Justice Committee on Dec. 9th, 2014

[Ian McCuaig]

It doesn't necessarily go through the gazetting process in the first case either. In fact, the proposed amendments specifically excuse documents that are incorporated by reference from being published in the Gazette. So the reference—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Could you give me an example, Mr. McCuaig? I know you brought that up as part of proposed section 18.4 and it was part of your concern in your testimony. I'd be curious to find out how that would happen.

[Ian McCuaig]

The reference to the document would go through the gazetting process. The document itself wouldn't necessarily be published in the Gazette. We would know that it was being referred to, but the document itself is—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

The hyperlink would be posted in the Gazette, and it would be up to Canadians to follow the hyperlink to wherever it's posted in order to get the information. Is that correct?

[Ian McCuaig]

Precisely.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Okay, but it's still posted. It still goes through some form or semblance of a gazetting process.

Is there any concern from any of you on the panel right now as far as this hyperlinking is concerned? I'll call it “hyperlinking” and we'll call it “incorporation by reference”. They're static and dynamic—or ambulatory, I guess, is what we're calling it. So an ambulatory one would mean that as soon as somebody else updates their web page, or their reference, or their codex, or their compendium, or their annex, or their schedule, then it automatically becomes the law of Canada in a dynamic or ambulatory.... But in the static one, what would set that process apart in our legislative changes that we're going through here right now insofar as the gazetting process and the oversight process are concerned?

[John Walter]

If it was a static process to reference a standard, it would reference a particular standard that had been produced and it would say, “That is the standard for Canada: this date, this version”. It could be updated and nobody would have changed it.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

It would be updated by whatever the governing body might perhaps be, but the standard that Canada has adopted is still linking to that one page that's cached in memory, so to speak, when we accepted that through the gazetting process.

Do I understand that correctly?

[John Walter]

Yes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. Walter, as a member of Parliament who passes legislation, my purview is legislation. The government's purview, through its orders in council, is the regulatory environment. It goes through cabinet, committees, things that we would never see. We might hear about, debate, or discuss those things, and put pressure on the government to change regulations from time to time.

My concern is, and you brought this up in your testimony, that the federal governing body, the oversight body, is Parliament. You said, sir, in your past experience that some of the incorporation that you have done has actually involved the incorporation of provincial, municipal, or even regional types of regulations.

I'm asking you, sir, in your opinion, do you think that the devolution of that responsibility to a provincial or a regional level has enough safeguards in place to make it into the federal regulatory approval process without going through the gazetting process?

[John Walter]

That's a complicated question.

Let me put it to you this way. I only speak of standards. I'm not speaking about other documents that would be referenced in regulation. The standards system is really quite solid.

To address your comments directly, my concern is not the static or ambulatory referencing. I think that's happening now. We need guidelines to clarify what that is.

The challenge that would need to be addressed in those guidelines is that the department that is responsible for that regulation, for referencing any standard into that regulation, needs to stay on top of the standards development process. As the standards development process continues, and they're revising it on a regular basis, and they're coming back, it should not be a surprise to the department that's using it. If it isn't, then that's where the problem is.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

From an oversight perspective as a member of Parliament, what kind of assurances can you give me?

Those are very valid and legitimate concerns, that we are devolving some of the authority that we may have as parliamentarians for the oversight of legislation and the regulatory process to an outside agency that would receive unknown or unreported quantifiable levels of scrutiny in so far as how they would let Parliament know.

Are you suggesting that Treasury Board should develop guidelines for reporting to Parliament or reporting to cabinet? How would you see that happening?

[John Walter]

To be clear, sir, it's already happening. It's not as if this is a change. It's not like an outside agency that's adopting these into regulation. It's a government department. It's within the control of the government forever.

I would still come back to the need for Treasury Board to develop guidelines so it's done consistently. It's being done across the government now inconsistently, so let's do it consistently.

I'll give you a lecture about fine bubble technology standards after this is all over. If the Japanese bring in a new standard for fine bubble technology ahead of Canada, we'd better make sure that we're on that development committee, that we understand what's coming back into this country, and we adopt it as fast as we possibly can. That's why we need to stay on top of the issues, but we need guidelines to make sure we do it properly.

[The Chair, Conservative, Mike Wallace]

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Ms. Proud, if I understood your opening statement, you're supportive of the legislation, but you don't think it goes far enough, in that ambulatory incorporation by reference should be more widely available.

Would that be a fair synopsis of what you said?

[Karen Proud]

Yes, that's absolutely correct.

[Sean Casey, Liberal, Charlottetown, PE]

If we expand the use of ambulatory incorporation by reference, where's the oversight? Where are the safeguards? Where are the protections?

I'll be quite blunt. My concern is that we've seen time and again in other contexts this government do things indirectly that they cannot do directly. I'm concerned about subdelegation.

[Karen Proud]

Well, I think that's precisely the concern that's trying to be addressed through Bill S-2, and in my words, tying the hands of departments to be able to use ambulatory references. As we recommend, we don't think the proper oversight exists right now for the practice that is going on right now of incorporation by reference. We appreciate the practice that's going on right now with incorporation by reference and we want to see it continue, but we think Treasury Board should have put in place a long time ago guidance in the form of a cabinet directive to departments dictating how they are to use these authorities.

We recommend that the Standing Joint Committee on Scrutiny of Regulations be able to look at regulations in the context of how they were made and not just at the instruments themselves, in order to provide that additional oversight. Without those things in place, we too have concerns about the broad authority given to departments, but we recognize that it is authority that is very important but needs oversight.

[Sean Casey, Liberal, Charlottetown, PE]

What would those Treasury Board guidelines look like? What would be the key elements?

[Karen Proud]

Similar to the cabinet directive on law-making that the Treasury Board has put out, it would dictate to departments the sorts of consultation that need to take place before a document could be incorporated by reference, the sorts of documents that can be incorporated by reference, the types of reviews that need to take place, things like that to make sure that departments are really carrying out the spirit of the authorities that are given to them. We think these guidelines should be developed in consultation with industry and with Canadians, so that we're all well aware of what departments should be doing.

As an example, the Canadian Food Inspection Agency just closed consultations on how they plan to use their authorities of incorporation by reference, which they were given in a broad way when the Safe Food for Canadians Act passed. Our question is why just the food inspection agency is coming up with guidelines; why are there not guidelines for all departments?

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Mr. McCuaig, you talked about the problem with the lack of clarity around the definition of accessibility. Given the absence of any definition in the statute, we're left to see how that term has been judicially considered. Are there some seminal cases that give us some guidance on what we might expect there?

[Ian McCuaig]

I did not find anything in the way of cases regarding accessibility from the perspective of criminal liability. It's really a novel kind of concept. As I mentioned, I don't think this has really been considered by a lot of criminal lawyers. I don't know that anyone has actually run up against this.

Obviously there is no standard.... Accessibility is a new concept in these amendments, so there isn't really anything in the way of precedent that exists to define it.

[Sean Casey, Liberal, Charlottetown, PE]

Do you want in on that, Mr. Walter?

[John Walter]

Yes.

There has been a huge amount of discussion internationally on accessibility, and there are all sorts of different options. Accessibility in some countries means freely available; in other countries it means available on a website. There are two test cases, in the United States and in Israel, in which the Supreme Court of Israel has ruled that accessibility to a standard means that it is accessible on a website to be read page by page, with no ability to copy, etc.

It is probably one of the biggest issues facing international standards development, because if the standards were made free, then nobody would develop them.

There are other processes. In Canada, some of the maritime provinces have banded together to make certain standards under the ministry of labour or occupational health and safety free to people in those provinces, but the provinces pay. Accessibility is a wide open topic, but there are all sorts of ways to address it internationally.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

I wonder, Mr. Walter, whether you could respond to the example that Mr. McCuaig gave in his opening statement with respect to the possibility of someone's being liable for a regulatory offence as a result of something like the Montreal Protocol or a trade agreement, something that was promulgated outside of Canada.

Do you have any thoughts on that?