Thank you.
Good afternoon, Chair, and members of the committee.
I am here today as a representative of the Canadian Council of Criminal Defence Lawyers.
The council was formed in November 1992 to offer a national voice and perspective on criminal justice issues. Since the organization's inception, the council has intervened in important cases before the courts of this country, has been invited by the federal government to consult on major pieces of criminal legislation, and has been often asked by the media to comment on current issues.
Our representatives have appeared before the Senate Standing Committee on Legal and Constitutional Affairs, the House of Commons Standing Committee on Justice and Human Rights, and the Standing Committee on Public Safety and Emergency Preparedness.
The current board has representatives from all ten provinces and three territories.
On behalf of the council, I would echo support at least for the spirit of Bill S-2, but I am going to go on and explain a possible concern from a criminal justice point of view.
I consulted a little bit with some of the more accomplished criminal justice lawyers before I came to make this appearance and I can tell you, not very many criminal justice lawyers spend a lot of time thinking about incorporation by reference. However, that doesn't mean that it's not an important and actually really interesting issue from a criminal justice perspective.
Looking at the existing act, if you read the preamble it says:
An Act to provide for the examination, publication and scrutiny of regulations and other statutory instruments
From a criminal justice point of view, that's an important function that this act has, because if you're going to hold people accountable, they have a right to know the law. One of the functions of the Statutory Instruments Act is that it lets people know the law. It gives scrutiny to regulations and it stipulates that they be published in certain ways.
Furthermore, it goes on in section 17 of the existing act to specify the rights of access. It specifies that people have a right to both inspect and obtain copies of regulations.
There is also noted in the act exceptions to the process for making regulations, in section 20, which explains exceptions for publication and different mechanisms for oversight. But even the exceptions provided for by section 20 have oversight because those exceptions have to be defined in the regulations to the Statutory Instruments Act.
What we have is an act that provides for some oversight of the development of regulations. It provides that people will be aware of those regulations once they're developed. The thing is that a lot of the regulatory offences that are defined are defined by regulations, either fully or at least partly.
When you look at the amendments, a combination of a few of them together creates an interesting effect, especially in proposed section 18.1 of the bill, which allows for an ambulatory incorporation by reference.
Proposed sections 18.3 and 18.4 ensure that these documents will be accessible, but it allows that they not be published in the Canada Gazette, which is the normal way that regulations are publicized.
Proposed section 18.6 actually creates an interesting exception. It limits the liability for offences related to incorporated materials if those materials are not accessible. A lot comes down to this word “accessible”, but it doesn't seem to be really adequately defined; in fact, it doesn't seem to be defined at all. So we actually now have a built-in excuse where ignorance of the law is an excuse, but we don't really have a standard for what constitutes whether a person was made aware of the regulation or the incorporated document. This obviously could wind up in front of a court with an argument over what constitutes “accessible”.
Also raised in the legislative summary and some of the debate that's occurred on this already is the notion that there doesn't seem to be a requirement for incorporated documents to be available in French as well as in English. Normally, regulations must be published in both languages. For incorporated materials it doesn't seem that requirement exists.
The other thing is, in a normal regulation-making process, for the translations, obviously, there's quality control, so that we can be sure the French and the English versions are consistent. In a document that does exist that's incorporated by reference and that's available by a third party, there is really no oversight that the French or English or possibly other language versions will have the kind of consistency that a regulation has.
Current practice includes incorporation by reference of documents that are actually published by organizations outside Canada. I've brought along an example for you. The ozone-depleting substances regulations, published pursuant to the Canadian Environmental Protection Act, incorporate the following definition:
“Protocol” means The Montreal Protocol on Substances that Deplete the Ozone Layer, published by the United Nations Environment Programme....
The regulations go on in part 1, controlled substances:
This Part applies to (a) a controlled substance within the meaning of the definition in paragraph 4 of Article 1 of the Protocol, as clarified by Decision I/12A, as amended from time to time;
It's incorporated on an ambulatory basis.
Section 4 of the regulations says:
No person shall import or export a controlled substance from or to a State that is not a Party.
If you go back to the Canadian Environmental Protection Act, section 272(1) creates an offence. That offence has consequences that start in the tens of thousands of dollars and goes up to the millions of dollars and can result in years, in some cases three years, in prison.
What we have is a regulatory offence created through regulation, which incorporates a document that is published by an organization that exists outside of Canada completely beyond the oversight of the Canadian government.
Obviously, in the case of something like the Montreal Protocol, there are some clear advantages to that. This is a well-known organization, the UN, and this is an example of international treaties that have been successful. This is the hallmark of international treaties and there's really little reason to doubt the quality of the work these people do.
But we live in a world where we are negotiating more and more international agreements on more and more subjects. We're negotiating agreements on trade, the environment, and all kinds of things. To give you an example, if you follow in the press the development of the Trans-Pacific Partnership—and there's not really a lot of, I think, reliable information about it—there's a suggestion that it might be required, if we were to sign onto it and other countries sign onto it, to implement sanctions against the breaking of digital locks.
We might have a situation where we create an offence relative to a negotiated trade agreement and that offence again is related to a document that is beyond the control of the Canadian government. As you can see with the Montreal Protocol, it's implemented on an ambulatory basis, and I think that's a reason to just pause for a minute and take some concern. The legal principles that you might run up against in a case like that are the rule of law, which suggests that we should establish a normative order of clear principles for people to follow.
Section 7 of the charter suggests that ambiguity in the law is a problem, and from an administrative law perspective you could run up against the principles of procedural fairness with a situation like that.
Those are my remarks.
Thank you.