10. On Guard for Thee: Why Regulation Matters / Pourquoi les règlements sont importants.

(Policy papers 2012-2013)

It’s simplistic to view all regulation as evil. Conservatives regularly take aim at regulations as part of their economic plan for smaller government. But these measures are intimately linked to the well-being and safety of Canadians and our country’s environment. Like other rules and programs, regulations should be assessed for effectiveness and efficiency, but eliminating them blindly or for purely ideological reasons is not in the national interest.

Considérer tout règlement comme diabolique est une vision trop simpliste. Les Conservateurs visent souvent les règlements dans leur projet économique de créer un gouvernement plus petit. Mais ces mesures sont intimement liées au bien-être et à la sécurité des Canadiens et de l’environnement de notre pays. Tout comme les autres programmes et règles, les règlements devraient être analysés afin de déterminer leur efficacité, mais il n’est pas dans l’intérêt national de les éliminer aveuglément pour des raisons purement idéologiques.



Smart, competent government should ensure clear national safety standards across a wide range of policy areas. Whether you live in Lethbridge, Alberta, or Rimouski, Quebec, you should be protected by the same minimum standards for clean water and air, safe food and drugs, secure transportation and borders, and products free of toxins. Standard setting should be supported by high-quality scientific research and robust investigatory and enforcement agencies. In times of austerity, this is one area that in principle must be sheltered from budgetary cuts, although greater efficiency may be possible. Services can be contracted out to private operators or provincial agencies, so long as they work under appropriate oversight and national standards.

Unfortunately, the record in this respect is unclear but less than encouraging. A federal government decision in the spring of 2008 to reduce meat-packing inspections in favour of greater self-regulation and self-monitoring (the Compliance Verification System) was tragically followed by a listeriosis outbreak in the summer that led to more than 20 deaths. An announcement in June 2012 of planned improvements to food inspection, including bigger fines for violations, is reason for cautious optimism on this file at last. But 12 years after the Walkerton tragedy, in which seven people lost their lives after drinking water tainted with E. coli, we still await long-promised national water standards. In the meantime inadequate standards result in a steady stream of boil-water advisories and health scares, most recently on the Aboriginal reserve of Attawapiskat. Across-the-board cutbacks in the 2012 federal budget do not inspire confidence that the national government is interested in approaching health and safety regulations in any effective way. Instead of downsizing it, the government should greatly expand national scientific capacity[12] and build up collection and analysis of the most up-to-date scientific and technical information.

We need to be particularly proactive in eliminating toxins from our environment. There’s been progress toward removing BPA from plastic bottles and baby toys, but it’s slow. University of British Columbia law professor and author Joel Bakan argues persuasively that we cannot really trust the government and industry system that is supposed to be protecting us because it is operating on the basis of a “presumption of innocence for industrial chemicals and pollutants.” Many industrial chemicals are known carcinogens, neurotoxins, and hormone disruptors. According to Bakan, we need to move from a model of absolute proof to a precautionary one, requiring manufacturers and importers to demonstrate that a particular chemical can be used safely or is the safest alternative available.

The Auditor General of Canada has criticized the state of federal air safety regulation. Among other things, the federal government failed to inspect two-thirds of so-called high-risk aviation companies in 2010 -11, and most of the inspections it did carry out were flawed. Successive governments have failed to address safety concerns, some of which are more than 10 years old, ranging from pilot fatigue to bad runways. The government still refuses to say how many inspectors it needs to do the job properly, even as it cuts back the budget of Transport Canada. We all want to prevent future tragedies. Regulators must have the tools they need.

Some cutbacks are clearly motivated by political concerns rather than promotion of health and safety. For example, the 2012 budget simply eliminated the Assisted Human Reproduction Canada agency and associated regulations after the Supreme Court of Canada determined that the provinces have overlapping regulatory authority with the national government. But that decision should not be an excuse to abandon the entire field of assisted reproduction to the provinces. Not all provincial and territorial health regulators are able to assure adequate standards of care for Canadians who use assisted reproduction technologies and fertility clinics, making national standards crucial. At the very least, Ottawa could require fertility clinics to publish transparent success rates, develop a common policy regarding multiple embryo transplants, support a national donor registry, and compile information for people born from donated eggs or sperm. National action is also required to clear up several confusing provisions of the criminal law, such as the fact that it is still illegal to pay for donor eggs or sperm, or pay a surrogate mother, while it is legal to buy sperm from American donors and import it, and it is legal to reimburse donors for their expenses.

Many everyday consumer products and services need national regulations. Both consumers and industry in the telecommunications sector are calling for strong national standards. Rogers Communications, Canada’s largest mobile service provider, has proposed a mandatory national consumer protection code to replace the growing hodgepodge of provincial regulations for wireless services. Industry Canada’s Office of Consumer Affairs provides useful information on safety recalls on children’s toys, but it is seriously understaffed. The Financial Consumer Agency of Canada (Finance Canada), the Consumer Product Safety Directorate (Health Canada), and the Road Safety Recalls Database (Transport Canada), among other federal agencies, do good work and should be better supported.

The national government’s approach to environmental regulations has been an area of particular concern in recent years. We have very little easily accessible public information about the efficiency and effectiveness of environmental enforcement, whether under the Canadian Environmental Protection Act, the Fisheries Act, or the Species at Risk Act. What little evidence is available indicates insufficient investigations, rare prosecutions, and even rarer convictions. Further, cutbacks to Environment Canada’s budget for gathering scientific data will make it particularly difficult to both undertake and pay for the long-delayed oil sands environmental monitoring plan. This is both unprincipled and irresponsible.

The larger issues in environmental policy are our current government’s unbounded enthusiasm for resource development and its failure to take climate change[12] seriously. In environmental regulation, these attitudes are evident in the recent changes to environmental assessments and reviews.

The latest amendments to the Fisheries Act are equally short-sighted and unprincipled, significantly diminishing the protections for fish habitats in streams and rivers. The new language prohibits activities that affect fish habitat only if they cause “serious harm” to “recreational, commercial and Aboriginal fisheries.” The proposals have been denounced by the scientific community, in a letter signed by more than 600 scientists across the country, as jeopardizing “many important fish stocks and the lakes, estuaries and rivers that support them.” A clearer expression of the national interest would be hard to find.

The 2012 budget’s measures streamlining environmental assessments for resource development proposals also fail to promote the national interest in sound environmental stewardship. Now, under the new “one project, one review” policy, only a single provincial environmental assessment will generally be performed, as long as the provincial standards are equivalent to federal standards. If federal assessments are done, they must be completed in two years. On its face, this change might seem to be a generally acceptable basis for moving forward. But it was preceded by no serious discussion of the national role in promoting sustainable development of our natural resources, and no effort to help the public understand how the federal government is collaborating with the provinces to harmonize assessment efforts, where appropriate, in a way that ensures the highest possible standards rather than a race to the bottom. And what are the implications of setting a 45-day limit for the federal government to decide whether an assessment is needed for major economic projects? Rather than engage citizens in the debate, the federal government went in the opposite direction and lumped all these important changes into an omnibus budget bill to force their passage through Parliament.

When there is no transparency and no democratic debate, it is justifiable for Canadians to conclude that the streamlining of environmental reviews is primarily aimed at dismantling the environmental review infrastructure for narrow ideological purposes, rather than improving the process in the public interest. Why should we not believe that the federal government has abdicated its responsibility for matters of clear national concern and interest and effectively abandoned the entire field of environmental assessment to the provinces?

No one has explained, for example, what conditions would lead to a federally appointed environmental assessment board. A federal board could be more impartial in circumstances when pressures for local development may influence a provincial assessment. This is not just a hypothetical scenario: in November 2010, the federal environment minister, Jim Prentice, vetoed a proposed open-pit mining project near Williams Lake in the B.C. Interior that had previously been approved by the B.C. government. The federal minister said the project’s adverse environmental effects would include turning Fish Lake — once featured in a provincial tourism campaign — into a tailings dump. The mining company has now submitted a new proposal that requires a new environmental assessment.

Regulation in itself is neither virtuous nor evil, and neither the federal government nor the provinces have a monopoly on making good ones or implementing them properly. Getting it right is what matters.