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Private Ownership of Public Law

December 4th, 2013

RestoreCSA reviews the Minister’s Determination to Parliament in a multipart series.  Part 1 is here.  Part 3 is here.  Part 4 is here.


On November 28th, the Federal Industry Minister, James Moore, responded to the following question: 

“Does the SCC believe that the CSA owns any portion of Canadian law”

Minister Moore’s declaration in response to this question before Parliament included three distinct and formal determinations.  First, the Minister ruled that the materials developed by CSA are “voluntary standards” rather than laws;  Second, the Minister ruled that notwithstanding the determinations or Orders in Council of provincial legislatures, the Federal Government does not consider any portions of Provincial law which contain CSA developed material as legitimate or enforceable Provincial laws, and;  Third, the Minister ruled that because legal statutes containing CSA developed material are not considered by the Federal Government to be legitimate or enforceable law, the CSA may remain the rightful owner of “the intellectual property and copyright” of their developed materials.  [the full ruling by the Minister is at page bottom]

In essence, Minister Moore has stated that CSA developed materials incorporated into provincial laws are merely “voluntary standards” whose character as independent of the law is unchanged by inclusion within the law.  The Minister’s determination is that CSA materials are “referenced in regulations,” but they are not part of regulations per se.  Or more simply, CSA standards are not enforceable as laws.

This is significant because CSA material is included in a great many laws.  As of 2012, the CSA has claimed authorship of “more than nineteen hundred” standards, and more than a third of these have been passed into law.  So there are about 630 laws that are affected by the Minister’s ruling.

How are they affected?  Well, for example, the body of a hypothetical provincial law may be constituted of, say, 10% text from existing legal statutes, another 10% text generated by a Minister or Clerk of Committee, and 80% from a lobby group like the CSA.  Note, by the way, that the Minister previously ruled that the CSA is not a regulatory entity, it is merely a commercial operation like any other.  It therefore cannot contribute to legislation as though it were a regulator, all the CSA can do is lobby a legislature for the inclusion of its material.  But back to the example, 80% of the text of our hypothetical law comes from the CSA.  By the Minister’s ruling, that 80% of the law is not legitimate or enforceable, the determination of the Federal Government is that the 80% is not actually part of law.

In the case of the Canadian Electrical Code, Part 1 (CEC), for instance, a typical Order in Council passing the CEC into law is less than a full page in length, whereas the CEC itself is more than 640 pages.  Average CSA contribution percentages then, with regard to electrical laws, are about 99.84% CSA contribution vs. 0.16% Ministerial or other legislative contribution. 

Most critically, the 0.16% of provincial electrical law that remains is pure boilerplate, it comprises the title information, the date of passage, the file number, that sort of thing.  There’s nothing enforceable in the boilerplate.  By stripping the CEC of its legal legitimacy, the Minister has invalidated all of Canada’s electrical laws with a single Parliamentary determination.

How will the Provinces respond?  RestoreCSA has sent letters to the Provincial Authorities to inquire if they will “accept and comply” with the Minister’s determination by “discontinuing enforcement of Provincial electrical law.”  It does put the Provinces in an awkward position.  They have been enforcing electrical law for years and, if those laws were never really the law, then there was no basis for either their enforcement or for the electrical permits paid for in compliance with them.  Canada is then an electrical anarchy where anything goes because nothing is enforceable.

Remember that electrical law is only one CSA standard out of the 630 that have been passed into law.  All of these 630 laws are treated identically by the Minister’s ruling, he made no exemptions within his Parliamentary determination.  That means that all of these 630 laws are unenforceable. 

One may also recall that Minister Moore has already declared the CSA to be “not a regulatory entity.”  The CSA therefore has no extra-commercial status before legislative committees, all they can do is lobby for their preferred changes like any other commercial entity.  The Minister himself conceded that there are “hundreds” of inclusions in law just like CSA’s material.  The Minister’s determination therefore applies equally to these other entities. 

Any commercial entity therefore, that has successfully lobbied for inclusion of its preferred changes to law before any level of government in Canada consequentially remains the legal owner of those portions of legislation for which it successfully lobbied.  Further, by the Minister’s determination, any legislation containing the contributions of any such commercial entity is nullified as unenforceable in those portions of legislation which are sourced from that commercial entity.

It is presently unclear how many hundreds or thousands of Federal and provincial legislation have been struck by the Minister’s determination.

A related question for Industry Canada is whether the Minister has the Parliamentary authority to strike whole, or portions of, provincial legislation without the exercise of the Powers of Disallowance and Reservation.  While Disallowance has previously been ruled a subsisting power, though by convention unused since 1943, it is dependent on the assent of the Governor General, it is not exercisable external to such assent by a Minister of the Crown.  The action then, by the Minister of Industry, appears to be an attempt to accomplish an action of Disallowance without bothering to exercise the Power of Disallowance. 

Or, more simply, the Federal Government is likely unable to strike a provincial law by the power of an individual Minister.

In this context, is is highly unlikely that provincial authorities will accept and comply with Minister Moore’s determination.  As a result, he will suffer some loss to credibility and will diminish his authority and that of his office.  As his rulings are provincially rejected, the ownership aspects of those rejected rulings will also be lost in consequence.  And ruling that the CSA can own portions of public law was the whole idea behind his November determinations.  So the Minister will shortly be back where he started, just with less credibility than before he began.

RestoreCSA is willing to work with the Minister to recover the CSA organization as the regulatory entity it was originally Chartered to be.  The private club of Industry Canada however, is unwilling to contemplate a future without the clubhouse.  We are working to change the math.  The CSA will be restored when the Minister and his Metcalfe and the bureaucratic elites of Industry Canada decide to end the obfuscation and the political games and acclimatize to the reality that perpetuating corruption is more expensive than cleaning it up.

To help that process along, we have sent the following letter:

 

Dear Minister Moore;

Re: Determinations of Private Ownership of Public Law

We enclose the following five questions with regard to your recent determinations on the subject of private ownership of public law.

We note that on November 28th of this year, with reference to the Canadian Standards Association (CSA), you responded to an Order Paper question inquiring whether the “CSA owns any portion of Canadian law.”  With respect to ownership of law, your declaration to Parliament included three distinct and formal determinations.  First, the you ruled that the materials developed by CSA are “voluntary standards” rather than laws;  Second, you ruled that notwithstanding the determinations or Orders in Council of provincial legislatures, the Federal Government does not consider any portions of Provincial law which contain CSA developed material as legitimate or enforceable Provincial laws, and;  Third, you ruled that because legal statutes containing CSA developed material are not considered by the Federal Government to be legitimate or enforceable law, the CSA may remain the rightful owner of “the intellectual property and copyright” of their developed materials.

The CSA has developed or contributed to approximately 630 laws.  Your November 28th determination has the affect of delegitimizing and making unenforceable all 630 such laws.  We are unclear on which laws are thusly affected, therefore;

1) Could you kindly advise with a complete list of all of the 630 (or more) legal statutes which are no longer legitimate or enforceable due to inclusion of CSA material?

In your determination, you also noted that “hundreds” of other inclusions are furnished by “various” organizations.  It stands to reason that these other inclusions are likewise illegitimate and unenforceable as laws.  In this context therefore;

2) Could you kindly advise with a complete list of all of the other legislation which is affected as illegitimate or unenforceable due to inclusions of submitted or lobbied material in similar fashion to that of CSA?

While we have regarded the CSA as a regulatory entity due to its creation as a regulatory entity, its Federal Charter, the Act of Parliament which brought it into being, (etc.), we recognize that you have ruled on November 28th that the CSA does not have standing as a regulator and therefore may be considered as a commercial entity like any other for purposes of lobbying governments for passage of legislation.  In the context of your ruling, it appears that any commercial entity, ordinary as you have declared the CSA to be ordinary, does “maintain the intellectual property and copyright” of those portions of legislation which these entities have created and lobbied for.  The majority of public laws are therefore the private property of those corporations which lobbied for their passage into law.  These corporations are therefore at liberty to invoice the Canadian Government for royalties covering the usage and dissemination of, and compliance with, their laws / intellectual property.  In this context therefore;

3) Could you kindly advise whether your Department has undertaken a study on the affect of such wide scale private ownership of public law and, if so, whether this study may be released for our review?

Certain citizens, including your correspondent, have had occasion to contribute to legislation in Canada.  In this context therefore;

4) Could you kindly advise to whom we should direct our invoice for royalties payable on your usage and dissemination of, and your enforced compliance with, our laws / intellectual property?

Finally, we note that the absence of enforceable electrical laws in Canada resulting from your determination of November 28th does undermine the safety of the Canadian people and the stability and predictability of enforcement of what are now ad-hoc inspection processes.  In this context therefore;

5) Could you kindly advise whether your Department has a national standard for electrical safety to replace the nullified CEC or, in the alternative, whether your Department is working with provincial authorities on the rapid development of equivalent replacement provincial regulation?

Your urgent response is appreciated.

Regards,

Gordon Knight


Referenced Excerpt
Order Paper Response - Hansard - November 28, 2013

Q) (b) does the SCC believe that CSA owns any portion of Canadian law;

A) With regard to (b), CSA develops voluntary standards that address a variety of needs. CSA contributes to the Canadian regulatory system through its standards, which are referenced in federal and provincial regulations by regulators. There are hundreds of voluntary standards from various standards development organizations, SDOs, incorporated by reference in Canadian regulations. SDOs maintain the intellectual property and copyright of voluntary standards that are referenced in regulations.