Evidence of meeting #57 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was documents.
A recording is available from Parliament.
4:05 p.m.
Conservative
The Chair Conservative Mike Wallace
Hold on, Madam Boivin, we can't hear your English version.
Okay, thank you.
4:05 p.m.
NDP
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.
4:05 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
Mr. Chair, Ms. Boivin is right to mention that Bill S-2 is the result of a long debate between the government and the Standing Joint Committee on Scrutiny of Regulations. Putting an end to that debate is really one of the main objectives of the legislation because the government and the Standing Joint Committee on Scrutiny of Regulations were deadlocked. Sometimes they agree, sometimes they disagree on some points. On this point, there was disagreement between the government and the Standing Joint Committee on Scrutiny of Regulations. As has correctly been pointed out, the committee considered than any dynamic incorporation by reference not expressly authorized is invalid.
December 4th, 2014 / 4:10 p.m.
NDP
Françoise Boivin NDP Gatineau, QC
Ms. Bourdages, did they not say more than that, that in fact it had to be expressly mentioned in the enabling legislation?
Perhaps this is because I have made my way, as my colleague said, to the Standing Joint Committee on Scrutiny of Regulations. But, if I understand correctly, for you, this act will be enough to give the authority. The question becomes “who will have the power to enact sections 18.2 and 18.3?” I will come back to that.
This explicitly authorizes the government to operate in that way. It was my understanding that the members of the committee—and I was not one of them at the time—preferred each act to have its own provision allowing it.
Far be it from me to start the debate on this issue again, although I think it is an interesting one. The bill seems to be very technical and very routine. We hear all the time that, in a world with piles of legislation and where regulations and requirements change quickly, we have to find modern ways of working. I have nothing against being modern, believe me, but neither must we forego our legal duty to check the regulations thoroughly. I can understand why the members of the joint committee had a problem with this.
As it is, analyzing regulations is very complex. It is not just regulations created by dynamic incorporation by reference. Imagine when they start trying to trace regulations back. That is what they are going to have to do. I doubt that they will create a registry in which all regulations by dynamic incorporation can be found. It will be a really mind-numbing task. It is not as if there were tons of people doing that research for us. The risk is that this will complicate the situation.
Sometmes, I have a problem with some of the government's legislation. Is it constitutional? Does it comply with our Charter? You have to chuckle when you look at the amended text of Bill S-2. It includes a new section, made up of clauses 18.1 to 18.7, but we must not forget section 3 of the Statutory Instruments Act. This states that the Clerk of the Privy Council must, among other things, verify legality and compliance with the Charter.
My concern about the creation of this kind of dynamic incorporation by reference is this. I know that, in the Senate, there were a lot of debates on accessibility, and the degree to which documents will be accessible. There is also the question of the legality behind the regulations that are passed.
My other concern is the following. Some time ago, Minister Nicholson appeared before a Senate committee. He gave some examples on international security. As others have mentioned, this will involve a lot of treaties, regulations and international standards. Let us not delude ourselves, the minister himself mentioned that it was a desired outcome, and that would certainly be true in this regard. This may well have repercussions for our people. They have to be able to handle it all.
In addition, your argument on bilingualism absolutely did not convince me. It is true that the Supreme Court said what it had to say on the matter. This concerns me even more because it means that we are in danger of having a huge number of regulations incorporated by reference that come from external treaties with countries that do not have the same obligations for bilingualism as Canada does. To my mind, that is a bit of a concern.
4:15 p.m.
Conservative
The Chair Conservative Mike Wallace
That wasn't really a question.
If you could be very succinct in trying to answer that....
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
I'll try to be. There are many points in there; I'll try, though.
Under this bill, the government is proposing to amend the Statutory Instruments Act precisely because section 3 of that act is always relevant and that it also applies to documents that are incorporated by reference.
Of course, at the same time, section 3 deals with the limit of the power of regulations and documents that are incorporated by reference, as well as with Charter obligations. Documents incorporated by reference, just like the regulations into which they are incorporated, must be submitted to those tests. You are quite right to mention that.
As for the Standing Joint Committee on Scrutiny of Regulations, it is possible that members do not agree with the direction of Bill S-2. However, as I understand it, they do agree that dynamic incorporation by reference should henceforth be expressly authorized.
I believe that they would like dynamic incorporation to be limited to Canadian provincial legislation. That is a question of direction, but I feel that they do agree that, in legal terms, if Bill S-2 becomes law, that part of the issue will be solved.
4:15 p.m.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Thank you for those answers to that speech.
Mr. Dechert, the floor is yours.
4:15 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Madame Bourdages, you mentioned in your opening comments that this legislation in your opinion is very similar to the current practice of regulation-making authorities in Canada. Does this expand in any way on what currently happens in terms of incorporation by reference?
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
This legislation provides for a cadre. It's in the general application, if you will, but it does not expand on our current practice. There are some statutes that go further than Bill S-2. These are statutes, obviously, that were enacted by Parliament. There are statutes that don't go as far as Bill S-2.
Bill S-2 provides that for those statutes that didn't say anything about incorporation by reference, this will be the guide for them. It merely codifies the position of the government on incorporation by reference.
4:15 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So in fact we're now providing at least some guidance—
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
Some guidance, yes, as to the use of the device.
4:15 p.m.
Conservative
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
There was some in some acts, and as a result of the long debate with the SJC some regulators pursue having their statutes amended to provide express authorization for incorporation by reference. That is why we have about 66 acts that already do so.
4:15 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Is it fair to say this will then standardize the practice over all the statutes of Canada?
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
Not necessarily; for those organizations that have nothing in their enabling legislation, yes it will, but this is a default position.
4:15 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
It doesn't replace what's in another statute with respect to—
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
No, and that's why we have a provision that says that if the statutes have less or nothing, this governs; if they have more, their statute governs.
4:15 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
In your opinion, is it better to have some guidance about incorporation by reference or to have it wide open, as it is in some statutes?
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
One of the novel aspects of this legislation is, I would say, the obligation to have documents accessible. That's a first. It was a common law principle.
4:15 p.m.
Conservative
4:15 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
Yes. That makes it mandatory for regulators to have the documents accessible. It enshrines this common law principle in legislation.
The other novel aspect is the provision about the defence, that if the documents are not accessible, regulators won't be able to have a successful prosecution of the regulatees. So those two provisions are—
4:15 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Again, that's protection for the public that doesn't currently exist.
4:20 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
Right.
4:20 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
It would seem to me, then, that on the balance of probabilities it makes sense to adopt some form of standard regulation of this process of using incorporation by reference, rather than continue the way we have been doing in the past, which is that some statutes have it, wherever legislators have specifically allowed for it, and many do not, but the regulators use it in any event.
You mentioned that there hasn't been much case law on incorporation by reference, in your experience. Do you know of any? Can you tell us what happened in any of those cases?
4:20 p.m.
General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice
There are a few—three or four—of them. I'll let my colleague Patricia speak about them.