Mr. Speaker, the bill we are considering today is very important and quite complex. My colleague from Hamilton Mountain mentioned that the debate may seem very dry, but it is still at the heart of issues that affect all Canadians in terms of respect for the regulations in place. This despite the apparent simplicity of its purpose: to make reference to material and incorporate it in a regulation without reproducing the text. The material will have the same authority and the same force as the rest of the regulation, without actually being there in full.
This debate is already a few years old, and the answer is not always clear even though this technique has been used in federal regulations for a long time already, according to the Chief Legislative Counsel at Justice Canada, Mr. John Mark Keyes. In an earlier speech, my colleague mentioned that this government has used this technique 170 times since 2006.
The bill does indeed appear to be complex, dealing as it does with issues of administrative law and regulations, but it is nevertheless very important and its passage may have a direct impact on the lives of Canadians. We will look into this aspect a little bit later on.
As I said, this bill is very important because it will set a precedent for deciding once and for all whether using this technique for drafting and formulating regulations is legitimate and legal.
The issue is that the bill would make it possible to use open or closed incorporation depending on the type of reference, but the difference between the two is crucial. The regulation-making authority in question will be able to make reference to material—such as a legislative text, a treaty, a standard or technical material—and its subsequent and earlier amendments will be incorporated in the regulations automatically. This is called open incorporation.
Needless to say, in certain cases, incorporation by reference appears to be a logical solution. In the case of interest rates, for instance, or other similar indices, such as the consumer price index or the unemployment rate, I think it is obvious that it should be possible to incorporate numbers, rates or indices in the regulation without having to take the legislative route every time. However, if we dig a little deeper, two issues come up. First, I will quote subsection 18.1(3) of the bill:
The power to make a regulation also includes the power to incorporate by reference an index, rate or number—as it exists on a particular date or as it is varied from time to time—[that is, as it may change in the future] established by Statistics Canada, the Bank of Canada or a person or body other than the regulation-making authority.
In other words, the government will be free to incorporate in regulations the definitions, rates and indices established by just about anyone, including civil society groups, foreign governments, NGOs, and so on. The bill does not define those two terms nor does it refer to any definitions in any other legislation. This is a serious problem that was discovered by the Senate committee.
Senator Fraser, asking for clarification about the definitions of these two terms and the ridiculously broad scope of this power, “Trust us' is what you are saying to me”.
The second problem has to do with the accessibility of the regulations, for both Canadians and for Parliament. Indeed, regulations are rather dry, often very complicated texts, and the addition of indices and figures without any direct reference could make the regulations and their objectives even more difficult to understand. It is important to ensure absolute clarity regarding the context in which these figures and indices are incorporated, and I am not convinced that this bill does that.
Furthermore, another kind of accessibility is at issue here: the power of parliamentary oversight. In that sense, this bill in no way responds to the joint committee's concerns regarding the use of incorporation by reference. In fact, the bill does the exact opposite. The joint committee worked very hard to respect the principle of the legislative power of Parliament.
These two problems are mentioned in the most recent edition of L'action gouvernementale -- Précis de droit des institutions administratives by Lemieux and Issalys. I quote:
The frequency of such references is making some people fear an erosion of state sovereignty in favour of power structures over which they have no influence. It is also raising more concrete concerns about citizens' access to texts detailing the standards that govern them.
That is at the heart of what we are debating here. The authors are essentially talking about altering the regulatory power, since the reference could prevent people from understanding the regulations, particularly in the case of a so-called ambulatory incorporation by reference, since a reference is being made not only to an external text, but also to the specific context in which the text was created or amended, to which the person subject to the regulations does not necessarily have access.
The use of references to regulations outside of the Canadian legal context poses an even bigger problem, and yet this use is becoming increasingly common.
I would like to read another clause from the bill, paragraph 18.3(1):
The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible.
If the idea behind the reference is to avoid having to publish the documents incorporated a second time, since the documents are usually published and accessible in another form, what does the word “accessible” mean? I have listened to the majority of the speeches here this afternoon. But the absence of this definition, or the vague definition, is yet another obstacle to having an exhaustive and effective bill to protect Canadians from being ignorant of the regulations or of the provisions in regulations that could affect them.
According to the legislative counsel of the Minister of Justice, a document can be considered accessible if the person subject to the regulations is able to obtain a copy of the document in question and then understand what needs to be understood. It is not mandatory to send a copy of the document to this person. The document simply has to be accessible if the person makes a reasonable effort.
And that is where section 18.7 takes on its full significance. If accessibility is not demonstrated, this clause paves the way for sanctions or convictions based on the incorporated document. So subsection 18.3(1) can be interpreted as requiring the regulation-making authority to be responsible for accessibility, not the people subject to the regulations.
But who will determine what constitutes reasonable effort? We can all agree that referring to a Canadian or Quebec law does not necessarily require much effort from one of our constituents. It will require Internet access, but that is another debate for another time.
However, if we are talking about a foreign government's specific phytosanitary standards, for example, the person must be able to find that information. In the event that Canada has not yet harmonized its standards with the country in question, the person must navigate a foreign government's website, hoping that the information will be posted in one of Canada's official languages.
I want to say that there are limits to that idea that no one can be ignorant of the law. As parliamentary legislators, we live in a legislative universe and we sometimes have trouble making sense of it. I cannot even imagine the average Canadian who is trying to understand an enabling statute and its many regulations, especially if the regulations are split between an existing text and references.
Mr. Keyes, who testified at the Senate committee, said this during his testimony:
...the bill is making a substantial improvement in that it is for the first time generally stating this obligation, and it is largely stating the obligation in the way that it exists right now in terms of the common law and in terms of the way the courts have dealt with these issues in the very limited number of cases that incorporated documents have ever come up in the courts.
But he forgot, perhaps, to mention that this improvement is the result of the bill and that debate is still raging over the best approach to take concerning regulation by reference.
This technique is controversial. Recommendations from the Standing Joint Committee on Scrutiny of Regulations clearly state the following:
...incorporation by reference also gives rise to concerns relating to accessibility to the law, in that although incorporated material becomes part of the regulations, the actual text of that material must be found elsewhere.
The report continues:
Such concerns are heightened where material is incorporated “as amended from time to time”, in that members of the public may have difficulty ascertaining precisely what the current version is at a particular point in time.
The Liberal senators tried to amend the bill in order to establish guidelines to create standards related to the use of regulations by reference depending on whether it is static or ambulatory. This proposal was rejected, despite the fact that such provisions currently exist in many other countries, including Australia and New Zealand, as well as in certain provincial jurisdictions, including Ontario and Manitoba.
Furthermore, it is not always easy to distinguish between the two types of reference, which can lead to confusion during interpretation of the regulations. My hon. colleague from Saanich—Gulf Islands mentioned that Bill C-38 and Bill C-45, both massive bills, contained incorporation by reference provisions. In Bill C-38, it was clause 89. I will not read the clause, because it is six paragraphs long. In Bill C-45, it was clause 30.
This massive bill before us already has some very important elements leading to both a static and ambulatory incorporation by reference. But this measure is not yet entrenched in our regulations, and as we heard in many speeches, its legitimacy raises some questions, not only for us as parliamentarians, because we have to discuss and debate these pieces of legislation and perhaps pass them, but also for any Canadians who find themselves having to navigate this quagmire.
Again, Bills C-38 and C-45 added, amended or eliminated over 130 different acts. If, some day, we can include incorporation by reference, particularly ambulatory incorporation by reference, we may get totally confused, and even more so if that practice is generalized with the presence of terms whose definition is imprecise or non-existent.
The Senate refused to define terms like “accessibility” and “reasonable effort to get the document”. We, on this side of the House, hope to do this essential work at committee stage and to ensure that the legislation will be suited to all Canadians.
In the end, these elements of Bills C-38 and C-45 suggest that the minister is giving himself a fair amount of power. Do we really want to go in that direction with Canadian legislation? This process could well be used to make the legislation even less transparent and accessible to Canadians.
I do not think that this method should be completely avoided, since it also offers benefits in terms of the effectiveness of the legislation and the streamlining of statutory instruments which are often complex and cumbersome.
The hon. member for Hamilton Mountain gave a number of examples and she mentioned some numbers. I believe it was 30,000 pages of regulations and 13,000 pages of acts in Canada. Amending 30,000 pages of regulations is a very delicate exercise. If we want to ensure that these regulations are constantly up to date, it is going to require painstaking efforts.
In that sense, incorporation by reference may be an interesting option, but we must be able to define it and use it properly. That is why we will not oppose this bill at second reading, since it will be up to the committee to make this interpretation.
That is particularly important, because we have to be careful about possible abuse and we must limit such abuse by establishing clear benchmarks. Based on what we hear from the Standing Senate Committee on Legal and Constitutional Affairs, and the Joint Committee for the Scrutiny of Regulations, that aspect has not yet been taken seriously. The government must listen to the experts and to the opposition when it tries to improve this bill.
We still have some work to do to make this bill acceptable for this side of the House and for all Canadians. I hope that the government will co-operate with us in order to do so. It is in situations such as this that we need to set aside partisanship and work on behalf of the Canadians who elected us to represent them in this chamber.
I would like to come back to some specific examples that I have already mentioned several times, which could affect Canadians. Let us talk about employment insurance legislation, for example, the provisions relating to pilot-projects referred to the unemployment rate. Sometimes it is the national rate but usually, it is the regional rate. A database is needed in order to be able to quantify the rate. A lot of tables are used in the employment insurance regulations but, under this legislation, as things now stand, the minister could apply the regulations and their open incorporation by reference. The minister could also simply refer to tables or statistics from Statistics Canada.
Until just recently, until several months ago, people had to pay to get access to information from Statistics Canada. Unless they worked at a university or in a research facility that provided them with access, people had to pay out of their own pockets to get access to these statistics and data.
If the minister makes regulations in which there is open incorporation by reference to regional unemployment rates that are not accessible to Canadians free of charge, does that constitute reasonable access? Will people have to pay to show that they made a reasonable effort to obtain the information related to the section of the regulations that directly affects them?
Here is another question. How much will people have to pay to show that they made a reasonable effort? Will they have to pay $2.95, $10, $20, $100, $150? Right now, there is no way of knowing because accessibility and reasonable effort are not defined.
We have talked about different laws that can sometimes be linked to extraterritorial legislation or laws that apply outside the country. For example, this could be the case for laws affecting the Scott case, which pertained to a parent who took a child for whom he had joint custody out of the country.
A regulation that would affect legislation on this subject could refer to the laws in the country where that child is located. If the regulation makes an open reference, the person directly affected could have access, could consult the country's legislation to see whether the provisions are compatible with Canada's, and this could help the individual better understand the situation. In this case, the individual would have to access another country's website or legislation, which could be in another language.
This raises some questions. Does this prove accessibility? What kind of reasonable effort does the person have to show that they made to access these documents and this information? Will the person have to contact a foreign-language translator?
It is too vague for us as a party to decide whether we can support the bill. However, we think it is possible that closed—and even open—incorporation by reference helps improve accessibility.
Accessibility is at the heart of all of this. Notions such as reasonable effort must be better defined. We encourage the government to work with the official opposition and to work with all members of Parliament to ensure that we protect Canadians on this issue that affects them all. At the end of the day, we do not want them to end up in trouble or in a dangerous situation, in which they could end up being found guilty because they ignored the law or violated a specific regulation that they could not have reasonably had access to.
Ignorance of the law is no excuse, but it is difficult not to ignore a law if we do not know what the law is about.
I urge the government to define these very important notions. It is important to better define the elements in this bill. That is the message I want to send to the committee that will be examining this Senate bill.