Justice Committee on Dec. 4th, 2014

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

Okay. What period of time was that over? Maybe she could tell us what level of court it went to.

[Patricia Pledge]

Of course on the issue of unilingual incorporation by reference, the highest decision we have would be from the Supreme Court of Canada in 1992, the Manitoba language reference, which really set out the parameters for when it is acceptable to incorporate material that is unilingual. That is really the highest level of court.

There are other court decisions. One of the highest would be from the British Columbia Court of Appeal from about 20 years ago, which set out the principle that documents that are incorporated by reference don't need to be published in the Canada Gazette and registered.

There is a case called Scott that dealt with reciprocal enforcement of family law orders and incorporation of provincial legislation. Again that was probably almost 20 years ago.

There is the odd case in which a document that had been incorporated by reference needed to be interpreted, but it is very rare. There is very limited case law at all to provide guidance on this, and no judicial guidance, which is why the government and the standing joint committee have not agreed on the principles that apply to this.

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

There have been no cases, for example, of somebody alleging that a particular level of government exceeded its constitutional jurisdiction by incorporating something by reference.

[Patricia Pledge]

There are constitutional interdelegation cases that relate to how the federal government and the provincial governments deal with their shared constitutional responsibilities. But they are not directly on point when it comes to incorporation by reference of the type that Bill S-2 proposes to be enabled here. So there's no case of that nature directly on point.

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

So in your opinion does this add protection for the public or does it open up possibilities that governments could do things in the shadows of regulation that they would be unlikely to do in the bright spotlight of Parliament?

[Patricia Pledge]

As my colleague mentioned, one of the main drivers behind the tabling of this legislation was to settle the dispute between the government and the Standing Joint Committee on the Scrutiny of Regulations, because we did not agree as to when incorporation by reference could be used or could not be used on an ambulatory basis.

One of the benefits or implications of this bill is that it will set a legal baseline. It will confirm the legal authority to do what the government had relied on the common law to support and the SJC had insisted be expressly authorized by each individual act of Parliament. So the benefit of enacting Bill S-2 is that there will be a solid expressed legal basis for the use of the technique.

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

Do you believe this bill meets the request of the scrutiny of regulations committee in their report?

[Patricia Pledge]

As my colleague Madam Bourdages said, it will settle the issue as to whether or not incorporation by reference has been expressly authorized by Parliament. It will firmly settle that.

The standing joint committee has submitted a brief in the Senate, and they do not agree that the bill should be as large as it is and apply as widely. I don't want to misrepresent that point. They would take a different approach, as Madam Boivin has indicated, a case-by-case approach.

But it will settle the legal debate on when it can and cannot be used.

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

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Madam Péclet.

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

My question follows up on the ones I asked about the oversight mechanism.

You told me that, when the joint committee looks at regulations, it will also look at incorporating the regulations. However, that only applies in the cases where the legislative authority is the one that makes the inclusion directly in the regulations, not when we are dealing with non-governmental organizations or foreign legislation. Basically, that is a problem. Let me give you an example.

Paragraph 18.1(3) reads as follows:

(3) The power to make a regulation also includes the power to incorporate by reference an index, rate or number—as it exists on a particular date or as it is varied from time to time—established by Statistics Canada, the Bank of Canada or a person or body other than the regulation-making authority.

It seems to me that the definition of the words “a person or body” is extremely broad in this case. As Ms. Pledge said, the scope of an act goes far beyond a simple examination of the regulations by the joint committee. We are talking here about a regulation-making authority that could incorporate other regulations without consultation in any case. It could even be an external organization, a foreign one. Perhaps I am wrong, but I believe that we may well be authorizing connections with no consultation or oversight mechanism.

Do you not find that the words “a person or body” should be better defined and have a meaning that is less broad? In some situations—as many witnesses in the Senate pointed out—our national standards could be changed by organizations without the slightest consultation.

[Jacinthe Bourdages]

Mr. Chair, I would like to thank the hon. member and suggest she refer to the last example of incorporation by reference that we provided.

It clearly illustrates the application of subsection 18.1(3) that you referred to. In this type of context a number, an index or a rate could be applied. We refer here to the consumer price index. These numbers and these rates, which are very easily accessible, are published by Statistics Canada, so by the government. Needless to say, they are published in both official languages

In practice, if this number, rate or coefficient was incorporated by reference in a regulatory provision, as is the case here, once the regulation is published in Part 2, the Standing Joint Committee for the Scrutiny of Regulations would study the document incorporated by reference, in the same way that it would review other provisions of the regulation.

In practice that is how it would work.

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

I understand. This is one example of many. However, as far as I know, the words “a person or body” are not defined restrictively enough. It could really be any kind of body.

A careful reading of section 18.4 shows that this does not necessarily require registration or publication, unless the incorporation was dynamic or changing.

In other words, does this really respect the conditions of the manual on acts and regulations, which requires that it be registered and published?

[Jacinthe Bourdages]

Mr. Chair, I would say to the hon. member that the following distinction needs to be made.

The documents incorporated by reference will not be published in the Canada Gazette. The idea underlying incorporation by reference is primarily not having to publish the incorporated documents.

However, the regulations that incorporate documents by reference will continue to be published in the Canada Gazette, which is what will allow people to know whether incorporation by reference has occurred. Part 1 of the Canada Gazette provides them with the opportunity to express their concerns. In Part 2, the Standing Joint Committee for the Scrutiny of Regulations can review these documents. The committee could even do so in Part 1, like any other citizen.

Indeed, there is no obligation to publish documents incorporated by reference, but they will have to be accessible through another mechanism.

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

Let's look at the example you just gave. If we included the U.S. Department of Labor and so on, they would never be required to publish this. I understand that it's available on the Internet, but there would still be an accessibility issue. If they are not required to publish or register these standards, the average Canadian would not have access to it.

[Jacinthe Bourdages]

There would be access through mechanisms other than the Canada Gazette. It might be through a website or something else. Technology is constantly changing. There might even be an iPad app. We might one day have an application that will make the documents accessible. It's always important to remember that the regulatory authorities have every interest in providing access to these documents because they want their regulations to be applied.

[The Chair, Conservative, Mike Wallace]

Okay. Thank you very much.

There is nothing from the Conservatives, so the last name I have on the list is Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I do not wish to make a speech.

These are my concerns, seriously, because I studied this in depth.

[The Chair, Conservative, Mike Wallace]

I didn't say it wasn't a good speech.

[Françoise Boivin, NDP, Gatineau, QC]

It's always a good speech, in my case, but anyway....

During Senate debates, a number of interesting issues have been raised. As I can see in the conclusion, the recommended amendments were not adopted in the Senate either. I would like you to tell us about that.

In a letter to the Minister of Justice in 2009 on incorporation by reference, the Standing Joint Committee for the Scrutiny of Regulations established a distinction between four types of documents. You have spoken about them.

There are documents related to federal or provincial legislation. That is not as complex because they are more accessible and in collections. There are also regulatory documents that are more difficult to find and interpret, particularly foreign legislation. Lastly, there are documents drafted by non-governmental organizations.

The committee had requested that this type of catchall section allowing regulation by dynamic reference concern only regulations that apply to federal and provincial legislation.

Could you explain to the members of this House committee why this suggestion was not accepted?

You could have done so for the others, with specific things that would alert people, such as with foreign legislation or a particular perspective. Still, we are giving the power. I have nothing against giving this power. I want that to be very clear. It's just the method used that I am questioning.

[Jacinthe Bourdages]

According to the government, when external documents from another agency without a link to the regulatory process are incorporated by reference, it is considered that it is for a legitimate reason and that Canada can seek out any expertise that exists elsewhere and use it.

The joint committee wanted that because it saw a problem with subdelegation, that the government did not agree with. I think that is why it wanted to have just dynamic legislation.

[Françoise Boivin, NDP, Gatineau, QC]

That delegation would have a direct impact by causing us to lose some of our democratic power, in a way. An external agency would be given a power over us.

[Jacinthe Bourdages]

It's important to remember that incorporation by reference is a choice, not an obligation. There are different ways to implement our international obligations. We can do it through legislation, incorporation by reference or routine regulations. The regulatory authorities have a range of choices. Incorporation by reference is just one tool of many and is not mandatory. If concerns like this exist, they need to be studied conscientiously when deciding whether to use incorporation by reference.

These agencies and entities do not develop these regulations for their future incorporation by reference. They would do it anyway. Then, it is up to Canada to decide whether it wants to benefit from their expertise through incorporation by reference. The government can also choose to pass legislation to fulfill its obligations.

[Françoise Boivin, NDP, Gatineau, QC]

In any event, we will see in due time the impact this will have on Canadians if this is not accessible. The courts will have to explain what the words “otherwise accessible” mean. If it was almost impossible to be informed or if someone was not aware, it would not have a negative impact on citizens. We understand that.

Section 18.7 still bothers me a little because it validates actions taken. In your introduction, you said:

It “does not expand” what is already used.

Perfect. This is still happening. Correct me if I'm wrong, but the section validates the past, just in case.

[Jacinthe Bourdages]

Indeed, it's important to mention that this provision is not a retroactive provision. It's purpose is simply to confirm the government's position on the matter.

Had it not been for section 18.7, the joint committee could have insisted on the fact that certain regulations should be republished or should be subject to retroactive legislation. This provision was added to avoid that legal uncertainty.

It is also to put an end to potential debate. In fact, in other cases, we had to legislate to retroactively validate certain regulations. Some regulations had to be republished at the request of the standing joint committee. So it was to ensure a certain legal certainty with respect to what already exists and to the practice of incorporation by reference.