Unscrutinized Regulatory Powers Permit Government to Act Without Legal Authority
Various mechanisms that are supposed to ensure accountability and guarantee the rule of law are not doing so, a January 17 Hill Times article pointed out. The article was written by Penny Becklumb, a legal advisor for the Office of the Law Clerk and Parliamentary Counsel of the House of Commons.
Becklumb looks at the Standing Joint Committee for the Scrutiny of Regulations and its duty to ensure that regulatory powers comply with enabling legislation enacted by Parliament. She uses the 2017 sanctions imposed on Venezuela by the Liberal Cabinet as an example of a regulation enacted without legal authority.
She writes: "Under the Special Economic Measures Act, Canada may impose economic sanctions against a foreign state in specific circumstances, including when called upon to do so by an "international organization or association of states" of which Canada is a member. However, earlier in [2017], the Association of American States, of which Canada is a member, had been unable to agree on what action to take against Venezuela."
To get around the lack of legal authority, she says, "the government created the circumstances to justify imposing sanctions. It joined with the United States to create a new international association consisting of just two members -- Canada and the U.S. -- for the express purpose of 'calling on' its members to impose economic sanctions against Venezuela." Since the United States had already imposed such sanctions, she writes, "the association was really only calling on Canada to follow suit, which it promptly did."
"Ironically," she adds, "the statement accompanying the Canadian sanctions noted 'these measures demonstrate to Canadians that the government is prepared to take action when international norms of democratic good governance are flouted.'" These sanctions are still in force today.
Becklumb writes that the Joint Committee tasked with reviewing regulations has met 14 times since 2020. "The backlog of regulations waiting for the committee's review ... is enormous." In addition, she notes that "on the rare occasion when the committee meets to discuss a problematic regulation, it almost never exercises its legal powers [...] Only once in the past 20 years has the committee attempted to use the power given to it by Parliament to seek a regulation's revocation. That attempt failed." In the case of the sanctions against Venezuela, Senators recognized and questioned the U.S.-Canada "organization" but did not take action.
A second example relates to First Nations leadership elections being postponed through regulatory powers in 2020, shortly after the COVID-19 pandemic was declared. The legality of the regulation was challenged by an individual who had planned to run in the elections. The presiding judge agreed, stating, "In a nutshell, the government is asking me to tolerate an invalid exercise of power because it was done for a good reason. This is simply incompatible with the rule of law, which requires that every exercise of state power find its source in a legal rule." Consequently, the regulations were "validated" retroactively through a budget implementation act in June 2021.
The Government's website defines regulatory powers and the legal framework for their use. The Government states: "Regulations are a form of law, often referred to as delegated or subordinate legislation. Like Acts, they have binding legal effect [...] However, regulations are not made by Parliament. Rather, they are made by persons or bodies to whom Parliament has delegated the authority to make them, such as the Governor in Council, a Minister or an administrative agency. Authority to make regulations must be expressly delegated by an Act. Acts that authorize the making of regulations are called enabling Acts." It adds that "a regulation-making authority does not have a free hand in making regulations. There are a number of legal constraints, including the Constitution and other generally applicable laws..."
The Statutory Instruments Act and the Statutory Instruments Regulations set out three requirements for making regulations: legal examination; registration; and publication in the Canada Gazette. After the fact, they are reviewed by the Standing Joint Committee for the Scrutiny of Regulations.
Becklumb writes: "The committee's dysfunction has also resulted in government disregard for the supremacy of Parliament, as represented by the committee. The Department of Justice, which drafts regulations on behalf of other government departments, does not consider prior decisions of the standing joint committee when it assesses the legal risk that the regulations it drafts might be unlawful. After all, the likelihood that the committee would both detect that the government has abused its power and effectively hold the government to account is slim to none."
This article was published
in
Volume 54 Numbers 1-2 - January - February
2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/M540013.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca