Legal responses to COVID-19: The unsung work of legislative drafters

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Normally in the development of a bill there is a policy development phase, there is an approval phase of the direction being taken by the executive -- the cabinet – a drafting phase, and then there is the parliamentary phase. All of this has been really compressed. In the normal course of affairs, we work with the policy officers, the policy analysts, and they take that draft and they brief up. During COVID there was no time for that. We were often working directly with people who had decision-making authority. And we needed that. A regulation can be developped over a period of years. In this context it was a question of days. We worked, we worked hard. We worked long hours, days and evenings. I have never worked so hard in my life. The first emergency bill was, I think, sanctioned on March 23 or 24. A month before that there were 5 cases in Ontario, no cases in Quebec, a few, maybe a few more in British Columbia. And so the idea that we were moving towards something so drastic, I think a month before, or so, it probably wasn't in many people's minds. So naturally there was a kind of crescendo, a huge acceleration of all the measures that were to be taken. Things were being done very quickly in the COVID world. The government urgently wanted to get legislation in, in order to address certain things. Obviously the federal government had its jurisdiction and moved things forward with, for example, a lot of the benefits that were available to Canadians accross the country. It needed legislation to do that. And so we had to respond very quickly. The government would seek unanimous consent from the opposition parties to pass legislation in one day instead of a year, six months, whatever period of time it normally takes. I work for the regulatory section of Health Canada, so we were in the epicenter of the management of the pandemic. So from the first signs of the pandemic in China, our teams were called upon to intervene. When we wanted to repatriate people from the Wuhan region to Canada, we had to prepare texts to ensure that the people who were coming back would undergo quarantine. So from the beginning our legislative activity was affected by the arrival of COVID. It is important to understand the distinction between a bill, a regulation and other instruments that may be created by the government. On the one hand, a bill is a much more general framework that is prepared for analysis by parliamentarians, so it is a text that is tabled in parliament and that will be examined by parliamentarians with a view to adoption. Regulations are so-called delegated texts, meaning that when a bill is drafted, enabling provisions are included to allow a delegate, often the Governor in Council, to make legislative texts. Obviously, Parliament cannot deal with all the issues that arise in a given area. If we look at a particular example in the world of drugs, the Food and Drugs Act provides a very general framework and provides that certain regulations may be made by the Governor in Council. Once the law is passed, the Governor in Council can go ahead and make the regulations. So these are texts that are much more detailed and set out in detail how activity in a given area will be regulated by the federal government. To better understand the legislative services within the Department of Justice, it is important to understand that the Department of Justice is mandated to provide services to various client departments. For example, at Health Canada, they have needs for legal advice on legislative activities and the Department of Justice will provide services in this regard to client departments. It could be Health Canada it could be Transport Canada. We provide services in the area of legislative activities, both on the legislative side, for the drafting of laws, and on the regulatory side. So very specialized services to allow client departments, for example Health Canada, to create the legislative texts they need to put forward their public health policies. The drafting services are the equivalent of a central agency. In fact, it's a service provided centrally to the whole of government. So we write all the bills except tax legislation, and we work with the legal services units of the client departments who will represent the clients in the drafting room. They have a good understanding of the current regime and the changes that their clients want to make. Our first interaction is when we get assigned to a file and that typically means the department has contacted the Department of Justice, the Legislation Section, to let them know that they plan to introduce a bill or that they’ve received instructions from their Minister to start preparing the policy behind a new set of legislative amendments. We get notice of the file and we ask for the drafting instructions. What it is that we are being asked to turn into legislative language. Eventually those drafting instructions will be incorporated into a memorandum to Cabinet. All legislation put forward by the government is a Cabinet descision. These days we often get the drafting instructions ahead of time. While before they had been set in stone and approved by Cabinet. And we start going through them and we start figuring out what it is that we need to draft, what statutes need to be amended, what exactly the issue is, what our first take on how to do it might be. There are often some very useful conversations, high-level general conversations with instructing officers and their departmental legal counsel, so my Department of Justice colleagues who are embedded with the various client departments, about what it is they are trying to accomplish, what the legal structure is. Again, we don’t have any particular expertise in, say, the Canada Shipping Act; it’s my colleagues in the Transport Legal Services unit who live with that statute day in, day out. They’re aware of all the background law the international treaties that relate to shipping and all sorts of things like that and we need their expertise but we have an expertise of our own about how to structure ideas and how to structure legislation, and so we engage in conversations right at the beginning to figure out what is the best way forward. Eventually we get into the drafting room. There are four audiences in Canada in terms of legislative drafting. There are civilists and common lawyers, Francophones and Anglophones. For many years, for decades, laws were drafted mainly in English and then translated. So to improve the quality of the French version in particular, we have developed a system of legislative co-drafting, that is to say that both versions are drafted at the same time. So that there is one anglophone counsel, one francophone counsel on the file drafting together, drafting their separate versions in light of what the other person is drafting to make sure that it’s consistent and so that both counsel have access to the instructing officers and can ask questions about what the intended policy goal might be in any given case. This forces us to ensure full legal equivalence in the two versions. My colleague and I sit on one side of a table, we have our computer screens in front of us and we have a keyboard in front of us. On the other side of the table will be the instructing officers, the policy officers and their legal services lawyer. And it’s really between the three different areas – drafting, legal services, and the policy client—it's the interactions between all three of those that really lead to good legislation, having a good communication. On the one hand we have counsel that are specialized in drafting legislation and on the other we have counsel that are specialized in drafting regulations. Ultimately the activities are similar in many points, on the one hand the counsel that are specialized in legislation are more familiar with the parliamentary process. On the other hand are legislative counsel, they are there to support the departments in bringing forward regulations. Often those texts are complex and detailed so it is useful to develop an expertise in that given area in order to best support our different departments. There’s a Spice Girls song called Wannabe, I think it was their first song and it starts off by them talking to each other: “I’ll tell you what I want, what I really really want” -- “Yeah so tell me what you want what you really really want” and that is the question that we ask in the drafting room all the time, what do you really want to do here, what are you trying to accomplish? So we’re always trying to figure out exactly what it is that needs to be done in order to achieve the goal, the effect that the government wants to be achieved. We will spend an entire day in a drafting room. On a really urgent file we’ll spend an entire day and an evening and a night in a drafting room as we try to figure out what it is that we need to write in order to implement the policy in a sound legal way. Normally in the development of a bill there is a policy development phase. A phase of approval of the direction we are taking by the executive, the Cabinet that tells us yes, that is what we want. Then a drafting phase followed by a phase of revision of what we have done, a sort of quality control then at the very end, , and then there is the parliamentary phase. All of this was compressed enormously. So if we talk about, and I'm really talking about the first phase, the first bills in response to the pandemic. All that was compressed immensely. In terms of all that has to do with the development of the bills, there are certain phases that were obviously overlapping, they were superimposed. That is to say, doing policy development , drafting and seeking approvals at the same time. In a cyclical and constant way. Some of the bills were very focused. If we look at Bill C-13, there are 18 parts. 18 parts means 18 pieces of policy by different departments. But that means probably more than a dozen drafting teams working simultaneously. There was a kind of social tension or social anxiety that was widespread and we were working to help government, Parliament, to take some steps to alleviate, to remove some of the tension. In the normal course of drafting we work with the policy officers, the policy analysts and they take that draft and they brief up as necessary. During COVID there was no time for that. We were often working directly with assistant deputy ministers and directors general, people who had decision-making authority, and we needed that. We needed someone, to be working with someone who was able to make decisions about slight variations in policy. The kind of thing that perhaps the very highest levels aren’t normally engaged with but that are necessary in order to complete a legal rule and create a legal text. In the context of COVID-19 we did not have the luxury of time. All our best elements were put together in a drafting room and there were no drafting instructions. We had precedents, we had a very good understanding of the framework and we developped what was needed to respond to this specific situation. That was done in a very short timeline. A regulation can be developped over a period of years. In this context it was a question of days. We worked hard, we worked long hours. Days and evenings. I have never worked so hard in all my life. I can remember one time where we were under the gun to get something out and my director kept sending emails “Are you ready? Are you ready?” and I basically, I’ve never done this before, I had to tell my director and an ADM (Assistant Deputy Minister) to “Please stop talking to us! Let us finish and we will get to you in about five minutes if there are no more interruptions.” That’s very unusual, the government is a bit of a hierarchical organization. I would never tell an Assistant Deputy Minister to stop talking to me, normally, but needs must and we had to get something out and the best way to do that in that particular circumstance was for us to finish looking at the text and turn something out to get it to them as quickly as we could. It exhausted everybody. I mean our work days started at 7:00 in the morning and then around 5:00 p.m. my boss, the director of the legislation section who is really an incredible woman, Jackie Cool, and there we said, okay, now we're getting people into the office for last minute coordination work that at first we didn't know how exactly to do remotely, and so we had to do that. And then we would start another part of our work day at 6:00 p.m. in the evening until, we did it once until 4:30 a.m., one or two days later until 1:00 a.m. When preparing legislation, we need the support of our colleagues specialized in constitutional law. We need our human rights experts. We need the lawyer who knows the food and drug regime inside and out. We need the jurilinguists to help us. When things are moving at 100 miles an hour, we need all these people to be available and to collaborate. Collaborate in an efficient way. And it was this collaboration that impressed me. The efficiency with which all the stakeholders worked allowed for an extremely strong response from the Department of Justice and from the government more broadly and for me that was success. I saw it in the executive orders issued under the Quarantine Act. I saw it in the legislation under the Food and Drugs Act. I saw it in Bill C-13 that was prepared to create the legislation that was necessary to respond to COVID. It was a collaborative effort at all levels. To me, that's the biggest success. It was a moment of real public service. There was a very admirable side to it and I think that the people who took part, even though they were exhausted at the end, I think there was a sense of pride. I think that they also understood, we all understood at one point rather quickly that the situation was severe and that it was really necessary to redouble our efforts in the extreme to really give ourselves, to serve.

The COVID-19 pandemic has necessitated unprecedented action from governments around the world. In Canada, significant measures were put in place to limit the impact of the pandemic on Canadians. Most of these measures required the intervention of legislative drafters who urgently prepared the texts of the laws and regulations that enabled governments to take action in response to the health crisis.

This JuriDoc exposes the behind-the-scenes work of these drafters who work tirelessly at the service of our governments, and whose contributions are fundamental to both democracy and the rule of law in Canada. Through interviews with lawyers working for the Department of Justice Canada, this video provides an overview of the legislative and regulatory processes, presenting the working methods used by the Government of Canada in the development of legislation and regulations. It offers unique insight into this little-known legal practice and documents how these experts participated in the collective effort to respond to the COVID-19 crisis.

This video is the first in a series of posts that will give voice to the lawyers who were on the front lines of Canada’s legal response to COVID-19.

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