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.

[Françoise Boivin, NDP, Gatineau, QC]

Ms. Bourdages, did they not say more than that, that in fact it had to be expressly mentioned in the enabling legislation?

Perhaps this is because I have made my way, as my colleague said, to the Standing Joint Committee on Scrutiny of Regulations. But, if I understand correctly, for you, this act will be enough to give the authority. The question becomes “who will have the power to enact sections 18.2 and 18.3?” I will come back to that.

This explicitly authorizes the government to operate in that way. It was my understanding that the members of the committee—and I was not one of them at the time—preferred each act to have its own provision allowing it.

Far be it from me to start the debate on this issue again, although I think it is an interesting one. The bill seems to be very technical and very routine. We hear all the time that, in a world with piles of legislation and where regulations and requirements change quickly, we have to find modern ways of working. I have nothing against being modern, believe me, but neither must we forego our legal duty to check the regulations thoroughly. I can understand why the members of the joint committee had a problem with this.

As it is, analyzing regulations is very complex. It is not just regulations created by dynamic incorporation by reference. Imagine when they start trying to trace regulations back. That is what they are going to have to do. I doubt that they will create a registry in which all regulations by dynamic incorporation can be found. It will be a really mind-numbing task. It is not as if there were tons of people doing that research for us. The risk is that this will complicate the situation.

Sometmes, I have a problem with some of the government's legislation. Is it constitutional? Does it comply with our Charter? You have to chuckle when you look at the amended text of Bill S-2. It includes a new section, made up of clauses 18.1 to 18.7, but we must not forget section 3 of the Statutory Instruments Act. This states that the Clerk of the Privy Council must, among other things, verify legality and compliance with the Charter.

My concern about the creation of this kind of dynamic incorporation by reference is this. I know that, in the Senate, there were a lot of debates on accessibility, and the degree to which documents will be accessible. There is also the question of the legality behind the regulations that are passed.

My other concern is the following. Some time ago, Minister Nicholson appeared before a Senate committee. He gave some examples on international security. As others have mentioned, this will involve a lot of treaties, regulations and international standards. Let us not delude ourselves, the minister himself mentioned that it was a desired outcome, and that would certainly be true in this regard. This may well have repercussions for our people. They have to be able to handle it all.

In addition, your argument on bilingualism absolutely did not convince me. It is true that the Supreme Court said what it had to say on the matter. This concerns me even more because it means that we are in danger of having a huge number of regulations incorporated by reference that come from external treaties with countries that do not have the same obligations for bilingualism as Canada does. To my mind, that is a bit of a concern.

[Jacinthe Bourdages]

Mr. Chair, Ms. Boivin is right to mention that Bill S-2 is the result of a long debate between the government and the Standing Joint Committee on Scrutiny of Regulations. Putting an end to that debate is really one of the main objectives of the legislation because the government and the Standing Joint Committee on Scrutiny of Regulations were deadlocked. Sometimes they agree, sometimes they disagree on some points. On this point, there was disagreement between the government and the Standing Joint Committee on Scrutiny of Regulations. As has correctly been pointed out, the committee considered than any dynamic incorporation by reference not expressly authorized is invalid.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to ask some preliminary questions.

Am I wrong to say that Bill S-2 is an exact copy of Bill S-12? It deals with exactly the same thing, not a comma has been changed.

You say that you are just putting on paper what already existed. I have read the Senate evidence and debates. Correct me if I am wrong, but I read that dynamic incorporation by reference has been used 170 times since 2006 and that, in most cases, this was done without express authorization from Parliament.

I imagine that is the motivation behind clause 18.7. It reads:

18.7 The validity of an incorporation by reference that conforms with section 18.1 and that was made before the day on which that section comes into force is confirmed.

Clause 18.7 is a default clause, in a way. According to the department's interpretation, things have been done correctly and legally. However, you will all agree that the Standing Joint Committee on Scrutiny of Regulations does not necessarily share that opinion. According to the committee, the enabling legislation must specify the express right to use dynamic incorporation by reference. Also according to the committee, I believe that is the way in which we must proceed rather than coming up with a bill like this, which is more of a hodge-podge that makes it possible to act in that way basically at any time. I will not say that it can be done in any way, but it can be done at any time, as long as the criteria in Bill S-2 are met.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

My understanding of the regulatory process here is that if there is any concern by any member of the public, they can raise that concern. Certainly, any member of Parliament can raise that concern and it would then be referred to the scrutiny of regulations committee. So in any situation that Mr. Casey might be concerned about, he or any member of the public could apply to have that dealt with by the scrutiny of regulations committee.

If there were a situation where someone thought that the government of the day was overreaching its legislative authority by incorporating something by reference, presumably that would then go before the scrutiny of regulations committee.

Secondly, it's my understanding that there aren't any regulations under the Criminal Code, so that is not a situation where the Criminal Code of Canada would be amended by an incorporation by reference to another statute, or a standard that is developed by another body.

My first question to you has to do with accessibility. Bill S-2 imposes an obligation on the regulation-making authority to ensure that a document, index rate, number, or whatever it is that's incorporated by reference, is accessible, but it doesn't provide a definition of “accessible”. What, in your opinion, is meant by the term “accessible”? Perhaps you could give us some examples of that.

[Jacinthe Bourdages]

I understand the concern, but I think it's important to realize that Bill S-2 does not expand on the use of this regulatory authority that is incorporation by reference, which is already, as we've said, broadly used.

As for internally produced documents—that's by the regulators—it would be limited to documents that elaborate upon the main rules of conduct. This is to avoid concerns like the ones you mentioned.

For the external incorporation by reference, Bill S-2 codifies, if you will, the current practice. This is in cases where the documents already exist for an independent purpose that has nothing to do with the regulatory process. They just use the expertise that exists elsewhere to replicate the expertise in the regulations themselves, without having to reprise the content and instead of building the expertise in-house

I think it's important to realize that this bill, as I was saying in my speech, does not expand on enabling authorities. It's an aspect of the regulatory power, but it's an aspect like any other aspect of the regulatory power. It still needs to be exercised within the four corners of the enabling authority. It needs to be brought back into that perspective.

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

Thank you very much for that answer. So that would be something for a court to decide if ever there were a conflict.

Bill S-2 grants quite broad authority to use incorporation by reference. The guide to making federal acts and regulations indicates that everything to do with regulations really must be considered by the parliamentary committee of which my colleague was a joint chair, in 2011, I believe. They examine all cases of incorporation by reference in real depth. There is a mechanism for oversight, accountability and transparency. But Bill S-2 grants quite broad authority to use incorporation by reference, either ambulatory, dynamic, or static, as you mentioned. How can we be sure that the same oversight mechanism is applied to the regulations and to the incorporation by reference at the same time?

This is a huge project. It does not just apply to a department, but to all agencies and all authorities with the power to do this. How are we going to make sure that, at the Standing Joint Committee on Scrutiny of Regulations, we determine which mechanism will be used? Will it be the same? How are we going to make sure that both are at the same level of oversight and transparency?

[Jacinthe Bourdages, General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice]

Mr. Chair, I am Jacinthe Bourdages, and I'm general counsel and director at the legislative services branch. With me are my colleagues Patricia Pledge, senior counsel, also in the legislative services branch, and Bernard Auger, general counsel at the same branch.

Thank you, Mr. Chair.

Thank you for the opportunity to speak to you about Bill S-2, Incorporation by Reference in Regulations Act. As its title indicates, this bill concerns a drafting technique, incorporation by reference, which is used in legislative texts, most frequently in regulations.

Incorporation by reference is a technique currently used in the drafting of legislation, which allows, by a simple reference to a document made in the regulation, to conceptually incorporate the content of that document, without reproducing its text. The content of that document then acquires the force of law and forms as much a part of the regulatory scheme as the text of the regulation itself.

Incorporation by reference can be either static or dynamic. ln the case of static incorporation, only the version of the document that is cited in the regulation is incorporated, as if it were frozen in time. Any modifications made to that document after the regulation has incorporated it would not be included in the regulatory scheme. In the case where it is desirable that these changes be incorporated, it would be necessary to modify the regulation in order to make reference to a subsequent version of the document.

In the case of dynamic incorporation by reference, the changes made to the document that has been incorporated in the regulation form part of the regulatory scheme without the need to modify the regulation. In other words, the subsequent amendments made to the document are automatically integrated into the regulatory scheme.

Incorporation by reference of documents of many types in diverse federal regulations is already widespread. Among the different types of documents currently incorporated by reference, one can find provincial and territorial laws, the laws of other jurisdictions, international and national standards, as well as technical documents created by different departments. Incorporation by reference is already expressly authorized in more than 60 federal acts.

Bill S-2 proposes to amend the Statutory Instruments Act to create a general authority for the use of a technique of incorporation by reference in the regulations, which would complement all existing regulation-making authorities found in acts of Parliament. It is also important to clarify that this bill does not seek to validate retroactively anything that the government did not consider already to be authorized.

In general, under this legislative proposal, material that is generated independently of the government could be incorporated either statically or as amended from time to time.

However, the authority to incorporate documents produced by the regulation-making authority alone or jointly with another federal entity would be more limited. In most cases, those documents would only be able to be incorporated statically and only if the content of the document is limited to that which is incidental to or elaborates upon the rules already contained in the regulations. This ensures that the technique of incorporation by reference is not used to circumvent the regulatory process or to subdelegate the legislative power to government officials.

This bill also makes it clear that certain types of rates and indicators, such as the CPI, the consumer price index, or the prime rate, the Bank of Canada rate, can be referenced in regulations. This precision has been brought because those elements are not, per se, documents.

This bill also imposes an obligation on regulation-makers to ensure that the material incorporated by reference is accessible. It also provides that no person can be convicted of an offence or suffer an administrative sanction in the event that the incorporated document was not accessible.

In addition, Bill S-2 clarifies that the requirements of registration and publication would not apply to the incorporated material, but that material is still examined as part of the obligations under the Statutory Instruments Act and remains subject to scrutiny by the Standing Joint Committee on Scrutiny of Regulations.

Bill S-2 in no way alters obligations with respect to official languages. Unless there is a legitimate reason for unilingual incorporation by reference, material must be incorporated in both official languages. This is a constitutional requirement now, and it remains unchanged by this legislation.

While Bill S-2 is important, it must still be put in perspective. Ambulatory incorporation by reference is already widely used in federal regulations. As a result, Bill S-2 simply provides expressly for the authority to use a drafting technique that is consistent with the government's current legal practice on this matter. Bill S-2 does not confer authority to simply incorporate by reference without constraints. The use of the technique, like any aspect of the regulation-making authority, is shaped by the enabling statute under which the regulations are made.

Bill S-2 is intended to confirm the existence of the legal foundation for the use of this drafting technique.

Thank you, Mr. Chair.

We are now ready to answer the committee's questions.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, let's call this meeting to order. Pursuant to the order of reference of Friday October 24, 2014, in front of us today we have Bill S-2, an act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.

We have a number of folks from the Department of Justice who are going to give us a presentation. Since Ms. Pledge has the word “Senior” in front of her name.... Who's the lead here?

Madam, if you would like to introduce yourself and your teammates, the floor is yours for 10 minutes.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

We will adjourn until Thursday, when we will do Bill S-2.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I am going to call this meeting to order. We are the Standing Committee on Justice and Human Rights. This is meeting number 54. As orders of the day, we are going to deal with Bill C-32, and we are going to do the clause-by-clause study.

We usually do committee business at the end, but we're going to do it first. We're going to distribute it. Just so you know, there is a new version of the subcommittee on agenda that's coming up, because we had a request at that committee for an attempt to get the minister to come earlier than December 4. I will profusely thank the minister, as he rearranged his schedule, and he is actually coming on Thursday. We have a new report that's out, so committee business on Thursday, we'll be dealing with supplementary estimates (B), and we'll have the minister for the first hour and departmental officials for the second hour. We've invited the departmental officials whose estimates are affected.

Depending on what we do today, if we get through everything today, we'll be done with the bill today, but if clause-by-clause needs to be extended, we will do that the following Tuesday. We will also do Bill S-221, which is a private member's bill dealing with public transit operators. Based on the discussions that I've had, my understanding is that we'll have the sponsor of the bill from the Senate and from the House here. If you have any suggestions for witnesses, let us know. It was unanimous in the House, so I think just a discussion with them is likely all we need. Then we'll go back to clause-by-clause study on Bill C-32 if we're not done.

On the Thursday we'll start a review of Bill S-2 and we'll just continue on with Bill S-2 until we're done with it. Then we'll see what happens.

Is somebody willing to move that? It's so moved.

(Motion agreed to)

We're going to go now to a motion coming from the government side on clause 2. It's at the beginning, so I need to wait for it. We're just getting it photocopied. I think it's on your desks already, but the mover of the motion doesn't have a copy of it.

Today, as per the order of reference of June 20 on Bill C-32, we are going to do the clause-by-clause study on the victims bill of rights. We are joined here today by witnesses from both the Department of Justice and the Department of Public Safety and Emergency Preparedness. They are here only to answer questions that come up on any specific clause.

As you know, the short title is postponed until the end, so as chair I will call clause 2.

(On clause 2—Enactment of Act)

Mr. Goguen, your hand is up, and you'd like to propose something.

[The Chair, Conservative, Mike Wallace]

Thank you, everyone, for coming today, and for those presentations and the questions.

Quickly, committee, here's my plan; you can tell me if I'm wrong. But you don't have to tell me right now, because we're running out of time.

Today is October 30. We have witnesses for November 4 and 6, which fall next week on Tuesday and Thursday, and on November 18, because those witnesses basically got moved because of “the issue”.

Now, of the witnesses who were asked, the only ones who are not coming.... I thought we had more, but we actually only have one province coming. The Government of Alberta is coming, by video conference. Quebec has said no; P.E.I. has said no; B.C. is sending a letter; and we haven't had a response from Ontario yet.

I'm proceeding with that. After that is over on November 18, I would like to go back, on November 20, to our miscellaneous bill for an hour. There is information still coming. The clerk is going to follow up on why we don't have it yet, but we're going to get it. We'll tentatively have an hour on November 20 for that miscellaneous bill. I don't think it's going to take us more than an hour.

Then for the second hour we'll have a subcommittee meeting on agenda to look at what is coming next. That would allow me and you and any independents to bring forward any amendments to the bill we're dealing with now, Bill C-32. Then we will do clause by clause on November 25, and move forward on whatever is new on November 27, and we will decide upon that on November 20.

Here's what I want. We've had four bills referred to us. Bill S-2 is from the House. It's a statutory instruments piece, and is more technical than anything else. Then we have three private members' bills: Bill C-587, which has a February 18 date to it; Bill C-590, which has a March 9 date; and just as of last night, Bill S-221, which was unanimously passed by the House.

My suggestion is that if you people could get together to figure out which ones we could do...we could do Bill S-221 very quickly. Work it out. Come to see me about what you'd like to do and when. We'll have that discussion at our meeting on the agenda on November 20, and we'll know what we'll be doing till Christmastime, if that is acceptable to everybody.

Is that okay?

Yes, Mr. Casey?

Justice for Animals in Service Act (Quanto's Law)

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank the member for Pontiac, who does an extraordinary job. I do not envy the size of his riding. That being said, I know how involved he is in his riding.

I appreciated what he said in his speech. I also appreciated the fact that he mentioned that we are the only ones who are taking action in this regard. Earlier, I heard the minister of state tell us that we could all support this bill and send it directly to committee, as though that would ensure that it would be passed more quickly.

I assume that my colleague is aware that the Standing Committee on Justice and Human Rights has a lot on its plate already. I am thinking of the victims bill of rights, the new regulatory authority associated with Bill S-2 and all the private members' bills that are currently before us.

What is wrong with wanting to debate these issues in this House and to hear different opinions on some specific aspects of the bill? For some, that means the protection of animals. For others, like me, that means the protection of animals, of course, but also some provisions of the Criminal Code as a whole. For others, it means other things. This allows us to pass more clearly defined legislation.

I would like to hear his comments on that.

Incorporation by Reference in Regulations Act

[Adam Vaughan, Liberal, Trinity—Spadina, ON]

Mr. Speaker, I rise today to speak to this. I note with irony that yesterday we spoke to a private member's motion that attempted to ban the practice of proxy marriages. We have here an attempt in some ways to provide regulation by proxy. If it is unacceptable to marry someone by proxy, it ought to be just as unacceptable to try and govern a country by proxy and distribute regulation and use proxy in this case to create a simplified legislative tool, but in fact complicate the regulatory regime.

There are significant issues with this legislation. We are profoundly concerned. They range across the legislation as it is presented, but they go to the heart of this issue. In trying to make things simple, sometimes we actually end up making them that much more complicated. In trying to be efficient, sometimes the efficiency creates confusion, legal challenges and complications that actually slow things down and make things less fair. Instead of creating accessible definitions, inaccessible procedures are created, and inaccessible and sometimes even costly regulations come into effect. It is the unintended consequences perhaps of good intention.

However, I return to the notion that if it is unacceptable to do marriages by proxy, why would we create legislation and regulation by proxy and simply choose to proceed in a quick way rather than in the right way?

For example, if an incorporated document is protected by copyright and that copyright document regulation is referenced in the legislation, it may actually cost people to get the information they need to comply. Willing individuals, willing corporations and willing institutions are prepared and attempting to participate properly and legally. Yet because of the way the legislation is constructed, they have to pay to get public information.

We have talked a great deal about the value of an open democracy and open government, but our regulations, our rules and our laws must also be just as open. When we short-circuit that process, as cumbersome as it may be, as rooted in tradition as it may be, it provides us with positive thought and in this case with cause for concern sufficient enough to stand in opposition.

Section 18.6 says:

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.

In other words, what it is saying is if the rate is done by proxy, or in this case defined in the way it is in this legislation, the numeric figures that must be complied with are suddenly just beyond the reach of someone acting within what they think are the bounds of the rules and regulations. In fact, because they have not had access to those exact data files, they actually do not know what rate they may be governed by.

Additionally crown corporations may have their rates changed. We have a situation where the details of the rules and regulations are hidden by the provisions in this document we are debating today.

This is critically important for a country that is bilingual. We have no guarantee that the proxy regulations, especially if they are overseas or outside the jurisdiction of Canada, are translated in real time into either official language. That is significant because under Canadian law, we have an obligation to treat both language groups equally and fairly. If outside organizations, which do not have an obligation to meet, are the ones having their rules and regulations referenced, that lag time between having equality of languages creates an unfair condition and such a troubling precedent in this country. It is again, something with which we really need to be concerned.

In a globalized world of complex trade agreements and trade treaties, in a world that wants to speed up and in a complex federal system, we understand the impulse of what is being proposed here. What we are doing, as I said, is circumventing the proper process, a good process and a sound process. We are substituting it with something that creates glaring inequities and gaps.

When we draft laws and knowingly draft laws that have these gaps, we are inviting court challenges and non-compliance, even through good intent. We are also opening the door to potential exploitation of that, which is perhaps the most serious of all of the concerns.

We are concerned to the point of opposition to Bill S-2, and the Liberal Party will not be supporting it.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I have known the member for Toronto—Danforth, since he first came to the House a couple of years ago, as being extremely effective and meticulous about legislation that is brought forward. We certainly saw that with the changes to the electoral act. On behalf of all Canadians, he did a fantastic job scrutinizing and meticulously going through each of the changes proposed by the government and looking at what was clearly a concern with respect to reducing the level of democratic participation rather than increasing it, which should hopefully be the goal of everyone in the House.

Given the fact that he has already raised the question of incorporation by reference that bypasses the normal scrutiny that should be put into the consideration of any government legislation, I would like to ask the member this. Taking Bill S-2 as an example, can he broaden his frame of reference and respond to the concerns of whether the government would be willing to do the consultation and the transparency that is necessary to make sure that the bill does subject itself to accountability and transparency?

Given his vast experience on the Elections Act, does he feel comfortable that the government understands the importance of consultation and accountability and would understand that it has to bring changes to Bill S-2 in committee so that regulatory changes that are brought in are in the public interest and reflect that transparency and accountability?

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

Mr. Speaker, the bottom line is that the NDP is happy to see a bill that is attempting to make the regulatory process more efficient. However, we have some concerns that the way the technique of incorporation by reference appears in Bill S-2 will have some problems from a democratic perspective.

Incorporation by reference can include a method that includes referring to texts that change later and then the later changes end up automatically being part of our regulatory system without any further parliamentary review or review by the Standing Joint Committee for the Scrutiny of Regulations. In a nutshell, those two phenomena—of an open incorporation by reference and of future changes that never then actually have an accountability mechanism within Parliament—are the source of my particular concern, and I suspect my colleagues will also share that.