Government Reorganization and the Transfer of
Powers: Does Certainty Matter?
BY ALISSA MALKIN
This article explains the process currently used
by the federal executive to reorganize itself,
then questions whether the resulting transfer of
responsibility between ministers o the Crown
for the exercise of statutory powers is sufficiently transparent. It explains that the method
used to reorganize the federal public administration often results in a transfer of legal
authority for the exercise of statutory powers
from one minister to another. However, this
occurs in a manner that may be very difficult to
trace. Following a reorganization of government, it may be difficult to ascertain which
minister of the Crown has legal authority and
responsibility for the exercise of powers that
may have important effect on individual rights
or interests. It argues that this offends the principles of the rule of raw and responsible government, and concludes by suggesting some
avenues of possible reform.
Cet article d~crit la procdure qu'utilise
actuellement l'ex~cutif fd~ral pour restructurer son administration et cherche Adeterminer si
le transfert de responsabilit~s qui s'ensuit entre
les ministres dans l'exercice des pouvoirs conf~r~s par la loi est suffisamment transparent.
L'auteur explique que cette m~thode de
restructuration de la fonction publique f~dtrale
entrane souvent un transfert d'un ministre A
l'autre, et pas toujours tangible, de l'autorisation lgale d'exercer des pouvoirs conf~r~s par
la loi. Apr~s une r~organisation administrative,
il peut tre difficile de dire avec certitude quel
ministre f~dral est l6galement autoris6 et responsable d'exercer des pouvoirs qui peuvent
avoir des repercussions importantes sur les
droits ou les intr~ts individuels. L'auteur soutient que cela entre en conflit avec les principes
de la primaut6 du droit et du gouvernement
responsable, puis sugg~re en conclusion
quelques avenues de r~forme possibles.
Alissa Malkin is counsel at the Constitutional and Administrative Law Section, Department of Justice.
I would like to thank Henry Molot, Martin Freeman, Ann Chaplin, and Nancy Othmer for their very helpful
comments on a previous draft of this article. The views expressed herein are those of the author and do not
necessarily represent those of the Department of Justice or the Government of Canada.
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Table of Contents
539
1.
INTRODUCTION
541
I1.
FORMING NEW GOVERNMENT BODIES BY ORDER IN COUNCIL
541
A.
Designation of a "Department"
541
B.
Transfers of "Control or Supervision"
545
C.
Integration Into the Rules Governing the Federal Public Administration
545
D.
Example: Canada Border Services Agency
546
E.
Government Reorganization
547
ill.
REORGANIZATION AND THE TRANSFER OF POWERS
547
A.
The CartcnaPrinciple
548
B.
What Happens to Statutory Powers When Government is Reorganized?
549
C.
Section 3 of the FSRTDA Transfer of Powers by Operation of Law
552
D.
Caselaw on Section 3 of the PSRTDA
556
IV.
TRANSPARENCY
556
A.
Tracing the Transfer of Powers
557
B.
Example: Prnxd f Gime
r (Money aunda g) and TarorFinandngAct
C.
Varying Degrees of Certainty
561
563
V.
DOES LEGAL CERTAINTY MATTER?
564
A.
Certainty in the Conferral of Ministerial Powers
564
B.
The Rule of Law
565
C.
Responsible Government
568
D.
Does Certainty Matter?
569
E.
Possible Reform
569
VI.
CONCLUSION
539
Government Reorganization and the Transfer of
Powers: Does Certainty Matter?
BY ALISSA MALKIN
I. INTRODUCTION
Federal government reorganizations are not an infrequent occurrence, and the last
few years have witnessed a number of them. Parts of one department are merged
with parts of other departments to form a new department or agency, or responsibilities for programs are moved from one minister to another. Reorganization can be
on a small scale, involving only a couple of portions of government, or it can be very
extensive, such as the large-scale reorganization of December 12, 2003.
Despite the fact that, historically, the Crown possesses a Royal Prerogative
power to organize (and hence re-organize) government, the organization of government in Canada has generally had a statutory framework. ' Since Confederation, federal government bodies have most often been created by Parliament. Traditionally,
changes to these administrative structures have been made by statute also.2
Nevertheless, at times there is a perceived need to make changes more quickly than
the legislative process would permit. In recent years, much use has been made of a
technique, at least in the short-term, of forming new government bodies out of previously existing units of government. Using powers granted under statutes such as the
finandal Adrninistratio Act' and the Public Sevice Rean-angm-it and Transer of Duties
Act 4 , the federal Executive can carve pieces or sections out of existing departments,
move them around and recombine them into functioning new government bodies. In
this manner, new organizations can be formed and reorganization of government
accomplished on any scale.
I.
2.
3.
4.
Royal Prerogatives are the powers and privileges accorded by the common law to the Crown. Any Royal
Prerogative power that existed historically continues to be available to the Crown to the extent that it has
not been abolished or limited by statutory enactment. For a discussion of Royal Prerogative power, see Rcm
Rivtr Dew Coundl Band v. Canada, 2002 SCC 54, [200212 S.C.R. 816, 213 D.L.R. (4th) 193. Among the
traditional Royal Prerogative powers belonging to the Crown is the power to create new offices, and to
organize the administration as the Crown sees fit: see Alpheus Todd, Ch PaiiantaryCbvmownt in England:
Its igin, Devl qtmentandPracical ICprtin (London: Longmans, Green, and Co., 1867) at 375; Halshnry's
Lass oEngland,4th ed., vol. 8(2) (London: Butterworths, 1996) at 235, para. 360. Exceptionally, Royal
Prerogative power has been used in Canada to create federal government bodies: See e.g. P.C. 1978-3044,
establishing the Indian Commission of Ontario.
See e.g. Gorunnnrgt ganizationAct, 1969, S.C. 1969, c. 28.
R.S.C. 1985, c. F-Il I[FAA].
R.S.C. 1985, c. P-34 asam. by PublicSesicrAo4ynization Act, S.C. 2003, c. 22, s. 207 ISR7DAI.
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When this method is used, the legislative trail becomes a collection of Orders
in Council-sometimes overwhelming in number-published in the Canada Gazette,
Part II. Piecing together the numerous orders involved in a reorganization, such as
that of December 12, 2003, in order to understand what was accomplished might
seem a bewildering task-particularly as the technique employed and the import of
each step is nowhere set out systematically or explained in a publicly available document.5 The discussion that follows, setting these steps out in some detail, is in part an
attempt to redress this gap.
Like the organization of government, the powers and duties exercised by government officials also have primarily a statutory basis. Government action, insofar as
it affects rights and interests of third parties, must have a basis in law. While government has a limited ability to act under the Royal Prerogative, for the most part the
powers exercised by government officials are conferred by or under statute. As such,
they can be exercised only in accordance with, or as contemplated by statute. Courts,
in their role as guardians of the rule of law, will ensure that government acts in accordance with statute, which may include verifying that someone purporting to exercise
a statutory power actually has the authority to do so. Federal statutes are clear as to
the individual or office on whom statutory powers are conferred, and this provides a
starting point for tracing the chain of authority from Parliament's initial delegate to
the official who exercises the power in any given case.
As this article will show, when government is reorganized by the Executive
using Orders in Council transferring and combining existing units of government,
the legal authority and responsibility for the exercise of certain statutory powers will
move also, by operation of law, between ministers or other officials. This movement
of powers occurs in a manner that may be difficult for anyone but a court to trace.
Following a reorganization of government, it might therefore be difficult for people
to ascertain which minister has the legal authority and responsibility for any given
statutory power. Does this matter? Is this discordant with other important aspects of
our legal structure?
This article has two purposes. The first is to set out and explain the process
used to reorganize the federal government and form new departments out of previously existing components. The second is to discuss the implications of this method
in terms of the statutory powers exercised by officials in the reorganized branches of
government, and to raise some questions about this in the context of our broader
legal structure.
5.
See generally Gordon F. Osbaldeston, Oganizing toon
(Whitby: McGraw-Hill Ryerson, 1992); Craig
Forcese & Aaron Freeman, The Lms dcoftnnmt: The Legal Foundations o Cana dian DLnam"alc (Toronto:
Irwin Law, 2005) at 357-59.
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
II.
FORMING NEW GOVERNMENT BODIES BY ORDER IN COUNCIL
As noted, most government bodies are created by statute. However, within departments and other statutorily created bodies exist a myriad of branches, divisions, sections, and the like that are not established in a formal, legal manner, but rather are
formed administratively according to operational needs. Using powers granted under
statutes such as the FAA and the FSRTDA, these smaller units can be carved out of
departments, moved around and even re-combined into new government bodies. In
a sequence of moves, each authorized by statute and effected by Order in Council,
6
even large-scale reorganizations can be carried out in a series of small steps.
There are three main types of steps employed.
A. Designation of a "Department"
Conceptually, the first step taken by the Executive in forming a new government
body out of pre-existing units of government is to select a single branch or division
of an existing department and designate it as a "department" for the purposes of the
FAA. This is done by Order in Council under section 3 of the FAA, which authorizes
the Governor in Council to add to Schedule I. 1 the name of any division or branch
of the federal public administration, with a reference to its "appropriate minister."7
Adding a branch of an existing department to the Schedule has the effect of severing
it from its parent department. It is then a department in its own right for the purposes of the FAA. This gives it a recognizable status within the statutory framework
governing the organization of the federal public administration and makes it subject
to the federal financial administration regime.
The minister responsible for the new "department" is the minister who
presided over the parent department from which it was removed, and this will be
indicated in Column II of the Schedule. However, often the decision is to have a different minister assume control of, and responsibility for, the new entity being
formed. This change is then effected under the PSRTDA
B. Transfers of "Control or Supervision"
The PSRTDA is an extremely short and somewhat obscure statute, enacted in 1918.
Once employed to make narrow, focussed adjustments to existing departments and
the mandates of ministers, it has been used increasingly in recent years to effect
numerous and at times sweeping changes in the structure of government. Section
6.
While I speak in terms of steps, the sequencing is conceptual only: the Orders in Council normally come
into force all at the same time, and may be published in a different order than that described here.
7.
FAA, ssqoa note 3, s. 3.
541
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2(a) authorizes the Governor in Council to transfer any powers, duties or functions,
or the control or supervision of any portion of the federal public administration,
between ministers or between portions of government.8 Section 2(b) authorizes the
Governor in Council to amalgamate and combine any two or more departments."
Amalgamations of departments have been carried out only rarely.' 0 Transfers
of powers and duties between ministers or portions of government have been far
more frequent. " However, particularly in recent years, most changes in the structure
of government and mandates of ministers have been effected by means of transfers of
"control or supervision" or in French, "responsabilit6 A l'gard d'un secteur de l'ad12
ministration publique f~drale."
The debates surrounding passage of the FSRTDA were not extensive. 3 However,
a statement made by Sir Robert Borden on its introduction in Parliament clarifies what
is meant by a transfer of "control and supervision": "[tihis Bill authorizes the Governor
in Council to change any department or any branch of a department from the direction
8.
)SR7DA Afra note 4, s. 2(a) (which states "[tlhe Governor in Council may... transfer any powers, duties or
functions or the control or supervision of any portion of the federal public administration from one minister to
another, or from one department in, or portion of, the federal public administration to another... .").Two
different types of transfers are therefore possible: a transfer of powers, duties or functions, or a transfer of control or supervision of a portion of government. In either case, the transfer can be made in two ways: from one
minister to another, or from one department or portion of the federal public administration to another. Due to
the wording of the provision, a transfer cannot be effected between these categories: thus for example, powers
cannot be transferred from a minister to a government body or agency.
9.
Ilbid., s. 2(b) (which states "[tlhe Governor in Council may... amalgamate and combine any two or more
departments under one minister and under one deputy minister."). The final words of the provision seem to
imply that it is only traditional ministerial or "line" departments-that is, those reporting to a minister
through a deputy minister-that can be amalgamated and combined under this paragraph.
10.
In 1993, the PublicWorks and Government Services department was created through the amalgamation of a
number of existing units, including the Department of Supply and Services and the Department of Public
Works: see Oder Transfrringto the Deparmmt oSupply and Services the CGrialand Suprviscnf the Go-nnant
Tdcnica
tions Agen and the TranslationBureau and Transeringto the Mniste" oSupply and Scrvices the
Pov~s, Duties and Functionsof the Mnister of Public Wrks and Amlgaratingand C(rb'ning the Departmentof
Supply and Services and the Departentor Public W4Ars Under the Moniser of Supp.y and Services, SI. / 1993-138,
C. Gaz. 1993.11.3230. Subsequently, legislation in the form of DcpartnmntohPblicWrksandGa
urnmnt
Services Act, S.C. 1996, c. 16 was enacted establishing the Department of Public Works and Government
Services. More recently, following the division of the Department of Foreign Affairs and International Trade
into two separate departments by Order in Council, and the subsequent defeat in the House of Commons of
Bills C-3 I and C-32 of the 38th Parliament proposing to establish the Department ofTrade and the
Department of Foreign Affairs as separate statutory departments, the two departments were once again
amalgamated and combined: see Qtr Antlgarmting and Oxnlining the DeLart-mt oflntematimnal Tradeandthe
Departnt fFreign Affairs and IntanationalTrade Lnder the Mnister and the Otry
lfnista" fForeign Affairs,
S.I./2006-11, C. Gaz.2006.11.104.
II.
Most transfers of powers are made between ministers, because most statutory powers are conferred on ministers. A transfer of powers directly from one portion of the federal public administration to another can be
made only when a government body or agency actually holds and exercises powers in its own right, and
when the recipient portion is similarly capable of holding and exercising such powers.
12.
PSRTDA, supra note 4, s. (a) (which states "[Ile gouverneur en conseil peut proc~der: a) s tout transfert
d'attributions, ou de responsabilit6 i 1'6gard d'un secteur de ]'administration publique fEd ale, entre ministres ou entre minist~res ou secteurs de l'administration publique frd~rale." (emphasis added)).
13.
HabucfCtnaisDebates,No. 1 (20 March 1918) at 50; HouseofC
DsisDebates,
No. 1 (22 March 1918) at
83 and 88; Seaate Debates,(19 April 1918) at 73-74; SenateDebates, (I I April 1918) at 90-91.
2
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
of one minister to the direction of another."14 In response to a request to provide examples of situations in which the PSRTDA might apply, the bill's sponsors explained that
patents, copyrights and trademarks had for many years been handled within the
Department of Agriculture, and the government was considering the advisability of
transferring "the Copyright Branch" out of that department, to another."
Resj'nsibility in the GCistitution, the Privy Council Office submission to the
Lambert Commission, similarly speaks of "control and supervision," at least in the
context of ministerial departments, as synonymous with "management and direction," explaining that departmental statutes "set out the powers, duties, and functions
for which the minister will be held responsible, and give him or her the management
and direction (control and supervision) of the financial and public services resources
6
deployed in the department."
From these statements, one might understand a minister's "control and supervision over" / "responsabilit6 A l'gard de . . ." a portion of the federal public administration, as the ability to direct the resources deployed in that portion in the
fulfilment of a certain mandate, and the consequent responsibility to Parliament for
the way in which this is done. It is this relationship between a portion of government
and a minister-including an ability to direct and the corresponding responsibility to
Parliament for its activities-that is transferred from one minister to another with a
transfer of control or supervision under section 2(a) of the PSRTDA
The broad wording of section 2(a) allows for a transfer of control or supervision over any identifiable portion of the federal public administration•'7 As explained
by Henry Molot, this phrase:
. . . probably encompasses any organizational unit of government that can be identified as
such whether formally established by law on the basis of statute, regulation or order in
council or set up informally as an administrative construct that is identifiable as a discrete
organization by reference, for example, to a departmental organization chart or to the
Government Telephone Directory. 18
When the "control and supervision" of a branch of a department is transferred
to another department, the transferred unit becomes housed within the recipient
department and integrated into its structure of controls and responsibility.
14.
15.
16.
17.
18.
House fC msens
ute, No. 1 (20 March 1918) at 50.
House fdCbrn,1nsDedte, No. 1 (22 March 1918) at 83; SonateDautes, (11 April 1918) at 90.
Canada, Privy Council Office, Rcbcisihlity in the Gmti tution, (Ottawa: Minister of Supply and Services
Canada, 1993) at 55 (Submission to the Royal Commission on Financial Management and Accountability).
Following the enactment of the PublicSnricoMjdernizaticnAct, S.C. 2003, c. 22, the phrase "federal public
administration" has replaced the phrase "public service."The term "federal public administration" is nowhere
defined, and is not intended as a substantive change from the former phrase "public service," which, in lower
case (as distinguished from the Public Service) has been considered broad enough to cover most Executive
government entities.
Henry Molot, "The Public Service Rearrangement and Transfer of Duties Act" (Paper prepared for the I Ith
Administrative Law Seminar of the Department of Justice of Canada, 21 April 1994) at 8.
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Somewhat counter-intuitively, a transfer of control and supervision over a
portion of the federal public administration does not, in itself, transfer the enployces
in that unit to the recipient department. Until 1995, the employees within the transferred unit had to be separately deployed, transferred or reappointed to the department to which supervision or control was transferred. This practice was made
unnecessary by an amendment to the PublicService Errploymmt Act.' 9
The authority to transfer "control or supervision" of portions of government
might be used in two different ways by the Executive in the process of forming a new
government body. First, it might be used to transfer responsibility for a newly designated FAA department to a particular minister. As explained above, when a branch or
other unit is carved out of its parent department and designated as a "department"
under the FAA, the minister presiding over the parent department remains responsible for the new entity. If the decision is to have a different minister assume control of
and responsibility for the new entity being formed, this change can be effected under
the PSR7DA Second, the PSR7DA might be used to add other portions of government
into the new department. The "kernel" of the new department is the single branch or
division split off from the parent department; however, divisions or branches of other
departments can then be added to it by transferring the control and supervision of
these selected portions to the newly designated "department."The result of the combination of these steps is that a new department will exist for the purposes of the
FAA, comprised entirely out of pre-existing branches of various departments. One
might think of this as a bit like building with Lego: new constructs are formed simply by moving existing pieces around.
19.
S.C. 2003 c. 22, s. 132(1) (which provides that where an Order in Council under the FSRlDA transfers
control and supervision of a portion of the federal public administration from one department to another,
employees holding a position in that portion are to continue to occupy the same position, now located in
the recipient department. Employees providing services in support of the t-ansferred portion, such as
those employed in corporate services, finance or human resources sections of adepartment, may be transferred also, by separate Order in Council, under s. 132(2).These provisions apply only with respect to
transfers from one department in the "core public administration" to another-that is, those listed in
Schedule IV of the FAA (and for whichTreasury Board is the employer.). Nevertheless, a regulation made
Erypiyrrmt At (formerly s. 36(l)(b)) can allow any provision of that Act
under s. 123 of the PlublicSonice
to apply to any organization within the federal public administration. Thus, where a transfer is made
between two departments-one or both of which are outside the "core public administration"--s. 132 can
Inscticn Agency), 2005 FCA
be made to apply: see PublicSarie Alliance oCanada v. Canada (CQnadanFoodh
SericeAlliancecited to N.R.1, where the Court
366, 120061 343 N.R. 334, 40 Admin. L.R. (4th) 95 Public
ci the qiratiors Branch cfthe Canadan
of Appeal noted that the effect of Qtckr Transfering Grtain Portions
Foodlnrtcion Agency to the Canada BrderSeni'esAgcnyS.l./2003-217, C. Gaz.2003.11. 3233 [Transierof
ptioas of(IA to CdSA) transferring portions of the Canada Food Inspection Agency (CFIA) to the CBSA,
and TrarL4"r PoMtions othe Cnadian FtR, InTetion Agaacy Ruations, P.C. 2003-2058, C.
Gaz.2003.11.3160, applying these "block transfer" provisions to the CFIA employees in those portions, was
to transfer each person in the unit referred to in the Order in Council, who then were deemed to occupy
their proper position in the new department.).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
C. Integration Into
Administration
the
Rules
Governing
the
Federal
Public
A fimal, necessary series of steps is to integrate a newly formed department into the rest
of the federal public administration. For example, it will be made subject to the regime
2
governing human resources management in the federal public administration. 0 It will
be added to the schedules of other framework statutes as well: for example, to the
schedules of the Aas to Infonrmtion Ace' and the Pivacy Act2--so that it is subject to
the rules governing retention, use and disclosure of federal government information.
All this is done, again, by Order in Council pursuant to statutory authority.
D. Example: Canada Border Services Agency
All of these steps can be illustrated with the Orders in Council forming the Canada
Border Services Agency (CBSA), as part of the December 2003 reorganization. First,
the "Intelligence and Enforcement Operations Branch" of the Department of
Citizenship and Immigration Canada (CIC) was selected and made a "department" for
the purposes of the FAA, by an Order in Council adding it to Schedule 1.1 of that Act
and renaming it the Canada Border Services Agency.' 3 The Minister of Citizenship
and Immigration was identified as "appropriate minister" in Column II of that
Schedule. However, by means of an Order in Council under the PSR7DA, control and
supervision over and responsibility for the new department was transferred from that
Minister to the Solicitor General of Canada, who was to be styled Deputy Prime
Minister and Minister of Public Safety and Emergency Preparedness.2 4 The Solicitor
General was made to "preside" over the new organization-wording which, echoing
the language used in departmental statutes, is intended to signify the relationship
between a minister and his or her ministerial department and allow for the application of section 24(2)(d) of the IntapretatianAct. 2- Divisions or branches of various
20.
21.
22.
23.
24.
25.
Following the entry into force of the PublicSt-vice Mainnizaticn Act, spra note 17, this involves an addition,
by Order in Council, to either Schedule IV orV of the FAA (depending on whether or not the Treasury
Board is to be the employer) and designation of a "department" and likely also designation of a "deputy head"
for purposes of the PublicSt-oe Enplovent Ac, sipra note 19.
R.S., 1985, c. A-.
R.S., 1985, c. P-21.
Oa- AmmncngScheduleJl to the lnancial A4inistatioiAct, P.C. 2003-2059, C. Gaz.2003.11.3161.
CWer Tran4ifingfirn the Mnistur o Gtizmtlsip and nigration to the Dtputy PnrMinisterandMinste or
PubcSafey and Enzgenty Pwraahssthe Cntid and SLmporii tf the Canada riSnricesAgncy,
S.I./2003-214, C. Gaz.2003.11.3230 [T nsierofCBSAfroi'n~istoalOCtoMrnistercfPSq.
A further order
in council under the FAA then amended Schedule 1.1 to reflect this change, by striking out the reference in
Column 11to the Minister of Citizenship and Immigration and substituting for it a reference to the Solicitor
General of Canada, to be styled Deputy Prime Minister and Minister of Public Safety and Emergency
Preparedness: see 0der Anmrhdng Schedule L1 to the Act, P.C. 2003-2062, C. Gaz.2003.11.3163.
TranwecofCBSAfromfbui!nisttrofaCtoMn ister-FPS ihid.; IntapretatioAct,R.S.C. 1985, c.1-21, s.
24(2)(d), as am. by AvsoellancousStatute IawAmn&rmt Act, 1991, S.C. 1992, c. 1, s.89(3) (allowing ministers'
powers to be exercised by officials in the department over which the minister presides).
545
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other departments were next added to the new department, again under the authority of the PSR7DA Thus, supervision or control over a number of additional portions
of the CIC,2" portions of the Canada Customs and Revenue Agency (CCRA), 27 and
of the Canadian Food Inspection Agency (CFIA) -8 was transferred from these departments and agencies to the new CBSA. Finally, another series of Orders in Council
integrated the new CBSA into the rules governing human resources management in
the federal public administration 29 and governing access to information and privacy."s
E. Government Reorganization
The statutory power to enact each of the Orders in Council described above is vested in the Governor in Council; however, the policy choices about government reorganization are, by longstanding political practice, the decision of the Prime Minister.
In matters of the machinery of government, the Governor in Council acts on the
Prime Minister's recommendation.
A large-scale reorganization of government might involve the formation of
several new departments in this manner, as well as the movement of various units and
branches between existing departments. These changes will be accomplished by
means of a large number of Orders in Council that come into force all at once.
Often, bodies that are required to be up and running quickly will be formed
by the Executive by this method in the short term; then, later, re-created by an Act
of Parliament. The changes in the organization of government made by Order in
Council are then reflected in the statute book. Thus, the Canada Border Services Agency
Act, establishing the CBSA as a statutory body, was enacted and brought into force
two years after the Orders in Council that initially formed that body as a functioning
entity.-' But this is not always the case. For example, the Canadian International
26.
27.
28.
29.
30.
31.
Cre Trarsa-rngCrtain Prr-nsbrim the Departmnt fdtizats.p and imigra tim to the Cada Bor.c-Srs
Ageny, S.1./2003-215, C. Gaz.2003.3231 [Transcfrcl'portionofUCCtoCSA.
Cider Tranring Cerain pRuions of the Canada Custora and Revenue Agecy to the Cnada Bindn' Servcrs Agny,
S.1./2003-216, C. Gaz.2003.3232 [TrandirndortionsdYCRAto CISA.
Tmnsfoft'portims or aA to CBSA, supra note 19.
Oda-AnndngSchdule Ito the PublicSa'iveStaff Relations Act, P.C. 2003-2060 C. Gaz.2003.11.3162, enacted
pursuant to s. 4 of the Public Senice Staff Relations Act (adding the CBSA to Schedule I); Odbf Designatingthe
Canada BditrS'vil
gncy as a Departmtand the Premident as Deputy Head, S.I. /2003-218, C. Gaz.
2003.11.3234 (designating the CBSA as a department for the purposes of the PublicS&miceEnploynnt Act and
designating the President as "deputy head" of CBSA). Now that the PublicSesice Ahlen'ization Act has come
into force, a different set of Orders in Council is required. See supra note 20.
P.C. 2003-2067, C. Gaz. 2003.11.3164 (amending the schedule to the ficy
At to add the new CBSA);
P.C. 2003-20068, C. Gaz.2003.11.3235 (amending the i'acy Act Heads of Gonsnmt Institution D2'gnaation
Cir to add the Solicitor General of Canada, to be styled Deputy Prime Minister and Minister of Public
Safety and Emergency Preparedness); P.C. 2003-2069, C. Gaz. 2003.11.3165 (amending Schedule I of the
Aoas to Inf-nmtian Act to add the CBSA); P.C. 2003-2070, C. Gaz. 2003.11.3236 (amending the Aams to
Inftrrntion Act Heads of QGounmt Institutions Dsignation Oii9r to add the Solicitor General of Canada, to be
styled Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness).
S.C. 2005, c. 38, (all provisions of which brought into force by December 12, 2005, S.I./2005-119).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
Development Agency was formed by a series of Orders in Council in the 1960s, and
32
remains so, having never been created by statute.
The rest of this article focuses on one of the steps described above: the transfer of control and supervision of a portion of one department to another. This is a key
step in government reorganization, as it is used not only as part of the process of
forming new government bodies in the manner described above, but also as a means
of effecting changes in the composition and mandates of existing departments. One
specific aspect of such transfers is examined here: what happens to the statutory powers ordinarily exercised by officials within the reorganized units?
III.
REORGANIZATION AND THE TRANSFER OF POWERS
In order to examine this, it is necessary first to step back and consider how statutory powers are exercised in departments.
A. The Cartona Principle
Departments have no legal personality and do not hold or exercise legal powers in
their own right." Federal statutes administered by government departments normally confer powers on the presiding minister. 4 As explained by Lord Greene in the
famous case of Cartona Ltd. v. Gnrissionmsof Wrks, this is appropriate, as it is ministers who are responsible to Parliament for the exercise of these powers. 5 In carrying out the multifarious functions conferred on them, ministers act through their
departmental officials:
In the administration of government in this country the functions which are given to
ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally
attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that
this regulation meant that, in each case, the minister in person should direct his mind to
the matter. The duties imposed upon ministers and the powers given to ministers are
normally exercised under the authority of the ministers by responsible officials of the
department. Public business could not be carried on if that were not the case.
Constitutionally, the decision of such an official is, of course, the decision of the minister.
32.
34.
See P.C. 1962-490 designating the External Aid Office for the purposes of the vzISericeAct; P.C.
1968-923 and 1968-1028 doing the same for purposes of the FAA, P.C. 1968-1760 changing the name of
that Office to the Canadian International Development Agency.
Ministerial or "line" departments, while created by statute, have no legal personality distinct from that of the
Crown. A department can incur no liability, the property administered by it does not belong to it, and it has
neither rights nor obligations. For discussion, see eg., Rene Dussault & Louis Borgeat, AMinistatmive Law A
Tretse, 2d ed., vol. I, trans. by Murray Rankin (Toronto: Carswell, 1985) at 85.
Sometimes, powers are also conferred directly on specified officials within the department.
35.
119431 2 All E.R. 560 (C.A.).
33.
547
548
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The minister is responsible. It is he who must answer before Parliament for anything that
his officials have done under his authority, and, if for an important matter he selected an
official of such junior standing that he could not be expected competently to perform the
work, the minister would have to answer for that in Parliament. The whole system of
departmental organisation and administration is based on the view that ministers, being
responsible to Parliament, will see that important duties are committed to experienced
officials. If they do not do that, Parliament is the place where complaint must be made
36
against them.
This doctrine was subsequently accepted and applied by the Supreme Court of
Canada:
It is to be supposed that the Minister will select deputies and departmental officials of
experience and competence, and that such appointees, for whose conduct the Minister is
accountable to the Legislature, will act on behalf of the Minister, within the bounds of
3
their respective grants of authority, in the
discharge of ministerial responsibilities.
Parliament most often confers powers on ministers, with the expectation that
these powers will be exercised by officials in the departments over which those ministers preside.This expectation is codified in the federal Intaprettion Actpresumption
that, subject to a contrary intent indicated in the statute conferring a power, "[wiords
directing or empowering a minister of the Crown to do an act or thing ...include
a person appointed to serve, in the department or ministry of state over which
3
s
the minister presides, in a capacity appropriate to the doing of the act or thing....,,
Ministerial departments exist in order to support the presiding minister and are the
39
instrument by which ministerial functions are carried out.
While departments will differ in their internal organization, normally they
will be comprised of administrative units corresponding to distinct areas of activity.
Different types of statutory programs or responsibilities will be carried out on the
minister's behalf in different units or branches of the department.
B. What
Happens
Reorganized?
to
Statutory
Powers
When
Government
is
When branches of departments and other units of government are moved around in
a reorganization, what happens to the statutory powers that had been exercised within them on the minister's behalf? Take, as an example, the formation of the CBSA,
36.
37.
Ibid. at 563.
7he Qieam v. I-an'ss, 119771 I S.C.R. 238 at 245-246, (1975) 66 D.L.R. (3d) 660 [-/rri'so,
cited to
S.C.R. I .
38.
39.
Intaprctation
Act,
supa note 25, s. 24(2).
Canada, Royal Commission on Financial Management and Accountability, Final Rqxrt (Ottawa: Minister of
Supply and Services, 1979) at 175 (departments are the instruments under the direction and management of
ministers and through which ministers discharge mandates conferred on them by Parliament).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
described above. The branches or divisions that were moved from the authority of the
CIC, the CCRA and the CFIA, to the new CBSA, administered statutes and exercised
functions on their ministers' behalf with potentially important effect on individual
rights or interests. When responsibility for each of these units was transferred to the
CBSA, what happened to the statutory powers that had been exercised by officials in
those units on behalf of their former minister? Did those powers remain with that
minister or did they and the responsibility for them transfer also?
The answer to this question would be simple if the Orders in Council that
transferred these portions of government into the CBSA had also expressly transferred the relevant powers, duties and functions to the Solicitor General. As noted
above, the PSR7DA authorizes the transfer of any "powers, duties or functions" from
one minister to another. But with very few exceptions, the Orders in Council in
04
question did not do so.
If one examines the Orders in Council involved in a reorganization such as
that of December 12, 2003, one will very rarely see an express transfer of powers,
duties or functions. Instead, one will see a number of Orders transferring only "control or supervision" of portions of government; and, if there is an express transfer of
powers from one minister to another, this is normally coupled with the words "for
greater certainty."4' These words imply that the express transfer of powers was not
considered necessary; that the powers move, in any case, by another means.
C. Section 3 of the PSRTDA: Transfer of Powers by Operation of Law
The theory that is reflected in these Orders in Council is that certain powers are
transferred by operation of law along with a transfer of control and supervision of a
unit of government. This is based on section 3 of the PSRTDA, which states:
Where under this Act, or under any other lawful authority, any power, duty or function,
or the control or supervision of any portion of the federal public administration, is transferred from one minister to another, or from one department in, or portion of, the federal public administration to another, the minister, department, or portion to whom or
which the power, duty, function, control or supervision is transferred, and the appropriate officers of that department or portion, shall, in relation thereto, be substituted for
and have and carry out the respective powers and duties that formerly belonged to or
were to be carried out by the minister, department or portion and the respective officers
of the department or portion from whom or which the power, duty, function, control or
supervision is so transferred.
40.
41.
Tramnrdcpartims dfaCto CRSA, supra note 26 (stating "for greater certainty . ..from the Minister of
Citizenship and Immigration to the Solicitor General of Canada to be styled Deputy Prime Minister and
Minister of Public Safety and Emergency Preparedness .. .the powers, duties and functions of the Minister
in subsection 77(I) of the Inigration and Refugee Proteinm Actto sign the certificate referred to in that
subsection.").
I/ict
549
550
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Le ministre, le minist~re ou le secteur de I'administration publique f6d~rale auxquels
sont transf&res, sous le regime de la pr~sente loi ou en vertu de toute autre habilitation,
des attributions ou responsabilits, ainsi que leurs fonctionnaires comp~tents, ont le plein
42
exercice des pouvoirs et fonctions d~volus i leurs pr~d&cesseurs.
This section is rather difficult to parse, and this is not made easier by the fact
that the consequences of both a transfer of "powers, duties or functions" and "control
or supervision" are collapsed into a single long sentence. However, if one looks carefully at the wording of this provision, one sees that in the case of either type of transfer, the recipient "minister, department, or portion . . . and the appropriate officers
• . . shall, in relation [to what is transferred], be substituted for and have and carry out
the respective powers and duties" formerly belonging to the transferor. A transfer of
"control and supervision" means that powers are also transferred-but which ones?
The French text of the PSR7DA, which gives the officials within a department
that receives a transfer of "responsabilit~s" simply "le plein exercice des pouvoirs et
fonctions d~volus leurs pr~dcesseurs," is rather vague about vhich these are. Key
to this would seem to be the word "pr~d~cesseur."The "pouvoirs et fonctions" transferred would be those pertaining to the capacity in which it can be said that the transferor minister or official was "predecessor" to the transferee. In the case of a transfer
of "control and supervision" or "responsabilit~s" this would have to do with the relationship with the transferred unit. In the English version, the recipient minister, or
department and officials, are substituted for the transferor "in relation to" the portion
of government that is the subject of the transfer, and shall have their "respective" powers. "Respective" must, in this context, refer to the portion of government in question. The powers in question would seem to be those matched in some way with, or
associated with, that portion.
Thankfully, some additional light is shed on the language of section 3 of the
PSR7DA by the debates surrounding its enactment, as an amendment to the 1918
Act. 43 The Honourable Ernest Lapointe, introducing the amending bill, stated:
This bill, Mr. Speaker, will not involve any change in the existing law. It is suggested by
the commissioners for the revision of the statutes in order to make the present law clearer. The purpose of the measure is to give power to the Governor in Council to transfer a
branch of a department to another department and at the same time to transfer the
44
duties of the officers of that branch to the other minister.
This was reiterated in the debates on second reading:
Mr. Manion: If the minister wished to simplify the work of his department through the
transfer of a particular branch of it to the Department of the Secretary of State, for
instance, then this bill would permit that transfer and vest in the Secretary of State the
authority over the branch so transferred; is that the idea?
42.
PSRTDA supra note 4, s. 3.
43.
44.
An Act to Amrid the Act to authcaize Rearrangamts and TranrersJ EDuie in the PublicSenioe; S.C. 1925, c.23.
Hrie ofC~arrsDebates, Vol. 3 (20April 1925) at 2194.
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATrER?
Mr. Lapointe: Yes. The power already existed under the act of 1918, but this makes it
quite clear that the duties in question are automatically transferred, in the case my hon.
Friend mentions, to the Secretary of State.'"
The notion that transferring a branch out of a department would "simplify the work"
of that department, assumes that the ordinary work performed by the branch would
be transferred with it. The intent seems to be that the powers and duties transferred
by operation of law, along with a transfer of control and supervision of a branch of
government, are those corresponding to its substantive mandate.
The debates are also clear that this was not a change to, but rather (perhaps
ironically), was intended as a clarification of the existing law. Indeed, the intent that
powers and duties corresponding to the substantive work of a branch would be transferred with control and supervision, seems implicit in the debates on the original
bill.4 6 The contemplated transfer of the Copyright Branch from the Department of
Agriculture to another department was spoken of as a transfer of the mattes of
patents, copyrights and trade marks.
It is hard to see how any other understanding would make sense. Why transfer the Copyright Branch if it were then to do something other than copyright and
patents? The perceived need for the transfer of the Copyright Branch out of the
Department of Agriculture was, presumably, because it was not seen as desirable that
copyright matters continue to be handled in that department. It would have made little sense to transfer the Copyright Branch if that meant that patents, copyrights and
trade marks were nevertheless still to be handled within the Department of
Agriculture, while control over and responsibility for "the Copyright Branch" would
reside with another department.
Moreover, given that a transfer of control and supervision of a portion of the
public administration pursuant to section 2(a) of the PSRTDA does not refer to the
transfer of the csployees within that portion (as explained above, amendments to the
PublicSamice Enplovrnmt Act were required to transfer the employees in question 7) it
is hard to see what else a transfer of "control and supervision" or "responsabilit6"
could refer to if not a transfer of the management or direction in the fulfilment of,
and the responsibility for, the functicns performed by a branch of government.
Nor would any other interpretation make sense in light of the amended provisions of the PublicSrvie Enploym t Act. 48 Individuals are appointed to a particular
position within government on the basis of merit as to essential qualifications-that
45.
46.
47.
48.
Hode orf
s Ddtes,Vol. 3 (5 May 1925) at 2883.
See .pra notes 14 and IS and accompanying text.
See fliblic Syiice EnmpIc
rnt Act,
supa note 19, s. 132 (and accompanying text).
For the principle that words of a statute are to be read in light of provisions of other statutes that are in pari
nmtaia, see e.g. Bell
EyssVu inited Parmoi'pv. Re- 2002 SCC 42, [20021 2 S.C.R. 559 at 580-581,212
D.L.R. (4th) I [IBell
EymVucited to S.C.R.I.
551
552
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is, based on relevant experience, knowledge and expertise to perform the duties
attached to that position. Because of this, transferring pdtics would make little
sense if the employees that filled them were no longer to perform the duties associated with those positions, but rather, carry out different functions. The block transfer of employees and positions consequent on a transfer of control and supervision is
premised on the notion that the employees in a transferred branch will continue to
exercise the duties attached to the positions into which they were hired, now in a different department.
Based on the above, the interpretation of section 3 of the PSRTDA that seems
to make sense in light of its wording, the debates surrounding its enactment and other
in pa ri rmteria provisions, is that the powers and duties to be transferred by operation
of law are those ordinarily performed by the transferred unit. This means that the
powers that the officials in the transferred portion had exercised for their minister
will follow them to the new location-to be exercised by them now for the recipient minister. In the words of section 3, the transferee minister is "substituted for" his
predecessor "in relation [to]" that branch, and so now "[has] . . .the respective pow4
ers" carried out by the branch on the minister's behalf. 1
D. Caselaw on Section 3 of the PSRTDA
This interpretation of section 3 of the PSRTDA was one that the Federal Court of
Canada initially found difficult to accept. In Friends of the Wst Country Assn. v. Canada
(Mnisterof shaies and Cteans),50 an application for judicial review of the validity of
certain approvals issued under the Navigable W6te Protection Act,5 ' the question arose
as to whether the impugned authorizations had been issued on behalf of the right
minister. The power to issue the approvals was conferred on the "Minister," which was
defined in the NIWA as the Minister of Transport. However, the approval in question
had been issued by Canadian Coast Guard officials on behalf of the Minister of
Fisheries and Oceans.
The respondent noted that an Order in Council under the PSRTDA 2 had transferred control and supervision of specified units of the Coast Guard from the
Department ofIransport to the Department of Fisheries and Oceans, and argued that
the power to issue a NIPA approval had transferred to the Minister of Fisheries in
49.
50.
51.
52.
PSRTDA, supra note 4, s. 3.
(1998), 150 F.T.R. 161,81 A.C.WS. (3d) 578 (F.C.T.D) [e& Cutv-Al'tsdted to F.T.R.I.
R.S.C. 1985, c. N-22 IN1WAI.
OQtr Traa nmng frun the ODprtmt orTran-rtto the Deprtrmrt dcFidcie and Chmns the CGnd ard
Supidtn Jothe Qnacian Gast Gurd other
Than the HarLtxus and Pats Dimnrate and the Rgional arbaw and
Prts Branches, the MarineRTculattry Dinmxct and the Ship Inmoin Dimxrate and the Regioal Ship Inpomm
Br&nde,, S.1./95-46, C. Gaz. 1997.11.1010 [Trarnxrt to/i4eries
Traner COie.
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
consequence. 3 Prior to the transfer, Coast Guard officials had been responsible for
issuing approvals under the NIWPA on behalf of the Transport Minister. When control
and supervision of the Canadian Coast Guard was transferred to the Minister of
Fisheries, that minister was "substituted for," and henceforth authorized "to carry out
the respective powers and duties that formerly belonged to" the Minister ofTransport
that were performed by the relevant units of the Coast Guard. Thus, from the effective date of the Order in Council, the Minister of Fisheries and Oceans was the minister responsible for the powers that had formerly belonged to the Minister of
Transport under the NM4PA
Neither Justice Muldoon on a preliminary motion, nor Justice Gibson on the
merits, accepted this argument. Justice Muldoon stated:
At the time of the assessment the Minister of Fisheries and Oceans did not have and
presently still does not have the power to issue approvals under the N1M'A or delegate his
authority to issue such approvals to the Canadian Coast Guard.... What seems to have
caused confusion was the transfer of ministerial authority over the Coast Guard from the
Minister ofTransport to the Minister of Fisheries and Oceans .... The effect of the
order-in-council made pursuant to the PublicSertve Rerangenientand Transer ofDuties
Act is that the Minister of Fisheries and Oceans has all powers formerly within the
purview of the Minister ofTransport to administer the Coast Guard. The NVPA stipulates
that the Minister of Transport, not the Minister of Fisheries and Oceans, make the
authorizations .... How the Minister of Fisheries and Oceans was ever involved in the
54
first place remains a mystery.
Justice Muldoon's explanation of section 3 of the FSRTDA-as effecting the
transfer only of powers to adurinistertheunit in question--does not take into account
the fact that the minister of the recipient department would already have the power
to do so. As the Federal Court of Appeal explained in Browvn v. Public Service
GCnni'sdon, Ministers are charged with "management" of their departments, and this
carries with it the various administrative powers comprised in "management."' When
control and supervision of a branch of one department is transferred to another
department, the minister presiding over the recipient would therefore not need additional specific authority to "administer" that portion. Rather, this would flow from the
minister's general ability to manage the department as a whole, including all the units
of which it is comprised.
53.
54.
55.
Fnimscfthe Est Cmotry As. v. Canada (1998), 130 F.T.R. 206 at 212-213, 71 A.C.WS. (3d) 643
(F.C.T.D.) [Vi Cmtry-PrdyimnaryMorion cited to F.TR..
[bidlemphasis added I.
11975 F.C. 345, 60 D.L.R. (3d) 311 at 348-49 (F.C.A.). (The court explained that in the absence of any
other law, the general duty to manage the department would give the Minister the power to make staffing
decisions; however, such powers are specifically governed by statute. Every Minister has the necessary powers to "administer" his or her own department-subject to the FAA and other framework statutes, which
govern the manner in which financial management, human resources management and other aspects of
departmental 'administration' are carried out.)
553
554
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Nevertheless, on the merits of the judicial review application, Justice Gibson
agreed with his colleague:
P.C. 1995-527 did not purport to transfer the powers, duties or functions of the "Minister,"
asdefined, from the Minister ofTransport to the Minister of Fisheries and Oceans as it
would appear it could have. Rather, the Order in Council transferred to the Department of
Fisheries and Oceans" . . . the control and supervision of that portion of the public service
in the Department of Transport known as the Canadian Coast Guard, . .
The Minister of Fisheries and Oceans . . . could have been empowered by the Governor
in Council to, in the words of Mr. justice Muldoon, "[makel the authorizations . . ."
under s; 5(1) of the Navigable iatrs Protection Actby a transfer of powers, duties and
functions from the Minister ofTransport. But, for whatever the reason, he or she was
not. Thus, I am in agreement with Mr. Justice Muldoon to this extent: that the issuance
of the approvals on behalf of the Minister of Fisheries and Oceans was irregular. 56
However, Justice Gibson declined to decide the application on this ground, being of
the view that the parties were entitled to a decision from the court as to whether the
environmental screening at the base of the application was conducted in accordance
with the law. Nor was the issue the subject of comment by the Federal Court of
Appeal on subsequent appeal of the decision on the merits. 7
Nevertheless, more recent judgments of the Federal Court seem to show an
acceptance of the position articulated by the respondents in the Friends of the 1est
Country case-although without any analysis of why this is so, or reference to that
case. Cases involving the exercise of powers by officials within the CBSA after its formation by a series of Orders in Council, but prior to its establishment by statute, evidence a recognition that when branches of various departments were transferred into
the new CBSA, the powers exercised by officials in those branches moved with
them-to be exercised now on behalf of the Solicitor General.
In Branigan v. Canada (Mnistcr of Gtizeaship and Irigration),the applicant
challenged action by an official within the new CBSA exercising delegated power
under section 44(2) of the Irrnigrationand Refizgee ProtectionAct s to refer a report to
the Immigration Division for an admissibility hearing immediately after the formation of that Agency.5" Control and supervision of the portion of the CIC responsible
56.
57.
58.
59.
W& County-MAhits, supra note 50 at 169-70 lemphasis added]).
Friadsofthe 1st (untryA,.
v. Canada (Mnister dlishais and Cbas,[20001 2 F.C. 263,248 N.R. 25 at
29-30, (F.C.A.) (where the court stated, "Join July 7, 1998, Gibson, J., allowed the judicial review. He set
aside the approvals granted by the Coast Guard and referred the matter back to the Minister of Fisheries and
Oceans or othe'ala n'ate ninisrt" for consideration and redetermination in a manner consistent with the
(BA the NIWA and his reasons" [emphasis added)) I 14e Country Appel cited to N.R.].
S.C. 2001, c. 27.
2004 FC 245, (2004), 247 F.T.R. 305, 129 A.C.WS. (3d) 371 (F.C.T.D.) [Branigan cited to F.T.R.I. See also
Cia v. Canada (Mfnito-of Otizmsipandirnigration), 2006 FCA 126, [20071 1 F.C.R. 409, 267 D.L.R. (4th)
324; Ramatran v. Canada (Mnister of PublicSafety and Emagency Frepaaiess), 2006 FC 377, (2006), 146
A.C.W.S. (3d) 1033 (F.C.TD.).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
for exercising this power had been transferred to the CBSA on December 12, 2003.6"
That Order in Council contained no express transfer of the section 44 power.
Nevertheless, Justice Lemieux, referring to the Order, to section 3 of the
PSRTDA and to a delegation of authority by the Solicitor General subsequent to the
transfer, stated, "On the basis of the above, I see no gap in the chain of authority from
the appropriate Minister to her delegate in respect of the referral in this case to the
Immigration Division."6 1 In other words, on December 12, 2003, the Solicitor
General was capable of delegating the section 44 power to officials within her new
department because the power had been implicitly transferred to her as a result of
the Order in Council transferring control and supervision.
In Nalliah v. Canada (Solidtor Geaeal)et al., a motion was brought to suspend
the effect of all negative Pre-Removal Risk Assessments (PRRA) under the
Inlr graticn andRdigeProtetiio Act made between December 12, 2003 and October
4, 2004, on the grounds of lack of impartiality and independence of the officers conducting these assessments during this period."2 On December 12, 2003, control and
supervision of the unit exercising this function in CIC had been transferred to the
new CBSA; '3 and on October 8, 2004, control and supervision of the unit exercising
these functions in the CBSA was transferred back to CIC.64 In considering whether
to grant the relief sought, the court's analysis was premised on the assumption that in
the first order, "[riesponsibility for PRRA decision-making was moved to CBSA from
CIC" and that in October 2004 "the PRRA decision-making responsibilities were
transferred back to CIC" and thus, during the intervening ten-month period, these
5
decisions were made by officials in the CBSA.6
A similar assumption was made in Dkaj v. Mindster ofNa ticnIal Revenue, 66 a case
involving review of a decision under section 29 of the Prooxs of Crime (Money
Laundering)and TarrristFinandingA 7 to hold as forfeit seized unreported funds. The
court noted that, while section 2 of that Act defines the "Minister" for sections 25 to
39 as the Minister of National Revenue, responsibility for those provisions trans-
60.
61.
62.
63.
64.
Tramfer c portions cf CiC to CBSA supra note 26.
Branigan, ,Apa note 59 at 311.
(2004), 264 FT.R. 148 at para. I, 120051 3 F.C.R. 210 (F.C.) INalliah cited to ET.R.J.
Trandr fparotnisofaCto CBSA supra note 26.
Oide Transfmrrng to the l0mn nnnt ofGtinsAip and hrrigradonthe CGntrd and Supedision o(Ctain Palims
uithin the Canada Brde Scnicrs Agency and Transferrng from the Dtputy Nfnistcr and Mnister ci"Public Safety and
Enngoxy rparerzhes to the Mnister o GtizaLship and Inrngration Cortain Polus, Duties and Functions,
S.I./2004-135, C. Gaz. 2004.11.1614 (this statutory instrument transferred "to the Department of
Citizenship and Immigration the control and supervision of the portions of the public service within the
Canada Border Services Agency that carry out pre-removal risk assessments and that were transferred pursuant to Order in Council P.C. 2003-2063 of December 12, 2003").
65.
Nalliah, s pra note 62 at 15 1. See also Say v. Canada (SidtcrGnmeral) (2005), 20061 274 F.T.R. 172, [20061
66.
I F.C.R. 532 (F.C.T.D.).
(2007), 282 F.T.R. 121, (2006), 2 F.C.R. 152 (P.C.) [D, aj cited to F.T.R.].
67.
S.C. 2000, c. 17 1inancingAal.
555
556
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ferred to the Solicitor General of Canada, with a transfer of supervision or control
over portions of the CCRA.68 The Order in Council in question, cited by the court,
69
contained no explicit transfer of powers, duties or functions.
In PublicSevice Alliance of Canada v. Canada (Canadian Food Inspqcton Agency),
the Federal Court of Appeal considered the transfer of supervision or control of certain portions of the CFIA to the newly created CBSA in terms of implications for
labour relations.70 Of note is the fact that, in describing the transfer of control and
supervision, the court spoke in terms of the transfer of unctions:
Following the creation of the CBSA as part of the newly created Public Safety and
Emergency Preparedness Department, sariousgovnnnmtsr
siccs
sre
xganizoe/(PSSRIB
Decision, paragraph 9, page 21). In particular,sxdfied fincims carried out by about 90
employees would no longer be performed by the CFIA, a "separate employer," but VWud
be trainsferredto the CBSA, a portion of the Public Service for which the Treasury Board is
71
the "employer."
Thus, it appears that, after some initial reluctance, the Federal Court has accepted
that the transfer of control and supervision of a portion of the federal public administration entails a corresponding transfer of the powers normally exercised by the
officials in that transferred portion on behalf of the presiding minister. In other
words, once the dust has settled following a reorganization, the relevant powers will
have transferred from one minister to another.
IV. TRANSPARENCY
A. Tracing the Transfer of Powers
Once an Order in Council enacted under the PSRTDA takes effect, legal reality might
no longer be accurately reflected in statutes. Statutes conferring relevant powers and
any appropriate designation orders (designating the "Minister" responsible for those
provisions) will now need to be read subject to the transferring Orders in Council.
Orders in Council enacted under the PSR7DA are published in the Canada
Gazette, Part 11. 7 2 Thus, in the case of an express transfer of powers or duties, tracing
68.
69.
70.
71.
72.
Supr note 66 at 137 (where the court states, "Section 2 of the Act defines the 'Minister,' in relation to ss.
25 to 39, as the Minister of National Revenue. However, effective December 12, 2003, responsibility for the
administration of those provisions of the Act originally assigned to the Minister of National Revenue was
transferred to the Solicitor General of Canada, Inowl styled as the Minister of Public Safety and Emergency
Preparedness, pursuant to Order in Council P.C. 2003-2064 IS.L/2003-216 and ss. 2(a) and 3 of the
Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34.Therefore, references to the 'Minister' with respect to events prior to December 12, 2003 are to the Minister of National
Revenue; references to the 'Minister' with respect to events post-December 12, 2003 are to the Solicitor
General of Canada.").
Transfercpor irm of CCRA to C9SA ssra note 27.
PublicSoiceAlliance, siLra note 19. See also Transirncportionsc CFA to CSA, ssqra note 19.
PublicS-iorAIliane,ibid. at 336 [emphasis addedl.
StatutorvInsmurmi sRegulations C.R.C., c. 1509, s. I1(3)(a).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
557
DOES CERTAINTY MATTER?
the assignment of legal powers is simply a matter of locating all the relevant legislative instruments and reading them together. However, in the case of transfer of control and supervision of a portion of government, this might not be so easy. As
explained in the previous section, such transfers entail the transfer of powers and
duties from one minister to another. But, in this case, once one has collected and
assembled the relevant Orders in Council, how does one go about tracing the movement of powers? How does one see vihich powers were transferred by operation of
law between ministers, and where they now reside?
If the powers ordinarily exercised by officials in a branch of a department are
transferred along with control and supervision of that branch, then in order to see
which powers ended up where, one must know what the relevant portions of government did. In order to trace the movement of the powers, one must know which
statutory powers had been exercised by officials within the relevant branches on their
ministers' behalf immediately before the Order in Council took effect. How does one
find this out?
A court can do so in the course of a legal proceeding. A judge seized with the
matter, wishing to verify the chain of authority by which an official exercises a given
power after a reorganization, and willing to go to the trouble to do so, can receive
testimony and make findings of fact that officials within the unit over which supervision or control was transferred were, at the time of transfer, responsible for exercising certain powers for the presiding minister, and therefore that legal authority and
responsibility for exercise of these powers was indeed transferred to the minister of
the recipient department. However, a lawyer seeking to establish this would need to
rely on other means of doing so.
B. Example: Proceeds of Crime (Money Laundering) and Terrorist
FinancingAct
Take, for example, the powers under the FinandngAct that the Federal Court in Doaj
found to have been transferred as a consequence of the Orders in Council forming the
CBSA. 73 As noted above, the court stated that, as of December 12, 2003, it was the
Solicitor General and not the Minister of National Revenue who was required, under
sections 27 and 29 of the HnandngAct, to make a decision, on application from someone whose currency had been seized by an officer under section 18, as to whether
reporting requirements had been contravened and if so, the appropriate sanction. v4
73.
74.
!kj, supra
note 66. See sur notes 23 to 30 (and accompanying text).
Ddbj,ibid. See also Financing Act,
supra
note 67, s. 18 (1) (stating that "[ilf
an officer believes on reasonable
grounds that subsection 12(l) has been contravened, the officer may seize as forfeit the currency or monetary instruments.").
558
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How easily could someone outside the departments in question have found
out that this power had been transferred to this Minister?
The first step would have been to find the relevant Order in Council. Having
located Order in Council P.C. 2003-2064, one would determine that there had
been a transfer of control and supervision to the CBSA of the following portions of
the CCRA:
(a) the Customs Branch;
(b) the Customs Operations Division of the Investigations Directorate of the Compliance
Programs Branch;
(c) the Customs Appeal Directorate of the Appeals Branch; and
(d) that portion within each of the Agency's regional divisions responsible for the administration of the Customs program, other than the portions of those regional divisions that
75
relate to collections.
One would then need to find out what functions the officials within each of these
units had performed on behalf of the Minister of National Revenue in order to discover whether any of them were responsible for exercising that Minister's powers
under sections 27 and 29 of the FinandngAct.
One might phone the Canada Revenue Agency (formerly the CCRA, but legally known as the CRA since 2005) itself and attempt to f'md out, from those tasked with
responding to general inquiries, precisely which functions had been performed by
employees in the units recently transferred out of that Agency. Otherwise, one might
refer to published material-such as Part III of the Estrmtes,7 ' Info Sarce: Sources df
Gwmint Infcrrntion,77 or that Agency's own web site. In each case, one would be
looking for data with respect to what functions the specified portions of the Agency
performed on the eve of the transfer-that is, immediately prior to December 12,
2003. Because of this, web sites will be of assistance only as long as they continue to
reflect the situation prior to the transfer-that is, until they are updated.
Part III of the Estirntes, Rqort on Plans and Priaitesfor CCRA for the
2002-2003 fiscal year, discusses "customs services" in terms of a business line. In it,
one would have found the following paragraph:
Finally, while we will keep a strong focus on business transformation, it will be important to keep core operations on track in order to be vigilant in responding to the height-
75.
76.
77.
Tmdnsa- cfsrticfn"
s oF CX A to CBSA supra note 27.
The Esirmtes are prepared each year by the government in support of its request to Parliament for authority
to spend public monies and are tabled in the House of Commons by the President of the Treasury Board.
Part III, individual Departmental Expenditure Plans, consists of Reports on Plans and Priorities, which provide details on a business line basis and contain information on objectives, initiatives and planned results, and
Departmental Performance Reports-individual department and agency accounts of accomplishments
achieved against planned performance expectations.
Info Saneis aTreasury Board publication, created and disseminated annually, in fulfilment of an obligation in
section 5 of the Axss to Inflrrmaic Act, R.S.C. 1985, c. A- I to publish and keep up to date a document containing, among other things, a description of the organization and responsibilities of each government institution subject to that Act, including details on the programs and functions of each division or branch.
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
559
DOES CERTAINTY MATTER?
ened terrorist threat, and to continue the implementation of a number of specific initiatives, including Firearms Licensing and Registration, new Customs Officer Powers over
criminal offences such as impaired driving and child abduction, anda crencyrepoting
8
aCtivtieS.'
regime to help corrbatmoney laundeng and the finandng ofterorist
This is helpful, as it appears to refer to the relevant provisions of the FnandngAct,
even though it does not specifically mention these provisions. Nevertheless, the discussion focuses on an area of activity, wherever performed within CCRA, and does
not link this activity to any specific organizational component of the CCRA. 7"
The PaofcrrmnceRqxyt for the period ending March 31, 2003 contains a paragraph that is helpful:
Besides the broader reach afforded the front line by new tools and technology, changes in
federal legislation have brought added scope to the job. The CrN-Border Crrunc and
Monetary lnStrunts Rqxz'tng Rulationswere implemented on January 6, 2003 to combat money laundering and terrorist financing activities. Over the three-month period
from January 6 to March 3 1, Customs seized $8.6 millio uisder this initiative, of which
$4 million was forfeited to the Government of Canada. 0
This paragraph points to the enforcement of the regime established by the Finandng
Act by "Customs," which presumably means the "Customs Branch." Nevertheless, the
statement might refer only to the seizure of monetary instruments by customs officers under section 18 of the FinandngAct and not also the Minister's review function,
per sections 27 and 29."
The 2002-2003 edition of Into Sourct: Sources of Folexal Govmirmt Infcrrm tion
contains a list of legislation administered by the CCRA; however, this list includes no
mention of the FinandngAct. Nevertheless, the description of the Appeals Branch of
that organization contains discussion which, while too vague to specifically identify
the sections 27 and 29 power, would seem to include it:
Appeals Branch
The Appeals Branch is responsible for resolving disputes between the Canada Customs
and Revenue Agency and it's [sid clients by conducting fair and impartial administrative
reviews of Agency decisions. This Branch revies conted deisioas rdating to tax, cuastcm,
78.
79.
80.
81.
Canada Customs and Revenue Agency, 2002-2003 Etrrites: Part
Ill-Rqxrt on flans and Pricties,(Ottawa:
Public Works and Government Services Canada, 2002) at 26-27 [emphasis added].
Ibid. "Compliance" is similarly dealt with as an objective, and discussion in the Eszirmtesis concerned with its
general achievement across the areas administered by the Agency. While there are general references to "fil2
ing, border, remittance and reporting activities" at p. 4, ibid.
and numerous references to more generally
promoting compliance with border legislation, or counter-terrorism efforts, these are again not linked to
any specific organizational unit. The report for the 2003-2004 fiscal year similarly contains references to
promoting "compliance with Canada's... border legislation" and to "counter-terrorism efforts," but does
not link this to a specific organizational unit of the Agency. See generally Canada Customs and Revenue
Agency, 2003-2004 Estinates: artIll-Rqxrt on FansandfPasities,
(Ottawa: Public Works and Government
Services Canada, 2003).
Canada Customs Revenue Agency, Poarnmnce Rqxrt forthepriodmdng/dbrh31, 2003 (Ottawa: Public
Works and Government Services Canada, 2003) at 1-66.
Dumj,sqa note 66.
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trade administration, employment insurance, and Canada Pension issues. The Appeals
Branch is also responsible for promoting voluntary compliance through the coordination
8
and administration of a fair dispute resolution and redress process. .
A customs officer's initial decision under section 18 of the FnandngAct to seize
monetary instruments would seem to be a "decision relating to customs" that the
Minister, in deciding whether the reporting requirements were contravened, is
reviewing. From this description, broad enough to contain the sections 27 and 29
function, although not specific enough to identify it, one might have inferred that
this power must have been exercised, under a delegation by the Minister, within this
branch-and presumably by officials within the transferred "Customs Appeal
Directorate." The Info Sourre descriptions of the Customs Branch and Compliance
Programs Branch contain discussion which, although vague, might also possibly
include the powers in question. 83
However, doubts might also have been raised in one's mind. Can one be certain that there was not another unit within CCRA in which these specific decisions
were made and which remained behind in CCRA? Moreover, a look at the Table of
Public Statutes and Retpnsible Alinisters (Table) in the Canada Gazette, Part III would
have increased one's doubts. The Table for both 2003 and 2004 (updated to
December 31, 2003 and December 31, 2004 respectively), indicated the Minister of
National Revenue as the minister responsible for these provisions. 4This might have
caused one to question one's own research or conclusions. Were the powers indeed
transferred? The Table is simply a useful tool that does not purport to be comprehensive or infallible and is not intended to be authoritative. Nevertheless, the fact
that this government-issued research tool shows no transfer of ministerial responsibility might have led one to mistrust one's own supposition, however reasonable it
may have seemed, that these powers had been exercised within one of the identified
branches of the CCRA and therefore must have transferred along with control and
supervision of it.
82.
83.
84.
Canada Customs and Revenue Agency, lnfo
Sour.e:
Scurtes c Po-a)
i
Cemret Infmimtion 2002-2003, Vol. I
(A-H) (Ottawa: Public Works and Government Services Canada, 2002) at 109 lemphasis addedl.
Ibid.
(The Customs Branch is described as being "responsible for the ad inistatioandbi-and trade lgislatin. .. "[emphasis addedl. The phrase "border legislation," while vague, would be broad enough to include
the finandng Act. The Compliance Programs Branch is described as being "responsible for the verificati and
afamf mt activitiesaimed at ensuring a-rphiance nid custom and revenue lavs.This Branch ...performs
investigations to ensure compliance with customs laws...."[emphasis added]. The phrase "customs laws"
would similarly include the finandng Act, supra note 67).
Department of justice Canada, TableofliblicStatutesandRepxnibleMnisters, vol. 10, issue 2003-3
(Ottawa: Public Works and Government Services Canada, 2003) at 298; Department of Justice Canada,
TalHeolablicStatutes andRsxnbUeMnistes, vol. II, issue 2004-3 (Ottawa: PublicWorks and Government
Services Canada, 2004) at 306. It was not until 2005 that the Table ofPublicStatutesand RapibleMnidstes
was changed to show the Minister of Public Safety and Emergency Preparedness as responsible for ss. 25 to
39 of the lnar'ng Act,
ibid.--reflecting amendments that by then had been made to the statute itself;
Canada Bordar
Soniaes Agency A
fr,
pa note 31 (which made a consequential amendment to the fnaning Art,
iiL, s. 124(2) and s. 145(2)).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
In summary, on the basis of published materials, one might have reasonably
concluded that the contemplated powers under the linandngAct had, immediately
before December 12, 2003, had been exercised within one of the units identified in
Order in Council P.C. 2003-2064, and thus transferred by operation of law to the
Solicitor General. However, one could not attach to this conclusion anything resembling the legal certainty one would derive from a legislative instrument specifically
identifying the minister on whom these powers are conferred.
C. Varying Degrees of Certainty
The degree of uncertainty associated with this exercise will vary from one situation to
another. In some cases, identifying the powers that must have implicitly transferred
with a transfer of control and supervision will be easier than in the example described
above. Many Orders in Council identify the portion of government to be transferred
in terms of the functions carried out." In other cases, the Order in Council might
transfer control and supervision of branches of government whose specific functions
are more clearly identified in published materials than in the situation described above.
But there may also be cases in which this exercise is more difficult than the
one shown above. This may be the case when a reorganization transfers only a subset
of a branch whose functions are described in published materials. And the identification of functions to the portion of government specified in a transfer Order may be
all the more difficult when the Order is drafted so as to transfer control and supervision over all of a certain branch of government excpt fcr certain specified units.
Discerning what functions are to be associated with the transferred portion must
then involve not only determining which functions had been performed within the
branch in question, but also determining what each of the excepted units had been
responsible for-and therefore which powers did not transfer with the balance.
For example, the Order in Council that was at issue in Friends of the West
C1untrytransferred from the Department ofTransport to the Department of Fisheries
the' ... portion of the public service ... known as the Canadian Coast Guard, other
than (a) the Harbours and Ports Directorate and the regional Harbours and Ports
Branches; (b) the Marine Regulatory Directorate; and (c) the Ship Inspection
85.
See e.g. Tranerofporticris(Cto
CBS sspaa note 26, ss. I(a)(i), (a)(ii), (a)(vi) (transferring from the CIC
to the CBSA the control and supervision of, interalia, ".. . that portion of the International Region performing intelligence and interdiction functions overseas on a full-time basis ....
that portion of the Departmental
Delivery Network Branch responsible for the Immigration Warrant Response Centre, ... those portions of
the offices in Canada, other than ports of entry, that deal on a full-time basis with enforcement (removals,
detention, investigations, pre-removal risk assessments, hearings, appeals, interventions and war crimes) and
intelligence ... "); Tnderoortionsd
A to CBSA supra note 19 (transferred from the CFIA to the CBSA
the control and supervision of the portions of". . . the public service within ... the Operations Branch...
that provide passenger and initial import inspection services performed at airports and other Canadian border
points other than import service centres."). Nevertheless, functions performed within these units that are
ancillary to those identified will not be discernable from the wording of the orders.
561
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Directorate and the regional Ship Inspection Branches."'86To know that the authority
under subsection 5(1 ) of the NI4PA (the power at issue in that case) had been transferred to the Minister of Fisheries and Oceans, it would have been necessary to know
not only that the Coast Guard was responsible administratively for issuing those
approvals, but also that the specific sub-units identified in a) to c) were not responsible for this power.
Part III of both the 1994-95 and 1995-96 Esdmites of the Department of
Transport Canada simply list the NI4PA as an Act generally "governing" the activities
of the Coast Guard. 7 The 1994-1995 edition of Info Source identifies the "Marine
Group/Canadian Coast Guard" as "responsible for . . . regulatory matters, and
changes and amendments to relevant legislation such as the . . .Navigable Waters
Protection Act to ensure the proper enforcement of the marine regulatory system.""
It also notes the "Marine Navigation Services Directorate" as a group that "reviews
and approves works in navigable waters.""9 However, it contains no mention of a
"Marine Regulatory Directorate." Given the similarity in names, one might have been
forgiven for supposing that the "Marine Regulatory Directorate" either included, or
was included in, one of those two units-and thus that the subsection 5(1) regulatory power may have been exercised within one of the units excepted from those transferred, and so would not have been transferredby Order in Council P.C. 1995-527.Y
Moreover, the Table of Acts and Mnisters Responsible for thdr Adrrin'strationfor each of
the years 1995 through 2003 continued to indicate the Minister of Transport as
responsible minister for the NVPA91
Matching specific functions to the portions of government specified in an
Order in Council would be even more difficult if the transferring department had
very recently undergone an internal restructuring. A purely internal, administrative
reorganization might be done within a department immediately before a transferring Order in Council in order to ensure that the Order accurately transfers the
units responsible for certain functions while not denuding the minister of other
86.
87.
88.
89.
90.
91.
Tanspxr to Hsmer Transfi
Qtder, upra note 52 [emphasis added 1.
Transport Canada, 1994-1995 Estrrtes:
Part
IIl-ETnditure Ilan, (Ottawa: Minister of Supply and Services
Canada, 1994) at 3-44; Transport Canada, 1995-1996 Estirmtes: PartJI--Earnd'ture Man, (Ottawa:
Minister of Supply and Services Canada, 1995) at 167.
Info Soum SouresdFrdral Gournstlnforrnua, 1994-1995 (Ottawa: PublicWorks and Government
Services Canada, 1994) at 856.
[bid.
Tnrtxs to lishariesTransfer oper,
Apa note 52.
After 2003, the Ta/lecontinued to reflect this, but now accurately: responsibility for the NIMPA was transferred back to the Minister ofTransport: see Odr Translerring tothe Dlm-tna
t of Tratrrt Certain
Portions
of
the Public Srsice in the L0panmut of ineries
and Oxsans and ofthe Fbn Duties
and Funwms fthe lMnister of
sh nie and OQrnsder
irtnin
paragraphs of the Canada Shting At, S.1.
/2004-35, C.Gaz.2004.11.25S
(transferred control and supervision of specifled portions of the Department of Fisheries and Oceans,
including the unit responsible for these approvals, s.(b)).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
functions intended to remain under his responsibility. In other words, new units
might be defined for the sole purpose of being transferred. This is permitted by subsection 2(a) of PSRTDA, which authorizes the transfer of any portion of the public
administration and does not specify a length of time prior to the transfer that the
portion should have been identifiable as such.9 2 Moreover, such redefinition might
be an important means of ensuring that a reorganization carried out by the government effects desired goals without having the unintended effect of transferring functions other than those contemplated. Nevertheless, the transfer of control and
supervision of units of government that have not been long in existence may make
it all the more difficult for those outside the departments in question to identify the
powers that have been implicitly transferred.
In summary, the transfer of statutory powers that may result from a reorganization of government cannot necessarily be discerned by looking at legislative instruments. Interposed in the analysis will be a question of fact: what did the units of
government identified in the transferring Orders do on behalf of their ministers?
Without a means of ascertaining this factual matter, one can have only varying
degrees of confidence, and (it is submitted) no certainty capable of satisfying a legal
standard that one has accurately ascertained which powers were transferred from one
minister to another.
V. DOES LEGAL CERTAINTY MATTER?
The above discussion has to do only with certainty in tracing, and thus ascertaining,
the legal transfer of powers. If one simply wanted to know generally what functions
are performed within any government department or agency following a reorganization, one could consult its web site or make a telephone inquiry. One can fimd out,
for practical purposes, where to go for government information on a particular matter, or where to send an application for a permit or licence. Perhaps this is sufficient.
Does it matter that individuals in society, or their lawyers, be able to ascertain who
is the minister entrusted with and responsible for a given statutory power?
One might contend that it does not: the question of which minister is legally responsible for the exercise of which statutory power is a purely internal matter,
of no concern to those outside of the departments in question. From the point of
view of those affected by the exercise of a power, the action is, in any case, taken
by a representative of "the state." As long as powers are validly conferred on a minister, does it matter which one? In any case, the system can function perfectly well
as long as people know where to send their applications; those applications then get
92.
FSRTDA supra note 4, s. 2(a).
563
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to the right place within the government, and officials make decisions on them.
But, it may be necessary to step back and examine this question in the context of
our broader legal structure.
A. Certainty in the Conferral of Ministerial Powers
In this structure, the conferral and exercise of powers is not generally considered to
be a fluid matter, with ministers and other officials regarded as fungible and interchangeable. Nor is the conferral of legal powers generally shrouded in obscurity.
Quite the contrary.
Federal statutes are structured in such a way as to provide clarity and legal certainty as to which minister (or other office holder) is responsible for the exercise of
any given statutory power. Statutes conferring powers on "the Minister" will define
"Minister" (often in section 2 of the statutes). The definition will either specify who
is "the Minister" for the purpose of any provision of the Act, or will provide that this
3
is the Minister so designated by Order in Council-at times with minute precisioni
In either case, "the Minister" on whom powers are conferred is specifically identified
in a legislative instrument. This statutory framework implies certainty as to which
minister is conferred authority and responsibility for any given statutory power. Why
would this be important?
B. The Rule of Law
The principle of the rule of law, a "fundamental postulate of our constitutional structure"44 lying "at the root of our system of government" 5 requires that actions by state
officials be legally founded. 6 The Crown may not interfere with the rights, duties or
liberties of its subjects without legal authority; " and, while some limited ability
remains to act under the Royal Prerogative, for the most part this means that "official
93.
94.
95.
96.
97.
For example, Section 4 of the Innnigration and Rdlgee Protection Act S.C. 2001, c. 27, as amended by 2005, c.
38, s. 118, provides: at subsection (1) that the Minister of Citizenship and Immigration is generally responsible for administration of that Act; at subsection (2) that the Minister, as defined in section 2 of the Canada
Bat/"-Semrics Ageriv Act, is responsible for the administration of that Act as it relates to particular matters
and certain powers specified in that subsection; at subsection (3) that, subject to the foregoing, the
Governor in Council may specify which of these two ministers shall be the Minister for the purpose of any
provision of that Act, or that both Ministers may be, specifying the circumstances under which each Minister
shall be "the Minister"; and at subsection (4), that any such order be published in Part II of the Canada
Gazette
Romardli s. Dupleeas, 119591 S.C.R. 121 at 142, 16 D.L.R. (2d) 689 IRoncardli cited to S.C.R. I.
Remerencere.Seo'a
ofQudc, [19981 2 S.C.R. 217 at para. 70, 161 D.L.R. (4th) 385 IRd'ntre Quebec
cited to S.C.R.I; see also British Colunkia v. Irnrial Tobacco Canada Ltd, 2005 SCC 49, 120051 2 S.C.R. 473
at para. 57, 257 D.L.R. (4th) 193 [Inpial Tdoacocited to S.C.R.I.
berial Ttacuu, ibid. at para. 59; Enck v. Carringtn(1765), 19 Howell's StateTrials 1029, 11558-17741 All
E.R. Rep. 41.
FhanmcruticalMAnu1acturcrs A,. J-Cnada v.British CWunryia (AtrtmvckneGyxraI)(1997), 149 D.L.R. (4th) 613
at para. 28, 38 B.C.L.R. (3d) 175 (B.C.C.A), leave to appeal to S.C.C. refused, 26260 (February 12, 1998),
[19971 S.C.C.A. No. 529 IhlarrmoIuAclnulaauntasAm. cited to D.L.R.I (QL).
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
actions must flow from statutory authority clearly granted and properly exercised." 8 As noted by one text of administrative law:
[Elvery government authority which does some act which would otherwise be a wrong
(such as taking a man's land), or which infringes a man's liberty (as by refusing him planning permission), must be able to justify its action as authorised by law-and in nearly
every case this will mean authorised directly or indirectly by Act of Parliament. Every act
of governmental power, i.e. every act which affects the legal rights, duties or liberties of
99
any person, must be shown to have a strictly legal pedigree.
Ensuring that the Executive acts only as legally authorized is the role of the courts,
and in this capacity courts act to preserve the principle of the rule of law. Courts are
often called upon to determine the existence and scope of authority for a government
official to do any particular act which, in the absence of such authority, might well
give rise to an actionable wrong.
Statutory powers must be exercised in accordance with the intent of
Parliament. This means, among other things, that if Parliament confers a power on a
particular office, the power must be exercised either by the holder of that office, under
a delegation permitted by Parliament, or otherwise as contemplated by Parliament
(for example, in subsection 24(2) of the IntapretationAct,"' referred to above). In their
role as guardians of the rule of law, courts will ensure that government acts in accordance with statute, in part by vacating the purported exercise of power by someone
other than the individual or holder of an office legally authorized to do so.
Much of administrative law is thus concerned with "the legal pedigree" of
action taken by government officials, and this often involves tracing the chain of legal
authority from the person or holder of the office on which a power is conferred by
Parliament to the person eventually exercising that power-as assignee, delegate,
sub-delegate or legal alterego of Parliament's initial delegate.
C. Responsible Government
When the exercise of power is by a departmental official, this brings into play yet
another constitutional principle: that of responsible government. Under this principle, ministers are responsible to the legislative body not only collectively as a government, but also individually'' for the exercise of powers specifically entrusted to
98.
Baiboak v. Canada (Attoney Genmrl), 2002 SCC 57, [20021 3 S.C.R. 3 at para. 20, 214 D.L.R. (4th) 193
[Bablss cited to S.C.R.]; see also Raxardli, supra
note 94.
99. William Wade & Christopher Forsyth, Adniniso-atie Law, 9th ed. (Oxford: Oxford University Press, 2004)
at 20.
100. Supra note 25 and accompanying text.
101. See e.g. Qdxec(AttrcneCosaal) v. Blaiki 119811 I S.C.R. 312 at 320, 123 D.L.R. (3d) 15 [Blaikiecited to
S.C.R.I ("[Mlinisters ...according to constitutional principles of a customary nature referred to in the preamble of the B.N.A A ...must be or become members of the Legislature and are expected, individually
and collectively, to enjoy the confidence of its elected branch.").
565
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them by or under statute. 102 As noted above, ministers are responsible to Parliament,
and through Parliament to the electorate, for the exercise of powers on their behalf
by officials within their own department. 103On the classical understanding of the
Carftma principle articulated in the statement by Lord Greene quoted above, it is
this individual responsibility of each minister to Parliament that forms the justification for the ability of officials in that minister's respective department to act on the
minister's behalf. 104
In this structure, one minister cannot legally exercise powers conferred by
statute on another.""o Nor can officials of one department act under the Cartanaprinciple or the IntapretationAct to exercise powers conferred on the minister presiding
6
over another department.°
These concerns were discussed at some length by the Newfoundland Court of
Appeal in R. v. NDT Ventures Ltd. 07 There, the respondent company had been charged
with contravening the provincial /-Istcic Resources Ac0" s for failing to carry out an
archaeological assessment that the Crown alleged they had been ordered to do before
commencing drilling operations. The company's defence was that there had been no
valid order under that Act mandating the assessment. The power to make such order
was conferred on the Minister of Tourism, Culture and Recreation, as responsible
minister for the purposes of the Act, whereas the letter received by the company
communicating this had been sent by an official in the Department of Mines and
Energy. The trial judge found that no order had been made under the authorization
of the minister empowered by the legislation to issue it, and that as a result the charge
against the company must fail. This was overturned on appeal, as the Appeal Court
found that the order had in fact been made by officials within the Department of
Tourism, but merely communicated via another department. Nevertheless, judges at
102. See Cariona, qpm note 35; see Hlarinis, supm note 37; see also P, v. NDT Vmtures Ltd. (2001), 2001 NFCA
16,225 Nfld. & P.E.I.R. 181 at para. 57, 4Admin. L.R. (4th) 110 [NDT Vnnrnscited to Nfld. & RE.I.R.j.
103. Ammtable Gobiumnst: A Guide for Mnisters (Ottawa: Government of Canada, 2006) at 13 (as articulated by
the Privy Council Office: "Under the convention of responsible government, Parliament confers executive
authority on Ministers on the condition that they, and through them the officials under their management
and direction, be accountable to Parliament for their actions.").
104. See Carftona, supra note 35; Harnin, .sqra note 37. See also NDT Vntures, sapra note 102.
105. NDT Vmntus, iMid See IntoaprtationAct, supra note 25, s. 24(2)(a) (a minister that has been sTdficallvdeignated as aing minister for another minister may exercise that other minister's powers). See also H Lavender
andSon Ltdv. MfnisterofHoungandLocal Guurmtnnt,119701 I WL.R. 1231, 3All E.R. 871 at 880 Lauado"
cited to All E.R.] (where the English Court of Queen's Bench Division held that individual ministers may
not delegate "the decision for which Parliament made [them] responsible" to other ministers.).
106. NDT Ventures, i/O' Henry Molot, "The Carltona Doctrine and the Recent Amendments to the Interpretation
Act"(1994) 26 Ottawa L. Rev. 257 at 272 (officials within one department can act as delegate of the minister presiding over another department, but only where there is an express delegation power in the statute in
question that is wide enough to permit this).
107. NDTVenturm ibid
108. R.S.N. 1990, c. H-4.
GOVERNMENT REORGANIZATION AND THE TRANSFER OF POWERS:
DOES CERTAINTY MATTER?
both the appellate and trial level were in agreement as to the applicable legal principle: to be valid, the order had to have been made by the Minister ofTourism, Culture
and Recreation or by officials in that minister's department acting on that minister's
behalf under the Carltona principle. It could not have been made by the Minister of
Mines and Energy or by an official in the Department of Mines:
It is true, barring the Minister of Mines and Energy having been designated acting
Minister ofTourism, Culture and Recreation, of which there is here no suggestion, that
the Mines and Energy Minister could not normally exercise a power bestowed on the
former's portfolio. No exception, therefore, can be taken with the stance of the trial
judge where he asserts, in his first reason for dismissing the charge against NDT Ventures
. . . that the Minister of Mines and Energy did not have the authority to issue the order
to carry out the archaeological assessment before the drilling on Nakasusutok Island
could proceed. Nor would that Minister's departmental officials be endowed with that
authority. The power to make such an order, as the reproduction of the relevant legislative provision in preceding para. 7 witnesses, is conferred on the Minister ofTourism,
Culture and Recreation under the Historic Resources Act. 5 9
The reason for this goes back to fundamental principles of responsible government:
After all, it appears only logical that the exercise of ministerial powers by departmental
officials under a specific Minister's authority should attract individual responsibility by
that Minister for the actions of those exercising them. By the same token, except where
duly appointed as acting Minister to the portfolio cloaked with the power, it does not
seem reasonable that another minister, either personally or through officials over the
department over which he or she normally presides, should exercise the power of the
ministry to which the authority had been entrusted. Such a course would virtually stand
the concept of parliamentary responsibility on its ear. The power, and the responsibility
for its custodianship, would have been conferred by the legislation on the Minister holding the responsible portfolio under the statute. While actions of public servants of other
departments may impinge on a minister's collective responsibility, they form no part of
his or her individual ministerial responsibility for the actions of his or her officials. 110
Because officials in one department cannot act on behalf of the minister of
another department, determining the "legal pedigree" for action by a departmental
official usually involves, as a first step, establishing the minister on whom the power
has been legally conferred. Only once it has been determined which minister is legally responsible for a given statutory power can one then verify whether it has been
validly exercised by departmental officials on that minister's behalf, or otherwise by
that minister's delegate.
109. NDTVentures, spra note 102 at para. 104.
110. [bid.at para. 69.
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D. Does Certainty Matter?
Given that government officials must be able to point to the legal authority for their
actions, and given that the starting point for this in the case of a ministerial power
must be with the specific minister on whom it is conferred, it should be no surprise
to find that statutes are generally structured to provide clarity as to which minister is
responsible for the exercise of any given statutory power.
It is in this context that we need to ask ourselves whether it matters that, following a reorganization, it may not be possible for anyone other than a court of law to
determine with legal certainty which minister is responsible for which statutory power.
One might first ask whether there is not a public interest in it being clear
which minister is conferred which powers, so that it is apparent to all that powers are
exercised by those legally authorized to do so. Is it enough that powers are exercised
by those with legal authority (as can be verified by a court if challenged after the
fact), or is it important also that this be seen to be done? Should it not be possible for
people to see that a statutory power-particularly, one with important effects on
rights or interests-is exercised by an official acting under the authority of the minister assigned responsibility for this power?
As noted above, if a power is exercised by someone not authorized to do so, this
can be successfully challenged. If a court finds, as did the trial judge in NDT Ventures,
that a power was exercised by the wrong minister, by officials in the wrong department
acting for that minister, or by the wrong minister's delegate, the purported exercise
will be a nullity. But how can individuals bring a legal challenge on the basis that a power
was exercised by someone not authorized to do so, if they (and their lawyers) cannot
ascertain which minister has been given the power in the first place? One might ask: in
a society governed by the rule of law, where powers affecting rights or interests can be
exercised only as authorized, is there not a public interest in leaving open the possibility of legal challenge for perceived wrongful exercise of power?
One might also question whether there is sufficient certainty and transparency to allow Parliamentary responsibility to properly operate. Can Parliamentarians
determine which minister is responsible to them for the exercise of each statutory
power? Can others do so?
Finally, is the current situation not somewhat misleading? In a statutory structure where "the Minister" on whom powers are conferred is defined in such a way as
to be identifiable by means of a legislative instrument, the implication is that one can
(and should be able to) discover the minister responsible for the exercise of any given
statutory power. Is it not then somewhat deceptive if this certainty breaks down following a reorganization of government, while the statutes conferring the powers nevertheless continue to imply its existence?
I submit that, in our legal structure, underpinned by the principles of the rule
of law and responsible government, certainty in the assignment of ministerial powers is important; and that the consequences of the current method of reorganizing
government therefore need to be re-assessed.
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DOES CERTAINTY MA'TER?
E. Possible Reform
One is then left with the question: how to meet the need for government to reorganize itself efficiently and at times quickly, while yet ensuring certainty in the conferral or assignment of statutory powers? I offer the following general thoughts as to
possible reform.
First, the legal effect of section 3 of the PSRTDA might be made clearer. "' This
might involve amending the statute itself to replace the obscure wording of section 3
with a more lucid articulation of the fact that a transfer of control and supervision of
a unit of government brings with it a corresponding transfer of the statutory powers
exercised within that unit. As well, Orders in Council enacted under the PSRTDA
transferring control and supervision might include a statement clearly articulating
the operation and effect of section 3. While such changes would not in themselves
facilitate the task of discovering i'hidi statutory powers have been transferred, they
would at least draw attention to the fact that this exercise. needs to occur.
Second, it must be possible to identify, through published instruments, where
ministerial powers reside. However, to require that a list of transferred powers be
included in the Orders in Council effecting the reorganization might not be practicable. The speed at which reorganizations may need to occur might not make it feasible to identify each and every power exercised by officials within the branches of
government subject to a transfer of control and supervision, so as to include mention
of these in the transferring Order. Nevertheless, those transferred powers can (and
will need to be) identified within the reorganized departments in the weeks following the reorganization. Each department could therefore be encouraged-or even
mandated under an amended PSRTDA-to issue and keep an updated, comprehensive
list of all statutory powers for which its presiding minister is responsible. Such lists
might then form the basis for updating theTable in the Canada Gazette, Part III, so that
thisTable might more faithfully reflect ministerial responsibility for each federal public statute. More importantly, if compiled and published in fulfilment of a legal duty,
a list specifying the statutory powers that have been transferred from one minister to
another as a result of a reorganization may afford a legal researcher a satisfactory
degree of certainty as to which minister has been assigned legal responsibility for
which power.
VI. CONCLUSION
Powers move from one minister to another, by operation of law, as a consequence of
a transfer of control and supervision between the departments over which they preside. The powers that transfer are the ones ordinarily exercised by officials within the
unit over which control and supervision is transferred.
I 1I. PSRTDA,
.qa
note 4, s. 3.
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Because the powers move from one minister to another by operation of law,
officials exercising these powers on behalf of the transferee minister, following a
reorganization, can show that they are acting under lawful authority as required by
the principle of the rule of law. Courts, once seized of the matter, can fill the factual gap involved in tracing the legal movement of these powers and therefore can fulfil their duty as guardians of that principle to ascertain that officials are indeed acting
under law.
Nevertheless, an administrative lawyer, schooled in the need for certainty in
tracing the authority for exercise of powers (particularly those with significant effects
on individual rights and interests), but unable to verify which minister has the legal
authority and responsibility for a particular power, might be left with legitimate misgivings about the situation.
Particularly given the extensive use of the PSRTDA in reorganizing government in recent years, it might be time to re-examine this statute, what it authorizes,
and the legal results that flow from this. We might ask whether these are in accordance with other values informing our legal structure; and if not, whether reform is
called for in the statute itself and in the practices surrounding its use.