Justice Committee on Dec. 9th, 2014

[John Walter]

My only thoughts would be that it could be promulgated outside of Canada as any number of standards are, but unless they're referenced into law within this country, they don't have any standing in that law. I'm not sure how anyone could be found guilty of breaching something that was in place in Europe. I'm not an expert in criminal law. I'm an expert in standards.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

You indicated that in the standards development process, federal bureaucrats are extensively involved both domestically and internationally. That for me raises an issue: where federal bureaucrats are involved in the standards-making process of a third party, ambulatory incorporation by reference is available, but where they're exclusively involved, it isn't. Do you see the—

[John Walter]

I'm not exactly sure what you mean by exclusively, sir.

[Sean Casey, Liberal, Charlottetown, PE]

If a regulation is solely within the control of a department, then ambulatory incorporation by reference is not available, but if that same person, that same bureaucrat, that same department that is involved in putting together a regulation, sits on a standards committee, then static incorporation by reference is permitted.

[John Walter]

Let me try and clarify that. If a department sets up its own regulation, it does it under its own rules. It wouldn't qualify as a standard from our point of view. That's simply a regulation.

Where the federal staff, civil servants, sit on any kind of standards committee, national, regional, international, they are one of sometimes 20, sometimes 200 people who bring the technical expertise to that committee. When that standard is developed, we use the word “voluntary” because it has no effect in law until a government says it has some kind of reference in regulation.

Whether it's static or ambulatory makes no difference. Our point is that if federal regulators are involved in the standards that are important to this country and they are ready to bring them back in for referencing as soon as they are published, it brings an advantage to Canada. It also ensures that we have Canadian experts who sit on those committees and are comfortable that they are the right standards for Canada.

[The Chair, Conservative, Mike Wallace]

Thank you very much for your questions and answers.

There are two segments left, of five minutes each. Our next questioner is Mr. Albas from the Conservative party.

You have five minutes, Mr. Albas.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

It's a pleasure to be here with you today. Thank you very much to our witnesses for your participation in today's hearing.

I'd like to go through a couple of the concerns that have been raised particularly around subdelegation and accessibility.

I think, Mr. Walter, you put it best that if Canada enters into an international convention or into a free trade agreement, it comes back to Canada and it becomes Canadian law only after it's been passed by Parliament, unless Parliament has previously delegated that authority to the Governor in Council or to an individual minister.

Is that correct?

[John Walter]

Yes.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

As far as subdelegation goes, any hints that we're giving away our sovereignty—it's Parliament, or in the case that the authority is given to the Governor in Council or to a particular minister—is ultimately the basis of whether that law applies in Canada. If we say, “The new standard in this particular field is X”, we're the ones who decide that and if we want to change it at any point to Y, there are processes for that. Ultimately the power of Canadian law bears down on that authorization by Parliament.

Is that correct?

[John Walter]

Yes, it is.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you very much. I appreciate hearing that.

Mr. McCuaig, is anyone on your council in administrative law, or is it criminal law mainly?

[Ian McCuaig]

It's criminal law mainly. There's quite an overlap. A lot of what criminal lawyers do these days ends up being administrative law and regulatory law.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Sure.

Now in regard to accessibility, have you ever seen any electrical codes?

[Ian McCuaig]

Yes.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

You seem like a talented gentleman—and very smart by the way—but do you think that you could read and understand those technical codes? Is that meaningful to anyone?

[Ian McCuaig]

Could I?

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Yes.

[Ian McCuaig]

Well, possibly, but I studied engineering for a while.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

The point I'm making here is that accessibility depends not only on whether it's in a language that you understand.... By the way, all regulations, orders, and directives are in both official languages in Canada. That's the law.

Again, accessibility to a large extent also depends on your specialty. Is that not correct?

[Ian McCuaig]

I don't think that's really the sense that accessibility is being used here.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Well, for example, I could access those standards and I could pay for those standards, as Mr. Walter said, because there's an agency that is good enough to look at those and accumulate those and say that they are the standards for Canada to keep people safe. But whether or not someone could use any of the information, I think, would be highly dependent on the individual. Is that not correct?

[Ian McCuaig]

Well, from a criminal liability point of view, though, what we're really interested in is whether there is a stable, predictable standard against which behaviour can be measured. In the case of an electrical code, sure there is, because you're either qualified to go out and wire a house or you're not. If you're not, you've got a problem and, if you are, you can understand the standards.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

I think you understand that my point is there is a great degree of what someone might consider to be accessible.

[Ian McCuaig]

But the problem that I was talking about in the way of accessibility is knowing when the standard has changed.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Sure. For example, under proposed section 18.3 which you raised:

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

I imagine that the Bank of Canada or Statistics Canada, or in some cases a group that is accredited by the Standards Council of Canada, for example, the Bank of Canada, will probably keep track of the index of inflation. Is that correct?