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.

Aboriginal Affairs

[Susan Truppe, Conservative, Parliamentary Secretary for Status of Women]

Mr. Speaker, it is our Conservative government that brought the action plan to address family violence and violent crimes against aboriginal women and girls as well as the family violence protection program. That member and her party, once again, voted against them. Since coming to office, we have passed more than 30 criminal justice and safety initiatives. That member and her party voted against them. Again, we passed Bill S-2. That party and the member voted against it.

While our government takes action, the opposition party does not. That side of the House never votes to support women and girls in Canada.

[The Speaker, Conservative, Andrew Scheer]

I have the honour to inform the House that when the House did attend His Excellency the Governor General in the Senate Chamber, His Excellency was pleased to give, in Her Majesty's name, the royal assent to the following bills:

Bill C-247, An Act to expand the mandate of Service Canada in respect of the death of a Canadian citizen or Canadian resident—Chapter 15.

Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons)—Chapter 16.

Bill C-591, An Act to amend the Canada Pension Plan and the Old Age Security Act (pension and benefits)—Chapter 17.

Bill S-3, An Act to amend the Coastal Fisheries Protection Act—Chapter 18.

Bill S-6, An Act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act—Chapter 19.

Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts—Chapter 20.

Bill C-46, An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act—Chapter 21.

Bill C-2, An Act to amend the Controlled Drugs and Substances Act,—Chapter 22.

Bill C-26, An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts—Chapter 23.

Bill C-63, An Act to give effect to the Déline Final Self-Government Agreement and to make consequential and related amendments to other Acts—Chapter 24.

Bill C-66, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2016—Chapter 25.

Bill C-67, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2016—Chapter 26.

Bill C-42, An Act to amend the Firearms Act and the Criminal Code and to make a related amendment and a consequential amendment to other Acts—Chapter 27.

Bill C-555, An Act respecting the Marine Mammal Regulations (seal fishery observation licence)—Chapter 28.

Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts—Chapter 29.

Bill C-12, An Act to amend the Corrections and Conditional Release Act—Chapter 30.

Bill C-52, An Act to amend the Canada Transportation Act and the Railway Safety Act—Chapter 31.

Bill S-4, An Act to amend the Personal Information Protection and Electronic Documents Act and to make a consequential amendment to another Act—Chapter 32.

Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations—Chapter 33.

Incorporation by Reference in Regulations Act

[The Speaker, Conservative, Andrew Scheer]

The House will now proceed to the taking of the deferred record division on the motion at third reading stage of Bill S-2.

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.

[The Acting Speaker, Conservative, 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.

[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.

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.

[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.

[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.

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

Mr. Speaker, I want to thank the parliamentary secretary, the member for Okanagan—Coquihalla, for his very reasoned speech. We can see how well he represents his constituents in British Columbia and all Canadians. He has thought about this issue. He understands it. I appreciated his taking us through the history of regulation making, why it is important and why this issue is so important.

I wonder if the member could point out for us succinctly the benefits of Bill S-2 over the current state of the law in Canada.

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

Mr. Speaker, I want to thank the member for what he does for his constituents, and of course for his service on the scrutiny of regulations committee. Oftentimes we have complex files on a variety of issues. This gentleman has knowledge of wildlife, conservation efforts as well the environment, and in some cases, he is able to bring to us knowledge that the rest of us simply do not have, which speaks to the diversity of Parliament.

I would point out, as I mentioned at second reading, that we have so many different bodies that operate on an international level, such as NRCan, where we send people to join in on these international technical committees.

Canada punches above its weight. We want to see the best standards not just for Canadians but worldwide. We also want to make sure that our Canadian companies adhere to these standards and that there is harmonization in as many jurisdictions as we can get so that we have greater certainty for trade.

We have a great country. We are trying to maintain it as best we can and in fact improve upon it. The opposition can call Bill S-2 a sleeper if they want, but it would simply codify practices that are already ongoing which would make this country stronger.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, what is clear in regard to Bill S-2 is that individuals will be at a personal disadvantage since there is no guarantee that the documents incorporated by reference will be meaningfully accessible, at least until accessibility is better defined in a court of law.

In particular, the incorporated document will not have to be registered in the Canada Gazette and might even be protected by copyright. It will also become increasingly difficult for people to know whether their version of the incorporated document is up-to-date. In some cases they will have to pay to access copyright protected documents. The bill will weaken the rights of those governed by law to know the contents of the law.

Does the member not share any of those concerns?

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

Mr. Speaker, I want to thank you and all your colleagues who have helped run this Parliament, as well as everyone who makes this place operate so well. We are very gifted to live in such a strong democracy, Canada. I love our country and I want a better life for all my kids, so it is an honour to stand in this place and join the debate on behalf of the people of Okanagan—Coquihalla.

I would like to talk about Bill S-2, the incorporation by reference in regulations act, which the government has put forward in order to create greater certainty. In my speech today, I would like to touch upon a few different things.

We have heard time and time again that incorporation by reference has had a very common, long-standing use by drafters to be more efficient in the drafting of regulations. Let us say there is a reference in a set of regulations to the Criminal Code. Rather than having to print out the entire code, a reference can simply be made to it, with the expectation that someone would be able to quickly open up the Criminal Code, find the relevant provision and therefore not have to reproduce the entire Criminal Code in a set of regulations. This is efficient for the drafters and legislators who have to look at these regulations, for example, the Joint Standing Committee on the Scrutiny of Regulations, as well as preventing everyday citizens from having to read through things that are not relevant beyond a basic reference.

Let us take a step back and talk about why Bill S-2 is relevant today, why it is important and needed.

If we go back to the 1960s and 1970s, many of us probably grew up listening to members of Parliament. They stood in their places in this chamber and discussed what was important to them, such as wanting more oversight on consumer protection and more discussion about regulations that would allow better health and safety in workplace environments.

As democratically elected people do, they listened and put forward various rules, but as they did that, they found that by simply putting statutes into place, oftentimes there was not enough in the statutes to direct officials in the various ministries who were delegated the authority to act under those laws and, thus, the need for regulation. What we saw was the rise of the regulatory state, where it was no longer appropriate. In many people's perspective, there have always been two different schools on regulation making. One is that highly competent professionals are given the discretion to apply administrative rules, but, again, those are subject to issues of fairness because not everyone can agree on what is fair.

Therefore, the system went to being more of prescriptive administration, where certain key things were laid out. The reason regulations were so important was because oftentimes the law would give broad outlines of what was wanted and then the department that was delegated the authority, working with the minister and the justice department, would then draft administrative regulations to ensure that most, if not all, situations were anticipated.

As we grew in stature, as the economy and the population grew, as well as demands for better protections, whether we are talking about transportation or consumer protection, these regulations began to increase. Therefore, there were concerns about oversight, which I believe the justice minister of the day, John Turner, decided, at the beckoning of colleagues from all across this place, that there needed to better oversight of these administrative regulations. Therefore, the Joint Standing Committee on the Scrutiny of Regulations was created, an opportunity for parliamentarians from both chambers to ensure that what was being debated in both houses and passed into law was found in the regulations and that nothing contravened any of the obligations of government, such as the Bill of Rights, the Charter of Rights and Freedoms, that all official bilingualism was being kept.

Since then the Standing Joint Committee on Scrutiny of Regulations has basically had the purview of every single directive and regulation under the Statutory Instruments Act, and I have had the great honour of working with the council and the committee of the Standing Joint Committee on Scrutiny of Regulations. Peter Bernhardt and his team are very committed Canadians. They feel very strongly and work very hard for all of us, and as parliamentarians we need people like that to make good choices.

Often we hear, either in this place or in reports, that there is no consensus-building in Ottawa. I want to say just the opposite. The reason many people do not know about the Joint Standing Committee on Scrutiny of Regulations is that everything is done by consensus, or at least 99% of it.

That is because we have our debates here. The democratic vote is taken. The will of Parliament is expressed and becomes law. Then the laws are put into place by independent regulators or departmental regulators, and that is important. If issues come up, we have already had the debates and the will of Parliament has already been expressed. The only question is how we carry forth. Is there a drafting error? Is there an area where we need to make clarification?

The joint standing committee has done very good work over the years. It has a number of roles. It is an immensely powerful committee, and I am privileged to sit on it. I am privileged to learn a little bit more about the other place and have an opportunity to work with senators, because there are senators who care very deeply about the future of Canada, just as we do.

Over the years, the committee has made growing use of incorporation by reference. Why is that? It is because incorporation by reference is a long-standing drafting technique. As more regulations come into effect and our economy becomes more integrated with the world economy as well as with overlapping provincial regulation, it only makes sense that there needs to be a common understanding, and incorporation by reference makes it easier for everyone to be able to read what the law means under the regulations.

Bill S-2, the incorporation by reference in regulations act, is a response by government. It is a guidebook, so to speak, as to when and where incorporation by reference would be used, whether it be static, which is just a simple reference to a particular document as it was at that time, or dynamic, where there may be changes.

We have heard from a number of people, including myself in previous speeches, about Canada's enormous capacity in technical expertise. We lead the field in reaching international consensus because we have such strong standards at home and are able to share those standards while including other countries' standards.

I would like to take a step back and also point out that it is not just the rise of the regulatory state since the 1960s. Other things have also affected us. In the 1990s and early 2000s, there was globalization. Technology has changed the way businesses interact and the way we interact as people, and it happens on a daily basis.

When we talk about these things, we talk about Canada's place and standing in the world and how we are making sure that our great Canadian products have better access to markets.

The previous Liberal government's five international trade deals have been cited many times in this House. With this government, there are 43. That is important to note, because as we open up tariff-free access to Canadian products, we also have to make sure there are no barriers. One example of a non-tariff-based barrier to trade might be a standard in one country that is not accepted in the other. We may have the best widget, food product, or, in my case in Okanagan—Coquihalla, bottle of wine, but if it does not harmonize with that standard, we cannot send it there. This becomes a very real issue.

As the Parliamentary Secretary to the Minister of Justice mentioned earlier, a good example of that is the co-operation between President Obama and this government beyond the border in making sure that the interregulation trade councils are able to harmonize where it makes sense for everyone. I will reiterate: where it makes sense for everyone. We are sovereign nations, but it is sometimes in our enlightened best interests to work with others.

Again, we have the rise of the regulatory state. We have globalization. We have increases in technology. Everything is accelerating, so it only makes sense to start to clarify when these incorporation by references would happen. I will give the House a good example domestically of how this would help.

It is very easy for someone to use a smart phone find out what the current interest rates are. It is easy for someone to find out what the consumer price index is. However, if we were to fix that in regulations and make reference to the rate of interest as set by the Bank of Canada, it may be difficult to say in static reference what that is. Most people would just say that the rate is calculated for a certain tariff or certain fee with the consumer price index. Now they would be able to go online and find out what that current rate is. That makes it more certain and easy for people to access. That is a basic incorporation by reference that should be dynamic.

Should we be using this tool of dynamic incorporation by reference on everything? I would say no, but that is why we are having this debate here. We need to determine when it is appropriate. The scrutiny of regulations committee has raised concerns about it, and that is why we need to put in place a bill that would specify when to use it. This would empower us as legislators. It would clarify for government departments when it is not appropriate. It would clarify it for the justice department, which drafts many of the regulations. As I said, it would also make it easier for individuals and businesses locally to be able to determine what they would need to do.

I want to quickly go back to how this would benefit Canadian businesses internationally, because this is an important area for me. For example, Canadian marine manufacturers have said to me that when they are trying to sell their products abroad, their products need to be certified to international standards. It makes no sense for us to have regulations here in Canada that basically reproduce a whole international standard when we can simply make reference to it as that international standard changes, as it often does.

We are not alone in this world. We are a dynamic country, but we are still small in terms of size. We certainly punch above our weight, and I am going to continue to advocate for whatever we can do in that way.

The important thing here is that when we allow incorporation by reference, we are allowing Canadian businesses to succeed, and when Canadian businesses succeed, not only does it put food on the table because workers are able to draw income from good work, but it is also something we take great pride in.

While I am on the need to harmonize these regulations, I will mention that the hon. Minister of Industry met with his provincial colleagues about a week ago to discuss interprovincial trade barriers. Many of these barriers are regulatory, and they have a profound impact on wine producers in my province. We have the same situation at home, and I am thankful that the Minister of Industry has been able to create a consensus with all of his provincial colleagues that the status quo is no longer tenable. I applaud that. We also need to make sure we are doing the same thing here.

I have heard some criticisms and I am going to repeat some of them, although I am going to just incorporate them by reference. I am also going to give a little feedback that I hope will address some hon. members' concerns.

One concern has to do with official languages. Some people have said that the regulations will not be in English and French. That is absolutely false.

Everything that goes through the Canada Gazette process has to be done in both of Canada's official languages, and that will continue. That is important for people to know. Those regulations are produced by Canadian regulators, and they need to be in both official languages. All of us agree that it should be that way.

Second is accessibility. Some people have pointed out that accessibility means different things to different people. I will provide an example.

If I were to open a standards for Canadian electricians textbook and look through it, it would not matter if it was English or French. I would not be able to understand it, because I do not have that technical expertise. Many times these standards are in very specific industries. They have specific jargon and require specific expertise. The Government of Canada should work with those existing authorities and, through our technical committees, make them as clear as possible.

We could email the regulations to every single person in Canada, but most people would find them either irrelevant or else unreadable because they lacked the expertise or training to apply those standards.

It is important to note that the Internet is making things more accessible all the time. Many people utilize Google to go onto international websites of different languages. Suddenly they are able to read that website in very good English. Of course, as those algorithms continue and as the scope of the Internet's reach continues to enlarge and gather more data on how we speak and what we mean by certain things, that accessibility will only get better, so it is important to note that technology is, to a large extent, really making it easier for anyone to access information.

There have also been some issues raised about retroactivity. On the Standing Joint Committee for Scrutiny of Regulations, we ask ministers on a regular basis to consider legislation as a remedy for a situation that was not originally contemplated and needs to have the force of law behind it. This happens on a regular basis.

What we are mostly talking about here are references in regulations that basically say “as amended from time to time”. That should not be controversial. It just means that when a new safety apparatus or standard has been put forward, that is the new standard. We are the ones who decide that. If we do not like it, as Parliament we can ask the government to change the standard. We do the choosing.

I also want to address the sovereignty issue. This House, combined with the Upper Chamber, decides what the law is in Canada. That is something I believe in.

I would like to give a good example of the rhetoric of the NDP. It sometimes does not always follow consistently from committee to here in the House. We had members of the NDP at the joint standing committee raise concerns around the convention on international trade in wild fauna and flora. It is an international convention that protects wildlife so that humanity can maintain our world heritage of these different endangered species. I think all of us would agree that it is an important thing. That is why we are part of it. However, New Democrats said they were upset that the government had not yet acted upon the latest convention, because it has to go through the regular gazetting process, and they were complaining about it. They were saying it was not appropriate.

Perhaps with the use of incorporation by reference, the moment Canada, along with anyone else, agrees with an international convention, it could become regulation automatically. We cannot have it both ways. We cannot have the benefits of the regulatory state without saying that things we all agree on should be done and put in place right away. It should not take years to put in place simple changes when they could be put in place quickly through incorporation once everyone on the international stage has been involved.

The NDP sends out these different messages. That approach does not create certainty and it does not always contribute to the public good. I do admit that there are some legitimate criticisms, but there are trade-offs in every policy, whether we are talking about trade or a new measure coming forward. The NDP only wants to see the negative side.

. We know our country was built on hard work and sacrifice. We know that Canadians are fair and practical people. We know that when Canadians compete, they can succeed. They need their government to make sure they have access. Bill S-2 is a meaningful approach that would give certainty to the government, to Parliament, and our businesses and would create better outcomes. That is how this place should work.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, on the first point, the concept of retroactivity exists, and that is not really the question. The problem is that the government has always claimed that it was entitled to use incorporation by reference virtually every time, without there being specific authorization in a law. The Standing Joint Committee on Scrutiny of Regulations said that, on the contrary, specific authorization was required.

Clearly, in Bill S-2 and clause 18.7, the government is trying to say that it wants to end the argument between the two sides and make sure it is done this way. The problem is not the concept of incorporation by reference itself; it is when incorporation by reference is done across the board. At present it is done with the express authorization of Parliament under a specific law that has been examined here in the House. That is where the problem lies.

That is why we say they are not accessible at present. There are regulations that are permitted by reference under an enabling act at present. However, the public knows what those laws are. If they know, they will be able to go and look at them. If it is only a few laws, here and there, it is less complicated. However, we know what kind of an administrative mess there can be and how taxpayers have to do never-ending searches. In addition, when the government refuses to define “accessible” and “document”, there is a problem somewhere that suggests that the reason the government does not want to clarify is that it wants this legal vagueness, which will allow it to do certain things. Unfortunately, the government is guilty of playing hide and seek in recent years with mammoth bills in which it hides a few provisions here and there. That is not what a government that promises people transparency does. We want to put a halt to that and tell people to watch out.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, after I was elected in 2011 by my constituents in Gatineau, to whom I am grateful for this immense honour, our then leader, the great Jack Layton, did me the honour of naming me co-chair of the Standing Joint Committee on Scrutiny of Regulations, a joint committee of the Senate and the House of Commons. I admit that I wondered what a committee like that was all about.

I heard the member for Malpeque say that he would rather watch paint dry than attend a meeting of that committee. In my opinion, members of that committee have to be passionate about the law and have an immense respect for our role as legislators.

What is more, that role is not just about creating laws and bringing them into effect. It is also about making the related regulations. The law is one thing, but that law often requires the creation of dozens of regulations for its implementation.

I want to thank the members of the committee, but especially all the experts who guide us in that committee. However, I no longer have the pleasure of being a member of that committee. It is true that I wondered what that committee was all about. In reality, I also wondered at first if I was being punished, but I realized that I was not. My leader at the time felt that my background as a lawyer with 30 years of experience, which I sadly admit in the House, made me a prime candidate to co-chair the committee.

I saw first-hand the thoroughness of the experts and of the departmental and House staff who provided support as we carried out this difficult work. Every week we had a foot-high pile of documents to examine during a two-hour committee meeting, and I am hardly exaggerating. One might have said it was challenging and rather dry, but it was necessary work nonetheless.

I would like to give a little background. Members forget that Bill S-2 was originally introduced in 2012 by the Conservative government in the form of Bill S-12.

At the time, as deputy justice critic for my colleague from St. John's East, our justice critic, and as a member of the Standing Joint Committee on Scrutiny of Regulations, I also had the great pleasure of being responsible for Bill S-12.

From the beginning I have been saying that this bill is a sleeper. I am pleased that we have another opportunity to debate it, although it is at third reading. We did not have much time to debate second reading and report stages, and there were not many meetings of the Standing Committee on Justice and Human Rights.

My colleague from La Pointe-de-l'Île continues the work on Bill S-2 that I had started on Bill S-12, and I thank her for that. She took this on during the study in committee and at all stages in the House.

I called this bill the sleeper of this legislature because this is a bill that could have a huge impact on the lives of Canadians. I do not get the impression that members on the Conservative benches have taken it as seriously as they should have. I said this when I spoke at report stage. It has not drawn much attention from the media, aside from journalist Tom Korski at Blacklock's Reporter. What he wrote in 2012 might have been what first tipped me off.

The title of the article was:

“Senate Quietly Ends 171 Years Of Scrutiny With Bill”.

The article said:

An obscure Senate bill will end 171 years of open scrutiny of regulations governing virtually every aspect of the economy and national life, critics say.

The government legislation…would permit the introduction of new rules without plain disclosure of all related laws—

It would end a practice that predates Confederation.

At the time, some senators expressed their opinions, including Senator Harb, who has since retired and is dealing with other problems.

He said:

“This is a big, big problem. There is little awareness of this bill. If regulated industries become aware of what is in this bill, there will be outrage.”

Senator Marjorie LeBreton, a senator that the Conservatives might be more inclined to listen to and the government leader in the Upper House at the time, refused an interview.

The government bill was introduced without fanfare in the Senate on October 17, 2012.

I find this next part interesting. It quotes Mac Harb:

In the House of Commons too many MPs ask questions. In the Senate there are many new senators who do not understand the history of these procedures. The Senate is a dull place. I think they are trying to force it through.

The article explains the practice. It states:

Under a practice that dates from 1841, all federal rules and decisions must be plainly published for public scrutiny to provide Canadians “their rightful access to the laws and regulations that govern their daily lives,” according to the Canada Gazette Directorate, the federal agency that prints all details of legislation.

Under bill S-12, An Act To Amend The Statutory Instruments Act [now Bill S-2], regulations could be delegated—

—and that is also important—

—from unpublished sources “as amended from time to time” in a little-known practice called “incorporation by reference”....

“This cuts down on the onerous amount of material that would have to be included in a number of regulations,” a bill supporter, Senator Linda Frum, told the Upper House.

That, I would say, is probably the main argument for the government—to really trim down and help out—because it is true that there are tens of thousands of pages per year. I do agree, but we have to do it in a correct fashion.

Still quoting Senator Frum, the article continues:

“If a regulation provides that hockey helmets must be manufactured in accordance with a particular Canadian Standards Association standard, the effect of that reference is to make that standard part of the regulation without actually reproducing the text of the standard in the regulation itself.”

That seems to make sense.

It continues:

In debate, Senator Harb called the bill “a blockbuster” that would permit the government to enact new regulations without public scrutiny or parliamentary approval.

As quoted in the article, Senator Harb said:

“Once we lose control, things may very well go off the rails.”

I will not read the rest of the article to the House. That was probably the first little thing that set off alarm bells with respect to the study of Bill S-12 at the time, which is now Bill S-2.

It may be the price the government opposite is paying for the lack of transparency, collaboration and co-operation on the part of the government and its senior members. That has been prevalent and we need only think of the 100 gag orders that have been imposed. How many times did we present reasonable amendments in committee in an attempt to improve bills? How many times did Conservative colleagues sitting on a committee tell us that it made sense? How many times did we move motions that committee members seemed to agree with, only to see that the members on Conservative benches had been told what to do by the Prime Minister's Office or the office of the minister concerned?

In the long run, it means that we will be a little more cautious in our analysis. As I have often said every time new Conservative justice bills were introduced, the devil is in the details. Often, it is just smoke and mirrors. However, sometimes, in a large bill with many pages that seems to make sense, a small provision destroys all the political capital that the government could have earned. When we were young and we did something wrong, our parents would tell us that we had lost their trust and that we would have to earn it back. The official opposition is finding it very difficult to trust this government because of what it has done. I am thinking of access to information, for example, the reports and the fact that people sometimes have to wait four or five years to obtain the information they requested. We are here for Canadians, but the Conservatives do not often seem to think so.

I will now move on to another extremely important aspect, which is the law itself. Bill S-2 contains a variety of problems. It amends the Statutory Instruments Act and makes consequential amendments to the Statutory Instruments Regulations. I am not sure whether everyone has carefully read the act amended by Bill S-2 and before that by Bill S-12. However, subsection 3(1), which concerns the examination of proposed regulations, is extremely important. It is the key to why the House and the Senate created a joint committee on scrutiny of regulations. This stems from the very important responsibility of ensuring that our regulations are consistent. It often felt quite trivial at the Standing Joint Committee on Scrutiny of Regulations. The differences lay in the wording and the words used, involving either translation and bilingualism issues or errors in the French or the English versions. More often than not the errors were in the French version, because most legislation was developed in English and there were translation errors. We saw how long it took for the experts supporting us in committee to obtain information. I am sure that the Parliamentary Secretary to the President of the Treasury Board, if he is sincere, will admit how many good kicks, some of them hard, we had to give to the more resistant departments—I will not name the Department of the Environment or the Department of Transport—which took an inordinate amount of time to reply to our experts, who wrote to these departments on behalf of the committee for information on how they drafted their regulations. We need to remember the importance of regulations when we see a process that will bypass all that. With all due respect for my friends across the way, that is the impact this bill will have.

We need to remember the importance of regulations. We do not talk about it often in the House, and that may be why there is a kind of polite disdain. When I was trying to get a teeny tiny budget for the joint committee, a Conservative member told me in another committee that it was probably the most useless committee. That is what some Conservative members think of the Standing Joint Committee on Scrutiny of Regulations, and I am terribly worried about that. I still have not gotten over that comment. I know that many people share that opinion because the committee's work seems so boring. One has to really love the law, and one has to love reading regulatory texts. I know that the Parliamentary Secretary to the President of the Treasury Board is like me: he adores that kind of work. It is essential work.

We will not have many more opportunities to talk about Bill S-2, which we will vote on later this afternoon. The bill number indicates that it is from the Senate. It has already gone through the Senate process before coming here. That is another problem I just cannot get over. I have already commented on this issue many times. If this bill is as important as they say it is, I do not see why it was brought in through the back door.

Section 3 of the Statutory Instruments Act states the following:

3. (1) Subject to any regulations made pursuant to paragraph 20(a), where a regulation-making authority proposes to make a regulation, it shall cause to be forwarded to the Clerk of the Privy Council three copies of the proposed regulation in both official languages.

(2) On receipt by the Clerk of the Privy Council of copies of a proposed regulation pursuant to subsection (1), the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that:

(a) it is authorized by the statute pursuant to which it is to be made;

(b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made;

(c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and

(d) the form and draftsmanship of the proposed regulation are in accordance with established standards.

It is therefore important that regulations respect the Constitution and the charter just as much as laws. I still have some concerns, because this government always passes bills after ignoring the views of experts who tell us repeatedly in committee that the bills have serious shortcomings in that they are unconstitutional or they are not consistent with the charter. The last thing I want to do is give this government a blank cheque when it comes to regulation by reference.

It is worth noting that incorporation by reference is not illegal. That is right; it is already happening. However, I think there have been 160 unauthorized delegations by reference in enabling legislation, and the legality of that procedure is still a subject of dispute between the Standing Joint Committee on Scrutiny of Regulations and the government or specific departments.

The government did not take any chances, just as it did not take any chances when it destroyed the gun registry data. It introduced clause 18.7, what I call a pardon provision, which retroactively deems all incorporations by reference valid.

Incorporation by reference usually has to be authorized by enabling legislation. In other words, when parliamentarians pass such legislation, they are agreeing to give this power to the minister or the Governor in Council. However, it is still the law that governs incorporation by reference.

With the stroke of a pen, Bill S-2 blindly gives this power away without evaluating the need to proceed with incorporation by reference under certain laws. It is a way of neutralizing the power of members of Parliament to guarantee to their constituents that things are done properly. This bill gives the government carte blanche to do almost anything it wants. The Conservative government does not have a stellar record when it comes to that sort of thing, though. It is extremely worrisome.

I will not have the time to raise all my concerns, but, in short, I would say that the greatest flaw in Bill S-2 is the notion of accessibility in clause 18.6.

It still bothers me that the committee members rejected the amendments by my colleague from La Pointe-de-l'Île, which could have clarified some concepts and nuances concerning the issue of retroactivity. It disgusts me that something that was illegal is suddenly legal because the government revisited the past. That is the wrong thing to do.

There is also the matter of the documents, which my colleague spoke about earlier. It is a rather vague term that should have been more specific. With regard to bilingualism, I congratulate the government on its international treaties, but we all know that some of those regulations will find their way here and will not be in the language of our big, beautiful country's other founding people. I am extremely worried about the inherent rights of Canada's francophones.

We know full well that some treaties are very long, and I do not think that the regulations will be translated into French. I get the impression that taxpayers will pay the price for this.

There are thus some troubling aspects, and I would have liked it if we could have taken a little more time to examine this bill. I imagine that it will be up to the next government—and I hope with all my heart that it will be an NDP government—to do the work that this government refused to do. We were seeking to improve the bill with the amendments that we proposed in good faith.

I was going to say that this will be my last speech in the House, but it seems that the government is making me give another one this afternoon. I will therefore save all my thanks to the extraordinary people of Gatineau who have given me their unconditional support since 2011 until later this afternoon when I give my next speech. In the meantime, I am happy to answer any questions.