Loin de représenter une attaque sur la primauté du droit, le Projet de loi C-62, Loi sur l'efficacité de la réglementation est vraiment un projet de loi axé sur le processus d'améliorer la manière dont le Canada réglemente le risque.
In December 1994, the President of the Treasury Board, Art Eggleton, tabled Bill C-62, entitled An Act to provide for the achievement of regulatory goals through alternatives to designated regulations and through administrative agreements in the House of Commons. Its short title is The Regulatory Efficiency Act.3 The two titles say it all. What critics claim to be a repugnant assault on the rule of law4 and a gift to big business is really just a process-oriented bill designed to improve the way in which Canada regulates risk. The bill is currently on the order paper, and will soon be referred to committee for detailed study prior to second reading.
The Regulatory Efficiency Act is intended to provide two tools to regulators -- the compliance plan and the administrative agreement. Administrative agreements are a common law tool that enable regulators to address issues of overlap and duplication between and within levels of government. Placing these agreements in statute provides comfort for regulators gun-shy about their legal status, and ensures that proper consultation is undertaken if they are employed.
Compliance plans -- the meat of the bill -- would be proposed by a regulated party in order to vary the prescriptive details of an existing, designated regulation. In this way, the regulation and its purpose -- some form of risk reduction -- remain of general application, but the means of compliance would be varied to suit different regulatory environments. Presented with a proposed compliance plan, the regulator would be under a duty to listen to and consider the party's ideas for an alternative to the existing regulation. Rather than claiming that its hands were tied; that "the law applies equally to everybody;" or asking the regulated party to wait two or more years until the next review of regulations in that area, the regulator would have to act.
Acceptance of a proposed compliance plan would occur only if it met pre-published criteria and only if it could be demonstrated to be as effective in meeting the underlying regulatory goals as the regulation to be varied. This mechanism is intended to move regulators and regulations into a performance-based framework, rather than a prescriptive one.
Both academic and practical experience demonstrate that the key to designing a good regulation is to focus on setting a performance standard (what bacteria level to match), rather than on dictating prescriptive details (how and when to clean equipment to reach the right level). All new regulatory schemes, including Canada's environmental regulatory framework, are written with these ends in mind. Unfortunately, 30,000 pages of regulations cannot be changed overnight. While the government has undertaken a number of systemic regulatory reviews over the past decade, such efforts are simply not enough.
The element missing in such reviews is consultation -- not the informal kind that guarantees a chance to speak, but the systemic kind that ensures the right to be heard. By giving a regulated party the legitimate opportunity to propose how regulatory goals could be better met, and ensuring that regulators listen, this bill could shift the dynamic by which Canada is regulated. Instead of command-and-control regulation, backed up by criminal law sanction, we will have something closer to a consensual, tri-partite model of regulatory decision-making.5
While Parliamentarians will continue to lay out regulatory goals (through legislation), regulators will work with both the regulated and other interested parties on how best to achieve them. Consideration of the opinions of other interested parties (such as environmentalists, individual employees, neighbours, competitors, or unions) would be guaranteed by duties to consult within the bill. Further, in the case of compliance plans, a breach would constitute liability for breach of the regulation varied. Given the consensual nature of the process however,6 it is less likely that such breaches will occur under Regulatory Efficiency Act schemes.7
As stated above, the bill provides duties to consult interested parties in the design and acceptance of compliance plans. It has been suggested, however, that the wording of the bill as tabled is too restrictive in this regard. It is my understanding that the government has heard those concerns and is considering a friendly amendment to the bill to ensure that the only people who will not be heard will be those whose purpose is "frivolous and vexatious" -- wording borrowed from the Canadian Environmental Assessment Act8 and suggested by Brian Pannell, Executive Director of Pollution Probe.9
Other potential amendments might likely include a role for Parliamentarians to examine the operation of compliance plans that are not meeting regulatory goals, and other measures to streamline the bill's application -- to ensure that it does not add to the complexity of the existing regulatory process. Finally, it is my understanding that the government will probably clarify its commitment to the openness of the C-62 process by eliminating wording in the Bill (as tabled) that would provide an exemption from publication for trade secrets found in a compliance plan. The offensive wording was brought to the attention of Treasury Board officials who had believed, innocently enough, that their borrowing the exemption from s. 20 of the Access to Information Act10 was an appropriate choice.11
Who needs Bill C-62? There are many more than one might initially think. Bill C-62 has been introduced for the clam farmers whose product is needlessly subject to size-restrictions meant to preserve wild stocks; for the makers of x-ray machines who have a more modern technology already in use in most of Europe waiting until overly detailed regulations designed in another age are amended; and for the dry chicken soup producers who are instructed to wet-wash their equipment daily -- even though bacterial counts would surely rise, rather than fall, as a result. There are many more examples, many of which are currently contributing to unnecessary job loss (i.e. with no concurrent reduction in health, safety or environmental risks).
While it is certainly more exciting to speak of Bill C-62 as something that shakes the foundations of parliamentary democracy,12 or as a deal made with the devils of big business, I think the truth is more satisfying. Bill C-62 is an unexciting, procedural bill that holds the promise of real, systemic change.13 If given the opportunity, it could bring consultation to a higher level, and make risk reduction in Canada the better for it.
Todd Jeffrey Weiler, "The Straight Goods on Federal Regulatory Reform," Government Information in Canada/Information gouvernementale au Canada, Vol. 2, no. 2.3 (fall, 1995). <URL:http://www.usask.ca/library/gic/v2n2/weiler.html>
[2] T.J. Weiler (B.A., Waterloo; M.A., LL. B. (expected 1996), Western Ontario;) is a regulatory policy consultant who has worked with the Regulatory Affairs Division of the Treasury Board Secretariat of Canada on Bill C-62. He will be articling with the Ottawa law office Ogilvy Renault in 1996-97.
[3] Canada. House of Commons. Bill C-62, the Regulatory Efficiency Act, (1st Session, 35th Parliament), 1994.
[4] M. Valpy, "Bill C-62: A Repugnant Assault on the Rule of Law", Globe & Mail, 28 April 1995, p. A2.
[5] For a more complete analysis of the consultative provisions of this bill, see T.J. Weiler, "The Consultative Requirements in Regulatory Reform", Canadian Journal of Administrative Law and Practice, vol. 8 (1995), p. 101-127. See also R. Baldwin, "Health and Safety at Work: Consensus and Self-Regulation" in Robert Baldwin and Christopher McCrudden, eds., Regulation and Public Law (London: Weidenfeld and Nicolson, 1987) at p. 132.
[6] When actors participate fully in the development and implementation of a regulatory regime, they are more likely to comply without the use of external sanctions. See, generally, J. Braithwaite, Improving Regulatory Compliance: Strategies and Practical Applications in OECD Countries, Public Management Occasional Papers, Regulatory Managment and Reform Series No. 3 (Paris: Organisation for Economic Co-operation and Development, 1993); J.T. Scholz, "Co-operation, Deterrence, and the Ecology of Regulatory Enforcement", Law & Society Review, vol. 18 (1984), p. 179; and Scholz, "Voluntary Compliance and regulatory Enforcement", Law and Policy, vol. 6 (1984), p. 386.
[7] If a plan is breached, the test for conviction will be strict liability -- identical to a normal prosecution. However, the well documented process of designing and implementing a compliance plan would certainly lend itself much more poorly to a due diligence or mistake defence than in the case of a normal regulatory breach.
[8] S.C. 1992, c. 37.
[9] Personal communication between Mr. Pannell and myself this past summer. See also: B. Pannell, "Anti-Regulation Bill Will Lull Public's Watchman to Sleep", Government Information in Canada/Information gouvernementale au Canada vol. 2, no. 1.2 [10] R.S.C. 1985, c. A-1.
[11] Personal communication between myself and Treasury Board Secretariat officials spring 1995. Interestingly enough, critics of the bill have been made aware of this matter and the proposed changes; yet most fail to acknowledge such in their later critiques.
[12] M. Scandiffio, "Shaking the Foundations of Parliamentary Democracy", Hill Times, 18 May 1995, p. 1.
[13] On this issue, see also: M. Cochrane, "Collisions Ahead with the Trend Toward Self-Regulation", Law Times, 17 July 1995, p. 17.