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.

The House resumed from June 11 consideration of Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, as reported (without amendment) from the committee, and of the motions in Group No. 1.

The House resumed from June 9 consideration of Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, as reported (without amendment) from the committee, and of the motions in Group No. 1.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I saw that my friend the opposition House leader was out in the foyer of the House of Commons yesterday having a press conference at which he showcased the incredible productivity of the House of Commons during the 41st Parliament. Of course, these were actually Conservative initiatives he had on display, which were passed thanks to our diligent, hard-working, orderly, and productive approach to Parliament. However, I sincerely appreciate the New Democrats' efforts to associate themselves with the record of legislative achievement that our government has demonstrated.

Before getting to the business for the coming few days, I am sure that hon. members and Canadians will have noticed that we have been bringing forward a number of pieces of legislation in recent days, and we will continue to do so for the days to come.

These bills will give effect to important policy initiatives that the Conservative government believes are important for Canada's future. Together they form the beginning of a substantial four-year legislative agenda that our Conservative government will begin to tackle under the Prime Minister's leadership after being re-elected on October 19.

Thanks to the productive, hard-working, and orderly approach that I just spoke about, we have delivered real results on our legislative agenda. In fact, over 90% of the bills that were introduced by our Conservative government between the 2013 Speech from the Throne and the beginning of last month will become law before Parliament rises for the summer.

Now I will go on to the schedule for the coming days.

This afternoon we will continue debating Bill C-35, the justice for animals in service act, also known as Quanto's law, at third reading. I am optimistic that we can pass it later today so that the other place will have a chance to pass it this spring.

I also hope that we will have an opportunity to have some debate today on Bill S-2, the incorporation by reference in regulations bill.

Tomorrow, we will finish the report stage debate on Bill S-7, the Zero Tolerance for Barbaric Cultural Practices Act. Early and forced marriages, honour-based violence and polygamy should not be tolerated on Canadian soil, but unfortunately the opposition disagree and are striving to rob Bill S-7 of its entire content.

On Monday, we will consider Bill C-59, the Economic Action Plan 2015 Act, No. 1, at third reading. This bill will reduce taxes, deliver benefits to every Canadian family, encourage savings with enhanced tax free savings accounts, lower the tax rates for small businesses, introduce the home accessibility tax credit, expand compassionate leave provisions—and the list goes on.

Tuesday will see the House debate Bill S-7 at third reading.

On Wednesday, we will take up third reading of Bill S-4, Digital Privacy Act, which will provide new protections for Canadians when they surf the web and shop online.

On Thursday I will give priority to any legislation to be considered at the report or third reading stages. On that list will be Bill S-2, the incorporation by reference bill, which would help keep our laws up to date in response to emerging scientific and technical recommendations.

Bill C-50, the citizen voting act, will also be considered once it has been reported back from the procedure and House affairs committee. This legislation would play an important role in accommodating the decision of the Ontario Superior Court should we not have the benefit of the Ontario Court of Appeal's decision in time for this year's election.

Incorporation by Reference in Regulations Act

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

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

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

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

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

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

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

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

Motion in Amendment

[Françoise Boivin, NDP, Gatineau, QC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Speaker, I would like to thank my colleague for an excellent speech, which set out a lot of the problems with Bill S-2. I particularly like the way in which he drove home at the very end the combined effects of transnationalization and privatization of norm-making; and how, through ambulatory statutory regulation, one more nail in the coffin of parliamentary and democratic sovereignty would be put in place; and that the inability of Parliament to keep track of external norms as they change and enter into our legal system, without Parliament having anything to say about it let alone know about it, is almost frightening.

I may be wrong, but I understand there is yet another retroactivity clause in Bill S-2 that would basically clean up the use of these kinds of clauses in the past by saying that any previous use would be governed by Bill S-2 and therefore would not be a problem. Am I correct in that, and does the member have any comment on that?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I rise today to speak to Bill S-2, the incorporation by reference in regulations act.

Liberals will not be supporting the bill. I want to be clear that we do not seek to invalidate incorporation by reference in regulations, a technique that has been long in use and that is useful on a case-by-case basis. However, the government cannot be trusted to act responsibly with these expanded powers. We have seen time and time again the government's abuse of oversight mechanisms. I think specifically of its use of omnibus legislation and its bad-faith approach to the Department of Justice's constitutional review process, including the use of private members' bills to avoid that process.

A general power to incorporate by reference could embolden the government to do indirectly what it cannot do directly. For that reason, expanding the government's power to delegate lawmaking to foreign or private entities will not serve the public interest.

Liberals will not expand the Conservatives' power to privatize and export the power to make Canadian law.

There is also a chance that this bill could prioritize the English version of Canadian laws by allowing changes to be made to the English text without updating the French version.

To be clear, we agree that regulating by reference will undoubtedly continue to expand. Globalization, standardization, and technical and scientific progress make the tool necessary. However, a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference.

Bill S-2 is a highly technical bill. Before elaborating on why Liberals will not be supporting it, let us go over the contents of the bill. Bill S-2 would amend the Statutory Instruments Act to provide an express general power to incorporate by reference in regulations. To incorporate by reference is to give a secondary document legal force by referencing it in regulations, such as a set of technical standards developed by the Standards Council of Canada.

Incorporation by reference has long been in use, and it is already expressly authorized in more than 60 federal acts. However, its legal status outside of these acts is uncertain. Bill S-2 aims to clarify that incorporation by reference is a valid technique of general application. Bill S-2 would also provide that any secondary documents referenced must be accessible and that liability or administrative sanctions could not apply if a document was not accessible. In addition, Bill S-2 would retroactively validate any incorporation by reference that was made before its coming into force.

In effect, incorporation by reference sub-delegates the details of regulation to a designated entity, which may be private or foreign. It creates efficiencies in the context of globalization, standardization, and rapid technical and scientific developments. It is important to appreciate that regulations incorporated by reference may not exceed the regulatory powers granted by statute. In addition, regulations made by reference remain subject to review and possible revocation by the Standing Joint Committee for the Scrutiny of Regulations.

There are two varieties of incorporation by reference. They are incorporation by closed or static reference and incorporation by open or dynamic or ambulatory reference. Incorporation by closed reference cites a secondary document as it existed on a particular date. Incorporation by open reference automatically allows regulations to change as secondary documents are amended. This latter technique delegates the details of regulation to whomever has the ongoing power to amend the secondary document. Bill S-2 would expressly allow both open and closed incorporation by reference.

Why are these changes a bad thing? Bill S-2 would reduce the oversight of federal regulations by allowing the sub-delegation of the regulatory power that is already delegated by Parliament to the Governor in Council and other persons. The current government cannot be trusted to use this power responsibly. Time and again, we have seen its willingness to abuse oversight mechanisms, restrict democratic debate, and violate Canadians' constitutional rights.

For example, the government's use of omnibus legislation has degraded the committee review process and hidden important legal changes from public scrutiny. Most recently, I can think of the unconstitutional amendments to the Supreme Court Act being hidden in a budget implementation bill. Yes, changes to the Supreme Court Act were in a budget bill. When those changes failed, we all remember how the Prime Minister and the Minister of Justice wrongfully criticized the Chief Justice of the Supreme Court for trying to save them some embarrassment.

With omnibus legislation, I also think of Bill C-13 and the way the government linked urgent and necessary cyberbullying legislation with immunity for telecommunications companies for warrantless disclosure. Again, the Supreme Court came to the rescue with the Spencer decision, which allowed us to support that cynically packaged piece of legislation.

In opposing Bill S-2's reduction of regulatory oversight, we also think of the government's disregard for the Department of Justice's constitutional review procedure. As the House is aware, Department of Justice lawyer Edgar Schmidt revealed to Canadians that the government proceeds with legislation even if it has a 5% chance or less of being charter compliant. It is the government's own faint hope clause, so to speak.

Is this a government that needs less oversight or more oversight? The revelation of the government's outright contempt for the charter was not surprising, given how often legislation and executive actions have been ruled unconstitutional by the courts. Let us review some of the greatest hits.

In 2011, the Supreme Court of Canada prevented the member for Parry Sound—Muskoka, who was health minister at the time, from closing a safe injection site, which would have caused an increase in the number of fatal overdoses and the spread of communicable diseases.

Last year the Federal Court prevented the government from making cuts to health care services for refugees. Also last year, right here in Ottawa, Justice David Paciocco of the Ontario Court of Justice found that the decision to impose a $900 victim surcharge on a 26-year-old impoverished Inuit offender who was an addict amounted to cruel and unusual punishment.

Some British Columbia courts and the Ontario Court of Appeal have also struck down the mandatory minimum sentences brought in by the government. This is all in addition to the negative responses to referrals related to the unilateral Senate reform and the appointment of federal judges to represent Quebec on the Supreme Court.

We have also seen the Conservative government's willingness to veil government legislation as private members' bills to avoid constitutional review. There are numerous examples of tough-on-crime, presumably government-driven legislation that masqueraded as private member's bills. All of these bills contained significant changes to the Criminal Code, and regardless of their merits, they should have passed through the Department of Justice's charter compliance review process.

This is not a government that Canadians can trust to protect and promote their rights and interests. This is a government tainted by scandals of public betrayal, from election fraud with robocalls to tampering with the Duffy audit, to a $90,000 payment to Duffy from the Prime Minister's chief of staff, to the Prime Minister defaming the Chief Justice of the Supreme Court. Canadians should not trust the current Conservative government.

As I have said, the danger with Bill S-2 is that the government would be emboldened to do indirectly what it cannot do directly, and any oversight would be retrospective rather than forward looking. That is why we will not support the expansion of the current government's power to delegate law-making powers to foreign and private entities.

In addition, Bill S-2 would put the average person at a disadvantage, since there is no guarantee that documents incorporated by reference would be meaningfully accessible. In particular, an incorporated document would not have to be registered in the Canada Gazette and might even be protected by copyright. It would also be increasingly difficult for people to know whether the version of the incorporated document they have is up to date, and in some cases, they would have to pay for access to copyright-protected documents. The bill would weaken the right of those governed by the law to know the contents of the law. We will not support the Conservative government's privatization of Canadian law.

We heard at committee that it may be possible for international bodies to amend Canadian law without our having a representative at the table. We heard that Canadian laws would not be centrally available to the public and that Canadians would sometimes have to pay to access Canadian law. Moreover, if Bill S-2 passed, the government would be generally empowered to decide which foreign and private entities could make law, and which laws Canadians should pay to see.

Time and again, the government has not been forthright with Parliament and the public, and so our position is that a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference. For that reason, we will not support the bill.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, today, I would like to talk about an important aspect of Bill S-2, the incorporation by reference in regulations act. In particular, I would like to address how incorporation by reference in regulations can assist regulators in designing regulatory schemes that ensure access to the expertise of the leading standards development bodies in Canada and throughout the world.

As we know, Bill S-2 would amend the Statutory Instruments Act to make it clear in law when the technique of incorporation by reference can be used in federal regulation. Incorporation by reference allows material to be referenced and then incorporated into the regulation without being reproduced word for word. There are two types of incorporation by reference: ambulatory and static.

When incorporation by reference is ambulatory, the reference material forms part of the regulation as it is amended from time to time. When this material is incorporated on a static basis, then only the version as it exists on that particular day is incorporated, unless the regulation is amended.

There are many advantages to incorporation by reference. For example, it reduces needless duplication or repetition of material such as provincial legislation when the federal and provincial legislative regimes need to be harmonized. It can be an effective way of working with other jurisdictions.

Lastly, incorporation by reference is an effective tool that gives the government access to a broad range of expertise developed in Canada and around the world in a variety of fields that have an impact on our economy and our daily lives. This last advantage is something I want to talk about in the House today.

When the legislator grants the power to make regulations, parliamentarians expect the regulator to be able to respond to a variety of complex, evolving issues associated with the areas in which the regulations are developed.

The fields now requiring regulation are complex: electric vehicles, cloud computing, leading edge medical devices and nanotechnology are just a few examples.

Federal regulators must be in a position to effectively and efficiently respond to requests for regulation in complex sectors. To that end, incorporation by reference makes it possible to quickly and effectively meet demand in these constantly evolving sectors.

By enacting this law, the legislator will give regulators the explicit legal authority to incorporate by reference any national and international standards developed by expert bodies. Although standards are not the only type of document for which incorporation by reference would be authorized under this bill, they merit special attention.

There are many kinds of standards that are already incorporated by reference in the federal regulations, including standards written by the International Organization for Standardization and other recognized international standards organizations. A recent review of existing references in federal regulations revealed almost 400 references to these standards established by expert bodies.

Canada is one of the countries 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 such as the Canadian General Standards Board, and that which is most likely the most recognized name, the Canadian Standards Association.

Standards developed by these organizations have already become key to the way that sectors are regulated in Canada. There are over 275 different standards produced by the Canadian Standards Association alone that are referenced in federal regulations. Added together, there are already more than 400 references in federal regulations to various types of standards, both internationally developed and developed as part of our national standards system. These are important components of our current regulatory programs.

This legislation seeks to confirm that regulators can continue to rely on these standards in implementing their regulatory initiatives in an effective manner by allowing ambulatory incorporation by reference of such documents. The incorporation of standards by reference allows the government to draw on national and international expertise. It allows government to effectively rely on the work being done by external expert bodies, to which it has often contributed based on its own expertise.

In many cases, effective, responsive regulation demands that when changes are made to these standards, regulators must respond immediately. Ambulatory incorporation by reference is the most effective way to achieve this.

When a standard is incorporated in the regulation on an ambulatory basis, it means that when a standard body updates a standard to respond to a new technology, new approaches or new innovations in the area, the changes are automatically incorporated into the regulation. The regulatory text does not have to be amended.

Why is it essential to incorporate by reference standards as they are amended from time to time? There are three good reasons: expertise, responsiveness and efficiency.

First, the ability to adopt standards as part of federal regulations when it is appropriate allows the government to access technical expertise right across Canada and right around the world.

Second, the ambulatory incorporation of these standards ensures that when changes are made by these expert bodies, federal regulators are immediately responsive, which is a significant advantage of modern regulation.

Third, reliance on standards development organizations of this nature allows for the efficient use of government resources. It would neither be expected nor efficient for the government to attempt to develop and house the wide range of expertise already found in these committees that develop these standards.

To conclude, enactment of this legislation is a necessary step to securing access to valuable technical expertise developed here in Canada and around the world. I therefore invite all members to support this important bill.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank my colleague from La Pointe-de-l'Île for her speech on a bill that is not necessarily easy to understand for everyone. As she pointed out, it is extremely technical. I am pleased to see that the problem of bilingualism of our regulations was raised. It is a problem that could very well surface quite regularly after Bill S-2 is passed.

There is also another obvious problem with Bill S-2: by proceeding with incorporation by reference, is there not a risk of further circumventing regulatory compliance with the Constitution and our Charter of Rights and Freedoms? This concept is quite foreign to the Conservative government when it comes to its bills, but it is a requirement for regulations.

I am extremely worried about the fact that it will be easier to adopt regulations without thorough study by the Standing Joint Committee on Scrutiny of Regulations. I would like the member to briefly comment on that.

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

moved:

Motion No. 2

That Bill S-2 be amended by deleting Clause 2.

Mr. Speaker, I am extremely pleased to have this opportunity to speak to the House today about Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, because I think it is very important.

This bill might seem very technical. However, as my colleague from Gatineau often says, the devil is in the details, and that is exactly what we are seeing with this particularly disturbing bill. In my speech, I will explain why we want to remove clause 2.

First of all, clause 2 reads as follows:

In the case of a document produced by the regulation-making authority, either alone or jointly with a person or body in the federal public administration, the document or part may be incorporated only if it

There are a number of criteria, such as “contains...elements that are incidental to...the rules...” and this one:

...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 its incorporation in the regulation...

Already, this poses a problem. What is “a person or body other than the regulation-making authority”? We are talking about regulations that can be passed by the government, that do not necessarily have to be debated in the House.

We are wondering who exactly is a person or body other than the regulation-making authority. There is nothing to define that. The problem is really about knowing what we can expect from this government. That is what the issue is. Why do the Conservatives want to pass a bill that is essentially enabling legislation for any authority to pass regulations?

This issue of regulations is quite problematic. For instance, when the Conservatives wanted to make changes to employment insurance, it was all done through regulations. The same thing happened with Bill C-51 on safety standards. All of this, then, will be passed through regulations. Regulations are the basis of legislation.

As proof, there are hundreds of pages of regulations. For example, at the federal level, there are 3,000 regulations and 30,000 pages. However, legislation accounts for only 450 laws and 13,000 pages. Thus, there are twice as many pages of regulations, which will be exempted from parliamentary scrutiny, and I will explain why.

When we were conducting our study at the Standing Committee on Justice and Human Rights, I asked a question about incorporating by reference a regulation from another country, for example a country with which we signed a free trade agreement or concluded any agreement, regardless of the criteria of the agreement.

International foreign parliaments adopt regulations, but the Parliament of Canada is not necessarily aware of the changes made in those other parliaments. We take care of Canada's business here in this Parliament. We do not know what will happen in the United States, France, or Brazil.

If we incorporate by reference legislation that falls under the jurisdiction of another parliament and it is agreed that these subsequent changes will be part of Canadian law, then we are also saying that regulations subject to review by Canadian Parliament could be changed by another parliament without MPs' knowledge. This will become part of the law without Canadians knowing it. It is ridiculous.

The last clause of the bill, clause 18.7, reads as follows:

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.

Does this not remind hon. members of something? The government is currently trying to pass legislation to ensure that the RCMP cannot be found guilty of violating the Access to Information Act. The government is trying to pass a law that will make anything that has been incorporated by reference valid without having to be examined by parliamentarians. That is ridiculous. We are beginning to see a trend: the Conservatives are trying to go back and legalize things that they did in the past without respecting the regulations in place at the time. That is shameful. That is why we cannot support this bill in its current form.

The bill refers to a body other than the regulation-making authority. However, that body is not defined. The bill refers to another authority, another body or another person, as I already mentioned. This term comes up several times in the bill. Anyone who reads the bill will wonder what is meant by a person or body other than the regulation-making authority. What is comes down to is that, because this is enabling legislation, this bill allows regulations to be passed through incorporation by reference without having to be examined by the government.

The bill also addresses the issue of accessibility:

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

However, there is no definition of the term “accessible”. I suggested amendments in Parliament but, unfortunately, the Conservatives voted against them. They seem to think that “accessible” is a clear term that does not require a definition. If this term is as clear as they claim, why not put a definition in the law? The witnesses agree that the term should be defined. We cannot use a legal term in a bill without including a definition. That is ridiculous.

I asked the executive director of the Standards Council of Canada a question about accessibility. A criterion of accessibility is imposed on all legislative and departmental authorities, except that there is no definition for this term. Even if a department or regulatory authority is required to issue a regulation whether or not it is subject to ambulatory incorporation by reference, is it possible that a fee would be charged? We do not know. A Canadian might have to pay to access a regulation. How can fees be charged to access what is part of our legislation? That is ridiculous. If you have to plead a case in court, for example, you must have access to the regulations.

The bill has other problems, especially with respect to translation. Will all of the regulations incorporated by reference be translated into French and English? The United States is not required to translate all of its regulations by incorporation. The U.S. does not have the constitutional obligation to translate its regulations. How can we ensure that everything that is incorporated by reference is subject to our bilingualism requirements, especially if Parliament cannot examine these regulations? That is another problem.

I simply want to say that this is a very serious problem. We are passing a bill that validates all of the incorporations that have been made in the past 30 years—before this bill was passed—even if they did not meet the criteria. That is the first reason why we will not support this bill. The second reason is that the regulations would no longer be subject to parliamentary review because they would be adopted by reference. That is a big problem. The government will be adopting regulations, rates or indices, and members of Parliament and Canadians will not be aware of them and will never have an opportunity to oppose them.

In short, it is very important for all members of this House to reject this bill and to review it so we can pass something that makes sense and that will not exempt our regulations from review by Canadian parliamentarians.

Speaker's Ruling

[The Speaker, Conservative, Andrew Scheer]

There are two motions in amendment standing on the notice paper for the report stage of Bill S-2. The Chair has been made aware that the member for La Pointe-de-l'Île will not proceed with Motion No. 1. Therefore, Motion No. 2 will be debated and voted upon.

I will now put Motion No. 2 to the House.

The House proceeded to the consideration of Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, as reported (without amendment) from the committee.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, our government, of course, continues on its commitment to help out families, not just by lowering the costs they pay for products and services but, most important, by lowering taxes that they are required to pay to the government and providing more money in their pockets to help them make ends meet. We think that is one of the most meaningful things we can do as a government: help Canadians succeed and meet their aspirations and dreams for a brighter future.

This afternoon will be dedicated to today’s NDP’s opposition day motion.

Tomorrow, we will wrap up the third reading debate on Bill S-6, the Yukon and Nunavut regulatory improvement act. This will be the sixth day of debate for that particular piece of legislation, which would support economic development north of 60 while ensuring the preservation of the environment.

Monday shall be the eighth allotted day when we will debate another NDP opposition day motion. Regrettably, I have noticed that the NDP leader has never taken me up on my suggestion that he allow the House an extended debate on one of their proposals, under Standing Order 81(16)(a). As a result, next week, we will have the 88th time-allocated opposition day of this Parliament.

That evening, as required by the Standing Orders, we will debate the main estimates. Then, we will consider an appropriations bill, the supplementary estimates, followed by a second appropriations bill.

Tuesday morning, we will consider Bill S-2, the incorporation by reference in regulations act, at report stage. This legislation will help streamline regulations and ensure that important safety rules keep up with evolving developments and standards.

In the afternoon, we will take up Bill C-59, economic action plan 2015, No. 1, at report stage, in anticipation that it will be reported back to the House tomorrow.

This package of essential measures—such as the family tax cut, enhancements to the universal child care benefit, and a reduction to the small business income tax—is an important priority for our Conservative government and I think, more important, a priority for Canadian families.

Since the budget was delivered this spring, however, the Liberal leader has let us and all Canadians in on his economic plans.

First, we learned he thinks that “benefiting every single family is not...fair”.

Then, he topped it off when he told Canadians that the Liberals are looking at a mandatory expansion of the Canada pension plan. That would mean a $1,000 tax hike for a typical earner and for that earner's employer, and that $1,000 tax increase on two sides would be a significant potential impairment and drag on our economy. Certainly, it would be a huge drag on the personal finances of Canadian families.

On Wednesday, we will return to Bill C-59, if additional time is needed.

Thursday morning, we will consider Bill C-35, which is the justice for animals in service act, Quanto's law, at report stage and, ideally, third reading.

This is an important bill, which would ensure appropriate criminal penalties for killing or harming police animals and other service animals—dogs, horses, and so on—and speedy consideration of it would be favourable because that would allow it to pass and make it to the Senate for its consideration this spring.

I would remind the House the bill has already received four days of second reading debate and was in the justice committee for over five months.

That afternoon, we will again consider Bill S-2, and I hope it will be at third reading.

Next Friday, we will return to Bill S-7, the zero tolerance for barbaric cultural practices act, at report stage. The House will recall that we are debating the opposition's amendments to gut the bill of its entire contents—contents that demonstrate our Conservative government's commitment to end violence against women and girls.