Mr. Speaker, after I was elected in 2011 by my constituents in Gatineau, to whom I am grateful for this immense honour, our then leader, the great Jack Layton, did me the honour of naming me co-chair of the Standing Joint Committee on Scrutiny of Regulations, a joint committee of the Senate and the House of Commons. I admit that I wondered what a committee like that was all about.
I heard the member for Malpeque say that he would rather watch paint dry than attend a meeting of that committee. In my opinion, members of that committee have to be passionate about the law and have an immense respect for our role as legislators.
What is more, that role is not just about creating laws and bringing them into effect. It is also about making the related regulations. The law is one thing, but that law often requires the creation of dozens of regulations for its implementation.
I want to thank the members of the committee, but especially all the experts who guide us in that committee. However, I no longer have the pleasure of being a member of that committee. It is true that I wondered what that committee was all about. In reality, I also wondered at first if I was being punished, but I realized that I was not. My leader at the time felt that my background as a lawyer with 30 years of experience, which I sadly admit in the House, made me a prime candidate to co-chair the committee.
I saw first-hand the thoroughness of the experts and of the departmental and House staff who provided support as we carried out this difficult work. Every week we had a foot-high pile of documents to examine during a two-hour committee meeting, and I am hardly exaggerating. One might have said it was challenging and rather dry, but it was necessary work nonetheless.
I would like to give a little background. Members forget that Bill S-2 was originally introduced in 2012 by the Conservative government in the form of Bill S-12.
At the time, as deputy justice critic for my colleague from St. John's East, our justice critic, and as a member of the Standing Joint Committee on Scrutiny of Regulations, I also had the great pleasure of being responsible for Bill S-12.
From the beginning I have been saying that this bill is a sleeper. I am pleased that we have another opportunity to debate it, although it is at third reading. We did not have much time to debate second reading and report stages, and there were not many meetings of the Standing Committee on Justice and Human Rights.
My colleague from La Pointe-de-l'Île continues the work on Bill S-2 that I had started on Bill S-12, and I thank her for that. She took this on during the study in committee and at all stages in the House.
I called this bill the sleeper of this legislature because this is a bill that could have a huge impact on the lives of Canadians. I do not get the impression that members on the Conservative benches have taken it as seriously as they should have. I said this when I spoke at report stage. It has not drawn much attention from the media, aside from journalist Tom Korski at Blacklock's Reporter. What he wrote in 2012 might have been what first tipped me off.
The title of the article was:
“Senate Quietly Ends 171 Years Of Scrutiny With Bill”.
The article said:
An obscure Senate bill will end 171 years of open scrutiny of regulations governing virtually every aspect of the economy and national life, critics say.
The government legislation…would permit the introduction of new rules without plain disclosure of all related laws—
It would end a practice that predates Confederation.
At the time, some senators expressed their opinions, including Senator Harb, who has since retired and is dealing with other problems.
He said:
“This is a big, big problem. There is little awareness of this bill. If regulated industries become aware of what is in this bill, there will be outrage.”
Senator Marjorie LeBreton, a senator that the Conservatives might be more inclined to listen to and the government leader in the Upper House at the time, refused an interview.
The government bill was introduced without fanfare in the Senate on October 17, 2012.
I find this next part interesting. It quotes Mac Harb:
In the House of Commons too many MPs ask questions. In the Senate there are many new senators who do not understand the history of these procedures. The Senate is a dull place. I think they are trying to force it through.
The article explains the practice. It states:
Under a practice that dates from 1841, all federal rules and decisions must be plainly published for public scrutiny to provide Canadians “their rightful access to the laws and regulations that govern their daily lives,” according to the Canada Gazette Directorate, the federal agency that prints all details of legislation.
Under bill S-12, An Act To Amend The Statutory Instruments Act [now Bill S-2], regulations could be delegated—
—and that is also important—
—from unpublished sources “as amended from time to time” in a little-known practice called “incorporation by reference”....
“This cuts down on the onerous amount of material that would have to be included in a number of regulations,” a bill supporter, Senator Linda Frum, told the Upper House.
That, I would say, is probably the main argument for the government—to really trim down and help out—because it is true that there are tens of thousands of pages per year. I do agree, but we have to do it in a correct fashion.
Still quoting Senator Frum, the article continues:
“If a regulation provides that hockey helmets must be manufactured in accordance with a particular Canadian Standards Association standard, the effect of that reference is to make that standard part of the regulation without actually reproducing the text of the standard in the regulation itself.”
That seems to make sense.
It continues:
In debate, Senator Harb called the bill “a blockbuster” that would permit the government to enact new regulations without public scrutiny or parliamentary approval.
As quoted in the article, Senator Harb said:
“Once we lose control, things may very well go off the rails.”
I will not read the rest of the article to the House. That was probably the first little thing that set off alarm bells with respect to the study of Bill S-12 at the time, which is now Bill S-2.
It may be the price the government opposite is paying for the lack of transparency, collaboration and co-operation on the part of the government and its senior members. That has been prevalent and we need only think of the 100 gag orders that have been imposed. How many times did we present reasonable amendments in committee in an attempt to improve bills? How many times did Conservative colleagues sitting on a committee tell us that it made sense? How many times did we move motions that committee members seemed to agree with, only to see that the members on Conservative benches had been told what to do by the Prime Minister's Office or the office of the minister concerned?
In the long run, it means that we will be a little more cautious in our analysis. As I have often said every time new Conservative justice bills were introduced, the devil is in the details. Often, it is just smoke and mirrors. However, sometimes, in a large bill with many pages that seems to make sense, a small provision destroys all the political capital that the government could have earned. When we were young and we did something wrong, our parents would tell us that we had lost their trust and that we would have to earn it back. The official opposition is finding it very difficult to trust this government because of what it has done. I am thinking of access to information, for example, the reports and the fact that people sometimes have to wait four or five years to obtain the information they requested. We are here for Canadians, but the Conservatives do not often seem to think so.
I will now move on to another extremely important aspect, which is the law itself. Bill S-2 contains a variety of problems. It amends the Statutory Instruments Act and makes consequential amendments to the Statutory Instruments Regulations. I am not sure whether everyone has carefully read the act amended by Bill S-2 and before that by Bill S-12. However, subsection 3(1), which concerns the examination of proposed regulations, is extremely important. It is the key to why the House and the Senate created a joint committee on scrutiny of regulations. This stems from the very important responsibility of ensuring that our regulations are consistent. It often felt quite trivial at the Standing Joint Committee on Scrutiny of Regulations. The differences lay in the wording and the words used, involving either translation and bilingualism issues or errors in the French or the English versions. More often than not the errors were in the French version, because most legislation was developed in English and there were translation errors. We saw how long it took for the experts supporting us in committee to obtain information. I am sure that the Parliamentary Secretary to the President of the Treasury Board, if he is sincere, will admit how many good kicks, some of them hard, we had to give to the more resistant departments—I will not name the Department of the Environment or the Department of Transport—which took an inordinate amount of time to reply to our experts, who wrote to these departments on behalf of the committee for information on how they drafted their regulations. We need to remember the importance of regulations when we see a process that will bypass all that. With all due respect for my friends across the way, that is the impact this bill will have.
We need to remember the importance of regulations. We do not talk about it often in the House, and that may be why there is a kind of polite disdain. When I was trying to get a teeny tiny budget for the joint committee, a Conservative member told me in another committee that it was probably the most useless committee. That is what some Conservative members think of the Standing Joint Committee on Scrutiny of Regulations, and I am terribly worried about that. I still have not gotten over that comment. I know that many people share that opinion because the committee's work seems so boring. One has to really love the law, and one has to love reading regulatory texts. I know that the Parliamentary Secretary to the President of the Treasury Board is like me: he adores that kind of work. It is essential work.
We will not have many more opportunities to talk about Bill S-2, which we will vote on later this afternoon. The bill number indicates that it is from the Senate. It has already gone through the Senate process before coming here. That is another problem I just cannot get over. I have already commented on this issue many times. If this bill is as important as they say it is, I do not see why it was brought in through the back door.
Section 3 of the Statutory Instruments Act states the following:
3. (1) Subject to any regulations made pursuant to paragraph 20(a), where a regulation-making authority proposes to make a regulation, it shall cause to be forwarded to the Clerk of the Privy Council three copies of the proposed regulation in both official languages.
(2) On receipt by the Clerk of the Privy Council of copies of a proposed regulation pursuant to subsection (1), the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that:
(a) it is authorized by the statute pursuant to which it is to be made;
(b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made;
(c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and
(d) the form and draftsmanship of the proposed regulation are in accordance with established standards.
It is therefore important that regulations respect the Constitution and the charter just as much as laws. I still have some concerns, because this government always passes bills after ignoring the views of experts who tell us repeatedly in committee that the bills have serious shortcomings in that they are unconstitutional or they are not consistent with the charter. The last thing I want to do is give this government a blank cheque when it comes to regulation by reference.
It is worth noting that incorporation by reference is not illegal. That is right; it is already happening. However, I think there have been 160 unauthorized delegations by reference in enabling legislation, and the legality of that procedure is still a subject of dispute between the Standing Joint Committee on Scrutiny of Regulations and the government or specific departments.
The government did not take any chances, just as it did not take any chances when it destroyed the gun registry data. It introduced clause 18.7, what I call a pardon provision, which retroactively deems all incorporations by reference valid.
Incorporation by reference usually has to be authorized by enabling legislation. In other words, when parliamentarians pass such legislation, they are agreeing to give this power to the minister or the Governor in Council. However, it is still the law that governs incorporation by reference.
With the stroke of a pen, Bill S-2 blindly gives this power away without evaluating the need to proceed with incorporation by reference under certain laws. It is a way of neutralizing the power of members of Parliament to guarantee to their constituents that things are done properly. This bill gives the government carte blanche to do almost anything it wants. The Conservative government does not have a stellar record when it comes to that sort of thing, though. It is extremely worrisome.
I will not have the time to raise all my concerns, but, in short, I would say that the greatest flaw in Bill S-2 is the notion of accessibility in clause 18.6.
It still bothers me that the committee members rejected the amendments by my colleague from La Pointe-de-l'Île, which could have clarified some concepts and nuances concerning the issue of retroactivity. It disgusts me that something that was illegal is suddenly legal because the government revisited the past. That is the wrong thing to do.
There is also the matter of the documents, which my colleague spoke about earlier. It is a rather vague term that should have been more specific. With regard to bilingualism, I congratulate the government on its international treaties, but we all know that some of those regulations will find their way here and will not be in the language of our big, beautiful country's other founding people. I am extremely worried about the inherent rights of Canada's francophones.
We know full well that some treaties are very long, and I do not think that the regulations will be translated into French. I get the impression that taxpayers will pay the price for this.
There are thus some troubling aspects, and I would have liked it if we could have taken a little more time to examine this bill. I imagine that it will be up to the next government—and I hope with all my heart that it will be an NDP government—to do the work that this government refused to do. We were seeking to improve the bill with the amendments that we proposed in good faith.
I was going to say that this will be my last speech in the House, but it seems that the government is making me give another one this afternoon. I will therefore save all my thanks to the extraordinary people of Gatineau who have given me their unconditional support since 2011 until later this afternoon when I give my next speech. In the meantime, I am happy to answer any questions.