National Post

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July 27, 2001

Regulations run rampant

The power that Canadians believe is vested in their elected representatives to make laws is being delegated to bureaucrats and the Cabinet

Karen Selick
National Post

Legislation giving Canadian banks greater freedom to merge was finally passed last month, but instead of the torrent of merger proposals that investors might justifiably have expected, recent statements by bank spokesmen have been cautious.

We're not rushing to the altar until we see the regulations, they've said.

Pardon me? Bill C-8 was almost 900 pages long, and had been in the works for about a year. Yet despite all that verbiage and time for study, the banks still can't figure out what they will or won't be permitted to do -- because the regulations haven't been written yet. Surely there's something wrong with this picture.

I obtained an electronic copy of the bill and searched for the word "regulations" in the portion pertaining to the Bank Act. It occurred 192 times.

That was bad enough, but then I noticed something worse. There were 17 places where an otherwise mandatory provision of the statute was qualified by the phrase "subject to the regulations." In other words, there will be 17 statutory requirements, weighed and approved in 2001 by our democratically elected representatives, which can be overridden at some future time at the whim of the federal Cabinet, without the need for any further parliamentary debate.

I finished law school a quarter-century ago with the understanding that regulations were supposed to be subordinate to the statutes that authorized their creation. Regulations were intended to allow bureaucrats to fill in minor legal details, such as the appearance of a form, so that parliamentarians wouldn't have to waste their time on such trivia.

Somewhere over the past few decades, a transformation has occurred. Statutes, it seems, are now subordinate to regulations. Statutes merely sketch out the territory that regulations can romp through; regulations lay down the actual law. The power that Canadians believe is vested in the people and exercised through their elected representatives is instead being delegated by those representatives to a small clique of the ruling party. This elite group has perpetual carte blanche to amend or even nullify the provisions passed by the houses of parliament. Parliament's words are mere default provisions in case Cabinet neglects to countermand them.

The Bank Act amendments are not the only example of this phenomenon. In 1995, the Firearms Act and changes to the Criminal Code were passed. They sparked huge protests from sports shooters by reclassifying many firearms from "restricted" to "prohibited," making it impossible for anyone not grandfathered to own such guns. But, far more ominously, the amendments delegated to the regulations the power to make additional reclassifications. Despite the government's assurances at the time that it had no intention of imposing a complete ban on hunting rifles or target pistols, the power to do just that was handed to Cabinet, who can exercise it at any time without further debate.

Another example is the Tobacco Act, passed in 1997. It delegates to regulations the power to fix the level of substances that may be contained in tobacco products or emissions. Should the federal Cabinet ever decide it wants to kill off tobacco manufacturing in Canada, it needn't bother debating the issue with the opposition parties. All it need do is issue a regulation setting standards that make tobacco products unappealing to consumers -- for instance, very low nicotine levels.

Then there's the Divorce Act, amended in 1997 by the addition of the Child Support Guidelines. Divorced parents can search the statute in vain for the amount of support they'll be paying or receiving for their kids. It's not there. It's in the regulations. These can be changed at any time by Cabinet decree, with no parliamentary debate. In fact, in a presentation made to matrimonial lawyers before the new law took effect, Allan Rock (then justice minister) extolled ease of amendment as one of the virtues of the scheme.

Unfortunately, Mr. Rock is not alone among Canadians in considering the ability to bypass Parliament to be a welcome development. Many interest groups prefer to avoid the spotlight of rancorous parliamentary debate. It's easier to ingratiate yourself with a few pencil-pushers in a minister's department than with every Member of Parliament all along the political spectrum. It's the bureaucrats who draft the regulations before sending them to Cabinet for approval. Focus your attention on them, and they might well decide that the version of the regulations most advantageous to your cause is, by happy coincidence, what's best for the country.

Occasionally there are pressure groups on both sides of an issue, vying for the hearts and minds of the regulatory draftsmen. But often, one side has deeper pockets than the other, or a more pressing interest in seeing its wishes prevail. For instance, a company that perceives an opportunity to regulate future competitors out of its industry will have a strong incentive to devote whatever time and money it takes to fine-tuning the regulations. Consumers, whose individual losses from the lack of competition may amount to only pennies a year, will be unwilling to devote the necessary resources to opposing them.

Thus the dangers to Canadians from this regulatory trend come not just from big government, but also from big business, big unions and big pressure groups.

This is not to suggest that merely subjecting a law to a democratic vote in the House of Commons will guarantee that it is just, impartial or respectful of citizens' rights. On the contrary, Lord Acton's "tyranny of the majority" can, and frequently does, enact laws that are every bit as unjust, biased and rights-violating as any regulation. But parliamentary debate at least provides a chance for the Opposition to tell the public exactly what the scoundrels they so foolishly elected are planning to do to them. It should not be abandoned lightly.

Karen Selick is a lawyer and a columnist for Canadian Lawyer magazine.

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