Bill S-12 (Historical)

Incorporation by Reference in Regulations Act

An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations

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

Incorporation by Reference in Regulations Act

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I want to thank my colleague for his excellent speech on Bill S-12. I know he has been seized with this matter for as long as I have, perhaps even longer, as we both serve on the scrutiny of regulations committee together.

For the people watching, this might seem like really dry stuff. I am not criticizing the member's speech. Mine will be given shortly, and it will not be any more exciting. As I look around this place, the galleries are not exactly packed.

However, there is something really important at stake here in Bill S-12. It is fundamentally about asking Canadians to comply with laws and regulations, and in doing so making sure they actually know what we are asking them to comply with.

The way it would be possible to make regulations under Bill S-12, Canadians would no longer have certainty in being able to know what the laws, and particularly the regulations, are. That, to me, is a fundamental concern.

How can Canadians potentially be held criminally responsible for not obeying a regulation when they had no way of knowing either that a regulation had been changed or where they could access that regulation, when it will be possible under the bill to incorporate by reference?

I would ask the member to spend a bit more time speaking about that, perhaps in plain English. Why should the bill be of concern not only to my colleagues here, who are flooding into the House now, but also to all Canadians who are watching this riveting debate here this afternoon?

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Speaker, I want to thank my colleague for the question. She does a great job as vice-chair of the scrutiny of regulations committee.

We actually had about an hour on this specific bill. We were not allowed to invite anyone because the Conservatives did not want us to invite experts. We were just able to speak to our analysts, and so I do not know how many points we brought up.

Normally, when we are talking about second reading in the House of Commons, I would say, let us vote for it and send it to committee and have the committee look at it. However, the fact is that the bill has already come from the Senate. The Liberal senators presented amendments and the government refused them, which is why I am not in favour of voting for the bill at this particular time.

I understand that we live in a world with a majority Conservative government and that it will probably put closure on the bill or just vote en masse and then send the bill to committee. However, I am hoping that the Conservatives will be open to amendments.

From reading the Senate transcripts, whether of the committee or debates, I see that one of the biggest amendments concerned accessibility. There are different definitions of accessibility, but there is no definition in this particular bill. Anything could happen in the future. The government could actually take someone and criminally charge him or her over a minor incident, or it could be a major incident, but no one would know where the line in the sand was drawn between a minor and major incident.

The question is actually much deeper and more complex, but the accessibility part concerns its definition. Could people access these incorporation documents? Would the incorporation documents be available or accessible? We were talking about their being accessible in both languages. Moreover, when we talk about accessibility in terms of affordability, would people have to spend money to gain access to these documents that are referenced somewhere? We also talked about whether these documents would be available on the Internet. However, we all know that websites may have the information one day and then all of a sudden the websites disappear and the information would not be available the day after.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

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

The work we do in the House must be transparent, particularly when it comes time to discuss a bill like this. The government is in no rush to talk about this subject. We have repeatedly seen it play this little shell game, at budget time, for example: the little hidden defect, the little Trojan horse.

Once again, my impression is that this bill is hiding things from us. Is the public going to ask what kind of bill of goods they are being sold?

I would like my colleague to say a little more about the fact that transparency must be uppermost in Parliament, in everything we do. As my colleague said a minute ago, this bill comes from the Senate; it does not even come from here. We are the ones who should have written a bill like this.

So in my colleague's opinion, why is the government exhibiting so little transparency?

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Speaker, I thank my colleague from Compton—Stanstead. He is a good hockey player and a member who asks good questions in the House.

I have to say the bill is not very exciting. We are talking about changing regulations that most people do not understand. Even though I am an accountant by profession, it took me several hours to understand what this bill is doing. I told myself that this was not important and there would be lawyers who would sort it all out, but in fact, when we start to look into it more deeply, to think about the effects on the future and the way this is going to affect Canadians, we realize that we need to think twice about it. This is not a bill that is talking about crime or the economy or the budget, and so people do not find it very exciting.

The government is introducing the bill on a Wednesday afternoon, after passing another bill. It is starting to play a game. It says we are going to pass this one because it comes from the Senate so it is not important. But when we look at the Senate debates and the testimony at the committee meetings, we see that the committee did a serious job. There was other work that was supposed to get done, but the Conservatives imposed a gag order on the Senate for this bill and they swept it under the rug just before the Christmas holiday.

We therefore need to do our duty, and I hope the Conservatives will let us do our job here in the House.

[The Acting Speaker, Conservative, Bruce Stanton]

Before resuming debate, it is my duty pursuant to Standing Order 38 to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Thunder Bay—Superior North, the Environment.

Resuming debate, the hon. member for Hamilton Mountain.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I am happy to begin by letting the House know that I will be splitting my time this afternoon with the member for Toronto—Danforth.

I rise today to speak on Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.

As I said earlier, at this point people who are watching this debate on television are probably shaking their heads and wondering why we are not debating the important issues, like job creation, EI, health care, climate change or the growing income inequality in Canada. Those are the issues grabbing headlines these days, and I might add rightfully so.

There is also a sub-theme to much of the recent media coverage, which focuses on this Prime Minister's repeated thwarting of the democratic process and the threat this represents to the institution of Parliament. Bill S-12 adds fuel to that fire. As dry as the title might seem, this bill will legitimize the ability of governments to do things by regulation without the express authorization of Parliament. Without being overly dramatic, this bill will undermine democratic values and risk turning law-abiding citizens into criminals.

Let me go back to try to explain the genesis of this bill. At issue is the proper process for creating rules of law through regulations. Regulations are a delegated form of law-making that is derived from and authorized by Parliament's ultimate legislative authority. As a result, it is particularly important that regulations are written and communicated in such a way that members of the public clearly know their rights and obligations. To that end, regulations must go through a legal examination, be registered, get published in the Gazette and are then referred to the Standing Joint Committee for the Scrutiny of Regulations for parliamentary oversight.

At times, other documents are referenced into regulations simply by naming them. The legal effect is the same as repeating the material word for word in the regulation. When the material that is being incorporated is static, such incorporations by reference do not pose a problem because the regulation has gone through the proper approval procedures. It becomes tricky when that incorporated material changes. For example, the document could contain a provision that allows it to be amended from time to time. In essence, then, future changes automatically become part of the regulation without any oversight.

Such incorporations by reference are called ambulatory or open incorporations by reference because their content is not static. It is this type of regulation making that poses the legal conundrum. Is it appropriate to allow rules to be imposed without those rules having gone through the proper regulatory process?

Given the proliferation of regulations in recent years, this is more than a theoretical question. There are, at the federal level alone, approximately 3,000 regulations comprising over 30,000 pages. That compares with some 450 statutes comprising about 13,000 pages. On top of that, departments and agencies submit to the regulations section, on average, about 1,000 draft regulations each and every year; whereas Parliament enacts about 80 bills during the same period. Regulations, therefore, play a major role in setting the rules of law that apply to Canadian citizens.

Canadians must be able to have confidence that the regulations that govern them have been duly authorized by Parliament. For that reason, the Standing Joint Committee for the Scrutiny of Regulations adopted a unanimous report in 2007 that called on the government to stop using unauthorized open incorporation by reference without the permission of Parliament.

The position of the joint committee was, and is, that absent an express grant of authority or a clear indication to the contrary in the enabling statute, the incorporation by reference of external material is proper only where a fixed text is incorporated, as opposed to a text that is amended from time to time. In fact, the use of incorporation by reference as amended from time to time has been deemed improper and illegal because it is a regulation without the express authorization of Parliament. The government knows that.

In the other place, Conservative Linda Frum noted in her speech on this bill that “Incorporation by reference is a widely used drafting technique currently, but this bill would legitimize it...”. Those are important words: “this bill would legitimize it”. With those five words she is confirming that the government knows it has been acting illegally every time it used the technique without explicit parliamentary authorization. Let us not kid ourselves; it did not just happen once or twice.

The Conservatives have used ambulatory incorporation by reference 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.

This goes to the very heart of Parliament's authority to delegate its power and choose who can make rules on its behalf. It is mind-boggling that any MP would not be troubled by that prospect. However, party discipline, as enforced by the executive branch in this House, will almost certainly ensure the bill will pass unamended.

Apart from the concerns of allocation of power posed by the open incorporation by reference, I will now turn to the question of accessibility. If ignorance of the law is no excuse, then the law must be available. The problem with incorporations by reference is that the text of the incorporated material is not found in the regulation itself.

Where do Canadians turn to find out about their rights and obligations? The material that is being referenced may be obscure or hard to find. If it involves standards developed by private organizations, there may even be a charge for accessing the material. Nowhere does the bill suggest that departments have to make the material available, nor do they even have to provide information as to where that material might be. When the incorporated material can be amended from time to time, how can citizens know that a change has come into effect? Will past versions of the text always be available? Finally, what happens when the material being incorporated is a law, standard, or agreement from another jurisdiction that may not be bilingual? Would this be a way for the government to circumvent our Official Languages Act?

Proposed subsection 18.3(1) of the bill states, “The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible”. However, what exactly does “accessible” mean? Will it be equally accessible for aboriginal or rural Canadians? Will people have to travel in order to obtain the text, or will the text only be available on the Internet? Would that satisfy the definition of “accessibility”?

Given all of these questions, it would seem likely that it would be left to the courts to define “accessible” in terms of incorporated materials. However, should the onus not be on us as legislators to provide that clarity? I simply do not believe that citizens should have to go to the time and expense of judicial proceedings to determine their rights and obligations. Surely we can, and must, provide that clarity in this House.

At this point, I do not think we need to throw out the baby with the bathwater. I do indeed have serious concerns about Bill S-12, and I have expressed many of them in the brief time afforded to me here today. However, as co-chair of the Standing Joint Committee for the Scrutiny of Regulations, I know that many of the issues I have raised today are concerns shared by members from all sides of the House and we could bring these perspectives to bear by studying the bill at greater length in committee.

The principle of the subdelegation of power will be of concern to all of my elected colleagues. As parliamentarians, it fundamentally impacts our role and authority. Similarly, issues of accessibility are critical to the interests of our constituents whom we are here to represent. Given the sheer volume of regulations that are submitted each year, it is essential that we maintain the integrity of the regulatory process.

If we can find common cause on each of these three broad-brush issues, I am confident we can amend Bill S-12 to make it palatable to all parliamentarians. If not, I will have to vote against the bill when it comes back to this House for its third and final reading. Until then, however, I will remain hopeful and optimistic.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, on so many occasions in different committees we analyze bills after they pass here at second reading. We will talk about clause x and clause y, and whether the clauses should pass.

However, members need to recognize that quite often a minister's response to questions that we pose is that the detail will be in the regulations. Regulations are often referred to, which is why I think it is so very important, as the member has put on the record, that we make sure we have done that process well. We are very much dependent upon the regulations.

I would ask the member to provide comment on that committee stage and the degree to which the legislation we pass is dependent on the regulations in ensuring that the legislation is functional.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, the member is quite right. Oftentimes in this House, we are told, “Do not worry about that. The detail will follow. The detail will be in the regulations”. We on this side of the House keep reminding the government that it is actually the devil that is in those details. That is why we want to have a full discussion on the floor of the House about the way in which new legislation, new bills, will impact Canadians. That is our job here. That is what makes the bill before us today so important.

It is absolutely critical that if we impose new obligations on Canadians that they have the ability to know what their rights and obligations are. That is why in my comments this afternoon I spent so much time talking about accessibility. We need to make sure Canadians can find the amended regulations and that they know what they are obligated to do, so we do not end up in circumstances where innocent Canadians are criminalized because they could not ascertain whether a regulation had changed.

I think all of us in this House have an obligation to make sure that does not happen. That is why I am encouraging my colleagues on all sides of the House to give the bill another look. Let us work together to amend it in committee to make it the very best bill it can be.

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, I thank my colleague for her very well-reasoned presentation on the bill.

The bill may be a little too detailed for the average person, but I take her point that the devil is in the details. It could affect people's lives in a very concrete way.

In the absence of gazetting or notification to the public that there has been a change in regulation, i.e. a change in the rules that people have to live by and could be charged under, and people are unaware of those changes, I am wondering what the possible ramifications are for the average person who might be watching the debate today. Could someone find themselves on the wrong side of the law because a regulation has changed but the public does not know about it?

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, that is exactly the most important question in this debate. The member is absolutely right; that is precisely what could happen.

We say, and I certainly said in my speech, that ignorance is no excuse under the law. An individual may not be aware that a regulation has changed, but if one is in violation, in some instances they could be held even criminally responsible for having violated that regulation. I do not think that is defensible. We know that is a possibility here today. We know that as we are reviewing Bill S-12, that could happen to an innocent Canadian, who through no fault of their own is in violation of a regulation. If we know that, as legislators we have an obligation to make sure that Canadians could not be trapped in that situation.

Let us work together. Let us make sure that we tighten that loophole. Let us make sure that we provide real accessibility to regulations. I think Canadians expect that of us and they have a right to expect that of us. We need to deliver on their behalf.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I thank my colleague from Hamilton Mountain for such an amazing introduction. I will be able to build on that, I hope, and actually dispense of parts of my own speech.

The Conservatives would have us believe that this is a merely technical or housekeeping bill. They accomplish this in part by messaging that it simplify codifies an existing drafting practice for regulations, the use of incorporation by reference. We even have journalists now treating this as a routine bill. I do not know if there are any journalists watching this debate for that very reason.

In fact, Bill S-12 is anything but innocuous. Speaking in my capacity not only as the member for Toronto—Danforth but also as official opposition critic for democratic reform, it seems to me that the bill is actually an anti-democratic reform. It is a big step backward for open government and indeed for accountable government.

Let me be clear that my focus and remarks are on the endorsement in the bill of a so-called drafting technique known as incorporation by reference, in particular open incorporation by reference, whereby the words “as it is amended” from time to time would be inserted to signal that a document that is incorporated by reference or other materials, when it is changed by external bodies, would automatically enter back into the regulation and continue as binding law without any further intervention by Parliament. This would be in contrast to static or closed incorporation by reference, whereby Parliament and the Standing Joint Committee for the Scrutiny of Regulations would actually know what document is being incorporated by reference, would be able to review whether it is appropriate that the document comes in and would know when it passes on the regulations of what it is dealing with.

For some years, the Standing Joint Committee for the Scrutiny of Regulations has expressed concern about the use of open incorporation by reference for reasons that I will discuss a bit later. In 2000, the joint committee called for a legislative amendment to the Statutory Instruments Act to require, as part of its provisions that authorize regulations, that any use of open or ambulatory incorporation by reference be explicitly authorized by each statute as that statute is adopted by Parliament. Without such explicit authority being in each statute, the report says that regulations would not be allowed to use this technique of open incorporation by reference, and would only be allowed to use the technique of closed incorporation by reference at a known date.

Bill S-12 would give carte blanche to the executive branch to use incorporation by reference of an open sort with no constraints of any consequence. This means regulations could change over time when external bodies decide to revise their documents, which have been incorporated by reference, and Parliament would have no further oversight role. These external changes would become law automatically with no further action required from the Canadian state or from Parliament, other than, in Bill S-12, a very vague, unelaborated, undefined duty to ensure the document with its amendments would be “accessible”.

Therefore, any number of changes by non-governmental organizations, industry bodies, international bodies or even foreign governments, to their own documents that have been incorporated by reference, could slip into our system with no scrutiny. For example, there is something known as Parliament's power of disallowance of regulations. A regulatory provision can be disallowed on a motion of the House, but that process is not triggered until the Standing Joint Committee for the Scrutiny of Regulations actually makes a recommendation to the House and to the Senate to disallow the regulation. They would not even have a chance to make such a recommendation with respect to amendments to documents, which have occurred on the initiative of an external body and which are entered into our law automatically. This would never come back to the joint committee.

The very description of what would be at stake with Bill S-12 should reveal to the average listener the threats that would be presented by ambulatory or open incorporation by reference to democratic accountability, as well as to the rule of law. This is due to the fact that after the bill passes, if it passes, the executive branch may not only incorporate known documents produced by external bodies, such as this code, that resolution, those guidelines, these rules, but may also effectively yield to that external body the power to change its document in a way that automatically would become legally binding in Canada.

We live in a regulatory era where there are 3,000 regulations making up over 30,000 pages versus about 350 statutes making up 13,000 pages. Without careful scrutiny by Parliament of executive power, our democracy hollows out. We have been witnessing what some scholars call new political governance whereby concentrated executive power comes to dominate the parliamentary branch. In Canada, the Prime Minister, the PMO and a small clutch of ministers have effectively engineered a takeover of our Westminster system in recent years.

To add to that phenomenon, greater and greater power in the executive to incorporate by reference materials produced by bodies with no accountability to Parliament, let alone the Canadian public, in the name of economic efficiency or easing the burdens of regulators or flexibility, is something we must be seriously worried about. It makes the problem of executive domination of Parliament even worse.

Before I talk a bit more about why democracy and the rule of law are affected by Bill S-12, let me comment on one other problematic feature of the current process whereby Bill S-12 has come to us. I am not referring to the fact that it started in the Senate; let us leave that to one side. Rather, I am talking about how the government wanders into the House and has the chutzpah, frankly, to claim that Bill S-12 comes from the Senate unamended, as if it were truly a routine bill about regulatory drafting techniques that the Senate unanimously adopted.

In fact, the legislation caused great debate in the Senate. Senators returned to the debates in the mid-2000s, which ended up producing that 2007 joint committee report that I referred to. They objected to how Bill S-12 does not take seriously problems of transparency and accountability, and more broadly, the fundamental principle of the executive branch's subordination to Parliament.

Reasonable amendments were moved, but what happened? The current character of the Senate revealed itself in all of its glory, when Conservative senators voted to defeat every single amendment. This body was created in 1867 for two reasons: to be a reasoned voice in the federal Parliament and a chamber of sober second thought. It has simply become an extension of whipped party politics. The rational arguments of some senators on Bill S-12 were simply bulldozed by Conservative senators acting according to PMO instruction.

The government did respond to that 2007 report that I mentioned. It focused on one very technical argument that the joint committee had made, which was that allowing the executive to send on to another body the power to change something that had been incorporated by reference and have that become automatically a part of our law is something called illicit or illegitimate sub-delegation.

The government focused on this and it made a whole bunch of comparisons to something known as inter-delegation, parliament delegating powers to the provinces to legislate. It created this equivalence between that situation and the situation we face, talking about how it was not a problem, that the provinces could be allowed to continue to amend their legislation or their rules and have a federal statute incorporate that by reference even as those rules change. However, the government failed to notice two fundamentally different features about that situation. First, the provinces are governed democratically, and second, they are within Canada. The fact of deferring to external rules by international actors who have no democratic process as part of how they produce their rules is totally glossed over by the way the government responded to the committee's report.

The government also ignored a serious rule of law concern. What happens when a document is amended by an external body in a way that maybe we cannot expect, in a way that is maybe radical, in a way that actually is problematic? Our Standing Joint Committee for the Scrutiny of Regulations has no opportunity to check whether or not those new changes fall within the ambit of the act. That is a rule of law problem right there.

How about a mega rule of law problem? The charter of rights is totally ousted by the ambulatory incorporation by reference process. Section 4.1 of the Department of Justice Act requires that Parliament double-check, after the executive has double-checked, that a regulation does not offend the charter. That does not get done with new amendments to incorporated by reference regulations.

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

Mr. Speaker, I am pleased to rise to join the debate on Bill S-12. I thank the hon. member for Toronto—Danforth and I say, in a non-partisan way because he does not belong to my party, that we are clearly fortunate in the House to have someone of his calibre, with experience teaching in law schools, who can bring to the House an assessment of something that may appear dry but which really cuts to the heart of dangerous changes to Westminster parliamentary democracy. In this place there is increasing power in the hands of the Prime Minister's Office and decreasing respect for Parliament as an institution and for our regulation-making authorities. The bill represents a threat because it becomes increasingly difficult to know if regulations are being made.

I also have this one concern. We accepted changes to pharmaceutical drug regulations in Bill C-38, which stated that pharmaceutical drugs were no longer added by regulation but could just be added by Health Canada through a list process, not through the Canada Gazette and not through routine regulations. We have to protect some of the more boring aspects of making laws in this place to protect the rights of Canadians.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I was not aware that when we voted on Bill C-38 that there was yet another problematic feature.

There is something in Bill S-12 that adds to that problem. There is a prohibition on incorporating by reference regulation materials from the minister who is making the regulations, or any department or agency that he oversees. There is absolutely no prohibition on one minister turning to materials or documents from elsewhere in the government, another department or agency he or she has nothing to do with, and incorporating that by reference, even if those materials have not gone through the regulation process. That is quite a back door and it appears in this statute.

To add to what the member for Saanich—Gulf Islands has said, we really have to begin to understand how we are becoming hollowed out as a democracy when the executive is given that kind of authority.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I would not mind picking up on that.

The leader of the Green Party made reference to Bill C-38, and we could talk about the two budget bills that were introduced last year. Because of their size the thought back then was that the government was taking serious legislation, incorporating it into budget bills and then passing them, thereby avoiding due diligence in terms of what we should be doing.

I cannot help but think of that in terms of the bill that we have here today. Most people might see it as somewhat of a boring bill. However, it is a very important bill. It ensures that there is accountability. One of the primary roles that we have within the House of Commons is to pass the laws of the land, and a regulation is a law.

Could the member provide some comment in terms of what would appear to be a lack of respect from the government benches toward opposition or all parliamentarians of all political parties, not only today but going into the future, through the actions that are being taken?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, those are very good points. The analogy to what happened with the budget bill, especially Bill C-38, with 70-odd pieces of legislation incorporated into a much broader bill, what we called an omnibus bill at the time, is part of the same fabric, the same problem, which is a lack of concern for parliamentary scrutiny. It may happen because Parliament cannot hope to actually look at everything that went on in Bill C-38 in any way resembling a responsible fashion because it was all being piled in within a short timeframe and the wrong committees are looking at it in a highly dubious process. It also may be because we are incorporating by reference materials and the joint committee has a hard time figuring out how they fit exactly into the picture and whether they are appropriate. However, we are looking at something resembling the same issue.

I will end by saying that incorporation by reference, generally, really needs better rules and regulations about it than simply dealing with the problem of open incorporation by reference, for the same reasons given by my colleague.