Mr. Speaker, I am happy to begin by letting the House know that I will be splitting my time this afternoon with the member for Toronto—Danforth.
I rise today to speak on Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.
As I said earlier, at this point people who are watching this debate on television are probably shaking their heads and wondering why we are not debating the important issues, like job creation, EI, health care, climate change or the growing income inequality in Canada. Those are the issues grabbing headlines these days, and I might add rightfully so.
There is also a sub-theme to much of the recent media coverage, which focuses on this Prime Minister's repeated thwarting of the democratic process and the threat this represents to the institution of Parliament. Bill S-12 adds fuel to that fire. As dry as the title might seem, this bill will legitimize the ability of governments to do things by regulation without the express authorization of Parliament. Without being overly dramatic, this bill will undermine democratic values and risk turning law-abiding citizens into criminals.
Let me go back to try to explain the genesis of this bill. At issue is the proper process for creating rules of law through regulations. Regulations are a delegated form of law-making that is derived from and authorized by Parliament's ultimate legislative authority. As a result, it is particularly important that regulations are written and communicated in such a way that members of the public clearly know their rights and obligations. To that end, regulations must go through a legal examination, be registered, get published in the Gazette and are then referred to the Standing Joint Committee for the Scrutiny of Regulations for parliamentary oversight.
At times, other documents are referenced into regulations simply by naming them. The legal effect is the same as repeating the material word for word in the regulation. When the material that is being incorporated is static, such incorporations by reference do not pose a problem because the regulation has gone through the proper approval procedures. It becomes tricky when that incorporated material changes. For example, the document could contain a provision that allows it to be amended from time to time. In essence, then, future changes automatically become part of the regulation without any oversight.
Such incorporations by reference are called ambulatory or open incorporations by reference because their content is not static. It is this type of regulation making that poses the legal conundrum. Is it appropriate to allow rules to be imposed without those rules having gone through the proper regulatory process?
Given the proliferation of regulations in recent years, this is more than a theoretical question. There are, at the federal level alone, approximately 3,000 regulations comprising over 30,000 pages. That compares with some 450 statutes comprising about 13,000 pages. On top of that, departments and agencies submit to the regulations section, on average, about 1,000 draft regulations each and every year; whereas Parliament enacts about 80 bills during the same period. Regulations, therefore, play a major role in setting the rules of law that apply to Canadian citizens.
Canadians must be able to have confidence that the regulations that govern them have been duly authorized by Parliament. For that reason, the Standing Joint Committee for the Scrutiny of Regulations adopted a unanimous report in 2007 that called on the government to stop using unauthorized open incorporation by reference without the permission of Parliament.
The position of the joint committee was, and is, that absent an express grant of authority or a clear indication to the contrary in the enabling statute, the incorporation by reference of external material is proper only where a fixed text is incorporated, as opposed to a text that is amended from time to time. In fact, the use of incorporation by reference as amended from time to time has been deemed improper and illegal because it is a regulation without the express authorization of Parliament. The government knows that.
In the other place, Conservative Linda Frum noted in her speech on this bill that “Incorporation by reference is a widely used drafting technique currently, but this bill would legitimize it...”. Those are important words: “this bill would legitimize it”. With those five words she is confirming that the government knows it has been acting illegally every time it used the technique without explicit parliamentary authorization. Let us not kid ourselves; it did not just happen once or twice.
The Conservatives have used ambulatory incorporation by reference 170 times since 2006. Bill S-12 is essentially designed to give the government legal cover after the fact for its prior and ongoing illegal activities. Put differently and more specifically, proposed section 18.7 would retroactively validate a large number of provisions that were made without lawful authority.
This goes to the very heart of Parliament's authority to delegate its power and choose who can make rules on its behalf. It is mind-boggling that any MP would not be troubled by that prospect. However, party discipline, as enforced by the executive branch in this House, will almost certainly ensure the bill will pass unamended.
Apart from the concerns of allocation of power posed by the open incorporation by reference, I will now turn to the question of accessibility. If ignorance of the law is no excuse, then the law must be available. The problem with incorporations by reference is that the text of the incorporated material is not found in the regulation itself.
Where do Canadians turn to find out about their rights and obligations? The material that is being referenced may be obscure or hard to find. If it involves standards developed by private organizations, there may even be a charge for accessing the material. Nowhere does the bill suggest that departments have to make the material available, nor do they even have to provide information as to where that material might be. When the incorporated material can be amended from time to time, how can citizens know that a change has come into effect? Will past versions of the text always be available? Finally, what happens when the material being incorporated is a law, standard, or agreement from another jurisdiction that may not be bilingual? Would this be a way for the government to circumvent our Official Languages Act?
Proposed subsection 18.3(1) of the bill states, “The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible”. However, what exactly does “accessible” mean? Will it be equally accessible for aboriginal or rural Canadians? Will people have to travel in order to obtain the text, or will the text only be available on the Internet? Would that satisfy the definition of “accessibility”?
Given all of these questions, it would seem likely that it would be left to the courts to define “accessible” in terms of incorporated materials. However, should the onus not be on us as legislators to provide that clarity? I simply do not believe that citizens should have to go to the time and expense of judicial proceedings to determine their rights and obligations. Surely we can, and must, provide that clarity in this House.
At this point, I do not think we need to throw out the baby with the bathwater. I do indeed have serious concerns about Bill S-12, and I have expressed many of them in the brief time afforded to me here today. However, as co-chair of the Standing Joint Committee for the Scrutiny of Regulations, I know that many of the issues I have raised today are concerns shared by members from all sides of the House and we could bring these perspectives to bear by studying the bill at greater length in committee.
The principle of the sub-delegation of power will be of concern to all of my elected colleagues. As parliamentarians, it fundamentally impacts our role and authority. Similarly, issues of accessibility are critical to the interests of our constituents whom we are here to represent. Given the sheer volume of regulations that are submitted each year, it is essential that we maintain the integrity of the regulatory process.
If we can find common cause on each of these three broad-brush issues, I am confident we can amend Bill S-12 to make it palatable to all parliamentarians. If not, I will have to vote against the bill when it comes back to this House for its third and final reading. Until then, however, I will remain hopeful and optimistic.
