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Crucial Fact

  • Her favourite word was conservatives.

Last in Parliament October 2015, as NDP MP for La Pointe-de-l'Île (Québec)

Lost her last election, in 2015, with 27% of the vote.

Statements in the House

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, it is very useful to have a truly concrete example of the kind of regulations that would be affected by this. The Conservatives talk to us about free trade and international trade agreements, but it is useful to see, for example, that there are regulations that apply to the manufacture of hockey helmets, just as there are for health and the environment.

In speaking about accessibility, he said it would be a shame if regulations were less accessible. The problem is that a company that did not comply with the regulations might use the flaws in this bill to say that they were not accessible and it could not be convicted of failing to comply with the regulations. We might then see that when a company violated the regulations about manufacturing hockey helmets, it might not be possible to convict and punish it if it made use of the flaws in the bill.

What does my colleague from Chambly—Borduas think about that possibility?

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, I hope the hon. parliamentary secretary is going to provide me and the House with the quotations from my colleagues. I think he is claiming to have heard some of my colleagues objecting to the publication of certain regulations in the Canada Gazette. I hope he will be able to provide us with the definite sources. He should not claim, in the House, to have heard certain statements if he cannot solidly prove it and give us the source.

On that point, I would appreciate his comments concerning the letter that the Standing Joint Committee for the Scrutiny of Regulations wrote and signed and the report of that committee, which argued that open incorporation by reference of foreign legislation should generally not be permitted. The committee members explained that it is difficult to access such laws, that it is unlikely that they would be enacted in both official languages of Canada, and, unfortunately, that this approach would not allow Parliament and parliamentarians, or committees, to examine the legislation.

I would like him to tell me about that letter and the concerns that his committee raised with the minister, and tell me what he thinks about this today.

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, I would like to ask my colleague a question, specifically regarding four amendments that I presented in committee, which were all rejected by the government.

One of the things I included was a definition of accessibility. Under my amendment, any incorporation by reference that requires fees could not be deemed accessible.

I would like him to explain whether he believes that it would be appropriate to charge fees for access to a legislative measure or he believes that access should be free. Furthermore, how would he define accessibility in the context of Bill S-2?

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, 50 seconds is not enough time to answer the question, but I will do my best.

The problem here is that anything that has been incorporated by reference in the past, before the passage of Bill S-2, does not have to be published in the Canada Gazette. Those regulations will not be forwarded to be registered and will not necessarily be examined by Parliament.

Accordingly, even if changes have already been made to a regulation through incorporation by reference, passing Bill S-2 will not solve that problem. It will only make matters worse. It will be impossible for us to look at everything that was done in the past. Bill S-2 will not solve the problem that, in the past, that was illegal.

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, to answer the member’s question, I refer to section 18.4 in the bill. The exact wording is as follows:

For greater certainty, 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 by reason only that it is incorporated by reference.

This makes it clear in the law that the incorporation by reference of regulations, either those from other countries or other jurisdictions, will ensure that they will not have to be published. They will not even have to be transmitted for registration. This means that, at that time, the regulation-making authority will not even have to transmit for registration the incorporations that it makes. This is a huge problem.

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, I appreciate my colleagues's deep knowledge, as a lawyer, on this kind of legislation. She knows the implications of what a bill like this could have on Canadian legislation.

I will go on to say that, unfortunately, if the government’s only excuse is that this has already been done in the past, that this has always been done and that, today, we must legalize everything that was done before without it being authorized by law, this clearly shows just how little concern the Conservatives have about creating a whole incorporation by reference system that would not be subject to scrutiny by officials or by Parliament. The way they see it, if something has been done since time immemorial and was not legal, then today it is all right to pass a bill that would legalize everything that was done in the past.

This is not how Canadians want their country to be governed. We need to make regulations that are legal and authorized by law. Today, what the Conservatives are telling us is that they have done this for years and we just need to pass a bill today to authorize them to act in that manner. I do not think this is a good reason to allow the creation of a whole parallel system for scrutinizing regulations just because there are things that have already been done in the past.

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, every time I stand in the House and raise concerns, the only criticism my colleagues from the Conservative Party have against me is that I do not make sense. I do not know if that is unparliamentary, but those criticisms were not only raised by myself, but were raised by the parliamentary committee on regulations and by the Senate committee on regulations.

If the hon. member really thought I did not make sense, then he probably thinks the parliamentary committee on regulations and the Senate do not make sense, with which I totally agree. My speech was only based on the report from the hon. member's committee and the Senate. There are deep concerns that we let go of our privilege of studying law just because the Conservatives want to adopt Bill S-2, which is ridiculously large to implement right now, and it would ignore the study of regulations by the people who are elected by Canadians to study law.

If the hon. member thinks this does not make sense, then it is time for the government to go.

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, I am very pleased to speak to this extremely problematic bill. I will provide more details in my speech.

This bill stems from the tabling of the 80th report of the Standing Joint Committee on Scrutiny of Regulations in December 2007. The committee found that:

...the incorporation by reference of external material into regulations “as amended from time to time” should, in the absence of clear authority, be seen to be [inappropriate and] illegal.

In fact, the parliamentary secretary just confirmed that incorporation by reference is a long-standing practice in the departments. However, we have a report here that says that without a clear law to that effect, these incorporations should be considered inappropriate and illegal. I will read the last clause of the bill:

18.7 The validity of an incorporation by reference that conforms with section 18.1 and that was made before the day on which that section comes into force is confirmed.

I will explain to those watching today—I know many people are—what this government has just done and what the parliamentary secretary has just confirmed to us. The parliamentary secretary just acknowledged that incorporation by reference is currently illegal, but now he is making it legal. Material was incorporated by reference without enabling power and without enabling legislation, which means that, unfortunately, we could have hundreds of thousands of incorporations by reference. I do not know exactly how many. Thousands of incorporations by reference may have been done without legislative authority. That is a problem.

One has to wonder what the purpose of such a bill is. We know that the Conservatives' budget contained a small provision—hidden in a large budget that is hundreds of pages long—that legalized an illegal act committed by the RCMP. Here, the Conservatives are legalizing incorporations by reference that the Standing Joint Committee on Scrutiny of Regulations would consider inappropriate and unlawful. I have here the findings of the report. The first thing that came to mind was the following question: how can we really vote for a bill that would make retroactive amendments to allow actions that were not allowed before Bill S-2 was passed? I would like to remind members that this bill has not yet passed. In accordance with this bill, incorporation by reference is unlawful and inappropriate right now. I would simply like to put that out there, and members will have to decide whether it is acceptable or not. However, in my opinion and in the opinion of the NDP, this sort of retroactive amendment cannot be allowed without a law that allows regulations to be incorporated by reference.

That is some of the background behind Bill S-2. The government said that there was a problem because it did not have regulatory power so it was going to pass a law that would give it this regulatory power to incorporate regulations by reference.

In his speech, the Parliamentary Secretary to the Minister of Justice said that this bill gives guidance and direction with regard to the various incorporation by reference mechanisms. I would like to remind him that I asked this question to a number of witnesses who appeared before the the Standing Committee on Justice and Human Rights.

These witnesses clearly told me that the bill unfortunately did not address their concerns and that it did not create rules and guidelines for making regulations and incorporations by reference. I have the minutes of the meeting. The witnesses clearly told me that Treasury Board and the government must adopt directives and guidelines as quickly as possible for making regulations and for incorporations by reference. There are currently none, and Bill S-2 does not change that. All it does is grant the general authority to make regulations by reference. It does not include directives or guidelines.

I will give a very quick overview of incorporation by reference. It is a technique for drafting laws or regulations that refer to another piece of legislation, in order to avoid having to recopy everything in the bills. I will concede that we save a lot of paper by doing this. This technique is used to incorporate legislative texts, for example, regulations, rates, texts from other jurisdictions—provincial or federal—or other legislative texts from other governments, meaning other states.

There are two types of incorporation by reference. There is static incorporation, which means that when a reference is made to a regulation, the reference is made to the regulation as it exists at the time the legislation is passed, without any amendments that are made in the future.

There is also dynamic, or open, incorporation, which automatically incorporates changes to other incorporated regulations. This means that if we incorporate regulations from another country, like the United States—the Parliamentary Secretary to the Minister of Justice mentioned international trade—and that country amends its regulations, ours will also be changed. Governments change and we have no way of knowing what kind of amendments a new government might make, but these amendments will automatically be made to Canadian laws.

This means that these amendments will never be reviewed by parliamentarians. That is a problem. Canadians, who are supposed to know the law, and parliamentarians, who are supposed to study it, will not be able to do so. They will not necessarily be aware of all of the changes made to the hundreds of thousands of regulations pertaining to legislation in other countries. In addition, incorporations by reference will not even have to be published in the Canada Gazette.

That is a big problem because all of the government's regulations must be published in the Canada Gazette before coming into effect, to prevent abuses. The problem is that clause 18.4 states that the requirements in the Statutory Instruments Act for registration and publication of regulations do not apply to documents incorporated by reference. That means they do not have to be published in the Canada Gazette. The government is creating an exception. Usually, as I said, all laws and regulations have to be published in the Canada Gazette. However, clause 18.4 confirms that documents incorporated by reference will not have to be published.

There is a double standard here. I can imagine what the Conservatives are thinking. They will say that this has already been published, but that is not the problem. Perhaps it has already been published as it stands, but it did not say that it would apply to another law or another regulation. The problem is not that the regulations have already been published. What matters is knowing that the application of the regulation to another regulation will never be published. How, then, is anyone supposed to know what anything applies to, if it is not published in the Canada Gazette? That is very problematic.

If we cannot figure out what anything applies to, and it is not published in the Canada Gazette, what is the Conservatives' idea of accessibility? Do they think that everyone should just know how to find that information online? If so, I would remind them that the Canada Gazette website is usually where people look up which regulation applies to which law or which regulation by incorporation applies to which regulation.

If it is not published in the Canada Gazette, then where? Will it be posted on the department's website? If that is what they mean by accessibility criteria, then I hope there will be no fees involved because the Canada Gazette can be accessed for free. Will there be fees? Will it be translated in both official languages?

In any case, I sincerely hope so because the United States is not subject to bilingualism requirements. If we incorporate U.S. regulations by reference, I hope that the government will ensure that these regulations are translated into French and English for all Canadians.

A letter sent by the Standing Joint Committee on Scrutiny of Regulations raises some concerns that I raised in committee and for which the government has not provided a response, unfortunately. Generally, ambulatory incorporation by reference of administrative documents produced internally by the federal government should not be allowed in federal regulations.

Why not? When documents are incorporated by reference by the regulatory authority itself, there is a risk of abuse and of creating a system where that authority has a free pass to incorporate by reference and make changes to the regulations without submitting the material for review by parliamentarians. That is very problematic.

Several thousand regulations could be incorporated by reference every year, without parliamentarians being notified and without these regulations being subject to review by a parliamentary committee. I find that very problematic. That shows that the Conservatives are not at all concerned about creating a parallel means of making regulations and opening the door to abuse by using incorporation by reference.

Only when this is deemed to be essential should it be permitted, and that should be clearly indicated in the enabling legislation, not in Bill S-2. This is general enabling legislation concerning the general authority to adopt measures by incorporation, not a specific power given to a department or departmental agency, for example.

It is no big deal for the Conservatives. They will just pass Bill S-2 and create a general power that applies to all departments and departmental agencies. That way, they will not have to include it in specific enabling legislation. That is what Bill S-2 does.

For example, the bill talks about the power to incorporate by reference rates, numbers and indices established by, for example, a body other than the regulation-making authority. However, we do not know what body is being referred to. The bill refers to persons or bodies other than the regulation-making authority. Could that be public servants or peace officers? I do not know.

When we pass a law we generally want it to be clear. What is a person or body other than the regulation-making authority?

This came up a number of times in the debates on Bill S-2 in the Senate. It was said that the bill was not clear enough and that guidelines were necessary. Unfortunately Bill S-2 will not fix that because it does not include guidelines as to who can use this new power or who or what is considered a person or body other than the regulation-making authority. As I already said, this came up a number of times during the Senate's studies.

Incorporation by reference of foreign legislation, as amended from time to time, is another problem. Once again, in the report and in the letter sent to the minister, the Standing Joint Committee on Scrutiny of Regulations clearly stated that ambulatory incorporation by reference of foreign legislation should not generally be permitted.

It goes on to explain that with ambulatory incorporation by reference of federal, provincial or foreign legislation, parliamentarians do not have the option of reviewing the amendments. I am not making this up. It was in a report and in a letter from the Standing Joint Committee on Scrutiny of Regulations. The committee provides some examples, such as the fact that Ontario, Australia, New South Wales, South Australia and the Australian Capital Territory have all prohibited the incorporation by reference of foreign legislation.

There are already some Commonwealth countries that say that foreign legislation should never be incorporated by reference, especially not as amended from time to time, because parliamentarians then do not have the opportunity to examine any amendments that may be made to the law. We cannot allow amendments to be incorporated into Canadian laws without debating them in the House of Commons. That is clear. Any amendments to regulations must be put before the House. That is clear. That is how a parliament works. It is a legislature.

The report of the Standing Joint Committee on Scrutiny of Regulations also talks about how such power should not necessarily be exercised without guidelines. For example, the report indicates that the regulation-maker who drafts the actual text of the regulations or who decides to incorporate material by reference must act within the clear limits of the authority bestowed upon him by law. The enactment of general provisions governing incorporation by reference could raise questions about whether those provisions constitute autonomous authority or whether they are subject to the conditions of the enabling legislation under which the regulation-maker makes a regulation by incorporating a document by reference.

It says here in the report that the passage of Bill S-2, which is a general authority for incorporation by reference, unfortunately may not meet the conditions and guidelines. Since no such conditions exist, that is a bit difficult. However, that could mean that this does not meet the conditions of the enabling legislation that falls within the purview of a department or agency.

That is very problematic. I think all members need to think about this before they allow hundreds of pages of regulations to evade parliamentary scrutiny. I am asking members to vote against this bill.

Incorporation by Reference in Regulations Act June 18th, 2015

Mr. Speaker, in his speech, the parliamentary secretary spoke a lot about accessibility. However, there are no guidelines in the bill that would help determine the definition of accessibility. I therefore have the following questions. First, in the parliamentary secretary's view, what would be the definition of an accessible document? Second, does he believe that a document that the department charges Canadians for is an accessible document or not?

Digital Privacy Act June 17th, 2015

Mr. Speaker, my colleague spoke in some detail about the bill, but I did not hear him talk about one very problematic clause.

Companies will be responsible for deciding whether to report a possible violation of the Privacy Act. They will have to decide whether they believe they have broken the law. Furthermore, they will decide whether their violations present a serious risk. This bill basically amends the law, but the member did not mention that all the changes benefit the companies, which will decide for themselves if there has been a violation and if that violation results in real harm.

Can my honourable colleague explain which Canadian interests are protected by this clause? It is not obvious to me at this time.