House of Commons Hansard #210 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was regulation.

Topics

Combating Terrorism Act
Government Orders

3:25 p.m.

Some hon. members

Agreed.

On division.

Combating Terrorism Act
Government Orders

3:25 p.m.

Conservative

The Acting Speaker Bruce Stanton

(Motion agreed to)

Incorporation by Reference in Regulations Act
Government Orders

February 13th, 2013 / 3:25 p.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

moved that Bill S-12, 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.

Today I would like to speak to you about Bill S-12, Incorporation by Reference in Regulations Act.

Bill S-12 has been studied by the Senate and has been adopted without amendment. This bill deals with a regulatory drafting technique. Essentially, the bill is about when federal regulators can, or cannot, use the technique of “incorporation by reference”.

The technique of incorporation by reference is currently used in a wide range of federal regulations. Indeed it is difficult to think of a regulated area in which incorporation by reference is not used to some degree. Bill S-12 is about securing the government’s access to a drafting technique that has already become essential to the way government regulates. It is also about leading the way internationally in the modernization of regulations.

But more specifically, Bill S-12 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. This bill would create the legal certainty that is needed to respond to those concerns.

Incorporation by reference has already become an essential tool that is widely relied upon to achieve the objectives of the government. It is an effective way to achieve many of the current goals of the Cabinet Directive on Regulatory Management, an important directive from the government that is designed to improve the efficiency and performance of regulations.

For example, regulations that use this technique are effective in facilitating intergovernmental co-operation and harmonization, a key objective of the Regulatory Cooperation Council established by our Prime Minister and President Obama.

By incorporating the legislation of other jurisdictions with which harmonization is desired, or by incorporating standards developed internationally, regulations can minimize duplication, an important objective of the Red Tape Reduction Commission, which issued its report earlier this year.

Incorporation by reference is also an important tool available for the government to facilitate Canada’s compliance with its international obligations. Referencing material that is internationally accepted rather than attempting to reproduce the same rules in the regulations also reduces technical differences that create barriers to trade and is in fact something Canada is required to do under the World Trade Organization’s Technical Barriers to Trade Agreement.

Incorporation by reference is also an effective way to take advantage of the particular expertise of standards writing bodies in Canada. Canada has a national standards system that is recognized all over the world. Incorporation of standards, whether developed in Canada or internationally, allows for the best science and the most accepted approach in areas that affect people on a day-to-day basis to be used in regulations. Indeed, reliance on this expertise is essential to ensuring access to technical knowledge across the country and around the world.

Testimony by witnesses from the Standards Council of Canada before the Standing Senate Committee on Legal and Constitutional Affairs made it clear how extensively Canada already relies on international and national standards. Ensuring that regulators continue to have the ability to use ambulatory incorporation by reference in their regulations means that Canadians can be assured that they are protected by the most up-to-date technology.

Incorporation by reference allows for the expertise of the Canadian National Standards System and international standards system to form a meaningful part of the regulatory tool box.

Another important aspect of Bill S-12 is that it allows for the incorporation by reference of rates and indices, such as the consumer price index or the Bank of Canada rates, which are important elements in many regulations. For these reasons and more, ambulatory incorporation by reference is an important instrument available to regulators when they are designing their regulatory initiatives.

Bill S-12 strikes an important balance by limiting the types of documents that can be incorporated by reference when these documents are produced by the regulation maker. Indeed, the incorporation of these documents can only be done statically. This is an important safeguard against circumvention of the regulatory process.

Parliament's ability to control the delegation of regulation-making powers continues, as does the oversight of the Standing Joint Committee for the Scrutiny of Regulations. We expect that the standing joint committee will continue its work in respect of the scrutiny of regulations at the time that they were first made, as well as in the future. We expect that the standing joint committee will indeed play an important role in ensuring that the use of this technique continues to be exercised in the way Parliament has authorized.

Another important aspect of this bill relates to accessibility. Bill S-12 not only recognizes the need to provide a solid legal basis for the use of this regulatory drafting technique, but it also expressly imposes in legislation an obligation on all regulators to ensure that the documents they incorporate are accessible to the public.

While this has always been something that the common law required, this bill clearly enshrines this obligation in legislation. There is no doubt that accessibility should be part of this bill. It is essential that documents that are incorporated by reference be accessible to those who are required to comply with them.

This is an important and significant step forward in this legislation. The general approach to accessibility found in Bill S-12 will provide flexibility to regulatory bodies to take whatever steps might be necessary to make sure that the different types of material from various sources are, in fact, accessible.

In general, material that is incorporated by reference is already accessible. As a result, in some cases, no further action on the part of the regulation-making authority will be necessary. For example, provincial legislation is already generally accessible. Federal regulations that incorporate provincial legislation will undoubtedly allow the regulator to meet the requirement to ensure that that material is accessible.

Sometimes, accessing the document through the standards organization itself will be appropriate. It will be clear that the proposed legislation will ensure the regulated community will have access to the incorporated material, with a reasonable effort on their part.

It is also important to note that standards organizations, such as the Canadian Standards Association, understand the need to provide access to incorporated standards. By recognizing the changing landscape of the Internet, this bill creates a meaningful obligation on regulators to ensure accessibility while still allowing for innovation, flexibility and creativity.

Bill S-12 is intended to solidify the government's access to a regulatory drafting technique that is essential to modern and responsive regulation. It also recognizes the corresponding obligations that regulators must meet when using this tool. The bill strikes an important balance that reflects the reality of modern regulation while ensuring that appropriate protections are enshrined in law. No person can suffer a penalty or sanction if the relevant material was not accessible to them.

The proposal would provide express legislative authority for the use of this technique in the future and confirm the validity of existing regulations incorporating documents in a manner that is consistent with that authority. There is every indication that the use of this technique will be essential to implementing regulatory modernization initiatives here in Canada in conjunction with our regulatory partners in the United States and around the world.

To conclude, enactment of the legislation is the logical and necessary next step to securing access in a responsible manner through incorporation by reference in regulations. I invite all members to support this legislative proposal and recognize the important step forward that it contains.

Incorporation by Reference in Regulations Act
Government Orders

3:35 p.m.

NDP

Françoise Boivin Gatineau, QC

Mr. Speaker, I would like to thank the Parliamentary Secretary to the Minister of Justice for his speech on Bill S-12, which some have been referring to as the housekeeping bill. But this bill has more to offer than you might think. It is a new form of regulation making, but not entirely new.

The Senate tackled the issue of incorporation by reference, and we should be tackling that issue here in the House, too. The parliamentary secretary mentioned that Canada sometimes refers to regulations made in other countries.

How does the Official Languages Act fit in this context? Does the hon. member have any concerns about compliance? Is the government open to the idea of protecting regulatory accessibility in both of Canada's official languages?

Incorporation by Reference in Regulations Act
Government Orders

3:35 p.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

Mr. Speaker, I would like to thank the member for her question.

This reductionist technique in no way affects the rule of law as it applies to official languages. The Reference re Manitoba Language Rights already recognizes the possibility of incorporating by reference in a single language. Is that the standard we wish to adopt? Certainly not. We know full well that the federal government always tries to make documentation available in both official languages.

As for international treaties, we know that it is not always possible to disseminate them in both official languages, for technical reasons. Similarly, materials of a technical nature, such as expert opinions, plans and diagrams, are often disseminated only in English. Some bilingual provinces, such as Quebec, Manitoba and New Brunswick, incorporate references that are unilingual into their provincial statues. Obviously, efforts are made to respect bilingualism.

Incorporation by Reference in Regulations Act
Government Orders

3:40 p.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Mr. Speaker, the manner in which regulations are put into place is of critical importance given the very nature of what it is that government is attempting to do.

The question I have for the parliamentary secretary is with regard to processing. I understand that this has gone through the Senate. Could he give a brief explanation of the process from the federal administrators and the manner in which it would have been presented to the Senate? Was it at the committee stage? Could he provide a bit of detail as to how the Senate would have acquired the legislation in its conceptual stage?

Incorporation by Reference in Regulations Act
Government Orders

3:40 p.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

To be quite honest, Mr. Speaker, I am not sure exactly why the bill emanated from the Senate. What I can say is that the technique is one that has generally been used in a number of legislative enactments and there was always uncertainty as to whether it could or should be used. In fact, all the act would do is formalize and authorize the utilization of this technique so there could be no question as to whether something can be incorporated by reference into legislation.

One thing that is very important to recognize is that when it is incorporated in legislation, the governing body, whose document is incorporated, has an obligation, as does the federal government, to make sure that it is totally accessible. If there were a question, for instance, of the costs being prohibitive, we would not incorporate by reference a document that may not be readily accessible because of cost.

It is also important to note that no person who perhaps would not have access to a certain document incorporated in legislation could ever be prosecuted or sanctioned if it was not readily accessible.

Incorporation by Reference in Regulations Act
Government Orders

3:40 p.m.

NDP

Françoise Boivin Gatineau, QC

Mr. Speaker, as I was saying when I was questioning my colleague, the Parliamentary Secretary to the Minister of Justice, to some people, it may seem as though the House is dealing with a housekeeping bill. I read this in a newspaper article today. However, in my opinion, Bill S-12 is anything but a housekeeping bill. It is crucial to our role as legislators. It is not necessarily bad, but it has a lot of ramifications.

When I arrived here at the beginning of this Parliament, I co-chaired the Standing Joint Committee on Scrutiny of Regulations. When the party leader at the time, Jack Layton, called me to tell me that I was going to co-chair the committee, I wondered what it was all about. I thought that I was quite knowledgeable in this field, but during my all too brief stint on this committee, I had the opportunity to work with the great legislative and legal minds in this Parliament, and I learned a lot about the important role played by this joint committee, which brings together senators and MPs. This committee ensures that our regulations are in line with the legislation and the delegation order and that they are written in specific way.

As an aside, right now, members of the Standing Committee on Justice and Human Rights are discussing a motion that I moved regarding Justice Canada's obligation, under the Department of Justice Act, to assure this House that any bills that are introduced in the House or the Senate are consistent with the charter and respect the division of power under the Constitution.

The same exercise applies when it comes to regulations. I urge my colleagues in this House, who will have to deal with Bill S-12 and decide whether it should be sent to the Standing Committee on Justice and Human Rights, to examine the bill and the changes it makes. Obviously, it adds text to what we call regulatory statutes. People are not necessarily aware of the Statutory Instruments Act, which states in section 3 that:

(1) Subject to any regulations made pursuant to paragraph 20(a), where a regulation-making authority proposes to make a regulation, it shall cause to be forwarded to the Clerk of the Privy Council three copies of the proposed regulation in both official languages. (2) On receipt by the Clerk of the Privy Council of copies of a proposed regulation pursuant to subsection (1), the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that (a) it is authorized by the statute pursuant to which it is to be made;

It is important to understand that in order to have the right to regulate, the agency or deputy minister must have the authority to make or draft regulations.

(b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made; (c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and (d) the form and draftsmanship of the proposed regulation are in accordance with established standards.

What the heck does the Standing Joint Committee on Scrutiny of Regulations do? My colleague from Hamilton Mountain co-chairs the committee with Senator Runciman from the other place. Every week, they receive stacks of regulations. If you think that we study a lot of bills in these chambers, it is nothing compared to the regulations. It can be mind-boggling.

I am telling the House about all this because that which is extremely important for our constituents is often found within the regulations. It is often through the regulations that we are able to say, based on enabling legislation, that a person has the right to do something or not.

We have regulations by the tonne. Thank heaven, because often the lawyers, the great legal minds we have in this precinct—and I am referring not to the House, but to the support provided at the Standing Joint Committee for the Scrutiny of Regulations—have already done a good analysis. For example, they communicate with the Minister of the Environment or the deputy minister to tell him that there is a problem with the regulations, and that he must rectify it. Sometimes the English version does not correspond to the French version. It is unbelievable.

I recall going before a liaison committee to have a budget adopted. I heard colleagues from the House, legislators, say that the Standing Joint Committee for the Scrutiny of Regulations was a waste of time, when it is the bastion for the Canadian public that makes sure that regulations hold up, that they are legal and are not unconstitutional or contrary to the charters. That is a big responsibility.

I would like to give my colleagues some background so they do not think that Bill S-12 is mere housekeeping. What does it do? It extends the powers of the authorities that are empowered to make regulations. It allows them to practice what I call the "et cetera" or "dot dot dot" technique.

I am not saying this to diminish the impact of Bill S-12. I understand why it is sometimes important to use incorporation by reference, given that it can be a lengthy, costly and sometimes utterly irritating process that often has a lot of red tape and pitfalls that may seem to be administrative. We know why. This is an effort, possibly with good reason, to cut delays so we can be effective in a modern society, as my colleague the parliamentary secretary put it. Technology has changed and we have computers. I certainly do not intend to stand in the way of progress. But progress must not come at the expense of the rights of the people we represent. That is extremely important.

I encourage my colleagues in the House to read. It will be a funny thing to hear a New Democrat talk about the Senate, but it is the government that decided to go by way of the Senate for a bill this important. In my opinion, no bill, and especially not bills that have as far-reaching an impact on the people we represent, should start out in the Senate, because senators are not representatives of the people, they are individuals who have been appointed by the government in power, whichever one it may be.

Given this background, when bills of this nature and with this far-reaching effect are to be introduced, bills that can have significant consequences for the people we represent, they should be introduced here.

Having said that, I do believe the Senate does its work seriously. The parliamentary secretary insisted on the point that the bill was adopted without amendment. Personally, that is not something I would boast about, because some senators had raised solid and serious objections.

I encourage members of this House to read what happened in the Senate and what was discussed. Various witnesses were heard, including experts in regulation. People working on the standardization of regulations are in favour of speeding up the process. As I said earlier, that is not a problem. Still, it must not diminish the legislators' powers, the powers we still enjoy in this fine democracy, thank God, to ensure that things are done properly.

That is one of the major problems. This bill speaks of accessibility. In other words, someone may find they have contravened a regulation. The body that made the regulation must demonstrate that its regulation was accessible. What is meant by "accessible" is not very clear. How will it be accessible? We are used to searching the Internet, using computers, and we can type and find things.

The other day I was telling someone that I have been a lawyer for almost 30 years. It is astounding to see how things have improved and accelerated. Now we can get answers in 3.25 seconds to questions it used to take two weeks to answer.

I wonder how I was able to answer all the questions and provide services when I was first practising law. Now I am able to do it in a fraction of the time it used to take. Newcomers to the profession do not know what it is like to go into a law library, take out books and search for regulations. Now they only need to type in "regulation concerning such and such" and it appears on the screen.

But not everyone has these skills. Not everyone is Internet savvy. Some older people may have more difficulty.

The regulations that are incorporated by reference may not be very accessible. How does one find a document? What is the starting point? What clues are there regarding incorporation by reference?

Some other questions have occurred to me. If we are searching for international treaties or standards, for example, which ones should we use to find out what stage they are at in those countries?

Let us imagine a person from my part of the country, Quebec, who lives in the most distant part of the province, who does not speak a word of English, and receives a regulation written only in English.

It could also be in New Brunswick, my colleague's province, where there are proud francophones who insist that things be written in both official languages.

All of this was discussed in the Senate. Details were provided about the type of reference documents being discussed, and what would be included.

I encourage members to read the senators' speeches, the questions they asked, and the answers provided by the minister, for example. It is more than simply updating the process. We must also deal with the content and the direction we want to go. Nevertheless, our fundamental right as legislators is to be able to view and analyze regulations.

We have been told that it will not diminish the role of the Standing Joint Committee on Scrutiny of Regulations. I have my doubts about that, because the committee will be able to examine the initial regulation, but for any reference and what becomes of it, the committee will not be able to follow through.

I do not think that our legal drafters will use the regulation that has been referred if, at some time, they want to see where it is at a given moment. They will study it with respect to adoption and drafting of the regulation itself.

And yet it is clear in the Statutory Instruments Act: a regulation must have been published. This is going to short-circuit a large part of the regulations we are accustomed to.

I will repeat: the NDP is not against progress. We are prepared to support the government and send the bill to committee.

However, I would like to see some openness on the government side. I make the same appeal every time: when we have objections, we are not trying to throw a monkey wrench into the works; we are trying to protect ourselves from those wrenches hitting us on the head later, if this kind of regulation is implemented.

There will be situations when people have not had access, and other times when it is not in the right language. That takes us back to step one.

The NDP often tries to keep the government out of trouble. I do not think the Conservatives intentionally look for trouble. Perhaps they would benefit from listening to what the official opposition is telling them.

We will take our considerable reservations and worries to committee. We will hope to get answers that were given but not necessarily listened to in the Senate. The House and the Standing Committee on Justice and Human Rights hope to get these answers. If not, there may be a lot of difficulty getting support for this bill in the next stages.

If there are amendments to be proposed, I hope that all my colleagues on the Standing Committee on Justice and Human Rights will have open minds and will not assume that everything coming from the opposition is necessarily bad. At the heart of the matter, we all want to help Canadians understand.

Thousands of statistics on regulations are adopted every year. It is important to understand them and to provide for the use of incorporation by reference. I will leave it up to my NDP colleagues, some very knowledgeable law professors, to explain the difference between static incorporation by reference and ambulatory incorporation by reference. Since I do not want to put anyone to sleep here in the House, I will leave it up to the professors, who know how to make it all very interesting.

Nevertheless, with all these methods, it is hard to see things clearly. It is not like reading a document that clearly states what the regulations are. There is a logical outcome, but we cannot necessarily see it. We do not know where, since answers from the Senate are not always clear, but I hope we can get some clearer ones.

I have heard MPs say that the Standing Joint Committee on Scrutiny of Regulations is useless. Although I am no longer a member, from having been one in the past, I can assure this House that it is one of our most important committees, because it serves as a watchdog and it is non-partisan.

Perhaps my speech did nothing more than convince the members that that committee is non-partisan, and heaven knows that there is precious little about this place that is non-partisan. For goodness' sake, we need to make sure it stays that way. It is fundamental, because it is our guarantee to Canadian defendants and litigants that the regulatory work is being done in their interest, legally and in accordance with the Canadian Constitution and the Charter of Rights and Freedoms.

And with that, I am now ready to answer questions.

Incorporation by Reference in Regulations Act
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4 p.m.

NDP

Rosane Doré Lefebvre Alfred-Pellan, QC

Mr. Speaker, I would first like to thank my colleague for Gatineau.

In preparation for today's sitting of the House I tried to read some of Bill S-12 but, to be perfectly honest, I needed some clarification because it is not always easy to understand these types of bills.

The member for Gatineau's speech has me worried, particularly with regard to the French fact in these regulations. I am very afraid. I have heard many things from the citizens of Alfred-Pellan, Laval, from the entire greater Montreal area.

Recent studies show that the French fact is being threatened and that the use of French is on the decline. This has my constituents very upset. Heads will most certainly roll if someone back home asks for regulations and gets them in English. Many people would not be happy about that.

Does my colleague believe this part of the bill will be adequately studied in committee? Is there something we can do about the French fact in Bill S-12?

Incorporation by Reference in Regulations Act
Government Orders

4 p.m.

NDP

Françoise Boivin Gatineau, QC

Mr. Speaker, that is indeed one of the serious issues arising from the study of Bill S-12.

Delegation and dynamic incorporation by reference, for example, mean that any future regulation taken by a regulator is automatically incorporated here, which does not always allow us to know what is coming.

Let us suppose that we have decided, by regulation, to bring Canadian international trade regulations in line with those of Australia—a country that comes to mind and that I would like to visit. There are rules on the books in Australia, though surely not regarding bilingualism. In such a case, one can be sure the regulations will only be in English.

One can only imagine a business owner from the Lower St. Lawrence trying, in vain, to understand those regulations, in all their complexity.

Could that individual argue that he need not follow the regulations given that they were not accessible within the meaning of the act as amended by Bill S-12? I do not know, and the answer certainly does not lie in the Senate deliberation transcripts.

Incorporation by Reference in Regulations Act
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4 p.m.

NDP

Guy Caron Rimouski-Neigette—Témiscouata—Les Basques, QC

Mr. Speaker, I thank the member for Gatineau for her excellent speech on a very technical—yet very important—topic.

She spoke about the definitions included in the bill, which are often vague. For example, in the case of ambulatory incorporation by reference, the existing authorities must make a reasonable attempt to make the information accessible.

I will use employment insurance as an example. Statistics Canada often provides the unemployment rates. However, not too long ago, we had to pay to access statistics from Statistics Canada. It is now free, but it was not before. There is no guarantee that in five, six or seven years, this service will not have a fee again. If that were to happen, this data would be less accessible and the purpose of this bill would be compromised.

Does the member for Gatineau agree with my interpretation? Does she think this is a potential obstacle to passing a bill that is meant to make it easier for all Canadians to access the regulations and laws?

Incorporation by Reference in Regulations Act
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4 p.m.

NDP

Françoise Boivin Gatineau, QC

Mr. Speaker, I entirely agree with this viewpoint.

This problem could arise again. It was also raised in the Senate. An amendment, which actually made sense, was put forward to ensure that it is not just about documentation, because this is the only thing that we can have any control over, here, in Canada. There are rules on bilingualism, and it is simpler to follow them than to say to some foreign regulatory body that we want to receive its documents in French. It does not work that way.

There may be a way to make sure that the essence of the bill is kept and to make everything more modern and faster, while at the same time protecting, of course, established rights in Canada and in Quebec.

Incorporation by Reference in Regulations Act
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4:05 p.m.

NDP

Chris Charlton Hamilton Mountain, ON

Mr. Speaker, I am a member, in fact I am the co-chair right now, of the scrutiny of regulations committee. The committee has been seized with this issue and has discussed it many times. In fact, the committee, in 2007, issued a report on this very matter. I want to quote one section of that report from our joint committee for the scrutiny of regulations. It noted at the time that:

...incorporation by reference also gives rise to concerns relating to accessibility to the law, in that although incorporated material becomes part of the regulations, the actual text of that material must be found elsewhere. Such concerns are heightened where material is incorporated “as amended from time to time”, in that members of the public may have difficulty ascertaining precisely what the current version is at a particular point in time. Where open incorporation by reference is to be permitted, provisions should also be put in place to require the regulation-maker to ensure that the current version of an incorporated document is readily available to the public, as are all previous versions that were previously incorporated.

My colleague spoke about this already, and I want to follow up a bit. I know that because we are now in an electronic age, some of us think it is easier to access materials now than it ever was before, that all we need to do is click on the web and everything will be there for us. However, we also know from other discussions we have had in the House that not all Canadians have equal access to those online resources. One of the things we need to absolutely make sure of is that the law would be applied equally for all Canadians and that all Canadians have access to the laws and regulations they are being asked to abide by.

I wonder if the member could take a couple of extra minutes to talk specifically about that issue of accessibility in the electronic age.

Incorporation by Reference in Regulations Act
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4:05 p.m.

NDP

Françoise Boivin Gatineau, QC

Mr. Speaker, I do not want to go over my background again and say when I began practising law. In my view, one statement a day about that is enough. Nonetheless, today’s world is completely different from what it was when I started in the law. I am not going to say anything more about it, because everybody would be able to guess my age.

All this to say that it is not just a question of age, but also of natural ability. I know some young people who have no technological skills. None. Just because the world is moving fast now and we all have access to our portable computers, we cannot assume that this necessarily holds true for all 30 million Canadians in this wonderful country.

Of course, as my colleague said, you have to take the necessary steps. I would again like to underscore the high quality of the work done by the Standing Joint Committee on the Scrutiny of Regulations, whose members feel it is important to protect the general public and to ensure that we are all equal before the law. This is something that should not be different or more difficult for certain people.

There will of course be difficulties in implementation. It is not that we are against the bill, but we can foresee these difficulties. We do not have our blinkers on. When one of our bills is under consideration, we do not tell ourselves that it is perfect and that nobody can touch it. We are thinking about the people in our riding who will never be able to understand what it means and will not realize that, with rolling incorporation by reference, it is not the 1985 regulation that will apply but rather the version that has been in effect for a number of years already.

Let us be realistic: this is already being done. The government knows it was wrong to proceed this way. It is trying to remedy the situation by adding a specific clause to the bill to correct everything that has been done without authorization in the past.

In my view, there must be an in-depth study of the issue.

Incorporation by Reference in Regulations Act
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4:05 p.m.

Liberal

Massimo Pacetti Saint-Léonard—Saint-Michel, QC

Mr. Speaker, I am pleased to rise today to outline the Liberal Party of Canada's position on Bill S-12 to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. The short title makes the bill's purpose clearer: the Incorporation by Reference in Regulations Act. Before commenting on the bill, I would like to explain to the House what incorporation by reference is.

In today's environment of globalization, regulation is becoming increasingly complex. For example, we must accept international standards for reasons of trade, safety and security. This reality is reflected in Canada's regulations. In order to simplify the writing of regulations, the regulatory authorities are relying more and more on incorporation by reference. Incorporation by reference can be either closed—also known as static—or open—also known as ambulatory, dynamic or rolling.

Closed incorporation by reference is merely a style of drafting. Rather than including a complex, multi-paragraph definition from another document in a regulatory text, the regulatory authority simplifies the reading and writing by referring to the other document as it appeared on a given date. That incorporation is called closed, because the version of the cited document is the one that existed on the date specified in the regulation. If the cited document is later changed, the new version will not automatically be incorporated into the regulation.

Open incorporation by reference, on the other hand, is a kind of sub-delegation of the power to make regulations, since the current version and future versions of the other documents are being incorporated. If the incorporated document is amended after the regulation is adopted, it will automatically be part of the regulation. Therefore the regulatory authority no longer has control over the regulation, since another body can change the document incorporated by reference, completely independently.

According to the analysts at the Standing Joint Committee on Scrutiny of Regulations, open incorporation by reference is not legal, except when Parliament expressly authorizes the regulatory authority to use it. That would mean, for example, that Parliament would need to pass legislation to permit it, or give such authorization when the power to make regulations is delegated. Open incorporation by reference amounts to a sub-delegation of the regulation-making power, which is contrary to our Constitution and our statutes.

The government, particularly the Department of Justice, is of the contrary opinion, and has used open incorporation by reference in many regulatory texts. For example, since 2007, the Conservative government has used open incorporation by reference at least 300 times. One reason the Conservatives introduced Bill S-12 in the Senate was to put an end to the debate and legitimize their way of doing things. The bill would authorize the regulatory authorities to sub-delegate the regulatory power without needing to obtain Parliament's authorization.

Clearly, this is a very complex bill. Since it affects all federal regulation, it is also very important. The Conservatives quietly introduced this bill in the Senate, but apparently they did not take their work seriously. The bill is full of flaws, some of which will have a serious impact on Canadians and the linguistic duality of our country. The Conservatives are too short-sighted to recognize these flaws and it will be up to the courts to make decisions.

Which way will the Supreme Court lean and when? I have no idea. Until that time, we will live in uncertainty, which will be bad for businesses, for francophone rights, and for all citizens' access to the law.

According to the analysts at the Standing Joint Committee on Scrutiny of Regulations, the Canadian Constitution does not allow sub-delegation of the regulation-making power. When Parliament delegates a regulation-making power to a department, for example, the department should not delegate that power again to another entity using incorporation by open reference.

This type of incorporation amounts precisely to sub-delegating the regulation-making power, since all subsequent amendments made by the foreign entity will automatically become part of the Canadian regulations.

This bill will legitimize this sub-delegation of the regulation-making power. It is understandable that globalization has made it necessary to coordinate our regulations with our partners'. This also benefits the regulation-making authorities since the present situation is confusing for them. It is also understandable that sub-delegating the regulation-making power will reduce the workload for regulation-making authorities, and this will enable them to free up resources for other tasks. For example, if they do not have to be constantly updating regulations to coordinate them with the incorporated documents, regulation-making authorities will gain an enormous amount of time. So the Liberal Party and I understand that the bill is satisfactory to them.

For Canadians and democracy, however, this bill creates more problems than it offers solutions. The Parliament of Canada will lose a portion of its control over regulations, since foreign entities will sometimes be deciding the content of our regulations. In other words, Canada will lose a portion of its sovereignty when the documents incorporated by reference come from entities outside Canada. The sovereignty we lose will be gained by others, like our principal trading partner, the United States. We quite often have to coordinate our regulations with that partner, but this bill means that it will sometimes be our neighbour that will decide the content of our regulations directly, without any participation by the Canadian government.

We believe that Parliament, which represents all Canadians, cannot agree to sub-delegation of the regulation-making power such as is permitted by Bill S-12, unless it has expressly authorized it when the regulation-making power was delegated in enabling legislation.

One of the worst problems this bill will create is the reduced accessibility of regulations. Clause 18.3 in the bill does state that the accessibility of the document incorporated by reference must be ensured by the regulation-making authority or the minister who is accountable for it to Parliament, but that is problematic since the bill says nothing about what the criteria are for accessibility or how the document is to be made accessible.

In other words, this confirms that the regulation must be accessible, but accessibility is not defined. Clause 18.4 of the bill states:

18.4...a document, index, rate or number that is incorporated by reference in a regulation is not required to be transmitted for registration or published in the Canada Gazette...

If the documents incorporated are not registered, how will they be accessible to the public? Will it be enough to provide the name of the document incorporated? Does the government have to provide copies of the document incorporated to people who want it?

If accessibility means publishing certain information, such as the name of the document and its authors, it is quite likely that there could be situations where the document incorporated is protected by copyright.

In that case, it would be up to the individual or the corporation to pay large amounts to obtain the document. Once again, the government would be shifting the cost onto the people. The law is supposed to be accessible to everyone. However, this bill could restrict accessibility. In short, there are more questions than answers about accessibility with Bill S-12. Judges will have to deal with these issues.

As I said earlier, clause 18.4, which confirms that documents incorporated do not have to be registered or published in the Canada Gazette, will reduce transparency and, in particular, make it impossible to examine regulations. The Standing Joint Committee on Scrutiny of Regulations does not have the resources needed to examine all federal regulations. Just imagine for a moment what will happen if this bill is passed.

With the multiplication of the number of incorporations by reference, regulations will be constantly changing. It will be impossible to examine everything. The government's transparency will be greatly affected, which is obviously not what we want.

According to an analyst to whom we posed the question, the committee would probably need 10 times more resources than it has now in order to carry out its work properly after the passage of Bill S-12. Are the Conservatives likely to give the committee proper funding? Knowing them as I do, I predict that they are not, and this does not bode well for the transparency and effectiveness of our regulations.

The lack of clarity in the bill is unfortunately not restricted to the general accessibility of documents or to the transparency of the government. Canada’s linguistic duality could well be jeopardized. Because the incorporated material does not have to be registered or published in the Canada Gazette, there is no guarantee that it will be available in Canada’s two official languages.

In the 1992 Manitoba language rights reference, the Supreme Court held that a document referred to in a federal regulation was subject to section 133 of the Constitution Act, 1867, and that it should be incorporated in both official languages, except if there is a bona fide reason for its incorporation without translation. This exception for legitimate reasons applies to material prepared by an international body or another foreign entity.

As we are all aware, English is now the dominant language on the international stage. French is still used in certain large organizations, but in general, English dominates. More often than not, then, the material that will be incorporated will be in English. Therefore, this means that the federal regulations will be available in English but not in French.

Will a document that is available only in English be considered accessible according to clause 18.3 of the bill? Perhaps it will, perhaps it will not. We will have to wait until the courts rule on the issue according to their interpretation of clause 18.3. Uncertainty and confusion will therefore reign for a number of years to come if the bill is passed as it currently stands.

Regardless of the courts’ interpretation, the problem will still exist. There are precedents in Canadian history where documents incorporated by reference were only in English. For instance, if the courts decide that the regulation-making authority has a duty to provide a French translation of incorporated material that is available only in English, how are we going to judge individuals accused of having somehow broken the law?

Let me explain. Since open incorporation by reference amounts to automatically incorporating all the updates made to a given document in Canadian regulations, we can expect that it might take some time to make the translation available.

Section 18.6 states:

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 or it was otherwise accessible to that person.

In a case where the original is in English, will we have a legal system where anglophones and francophones are judged differently? Since the French translation—if there is one—is not immediately available, could a unilingual francophone be acquitted because of the translation time? What about a case where a francophone understands English?

I want to look at the last part of section 18.6: “...or it was otherwise accessible to that person”. That means that no matter how a judge interprets section 18.3 on accessibility, a person could be charged if they had access to the law in some way. Since no one is considered ignorant of the law, will we have cases where francophones who understand English are criminally charged because the document was available in English but not in French? If that is the case, French will again be marginalized and francophones will be forced to work in English because documents will be available in English long before they are translated into French, if they are translated at all.

But that is not catastrophic. Truth be told, this bill is full of holes, and it will be up to judges to fix them. It will take years before everything is fixed. Until then, I have no idea what will happen, and neither do the Conservatives. Nothing in this bill answers these questions, and the government cannot claim that there are no problems with the bill. Despite everything, it is quite possible that francophones will once again lose out because of the Conservatives' carelessness.

We know this government, so we know that no amendments will be approved. However, I hope that the Conservatives will be open to amendments during the committee process. I urge all of my colleagues, regardless of their party, to vote against this bill, which will weaken our powers as parliamentarians, hurt linguistic duality and limit the public's access to our laws.