POWER GRAB: Fundamental principles of democracy being violated
by Garry Breitkreuz, MP (Yorkton-Melville) April 25, 1997


"This Liberal administration has taken to passing more and more laws
that govern by delegating everything to the regulations.  Parliament is
moving closer to irrelevancy one bill at a time."  With this one
statement, Karen Selick, a lawyer in Belleville, Ontario, confirmed a
nagging suspicion of mine.  That was last December.  I immediately
started investigating further.  Newspaper headlines told the alarming
truth and the articles themselves explained how Parliament is being
bypassed.

.       Hill Times (May 18, 1995) "Shaking the foundations of
	Parliamentary democracy"

.       Ottawa Citizen (March 3, 1997) "The ultimate emasculation of
	parliamentary power."

.       Ottawa Citizen (April 6, 1997) "Amassing power, one rule at a
	time - Jungle of regulations gives cabinet vast powers over Canadians'
	lives."

.       Western Report (March 3, 1997) "The malignant dictatorship -
	Freedom and justice are threatened by an increasingly despotic Liberal
	attitude and an aggressive bureaucracy"

.       Canadian Lawyer (February 1997) "Flavour of the Month:
	Easy-bake regulations"

I first became aware of the "power-grab" problem during my review of
Bill C-68, the Firearms Act.  Passage of this bill effectively gave the
Justice Minister authority, through the Governor in Council, to ban any
firearm which, in his opinion, is not reasonable for hunting and
sporting purposes.  Even the Liberal-dominated Standing Committee on
Justice opposed giving so much power to one minister.  Allan Rock's new
power is so absolute that it is immune to parliamentary and judicial
review.  Not even the Supreme Court of Canada can overturn someone's
opinion, no matter how ridiculous it may be.

The Justice Minister didn't take long to test his new power-tool.   He
banned 58% of the one million legally-owned handguns and thousands of
semi-automatic hunting rifles - not because he had evidence to show how
unsafe they are, but just because he personally considers them
dangerous.  On March 10, 1997, Allan Rock showed his disdain for
property rights, and confirmed his personal opinions are paramount
when, in a letter to a firearm owner, he wrote, "Where a firearm is
prohibited because it is deemed an unacceptable risk to public safety,
it is not in the public interest to compensate those who may have owned
the firearm when the decision was implemented."

Allan Rock and his elite cadre of bureaucrats did not limit themselves
to the power to ban firearms and confiscate them without compensation.
Bill C-68 allows the Minister of Justice to make firearm regulations
without Parliamentary review if the regulations in his opinion (there's
that term again) are "immaterial", "insubstantial," or "urgent."  What
if the Justice Minister's opinion about what  is "immaterial",
"insubstantial" or "urgent" differs from that of Parliament or the
people?  Too late - Bill C-68 is now the law of the land.

I was so concerned about what the government was doing, I asked the Law
and Government Division of the Library of Parliament Research Branch to
see if there was a dangerous pattern developing.  They confirmed my
worst fears.

With only enough time to examine just six bills the lawyers were able
to identify and provide a number of examples of the methods the
government is using to bypass Parliament and the people including:

.	restrictions to the scrutiny of regulations by Parliament

.       increasing authority and discretion being delegated to
	ministers and bureaucrats

.       allowing ministers unlimited authority to establish guidelines
	and set fees

.	the sheer number and complexity of the regulations

.       use of "skeleton" or framework Acts to pass as yet unknown
	regulations

.	public not properly informed of the regulations being passed

.	combined effects of all these measures and "regulatory creep"

Here are some revealing excerpts from this ground-breaking research:

C-25, the Regulations Act:  "Under the proposed section 5(1), the
Governor in Council [basically the Minister in charge with support of
Cabinet] could, by regulation, exempt regulations from the regulatory
process.  While the Governor in Council is directed to exercise the
powers under this section in accord with the principles of legality,
accessibility and government accountability, there is no review
mechanism to ensure that this has occurred.  Secondly, the definition
about what is automatically referred to the Joint Committee for the
Scrutiny of Regulations has been narrowed."

C-22, the Pearson International Agreements Act:  "The Canadian Bar
Association, in a brief submitted to the Standing Senate Committee on
Legal and Constitutional Affairs, opined that there were two specific
grounds on which Bill C-22 infringed on the rule of law: by denying
access to the courts and by conferring on the Minister a subjective
discretion to compensate [or not] for expropriation."

C-41, the Divorce Act: "Thus Bill C-41, amending the Divorce Act,
provides that the Governor in Council may establish guidelines
respecting the making of orders for child support, including, for
example `the determination of income for the purposes of application of
the guidelines'.  Bill C-41 seems to be a clear instance of a
regulatory provision replacing a legislative test.  Another example of
a relatively new mechanism delegating authority that can significantly
impact the public is a Ministerial power to set fees for the recovery
of costs."

C-68, the Firearms Act:  "Section 117, which describes the
regulation-making power, extends for over four pages.  While the
individual regulatory powers may not be excessive [even though many
agree they are], the sheer volume of regulatory authority can make it
extremely difficult for Parliamentary bodies to envisage the final
scope of the Act, or for members of the public to understand how the
legislation may impact on them.  Aside from the formal
regulation-making powers, a number of sections confer discretionary
authority on the Chief Firearms Officer.  The combined effect of these
sections is to invest the Chief Firearms Officer with an extremely
large, if not unprecedented, degree of discretion."

Bill C-71, the Tobacco Act:  "The regulation-making power delegated by
the Act is sweeping. [Professor Ruth Sullivan, Law Faculty of the
University of Ottawa stated] `Under the rule of law, we like everyone
to be governed by the same rule.  Under this legislation it is open to
the Governor in Council to exempt particular persons on a fairly ad hoc
basis.  This, on the face of it, violates the rule of law, but it is
open to Parliament itself to violate common-law rule-of-law
principles.  We may consider it anti-democratic is some fashion, but it
is not illegal.'   Mr. Eglington [Ottawa constitutional lawyer Graham
Eglington], speaking of Bill C-71[in The Ottawa Citizen - April 6,
1997], argued that `the higher the order of rights involved, the more
definitely it should be done by statute and not by regulation.'
Because the tobacco regulations will affect a fundamental right,
freedom of speech, Mr. Eglington felt that they should be the subject
of `heated debate, not quiet regulation.'  He stated, `The whole
idea that regulation should be used to trespass on the rights and
liberties of the Queen's subjects is abhorrent.'"

Bill C-76, the Drinking Water Safety Act:  "Bill C-76 appears to
combine the most expansive provisions of both Bill C-68 [the Firearms
Act] and Bill C-71 [the Tobacco Act].  As with Bill C-71, an inspector
can enter any place, except a dwelling place, without a belief that
contravention has occurred and then seize anything related to a
contravention of the Act.  However, an inspector may also enter a
dwelling house without a warrant `if the conditions for obtaining a
warrant... exist but by reason of exigent circumstances it would not be
feasible to obtain a warrant. [Proposed sections 13 and 26] would seem
to imply that the level of enforcement is entirely at Ministerial
discretion, since the Minister can apparently designate any number of
inspectors and have their actions funded by the cost recovery
provisions.  The discretion to remit fees might well imply a discretion
to set fees at a higher level than the specific inspection or service
costs.  Bill C-76 illustrates the dangers of an unfettered
discretionary authority to make rules.  It is particularly unusual in
that the broad discretion is not justified by a national health
hazard."

Are you concerned?  I know I am!  Opposition parties have no power to
stop a majority government from passing bills using these undemocratic
power-grab mechanisms.  The only solution is to elect politicians who,
regardless of the party they represent, will refuse to delegate their
parliamentary authority to ministers and bureaucrats over whom they
have no control.  Governments don't always do what is right or even
good.  It's up to the people to keep their politicians under control.

If you would like a copy of the research paper or have any comments or
suggestions, please call, write, fax or e-mail me.:

Garry Breitkreuz, MP (Yorkton-Melville)
House of Commons,
Ottawa, Ontario K1A 0A6 

Phone: (613) 992-4394  Fax: (613) 992-8676  E-Mail: breitkreuzg@reform.ca