Massimo Pacetti

[Incorporation by Reference in Regulations Act, February 13th, 2013]

Mr. Speaker, I am pleased to rise today to outline the Liberal Party of Canada's position on Bill S-12 to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. The short title makes the bill's purpose clearer: the Incorporation by Reference in Regulations Act. Before commenting on the bill, I would like to explain to the House what incorporation by reference is.

In today's environment of globalization, regulation is becoming increasingly complex. For example, we must accept international standards for reasons of trade, safety and security. This reality is reflected in Canada's regulations. In order to simplify the writing of regulations, the regulatory authorities are relying more and more on incorporation by reference. Incorporation by reference can be either closed—also known as static—or open—also known as ambulatory, dynamic or rolling.

Closed incorporation by reference is merely a style of drafting. Rather than including a complex, multi-paragraph definition from another document in a regulatory text, the regulatory authority simplifies the reading and writing by referring to the other document as it appeared on a given date. That incorporation is called closed, because the version of the cited document is the one that existed on the date specified in the regulation. If the cited document is later changed, the new version will not automatically be incorporated into the regulation.

Open incorporation by reference, on the other hand, is a kind of sub-delegation of the power to make regulations, since the current version and future versions of the other documents are being incorporated. If the incorporated document is amended after the regulation is adopted, it will automatically be part of the regulation. Therefore the regulatory authority no longer has control over the regulation, since another body can change the document incorporated by reference, completely independently.

According to the analysts at the Standing Joint Committee on Scrutiny of Regulations, open incorporation by reference is not legal, except when Parliament expressly authorizes the regulatory authority to use it. That would mean, for example, that Parliament would need to pass legislation to permit it, or give such authorization when the power to make regulations is delegated. Open incorporation by reference amounts to a sub-delegation of the regulation-making power, which is contrary to our Constitution and our statutes.

The government, particularly the Department of Justice, is of the contrary opinion, and has used open incorporation by reference in many regulatory texts. For example, since 2007, the Conservative government has used open incorporation by reference at least 300 times. One reason the Conservatives introduced Bill S-12 in the Senate was to put an end to the debate and legitimize their way of doing things. The bill would authorize the regulatory authorities to sub-delegate the regulatory power without needing to obtain Parliament's authorization.

Clearly, this is a very complex bill. Since it affects all federal regulation, it is also very important. The Conservatives quietly introduced this bill in the Senate, but apparently they did not take their work seriously. The bill is full of flaws, some of which will have a serious impact on Canadians and the linguistic duality of our country. The Conservatives are too short-sighted to recognize these flaws and it will be up to the courts to make decisions.

Which way will the Supreme Court lean and when? I have no idea. Until that time, we will live in uncertainty, which will be bad for businesses, for francophone rights, and for all citizens' access to the law.

According to the analysts at the Standing Joint Committee on Scrutiny of Regulations, the Canadian Constitution does not allow sub-delegation of the regulation-making power. When Parliament delegates a regulation-making power to a department, for example, the department should not delegate that power again to another entity using incorporation by open reference.

This type of incorporation amounts precisely to sub-delegating the regulation-making power, since all subsequent amendments made by the foreign entity will automatically become part of the Canadian regulations.

This bill will legitimize this sub-delegation of the regulation-making power. It is understandable that globalization has made it necessary to coordinate our regulations with our partners'. This also benefits the regulation-making authorities since the present situation is confusing for them. It is also understandable that sub-delegating the regulation-making power will reduce the workload for regulation-making authorities, and this will enable them to free up resources for other tasks. For example, if they do not have to be constantly updating regulations to coordinate them with the incorporated documents, regulation-making authorities will gain an enormous amount of time. So the Liberal Party and I understand that the bill is satisfactory to them.

For Canadians and democracy, however, this bill creates more problems than it offers solutions. The Parliament of Canada will lose a portion of its control over regulations, since foreign entities will sometimes be deciding the content of our regulations. In other words, Canada will lose a portion of its sovereignty when the documents incorporated by reference come from entities outside Canada. The sovereignty we lose will be gained by others, like our principal trading partner, the United States. We quite often have to coordinate our regulations with that partner, but this bill means that it will sometimes be our neighbour that will decide the content of our regulations directly, without any participation by the Canadian government.

We believe that Parliament, which represents all Canadians, cannot agree to sub-delegation of the regulation-making power such as is permitted by Bill S-12, unless it has expressly authorized it when the regulation-making power was delegated in enabling legislation.

One of the worst problems this bill will create is the reduced accessibility of regulations. Clause 18.3 in the bill does state that the accessibility of the document incorporated by reference must be ensured by the regulation-making authority or the minister who is accountable for it to Parliament, but that is problematic since the bill says nothing about what the criteria are for accessibility or how the document is to be made accessible.

In other words, this confirms that the regulation must be accessible, but accessibility is not defined. Clause 18.4 of the bill states:

18.4...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...

If the documents incorporated are not registered, how will they be accessible to the public? Will it be enough to provide the name of the document incorporated? Does the government have to provide copies of the document incorporated to people who want it?

If accessibility means publishing certain information, such as the name of the document and its authors, it is quite likely that there could be situations where the document incorporated is protected by copyright.

In that case, it would be up to the individual or the corporation to pay large amounts to obtain the document. Once again, the government would be shifting the cost onto the people. The law is supposed to be accessible to everyone. However, this bill could restrict accessibility. In short, there are more questions than answers about accessibility with Bill S-12. Judges will have to deal with these issues.

As I said earlier, clause 18.4, which confirms that documents incorporated do not have to be registered or published in the Canada Gazette, will reduce transparency and, in particular, make it impossible to examine regulations. The Standing Joint Committee on Scrutiny of Regulations does not have the resources needed to examine all federal regulations. Just imagine for a moment what will happen if this bill is passed.

With the multiplication of the number of incorporations by reference, regulations will be constantly changing. It will be impossible to examine everything. The government's transparency will be greatly affected, which is obviously not what we want.

According to an analyst to whom we posed the question, the committee would probably need 10 times more resources than it has now in order to carry out its work properly after the passage of Bill S-12. Are the Conservatives likely to give the committee proper funding? Knowing them as I do, I predict that they are not, and this does not bode well for the transparency and effectiveness of our regulations.

The lack of clarity in the bill is unfortunately not restricted to the general accessibility of documents or to the transparency of the government. Canada’s linguistic duality could well be jeopardized. Because the incorporated material does not have to be registered or published in the Canada Gazette, there is no guarantee that it will be available in Canada’s two official languages.

In the 1992 Manitoba language rights reference, the Supreme Court held that a document referred to in a federal regulation was subject to section 133 of the Constitution Act, 1867, and that it should be incorporated in both official languages, except if there is a bona fide reason for its incorporation without translation. This exception for legitimate reasons applies to material prepared by an international body or another foreign entity.

As we are all aware, English is now the dominant language on the international stage. French is still used in certain large organizations, but in general, English dominates. More often than not, then, the material that will be incorporated will be in English. Therefore, this means that the federal regulations will be available in English but not in French.

Will a document that is available only in English be considered accessible according to section 18.3 of the bill? Perhaps it will, perhaps it will not. We will have to wait until the courts rule on the issue according to their interpretation of section 18.3. Uncertainty and confusion will therefore reign for a number of years to come if the bill is passed as it currently stands.

Regardless of the courts’ interpretation, the problem will still exist. There are precedents in Canadian history where documents incorporated by reference were only in English. For instance, if the courts decide that the regulation-making authority has a duty to provide a French translation of incorporated material that is available only in English, how are we going to judge individuals accused of having somehow broken the law?

Let me explain. Since open incorporation by reference amounts to automatically incorporating all the updates made to a given document in Canadian regulations, we can expect that it might take some time to make the translation available.

Section 18.6 states:

A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document, index, rate or number—that is incorporated by reference in a regulation—is relevant unless, at the time of the alleged contravention, it was accessible as required by section 18.3 or it was otherwise accessible to that person.

In a case where the original is in English, will we have a legal system where anglophones and francophones are judged differently? Since the French translation—if there is one—is not immediately available, could a unilingual francophone be acquitted because of the translation time? What about a case where a francophone understands English?

I want to look at the last part of section 18.6: “...or it was otherwise accessible to that person”. That means that no matter how a judge interprets section 18.3 on accessibility, a person could be charged if they had access to the law in some way. Since no one is considered ignorant of the law, will we have cases where francophones who understand English are criminally charged because the document was available in English but not in French? If that is the case, French will again be marginalized and francophones will be forced to work in English because documents will be available in English long before they are translated into French, if they are translated at all.

But that is not catastrophic. Truth be told, this bill is full of holes, and it will be up to judges to fix them. It will take years before everything is fixed. Until then, I have no idea what will happen, and neither do the Conservatives. Nothing in this bill answers these questions, and the government cannot claim that there are no problems with the bill. Despite everything, it is quite possible that francophones will once again lose out because of the Conservatives' carelessness.

We know this government, so we know that no amendments will be approved. However, I hope that the Conservatives will be open to amendments during the committee process. I urge all of my colleagues, regardless of their party, to vote against this bill, which will weaken our powers as parliamentarians, hurt linguistic duality and limit the public's access to our laws.

[Employment Insurance, February 8th, 2013]

Mr. Speaker, Canada lost 22,000 jobs last month. According to the Canadian Federation of Independent Business, the Conservatives' EI payroll hike has already cost the economy almost 300,000 person-years of employment. However, three consecutive EI tax hikes do not seem to be enough for the government. It wants to hike taxes again.

I realize that the Conservatives abandoned most of their principles when they came to power, but when exactly did they begin to believe that the best way to create jobs was by increasing taxes on employers and employees?

[Employment Insurance, February 8th, 2013]

Mr. Speaker, last month, jobs continued to disappear.

Canada has lost 200,000 manufacturing jobs since the recession. Industries in the manufacturing sector are being forced to pay hundreds of millions of dollars more in taxes on salaries because the Conservatives continue to raise EI premiums.

Can the government assure this House that it will cancel the EI premium hikes planned for 2014? After all, jobs are at stake.

[Disability Tax Credit Promoters Restrictions Act, February 5th, 2013]

Mr. Speaker, I am going to read the summary of the bill because it is important to put the debate in context. It says:

This enactment restricts the amount of fees that can be charged or accepted by persons who, on behalf of a person with a disability, request a determination of disability tax credit eligibility under the Income Tax Act. It establishes a prohibition against charging or accepting more than an established maximum fee and establishes offences and penalties for failure to comply.

Based on that, I do not see how anyone can be opposed. I am comfortable with it and I will support sending the bill to committee. The Liberal Party has always supported cracking down on fraudulent consultants who take advantage of disabled Canadians or any type of Canadians, but especially disabled Canadians. However, we think Bill C-462 requires careful study at committee to ensure that it achieves the stated objectives and avoids unintended consequences.

We support the idea of a ceiling on costs to help protect those eligible to apply for the tax credit for persons with disabilities, but the maximum for such costs should be determined through an open and transparent process of consultation with those concerned, such as organizations for persons with disabilities and members of the medical community. The question is a complex and, above all, an important one. We should therefore adopt a rigorous approach to ensure that Canadians with disabilities receive as much help as possible from Canada.

We are also supporting Bill C-462 at second reading, in order to have it referred to committee for study to ensure that there are no unforeseen consequences, such as a reduction in eligibility for the tax credit for persons with disabilities. We also hope that the government will show good faith, listen to opposition members and make the required amendments to the bill, if necessary, in accordance with what we learn in committee. The only way of avoiding unfortunate consequences for those with disabilities will be to do a thorough job in committee. I trust the Conservatives will be able to set aside partisanship for such an important issue.

Despite the good intentions in the bill, I believe that the government could be more helpful to Canadians with disabilities by simplifying the application process through which they receive their tax credit. For example, the documents to be completed and the process itself are complicated—doctors have many responsibilities in this area— which means that many Canadians are not able to complete them without assistance.

If everything was simplified, many Canadians with disabilities could complete the forms themselves, which would avoid their having to rely on someone else to help them do so. Reducing the red tape and the processing time in this manner could also generate savings for the government. It would therefore be useful both for the government and for persons with disabilities to look into this aspect at the committee stage.

The Liberal Party also supports the idea that fraudulent consultants should be prosecuted to the letter of the law.

I just want to quickly highlight some of the concerns I found in looking at the bill. In the bill it states that the definition of a promoter is “a person who, directly or indirectly, accepts or charges a fee in respect of a disability tax credit request”. Would that mean a doctor or an accountant? I asked the question to the sponsor of the bill, and she seems to think it would not be, but that is not how the bill reads. I just want to make sure the bill will be corrected so that doctors, accountants or other professionals would not be included as being promoters.

I was looking at the requirement to fill out the disability form. Seven out of the eight pages of the form to request or to determine if one is eligible to claim the disability tax credit must be completed by a qualified practitioner, which means a medical doctor, physiotherapist, optometrist, psychologist, occupational therapist, special language therapist or audiologist. I do not think any of these should be considered promoters.

Again, are the doctors consultants or are they promoters? Should doctors not charge for their time, as some doctors do, or is it part of the medical services they provide through the health care system? I think this is one of the questions that should be asked at committee. I understand there are going to be some medical professionals, associations and representatives at committee, and that would be one my questions.

In my former life as an accountant, I found that the forms are more lengthy than complex. Usually doctors feel responsible for any inaccuracies on these forms and so they take a little more time. As I mentioned before, maybe we should just consider changing the way the disability credit is administered, instead of introducing more regulations and making the forms more complex. Perhaps we could have a simple one-pager and have a doctor's letter attached. This would be something the committee could study, to find a way to make it easier and perhaps less cumbersome to administer.

In my experience as an accountant, especially when the government introduced retroactively requesting a change as far back as ten years to the income tax form for a disability tax credit, the first year is normally the most complex time. Even though one may be using software, one has to determine which credits and deductions a client is eligible for and which are more advantageous. If one is claiming the disability tax credit, one may not be eligible for some other credits. As well, one's dependents would be a consideration. It is complex and one wants to make sure that the professional involved in preparing the tax return or giving advice is not being penalized because he or she has said to go and get the disability tax credit certificate.

The other problem I found as a professional accountant was not filling out the form but having the form filled out on a timely basis. Normally the form is given to the client or to the person who is representing a handicapped person eligible for the disability tax credit. The form is given to the doctor, who may not have time and puts it on his or her desk, and it takes forever to get it back. The tax return is either already filed or waiting for the form before being filed. Also, a lot of times the tax return is filed, but the revenue department may come back asking for more information. Therefore, it is a time issue more than a complex issue. This may be another area that needs to be addressed in committee.

When the committee addresses the promoter fees, who should be paid for their time and how would that be calculated? I saw that there was a formula, which is a little complex, in the private member's bill. However, a professional, and I will use the example of an accountant, would not necessarily charge based on a percentage because he or she is not allowed to do so. How do we avoid an accountant charging based on the fact that a person would get a $20,000 or $30,000 refund if he or she is eligible to go back and amend their tax returns for the last 10 or 15 years?

Personally, I agree with the bill. I do not believe that promoters should be taking advantage of the disabled. I do not believe that promoters should be paid at all, but I guess there has to be a way to promote this initiative. The government spends enough money on advertising, I do not see why we also have to pay promoters. I am totally against this and I am hoping other members will also be against this in committee. However, I am totally shocked that the Conservative government is introducing more regulations.

There is another reason that disability tax credits are very important. People may be eligible for the disability tax credit, but they may not get money back on their tax return. However, they can open up a disability savings account. That is very important and works for a lot of people in my constituency.

Again, I am in favour of the bill, but as I said before, the Liberal Party is not necessarily in favour of these tax credits. We prefer having these tax credits refundable so that the people who actually need the money, get the money.

[Disability Tax Credit Promoters Restrictions Act, February 5th, 2013]

Mr. Speaker, I commend the member for introducing the bill. It is a good idea. First, I am shocked a Conservative has presented a bill that would require more regulation, on which I am not totally sold.

In her bill, she says that the definition of a promoter means a person who directly or indirectly accepts or charges a fee in respect to a disability tax credit. Who is a promoter exactly? Is a doctor, or a lawyer or an accountant considered a promoter?

[Questions on the Order Paper, December 10th, 2012]

With regard to the Privy Council Office, what grants and contributions under $25,000 did it award from January 1, 2011, to the present, including the recipient's name, the date, the amount and the description?

[Questions on the Order Paper, December 10th, 2012]

With regard to the Canada Border Services Agency, what grants and contributions under $25,000 did it award from January 1, 2011, to the present, including the recipient's name, the date, the amount and the description?

[Sainte-Angèle Parish in Saint-Léonard, December 7th, 2012]

Mr. Speaker, on October 28, 2012, I had the pleasure of attending the closing mass for the 50th anniversary celebrations of Sainte-Angèle Parish in Saint-Léonard.

What a way to celebrate an anniversary: with a ceremony in different languages presided by His Excellency Msgr. Christian Lépine, Archbishop of Montreal, who blessed 25 stained-glass windows, 22 of them illustrating the Apostles' Creed. The windows were designed by Léo Schryburt, who spent many hours creating them with the assistance of craftsman Gino Saracino. These exceptional works of art were made possible with the financial support of many parishioners who were proud to contribute to the beauty of their church.

I would like to recognize the exceptional work of Reverend Jean-Pierre Couturier, who has a talent for bringing people together. He managed to gather people of different generations and ethnicities to create a cultural community that reflects our country.

Congratulations to the members of this beautiful community and long life to Sainte-Angèle parish.

[Fisheries and Oceans, November 29th, 2012]

Mr. Speaker, Canadians are suffering cuts to services because of the Conservatives' incompetence. They have driven up our federal debt to over $600 billion since 2006.

The axe has fallen once again on Quebec, with the closing of the only French-language documentation centre in Canada specializing in marine sciences, the Maurice Lamontagne Institute in Mont-Joli.

Why must scientists and the language rights of francophones suffer because of the Conservatives' financial incompetence?

[Criminal Code, November 23rd, 2012]

Mr. Speaker, the bill is basically a housekeeping bill to bring this section of the Criminal Code more up-to-date with today's times. The last time this section was updated was in 1934.

This change will affect close to 100,000 Canadians who practise combat sports, not necessarily all at a professional level. Some are at the amateur level. We are not only talking about mixed martial arts. Some of the sports are recognized by the International Olympic Committee, such as karate, judo and tae kwon do. The bill tries to ensure that participants in all of these sports will be governed under a safe environment so that they will not considered to be doing so illegally under the current provisions.

I am hoping that Bill S-209 will merely correct this oversight so that Canada can effectively regulate acceptable combat sports openly. Seeing how the bill is not controversial and is a sensible piece of legislation that clearly addresses a blind spot in the Criminal Code, I look forward to seeing the bill passed and sent expeditiously to committee.