Justice Committee on Dec. 9th, 2014

[Françoise Boivin, NDP, Gatineau, QC]

I'm not saying the reverse of what my colleague is saying. I'm saying that instead of doing it with a blanket law like Bill S-2, there's nothing to prevent the government from doing the same things but specifically through specific legislation. This is what I call the more lazy way, the more easy way.

My years in politics tells me that the easy way is not necessarily always the best way for Canadians. That's the dilemma we have. We have the scrutiny of regulations committee which says they're not against incorporation by reference, an ambulatory way. They're just saying that they think it would be more accurate and more respectful of the jurisdiction of Parliament to do it on a case-by-case basis.

We know where we need it. We know where it would be efficient. It would be clearer and fairer for Canadians to do it that way than to just cover it with a big blanket, and go and do whatever.

[The Chair, Conservative, Mike Wallace]

Madame Péclet.

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

Just to answer the parliamentary secretary, actually, the example that was given by the official would fall under subsection (3) of proposed section 18.1, which says in English:

The power to make a regulation also includes the power to incorporate by reference an index, rate or number....

It does not specify “documents”. The amendment only refers to proposed section 18.1 in subsections (1) and (2), which specifically use the word “document”.

The example that the parliamentary secretary gave would fall under proposed subsection (3), and not under proposed subsections 18.1(1) and (2), which is what we're trying to amend right now.

[The Chair, Conservative, Mike Wallace]

Is there anything further on NDP-1?

(Amendment negatived [See Minutes of Proceedings])

[Françoise Boivin, NDP, Gatineau, QC]

Could we record every...?

[The Chair, Conservative, Mike Wallace]

Do you want a recorded vote? We certainly can.

[Françoise Boivin, NDP, Gatineau, QC]

It's for posterity. I don't want to be reproached on anything.

[The Chair, Conservative, Mike Wallace]

Yes.

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

On a point of order, Mr. Chair, we had a vote. You called it out. This should apply going forward.

[Françoise Boivin, NDP, Gatineau, QC]

That's okay, so for the next one just...

[The Chair, Conservative, Mike Wallace]

All right. We operate in a relatively friendly way in this committee normally, but that's okay.

We have NDP-2.

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

Dan Albas hasn't been here for a while.

Amendment NDP-2 follows through on changes recommended by the Standing Joint Committee on Scrutiny of Regulations. In one of its notes, the committee makes the following statement regarding rules and foreign legislation: "For these reasons, it is submitted that the ambulatory incorporation by reference of foreign legislation should not generally be permitted." That does not pertain to static references, only ambulatory ones.

The committee pointed to the problems that ambulatory references can cause. I asked Mr. Walter about that. He said they limited Parliament's options, preventing parliamentarians from having any oversight over changes incorporated in a dynamic or ambulatory way into a Canadian law, because those changes are automatically part of the legislation without necessarily being subject to parliamentary oversight.

That was my rationale.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, the government does not support this amendment.

The impact of this amendment would be that a regulation-making authority could not rely on this legislation to incorporate incidental documents such as documents that provide technical precision on the regulatory rules, for example, test methods. The proposed authority in Bill S-2 already limits the incorporation of documents generated by a regulation-maker to a static or fixed incorporation by reference, which already removes any subdelegation of authority. This amendment would mean that many documents that are not amenable to regulations would have to be converted into regulatory language. The amendment would also foreclose the possibility that a regulation-maker could translate unilingual documents and then incorporate by reference a bilingual standard, for example. This would be counterproductive in our view to encouraging regulation-making authorities to go above and beyond minimum language rights obligations.

For those reasons, Mr. Chair, we'll not be supporting this amendment.

[The Chair, Conservative, Mike Wallace]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

That sounds a lot like the argument used against amendment NDP-1, prompting me to ask our Department of Justice experts the same question.

Nothing would prevent the regulation-making authority from having that ability, if the enabling legislation provided for it. Am I wrong?

[Jacinthe Bourdages]

That is correct. In the case of a specific piece of enabling legislation, if it does not appear in Bill S-2, the regulator would have to establish that missing authority by way of case-specific legislation.

[Françoise Boivin, NDP, Gatineau, QC]

So the onus would be on the government to provide for that authority when introducing legislation. It is faster and easier, because it has to pass the legislation regardless. The legislation has to be passed before there can be any regulatory authority.

I don't see what is so complicated about adding a section that provides for incorporation by reference related to the delegation of regulatory powers. As I see it, it would take just one extra line.

[Jacinthe Bourdages]

Existing enabling legislation would actually have to be amended. As mentioned, incorporation by reference already exists and is widely used. In many cases, existing enabling legislation would need to be amended in order to establish the authority specifically. So it would require amendments being made to existing pieces of legislation.

[Françoise Boivin, NDP, Gatineau, QC]

You make a good point.

I know we discussed it a little bit the last time, but it bears repeating that, to be on the safe side, section 18.7 was included because it does somewhat confirm the validity of this approach. That being said, the issue should perhaps be debated.

Some argue that it does not cause any problems; while others, on the contrary, believe it should be provided for in the enabling legislation. Either way, it's done. So we make a correction and cover everything by way of section 18.7, which 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.

So it covers previous cases.

[Jacinthe Bourdages]

It covers precisely those cases where the authority for incorporation by reference had not been expressly laid out but where the procedure was still being used given the government's position that it was possible to do so.

As I mentioned on Thursday, what it also does is end the legal uncertainty, in light of the impasse between the government and the Standing Joint Committee on Scrutiny of Regulations. The idea was really to introduce legal certainty around the current use of incorporation by reference.

[The Chair, Conservative, Mike Wallace]

Madame Péclet.

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

Thank you for clarifying that.

I should emphasize a point that nearly all the witnesses agreed on. While I understand the government's position that it is not consistent with current practice, the absence of any guidelines or oversight mechanism is still problematic. In fact, the bill was introduced to clarify certain aspects of the act, but it does not provide for an oversight mechanism, and that's a problem.

Nothing is stopping Parliament from subsequently introducing guidelines and a procedure. Part of the first amendment sought to do just that. With an oversight mechanism in place, ambulatory incorporation by reference of all kinds of regulations would not be problematic at all.

But as things stand, no clear mechanism exists. The witnesses in our previous panel—and I'm not referring to the Department of Justice officials—made this point. It is simply a matter of clarifying the accessibility issue. Legislation should not include amendments that are not subject to the same oversight that all of the country's regulations are, the reason being it would simply go against the principle of transparency.

[The Chair, Conservative, Mike Wallace]

Mr. Albas.

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

Mr. Chair, I just wanted to point out to the honourable member across the way that the permanent referral of all regulations, orders, and directives goes to the scrutiny of regulations committee. Specifically that is why it raised concerns about the use of incorporation by reference in certain cases, which is the raison d'être of this bill.

I would like to reassure the member that the parliamentary committee will still continue to look at these things to make sure they are being done correctly.