lawyer, Normand Grimard was appointed to the Senate in 1990. He is author of
L’indispensable Sénat : Défense d’une institution mal aimée, Éditions vent
d’ouest, Hull, 1995.
give form and substance to legislation. Departmental officials design
regulations, also called delegated legislation, within the established limits
of their authority and in accordance with other criteria set by Parliament.
Scrutinizing individually the thousands of pages of federal regulations—a
task essential in protecting any democracy—is the painstaking work of the
members of the Standing Joint Committee for the Scrutiny of Regulations and the
Committee’s Legal Counsel. In this article Senator Normand Grimard, a
member of this Committee for eight years and its Joint Chair for three,
outlines the Committee’s methods, criteria, and purposes.
Every other Thursday, the
Standing Joint Committee for the Scrutiny of Regulations meets in the
Parliament Buildings in Ottawa. If you happened by at that time, on the
second floor of the Centre Block near the Senate Chamber you would notice there
are no crowds of curious onlookers or flocks of reporters. Nor is there
any need to lock the doors to prevent Senators, MPs and members of the public
from storming the Committee room door. As its name states, this Joint
Committee is a creature of both Houses of Parliament. Membership on this
Committee may be the least desirable position on Parliament Hill, because the
dry, legal subjects on its agendas rarely showcase parliamentarians.
Nevertheless this Committee, misunderstood, ignored and even considered
laughable is an essential watchdog in controlling bureaucracy and protecting
When I was appointed Senator
eight years ago, my Whip gave me the task of making the views of the
Progressive Conservative Party heard on this Committee. I have been a
member ever since, studying its agendas and taking part in its decisions.
From 1990 to 1993, I was Joint Chair of the Committee. It is for
these reasons that I am endeavouring today to describe the factors that govern
the Committee’s work.
Legislation is written in
general terms; regulations make the intent of Parliament more complete and
specific. For example, it would be disastrous if legislation already
passed were returned to the House of Commons every time a tariff was to be
changed, a fee paid, or a means of implementation decided upon.
requires that certain parameters be respected and each piece of legislation
sets guidelines for its accompanying regulations, which departmental officials
must not exceed. That is the basic rule in scrutinizing regulations.
However, the Committee’s Legal Counsel also take into consideration a
great many other points: quality of language, accuracy of expressions,
correspondence between French and English versions, and logical structure of
provisions. The Committee’s Legal Counsel painstakingly scrutinize every
jot and title of all regulations, applying the fine-tooth comb of a set of
uniform, defined criteria. While legislation and enabling provisions are
given the greatest attention, the Committee’s work does not stop there.
How does the Committee react to
violations of the criteria that Parliament has made it responsible for
It uses a step-by-step approach,
not codified but based on experience. Some examples follow.
- The Committee takes into consideration the arrival of
new Ministers, giving them time to become familiar with their departments
before dealing harshly with them.
- The Committee deals with Designated Instruments
Officers, who act as intermediaries between it and government departments,
agencies, and Crown corporations. These officers are also given a
reasonable period of time after being appointed to become familiar with their
- Before writing to Ministers at the political level, the
Committee, through the DIOs, exhausts all administrative remedies.
- The Committee deals less harshly with correspondents
who demonstrate at least some desire to correct defects in their regulations.
- Often at the last minute, the spectre of the fearsome
ordeal of being called to appear as witnesses generates a surprising
desire to co-operate among departmental officials.
- The Committee does not treat departments’ acting ultra
vires in the same way as it does poorly translated expressions.
- The Committee’s ultimate weapon is to disallow
defective regulations, by means of a report to both Houses of Parliament
and a sanction that the House of Commons (but not the Senate) must
validate by confirming.
However, disallowing regulations
is so drastic a move that, in order to maintain its credibility, the Committee
has long used it only when strictly necessary. The Committee does not
threaten to disallow regulations in response to a first violation or a minor
skirmish. Disallowing regulations requires a combination of the following
- disagreement over a major point;
- an impasse in correspondence;
- impossibility of mutual agreement;
- significant public interest;
- and a well-founded fear of being accused of complicity
by tolerating injustice.
In order to avoid abusing its
power or creating a legal vacuum, the Committee disallows only certain sections
of regulations that are defective.
The Committee is intended to be
apolitical, an ideal that is articulated in order to reinforce the
corresponding reality. It may be more accurate to say that the Committee
is less partisan and more objective than others in carrying out its duties. The
composition of Parliament is a factor in the Committee’s life: if a government
with a majority in the House of Commons is bent on keeping certain regulations,
they will be very difficult to disallow.
Theoretically, then, the
Committee has broad sanctioning powers, up to and including disallowing
regulations. Before exercising these powers, however, it makes use of
exceptional diplomacy: no amount of correspondence, calls, assistance,
arm-twisting, patience, persuasion or pressure is too much trouble before the
ultimate weapon is used.
This situation means that the
Committee’s Joint Chairs, members, and Legal Counsel have refined the art of
letter-writing and exhaust all possible forms of persuasion.
In some cases, reaching agreement
about required amendments to regulations takes five, ten or fifteen years of
written and oral negotiation. The Committee recently emerged victorious
from one case of twenty-two years’ standing.
These negotiations involve
asking, reminding, writing again, explaining furthermo, convincing, gently
reprimanding, and sometimes negotiating compromises with the parties concerned.
One Committee member, Paul De Villers, MP, commented ironically in May
1998 that the Committee might be called the “Committee of Perpetuity”.
Many factors affect the
Committee’s work, including the following.
- Although the Committee’s Legal Counsel, under the
direction of François Bernier do an admirable job, they could scrutinize
old and new regulations more quickly if they had a larger staff.
- The Committee is at the mercy of inevitable changes in
departmental Ministers and officials.
- Some subjects dealt with are highly technical,
requiring detailed explanations and expert assistance. Pieces of
legislation may be twenty-five pages long and their accompanying
regulations may extend to 100 pages.
- The Committee’s work is often a fastidious and
- Not surprisingly, in a small number of cases where some
or all of the purposes of regulations are suddenly irrelevant or it is
known that new legislation or regulations are being considered, the
Committee’s work becomes outdated.
Essentially, the Committee must
rely on a step-by-step, discerning approach in exercising its disciplinary
Where correspondence is
concerned, Committee members thoroughly read and analyse all nuances of
expressions used. They know that people can promise them anything, or
nothing, make commitments to amend regulations ‘’soon’’, or correctly point out
that an amendment to the regulations requires an amendment to the
legislation—something for which the Committee, too, may call. Whatever
the case, the Committee wants to know when departments and agencies will make
required and promised amendments. The legality of regulations is not a
matter of tiresome whims.
The Committee’s scrutiny is
constant, attentive, and painstaking. Some subjects, however are more
sensitive than others. For example, when issues affecting aboriginal
peoples arise, requiring delicate negotiations and involving a great many Band
Councils, the Committee is extremely careful and considerate in raising
The Committee’s work is
particularly important since, regulations being little-known, there is
not often a wave of public opinion calling for them to be disallowed. There are
exceptions, however. Alcan gave up the idea of building a refinery in
Kemano, British Columbia, probably in part as a result of the Committee’s work.
In a 1993 report the Committee had denounced the issuance of a permit in
violation of the federal government’s environmental protection rules.
Other examples are even more
noteworthy. Certain regulations passed by the Progressive Conservatives
had banned demonstrations on Parliament Hill, but two years later, in December 1992,
Parliament repealed these regulations because they had placed excessive
limitations on public freedoms.
The 1982 Canadian Charter of
Rights and Freedoms considerably broadened the guarantees to be respected
in Canada. The Committee uses 13 criteria, based on 1986 legislation and
governing the form and content of regulatory instruments, to scrutinize
Canada must implement its
bilingualism policy. Under the Constitution and the Supreme Court
decisions concerning Blaikie (No.2) in 1981 and the Reference re
Manitoba, in 1992, regulations are to be passed in both French and English.
Fortunately, departures from the bilingualism policy have been
infrequent. The Committee insists that, where the official languages are
concerned, Canadians be able to feel at home in all parts of the country and in
their dealings with federal institutions.
It is important that all new
regulations, regardless of subject matter, be registered within seven days.
The regulations are then published so Canadians can read them.
Personally, I have learned a
great deal from the Committee’s work and am grateful for the opportunity to
learn. Judging on the basis of the present year alone, when the Committee
received a delegation from Vietnam in February and one from Australia in June,
I am convinced that a number of countries in all parts of the world are
interested in equipping themselves with oversight mechanisms similar to ours.
Unlike most Senate and House of
Commons Committees, this Committee does not travel but holds all its meetings
on Parliament Hill. Perhaps this explains why parliamentarians do not line up
to become its members!
Not all worthwhile battles are
won in front of the cameras.