Mr. Dan Albas (Parliamentary Secretary to the President of the Treasury Board, CPC)

Mr. Speaker, in my colleague's exchange with the Parliamentary Secretary to the Minister of Justice, he indicated that he would repeal any dynamic incorporation by reference such as amended from time to time. The parliamentary secretary said that there were many incorporations by reference on the previous Liberal government's watch. Could he please tell us which of those dynamic incorporations by reference he would seek to repeal specifically that were done under the Liberal watch?

Mr. Kevin Lamoureux

Mr. Speaker, it is an interesting question. I do not have a book in front of me that lists all of the regulations. However, the member raises an interesting point.

When I say the regulations have an impact on every Canadian, the regulations come in many different forms and at many levels, not only at the municipal level, but also at the provincial—I have already named some—national and international levels, and there are regulations that pass every day that have a fairly significant impact on all of us. The point is that as time evolves, we want to ensure that we have some sense of diligence when it comes to regulations. Especially in the last number of years, it has become more and more important that we ensure that we institute parliamentary oversight given the very behaviour of the majority government.

Hon. Michelle Rempel (Minister of State (Western Economic Diversification), CPC)

Mr. Speaker, I am pleased to rise in support of Bill S-2 , 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 S-2, 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 Parliamentary Secretary to the Minister of Justice, as well as the member for Kildonan—St. Paul:

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 La Pointe-de-l'Île, 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 S-2 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.

Ms. Françoise Boivin (Gatineau, NDP)

Mr. Speaker, I would like to thank my colleague and wish her a good summer if this is in fact her last speech in the House.

A key point she raised in her speech had to do with one of the reasons why we should support incorporation by reference. She said that it would be useful because of the many international treaties that Canada signs. However, incorporation by reference could lead to making regulations that are not bilingual.

Could the minister tell us where she stands on this issue, which is of concern to many Canadians, given that Canada is a bilingual country?

Does she believe that incorporation by reference should be subject to the rules governing bilingualism in Canada?

Hon. Michelle Rempel

Mr. Speaker, I would like to thank my colleague for her question. My maiden name was Godin.

Actually, half my family is of Franco-Manitoban heritage. I personally think Canada's bilingual heritage is something, as we approach our sesquicentennial, that is very important to the country. Certainly this is why all of our government laws and all of our practices encourage and require translation and the availability of documentation in both official languages. Incorporation by reference, in part, would be part of a larger act of Parliament or other systems that would reflect those views.

It is also worth noting that when we are referring to international standard documents, often these are highly technical specific pieces of information.

When we are adopting standards or seeking to adopt standards, Canada often collaborates in the development of those standards. As I mentioned, this is something we are a world leader in.

In terms of the availability of information, I think our official languages requirement enshrines that in terms of how incorporation by reference would allow the accessibility of information. I think this has already proven to be useful, because it is already happening, in practice, in our legislative system.

Mr. Marc Garneau (Westmount—Ville-Marie, Lib.)

Mr. Speaker, I think my hon. colleague finished off on a positive note. Yes, we are here to debate Bill S-2, in this case. We may have different views on things, but that is what we are here to do.

I would like clarification on a couple of things she said.

Would she agree with me that the 28 countries that are part of the European Union have not signed the CETA agreement? In fact, I am concerned that they are moving away from that. Therefore, it is somewhat of an exaggeration to claim that we have signed a free trade agreement with 28 countries.

My second point is far more important. I believe I heard the member talk about the will of Parliament. I am referring, of course, to the destruction of registry documents by the RCMP, with the encouragement of the current government.

The will of Parliament is a very important thing, but would she not agree with me that it also includes respect for all the laws of this land, including the access to information law? In this particular case, this access to information law has actually been violated.

Would she agree with me that it is fine to talk about the will of Parliament but that one must, at the same time, respect all the laws that have been made in this House?

Hon. Michelle Rempel

Mr. Speaker, it is always a pleasure to debate the member in the House and occasionally to thank him for his previous service to our country.

With regard to the Canada-European Union free trade agreement, I would be remiss if I did not point out the stark contrast between our government and the previous Liberal government in terms of the capacity to enter into international trade agreements. I would even go so far as to say that the Liberal government was protectionist in comparison to our government's access to free trade.

Certainly the achievement of the terms that have been set out thus far in negotiating the free trade agreement with the European Union is a milestone. I think in 25 years we will look back and say that it was a moment when Canada came into its own. That happened under our tenure, our government. It is something, as I go forward this summer, I can take to my constituents and be quite proud of in terms of the opportunities that will come forward from that.

The second component he brought up was the legislation and debate on the long gun registry in this Parliament. Our government took the elimination and destruction of the long gun registry, the wasteful and inefficient long gun registry, to the Canadian public in 2011, and we received a majority mandate to remove that legislation. When we came into this House, we followed up on the will of law-abiding hunters, anglers, fishers, and farmers who work on the land, who use these weapons in accordance with the laws of the land, When we talk about respecting laws, we made a law here that respects Canadians.

Mr. Dan Albas (Parliamentary Secretary to the President of the Treasury Board, CPC)

Mr. Speaker, I want to thank the hon. member for her speech. She is a big advocate for western Canada and for all Canada. I am glad to see that she has embraced incorporation by reference as much as she has western business.

The parliamentary secretary has already discussed the benefits of free trade and non-tariff access for Canadian manufacturers and Canadian businesses. Could she also discuss the importance of making sure that when Canadian businesses and enterprises, supported by her ministry, decide to go out into the world to compete, which they can, we harmonize in ways that serve everyone's best interests, both consumers in each country and business interests, so that we can have Canadian products enjoyed right around this globe?

Hon. Michelle Rempel

Mr. Speaker, I thank my colleague for his tireless work on this file. This is a very technical piece of legislation and one he has learned inside out and contributed to in committee. I want to thank him for his contribution.

As Minister of State for Western Economic Diversification, I have the great privilege of consulting with every different stakeholder group possible in western Canada. One of the things I hear about when I meet with chambers of commerce and small businesses, and certainly as referenced by the Canadian Federation for Independent Business in some of its reports, is the need to reduce red tape for small businesses. Why is that important? What does it mean? When we have a piece of government regulation, often there is an extra burden on small business, because the compliance load is shared among a smaller proportion of employees. When we look at productivity, any additional regulation often disproportionately influences small business.

We can look at some of the changes we have put in place with respect to both Bill S-2, to harmonize some of the regulations, including the adoption of standards, and legislation that previously passed in the House on one-for-one regulation review. I spoke to a group of utility heads in Washington last year and gave a rousing speech about this that excited those in the room. It is actually a huge competitive advantage for Canadian business, especially when we compare ourselves to other jurisdictions where they might not be as prone to ensuring a deep commitment to reducing the regulatory compliance burden.

Hon. Wayne Easter (Malpeque, Lib.)

On the lighter side, Mr. Speaker, the member started off by asking her colleagues to pay attention to the wonderful speech she was going give on this matter. I do not know if she has had the opportunity to sit on the scrutiny of regulations committee, which some members of this Parliament had to do. I have sat on that committee. To be honest, I would rather watch paint dry.

I want to recognize all of those members who sit on that very detailed committee, because it is not an easy committee. That is the only point I want to make. They did a tough job on that committee.

Hon. Michelle Rempel

Mr. Speaker, in the dying hours of this Parliament, let us all give a rousing round of applause to everyone who sits on the scrutiny of regulations committee for their ongoing regulations reviews, both for or against, regardless of political ideology, to make Canadians healthier and safer. It is a very important committee. It is one that is very technical. My colleague has described some of our colleagues' reactions to it. However, it speaks to the importance of debate and participation in parliamentary committees in this place and the fact that anyone in this place can make a difference, regardless of what committee members are on and regardless of the place they take in this place.

It has been an honour serving with all of my colleagues in this Parliament, and I wish them a happy summer.

Ms. Françoise Boivin (Gatineau, NDP)

Mr. Speaker, after I was elected in 2011 by my constituents in Gatineau, to whom I am grateful for this immense honour, our then leader, the great Jack Layton, did me the honour of naming me co-chair of the Standing Joint Committee on Scrutiny of Regulations, a joint committee of the Senate and the House of Commons. I admit that I wondered what a committee like that was all about.

I heard the member for Malpeque say that he would rather watch paint dry than attend a meeting of that committee. In my opinion, members of that committee have to be passionate about the law and have an immense respect for our role as legislators.

What is more, that role is not just about creating laws and bringing them into effect. It is also about making the related regulations. The law is one thing, but that law often requires the creation of dozens of regulations for its implementation.

I want to thank the members of the committee, but especially all the experts who guide us in that committee. However, I no longer have the pleasure of being a member of that committee. It is true that I wondered what that committee was all about. In reality, I also wondered at first if I was being punished, but I realized that I was not. My leader at the time felt that my background as a lawyer with 30 years of experience, which I sadly admit in the House, made me a prime candidate to co-chair the committee.

I saw first-hand the thoroughness of the experts and of the departmental and House staff who provided support as we carried out this difficult work. Every week we had a foot-high pile of documents to examine during a two-hour committee meeting, and I am hardly exaggerating. One might have said it was challenging and rather dry, but it was necessary work nonetheless.

I would like to give a little background. Members forget that Bill S-2 was originally introduced in 2012 by the Conservative government in the form of Bill S-12.

At the time, as deputy justice critic for my colleague from St. John's East, our justice critic, and as a member of the Standing Joint Committee on Scrutiny of Regulations, I also had the great pleasure of being responsible for Bill S-12.

From the beginning I have been saying that this bill is a sleeper. I am pleased that we have another opportunity to debate it, although it is at third reading. We did not have much time to debate second reading and report stages, and there were not many meetings of the Standing Committee on Justice and Human Rights.

My colleague from La Pointe-de-l'Île continues the work on Bill S-2 that I had started on Bill S-12, and I thank her for that. She took this on during the study in committee and at all stages in the House.

I called this bill the sleeper of this legislature because this is a bill that could have a huge impact on the lives of Canadians. I do not get the impression that members on the Conservative benches have taken it as seriously as they should have. I said this when I spoke at report stage. It has not drawn much attention from the media, aside from journalist Tom Korski at Blacklock's Reporter. What he wrote in 2012 might have been what first tipped me off.

The title of the article was:

“Senate Quietly Ends 171 Years Of Scrutiny With Bill”.

The article said:

An obscure Senate bill will end 171 years of open scrutiny of regulations governing virtually every aspect of the economy and national life, critics say.

The government legislation…would permit the introduction of new rules without plain disclosure of all related laws—

It would end a practice that predates Confederation.

At the time, some senators expressed their opinions, including Senator Harb, who has since retired and is dealing with other problems.

He said:

“This is a big, big problem. There is little awareness of this bill. If regulated industries become aware of what is in this bill, there will be outrage.”

Senator Marjorie LeBreton, a senator that the Conservatives might be more inclined to listen to and the government leader in the Upper House at the time, refused an interview.

The government bill was introduced without fanfare in the Senate on October 17, 2012.

I find this next part interesting. It quotes Mac Harb:

In the House of Commons too many MPs ask questions. In the Senate there are many new senators who do not understand the history of these procedures. The Senate is a dull place. I think they are trying to force it through.

The article explains the practice. It states:

Under a practice that dates from 1841, all federal rules and decisions must be plainly published for public scrutiny to provide Canadians “their rightful access to the laws and regulations that govern their daily lives,” according to the Canada Gazette Directorate, the federal agency that prints all details of legislation.

Under bill S-12, An Act To Amend The Statutory Instruments Act [now Bill S-2], regulations could be delegated—

—and that is also important—

—from unpublished sources “as amended from time to time” in a little-known practice called “incorporation by reference”....

“This cuts down on the onerous amount of material that would have to be included in a number of regulations,” a bill supporter, Senator Linda Frum, told the Upper House.

That, I would say, is probably the main argument for the government—to really trim down and help out—because it is true that there are tens of thousands of pages per year. I do agree, but we have to do it in a correct fashion.

Still quoting Senator Frum, the article continues:

“If a regulation provides that hockey helmets must be manufactured in accordance with a particular Canadian Standards Association standard, the effect of that reference is to make that standard part of the regulation without actually reproducing the text of the standard in the regulation itself.”

That seems to make sense.

It continues:

In debate, Senator Harb called the bill “a blockbuster” that would permit the government to enact new regulations without public scrutiny or parliamentary approval.

As quoted in the article, Senator Harb said:

“Once we lose control, things may very well go off the rails.”

I will not read the rest of the article to the House. That was probably the first little thing that set off alarm bells with respect to the study of Bill S-12 at the time, which is now Bill S-2.

It may be the price the government opposite is paying for the lack of transparency, collaboration and co-operation on the part of the government and its senior members. That has been prevalent and we need only think of the 100 gag orders that have been imposed. How many times did we present reasonable amendments in committee in an attempt to improve bills? How many times did Conservative colleagues sitting on a committee tell us that it made sense? How many times did we move motions that committee members seemed to agree with, only to see that the members on Conservative benches had been told what to do by the Prime Minister's Office or the office of the minister concerned?

In the long run, it means that we will be a little more cautious in our analysis. As I have often said every time new Conservative justice bills were introduced, the devil is in the details. Often, it is just smoke and mirrors. However, sometimes, in a large bill with many pages that seems to make sense, a small provision destroys all the political capital that the government could have earned. When we were young and we did something wrong, our parents would tell us that we had lost their trust and that we would have to earn it back. The official opposition is finding it very difficult to trust this government because of what it has done. I am thinking of access to information, for example, the reports and the fact that people sometimes have to wait four or five years to obtain the information they requested. We are here for Canadians, but the Conservatives do not often seem to think so.

I will now move on to another extremely important aspect, which is the law itself. Bill S-2 contains a variety of problems. It amends the Statutory Instruments Act and makes consequential amendments to the Statutory Instruments Regulations. I am not sure whether everyone has carefully read the act amended by Bill S-2 and before that by Bill S-12. However, subsection 3(1), which concerns the examination of proposed regulations, is extremely important. It is the key to why the House and the Senate created a joint committee on scrutiny of regulations. This stems from the very important responsibility of ensuring that our regulations are consistent. It often felt quite trivial at the Standing Joint Committee on Scrutiny of Regulations. The differences lay in the wording and the words used, involving either translation and bilingualism issues or errors in the French or the English versions. More often than not the errors were in the French version, because most legislation was developed in English and there were translation errors. We saw how long it took for the experts supporting us in committee to obtain information. I am sure that the Parliamentary Secretary to the President of the Treasury Board, if he is sincere, will admit how many good kicks, some of them hard, we had to give to the more resistant departments—I will not name the Department of the Environment or the Department of Transport—which took an inordinate amount of time to reply to our experts, who wrote to these departments on behalf of the committee for information on how they drafted their regulations. We need to remember the importance of regulations when we see a process that will bypass all that. With all due respect for my friends across the way, that is the impact this bill will have.

We need to remember the importance of regulations. We do not talk about it often in the House, and that may be why there is a kind of polite disdain. When I was trying to get a teeny tiny budget for the joint committee, a Conservative member told me in another committee that it was probably the most useless committee. That is what some Conservative members think of the Standing Joint Committee on Scrutiny of Regulations, and I am terribly worried about that. I still have not gotten over that comment. I know that many people share that opinion because the committee's work seems so boring. One has to really love the law, and one has to love reading regulatory texts. I know that the Parliamentary Secretary to the President of the Treasury Board is like me: he adores that kind of work. It is essential work.

We will not have many more opportunities to talk about Bill S-2, which we will vote on later this afternoon. The bill number indicates that it is from the Senate. It has already gone through the Senate process before coming here. That is another problem I just cannot get over. I have already commented on this issue many times. If this bill is as important as they say it is, I do not see why it was brought in through the back door.

Section 3 of the Statutory Instruments Act states the following:

3. (1) Subject to any regulations made pursuant to paragraph 20(a), where a regulation-making authority proposes to make a regulation, it shall cause to be forwarded to the Clerk of the Privy Council three copies of the proposed regulation in both official languages.

(2) On receipt by the Clerk of the Privy Council of copies of a proposed regulation pursuant to subsection (1), the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that:

(a) it is authorized by the statute pursuant to which it is to be made;

(b) it does not constitute an unusual or unexpected use of the authority pursuant to which it is to be made;

(c) it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and

(d) the form and draftsmanship of the proposed regulation are in accordance with established standards.

It is therefore important that regulations respect the Constitution and the charter just as much as laws. I still have some concerns, because this government always passes bills after ignoring the views of experts who tell us repeatedly in committee that the bills have serious shortcomings in that they are unconstitutional or they are not consistent with the charter. The last thing I want to do is give this government a blank cheque when it comes to regulation by reference.

It is worth noting that incorporation by reference is not illegal. That is right; it is already happening. However, I think there have been 160 unauthorized delegations by reference in enabling legislation, and the legality of that procedure is still a subject of dispute between the Standing Joint Committee on Scrutiny of Regulations and the government or specific departments.

The government did not take any chances, just as it did not take any chances when it destroyed the gun registry data. It introduced clause 18.7, what I call a pardon provision, which retroactively deems all incorporations by reference valid.

Incorporation by reference usually has to be authorized by enabling legislation. In other words, when parliamentarians pass such legislation, they are agreeing to give this power to the minister or the Governor in Council. However, it is still the law that governs incorporation by reference.

With the stroke of a pen, Bill S-2 blindly gives this power away without evaluating the need to proceed with incorporation by reference under certain laws. It is a way of neutralizing the power of members of Parliament to guarantee to their constituents that things are done properly. This bill gives the government carte blanche to do almost anything it wants. The Conservative government does not have a stellar record when it comes to that sort of thing, though. It is extremely worrisome.

I will not have the time to raise all my concerns, but, in short, I would say that the greatest flaw in Bill S-2 is the notion of accessibility in clause 18.6.

It still bothers me that the committee members rejected the amendments by my colleague from La Pointe-de-l'Île, which could have clarified some concepts and nuances concerning the issue of retroactivity. It disgusts me that something that was illegal is suddenly legal because the government revisited the past. That is the wrong thing to do.

There is also the matter of the documents, which my colleague spoke about earlier. It is a rather vague term that should have been more specific. With regard to bilingualism, I congratulate the government on its international treaties, but we all know that some of those regulations will find their way here and will not be in the language of our big, beautiful country's other founding people. I am extremely worried about the inherent rights of Canada's francophones.

We know full well that some treaties are very long, and I do not think that the regulations will be translated into French. I get the impression that taxpayers will pay the price for this.

There are thus some troubling aspects, and I would have liked it if we could have taken a little more time to examine this bill. I imagine that it will be up to the next government—and I hope with all my heart that it will be an NDP government—to do the work that this government refused to do. We were seeking to improve the bill with the amendments that we proposed in good faith.

I was going to say that this will be my last speech in the House, but it seems that the government is making me give another one this afternoon. I will therefore save all my thanks to the extraordinary people of Gatineau who have given me their unconditional support since 2011 until later this afternoon when I give my next speech. In the meantime, I am happy to answer any questions.

Mr. Dan Albas (Parliamentary Secretary to the President of the Treasury Board, CPC)

Mr. Speaker, I would like to thank the member opposite for her speech.

I thank the member across for her kind comments. I believe the member cares about the work of the Standing Joint Committee on the Scrutiny of Regulations as much as I do. However, I am disheartened to hear that she heard a comment that was lamentable, because that committee has a lot of importance, particularly in the regulatory state in which we live.

I would ask the member to square the following.

When she was the co-chair of that committee, under her chairship, we often wrote to ministers of the Crown asking for retroactive legislative validity on the concerns of the committee. She argued at that point, as the chair, that it was the appropriate thing to do because sometimes a government would come across a situation where the will of Parliament was not perfectly expressed and unaccounted for situations arise. Yet, the same member rails against legislative validity that was in legislation before the House just recently. How does she square the two? She says that it is not proper for a government to do one thing, but then, as a chair, she actually suggests the government do that very thing.

Ms. Françoise Boivin

Mr. Speaker, no. The things I signed were to ask ministers to answer the questions that were asked. It was not to validate any type of retroactivity, but to maybe answer questions such as where they found the power to do so, where they found the right to do the so-called delegation.

Basically, in my short time as co-chair of that committee, we passed more time trying to convince directors of the departments to just answer plain questions than anything else, and if they were not complying, to have the minister do so.

I would say that it was while Senator Runciman and I were co-chairs that we began to be stricter with the departments about getting answers more quickly. Often, committees would set timeframes that allowed the departments to come back to us with completely useless answers. We would then send them another letter, and the cycle continued. We therefore began to be a bit stricter.

I do not know how things have been going since, but there is no doubt that the debate continued to rage between the joint committee and the various departmental representatives regarding whether incorporation by reference is allowed. This debate is still going on.

Mr. Pierre-Luc Dusseault (Sherbrooke, NDP)

Mr. Speaker, I thank my colleague, as well as the member for La Pointe-de-l’Île, for their diligent work.

I would like the member to inform the Conservatives, those listening and ourselves about accessibility concerns. She referred to them in her speech. I would also like her to speak a bit more about the concerns some people have about accessibility, as well as the possibility of having these documents in both official languages.

Could my colleague say more about these concerns that were raised?

Ms. Françoise Boivin

Mr. Speaker, I thank my colleague from Sherbrooke for his question. We all know that there is a legal principle that applies to everyone equally, from the prime minister to a private citizen, which is that ignorance of the law is no excuse. In its broadest sense, the word “law” includes regulations and others.

When talking about incorporation by reference, certainly there are parts of the regulations that the public will not necessary be aware of. I wish to draw to the attention of the House that if anyone is interested in these kinds of issues, simply look back over the last 10 years of Conservative government to look at the bills and the amount of power given to the minister or someone to whom this power is to be delegated, with respect to regulations.

This means that very often, once the initial regulations are passed, the subsequent regulations by reference will be completely unknown. As my colleague from La Pointe-de-l’Île rightly pointed out, section 18.4 clearly states that there will be no requirement for it to be published in the Canada Gazette, which is currently the tool of choice for determining what exists in terms of regulations. This will mean having to conduct more research.

Clause 18.6 tells us that a person is not liable to be found guilty unless the material incorporated by reference was accessible. We tried to get clarification as to what exactly the word “accessible” meant. Is it written down somewhere? It is not clear. The fact that the Conservatives refused to amend this clause to clarify it for the benefit of Canadian taxpayers suggests to me that they prefer it to be vague. It is worrisome when things are vague, because that allows the government to play little shell games.

Mr. Dan Albas

Mr. Speaker, I certainly appreciate my hon. colleague's answers and her thoughtfulness. I would like to make a quick reference to my previous question.

The representative from the NDP, the co-chair from Hamilton Mountain, recently asked for legislative remedies retroactively on behalf of the committee. That is because we believe, as a parliamentary joint standing committee, that there are certain times where the will of Parliament has not been properly anticipated and thus changes need to be introduced legislatively to allow that to happen. That is a very normal process. Again, why do the NDP thinks one thing is appropriate at committee and another thing in this place?

The second point I would make is on the member's last point on section 18.6 about a person not being liable to be found guilty of an offence because of any contravention in not having accessibility to a particular regulation. There are no protections right now for people like that. Does she not agree that putting this protection in place will create a little more certainty for people when they are found in the situation that she cited earlier?

Ms. Françoise Boivin

Mr. Speaker, on the first point, the concept of retroactivity exists, and that is not really the question. The problem is that the government has always claimed that it was entitled to use incorporation by reference virtually every time, without there being specific authorization in a law. The Standing Joint Committee on Scrutiny of Regulations said that, on the contrary, specific authorization was required.

Clearly, in Bill S-2 and clause 18.7, the government is trying to say that it wants to end the argument between the two sides and make sure it is done this way. The problem is not the concept of incorporation by reference itself; it is when incorporation by reference is done across the board. At present it is done with the express authorization of Parliament under a specific law that has been examined here in the House. That is where the problem lies.

That is why we say they are not accessible at present. There are regulations that are permitted by reference under an enabling act at present. However, the public knows what those laws are. If they know, they will be able to go and look at them. If it is only a few laws, here and there, it is less complicated. However, we know what kind of an administrative mess there can be and how taxpayers have to do never-ending searches. In addition, when the government refuses to define “accessible” and “document”, there is a problem somewhere that suggests that the reason the government does not want to clarify is that it wants this legal vagueness, which will allow it to do certain things. Unfortunately, the government is guilty of playing hide and seek in recent years with mammoth bills in which it hides a few provisions here and there. That is not what a government that promises people transparency does. We want to put a halt to that and tell people to watch out.

Mr. Dan Albas (Parliamentary Secretary to the President of the Treasury Board, CPC)

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 S-2, 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 S-2 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 Okanagan—Coquihalla, 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 Parliamentary Secretary to the Minister of Justice 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. Minister of Industry 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 Minister of Industry 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 S-2 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.

Ms. Ève Péclet (La Pointe-de-l'Île, NDP)

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

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

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