Bill S-2 (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.

Motion in Amendment

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, I have a question for the hon. member.

Clause 18.3 states:

18.3 (1) The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible.

However, “accessibility” is not really defined.

Does the bill specify how the regulation-making authority should ensure the accessibility of the document? With respect to official languages, for example, or sharing it through the media or online, does the bill indicate how much all that will cost?

[Sean Casey, Liberal, Charlottetown, PE]

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.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, it is my pleasure today to speak to this House about Bill S-2, the incorporation by reference in regulations act.

Bill S-2 has been studied by the Standing Committee on Justice and Human Rights and has been reported, without amendment, back to this House. Before that, the Standing Senate Committee on Legal and Constitutional Affairs reported, also without amendment, to this House for consideration.

This bill deals with the regulatory drafting technique. Essentially, the bill is about when federal regulators can or cannot use the technique of incorporation by reference. The technique of incorporation by reference is currently used in a wide range of federal regulations. Indeed, it is difficult to think of a regulated area in which incorporation by reference is not used to some degree.

Bill S-2 is about securing the government's access to a drafting technique that has already become essential to the way government regulates. It is also about leading the way internationally in the modernization of regulations. More particularly, Bill S-2 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. This bill would create the legal clarification needed so that regulators and the committee could leave the uncertainty behind.

Incorporation by reference has already become an essential tool that is widely relied upon to achieve the objectives of the government. Both committees have heard that it is also an effective way to achieve many of the current goals of the “Cabinet Directive on Regulatory Management”, cabinet's instructions on how to ensure effective and responsive regulations. For example, regulations that use this technique are effective in facilitating intergovernmental co-operation and harmonization, a key objective of the Regulatory Cooperation Council established by the Prime Minister and President Obama. By incorporating the legislation of other jurisdictions with which harmonization is desired, or by incorporating standards developed internationally, regulations can minimize duplication, an important objective of the Red Tape Reduction Commission. The result of Bill S-2 would be that regulators would have the option of using this drafting technique in regulations aimed at achieving these objectives.

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

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

Testimony by witnesses from the Standards Council of Canada before the Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs made it clear how Canada already relies extensively on international and national standards. Ensuring that regulators continue to have the ability to use ambulatory incorporation by reference, meaning the ability to incorporate by reference a document as it is amended from time to time, rather than just its fixed or static version, in their regulations means that Canadians can be assured that they are protected by the most up-to-date technology.

Incorporation by reference allows for the expertise of the Canadian national standards system and the international standards system to form a meaningful part of the regulatory toolbox.

Another important aspect of Bill S-2 is that it allows for the incorporation by reference of rates and indices, such as the consumer price index or the Bank of Canada rate, important elements in many regulations.

For these reasons and more, ambulatory incorporation by reference is an important instrument available to regulators when they are designing their regulatory initiatives.

However, Bill S-2 also strikes an important balance in respect of what may be incorporated by reference by limiting the type of document that can be incorporated when it is produced by the regulation maker. Also, only the versions of such a document as it exists on a particular day can be incorporated when the document is produced by the regulation maker only. This is an important safeguard against circumvention of the regulatory process.

Although there was some testimony at the Standing Committee on Justice and Human Rights that suggested that the bill should go further to allow all types of documents to be incorporated by reference, including documents produced by the regulation maker, we believe that Bill S-2 strikes the right balance, and where more is needed, Parliament can and has authorized incorporation by reference of that material as well.

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

One of the most important aspects of the bill relates to accessibility. Bill S-2 will not only provide a solid legal basis for the use of this regulatory drafting technique but will also expressly impose in legislation an obligation on all regulators to ensure that the documents they incorporate are accessible. While this has always been something the common law required, this bill clearly enshrines this obligation in legislation.

There is no doubt that accessibility should be part of the bill. It is essential that documents that are incorporated by reference are accessible by those who are required to comply with them. This is an important and significant step forward in this legislation.

The general approach to accessibility found in Bill S-2 will provide flexibility to regulatory bodies to take whatever steps might be necessary to make sure that the diverse types of material from various sources are in fact accessible.

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

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

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

Bill S-2 is intended to solidify the government's access to a regulatory drafting technique that is essential to modern and responsive regulation. It also recognizes the corresponding obligations that regulators must meet when using this tool. The bill strikes an important balance, and it reflects the reality of modern regulation while ensuring that appropriate protections are enshrined in law. No person can suffer a penalty or sanction if the relevant material is not accessible by them.

This proposal is consistent with the position that the government has long taken on the question of when regulations can and cannot use the technique of incorporation by reference. It will provide express legislative authority for the use of this technique in the future and will confirm the validity of existing regulations incorporating documents in a manner that is consistent with that authority.

We have many years of successful experience with the use of ambulatory and static incorporation by reference in legislation at the federal level and this knowledge will be useful in providing guidance to the future.

The enactment of this legislation is the logical and necessary next step to securing access in a responsible manner to incorporation by reference in regulations.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank my colleague for her speech. I have two quick questions for her.

First, clause 18.7 confirms the validity of an incorporation by reference that was made before the day on which that section comes into force. That is a retroactivity clause, suggesting that this is already being done without the consent of this House. What does the hon. member think about that clause and how does she explain it?

Does she have any concerns about compliance with Canada's bilingualism rules for regulations, since a number of witnesses told us that there could a serious problem in that regard? Does the Conservative government still believe in the importance of bilingualism in Canada?

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, I want to reassure my colleague and the House that we are a bilingual country. French and English are our official languages, and I have no fear at all that this will be compromised in any way, shape or form under the legislation.

It is very important in this day and age to keep up to speed with what is really happening in the world. The legislation would minimize duplication and inconsistencies, and promote the efficiency and competitiveness that is needed in our current business environment. Also, very clearly, it would reduce the trade barriers that exist now.

It is an answer to a very important question about how to keep up to ensure the regulations are consistent so we can use the regulations in a very meaningful way on a daily basis.

[Sean Casey, Liberal, Charlottetown, PE]

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?

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, incorporation by reference is done now, every day, and it is done in a meaningful way. All the legislation would do is define it and put it in such a framework that there are guidelines that can be met and that there is the ability to use incorporation by reference in a meaningful way.

Many incorporations have already used incorporation by reference, as we heard earlier from my colleague, such shipping and marine, energy, hazardous products, even motor vehicle safety, as are proceeds of crime and money laundering. All these things are used daily in the different disciplines of both trade and everyday life in the workings of our country and dealing with other countries.

In terms of the incorporation by reference, this streamlines what needs to be done in a meaningful way so we can get things done more accurately. That is what we need. This business of inconsistencies in regulations is something I heard on the ground through business and other corporations. This would streamline that and cause the inconsistencies to be fewer.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, Bill S-2 is probably not the most accessible bill for the community and the people who are watching at home. From the beginning, I have been calling this bill the sleeper of this legislature.

For one thing, it has not garnered much attention, which is worrisome, and for another, it originated in the Senate. I believe that we are already starting off on the wrong foot when a bill that will have such a major impact on our future practices comes from the Senate.

That being said, this will likely be one of my last speeches in the House as the justice critic for the official opposition, given the justice agenda from now until the end of this Parliament on June 23. I would therefore like to thank the members of the Standing Committee on Justice, particularly those from the New Democratic Party and my colleague from La Pointe-de-l'Île, the sponsor for the recommendation we made to our colleagues regarding Bill S-2. She did an excellent job, given that work on this bill was not the easiest way to jump into her role as deputy critic. I would like to congratulate and thank her.

In recent years, the justice agenda has been rather onerous. Since you were once the justice critic for the official opposition, Mr. Speaker, you know what I am talking about. I would also like to thank the leader of the NDP for putting his trust in me. That is why I took the analysis of each bill very seriously and why I have often spoken out against the government's attempts to short-circuit democratic debates and in-depth examinations of bills. The decisions that we make in the area of justice can have even more significant implications for the people we represent.

Bill S-2 is a fine example because it did not attract too much attention. I was interviewed once about Bill S-2, and it was by Blacklock's Reporter, which took the time to analyze this bill and saw the same problems we did.

I find it even more important to point out that, when elected in 2011, I was appointed the co-chair of the Standing Joint Committee on Scrutiny of Regulations by our then leader, the great Jack Layton. I have to admit that at first I wondered about the committee's mandate. However, I understood just how important the committee was.

I also saw first-hand the systematic resistance of some departments, which take an eternity to answer the questions posed by the Standing Joint Committee on Scrutiny of Regulations. That was what had the greatest impact on my position on Bill S-2. Sometimes they were basic questions, mainly about incorrect language usage or contradictions between the French and English texts, which creates confusion and can lead to legal disputes. I truly appreciated what I call my internship with the Standing Joint Committee on Scrutiny of Regulations, because it taught me the importance of regulations.

As some members mentioned, we sometimes forget that the Minister of Justice must certify that any government bill, whether from the Senate or the government, complies with the Constitution and the Canadian Charter of Rights and Freedoms.

The same should be true for regulations. My colleague who spoke before me spoke about the importance of modernization. I agree with her. There are 30,000 pages of regulations every year. It is painstaking work to sort through all of that. However, members of the Standing Joint Committee on Scrutiny of Regulations and officials—whom I want to commend today for the difficult job they do—examine these issues and ensure that the regulations are correct, compliant and accessible, for the benefit of our constituents and for all Canadians across the country. People need to know what is going on and what could be expected of them. I agree that we need to find a way to modernize this.

However, modernizing means something else to this government. This may ultimately be where the Conservatives pay the price for their sins, if I can put it that way. Members on the official opposition benches are deeply distrustful of this government. Why? Because this government has been secretive. It has tried all kinds of ways to circumvent democratic debate. It does not accept disagreement with its opinions. It practically sees any question from the opposition as a form of treason. In short, it prevents us from doing the job we were elected to do. The Conservatives should not be surprised that we do not want to give them a way to speed things up or to put these issues in the hands of people we cannot control or oversee to ensure they are doing their job properly.

When a public servant like Mr. Schmidt goes to the Federal Court against his employer, the Department of Justice, to say that he was told to cut corners and ignore the Constitution and the charter, that worries me. Now the government wants the power to regulate by reference, which is the simplest way. There is also a retroactivity clause, as my colleague from Toronto—Danforth mentioned earlier. In committee, we were basically told that it was already being done—as if the fact that something previously prohibited is being done should justify the fact that they are rushing into this approach.

Currently, if regulation by reference happens, it is authorized or should have been authorized by the enabling legislation. We learned that that was not always the case. That is why the government put clause 18.7 in the Senate bill. That clause includes a retroactivity provision. That reminds me of what was in Bill C-59 about destroying information in registries.

What people do not see is that regulations can go very far. Let us look at each kind of bill: government bills, private members' bills and Senate bills. A power is always given to the appropriate minister, the authority to adopt regulations. The minister himself can delegate the power to take action to a senior official. In short, if we also decide to allow them to adopt regulations that come from other countries—which would come to us in a language that is not ours and where bilingualism will surely be short-circuited—one might have some serious concerns about this bill.

What I am saying to my colleagues in the House is that there is no urgency here. Bill S-2 deserves to be studied further and should be considered with greater openness. It would be nice if the government could look at the comments and listen to and consider the criticisms instead of simply slamming the door and saying that this bill is the only way.

I encourage my colleagues to take a short strategic pause to look carefully at Bill S-2, given that it could have enormous ramifications that will be rather serious in some cases.

[Dan Albas, Conservative, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, I was quite happy to work with my hon. colleague when she was the co-chair of the scrutiny of regulations committee.

In relation to this incorporation by reference bill, it is important that it be noted that the government has put forward a bill that actually specifies when a dynamic incorporation by reference or static incorporation by reference should be used. It basically gives parameters for when it can and cannot be used.

I have also heard the criticism that regulations would not be produced and that there might be challenges with official languages. Nothing could be further from the truth. Any regulation that is passed under federal power has to be in both French and English.

Last, I would point out to the member that the government is trying to create a framework for where it is appropriate and where it is not. It is to empower legislators, like ourselves, so that we know when certain incorporations by reference could be used for the benefit of people. For example, there are cases where standards may change. We are the ones who decide which standards should be used. However, we do not want to be constantly behind the times when it comes to the safety of Canadians.

Does the member not realize that there needs to be some shift in this area in order to protect safety and to set parameters for government to use this tool in a limited way?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank my colleague for his question.

As I said at the beginning, I agree. I heard my colleague say “keep up to speed”. It is one thing to keep up to speed and it is another to do so with your eyes closed. If I drive my car at high speed, I prefer to do so with my eyes wide open. This government often asks us keep our eyes shut.

For example, the government refuses to define the terms used in certain rules in the bill. In addition, we tried to amend the bill so that it would provide a better framework for this new way of doing things, which would be faster and could have been a bit clearer.

Ultimately, all our efforts led to great frustration. Even the amendments that were not meant to prevent things from moving forward and those that sought to create an approach that is somewhat more open and clear were rejected outright by the Conservative members of the committee, as though they were not allowed to accept anything, which is very disturbing.

We should not assume that only safety regulations will be affected. All kinds of regulations could be affected. The Conservatives often boast about signing many foreign treaties. Good for them. I agree that it is good for the economy and positive in many other ways.

However, we must ensure that the regulations of the country we trade with, which we are going to adopt as our own, meet certain basic criteria that exist only in Canada, such as bilingualism and other rules.

[Sean Casey, Liberal, Charlottetown, PE]

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?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, as for the second question, I agree with my colleague that it is quite worrisome.

As for the guidelines that should be provided by the Treasury Board, I also agree that these were good suggestions that were made. Again, the government simply turned a deaf ear to these suggestions and that is what is so worrisome when we are dealing with a bill that will have so many consequences.

We cannot trust a government that is not transparent and does not share the information that it has. In that case, we would be hard-pressed to tell it that we will expand its regulatory powers further.

The House resumed consideration of S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, as reported (without amendment) from the committee and of the motion in group no. 1.

Incorporation by Reference in Regulations Act

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

Mr. Speaker, I will be correspondingly brief in my speech.

I have spoken on Bill S-2 before. I join my colleagues from Gatineau and Charlottetown in indicating that this bill is a sleeper. It would have major implications for the health of our democracy, and it deserves to receive a lot more attention in the media than it has.

The ability of governments to use ambulatory incorporation by reference to smuggle in over time rule changes processed by outside agencies, transnational and private agencies, or even mixed agencies on which governments sit, and the possibility of that would be greatly enhanced by this piece of legislation. Ultimately, it is a piece of legislation that would continue a whole variety of actions by the government over the last four years as a majority and almost ten years in government that seriously undermine our democracy.

I would suggest that, rather than go in this direction, we have to think seriously about how to beef up the current joint committee on the scrutiny of regulations in the Senate and the House of Commons. We should possibly consider the need for an officer of Parliament. I would suggest that a commissioner for statutory and international instruments is probably something that needs to be discussed. It would be an officer who would make sure that the House is not just on top of static incorporation by reference, but incorporation by reference of external documents as they occur. It would then make sure, in the reporting fashion, that the House knows that something has changed that may be of consequence but that the House has had no say in until that point in time.

I indicate that such a commissioner, for example, would look at both statutory instruments, regulations and their like, and international instruments, treaties and their like, because in the globalizing legal environment in which the government is operating, it is those two features, executive action and transnational action, that are increasingly joining hands and taking away governing space from publicly elected legislators.

The bottom line is that this bill needs safeguards. Some four amendments were brought forward by the official opposition in committee. All of them were rejected, as usual, by the government. If we took the problems that the official opposition had and still has with the bill seriously, we would be looking at how to enhance the oversight and review functions of this body over the regulation-making authorities, not undermining it, as Bill S-2 would.

[The Deputy Speaker]

The hon. member will have seven minutes to complete his speech when we return to this bill for further debate.