Standing Joint Committee for the Scrutiny of Regulations

In 1971, pursuant to the Statutory Instruments Act, the House and the Senate established the Standing Joint Committee for the Scrutiny of Regulations.14 During the First Session of the Thirtieth Parliament (September 1974 to October 1976), it began to scrutinize statutory instruments in earnest.15


The Committee’s mandate is defined by the Statutory Instruments Act, the Legislation Revision and Consolidation Act and the Standing Orders of the House of Commons. Pursuant to the Statutory Instruments Act, the Committee has the authority to scrutinize any statutory instrument made on or after January 1, 1972.16 A statutory instrument is “any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established … in the execution of a power conferred by or under an Act of Parliament”.17 The Statutory Instruments Act further requires that regulations (with certain exceptions) be published in the Canada Gazette and referred to the parliamentary committee charged with the scrutiny of delegated legislation.18

The Legislation Revision and Consolidation Act authorizes the Committee to scrutinize any regulation found in the 1978 Consolidated Regulations of Canada or other consolidated regulations prepared pursuant to that Act, even if that regulation was made prior to the coming into force of the Statutory Instruments Act in 1972.19 The Standing Orders expand on the mandates found in these two Acts by authorizing the Committee to examine any other matter referred to it by both Houses.20

Since 1979 the House and the Senate have routinely renewed at the beginning of each session a permanent reference21 authorizing the Committee to:

study the means by which Parliament can better oversee the government regulatory process and in particular to enquire into and report upon:

  1. the appropriate principles and practices to be observed
    1. in the drafting of powers enabling delegates of Parliament to make subordinate laws;
    2. in the enactment of statutory instruments;
    3. in the use of executive regulation—including delegated powers and subordinate laws;
      and the manner in which parliamentary control should be effected in respect of the same;
  2. the role, functions and powers of the Standing Joint Committee for the Scrutiny of Regulations.22


The Standing Joint Committee for the Scrutiny of Regulations is composed of Senators and Members of the House.23 There are Joint Chairs of the committee. Traditionally, one Joint Chair has been from the Senate, representing the government party,24 and the other Joint Chair has been from the House, representing the Official Opposition.25 This long-standing practice was codified in November 200226 and amended in October 2004.27 The Standing Orders now provide that the Joint Chair acting on behalf of the House shall be a Member of the Official Opposition; the first Vice-Chair shall be a Member from the government benches, and the second Vice-Chair shall be a Member of an opposition party other than the Official Opposition.28


The Committee enjoys the same powers as other standing committees. It may sit while the House is sitting29 and when the House stands adjourned; print papers and evidence; send for persons, papers and records; and delegate to a subcommittee all or any of its powers (except the power to report directly to the House). It may also present reports to the House and request government responses to them.30 In addition, the Committee has the “power to engage the services of such expert staff, and such stenographic and clerical staff as may be required”.31 Finally, the Committee has the power to initiate the revocation of a regulation.32 This power is discussed in greater detail in the section “Review Criteria”, below.

Review Criteria

The Committee reviews only matters of legality and the procedural aspects of regulations—their merits and the policies they reflect are disregarded.33

The Committee reviews all statutory instruments referred to it on the basis of 13 criteria which it provides to both Houses at the beginning of each session in its first report.34 The criteria found in the report are as follows:35

Whether any regulation or statutory instrument within its terms of reference, in the judgement of the Committee,

  1. is not authorized by the terms of the enabling legislation or has not complied with any condition set forth in the legislation;36
  2. is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights;37
  3. purports to have retroactive effect without express authority having been provided for in the enabling legislation;38
  4. imposes a charge on the public revenues or requires payment to be made to the Crown or to any other authority, or prescribes the amount of any such charge or payment, without express authority having been provided for in the enabling legislation;39
  5. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;40
  6. tends directly or indirectly to exclude the jurisdiction of the courts without express authority having been provided for in the enabling legislation;
  7. has not complied with the Statutory Instruments Act with respect to transmission, registration or publication;
  8. appears for any reason to infringe the rule of law;41
  9. trespasses unduly on rights and liberties;42
  10. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;43
  11. makes some unusual or unexpected use of the powers conferred by the enabling legislation;44
  12. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment;45 or
  13. is defective in its drafting or for any other reason requires elucidation as to its form or purport.46

The Committee’s scrutiny criteria are very similar to those used by the Clerk of the Privy Council to verify proposed regulations,47 and those recommended by the Special Committee on Statutory Instruments in 1969.48