House of Commons Hansard #131 of the 41st Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was standards.
The House proceeded to the consideration of Bill C-41, An Act to implement the Free Trade Agreement between Canada and the Republic of Korea, as reported (without amendment) from the committee.
The Speaker Conservative Andrew Scheer
There is one motion in amendment standing on the notice paper for the report stage of Bill C-41. Motion No. 1 will be debated and voted upon.
The hon. member for Saanich—Gulf Islands is not present to move the motion at report stage. Therefore, the House will now proceed without debate to the putting of the question on the motion to concur in the bill at report stage.
Pierre Poilievre Conservative Nepean—Carleton, ON
moved that the bill be concurred in at report stage.
Canada-Korea Economic Growth and Prosperity ActGovernment Orders
Some hon. members
Agreed.
The Speaker Conservative Andrew Scheer
I declare the motion carried.
(Motion agreed to)
When shall the bill be read a third time? At the next sitting of the House.
Pierre Poilievre Conservative Nepean—Carleton, ON
moved that Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, be read the second time and referred to a committee.
Incorporation by Reference in Regulations ActGovernment Orders
Durham Ontario
Conservative
Erin O'Toole ConservativeParliamentary Secretary to the Minister of International Trade
Mr. Speaker, with the consent of the House, I will be dividing my time with the Parliamentary Secretary to the President of the Treasury Board.
Today I rise to speak to Bill S-2, a bill that comes to us from the Senate, which is seeking to amend the Statutory Instruments Act and consequential amendments to the Statutory Instruments Regulations.
In many ways, we have a bill before the House today that is technical in its name and technical in its nature and really can be looked at as the plumbing required in the legislative and regulatory regime. I am going to speak to that briefly today.
In many ways the bill--
The Speaker Conservative Andrew Scheer
Order, please. Does the member have the unanimous consent of the House to share his time?
Erin O'Toole Conservative Durham, ON
Mr. Speaker, I thank my colleagues for that consent.
As I was saying, Mr. Speaker, I will be dividing my time with the Parliamentary Secretary to the President of the Treasury Board, who is far more passionate than I about the plumbing of state and the updating of our legislative and drafting requirements.
As a lawyer, prior to coming to this House, I know that these sorts of bills are important for governance and for drafting. This would have some measures that would allow our legislative and regulatory regime to be modern, and the broadest way is the technique of incorporation by reference.
Bill S-2, and the specific provision on incorporation by reference, has been studied by the Senate Committee on Legal and Constitutional Affairs and reported, without amendment, to this House.
The technique of incorporation by reference is already used in a vast array of federal regulations. It is difficult to actually think of an area, a regulated area federally, where incorporation by reference is not used to some degree.
Bill S-2, the bill before the House today, is about securing the government's access to a drafting technique that has already become essential to the way governance operates in Canada. It is also in line with international trends in the modernization of regulations, and as I said, it responds to Senate and House committees, including the Standing Joint Committee on the Scrutiny of Regulations. That is certainly a committee I want to try to avoid during my time here in Ottawa.
Incorporation by reference is an effective way to tap the resources of expertise in standards in writing bodies across Canada. Canada has a national standards system that is recognized around the world, and the incorporation of standards, whether developed here in Canada or internationally, allows the best science and the most widely accepted approaches to be used so that people can have a modern and comprehensive approach to the day-to-day use of regulations in Canada.
In fact, reliance on this sort of expertise, whether domestic or international, is essential to ensuring access to the technical knowledge needed for such regulations.
Witnesses from the Standards Council of Canada before the Senate Committee on Legal and Constitutional Affairs were clear in their testimony that Canada already relies extensively on international and national standards. The bill, in many ways, would ensure that regulators continue to have the ability to use incorporation by reference, or the ability to incorporate documents as they are amended from time to time, in our regulations so that Canadians can be assured that they are protected by the most up-to-date technology without the need to amend regulations or to constantly be referring to newer versions.
For these reasons, incorporation by reference is an important tool for regulators when they are designing our regulatory regimes.
The bill before the House today also strikes an important balance in respect of what may be incorporated by reference by limiting the types of documents that can be incorporated by the maker of regulations. Also, only the versions of such documents as they exist on a particular day can be incorporated when they are produced by the regulation maker. This is an important safeguard against circumvention of the regulatory process when incorporating documents that are internal to the government.
In addition to providing an express legal basis for the use of the technique of incorporation by reference, one of the most important aspects of Bill S-2 relates to accessibility. The bill would expressly impose, in legislation, an obligation on all regulators to ensure that the documents they incorporate are accessible. While this has always been something in the common law, and access to justice and common law principles always have applied to our regulatory regime in Canada, the bill would clearly enshrine that obligation in legislation.
There is no doubt that accessibility should be part of the bill. It is essential that documents that are incorporated by reference be accessible to those who are required, by regulation, to comply with those documents. That is an important and necessary step, and that is why it is included in Bill S-2.
The general approach to accessibility found in this bill would provide flexibility to regulatory bodies to take whatever steps might be necessary to ensure that these diverse types of materials, from a wide variety of sources, both domestic and international, could in fact be accessible.
Material that is incorporated by reference is generally accessible, and as a result, in some cases, no further action on the part of a regulatory authority would be necessary. An example of this is provincial legislation across Canada that is already widely and generally accessible. Federal regulations that incorporated provincial legislation would undoubtedly allow the regulator to meet the requirement to ensure that the material was accessible.
Sometimes accessing the document through the standards organization itself might be necessary. The proposed legislation would ensure that the regulated community would have access to whatever material was incorporated, with reasonable effort on their part. In this modern age, so many things are easily accessible by those that are regulated, so this reasonable-effort standard should be very easily met.
The bill, therefore, would create a meaningful obligation on the part of regulators to ensure accessibility while still allowing for innovation, modernity, flexibility, and creativity.
Bill S-2 is intended to solidify the government's access to a regulatory drafting technique, essential and responsive, in our regulations. It also recognizes corresponding obligations regulators must meet when using this tool. This bill strikes an important balance that reflects the reality of modern regulation while ensuring that appropriate protections and accessibility measures are enshrined in law.
This proposal is consistent with the position the government has long taken on the question of whether the technique of incorporation by reference can or cannot be used in regulations. It would provide express legislative authority for the use of this technique in the future and would confirm the validity of existing regulations incorporating documents in a manner that was consistent with that authority.
Parliament's ability to control the delegation of regulatory-making power would continue, as would the oversight of the Standing Joint Committee for the Scrutiny of Regulations. We expect that this standing joint committee would indeed continue to play an important role in ensuring that the use of the technique continued and was exercised in the way Parliament intended.
We have many years of successful experience with the use of incorporation by reference in regulations at the federal level, and this knowledge will be useful in providing guidance with respect to this legislation in the future. There is also every indication that the use of this technique will be essential in implementing regulatory modernization initiatives here in Canada in conjunction with some of our regulatory partners around the world, most notably our partners to the south, in the United States.
We have before us today one of these bills that are essentially the plumbing in our laws and regulations in Canada. The enactment of Bill S-2 would be a logical and necessary next step to ensuring that there is access in a responsible manner to incorporation by reference documentation in a way that is accessible but that allows our regulations to be modern and to incorporate some of the best references from around the world.
I invite members to support this important legislative proposal in Bill S-2 and recognize the important steps it would take to ensure that our laws and regulations are modern, accessible, and the best they can be.
Craig Scott NDP Toronto—Danforth, ON
Mr. Speaker, I would like to thank my colleague for introducing us to the debate. We already looked at this issue some time ago when it was Bill S-12. As at that time, and as I will say in my own speech, one of my concerns is how the general regulatory framework and this bill would deal with open or ambulatory incorporation by reference.
I may not have been listening as carefully as I should have been to my hon. colleague, but I am wondering if he could address the question of open incorporation by reference and whether he feels that the collapse of closed and open incorporation by reference by the bill would be a problem and whether we should have very specific rules for open incorporation by reference.
Erin O'Toole Conservative Durham, ON
Mr. Speaker, my friend may have taught a course on regulatory interpretation while he was at Osgoode Hall. I look forward to his learned remarks on this subject in the House.
The hon. member did reference the ambulatory incorporation by reference. The ability for a government to incorporate documents by reference, and I talked about provincial or international partners' documents, is an important part of the legislative modernization process to allow our regulatory regimes to ensure that they have the most up-to-date technology and references, without the need to constantly amend the regulations and refer to newer regulations.
This is increasingly becoming a standard practice with modern jurisdictions such as Canada. In many ways it is important to note, and in my remarks I also talked about, the accessibility and the reasonable ability for such documents incorporated by reference to be accessible. That is provided for in the bill and has been consistent with the practice of government in the past.
Mike Sullivan NDP York South—Weston, ON
Mr. Speaker, first, I want to thank the government for not bringing forward Bill C-42, which was originally to have been debated. It is a bill to relax gun regulations in this country, and it is an inappropriate week to bring such a bill forward. I am glad we are not debating that.
On this bill, I am the critic for persons with disabilities and the word “accessible” has a particular meaning to persons with disabilities. It means that if someone is blind, it is available in Braille. It means that if someone is partially sighted, the fonts and the contrast online are such that he or she can read it. The term “accessible” has a different meaning.
I wonder if the government could tell us whether or not the word “accessible” includes those meanings.
Erin O'Toole Conservative Durham, ON
Mr. Speaker, I would like to thank the member for his question and for his work with people with disabilities across our country.
In many ways what I talked about in my remarks, the accessibility and the fact that documents incorporated by reference must be accessible using reasonable efforts, is a standard that would be, as my friend would know, quite similar to the legal standard for accommodation of people with disabilities. Reasonable methods of accommodation for people with different ranges of abilities must be provided. That is the legal standard across the country.
We are talking about a regulatory incorporation of documents by reference. It certainly does not confront folks with a disability on a day-to-day basis, such as a lot of basic accessibility issues would. However, it would have a reasonably close standard, where documents incorporated by reference would need to be accessible with reasonable effort to the folks impacted by the regulations. That is the right balance.
Incorporation by Reference in Regulations ActGovernment Orders
Okanagan—Coquihalla B.C.
Conservative
Dan Albas ConservativeParliamentary Secretary to the President of the Treasury Board
Mr. Speaker, today I would like to speak to members about an important aspect of Bill S-2, the incorporation by reference in regulations act.
I would first like to thank the Parliamentary Secretary to the Minister of International Trade for describing me as passionate about regulatory burdens on our small businesses. I take great relish in discussing these issues because ultimately our government is pursuing growth. It is looking to increase jobs, growth and long-term prosperity for Canada. Part of that does fall on issues such as the regulatory burden.
In particular, I would like to address how incorporation by reference in regulations can assist regulators in designing regulatory schemes that ensure access to the expertise of the leading standards development bodies in Canada and all across the world.
As we know, Bill S-2 would amend the Statutory Instruments Act to make it clear in law when the drafting technique of incorporation by reference can be used in federal regulation. Incorporation by reference allows material to be referenced and then incorporated into the regulation without reproducing the same material.
We have heard today that there are two different sorts of incorporation by reference. One is called open or ambulatory and the other is called closed or static. When incorporation by reference is ambulatory, the reference material forms part of the regulation as it is amended from time to time. When this material is incorporated on a static basis, then only the version as it exists on that particular day is incorporated, unless the regulation is amended.
I would like to take a step back because we have heard some opposition members raise concerns about when open or ambulatory or when closed or static would be used. Bill S-2 applies a whole-of-government approach to when open or closed would be used. Therefore, it would bring more clarity to those of us here in this place as to when the government would use one or the other and sets out the conditions of that.
This drafting technique offers many different advantages. For example, it reduces needless duplication or repetition of material such as provincial legislation when the federal and provincial legislative regimes need to be harmonized. Incorporation by reference can be an effective way to collaborate with other jurisdictions.
The particular advantage I would like to draw the attention of the House to today is that the drafting technique is an effective tool to allow government to access the vast expertise developed in Canada and around the world in a multitude of areas that affect our economy and our daily lives.
When Parliament confers the power to make regulations, parliamentarians expect that the regulator will have the capacity to respond to diverse, complex and evolving challenges in areas where regulations have been developed. Consider the complexity of the areas in which regulations must now be developed. A few examples are electric vehicles, cloud computing, leading-edge medical devices and nanotechnology. Federal regulators must be able to respond in an effective and efficient way to meet the demands of regulating these complex innovations and sectors.
Access to the technique of incorporation by reference is one way to respond quickly and effectively to constantly evolving areas. By enacting this legislation Parliament would provide regulators with an express legal foundation, allowing them to incorporate by reference national and international standards that are developed by expert bodies. While these standards are only one of the types of documents that would be authorized for incorporation by reference by this legal proposal, they merit some special attention.
There are many standards that are already incorporated by reference in the federal regulations, including standards written by the International Organization for Standardization and other well-recognized international standards organizations. A recent review of existing references in federal regulations revealed almost 400 references to these standards established by these expert bodies.
I am proud to say that Canada is one of the countries that is at the forefront of standards development. There are hundreds of standards developed in Canada as part of the national standards system in Canada and then incorporated into federal and provincial regulations, such as standards developed by organizations such as the Canadian General Standards Board, and that which is most likely the most recognized name, the Canadian Standards Association Group.
Standards developed by these organizations have already become key to the way that sectors are regulated in Canada. There are over 275 different standards produced by the Canadian Standards Association alone that are referenced in federal regulations. Added together, there are already more than 800 references in federal regulations to various types of standards, both internationally developed and developed as part of our national standards system. These are important components that help assist Canadian businesses and Canadians in how they conduct their daily business.
This legislation seeks to confirm that regulators can continue to rely on the standards in implementing their regulatory initiatives in an effective manner by allowing ambulatory incorporation by reference of such documents.
The incorporation of standards by reference allows the government to draw on the national and international expertise. It allows government to effectively rely on the work being done by external expert bodies, to which the government has often contributed based on its own expertise. In many cases effective, responsive regulation demands that when changes are made to these standards, regulators must respond immediately. Ambulatory incorporation by reference is the most effective way to achieve this.
When a standard is incorporated in the regulation on an ambulatory basis, it means that when a standard body updates a standard to respond to a new technology, new approaches or new innovations in the area, the changes are automatically made to the standard and are automatically incorporated into the regulation. The regulatory text does not have to be amended.
We have one of the best regulatory systems. It is very stable. It involves regulatory impact assessment statements justifying in common language why a regulation needs to be put in place. It includes open comment by the public in almost all but emergency situations. Then a second part of it is that the government will come back and say what it heard and its reasons for moving forward with the regulation. I am very proud to stand here as a parliamentarian and talk about our regulatory regime. However, it does take time for these processes to take place.
Why is it essential to incorporate by reference standards as they are amended from time to time? I would just give these three good reasons: expertise, responsiveness, and of course efficiency. First, the ability to adopt standards as part of federal regulations when it is appropriate allows the government to access technical expertise right across Canada and right around the world. Second, the ambulatory incorporation of these standards ensures that when changes are made by these expert bodies, federal regulators are immediately responsive through the ambulatory process. That is a significant advantage that I do not think we can overlook. Third, reliance on standards development organizations of this nature allows for the efficient use of government resources. It would neither be expected nor efficient for the government to attempt to develop and house the wide range of expertise found in these committees that develop standards here in Canada and right across the world.
To conclude, enactment of this legislation is a necessary next step to securing access to valuable technical expertise developed here in Canada and around the world. I invite members to support this legislative proposal, because at the end of the day, we need to make sure we have an efficient, very effective way of ensuring whatever laws we pass in this place are done in such a way that the people we are working for, everyday Canadians, whether in their business or their homes, can know that the Canadian government is providing what Parliament has intended. Part of that is making sure we have a responsive regulatory regime.
Craig Scott NDP Toronto—Danforth, ON
Mr. Speaker, I must say on behalf of everyone in the chamber that you are doing a fine job this morning.
The parliamentary secretary for international trade reported correctly that the Senate Standing Committee on Legal and Constitutional Affairs reported this bill back without amendment. However, there is something it did add in its very short report. It said:
Some witnesses who were supportive of Bill S-12—
This was the previous version.
—nonetheless expressed a desire for greater certainty about how the bill would be implemented. The committee encourages the government to develop guidelines with respect to the use of incorporation by reference.
These guidelines are not specifically required by Bill S-2. I would like to ask the hon. member if he is aware or whether he would otherwise support the government in developing such guidelines and publishing those.
Incorporation by Reference in Regulations ActGovernment Orders
October 24th, 2014 / 10:30 a.m.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Mr. Speaker, Bill S-2 does lay out a regime of when open or ambulatory incorporation by reference is appropriate, and when closed or static incorporation by reference is to be the case. This would allow all of us here to have a better understanding of when this drafting technique is used.
I have to go back to that. This legislation would empower Parliament, by giving order to the way these things are done. Currently there is no provision for that, and it can create confusion. Let us be fair. One of the things we need to do when we are regulating is to create a sense of order. Bill S-2 would do that, and it would give parliamentarians additional tools to make abundantly clear which standards are ambulatory and which ones are closed.
Craig Scott NDP Toronto—Danforth, ON
Mr. Speaker, I would also like to ask my colleague if he is aware that in the Senate the bill, both in its form as Bill S-12 and in its current form as Bill S-2, has come to us each time without specific amendments. That would leave a false impression about the extent of the debate that went on in the Senate where the bill originated. There was extensive debate about some of the problems with the bill, and a lot of witnesses at the Senate committee said there were problems. That did not lead to amendments or even suggested amendments beyond the guideline suggestion that I referred to earlier.
I am looking for some assurance from the government side that when the bill does go to committee in the House, that the kinds of concerns that were expressed in the Senate, and that we will hear today, will be taken seriously because of the fundamental nature of the regulatory system for our democracy.
Dan Albas Conservative Okanagan—Coquihalla, BC
Mr. Speaker, obviously that is why we have two Chambers. Bicameralism allows us to go through each bill to see what the other House has made as far as suggestions or amendments, and to see if they are appropriate. It helps to move a much more learned debate.
I look forward to seeing this legislation go to committee, and I also look forward to that member bringing forward specific concerns. I would point out that with over 800 existing incorporation by reference, which may or may not follow some of the guidelines laid out in Bill S-2, there may be issues with that just because of the wide variety of issues. With this legislation, we are trying to codify and empower the House and the Senate with guidelines on how incorporation by reference should be used as a drafting technique to benefit Canadians.
I look forward to that member bringing forward some specific concerns at committee so we can have a thorough debate of Bill S-2's incorporation by reference.
Craig Scott NDP Toronto—Danforth, ON
Mr. Speaker, I am very glad to be continuing the discussion on Bill S-2.
I would also like to thank the government for today's proceedings. If I have interpreted this correctly, we might have been hearing debate on Bill C-41, the South Korea trade agreement, which would have been at report stage, and it was known that a member of the House, the member for Saanich—Gulf Islands, as an independent, wanted to move some report stage amendments. It strikes me that the reason we are not debating Bill C-41 is to give this member the chance to move those amendments later. If that is the rationale for the government changing the orders of the day, I would like to thank it for that act of collegiality.
We have been hearing from both the Parliamentary Secretary to the Minister of International Trade and the last speaker, though they did not themselves use these words, that this piece of legislation is a form of house cleaning for the essential plumbing of the legislative and regulatory system, by virtue of making it somewhat clearer, or at least putting down rules, about how incorporation by reference occurs. Of course, incorporation by reference, for those tuning in to these proceedings for the first time, refers to a drafting technique whereby a legislative text or regulatory text includes external material. That is material that has been expressed elsewhere and is referred to in a general way, but all of its specificities are thereby understood to be incorporated despite not being enumerated specifically in the regulation or the legislative provision.
One might refer to an annex to an international treaty, which may be 10 pages or 100 pages. Rather than rewriting that annex, it is referred to and is understood that all of the text in that annex is thereby incorporated into the legislative provision or regulation that makes reference to it. That is incorporation by reference.
It is important to note that the sources that one can refer to and then incorporate by reference do not appear to be limited by this bill, and generally in practice they are not. They can include provisions from the very same text later in the text, provisions from another legislative text from the same jurisdiction, legislative text of another jurisdiction, which could include the provinces, for example, or a territorial government. It could even include a foreign jurisdiction. We could refer to some text in the United Kingdom's legal system that would be viewed as incorporated by reference. It could also include international agreements, technical standards produced by private associations, and technical standards produced by mixed bodies. In an increasingly transnational world, we have standards bodies that involve actors that are quite often both public and private, meeting well outside the shores of Canada, and that come up with standards that we in turn could incorporate into our legal system.
There are two kinds of incorporation by reference. Closed incorporation by reference means that when we incorporate something by reference we are only incorporating the text as it stood at the time of incorporation. If that text later changes, those changes are not thereby incorporated.
On the other hand, open, ambulatory, or dynamic incorporation by reference means that we first start by incorporating the text; however, if that text changes later at the hands of the other body, the external source of that text, those new changes enter into the law as changes for the law. To be clear, subsequent amendments to the incorporated text would be automatically incorporated if we are using open or ambulatory incorporation. Often that is signalled in our laws by language that references a text, such as, an annex to an international treaty as it may be amended from time to time. This is often the way to signal that.
There are clear advantages to this. Nobody in the House is saying that what the government is trying to do makes no sense. It certainly makes a lot of sense. It prevents duplication of text so that we do not have to reproduce large amounts of material throughout the entire range of laws. It promotes harmonization and consistency of standards. That is increasingly important, not just for federal-provincial relations where there is always an attempt to coordinate laws in the similar area, but also with respect to transnational harmonization.
All of that also leads to a third benefit, which is efficiency. It is simply a more efficient and effective way for government to legislate and regulate, and it is also efficient for certain sectors that rely on regulations in particular to know what conduct is permitted or required. In a lot of business sectors there are reams of regulatory specialists who need to have an efficient framework within which to work. The bill will probably help with respect to that.
Now I would like to turn to the potential disadvantages. First, with any form of incorporation by reference, there are always multiple sources to consult. We think we can read in the document what we are required to do, and suddenly we are sent somewhere else and we have to find that other source.
There may also be access problems, in the sense of copyright, such that sometimes, if care is not taken, the text referred to that is external to the regulation or the legislative provision is not easily accessible. It may be behind some kind of firewall, or it may have copyright provisions, which means that it cannot be taken and uploaded for everyone else to see so that everyone is on the same page.
The third disadvantage is that there are issues in our federation of this being coordinated with the availability of the externally referenced document in both official languages. There is enough evidence to suggest that this does not always occur.
I would now like to move on to the possible disadvantages with ambulatory or open incorporation by reference. The first one is there being no accessibility. Accessibility, as stated in Bill S-2, is part of the technique of regulating by incorporation by reference, but it is not made clear in Bill S-2 exactly how that would occur.
When we have open incorporation by reference, without constant monitoring of the external body that may be amending its own documents, which then automatically get amended by our law because the incorporation by reference is open, there could be a serious accessibility problem. People would not know that the standards have shifted. They cannot rely on knowing what the standard was when the regulation was adopted because incorporation by reference was not static; it was open.
Second, there is a large issue called subdelegation. Quite apart from accessibility, there is the issue around accessibility of changes as they occur from time to time at the hands of external actors, the rule against subdelegation—I would not even call it a constitutional or administrative law of principle, but a good governance democratic principle. The giving over of the power to external bodies to change the law adopted by Parliament is one thing, but the regulations that are then adopted pursuant to an act of Parliament, the giving over of that power to external bodies, raise fundamental principles of accountability.
It is important to know that the joint committee of the two Houses on scrutiny of regulation has for some time made clear that it views open incorporation by reference as creating a problem of subdelegation involving a very particular problem of accountability in that Parliament itself cannot make sure that when incorporation by reference takes place, which can change from time to time, there is scrutiny and accountability for those changes.
I will quote from our joint committee report, and I believe this quote is from 2007.
It has always been the view of the Joint Committee that the incorporation by reference of external material into regulations “as amended from time to time” amounts to a subdelegation of regulation-making power, in that it will be the body amending the incorporated material, and not the authority on whom the power to make the regulations has been conferred, who will determine the content of the regulations.
On this point, it is extremely important to note why there would be a concern with subdelegation. It is not simply a matter of pointing out that it is subdelegation. It is saying that incorporation by reference would allow one to refer to an external body's set of rules, which we could cope with if it is static, because at the time of the adoption of the regulation we would know what we were incorporating and those regulations would be scrutinized by the joint committee on scrutiny of regulations as they stood at the time of the incorporation. However, the moment we have open incorporation by reference, the subsequent changes never come back before the joint committee on scrutiny of regulations. They are automatically brought into the law. Also, there is nothing in this, that I can tell, that actually deals with this very particular problem of accountability.
Imagine all of the private sector actors—standards councils, for example, transnational bodies from the banking sector, consumer safety—that produce standards that can indeed change from time to time, and suddenly, by virtue of an open incorporation by reference, they become part of the law. They produce accessibility problems for industrial sector actors to know that the content has changed, but most importantly, they produce accountability problems in so far as Parliament itself never actually gets to deal with the changes unless somehow we were to create new mechanisms for that. I do not believe, unless I have misread Bill S-2, that the bill would do that.
The parliamentary oversight issue is really important when we know that the practice we follow, and which would be in some sense codified by the proposed legislation, is not invariably the practice of other jurisdictions to which we would look to see whether or not we could learn from them. Jurisdictions like Ontario or Manitoba here in Canada, and places like Australia and New Zealand, which tend to often be ahead of us when it comes to parliamentary governance reform, have laws that limit the use of open incorporation to specified instances determined on a case-by-case basis, and so there is an awareness that there needs to be a more constraining framework for open incorporation by reference in those jurisdictions. However, that awareness does not seem to be present with respect to the government's approach through Bill S-2. Indeed, Bill S-2 would collapse open and ambulatory incorporation by reference in the sense of making almost no distinctions between the two, in any place, as far as I can tell.
Finally, I think it is important to return to a point that I made in the question and comments session after the last speaker, which is to note that there was extensive Senate debate. There were concerns expressed, not dissimilar to the concerns I have been expressing, and in the report of the Senate Standing Committee on Legal and Constitutional Affairs on Bill S-2—although it was obviously determined by the majority, which I assume were Conservative senators, to not put forward any amendments—there was a signal sent, and it was the following:
Some witnesses who were supportive of Bill S-12 nonetheless expressed a desire for greater certainty about how the bill would be implemented. The committee encourages the government to develop guidelines with respect to the use of incorporation by reference.
Now that is a mild recommendation, but to me it is also minimal. I think the government is honour bound to come up with those regulations if it insists that, by the end of this process in the House of Commons, it is not going to build in legislative safeguards that take into account the problems I have been addressing.
At minimum, we need guidelines so we have an extra level of understanding about when the government would be using open incorporation by reference. Beyond that, we need guidelines that make very clear what the government understands by “accessibility” of external documents because that itself is not defined in Bill S-2.
We had a good question from my colleague from York South—Weston, who asked about questions of accessibility for the disabled. There is language accessibility, there are questions of copyright, and there is the fundamental question of whether the government should not have a duty to have a central repository, in this Internet age, of all externally referenced documents. There would be no problem at all to create a central government site where every externally referenced document would be hyperlinked, with a reference to where it also appears in our regulations or our legislation, and the hyperlink would be constantly checked by a team of civil servants to ensure that it is live and that the newly updated externally incorporated texts are the ones being linked to.
At minimum, I would suggest that the government consider something like that, which would at least be consistent with what the Conservatives are seeking to do with this bill, by having a lean bill that is not too prescriptive. I would prefer a bill that is more prescriptive, but at minimum I would ask them to please take into account what amounts to a recommendation from the Senate Standing Committee on Legal and Constitutional Affairs to develop such guidelines, and along with those guidelines develop a practice of a central Internet portal, such as I suggested.
I would like to now return to my own remarks from February 2013. As I have already indicated, this bill essentially was before us before the last prorogation. In February 2013, I had the privilege to speak to it. I would also refer anybody interested in following this particular debate to ensure they read the speeches at that time by the members for Gatineau and Hamilton Mountain, both of whom gave extraordinarily insightful speeches about some of the problems with this bill.
Here are some of the central points I made, and I am treading on some ground I have already covered, but at that time I may have put it even better and I would like to summarize.
The government essentially would have us believe that Bill S-2, which was Bill S-12, is essentially technical or housekeeping, albeit important. In part, the Conservatives do that by suggesting it simplify codifies existing practices of how regulations are drafted to incorporate by reference, and all this is doing is making that clearer in a statutory framework, so there is a rule-of-law goal accomplished.
Although at the time journalists began to talk about this as just a routine bill, I do not know if any journalists are paying any attention to the fact that the bill is now back in another form. However, the fact of the matter is that Bill S-2 is anything but innocuous.
In my capacity not only as a former professor of law but also as the official opposition critic for democratic and parliamentary reform, I believe that this bill could end up being an anti-democratic reform. It could be a step backward for accountable government. Essentially, it would give carte blanche to the executive branch to use incorporation by reference of an open sort with very few, if any, serious constraints.
Regulations can change over time when external bodies that have no accountability relationship to Parliament decide on their own to revise those documents. They have automatically become the law with no further action required from the Canadian state, let alone from Parliament; and the Standing Joint Committee for the Scrutiny of Regulations—a committee of both the Senate and the House of Commons—would never see these ambulatory changes. When changes come in externally, once the regulation that incorporates the external document has been incorporated and that external document becomes updated, the joint committee never sees it.
That is a huge accountability problem, especially when we know that one of the functions of the joint committee on the scrutiny of regulations is charter compliance scrutiny. It is not at all difficult to imagine how, in some sectors, an external body having no responsibility to think about our constitutional framework could come out with changes that, if automatically incorporated by reference, could actually cause problems for our conformity with our charter.
The point of the matter is that I am not saying this would happen in most cases. For the most part, the harmonization function of what is being codified here will prevail, but there are fundamental accountability issues, and there are imaginable cases when escaping from accountability of Parliament actually will result in a setback for democracy.
Incorporation by Reference in Regulations ActGovernment Orders
Okanagan—Coquihalla B.C.
Conservative
Dan Albas ConservativeParliamentary Secretary to the President of the Treasury Board
Mr. Speaker, I am very pleased to debate this bill with the hon. member today.
I actually find it slightly ironic, so I will give a comment and then a question. The member and his party are relying on arguments based on debates in the Senate. They do not support bicameralism. They do not support the Senate. I find it ironic for them to lead with their very vague concerns.
I would like to go back to the issue of accessibility. I would like to inform the member that all Government of Canada regulations are published in both English and French. They are all available online. I have a constituent who is blind, Mr. Ken Westlake. He actually applauds the government for making the website so accessible that he can use low- or no-cost software to go through whatever government documents are there. We should celebrate that in this House.
I have a question for the member. Many of the standards he speaks of are highly technical; for example, electrical codes. I would say that he is a very learned member. I would say that he is very intelligent. However, if I were to present to him a technical manual of such length and detail, the question of accessibility is that only people who are fully trained and versed in that particular narrow technical field could understand it.
I would ask the member for his comments on accessibility at that stage.
Craig Scott NDP Toronto—Danforth, ON
Mr. Speaker, nothing changes about my remarks on accessibility. I am perfectly content to congratulate the government for having increased accessibility of legislative provisions and regulations, if that is in fact the case.
However, that is beside the point. The point is the accessibility of the external documents. That is a matter of whether or not they can be accessed in both official languages, and for the example of Mr. Westlake, if he happens to be an electrical engineer, whether or not they are accessible to him as well.
We are maybe two ships passing in the night on this. The accessibility has to do with the external documents and not with the regulations themselves or with the legislative provisions.
The Speaker Conservative Andrew Scheer
There will be some time left for questions and comments after question period, but for now we will move on.
Deepak Obhrai Conservative Calgary East, AB
Mr. Speaker, yesterday people across the world celebrated the festival of lights popularly known as Diwali.
Diwali symbolizes the victory of light over darkness. As the Prime Minister said at the 14th National Diwali celebration in Toronto on November 1, many places in the world face darkness, and that is precisely why we need to celebrate Diwali: because Diwali reminds us that light always casts out darkness, that truth always dispels ignorance and fear.
In front of over 1,000 people and organized by temples across the GTA, at this year's 14th National Diwali Celebration the Prime Minister and the guests lighted the diya to symbolize light over darkness.
On Wednesday, for a brief period, darkness descended on the capital and Parliament. Through the collective role of Canadians, the light is shining again.
Our thoughts and prayers are with the family and friends of Corporal Nathan Cirillo and Warrant Office Patrice Vincent.
I wish everyone happy Diwali.