Mr. Speaker, I am pleased to rise today to outline the Liberal Party of Canada's position on Bill S-12 to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. The short title makes the bill's purpose clearer: the Incorporation by Reference in Regulations Act. Before commenting on the bill, I would like to explain to the House what incorporation by reference is.
In today's environment of globalization, regulation is becoming increasingly complex. For example, we must accept international standards for reasons of trade, safety and security. This reality is reflected in Canada's regulations. In order to simplify the writing of regulations, the regulatory authorities are relying more and more on incorporation by reference. Incorporation by reference can be either closed—also known as static—or open—also known as ambulatory, dynamic or rolling.
Closed incorporation by reference is merely a style of drafting. Rather than including a complex, multi-paragraph definition from another document in a regulatory text, the regulatory authority simplifies the reading and writing by referring to the other document as it appeared on a given date. That incorporation is called closed, because the version of the cited document is the one that existed on the date specified in the regulation. If the cited document is later changed, the new version will not automatically be incorporated into the regulation.
Open incorporation by reference, on the other hand, is a kind of sub-delegation of the power to make regulations, since the current version and future versions of the other documents are being incorporated. If the incorporated document is amended after the regulation is adopted, it will automatically be part of the regulation. Therefore the regulatory authority no longer has control over the regulation, since another body can change the document incorporated by reference, completely independently.
According to the analysts at the Standing Joint Committee on Scrutiny of Regulations, open incorporation by reference is not legal, except when Parliament expressly authorizes the regulatory authority to use it. That would mean, for example, that Parliament would need to pass legislation to permit it, or give such authorization when the power to make regulations is delegated. Open incorporation by reference amounts to a sub-delegation of the regulation-making power, which is contrary to our Constitution and our statutes.
The government, particularly the Department of Justice, is of the contrary opinion, and has used open incorporation by reference in many regulatory texts. For example, since 2007, the Conservative government has used open incorporation by reference at least 300 times. One reason the Conservatives introduced Bill S-12 in the Senate was to put an end to the debate and legitimize their way of doing things. The bill would authorize the regulatory authorities to sub-delegate the regulatory power without needing to obtain Parliament's authorization.
Clearly, this is a very complex bill. Since it affects all federal regulation, it is also very important. The Conservatives quietly introduced this bill in the Senate, but apparently they did not take their work seriously. The bill is full of flaws, some of which will have a serious impact on Canadians and the linguistic duality of our country. The Conservatives are too short-sighted to recognize these flaws and it will be up to the courts to make decisions.
Which way will the Supreme Court lean and when? I have no idea. Until that time, we will live in uncertainty, which will be bad for businesses, for francophone rights, and for all citizens' access to the law.
According to the analysts at the Standing Joint Committee on Scrutiny of Regulations, the Canadian Constitution does not allow sub-delegation of the regulation-making power. When Parliament delegates a regulation-making power to a department, for example, the department should not delegate that power again to another entity using incorporation by open reference.
This type of incorporation amounts precisely to sub-delegating the regulation-making power, since all subsequent amendments made by the foreign entity will automatically become part of the Canadian regulations.
This bill will legitimize this sub-delegation of the regulation-making power. It is understandable that globalization has made it necessary to coordinate our regulations with our partners'. This also benefits the regulation-making authorities since the present situation is confusing for them. It is also understandable that sub-delegating the regulation-making power will reduce the workload for regulation-making authorities, and this will enable them to free up resources for other tasks. For example, if they do not have to be constantly updating regulations to coordinate them with the incorporated documents, regulation-making authorities will gain an enormous amount of time. So the Liberal Party and I understand that the bill is satisfactory to them.
For Canadians and democracy, however, this bill creates more problems than it offers solutions. The Parliament of Canada will lose a portion of its control over regulations, since foreign entities will sometimes be deciding the content of our regulations. In other words, Canada will lose a portion of its sovereignty when the documents incorporated by reference come from entities outside Canada. The sovereignty we lose will be gained by others, like our principal trading partner, the United States. We quite often have to coordinate our regulations with that partner, but this bill means that it will sometimes be our neighbour that will decide the content of our regulations directly, without any participation by the Canadian government.
We believe that Parliament, which represents all Canadians, cannot agree to sub-delegation of the regulation-making power such as is permitted by Bill S-12, unless it has expressly authorized it when the regulation-making power was delegated in enabling legislation.
One of the worst problems this bill will create is the reduced accessibility of regulations. Clause 18.3 in the bill does state that the accessibility of the document incorporated by reference must be ensured by the regulation-making authority or the minister who is accountable for it to Parliament, but that is problematic since the bill says nothing about what the criteria are for accessibility or how the document is to be made accessible.
In other words, this confirms that the regulation must be accessible, but accessibility is not defined. Clause 18.4 of the bill states:
18.4...a document, index, rate or number that is incorporated by reference in a regulation is not required to be transmitted for registration or published in the Canada Gazette...
If the documents incorporated are not registered, how will they be accessible to the public? Will it be enough to provide the name of the document incorporated? Does the government have to provide copies of the document incorporated to people who want it?
If accessibility means publishing certain information, such as the name of the document and its authors, it is quite likely that there could be situations where the document incorporated is protected by copyright.
In that case, it would be up to the individual or the corporation to pay large amounts to obtain the document. Once again, the government would be shifting the cost onto the people. The law is supposed to be accessible to everyone. However, this bill could restrict accessibility. In short, there are more questions than answers about accessibility with Bill S-12. Judges will have to deal with these issues.
As I said earlier, clause 18.4, which confirms that documents incorporated do not have to be registered or published in the Canada Gazette, will reduce transparency and, in particular, make it impossible to examine regulations. The Standing Joint Committee on Scrutiny of Regulations does not have the resources needed to examine all federal regulations. Just imagine for a moment what will happen if this bill is passed.
With the multiplication of the number of incorporations by reference, regulations will be constantly changing. It will be impossible to examine everything. The government's transparency will be greatly affected, which is obviously not what we want.
According to an analyst to whom we posed the question, the committee would probably need 10 times more resources than it has now in order to carry out its work properly after the passage of Bill S-12. Are the Conservatives likely to give the committee proper funding? Knowing them as I do, I predict that they are not, and this does not bode well for the transparency and effectiveness of our regulations.
The lack of clarity in the bill is unfortunately not restricted to the general accessibility of documents or to the transparency of the government. Canada’s linguistic duality could well be jeopardized. Because the incorporated material does not have to be registered or published in the Canada Gazette, there is no guarantee that it will be available in Canada’s two official languages.
In the 1992 Manitoba language rights reference, the Supreme Court held that a document referred to in a federal regulation was subject to section 133 of the Constitution Act, 1867, and that it should be incorporated in both official languages, except if there is a bona fide reason for its incorporation without translation. This exception for legitimate reasons applies to material prepared by an international body or another foreign entity.
As we are all aware, English is now the dominant language on the international stage. French is still used in certain large organizations, but in general, English dominates. More often than not, then, the material that will be incorporated will be in English. Therefore, this means that the federal regulations will be available in English but not in French.
Will a document that is available only in English be considered accessible according to section 18.3 of the bill? Perhaps it will, perhaps it will not. We will have to wait until the courts rule on the issue according to their interpretation of section 18.3. Uncertainty and confusion will therefore reign for a number of years to come if the bill is passed as it currently stands.
Regardless of the courts’ interpretation, the problem will still exist. There are precedents in Canadian history where documents incorporated by reference were only in English. For instance, if the courts decide that the regulation-making authority has a duty to provide a French translation of incorporated material that is available only in English, how are we going to judge individuals accused of having somehow broken the law?
Let me explain. Since open incorporation by reference amounts to automatically incorporating all the updates made to a given document in Canadian regulations, we can expect that it might take some time to make the translation available.
Section 18.6 states:
A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document, index, rate or number—that is incorporated by reference in a regulation—is relevant unless, at the time of the alleged contravention, it was accessible as required by section 18.3 or it was otherwise accessible to that person.
In a case where the original is in English, will we have a legal system where anglophones and francophones are judged differently? Since the French translation—if there is one—is not immediately available, could a unilingual francophone be acquitted because of the translation time? What about a case where a francophone understands English?
I want to look at the last part of section 18.6: “...or it was otherwise accessible to that person”. That means that no matter how a judge interprets section 18.3 on accessibility, a person could be charged if they had access to the law in some way. Since no one is considered ignorant of the law, will we have cases where francophones who understand English are criminally charged because the document was available in English but not in French? If that is the case, French will again be marginalized and francophones will be forced to work in English because documents will be available in English long before they are translated into French, if they are translated at all.
But that is not catastrophic. Truth be told, this bill is full of holes, and it will be up to judges to fix them. It will take years before everything is fixed. Until then, I have no idea what will happen, and neither do the Conservatives. Nothing in this bill answers these questions, and the government cannot claim that there are no problems with the bill. Despite everything, it is quite possible that francophones will once again lose out because of the Conservatives' carelessness.
We know this government, so we know that no amendments will be approved. However, I hope that the Conservatives will be open to amendments during the committee process. I urge all of my colleagues, regardless of their party, to vote against this bill, which will weaken our powers as parliamentarians, hurt linguistic duality and limit the public's access to our laws.