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Vendredi, 26 Mai 2017 09:09

by Terrance Hamilton Hall (Amherstburg, Ontario)*

Accessibility to the law is a policy goal of the present Canadian federal government. Two suggested improvements to accessibility would be a systemization of administrative hearing procedure and a codification of federal law as a whole.

A. Toward a Federal Administrative Procedure Act

Of the plethora of federal agencies (boards, commissions, tribunals), 30 hold hearings with a diversity of procedure. Past efforts have been made to systematize hearing procedure. The Law Reform Commission of Canada examined procedure in a series of papers and even drafted legislation in 1982 (1). The Department of Justice in 1996 made a Proposal with Guidelines (2). Recently the federal government passed legislation to consolidate the support services for 11 administrative agencies (3). Undoubtedly agency chairpersons would argue that each of their agencies is unique and deserves its own procedure, but there is a surprising amount of commonality in their various procedures that lends itself to one, more accessible, piece of legislation.

B. Toward a Canada Code (and a NAFTA Set of Laws)

Codification does not change laws but merely reorganizes them for increased accessibility. Codification is not a concept foreign to the Canadian legal systems.

English Common Law, received into Canada, had been the subject of early attempts at codification such as in Sir Edward Coke’s 1628 Institutes on the Lawes of England and Commentaries Upon Littleton (Sir Thomas Littleton’s Treatise on Tenures), followed by Sir William Blackstone’s Commentaries on the Laws of England in 1765-69.

The best-known early Canadian codifications have been the Civil Code of Lower Canada (Code civil du Bas-Canada) of 1866 and the Criminal Code of 1892. The Civil Code drew upon the French Napoleonic Code of 1804, the Louisiana Civil Code of 1825, and was suggested as a format for Canadian law in 1867. As for the Criminal Code, the Fathers of Confederation intended criminal law to be federal, perhaps as a unifying force out of the pre-Confederation muddle. Other later codes have been passed into law, such as the Canada Labour Code.

Presently, Canadian federal laws are organized alphabetically and not by topic, creating difficulty in finding relevant law. To increase accessibility, Canadian federal law could be organized using the U.S. Code’s system of 54 titles. The resulting product, the “Canada Code,” combined with the U.S. Code, might be regarded as a first step toward a NAFTA set of laws.

Laws are made for and on behalf of the public and should be understandable and accessible to them. An Administrative Procedure Act would promote public participation by demystifying hearing procedure, making it open and transparent. A Canada Code that collects federal laws into topics would eliminate their present alphabetical scatter without changing any law. If the Canada Code used the American title system, then the Canada and U.S. Codes together could be considered a NAFTA set of laws de facto and, perhaps in the future, de jure. Moreover, a Canada Code could be a "Canada 150" accomplishment for the legal community in this celebratory year.

*M. Hall is a former senior civil servant in the Ottawa bureaucracy and is trained as a legislative draftsman. He holds a B.Comm., LL.B., LL.L., LL.M. and a M.A. and is a member of the Quebec and Ontario bars. He is the author of Canadian Estate Planning Made Easy.

(1) Working Papers 25 & 26: Independent Administrative Agencies (Ottawa: Law Reform Commission of Canada,
1980 & 1985); Codification of Administrative Procedure, unpublished, (Hall, Marvin, 1982).
(2) Proposal For A Federal Administrative Hearings Act (Ottawa: Dept. of Justice, 1995 revised 1996).
(3) Administrative Tribunals Support Service of Canada Act, SC 2014, c 20, s 376.

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