The Torontoist has an excellent run-down today on the various security, civil liberty and Charter issues that have arisen from the recent G20 meeting in Toronto–see Did police break the law during the G20?.
Ontario Ombudsman André Marin has announced he is launching an investigation into the controversial Ontario regulation made under the Public Works Protection Act prior to the G20. From the Ombudsman's press release posted this morning:
The investigation, to be conducted by the Special Ombudsman Response Team (SORT), will examine the involvement of the Ministry of Community Safety and Correctional Services in the origin of Regulation 233/10, made last month under the Public Works Protection Act to apply to parts of downtown Toronto near the summit meeting site – and the subsequent communication about it to stakeholders, including police, media and the public.
The Canadian Civil Liberties Association, along with a number of other organizations, is endorsing tomorrow's National Day of Action for Civil Liberties:
On Saturday July 10, a Day of Action for Civil Liberties will take place in towns and cities across Canada to demand an independent public inquiry into police conduct during the G20 Summit. In Toronto, a mass rally and march will take place at Queen’s Park starting at 1pm. CCLA General Counsel Nathalie Des Rosiers will be offering remarks at that time.
I like the Torontoist article I linked to above because I thought it covered all the issues and described them well, albeit in layman's terms. Russ Skinner disagreed (via Twitter) saying:
http://mobile.twitter.com/russskinner/status/18131520155
http://mobile.twitter.com/russskinner/status/18131990120
I appreciate Russ' careful reading and critical thinking. Other thoughts?
Okay, I'm going to rant a little now. In Today's Toronto Star, Anna Martin writes about the Public Works Protection Act and the sweeping powers given to police under an obscure piece of legislation. http://tinyurl.com/2ubwp2s
At about paragraph 12, the author loses me. I quote:
"If that weren’t bad enough, the PWPA allows the government to pass regulations, without holding a vote in the Legislature, designating virtually anywhere — even privately owned homes — as a public work."
Regulations ARE passed without a vote – that's what makes them regulations. What really has me irritated by this passage is the fact that the author, Anna Martin, is a practising lawyer.
I realize that it's optimistic to hope that the average citizen can appreciate the difference between a statute and a regulation, but this is basic information literacy for a lawyer.
Unbelievable. Do they publish Letters to the Editor any more?
Perhaps this is apocryphal but I heard that when Joey Smallwood was Premier, he suggested scrapping the publication of the Newfoundland Gazette , the CNRs and the Annual Regulations on the basis that nobody needed to know this stuff and that if they did, they could ask him.
Heck, when I was young and practiced a tiny bit of social assistance law, I found that Nova Scotia didn't bother to publish it's regulations under its welfare act anywhere in any form. They were surprised and hesitant when I asked for a copy.
Presumably what Ms Martin is so inarticulately (for a lawyer who should know better) complaining about is the enactment of a legal measure with considerable public impact without any public debate. Her technical complaint would be with the Legislature that passed the statute that gave the Executive so much power.
There is no bright line for what kinds of thing should be left to regulation – no rule of law that I know of about the type of impact that a regulation may have compared to a statute (except with respect to raising money, in some cases). There are drafting principles that say that the subject of potential regulations should be spelled out in some detail in the enabling statute, but those principles are often wishful thinking. It is common to see in statutes a power to make regulations for the better carrying out of the objects of the statute, which is about as general as one can get.
Even "Henry VII" regulations – that allow the Cabinet/Executive/Crown to change or reverse the policy of the statute passed by the Legislature – are not per se invalid, though some judges have said unfavourable things about them (while upholding them).
Similarly there is no bright line in law or policy about what regulations should be made by the Lieutenant Governor in Council, i.e. the Cabinet, and what ones can be made by Ministers without Cabinet review. (The statute says who gets to make the regulation, but nothing much says which choice is "correct".)
At least regulations are public (if you know where to look, and it's not that hard. The problem is knowing whether to look…). These days "regulations" have a bad name in some quarters, so government departments are sometimes inclined to put their policies and rules into guidelines and ministerial directives, assuming that they have the legal authority to do so. The problem with these documents is that they are very hard to find – even within the public service, sometimes, after some years.
May one hope that the Ombudsman will cast light on these matters in his investigation?
oops – an earlier (though also arbitrary) Henry… that should be a reference to "Henry VIII clauses".
Wendy,
I noticed that when reading the article as well, but to be fair the distinction didn't strike me immediately either. You're right that we should know the difference, but they don't even teach those types of things in law schools these days (or at least the few friends I asked).
Martin's points generally are worth considering though, especially if a pre-Charter war measures legislation can be invoked for largely peaceful protests. If regulations in other jurisdictions aren't published or considered worthy of scrutiny, it only increases the objections to the manner in which the Act was applied.
I'm hoping we do see some public discussion on the subject, and that we're brave enough to ignore accusations that anarchists will use an inquiry as a platform for their ideas. Even if they do, it's the best way to encourage their participation in the system, thereby acting in a very non-anarchist manner. The reality is that many ordinary Canadians that were clearly not anarchists were also caught up by these broad measures, something we should all be concerned about.
I think it would be naive to think that Ombudsman Marin will be focusing on the finer points of executive law-making. Few headlines will be generated by speculations on the limits of constitutional propriety.
Is it too much to hope that the Standing Committee on Regulations and Private Bills under Mr Prue might look at this:
[The] Standing Committee on Regulations and Private Bills [is] to be the Committee to which all private bills, other than Estate bills or bills providing for the consolidation of a floating debt or renewal of debentures, other than local improvement debentures, of a municipal corporation, shall be referred after first reading; and, to be the Committee provided for by section 33 of Part III (Regulations) of the Legislation Act, 2006, and having the terms of reference as set out in that section, namely: to be the Committee to which all regulations stand permanently referred; and to examine the regulations with particular reference to the scope and method of the exercise of delegated legislative power without reference to the merits of the policy or objectives to be effected by the regulations or enabling statutes, but in so doing regard shall be had to the following guidelines:
(i) Regulations should not contain provisions initiating new policy, but should be confined to details to give effect to the policy established by the statute;
(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties;
(iii) Regulations should be expressed in precise and unambiguous language;
(iv) Regulations should not have retrospective effect unless clearly authorized by statute;
(v) Regulations should not exclude the jurisdiction of the courts;
(vi) Regulations should not impose a fine, imprisonment or other penalty;
(vii) Regulations should not shift the onus of proof of innocence to a person accused of an offence;
(viii) Regulations should not impose anything in the way of a tax (as distinct from fixing the amount of a licence fee, or the like); and
(ix) General powers should not be used to establish a judicial tribunal or an administrative tribunal,
and the Committee shall from time to time report to the House its observations, opinions and recommendations as required by section 33 of Part III (Regulations) of the Legislation Act, 2006, but before drawing the attention of the House to a regulation or other statutory instrument, the Committee shall afford the ministry or agency concerned an opportunity to furnish orally or in writing to the Committee such explanation as the ministry or agency thinks fit.
*Sigh*.
I realize that paragraph 9 of my article was somewhat redundantly worded, but I was trying to write for a very broad audience, presumably unfamiliar with, and likely uninterested in, the distinction between statute and regulation. The focus of the paragraph was on the power to designate virtually anywhere as a public work, and the part about holding a vote was an aside and my attempt to explain regulatory power without resorting to the kind of legalese I complained about in the preceding paragraph.
I wanted to avoid sounding like this:
"If the aforementioned were not sufficiently egregious examples of the kinds of locations covered by this overly-broad legislation, pursuant to subsection (c) of the definition of "public work" in section 1 of the Public Works Protection Act, R.S.O. 1990, CHAPTER P.55 (hereinafter “PWPA”), a public work includes "any other building, place or work designated a public work by the Lieutenant Governor in Council." In other words, the Cabinet, subject only to the approval of the Lieutenant Governor, and not the Legislature as a whole, could therefore designate anywhere, even privately owned property, as a "public work" under the PWPA. The only locations exempt from possible designation as a "public work", would be those clearly under federal jurisdiction, pursuant to s. 91 of the Constitution Act, 1867,(U.K.), 30 & 31 Victoria, c. 3, such as penitentiaries, banks, beacons, buoys, lighthouses, and 'such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.'"
Anna:
I'm glad you found this conversation and have explained it for us. I am concerned about what happened with the legislation myself, and agree with much of what you say in the article.
The general public (or the average news reporter for that matter) doesn't understand how legislation works. You had a fantastic opportunity to help rectify that. In plain English. Unfortunately this column misses the mark somewhat–resulting in people such as this commenter reading too much into it.
I look forward to your future op ed pieces and hope you will make good on future similar opportunities.