17. Delegated Legislation

In 1971, pursuant to the Statutory Instruments Act, ^[13]  the House and the Senate established the Standing Joint Committee for the Scrutiny of Regulations. ^[14]  It sat a few times between 1973 and 1974 for organizational purposes and began to scrutinize statutory instruments in earnest in 1974 during the First Session of the Thirtieth Parliament (September 1974 to October 1976). ^[15] 

The Committee’s mandate is defined by the Statutory Instruments Act, the Statute Revision Act and the Standing Orders. Pursuant to the Statutory Instruments Act, the Committee can scrutinize any statutory instrument made on or after January 1, 1972. ^[16]  A statutory instrument is “any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established … in the execution of a power conferred by or under an Act of Parliament. …” ^[17]  The Statutory Instruments Act further requires that regulations (with certain exceptions) be published in the Canada Gazette and referred to the parliamentary committee charged with the scrutiny of delegated legislation. ^[18] 

The Statute Revision Act authorizes the Committee to scrutinize any regulation found in the 1978 Consolidated Regulations of Canada or other Consolidated Regulations prepared pursuant to that Act, even if that regulation were made prior to the coming into force of the Statutory Instruments Act in 1972. ^[19]  The Standing Orders expand on the mandates found in these two Acts by authorizing the Committee to examine any other matter referred to it by both Houses. ^[20] 

Since 1979, the House and the Senate have routinely renewed at the beginning of each session an additional order of reference authorizing the Committee to:

… study the means by which Parliament can better oversee the government regulatory process and in particular to enquire into and report upon:

1. the appropriate principles and practices to be observed
   1. in the drafting powers enabling delegates of Parliament to make subordinate laws;
   2. in the enactment of statutory instruments;
   3. in the use of executive regulation — including delegated powers and subordinate laws;
   and the manner in which parliamentary control should be effected in respect of the same;
2. the role, functions and powers of the Standing Joint Committee for the Scrutiny of Regulations. ^[21] 

The Standing Joint Committee for the Scrutiny of Regulations is composed of eight Senators and a proportionate number of Members of the House. ^[22]  There are two Joint Chairs. Traditionally, one Joint Chair has been from the Senate representing the government party and one Joint Chair has been from the House representing the Official Opposition. ^[23]  The Committee’s Vice-Chair is usually a Member of the House from the government benches.

The Committee enjoys the same powers other standing committees have. It may sit while the House is sitting ^[24]  and when the House stands adjourned; print papers and evidence; send for persons, papers and records; and delegate to a subcommittee all or any of its powers (except the power to report directly to the House). It may also table reports in the House and request government responses to them. ^[25]  In addition, the Committee has the “power to engage the services of such expert staff, and such stenographic and clerical staff as may be required.” ^[26]  Finally, the Committee has the power to initiate the revocation of a statutory instrument. ^[27]  This power is discussed in greater detail below.

The Committee reviews only matters of legality and the procedural aspects of regulations — their merits and the policies they reflect are disregarded. ^[28] 

The Committee reviews all statutory instruments referred to it on the basis of 13 criteria which it provides to both Houses at the beginning of each session in its first report. ^[29]  The criteria found in the report are as follows: ^[30] 

Your Committee informs both Houses of Parliament that the criteria it will use for the review and scrutiny of statutory instruments are the following:

Whether any regulation or statutory instrument within its terms of reference, in the judgement of the Committee,

1. is not authorized by the terms of the enabling legislation or has not complied with any condition set forth in the legislation; ^[31] 
2. is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights; ^[32] 
3. purports to have retroactive effect without express authority having been provided for in the enabling legislation; ^[33] 
4. imposes a charge on the public revenues or requires payment to be made to the Crown or to any other authority, or prescribes the amount of any such charge or payment, without express authority having been provided for in the enabling legislation; ^[34] 
5. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;
6. tends directly or indirectly to exclude the jurisdiction of the courts without express authority having been provided for in the enabling legislation;
7. has not complied with the Statutory Instruments Act with respect to transmission, registration or publication;
8. appears for any reason to infringe the rule of law; ^[35] 
9. trespasses unduly on rights and liberties; ^[36] 
10. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice; ^[37] 
11. makes some unusual or unexpected use of the powers conferred by the enabling legislation; ^[38] 
12. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment; ^[39] 
13. is defective in its drafting or for any other reason requires elucidation as to its form or purport. ^[40]

The Committee’s scrutiny criteria are very similar to those used by the Clerk of the Privy Council to verify proposed regulations ^[41]  and those recommended by the Special Committee on Statutory Instruments in 1969. ^[42]