Good afternoon, Mr. Chair and ladies and gentlemen of the committee.
My name is Karen Proud and I am the president of Consumer Health Products Canada. For those of you who don't know us, we're the trade association that represents the companies that make evidence-based over-the-counter medications and natural health products. These are products you find in medicine cabinets in every Canadian home. From sunscreens and vitamins to pain relievers and allergy medications, people use consumer health products to maintain their health and manage their minor ailments. This is a fundamental part of self-care that is vital to the health of Canadians and to the sustainability of our health care system.
I'm very pleased to be here today to speak in support of Bill and want to thank the committee for the opportunity.
In our opinion this bill is important in two ways. It provides express authority for departmental regulatory authorities to utilize an important tool in the drafting toolbox where currently there exists ambiguity. More importantly, it creates efficiencies and flexibilities within the regulatory process that are necessary to keep pace with the rapid rate of change in the regulatory environment.
The bill also contains a number of safeguards that have been put in place to ensure that the use of these new authorities is in line with current regulatory practices. While we certainly support safeguards related to ensuring accessibility and maintaining official languages, we would call into question the limitations that this bill imposes on regulatory authorities when it comes to referencing documents they produce internally.
As it stands today, this bill would not allow departments to use dynamic references for documents they produce themselves or produce with a person or body in the federal public administration. We think this is a bit short-sighted. Our members' products are currently regulated under the Food and Drugs Act. The act, which was amended in 2012 through the budget implementation bill, Bill and again this past fall with Bill , gives the Minister of Health the authority to incorporate by reference any document, regardless of its source, either as it exists on a particular date or as amended from time to time. The Safe Food for Canadians Act, which passed in November 2012, has similar broad authorities for incorporation by reference.
It may surprise the committee to hear that we fully support providing regulatory authorities with these broad authorities under the proper circumstances. Under the Food and Drugs Act, our members rely on the fact that the department can incorporate by reference documents that it produces, which change over time. For example, the “Compendium of Monographs” is a document produced by Health Canada and incorporated by reference into the natural health products regulations. It allows new product applicants to reference the data contained in the monographs to support the safety and efficacy of their products rather than providing evidence for ingredients that are already known to be safe and efficacious when used under the conditions specified in the monographs. This significantly reduces the regulatory burden for industry and helps speed the evaluation of applications without compromising safety and efficacy requirements.
One of the biggest challenges with regulation is to maintain flexibility within the system to adapt to changing environments, so why tie the hands of regulators? Why not, instead, ensure that they have the tools they need and create a system of checks and balances to ensure that these tools are used responsibly? We recommend removing the limitations that are contained in Bill but ensuring that there is proper oversight so that these authorities, both in this bill and as they exist in other legislation, are used consistently and in the spirit in which they were intended by Parliament.
Specifically, we ask that the Treasury Board Secretariat be tasked to immediately develop guidance in the form of a cabinet directive that must be followed by departments when exercising the authority to incorporate by reference. We would also suggest that the Standing Joint Committee on Scrutiny of Regulations broaden its mandate to look not only at regulatory instruments but at the departments' adherence to Treasury Board guidance. With these two things in place, we feel departments will have access to an important regulatory tool with the proper oversight.
While I understand that the clause-by-clause review of this bill will take place immediately following this round of testimony, I do hope that you will consider our proposals. I look forward to any questions you may have.
Thank you.
:
Thank you very much, Mr. Chair and members of the committee. I appreciate an opportunity to bring the viewpoint of the Standards Council of Canada and provide our comments in support of Bill .
I'm going to give you a little background on myself personally, because I've been involved in the standards field for close to 25 years. I was appointed as the CEO of the Standards Council of Canada five years ago. Prior to that I was the vice-president for standards development of the Canadian Standards Association, and I was responsible for the development and maintenance of probably 3,000 codes and standards.
Prior to that I worked for the Government of Ontario for 30 years. The last 10 years, I worked as an assistant deputy minister of a technical standards division in the government and I was also the president and CEO of the Technical Standards & Safety Authority. For that last 10 years I was responsible for referencing many national, regional, and international standards into Ontario regulations.
Incorporation by reference has great significance to the entire network of organizations and individuals involved in standardization. I talk about standardization in both senses of the term. Standardization includes the development of standards, but also the testing of products by accredited certification bodies.
Technical standards are among the external documents most often cited by Canadian regulators. SCC monitors the use of standards in regulations by federal departments and agencies. In May of this year, our inventory included 1,118 standards that are referenced in federal regulations. There are a number of departments and agencies that make the greatest use of standards in those regulations: health, transport, environment, natural resources, the Canadian Food Inspection Agency, industry, and Employment and Social Development Canada.
Generally standards are referenced because they provide specifications and guidance to protect the health and safety of Canadians or to safeguard the environment. Examples of standards incorporated by reference in federal regulations include such things as laminated safety glass used in glass enclosures and balconies—you'll be aware of some court cases regarding the use of laminated safety glass—leak detection in fuel tanks, storage and transportation of explosives and dangerous goods, or the certification of organic foods.
In addition to those federal departments, there are thousands of referenced standards in provincial regulations. When you add in the standards referenced in Canada's model codes—and those model codes are the building, fire, and energy codes—you begin to comprehend the magnitude and consequences of the issues being addressed by this bill today.
There are now eight standards development organizations accredited by the Standards Council to develop standards in Canada. To maintain that accreditation, they must develop standards through a formal, rigorous process that is based on internationally accepted guidelines, including the World Trade Organization's code of good practice. That's a process that promotes open, transparent, and inclusive standards development. This is important to understand as you consider the ramifications in this bill.
The first step of the process is to create and maintain standards development committees that consist of a balanced matrix of representatives from affected stakeholder groups. That means that those people represent a combination of interests, expertise, perhaps even countries or regions. The valuable point at this stage, as you understand, is that no single group can dominate the agenda nor decide the outcome of the standard. Content is developed by the group through consensus.
Once consensus is achieved, the draft document is posted for public review and comment. Every comment must be examined and resolved by the technical committee; therefore, the outcome is much more accepted than if the rule were drafted by one group alone.
In addition, the developer of these standards is required to assess the need for revisions to the documents at least once within a five-year period. Many standards are in almost constant review and revision.
Federal regulators are among the experts participating in standards development committees. They're an integral part of the balanced matrix of interest that I mentioned. To give you a sense of scale, there are probably close to 365 federal government employees who actively participate in the development of just international standards. Those international standards are at ISO, the International Organization for Standardization; IEC, the International Electrotechnical Commission; or ITU, the International Telecommunications Union. That's just at the international level. Many hundreds more also participate in specific Canadian standards development activities for hundreds of standards that find their way into regulations.
Standards developed by either Canadian or international organizations can be submitted to SCC for approval as national standards of Canada. National standards of Canada provide regulators with clear confirmation, a stamp of approval you might add, that Canadian conditions and requirements have been appropriately considered. For a standard to become a national standard of Canada, public consultation with Canadians is required. NSCs must be made available in both official languages.
Although it is clear that many standards are incorporated by reference in federal regulations, our concern is that we've noted many challenges and inconsistencies in the methods by which incorporation by reference is currently being employed. Both the static and ambulatory methods of incorporation are currently being used. Both have merits in their own right. Unfortunately, we believe that the rationale and approach to a selection of a method of incorporation are not always understood or consistently applied by departments.
Each method has certain particularities which should be evaluated in the context of the rationale for citing that reference. For example, an important consideration would simply be, did the regulator participate in the technical committee of the standard in question?
For these reasons, and I'd like to support the earlier speaker, we believe that a government-wide policy or guideline, probably by Treasury Board, that provides guidance to regulators on the appropriate considerations is needed. We have witnessed first-hand the many benefits to Canadian regulators of using the drafting technique of incorporation by reference. For example, they leverage existing credible infrastructure without incurring additional costs, resources, or time.
But for the system to work, we believe that the references to standard and federal regulations need to be up to date and that standards used by regulators across jurisdictions need to be aligned when possible. This isn't just an issue for the Government of Canada. It's an issue for the 13 provincial and territorial governments.
Aligning regulatory requirements to regional or international standards is a way for regulators to establish compliance requirements without introducing additional red tape. That's because Canadian industry certifies many products to regional or international standards in order to access global markets.
In addition, referencing the latest available version of a standard in a regulation can contribute to higher levels of protections for Canadians. That's because new standards as a rule set the bar higher in terms of safety and performance.
In conclusion, it is evident to us that standardization represents a necessary and valuable complement to Canada's regulatory framework. Standards must be updated on a regular basis to reflect rapid changes in technologies, markets, and safety requirements. Therefore, it makes sense to equally modernize Canada's legislative framework to ensure that references to standards in federal regulations are accurate and reflect the latest available edition.
That's why we support this bill.
Thank you.
Good afternoon, Chair, and members of the committee.
I am here today as a representative of the Canadian Council of Criminal Defence Lawyers.
The council was formed in November 1992 to offer a national voice and perspective on criminal justice issues. Since the organization's inception, the council has intervened in important cases before the courts of this country, has been invited by the federal government to consult on major pieces of criminal legislation, and has been often asked by the media to comment on current issues.
Our representatives have appeared before the Senate Standing Committee on Legal and Constitutional Affairs, the House of Commons Standing Committee on Justice and Human Rights, and the Standing Committee on Public Safety and Emergency Preparedness.
The current board has representatives from all ten provinces and three territories.
On behalf of the council, I would echo support at least for the spirit of Bill , but I am going to go on and explain a possible concern from a criminal justice point of view.
I consulted a little bit with some of the more accomplished criminal justice lawyers before I came to make this appearance and I can tell you, not very many criminal justice lawyers spend a lot of time thinking about incorporation by reference. However, that doesn't mean that it's not an important and actually really interesting issue from a criminal justice perspective.
Looking at the existing act, if you read the preamble it says:
An Act to provide for the examination, publication and scrutiny of regulations and other statutory instruments
From a criminal justice point of view, that's an important function that this act has, because if you're going to hold people accountable, they have a right to know the law. One of the functions of the Statutory Instruments Act is that it lets people know the law. It gives scrutiny to regulations and it stipulates that they be published in certain ways.
Furthermore, it goes on in section 17 of the existing act to specify the rights of access. It specifies that people have a right to both inspect and obtain copies of regulations.
There is also noted in the act exceptions to the process for making regulations, in section 20, which explains exceptions for publication and different mechanisms for oversight. But even the exceptions provided for by section 20 have oversight because those exceptions have to be defined in the regulations to the Statutory Instruments Act.
What we have is an act that provides for some oversight of the development of regulations. It provides that people will be aware of those regulations once they're developed. The thing is that a lot of the regulatory offences that are defined are defined by regulations, either fully or at least partly.
When you look at the amendments, a combination of a few of them together creates an interesting effect, especially in proposed section 18.1 of the bill, which allows for an ambulatory incorporation by reference.
Proposed sections 18.3 and 18.4 ensure that these documents will be accessible, but it allows that they not be published in the Canada Gazette, which is the normal way that regulations are publicized.
Proposed section 18.6 actually creates an interesting exception. It limits the liability for offences related to incorporated materials if those materials are not accessible. A lot comes down to this word “accessible”, but it doesn't seem to be really adequately defined; in fact, it doesn't seem to be defined at all. So we actually now have a built-in excuse where ignorance of the law is an excuse, but we don't really have a standard for what constitutes whether a person was made aware of the regulation or the incorporated document. This obviously could wind up in front of a court with an argument over what constitutes “accessible”.
Also raised in the legislative summary and some of the debate that's occurred on this already is the notion that there doesn't seem to be a requirement for incorporated documents to be available in French as well as in English. Normally, regulations must be published in both languages. For incorporated materials it doesn't seem that requirement exists.
The other thing is, in a normal regulation-making process, for the translations, obviously, there's quality control, so that we can be sure the French and the English versions are consistent. In a document that does exist that's incorporated by reference and that's available by a third party, there is really no oversight that the French or English or possibly other language versions will have the kind of consistency that a regulation has.
Current practice includes incorporation by reference of documents that are actually published by organizations outside Canada. I've brought along an example for you. The ozone-depleting substances regulations, published pursuant to the Canadian Environmental Protection Act, incorporate the following definition:
“Protocol” means The Montreal Protocol on Substances that Deplete the Ozone Layer, published by the United Nations Environment Programme....
The regulations go on in part 1, controlled substances:
This Part applies to (a) a controlled substance within the meaning of the definition in paragraph 4 of Article 1 of the Protocol, as clarified by Decision I/12A, as amended from time to time;
It's incorporated on an ambulatory basis.
Section 4 of the regulations says:
No person shall import or export a controlled substance from or to a State that is not a Party.
If you go back to the Canadian Environmental Protection Act, section 272(1) creates an offence. That offence has consequences that start in the tens of thousands of dollars and goes up to the millions of dollars and can result in years, in some cases three years, in prison.
What we have is a regulatory offence created through regulation, which incorporates a document that is published by an organization that exists outside of Canada completely beyond the oversight of the Canadian government.
Obviously, in the case of something like the Montreal Protocol, there are some clear advantages to that. This is a well-known organization, the UN, and this is an example of international treaties that have been successful. This is the hallmark of international treaties and there's really little reason to doubt the quality of the work these people do.
But we live in a world where we are negotiating more and more international agreements on more and more subjects. We're negotiating agreements on trade, the environment, and all kinds of things. To give you an example, if you follow in the press the development of the Trans-Pacific Partnership—and there's not really a lot of, I think, reliable information about it—there's a suggestion that it might be required, if we were to sign onto it and other countries sign onto it, to implement sanctions against the breaking of digital locks.
We might have a situation where we create an offence relative to a negotiated trade agreement and that offence again is related to a document that is beyond the control of the Canadian government. As you can see with the Montreal Protocol, it's implemented on an ambulatory basis, and I think that's a reason to just pause for a minute and take some concern. The legal principles that you might run up against in a case like that are the rule of law, which suggests that we should establish a normative order of clear principles for people to follow.
Section 7 of the charter suggests that ambiguity in the law is a problem, and from an administrative law perspective you could run up against the principles of procedural fairness with a situation like that.
Those are my remarks.
Thank you.
:
I appreciate that. I want to make sure that we actually understand what we're talking about at the table because this is actually something that's outside the purview normally of this particular committee.
Just for edification, to see if I have this right, without incorporation by reference, if Canada had ever wanted to change its regulatory environment to match something that an international governing body or council or standardization agency might have had, we would have basically taken a copy-and-paste approach into the regulatory approach, put it into part I of the Gazette, gone through the time period, and then put it into part II. That was how we would have changed the regulations, right?
Incorporation by reference is like the Internet. It creates a hyperlink from the regulatory body that's allowed through the legislation, as Mrs. Proud was talking about, with some of the legislation, and it hyperlinks right to a document that somebody else might be in charge of, which I think you, Mr. Walter, rightly pointed out, usually involves a very credible oversight. Usually Canadians are involved in all of these kinds of things, which improves the efficiency and efficacy of the regulatory process, yet it still goes through the gazetting process. Do I understand that correctly?
Mrs. Proud, is that how that would still work?
I think this group of witnesses has done a good job of identifying the concerns.
What I have gathered from your respective testimony, Ms. Proud, Mr. Walter and Mr. McCuaig, is that everyone agrees on Bill .
We understand the idea of modernization and how quickly regulations, agreements and similar documents are prevailing in Canada. Of course, this process is not easy. I listened with interest to the questions of my colleague, Mr. Albas, as both of us were sitting on the Standing Joint Committee for the Scrutiny of Regulations at the same time. Other individuals around this table have perhaps also been members of that committee.
To outside observers, that committee may appear to be the most useless of all, but that is because those individuals don't understand what happens in the committee. Once on the inside, however, we understand that this committee is probably the most important one, after the Standing Committee on Justice and Human Rights. That's at least how I see things. That is where the necessary parliamentary scrutiny and control take place.
One of the issues the joint committee has always raised concerning ambulatory incorporation by reference
[English]
—that's “ambulatory”, in English—
[Translation]
was accessibility. We are talking about accessibility and using the term “otherwise accessible”. However, the term “accessible” is not very clear, and I'm not sure that “otherwise accessible” is any clearer. It's a matter of determining how it would be possible to apply the power granted under the Statutory Instruments Act.
How can we ensure that this verification will be done in a parliamentary context?
Correct me if I'm wrong, but I think regulations incorporated by reference can still be reviewed and analyzed. However, that is a bit elusive. That's one of the problems.
Isn't this a way to bypass the role and work of our joint standing committee, here in the House of Commons.
You also talked about the need to have
[English]
what you call Treasury Board guidelines on what it is. We need definition of accessibility, knowing about the changes.
This is an approval of Bill , but with a big caveat that we still need this. Will it work without those guidelines or is it going to be a free-for-all in a very short time?
:
I'm happy to start off. Maybe I'll start with your second question first.
As we're all aware, this is a practice that is going on currently. Incorporation by reference is a tool that is being used by many departments. A dynamic or ambulatory reference is being used, and—I speak on behalf of my organization and my members—so far it works fine. The sky has not fallen, and we have not had major issues, and frankly, incorporation by reference has solved a lot of problems that we have had in the past.
This being a very broad and perhaps new authority for many departments, without the oversight that we're all, I think, suggesting in some shape or form, it could be problematic.
Inconsistency is one thing that drives industry crazy. Inconsistency in how governments apply things that are the same in different ways drives us crazy. Without the oversight and without the guidance from Treasury Board, we're going to run into the sort of situation sooner rather than later in which departments are picking and choosing how they do incorporation by reference.
It's very important that we have that oversight before these authorities are being used widely, especially within departments that have not had the experience using them that some of the departments we deal with have had and have so far done quite well with.
You will recall that, on Thursday, almost two weeks ago, following a motion moved by Mr. Casey regarding the Supreme Court's appointment process, I proposed another motion. I gave the government the benefit of the doubt. I was twice told by the committee's government members that they might support my motion. So I did this in good faith, and I am sure everyone has done the same and invested the necessary efforts.
However, I will use the few minutes I have to plead with the Conservative members on this committee. They are Dan Albas, Blaine Calkins, David Wilks, Robert Goguen, Bob Dechert and our chair, Mike Wallace. To my knowledge, we make our own decisions. The motion I put forward reads as follows:
[English]
That the Committee undertake a study on the best transparent process for the nomination of judges in all courts under federal jurisdiction, including the Supreme Court of Canada; and that the Committee reports its findings to the House.
[Translation]
If I may say so, I think that this is a common-sense motion. I'm not saying that because I moved it, but because I think it is non-partisan. It does not prejudge the decision the committee may make following its consideration and imposes no time pressure.
I am very aware of the government's agenda and the bills before this committee. Nevertheless, this is a relevant study in light of what we have experienced since 2011, when I became a member of this Parliament. A number of appointments have been made to the Supreme Court since then. However, there are many vacant positions in the superior courts of various provinces. The staffing of those positions is already included in the budget. I think it is time to do something about this.
In Quebec, we lived with Bastarache Commission in a specific context. We have reviewed the way appointments are made to try to be as non-partisan as possible, in order to ensure to do exactly what the Minister of Justice constantly answers when I ask him about this during House of Commons question periods. I also think that this is truly at the forefront of the accessibility to the justice system issue. The impression Canadians have of justice and the actual justice system is also something to consider. There is often nothing worse than impressions and rumours that do not reflect reality.
When people start to believe that their justice system is somewhat partisan—whether or not that is true—it may be time to stop and reconsider. Studies were carried out on this issue over 10 years ago. Attempts were made to operate in a certain way, but those attempts were interrupted in the middle of the process. All sorts of suggestions have been made, but even specialists do not agree on those issues.
I have no preconceived ideas. Of course, I have some ideas, but I am still hoping that we will someday manage to find a system that, as the minister says, will bring together the most qualified people—in other words, a system where people would not have the slightest doubt about the individual hearing their case.
As all lawyers around this table know, there is nothing more frustrating than having to tell your client, in court, that the day will be difficult because of anything having to do with the judge. We should at least be able to count on complete judicial impartiality. That would actually be good for judges, as well, since they are the primary targets of any public criticisms.
The message I would like to send through this motion is that it is time to at least commit to beginning the process. Although the Department of Justice and the Minister of Justice do not agree, and neither does the Prime Minister, as we often say, committees are masters of their responsibilities, their own procedure and their files.
At some point, we have to stand behind our comments. I think that, if we are independent, despite the Conservative majority, we have to have the courage of our convictions when we believe in something. I think this study is necessary. Some specialists are already considering this, and all sorts of seminars are being held.
It seems to me that, as our constituents' leaders and representatives, we should not be trailing behind all the constitutional experts, lawyers and commentators of the country. We should rather be at the forefront and should undertake this study. I dare hope that my colleagues will vote on the basis of their own convictions and acknowledge the common sense underlying this motion.
We may not even have the time to carry out the study, given all the files we have to consider. However, the Standing Committee on Justice and Human Rights should at least commit to undertake this study, whenever it can find the time, or to commission specialists to carry it out, so that people from all backgrounds, across the country, can submit briefs to us on this issue. I think that goes without saying.
We all know that this is the Governor in Council's prerogative. However, all party leaders have practically committed to make changes and to make the process as open and transparent as possible. However, we see that this has not really happened. That may be the best method, but a study on the topic should at least be carried out again.
This is the motion I am putting forward.
:
I want to thank my colleague for her motion. This is obviously a very large-scale motion. It calls for us to review the judicial appointment process, not only in the Supreme Court, but in all courts under federal jurisdiction. Yes, we know full well that this is the prerogative of the Governor in Council.
I am wondering whether it would not make more sense to move this motion in the House on an opposition day.
This issue, which is very touchy, should be debated in that arena, in my opinion. That way, the context would be entirely democratic and less restrictive than in this committee.
[English]
As you've mentioned with regard to the schedule, and I mean this quite frankly, voting on this would be somewhat theoretic because we now have two government bills, three private members' bills, and a study. Certainly a study of this nature.... I mean, we're studying the nomination of all judges, not just Supreme Court judges, and that would take a vast number of witnesses and sessions. It's just something that we're never going to get through before the next election.
Quite frankly, the motion would be academic, and despite the merit of it, I don't see it happening.
:
I would like to come back to the issue of opposition days and respond to my colleague. Opposition days are fine and good, but during some of the past opposition days, we had little time to carry out a study. And the government does decide when opposition days are to be held.
We all have our opinion on what would be the best system, and I do not think I have the monopoly on the truth. The idea underlying the motion is to carry out a study. That means we would hear from witnesses of all backgrounds. They could be former judges, university professors, constitutional experts or average Canadians with an opinion on the matter.
In Quebec, we managed to obtain the Commission of Inquiry into the Appointment Process for Judges in Quebec, or the Bastarache Commission. It didn't take 15 years, but a certain number of hearings had to be held. The commissioner, a former justice of the Supreme Court, managed to establish guidelines that have helped free the judicial appointment process in Quebec from accusations of partisanship.
To be totally honest, whether we are part of the government or not, I don't want us to be seen as peddlers of influence. I can feel some of that here. I repeat, we are all striving—since these are the words the minister is constantly using—for excellence. If we are striving for excellence, the political side of the issue fades in importance. Maybe this wouldn't take as much time as you think and would not require the testimony of 150 witnesses.
People think that this will not be heard. Our colleague Mr. Leef, a member for Yukon, sponsored a bill on fetal alcohol spectrum disorder. I do not want my bill to be set aside while I am being told that it will be studied. If that's what you are telling me, I am a bit surprised. I am taking note of the fact that my colleague Mr. Goguen, Parliamentary Secretary to the Minister of Justice, is telling us that, given everything we have to do, we will not have enough time to conduct this study, which would, therefore, be theoretical. We are being told that the study will be more complex. When it's to the Conservatives' benefit, they use this type of argument, but when it is not, they say the opposite. It's a bit hard for me to accept such arguments given the context.
When we had to study part 17—I think—of the Criminal Code, which concerned the language of the accused, trials and so on, it took some time, but we managed to get it done. I do not want to hear that kind of argument in situations where we think something is worthwhile. Tell me that this doesn't make sense, that you already have another process, or whatever, but don't tell me that we don't have the time. Let's adopt this and send a clear message. This is what we think should be done. If we manage to conclude the study before election is called, so much the better, if not, it won't be the first time a bill has died before an election campaign. It will be happily brought back later on. I could list pretty much all the private member' bills that are before the House at one stage or another and that are at their 18th version.
Mr. Chair, with all due respect, this is not a very convincing argument. We get the impression that the government probably doesn't want to review the process. Democracy is all very well, and you will vote as you like. Nevertheless, it seems to me that this heartfelt appeal is coming from many sources, but a comprehensive response is once again lacking.
I don' know whether people have read La Presse of November 29, like me. The newspaper said something along the following lines:
Former justices of the Supreme Court of Canada are calling for the creation of a new process for selecting judges who will sit on the country's highest tribunal.
These are not some dummies; these are people the current government often selects as heads of commissions. Some people actually disagree with that approach, as it emphasizes the status of former Supreme Court justices. Their opinion should not be heard only when it benefits us. Those people are calling for the creation of a new process. I find it interesting that they don't all agree on this. It's just like all of us around the table; we don't all have the same idea.
The other day, Mr. Casey put forward a motion that called for a fully public process—with lists and so on. His colleague Mr. Cotler, a former minister of justice, calls for a different type of system. Someone else might be in favour of another approach. That is where we are. This shows what we need to do. At the very least, we should send the message that we believe that, given everything that is happening, it is time to look into this matter.
Just so the government would not feel like too much of a target, I was not talking only about the Supreme Court of Canada. I felt very generous the day I came up with this. The whole appointment process can become beneficial. In fact, the same issue comes up when it comes to appointments to superior courts, courts of appeal and other tribunals.
This is not aimed at a specific tier, but I think the same principles should apply as a result.
[Translation]
I certainly agree with my fellow member, Ms. Boivin.
With all due respect to Mr. Goguen, I don't think holding an immediate debate in the House is the answer. That isn't necessarily the best place to have the debate since we wouldn't have the benefit of hearing from witnesses. We wouldn't have the opportunity to ask subject matter experts questions. There is nothing stopping an opposition motion from being proposed, but I think the right place to thoroughly study the matter is here, in committee.
[English]
I think the appetite is there for it. The recent developments concerning the Supreme Court, in which the process wasn't the same as it had been for Justice Wagner, I think bears some reflection; it behooves this committee to take a few moments to determine whether that was really the method that it wants to replicate.
It's a recent phenomenon. We haven't been doing this kind of review for very long. The Chrétien government was the first to bring it up. They didn't have time to strike the committee, of course, but they tried. We've now had a couple of occasions in which the has opened the process to a more transparent procedure than we had here. I find it unfortunate that the last time we were unable to have one.
I take good note of Madam Boivin's comment that the motion doesn't only mention the Supreme Court. I think, as she said, this is an attempt to try to broaden the interventions and also an attempt to give us an opportunity to hear from as many people as possible about where we need to go next. But I hear from people back home, from a number of people, that the process we have in place of just having the Governor in Council make the determination simply isn't sufficient.
Do we want to go all the way to the American system, in which the Senate has to ratify every decision? I don't know. I certainly have a problem with the way the Americans are doing it right now. But there was a famous judge—Cohn, I think it was—in the States, who made the interesting comment, “Don't tell me what the law is; just tell me who the judge is.” We need to be able to give some sort of solid foundation whereby people can have more faith in their justice system.
I have a problem with judges being appointed who just come out of nowhere. We have recently had the appointment to the Supreme Court of a judge whom nobody had expected. The person didn't have any experience as a judge. She certainly has had a very interesting career as a lawyer, but her point of view regarding many of the important questions today is simply not known. We're going to have to wait to see what happens.
I've made it clear that I'm actually quite pleased with the nomination, if only because the individual comes from the Gaspé. I think that's definitely a plus.
But I think it's important that we take it beyond this; that we have some very solid grounds whereby to expose what a judge's experience is and what we might expect from them come the decision-making process. The confidence people have in our judicial system depends on more transparency.
A number of witnesses have a lot to offer at this level. I don't know how much time would be required.... I take good note that this committee has a lot of responsibilities and that a number of bills have to be processed through the committee. That's certainly a responsibility that has to be taken seriously, but there's no reason that time can't be negotiated such that the various bills have all the time available to them. I'll add to that the fact that this committee has shown a willingness to meet outside of normal hours of procedure, if required. Maybe this is a case in which it might be required as well.
Regardless, the process is important. I think we need to answer to the Canadian public that the House of Commons is going to ensure that the nominations that the Governor in Council makes will be appointments that people can have great faith in right from the get-go. Right now the question is there, whether people can have confidence in those nominations. I think they will have; I think time will prove it.
Nothing makes that clearer than the advantage of doing things out in the open. Fresh air gives everybody a little bit more confidence in the process.
The process that we have here today, where a judge is named by Governor in Council, and only by Governor in Council, I don't think is sufficient. There are an awful lot of jurists who have made that clear. I think that we should take good heed.
We have to ensure that the Canadian public is going to have as much faith as possible in our process. I don't think the process that was recently seen in this place was adequate. I don't think that just announcing an appointment is a process that we want to replicate. I suspect that the Canadian public expects more of us.
If there's one task that I suspect the Canadian public expects of us, it is to ensure that the Supreme Court and our justice system are truly independent of the executive and the legislative branches. The only way to know that is if we hear from them before they're appointed. We need to hear from those individuals themselves. We didn't get the chance to do it recently and I think that was a grave mistake.
We need to ensure that people have confidence in the system. In Quebec we've tried that with the Bastarache commission. We also have shown great interest in ensuring that the public has faith in our judicial system, especially with recent decisions regarding people accused in criminal cases that have certainly pushed the limits of the confidence people have in our justice system. The Quebec government took the steps necessary to ensure the public's concerns are addressed.
I don't think we did the same thing here. That was a shame and we should probably take the opportunity to learn from our mistakes and improve on them. This would be a good start.
I don't think it would require all that much time. I would really like to see it done. If we go by the fixed date election cycle, we have until October. It's not like we don't have any time; we have close to a year. Even with all the bills ahead of us, there's plenty of time. I don't think we should discount that. We should take this responsibility seriously.
Madam Boivin's motion has a lot of merit. I personally would like to see it adopted.
I'd just like to add my two cents to the discussion. And, in fact, Mr. Chair, I'll keep my remarks as brief as possible.
Since the parliamentary secretary is suggesting that we proceed by way of an opposition motion, I hope he'll be able to answer my question. If the opposition were to put forward a motion to allow the Standing Committee on Justice and Human Rights to undertake a study on the process for the nomination of judges, would the government support it? I think that's a question worth asking.
Just a bit of history here, and I think the minister was quite clear on the matter. Prior to the Conservative government's election in 2006, no process for the nomination of judges existed. I think everyone agreed that we needed to do something about that. The Conservatives tried to put in place a process, which unfortunately did not work. Even the minister came here and told the committee that the process had unfortunately failed.
So I think the question that needs to be asked is this. What do we do in that case? No process used to exist, and the one that was put in place ended up not working. Does that mean we are simply going to go along with having no process in place? If so, the Conservatives would be going back on their promise to establish a more public and inclusive process. It would be a shame to go back to how things were prior to 2006 and to be deprived of any process at all. At least the government had a desire to establish a process. And, according to the minister, that process did not work. So it needs to be improved, reviewed or completely overhauled. If the government votes against our motion today, is it likely that it will change its mind in the House and that the outcome will be different? What will the government say? Will it say that the process it put in place did not work? Will it say that it tried but wasn't successful, and so it is better to have no process at all?
That would be pretty disappointing. But it would save the government a lot of headache, given the heat it took for its nomination of Judge Nadon. It was repeatedly criticized on the issue. As for the validity of the nomination process, I think it is in the best interest of every parliamentarian to try to achieve the best process possible.
Are the Conservatives telling us that, because the process they tried to put in place failed—we can all agree that it was less than perfect—we are going to go back to the days when no process existed at all, putting an end to any further democratic debate on the matter, which affects vital institutions? That would be quite disappointing, indeed. In a nutshell, I would just like the government to explain one thing. If it does not want to undertake this study, what message does that send to Canadians? Does the government not want to establish a process because it wasn't successful? Is it better to go back to how things were?
When I go back to my riding and my constituents ask me what we are going to do about the nomination of judges, am I going to have to tell them that, unfortunately, the government no longer cares to fix that problem?
That is frustrating for a young person like me, who studied law and sees the benefit of reviewing how judges are appointed and how our democratic institutions operate. It's frustrating for young people of my generation to see that the government tried to establish a process, which, by its own admission, did not work. We are in a black hole right now.
Thank you.
It's going to be very short.
[Translation]
My colleagues made some good points. Having participated in two of the last three nomination processes, I would just make a minor correction. The same process was followed for the nominations of both Judge Wagner and Judge Nadon. In the first case, everyone was unanimous in terms of being satisfied with the outcome of the process. In the second case, however, everyone was unanimous in their dissatisfaction with the outcome of the process. The nomination even gave rise to a Supreme Court challenge and subsequent ruling. We may have been on the right track, but somewhere along the way, something went wrong. So it would be a good idea to take another look at it.
Picking up on what my fellow member just said, I have to say it would be unfortunate if my Conservative friends were to throw in the towel after making such a collective and significant effort to come up with a better process.
What a shame it would be to throw in the towel now, given that the Conservatives widely criticized how previous governments had handled the matter over the years. I agree with my fellow member on that point. We weren't raised that way. As the saying goes,
[English]
“If at first you don't succeed, try, try, try again”.
[Translation]
I think we were almost there. As my colleague, Philip Toone, said, it wouldn't take very long and we could always negotiate some time to do it, even if we had to meet outside normal committee hours. Robert and I sat on the Ad Hoc Committee on the Appointment of Supreme Court of Canada Justices that met during the summer. I was on it for two summers. We also did an intensive study of the prostitution bill at that time. Given that we're dealing with an institution as important as the Supreme Court of Canada, not to mention all other federal courts, I would think we could find a bit of time to do this study.
Although we can't reveal what the committees discussed, we may have a good idea about how to improve the process so we don't make the same mistakes.
It may not be as complicated as the government is suggesting. As I have already mentioned, this is an issue of interest to many. Conferences have been held on the subject. Let's not let others dictate what we should put in place. Let's show some leadership here.
That is my final word on the subject.
:
Mr. Chair, the government does not support this amendment.
This amendment would have the effect of limiting the material that could be incorporated by reference pursuant to this proposal to only federal and provincial legislation. The amendment fails to recognize the vast array of material that is already incorporated by reference and would make the legislation far less responsive and modern, in our opinion. The amendment would mean that the standards developed as part of the national standards system of Canada could not be incorporated pursuant to this authority, nor could the standards that are developed internationally.
For example, the standards that are developed by the standards development organizations under the umbrella of the Standards Council of Canada, whom we just heard from, such as the Canadian Standards Association and the Canadian General Standards Board, or any international standards-writing organization such as the International Organization for Standardization, ISO, certain international agreements, internationally accepted rules, such as the generally accepted accounting principles and legislation of other jurisdictions, including the United States and the European Union, all of which currently exist as incorporated by reference in various regulations, would be limited and prevented by this amendment were we to adopt it.
Standards represent a significant amount of the material that is key to responsive, effective regulations, and is essential to achieving goals of regulatory alignment in cooperation and protecting the health and safety of the public. The effect of the amendment would leave much of the outstanding legal issues with respect to the scrutiny of regulations report unresolved which was a main purpose of this legislation.
For all those reasons, Mr. Chair, we will not be supporting this amendment.
:
Shall the short title carry?
(Short title agreed to: yeas 6; nays 3)
The Chair: Shall the title carry?
(Title agreed to: yeas 6; nays 3)
The Chair: Shall the bill carry?
(Bill agreed to: yeas 5; nays 4)
The Chair: Shall the chair report the bill back to the House?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Ladies and gentlemen, that takes care of Bill .
I want to thank everyone for their participation today. Merry Christmas to everyone, and a big hand for the staff who look after us here. Thank you very much. In fact, I had an idea that was brought to me for the staff who help us here. I got them a turkey cookie, as was recommended, so here you go.
That's it. The meeting is adjourned.