Sean Casey

[Questions Passed as Orders for Returns, June 11th, 2015]

With regard to legal costs incurred by the government: what are all costs incurred for legal services, broken down by services provided internally and services contracted out, relating to (i) Reference re Senate Reform, 2014 SCC 32, (ii) R. v. Nur, 2015 SCC 15, (iii) Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, (iv) Reference re Securities Act, 2011 SCC 66, (v) Ishaq v. Canada (Minister of Citizenship and Immigration) 2015 FC 156 and its ongoing appeal?

[Questions Passed as Orders for Returns, June 11th, 2015]

With respect to advertising for the Canada Revenue Agency (CRA) for the years 2003 to 2015 inclusively: (a) what was the advertising budget for the CRA, broken down by year; (b) how many different advertising campaigns were created and used, broken down by year; (c) how many different advertisements were produced and used, broken down by year; (d) what was the total cost (design, production, airtime, printing, etc.) for the advertising campaigns in (b); (e) what was the total cost (production, airtime, printing, etc.) for the advertisements in (c); (f) what was the cost to produce the television, radio, print, or online spots, broken down individually by advertisement; (g) what companies produced the advertisements, broken down individually by advertisement; (h) what was the cost of television airtime for the advertisements, broken down individually by advertisement; (i) on which television channels were the advertisements aired; (j) what was the cost of online airtime for the advertisements, broken down individually by advertisement; (k) on which online platforms were the advertisements aired, broken down by (i) free media (i.e. posting to YouTube), (ii) fee media (i.e. online commercials); (l) what was the cost of ad space in newspapers and other print publications, broken down individually by advertisement; and (m) what programs or divisions of CRA were responsible for (i) overseeing and coordinating production of the advertisements, (ii) financing the production of the advertisements, (iii) financing the purchase of airtime both on television and online, and print space in newspapers and other print publications?

[Incorporation by Reference in Regulations Act, June 9th, 2015]

Mr. Speaker, I thank my colleague for her speech.

There are a couple of questions that I have already posed on which I would like the member's opinion.

The first is that we had two witnesses at committee. One was the president of Consumer Health Products Canada and the other was the CEO of the Standards Council of Canada. They both called for bureaucrats to have some guidelines promulgated by Treasury Board that would govern their powers and abilities to incorporate by reference.

The second is with respect to something I tried to explain in response to a question by the member for Toronto—Danforth. This statute sets up two categories, static incorporation by reference and ambulatory incorporation by reference. Static incorporation by reference is available only when the document in question is within the power of the regulation-making authority and ambulatory is available when it is not. In my view, the problem with that is that the government can do indirectly what it cannot do directly by having involvement in those bodies that control the content of documents to be incorporated in an ambulatory fashion.

Does the member have an opinion on that?

[Incorporation by Reference in Regulations Act, June 9th, 2015]

Mr. Speaker, the committee heard from two witnesses, both who offered the committee and the government the same advice, and that was that Treasury Board should put together guidelines for bureaucrats to use when exercising the power of incorporation by reference. Does the member agree with that advice from the experts at committee?

[Incorporation by Reference in Regulations Act, June 9th, 2015]

Mr. Speaker, that is a good question.

That is something we discussed in committee. It is true that the word “accessible” is not defined. We asked the witnesses that question. Some practices in the international community have changed in order to publish documents affected in that way. There is no definition in this case, but we could adopt some of the international practices.

The hon. member is absolutely right. In order to be certain, this concept needs to be defined in the bill and currently it is not.

[Incorporation by Reference in Regulations Act, June 9th, 2015]

Mr. Speaker, I am sure it will come as no surprise to the member for Toronto—Danforth that he is indeed correct. Any lawyer knows that one needs to know the answer to the question before posing the question.

What the statute proposes to do is make incorporation by reference a principle of general application. It would also retroactively validate all those documents that have been incorporated by reference by regulation. That, of course, is a concern.

The government would say that this is simply codifying the existing practice, but quite frankly, for the reasons I enunciated earlier, that is not quite good enough. There ought to be better oversight in place.

One of the big problems with oversight is that where a regulation-making authority has control and custody of the process, only static incorporation by reference is available. However, where it does not, ambulatory incorporation by reference is available. Ambulatory incorporation by reference means that there can be changes made without parliamentary oversight as the documents are amended from time to time. My concern is that if the government puts people on the panel who are able to avail themselves of ambulatory incorporation by reference, they can then do indirectly what they cannot do directly.

We heard at committee that this is very common. There are Canadian government officials and bureaucrats on these international tribunals who are able to amend these documents in this way.

[Incorporation by Reference in Regulations Act, June 9th, 2015]

Mr. Speaker, I rise today to speak to Bill S-2, the incorporation by reference in regulations act.

Liberals will not be supporting the bill. I want to be clear that we do not seek to invalidate incorporation by reference in regulations, a technique that has been long in use and that is useful on a case-by-case basis. However, the government cannot be trusted to act responsibly with these expanded powers. We have seen time and time again the government's abuse of oversight mechanisms. I think specifically of its use of omnibus legislation and its bad-faith approach to the Department of Justice's constitutional review process, including the use of private members' bills to avoid that process.

A general power to incorporate by reference could embolden the government to do indirectly what it cannot do directly. For that reason, expanding the government's power to delegate lawmaking to foreign or private entities will not serve the public interest.

Liberals will not expand the Conservatives' power to privatize and export the power to make Canadian law.

There is also a chance that this bill could prioritize the English version of Canadian laws by allowing changes to be made to the English text without updating the French version.

To be clear, we agree that regulating by reference will undoubtedly continue to expand. Globalization, standardization, and technical and scientific progress make the tool necessary. However, a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference.

Bill S-2 is a highly technical bill. Before elaborating on why Liberals will not be supporting it, let us go over the contents of the bill. Bill S-2 would amend the Statutory Instruments Act to provide an express general power to incorporate by reference in regulations. To incorporate by reference is to give a secondary document legal force by referencing it in regulations, such as a set of technical standards developed by the Standards Council of Canada.

Incorporation by reference has long been in use, and it is already expressly authorized in more than 60 federal acts. However, its legal status outside of these acts is uncertain. Bill S-2 aims to clarify that incorporation by reference is a valid technique of general application. Bill S-2 would also provide that any secondary documents referenced must be accessible and that liability or administrative sanctions could not apply if a document was not accessible. In addition, Bill S-2 would retroactively validate any incorporation by reference that was made before its coming into force.

In effect, incorporation by reference sub-delegates the details of regulation to a designated entity, which may be private or foreign. It creates efficiencies in the context of globalization, standardization, and rapid technical and scientific developments. It is important to appreciate that regulations incorporated by reference may not exceed the regulatory powers granted by statute. In addition, regulations made by reference remain subject to review and possible revocation by the Standing Joint Committee for the Scrutiny of Regulations.

There are two varieties of incorporation by reference. They are incorporation by closed or static reference and incorporation by open or dynamic or ambulatory reference. Incorporation by closed reference cites a secondary document as it existed on a particular date. Incorporation by open reference automatically allows regulations to change as secondary documents are amended. This latter technique delegates the details of regulation to whomever has the ongoing power to amend the secondary document. Bill S-2 would expressly allow both open and closed incorporation by reference.

Why are these changes a bad thing? Bill S-2 would reduce the oversight of federal regulations by allowing the sub-delegation of the regulatory power that is already delegated by Parliament to the Governor in Council and other persons. The current government cannot be trusted to use this power responsibly. Time and again, we have seen its willingness to abuse oversight mechanisms, restrict democratic debate, and violate Canadians' constitutional rights.

For example, the government's use of omnibus legislation has degraded the committee review process and hidden important legal changes from public scrutiny. Most recently, I can think of the unconstitutional amendments to the Supreme Court Act being hidden in a budget implementation bill. Yes, changes to the Supreme Court Act were in a budget bill. When those changes failed, we all remember how the Prime Minister and the Minister of Justice wrongfully criticized the Chief Justice of the Supreme Court for trying to save them some embarrassment.

With omnibus legislation, I also think of Bill C-13 and the way the government linked urgent and necessary cyberbullying legislation with immunity for telecommunications companies for warrantless disclosure. Again, the Supreme Court came to the rescue with the Spencer decision, which allowed us to support that cynically packaged piece of legislation.

In opposing Bill S-2's reduction of regulatory oversight, we also think of the government's disregard for the Department of Justice's constitutional review procedure. As the House is aware, Department of Justice lawyer Edgar Schmidt revealed to Canadians that the government proceeds with legislation even if it has a 5% chance or less of being charter compliant. It is the government's own faint hope clause, so to speak.

Is this a government that needs less oversight or more oversight? The revelation of the government's outright contempt for the charter was not surprising, given how often legislation and executive actions have been ruled unconstitutional by the courts. Let us review some of the greatest hits.

In 2011, the Supreme Court of Canada prevented the member for Parry Sound—Muskoka, who was health minister at the time, from closing a safe injection site, which would have caused an increase in the number of fatal overdoses and the spread of communicable diseases.

Last year the Federal Court prevented the government from making cuts to health care services for refugees. Also last year, right here in Ottawa, Justice David Paciocco of the Ontario Court of Justice found that the decision to impose a $900 victim surcharge on a 26-year-old impoverished Inuit offender who was an addict amounted to cruel and unusual punishment.

Some British Columbia courts and the Ontario Court of Appeal have also struck down the mandatory minimum sentences brought in by the government. This is all in addition to the negative responses to referrals related to the unilateral Senate reform and the appointment of federal judges to represent Quebec on the Supreme Court.

We have also seen the Conservative government's willingness to veil government legislation as private members' bills to avoid constitutional review. There are numerous examples of tough-on-crime, presumably government-driven legislation that masqueraded as private member's bills. All of these bills contained significant changes to the Criminal Code, and regardless of their merits, they should have passed through the Department of Justice's charter compliance review process.

This is not a government that Canadians can trust to protect and promote their rights and interests. This is a government tainted by scandals of public betrayal, from election fraud with robocalls to tampering with the Duffy audit, to a $90,000 payment to Duffy from the Prime Minister's chief of staff, to the Prime Minister defaming the Chief Justice of the Supreme Court. Canadians should not trust the current Conservative government.

As I have said, the danger with Bill S-2 is that the government would be emboldened to do indirectly what it cannot do directly, and any oversight would be retrospective rather than forward looking. That is why we will not support the expansion of the current government's power to delegate law-making powers to foreign and private entities.

In addition, Bill S-2 would put the average person at a disadvantage, since there is no guarantee that documents incorporated by reference would be meaningfully accessible. In particular, an incorporated document would not have to be registered in the Canada Gazette and might even be protected by copyright. It would also be increasingly difficult for people to know whether the version of the incorporated document they have is up to date, and in some cases, they would have to pay for access to copyright-protected documents. The bill would weaken the right of those governed by the law to know the contents of the law. We will not support the Conservative government's privatization of Canadian law.

We heard at committee that it may be possible for international bodies to amend Canadian law without our having a representative at the table. We heard that Canadian laws would not be centrally available to the public and that Canadians would sometimes have to pay to access Canadian law. Moreover, if Bill S-2 passed, the government would be generally empowered to decide which foreign and private entities could make law, and which laws Canadians should pay to see.

Time and again, the government has not been forthright with Parliament and the public, and so our position is that a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference. For that reason, we will not support the bill.

[Incorporation by Reference in Regulations Act, June 9th, 2015]

Mr. Speaker, I want to ask a question that came up in testimony before the committee.

There were two witnesses at committee who raised a specific concern, which is one that we have, about the level of trust we have with respect to the current government in terms of oversight bodies and that the statute would allow it to do indirectly what it cannot do directly.

A couple of witnesses had an excellent suggestion with respect to this, which was that there be guidelines developed through Treasury Board for departments and bureaucrats when exercising their power of incorporation by reference. This was raised by Karen Proud and by John Walter, the CEO of the Standards Council of Canada. Some sort of guidelines to put some oversight on the powers of incorporation by reference would go a long way to making people feel a little more comfortable with these powers the government is about to give itself. Is that something that the government is considering?

[Incorporation by Reference in Regulations Act, June 9th, 2015]

Mr. Speaker, I work with that member on the Standing Committee on Justice and Human Rights, and we studied this bill.

I have a question about accessibility. The bill contains no definition of accessibility. Does the member have a problem with that? There is a possibility that a sanction could be imposed on someone who does something to violate one aspect of the law that was incorporated by reference, but that is not really accessible in the usual manner.

[Business of Supply, June 8th, 2015]

Mr. Speaker, I am from Prince Edward Island and I would like to direct a question to the minister, who I am sure does not know very much about Prince Edward Island. I will start with a couple of facts.

First, Prince Edward Island has among the highest labour participation rates in the country when the jobs are there. Second, Prince Edward Island has a small population and a small landmass. Until recently, all of Prince Edward Island was treated the same when it came to access to EI benefits. That has changed. Prince Edward Island now has two zones. One zone is the central third of the island, where seasonal workers have to work a lot more for fewer weeks. The other zone includes all of the riding of Egmont and some other rural parts of Prince Edward Island, where the qualification period is shorter and the benefit rate is higher.

These changes were made before the minister took over leadership of the portfolio. Does he support the pitting of Islanders against one another with respect to eligibility for EI benefits?