Intervenor: Vol 23. No 3 July - September 1998

Democracy Is Just "a whole bunch of red tape"

In September 1998, Paul Muldoon and I attended before the Standing Committee on the Administration of Justice of the Ontario Legislature. We were there to speak about a little noticed bill, buried inside another bill-Bill 25, the Red Tape Reduction Act, 1998. This Act has received relatively little attention, but is another omnibus bill dealing with an incredible variety of subjects from insurance and consumer legislation, to a long list of statutes proposed by the Ministry of Natural Resources. Hidden in the stack of schedules with proposed and new legislation, is Schedule C, the Statute and Regulation Revision Act, 1998. Almost no one has noticed this Act. It is an astounding piece of work.

Schedule C would, if enacted, institute a process of amending statutes that would by-pass the Legislature altogether by simply allowing the Chief Legislative Counsel (a bureaucrat) to draft amendments for approval by Cabinet. Incredible as it may sound, the Statute and Regulation Act would give the power to an unelected official to "clarify the intent of the legislature" (or amend it, or mis-interpret it).

The Act does not provide for these amendments to be passed, or reviewed or even considered by the Legislature. The process proposed in Schedule C would apply to any statute in Ontario-education, environment, health, human rights-anything could be amended by unelected officials and approved by Cabinet.

Our quarrel is not with reducing red tape. It is with reducing the democratic process. When we argued, before the Standing Committee, that there was danger here and proposed solutions that would properly involve our elected legislators, Gary Stewart, one of the government members of the Committee, said "Your comments sound like a whole bunch of red tape to me". What follows are excerpts from the Hansard record of our meeting with the Committee.

MR. PAUL MULDOON: If I just read you the pertinent section of clause 2(1)(c) of schedule C, it states that "the chief legislative counsel may make changes that are necessary to clarify what is considered to be, in the case of a statute, the intention of the Legislature."

In our view, this is a broad, unwieldy power, whereby an unelected official gets to change the intent of a statute by way of clarification. In our view, there is no analogous power, federally or provincially, for this type of power, and although it may be used for expediency in routine matters, there are constitutionally valid ways to do this and achieve the objective efficiently. Since, in our view, the act is worded inappropriately, it could lead to serious problems of constitutionality.

MS THERESA MCCLENAGHAN: Nowhere in this process is there provision for introduction of the revisions contemplated to the Legislative Assembly. Nowhere is it contemplated that there's an opportunity for debate, for any sort of parliamentary democracy to be at play.

Now, if the revisions were only clerical, only typographical, why would that be of concern? That would obviously be of less concern if they were only clerical or typographical. But when you read the whole list of what can be done in (a) through (j), you can conceive of situations where reordering, renumbering, clarifying intent, using different language, repealing, revoking statutes, all those things that are mentioned, may have substantive import, intended or not. In our view, that's contrary to the requirements as to how legislative revision is to be carried out under the constitution and under the rule of law in Ontario.

The fundamental concern here is not with perhaps the underlying objective which we're reading into this statute-the need for expeditious amendment and correction of errors that might have slipped through the process-but rather to ensure that it's constitutional and carried out by the legislative branch.

THE CHAIR: Thank you very much for your presentation. That's approximately two minutes per caucus, and we begin with the third party, Mr. Martin.

MR. MARTIN(NDP): I have no questions. Thank you for coming.

THE CHAIR: We'll move to the government members. Mr. Stewart?

MR. GARY STEWART (PC, PETERBOROUGH): Yes, I'd just make one comment. Your comments sound like a whole bunch of red tape to me, and I don't mean that disrespectfully, in any stretch. What we're trying to do is cut down on red tape, and what you are telling me-if I gleaned a little bit of it, and you had me pretty confused. That's one of the reasons why we're pushing to make some changes and get rid of all the red tape.

MS MCCLENAGHAN: The fundamental point here is that legislative process itself is not red tape and there are ways to expedite those revisions, as described in a couple of the other examples, without being unconstitutional. But you can't actually give away your right to make laws, and that's what's happening here.

THE CHAIR: We move to the official opposition, Mr. Crozier.

MR. CROZIER(LIB): I think you've made some excellent points. I'm not a lawyer, therefore it scares me a bit, what you've said, for the Legislature to give away its democratic right. ... I agree with your point and explanation just a moment ago that the Legislature itself is not red tape. ... I'm certainly going to want to get your comments from Hansard. You may hear them repeated in the Legislature in third reading debate on this bill.
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Theresa McClenaghan is a lawyer at CELA