Agriculture Committee on Nov. 4th, 2014

[Malcolm Allen, NDP, Welland, ON]

If you're going to do a review, what we're suggesting is that, rather than just being incorporated by reference, you actually bring it before Parliament, which ultimately means that a study of some description comes here—and if it does, we may not be here. It could be other folks here, so in our view, that's a regulatory process. You could set that up so that it says that after a certain period of time this is where it will go back to.

When we say it should come back before Parliament, let the obvious be said: we are the members of Parliament, and the function that we do are inside this committee. So we'd actually be bringing it back before Parliament, which means you'd bring it in front here and you'd actually review it rather than that it simply becoming incorporated by reference, so that off it goes and somewhere down the line somebody finally figures it out and asks what happened: “Oh, it got incorporated by reference, did it? That's what happened to it”.

The idea is that there is a review process, as Mr. Eyking has pointed out. It does happen. The issue of when it should be or how many years it should be can be determined by regulation. That could be part of it, but the intent is that it be reviewed and that it be reviewed by parliamentarians, not simply incorporated by reference. That's the sense behind it. Obviously the details of such would have to be a regulatory framework.

[The Chair, Conservative, Bev Shipley]

Okay, Mr. Lemieux.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Thank you, Chair.

We had witnesses come in front of committee who supported that. The reason they support it is because it allows the government to be more nimble in making changes to their advantage, especially when you look at something like the Feeds Act and the Fertilizers Act, etc. I know we're going to see this type of amendment come up again.

Stakeholders in the agricultural sector get a bit frustrated when the government is constrained by its own processes and is unable to respond quickly to their needs. What I clearly heard from many witnesses at committee was that the incorporation by reference is a good initiative. They liked that. Just to put the fears of my colleagues to rest, it's something that's already in place in many other acts. I would, for example, raise the Safe Food for Canadians Act. Incorporation by reference was there and no one voted against it or tried to do amend it. You were quite comfortable with it under the Safe Food for Canadians Act. Here again we have the support of witnesses and of stakeholders saying that incorporation by reference is a good thing.

By pulling it back in front of Parliament, “with the consent of Parliament”, you are basically elevating what is supposed to be a quick and nimble approach to the process and you are imposing upon it, what I'll call, a legislative burden. With the legislation it follows a process. Legislation is key and we do it for legislation. But there are other processes that are meant to be less time-consuming, less resource consuming, and less burdensome to everybody. The incorporation by reference is one of those supported by industry and stakeholders, and it was supported by you in previous legislation and is already in place in other acts.

To say “with the consent of Parliament” not only undoes all of that, it also actually imposes upon it the legislative process that is probably the slowest and most cumbersome process of any of the other processes.

Thank you, Chair.

[The Chair, Conservative, Bev Shipley]

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

I understand what my friend across the way is saying, except his underlying position is buttressed only by the fact that all the things that will happen are good. The dilemma is—and I recognize I'm a bit older than he is—life is not always just good. Sometimes things are bad, or they don't work out as well as you'd like them. So in the sense of “let's be nimble, let's be quick, Jack jumped over the candlestick”—except if the candle were on, he might have burnt his underside.

The dilemma is that yes, he can be nimble and quick. Indeed, Mr. Dreeshen, I'm sure, could point to an example where if we just do this by reference this would be a good thing for farmers. You know what? I probably would agree with him. He's probably right, because he's a farmer and very knowledgeable and brings a lot to this committee in a lot of different aspects. But there can be things that aren't. If you incorporate things by reference, you wonder after the fact why you did that.

There are times that yes, democracy can be slow, tedious, and cumbersome. But the nature of doing it that way is to make sure we take time to reflect and don't just automatically do things. Some things are dead obvious. I would agree with the government side, it is dead obvious that would be an enhancement to the industry, to agricultural producers, and it should go quickly. One would hope that legislators could do that quickly and say let's get on with it, just as we've done with this. We're not reading through clauses that don't have an amendment. We're not going to talk about them on and on. We say we agree with the government. Those clauses are fine, and move forward. We would hope that's what legislators could do.

I get the fact that there are things that are enhancements to the industry and to producers. Yes, it would be nice to simply say let's move them quickly because they want them, it would be helpful, and we ought to let them have them.

But it doesn't always and shouldn't be in my view, an accepted fact that all those things we incorporate by reference are always going to be positives. That leads one to assume that life is always nice, and that it's always good. Heaven knows it just isn't sometimes. Sometimes it's grey; it's neither all good nor all bad. Sometimes it's grey and it becomes something that isn't what we thought it was.

We've passed stuff before that turned out to be...and this legislation started out that way. If we'd done what Mr. Lemieux's suggesting and said that we'd had this stuff before and that we'll incorporate by reference the farmers' privilege piece.... The government decided it wasn't good enough and wanted to amend it, but they would've passed it the way it was, if they'd had it that way.

Our suggestion is simply that yes, it's slower; yes, we understand that. I agree with Mr. Lemieux, there's no question that folks at the end of the table—witnesses who are in their spots—many of them said they like incorporation by reference. I'm not going to deny that because it's in the testimony. The issue with it is that their assumption is they like what gets incorporated. That becomes a dilemma.

I'm not suggesting that folks are going to put stuff forward that isn't good, necessarily. I'm saying that mistakes get made and unintended consequences come about. That's why life isn't always just wonderful.

That's the dilemma we face and why we have a little trepidation about simply doing it by reference on every occasion. I understand that we'd probably agree that in some cases it should be done. So how do you separate it? That becomes the dilemma. Doing it all one way makes it difficult. In doing it the way we're suggesting, we're saying that you can still move things quickly where there's all-party agreement: let it go. The industry does that, we've seen that happen in this committee on a number of occasions and over the number of years, quite frankly, that I've been here. Things can be done quickly.

It won't be as quick as incorporation by reference. I agree, it won't be. I think it becomes a cautionary piece. Sometimes you need to do things just a tad more slowly than one would hope.

[The Chair, Conservative, Bev Shipley]

Mr. Eyking, please.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

The biggest problem I have with this bill, and it's like many of the previous government bills, is that it's an omnibus bill and loaded with so much in it. The problem that you have, as we hear from farmers, is that there are many parts of this bill that are good and yet some parts that are not so good , or that need to changed or tweaked, I guess.

I'm assuming this amendment applies only to this one part of the bill and the whole deal with UPOV and the seed. That's what I'm assuming, because if you're saying that Parliament has to look at this bill again.... I don't know if parliamentary rules say you can just take one clause or one section out of a big bill like this and only review one part. I need clarification: would you have to put it in context if the whole bill has to be reviewed by Parliament?

[The Chair, Conservative, Bev Shipley]

Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

I've been listening to Mr. Allen, Mr. Lemieux, and Mr. Eyking, and it certainly does create some questions, obviously, which the opposition has put forward.

Mr. Lemieux has said that we've already done a number of those types of situations in terms of incorporation, so I guess one of the things I would ask would be that the officials make some comments regarding that.

[The Chair, Conservative, Bev Shipley]

Mr. McCandie Glustien.

[Nicolas McCandie Glustien]

Thank you very much, Chair.

As Mr. Lemieux mentioned, the incorporation reference authority has been sought in other acts of Parliament recently—the Safe Food for Canadians Act and the Food and Drugs Act—in terms of incorporation of food additives. Incorporation by reference is really a regulatory tool that has been used for hundreds of years.

What we are doing in this authority is seeking a very clear authority as to how we would proceed on incorporation. What it does is allow the regulations to incorporate a document either as it exists at a specific time or as it's amended from time to time.

It allows us to have flexibility. The Governor in Council proposes regulations that contain a document, and that document can be referenced out. Then, as future changes can happen to that document, that's what gets incorporated into the regulations. It goes through a strict Governor in Council process. When we propose to incorporate a document, it goes through the entire regulatory process of GIC approval—CG1 and CG2—so the choice to incorporate that document by reference is done very deliberately.

What we've been doing at the Food Inspection Agency, because we were given this authority in the Safe Food for Canadians Act, is working diligently with stakeholders on how we would go about using the incorporations by reference authority on a consistent basis across all of our statutes. We're developing clear guidelines on consultation with industry, on the choice of documents, and then on how those documents may change in the future.

What the amendment would seem to do is that any time the Governor in Council wishes to put forward a regulation that would incorporate a document by reference, that regulation would then have to be tabled in front of Parliament for approval. For us, that would then add a lot to the regulatory process. It's above and beyond the bar that we normally have to do for all regulations, and the use of incorporation by reference is really to clarify, to provide details on things that maybe don't need to have the wait in regulation. I'm thinking of schedules of approved ingredients, where the provisions and approval part is in the regulation, and then you detail out the list in an incorporated document.

From our perspective, if we had to table those GIC-approved regulations in front of Parliament each time we wanted to incorporate a document, we very likely would not use that authority at all. We would go back to making regulations of schedules and lists, doing those directly in the regulation, and suffering through the regulatory process. When a new ingredient is added and industry really wants it, we would then have to go through the regular regulatory process, so from us, especially in contrast with the Safe Food for Canadians Act, the Food and Drugs Act, and the Department of Justice's own incorporation by reference bill, which all would not impose this.... Anyway, thank you very much.

[The Chair, Conservative, Bev Shipley]

Thank you very much.

Thanks for the debate.

The motion is on the amendment. Shall amendment NDP-9 carry?

(Amendment negatived)

I'll now move on to amendment PV-2.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

Knowing that I'm not a member of this committee and couldn't speak until the last round, my amendment also touches on the issue of incorporation by reference.

To clarify for the record, because Mr. Lemieux seemed to think that the official opposition supports the notion of incorporation by reference, I recall very clearly a quite brilliant speech by Craig Scott in which he slaughtered the notion. It was put forward initially through Bill S-12, in early 2013. That was a bill for the Statutory Instruments Act, moving directly contrary to all of the advice that the House has ever received from the Standing Joint Committee for the Scrutiny of Regulations.

Moving towards this rather carte blanche is speedy and efficient, but one of the reasons we have always had the posting of draft regulations on the Canada Gazette is to allow for transparency and scrutiny. This is a move towards far less information, far less scrutiny. You know the old phrase “ignorance of the law is no excuse”. Well it's going to be much harder for stakeholders in all of these different fields, whether food safety, or plant breeders' rights and farmers' information. This is happening across many areas of public policy in Canada, and in every single case it's a bad idea.

It is dangerous to the people who have to follow those regulations. They don't have any opportunity to be certain through the usual functioning of Parliament with regulations being posted on the Canada Gazette.

Given that this is the way it's moving, at least my amendment attempts to make sure that people who are impacted through regulations incorporated by reference, as this act now does, will not face a financial difficulty in accessing those regulations and will know where to look to find them.

If you go to clause 57 in the bill, at page 33, my amendment proposes to change the regulations that are incorporated by reference under proposed subsection 5.1(2). My amendment changes the word “accessible” to “available to the public free of charge on the departmental website”.

It's a very simple change. It makes sure that people who are impacted by these regulations, and many of them are your constituents I say to my Conservative friends across the way.... You don't want them to find out that they've run afoul of some law they've never heard of, and when they try to access it they don't know where to look, and then they are told they have to pay to have a look at it.

This clarifies it and protects individuals who are impacted by regulations. They may no longer have an opportunity to comment on them when they're under development because they're no longer gazetted on the Canada Gazette, but at least they should make sure they have an easy way to find out what the law is and and they can get that law without having to pay for it.

I hope you will all support this.

Thank you.

[The Chair, Conservative, Bev Shipley]

Is there any debate?

Mr. Eyking, please.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

What is it now? When people go to the department's website on rules and regulations, do they have to pay for it right now?

You're saying they shouldn't have to pay for it.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes.

With your permission, Chair, we have been looking into this, and it's often very hard to find out where the new regulations are listed. Sometimes when you try to find them when they are not on the Canada Gazette, there can be costs involved.

We want to make sure that doesn't happen to farmers. We're trying to figure out how the regulations under this section and this act are newly incorporated by reference, which basically means that we've short-circuited the normal notice requirements. If you put something on the Canada Gazette, there's a notice period and people comment.

It's true that this is fast and really efficient, but it's not transparent. There is much less public scrutiny. We want to at least make sure that people don't have to pay to get that information.

[The Chair, Conservative, Bev Shipley]

Thank you very much.

Is there any further debate?

Mr. Lemieux.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Thank you, Chair.

That's a very negative view of incorporation by references.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

You betcha.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

It sounds like there's nothing good that can possibly come of it, and I think that's very untrue. It's sort of a “sky is falling” type of approach.

You know, you may have said that about the regulatory approach before it was set up in government, too, but that's not the case. The regulatory approach serves a useful need. As was mentioned by our witnesses, for a document to be incorporated by reference, it must go through the regulatory process. So there is all that visibility in order to identify what documents would be incorporated by reference. That is gazetted.

There's also sort of a hierarchy, I think, and we know the hierarchy. That's what I was explaining before. There's legislation, there's regulation, and then there's incorporation by reference. It's a hierarchy that depends on the situation: you can't use regulations to make legislation, and you wouldn't use incorporation by reference to make regulations or legislation. They're meant to complement each other. They each have a role. I think what you're proposing here is actually being considered by CFIA, for example, right now.

The other thing I notice with your amendment is that we're under the Feeds Act here, but there is also incorporation by reference under the Fertilizers Act in this bill, the Seeds Act, the Health of Animals Act, and the Plant Protection Act. You didn't mention any of those. You only brought it up under the Feeds Act.

So I don't believe this is necessary.

Maybe the last point I'll make is that it says now “on the departmental website”. That's basically locking it into legislation. It doesn't really take into account, I think, evolving technology. Ten years from now, 15 years from now, websites may be passé. There may be new technology by which people access information. This is somewhat unduly restrictive. If you look back 10 or 15 years, apps were not known. Now we have apps. There are many different ways to communicate information, and I don't think legislation should narrowly define the way in which information is communicated. We are allowing, under the current wording of the act, that it must be “accessible”. That allows for transitions in technology over the next five, 10, 15, or 20 years without putting it right back through the legislative process to talk about how else it should be accessible.

Thank you, Chair.

[The Chair, Conservative, Bev Shipley]

Thank you.

Very quickly, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I'm surprised to hear Monsieur Lemieux make that point, because the current administration has used websites as the go-to place in numerous pieces of legislation, including the revamping of CEAA 2012. I really think departmental websites are referenced throughout the Government of Canada right now, so it's not restrictive of new technology.

I also draw his attention to this. If he thinks these are gazetted, they're not. If you go to proposed subsection 5.1(4), it states very clearly that:

For greater certainty, a document that is incorporated by reference in a regulation made under subsection 5(1) is not required to be transmitted for registration or published in the Canada Gazette

So when you say they're gazetted anyway, they're clearly not. I'm just trying to make sure—

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Perhaps we can get clarification on it, because our witnesses have said just that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I also would say, just quickly, that the only reason this only applies to the Feeds Act is that I and the drafters we could access in the Library of Parliament and elsewhere were trying to figure out how to fix this, and the way it's drafted in its omnibus form made it quite challenging to figure it out. So I went with the Feeds Act only, but really, the point is one for all sections of the act where we are incorporating by reference.

I did speak out against the Statutory Instruments Act in 2013, because incorporation by reference as a blanket principle is anti-democratic and involves less scrutiny.

[The Chair, Conservative, Bev Shipley]

Thank you.

If there is no further debate, shall amendment PV-2 be carried?

Yes, Mr. Allen.