Mr. Speaker, today I would like to speak about Bill , the incorporation by reference in regulations act. Yes, this is riveting. While it may not be the subject of headlines, it is actually very important.
Bill has been studied by the Standing Committee on Justice and Human Rights and has been reported without amendment back to the House. Before that, the Senate Standing Committee on Legal and Constitutional Affairs also reported the bill, without amendment, to the House for consideration.
This bill deals with a regulatory drafting technique. Essentially, the bill clarifies when federal regulators can or cannot use the technique of incorporation by reference.
The technique of incorporation by reference is currently used in a wide range of federal regulations. Indeed, it is difficult to think of a regulated area in which incorporation by reference is not used to some degree.
Bill is about securing the government's access to a drafting technique that has already become essential to the way governments regulate. It is also about leading the way internationally in the modernization of regulations. However, more directly, Bill S-2 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. This bill would create the legal clarification that is needed so that regulators and the committee can ensure that there is no uncertainty in the process of incorporation by reference.
Incorporation by reference has already become an essential tool that is widely relied upon to achieve the objectives of the government. Both committees have heard that it is also an effective way to achieve many of the current goals of the cabinet directive on regulatory management, which are cabinet's instructions on how to ensure effective and responsive regulations. For example, regulations that use this technique are effective in facilitating intergovernmental co-operation and harmonization, a key objective of the Regulatory Cooperation Council established by the and President Obama. By incorporating the legislation of other jurisdictions with which harmonization is desired, or by incorporating standards developed internationally, regulations can minimize duplication. This is an important objective of the Red Tape Reduction Commission. The result of Bill would be that regulators would have the option of using this drafting technique in regulations aimed at achieving these objectives.
Incorporation by reference is also an important tool for the government to help Canada comply with its international obligations. Referencing material that is internationally accepted, rather than attempting to reproduce the same rules in the regulations, also reduces technical differences that create barriers to trade and is, in fact, something Canada is required to do under the World Trade Organization's Technical Barriers to Trade Agreement.
Incorporation by reference is also an effective way to take advantage of the use of the expertise of standards writing bodies in Canada. Canada has a national standards system that is recognized all over the world. Incorporation of standards, whether developed in Canada or internationally, allows the best science and the most accepted approach in areas that affect people on a day-to-day basis to be used in regulations. Indeed, reliance on this expertise is essential to ensuring access to technical knowledge across the country and around the world.
Testimony by witnesses from the Standards Council of Canada before the Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs made it clear how Canada already relies extensively on international and national standards. Ensuring that regulators continue to have the ability to use ambulatory incorporation by reference in their regulations, meaning the ability to incorporate by reference a document as it is amended from time to time rather than just in its fixed or static version, means that Canadians can be assured that they are protected by the most up-to-date technology.
Incorporation by reference allows the expertise of the Canadian national standards system and the international standards system to form a meaningful part of the regulatory tool box.
Another important aspect of Bill is that it allows for the incorporation by reference of rates and indices, such as the Consumer Price Index or the Bank of Canada rates, which are important elements in many regulations.
For these reasons and more, ambulatory incorporation by reference is an important instrument available to regulators when they are designing their regulatory initiatives. However, Bill also strikes an important balance in respect of what may be incorporated by reference by limiting the types of documents that can be incorporated when they are produced by the regulation maker. Also, only the version of such documents as they exist on a particular day can be incorporated when the documents are produced by the regulation maker only. This is an important safeguard against circumvention of the regulatory process.
Although there was some testimony at the Standing Committee on Justice and Human Rights that suggested that the bill should go even further to allow more types of documents to be incorporated by reference, including documents produced by the regulation maker, we believe that Bill strikes the right balance, and where further authority is needed, Parliament can and has authorized incorporation by reference of additional material.
Parliament's ability to control the delegation of regulation-making powers continues, as does the oversight of the Standing Joint Committee for the Scrutiny of Regulations. We expect that the standing joint committee will continue its work in respect of the scrutiny of regulations that use incorporation by reference. The standing joint committee will indeed play an important role in ensuring that the use of this technique continues to be exercised in a way that Parliament has authorized.
One of the most important aspects of this bill relates to accessibility. Bill would not only provide a solid legal basis for the use of this regulatory drafting technique but would also expressly impose in legislation an obligation on all regulators to ensure that the documents they incorporate are accessible. While this has always been something the common law required, this bill clearly enshrines this obligation in legislation.
There is no doubt that accessibility should be part of this bill. It is essential that documents that are incorporated by reference be accessible to all those who are required to comply with them. This is an important and significant step forward in this legislation.
The general approach to accessibility found in Bill will provide flexibility to regulatory bodies to take whatever steps might be necessary to make sure that the diverse types of material from various sources are in fact accessible. In general, material that is incorporated by reference is already accessible. As a result, in some cases, no further action on the part of the regulation-making authority will be necessary. An example is provincial legislation, which is already generally accessible. Federal regulations that incorporate provincial legislation will undoubtedly allow the regulator to meet the requirement to ensure that the material is accessible.
Sometimes accessing the document through the standards organization itself will be appropriate. It will be clear that the proposed legislation will ensure that the regulated community will have access to the incorporated material, with a reasonable effort on their part. It is also important to note that standards organizations, such as the Canadian Standards Association, understand the need to provide access to incorporated standards. By recognizing the changing landscape of the Internet, this bill creates a meaningful obligation for regulators to ensure accessibility while still allowing for innovation, flexibility, and creativity.
Bill is intended to solidify the government's access to a regulatory drafting technique that is essential to modern and responsive regulation. It also recognizes the corresponding obligations regulators must meet when using this tool. The bill strikes an important balance that reflects the reality of modern regulation while ensuring that appropriate protections are enshrined in law. No person can suffer a penalty or sanction if the relevant material is not accessible to them.
This proposal is consistent with the position the government has long taken on the question of when regulations can and cannot use the technique of incorporation by reference. It will provide express legislative authority for the use of this technique in the future and will confirm the validity of existing regulations incorporating documents in a manner that is consistent with that authority.
We have many years of successful experience with the use ambulatory and static incorporation by reference in legislation at the federal level, and this knowledge will be useful in providing guidance in the future.
To conclude, the enactment of this legislation is the logical and necessary next step to securing access in a responsible manner to incorporation by reference in regulations. I would invite all members to support this legislative proposal and recognize the important steps forward it contains.
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 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 . 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 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 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 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 . 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 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 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 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 , 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.
Mr. Speaker, it is always a pleasure to rise in this place to add some thoughts on a particular issue. After reading the title of Bill , many might think it is a somewhat dull bill, maybe a little boring to read, but as I asked in my question for the parliamentary secretary, the details are in fact very important.
My view of the structure under which our system operates is that we do not give enough attention to regulations. Canadians would be surprised at the degree to which our society is regulated. It does not happen just here in Ottawa; it also happens internationally, and it affects Canadians' lives. It happens at the national level, which is what we are primarily talking about this morning, and it also happens at the provincial and municipal levels. Regulations are a part of everyday life for all of us.
They are important and they have a very profound impact. Some forms of legislation that come to the House of Commons are pretty straightforward and very easy to comment on; on others, such as this one, we have to be somewhat more diligent as we examine them.
The Liberal Party has a great deal of concern with regard to Bill . Overall, we are not in a position to support the bill, because we have a number of concerns.
It is important at the get-go to recognize that incorporation by reference enables the federal government or agencies to give legal effect to material that has been published elsewhere. We should all be concerned about that.
We have talked a great deal within the Liberal caucus and we have shared some different ideas and thoughts in two-way communications with Canadians. Time and time again, and in fact earlier this week, we talked about how Ottawa is broken and how we do not see the type of progress that is important.
This is one of the pieces of legislation that I would use to cite that. We have standing committees of the House. We have a standing committee that deals strictly with the issue of regulations. Its primary function is to get a better understanding of regulations. It is there to provide diligence. We in the House might spend relatively little time dealing with the regulations, but there are other ways in which members of the House of Commons deal with regulations, from their creation to their being passed in the House to their appearance in the Canada Gazette. We need to have a decent understanding of what happens today and what the bill is proposing to do.
A department I choose to follow quite closely with regard to regulation is the Department of Citizenship and Immigration. A number of pieces of law, many of them very targeted and not very positive, have been passed in this administration, but when the law is passed after hours and hours of debate at committee, let alone what takes place outside of committee, that law does not actually deal with the regulations per se, and it is the regulations that will provide the details to either complement or, in some cases, detract from a piece of legislation that has been passed.
Let me give a specific example. We pass legislation dealing with the issue of citizenship; then we pass regulation to support some of those decisions that were made. As an example, the government passes legislation with an objective of creating additional resources or properly resourcing citizenship in order to speed up the process of acquiring citizenship. Then a regulation that follows stipulates what it would now cost to have that citizenship. We have seen some pretty bizarre things occur in that area, such as the quadrupling of citizenship fees. That has upset not only a good number of my constituents but also a good number of Canadians across the board.
How does that actually happen? The legislation passes here, and then the regulation comes up. Typically, the minister who develops the regulation brings it forward to the full cabinet. The full cabinet ultimately passes it. Then it ends up in the Canada Gazette. All Canadians could then be familiar with what has actually taken place.
Through that process, even though all members of Parliament are not necessarily privy to the dialogue in cabinet, there are some eyes on it from parliamentarians. That is a very important aspect when we deal with regulation. That is because, at the end of the day, if something appears in the Canada Gazette, we should have a sense that there was a Canadian member of Parliament who had eyes on it. Perhaps it was a cabinet member, because the cabinet ultimately approves it prior to its appearance in the Canada Gazette. There is that direct link of accountability. The government is ultimately responsible.
Through this particular piece of legislation, we would change that somewhat. One could argue that incorporation by reference already exists. It does occur. However, this particular piece of legislation would enhance that. It would enable more of it to take place. Concerns have been raised in regard to the impact it would have on the Canada Gazette. Concerns have also been raised in regard to the impact it would have on the House of Commons and on the ability of members of Parliament to hold the government accountable for regulations that would increasingly be changing without any sort of real diligence from the House of Commons.
That is a concern that we should all have. It is something that has caused the Liberal caucus and the Liberal Party to express our concern, and it is the reason we will not be supporting Bill .
Bill S-2 would reduce the oversight of federal regulations by allowing sub-delegation of regulation-making power that is already delegated by Parliament to the Governor in Council and other persons. The current government, as I cited, cannot be trusted to use this power responsibly. We have seen that time and time again. Its willingness to abuse oversight mechanisms through its omnibus legislation and its disregard for the Department of Justice's constitutional review procedure are but a couple of examples.
I have had the opportunity to talk about some of those specifics. We have talked about those massive budget bills into which the government incorporates numerous pieces of other legislation, attempting to pass legislation through the back door of the budget, attempting to avoid accountability, attempting to avoid the eyes of MPs, attempting to avoid scrutiny beyond that by many different stakeholders. It tries to sneak legislation through in these large budget bills.
In fact, when the was in opposition, I can recall him stating very clearly how wrong it was to be use budget bills as a back door to bring through legislative agendas. No government has done it more than the Conservative government.
I could check with my colleague, the member for , about the issue of oversight and the importance of that. The Liberal Party has advocated for parliamentary oversight with respect to CSIS and security related issues. We went through a fairly significant debate on Bill . The Conservatives try to give the public the impression that there is a terrorist under every rock. Then the NDP in essence believes that there is no problem, that there is no need to be fearful. Those are two really different approaches.
The Liberals understand the importance of safety. We understand the importance of security. However, we also understand the importance of individual rights. We are the party that brought in the Charter of Rights and Freedoms.
We talk about diligence and we look at the importance of our parliamentary committees in providing that kind of oversight. Through Bill , there will be less parliamentary oversight on regulations. I believe the parliamentary secretary would recognize, or at the very least should recognize, that.
It would have been more encouraging to hear the parliamentary secretary talk about the importance of parliamentary oversight. He and the government are very enthusiastic about this legislation, but we do not hear whether the Government of Canada is prepared to give away a very important part of making regulations through the incorporation by reference. That will have a very important impact not only today but especially into the future, as Canada is becoming a bigger player in the global market. Therefore, parliamentary oversight is of critical importance.
Unfortunately, we lost that debate on Bill , but we will correct that come fall if we are afforded the opportunity to do so.
What about parliamentary oversight on these issues, because these issues are important also? Once again, the government feels we do not need to worry about oversight. The government is wrong. Canadians have a higher expectation of what they want parliamentarians to do. Let me give members an example that is quite tangible.
We are all aware of the hundreds of thousands of tax dollars that the has used for the European trade deal photo ops. There are no lack of resources when it comes to taxpayer dollars to support photo ops on the EU agreement, which is not finalized. I believe Canada is the only signing officer to that agreement. We will have to wait until the next administration comes in to finalize it.
What about the details of the agreement? The parliamentary secretary acknowledged that a lot of work needed to be done on regulations once the EU agreement was finalized. We should all be concerned with that very important aspect. In part, those regulations play an important role in whether Canada will be on a level playing field.
Whether it is the leader of the Liberal Party or any other member of my caucus, we are very proud of our businesses in every region of our country. We know that if we put them on a level playing field, we will excel. We saw trade surpluses during Liberal administrations. We have confidence in our business community and we are there to support it in getting those new markets. Therefore, we should be concerned. When we talk about these agreements, the regulations will follow them.
To what degree does this legislation, for example, say that regulations related to certain aspects of trade agreements through incorporation by reference will not be determined by the House of Commons or that there will be no role for the House? We know that will occur. That is why I asked the member how things were going with respect to that as well as with Ukraine.
If I can just sidetrack for a bit, I have a personal favourite. I would love to see the forgo some of the photo ops, get down to work and get that agreement with Ukraine. The European Union already has done that. Why has Canada not dealt with Ukraine? The regulations would have followed. The Prime Minister needs to focus on how we can help the people of Ukraine in a more real and tangible way. At the same time, it also helps Canada.
With respect to those regulations, people need to recognize that the government has again been found wanting in explaining why it does not feel there is an enhanced role for members of Parliament to play. We are moving more and more into a global situation. MPs need to play a stronger role of monitoring and providing that oversight. We have a standing committee of the House that is responsible for regulations. As we move toward a stronger role for incorporation by reference, given the international laws and more trade, and the importance of Canada to be engaged in that trade, why not include a stronger role for our standing committee for oversight in legislation?
The Liberals have a website called realchange.ca. I would encourage members to go to visit it. They will see opportunities that would allow for additional oversight. When it comes to regulations such as—
Mr. Speaker, I am pleased to rise in support of Bill , the incorporation by reference in regulations act.
I would like to start by addressing some of the comments that my colleague raised in debate with regard to our government's track record in supporting the will of Parliament. What the Liberal Party, the third party in the corner over there, intimated was that the government was wrong in repealing the long gun registry. However, Canadians spoke very loudly against the long gun registry and we had a mandate in which to do that. Then Parliament, and of course when we talk about sovereignty the will of Parliament is very important, decided to do that. Then, of course, a provincial court ruling upheld the decision to destroy this data. The member somehow intimated that the government was in the wrong here.
What is really at the core of this particular issue is the sovereignty of Parliament. That is at the core of some of the objections to this piece of legislation which have come up in debate. I would like to address those, but I would first of all like to provide some context about the legislation as well as why it is an important piece that Parliament should be seized with.
First of all, to contextualize some of the opposition to the bill, I would like to define what a regulation is. This is from the Treasury Board website:
|| A regulation is one of the many instruments that government uses to achieve policy objectives and improve the quality of life of Canadians.
|| A regulation, in its broadest sense, sets out principles, rules, or conditions that govern the behaviour of citizens and organizations. Governments use regulations in combination with other instruments to achieve public policy objectives. Regulations are a form of law–they have force of law and usually set out general rules and penalties rather than specific ones that are directed toward persons or situations.
|| Regulating is an extension of the power given to Parliament by the Constitution to make laws. It is through a delegation of authority from Parliament in an act–known as an “enabling authority”--that the Governor in Council (the Governor General, acting on the advice of the federal Cabinet), the Treasury Board, a minister, or another administrative agency is given the authority to make regulations. The regulation is thus referred to as “delegated” or “subordinate” legislation. Authority to make regulations must be expressly provided for in the enabling legislation. Regulations must be consistent with all provisions of the enabling act.
|| The Statutory Instruments Act provides a specific definition of the term “regulation.” The Drafting and Advisory Services Group of the Department of Justice...is responsible for ensuring that a proposed regulation is consistent with that definition.
Right in the definition of what a regulation is, it sets out the role of Parliament and the sovereignty of Parliament and being able to set out its force, et cetera.
Today the bill is seized with the concept of incorporation by reference. For those in the gallery who may not understand what incorporation by reference is, the following is from the legislative summary of the bill:
|| Incorporation by reference, as explained by John Mark Keyes in Executive Legislation, “is a drafting technique for providing that a legislative text … includes material (text, information or concepts) expressed elsewhere. The material is included without reproducing it within the legislative text.
|| Different types of materials may be incorporated by reference. For example, a legislative text may incorporate another provision from the same text, provisions from another legislative text enacted in the same jurisdiction, legislative texts of another jurisdiction, or non-legislative texts such as technical standards or international agreements.
Of course, this is very timely in the context of the over 43 trade agreements that our government has brought into force during our tenure. The legislative summary continues:
|| In addition, incorporation by reference can be either “open” or “closed.”
|| “Closed” or “static” incorporation by reference incorporates the document as it exists at the time into the regulation.
One of the advantages of incorporation by reference is that it can be used to avoid duplication so that regulation-making authority does not have to reproduce the incorporated material in its entirety.
The legislative summary also notes that incorporation by reference may promote harmonization. This is particularly important in terms of seeking interjurisdictional harmonization, for example, to facilitate transactions or activities across borders.
Why is the bill necessary? As was mentioned, our government has undertaken a very aggressive and substantive free trade agenda. We have free trade agreements with many different jurisdictions in the world. In fact, I would think that is one of the competitive advantages that Canada now has in economy, in that we are positioned to have free trade access into the European market, as well as into the Asian supply chain through the Canada-South Korea free trade agreement.
Therefore, when we are looking at some of the agreements or legalities associated with these trade agreements, standards might be one of the things we need to look at. Certainly, in terms of regulation drafting, where there is an overall established governing standard that might be useful to incorporate in by reference, we need to have the mechanisms in government to do that.
Canada is at the forefront of standards development. There are hundreds of standards developed in Canada as part of the national standards system in Canada and then incorporated into federal and provincial regulations, such as standards developed by organizations like the Canadian General Standards Board, which would most likely be recognized by the name the Canadian Standards Association.
Standards developed by these organizations have already become key to the way sectors are regulated in Canada. There are more than 250 different standards produced by the Canadian Standards Association that are referenced in federal regulations.
We have this big free trade agenda and we are at the forefront of standards development. Also, standards development is very dynamic and fluid. Standards and regulations often follow, as we see advances and innovations in new ways of doings things, processes, and technologies. We need to be in a position as legislators to quickly and nimbly respond to these changes in the regulatory environment without causing undue duplication.
At this point, I would like to emphasize one of the great impacts of looking at regulatory review on an ongoing basis. The House is riveted with the extremely sexy topic of regulatory reform. I actually think it is. This is a very pertinent topic. The fact that our government, through this Parliament, brought in one-for-one regulation review signals to the business community that our government wants to ensure that Canadians have the highest level of health and safety, but also that we are not compounding an undue compliance burden on business.
One of the things that businesses often tell us when we consult with them is that they want no surprises. They want to comply with government regulations on health and safety, but a determinant to investment can be surprise or duplicative regulations or regulations that have a compliance burden that is unduly onerous. Therefore, it is up to us as parliamentarians to ensure we are achieving that regulatory outcome without an overly complex and undue burden in our regulatory system.
Regulation by incorporation as proposed in Bill , and how that would happen, both simplify and allow nimbleness in our regulatory system, which is a competitive advantage for Canadian business.
What would the bill do? Everyone is so remarkably enchanted with it, but it is important to talk about it. I am going to quote from speeches given by my colleague the , as well as the member for :
|| This bill deals with the regulatory drafting technique.
What does that mean? That means the process by which we draft regulations in government.
|| Essentially, the bill is about when federal regulators can or cannot use the technique of incorporation by reference. The technique of incorporation by reference is currently used in a wide range of federal regulations. Indeed, it is difficult to think of a regulated area in which incorporation by reference is not used to some degree.
|| The bill is about securing the government's access to a drafting technique that has already become essential to the way government regulates. It is also about leading the way internationally in terms of modernization of regulations.
Again, this sends a signal to civil society and our business community that we are ensuring we have regulations that promote the health and safety of Canadians, but also are clear and accessible for businesses and folks to understand and to comply with.
|| More particularly, Bill S-2 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. The bill would create the legal clarification needed so that regulators and the committee could leave uncertainty behind.
What does this mean? This means that there are people within the government who draft regulations, and we have heard through committee study that there needs to be more clarity in which context and which circumstances incorporation by reference can be used. That is what the bill seeks to do.
I would point to some of the more significant changes that the bill addresses. In subsection 18.1(1), it states that:
||...the power to make a regulation includes the power to incorporate in it by reference a document—or a part of a document—as it exists on a particular date or as it is amended from time to time.
This covers both the static and ambulatory incorporation by reference—and the differences in these two terms have been set out to a large degree by other speakers on this topic—and appears to apply regardless of the powers to make a regulation respecting or prescribing a matter or otherwise.
This power is subject, however, to the limitation in subsection 18.1(2), which relates to a document produced by the regulation-making authority, either alone or jointly with a person or body in the federal public administration.
In essence, a document provided by the regulation-making authority itself can be incorporated by reference into a regulation only if it does the following: it contains only elements that are incidental or elaborate on the rules set out in the regulation and is incorporated as it exists on a particular date; it is reproduced or translated from a document or part of a document produced by a person or body other than the regulation-making authority with any adaptations of form or reference that will facilitate in its incorporation regulation; or is a regulation.
The intent of the provisions set out in paragraph 18.1(2)(a) appears to be to ensure that the regulation-making authority cannot circumvent the regular procedure under the Statutory Instruments Act that I referenced earlier by making the substance of a regulation in a subsequent document, which it then incorporates by reference into its own regulation without the usual requirements of registration, publication, et cetera.
We have the context of what is a regulation, why it is important, how the regulatory process works in Canada right now, and then how the bill helps to augment and simplify that process.
With that context, I would like to address some of the key concerns that arose in debate on the bill when it was previously debated in the House. One of the questions was this: What are the standards that are currently incorporated by reference? There are many kinds of standards that are already incorporated by reference in federal regulations, including standards written by the International Organization for Standardization and other recognized international standards. A recent review of existing references in federal regulations revealed almost 400 references to these standards established by expert bodies.
My colleague from , Quebec, who was here earlier today, wondered exactly who a person is other than the regulation body authority, given some of the language in the bill. She said there is nothing to define that. That is false because, if she logs onto the Treasury Board website, she can see all of the different decision-making bodies that are a part of the regulatory process in Canada, including Treasury Board and Parliament itself.
This is a fitting discussion, given that we are close to the end of this Parliament, God willing. What is the issue of sovereignty and how does Canada maintain its sovereignty if we are going to incorporate by reference in regulations or standards that are international standards? How do we oversee and ensure that these regulations are up to snuff for Canadians?
At the end of this Parliament, we should be looking at the role of Parliament. It is in this place that we as legislators continually review legislation, review what is in the best interests of Canadians. In fact, we have had many debates in this session around new regulations. So when I hear that somehow there is no oversight, or somehow through incorporation by reference we would lose the ability to review this stuff, I completely disagree because it is in this place that opposition members can bring up and question the efficacy of regulations as we go forward.
There is something further to this that I want to point out, because this point has come up many times, and that is the role of the scrutiny of regulations committee. I pulled up part of the committee testimony that occurred in November 2004. This particular item was spoken to by the then joint chair, Senator Bryden. He spoke to the fact that the Standing Joint Committee on the Scrutiny of Regulations actually had a pretty substantive mandate. He stated:
|| The Statutory Instruments Act provides for the “review and scrutiny” of statutory instruments by the SJC. This review is conducted in accordance with the criteria adopted by the SJC.... Although the terms of s. 19 of the Statutory Instruments Act do not preclude review of subordinate legislation on its merits, the criteria adopted by the SJC do not provide for the review of instruments on policy grounds.
What it does set out is a huge set of criteria by which this committee can review regulations. It says it can review “whether any regulation or other statutory instrument within its terms of reference, in the judgment of the committee”, and then it goes through all the points that were brought up here, such as whether it is in conformity with the Canadian Charter of Rights and Freedoms. That was brought up. How do we know if a regulation that has been brought in through incorporation by reference is not in alignment with the charter? The standing committee certainly has the role of reviewing that, and I would also point out that, as with any other piece of legislation, the Canadian public can challenge legislation through the court system. Of course, Parliament being sovereign in a lot of respects, it is our job as legislators to put forward regulations and legislation that come from the will of the people, which we believe are in the best interests of the people we represent.
With the end of Parliament near, I think that is what we have all sought to do here across party lines. Our ideologies might differ from time to time, sometimes vehemently. Even though we are sitting here on a Thursday near the end of session talking about scrutiny of regulations, we are talking about what is in the best interests of Canadians. My colleagues opposite might have a different view, but that is our job here. It is somehow implied, and often comes up in debate, that the Supreme Court said one thing or another, and we have to respect and work with the judiciary, but this place is where we debate and make legislation.
With that, in what I hope is my final speech in this Parliament, I would like to deeply thank my constituents in Calgary Centre-North for the privilege of being able to stand here and debate important issues like this. On behalf of all my colleagues who stand in their places, I thank every Canadian who gave us the mandate to be here, to respect the will of Parliament and, I hope, to agree that Bill would simplify the regulatory process in Canada, would benefit business, and would continue to place Canada at the forefront of leading regulatory review around the world.
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 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 was originally introduced in 2012 by the Conservative government in the form of Bill .
At the time, as deputy justice critic for my colleague from , 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 .
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 continues the work on Bill that I had started on Bill , 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.
||“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.
|| 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 at the time, which is now Bill .
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 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 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 , 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 is like me: he adores that kind of work. It is essential work.
We will not have many more opportunities to talk about Bill , 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 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 is the notion of accessibility in clause 18.6.
It still bothers me that the committee members rejected the amendments by my colleague from , 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.
Mr. Speaker, I want to thank you and all your colleagues who have helped run this Parliament, as well as everyone who makes this place operate so well. We are very gifted to live in such a strong democracy, Canada. I love our country and I want a better life for all my kids, so it is an honour to stand in this place and join the debate on behalf of the people of Okanagan—Coquihalla.
I would like to talk about Bill , the incorporation by reference in regulations act, which the government has put forward in order to create greater certainty. In my speech today, I would like to touch upon a few different things.
We have heard time and time again that incorporation by reference has had a very common, long-standing use by drafters to be more efficient in the drafting of regulations. Let us say there is a reference in a set of regulations to the Criminal Code. Rather than having to print out the entire code, a reference can simply be made to it, with the expectation that someone would be able to quickly open up the Criminal Code, find the relevant provision and therefore not have to reproduce the entire Criminal Code in a set of regulations. This is efficient for the drafters and legislators who have to look at these regulations, for example, the Joint Standing Committee on the Scrutiny of Regulations, as well as preventing everyday citizens from having to read through things that are not relevant beyond a basic reference.
Let us take a step back and talk about why Bill is relevant today, why it is important and needed.
If we go back to the 1960s and 1970s, many of us probably grew up listening to members of Parliament. They stood in their places in this chamber and discussed what was important to them, such as wanting more oversight on consumer protection and more discussion about regulations that would allow better health and safety in workplace environments.
As democratically elected people do, they listened and put forward various rules, but as they did that, they found that by simply putting statutes into place, oftentimes there was not enough in the statutes to direct officials in the various ministries who were delegated the authority to act under those laws and, thus, the need for regulation. What we saw was the rise of the regulatory state, where it was no longer appropriate. In many people's perspective, there have always been two different schools on regulation making. One is that highly competent professionals are given the discretion to apply administrative rules, but, again, those are subject to issues of fairness because not everyone can agree on what is fair.
Therefore, the system went to being more of prescriptive administration, where certain key things were laid out. The reason regulations were so important was because oftentimes the law would give broad outlines of what was wanted and then the department that was delegated the authority, working with the minister and the justice department, would then draft administrative regulations to ensure that most, if not all, situations were anticipated.
As we grew in stature, as the economy and the population grew, as well as demands for better protections, whether we are talking about transportation or consumer protection, these regulations began to increase. Therefore, there were concerns about oversight, which I believe the justice minister of the day, John Turner, decided, at the beckoning of colleagues from all across this place, that there needed to better oversight of these administrative regulations. Therefore, the Joint Standing Committee on the Scrutiny of Regulations was created, an opportunity for parliamentarians from both chambers to ensure that what was being debated in both houses and passed into law was found in the regulations and that nothing contravened any of the obligations of government, such as the Bill of Rights, the Charter of Rights and Freedoms, that all official bilingualism was being kept.
Since then the Standing Joint Committee on Scrutiny of Regulations has basically had the purview of every single directive and regulation under the Statutory Instruments Act, and I have had the great honour of working with the council and the committee of the Standing Joint Committee on Scrutiny of Regulations. Peter Bernhardt and his team are very committed Canadians. They feel very strongly and work very hard for all of us, and as parliamentarians we need people like that to make good choices.
Often we hear, either in this place or in reports, that there is no consensus-building in Ottawa. I want to say just the opposite. The reason many people do not know about the Joint Standing Committee on Scrutiny of Regulations is that everything is done by consensus, or at least 99% of it.
That is because we have our debates here. The democratic vote is taken. The will of Parliament is expressed and becomes law. Then the laws are put into place by independent regulators or departmental regulators, and that is important. If issues come up, we have already had the debates and the will of Parliament has already been expressed. The only question is how we carry forth. Is there a drafting error? Is there an area where we need to make clarification?
The joint standing committee has done very good work over the years. It has a number of roles. It is an immensely powerful committee, and I am privileged to sit on it. I am privileged to learn a little bit more about the other place and have an opportunity to work with senators, because there are senators who care very deeply about the future of Canada, just as we do.
Over the years, the committee has made growing use of incorporation by reference. Why is that? It is because incorporation by reference is a long-standing drafting technique. As more regulations come into effect and our economy becomes more integrated with the world economy as well as with overlapping provincial regulation, it only makes sense that there needs to be a common understanding, and incorporation by reference makes it easier for everyone to be able to read what the law means under the regulations.
Bill S-2, the incorporation by reference in regulations act, is a response by government. It is a guidebook, so to speak, as to when and where incorporation by reference would be used, whether it be static, which is just a simple reference to a particular document as it was at that time, or dynamic, where there may be changes.
We have heard from a number of people, including myself in previous speeches, about Canada's enormous capacity in technical expertise. We lead the field in reaching international consensus because we have such strong standards at home and are able to share those standards while including other countries' standards.
I would like to take a step back and also point out that it is not just the rise of the regulatory state since the 1960s. Other things have also affected us. In the 1990s and early 2000s, there was globalization. Technology has changed the way businesses interact and the way we interact as people, and it happens on a daily basis.
When we talk about these things, we talk about Canada's place and standing in the world and how we are making sure that our great Canadian products have better access to markets.
The previous Liberal government's five international trade deals have been cited many times in this House. With this government, there are 43. That is important to note, because as we open up tariff-free access to Canadian products, we also have to make sure there are no barriers. One example of a non-tariff-based barrier to trade might be a standard in one country that is not accepted in the other. We may have the best widget, food product, or, in my case in , bottle of wine, but if it does not harmonize with that standard, we cannot send it there. This becomes a very real issue.
As the mentioned earlier, a good example of that is the co-operation between President Obama and this government beyond the border in making sure that the interregulation trade councils are able to harmonize where it makes sense for everyone. I will reiterate: where it makes sense for everyone. We are sovereign nations, but it is sometimes in our enlightened best interests to work with others.
Again, we have the rise of the regulatory state. We have globalization. We have increases in technology. Everything is accelerating, so it only makes sense to start to clarify when these incorporation by references would happen. I will give the House a good example domestically of how this would help.
It is very easy for someone to use a smart phone find out what the current interest rates are. It is easy for someone to find out what the consumer price index is. However, if we were to fix that in regulations and make reference to the rate of interest as set by the Bank of Canada, it may be difficult to say in static reference what that is. Most people would just say that the rate is calculated for a certain tariff or certain fee with the consumer price index. Now they would be able to go online and find out what that current rate is. That makes it more certain and easy for people to access. That is a basic incorporation by reference that should be dynamic.
Should we be using this tool of dynamic incorporation by reference on everything? I would say no, but that is why we are having this debate here. We need to determine when it is appropriate. The scrutiny of regulations committee has raised concerns about it, and that is why we need to put in place a bill that would specify when to use it. This would empower us as legislators. It would clarify for government departments when it is not appropriate. It would clarify it for the justice department, which drafts many of the regulations. As I said, it would also make it easier for individuals and businesses locally to be able to determine what they would need to do.
I want to quickly go back to how this would benefit Canadian businesses internationally, because this is an important area for me. For example, Canadian marine manufacturers have said to me that when they are trying to sell their products abroad, their products need to be certified to international standards. It makes no sense for us to have regulations here in Canada that basically reproduce a whole international standard when we can simply make reference to it as that international standard changes, as it often does.
We are not alone in this world. We are a dynamic country, but we are still small in terms of size. We certainly punch above our weight, and I am going to continue to advocate for whatever we can do in that way.
The important thing here is that when we allow incorporation by reference, we are allowing Canadian businesses to succeed, and when Canadian businesses succeed, not only does it put food on the table because workers are able to draw income from good work, but it is also something we take great pride in.
While I am on the need to harmonize these regulations, I will mention that the hon. met with his provincial colleagues about a week ago to discuss interprovincial trade barriers. Many of these barriers are regulatory, and they have a profound impact on wine producers in my province. We have the same situation at home, and I am thankful that the has been able to create a consensus with all of his provincial colleagues that the status quo is no longer tenable. I applaud that. We also need to make sure we are doing the same thing here.
I have heard some criticisms and I am going to repeat some of them, although I am going to just incorporate them by reference. I am also going to give a little feedback that I hope will address some hon. members' concerns.
One concern has to do with official languages. Some people have said that the regulations will not be in English and French. That is absolutely false.
Everything that goes through the Canada Gazette process has to be done in both of Canada's official languages, and that will continue. That is important for people to know. Those regulations are produced by Canadian regulators, and they need to be in both official languages. All of us agree that it should be that way.
Second is accessibility. Some people have pointed out that accessibility means different things to different people. I will provide an example.
If I were to open a standards for Canadian electricians textbook and look through it, it would not matter if it was English or French. I would not be able to understand it, because I do not have that technical expertise. Many times these standards are in very specific industries. They have specific jargon and require specific expertise. The Government of Canada should work with those existing authorities and, through our technical committees, make them as clear as possible.
We could email the regulations to every single person in Canada, but most people would find them either irrelevant or else unreadable because they lacked the expertise or training to apply those standards.
It is important to note that the Internet is making things more accessible all the time. Many people utilize Google to go onto international websites of different languages. Suddenly they are able to read that website in very good English. Of course, as those algorithms continue and as the scope of the Internet's reach continues to enlarge and gather more data on how we speak and what we mean by certain things, that accessibility will only get better, so it is important to note that technology is, to a large extent, really making it easier for anyone to access information.
There have also been some issues raised about retroactivity. On the Standing Joint Committee for Scrutiny of Regulations, we ask ministers on a regular basis to consider legislation as a remedy for a situation that was not originally contemplated and needs to have the force of law behind it. This happens on a regular basis.
What we are mostly talking about here are references in regulations that basically say “as amended from time to time”. That should not be controversial. It just means that when a new safety apparatus or standard has been put forward, that is the new standard. We are the ones who decide that. If we do not like it, as Parliament we can ask the government to change the standard. We do the choosing.
I also want to address the sovereignty issue. This House, combined with the Upper Chamber, decides what the law is in Canada. That is something I believe in.
I would like to give a good example of the rhetoric of the NDP. It sometimes does not always follow consistently from committee to here in the House. We had members of the NDP at the joint standing committee raise concerns around the convention on international trade in wild fauna and flora. It is an international convention that protects wildlife so that humanity can maintain our world heritage of these different endangered species. I think all of us would agree that it is an important thing. That is why we are part of it. However, New Democrats said they were upset that the government had not yet acted upon the latest convention, because it has to go through the regular gazetting process, and they were complaining about it. They were saying it was not appropriate.
Perhaps with the use of incorporation by reference, the moment Canada, along with anyone else, agrees with an international convention, it could become regulation automatically. We cannot have it both ways. We cannot have the benefits of the regulatory state without saying that things we all agree on should be done and put in place right away. It should not take years to put in place simple changes when they could be put in place quickly through incorporation once everyone on the international stage has been involved.
The NDP sends out these different messages. That approach does not create certainty and it does not always contribute to the public good. I do admit that there are some legitimate criticisms, but there are trade-offs in every policy, whether we are talking about trade or a new measure coming forward. The NDP only wants to see the negative side.
. We know our country was built on hard work and sacrifice. We know that Canadians are fair and practical people. We know that when Canadians compete, they can succeed. They need their government to make sure they have access. Bill is a meaningful approach that would give certainty to the government, to Parliament, and our businesses and would create better outcomes. That is how this place should work.
Mr. Speaker, I am pleased to share my speaking time with the excellent member for . I have agreed to share my time with him so that he can speak on behalf of the people of Chambly—Borduas concerning Bill .
In the next ten minutes, I will speak to the House about Bill , on behalf of the people of Sherbrooke. I am going to try to make it understandable and to talk about its potential consequences and the reason why we decided to oppose it at report stage in the House.
I would like to thank the people who have worked on this bill, including the members for and for , who have both spoken today. I want to thank them for their work on this issue, which was also done in the Standing Committee on Justice and Human Rights, where witnesses were heard.
As we always do, we worked constructively in committee to improve the bill and respond to the concerns voiced by some witnesses in their testimony. Unfortunately, once again, the government decided instead not to consider any of those concerns and not to amend the bill as it was drafted.
This is unfortunate, because the concerns raised by the witnesses are legitimate. These experts appear before committees to tell us about their concerns and the reasons why we should make changes to bills.
Unfortunately, the opposition amendments are rejected every time. It is a shame that we do not have an atmosphere of collaboration in committees. Nonetheless, I would still like to highlight the excellent work done by my colleagues and members who have worked on this issue.
As I said earlier, we are going to oppose this bill, because a number of flaws have been pointed out. I am going to try to list most of them. I must admit that I have limited experience when it comes to regulations, but I have in fact gone through a very specific recent experience, having worked on the designation of the Sherbrooke airport under the Canadian Air Transport Security Authority Act.
Let us not forget that the 89 airports designated under the act were designated by regulation. The Governor in Council can decide at any time to add, remove or change, in any way, the regulation that designates Canada's 89 designated airports.
As the member for Sherbrooke, naturally I have undertaken to have the Sherbrooke airport added to the list of airports designated under the act. Unfortunately, the Governor in Council, the , and his office, refused to add the Sherbrooke airport or any of the other airports seeking designation to the regulation. That is a shame.
That experience helped me to better understand how regulations work and how they are made, and to realize that they have to go through publication in the Gazette. Regulations are also subject to review by parliamentarians at the Standing Joint Committee on Scrutiny of Regulations.
I would also like to highlight the work of the committee, which studied these issues and also expressed a number of reservations about certain aspects of the bill, reservations that the Conservatives simply ignored. The committee also did extraordinary work in that regard, but did not get support from the government and the majority members of the Standing Committee on Justice and Human Rights. That is a shame.
That helped me better understand the importance of having clear regulations that ordinary citizens can easily understand and grasp the ramifications of.
In Canada, there are 3,000 regulations comprising 13,000 pages. Regulations are very common in our acts and regulations. Many acts give ministers and the Governor in Council the power to make or change regulations as needed. The advantage of a regulation is that it can be changed more easily than an act. It can be changed quickly. The legislator does not have to go before the House to change a regulation.
Thus, there are positive aspects, but there are also negative aspects, especially with respect to the information referenced in the regulations. We talked about incorporation by reference that will refer to other regulations or other information such as the rate, fee or other types of additional information in the law. This additional information that is referenced can also change. It could come from different sources. It could be trade agreements. In many situations, a regulation could refer to rates, figures or dimensions. For example, the automotive sector has the most regulations. The Department of Transport is one of the major regulation-making organizations. There are a lot of regulations and standards in that area. This information, which is not necessarily static and could change quickly, could be directly referenced in the law and in regulations.
Furthermore, the bill would allow for references to regulations or standards from other countries, which creates another serious problem: the accessibility of information. It can be a problem for a citizen if a reference is made to information that is difficult to access. Ignorance of the law is no excuse, and according to the rule of law, everyone is required to understand and know the laws, which include regulations. It is becoming increasingly hard for the people of Sherbrooke to keep up with the regulations and standards, especially when references are made to texts from other jurisdictions.
Accessibility is not simply a matter of being able to read the regulations. People also need to be able to read it in the language of their choice, in one of Canada's two official languages. That is another serious problem facing the people of Sherbrooke who want more information on a reference that is in another jurisdiction. If it is in the United States, for example, the reference would be in English, and some people may be okay, but in the case of references in other jurisdictions, in languages that are less common here in Canada, it would be harder for someone from Sherbrooke to access that information.
Accessibility is the biggest problem with this bill. I thank the committee members who tried several times to better define accessibility to ensure that the documents referred to are always easily accessible. There could be one single portal where someone could access everything: references, regulations and the relevant documents, in both official languages. We have not received any assurances that this will happen.
There are other problems that I did not have a chance to mention, which is why we oppose this bill at report stage, since it certainly did not reassure us.
I would be happy to take questions from my colleagues.