Mr. Speaker, I thank my colleague from Hamilton Mountain for such an amazing introduction. I will be able to build on that, I hope, and actually dispense with parts of my own speech.
The Conservatives would have us believe that Bill S-12 is a merely technical or housekeeping bill. They accomplish this in part by messaging that it simplify codifies an existing drafting practice for regulations, the use of incorporation by reference. We even have journalists now treating this as a routine bill. I do not know if there are any journalists watching this debate for that very reason.
In fact, Bill S-12 is anything but innocuous. Speaking in my capacity not only as the member for Toronto—Danforth but also as official opposition critic for democratic reform, it seems to me that the bill is actually an anti-democratic “reform”, so called. It is a big step backward for open government and indeed for accountable government.
Let me be clear that my focus and remarks are on the endorsement in the bill of a so-called drafting technique known as incorporation by reference, in particular open incorporation by reference, whereby the words “as it is amended from time to time” would be inserted to signal that a document that is incorporated by reference or other materials, when it is changed by external bodies, would automatically enter back into the regulation and continue as binding law without any further intervention by Parliament. This would be in contrast to static or closed incorporation by reference, whereby Parliament and the Standing Joint Committee for the Scrutiny of Regulations would actually know what document is being incorporated by reference, would be able to review whether it is appropriate that the document comes in and would know when it passes judgment on the regulations of what it is dealing with.
For some years, the Standing Joint Committee for the Scrutiny of Regulations has expressed concern about the use of open incorporation by reference for reasons that I will discuss a bit later. In 2000, the joint committee called for a legislative amendment to the Statutory Instruments Act to require, as part of its provisions that authorize regulations, that any use of open or ambulatory incorporation by reference be explicitly authorized by each statute as that statute is adopted by Parliament. Without such explicit authority being in each statute, the report says that regulations would not be allowed to use this technique of open incorporation by reference, and would only be allowed to use the technique of closed incorporation by reference at a known date.
Bill S-12 would give carte blanche to the executive branch to use incorporation by reference of an open sort with no constraints of any consequence. This means regulations could change over time when external bodies decide to revise their documents, which have been incorporated by reference, and Parliament would have no further oversight role. These external changes would become law automatically with no further action required from the Canadian state or from Parliament, other than, in Bill S-12, a very vague, unelaborated, undefined duty to ensure the document with its amendments would be “accessible”.
Therefore, any number of changes by non-governmental organizations, industry bodies, international bodies or even foreign governments, to their own documents that have been incorporated by reference, could slip into our system with no scrutiny. For example, there is something known as Parliament's “power of disallowance” of regulations. A regulatory provision can be disallowed on a motion of the House, but that process is not triggered until the Standing Joint Committee for the Scrutiny of Regulations actually makes a recommendation to the House and to the Senate to disallow the regulation. They would not even have a chance to make such a recommendation with respect to amendments to documents that have occurred on the initiative of an external body and that are entered into our law automatically. This would never come back to the joint committee.
The very description of what would be at stake with Bill S-12 should reveal to the average listener the threats that would be presented by ambulatory or open incorporation by reference to democratic accountability, as well as to the rule of law. This is due to the fact that after the bill passes, if it passes, the executive branch may not only incorporate known documents produced by external bodies, such as this code, that resolution, those guidelines, these rules, but may also effectively yield to that external body the power to change its document in a way that automatically would become legally binding in Canada.
We live in a regulatory era where there are 3,000 regulations making up over 30,000 pages versus about 350 statutes making up 13,000 pages. Without careful scrutiny by Parliament of executive power, our democracy hollows out. We have been witnessing what some scholars call “new political governance” whereby concentrated executive power comes to dominate the parliamentary branch. In Canada, the Prime Minister, the PMO and a small clutch of ministers have effectively engineered a takeover of our Westminster system in recent years.
To add to that phenomenon, greater and greater power in the executive to incorporate by reference materials produced by bodies with no accountability to Parliament, let alone the Canadian public, in the name of economic efficiency or easing the burdens of regulators or flexibility, is something we must be seriously worried about. It makes the problem of executive domination of Parliament even worse.
Before I talk a bit more about why democracy and the rule of law are affected by Bill S-12, let me comment on one other problematic feature of the current process whereby Bill S-12 has come to us. I am not referring to the fact that it started in the Senate; let us leave that to one side. Rather, I am talking about how the government wanders into the House and has the chutzpah, frankly, to claim that Bill S-12 comes from the Senate unamended, as if it were truly a routine bill about regulatory drafting techniques that the Senate unanimously adopted.
In fact, the legislation caused great debate in the Senate. Senators returned to the debates in the mid-2000s, which ended up producing that 2007 joint committee report that I referred to. They objected to how Bill S-12 does not take seriously problems of transparency and accountability, and more broadly, the fundamental principle of the executive branch's subordination to Parliament.
Reasonable amendments were moved, but what happened? The current character of the Senate revealed itself in all of its glory, when Conservative senators voted to defeat every single amendment. This body was created in 1867 for two reasons: to be a regional voice in the federal Parliament and a chamber of sober second thought. It has simply become an extension of whipped party politics. The rational arguments of some senators on Bill S-12 were simply bulldozed by Conservative senators acting according to PMO instruction.
The government did respond to that 2007 report that I mentioned. It focused on one very technical argument that the joint committee had made, that allowing the executive to send on to another body the power to change something that had been incorporated by reference and have that become automatically a part of our law, which is called illicit or illegitimate sub-delegation.
The government focused on this and it made a whole bunch of comparisons to something known as inter-delegation, parliament delegating powers to the provinces to legislate. It created this equivalence between that situation and the situation we face, talking about how it was not a problem, that the provinces could be allowed to continue to amend their legislation or their rules and have a federal statute incorporate that by reference even as those rules change. However, the government failed to notice two fundamentally different features about that situation. First, the provinces are governed democratically, and second, they are within Canada. The fact of deferring to external rules by international actors who have no democratic process as part of how they produce their rules is totally glossed over by the way the government responded to the committee's report.
The government also ignored a serious rule of law concern. What happens when a document is amended by an external body in a way that maybe we cannot expect, in a way that is maybe radical, in a way that actually is problematic? Our Standing Joint Committee for the Scrutiny of Regulations has no opportunity to check whether or not those new changes fall within the ambit of the act. That is a rule of law problem right there.
How about a mega rule of law problem? The charter of rights is totally ousted by the ambulatory incorporation by reference process. Section 4.1 of the Department of Justice Act requires that Parliament double-check, after the executive has double-checked, that a regulation does not offend the charter. That does not get done with new amendments to incorporated by reference regulations.