Debates of May 23rd, 2013

Incorporation by Reference in Regulations Act

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the NDP can wish it away all they want. It is not going to disappear until the premiers and the Prime Minister are sitting at the table.

I can tell the member that the leader of the Liberal Party is very much open to listening to what Canadians and the premiers across this land have to say about it, if in fact we want to enter into constitutional discussions. However, what we will not do is mislead Canadians by making it sound as if all we have to do is say we should abolish it and it is gone. In government, there is a responsibility to make sure that the process is gone through.

We have to respect the fact that there are differing provinces possibly with differing opinions, but everything is on the table, from the Liberal Party's perspective. Liberals are not going to be closed-minded on it. Remember that there is only one party, the NDP, that has closed its mind on it. It does not matter what Canadians or other provinces have to say, it just wants to abolish it. If that is what it is going to be, that is what it is going to be at the end of the day, but we have to approach it with an open mind. That is what I would encourage the New Democratic Party to do: join us in supporting the idea of having an open mind in terms of the future of the Senate of Canada.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, in reference to my colleague and his opposition, apparently, to this bill, I would like to ask the following question.

The member for Okanagan—Coquihalla and the House leader for the New Democratic Party both talked about business certainty and the importance in our trading nation to have rules that we can adopt from other jurisdictions because it is more efficient, businesses advise, to go to Europe, the United States or other parts of the world—shipping was used as an example—to incorporate their rules rather than having to reinvent the wheel every time in Canada. Does that argument about business efficiency not attract support from the member as a consequence?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Quite frankly, Mr. Speaker, I do not think the Liberal Party has to take any lessons in international trade from the Conservative government or the NDP opposition. All we need to do is look at the Liberal years in government. There were huge trade surpluses. In fact, in the last year of the Liberal government, there were billions of dollars in trade surplus. There consistently were trade surpluses. It is only today through the current Conservative government that we have seen trade deficits, which have been very damaging in terms of the economic performance of Canada. We could and should be doing a lot more.

Yes, changes to regulations can be a good thing in many different ways if they are done properly, but I would not necessarily make the member's point, given that the government has turned a huge trade surplus into a huge trade deficit, as the one that is going to resolve it, especially if he believes the only way to resolve it is to change regulations. It is going to take a lot more of an effort to make back the gains that have been lost by the government.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, I appreciate the opportunity to join in the debate on Bill S-12, from that other place.

It is interesting, and it needs to be said, that the bill is here because the Senate, of course, has the power to generate bills itself. A lot of people are looking at the scandal that is going on right now and are thinking that we have to get rid of all of that so we can go back to the way we were when the Senate did not really get involved in things. However, the reality is that for any bill, this one or any other, to become law, it has to pass this place and it also has to pass through that place.

Given there are fewer seats in that place than there are in this place, the relative weight of a vote is worth more in the unelected, unaccountable Senate than it is in the elected, accountable House of Commons. Therefore, this is serious. The crisis is not just the scandal, it is the state of our democracy where we give equal if not greater authority under our Constitution to a body that has no moral, ethical or democratic legitimacy. That needs to be said every time we are dealing with the Senate of Canada.

It is not just the horrific headlines and scandals that we are seeing. It is the scandal that unelected people can vote on our laws, have to vote on our laws, and their weight is worth more than those of us on both sides of the House who are going to have to go back to our constituents and knock on doors to say, “I'm here to be accountable”. We will never hear a senator say, “I'm here to be accountable”. However, we have to live where we are now,

I recognize that my colleague for Winnipeg North took a different approach. It would have been nice to hear him say that he wished the Senate was abolished too so at least we would all be on the same starting page rather than just finding a nice way to avoid taking a position. Yes, the NDP is the only party that has taken a clear position to abolish the Senate. Of course, it is easier for us because we do not have the baggage of appointed senators leaning on our shoulders and whispering in our ears “don't hurt me”.

Our position remains clear. I think a growing number of Canadians are beginning to believe and understand that, as not a single province has a Senate left, we do not have to have a Senate. It is a choice of whether we want one or not. For 35 million people, give or take, there is a good argument that we do not need to duplicate the House of Commons.

When I was at Queen's Park in the legislative assembly, if there was a mistake made, just like when I was on city council, we brought in another bill to correct the mistake. It happens. The Senate is no guarantee that there are no mistakes or we would have a perfect country.

However, we are dealing with this bill now, which is actually very detailed and complex in terms of some of the references, especially for those of us who are not lawyers. We are all lawmakers, but we are not all lawyers, and we do not need to be.

One of the most important things that happens at the Standing Committee for the Scrutiny of Regulations is that there are elected people as well as very professional well-trained staff there to give advice, and so one does not have to be a lawyer. Sometimes, every now and then we get lawyers, and because they are lawyers, they then believe that their opinion, of course, is as good as any other lawyer and they engage in that debate. Whereas us mere mortals who are not lawyers will want to hear all the legal arguments as we do not have a vested interest in the outcome other than the best law that we can have. Having said that, there is certainly nothing strange about having lawyers become lawmakers, but a good mix is best.

My other experience with regulations is in two areas.

First, as a former provincial minister, I dealt with regulations. In the briefings with the legal department and policy people, I dealt with the essence of what was there. One does not debate as a minister, unless one is a lawyer. I certainly did not engage in a debate about what language should be in the bill when it came to a technical term, especially for a legal process. However, I would always pay attention if there were other learned people who felt differently, because it is my judgment my constituents elected me to bring here, not my skills as someone who necessarily can sit down with a blank piece of paper and write a law.

The other experience I had is that I am one of those lucky MPs in this place who was not only able to sit on the Standing Joint Committee for the Scrutiny of Regulations but was a vice-chair. Yes, people do not hear me reference it a lot. There is not much I can pull from that experience in speeches. I think that is the first time in 10 years I have been able to use it.

It was a fascinating committee. Again, if someone is a lawyer who is excited by lawyer things, the more that person will be excited at these meetings. It is great to see the professionalism when people care that much about where a comma goes or whether something should be a subclause of this or that. It is great, because it shows a part of law-making that Canadians do not see when they turn on the TV. Yet it is crucial, particularly when there is an opportunity to travel to other countries that are not as strong as we are economically or democratically. Believe me, many of them would give their right arms to have a committee anything like this so that the kind of detail they want in their law-making and regulations is there. They envy us. I did not always feel that I was in an enviable position when I was sitting on the committee, but when we look at it in a bigger context, we are indeed very fortunate.

As my other colleagues have mentioned, much of its work is to ensure, from a legal point of view, that the English and French texts say the same thing. All of us here, unilingual or bilingual, know that there can be huge differences in meaning with just one or two words or a phrase. It does not take a rocket scientist to figure out how amplified that is when we are talking about legal documents such as regulations.

Of course, in recent times, we have had other languages brought into play because of the issue of incorporation by reference. There are languages other than French and English that will find a way into our laws. There needs to be translation. It is hard to believe that there would not be some confusion and problems going from another language to French and English such as we have going from French to English and back and forth. Therefore, there are some serious issues here to be dealt with.

There were matters that came before that committee that were decades old in their lack of resolution. Mr. Speaker, I see you nodding your head. I assume that you have been on the committee. You know that sometimes there will be an issue that in 10 years has not been resolved. However, by the end of the meeting, the committee will have dealt with something that is 22 years old. It is amazing. From a practical point of view, we wonder how on earth it could be so important that we are still dealing with it but not so important that it had to be resolved 22 years ago. That is part of the excitement for those who are in the law. I see the Speaker, who is a lawyer, smiling but shaking his head no, so I am not sure what trouble I am in. I will plough ahead nonetheless.

The work is not exactly headline-making, but it really is important. I will go so far as to say that since we have to live with that other place, it allows us the ability, through a joint committee, to bring out any synergies that are there. That deserves to be said.

There is one more thing I want to mention before I get to the specifics of the bill. There is another area where regulations, in my opinion, should be on the radar of most Canadians in terms of understanding how this place works and how laws are really made.

I watched for many years how former Ontario premier Mike Harris would take many things that were already in legislation.

As members know, legislation can only be amended by Parliament. Regulations, on the other hand, do not require Parliament. That is at the core of what we are dealing with here. It is these automatic changes that come from referencing other agreements outside of Canada, such as international agreements or national agreements from other countries, where there is a reference in our regulations. As they make changes, those changes come in and are automatically updated. At least that is my understanding of one of the key issues in Bill S-12.

What we went through in Ontario is worth mentioning, because it was very scary. Many times, but not every time, when that Conservative government was amending legislation, it would often take things out of the legislation and put them in the regulations.

For instance, if there is a law that says that the Government of Ontario, or any province, has the right to set speed limits on highways, those speed limits will be set by regulation so that the law itself does not list every single highway in the province. The government would not have to go back and make a legislative change, with first reading, second reading, third reading, and in this case, all the way over to the Senate. In Queen's Park we did not have that problem. We dealt with it, as elected people, ourselves.

The regulations would then go to cabinet. They could modify or set a speed limit on a highway. That is how legislation and regulations are used in a healthy, democratic way. The principles are set out, and then on some of the details that are going to be different all over, regulations deal with them. There is still a procedure. It still involves the cabinet and the government, but it is a lot quicker and the whole House is not tied up changing one area of Highway 401 to lower the speed limit by 10 kilometres per hour. That makes sense.

However, and I am using this hypothetically, the government would then state that all laws pertaining to the highway that are under the constitutional jurisdiction of the province shall be dealt with by regulation. That sounds like a small change, but it is huge. It goes from having the right to change speeds without debate and to inform cabinet afterwards to doing anything on those highways, as long as there is constitutional jurisdiction. It never has to come to the House. That is not healthy. That is not a strong democracy.

Again, we are into areas here that sound very dry, but they matter. It is our job, of course, as the elected people, to roll up our sleeves and do this work.

We in the official opposition are comfortable enough with some of the goals set out to allow this to go to committee. However, at committee, there needs to be a great deal more scrutiny of this bill. We are hoping that this is exactly what will happen.

If I might, I would just mention this quote. It can never be said enough. It comes from the Standing Joint Committee for the Scrutiny of Regulations. They dealt with this issue in 2007.

Of course, 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.

I believe it was a colleague from my caucus who made this point. Given the fact there are going to be these changes to other pieces of legislation, how would one who looks at the regulations know that they are not in the midst of being changed? How much guarantee would they have that the language they are looking at is the law that would be applied to them? In Canada, ignorance of the law is no defence.

Again, this is not something I likely would have thought of, because I would not necessarily, as a rule, be the one to research the original documentation. If we were at committee, there would be staff doing it. Even if we were in our offices, we would ask our staff if we needed that level of detail. It is also not something I would raise as an issue, because I do not use it every day in this way.

Once it is spelled out and brought to the attention of any reasonable Canadian, we would understand that this committee not only had members of the government and opposition but had members from both places. I am assuming that it was unanimous and was supported by the entire committee. That is an assumption on my part. It had to matter, otherwise the politics of the day would have kicked in and there would not have been agreement.

I will tell members that there are a lot of very professional staff there. It is amazing to see the calibre of people who are in the room at these meetings. It is truly impressive. We are all very fortunate to have public servants with this capacity. It is obviously the staff who are usually the ones to recommend this kind of language. This matters. This matters from a practical point of view, which is what I can apply from my experience as a law-maker. What I am hearing loud and clear from people who understand this from a legal point of view and from a detailed policy point of view is that this matters.

I heard some reference to international business investment. Contrary to what the government likes to pretend, we care about those things. I believe that everyone in this House does, because it means jobs for our citizens, our constituents. These things need to be looked at.

We cannot really go into that level of detail here in the House. That is why we have a committee system.

Our position today as the official opposition is that we are prepared to give enough support to send it to committee. However, we will reserve judgment on that point, because we never know how it is going to go.

I would wrap up by saying that this is one of those times when things that seem not to be important, because they do not make headlines, really are. I am hopeful that we will see it sent to committee so that the kind of work that needs to be done on this important bill can be done and it can be brought back here for our final debate and determination as to whether we want to make it a law.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Mr. Speaker, one of the things the hon. member brought up was the fact that this particular bill does not seem to draw a lot of attention nor, most likely, will it reach a lot of headlines.

On that note, the scrutiny of regulations committee, with both senators and members on it, operates on a consensus basis, meaning that when an issue comes forward, the chair will ask what path we should take, and it goes around the room until we find something on which everyone can agree. Votes rarely happen in that committee.

The reason I raise this is that the concerns expressed around incorporation by reference, which is being used and has been used by the government and by Parliament in a number of different bills, have made some very useful suggestions in how to use incorporation by reference in a more codified way that ensures Parliament is properly consulted in legislation. This has come from a concern from a group of Parliamentarians. It is based on a consensus that this needs to be looked at. The government has codified it through a bill.

The reason I raise all this is that I would like the member to, first, acknowledge that this is good legislation, non-partisan legislation. Second to that, I would like him to explain what exact concerns he has, beyond just saying “We are not sure if this should go; we will send it to committee”. This is obviously not a partisan bill, but a good bill to help Parliament do its work.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, I thank the hon. member for Okanagan—Coquihalla for the question and I particularly thank him for the tone. Often we get into evening debates and things can get a little bit sharp-edged around here and elbows could come up. I appreciate the tone and I appreciate the question.

I would first say to the hon. member that, when members are on the government side, they always suggest everything is non-partisan, and they often see it that way, but when members are on the opposition benches, they are not as quick to say it is non-partisan so it could only be good. I just offer up that different perspective.

I would also mention to him that the co-chair of the current committee, my colleague from Hamilton Mountain, of whom I am very proud, said in relation to the bill:

The Conservatives have used ambulatory incorporation by reference—

which goes along with the static and the reference to legal terms

—170 times since 2006. Bill S-12 is essentially designed to give the government legal cover after the fact for its prior and ongoing illegal activities. Put differently and more specifically, proposed section 18.7 would retroactively validate a large number of provisions that were made without lawful authority.

It seems to me, if nothing else, a question like this coming from one of the co-chairs deserves to be answered.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I am pleased to have a chance to speak to this issue, and I was very glad that my colleague gave us a full exposition on the oversight committee on regulations.

Forgive me; I need someone to field me with some details on this committee. The committee has the ability to modify regulations or simply just return them to the government.

In the case of the bill, with the type of opportunity the government has to take regulations from other sources it does not control, would it not be that this committee would be sideswiped by this process in many cases, where the regulations that may be in place would be changed without that oversight occurring by the committee? Therefore that committee, which is an institution of this Parliament of which the members talk so highly, would lose some of its ability to ensure the regulations.

As he has told us, these regulations go back and forth very many times, and very bright and capable individuals are giving them a very deep and sincere scrutiny. Is it the case that we will have regulations now that will not be accorded the same respect by this Parliament, by the government, and in that case, are we losing something in the process we have?

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, it is not an easy question, I must say.

I think the question itself provides the answer. The fact is that I cannot answer the questions the hon. member is posing. What is the impact on the ability of our joint committee to continue to function in its current format and procedures? I do not know.

I do know that my colleague, who is the co-chair of the committee and who the hon. members across the way were complimenting in terms of the work that she does, has raised serious questions about what will happen to the issue of giving forgiveness to all these changes that have happened before.

I do not know the answer to that question, but I think that is exactly why we want to send it to committee and why we are saying we need to hear what happens at committee. We need to get the experts in to answer that very kind of question. I guarantee that the answers they give are going to pose a whole lot of other questions that need to be followed up and answered. We will need to do it so that the committee of the whole is satisfactorily comfortable that the scenario my hon. colleague is painting, where our current process is corrupting—and I use the word advisedly, although it is a bad word to use in the current climate—or not working, is failing us in terms of how well it worked before.

These are all very valid questions. I wish I could answer the hon. member, but I cannot. I do not believe that all of the members on the committee can, but they do know enough about what is going on to pose questions like the ones the member for Western Arctic is raising, along with many other questions. That is why we feel it needs to go to committee.

Roll up the sleeves, look at it in detail and hopefully bring a bill back here, in which the questions are answered and we can feel comfortable to move ahead.

[Marc-André Morin, NDP, Laurentides—Labelle, QC]

Mr. Speaker, without regulations, a law is worth about as much as yesterday's newspaper.

It takes a lot of brain power and many of our best public servants to draft coherent regulations that will pass legal and other tests.

When the government starts taking resources away from its departments, would it not be tempted to look for shortcuts? For example, it may be tempted to borrow existing regulations from neighbouring or foreign jurisdictions, private interest groups or associations.

One day we could have ocean carriers providing regulations for naval safety. What does my colleague think about that?

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, it is an interesting question, similar to the one from the member for Western Arctic.

I do not know the answer to the questions. That is why it needs to go to committee. They are very good questions.

I do not think we need to be lawyers to understand what is in front of us here. These are laws, Canadian regulations, which have the effect of law, that automatically get changed by virtue of another document generating another law, generated in another country or from a multilateral agreement. Changes within that agreement automatically make changes in our regulations.

I guarantee that if we put that kind of scenario in front of Canadians, they will tell us to make sure we know what we are doing and to make sure there are not laws being changed that are harmful to us or create huge mistakes. They will tell us to make sure we do our homework, answer those questions and give them good, regulatory law.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, it is my pleasure to rise to speak tonight in support of Bill S-12, an act to amend the Statutory Instruments Act and to make consequential amendments to the statutory instruments regulations. New Democrats are supporting this bill at this stage, so it can go to committee to be clarified and big questions that are being asked can be answered.

I sometimes think that, in this Ottawa bubble, we use language and terms and put stuff out there, thinking the public is going to be able to understand what is being debated in the House of Common tonight and what MPs from across this country are here discussing at 8:45 p.m. until midnight. Being an English teacher, I always want to see something in the title that will give me a clue or some kind of a lead. If I were not here but sitting in my living room, I would be wondering what on earth members of Parliament are discussing tonight. That, to me, is a huge issue.

We talk about participatory democracy. We televise the glorious debates that go on in this most august House, and we know there are people across this country, who might only be my mother, the member's grandmother and somebody else's daughter, who are sitting at home glued to the TV set watching this. There are Canadians who care and watch CPAC. They watch because they really are engaged in the subjects we are discussing. I think we do them a disservice at times with the language we use and present. I worry about that at times, but I am sure we will talk about that at length.

As members have said previously, we are really talking about changes to either static or ambulatory—are those not wonderful words; one could write poetry with them—regulations that are buried in legislation that can be changed as a result of other laws or regulations being changed without ever coming to the House. That should give us a little concern, and I hope it does.

There are some facts and figures that were quite shocking even to me after being here for two years. This is a quote from the Justice Canada Federal Regulations Manual, 1998, page 3, in case any of you need bedtime reading. I am sure it will be great. This is what it states:

There are, at the federal level alone, approximately 3,000 regulations comprising over 30,000 pages, compared with some 450 statutes comprising about 13,000 pages. Furthermore, departments and agencies submit to the Regulations Section on average about 1,000 draft regulations each year, whereas Parliament enacts about 80 bills during the same period. The executive thus plays a major role in setting rules of law that apply to Canadian citizens.

Therein lies the rub.

As much as we are sending this bill on to the committee stage, when do the stark numbers really strike home? Whereas Parliament deals with 80 bills in a year—though we might be able to do more if going until midnight might be the new norm going into the fall as well, especially with all the time allocation and closure motions—when 1,000 regulatory changes are made or draft regulations presented, one really begins to worry about the state of our democracy.

What happens when changes are made by regulation, it invests so much power in the hands of the executive, in the hands of ministers and those regulatory changes sidestep parliamentary oversight and parliamentary debate, debate here, going to committee, being fine-tuned, coming back here and debated again. As parliamentarians that really should give us pause to stop and think about what our role is as parliamentarians.

There are some things that do make sense to be in regulation. For example, we would not want to spend weeks, months and years in here discussing what the interest rates should be at the Bank of Canada. That is sort of like an ambulatory regulatory change. Quite honestly I would not want to spend months and years discussing that.

However, on the other hand, there are regulatory changes that are made that I would want to discuss in the House because they could affect how Canadians live and work, how they retire and how they spend their leisure time. Therefore, we cannot think that this is just a technical document, that it is a housekeeping bill, purely technical. When we think of how it will be applied in the future and how many regulations are introduced each year and then get changed, sometimes at ministerial whim, we really have to worry. As the previous speaker said, there were lots of questions he was asked and he said “I just don't know the answer”. Reading the legislation, those things are not very clear at all.

As I was going through the legislation, it made me stop and think that sometimes what we consider as just a technical change, a little housekeeping, actually ends up impacting people's daily lives. I can remember from another life, when I was a teacher, when a provincial government decided it was going to do some housekeeping, get rid of a lot of the red tape around the identification and designation of students with special needs. What happened with that? Overnight after the regulatory changes were made and the red tape was gone, children who had very specific and legitimate diagnosed learning needs on a Friday, by the following Monday, they no longer had those needs. It gave the government reason not to fund them.

Even though at the time in British Columbia, many people welcomed getting rid of the red tape and a lot of stuff that surrounded this, but people did not realize that removing a word here, or a phrase there, was going to have such an impact on families of students with special needs.

Therefore, we have to be very careful. I know we are talking about international and national agreements and all of these regulations that change in other places, but one of these days what if there is a government that makes some changes and that automatically forces embedded changes right here that impact us and our everyday lives. I think we would be very concerned.

The other thing we are very concerned about is that we are a bilingual nation. It is embedded in our Constitution and yet we know a lot of these regulations are not available to the public in a bilingual manner, so we want to ensure they are there.

Let me step back a moment for I have misspoke.

What I am looking for in this document is an explicit guarantee that when these regulations are embedded, static, ambulatory, I do not care what the name is, they are there in both official languages. We want to ensure we have that. We also want to strengthen this document in ways that ensure there would not be that kind of view.

It is always good to look at accountability and specificity. We live in this electronic age or age of technology, as it is also called. I am not as familiar with the full range of technology, but I do know that today my children, grandchildren and the young people I know, as well as many young-at-heart retirees, spend much of their time on the computer and want that kind of access. They want to access the regulations, to read them, understand them and know their history. However, at the age of 19, I was quite happy to know none of what was in the backroom.

When my children or grandchildren do research now, and it is amazing to watch the twins, who are in grade eight, they go much deeper with it because everything is available to them on their computer. They ask the kind of questions I would not have asked at their age. Therefore, we have to ensure we make available to the public not just the change that has been made, but what it was like before and what the impact of that change would be. I do have some reservations that none of that will be discussed, and that should be concerning for all of us.

I hear a lot about accountability and transparency. We need all of that. This document came from a place that is not so popular for many these days. I know it has gone through some scrutiny and some changes have been made. However, we are supporting it so it can go to a parliamentary committee where it can receive microscopic scrutiny and where we also hope our colleagues across the aisle will not behave as they have at other committees I have attended. We have taken amendments that ministers have suggested and we thought we have had agreement on and suddenly they are not there. We hope that when they go to committee and our official opposition amendments are brought to that committee, that they will be considered on their merit and not rejected because they come from the official opposition.

A couple of my colleagues look aghast, as if that never happens. I can assure them that I have sat at committee and have seen that happen over and over again, even where we have had committee members say that it is a good amendment or have had ministers say that they know we have some concerns and that they will be quite happy to put this line in. Then when we put the criteria they have suggested in word for word it is suddenly opposed. It leaves us second-guessing what the real agenda is. We do worry about that as well.

There are quite a few issues I could bring up with respect to accountability and the ability to work together.

I have a great deal of concern around regulations. I was absolutely shocked as a member of Parliament at how much substantive change could be made to the laws of this land through changes to regulations. We have seen a huge transformation in the area of immigration that has impacted people. A lot of that work and a lot of those changes were never debated at a parliamentary committee. Nor did they come to this august body, the House of Commons, to be debated. These changes appeared on a website through a press conference. A minister can make all of these changes

At the same time as I support this legislation, I also have a deeply held concern over the subversion of democracy as more and more power is vested into the hands of ministers and the executive branch. I am not trying to take any shots at my colleagues in government, because I believe a lot of this was started by the party that sits in that corner right now, especially when I look at immigration.

Just take a look at what happened the Friday before we went back to our ridings for home week. On Friday afternoon, we received massive changes to family reunification. I sit as a vice-chair of the immigration committee, but we did not receive the changes there. I come to Parliament on a regular basis, but the changes were not discussed here. The changes were made in an announcement that was absolutely floundering. I have talked with people in communities who are just reeling from the changes, and they are so fundamental that they have put into question our commitment toward community-building and our commitments toward families. Yet all of those changes happened without any debate in the House.

The income requirement has been increased by 30% before somebody can sponsor his or her parent to move to Canada. Yet many people in the House and across the country have enjoyed the benefits of family reunification over the years. We all talk about the value of family.

Then we look at this. One in five Canadians is born outside of Canada.

We have introduced a lottery system for family reunification. We have told Canadians right across this great country that no matter where they come from, only 5,000 applications will be taken each year. I never looked at it until I was talking with a group in my riding and somebody said that it was like the lottery, that individuals would have to wait many years even to get in line to come into the country. By the way, when people apply, it is not a guarantee, that is when they can join the line. What have we done there?

I could go on at length about other things that have happened in this parliamentary democracy that shut down debate. We have seen them happen. There have been closures and time allocations. I hear rhetoric that this is all about accountability, that this is just about cleaning up things. Forgive me for thinking that we have suddenly moved to a new phase of parliamentary debate in the House.

As I said, we support this legislation going to committee. We hope the regulations will have the kind of transparency and the kind of language that the average person will comprehend.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Mr. Speaker, I appreciate a fellow British Columbian talking about something that is very important to her nad supporting the bill. I am very happy to hear that the NDP is supportive of it in broad strokes and I am sure the committee will go through it.

I just want to reassure the member that the Government of Canada has very strict provisions for introducing all federal regulations in both English and French. That is backed up by case law. I can reassure her on that front.

The other part she talked about was delegated authority, and I think she misunderstands what that is. A delegated authority is created when Parliament says that the Governor in Council shall be able to make changes from time to time. That authority is delegated to that body in order to make timely changes. That again is why regulations are presented from time to time, and they go through a full gazetting process, which is again open to public consultation. There is also the scrutiny of regulations committee, which allows parliamentary oversight. There are many different mechanisms for the hon. member to make her views known if a particular regulation does not match up with a statute in law.

The hon. member spoke about how important it is for amendments to be open and for those to be presented. Can she name one specific amendment to the bill that she thinks would make it better?

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, I understand all about delegated authority. It is the delegation of authority over a huge number of issues in this Parliament that I am having a considerable amount of difficulty with.

I am not saying that the delegation of authority started now; it got started earlier into areas that I would say are pretty substantive and that should be debated in the House.

I cited just one case, but I can think of many others as well. However, I do not think the hon. member wants to stay here all night listening to the litany of examples I could give. He is only staying till midnight, and not beyond that, from what I have heard.

The other thing I want to say is that there has to be a role for Parliament. I can see the need for limited regulatory delegation, but I find the way the government uses delegated authority interferes with parliamentary democracy.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the NDP has been very clear that it supports the bill. I am wondering if there are any areas in which the member feels that if there are no changes made it would be safe to assume that New Democrats will continue to support the bill, or do they have tangible amendments that they will be proposing to the bill? If they do, can she share with us what those amendments are?

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, first, we are not at committee stage yet. If the bill should pass second reading, then we will come up with amendments, take those amendments to committee and debate them vigorously.

We have been very clear that we are only supporting the bill to committee stage. Once it gets to committee stage, depending on what happens there, we will have to decide whether we support it beyond that. It would be very foolish of us to say we are going to support it no matter what happens through the rest of the legislative process. I would never recommend that to anyone, by the way.

We are going to go there, do our homework and advocate to try to make things better for Canadians and to provide them with as much protection as we can from the government, and then we will make a decision about the future.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I want to commend the member on her speech. It was an excellent speech. I want to commend her in particular for the way she has been answering the questions put by both the Conservatives and her Liberal colleagues.

My question for the member is about the fact that we are sitting in a House facing a government whose members constantly say their government is all about law and order. If the Conservatives are serious about their law and order agenda, and if ignorance of the law is no excuse, then the law has to be accessible to Canadians.

One of the things I am profoundly worried about when I look at incorporation by open reference is that Canadians will not have access to the law. In some instances, if the regulation is done by a private corporation, Canadians may even have to pay to get access to those regulations. How can we ask Canadians to be responsible under our laws and regulations if we do not give them access to those laws?

Can the member comment as to whether she is equally concerned? Does she not think there is a bit of hypocrisy here when this kind of bill comes forward from a law and order government?

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, when I first looked at this legislation, in light of what I have seen happen in the area of immigration with the use of regulation and pronouncements from the minister, my first gut reaction was “no way”. No way, José. I was not going to go there.

Then when I began to think a bit, I thought that for some very specific and very tightly controlled areas it might make sense, but it would have to be very tightly controlled.

However, we have a government whose members on the one hand talk about law and order and on the other hand want Canadians just to trust them. This legislation is not very clear about the kind of transparency and about the kind of information that would be available to Canadians when they look at the regulations. Would they have access to the original documents? Would they be able to work their way through the history of it all, and would the information be there in bilingual form?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, can the hon. member for Newton—North Delta explain for me, because I cannot figure it out, what has changed since 2009, when this Parliament and the Standing Joint Committee for the Scrutiny of Regulations recommended against these broad and flexible ways of short-circuiting public scrutiny and access to review of the regulatory process?

At that time the members of the joint committee said, “What this really means is that it allows rules to be imposed without having to go through the regulatory process”.

This is part and parcel of a number of changes we have seen happening, including in Bill C-60, where there would be intervention at the political level over collective bargaining by crown corporations or through more discretionary powers at the hands of ministers. Slowly but surely, the executive in this country—the Prime Minister's Office, which is subservient to the will of Parliament—will have all the levers of power it needs to rule, with Parliament merely an anachronism.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, that is the reason we are prepared to go to committee: to ask those tough questions and get the kind of clarification and put checks and balances in place so that government does not ram through a bill just because it has a majority, which the Conservatives will probably do anyway.

However, I believe it is our responsibility to go there, get the clarification for ourselves and try to limit the power of the executive so the Conservatives do not keep expanding that power.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, l want to thank my other colleagues for having raised the level of debate on the bill before us.

When I was asked to speak on the bill earlier today, it looked like one of those dry and incomprehensible things that would be very difficult to get one's teeth into. However, upon reading it, I discovered there is actually a huge change being proposed in the powers of Parliament and the ability of Parliament to do its job, which is to make laws that affect the lives of Canadians. It is such a huge change because the bill proposes to make legal what the government has apparently already done 170 times since it has been in office without some check and balance on that ability.

The bill proposes to make legal the ability of the Governor in Council, which is the 60 men and women who make up the Privy Council, I suppose, to make regulations that are open-ended, to make regulations that are determined by third parties and to make regulations that are actually put in place by some other agency, maybe even a foreign government.

That is huge. It is very difficult for me, as a parliamentarian, to accept.

That said, there may in fact be rare occasions when it is appropriate to incorporate by reference a regulation that is created by an agency that everybody understands, trusts and accepts as the agency that is the world's leading expert on X, Y or Z. With that in mind, the NDP is determined that the bill go off to committee to see if we can whittle down this power to something that is acceptable.

I will read the summary of the bill, which is:

This enactment amends the Statutory Instruments Act to provide for the express power

—a power the government has actually already taken—

to incorporate by reference in regulations. It imposes an obligation on regulation-making authorities to ensure that a document, index, rate or number that is incorporated by reference is accessible. It also provides that a person is not liable to be found guilty of an offence or subjected to an administrative sanction for a contravention relating to a document, index, rate or number that is incorporated by reference unless certain requirements in relation to accessibility are met. Finally, it makes consequential amendments to the Statutory Instruments Regulations.

On the issue of accessibility, it says “unless certain requirements in relation to accessibility are met”, and those are not defined. Is that going to be a regulation to the Statutory Instruments Regulations? I ask because the definition of “accessibility” is not here.

I could not get a straight answer from any of the Conservatives I was able to ask questions of as to what exactly “accessibility” means in the context of the bill. It is not provided by the bill itself, yet the summary suggests that there are certain requirements in relation to accessibility. However, they are just not here. Does that mean we are regulating the regulations? It is very confusing.

The bill would put extreme amounts of power into the hands of the executive. As we have already experienced in this House, there have been complaints by certain members of the government party about too much power being in the hands of the executive. Those complaints led to a series of interventions before the Speaker of the House to ask that the Speaker actually rule to limit the power of the executive in controlling its ability to speak in this chamber. I would think that those same members of Parliament would be concerned that the bill before us would put even more power into the hands of the executive without any checks or balances or any way for the Parliament of Canada to determine in advance whether or not it is appropriate to incorporate by reference, which is what the bill suggests we should give the executive the power to do.

There is a Latin phrase, delegatus non potest delegare, which means that a delegate cannot give his power to another delegate. One cannot transfer one's ability to somebody else and say, “Here, you do it for me.”

That is essentially what this bill is suggesting should happen to the laws of this land, that we will make the law, as Parliament, but we will let somebody else determine how that law is actually written. That kind of rubs the wrong way. That is not something that I signed on for, to give somebody else the power to make the laws that we have been sent here to make.

I understand there is a majority position in the House, and so I do not get a whole lot of say. The government rejects any say we try to have in legislation 99.3% of the time, but at least we have that opportunity. This would actually give that power to a third party, to someone outside of this chamber, to change the laws of Canada. The government has already done it on 170 occasions, but until now it has been on a case-by-case basis. This act would actually make it legitimate every time. I have some difficulty with that.

Other legislatures have looked at this problem and come up with rules around how this delegation of authority should be used. Perhaps that is something we should be talking about in committee, because we are not going to have any amendments here. Maybe there are places and times when delegating a regulation is an appropriate thing, but we need to know when those times are and what those regulations would be.

I would suggest, as was suggested by some other legislatures on this planet, that one of the things would be only if it is impractical to do otherwise than to transfer that authority. It should be expressly authorized. It should be clearly quantified. The rules regarding subsequent amendment to that regulation should be clearly stated, so that we cannot just have some third party deciding how to change those regulations.

There should be consultation before those regulations are incorporated. There should be access, and we have talked about access. There ought to be accountability in the hands of the minister. If a minister is going to actually delegate his or her authority to a third party, that minister then has to be accountable for whatever that third party does.

None of that is spelled out in this bill. I worry, too, that we open the door to creating regulations that are in another jurisdiction, in another country, in another part of the planet. As an example, we have privacy regulations in this country that determine that our personal information should be kept private, should be kept in a way that is not disclosed to third parties. However, as we have discovered over the past few years, many of our banking institutions, our utility companies and our telephone companies routinely put that information in other countries.

Does that mean that the government could then legitimize that practice by making those other countries' privacy laws apply to those transactions? That would bother me. I would not want to have that happen. I do not want some other country determining the privacy of my personal information. It then encourages the harmonization of our laws with other perhaps less democratic jurisdictions or perhaps less forward-thinking jurisdictions or perhaps less effective jurisdictions. I do not want to encourage the government to get lazy.

On the issue of accessibility, I have asked the question several times, “Is this accessible in terms that a person with a disability would understand?” I have not gotten a clear answer from the government.

It appears that the word “accessible” is just the word “accessible”. There is no definition of what accessible means anywhere in this act. There is no definition of what is not accessible. It just says it must be accessible. Does that mean that if I have $250 to get a copy of the regulation, I have to pay $250 to get a copy of the regulation from some third party, if that is what that third party wants to charge? Does that mean it is then therefore accessible, because somebody with money can get it?

That is not what our normal level of accessibility is. Accessibility means that all of our laws are published in such a way that libraries across the country have them, and all of the regulations are available to anybody in this country who can walk into a library and get them for free.

Does the word “accessible” mean that we can have costs now for the regulations that are part of the laws that govern this country and, therefore, if a person does not have the money it is no excuse?

The other concern I have, and some my colleagues have already mentioned it, is the origin of this legislation. It is ironic that we are discussing a Senate originating bill when we are in the midst of quite an all-consuming controversy about the Senate.

Many Canadians have phoned me and have emailed me to say they no longer have any confidence or trust in the Senate and that they no longer have any use for the Senate. We are dealing with a government bill originating in the Senate that gives the government huge, sweeping powers and originates from an organization, the chamber down the hall, in which many Canadians have lost complete confidence. Many Canadians have lost complete confidence in the Conservative government's ability to use the Senate. They are calling upon the Government of Canada and us as parliamentarians to do away with the anachronistic and unrepresentative organization down the hall.

That then lends me to have some difficulty dealing with a bill that came from there when Canadians are saying they do not trust it. I am not certain that will not colour how we deal with future bills from the Senate, or even this bill. If this bill from the Senate, where I am told to not trust what they are doing, because the place is rife with difficulties, should this bill not have originated there? Should this bill, and any bill that were are dealing with, originate here in the House for it to be trusted and accountable to the people?

In terms of the actual specifics of what the government has done over the past few years, the example that jumps immediately to mind is Bill C-38 from last year, which was the first bill of the big 450-page omnibus bill that eliminated the old Environmental Assessment Act and replaced it with a new, more tepid, Environmental Assessment Act. "More tepid" is probably the best thing I could say about it. Buried in that act is exactly what this bill intends to make law:

(1) A regulation made under this Act may incorporate by reference documents that are produced by a person or body other than the Agency, including a federal authority referred to in any other paragraphs (a) to (d) of the definition “federal authority” in subsection 2(1).

(2) A document may be incorporated by reference either as it exists on a particular date or as amended from time to time.

(3) The Minister must ensure that any document incorporated by reference in a regulation is accessible.

(4) For greater certainty, a document that is incorporated by reference into a regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

Therein is the most telling example of what is intended by the government. This is not something that is benign or innocuous because some other agency does a better job of determining health and safety regulations. We now have given over to an agency and we have no idea who it is because the regulation has not yet been made.

Schedule 2 of that act said that the components of the environment that can be studied in an environmental assessment will be determined by regulation. Until that regulation is published, we cannot really study the environment. Now, we learn that the government can also incorporate by reference some other agency's determination of what the environment is. It can determine whether or not human health, the socio-economic well-being of Canadians and the physical, cultural, architectural and historical heritage are part of the environment. All of these things are no longer defined. They are incorporated by reference. That regulation now can be determined by some other body or agency.

Maybe that “some other body or agency” is a provincial government. Maybe it is a territorial government. Maybe it is the Government of Venezuela. It does not say.

There is nothing specific in this regulation whatsoever. It says we can do whatever we want. The minister can also enter into an agreement with a foreign state or a subdivision of a foreign state or any institution of any such government or an international organization of states or any institution of such an organization with respect to Canada's environment. This is part of what bothers me with this huge law. We are walking down a road that lends itself to letting other people decide what is good for Canadians and I want to know exactly what is in here. We have absolutely no knowledge whatsoever of what the government intends to do by suggesting that regulations defining the environment can be determined by some other body and can be amended from time to time by some other body. That body is not defined. There is no justification for doing that.

We have had an Environmental Assessment Act for many years that had a good definition of the environment. Why the government chose to change it, we can probably guess. This is a classic example of what we are afraid of. By making this legal, the government will take really key things that are important to Canadians and make the regulations governing them amendable by some third party and we have no idea who they are.

I am trying to be helpful here. I will give an example of something that might actually be a good way to incorporate a regulation by reference. If, for example, the Minister of Health were to determine that there needed to be a regulation governing diesel exhaust and its effect on humans adjacent to a rail corridor, something that is near and dear to the people in my riding, she might decide to make that regulation accord with the World Health Organization's standards, which most people agree are by far the most up-to-date and scientifically accurate standards. The World Health Organization would then be, by reference, the standard by which Canada would measure carcinogens and particulate matters as a way of regulating them. That may be an example of something where incorporation by reference is actually not a bad thing. We would not have to duplicate the effort of the World Health Organization. We could feed into the World Health Organization rather than creating our own system of measurements and standards. That is not all this bill says.

Another possibility is the Labour Code has health and safety regulations that include references to elements of the environment to which a worker in a federally regulated workplace might be exposed. There might be an organization out there that actually publishes good standards that all in the House could agree that, as amended from time to time, are not a bad way to go. However, we do not have any limit that says we should agree on them first.

In conclusion, we do not necessarily disagree with the premise, in some limited circumstances, of ambulatory references, references that can be changed from time to time without reference back to the House, but we need some strict controls on when and how they are used. That is not in this bill. We need the agreement of all in Parliament on the specific reference. That is not in this bill. We also need at least some guidelines and controls for the government to actually utilize when it is drafting legislation so that it knows that this is not something that will run afoul of the general agreement that we might be able to give if we can put some guidelines, controls and strictures around this regulation-setting power by the government.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Mr. Speaker, I appreciate the member across the aisle for his speech. I would like just to go through a few points in it.

He did mention some of the changes that happened to Bill C-38 to amalgamate 41 different agencies into 3. Obviously, there were some changes there, and so I think some answers need to be forthcoming.

For example, he said the minister would be able to delegate authority to certain processes that had not been yet named. That is simply because we work with our provincial partners that have equivalency or may want to substitute certain environmental processes to ensure it gets done on a timely basis. Whoever has the most expertise, I think, should be in charge of that process, whether it be the federal government or the province. That is to be worked out.

However, if we look at labour and environmental health and safety, we work with the provinces all the time, and so when we harmonize these things, it would be better for business, better for Canadians—one set of rules.

Again, I have heard multiple references to amendments. People have said that we say we welcome amendments. I say we do.

However, here is the problem. The member for Kings—Hants, in Bill C-45, put 300 amendments forward, each one like 101 bottles of beer on the wall, such as asking for one day to be changed as to when the bill would then take effect.

I would like to hear from the member one amendment that is—

[The Acting Speaker, Conservative, Barry Devolin]

Order, please.

The hon. member for York South—Weston.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I would agree with the member opposite if that is what Bill C-38 said. However, it does not say that we are to harmonize our regulations with the provinces. It does not say that at all. It says that the minister may make regulations that can be amended at any time and those regulations can reference other jurisdictions, not just the provinces. It could be anywhere. Bob's towing company could be the one setting the regulations for our environment. That is not acceptable.

If it specifically mentioned the provinces, I would not have a problem with it.

In my speech, I actually referred to some specific things that could be done to make this a better bill, but maybe he was not listening.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, in listening to the member's comments on the bill, I thought he seemed to be very much focused with respect to the whole issue of delegation. He even made reference to a Latin phrase, I believe it was, in which it talks about how, if a person is delegated something, he or she should not be empowered to delegate. I respect what it is that the member is saying. I think it is a well-principled position.

If the bill passes and goes into committee stage, there should not be any doubt that there would be additional delegation from a group, so to speak, that was already delegated the responsibility.

Given the member's comments that he did not get elected to support that sort of thing, why would he then personally vote in favour of the bill going to second reading?

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, in the same vein of what happens in a union meeting when somebody moves a motion, somebody seconds it so it can get discussed. That is what we are saying here. The government is doing it anyway. The government is actually passing these portions of its bills 170 times so far without any strictures around them. If we are going to stop the government doing certain things, the bill has to go to committee and amendments need to be brought forward to limit what the government is already doing.

I hear what he is saying about delegatus non potest delegare. That is a basic principle. However, as I also said, there may be, on rare occasions, places where it makes sense for Parliament to actually do that. We should examine ways of making that happen that would not be too scary.