Bill S-2 (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.

Incorporation by Reference in Regulations Act

[Dan Albas, Conservative, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, I am very pleased to debate this bill with the hon. member today.

I actually find it slightly ironic, so I will give a comment and then a question. The member and his party are relying on arguments based on debates in the Senate. They do not support bicameralism. They do not support the Senate. I find it ironic for them to lead with their very vague concerns.

I would like to go back to the issue of accessibility. I would like to inform the member that all Government of Canada regulations are published in both English and French. They are all available online. I have a constituent who is blind, Mr. Ken Westlake. He actually applauds the government for making the website so accessible that he can use low- or no-cost software to go through whatever government documents are there. We should celebrate that in this House.

I have a question for the member. Many of the standards he speaks of are highly technical; for example, electrical codes. I would say that he is a very learned member. I would say that he is very intelligent. However, if I were to present to him a technical manual of such length and detail, the question of accessibility is that only people who are fully trained and versed in that particular narrow technical field could understand it.

I would ask the member for his comments on accessibility at that stage.

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

Mr. Speaker, nothing changes about my remarks on accessibility. I am perfectly content to congratulate the government for having increased accessibility of legislative provisions and regulations, if that is in fact the case.

However, that is beside the point. The point is the accessibility of the external documents. That is a matter of whether or not they can be accessed in both official languages, and for the example of Mr. Westlake, if he happens to be an electrical engineer, whether or not they are accessible to him as well.

We are maybe two ships passing in the night on this. The accessibility has to do with the external documents and not with the regulations themselves or with the legislative provisions.

[The Speaker, Conservative, Andrew Scheer]

There will be some time left for questions and comments after question period, but for now we will move on.

The House resumed consideration of the motion that Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, be read the second time and referred to a committee.

[The Speaker, Conservative, Andrew Scheer]

There are still seven minutes left for questions and comments for the speech of the hon. member for Toronto—Danforth.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I did not catch all of that excellent speech. The hon. member for Toronto—Danforth has a renowned reputation in the House for speaking effectively on legislation. Therefore, I would ask him to give us the Coles Notes version of the bill itself. Could he take a couple of minutes and with the deep foundation of knowledge that he brings to the House, just provide the Coles Notes or the 30-second elevator response as to how the New Democrats feel about Bill S-2?

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

Mr. Speaker, the bottom line is that the NDP is happy to see a bill that is attempting to make the regulatory process more efficient. However, we have some concerns that the way the technique of incorporation by reference appears in Bill S-2 will have some problems from a democratic perspective.

Incorporation by reference can include a method that includes referring to texts that change later and then the later changes end up automatically being part of our regulatory system without any further parliamentary review or review by the Standing Joint Committee for the Scrutiny of Regulations. In a nutshell, those two phenomena—of an open incorporation by reference and of future changes that never then actually have an accountability mechanism within Parliament—are the source of my particular concern, and I suspect my colleagues will also share that.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I have known the member for Toronto—Danforth, since he first came to the House a couple of years ago, as being extremely effective and meticulous about legislation that is brought forward. We certainly saw that with the changes to the electoral act. On behalf of all Canadians, he did a fantastic job scrutinizing and meticulously going through each of the changes proposed by the government and looking at what was clearly a concern with respect to reducing the level of democratic participation rather than increasing it, which should hopefully be the goal of everyone in the House.

Given the fact that he has already raised the question of incorporation by reference that bypasses the normal scrutiny that should be put into the consideration of any government legislation, I would like to ask the member this. Taking Bill S-2 as an example, can he broaden his frame of reference and respond to the concerns of whether the government would be willing to do the consultation and the transparency that is necessary to make sure that the bill does subject itself to accountability and transparency?

Given his vast experience on the Elections Act, does he feel comfortable that the government understands the importance of consultation and accountability and would understand that it has to bring changes to Bill S-2 in committee so that regulatory changes that are brought in are in the public interest and reflect that transparency and accountability?

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

Mr. Speaker, the short answer would be that I do not have any great confidence that the government will proceed that way. The way in which Bill C-23 was handled suggested that strong consultation was not part of the modus operandi of the government.

The bill may be a bit different. It purports to be technical only but the government acknowledges it is about a very central part of the modern administrative state, the regulatory power, and it is well aware that testimony, as well as some speeches in the other House, have revealed some serious concerns.

In light of the fact that the bipartisan and bicameral Standing Joint Committee for the Scrutiny of Regulations has repeatedly said that there is a problem with delegating regulatory authority to external bodies through the open incorporation by reference technique in particular, I would hope that the concerns of that standing committee do not get lost simply because the bill ends up before the House, having started in the Senate, with another committee having to scrutinize the bill.

As often happens, we sometimes have moments in the House when it feels very co-operative. It certainly has felt like that the last couple of days for very obvious reasons. I would urge the government to take that approach on this because we are on board with the fact that cleaning up how we deal with incorporation by reference in an extremely important area of law-making. The problem is that the government may inadvertently end up creating some democracy deficit problems.

[Adam Vaughan, Liberal, Trinity—Spadina, ON]

Mr. Speaker, I rise today to speak to this. I note with irony that yesterday we spoke to a private member's motion that attempted to ban the practice of proxy marriages. We have here an attempt in some ways to provide regulation by proxy. If it is unacceptable to marry someone by proxy, it ought to be just as unacceptable to try and govern a country by proxy and distribute regulation and use proxy in this case to create a simplified legislative tool, but in fact complicate the regulatory regime.

There are significant issues with this legislation. We are profoundly concerned. They range across the legislation as it is presented, but they go to the heart of this issue. In trying to make things simple, sometimes we actually end up making them that much more complicated. In trying to be efficient, sometimes the efficiency creates confusion, legal challenges and complications that actually slow things down and make things less fair. Instead of creating accessible definitions, inaccessible procedures are created, and inaccessible and sometimes even costly regulations come into effect. It is the unintended consequences perhaps of good intention.

However, I return to the notion that if it is unacceptable to do marriages by proxy, why would we create legislation and regulation by proxy and simply choose to proceed in a quick way rather than in the right way?

For example, if an incorporated document is protected by copyright and that copyright document regulation is referenced in the legislation, it may actually cost people to get the information they need to comply. Willing individuals, willing corporations and willing institutions are prepared and attempting to participate properly and legally. Yet because of the way the legislation is constructed, they have to pay to get public information.

We have talked a great deal about the value of an open democracy and open government, but our regulations, our rules and our laws must also be just as open. When we short-circuit that process, as cumbersome as it may be, as rooted in tradition as it may be, it provides us with positive thought and in this case with cause for concern sufficient enough to stand in opposition.

Section 18.6 says:

A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document, index, rate or number—that is incorporated by reference in a regulation—is relevant unless, at the time of the alleged contravention, it was accessible as required by section 18.3.

In other words, what it is saying is if the rate is done by proxy, or in this case defined in the way it is in this legislation, the numeric figures that must be complied with are suddenly just beyond the reach of someone acting within what they think are the bounds of the rules and regulations. In fact, because they have not had access to those exact data files, they actually do not know what rate they may be governed by.

Additionally crown corporations may have their rates changed. We have a situation where the details of the rules and regulations are hidden by the provisions in this document we are debating today.

This is critically important for a country that is bilingual. We have no guarantee that the proxy regulations, especially if they are overseas or outside the jurisdiction of Canada, are translated in real time into either official language. That is significant because under Canadian law, we have an obligation to treat both language groups equally and fairly. If outside organizations, which do not have an obligation to meet, are the ones having their rules and regulations referenced, that lag time between having equality of languages creates an unfair condition and such a troubling precedent in this country. It is again, something with which we really need to be concerned.

In a globalized world of complex trade agreements and trade treaties, in a world that wants to speed up and in a complex federal system, we understand the impulse of what is being proposed here. What we are doing, as I said, is circumventing the proper process, a good process and a sound process. We are substituting it with something that creates glaring inequities and gaps.

When we draft laws and knowingly draft laws that have these gaps, we are inviting court challenges and non-compliance, even through good intent. We are also opening the door to potential exploitation of that, which is perhaps the most serious of all of the concerns.

We are concerned to the point of opposition to Bill S-2, and the Liberal Party will not be supporting it.

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

Mr. Speaker, I thank my colleague from Trinity—Spadina for his, as usual, very articulate analysis. I find this notion of regulation by proxy particularly helpful. It is a more accessible idea than what I was referring to, which was the problem of subdelegation of authority, which is maybe a more technical way to speak of it.

I wonder if he could talk a little bit more about a couple of the examples of why he would see that referring out the power to regulate to external bodies might just be some sort of problem for democracy.

[Adam Vaughan, Liberal, Trinity—Spadina, ON]

Mr. Speaker, I hesitate to get too specific in the legislation only insofar as the colleague who asked me the question is a much more learned professor of law than I am.

The issue is that there is this handing off at arm's length and referencing at arm's length to other organizations. We understand why it happens. We understand that sections of existing laws get drafted into new laws, treaties or agreements. We understand how the law evolves and lives over time.

The trouble is that as we enter into a world where international law governs much of our trade, much of our economic activity and much of our obligations, and as we short-circuit the detail and definitions, we enter into areas where other legal practices, conventions and terminology start to enter into, and at times, confuse, contrast or even contradict very similarly phrased legal agreements. We start to look at some of the agreements that govern down into the provinces and into the municipal level around trade. The CETA agreement is one of those issues where these concerns are being raised.

We take a look at non-parallel situations that may exist in a continent such as Europe, where trade agreements have been put in place. We have the European Parliament governing it. We have individual nations governing it, and subregions, provinces, cities and other legal entities providing governance. When we start extrapolating all of the different variations that may exist around a certain set of regulations, customs, practices, and most importantly, laws, the opportunity for gaps in understanding, for clarity to be replaced by confusion, is a real and significant possibility.

Writing into and codifying directly into laws that govern and regulate Canadian practice needs to be done in the context of Canada. That means in both official languages simultaneously. It also means taking the time to make sure that the language is right, because language is at the root of law-making.

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

Mr. Speaker, I am not sure that I have another question, but I was happy to hear the examples. One of the features of our constitutional system is that international treaties cannot have the force of law until implemented through legislation. They also have to follow the division of powers after that.

My colleague has just raised an important element of this. There is another constitutionality dimension besides my concerns about charter compliance in some instances. That is that if international treaties themselves, which may well have been incorporated through lead legislation, contain annexes and appendices that are changing through international decision-making processes, it really does seem to be a form of an end run around our constitutional rule that international law-making, and particularly, treaty-making cannot enter our system until Parliament itself has brought it in.

I wonder if my colleague can comment on that. I know that the other side is likely to say that this is overstating the concerns, but for me, it is a major structural concern. If this is not thought through in terms of the accountability procedures, we could end up basically farming out so much of our future legislation.

[Adam Vaughan, Liberal, Trinity—Spadina, ON]

Mr. Speaker, there is a significant concern. There is also the concern that as it is farmed out, and as it delegated or done by proxy, or that through this bill it is re-regulated, the very text we are quoting as being delegated to or made proxy to can change under our feet without our being notified or having any requirement of being notified. We would end up in a situation where laws are being changed in the absence of Canadian scrutiny. That is a concern.

The goal here is an admirable one. We understand the goal, and we understand the efficiency that is being sought. We all seek to create more efficient systems.

However, as I said, we build in inefficiencies when we delegate to authorities and chambers and bodies making decisions that we have no connection to, no relationship with, and in some cases have no reporting mechanism. We are referencing rules that could be changing, and as a result we are giving an unfair advantage to those entities outside the country to effectively use Canadian law against Canadians in a way that was not expected because the law is not changed and the ability to exploit those changes resides with entities outside the country. Therefore, we are granting them unfair practice and procedure inside our own courts system, and Canadians may be oblivious to this.

We do not need to refuse to pursue these agreements, to abdicate the opportunities that may be presented to knit together, on a global stage, treaties and agreements and trade deals. We need to do that. We understand that, and we live in that world. However, we need to do it in a way that respects the common law traditions, the practices of Parliament, and the Constitution of Canada, including the rights that the member has raised.

[The Speaker, Conservative, Andrew Scheer]

Is the House ready for the question?