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

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Mr. Speaker, I thank my colleague for his tireless work on this file. This is a very technical piece of legislation and one he has learned inside out and contributed to in committee. I want to thank him for his contribution.

As Minister of State for Western Economic Diversification, I have the great privilege of consulting with every different stakeholder group possible in western Canada. One of the things I hear about when I meet with chambers of commerce and small businesses, and certainly as referenced by the Canadian Federation for Independent Business in some of its reports, is the need to reduce red tape for small businesses. Why is that important? What does it mean? When we have a piece of government regulation, often there is an extra burden on small business, because the compliance load is shared among a smaller proportion of employees. When we look at productivity, any additional regulation often disproportionately influences small business.

We can look at some of the changes we have put in place with respect to both Bill S-2, to harmonize some of the regulations, including the adoption of standards, and legislation that previously passed in the House on one-for-one regulation review. I spoke to a group of utility heads in Washington last year and gave a rousing speech about this that excited those in the room. It is actually a huge competitive advantage for Canadian business, especially when we compare ourselves to other jurisdictions where they might not be as prone to ensuring a deep commitment to reducing the regulatory compliance burden.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Mr. Speaker, I think my hon. colleague finished off on a positive note. Yes, we are here to debate Bill S-2, in this case. We may have different views on things, but that is what we are here to do.

I would like clarification on a couple of things she said.

Would she agree with me that the 28 countries that are part of the European Union have not signed the CETA agreement? In fact, I am concerned that they are moving away from that. Therefore, it is somewhat of an exaggeration to claim that we have signed a free trade agreement with 28 countries.

My second point is far more important. I believe I heard the member talk about the will of Parliament. I am referring, of course, to the destruction of registry documents by the RCMP, with the encouragement of the current government.

The will of Parliament is a very important thing, but would she not agree with me that it also includes respect for all the laws of this land, including the access to information law? In this particular case, this access to information law has actually been violated.

Would she agree with me that it is fine to talk about the will of Parliament but that one must, at the same time, respect all the laws that have been made in this House?

[Michelle Rempel, Conservative, Minister of State (Western Economic Diversification)]

Mr. Speaker, I am pleased to rise in support of Bill S-2 , the incorporation by reference in regulations act.

I would like to start by addressing some of the comments that my colleague raised in debate with regard to our government's track record in supporting the will of Parliament. What the Liberal Party, the third party in the corner over there, intimated was that the government was wrong in repealing the long gun registry. However, Canadians spoke very loudly against the long gun registry and we had a mandate in which to do that. Then Parliament, and of course when we talk about sovereignty the will of Parliament is very important, decided to do that. Then, of course, a provincial court ruling upheld the decision to destroy this data. The member somehow intimated that the government was in the wrong here.

What is really at the core of this particular issue is the sovereignty of Parliament. That is at the core of some of the objections to this piece of legislation which have come up in debate. I would like to address those, but I would first of all like to provide some context about the legislation as well as why it is an important piece that Parliament should be seized with.

First of all, to contextualize some of the opposition to the bill, I would like to define what a regulation is. This is from the Treasury Board website:

A regulation is one of the many instruments that government uses to achieve policy objectives and improve the quality of life of Canadians.

A regulation, in its broadest sense, sets out principles, rules, or conditions that govern the behaviour of citizens and organizations. Governments use regulations in combination with other instruments to achieve public policy objectives. Regulations are a form of law–they have force of law and usually set out general rules and penalties rather than specific ones that are directed toward persons or situations.

Regulating is an extension of the power given to Parliament by the Constitution to make laws. It is through a delegation of authority from Parliament in an act–known as an “enabling authority”--that the Governor in Council (the Governor General, acting on the advice of the federal Cabinet), the Treasury Board, a minister, or another administrative agency is given the authority to make regulations. The regulation is thus referred to as “delegated” or “subordinate” legislation. Authority to make regulations must be expressly provided for in the enabling legislation. Regulations must be consistent with all provisions of the enabling act.

The Statutory Instruments Act provides a specific definition of the term “regulation.” The Drafting and Advisory Services Group of the Department of Justice...is responsible for ensuring that a proposed regulation is consistent with that definition.

Right in the definition of what a regulation is, it sets out the role of Parliament and the sovereignty of Parliament and being able to set out its force, et cetera.

Today the bill is seized with the concept of incorporation by reference. For those in the gallery who may not understand what incorporation by reference is, the following is from the legislative summary of the bill:

Incorporation by reference, as explained by John Mark Keyes in Executive Legislation, “is a drafting technique for providing that a legislative text … includes material (text, information or concepts) expressed elsewhere. The material is included without reproducing it within the legislative text.

Different types of materials may be incorporated by reference. For example, a legislative text may incorporate another provision from the same text, provisions from another legislative text enacted in the same jurisdiction, legislative texts of another jurisdiction, or non-legislative texts such as technical standards or international agreements.

Of course, this is very timely in the context of the over 43 trade agreements that our government has brought into force during our tenure. The legislative summary continues:

In addition, incorporation by reference can be either “open” or “closed.”

“Closed” or “static” incorporation by reference incorporates the document as it exists at the time into the regulation.

One of the advantages of incorporation by reference is that it can be used to avoid duplication so that regulation-making authority does not have to reproduce the incorporated material in its entirety.

The legislative summary also notes that incorporation by reference may promote harmonization. This is particularly important in terms of seeking interjurisdictional harmonization, for example, to facilitate transactions or activities across borders.

Why is the bill necessary? As was mentioned, our government has undertaken a very aggressive and substantive free trade agenda. We have free trade agreements with many different jurisdictions in the world. In fact, I would think that is one of the competitive advantages that Canada now has in economy, in that we are positioned to have free trade access into the European market, as well as into the Asian supply chain through the Canada-South Korea free trade agreement.

Therefore, when we are looking at some of the agreements or legalities associated with these trade agreements, standards might be one of the things we need to look at. Certainly, in terms of regulation drafting, where there is an overall established governing standard that might be useful to incorporate in by reference, we need to have the mechanisms in government to do that.

Canada is at the forefront of standards development. There are hundreds of standards developed in Canada as part of the national standards system in Canada and then incorporated into federal and provincial regulations, such as standards developed by organizations like the Canadian General Standards Board, which would most likely be recognized by the name the Canadian Standards Association.

Standards developed by these organizations have already become key to the way sectors are regulated in Canada. There are more than 250 different standards produced by the Canadian Standards Association that are referenced in federal regulations.

We have this big free trade agenda and we are at the forefront of standards development. Also, standards development is very dynamic and fluid. Standards and regulations often follow, as we see advances and innovations in new ways of doings things, processes, and technologies. We need to be in a position as legislators to quickly and nimbly respond to these changes in the regulatory environment without causing undue duplication.

At this point, I would like to emphasize one of the great impacts of looking at regulatory review on an ongoing basis. The House is riveted with the extremely sexy topic of regulatory reform. I actually think it is. This is a very pertinent topic. The fact that our government, through this Parliament, brought in one-for-one regulation review signals to the business community that our government wants to ensure that Canadians have the highest level of health and safety, but also that we are not compounding an undue compliance burden on business.

One of the things that businesses often tell us when we consult with them is that they want no surprises. They want to comply with government regulations on health and safety, but a determinant to investment can be surprise or duplicative regulations or regulations that have a compliance burden that is unduly onerous. Therefore, it is up to us as parliamentarians to ensure we are achieving that regulatory outcome without an overly complex and undue burden in our regulatory system.

Regulation by incorporation as proposed in Bill S-2, and how that would happen, both simplify and allow nimbleness in our regulatory system, which is a competitive advantage for Canadian business.

What would the bill do? Everyone is so remarkably enchanted with it, but it is important to talk about it. I am going to quote from speeches given by my colleague the Parliamentary Secretary to the Minister of Justice, as well as the member for Kildonan—St. Paul:

This bill deals with the regulatory drafting technique.

What does that mean? That means the process by which we draft regulations in government.

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

The bill is about securing the government's access to a drafting technique that has already become essential to the way government regulates. It is also about leading the way internationally in terms of modernization of regulations.

Again, this sends a signal to civil society and our business community that we are ensuring we have regulations that promote the health and safety of Canadians, but also are clear and accessible for businesses and folks to understand and to comply with.

More particularly, Bill S-2 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. The bill would create the legal clarification needed so that regulators and the committee could leave uncertainty behind.

What does this mean? This means that there are people within the government who draft regulations, and we have heard through committee study that there needs to be more clarity in which context and which circumstances incorporation by reference can be used. That is what the bill seeks to do.

I would point to some of the more significant changes that the bill addresses. In subsection 18.1(1), it states that:

...the power to make a regulation includes the power to incorporate in it by reference a document—or a part of a document—as it exists on a particular date or as it is amended from time to time.

This covers both the static and ambulatory incorporation by reference—and the differences in these two terms have been set out to a large degree by other speakers on this topic—and appears to apply regardless of the powers to make a regulation respecting or prescribing a matter or otherwise.

This power is subject, however, to the limitation in subsection 18.1(2), which relates to a document produced by the regulation-making authority, either alone or jointly with a person or body in the federal public administration.

In essence, a document provided by the regulation-making authority itself can be incorporated by reference into a regulation only if it does the following: it contains only elements that are incidental or elaborate on the rules set out in the regulation and is incorporated as it exists on a particular date; it is reproduced or translated from a document or part of a document produced by a person or body other than the regulation-making authority with any adaptations of form or reference that will facilitate in its incorporation regulation; or is a regulation.

The intent of the provisions set out in paragraph 18.1(2)(a) appears to be to ensure that the regulation-making authority cannot circumvent the regular procedure under the Statutory Instruments Act that I referenced earlier by making the substance of a regulation in a subsequent document, which it then incorporates by reference into its own regulation without the usual requirements of registration, publication, et cetera.

We have the context of what is a regulation, why it is important, how the regulatory process works in Canada right now, and then how the bill helps to augment and simplify that process.

With that context, I would like to address some of the key concerns that arose in debate on the bill when it was previously debated in the House. One of the questions was this: What are the standards that are currently incorporated by reference? There are many kinds of standards that are already incorporated by reference in federal regulations, including standards written by the International Organization for Standardization and other recognized international standards. A recent review of existing references in federal regulations revealed almost 400 references to these standards established by expert bodies.

My colleague from La Pointe-de-l'Île, Quebec, who was here earlier today, wondered exactly who a person is other than the regulation body authority, given some of the language in the bill. She said there is nothing to define that. That is false because, if she logs onto the Treasury Board website, she can see all of the different decision-making bodies that are a part of the regulatory process in Canada, including Treasury Board and Parliament itself.

This is a fitting discussion, given that we are close to the end of this Parliament, God willing. What is the issue of sovereignty and how does Canada maintain its sovereignty if we are going to incorporate by reference in regulations or standards that are international standards? How do we oversee and ensure that these regulations are up to snuff for Canadians?

At the end of this Parliament, we should be looking at the role of Parliament. It is in this place that we as legislators continually review legislation, review what is in the best interests of Canadians. In fact, we have had many debates in this session around new regulations. So when I hear that somehow there is no oversight, or somehow through incorporation by reference we would lose the ability to review this stuff, I completely disagree because it is in this place that opposition members can bring up and question the efficacy of regulations as we go forward.

There is something further to this that I want to point out, because this point has come up many times, and that is the role of the scrutiny of regulations committee. I pulled up part of the committee testimony that occurred in November 2004. This particular item was spoken to by the then joint chair, Senator Bryden. He spoke to the fact that the Standing Joint Committee on the Scrutiny of Regulations actually had a pretty substantive mandate. He stated:

The Statutory Instruments Act provides for the “review and scrutiny” of statutory instruments by the SJC. This review is conducted in accordance with the criteria adopted by the SJC.... Although the terms of s. 19 of the Statutory Instruments Act do not preclude review of subordinate legislation on its merits, the criteria adopted by the SJC do not provide for the review of instruments on policy grounds.

What it does set out is a huge set of criteria by which this committee can review regulations. It says it can review “whether any regulation or other statutory instrument within its terms of reference, in the judgment of the committee”, and then it goes through all the points that were brought up here, such as whether it is in conformity with the Canadian Charter of Rights and Freedoms. That was brought up. How do we know if a regulation that has been brought in through incorporation by reference is not in alignment with the charter? The standing committee certainly has the role of reviewing that, and I would also point out that, as with any other piece of legislation, the Canadian public can challenge legislation through the court system. Of course, Parliament being sovereign in a lot of respects, it is our job as legislators to put forward regulations and legislation that come from the will of the people, which we believe are in the best interests of the people we represent.

With the end of Parliament near, I think that is what we have all sought to do here across party lines. Our ideologies might differ from time to time, sometimes vehemently. Even though we are sitting here on a Thursday near the end of session talking about scrutiny of regulations, we are talking about what is in the best interests of Canadians. My colleagues opposite might have a different view, but that is our job here. It is somehow implied, and often comes up in debate, that the Supreme Court said one thing or another, and we have to respect and work with the judiciary, but this place is where we debate and make legislation.

With that, in what I hope is my final speech in this Parliament, I would like to deeply thank my constituents in Calgary Centre-North for the privilege of being able to stand here and debate important issues like this. On behalf of all my colleagues who stand in their places, I thank every Canadian who gave us the mandate to be here, to respect the will of Parliament and, I hope, to agree that Bill S-2 would simplify the regulatory process in Canada, would benefit business, and would continue to place Canada at the forefront of leading regulatory review around the world.

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

Mr. Speaker, I would like to ask my colleague a question, specifically regarding four amendments that I presented in committee, which were all rejected by the government.

One of the things I included was a definition of accessibility. Under my amendment, any incorporation by reference that requires fees could not be deemed accessible.

I would like him to explain whether he believes that it would be appropriate to charge fees for access to a legislative measure or he believes that access should be free. Furthermore, how would he define accessibility in the context of Bill S-2?

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

Mr. Speaker, the state of the law today is that there are no restrictions on incorporation by reference.

That member is a member of a party that formed government from 1993 to 2006, during which time thousands upon thousands of things were incorporated by reference into regulations passed under his party's government with no oversight and no restriction whatsoever. Bill S-2 would put those restrictions and guidelines in place.

Obviously the member has not read subparagraph18.1(4) of the bill, and I would encourage him to do so right now if he can. He will see there is a definition of regulation-making authority and every individual or body is accountable to Parliament. This legislation would make all of this accountable to Parliament, whether it is incorporation of a foreign statute or incorporation by technical standards.

Those members talk about putting technical standards in the Canada Gazette, which could be tens of thousands of pages of numbers and schematics. They have not really thought this through.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is always a pleasure to rise in this place to add some thoughts on a particular issue. After reading the title of Bill S-2, many might think it is a somewhat dull bill, maybe a little boring to read, but as I asked in my question for the parliamentary secretary, the details are in fact very important.

My view of the structure under which our system operates is that we do not give enough attention to regulations. Canadians would be surprised at the degree to which our society is regulated. It does not happen just here in Ottawa; it also happens internationally, and it affects Canadians' lives. It happens at the national level, which is what we are primarily talking about this morning, and it also happens at the provincial and municipal levels. Regulations are a part of everyday life for all of us.

They are important and they have a very profound impact. Some forms of legislation that come to the House of Commons are pretty straightforward and very easy to comment on; on others, such as this one, we have to be somewhat more diligent as we examine them.

The Liberal Party has a great deal of concern with regard to Bill S-2. Overall, we are not in a position to support the bill, because we have a number of concerns.

It is important at the get-go to recognize that incorporation by reference enables the federal government or agencies to give legal effect to material that has been published elsewhere. We should all be concerned about that.

We have talked a great deal within the Liberal caucus and we have shared some different ideas and thoughts in two-way communications with Canadians. Time and time again, and in fact earlier this week, we talked about how Ottawa is broken and how we do not see the type of progress that is important.

This is one of the pieces of legislation that I would use to cite that. We have standing committees of the House. We have a standing committee that deals strictly with the issue of regulations. Its primary function is to get a better understanding of regulations. It is there to provide diligence. We in the House might spend relatively little time dealing with the regulations, but there are other ways in which members of the House of Commons deal with regulations, from their creation to their being passed in the House to their appearance in the Canada Gazette. We need to have a decent understanding of what happens today and what the bill is proposing to do.

A department I choose to follow quite closely with regard to regulation is the Department of Citizenship and Immigration. A number of pieces of law, many of them very targeted and not very positive, have been passed in this administration, but when the law is passed after hours and hours of debate at committee, let alone what takes place outside of committee, that law does not actually deal with the regulations per se, and it is the regulations that will provide the details to either complement or, in some cases, detract from a piece of legislation that has been passed.

Let me give a specific example. We pass legislation dealing with the issue of citizenship; then we pass regulation to support some of those decisions that were made. As an example, the government passes legislation with an objective of creating additional resources or properly resourcing citizenship in order to speed up the process of acquiring citizenship. Then a regulation that follows stipulates what it would now cost to have that citizenship. We have seen some pretty bizarre things occur in that area, such as the quadrupling of citizenship fees. That has upset not only a good number of my constituents but also a good number of Canadians across the board.

How does that actually happen? The legislation passes here, and then the regulation comes up. Typically, the minister who develops the regulation brings it forward to the full cabinet. The full cabinet ultimately passes it. Then it ends up in the Canadian Gazette. All Canadians could then be familiar with what has actually taken place.

Through that process, even though all members of Parliament are not necessarily privy to the dialogue in cabinet, there are some eyes on it from parliamentarians. That is a very important aspect when we deal with regulation. That is because, at the end of the day, if something appears in the Canada Gazette, we should have a sense that there was a Canadian member of Parliament who had eyes on it. Perhaps it was a cabinet member, because the cabinet ultimately approves it prior to its appearance in the Canada Gazette. There is that direct link of accountability. The government is ultimately responsible.

Through this particular piece of legislation, we would change that somewhat. One could argue that incorporation by reference already exists. It does occur. However, this particular piece of legislation would enhance that. It would enable more of it to take place. Concerns have been raised in regard to the impact it would have on the Canada Gazette. Concerns have also been raised in regard to the impact it would have on the House of Commons and on the ability of members of Parliament to hold the government accountable for regulations that would increasingly be changing without any sort of real diligence from the House of Commons.

That is a concern that we should all have. It is something that has caused the Liberal caucus and the Liberal Party to express our concern, and it is the reason we will not be supporting Bill S-2.

Bill S-2 would reduce the oversight of federal regulations by allowing sub-delegation of regulation-making power that is already delegated by Parliament to the Governor in Council and other persons. The current government, as I cited, cannot be trusted to use this power responsibly. We have seen that time and time again. Its willingness to abuse oversight mechanisms through its omnibus legislation and its disregard for the Department of Justice's constitutional review procedure are but a couple of examples.

I have had the opportunity to talk about some of those specifics. We have talked about those massive budget bills into which the government incorporates numerous pieces of other legislation, attempting to pass legislation through the back door of the budget, attempting to avoid accountability, attempting to avoid the eyes of MPs, attempting to avoid scrutiny beyond that by many different stakeholders. It tries to sneak legislation through in these large budget bills.

In fact, when the Prime Minister was in opposition, I can recall him stating very clearly how wrong it was to be use budget bills as a back door to bring through legislative agendas. No government has done it more than the Conservative government.

I could check with my colleague, the member for Charlottetown, about the issue of oversight and the importance of that. The Liberal Party has advocated for parliamentary oversight with respect to CSIS and security related issues. We went through a fairly significant debate on Bill C-51. The Conservatives try to give the public the impression that there is a terrorist under every rock. Then the NDP in essence believes that there is no problem, that there is no need to be fearful. Those are two really different approaches.

The Liberals understand the importance of safety. We understand the importance of security. However, we also understand the importance of individual rights. We are the party that brought in the Charter of Rights and Freedoms.

We talk about diligence and we look at the importance of our parliamentary committees in providing that kind of oversight. Through Bill S-2, there will be less parliamentary oversight on regulations. I believe the parliamentary secretary would recognize, or at the very least should recognize, that.

It would have been more encouraging to hear the parliamentary secretary talk about the importance of parliamentary oversight. He and the government are very enthusiastic about this legislation, but we do not hear whether the Government of Canada is prepared to give away a very important part of making regulations through the incorporation by reference. That will have a very important impact not only today but especially into the future, as Canada is becoming a bigger player in the global market. Therefore, parliamentary oversight is of critical importance.

Unfortunately, we lost that debate on Bill C-51, but we will correct that come fall if we are afforded the opportunity to do so.

What about parliamentary oversight on these issues, because these issues are important also? Once again, the government feels we do not need to worry about oversight. The government is wrong. Canadians have a higher expectation of what they want parliamentarians to do. Let me give members an example that is quite tangible.

We are all aware of the hundreds of thousands of tax dollars that the Prime Minister has used for the European trade deal photo ops. There are no lack of resources when it comes to taxpayer dollars to support photo ops on the EU agreement, which is not finalized. I believe Canada is the only signing officer to that agreement. We will have to wait until the next administration comes in to finalize it.

What about the details of the agreement? The parliamentary secretary acknowledged that a lot of work needed to be done on regulations once the EU agreement was finalized. We should all be concerned with that very important aspect. In part, those regulations play an important role in whether Canada will be on a level playing field.

Whether it is the leader of the Liberal Party or any other member of my caucus, we are very proud of our businesses in every region of our country. We know that if we put them on a level playing field, we will excel. We saw trade surpluses during Liberal administrations. We have confidence in our business community and we are there to support it in getting those new markets. Therefore, we should be concerned. When we talk about these agreements, the regulations will follow them.

To what degree does this legislation, for example, say that regulations related to certain aspects of trade agreements through incorporation by reference will not be determined by the House of Commons or that there will be no role for the House? We know that will occur. That is why I asked the member how things were going with respect to that as well as with Ukraine.

If I can just sidetrack for a bit, I have a personal favourite. I would love to see the Prime Minister forgo some of the photo ops, get down to work and get that agreement with Ukraine. The European Union already has done that. Why has Canada not dealt with Ukraine? The regulations would have followed. The Prime Minister needs to focus on how we can help the people of Ukraine in a more real and tangible way. At the same time, it also helps Canada.

With respect to those regulations, people need to recognize that the government has again been found wanting in explaining why it does not feel there is an enhanced role for members of Parliament to play. We are moving more and more into a global situation. MPs need to play a stronger role of monitoring and providing that oversight. We have a standing committee of the House that is responsible for regulations. As we move toward a stronger role for incorporation by reference, given the international laws and more trade, and the importance of Canada to be engaged in that trade, why not include a stronger role for our standing committee for oversight in legislation?

The Liberals have a website called realchange.ca. I would encourage members to go to visit it. They will see opportunities that would allow for additional oversight. When it comes to regulations such as—

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

Mr. Speaker, 50 seconds is not enough time to answer the question, but I will do my best.

The problem here is that anything that has been incorporated by reference in the past, before the passage of Bill S-2, does not have to be published in the Canada Gazette. Those regulations will not be forwarded to be registered and will not necessarily be examined by Parliament.

Accordingly, even if changes have already been made to a regulation through incorporation by reference, passing Bill S-2 will not solve that problem. It will only make matters worse. It will be impossible for us to look at everything that was done in the past. Bill S-2 will not solve the problem that, in the past, that was illegal.

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

Mr. Speaker, every time I stand in the House and raise concerns, the only criticism my colleagues from the Conservative Party have against me is that I do not make sense. I do not know if that is unparliamentary, but those criticisms were not only raised by myself, but were raised by the parliamentary committee on regulations and by the Senate committee on regulations.

If the hon. member really thought I did not make sense, then he probably thinks the parliamentary committee on regulations and the Senate do not make sense, with which I totally agree. My speech was only based on the report from the hon. member's committee and the Senate. There are deep concerns that we let go of our privilege of studying law just because the Conservatives want to adopt Bill S-2, which is ridiculously large to implement right now, and it would ignore the study of regulations by the people who are elected by Canadians to study law.

If the hon. member thinks this does not make sense, then it is time for the government to go.

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

Mr. Speaker, listening to my colleague from the justice committee, one would wonder if anyone in the New Democratic Party has ever read the North American Free Trade Agreement or any of the regulations thereto. If she had, she would know that for more than 20 years, these kinds of incorporation by reference have done this. Previously we had no guidelines for this. Now we have guidelines in Bill S-2.

If we had an NDP government, business would grind to a halt. This probably points out why the NDP is against every trade agreement in the world. Business could not be done if Parliament had to review every regulation. She knows that is not how it is done.

The bill would put some parameters, control and basic guidelines around what has been done in Canada, in the provinces and in every major nation in the world for decades.

The member would know that in any trade agreement, there are dispute resolution mechanisms. What does she think the civil servants of Canada do, the public servants at International Trade and Foreign Affairs or the Department of Agriculture and the Department of Transport. They review those regulations and the regulations of other countries, and ensure they fit within the laws of Canada and the authority given to them by Parliament. That is why we have public servants. If we did not have people doing that, we could not have these kinds of agreements, which make the international economy work. The things she is saying really do not make sense.

I want to point out one other thing. She talked about regulation-making authority. Subclause 18.1(4) of Bill S-2 includes the definition of regulation-making authority, which includes the Governor-in-Council or the Treasury Board, the minister who recommends the making of regulation, the minister who is accountable to Parliament for the administration of the regulation, any person, other than Statistics Canada, for which either of those ministers is accountable to Parliament. In other words, the people who have the authority to write the regulations are accountable to Parliament.

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

Mr. Speaker, I am very pleased to speak to this extremely problematic bill. I will provide more details in my speech.

This bill stems from the tabling of the 80th report of the Standing Joint Committee on Scrutiny of Regulations in December 2007. The committee found that:

...the incorporation by reference of external material into regulations “as amended from time to time” should, in the absence of clear authority, be seen to be [inappropriate and] illegal.

In fact, the parliamentary secretary just confirmed that incorporation by reference is a long-standing practice in the departments. However, we have a report here that says that without a clear law to that effect, these incorporations should be considered inappropriate and illegal. I will read the last clause of the bill:

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.

I will explain to those watching today—I know many people are—what this government has just done and what the parliamentary secretary has just confirmed to us. The parliamentary secretary just acknowledged that incorporation by reference is currently illegal, but now he is making it legal. Material was incorporated by reference without enabling power and without enabling legislation, which means that, unfortunately, we could have hundreds of thousands of incorporations by reference. I do not know exactly how many. Thousands of incorporations by reference may have been done without legislative authority. That is a problem.

One has to wonder what the purpose of such a bill is. We know that the Conservatives' budget contained a small provision—hidden in a large budget that is hundreds of pages long—that legalized an illegal act committed by the RCMP. Here, the Conservatives are legalizing incorporations by reference that the Standing Joint Committee on Scrutiny of Regulations would consider inappropriate and unlawful. I have here the findings of the report. The first thing that came to mind was the following question: how can we really vote for a bill that would make retroactive amendments to allow actions that were not allowed before Bill S-2 was passed? I would like to remind members that this bill has not yet passed. In accordance with this bill, incorporation by reference is unlawful and inappropriate right now. I would simply like to put that out there, and members will have to decide whether it is acceptable or not. However, in my opinion and in the opinion of the NDP, this sort of retroactive amendment cannot be allowed without a law that allows regulations to be incorporated by reference.

That is some of the background behind Bill S-2. The government said that there was a problem because it did not have regulatory power so it was going to pass a law that would give it this regulatory power to incorporate regulations by reference.

In his speech, the Parliamentary Secretary to the Minister of Justice said that this bill gives guidance and direction with regard to the various incorporation by reference mechanisms. I would like to remind him that I asked this question to a number of witnesses who appeared before the the Standing Committee on Justice and Human Rights.

These witnesses clearly told me that the bill unfortunately did not address their concerns and that it did not create rules and guidelines for making regulations and incorporations by reference. I have the minutes of the meeting. The witnesses clearly told me that Treasury Board and the government must adopt directives and guidelines as quickly as possible for making regulations and for incorporations by reference. There are currently none, and Bill S-2 does not change that. All it does is grant the general authority to make regulations by reference. It does not include directives or guidelines.

I will give a very quick overview of incorporation by reference. It is a technique for drafting laws or regulations that refer to another piece of legislation, in order to avoid having to recopy everything in the bills. I will concede that we save a lot of paper by doing this. This technique is used to incorporate legislative texts, for example, regulations, rates, texts from other jurisdictions—provincial or federal—or other legislative texts from other governments, meaning other states.

There are two types of incorporation by reference. There is static incorporation, which means that when a reference is made to a regulation, the reference is made to the regulation as it exists at the time the legislation is passed, without any amendments that are made in the future.

There is also dynamic, or open, incorporation, which automatically incorporates changes to other incorporated regulations. This means that if we incorporate regulations from another country, like the United States—the Parliamentary Secretary to the Minister of Justice mentioned international trade—and that country amends its regulations, ours will also be changed. Governments change and we have no way of knowing what kind of amendments a new government might make, but these amendments will automatically be made to Canadian laws.

This means that these amendments will never be reviewed by parliamentarians. That is a problem. Canadians, who are supposed to know the law, and parliamentarians, who are supposed to study it, will not be able to do so. They will not necessarily be aware of all of the changes made to the hundreds of thousands of regulations pertaining to legislation in other countries. In addition, incorporations by reference will not even have to be published in the Canada Gazette.

That is a big problem because all of the government's regulations must be published in the Canada Gazette before coming into effect, to prevent abuses. The problem is that clause 18.4 states that the requirements in the Statutory Instruments Act for registration and publication of regulations do not apply to documents incorporated by reference. That means they do not have to be published in the Canada Gazette. The government is creating an exception. Usually, as I said, all laws and regulations have to be published in the Canada Gazette. However, clause 18.4 confirms that documents incorporated by reference will not have to be published.

There is a double standard here. I can imagine what the Conservatives are thinking. They will say that this has already been published, but that is not the problem. Perhaps it has already been published as it stands, but it did not say that it would apply to another law or another regulation. The problem is not that the regulations have already been published. What matters is knowing that the application of the regulation to another regulation will never be published. How, then, is anyone supposed to know what anything applies to, if it is not published in the Canada Gazette? That is very problematic.

If we cannot figure out what anything applies to, and it is not published in the Canada Gazette, what is the Conservatives' idea of accessibility? Do they think that everyone should just know how to find that information online? If so, I would remind them that the Canada Gazette website is usually where people look up which regulation applies to which law or which regulation by incorporation applies to which regulation.

If it is not published in the Canada Gazette, then where? Will it be posted on the department's website? If that is what they mean by accessibility criteria, then I hope there will be no fees involved because the Canada Gazette can be accessed for free. Will there be fees? Will it be translated in both official languages?

In any case, I sincerely hope so because the United States is not subject to bilingualism requirements. If we incorporate U.S. regulations by reference, I hope that the government will ensure that these regulations are translated into French and English for all Canadians.

A letter sent by the Standing Joint Committee on Scrutiny of Regulations raises some concerns that I raised in committee and for which the government has not provided a response, unfortunately. Generally, ambulatory incorporation by reference of administrative documents produced internally by the federal government should not be allowed in federal regulations.

Why not? When documents are incorporated by reference by the regulatory authority itself, there is a risk of abuse and of creating a system where that authority has a free pass to incorporate by reference and make changes to the regulations without submitting the material for review by parliamentarians. That is very problematic.

Several thousand regulations could be incorporated by reference every year, without parliamentarians being notified and without these regulations being subject to review by a parliamentary committee. I find that very problematic. That shows that the Conservatives are not at all concerned about creating a parallel means of making regulations and opening the door to abuse by using incorporation by reference.

Only when this is deemed to be essential should it be permitted, and that should be clearly indicated in the enabling legislation, not in Bill S-2. This is general enabling legislation concerning the general authority to adopt measures by incorporation, not a specific power given to a department or departmental agency, for example.

It is no big deal for the Conservatives. They will just pass Bill S-2 and create a general power that applies to all departments and departmental agencies. That way, they will not have to include it in specific enabling legislation. That is what Bill S-2 does.

For example, the bill talks about the power to incorporate by reference rates, numbers and indices established by, for example, a body other than the regulation-making authority. However, we do not know what body is being referred to. The bill refers to persons or bodies other than the regulation-making authority. Could that be public servants or peace officers? I do not know.

When we pass a law we generally want it to be clear. What is a person or body other than the regulation-making authority?

This came up a number of times in the debates on Bill S-2 in the Senate. It was said that the bill was not clear enough and that guidelines were necessary. Unfortunately Bill S-2 will not fix that because it does not include guidelines as to who can use this new power or who or what is considered a person or body other than the regulation-making authority. As I already said, this came up a number of times during the Senate's studies.

Incorporation by reference of foreign legislation, as amended from time to time, is another problem. Once again, in the report and in the letter sent to the minister, the Standing Joint Committee on Scrutiny of Regulations clearly stated that ambulatory incorporation by reference of foreign legislation should not generally be permitted.

It goes on to explain that with ambulatory incorporation by reference of federal, provincial or foreign legislation, parliamentarians do not have the option of reviewing the amendments. I am not making this up. It was in a report and in a letter from the Standing Joint Committee on Scrutiny of Regulations. The committee provides some examples, such as the fact that Ontario, Australia, New South Wales, South Australia and the Australian Capital Territory have all prohibited the incorporation by reference of foreign legislation.

There are already some Commonwealth countries that say that foreign legislation should never be incorporated by reference, especially not as amended from time to time, because parliamentarians then do not have the opportunity to examine any amendments that may be made to the law. We cannot allow amendments to be incorporated into Canadian laws without debating them in the House of Commons. That is clear. Any amendments to regulations must be put before the House. That is clear. That is how a parliament works. It is a legislature.

The report of the Standing Joint Committee on Scrutiny of Regulations also talks about how such power should not necessarily be exercised without guidelines. For example, the report indicates that the regulation-maker who drafts the actual text of the regulations or who decides to incorporate material by reference must act within the clear limits of the authority bestowed upon him by law. The enactment of general provisions governing incorporation by reference could raise questions about whether those provisions constitute autonomous authority or whether they are subject to the conditions of the enabling legislation under which the regulation-maker makes a regulation by incorporating a document by reference.

It says here in the report that the passage of Bill S-2, which is a general authority for incorporation by reference, unfortunately may not meet the conditions and guidelines. Since no such conditions exist, that is a bit difficult. However, that could mean that this does not meet the conditions of the enabling legislation that falls within the purview of a department or agency.

That is very problematic. I think all members need to think about this before they allow hundreds of pages of regulations to evade parliamentary scrutiny. I am asking members to vote against this bill.

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

Mr. Speaker, there is absolutely no concern in that regard. First of all, governments have been drafting legislation and regulation incorporating documents by reference from other countries for decades. There have been no guidelines on how it should be done. Now there will be. That is what Bill S-2 would do.

Second, in situations such as the one the member describes, hormones in milk are not acceptable in Canada. It would be contrary to Canadian regulations. Parliament has oversight over that, so that would not change, and if there were a change in regulations in the other country's legislation, that would actually put the agreement out of sync. It would not be harmonized in that case.

As I said, Parliament can review it. The government, through the Department of International Trade, would review it, and it would also be reviewed by the Standing Joint Committee for the Scrutiny of Regulations.

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

Mr. Speaker, I want to thank the hon. member for his speech and for his work as a parliamentary secretary. He does a fantastic job for this government and also for his riding.

What I would like to ask him is actually further to what the previous member asked about: trade.

I believe that Canadians are fair and practical people. We want to see Canadian businesses succeed, not just here in Canada but abroad. I think many of those businesses would benefit by knowing that when we sign free trade agreements and see tariff-free access and see our services being able to go to those countries, and vice versa, there would not be gaps on the regulatory side. He mentioned international shipping issues and whatnot. Canadians know that, first, we can compete abroad, but if we do not have harmonization, those kinds of irritants will hinder Canadians from getting out and trading, and I think Bill S-2 would help set some guidelines for that.

Would the member please further explain in terms of trade and harmonization?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, we often hear that things can best be found in the details. When I think of Bill S-2, I cannot help but look at this as a bill that provides a great deal of detail.

My question is with respect to the idea of international standards and the impact they have on different departments in terms of their responsibility to make sure that there are high standards. To what degree does Ottawa work with nations in dealing with trade agreements, as an example? To what degree has the Government of Canada worked with the EU or Ukraine, for example, to finalize agreements for which we would have regulations that would be more in sync?

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

Mr. Speaker, today I would like to speak about Bill S-2, the incorporation by reference in regulations act. Yes, this is riveting. While it may not be the subject of headlines, it is actually very important.

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

This bill deals with a regulatory drafting technique. Essentially, the bill clarifies when federal regulators can or cannot use the technique of incorporation by reference.

The technique of incorporation by reference is currently used in a wide range of federal regulations. Indeed, it is difficult to think of a regulated area in which incorporation by reference is not used to some degree.

Bill S-2 is about securing the government's access to a drafting technique that has already become essential to the way governments regulate. It is also about leading the way internationally in the modernization of regulations. However, more directly, Bill S-2 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. This bill would create the legal clarification that is needed so that regulators and the committee can ensure that there is no uncertainty in the process of incorporation by reference.

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

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

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

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

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

Another important aspect of Bill S-2 is that it allows for the incorporation by reference of rates and indices, such as the Consumer Price Index or the Bank of Canada rates, which are important elements in many regulations.

For these reasons and more, ambulatory incorporation by reference is an important instrument available to regulators when they are designing their regulatory initiatives. However, Bill S-2 also strikes an important balance in respect of what may be incorporated by reference by limiting the types of documents that can be incorporated when they are produced by the regulation maker. Also, only the version of such documents as they exist on a particular day can be incorporated when the documents are produced by the regulation maker only. This is an important safeguard against circumvention of the regulatory process.

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

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

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

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

The general approach to accessibility found in Bill S-2 will provide flexibility to regulatory bodies to take whatever steps might be necessary to make sure that the diverse types of material from various sources are in fact accessible. In general, material that is incorporated by reference is already accessible. As a result, in some cases, no further action on the part of the regulation-making authority will be necessary. An example is provincial legislation, which is already generally accessible. Federal regulations that incorporate provincial legislation will undoubtedly allow the regulator to meet the requirement to ensure that the material is accessible.

Sometimes accessing the document through the standards organization itself will be appropriate. It will be clear that the proposed legislation will ensure that the regulated community will have access to the incorporated material, with a reasonable effort on their part. It is also important to note that standards organizations, such as the Canadian Standards Association, understand the need to provide access to incorporated standards. By recognizing the changing landscape of the Internet, this bill creates a meaningful obligation for regulators to ensure accessibility while still allowing for innovation, flexibility, and creativity.

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

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

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

To conclude, the enactment of this legislation is the logical and necessary next step to securing access in a responsible manner to incorporation by reference in regulations. I would invite all members to support this legislative proposal and recognize the important steps forward it contains.

[John Duncan, Conservative, Vancouver Island North, BC]

moved 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.