Justice Committee on Dec. 4th, 2014

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, let's call this meeting to order. Pursuant to the order of reference of Friday October 24, 2014, in front of us today we have Bill S-2, an act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.

We have a number of folks from the Department of Justice who are going to give us a presentation. Since Ms. Pledge has the word “Senior” in front of her name.... Who's the lead here?

Madam, if you would like to introduce yourself and your teammates, the floor is yours for 10 minutes.

[Jacinthe Bourdages, General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice]

Mr. Chair, I am Jacinthe Bourdages, and I'm general counsel and director at the legislative services branch. With me are my colleagues Patricia Pledge, senior counsel, also in the legislative services branch, and Bernard Auger, general counsel at the same branch.

Thank you, Mr. Chair.

Thank you for the opportunity to speak to you about Bill S-2, Incorporation by Reference in Regulations Act. As its title indicates, this bill concerns a drafting technique, incorporation by reference, which is used in legislative texts, most frequently in regulations.

Incorporation by reference is a technique currently used in the drafting of legislation, which allows, by a simple reference to a document made in the regulation, to conceptually incorporate the content of that document, without reproducing its text. The content of that document then acquires the force of law and forms as much a part of the regulatory scheme as the text of the regulation itself.

Incorporation by reference can be either static or dynamic. ln the case of static incorporation, only the version of the document that is cited in the regulation is incorporated, as if it were frozen in time. Any modifications made to that document after the regulation has incorporated it would not be included in the regulatory scheme. In the case where it is desirable that these changes be incorporated, it would be necessary to modify the regulation in order to make reference to a subsequent version of the document.

In the case of dynamic incorporation by reference, the changes made to the document that has been incorporated in the regulation form part of the regulatory scheme without the need to modify the regulation. In other words, the subsequent amendments made to the document are automatically integrated into the regulatory scheme.

Incorporation by reference of documents of many types in diverse federal regulations is already widespread. Among the different types of documents currently incorporated by reference, one can find provincial and territorial laws, the laws of other jurisdictions, international and national standards, as well as technical documents created by different departments. Incorporation by reference is already expressly authorized in more than 60 federal acts.

Bill S-2 proposes to amend the Statutory Instruments Act to create a general authority for the use of a technique of incorporation by reference in the regulations, which would complement all existing regulation-making authorities found in acts of Parliament. It is also important to clarify that this bill does not seek to validate retroactively anything that the government did not consider already to be authorized.

In general, under this legislative proposal, material that is generated independently of the government could be incorporated either statically or as amended from time to time.

However, the authority to incorporate documents produced by the regulation-making authority alone or jointly with another federal entity would be more limited. In most cases, those documents would only be able to be incorporated statically and only if the content of the document is limited to that which is incidental to or elaborates upon the rules already contained in the regulations. This ensures that the technique of incorporation by reference is not used to circumvent the regulatory process or to subdelegate the legislative power to government officials.

This bill also makes it clear that certain types of rates and indicators, such as the CPI, the consumer price index, or the prime rate, the Bank of Canada rate, can be referenced in regulations. This precision has been brought because those elements are not, per se, documents.

This bill also imposes an obligation on regulation-makers to ensure that the material incorporated by reference is accessible. It also provides that no person can be convicted of an offence or suffer an administrative sanction in the event that the incorporated document was not accessible.

In addition, Bill S-2 clarifies that the requirements of registration and publication would not apply to the incorporated material, but that material is still examined as part of the obligations under the Statutory Instruments Act and remains subject to scrutiny by the Standing Joint Committee on Scrutiny of Regulations.

Bill S-2 in no way alters obligations with respect to official languages. Unless there is a legitimate reason for unilingual incorporation by reference, material must be incorporated in both official languages. This is a constitutional requirement now, and it remains unchanged by this legislation.

While Bill S-2 is important, it must still be put in perspective. Ambulatory incorporation by reference is already widely used in federal regulations. As a result, Bill S-2 simply provides expressly for the authority to use a drafting technique that is consistent with the government's current legal practice on this matter. Bill S-2 does not confer authority to simply incorporate by reference without constraints. The use of the technique, like any aspect of the regulation-making authority, is shaped by the enabling statute under which the regulations are made.

Bill S-2 is intended to confirm the existence of the legal foundation for the use of this drafting technique.

Thank you, Mr. Chair.

We are now ready to answer the committee's questions.

[The Chair, Conservative, Mike Wallace]

Thank you, Madam, for that presentation.

We're going to questions now. Our first questioner from the New Democratic Party is Madame Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you.

You answered my questions in part, specifically when you talked about bilingualism.

If an incorporated document were unfortunately not published in both official languages—a guilty verdict or an administrative sanction, for example—what would happen with the criteria? Would that mean that the sanction would not be possible until the incorporated document were published in both languages? Would there be a delay? That is what I would like to know.

[Jacinthe Bourdages]

As for accessibility, the Supreme Court has already established that, in certain cases, it is acceptable for a document not to be bilingual. Take principles for international cooperation, for example, or a document that is so highly technical it cannot be translated.

Accessibility deals more with physical access to the document and its intelligibility than with official languages. However, it is important to mention that nothing in this bill changes Canada's linguistic obligations. This bill could not amend those linguistic obligations because the obligations are quasi-constitutional and constitutional, and this is an ordinary act. It is therefore not possible to amend those rights with this bill.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much for that answer. So that would be something for a court to decide if ever there were a conflict.

Bill S-2 grants quite broad authority to use incorporation by reference. The guide to making federal acts and regulations indicates that everything to do with regulations really must be considered by the parliamentary committee of which my colleague was a joint chair, in 2011, I believe. They examine all cases of incorporation by reference in real depth. There is a mechanism for oversight, accountability and transparency. But Bill S-2 grants quite broad authority to use incorporation by reference, either ambulatory, dynamic, or static, as you mentioned. How can we be sure that the same oversight mechanism is applied to the regulations and to the incorporation by reference at the same time?

This is a huge project. It does not just apply to a department, but to all agencies and all authorities with the power to do this. How are we going to make sure that, at the Standing Joint Committee on Scrutiny of Regulations, we determine which mechanism will be used? Will it be the same? How are we going to make sure that both are at the same level of oversight and transparency?

[Jacinthe Bourdages]

Thank you for the question.

Mr. Chair, I would say that regulations that are incorporated by reference are examined to the same extent as the regulations themselves. When regulations are examined under section 3 of the Statutory Instruments Act, the documents that are incorporated by reference would be examined in the same way at the same time. That is the stage at which the criteria set out in section of the Statutory Instruments Act would apply to the documents incorporated by reference.

In the pre-publication period for regulations in Part I of the Canada Gazette, those involved or interested will have the opportunity to see whether or not documents have been incorporated by reference, to be able to have access to those documents and to see what they contain. If they have concerns, they can make them known to the regulation-making authority.

As for the standing joint committee, it will have access to the documents like any member of the public and will be able to make any concerns known in the same way.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Actually, my last question deals with access to those documents.

In the three criteria you listed, we read, and I quote: “…provides for the express power to incorporate by reference in regulations”, and that the documents are valid only if they are “accessible”. Except that there is no definition of accessibility.

In some Senate transcripts, I have read words such as “online”, but accessibility is not defined. That could lead to confusion. Really, this is about the validity of a reference. What would the definition of accessibility be and should it be included in the act?

[Jacinthe Bourdages]

For documents, there are various kinds of incorporation by reference.

It can involve provincial or federal legislation, or the legislation of another country, indexes, numbers, internal documents, and standards. Incorporation by reference can take many forms. It is important to realize that what is accessible in one case may vary; it depends on the sector being regulated. What is accessible in one case may not necessarily be accessible in another. So it would be extremely risky to find a definition that applies equally to each regulatory sector.

We consider that documents need to be accessible with a minimum of effort. Even so, you need a certain degree of effort to access federal legislation and regulations.

[The Chair, Conservative, Mike Wallace]

I'm sorry, but that's the time, more than the time.

Thank you very much for those questions and answers.

Our next questioner is Mr. Calkins from the Conservative Party.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Chair.

I have a number of questions. I would imagine that you'll know where I'm coming from with a lot of these.

Incorporation by reference has basically static and dynamic...I know these things. When the government signs on to an international agreement or ratifies a treaty, or whatever the case might be, we are then a party that's bound to that agreement. That governing authority or agency that's responsible for it, whether it's the governing council or whatever the case might be, has of course probably a Canadian interest in that.

Are there any cases where the Government of Canada does any incorporation by reference now where there isn't a representative or Canada is not party to the governing process of that regulation-making body?

[Jacinthe Bourdages]

Perhaps I'll let my colleague Patricia respond to that question.

[Patricia Pledge, Senior Counsel, Advisory and Development Services Section, Legislative Services Branch, Department of Justice]

International treaties of course can be implemented in various ways. One way we do implement international obligations is through incorporation by reference.

I'm not personally aware of incorporating treaties that we may not have ratified. Is that your question?

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Not ratified, but where we may not have a seat at the table for the ongoing continuation of the regulation-making authorities, where an international treaty might create a body that does that. Would there be a situation where Canada's interests wouldn't be represented at the table?

[Patricia Pledge]

I don't have the information to answer that question.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

It's a tough question, I know. These things are quite complicated.

Given that the current practice that the Government of Canada uses is an ad hoc process.... You are saying the Government of Canada already uses incorporation by reference when it comes to these things, that they are all done on an ad hoc basis, and they would all be in that particular case static because they would have to go through the process.

If something is dynamic it means that, as soon as the regulating body makes the change in the regulations—and if it has already gone through the Gazette process and has been approved by legislative change that's brought about here—the moment the legislative body makes a decision and changes that regulation through a dynamic reference, it is instantly the law of the land in Canada.

Do I understand that correctly?

[Jacinthe Bourdages]

Mr. Chairman, I would like to say that it's important to realize that incorporation by reference is a tool that can be used and it's a choice. So if the regulation-making authority decides to use it then there is a choice between static and ambulatory.

It doesn't have to be the vehicle by which Canada decides to implement treaties. It's always a choice.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Say for example we adopt incorporation by reference dynamically to the Canadian building code of standards through the governing party. As soon as the Canadian safety association or the Canadian building code standards are automatically updated that would mean that those things would not have to necessarily go through the same ad hoc practice of being incorporated on an annual basis, which is the efficiency that this bill would provide the government with. Do I understand that correctly?

[Jacinthe Bourdages]

Yes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Is there any situation right now in the Government of Canada where the governing body or the regulation-making agency would be considered a lesser governing body than the Government of Canada? By that I mean maybe a provincial statute or regulation or a provincially regulated body or something that's done at the municipal level or something that would be considered lesser in stature than a national governing body or an international governing body.

[Jacinthe Bourdages]

Mr. Chairman, I am not aware of these situations. But again it's a choice that the regulation-making authority would exercise when deciding to use the technique or not. If the regulation-making authority wants to have full control of those instances I guess it would not use incorporation by reference. Again, it's important to realize that it's always a choice to have recourse or not to this tool that is a drafting technique.

Static incorporation by reference might be preferable in some instances such as the one you mentioned. We are not aware of situations where this would have caused any problems. It's also important to realize that in almost 30 years of the use of incorporation by reference there is very little case law on this, which seems to be proof that the system is working well. It's not something that is really litigated.

So I would say, to address your concern, that it's important at the time that the regulation-making authority that is considering whether to use incorporation by reference or not see if it has concerns of the type you are mentioning. Are we concerned with an international body making its decisions? Most of the time Canada is a part of these international bodies, it has fair notice, and it takes years of negotiation so there are opportunities for discussion.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I agree.

In the 30 years or so of experience that we've had already doing this under the ad hoc process that we already use, have there been any situations whereby the Government of Canada or the legislative body of Parliament, or whatever the case might be, has had to retract or undo anything that was inadvertently done by incorporation by reference?

[Jacinthe Bourdages]

We are not aware of any such cases, no.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is from the Liberal Party.

Mr. Casey, the floor is yours.