Justice Committee on Dec. 4th, 2014

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

I'm concerned that this bill will allow government and/or bureaucrats to do something indirectly that they can't do directly. I'll tell you why I'm concerned about that. We've had before this committee Bill C-13, the cyberbullying bill. The cyberbullying bill proposed to codify an immunity for telecoms that lawfully cooperated with police. This came about after a failed attempt to try to get warrantless access. So when it looked like the government wasn't going to be able to get warrantless access, they gave an immunity to the telecoms and then through another statute broadened the group of people to whom that would apply. So instead of going directly at it they found another way.

Here's where I'm coming from. If the government or bureaucrats want to see a change that they may not be able to get through a more rigorous route like the joint scrutiny of regulations committee, like the normal legislative process, they can find a way to have a body that has available to it open incorporation by reference and to put it through that way. Do you understand my concern?

[Jacinthe Bourdages]

Mr. Chairman, I think I understand the member.

[Sean Casey, Liberal, Charlottetown, PE]

Should I be concerned?

[Jacinthe Bourdages]

I understand the concern, but I think it's important to realize that Bill S-2 does not expand on the use of this regulatory authority that is incorporation by reference, which is already, as we've said, broadly used.

As for internally produced documents—that's by the regulators—it would be limited to documents that elaborate upon the main rules of conduct. This is to avoid concerns like the ones you mentioned.

For the external incorporation by reference, Bill S-2 codifies, if you will, the current practice. This is in cases where the documents already exist for an independent purpose that has nothing to do with the regulatory process. They just use the expertise that exists elsewhere to replicate the expertise in the regulations themselves, without having to reprise the content and instead of building the expertise in-house

I think it's important to realize that this bill, as I was saying in my speech, does not expand on enabling authorities. It's an aspect of the regulatory power, but it's an aspect like any other aspect of the regulatory power. It still needs to be exercised within the four corners of the enabling authority. It needs to be brought back into that perspective.

[Sean Casey, Liberal, Charlottetown, PE]

If I understand you correctly, I shouldn't be concerned, because they're allowed to do it that way now and this doesn't change that. What I mean by this is that a government initiative, or an initiative that's being championed by the bureaucracy, could pursue the path of least resistance by finding a sympathetic external organization that has the benefit of open incorporation by reference, such as the chartered accountants for general accepted accounting principles, or such as the entities that produce building codes or fire codes. They could convince that organization that this change should be made within your standard, or within your principles, and thereby achieve a governmental or a bureaucratic goal another way.

What you're saying is that it's possible to do that now and it will still be possible once this bill is passed. Is that it?

[Jacinthe Bourdages]

Not exactly. What I would say about it is that incorporation by reference is one aspect of the regulatory power, and we always have to go back to the main enabling power to see what that authorizes. It needs to be exercised within the four corners of the authority, and it's a case-by-case analysis of what that power entails and authorizes. We need to remind ourselves of that.

In terms of standards, there are a lot of consultations that go on before a standard is authorized and approved. Domestically, of course, Canada is a member of the CSA, but there are various interests that are being put forward, and it's a very consultative process whereby every stakeholder has a say in what ultimately becomes the standard that is recognized as the best standard. That's why it's being put forward as a standard. It's very consensus based. There are various stakeholders that work together on coming to a consensus on what's the best standard that could be used, always with the goal of having the best expertise to have it reproduced in the regulations.

[Sean Casey, Liberal, Charlottetown, PE]

It's been suggested, certainly in debate and probably in other sectors, that one way to deal with the accessibility challenge, or the lack of clarity around what that means, would be a central Internet portal where all documents that are incorporated by reference in federal legislation would be there and available and accessible. Is that realistic? Could it be legislated?

[Jacinthe Bourdages]

Mr. Chairman, the option to have a registry is an option, but consideration should be given to the implications of that. The implications would be the creation of such an infrastructure and also the fact that there's no one-size-fits-all in terms of accessibility, because of the variety and the broad scope of regulators, of the fields that are regulated, and of the types of documents that are so incorporated.

For instance, provincial legislation and other Canadian legislation is already vastly accessible by any standard and often in the vast majority of cases there's nothing left to do—

[Sean Casey, Liberal, Charlottetown, PE]

The static stuff is the easy stuff. It's the open stuff that's trickier.

[Jacinthe Bourdages]

But I would say that even with open stuff, often stuff is already—

[Sean Casey, Liberal, Charlottetown, PE]

Sorry, that's not a very good—

[Jacinthe Bourdages]

But it's sometimes already available at the primary source and it could add a layer of heaviness to have this registry. It might actually be slower to get access to the registry, rather than going online to find a document.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for those questions and answers.

From the Conservative Party, Mr. Dechert, it's your turn.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

My understanding of the regulatory process here is that if there is any concern by any member of the public, they can raise that concern. Certainly, any member of Parliament can raise that concern and it would then be referred to the scrutiny of regulations committee. So in any situation that Mr. Casey might be concerned about, he or any member of the public could apply to have that dealt with by the scrutiny of regulations committee.

If there were a situation where someone thought that the government of the day was overreaching its legislative authority by incorporating something by reference, presumably that would then go before the scrutiny of regulations committee.

Secondly, it's my understanding that there aren't any regulations under the Criminal Code, so that is not a situation where the Criminal Code of Canada would be amended by an incorporation by reference to another statute, or a standard that is developed by another body.

My first question to you has to do with accessibility. Bill S-2 imposes an obligation on the regulation-making authority to ensure that a document, index rate, number, or whatever it is that's incorporated by reference, is accessible, but it doesn't provide a definition of “accessible”. What, in your opinion, is meant by the term “accessible”? Perhaps you could give us some examples of that.

[Jacinthe Bourdages]

Thank you.

Mr. Chair, it is true that accessibility is not defined in the bill. As I mentioned earlier, it would be very challenging to try to come up with a definition. Given that there are so many different incorporated documents, different regulatory fields, what's accessible in one case might not be accessible in another case.

In some cases “accessible” will mean that it's available online free of charge. In other cases it can mean it's accessible at a reasonable price. So it really depends on the situation and on the regulators and on the people who are affected by the regulation. It would be very challenging to try to find a one-size-fits-all in terms of accessibility.

The regulators have a high incentive to have the documents accessible, because if they are not they won't be able to prosecute successfully, and we have a provision about that in proposed subsection 18.6 of the bill.

It's also important to realize that regulators want compliance with their regulations, and accessibility is something that would be considered at the time of the decision to use the technique or not. If the document is not accessible, that would be a reason to not use incorporation by reference. If it is accessible, then it's a factor that plays in favour of using the technique. There are really vast areas and vast types of incorporation by reference documents, so it basically means having access to a copy of the document with a minimum of effort.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Right.

Certainly, as a matter of commercial legal drafting I am familiar with this concept. It was often the case in situations where I would be negotiating and drafting commercial documents that would continue in force for many years, so often it made it much more efficient to incorporate by reference a standard, a rate, or a process by which something is determined, perhaps standards for the production of a type of product.

But we would typically only incorporate by reference those sorts of things where there was a known process for the development of the rate or the standard and there was some kind of public input to the development of that standard that the parties to the agreement could participate in.

Do the regulation-making authorities look at the same kinds of criteria when deciding whether to incorporate something by reference?

[Jacinthe Bourdages]

Yes, the regulators take into consideration different types of factors, like the one you mentioned, like the one about accessibility—is this document easily accessible? There are different factors that they look at to make sure that the use of the technique is appropriate in their field. The factors that Mr. Calkins was mentioning earlier could be valid factors as well. Here, again, there's a need for flexibility because it really depends on the regulated field and the realities of the regulatees, and of their regulators as well. There are a variety of factors that are considered when making the decision to use the technique or not.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

For example, you mentioned the consumer price index, and I understand that's a basket of commonly purchased items. The things that are included in that basket of items change from time to time. I believe it's done by the Bank of Canada, is it not?

[Jacinthe Bourdages]

Yes.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

There's a process, so people can understand how that works. That would be an example.

You also mentioned in your comments that it helps to promote interjurisdictional harmonization. We have a big concern in Canada about harmonization of various laws and regulations between provinces and the federal jurisdiction. I know you've given us some examples here in writing. Could you take us through an example of where this kind of incorporation by reference could help with the harmonization of provincial and federal standards?

[Jacinthe Bourdages]

Yes. Perhaps I'll let my colleague Patricia walk you through the examples that were provided.

[Patricia Pledge]

We did provide you four examples of current incorporations by reference to highlight the types of materials that are incorporated currently and the different ways that they may be most commonly used.

On the first page, you'll see there's an example of the Fort William First Nation Sawmill Regulations. These are regulations made under the First Nations Commercial and Industrial Development Act. It is a way of harmonizing federal and provincial legislation with respect to resource development on first nations lands. It's an example whereby we've made a federal regulation that incorporates by reference the bilingual laws of Ontario and makes them applicable to the first nations reserve in question where the development is going on.

You mentioned the CPI. That's an example we've included as well on the last page. It's included in the federal Softwood Lumber Products Export Permit Fees Regulations, and it's part of the factoring of fees in that regulation. You'll see it also makes a reference to the U.S. Department of Labor's Bureau of Labor Statistics there, too. So it's a perfect example of how it can be used effectively to harmonize between jurisdictions, not just federal and provincial but also Canada and the United States.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay, thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much. Thank you for those questions and answers.

Our next questioner is from the New Democratic Party, Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

My thanks also to the three witnesses for joining us today. Anyone listening to us at the moment probably does not understand a great deal about this bill. This discussion is extremely technical.