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 such as 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.
