Mr. Speaker, I rise on behalf of the constituents of Surrey Central to participate in the debate on Bill S-41, the legislative instruments re-enactment act, which was introduced in the Senate in March.
For years we did not have an opportunity to debate regulatory reforms or parliamentary scrutiny of legislative instruments in the House, but this week coincidentally we have a second debate on this issue. Yesterday I debated Bill C-202 during private members' business. I was a kind and made non-partisan remarks in the co-operative and collective spirit of the House. However, today I cannot help being critical of the government and I will take my full time.
I point out that Bill S-41 is the result of the hard work of the members and legal counsels of the Standing Joint Committee for the Scrutiny of Regulations. I have the honour of being a three term co-chair representing the House of Commons.
The purpose of the bill is to re-enact, in both official languages, legislative instruments that were enacted in one language but published in both official languages; and to allow for the re-enactment of legislative instruments that were enacted in one language but not published, or published in one official language.
Section 133 of the Constitution Act, 1867 provides that acts of the Parliament of Canada shall be printed and published in both official languages. The proposed act would ensure the validity of legislative instruments that are made in only one official language although they may or may not have been published in both official languages. The bill would also confer regulation-making powers on the governor in council to retroactively re-enact those legislative instruments in both official languages.
From 1867 to 1969 most regulations and orders in council were made only in one language. Those instruments were then generally printed and published in the Canada Gazette in both official languages. Prior to Blaikie No. 1 and No. 2 the constitution was believed not to require bilingual enactment of delegated legislation.
Beginning in 1969 the Official Languages Act has required that all rules, orders, regulations, by-laws and proclamations that are required to be published by or under the authority of an act of parliament must be made and published in both official languages. A legislative instrument is made in both official languages when both versions are signed by the competent regulatory authority prior to printing and publishing.
The constitutional requirements that the Supreme Court of Canada held to exist in 1979 were specifically included, in clear and unambiguous terms, in the 1988 Official Languages Act.
In all cases that have come to the attention of the committee, regulations that should have been enacted in English and French were enacted in English only. The issue of the constitutional validity of the federal delegated legislation enacted in English only was first raised in 1992 by the Standing Joint Committee for the Scrutiny of Regulations in relation to the Public Lands Mineral Regulations.
The department argued the constitutional defect was cured by the 1978 Consolidated Regulations of Canada. A consolidation could not serve to validate an otherwise illegal regulation. The department argued that the regulations made in English only in 1969 were valid because the governor in council was in good faith when the regulations were adopted. However, the issue of the good faith of the governor in council in enacting certain instruments is entirely irrelevant to the issue of the constitutional validity of those instruments.
Then the Public Lands Mineral Regulations were revoked and the committee identified four other unconstitutional regulations. There can be no doubt there are others. For example, it was recently ascertained that the income tax regulations were unconstitutional as they were enacted in only one official language. The government dropped the legal argument it had been touting for the preceding four years and returned to the discredited consolidation argument.
The 1978 consolidation is irrelevant from a legal and constitutional point of view. A consolidation, as was pointed out by Senator Gérald Beaudoin in the Senate committee, is at best a housekeeping process that has no impact on the constitutional status of the consolidated legislation.
Then surprisingly the former justice minister acknowledged that the Standing Joint Committee for the Scrutiny of Regulations had put forward a number of opposing arguments which warrant serious consideration. She requested her officials to further study the issues raised and to suggest ways to remove any uncertainties regarding the validity of federal regulations or other legislative instruments which were still in force.
Law does not lend any support to the peculiar interpretation put forward by the Department of Justice. On the contrary the courts have confirmed that section 133 requires the publication in both languages of all legislation to which it applies; nothing more, nothing less.
The Supreme Court of Canada in the Manitoba language rights reference described the purpose of section 133:
--which was to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike.
Section 23 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print and publish all Acts of the Legislature in both official languages...
It establishes a constitutional duty on the Manitoba legislature with respect to the manner and form of enactment of its legislation. This duty protects the substantive rights of all Manitobans to equal access to the law in either the French or English languages. Those words are equally applicable to section 133. I note that the court did not refer to some acts of the legislature of Manitoba but all acts.
I note that some 20 years after the Blaikie decision the federal government has yet to take measures to identify the extent of its non-compliance with section 133 of the Constitution Act of 1867. Subordinate legislation enacted prior to section 133 should be identified and re-enacted by the appropriate regulation making authority.
The approach chosen by the government in Bill S-41 would distinguish between two classes of non-complying instruments. The first class of instruments is made up of those legislative instruments that were published in both official languages at the time of enactment but that were not enacted in both official languages. Those instruments would be validated by clause 3 of the bill.
The second class of legislative instruments is made up of those instruments which were not enacted in both official languages and were not published in both official languages at the time of their enactment. With regard to those non-complying instruments the federal government apparently does not intend to take corrective action other than to confer on the governor in council a discretion to retroactively validate the instruments in question.
The Department of Justice claimed that to identify non-complying regulations would involve prohibitive costs. I suggest that if the federal government is aware of the legislation that is being applied at the federal level, as it should be, it is a simple enough matter to verify whether or not that legislation was properly enacted in both official languages.
In reality Bill S-41 would only provide a partial solution to the issue brought forward in the committee's report. Following passage of the proposed legislation there would continue to be a number of unconstitutional regulations in place that would not have been validated.
The proposed clause 4 is premised on the continued application of and enforcement of legislative instruments that the federal government knows to be unconstitutional. The propriety of this approach in constitutional terms is questionable. Because it does not wish to engage in the task of identifying with precision the class of instruments referred to in clause 4, the government is content to allow those legislative instruments to continue to be applied in spite of their unconstitutionality.
In the event a person raises the issue of the unconstitutionality of such a legislative instrument by way, for example, of a defence to a criminal prosecution, the governor in council would intervene to deprive the person of their defence by retroactively deeming the unconstitutional instrument to have been validly made.
The preamble to the Canadian Charter of Rights and Freedoms recites that Canada is a society founded on principles that recognize the rule of law. Is it too much to expect that in such a society, a government is under an obligation to take active steps to remedy constitutional defects of which it is aware and has been aware for at least 20 years?
The instruments referred to in clause 4 are not unconstitutional only on the grounds that they were enacted in only one official language. Clause 4, as noted above, applies to instruments that were not enacted in both official languages but that also were not published in both languages.
Any legislative instrument referred to in clause 4 would be unconstitutional even if it had been enacted in both official languages on the grounds that it was not printed and published in both languages.
Clause 4 of the bill does not appear to contemplate the existence of instruments enacted in both official languages but not printed and published in both languages. Of course this is consistent with the hypothesis put forward by the Department of Justice according to which the government may choose not to print and publish a legislative instrument, in which case section 133 would not apply to the instrument. For reasons stated before, I reject that hypothesis.
Clause 3 of the proposed legislation satisfactorily resolves the problem of constitutional non-compliance with regards to all legislative instruments made in only one language but published in both official languages at the time of enactment.
As for all non-complying legislative instruments, it seems to be the view of the federal government that it is acceptable to maintain these laws in place notwithstanding their unconstitutionality.
The federal government is apparently incapable, 20 years after the second Blaikie decision, to identify those instruments made or approved by governor in council or a minister that forms part of the body of the federal delegated legislation.
It could well be argued that there is no justification for delegated legislation which does not comply with section 133 of the Constitution Act, 1867, either because it was not enacted in both official languages or because it was not published in both official languages, to continue to be enforced by public authorities, and that any such legislations are to be formally revoked or expressly validated. This is not what clause 4 of the proposed legislation proposes.
On May 2, 2002, Senator Hervieux-Payette and I appeared before the Senate committee charged with the review of this legislation in our capacity as joint chairmen of the Standing Joint Committee for the Scrutiny of Regulations. We urged the committee to amend Bill S-41 to ensure that the unconstitutional legislation referred to in clause 4 of the bill would not continue to be applied indefinitely.
In that regard we suggested that an appropriate legislative model was furnished by section 32 of the Statutory Instruments Act which provided the following.
“Where a regulation or an amendment thereto has not been published in the Canada Gazette and is of such a class that, if it were made after the coming into force of this act, it would not be exempted pursuant to paragraph (c) of section 27 from the application of subsection (1) of section 11, it shall be deemed to be revoked on a day 12 months after the day on which the act comes into force unless before that day it is transmitted to the Clerk of the Privy Council in both official languages, in which case the Clerk of the Privy Council shall, notwithstanding subsection (1) of section 7, register the regulation forthwith”.
The alternatives that are consistent with the government's obligation to respect the rule of law are: first, to identify all legislative instruments subject to section 133 of the Constitution Act, 1867 that do not comply with the requirements of that section and to re-enact them in such a way as to cure the constitutional defect; or, two, to formally revoke all noncomplying legislative instruments as unconstitutional legislation that has no place in the corpus of federal law.
A transitional provision patterned on section 32 of the Statutory Instruments Act represents a compromise between these two approaches. I am very happy to see that the Senate has amended the bill in the manner suggested by us and that the new subclause 4(7) provides that: “Upon the expiration of 6 years after this act comes into force, any legislative instrument described in subsection (1) that has not been re-enacted in both official languages is repealed. Any instrument submitted for re-enactment within 6 years could in fact be re-enacted, but at the expiration of that time period all non-complying instruments would be formally revoked”.
While some would argue that the delay of six years, which this clause gives to the government, is excessively long considering that the government has already had 20 years in which to correct the situation. It will nevertheless bring closure to this issue.
While I think that the one year delay we suggested to the Senate committee was entirely sufficient, I will support clause 4(7) as it was added in the legal and constitutional affairs committee of the Senate.
Bill S-41 would provide that the present and previous governments have been ignoring the rule of law, respect for the charter and the importance of linguistic duality in Canada and thereby allowing uncertainty.
It is the government's constitutional obligation to respect the rule of law. Cost cannot be a criterion in order to correct mistakes of abdicating constitutional obligation made in the past. It is respect for the rule of law which is important.
We in the Canadian Alliance believe that constitutional validity must be preserved in order to protect Canada's unique dualistic bilingual structure. By enacting legislation in only one language, the government risks isolating its citizens further. This is a very dangerous domestic policy to support.
I would also like to point out that what is troubling is the government's attitude: its approach to democracy, transparency, accountability and openness; and its arrogance and sometimes even bullying or do not care attitude. The government has taken 20 years in this case and what it has done is pathetic.
First, the government ignores the problem. Then it denies there is an issue. And then it bends over backwards to argue its case, baseless as it may be, against the strong and logical arguments from the general counsel of the Standing Joint Committee on the Scrutiny of Regulations. Once it is convinced it will then drag its heels and not properly correct the mistake or the error it made in the first place. That is the most serious problem the standing joint committee faces.
Some of the files have been in the pipeline for as long as 5, 10 and even 20 years. All this adds up to a huge backlog of instruments whose legality or validity is questionable. As I mentioned earlier,it necessitates the need for regulatory reform.
The following are some of the improvements I would propose to the government.
The federal Liberal government does not govern, but rules Canada. It introduces bills that lack substance, are vague in intent and often written in incomplete and general terms, leaving the door wide open to put through regulations that define our laws without proper checks and balances. By doing so, the Liberal government effectively has gutted the parliamentary process of accountability and transparency in the formulation of its laws representing further erosion of the rights and powers of parliament. Parliament is no longer at the centre of the law-making process. It is the regulations that give form and substance to legislation instead of the government bills.
Only 20% of Canadian law is made in parliament. The remaining 80% is added through the back door by way of regulations which are neither debated nor subject to effective public scrutiny.
The role of parliamentarians to formulate legislation is very limited. Scrutiny of regulations is thus an essential task in protecting democracy, transparency, legitimacy and in controlling bureaucracy. The regulatory burden, also called red tape, faced by Canadian businesses is very high and is a costly impediment to productivity and growth. In addition to restricting people's freedom to make their own choices, rules and regulations dampen innovation, discourage investment, stifle entrepreneurship, weaken competitiveness, curtail job sand lower the standard of living of Canadians.
Canadians spend over $100 billion per year, which is 12% of GDP, to comply with federal, provincial and municipal regulations. If we convert it, that is about $13,700 per household. This spending is second only to shelter. This cost exceeds total personal and corporate income tax collected by the federal government. Red tape is a hidden tax.
Between 1975 and 1999 more than 117,000 new federal and provincial regulations were enacted which would measure 10 stories high when stacked. Each regulatory program is a monument to a past problem.
The only means for parliament to scrutinize its regulations is through the House and Senate Standing Joint Committee of for the Scrutiny of Regulations, which I had the opportunity to co-chair. The committee has been operating without statutory footing for many years, perhaps since 1974. Before the committee uses its ultimate weapon of disallowance, in some cases the process can take 5, 10 or 20 years. This is unacceptable.
The current disallowance procedure was meant only as a temporary measure since 1987 and it has to be on permanent statutory footing. I will not elaborate on this because I spoke on it yesterday. I will move on to some other issues that I would like to bring to members' attention.
I would like to make some recommendations. The delegated regulations and other statutory instruments must be referred to the appropriate committee of the House in addition to the joint committee on regulations. It will provide the House with a check on the enabling clauses in the bills that allow the making of subordinate legislation. They can look to the regulations based on policy and merit because of the committee tenet.
The realistic alternatives to regulations, such as negotiated compliance, should be explored and the focus should be results based and not based on the process. There can be market or tax incentives or disincentives.
Regulations should be written in transparent, simple and easy to understand language. The primary clientele of government regulations is the public and not the legal professionals.
Another recommendation is that a cost benefit analysis should be done and published before making regulations. Estimation of competitive and impact analysis and enforcement cost and risk analysis would also be helpful. Regulators are largely insensitive to the hidden costs of regulations and unaware of alternatives.
Regulatory service standards should be established and a fast track approval process developed for products already found to be safe in other jurisdictions.
The Canadian tradition of promoting social policy objectives through economic regulations is a luxury with a high but hidden price tag. A strong social safety net is only possible if first there is a strong economy.
Regulatory action should be harmonized if possible with the existing provincial, national or international standards and regulations. There should be greater regulatory co-ordination, co-operation and even consolidation among various levels of government. There is a need for greater sensitivity in Canada to the regulatory structures and shifts in the United States and other major trading countries. We have no choice but to adapt to them. It does not mean imitating, but bending to international realities.
An interprovincial standardization commission should be established. Canada contemplates free trade with the United States, yet regulatory barriers to trade inside its own borders must be dismantled. Professional standards and licensing rules, such as the free flow of capital, consumer protection laws, export laws for unprocessed provincial goods, truck safety and measurements should be standardized.
Regulatory proposals must include a sunset clause or performance review to ensure they meet the desired objectives and results. In France, government forms have an automatic sunset review date. Reverse onus should be put on the process. Relevance, effectiveness and timeliness of regulations should be monitored.
The clogged pipeline of files needs to be cleaned. Accumulation leads to strangulation. The total cumulative burden of regulations is the number one regulatory problem. Departments and agencies should be encouraged to do a cleanup of redundant and obsolete regulations by eliminating and preventing non-essential procedures, forms, licences and regulations that do nothing meaningful other than adding to the cost of dealing with the government.
Canada has reached a point where more good regulations are thrown after bad ones which causes a sinkhole effect. In a federal regulatory sedimentation system, over time layer upon layer create an unsystematic bundle of constraints and disincentives. Dormant regulations are like sleeping dogs and take up space, require occasional upkeep and pose a potential threat in the public sector.
Omnibus repeal legislation should be introduced. A reliable regulatory inventory and review of the accumulation should be prepared to identify problem areas and classify regulations as the good, the bad and the ugly. The government should be brought into the 21st century with the use of advanced technology.
The regulatory responsibility is intentionally split between or among various departments and agencies. One department carries on research and forms a judgment about a product yet the responsibility for whether or not that judgment is implemented rests in another department. Splitting responsibility encourages duplication, internal red tape and diffusion of responsibility and accountability.
For example, with the environment and fisheries departments, one department justifies the regulation making and the other department implements it. Other examples would be health, labour, transport and immigration; finance and national revenue; and health, agriculture, the human rights commission and employment insurance. For all of them there is loss of publication.
No internal regulatory commitments should be entered into without a careful regulatory impact analysis to ensure that international proposals are in tune with Canada's interests, for example, the Kyoto commitment.
Canada can learn from American and other international experiments about new approaches to regulations. These should be monitored both for lessons we should emulate and experiments we should avoid.
Many times penalties are too low in relation to the proceeds of violence or crime. Serious offenders get an unfair economic advantage. Serious non-compliance must be made unprofitable. Due to inadequate penalties, the government adds additional regulations to bolster the original regulations, for example in fisheries. Inadequate penalties entirely nullify the effect of the regulations, for example, penalties for smuggling humans or drugs.
Reliance on criminal sanctions can have a similar nullifying effect by virtue of being so heavy that the burden of proof becomes extremely difficult, legal proceedings commensurately too expensive and judges and juries too reluctant to convict.
There is a need to identify all regulatory statutes whose penalties have become inadequate. Omnibus amending legislation should be put before parliament.
Canada should introduce a regulatory flexibility act similar to the one in the United States to provide for tiering of regulations, administrative procedures and federal program delivery to recognize the limited financial and managerial capacities of small businesses. The government should be sensitive to the time pressures of small businesses and their limited resource pools.
Small businesses are the economic engine of Canada. They could be allowed a three to five year regulatory honeymoon period in which new businesses may be exempted from complying with certain tough regulations without compromising safety, health and environmental protection, for example, stringent labour standards. Any voluntary expenditure for occupational health and safety could be allowed as a business tax write-off.
Departments and agencies responsible for financial costs of regulatory litigation should pay their legal costs from their budgets to provide an incentive to regulators to ensure that their regulations are well prepared and enforceable and to prevent shaky prosecution. Departments and agencies should also pay the legal costs of private citizens and small businesses when a prosecution is unsuccessful and was questionable and intimidating.
The House of Commons should give itself, through its joint standing committee, the means, in terms of adequate number of legal counsel, equipment, communication tools and other resources, to make the scrutiny more meaningful. Previous problems concerning employees' salaries and the number of employees should not be allowed to be repeated. This is important for the morale of those working very hard in support of the committee.
When the standing joint committee tables a report in the House of Commons and desires a response from parliament, it simply mentions that it has made a similar request in the report tabled in the Senate. Within 150 days of the presentation of a report, the government shall table a response thereto, but no similar provision exists in the rules of the Senate. That is a problem of compatibility of the procedures in the House of Commons and the Senate with respect to disallowance, reports and so on.
The revocation of an instrument disallowed by the House of Commons is currently dependent on a decision of the governor in council or a minister to obey the order the House.
The current procedure for disallowance is not encoded in law. We need to make amendments to the Statutory Instruments Act so that the standing orders which lay out the procedure for disallowance have a statutory footing and can be implemented successfully. Moreover, it should be applicable to all the instruments, rather than those instruments which are made by the governor in council or a minister.
The disallowance procedure and the scrutiny of legislative instruments should be applicable to those instruments which are made by authority delegated by parliament to various agencies and boards, such as the National Energy Board, the National Transportation Agency, the CRTC and so on. There needs to be a statutory footing by amending the Statutory Instruments Act for the disallowance procedure.
The government should have a mechanism in place to measure the regulatory burden on individuals and businesses.
I will close my remarks by saying that we support Bill S-41 because we need to have all legislative instruments not only made but printed and published in both official languages of Canada.