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What We Heard: Online Consultation on the Draft Cabinet Directive on Regulation (view source)
Revision as of 21:47, 2 November 2022
, 21:47, 2 November 2022no edit summary
Underpinning the draft CDR is the principle of openness and transparency throughout the regulatory life-cycle where regulators must engage stakeholders early and often. By posting the draft CDR for public comment, interested parties including Canadians can have a say in the policy that governs the regulations affecting them.
Underpinning the draft CDR is the principle of openness and transparency throughout the regulatory life-cycle where regulators must engage stakeholders early and often. By posting the draft CDR for public comment, interested parties including Canadians can have a say in the policy that governs the regulations affecting them.
On September 30, 2017, TBS published a Notice to interested parties — Consultation on the draft Cabinet Directive on Regulation. The notice was accompanied by an online consultation component to seek feedback from interested parties including the public on the proposed draft CDR. Interested Canadians were invited to provide comments and suggestions based on their experience and familiarity with the federal regulatory process.
On September 30, 2017, TBS published a [http://www.gazette.gc.ca/rp-pr/p1/2017/2017-09-30/html/notice-avis-eng.php#ne11 Notice to interested parties — Consultation on the draft Cabinet Directive on Regulation]. The notice was accompanied by an online consultation component to seek feedback from interested parties including the public on the proposed draft CDR. Interested Canadians were invited to provide comments and suggestions based on their experience and familiarity with the federal regulatory process.
The draft CDR is arranged into eight sections and an appendix:
The draft CDR is arranged into eight sections and an appendix:
# Purpose
# Scope of Application
# Guiding principles of federal regulatory policy
# Regulatory Lifecycle Approach
# Development of Regulations
# Regulatory management
# Review and Results
# Supporting policies
Appendix A: Roles and responsibilities
* Governor in Council, Departments and Agencies, Treasury Board of Canada Secretariat, Privy Council Office and Department of Justice To solicit feedback and suggestions, five guiding questions were used (see Annex B).
4. Regulatory Lifecycle Approach
These questions were embedded at the end of sections 4, 5 and 7 in the draft CDR. Interested parties or stakeholders were given a choice to select the question(s) they wished to answer based on experience and familiarity with the federal regulatory process. As a result, we received uneven input from section to section.<ref>Throughout the report, “some stakeholders” refers to a maximum of nine organizations or entities; “several stakeholders” refers to a range of 10 to 19 and “a majority of stakeholders” refers to 21 or more.</ref>
The [http://open.canada.ca/en/public-consultation-draft-cabinet-directive-regulation online consultation] was posted on [http://open.canada.ca/en open.canada.ca] initially from September 30 to October 29, 2017. An extension until November 20, 2017 was given to accommodate the requests from several organizations. Interested parties had a choice to post comments publicly online or to submit them by email. Overall we received comments from 28 interested parties. These parties include: four business owners or companies, six individuals, 18 associations or non-profit organizations and a parliamentary committee. All comments have been reviewed and summarized in this report
== What we heard ==
== What we heard ==
=== Theme 1: Engage early at the design and instrument choice stage for greater transparency. ===
=== Theme 1: Engage early at the design and instrument choice stage for greater transparency. ===
The following seven themes emerged from the consultation on the draft <abbr>CDR</abbr>:
“To get meaningful input from stakeholders, we believe that consultations should be early at the point when government thinks there is a problem or issue that requires regulation”.
“To get meaningful input from stakeholders, we believe that consultations should be early at the point when government thinks there is a problem or issue that requires regulation”.
Overall, several stakeholders indicated that they want departments and agencies to engage them much earlier than at the publication of the draft regulations in Canada Gazette, Part I. They believe that stakeholders should be brought in at the design and instrument choice stage, as well as consistently throughout the life-cycle. Some stakeholders indicated that they want to see more prescriptive requirements for early consultation and a stronger oversight role for TBS to ensure that such early engagement is occurring.
Overall, several stakeholders indicated that they want departments and agencies to engage them much earlier than at the publication of the draft regulations in Canada Gazette, Part I. They believe that stakeholders should be brought in at the design and instrument choice stage, as well as consistently throughout the life-cycle. Some stakeholders indicated that they want to see more prescriptive requirements for early consultation and a stronger oversight role for TBS to ensure that such early engagement is occurring.
In addition to prescribing a timeframe for a review of the existing regulatory stock, some stakeholders strongly suggested that technical and guidance documents issued by departments and agencies to accompany a regulation should also be part of the stock review. In this way, should a department or agency decide to remove obsolete or spent regulations from its stock, it should also take into consideration all related technical and guidance documents that would be impacted by the removal of the regulations and make the necessary adjustments.
In addition to prescribing a timeframe for a review of the existing regulatory stock, some stakeholders strongly suggested that technical and guidance documents issued by departments and agencies to accompany a regulation should also be part of the stock review. In this way, should a department or agency decide to remove obsolete or spent regulations from its stock, it should also take into consideration all related technical and guidance documents that would be impacted by the removal of the regulations and make the necessary adjustments.
A few stakeholders suggested the following additional criteria to consider when regulators review their existing stock of regulation and regulatory programs:
A few stakeholders suggested the following additional criteria to consider when regulators review their existing stock of regulation and regulatory programs:
the importance of improving the competitiveness of Canadian firms relative to other jurisdictions, with the aim to increase foreign investment opportunities; and
* the importance of improving the competitiveness of Canadian firms relative to other jurisdictions, with the aim to increase foreign investment opportunities; and
* the status of alignment or harmonization of regulatory activities with trade partners to minimize burden.
the status of alignment or harmonization of regulatory activities with trade partners to minimize burden.
=== Theme 6: Single portal for regulatory activities and easier access for regulated parties. ===
=== Theme 6: Single portal for regulatory activities and easier access for regulated parties. ===
Business entities who reviewed the draft CDR expressed the need for a comprehensive list of regulatory activities and changes that can impact product compliance in one single portal or one comprehensive data source to which stakeholders have access.
Business entities who reviewed the draft CDR expressed the need for a comprehensive list of regulatory activities and changes that can impact product compliance in one single portal or one comprehensive data source to which stakeholders have access.
A few stakeholders felt that, over the years, the federal government has made some improvements with its regulatory consultations. Yet more efforts should to be made to reach out to communities and consumer groups directly. In their view, this could be facilitated by the development and use of a consultation portal for regulations, similar to what is used in the U.S. (www.regulations.gov). Such an online portal for all regulatory consultations should include functionality for all stakeholders to directly provide comments. These comments could also be published via the same portal, so that all Canadians could see suggested improvements and/or concerns generated by regulatory proposals.
A few stakeholders felt that, over the years, the federal government has made some improvements with its regulatory consultations. Yet more efforts should to be made to reach out to communities and consumer groups directly. In their view, this could be facilitated by the development and use of a consultation portal for regulations, similar to what is used in the U.S. ([http://www.regulations.gov/ www.regulations.gov]). Such an online portal for all regulatory consultations should include functionality for all stakeholders to directly provide comments. These comments could also be published via the same portal, so that all Canadians could see suggested improvements and/or concerns generated by regulatory proposals.
=== Theme 7: Enhance accountability, predictability, co-development, coordination and cooperation with other levels of government. ===
=== Theme 7: Enhance accountability, predictability, co-development, coordination and cooperation with other levels of government. ===
=== 3.0 Guiding Principles of Federal Regulatory Policy ===
=== 3.0 Guiding Principles of Federal Regulatory Policy ===
# Regulations protect and advance the public interest and support good government: Regulations are justified by a clear rationale in terms of protecting the health, safety, security, social and economic well-being of Canadians, and the environment.
===== It is the duty of the Government of Canada to respect Parliament and the authorities granted by Parliament, as expressed in legislation; and to ensure that regulations result in the greatest overall net benefits to current and future generations of Canadians. In fulfilling this duty, departments and agencies will be guided by four principles: =====
# The regulatory process is open and transparent: Regulations, and their related activities, are accessible and understandable, and created in an open, transparent, and inclusive way that meaningfully engages the public and Aboriginal peoples early on.
# '''Regulations protect and advance the public interest and support good government:''' Regulations are justified by a clear rationale in terms of protecting the health, safety, security, social and economic well-being of Canadians, and the environment.
# Regulatory decision-making is evidence-based: Proposals are made, and decisions are based, on evidence, robust analysis of costs and benefits, and the assessment of risk, while being open to public scrutiny.
# '''The regulatory process is open and transparent:''' Regulations, and their related activities, are accessible and understandable, and created in an open, transparent, and inclusive way that meaningfully engages the public and Aboriginal peoples early on.
# Regulations support a fair and competitive economy: Regulations should aim to support and promote inclusive economic growth, entrepreneurship, and innovation for the benefit of Canadians and businesses. Opportunities for regulatory cooperation and the development of aligned regulations should be considered wherever possible.
# '''Regulatory decision-making is evidence-based:''' Proposals are made, and decisions are based, on evidence, robust analysis of costs and benefits, and the assessment of risk, while being open to public scrutiny.
# '''Regulations support a fair and competitive economy:''' Regulations should aim to support and promote inclusive economic growth, entrepreneurship, and innovation for the benefit of Canadians and businesses. Opportunities for regulatory cooperation and the development of aligned regulations should be considered wherever possible.
=== 4.0 The Regulatory Lifecycle Approach ===
=== 4.0 The Regulatory Lifecycle Approach ===
During all stages of the lifecycle, regulators must seek opportunities to engage Indigenous people and stakeholders; pursue regulatory cooperation and regulatory alignment, where appropriate; and, coordinate across all levels of government to minimize cumulative and unintended impacts of regulations on Canadians, business, and the economy.
During all stages of the lifecycle, regulators must seek opportunities to engage Indigenous people and stakeholders; pursue regulatory cooperation and regulatory alignment, where appropriate; and, coordinate across all levels of government to minimize cumulative and unintended impacts of regulations on Canadians, business, and the economy.
4.1 Consultations and Engagement[2]
==== 4.1 Consultations and Engagement<ref>Stakeholder engagement provides opportunities to ensure that issues and concerns of the stakeholders and the regulators are consistently understood and considered.</ref> ====
4.1.1 Stakeholder Engagement
===== 4.1.1 Stakeholder Engagement =====
Departments and agencies are responsible for identifying impacted stakeholders, Indigenous people and meaningfully consulting and engaging with them throughout the development, management, and review of regulations. In doing so, they should follow the Government of Canada’s policies and guidance for consultation and engagement.
Departments and agencies are responsible for identifying impacted stakeholders, Indigenous people and meaningfully consulting and engaging with them throughout the development, management, and review of regulations. In doing so, they should follow the Government of Canada’s policies and guidance for consultation and engagement.
Departments and agencies should seek opportunities to use modern, digital, accessible and secure platforms and tools for consultation and / or engagement. Communication tools should support meaningful and inclusive consultation and/or engagement, with consideration given to any limitations on accessibility for stakeholders and Indigenous peoples. Departments and agencies must follow the requirements for digital government and communication as set out in Treasury Board policies and directives: Policy on Communication, Policy on Federal Identity and the Policy on Official Languages.
Departments and agencies should seek opportunities to use modern, digital, accessible and secure platforms and tools for consultation and / or engagement. Communication tools should support meaningful and inclusive consultation and/or engagement, with consideration given to any limitations on accessibility for stakeholders and Indigenous peoples. Departments and agencies must follow the requirements for digital government and communication as set out in Treasury Board policies and directives: Policy on Communication, Policy on Federal Identity and the Policy on Official Languages.
4.1.2 Consultations with Aboriginal Peoples[3]
===== 4.1.2 Consultations with Aboriginal Peoples<ref>The terms “consultation with Aboriginal peoples” refer to the legal obligation of the Crown to consult with Aboriginal peoples that is distinct from stakeholder engagement. To align with section 35 of the Constitution Act, 1982, the term Aboriginal peoples will be used throughout the Directive.</ref> =====
If Aboriginal peoples may be impacted by any proposed regulation, departments and agencies must provide reasonable assurance that all obligations in relation to rights protected by section 35 of the Constitution Act, 1982, and international human rights obligations are met.
If Aboriginal peoples may be impacted by any proposed regulation, departments and agencies must provide reasonable assurance that all obligations in relation to rights protected by section 35 of the Constitution Act, 1982, and international human rights obligations are met.
Departments and agencies shall also ensure that the Government of Canada respects any consultation obligations or processes such as those set out in modern treaties, throughout the regulatory process.
Departments and agencies shall also ensure that the Government of Canada respects any consultation obligations or processes such as those set out in modern treaties, throughout the regulatory process.
4.2 Regulatory Cooperation and Regulatory Alignment
==== 4.2 Regulatory Cooperation and Regulatory Alignment ====
Departments and agencies will assess opportunities for cooperating with other jurisdictions, domestically and internationally, on regulations and associated regulatory activities. This includes assessing the feasibility of aligning regulatory approaches and/or outcomes with key trading partners, in order to reduce the regulatory burden on Canadian business, while maintaining or improving the health, safety, security, social and economic well-being of Canadians, and the environment.
Departments and agencies will assess opportunities for cooperating with other jurisdictions, domestically and internationally, on regulations and associated regulatory activities. This includes assessing the feasibility of aligning regulatory approaches and/or outcomes with key trading partners, in order to reduce the regulatory burden on Canadian business, while maintaining or improving the health, safety, security, social and economic well-being of Canadians, and the environment.
Regulatory alignment occurs when there is any agreement or arrangement, formal or informal, which reduces or eliminates differences between independent regulatory systems and/or regulatory activities, including inspections, certification, standards, and product and testing approvals.
Regulatory alignment occurs when there is any agreement or arrangement, formal or informal, which reduces or eliminates differences between independent regulatory systems and/or regulatory activities, including inspections, certification, standards, and product and testing approvals.
4.3 Coordination
==== 4.3 Coordination ====
Departments and agencies are responsible for working with each other to coordinate regulatory efforts within the Government of Canada including engagement / consultation with stakeholders and Indigenous peoples.
Departments and agencies are responsible for working with each other to coordinate regulatory efforts within the Government of Canada including engagement / consultation with stakeholders and Indigenous peoples.
At the beginning of the regulatory lifecycle, departments and agencies determine the approach to address an issue, set objectives, undertake consultations with stakeholders, and analyse the risks, impacts, and costs and benefits of a regulatory proposal, in accordance with applicable policies, guidelines, and good regulatory practices.
At the beginning of the regulatory lifecycle, departments and agencies determine the approach to address an issue, set objectives, undertake consultations with stakeholders, and analyse the risks, impacts, and costs and benefits of a regulatory proposal, in accordance with applicable policies, guidelines, and good regulatory practices.
5.1 Determination of Regulatory Approach
==== 5.1 Determination of Regulatory Approach ====
5.1.1 Issue Identification
===== 5.1.1 Issue Identification =====
Departments and agencies are responsible for identifying public policy issues to be addressed. This includes outlining risks to health, safety, security, the economy, and the social and economic well-being of Canadians and the environment and demonstrating through the best available evidence and analysis that government intervention is needed.
Departments and agencies are responsible for identifying public policy issues to be addressed. This includes outlining risks to health, safety, security, the economy, and the social and economic well-being of Canadians and the environment and demonstrating through the best available evidence and analysis that government intervention is needed.
Where there are threats of serious or irreversible damage or harm, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent harm.
Where there are threats of serious or irreversible damage or harm, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent harm.
5.1.2 Instrument Choice
===== 5.1.2 Instrument Choice =====
Departments and agencies are responsible for assessing the effectiveness and appropriateness of regulatory and non-regulatory instruments for achieving policy objectives. Departments and agencies should demonstrate that they have considered relevant domestic and international best practices as part of the instrument choice exercise. Where relevant best practices exist, regulators should seek to identify opportunities to cooperate or align, in order to avoid or reduce duplication or unnecessary burden.
Departments and agencies are responsible for assessing the effectiveness and appropriateness of regulatory and non-regulatory instruments for achieving policy objectives. Departments and agencies should demonstrate that they have considered relevant domestic and international best practices as part of the instrument choice exercise. Where relevant best practices exist, regulators should seek to identify opportunities to cooperate or align, in order to avoid or reduce duplication or unnecessary burden.
Outcome and performance-based regulations specify the desired result that a regulation intends to achieve, rather than a prescriptive description of compliance. This type of regulation increases flexibility for regulated parties as well as departments and agencies, and requires the regulated communities to focus on achieving specific and measurable outcomes.
Outcome and performance-based regulations specify the desired result that a regulation intends to achieve, rather than a prescriptive description of compliance. This type of regulation increases flexibility for regulated parties as well as departments and agencies, and requires the regulated communities to focus on achieving specific and measurable outcomes.
5.1.3 Forward Regulatory Plans
===== 5.1.3 Forward Regulatory Plans =====
Departments and agencies should provide advance notice to Canadians and stakeholders on upcoming regulatory changes over a period of 24-month so stakeholders can engage in regulatory development and plan for future regulatory changes at the earliest opportunity.
Departments and agencies should provide advance notice to Canadians and stakeholders on upcoming regulatory changes over a period of 24-month so stakeholders can engage in regulatory development and plan for future regulatory changes at the earliest opportunity.
Advance notice is given on an annual basis which outlines departments’ and agencies’ plans for new regulations, regulatory amendments, repeals, and stock reviews. Regulatory proposals should be included on a forward regulatory plan before being pre-published in the Canada Gazette, Part I.
Advance notice is given on an annual basis which outlines departments’ and agencies’ plans for new regulations, regulatory amendments, repeals, and stock reviews. Regulatory proposals should be included on a forward regulatory plan before being pre-published in the Canada Gazette, Part I.
5.1.4 Consultations Prior to Pre-Publication
===== 5.1.4 Consultations Prior to Pre-Publication =====
Departments and agencies will consult when appropriate and engage potentially impacted stakeholders, Indigenous people, including all partners with whom the Government of Canada has a formal regulatory cooperation arrangement, during the development of a regulatory proposal. Departments and agencies are responsible for determining the size and scope of the consultations or engagement. Publication in the Canada Gazette, Part I, (i.e., pre-publication) is not a substitute for early consultation.
Departments and agencies will consult when appropriate and engage potentially impacted stakeholders, Indigenous people, including all partners with whom the Government of Canada has a formal regulatory cooperation arrangement, during the development of a regulatory proposal. Departments and agencies are responsible for determining the size and scope of the consultations or engagement. Publication in the Canada Gazette, Part I, (i.e., pre-publication) is not a substitute for early consultation.
Departments and agencies should not postpone pre-publishing a proposal in the Canada Gazette, Part I, in the absence of unanimity of views from stakeholders. Rather, consultations and engagement with stakeholders and Indigenous people on a regulatory proposal should be viewed as an ongoing dialogue, with consultations or engagement before pre-publication identified as an important, but not the only, tool to seek stakeholder input.
Departments and agencies should not postpone pre-publishing a proposal in the Canada Gazette, Part I, in the absence of unanimity of views from stakeholders. Rather, consultations and engagement with stakeholders and Indigenous people on a regulatory proposal should be viewed as an ongoing dialogue, with consultations or engagement before pre-publication identified as an important, but not the only, tool to seek stakeholder input.
5.2 Regulatory Impact Analysis (RIA)
==== 5.2 Regulatory Impact Analysis (RIA) ====
Departments and agencies must conduct a Regulatory Impact Analysis (RIA) on all regulatory proposals, to support stakeholder engagement and evidence-based decision-making. In conducting RIA, departments and agencies will comply with relevant Acts, regulations, Treasury Board policies, and adhere to guidance, tools, and directives, and will engage with the Regulatory Affairs Sector at Treasury Board of Canada Secretariat (TBS).
Departments and agencies must conduct a Regulatory Impact Analysis (RIA) on all regulatory proposals, to support stakeholder engagement and evidence-based decision-making. In conducting RIA, departments and agencies will comply with relevant Acts, regulations, Treasury Board policies, and adhere to guidance, tools, and directives, and will engage with the Regulatory Affairs Sector at Treasury Board of Canada Secretariat (TBS).
RIA must examine potential positive and negative effects of a regulatory proposal on the health, safety, security, social and economic well-being of Canadians businesses, and the environment. RIA should include qualitative and quantitative analysis that is proportional to the expected impacts of a regulatory proposal. Departments and agencies must conduct an early assessment, known as a Triage, of a regulatory proposal to determine its expected impact level and the appropriate mix of analytical requirements of the following elements:
RIA must examine potential positive and negative effects of a regulatory proposal on the health, safety, security, social and economic well-being of Canadians businesses, and the environment. RIA should include qualitative and quantitative analysis that is proportional to the expected impacts of a regulatory proposal. Departments and agencies must conduct an early assessment, known as a Triage, of a regulatory proposal to determine its expected impact level and the appropriate mix of analytical requirements of the following elements:
5.2.1 Analysis of Benefits and Costs
===== 5.2.1 Analysis of Benefits and Costs =====
Departments and agencies will examine and quantify the potential positive and negative impacts of a proposed regulation and its feasible alternative options on Canadians, business, governments and the environment, and identify how impacts are distributed across the various parties. When it is not possible to quantify the benefits and/or costs, a rigorous qualitative analysis of costs and/or benefits in support of the regulatory proposal is expected.
Departments and agencies will examine and quantify the potential positive and negative impacts of a proposed regulation and its feasible alternative options on Canadians, business, governments and the environment, and identify how impacts are distributed across the various parties. When it is not possible to quantify the benefits and/or costs, a rigorous qualitative analysis of costs and/or benefits in support of the regulatory proposal is expected.
Impacts on government revenue
Impacts on government revenue
5.2.2 Impacts on the Environment
===== 5.2.2 Impacts on the Environment =====
Departments and agencies will undertake an assessment of potential effects on the environment for each regulatory proposal, in accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals.
Departments and agencies will undertake an assessment of potential effects on the environment for each regulatory proposal, in accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals.
An assessment of environmental impacts involves examining the scope and nature of the likely environmental effects (positive or negative); the need for mitigation to reduce or eliminate adverse effects or opportunities for enhancement, and the likely importance of any adverse environmental effects, taking mitigation into account. This helps inform the public that environmental factors have been appropriately considered when decisions are made.
An assessment of environmental impacts involves examining the scope and nature of the likely environmental effects (positive or negative); the need for mitigation to reduce or eliminate adverse effects or opportunities for enhancement, and the likely importance of any adverse environmental effects, taking mitigation into account. This helps inform the public that environmental factors have been appropriately considered when decisions are made.
5.2.3 Gender Based Analysis Plus (GBA+)
===== 5.2.3 Gender Based Analysis Plus (GBA+) =====
Departments and agencies will undertake an assessment of social and economic impacts of each regulatory proposal on diverse groups of Canadians, in accordance with the Government of Canada’s commitment on implementing Gender-based Analysis.
Departments and agencies will undertake an assessment of social and economic impacts of each regulatory proposal on diverse groups of Canadians, in accordance with the Government of Canada’s commitment on implementing Gender-based Analysis.
Gender-based Analysis Plus (GBA+) is an analytical tool used to help identify the impacts of government initiatives on diverse groups of women, men, and gender-diverse people. The “plus” acknowledges that GBA goes beyond sex and gender differences to consider multiple identity factors that intersect to make people who they are (such as race, ethnicity, religion, age, and mental or physical disability).
Gender-based Analysis Plus (GBA+) is an analytical tool used to help identify the impacts of government initiatives on diverse groups of women, men, and gender-diverse people. The “plus” acknowledges that GBA goes beyond sex and gender differences to consider multiple identity factors that intersect to make people who they are (such as race, ethnicity, religion, age, and mental or physical disability).
5.2.4 Minimizing Burden on Business
===== 5.2.4 Minimizing Burden on Business =====
Departments and agencies will identify and estimate the cost of administrative burden impacts of regulatory proposals on Canadian businesses, as set out in the Red Tape Reduction Act and the Red Tape Reduction Regulations, with a view to minimizing this burden to the greatest extent possible without compromising the health, safety and security of Canadians, the environment or the economy.
Departments and agencies will identify and estimate the cost of administrative burden impacts of regulatory proposals on Canadian businesses, as set out in the Red Tape Reduction Act and the Red Tape Reduction Regulations, with a view to minimizing this burden to the greatest extent possible without compromising the health, safety and security of Canadians, the environment or the economy.
Departments and agencies will also consider the impact of proposed regulations specifically on small businesses to ensure that small businesses do not unnecessarily bear a disproportionate burden when complying with regulations.
Departments and agencies will also consider the impact of proposed regulations specifically on small businesses to ensure that small businesses do not unnecessarily bear a disproportionate burden when complying with regulations.
5.2.5 Regulatory Cooperation
===== 5.2.5 Regulatory Cooperation =====
Departments and agencies will analyse the feasibility of minimizing regulatory differences and aligning regulations with other jurisdictions, domestically and internationally. Where differences remain, departments and agencies must provide a rationale for the Canada-specific approach.
Departments and agencies will analyse the feasibility of minimizing regulatory differences and aligning regulations with other jurisdictions, domestically and internationally. Where differences remain, departments and agencies must provide a rationale for the Canada-specific approach.
5.2.6 Modern Treaty Implications
===== 5.2.6 Modern Treaty Implications =====
Pursuant to the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, departments and agencies will undertake an Assessment of Modern Treaty Implications (AMTI). The law-making authorities and rights of modern treaty partners and self-governing Indigenous groups must be respected when developing and implementing a regulatory proposal. The Government of Canada must also ensure it meets its obligations under Modern Treaties and Self-government agreements. In the event that modern treaty implications are identified, departments and agencies should engage with implicated modern treaty partners and self-governing Indigenous groups on the findings of the AMTI.
Pursuant to the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, departments and agencies will undertake an Assessment of Modern Treaty Implications (AMTI). The law-making authorities and rights of modern treaty partners and self-governing Indigenous groups must be respected when developing and implementing a regulatory proposal. The Government of Canada must also ensure it meets its obligations under Modern Treaties and Self-government agreements. In the event that modern treaty implications are identified, departments and agencies should engage with implicated modern treaty partners and self-governing Indigenous groups on the findings of the AMTI.
5.2.7 International Obligations
===== 5.2.7 International Obligations =====
Departments and agencies will respect Canada’s international obligations in areas such as human rights, health, safety, security, international trade, and the environment. Departments and agencies should also implement provisions related to these obligations at all stages of regulatory activity, including consultation and notification, as applicable.
Departments and agencies will respect Canada’s international obligations in areas such as human rights, health, safety, security, international trade, and the environment. Departments and agencies should also implement provisions related to these obligations at all stages of regulatory activity, including consultation and notification, as applicable.
5.2.8 Implementation
===== 5.2.8 Implementation =====
Departments and agencies must plan for the implementation of the regulatory proposal as part of their analysis. This could include examination of timing, infrastructure requirements (e.g., information management and information technology), fund sources, compliance promotion and outreach, training, and enforcement plans. This analysis could also include consideration of evaluation metrics.
Departments and agencies must plan for the implementation of the regulatory proposal as part of their analysis. This could include examination of timing, infrastructure requirements (e.g., information management and information technology), fund sources, compliance promotion and outreach, training, and enforcement plans. This analysis could also include consideration of evaluation metrics.
5.3 Regulatory Impact Analysis Statement Requirements
==== 5.3 Regulatory Impact Analysis Statement Requirements ====
Departments and agencies will develop a Regulatory Impact Analysis Statement (RIAS) in accordance with the guidelines set out in the Policy on Regulatory Development.
Departments and agencies will develop a Regulatory Impact Analysis Statement (RIAS) in accordance with the guidelines set out in the Policy on Regulatory Development.
A Regulatory Impact Analysis Statement (RIAS) is a clear, non-technical synthesis of expected impacts of a proposed regulation. It is published in the Canada Gazette with the regulatory text.
A Regulatory Impact Analysis Statement (RIAS) is a clear, non-technical synthesis of expected impacts of a proposed regulation. It is published in the Canada Gazette with the regulatory text.
5.4 Publication and Consultation
==== 5.4 Publication and Consultation ====
5.4.1 Pre-publication and Consultation
===== 5.4.1 Pre-publication and Consultation =====
Departments and agencies will submit a regulatory proposal to be considered by Treasury Board (Governor-in-Council), or the regulation-making authority, for pre-publication in the Canada Gazette, Part I. Pre-publication of a regulation will include the draft legal text as well as a RIAS.
Departments and agencies will submit a regulatory proposal to be considered by Treasury Board (Governor-in-Council), or the regulation-making authority, for pre-publication in the Canada Gazette, Part I. Pre-publication of a regulation will include the draft legal text as well as a RIAS.
A minimum comment period of 70 days may be required for consultations on proposals for new and amended technical regulations that have a significant effect on international trade.
A minimum comment period of 70 days may be required for consultations on proposals for new and amended technical regulations that have a significant effect on international trade.
5.4.2 Exemption from Pre-publication
===== 5.4.2 Exemption from Pre-publication =====
Exemptions to pre-publication requirements may be granted by Treasury Board (Governor-in-Council) or the regulation-making authority, when there is no statutory requirement to pre-publish. In cases where a regulatory proposal is not pre-published, a brief rationale for the exemption must be included in the final RIAS, as a best practice. Departments and agencies must consult with the Regulatory Affairs Sector at TBS if they are considering seeking an exemption.
Exemptions to pre-publication requirements may be granted by Treasury Board (Governor-in-Council) or the regulation-making authority, when there is no statutory requirement to pre-publish. In cases where a regulatory proposal is not pre-published, a brief rationale for the exemption must be included in the final RIAS, as a best practice. Departments and agencies must consult with the Regulatory Affairs Sector at TBS if they are considering seeking an exemption.
5.4.3 Final Publication
===== 5.4.3 Final Publication =====
In accordance with the Statutory Instruments Act, all approved regulations must be published in Canada Gazette, Part II, after they are made and registered except where exempted under section 15 of the Statutory Instruments Regulations (C.R.C., c. 1509). A Regulatory Impact Analysis Statement must be included along with all published regulations.
In accordance with the Statutory Instruments Act, all approved regulations must be published in Canada Gazette, Part II, after they are made and registered except where exempted under section 15 of the Statutory Instruments Regulations (C.R.C., c. 1509). A Regulatory Impact Analysis Statement must be included along with all published regulations.
5.5 Exceptional Measures
===== 5.5 Exceptional Measures =====
Exemptions from certain regulatory development requirements can be granted by Treasury Board (Governor-in-Council) or Cabinet in cases of serious and immediate risk to the health and safety of Canadians, their security, the environment, the economy, internal government reorganizations, or other exceptional circumstances.
Exemptions from certain regulatory development requirements can be granted by Treasury Board (Governor-in-Council) or Cabinet in cases of serious and immediate risk to the health and safety of Canadians, their security, the environment, the economy, internal government reorganizations, or other exceptional circumstances.
To encourage compliance with regulations, it is important for departments and agencies to provide the public and regulatees with all relevant information on what is expected of them in a format that is easy to understand.
To encourage compliance with regulations, it is important for departments and agencies to provide the public and regulatees with all relevant information on what is expected of them in a format that is easy to understand.
6.1 Enhancing Predictability
==== 6.1 Enhancing Predictability ====
Departments and agencies are responsible for developing, publishing, and reviewing service standards for High Volume Regulatory Transactions that promote the timeliness of decision-making and provide Canadians with clear information on expectations for interactions and service.
Departments and agencies are responsible for developing, publishing, and reviewing service standards for High Volume Regulatory Transactions that promote the timeliness of decision-making and provide Canadians with clear information on expectations for interactions and service.
Departments and agencies are also responsible for developing and publishing guidelines for the public to help clarify regulatory requirements for stakeholders and improve information sharing between the regulator and regulated stakeholders.
Departments and agencies are also responsible for developing and publishing guidelines for the public to help clarify regulatory requirements for stakeholders and improve information sharing between the regulator and regulated stakeholders.
6.2 Compliance and Enforcement
==== 6.2 Compliance and Enforcement ====
Departments and agencies are responsible for promoting the effectiveness of their regulations through the development and implementation of compliance and enforcement strategies and programs. These strategies and programs should:
Departments and agencies are responsible for promoting the effectiveness of their regulations through the development and implementation of compliance and enforcement strategies and programs. These strategies and programs should:
Reviewing both regulatory programs and the regulatory stock allows departments and agencies to consider impacts and burden on impacted stakeholders, while ensuring that the health, safety, security, environment and the social and economic well-being of Canadians remains protected.
Reviewing both regulatory programs and the regulatory stock allows departments and agencies to consider impacts and burden on impacted stakeholders, while ensuring that the health, safety, security, environment and the social and economic well-being of Canadians remains protected.
7.1 Reviews of Regulatory Programs
==== 7.1 Reviews of Regulatory Programs ====
Departments and agencies are responsible for evaluating the performance of their regulatory programs, and are required to adhere to the Treasury Board Policy on Results and the Treasury Board Policy on Internal Audit. Outcomes of a review of a regulatory program could inform the review of the regulatory stock.
Departments and agencies are responsible for evaluating the performance of their regulatory programs, and are required to adhere to the Treasury Board Policy on Results and the Treasury Board Policy on Internal Audit. Outcomes of a review of a regulatory program could inform the review of the regulatory stock.
7.2 Reviews of the Regulatory Stock
==== 7.2 Reviews of the Regulatory Stock ====
Departments and agencies must undertake a periodic review of their existing regulatory stock to ensure regulations continue to be appropriate and effective, achieve their intended policy objectives.
Departments and agencies must undertake a periodic review of their existing regulatory stock to ensure regulations continue to be appropriate and effective, achieve their intended policy objectives.
Departments and agencies are responsible for establishing timelines to undertake a stock review. The President of the Treasury Board has the authority to require departments and agencies to undertake specific reviews or participate in centrally-led reviews.
Departments and agencies are responsible for establishing timelines to undertake a stock review. The President of the Treasury Board has the authority to require departments and agencies to undertake specific reviews or participate in centrally-led reviews.
7.3 Standing Joint Committee for the Scrutiny of Regulations
==== 7.3 Standing Joint Committee for the Scrutiny of Regulations ====
Departments and agencies must respond to issues raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) in a timely manner.
Departments and agencies must respond to issues raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) in a timely manner.
The Standing Joint Committee for the Scrutiny of Regulations reviews and examines regulations amongst other things to ensure they respect the powers conferred to a regulation-making authority by an Act of Parliament and for matters of related to legal drafting. Every regulation issued is permanently referred to the Standing Joint Committee for review.
The Standing Joint Committee for the Scrutiny of Regulations reviews and examines regulations amongst other things to ensure they respect the powers conferred to a regulation-making authority by an Act of Parliament and for matters of related to legal drafting. Every regulation issued is permanently referred to the Standing Joint Committee for review.
8.0 Supporting Policies
=== 8.0 Supporting Policies ===
The President of the Treasury Board has the authority to establish policy requirements in support of this Directive. The Secretary of the Treasury Board of Canada has the authority to update references to relevant acts, regulations, policies, guides, and tools, which are incorporated into this Directive’s text and may be amended from time to time.
The President of the Treasury Board has the authority to establish policy requirements in support of this Directive. The Secretary of the Treasury Board of Canada has the authority to update references to relevant acts, regulations, policies, guides, and tools, which are incorporated into this Directive’s text and may be amended from time to time.
== Annex B: Roles and Responsibilities ==
== Annex B: Roles and Responsibilities ==
=== Governor in Council ===
Governor General in Council or Governor in Council means the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada.
Governor General in Council or Governor in Council means the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada.
Treasury Board ministers consider the regulatory submission and decide whether to recommend that the Governor General make the regulations as presented in their final form.
Treasury Board ministers consider the regulatory submission and decide whether to recommend that the Governor General make the regulations as presented in their final form.
Departments and Agencies
=== Departments and Agencies ===
Federal departments and agencies must comply with this Directive and its related policies and guidance at all stages of the regulatory life cycle.
Federal departments and agencies must comply with this Directive and its related policies and guidance at all stages of the regulatory life cycle.
Requirements governing legislative instruments are set out in the Cabinet Directive on Law-making.
Requirements governing legislative instruments are set out in the Cabinet Directive on Law-making.
Treasury Board of Canada Secretariat
=== Treasury Board of Canada Secretariat ===
The Treasury Board of Canada Secretariat (TBS) is responsible for supporting Ministerial decision making and oversight. TBS is expected to:
The Treasury Board of Canada Secretariat (TBS) is responsible for supporting Ministerial decision making and oversight. TBS is expected to:
provide advice and guidance to departments and agencies concerning the development of regulatory proposals and compliance with the Directive;
* provide advice and guidance to departments and agencies concerning the development of regulatory proposals and compliance with the Directive;
* work with departments and agencies to provide ministers and the Cabinet committee responsible for Governor-in-Council decisions with the necessary information to make decisions on the issues before them;
work with departments and agencies to provide ministers and the Cabinet committee responsible for Governor-in-Council decisions with the necessary information to make decisions on the issues before them;
* review regulatory proposals, challenge departments and agencies on the quality of regulatory analyses, and advise them when the directions set out in the Directive have not been met;
* promote policy coherence among new proposals, existing policies, and the government’s policy agenda;
review regulatory proposals, challenge departments and agencies on the quality of regulatory analyses, and advise them when the directions set out in the Directive have not been met;
* be the source of expertise on good regulatory practices; and,
* assess the effectiveness of the Directive and its implementation.
promote policy coherence among new proposals, existing policies, and the government’s policy agenda;
be the source of expertise on good regulatory practices; and,
assess the effectiveness of the Directive and its implementation.
TBS is responsible for stakeholder education and awareness for the regulatory process and good regulatory practices.
TBS is responsible for stakeholder education and awareness for the regulatory process and good regulatory practices.
It will also maintain current policies, guidance, and tools in support of the implementation of the Cabinet Directive on Regulation.
It will also maintain current policies, guidance, and tools in support of the implementation of the Cabinet Directive on Regulation.
Privy Council Office
=== Privy Council Office ===
The role of the Privy Council Office (PCO) is to assess memoranda to Cabinet and legislative proposals with regard to instrument selection, regulatory implications, and consistency with this Directive and with the Cabinet Directive on Law-making. Under the Statutory Instruments Act, the PCO- OIC also has a number of responsibilities in the regulatory process:
The role of the Privy Council Office (PCO) is to assess memoranda to Cabinet and legislative proposals with regard to instrument selection, regulatory implications, and consistency with this Directive and with the Cabinet Directive on Law-making. Under the Statutory Instruments Act, the PCO- OIC also has a number of responsibilities in the regulatory process:
Examination: Together with the Department of Justice, examines regulations for any issues and advises the regulation-making authority.
* '''Examination''': Together with the Department of Justice, examines regulations for any issues and advises the regulation-making authority.
Registration: Within seven (7) days after making a regulation, the regulation-making authority transmits copies of the regulation in both official languages to PCO, which then registers them. PCO can refuse registration if it deems that certain sections of the Statutory Instruments Act were not followed.
* '''Registration''': Within seven (7) days after making a regulation, the regulation-making authority transmits copies of the regulation in both official languages to PCO, which then registers them. PCO can refuse registration if it deems that certain sections of the Statutory Instruments Act were not followed.
Coming into force: As normally regulations come into force the day they are registered or later as specified in the regulation, a justification must be provided to PCO for those that are expressed to come into force earlier than the day of registration.
* '''Coming into force:''' As normally regulations come into force the day they are registered or later as specified in the regulation, a justification must be provided to PCO for those that are expressed to come into force earlier than the day of registration.
Quarterly consolidated index of regulations: prepares a quarterly consolidated index of all regulations and amendments to regulations in force at any time after the end of the preceding calendar year.
* '''Quarterly consolidated index of regulations:''' prepares a quarterly consolidated index of all regulations and amendments to regulations in force at any time after the end of the preceding calendar year.
Revisions and consolidation: after consultation with the Deputy Minister of Justice, can ask regulation-making authorities to revise or consolidate regulations.
* '''Revisions and consolidation:''' after consultation with the Deputy Minister of Justice, can ask regulation-making authorities to revise or consolidate regulations.
Department of Justice
=== Department of Justice ===
The Department of Justice provides legal advice to departments and agencies on the legality of proposals for enabling and subordinate legislation, and the legal requirements of the regulatory process.
The Department of Justice provides legal advice to departments and agencies on the legality of proposals for enabling and subordinate legislation, and the legal requirements of the regulatory process.
In doing so, the Department of Justice provides drafting services to departments and agencies and, under the Statutory Instruments Act, examines all proposed regulations to ensure that they:
In doing so, the Department of Justice provides drafting services to departments and agencies and, under the Statutory Instruments Act, examines all proposed regulations to ensure that they:
have the necessary legal authorization to be made;
* have the necessary legal authorization to be made;
are consistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, 1960;
* are consistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, 1960;
are not an unusual or unexpected use of the enabling authority; and,
* are not an unusual or unexpected use of the enabling authority; and,
are drafted in accordance with established standards.
* are drafted in accordance with established standards.
The Department of Justice also provides departments and agencies with legal tools and advice on the appropriate use of government instruments, regulatory techniques, international standards, and compliance and enforcement techniques.
The Department of Justice also provides departments and agencies with legal tools and advice on the appropriate use of government instruments, regulatory techniques, international standards, and compliance and enforcement techniques.
== Annex C: Guiding questions for the online and open consultation on the draft Cabinet Directive on Regulation, from September 30 to November 20, 2017 ==
== Annex C: Guiding questions for the online and open consultation on the draft Cabinet Directive on Regulation, from September 30 to November 20, 2017 ==
Instructions
=== Instructions ===
In this consultation, there are eight sections of the draft CDR is open for comments:
In this consultation, there are eight sections of the draft CDR is open for comments:
# Purpose
# Scope of Application
# Guiding principles of federal regulatory policy
# Regulatory Lifecycle Approach
# Development of Regulations
# Regulatory management
# Review and Results
# Supporting policies
Appendix A
Appendix A
Guiding questions can be found at the end of Sections 4, 5, 7 and Appendix A. Please answer these questions based on the experience and familiarity with the federal regulatory process. Do not feel obliged to answer a question if it does not apply to you. When providing your comments and suggestions for improvement, please specify the question number (for example, Q1 or Q2 or Q3 or Q4 or Q5).
Guiding questions can be found at the end of Sections 4, 5, 7 and Appendix A. Please answer these questions based on the experience and familiarity with the federal regulatory process. Do not feel obliged to answer a question if it does not apply to you. When providing your comments and suggestions for improvement, please specify the question number (for example, Q1 or Q2 or Q3 or Q4 or Q5).
Guiding questions
=== Guiding questions ===
Q1: In this proposed policy update, during the regulatory development process, we put emphasis on considering regulatory cooperation where possible. Are there any requirements missing? Please explain and provide suggestions for improvement.
Q1: In this proposed policy update, during the regulatory development process, we put emphasis on considering regulatory cooperation where possible. Are there any requirements missing? Please explain and provide suggestions for improvement.
For more information, please refer to following sections:
For more information, please refer to following sections:
Section 4.1 “Consultation and Engagement” and sub-sections 4.1.1 and 4.1.2 inclusively
* Section 4.1 “Consultation and Engagement” and sub-sections 4.1.1 and 4.1.2 inclusively
Section 5.1 “Determination of Regulatory Approach” and sub-sections 5.1.1 to 5.1.4 inclusively
* Section 5.1 “Determination of Regulatory Approach” and sub-sections 5.1.1 to 5.1.4 inclusively
Q3. In this proposed policy update, we place significant importance on showing the impact, cost and benefits of all regulatory proposals. Are there any requirements missing? Please explain and provide suggestions for improvement.
Q3. In this proposed policy update, we place significant importance on showing the impact, cost and benefits of all regulatory proposals. Are there any requirements missing? Please explain and provide suggestions for improvement.
For information, please refer to section 7.0 “Review and Results”.
For information, please refer to section 7.0 “Review and Results”.
Footnotes
== Footnotes ==
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