Bill S-12 (Historical)

Incorporation by Reference in Regulations Act

An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations

This enactment amends the Statutory Instruments Act to provide for the express power to incorporate by reference in regulations. It imposes an obligation on regulation-making authorities to ensure that a document, index, rate or number that is incorporated by reference is accessible. It also provides that a person is not liable to be found guilty of an offence or subjected to an administrative sanction for a contravention relating to a document, index, rate or number that is incorporated by reference unless certain requirements in relation to accessibility are met. Finally, it makes consequential amendments to the Statutory Instruments Regulations.

Multilateral Instrument in Respect of Tax Conventions Act

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Mr. Speaker, it is always an honour to stand on behalf of the citizens of Central Okanagan—Similkameen—Nicola. I will be sharing my time with the very capable member for Calgary Rocky Ridge, who in addition to his duties as member of Parliament, also stands as the shadow minister for national revenue. Even though this is a finance bill, ultimately it is the CRA and the Minister of National Revenue that will become accountable for this. I know he will have many things to say on that end of it.

The two are very important, because, for example, in 2013-14 and particularly in the 2014 budget, the former minister of finance, the hon. Jim Flaherty, had opened consultations on the subject of base erosion and profit sharing. He did this specifically so he could go to the G20 and be able to make proposals and participate fully in those discussions on base erosion and profit sharing, which we are the beneficiaries of today.

I must give the government a little credit for taking its ideological blinders off. It does not seem to say that this is a Harper initiative. It has not blamed the former prime minister yet. I certainly hope that as we go through my speech today it will recognize sometimes there is much need for a new government to carry on the very good work of a previous government. We should not always judge something simply because of who had started an initiative.

During my time as the parliamentary secretary to the president of the Treasury Board in the previous Parliament, we worked on some pretty technical legislation from time to time. I will admit to having a certain affection for regulatory related bills that could provide benefits to Canadians and Canadian industry, particularly if they are done in such a way that is harmonized to reduce red tape. We recognize that Canada is increasingly becoming a competitor on the world stage, and we are likely to see more international trade, not less.

We must also recognize that with that come challenges. As one example, we have a situation where over this past summer the Liberal government was forced to modify its national carbon policy. Basically, it provided more carbon tax relief to some of Canada's biggest polluters. This is not unlike what happened in my home province of British Columbia, where greenhouse growers and cement manufacturers, to name a few, have been given so much in subsidies, exemptions or other kinds of carbon tax relief there is actually a word for it. It is called “carbon leakage”. It is defined in the 2018 B.C. NDP provincial budget as “...industries that compete with industry in countries that may have low or no carbon price. If BC loses market share to more polluting competitors, known as carbon leakage, it affects our economy and does not reduce global greenhouse gas emissions.” This is the same reason this Liberal government provided increased carbon tax relief to big polluters, because, ultimately, they compete with industry in the United States and elsewhere that do not have a nationally imposed carbon tax.

We are not here to debate the carbon tax. I am using it as an example because it illustrates the importance of being competitive. As we all know, being competitive in the corporate world often comes down to the bottom line, and we know how much the bottom line bears on our businesses, at least on this side of the House, as the Conservative Party has a very strong understanding. This creates a situation where, ultimately through creative, and some would argue dubious accounting practices, some companies can find creative ways to transfer wealth created in one country into another country with a much lower tax regime. Some countries even make a point of creating a regulatory and financial environment that actively encourages this sort of behaviour.

How do we fix that? Obviously, one approach would be an attempt to lower taxes to a level on par with some of these countries to stop the outflow of revenue. Many refer to this as the “race to the bottom” approach.

There is possibly another solution, which brings us to Bill C-82, which we are debating here today. What if we could get as many countries as possible to sign on to a common regulatory fiscal taxation approach that would better protect countries from this problem? Having similar fiscal language with respect to taxation would help reduce the regulatory red tape burden more than if we went at it piecemeal.

Not to mention there are greater efficiencies in adopting the kind of universal standard with OECD countries which sign on as opposed to having the same individual countries try to collect and negotiate separate tax treaty agreements among themselves.

To be fair, this multilateral instrument allows for Canada to quickly and efficiently update its agreements so that both the CRA and the tax authority in the adjoining country will immediately start to proceed, as the multilateral instrument has said, through the existing tax treaty. It is a very efficient way.

This is called, obviously, the multilateral convention to implement tax treaty related measures to prevent base erosion and profit shifting. Because that is a mouthful, we will simply refer to it as the MLI agreement. This work was started with the former Conservative government and I am pleased that the current government is continuing to work on this to the point we are here today debating the ratification agreement. Again, the agreement covers 75 jurisdictions worldwide and it is expected in the near future it will be over 100. That is a good thing.

While there are many benefits to the agreement, I should say it is not without some criticism. Some have suggested adopting the OECD MLI would result in the loss of tax autonomy for the country in question; however, I would point out there are provisions in the MLI agreement that allow countries to opt out of certain parts of the MLI at their discretion. This, by extension, can allow countries to still enable a specific tax structure but ultimately might provide unique tax benefits in certain areas. While some may consider that to be a bad thing, I also believe having a framework that allows some competitive incentive that keeps overall taxation levels in check is an important tool for countries to have.

Ultimately, this agreement is more targeted toward those who transfer money between countries for the sole purpose of avoiding taxation. Some people might say that some of this might be borderline tax evasion and in certain cases there may be, but let us be clear that Canada already has existing laws on tax evasion. That is not legal and the CRA should pursue those people who push the envelope much too far and know they are past the envelope.

I believe this agreement is more targeted toward specially transferred money between countries for the sole purpose of evading. In balance, I believe that is positive. Some have said that these types of agreements have not been successfully implemented in Canada before, but I would disagree with that. In the previous Parliament, we passed Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. That bill proposed the ability to import standardized regulations from other jurisdictions so we have parity here in Canada. That makes it much more convenient for Canadian manufacturers as it can be extremely costly in addition to meeting a plethora of different standards in other jurisdictions.

Getting back to the MLI, time will tell the overall effect of this. The challenge right now is that some of these tax avoidance schemes are entirely legal, so this agreement creates a taxation environment that would provide common tax measures that will help to eliminate abusive taxation policy.

Before I close, I would like to take a moment and relay one concern I do have. As we know, the United States is not a signatory partner to this agreement. Given the close relationship in industry between our two countries, with many companies having U.S.A. and Canadian ties, there could be long-term impacts down the road. Obviously we also see concern over NAFTA where we will need to be vigilant in monitoring our competitiveness with our neighbours to the south.

Overall, I believe the bill is an important one and moves Canada in the right direction in parity with the majority of our G20 partners. I will be voting for the bill and believe that added scrutiny at committee stage, particularly on some of these thorny points, will be beneficial. I appreciate the House hearing my thoughts on the bill today.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair. I won't be too long on this.

I don't know if it will be friendly or not, but this is about consistency with what has actually been passed in the House of Commons. There was quite a debate on this in the House of Commons, to get it through. It went through the several readings, then it went through committee, then it came back, and now it's in the Senate. I would hate for the Senate, in it's consideration of this bill now, to ask why a committee of the government is voting against the definitions it proposed, which passed in the House of Commons.

It will be kind of interesting, actually, when the Senate finds out that we have basically gone against the human rights definition proposed by the government previously. I think they're going to have an interesting conversation. Questions will probably arise from the Conservatives in the Senate as well. I won't say that we unfortunately don't have Senate members, because we've chosen not to have Senate members. That's another discussion, and I'm not filibustering, so I won't get into that.

I do want to point out though that as this bill is travelling through the Senate it's going to be interesting to see how they actually see this, and whether or not this could mean some amendments to the bill coming back to the House of Commons. Then the House of Commons will have to deal with it. If the Liberals are being inconsistent with disability, gender, and all those things, as well as the things that I've proposed here on a previous Bill S-12, it will be rather interesting to see whether or not that has consequences. I'm getting a little tired of trying to do favours for the Liberals here, but at any rate, I think it's very important.

Now the distinct difference in this, in terms of mental and physical disabilities, besides the issue of it being consistent, is that there has been a lot of discussion in society about mental illness and its affect on the workplace. In fact, you've even seen corporations take that up as well, by raising funds and so forth. There has been a better distinction with regard to mental illness and awareness. Before, it was seen as shame and not coming forth. Now we've seen stars and celebrities come out with mental health expressions in terms of their own personal struggles. There is one Canadian, obviously, Howie Mandel, as well as others who have chosen at personal risk to come forward and be champions of this. Now it's getting a little bit more notoriety than ever before in the sense that an awareness is there.

Awareness is also taking place in the school systems. There was a lot of bullying taking place in the past that was often related to some mental illness problems, which can resonate even from the home. There's also a whole series of problems that we now have with the use of medications and where they go. This is an issue that's complicated, because it can affect getting access to medications that are correct for a person, and the use of those medications. One of the interesting things to watch, sociologically, over the last number of years has been the progression of mental illness, now being associated with the workplace.

Why I think this is so important for the boards of directors, and for the expression of this, is that it will show again that the most important thing is action, not words. Action on this will actually get corporations to identify those champions, if they want to self-identify. It won't make them do it if they don't want to, but they will self-identify with the mental illness, and it will count on the board. Say, for example, Howie Mandel or somebody else wants to go on a board and self-disclose, he'll be able to do that and that will show role models. One of the biggest things that has taken place with regard to any type of piercing of the establishment of rule-based systems that are racist, sexist, and discriminatory are role models.

Having this in the bill, in terms of medical and physical disability, will also be an identification source that we won't just pass on to regulations. For example, even here, if it weren't mentioned, it could potentially go unmentioned in the regulations. It's one of those ones that shows as a modernization and is very important.

Again, we can't underestimate how this bill can enforce legislation and information. We've heard testimony over and again, specifically, that having quantifiable information will lead to that diversity.

I'll leave it there, Mr. Chair. I'm hoping that somebody else might want to chime in on it, but again, I think it shows leadership.

Right now we have all these days in ribbons on the Hill. We have so many ribbons that we wear for different things. One of them is for mental illness. Here's a chance for us to do something about it, so let's do it. All we're talking about is including this in the motion. The main motion is yet to be discussed.

This is the subamendment we're talking about, so it doesn't mean that you are agreeing that it will go forward just yet. You're asking for its inclusion.

Incorporation by Reference in Regulations Act

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, after I was elected in 2011 by my constituents in Gatineau, to whom I am grateful for this immense honour, our then leader, the great Jack Layton, did me the honour of naming me co-chair of the Standing Joint Committee on Scrutiny of Regulations, a joint committee of the Senate and the House of Commons. I admit that I wondered what a committee like that was all about.

I heard the member for Malpeque say that he would rather watch paint dry than attend a meeting of that committee. In my opinion, members of that committee have to be passionate about the law and have an immense respect for our role as legislators.

What is more, that role is not just about creating laws and bringing them into effect. It is also about making the related regulations. The law is one thing, but that law often requires the creation of dozens of regulations for its implementation.

I want to thank the members of the committee, but especially all the experts who guide us in that committee. However, I no longer have the pleasure of being a member of that committee. It is true that I wondered what that committee was all about. In reality, I also wondered at first if I was being punished, but I realized that I was not. My leader at the time felt that my background as a lawyer with 30 years of experience, which I sadly admit in the House, made me a prime candidate to co-chair the committee.

I saw first-hand the thoroughness of the experts and of the departmental and House staff who provided support as we carried out this difficult work. Every week we had a foot-high pile of documents to examine during a two-hour committee meeting, and I am hardly exaggerating. One might have said it was challenging and rather dry, but it was necessary work nonetheless.

I would like to give a little background. Members forget that Bill S-2 was originally introduced in 2012 by the Conservative government in the form of Bill S-12.

At the time, as deputy justice critic for my colleague from St. John's East, our justice critic, and as a member of the Standing Joint Committee on Scrutiny of Regulations, I also had the great pleasure of being responsible for Bill S-12.

From the beginning I have been saying that this bill is a sleeper. I am pleased that we have another opportunity to debate it, although it is at third reading. We did not have much time to debate second reading and report stages, and there were not many meetings of the Standing Committee on Justice and Human Rights.

My colleague from La Pointe-de-l'Île continues the work on Bill S-2 that I had started on Bill S-12, and I thank her for that. She took this on during the study in committee and at all stages in the House.

I called this bill the sleeper of this legislature because this is a bill that could have a huge impact on the lives of Canadians. I do not get the impression that members on the Conservative benches have taken it as seriously as they should have. I said this when I spoke at report stage. It has not drawn much attention from the media, aside from journalist Tom Korski at Blacklock's Reporter. What he wrote in 2012 might have been what first tipped me off.

The title of the article was:

“Senate Quietly Ends 171 Years Of Scrutiny With Bill”.

The article said:

An obscure Senate bill will end 171 years of open scrutiny of regulations governing virtually every aspect of the economy and national life, critics say.

The government legislation…would permit the introduction of new rules without plain disclosure of all related laws—

It would end a practice that predates Confederation.

At the time, some senators expressed their opinions, including Senator Harb, who has since retired and is dealing with other problems.

He said:

“This is a big, big problem. There is little awareness of this bill. If regulated industries become aware of what is in this bill, there will be outrage.”

Senator Marjorie LeBreton, a senator that the Conservatives might be more inclined to listen to and the government leader in the Upper House at the time, refused an interview.

The government bill was introduced without fanfare in the Senate on October 17, 2012.

I find this next part interesting. It quotes Mac Harb:

In the House of Commons too many MPs ask questions. In the Senate there are many new senators who do not understand the history of these procedures. The Senate is a dull place. I think they are trying to force it through.

The article explains the practice. It states:

Under a practice that dates from 1841, all federal rules and decisions must be plainly published for public scrutiny to provide Canadians “their rightful access to the laws and regulations that govern their daily lives,” according to the Canada Gazette Directorate, the federal agency that prints all details of legislation.

Under bill S-12, An Act To Amend The Statutory Instruments Act [now Bill S-2], regulations could be delegated—

—and that is also important—

—from unpublished sources “as amended from time to time” in a little-known practice called “incorporation by reference”....

“This cuts down on the onerous amount of material that would have to be included in a number of regulations,” a bill supporter, Senator Linda Frum, told the Upper House.

That, I would say, is probably the main argument for the government—to really trim down and help out—because it is true that there are tens of thousands of pages per year. I do agree, but we have to do it in a correct fashion.

Still quoting Senator Frum, the article continues:

“If a regulation provides that hockey helmets must be manufactured in accordance with a particular Canadian Standards Association standard, the effect of that reference is to make that standard part of the regulation without actually reproducing the text of the standard in the regulation itself.”

That seems to make sense.

It continues:

In debate, Senator Harb called the bill “a blockbuster” that would permit the government to enact new regulations without public scrutiny or parliamentary approval.

As quoted in the article, Senator Harb said:

“Once we lose control, things may very well go off the rails.”

I will not read the rest of the article to the House. That was probably the first little thing that set off alarm bells with respect to the study of Bill S-12 at the time, which is now Bill S-2.

It may be the price the government opposite is paying for the lack of transparency, collaboration and co-operation on the part of the government and its senior members. That has been prevalent and we need only think of the 100 gag orders that have been imposed. How many times did we present reasonable amendments in committee in an attempt to improve bills? How many times did Conservative colleagues sitting on a committee tell us that it made sense? How many times did we move motions that committee members seemed to agree with, only to see that the members on Conservative benches had been told what to do by the Prime Minister's Office or the office of the minister concerned?

In the long run, it means that we will be a little more cautious in our analysis. As I have often said every time new Conservative justice bills were introduced, the devil is in the details. Often, it is just smoke and mirrors. However, sometimes, in a large bill with many pages that seems to make sense, a small provision destroys all the political capital that the government could have earned. When we were young and we did something wrong, our parents would tell us that we had lost their trust and that we would have to earn it back. The official opposition is finding it very difficult to trust this government because of what it has done. I am thinking of access to information, for example, the reports and the fact that people sometimes have to wait four or five years to obtain the information they requested. We are here for Canadians, but the Conservatives do not often seem to think so.

I will now move on to another extremely important aspect, which is the law itself. Bill S-2 contains a variety of problems. It amends the Statutory Instruments Act and makes consequential amendments to the Statutory Instruments Regulations. I am not sure whether everyone has carefully read the act amended by Bill S-2 and before that by Bill S-12. However, subsection 3(1), which concerns the examination of proposed regulations, is extremely important. It is the key to why the House and the Senate created a joint committee on scrutiny of regulations. This stems from the very important responsibility of ensuring that our regulations are consistent. It often felt quite trivial at the Standing Joint Committee on Scrutiny of Regulations. The differences lay in the wording and the words used, involving either translation and bilingualism issues or errors in the French or the English versions. More often than not the errors were in the French version, because most legislation was developed in English and there were translation errors. We saw how long it took for the experts supporting us in committee to obtain information. I am sure that the Parliamentary Secretary to the President of the Treasury Board, if he is sincere, will admit how many good kicks, some of them hard, we had to give to the more resistant departments—I will not name the Department of the Environment or the Department of Transport—which took an inordinate amount of time to reply to our experts, who wrote to these departments on behalf of the committee for information on how they drafted their regulations. We need to remember the importance of regulations when we see a process that will bypass all that. With all due respect for my friends across the way, that is the impact this bill will have.

We need to remember the importance of regulations. We do not talk about it often in the House, and that may be why there is a kind of polite disdain. When I was trying to get a teeny tiny budget for the joint committee, a Conservative member told me in another committee that it was probably the most useless committee. That is what some Conservative members think of the Standing Joint Committee on Scrutiny of Regulations, and I am terribly worried about that. I still have not gotten over that comment. I know that many people share that opinion because the committee's work seems so boring. One has to really love the law, and one has to love reading regulatory texts. I know that the Parliamentary Secretary to the President of the Treasury Board is like me: he adores that kind of work. It is essential work.

We will not have many more opportunities to talk about Bill S-2, which we will vote on later this afternoon. The bill number indicates that it is from the Senate. It has already gone through the Senate process before coming here. That is another problem I just cannot get over. I have already commented on this issue many times. If this bill is as important as they say it is, I do not see why it was brought in through the back door.

Section 3 of the Statutory Instruments Act states the following:

3. (1) Subject to any regulations made pursuant to paragraph 20(a), where a regulation-making authority proposes to make a regulation, it shall cause to be forwarded to the Clerk of the Privy Council three copies of the proposed regulation in both official languages.

(2) On receipt by the Clerk of the Privy Council of copies of a proposed regulation pursuant to subsection (1), the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that:

(a) it is authorized by the statute pursuant to which it is to be made;

(b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made;

(c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and

(d) the form and draftsmanship of the proposed regulation are in accordance with established standards.

It is therefore important that regulations respect the Constitution and the charter just as much as laws. I still have some concerns, because this government always passes bills after ignoring the views of experts who tell us repeatedly in committee that the bills have serious shortcomings in that they are unconstitutional or they are not consistent with the charter. The last thing I want to do is give this government a blank cheque when it comes to regulation by reference.

It is worth noting that incorporation by reference is not illegal. That is right; it is already happening. However, I think there have been 160 unauthorized delegations by reference in enabling legislation, and the legality of that procedure is still a subject of dispute between the Standing Joint Committee on Scrutiny of Regulations and the government or specific departments.

The government did not take any chances, just as it did not take any chances when it destroyed the gun registry data. It introduced clause 18.7, what I call a pardon provision, which retroactively deems all incorporations by reference valid.

Incorporation by reference usually has to be authorized by enabling legislation. In other words, when parliamentarians pass such legislation, they are agreeing to give this power to the minister or the Governor in Council. However, it is still the law that governs incorporation by reference.

With the stroke of a pen, Bill S-2 blindly gives this power away without evaluating the need to proceed with incorporation by reference under certain laws. It is a way of neutralizing the power of members of Parliament to guarantee to their constituents that things are done properly. This bill gives the government carte blanche to do almost anything it wants. The Conservative government does not have a stellar record when it comes to that sort of thing, though. It is extremely worrisome.

I will not have the time to raise all my concerns, but, in short, I would say that the greatest flaw in Bill S-2 is the notion of accessibility in clause 18.6.

It still bothers me that the committee members rejected the amendments by my colleague from La Pointe-de-l'Île, which could have clarified some concepts and nuances concerning the issue of retroactivity. It disgusts me that something that was illegal is suddenly legal because the government revisited the past. That is the wrong thing to do.

There is also the matter of the documents, which my colleague spoke about earlier. It is a rather vague term that should have been more specific. With regard to bilingualism, I congratulate the government on its international treaties, but we all know that some of those regulations will find their way here and will not be in the language of our big, beautiful country's other founding people. I am extremely worried about the inherent rights of Canada's francophones.

We know full well that some treaties are very long, and I do not think that the regulations will be translated into French. I get the impression that taxpayers will pay the price for this.

There are thus some troubling aspects, and I would have liked it if we could have taken a little more time to examine this bill. I imagine that it will be up to the next government—and I hope with all my heart that it will be an NDP government—to do the work that this government refused to do. We were seeking to improve the bill with the amendments that we proposed in good faith.

I was going to say that this will be my last speech in the House, but it seems that the government is making me give another one this afternoon. I will therefore save all my thanks to the extraordinary people of Gatineau who have given me their unconditional support since 2011 until later this afternoon when I give my next speech. In the meantime, I am happy to answer any questions.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to ask some preliminary questions.

Am I wrong to say that Bill S-2 is an exact copy of Bill S-12? It deals with exactly the same thing, not a comma has been changed.

You say that you are just putting on paper what already existed. I have read the Senate evidence and debates. Correct me if I am wrong, but I read that dynamic incorporation by reference has been used 170 times since 2006 and that, in most cases, this was done without express authorization from Parliament.

I imagine that is the motivation behind clause 18.7. It reads:

18.7 The validity of an incorporation by reference that conforms with section 18.1 and that was made before the day on which that section comes into force is confirmed.

Clause 18.7 is a default clause, in a way. According to the department's interpretation, things have been done correctly and legally. However, you will all agree that the Standing Joint Committee on Scrutiny of Regulations does not necessarily share that opinion. According to the committee, the enabling legislation must specify the express right to use dynamic incorporation by reference. Also according to the committee, I believe that is the way in which we must proceed rather than coming up with a bill like this, which is more of a hodge-podge that makes it possible to act in that way basically at any time. I will not say that it can be done in any way, but it can be done at any time, as long as the criteria in Bill S-2 are met.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I am very glad to be continuing the discussion on Bill S-2.

I would also like to thank the government for today's proceedings. If I have interpreted this correctly, we might have been hearing debate on Bill C-41, the South Korea trade agreement, which would have been at report stage, and it was known that a member of the House, the member for Saanich—Gulf Islands, as an independent, wanted to move some report stage amendments. It strikes me that the reason we are not debating Bill C-41 is to give this member the chance to move those amendments later. If that is the rationale for the government changing the orders of the day, I would like to thank it for that act of collegiality.

We have been hearing from both the Parliamentary Secretary to the Minister of International Trade and the last speaker, though they did not themselves use these words, that this piece of legislation is a form of house cleaning for the essential plumbing of the legislative and regulatory system, by virtue of making it somewhat clearer, or at least putting down rules, about how incorporation by reference occurs. Of course, incorporation by reference, for those tuning in to these proceedings for the first time, refers to a drafting technique whereby a legislative text or regulatory text includes external material. That is material that has been expressed elsewhere and is referred to in a general way, but all of its specificities are thereby understood to be incorporated despite not being enumerated specifically in the regulation or the legislative provision.

One might refer to an annex to an international treaty, which may be 10 pages or 100 pages. Rather than rewriting that annex, it is referred to and is understood that all of the text in that annex is thereby incorporated into the legislative provision or regulation that makes reference to it. That is incorporation by reference.

It is important to note that the sources that one can refer to and then incorporate by reference do not appear to be limited by this bill, and generally in practice they are not. They can include provisions from the very same text later in the text, provisions from another legislative text from the same jurisdiction, legislative text of another jurisdiction, which could include the provinces, for example, or a territorial government. It could even include a foreign jurisdiction. We could refer to some text in the United Kingdom's legal system that would be viewed as incorporated by reference. It could also include international agreements, technical standards produced by private associations, and technical standards produced by mixed bodies. In an increasingly transnational world, we have standards bodies that involve actors that are quite often both public and private, meeting well outside the shores of Canada, and that come up with standards that we in turn could incorporate into our legal system.

There are two kinds of incorporation by reference. Closed incorporation by reference means that when we incorporate something by reference we are only incorporating the text as it stood at the time of incorporation. If that text later changes, those changes are not thereby incorporated.

On the other hand, open, ambulatory, or dynamic incorporation by reference means that we first start by incorporating the text; however, if that text changes later at the hands of the other body, the external source of that text, those new changes enter into the law as changes for the law. To be clear, subsequent amendments to the incorporated text would be automatically incorporated if we are using open or ambulatory incorporation. Often that is signalled in our laws by language that references a text, such as, an annex to an international treaty as it may be amended from time to time. This is often the way to signal that.

There are clear advantages to this. Nobody in the House is saying that what the government is trying to do makes no sense. It certainly makes a lot of sense. It prevents duplication of text so that we do not have to reproduce large amounts of material throughout the entire range of laws. It promotes harmonization and consistency of standards. That is increasingly important, not just for federal-provincial relations where there is always an attempt to coordinate laws in the similar area, but also with respect to transnational harmonization.

All of that also leads to a third benefit, which is efficiency. It is simply a more efficient and effective way for government to legislate and regulate, and it is also efficient for certain sectors that rely on regulations in particular to know what conduct is permitted or required. In a lot of business sectors there are reams of regulatory specialists who need to have an efficient framework within which to work. The bill will probably help with respect to that.

Now I would like to turn to the potential disadvantages. First, with any form of incorporation by reference, there are always multiple sources to consult. We think we can read in the document what we are required to do, and suddenly we are sent somewhere else and we have to find that other source.

There may also be access problems, in the sense of copyright, such that sometimes, if care is not taken, the text referred to that is external to the regulation or the legislative provision is not easily accessible. It may be behind some kind of firewall, or it may have copyright provisions, which means that it cannot be taken and uploaded for everyone else to see so that everyone is on the same page.

The third disadvantage is that there are issues in our federation of this being coordinated with the availability of the externally referenced document in both official languages. There is enough evidence to suggest that this does not always occur.

I would now like to move on to the possible disadvantages with ambulatory or open incorporation by reference. The first one is there being no accessibility. Accessibility, as stated in Bill S-2, is part of the technique of regulating by incorporation by reference, but it is not made clear in Bill S-2 exactly how that would occur.

When we have open incorporation by reference, without constant monitoring of the external body that may be amending its own documents, which then automatically get amended by our law because the incorporation by reference is open, there could be a serious accessibility problem. People would not know that the standards have shifted. They cannot rely on knowing what the standard was when the regulation was adopted because incorporation by reference was not static; it was open.

Second, there is a large issue called subdelegation. Quite apart from accessibility, there is the issue around accessibility of changes as they occur from time to time at the hands of external actors, the rule against subdelegation—I would not even call it a constitutional or administrative law of principle, but a good governance democratic principle. The giving over of the power to external bodies to change the law adopted by Parliament is one thing, but the regulations that are then adopted pursuant to an act of Parliament, the giving over of that power to external bodies, raise fundamental principles of accountability.

It is important to know that the joint committee of the two Houses on scrutiny of regulation has for some time made clear that it views open incorporation by reference as creating a problem of subdelegation involving a very particular problem of accountability in that Parliament itself cannot make sure that when incorporation by reference takes place, which can change from time to time, there is scrutiny and accountability for those changes.

I will quote from our joint committee report, and I believe this quote is from 2007.

It has always been the view of the Joint Committee that the incorporation by reference of external material into regulations “as amended from time to time” amounts to a subdelegation of regulation-making power, in that it will be the body amending the incorporated material, and not the authority on whom the power to make the regulations has been conferred, who will determine the content of the regulations.

On this point, it is extremely important to note why there would be a concern with subdelegation. It is not simply a matter of pointing out that it is subdelegation. It is saying that incorporation by reference would allow one to refer to an external body's set of rules, which we could cope with if it is static, because at the time of the adoption of the regulation we would know what we were incorporating and those regulations would be scrutinized by the joint committee on scrutiny of regulations as they stood at the time of the incorporation. However, the moment we have open incorporation by reference, the subsequent changes never come back before the joint committee on scrutiny of regulations. They are automatically brought into the law. Also, there is nothing in this, that I can tell, that actually deals with this very particular problem of accountability.

Imagine all of the private sector actors—standards councils, for example, transnational bodies from the banking sector, consumer safety—that produce standards that can indeed change from time to time, and suddenly, by virtue of an open incorporation by reference, they become part of the law. They produce accessibility problems for industrial sector actors to know that the content has changed, but most importantly, they produce accountability problems in so far as Parliament itself never actually gets to deal with the changes unless somehow we were to create new mechanisms for that. I do not believe, unless I have misread Bill S-2, that the bill would do that.

The parliamentary oversight issue is really important when we know that the practice we follow, and which would be in some sense codified by the proposed legislation, is not invariably the practice of other jurisdictions to which we would look to see whether or not we could learn from them. Jurisdictions like Ontario or Manitoba here in Canada, and places like Australia and New Zealand, which tend to often be ahead of us when it comes to parliamentary governance reform, have laws that limit the use of open incorporation to specified instances determined on a case-by-case basis, and so there is an awareness that there needs to be a more constraining framework for open incorporation by reference in those jurisdictions. However, that awareness does not seem to be present with respect to the government's approach through Bill S-2. Indeed, Bill S-2 would collapse open and ambulatory incorporation by reference in the sense of making almost no distinctions between the two, in any place, as far as I can tell.

Finally, I think it is important to return to a point that I made in the question and comments session after the last speaker, which is to note that there was extensive Senate debate. There were concerns expressed, not dissimilar to the concerns I have been expressing, and in the report of the Senate Standing Committee on Legal and Constitutional Affairs on Bill S-2—although it was obviously determined by the majority, which I assume were Conservative senators, to not put forward any amendments—there was a signal sent, and it was the following:

Some witnesses who were supportive of Bill S-12 nonetheless expressed a desire for greater certainty about how the bill would be implemented. The committee encourages the government to develop guidelines with respect to the use of incorporation by reference.

Now that is a mild recommendation, but to me it is also minimal. I think the government is honour bound to come up with those regulations if it insists that, by the end of this process in the House of Commons, it is not going to build in legislative safeguards that take into account the problems I have been addressing.

At minimum, we need guidelines so we have an extra level of understanding about when the government would be using open incorporation by reference. Beyond that, we need guidelines that make very clear what the government understands by “accessibility” of external documents because that itself is not defined in Bill S-2.

We had a good question from my colleague from York South—Weston, who asked about questions of accessibility for the disabled. There is language accessibility, there are questions of copyright, and there is the fundamental question of whether the government should not have a duty to have a central repository, in this Internet age, of all externally referenced documents. There would be no problem at all to create a central government site where every externally referenced document would be hyperlinked, with a reference to where it also appears in our regulations or our legislation, and the hyperlink would be constantly checked by a team of civil servants to ensure that it is live and that the newly updated externally incorporated texts are the ones being linked to.

At minimum, I would suggest that the government consider something like that, which would at least be consistent with what the Conservatives are seeking to do with this bill, by having a lean bill that is not too prescriptive. I would prefer a bill that is more prescriptive, but at minimum I would ask them to please take into account what amounts to a recommendation from the Senate Standing Committee on Legal and Constitutional Affairs to develop such guidelines, and along with those guidelines develop a practice of a central Internet portal, such as I suggested.

I would like to now return to my own remarks from February 2013. As I have already indicated, this bill essentially was before us before the last prorogation. In February 2013, I had the privilege to speak to it. I would also refer anybody interested in following this particular debate to ensure they read the speeches at that time by the members for Gatineau and Hamilton Mountain, both of whom gave extraordinarily insightful speeches about some of the problems with this bill.

Here are some of the central points I made, and I am treading on some ground I have already covered, but at that time I may have put it even better and I would like to summarize.

The government essentially would have us believe that Bill S-2, which was Bill S-12, is essentially technical or housekeeping, albeit important. In part, the Conservatives do that by suggesting it simplify codifies existing practices of how regulations are drafted to incorporate by reference, and all this is doing is making that clearer in a statutory framework, so there is a rule-of-law goal accomplished.

Although at the time journalists began to talk about this as just a routine bill, I do not know if any journalists are paying any attention to the fact that the bill is now back in another form. However, the fact of the matter is that Bill S-2 is anything but innocuous.

In my capacity not only as a former professor of law but also as the official opposition critic for democratic and parliamentary reform, I believe that this bill could end up being an anti-democratic reform. It could be a step backward for accountable government. Essentially, it would give carte blanche to the executive branch to use incorporation by reference of an open sort with very few, if any, serious constraints.

Regulations can change over time when external bodies that have no accountability relationship to Parliament decide on their own to revise those documents. They have automatically become the law with no further action required from the Canadian state, let alone from Parliament; and the Standing Joint Committee for the Scrutiny of Regulations—a committee of both the Senate and the House of Commons—would never see these ambulatory changes. When changes come in externally, once the regulation that incorporates the external document has been incorporated and that external document becomes updated, the joint committee never sees it.

That is a huge accountability problem, especially when we know that one of the functions of the joint committee on the scrutiny of regulations is charter compliance scrutiny. It is not at all difficult to imagine how, in some sectors, an external body having no responsibility to think about our constitutional framework could come out with changes that, if automatically incorporated by reference, could actually cause problems for our conformity with our charter.

The point of the matter is that I am not saying this would happen in most cases. For the most part, the harmonization function of what is being codified here will prevail, but there are fundamental accountability issues, and there are imaginable cases when escaping from accountability of Parliament actually will result in a setback for democracy.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I would also like to ask my colleague if he is aware that in the Senate the bill, both in its form as Bill S-12 and in its current form as Bill S-2, has come to us each time without specific amendments. That would leave a false impression about the extent of the debate that went on in the Senate where the bill originated. There was extensive debate about some of the problems with the bill, and a lot of witnesses at the Senate committee said there were problems. That did not lead to amendments or even suggested amendments beyond the guideline suggestion that I referred to earlier.

I am looking for some assurance from the government side that when the bill does go to committee in the House, that the kinds of concerns that were expressed in the Senate, and that we will hear today, will be taken seriously because of the fundamental nature of the regulatory system for our democracy.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I would like to thank my colleague for introducing us to the debate. We already looked at this issue some time ago when it was Bill S-12. As at that time, and as I will say in my own speech, one of my concerns is how the general regulatory framework and this bill would deal with open or ambulatory incorporation by reference.

I may not have been listening as carefully as I should have been to my hon. colleague, but I am wondering if he could address the question of open incorporation by reference and whether he feels that the collapse of closed and open incorporation by reference by the bill would be a problem and whether we should have very specific rules for open incorporation by reference.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, this time last week, I said that I hoped to have a substantial list of accomplishments to report to the House. Indeed, I do.

In just the last five days, thanks to a lot of members of Parliament who have been here sitting late at night, working until past midnight, we have accomplished a lot. Bill C-60, the economic action plan 2013 act, no. 1, the important job-creating bill, which was the cornerstone of our government's spring agenda, passed at third reading. Bill S-8, the safe drinking water for first nations act, passed at third reading. Bill S-2, the family homes on reserves and matrimonial interests or rights act, passed at third reading. Bill C-62, the Yale First Nation final agreement act, was reported back from committee and was passed at report stage and passed at third reading. Bill C-49, the Canadian museum of history act, was reported back from committee. Bill C-54, the not criminally responsible reform act, was reported back from committee this morning with amendments from all three parties. Bill S-14, the fighting foreign corruption act, has been passed at committee, and I understand that the House should get a report soon. Bill S-15, the expansion and conservation of Canada’s national parks act, passed at second reading. Bill S-17, the tax conventions implementation act, 2013, passed at second reading. Bill S-10, the prohibiting cluster munitions act, passed at second reading. Bill S-6, the first nations elections act, has been debated at second reading. Bill C-61, the offshore health and safety act, has been debated at second reading. Bill S-16, the tackling contraband tobacco act, has been debated at second reading. Finally, Bill C-65, the respect for communities act, was also debated at second reading.

On the private members' business front, one bill passed at third reading and another at second reading. Of course, that reflects the unprecedented success of private members advancing their ideas and proposals through Parliament under this government, something that is a record under this Parliament. This includes 21 bills put forward by members of the Conservative caucus that have been passed by the House. Twelve of those have already received royal assent or are awaiting the next ceremony. Never before have we seen so many members of Parliament successfully advance so many causes of great importance to them. Never in Canadian history have individual MPs had so much input into changing Canada's laws through their own private members' bills in any session of Parliament as has happened under this government.

Hard-working members of Parliament are reporting the results of their spring labours in our committee rooms. Since last week, we have got substantive reports from the Standing Committee on Public Accounts, the Standing Committee on Foreign Affairs and International Development, the Standing Committee on Agriculture and Agri-Food, the Standing Committee on Health, the Standing Committee on Procedure and House Affairs, and the Standing Committee on Government Operations and Estimates.

We are now into the home stretch of the spring sitting. Since I would like to give priority to any bills which come back from committee, I expect that the business for the coming days may need to be juggled as we endeavour to do that.

I will continue to make constructive proposals to my colleagues for the orderly management of House business. For example, last night, I was able to bring forward a reasonable proposal for today's business, a proposal that had the backing of four of the five political parties that elected MPs. Unfortunately, one party objected, despite the very generous provision made for it with respect to the number of speakers it specifically told us it wanted to have. Nonetheless, I would like to thank those who did work constructively toward it.

I would point out that the night before, I made a similar offer, again, based on our efforts to accommodate the needs of all the parties.

Today we will complete second reading of Bill S-16, the tackling contraband tobacco act. Then we will start second reading of Bill C-57, the safeguarding Canada's seas and skies act.

Tomorrow morning we will start report stage of Bill C-49, the Canadian museum of history act. Following question period, we will return to the second reading debate on Bill S-6, the first nations elections act.

On Monday, before question period, we will start report stage and hopefully third reading of Bill C-54, the not criminally responsible reform act. After question period Monday, we will return to Bill C-49, followed by Bill C-65, the respect for communities act.

On Tuesday, we will also continue any unfinished business from Friday and Monday. We could also start report stage, and ideally, third reading of Bill S-14, the fighting foreign corruption act that day.

Wednesday, after tidying up what is left over from Tuesday, we will take up any additional bills that might be reported from committee. I understand that we could get reports from the hard-working finance and environment committees on Bill S-17 and Bill S-15 respectively.

Thereafter, the House could finish the four outstanding second-reading debates on the order paper: Bill C-57; Bill C-61; Bill S-12, the incorporation by reference in regulations act; and Bill S-13, the port state measures agreement implementation act.

I am looking forward to several more productive days as we get things done for Canadians here in Ottawa.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I do want to start by reviewing what our House has accomplished over the preceding five days since I last answered the Thursday question.

Bill C-51, the safer witnesses act, was passed at third reading. Bill C-52, the fair rail freight service act, was passed at third reading. Bill C-63 and Bill C-64, the appropriations laws, passed at all stages last night as part of the last supply day of the spring cycle.

Bill S-2, the family homes on reserves and matrimonial interests or rights act, has been debated some more at third reading. Bill C-60, the economic action plan 2013 act, no. 1, was passed at report stage. Bill S-8, the safe drinking water for first nations act, was passed at report stage, was debated at third reading, and debate will continue.

Bill S-14, the fighting foreign corruption act, was passed at second reading. Bill C-56, combating counterfeit products act, was debated at second reading. Bill S-15, the expansion and conservation of Canada’s national parks act, was debated at second reading. Bill S-17, the tax conventions implementation act, 2013, was debated at second reading.

On Bill C-62, the Yale First Nation final agreement act, we adopted a ways and means motion, introduced the bill, passed it at second reading and it has since passed at committee. I anticipate we will be getting a report from the committee shortly.

Bill S-16, the tackling contraband tobacco act, was given first reading yesterday after arriving from the Senate. Bill C-65, the respect for communities act, was introduced this morning.

Substantive reports from four standing committees were adopted by the House.

On the private members' business front, the House witnessed three bills getting third reading, one being passed at report stage, two being reported back from committee and one was just passed at second reading and sent to a committee.

Last night was the replenishment of private members' business, with 15 hon. members bringing forward their ideas, which I am sure we will vigorously debate.

The House will continue to deliver results for Canadians over the next week. Today, we will finish the third reading debate on Bill S-8, the safe drinking water for first nations act. Then we will turn our collective attention to Bill S-15, the expansion and conservation of Canada’s national parks act, at second reading, followed by Bill S-2, the family homes on reserves and matrimonial interests or rights act, at third reading.

Tomorrow we will have the third reading debate on Bill C-60, the economic action plan 2013 act, no. 1. The final vote on this very important job creation and economic growth bill will be on Monday after question period.

Before we rise for the weekend, we hope to start second reading debate on Bill C-61, the offshore health and safety act.

On Monday, we will complete the debates on Bill S-15, the expansion and conservation of Canada’s national parks act, and Bill S-2, the family homes on reserves and matrimonial interests or rights act.

Today and next week, I would like to see us tackle the bills left on the order paper, with priority going to any bills coming back from committee.

As for the sequencing of the debates, I am certainly open to hearing the constructive proposals of my opposition counterparts on passing Bill S-6, the First Nations Elections Act, at second reading; Bill S-10, the Prohibiting Cluster Munitions Act, at second reading; Bill S-12, the Incorporation by Reference in Regulations Act, at second reading; Bill S-13, the Port State Measures Agreement Implementation Act, at second reading; Bill S-16, at second reading; Bill S-17, at second reading; Bill C-57, the Safeguarding Canada's Seas and Skies Act, at second reading; Bill C-61, at second reading; and Bill C-65, at second reading.

Mr. Speaker, I am looking forward to having another list of accomplishments to share with you, and all honourable members, this time next Thursday.

Suffice it to say, we are being productive, hard-working and orderly in delivering on the commitments we have made to Canadians.

There having been discussions among the parties that it will receive unanimous consent, I would like to propose a motion. I move:

That, notwithstanding any Standing Order or usual practices of this House, the member for Peace River be now permitted to table the Report of the Standing Committee on Aboriginal Affairs and Northern Development in relation to Bill C-62, An Act to give effect to the Yale First Nation Final Agreement and to make consequential amendments to other Acts.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, now that we have been sitting for a week under our Conservative government's plans for a harder-working, productive and orderly House of Commons, I would remind all hon. members of what we have been able to achieve since just Victoria Day.

Bill C-48, the technical tax amendments act, 2012, was passed at report stage and third reading. Bill C-49, the Canadian museum of history act, was passed at second reading. Bill C-51, the safer witnesses act, was passed at report stage and we started third reading debate, which we will finish tonight. Bill C-52, the fair rail freight service act was passed at report stage and, just moments ago, at third reading. Bill C-54, the not criminally responsible reform act, was passed at second reading. Bill C-60, the economic action plan 2013 act, No. 1, was reported back from committee yesterday.

Bill S-2, the family homes on reserves and matrimonial interests or rights act, was passed at report stage and we started third reading debate. Bill S-6, the first nations elections act, was debated at second reading. Bill S-8, the safe drinking water for first nations act, which was reported back to the House this morning by the hard-working and fast running member for Peace River, has completed committee. Bill S-10, the prohibiting cluster munitions act, was debated at second reading. Bill S-12, the incorporation by reference in regulations act, was debated at second reading. Bill S-13, the port state measures agreement implementation act, was debated at second reading. Bill S-14, the fighting foreign corruption act, was debated at second reading.

We will build on this record of accomplishment over the coming week.

This afternoon, as I mentioned, we will finish the second reading debate on Bill C-51. After that, we will start the second reading debate on Bill C-56, Combating Counterfeit Products Act.

Tomorrow morning, we will start report stage on Bill C-60, now that the hard-working Standing Committee on Finance has brought the bill back to us. After I conclude this statement, Mr. Speaker, I will have additional submissions for your consideration on yesterday's point of order.

After question period tomorrow, we will get a start on the second reading debate on Bill S-15, Expansion and Conservation of Canada’s National Parks Act. I am optimistic that we would not need much more time, at a future sitting, to finish that debate.

On Monday, before question period, we will debate Bill S-17, Tax Conventions Implementation Act, 2013, at second reading. In the afternoon, we will hopefully finish report stage consideration of Bill C-60, followed by Bill S-2 at third reading.

On Tuesday, we will return to Bill S-2 if necessary. After that, I hope we could use the time to pass a few of the other bills that I mentioned earlier, as well as the forthcoming bill on the Yale First Nation Final Agreement.

Wednesday, June 5 shall be the eighth allotted day of the supply cycle. That means we will discuss an NDP motion up until about 6:30 p.m. This will be followed by a debate on the main estimates. Then we will pass to two appropriations acts.

Next Thursday, I would like to return back to Bill C-60, our budget implementation legislation, so we can quickly pass that important bill for the Canadian economy.

Technical Tax Amendments Act, 2012

[Paul Calandra, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, I am lucky, again, to rise today to speak to such an important bill before the House. Last week, I had the opportunity to speak to Bill S-12, an act to amend the Statutory Instruments Act, which was, of course, another very important piece of legislation we had before the House. That bill, like this one, was about red tape. It was about modernizing our system.

When I talked about that last week, I talked about how the opposition was not in favour of our reducing red tape. It did not like to talk about red tape, because when there is red tape, it confuses people and it makes government even more confusing and out of the reach of Canadians. Whenever a government brings forward a motion or a piece of legislation that would make it easier for Canadians to work, that would make it easier for Canadians to access their government, we know that the opposition will not be in favour of it.

I want to reference something the member for Kingston and the Islands talked about, in response to the member for Davenport, on the $3 billion this government and the previous Liberal government spent on anti-terrorism, safety and security in the country following the tragic events of 9/11.

We know that the opposition members often do not read legislation that is tabled in the House. Sometimes they make their decisions with respect to legislation before it is even tabled. We are seeing that with the current debate on the museum of history bill. Before the legislation was even tabled, they decided that they were going to vote against it. The same goes for our budgets, our economic action plans. Each and every year, before the budget is even tabled in the House of Commons, they make the decision that they are not going to read it and will just vote against it. No matter how many good things are in those plans for Canadians, no matter how many investments we are making for the Canadian economy and the people of Canada, they always make their decision, before it is even tabled, to vote against.

Specifically, when we talk about that $3.1 billion, again, what opposition members are saying is that they do not have the time or the desire or perhaps even the knowledge to go back and look at the Public Accounts of Canada and see what was tabled in the House. If they would do that, they would be able to find an account for all of those moneys we put on the table, and the previous Liberal government put on the table, with respect to preserving and protecting Canadians. That is, ultimately, one of the most fundamental activities of government. It is to ensure the safety and security of its people. We are not going to do the job for the NDP members. I am sure that they can do it on their own.

Why are technical tax amendments important? This has been something we have been faced with for many years. We have not updated or amended our technical tax amendments since 2001, if I am not mistaken. I know that the hard-working Parliamentary Secretary to the Minister of Finance has been doing some exceptional work on this.

The member for Kingston and the Islands talked about how great a speech the member for Burlington gave. However, even more important than the speech he gave is the work he has been doing for his community and for all members of Parliament with respect to getting us out of this global economic downturn we have faced. He has shown tremendous leadership, and I want to thank him for that and congratulate him as well. The member from Kingston referenced what a great father he is, and he truly is. He should be very proud of his family. I know there are great things ahead for them.

This is something Parliament has had before it for a number of years. It was never done. I do not know why the previous Liberal government never brought this forward. I will give the Liberals the benefit of the doubt and assume that they care about small business. I will assume that they care about Canadian families. I guess it just was not a priority for them. They were busy doing other things, so they never got around to looking at the things that would actually protect and enhance our economy. They were busy. They had the sponsorship scandal and were looking for $40 million that they have yet to find. They never got around to it.

When we came into office, we knew that we had to consult with Canadians. We knew that it was important. We sat down with big businesses, small businesses and medium businesses. These are the people who actually generate wealth, create jobs and help make our economy strong so that Canadians can be proud of their economy and so we can create jobs and investments for communities. We sat down with them.

Quite honestly, we do not take enough time in this place to recognize the hard work of those members of Parliament who sacrifice so much, as the Parliamentary Secretary to the Minister of Finance does. It goes without saying that Canadians all over and people the world over know that we have the best Minister of Finance and Minister of State for Finance globally. They have been recognized as such, but there are also the parliamentary secretary and the entire finance committee.

When the global economic downtown occurred back in 2008, we had to take bold, decisive action. I remember that time, because in the 2007 year-end interviews, the Prime Minister at the time said there were going to be difficult times ahead and that we had to make sure to position the Canadian economy for what could be difficult times in the global economy. I remember the debate at that time.

I remember the opposition parties clamouring. They were upset because we had decided at that time that we were going to pay down debt. They said we should not be paying down debt but spending.

They did not say that we should spending by investing in tax cuts for Canadians; they said we should find programs and just spend, but we took a different track. We said that we had to pay down debt, because we knew that something could be coming in the global economy.

I recall how the opposition parties said we were crazy. However, when the global economic downturn hit, we were prepared, because we had made investments.

What are the types of investments that we made? We said it is not a bad thing to put more money in the pockets of Canadians. It is not a bad thing to invest in tax cuts for families. It is not a bad thing to invest in tax cuts for businesses, the people who create and generate wealth in this country. Therefore, we reduced the GST from 7% to 6% to 5%. What did that do? It put more money in the pockets of Canadians, and what did Canadians do? They went out into their communities and shopped and spent money and supported all of these small businesses across the country that actually create wealth, opportunity and jobs.

Let us talk about people like Frank from Frank's & Son Barber Shop in my riding. Here are two guys who work extraordinarily hard. Last week I had the extraordinary pleasure to be able to talk about my mother and father, who owned a pizza store, and how hard they worked. I know you will recall that, Mr. Speaker, because I was up speaking literally moments after the NDP once again tried to adjourn debate on important pieces of legislation. It was nine o'clock and they were starting to get sleepy, so they made the decision that they wanted to close down Parliament because they were tired.

I went back to my riding that weekend and I just could not understand how it could be. I thought how the member for Oshawa represents a lot of union members. I know that the member for Oakville represents a lot of union members. I know that all of Brampton, where there are a lot of union members, is represented by hard-working Conservative members of Parliament. I know that in those areas, and even in my own riding, there are lots of union members. I also know that in those ridings, they do not think about going home early. They work hard, as all Canadians do, and they want to succeed.

I asked myself how it was possible that the NDP could get tired by nine o'clock every night and want to adjourn debate. I could not figure it out.

It then dawned on me that what we have in the NDP caucus are not the actual hard-working men and women who work the lines, such as the people at Ford, Chrysler or GM in the member for Oakville's riding. These are not the people who actually work on the assembly lines; these are the big union bosses over there, so they are actually not used to working past five o'clock. They are used to telling other people how they should think and what they should do, but they do not have a clue about hard work. Then it dawned on me that, yes, that is why they have to go home at 9:30 every night: they are tired because they have never worked past five o'clock. Then I started to get it.

Then I started to read some of the things that they were talking about, some of the things that they were—

[Christopher Devlin]

I love a question that asks me how I feel about something, because I have many feelings about referential incorporation that are spawned from section 88 of the Indian Act. I've never much liked that section, but it has been there for a long time in the Indian Act. In that situation, provinces can amend their motor vehicle legislation without giving any notice to the federal government and that legislation and regulations can apply on reserves under section 88 of the Indian Act.

Here I think you have a similar ability: the regulation, as opposed to the statutory provision, can scoop up existing provincial regimes. The provinces can adapt that from time to time. The only proviso in the referential incorporation provision is that, unlike in the situation under the Indian Act, the Governor in Council can make adaptations of those provincial laws, which is, I think, a step forward from where we see section 88 of the Indian Act.

Now I'm not familiar with Bill S-12, so I don't know if that kind of language has been included there. But if one is going to have referential incorporation in a bill, although I don't like these clauses generally, I think it's a better clause if it allows the Governor in Council to adapt the laws of the province to deal with the specific situation on the reserve.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, witnesses. It's a very interesting discussion. You brought up incorporation by reference, which is something that's in front of Parliament right now in Bill S-12. Under Bill S-12 there's provision for ambulatory reference. In other words, regulations changed by other bodies will apply to the regulations taken on.

What do you think of a situation where the provincial regulations can be changed without any interaction with the federal government, without any interaction with the first nations under section 35? What do you feel about the conjunction of these two bills coming together where these ambulatory opportunities are now within the regulations? How does that affect the rights of first nations?

I'd ask you both to comment on that.

Incorporation by Reference in Regulations Act

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Mr. Speaker, I am excited about this bill and excited about this piece of legislation. I am also excited to be batting cleanup tonight after tremendous speeches from my colleague from Fort McMurray—Athabasca, my colleague from Peace River and of course the Parliamentary Secretary to the Minister of Canadian Heritage. I found their speeches compelling, invigorating, intense, effective and in-depth.

I was a former history teacher, and we have heard some great speeches, some remarkable addresses. I think of Lincoln's Gettysburg address, Roosevelt's “the only thing we have to fear is fear itself”, JFK's “ask not what your country can do for you” speech and Churchill's call to fight on the beaches and in the hills. Of course, I also think of our own Prime Minister and his historic apology to the first nations of Canada.

I am not saying that the speeches we heard were up to that standard, but I do think they were very memorable speeches that we can refer to in later years, because this bill is important to the future of this country. It is important to regulation.

The Parliamentary Secretary to the Minister of Canadian Heritage said a lady named Semhar called him and encouraged him to get in and speak, but she called me as well and said, “This is your last chance to speak on this bill. You have to get in there.” Fortunately, I was able to capture the last spot to speak on this riveting piece of legislation, so I want to thank Semhar for her encouragement to come here to speak.

I also had a call from a lawyer named Adam Church. He told me that he knew I was a teacher and might not be that familiar with this type of legislation, but he said this is going to be important. It is going to put Canada on the leading edge of regulatory processes in the world. Canada once again is going to be number one because of this legislation.

I am proud to come here and speak about this bill. I would like to thank our colleagues on the Senate Committee on Legal and Constitutional Affairs for their thoughtful consideration of this bill and for reporting it to the House without amendment.

As the Senate committee heard during the consideration of Bill S-12, incorporation by reference has already become an important component of modern regulation. The witnesses the Senate committee heard from were supportive of the use of incorporation by reference, notably in its ambulatory form, as a way to achieve effective and responsive regulation in a fiscally responsible manner.

Our government always tries to be fiscally responsible in making sure Canada continues to be one of the best job producers in the G8. Bill S-12 is an important step toward this in many important ways. Enactment of this legislation will clarify when ambulatory incorporation by reference can be used. The bill responds to one of the Standing Joint Committee on Scrutiny of Regulations' most important concerns by confirming the basis for the use of this technique.

As well, Bill S-12 will impose for the first time in federal legislation an obligation on regulation-makers to ensure the material that the regulations incorporate by reference is accessible. We heard the colleague across the way ask for a definition of this accessibility. This is very important for the future of this nation. It is very important that we have effective regulation-making and it is very important that it be accessible.

This bill would provide regulated communities with the assurance that such material will be available to them with a reasonable—I repeat, reasonable—amount of effort on their part, cutting regulation and cutting red tape. It will at the same time provide regulators with the necessary flexibility to respond to the many types and sources of material that may be incorporated.

The approach to accessibility in Bill S-12 avoids any unnecessary duplication or costs by recognizing that much of the material that is incorporated by reference is already accessible, without the regulation-maker needing to take further steps in many cases.

Cutting red tape, reducing the regulations and reducing duplication makes things easier, quicker and more effective. For example, federal regulations often incorporate by reference provincial or territorial legislation in order to facilitate intergovernmental co-operation. Provincial and territorial legislation is already widely accessible through the Internet, and no further steps would be needed on the part of the federal regulators. To require further action would result in unnecessary costs.

Using modern technology and the Internet to help us incorporate what already exists at the provincial level is going to reduce the costs to the federal government and make things more efficient. This bill is about efficiency, about reducing red tape and about making things work more quickly and more effectively.

Similarly, standards produced by organizations operating under the auspices of the Canadian Standards Council are readily accessible from the expert bodies that write them. The government takes seriously the obligation to ensure that this material is accessible and has for that reason proposed to enshrine that obligation in this proposed legislation.

Bill S-12 also introduces provisions that make sure that a regulated person could not be subject to penalties or other sanctions in the event that the incorporated material were not accessible. It provides protection for Canadians.

As the Minister of Justice highlighted in his remarks before the Senate committee, this is a positive and important step forward. Both the obligation relating to accessibility and the corresponding protective provisions respond to concerns of the Standing Joint Committee on the Scrutiny of Regulations.

It is also important for us to recognize that the mandate of the Standing Joint Committee on the Scrutiny of Regulations will not be altered as a result of Bill S-12. As is the case now, the joint committee will continue to be able to review and scrutinize the manner in which incorporation by reference is used, to ensure that it falls within the scope and authority conferred by this act or a particular act that is under the jurisdiction of the Government of Canada.

There were concerns from the opposition side that somehow we would be losing our effective ability to effect regulations later on as the Government of Canada. This protects that. Scrutiny of Regulations still had jurisdiction over these regulations.

After years of experience with federal regulations using the technique of incorporation by reference, we know that regulators will frequently rely on both international and national standards to achieve the regulatory objectives. The Senate committee heard witnesses from the Standards Council of Canada. Ensuring that regulators can have immediate access to the best technology and the best thinking will offer the best protection for the health and safety of Canadians. Once again, we are making sure that Canadians are protected, red tape is cut, but the health and safety of Canadians is always paramount. These witnesses provided testimony that many hundreds of standards are already incorporated by the reference and that access to these standards goes a long way to ensuring that our international obligations are met. Use of this technique to incorporate international and national standards ensures that our obligations related to avoiding technical barriers to trade are satisfied, that unnecessary duplication is avoided and that regulatory alignment is promoted.

Indeed, that successful experience to date in using these materials in federal regulations would also inform the future guidance on the use of this technique.

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, Bill S-12 does exactly the opposite of what the member describes. In fact, the referencing of regulation happens as a normal practice within much legislation. It is a modern practice. It has been going on for years and years and it has become the regular practice.

What has not been codified within legislation is that it be accessible to those people who are regulated. Now there will be a requirement to do exactly what the hon. member is looking for, which is first and foremost, and that it be understandable so it not be written in some format that is foreign to those people who are being regulated.

I can assure members that in this bill we go to great lengths to ensure those issues that the hon. member brings to the attention of the House as they relate to small business and those people being regulated.