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.

Incorporation by Reference in Regulations Act

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

Mr. Speaker, I appreciate the member allowing me to say one more time what an honour it is to serve in this place with everyone.

I would simply point out that what the government is attempting to do through this legislation is to create better certainty for everyone: for government, as to when incorporation by reference should be used when it is drafting regulation; for us as legislators, so we have a better understanding of when we delegate authority to a particular minister or the Governor in Council that we understand the language that can used. Again, Parliament can be very specific in its law making of when it is not appropriate as well. There is nothing in Bill S-2 that is contrary to that. Last, it would give protections to individuals, such as in the cases I raised earlier on proposed section 18.6:

A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document, index, rate or number—that is incorporated by reference in a regulation — is relevant unless, at the time of the alleged contravention, it was accessible as required by section 18.3 or it was otherwise accessible to that person.

This would protect Canadians.

That is the entire reason why the government of Canada exists.

It is why the Conservative Party, this Conservative government and our Prime Minister are seeking at every front to make Canada stronger, Canada fairer, Canada more free. That is what we do when we put forward bills like this one.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I am pleased to share my speaking time with the excellent member for Chambly—Borduas. I have agreed to share my time with him so that he can speak on behalf of the people of Chambly—Borduas concerning Bill S-2.

In the next ten minutes, I will speak to the House about Bill S-2, An Act to Amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, on behalf of the people of Sherbrooke. I am going to try to make it understandable and to talk about its potential consequences and the reason why we decided to oppose it at report stage in the House.

I would like to thank the people who have worked on this bill, including the members for La Pointe-de-l'Île and for Gatineau, who have both spoken today. I want to thank them for their work on this issue, which was also done in the Standing Committee on Justice and Human Rights, where witnesses were heard.

As we always do, we worked constructively in committee to improve the bill and respond to the concerns voiced by some witnesses in their testimony. Unfortunately, once again, the government decided instead not to consider any of those concerns and not to amend the bill as it was drafted.

This is unfortunate, because the concerns raised by the witnesses are legitimate. These experts appear before committees to tell us about their concerns and the reasons why we should make changes to bills.

Unfortunately, the opposition amendments are rejected every time. It is a shame that we do not have an atmosphere of collaboration in committees. Nonetheless, I would still like to highlight the excellent work done by my colleagues and members who have worked on this issue.

As I said earlier, we are going to oppose this bill, because a number of flaws have been pointed out. I am going to try to list most of them. I must admit that I have limited experience when it comes to regulations, but I have in fact gone through a very specific recent experience, having worked on the designation of the Sherbrooke airport under the Canadian Air Transport Security Authority Act.

Let us not forget that the 89 airports designated under the act were designated by regulation. The Governor in Council can decide at any time to add, remove or change, in any way, the regulation that designates Canada's 89 designated airports.

As the member for Sherbrooke, naturally I have undertaken to have the Sherbrooke airport added to the list of airports designated under the act. Unfortunately, the Governor in Council, the Minister of Transport, and his office, refused to add the Sherbrooke airport or any of the other airports seeking designation to the regulation. That is a shame.

That experience helped me to better understand how regulations work and how they are made, and to realize that they have to go through publication in the Gazette. Regulations are also subject to review by parliamentarians at the Standing Joint Committee on Scrutiny of Regulations.

I would also like to highlight the work of the committee, which studied these issues and also expressed a number of reservations about certain aspects of the bill, reservations that the Conservatives simply ignored. The committee also did extraordinary work in that regard, but did not get support from the government and the majority members of the Standing Committee on Justice and Human Rights. That is a shame.

That helped me better understand the importance of having clear regulations that ordinary citizens can easily understand and grasp the ramifications of.

In Canada, there are 3,000 regulations comprising 13,000 pages. Regulations are very common in our acts and regulations. Many acts give ministers and the Governor in Council the power to make or change regulations as needed. The advantage of a regulation is that it can be changed more easily than an act. It can be changed quickly. The legislator does not have to go before the House to change a regulation.

Thus, there are positive aspects, but there are also negative aspects, especially with respect to the information referenced in the regulations. We talked about incorporation by reference that will refer to other regulations or other information such as the rate, fee or other types of additional information in the law. This additional information that is referenced can also change. It could come from different sources. It could be trade agreements. In many situations, a regulation could refer to rates, figures or dimensions. For example, the automotive sector has the most regulations. The Department of Transport is one of the major regulation-making organizations. There are a lot of regulations and standards in that area. This information, which is not necessarily static and could change quickly, could be directly referenced in the law and in regulations.

Furthermore, the bill would allow for references to regulations or standards from other countries, which creates another serious problem: the accessibility of information. It can be a problem for a citizen if a reference is made to information that is difficult to access. Ignorance of the law is no excuse, and according to the rule of law, everyone is required to understand and know the laws, which include regulations. It is becoming increasingly hard for the people of Sherbrooke to keep up with the regulations and standards, especially when references are made to texts from other jurisdictions.

Accessibility is not simply a matter of being able to read the regulations. People also need to be able to read it in the language of their choice, in one of Canada's two official languages. That is another serious problem facing the people of Sherbrooke who want more information on a reference that is in another jurisdiction. If it is in the United States, for example, the reference would be in English, and some people may be okay, but in the case of references in other jurisdictions, in languages that are less common here in Canada, it would be harder for someone from Sherbrooke to access that information.

Accessibility is the biggest problem with this bill. I thank the committee members who tried several times to better define accessibility to ensure that the documents referred to are always easily accessible. There could be one single portal where someone could access everything: references, regulations and the relevant documents, in both official languages. We have not received any assurances that this will happen.

There are other problems that I did not have a chance to mention, which is why we oppose this bill at report stage, since it certainly did not reassure us.

I would be happy to take questions from my colleagues.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am hearing a common theme from him and other members of the opposition. They say that they are not going to support the bill, because they think there should be restrictions on the way government regulators draft regulations and use incorporation by reference. However, as he knows, there are currently no restrictions on incorporation by reference.

I wonder if he could tell this House why he thinks it is better to have no restrictions than to have these guidelines, which would, for the very first time in Canadian law, put into place protections in terms of the accountability of Parliament for the protection of individual Canadians. The bill would make it very clear in the definitions of regulation-making authority that all those who are involved in the making of these regulations where there is incorporation by reference would be accountable to Parliamentary.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, the status quo is not necessarily any better, but we would have expected this proposed new guide to be a little more robust and to ease our concerns regarding accessibility to these documents and the information that will be incorporated by reference into laws and regulations. It would have been appropriate—and this is what we tried to do—to ensure that the guide governing the use of these references be very clear and precise, and that there be no grey areas, which will be the case if this bill passes as is.

That is the point I was trying to make. We need to ask the government why it did not want to create a clearer, more precise and more robust framework in order to reassure parliamentarians that they would always have the right to scrutinize these regulations at the Standing Joint Committee on Scrutiny of Regulations. So far, the government has not reassured parliamentarians in that regard.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, in his last comment, the member indicated that parliamentarians have oversight. The problem, as I see it, is that it is not the case in incorporation by reference. Often there is no parliamentary oversight. As the world becomes smaller, especially with modern technology and the demand for increased world trade, the idea of incorporation by reference, I suspect, is going to become more prevalent. That means that there should be more parliamentary oversight to ensure that members of Parliament are aware of the laws being passed, because regulations are a form of law.

I wonder if the member might provide more input on how important it is that we have parliamentary oversight of regulations that are being passed.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I am so glad that my colleague from Winnipeg North asked me that question, because it allows me to talk about a problem that I did not have time to address in my speech. I alluded to it somewhat in my previous answer regarding Parliaments's ability to know what these references and the regulations they refer to are all about. These references can be found in other laws, which can also change over time.

For instance, if a reference is made to a foreign regulation and that regulation changes after being incorporated by reference in a Canadian regulation, parliamentarians will have no way of knowing it every time the regulation changes. It will also be impossible for Canadians to learn about these changes or to ensure that they are properly scrutinized in committee before they become law.

[Paulina Ayala, NDP, Honoré-Mercier, QC]

Mr. Speaker, I have a question for my colleague. I am a member of the Standing Joint Committee on Scrutiny of Regulations. Some files have been dragging on for 20 years because there is a problem with the translation from English to French.

Does my colleague think that this problem will only get worse with incorporation by reference, given that we are unable to resolve that type of issue now?

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague from Honoré-Mercier for her question.

It is a major problem. Ignorance of the law is not a defence. If we incorporate by reference foreign regulations written in foreign languages, we need to have the assurance, as parliamentarians and Canadian citizens, that these regulations and the incorporations by reference in Canadian regulations will be readily available in both official languages so that parliamentarians and Canadians can consult them.

The House resumed consideration of the motion that Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, be read the third time and passed.

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I would like to thank my colleague from Sherbrooke for so generously sharing his time with me. I would particularly like to thank the member for La Pointe-de-l'Île, who did an extraordinary job on a file that—let us be honest—is not the most exciting file that we could study in Parliament. We are talking about the issue of statutory instruments, which is nonetheless a cornerstone of democracy.

We vote on laws, but we sometimes forget that those laws affect all sorts of statutory instruments, which often come from third parties or other countries. Take for example free trade agreements. These are fundamental issues.

Such information can sometimes be extremely complicated and require a lot of work and study, even by MPs. This information is not always easily accessible to Canadians or easy for them to understand. That is why it is important that we debate Bill S-2 and that we oppose it.

First of all, I would like to point out that the trend continues. The government is still not accepting any amendments in committee and it keeps imposing time allocation and closure. This government managed to impose such measures to limit debate in the House a record number of 100 times. That is a shameful record.

Nonetheless, one would have thought that we could find some common ground on Bill S-2. We are talking about procedures that have existed for 174 years, since before Confederation, if I understood correctly what my colleague from Gatineau said in her speech. However, although very important changes are being made, the government is unwilling to agree to amendments to obtain the support of the opposition parties. That is unfortunate, and it is becoming an increasingly frequent occurrence.

We are nearing the end of the 41st Parliament, and this has been the trend throughout this Parliament, from beginning to end. Unfortunately, we cannot expect otherwise from this government.

Let us talk about the substance of the bill. It contains procedures for incorporating statutory instruments. The parliamentary secretaries of the Minister of Justice and the President of the Treasury Board have explained that the government intended to facilitate the incorporation by reference of statutory instruments.

One issue that keeps coming up is that facilitating trade transactions seems to be the focus of the government’s efforts. There has been a lot of talk about streamlining regulations. There are legislative aspects to this, of course, but many things are based and rely on statutory instruments.

In talking about statutory instruments, we can also talk about legislation in other countries. For instance, when we sign a free trade agreement, the other country’s legislation affects the way in which we draft our legislation. However, then we have to determine the extent to which we commit to proceeding with these changes to the legislation.

For example, if we agree to sign a free trade agreement according to the provisions on labour protection in another country, the laws of that country may change in the meantime. If these changes are made, pursuant to Bill S-2, we would not be compelled to follow up, publish these changes in the Gazette and follow a process of heightened parliamentary oversight, as is done by the Standing Joint Committee on the Scrutiny of Regulations. This committee, composed as it is of members of the House of Commons and senators, brings together both Houses of Parliament.

When we look into this matter, we note that the government tends to put forward legislation that is poorly crafted in order to reduce paperwork and facilitate different types of transactions, especially trade transactions. This is a goal that is shared by all members and all parties in the House.

We certainly understand that it is important to reduce paperwork. In a digital era marked by heavy reliance on the Internet, we understand that improvements must be made in order to share this information more effectively with Canadians and to make certain changes to regulations and to statutory instruments as effectively as possible.

However, this should not be done to the detriment of either parliamentary oversight or the intent of legislation already in place. I will use an example from the past: the red tape reduction bill. This initiative was put forward by the Minister of State for Small Business and Tourism, Agriculture and the President of the Treasury Board. We were opposed to this bill, even though we supported its intent. We noted that the desire to reduce red tape also reduced protection for workers, for instance. In trying to reduce red tape in certain work environments, the government also reduced the obligations of some employers to ensure that they had protections in place for their workers and workplace protections. This is a good example of cases where the government’s intention to make things easier for private enterprise took it in a legislative direction that was neither adequate nor appropriate.

The same problem faces us today with Bill S-2. As I said earlier, there may well be changes, and not only in other countries, but also in third-party codes. We as legislators do not necessarily have the power to legislate on these codes, but the legislation must take them into account. As parliamentarians' power is more limited in this respect, having a committee that oversees the regulatory process and regulations takes on even greater significance. However, the government appears to want to get these regulations through more easily, without their being published in the Canada Gazette, which is highly problematic.

We only have to look at the readjustment of electoral boundaries to see the importance of the Canada Gazette in informing Canadians about regulatory changes, or changes that, without necessarily being legislative changes, affect our work and the way in which Canadians relate to their democracy. My riding was drastically changed in the initial proposal put forward by the federal electoral boundaries commissions. The process was very important and I took part in it. With my participation and the participation of other stakeholders, we managed to have changes made to the initial proposal. People were extremely concerned and became very involved in the electoral boundaries redistribution process. Articles in our local newspapers often mentioned that the final result would be published in the Canada Gazette. It was very interesting because it enabled people to know where they could find this information. The same philosophy applies here. Unfortunately, none of our amendments aimed at facilitating access to and transmitting information were accepted.

In conclusion, I would like to talk about official languages. When a trade agreement with another country or another legislature is under consideration, we must remember that not all countries are required to draft documents in English or French, our two official languages. It is therefore important to add requirements in this regard to the draft legislation.

In closing, as this is the last time I will rise in the 41st Parliament, I would like to take this opportunity to thank the constituents of Chambly—Borduas who put their trust in me in 2011. I would particularly like to thank the team around me: Francine, Cédric, Suzanne and Sébastien. They have given me a great deal of support over the past four years. I also want to thank my family and my friends, of course, who have always been there for me in my work, which has not always been easy. I hope I have been equal to the task. I think that we have accomplished a great deal together over the past four years. I hope to again win the confidence of the people of Chambly—Borduas, which is going to become Beloeil—Chambly in the next election, and to be able to continue this great adventure with them. I hope to continue representing the community where I grew up, the community I have the honour of representing here in Ottawa.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I too hope that my colleague will be back. I would like to take a moment to thank all of my constituents for electing me. I hope to return to the House, and I wish them all a great summer.

This bill should have undergone close scrutiny during the committee study because it will have a very real impact on Canadians' day-to-day lives. Now that the study is over, we believe it is important to be prudent about the consequences of this bill, which are not yet well understood.

What we want is for the bill to achieve its goal and address the committee's concerns.

Several witnesses appeared, and one of them really talked about how important it was to make changes to the bill. John Walter said:

That's why we believe very strongly that there needs to be Treasury Board guidelines set up so that there are certain processes....Our position is let's modernize the system but let's make sure the rules are in place...

Does my colleague agree with his suggestion? Since several people wanted to see changes, why did the Conservatives decide against making those necessary changes?

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, to answer the last part of my colleague’s question, this is an unfortunate trend we have seen in the last four years, in the 41st Parliament. The government dismisses the amendments proposed by the opposition parties and does not listen to the very qualified witnesses who appear before the committees. That has really reduced the power associated with the committee process, as this bill also does.

A good and very concrete example of how this bill could affect people in their everyday lives is the issue of concussions that I have been working on for several years. In looking at that issue, we have examined the regulations concerning the manufacture of hockey helmets, for example. These are the kinds of regulations affected by this bill that would be less accessible to the public. If we, as legislators, make changes to the standards proposed by the Canadian Standards Association, we will find that there will be information missing, particularly when it involves other jurisdictions, such as helmets that might be manufactured in another country. The bill has serious flaws that the government refuses to correct.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, it is very useful to have a truly concrete example of the kind of regulations that would be affected by this. The Conservatives talk to us about free trade and international trade agreements, but it is useful to see, for example, that there are regulations that apply to the manufacture of hockey helmets, just as there are for health and the environment.

In speaking about accessibility, he said it would be a shame if regulations were less accessible. The problem is that a company that did not comply with the regulations might use the flaws in this bill to say that they were not accessible and it could not be convicted of failing to comply with the regulations. We might then see that when a company violated the regulations about manufacturing hockey helmets, it might not be possible to convict and punish it if it made use of the flaws in the bill.

What does my colleague from Chambly—Borduas think about that possibility?

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I thank my colleague for her question. Yes, this is something that could be very dangerous. This affects numerous regulations and statutory instruments. These are in fact matters that concern the safety of the public.

I am going to talk about the example my colleague gave of a company that might say the information was not accessible enough. While I am not a lawyer, and I may be mistaken, my best understanding of the bill is that this shows there really is a concrete relationship between regulations and the laws that we examine and vote on, as parliamentarians. My understanding is that the bill seems to weaken that relationship in a relatively significant way, including by reducing parliamentarians’ ability to exercise enhanced oversight of changes. I think there is a committee in place. Earlier, a question was put to my colleague from Sherbrooke by a Conservative member. He was asked whether there was not a need to improve what is already in place. We are not saying there are no problems to be solved; the problem is that the bill makes things worse.

[The Acting Speaker, Bruce Stanton]

It being 1:59 p.m., pursuant to an order made Wednesday, June 17, 2015, all questions necessary to dispose of the third reading stage of Bill S-2 are deemed put and a recorded division deemed requested and deferred until later this day at the expiry of the time provided for oral questions.