of articles or sections (e.g. Civil
Code of Lower Canada: 2,715 articles; Code of Civil Procedure: 1,052 articles;
Municipal Code: 1,134 sections; Taxation Act: 1,227 sections). From one reform
to the next the provisions multiply and the texts become more complex (e.g. the
Coroners Act,1 has 46 sections, and will be replaced by An Act
respecting the determination of the causes and circumstances of death,2 which
contains 213 sections).
As of January 1, 1984, the French version of
the Revised Statutes of Quebec (loose-leaf edition) included 451 general laws
in 16 volumes. If we look at the annual compendium of Quebec laws, it will be
noted that between 1977 and 1983, the Quebec government adopted 8,996 pages of
new legislative texts. A number of these texts amended existing laws. By way of
example, between January 1, 1977, and July 1, 1984, the Cities and Towns Act
was amended by 37 different laws, the Taxation Act by 31 laws, the Civil Code
of Lower Canada by 36 laws, An Act respecting the Civil Service Superannuation
Plan by 25 laws: A single amending law can add or amend tens of sections. The
numbering of a constantly amended law often is no longer an indication of the
number of sections it contains. For example, section 336 of the Charter of the
City of Québec was again amended on June 12, 1984, and a 212th paragraph was
added to it! Such a flood of legislation is not to be found in Ontario. A study
of legislative amendments made in that province during the period 1981-1983
indicated that the Municipal Act was the law most frequently amended (eight
times). It goes without saying, of course, that the number of amendments made
to a piece of legislation is no measure of its worth.
Many legislative provisions are not only
unknown but obsolete, unenforceable or unenforced. The following excerpts are
taken from Quebec laws still in force, and indicate that a good number of
provisions should disappear from our compendia of laws unless their retention
can be justified.
An Act respecting the bread trade, R.S.Q.,
c. C-32 s. 5. It is prohibited to give bread for publicity purposes.
Education Act, R.S.Q., c. 1-14 s. 472.
Drawing and hygiene shall be taught in all schools, and agriculture in all
schools in rural municipalities.
Cities and Towns Act, R.S.Q., c.C-19s.
255....no person who has not had a stated residence in the ward where the
polling is held for at least six months before the polling day shall come
during any part of the day upon which the poll is to remain open into such ward
armed with offensive weapons of any kind, such as firearms, swords, staves,
bludgeons or the like.
Municipal Code of Quebec, R.S.Q., c. C-27.1
s. 822. If the nature of the work requires it, the municipal inspector may call
upon each of such persons to bring or to cause to be brought a certain number of
horses or oxen, with proper harness, carts or ploughs, if he has them.
Public Buildings Safety Act, R.S.Q., c. S-3
s. 21. The stage of every theatre shall be separated from the auditorium by a
brick wall at least sixteen inches thick extending the whole height and breadth
of the building and two feet above the roof.
Regulations fall not only within the power
of the executive, but within that of the many ministries and administrative
tribunals, commissions, boards, committees, offices, bureaus, corporations, and
services that administer Quebec. A few statistics will give us a better
understanding of the extent of regulatory provisions adopted by governments in
The number of regulations in force rose 6om
952 in 1972 to 1,881 (a total of 118,242 sections) by December 1981, more than
double the number in Ontario. The Quebec government adopts from 800 to 900 new
statutory instruments each year. Raoul P. Barbe, a former member of the
Commission de reforme des lois et des règlements du Québec, wrote recently:
"An analysis of the annual production of statutory instruments will reveal
a significant increase in the number of pages of regulations during the years
1976, 1977, 1978 and 1979."3 By examining the 5,043 pages of
the Quebec Official Gazette (Part 2) for 1983 we note that the production rate
of regulatory provisions is not about to slow down. A good many of the
provisions are useless, unenforceable or state the obvious. Is it really
necessary to require that "automobiles belonging to municipal police
forces must have black walled tires"4? Do track bettors know
that, in order to participate in a race, "a horse shall breathe without
the help of a tube and not be completely blind"?5 Do those who
drink milk know that "all persons working in a dairy, milk depot or
pasteurization plant shall wear clean clothes and always have clean hands. It
is forbidden to spit, smoke or chew tobacco or take snuff in such an
establishment"?6 Is it possible for any owner not to know that
'any dwelling must be equipped with a toilet"?7 Do bathers know
that it is prohibited to spit, urinate or blow one's nose in a public wading or
swimming pool?8 Is it really necessary to prohibit the sale, as a
food, of "any part of an animal the flesh of which has become putrid or emits
a rancid or repellent odour"?9
Has the Quebec legislator reached the stage
of wanting to make provision for and regulate all activities in all their
manifestations? Is the primary objective of the law to establish a universe of
restrictions around the ordinary citizen? Is the government capable of
implementing and enforcing all of the legislation and regulations on the
books" Will the adoption of a particular piece of legislation or
regulation not often result in social costs that far exceed the desired
benefits? These are questions that any democratic society should be asking
The Consequences of Legislative Inflation
The adoption of a great number of laws and
regulations by government has several consequences. First, it becomes
increasingly difficult for the ordinary citizen to be aware of his or her
rights and obligations. Even legal experts have trouble finding their way,
through the tangle of legislation. They must spend more time and money doing
research and, consequently the cost of their legal services goes up. It then
becomes almost impossible for a large portion of the population, mainly the
lower middle class which is ineligible for legal aid, to obtain recognition of
its rights. Finally, the many restrictions enacted by the government constitute
not only an infringement of property rights, but also a millstone for
businesses doing battle with an increasingly ubiquitous administration.
Before attempting to understand the text of
a law, one must first find it, and then find out whether it has been amended
and whether all of its provisions are in force. As the text of a law is not
usually complete in itself, one must also find its regulations currently
adopted and published in Quebec does not facilitate and their amendments. Such
a search involves consultation of several documents and may become quite
lengthy, difficult and costly. In fact, the manner in which laws and
regulations are access to nor awareness of them.
Let us point out, first, that the
proliferation of laws and regulations is accompanied by a certain legislative
inconsistency. A few examples will illustrate this. On December 22,1978, An Act
to amend the Environment Quality Act (S.Q. 1978, c. 64) and An Act to again
amend the Environment Quality Act (S.Q. 1978, c. 94) were enacted. They
contradictorily amended section 106 of the Environment Quality Act. In December
1981, the Minister of Justice sponsored An Act to amend various legislative
provisions which, among other things, added a paragraph that already existed in
section 110 of the Environment Quality Act. On December 19, 1981, in amending
the Charter of the City of Charlesbourg, the government took the opportunity,
to repeal section 262 of the Act respecting land use planning and development.
It nevertheless amended this repealed section on February 24, 1982. This error
was corrected December 18, 1982, effective retroactively to December 19, 1981
(An Act to amend various legislation respecting municipalities, S.Q. 1982, c.
63, s. 233, 318).
When the government, despite the resources
at its disposal, is unaware of the laws it enacts, it is hardly surprising that
even the most well-informed legal expert can have great difficulty in finding
his way through this legislative maze. One can also more easily understand how
some judgments can be handed down which are based on repealed legislative
provisions, as in the case Tremblay v. Themens10 where the
Provincial Court judge handed down a decision based on a repealed regulation of
the Consumer Protection Act!
In view of the problems described above, it
is becoming more and more difficult to know with certainty the state of the
law. This can only increase the risk of professional error as well as the cost
of legal research by those subject to court jurisdiction. It might be mentioned
in this regard that very often the titles of bills bear no relation to their
content (e.g. An Act to amend legislative provisions, An Act to amend various
fiscal legislation). It may even happen that the same title is used twice in
the same year (e.g. An Act to amend various legislation respecting
municipalities, S.Q. 1982, c. 2 and S.Q. 1982, c. 63). The explanatory notes
that accompany these bills, when not simply, misleading, explain nothing. Every
bill amends, replaces or very often repeals a variety of laws. Some sections
are amended only to be repealed a few months later. It may even happen that a
law amends itself (e.g. s. 339 of the Securities Act, S.Q. 1982, c. 48 replaces
s. 3 of this act). It has even been said that regulations which in principle are
subordinate to laws, take priority, over the act in respect of which they have
been adopted (e.g. s. 412 (19. 1) of the Cities and Towns Act, R.S.Q., c.
C-19). In such a context, is it any surprise that legislative provisions are
adopted which are useless, improvised or redundant?
The legal expert who manages to find the
up-to-date text (if a law is usually not at the end of his troubles. He must
still find out the date on which the text takes effect and until when. This is
another source of legal insecurity. The legal expert has no choice but to go
through the Quebec Official Gazette to find the proclamations which state when
the various legislative provisions take effect. Moreover, some sections of laws
or regulations become effective even before their text is available. One
commentator has pointed out "that in the first eight months of 1979, the
delay between the day of the coming into force and that of receipt of the
published text was six weeks in the case of at least twenty-six important
bills."11 Finally, some legislative provisions do not come into
effect because there is no proclamation or enforcing regulation and one might
then question the need to pass them quickly before a parliamentary recess.
The cost of purchasing statutes and
regulations has become prohibitive.12 The Quebec legal expert
wishing to obtain the French version only of the 1977 Revised Statutes of
Quebec, the Statutes of Quebec from 1977 to 1983, the loose-leaf Revised
Statutes of Quebec (updated to January 1, 1984, with a 1984 subscription), the
Revised Regulations of Quebec (with index) and subscriptions to the Bills and
the Quebec Official Gazette (Parts 1 and 2) must pay, in 1984, the sum of
$2,678. If he wants the English version also of these same texts, the amount
doubles. In short, very few people can at present afford Quebec legislation and
The proliferation of laws and regulations
has resulted in an increasingly heavy financial burden not only for legal
experts and the average citizen faced with a court action, but also for
businesses. It must not be forgotten that enactment of certain laws or
regulations (particularly with regard to taxation or labour relations)
translates into relatively high costs for our businesses, increases their
production costs and reduces their competitiveness on North American markets.
The Canadian Manufacturers Association (Quebec Division), in a brief submitted
to a committee of the National Assembly looking into control of delegated
There is no doubt that of all the groups in
Quebec society affected by, these regulations, manufacturers are among those
who have had to assume much of the cost, for example, with respect to
occupational health and safety, the environment, labour standards, consumer
protection, tax laws and even regulations for the marketing of farm products.
At the risk of being repetitive, small and medium sized manufacturers have
often been the most penalized, having neither the experience nor the personnel
required to take on the burden of mastering and interpreting these elaborate
regulations and to adapt their businesses to the new requirements....
A first step towards eliminating serious
restriction of economic expansion would be, if the government believes it is
still essential to continue to regulate as it is doing, to develop accessible,
simplified, systematic and well-considered regulations.
Increased regulation is certainly
detrimental to the manufacturers established in Quebec and prejudices their
competitiveness in relation to other Canadian manufacturers. By way of example,
we have only to recall the recent regulations respecting the Charter of the
French Language, labour relations, income tax and some draft regulations
concerning occupational health and safety.
The phenomenon is all the more evident in
Quebec because of the multitude and diversity of agencies that adopt
regulations. According to our association, a legal turnabout is called for. In
other words, there is a basic need to restructure the administrative regulatory
system based on legislation that would determine and affirm the role of
It is obvious that small and medium sized
businesses are greatly, affected by the weight of legislation and regulation.
Also, legislative and regulatory authorities should have more concern for the
economic drawbacks produced by the new standards they enact.
Finally, when it enacts standards, the
government also establishes monitoring and control mechanisms. Those to be
affected are asked for certain prior approvals, the submission of drawings and
specifications, securities or guarantees, and the obtention of licences,
permits or certificates. The paper work that accompanies these administrative
requirements very often discourages even the most tenacious citizens.
Legislative and regulatory inflation and the multitude of administrative
agencies that reign over Quebec can therefore only lead to increased government
bureaucratization with all sorts of red tape for the tax payer.
Control and Reform Mechanisms
We continue to believe that ignorance of the
law is no excuse the law has even made knowledge an obligation but who, today,
can boast of knowing the law, given the proliferation and dispersal of
legislative and regulatory provisions. The difficulty of being aware of the law
in force is cause for legal insecurity. The citizen feels more overwhelmed than
secure in the face of the abundant legislation. While for some, legislation
means advancement, others feel they, are continually pestered by the legislator
or bothered by the uselessness of the law. Although we cannot each judge the
usefulness of a law, the fact remains than many laws are obsolete or conceived
in such a way that they cannot be implemented and often appear ridiculous. As
Montesquieu and others have argued, useless laws weaken those that are
Since legislatures abolish far less than
they. adopt, a thorough housecleaning is called for. Mechanisms for
deregulation must be established. Useless provisions that prevent us from
discovering the applicable text and from fully benefiting from certain rights
should be removed from our compendia of laws and regulations. A minister could
perhaps be entrusted with, among other things, the task of trimming obsolete,
unenforceable, unenforced or useless laws and regulations. Provision for
standards of behaviour that any reasonable person will normally follow should
be avoided and new techniques for the drafting of legislation should be
considered, providing , for example, for a maximum duration of certain laws.
The former Act Respecting the Regulation of Rentals was to expire May 1, 1953,
but was renewed each year before being replaced in 1979 by An Act to establish
tile Régie du logement; such yearly re-examination made it possible
continuously to adapt this law to the socio-economic context.
Also, the legislative process must be
reassessed. Greater attention should be paid to bills and draft regulations.
Legislative and regulatory activity must be better planned. Legislators must
demonstrate greater self-discipline. This would probably reduce the number of
those so-called "corrective" laws (acts amending various legislative
provisions). Legislation should be adopted as quickly as possible to stipulate
the rules governing regulations, their coming into effect and the means of controlling
Research and access to laws and regulations
should also be made easier by improving the quality of indices, accelerating
the process for the updating of laws and regulations, reducing the cost of
official publications and making use of modern means of communication and data
storage. Data processing can certainly play an important role in this regard.
We must be wary of seeing this as the miracle solution to present legislative
problems. It is, however, time to consider means of publishing laws and regulations
other than those used in the last century, means that would be better suited to
the lifestyle of the 20th century. Furthermore, the public must be able to
learn of any new legislation and to adjust to it even before the legislation
comes into effect. New legislation or regulations should not, as a rule, come
into effect before a certain number of days have passed from the time it is
assented to or adopted, as is the case in many American states.14
The government must be able to innovate with respect to publication in order to
reach at least those most likely to be affected by the legislation.
The lack of awareness of a law or regulation
is not always due to inadequate publicity, but rather to the law's
abstruseness. To be known by those to whom it is directed, the law must provide
for clear and precise provisions. Otherwise, one can hardly expect the ordinary
citizen to understand it. Even the legal expert will benefit from a clear text
written in simple terms. It was President Carter who, in 1978, issued a
directive requesting that federal regulations be written in language "as
simple and clear as possible". Since then, many American states have
adopted what might appropriately be referred to as "a plain language
laws". This new legislation is aimed at making certain contracts (leases,
loans, insurance contracts ' ) more accessible to those subject to them, by
requiring that they be drafted "in a clear and coherent manner using words
with common and everyday meanings".'" We find a somewhat similar provision
in section 45 of the Consumer Protection Act, which stipulates: "a
document which constitutes a guarantee must be written clearly. . .". We
believe that as a rule similar provisions should apply not only to contracts
but also to legislation in general. The text of a law must be clear and
understandable. This is a challenge the legislator must be able to meet.
We note also that little attention has been
paid to the reform of the Civil Code of Lower Canada, that mainstay of Quebec
legislation. This Code, which fully, came into effect in 1866, has nevertheless
been the subject of extensive reform following the lengthy work of the Office
de révision du Code civil. The objective of this agency was to give Quebec a
new Civil Code which would reflect the social, moral and economic realities of
the last part of the twentieth century. Although the agency finished its report
on the Civil Code in 1977, few of its proposed reforms have as vet been
Finally, serious consideration should be
given to creating a Quebec Law Reform Commission which would have a mandate to
study, systematically, all Quebec law and make recommendations for its
improvement and modernization.
1. Revised Statutes of Quebec, c. 68.
2. Statutes of Quebec, 1983, c. 41.
3. La réglementation, Montréal,
Wilson et Lafleur/Sorej, 1983, p. 249.
4. R.R.Q., 1981, c. P-13, r. 10 art. 7.
5. Rules respecting harness racing R.R.Q.
1981, c. L-6 r. 5, s. 88.
6. R.R.Q., 1981, c. P-30, r. 4, s. 36.
7. R.R.Q., 1981, c. Q-2, r. 15, s. 11.
8. R.R.Q., 1981, c. Q-2, r. 17, s. 88.
9. R.R.Q., 1981, c. Q-2, r. 4, s. 5.
10. J.E. 70-224.
11. J. L'Heureux, "Du projet de loi no.
39, de la Loi des Douze tables, de la mise en vigueur et de la publication des
lois", Revue du Barreau 39 (1979), pp. 961, 963.
12. The French loose-leaf edition of the
1977 Revised Statutes of Québec sold for $285 and consisted of about ten
volumes. This same edition, updated to January 1, 1984, consists of sixteen
volumes and costs $990; the cost of a subscription for 1984 is $295. The bound
edition of the Revised Statutes of Quebec (1977, 11 volumes) costs $325,
whereas the Revised Statutes of Ontario (1980, 11 volumes) costs $200.
The price of the 1983 annual volume of the Statutes of Quebec was $75
for 1,269 pages, as compared to $18 for the compendium of Ontario laws (1,026
pages). The French version of the Revised Regulations of Quebec (1981,
11 volumes) costs $365, the Revised Regulations of Ontario (1980, 10
volumes) $195, and the Consolidated Regulations of Canada (1978), 19
bilingual volumes) 350.
13. "Le contrôle parlementaire de la
législation déléguée," Rapport de la Commission d'étude sur le contrôle
parlementaire de la législation déléguée, Appended document, July 1983, p.
14. J.E. Murphy, "The Duty of the Government
to Make the Law Known", Fordham Law Review, 51 (1982), p. 255.
15. B.A. Leete, "Plain Language
Legislation: A Comparison of Approaches", American Business Law Journal
(1980-81), p. 511.