:
Mr. Chair, I am Jacinthe Bourdages, and I'm general counsel and director at the legislative services branch. With me are my colleagues Patricia Pledge, senior counsel, also in the legislative services branch, and Bernard Auger, general counsel at the same branch.
Thank you, Mr. Chair.
[Translation]
Thank you for the opportunity to speak to you about Bill . As its title indicates, this bill concerns a drafting technique, incorporation by reference, which is used in legislative texts, most frequently in regulations.
Incorporation by reference is a technique currently used in the drafting of legislation, which allows, by a simple reference to a document made in the regulation, to conceptually incorporate the content of that document, without reproducing its text. The content of that document then acquires the force of law and forms as much a part of the regulatory scheme as the text of the regulation itself.
Incorporation by reference can be either static or dynamic. ln the case of static incorporation, only the version of the document that is cited in the regulation is incorporated, as if it were frozen in time. Any modifications made to that document after the regulation has incorporated it would not be included in the regulatory scheme. In the case where it is desirable that these changes be incorporated, it would be necessary to modify the regulation in order to make reference to a subsequent version of the document.
In the case of dynamic incorporation by reference, the changes made to the document that has been incorporated in the regulation form part of the regulatory scheme without the need to modify the regulation. In other words, the subsequent amendments made to the document are automatically integrated into the regulatory scheme.
Incorporation by reference of documents of many types in diverse federal regulations is already widespread. Among the different types of documents currently incorporated by reference, one can find provincial and territorial laws, the laws of other jurisdictions, international and national standards, as well as technical documents created by different departments. Incorporation by reference is already expressly authorized in more than 60 federal acts.
[English]
Bill proposes to amend the Statutory Instruments Act to create a general authority for the use of a technique of incorporation by reference in the regulations, which would complement all existing regulation-making authorities found in acts of Parliament. It is also important to clarify that this bill does not seek to validate retroactively anything that the government did not consider already to be authorized.
In general, under this legislative proposal, material that is generated independently of the government could be incorporated either statically or as amended from time to time.
However, the authority to incorporate documents produced by the regulation-making authority alone or jointly with another federal entity would be more limited. In most cases, those documents would only be able to be incorporated statically and only if the content of the document is limited to that which is incidental to or elaborates upon the rules already contained in the regulations. This ensures that the technique of incorporation by reference is not used to circumvent the regulatory process or to subdelegate the legislative power to government officials.
This bill also makes it clear that certain types of rates and indicators, such as the CPI, the consumer price index, or the prime rate, the Bank of Canada rate, can be referenced in regulations. This precision has been brought because those elements are not, per se, documents.
This bill also imposes an obligation on regulation-makers to ensure that the material incorporated by reference is accessible. It also provides that no person can be convicted of an offence or suffer an administrative sanction in the event that the incorporated document was not accessible.
In addition, Bill clarifies that the requirements of registration and publication would not apply to the incorporated material, but that material is still examined as part of the obligations under the Statutory Instruments Act and remains subject to scrutiny by the Standing Joint Committee on Scrutiny of Regulations.
Bill in no way alters obligations with respect to official languages. Unless there is a legitimate reason for unilingual incorporation by reference, material must be incorporated in both official languages. This is a constitutional requirement now, and it remains unchanged by this legislation.
While Bill is important, it must still be put in perspective. Ambulatory incorporation by reference is already widely used in federal regulations. As a result, Bill S-2 simply provides expressly for the authority to use a drafting technique that is consistent with the government's current legal practice on this matter. Bill S-2 does not confer authority to simply incorporate by reference without constraints. The use of the technique, like any aspect of the regulation-making authority, is shaped by the enabling statute under which the regulations are made.
Bill is intended to confirm the existence of the legal foundation for the use of this drafting technique.
[Translation]
Thank you, Mr. Chair.
We are now ready to answer the committee's questions.
:
Thank you very much for that answer. So that would be something for a court to decide if ever there were a conflict.
Bill grants quite broad authority to use incorporation by reference. The guide to making federal acts and regulations indicates that everything to do with regulations really must be considered by the parliamentary committee of which my colleague was a joint chair, in 2011, I believe. They examine all cases of incorporation by reference in real depth. There is a mechanism for oversight, accountability and transparency. But Bill S-2 grants quite broad authority to use incorporation by reference, either ambulatory, dynamic, or static, as you mentioned. How can we be sure that the same oversight mechanism is applied to the regulations and to the incorporation by reference at the same time?
This is a huge project. It does not just apply to a department, but to all agencies and all authorities with the power to do this. How are we going to make sure that, at the Standing Joint Committee on Scrutiny of Regulations, we determine which mechanism will be used? Will it be the same? How are we going to make sure that both are at the same level of oversight and transparency?
:
Thank you for the question.
Mr. Chair, I would say that regulations that are incorporated by reference are examined to the same extent as the regulations themselves. When regulations are examined under section 3 of the Statutory Instruments Act, the documents that are incorporated by reference would be examined in the same way at the same time. That is the stage at which the criteria set out in section of the Statutory Instruments Act would apply to the documents incorporated by reference.
In the pre-publication period for regulations in Part I of the Canada Gazette, those involved or interested will have the opportunity to see whether or not documents have been incorporated by reference, to be able to have access to those documents and to see what they contain. If they have concerns, they can make them known to the regulation-making authority.
As for the standing joint committee, it will have access to the documents like any member of the public and will be able to make any concerns known in the same way.
:
Actually, my last question deals with access to those documents.
In the three criteria you listed, we read, and I quote: “…provides for the express power to incorporate by reference in regulations”, and that the documents are valid only if they are “accessible”. Except that there is no definition of accessibility.
In some Senate transcripts, I have read words such as “online”, but accessibility is not defined. That could lead to confusion. Really, this is about the validity of a reference. What would the definition of accessibility be and should it be included in the act?
:
For documents, there are various kinds of incorporation by reference.
It can involve provincial or federal legislation, or the legislation of another country, indexes, numbers, internal documents, and standards. Incorporation by reference can take many forms. It is important to realize that what is accessible in one case may vary; it depends on the sector being regulated. What is accessible in one case may not necessarily be accessible in another. So it would be extremely risky to find a definition that applies equally to each regulatory sector.
We consider that documents need to be accessible with a minimum of effort. Even so, you need a certain degree of effort to access federal legislation and regulations.
I have a number of questions. I would imagine that you'll know where I'm coming from with a lot of these.
Incorporation by reference has basically static and dynamic...I know these things. When the government signs on to an international agreement or ratifies a treaty, or whatever the case might be, we are then a party that's bound to that agreement. That governing authority or agency that's responsible for it, whether it's the governing council or whatever the case might be, has of course probably a Canadian interest in that.
Are there any cases where the Government of Canada does any incorporation by reference now where there isn't a representative or Canada is not party to the governing process of that regulation-making body?
:
It's a tough question, I know. These things are quite complicated.
Given that the current practice that the Government of Canada uses is an ad hoc process.... You are saying the Government of Canada already uses incorporation by reference when it comes to these things, that they are all done on an ad hoc basis, and they would all be in that particular case static because they would have to go through the process.
If something is dynamic it means that, as soon as the regulating body makes the change in the regulations—and if it has already gone through the Gazette process and has been approved by legislative change that's brought about here—the moment the legislative body makes a decision and changes that regulation through a dynamic reference, it is instantly the law of the land in Canada.
Do I understand that correctly?
:
Mr. Chairman, I am not aware of these situations. But again it's a choice that the regulation-making authority would exercise when deciding to use the technique or not. If the regulation-making authority wants to have full control of those instances I guess it would not use incorporation by reference. Again, it's important to realize that it's always a choice to have recourse or not to this tool that is a drafting technique.
Static incorporation by reference might be preferable in some instances such as the one you mentioned. We are not aware of situations where this would have caused any problems. It's also important to realize that in almost 30 years of the use of incorporation by reference there is very little case law on this, which seems to be proof that the system is working well. It's not something that is really litigated.
So I would say, to address your concern, that it's important at the time that the regulation-making authority that is considering whether to use incorporation by reference or not see if it has concerns of the type you are mentioning. Are we concerned with an international body making its decisions? Most of the time Canada is a part of these international bodies, it has fair notice, and it takes years of negotiation so there are opportunities for discussion.
I'm concerned that this bill will allow government and/or bureaucrats to do something indirectly that they can't do directly. I'll tell you why I'm concerned about that. We've had before this committee Bill , the cyberbullying bill. The cyberbullying bill proposed to codify an immunity for telecoms that lawfully cooperated with police. This came about after a failed attempt to try to get warrantless access. So when it looked like the government wasn't going to be able to get warrantless access, they gave an immunity to the telecoms and then through another statute broadened the group of people to whom that would apply. So instead of going directly at it they found another way.
Here's where I'm coming from. If the government or bureaucrats want to see a change that they may not be able to get through a more rigorous route like the joint scrutiny of regulations committee, like the normal legislative process, they can find a way to have a body that has available to it open incorporation by reference and to put it through that way. Do you understand my concern?
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I understand the concern, but I think it's important to realize that Bill does not expand on the use of this regulatory authority that is incorporation by reference, which is already, as we've said, broadly used.
As for internally produced documents—that's by the regulators—it would be limited to documents that elaborate upon the main rules of conduct. This is to avoid concerns like the ones you mentioned.
For the external incorporation by reference, Bill codifies, if you will, the current practice. This is in cases where the documents already exist for an independent purpose that has nothing to do with the regulatory process. They just use the expertise that exists elsewhere to replicate the expertise in the regulations themselves, without having to reprise the content and instead of building the expertise in-house
I think it's important to realize that this bill, as I was saying in my speech, does not expand on enabling authorities. It's an aspect of the regulatory power, but it's an aspect like any other aspect of the regulatory power. It still needs to be exercised within the four corners of the enabling authority. It needs to be brought back into that perspective.
My understanding of the regulatory process here is that if there is any concern by any member of the public, they can raise that concern. Certainly, any member of Parliament can raise that concern and it would then be referred to the scrutiny of regulations committee. So in any situation that Mr. Casey might be concerned about, he or any member of the public could apply to have that dealt with by the scrutiny of regulations committee.
If there were a situation where someone thought that the government of the day was overreaching its legislative authority by incorporating something by reference, presumably that would then go before the scrutiny of regulations committee.
Secondly, it's my understanding that there aren't any regulations under the Criminal Code, so that is not a situation where the Criminal Code of Canada would be amended by an incorporation by reference to another statute, or a standard that is developed by another body.
My first question to you has to do with accessibility. Bill imposes an obligation on the regulation-making authority to ensure that a document, index rate, number, or whatever it is that's incorporated by reference, is accessible, but it doesn't provide a definition of “accessible”. What, in your opinion, is meant by the term “accessible”? Perhaps you could give us some examples of that.
Mr. Chair, it is true that accessibility is not defined in the bill. As I mentioned earlier, it would be very challenging to try to come up with a definition. Given that there are so many different incorporated documents, different regulatory fields, what's accessible in one case might not be accessible in another case.
In some cases “accessible” will mean that it's available online free of charge. In other cases it can mean it's accessible at a reasonable price. So it really depends on the situation and on the regulators and on the people who are affected by the regulation. It would be very challenging to try to find a one-size-fits-all in terms of accessibility.
The regulators have a high incentive to have the documents accessible, because if they are not they won't be able to prosecute successfully, and we have a provision about that in proposed subsection 18.6 of the bill.
It's also important to realize that regulators want compliance with their regulations, and accessibility is something that would be considered at the time of the decision to use the technique or not. If the document is not accessible, that would be a reason to not use incorporation by reference. If it is accessible, then it's a factor that plays in favour of using the technique. There are really vast areas and vast types of incorporation by reference documents, so it basically means having access to a copy of the document with a minimum of effort.
Certainly, as a matter of commercial legal drafting I am familiar with this concept. It was often the case in situations where I would be negotiating and drafting commercial documents that would continue in force for many years, so often it made it much more efficient to incorporate by reference a standard, a rate, or a process by which something is determined, perhaps standards for the production of a type of product.
But we would typically only incorporate by reference those sorts of things where there was a known process for the development of the rate or the standard and there was some kind of public input to the development of that standard that the parties to the agreement could participate in.
Do the regulation-making authorities look at the same kinds of criteria when deciding whether to incorporate something by reference?
:
We did provide you four examples of current incorporations by reference to highlight the types of materials that are incorporated currently and the different ways that they may be most commonly used.
On the first page, you'll see there's an example of the Fort William First Nation Sawmill Regulations. These are regulations made under the First Nations Commercial and Industrial Development Act. It is a way of harmonizing federal and provincial legislation with respect to resource development on first nations lands. It's an example whereby we've made a federal regulation that incorporates by reference the bilingual laws of Ontario and makes them applicable to the first nations reserve in question where the development is going on.
You mentioned the CPI. That's an example we've included as well on the last page. It's included in the federal Softwood Lumber Products Export Permit Fees Regulations, and it's part of the factoring of fees in that regulation. You'll see it also makes a reference to the U.S. Department of Labor's Bureau of Labor Statistics there, too. So it's a perfect example of how it can be used effectively to harmonize between jurisdictions, not just federal and provincial but also Canada and the United States.
:
I would like to ask some preliminary questions.
Am I wrong to say that Bill is an exact copy of Bill ? It deals with exactly the same thing, not a comma has been changed.
You say that you are just putting on paper what already existed. I have read the Senate evidence and debates. Correct me if I am wrong, but I read that dynamic incorporation by reference has been used 170 times since 2006 and that, in most cases, this was done without express authorization from Parliament.
I imagine that is the motivation behind clause 18.7. It reads:
18.7 The validity of an incorporation by reference that conforms with section 18.1 and that was made before the day on which that section comes into force is confirmed.
Clause 18.7 is a default clause, in a way. According to the department's interpretation, things have been done correctly and legally. However, you will all agree that the Standing Joint Committee on Scrutiny of Regulations does not necessarily share that opinion. According to the committee, the enabling legislation must specify the express right to use dynamic incorporation by reference. Also according to the committee, I believe that is the way in which we must proceed rather than coming up with a bill like this, which is more of a hodge-podge that makes it possible to act in that way basically at any time. I will not say that it can be done in any way, but it can be done at any time, as long as the criteria in Bill S-2 are met.
:
Ms. Bourdages, did they not say more than that, that in fact it had to be expressly mentioned in the enabling legislation?
Perhaps this is because I have made my way, as my colleague said, to the Standing Joint Committee on Scrutiny of Regulations. But, if I understand correctly, for you, this act will be enough to give the authority. The question becomes “who will have the power to enact sections 18.2 and 18.3?” I will come back to that.
This explicitly authorizes the government to operate in that way. It was my understanding that the members of the committee—and I was not one of them at the time—preferred each act to have its own provision allowing it.
Far be it from me to start the debate on this issue again, although I think it is an interesting one. The bill seems to be very technical and very routine. We hear all the time that, in a world with piles of legislation and where regulations and requirements change quickly, we have to find modern ways of working. I have nothing against being modern, believe me, but neither must we forego our legal duty to check the regulations thoroughly. I can understand why the members of the joint committee had a problem with this.
As it is, analyzing regulations is very complex. It is not just regulations created by dynamic incorporation by reference. Imagine when they start trying to trace regulations back. That is what they are going to have to do. I doubt that they will create a registry in which all regulations by dynamic incorporation can be found. It will be a really mind-numbing task. It is not as if there were tons of people doing that research for us. The risk is that this will complicate the situation.
Sometmes, I have a problem with some of the government's legislation. Is it constitutional? Does it comply with our Charter? You have to chuckle when you look at the amended text of Bill . It includes a new section, made up of clauses 18.1 to 18.7, but we must not forget section 3 of the Statutory Instruments Act. This states that the Clerk of the Privy Council must, among other things, verify legality and compliance with the Charter.
My concern about the creation of this kind of dynamic incorporation by reference is this. I know that, in the Senate, there were a lot of debates on accessibility, and the degree to which documents will be accessible. There is also the question of the legality behind the regulations that are passed.
My other concern is the following. Some time ago, Minister Nicholson appeared before a Senate committee. He gave some examples on international security. As others have mentioned, this will involve a lot of treaties, regulations and international standards. Let us not delude ourselves, the minister himself mentioned that it was a desired outcome, and that would certainly be true in this regard. This may well have repercussions for our people. They have to be able to handle it all.
In addition, your argument on bilingualism absolutely did not convince me. It is true that the Supreme Court said what it had to say on the matter. This concerns me even more because it means that we are in danger of having a huge number of regulations incorporated by reference that come from external treaties with countries that do not have the same obligations for bilingualism as Canada does. To my mind, that is a bit of a concern.
:
I'll try to be. There are many points in there; I'll try, though.
[Translation]
Under this bill, the government is proposing to amend the Statutory Instruments Act precisely because section 3 of that act is always relevant and that it also applies to documents that are incorporated by reference.
Of course, at the same time, section 3 deals with the limit of the power of regulations and documents that are incorporated by reference, as well as with Charter obligations. Documents incorporated by reference, just like the regulations into which they are incorporated, must be submitted to those tests. You are quite right to mention that.
As for the Standing Joint Committee on Scrutiny of Regulations, it is possible that members do not agree with the direction of Bill . However, as I understand it, they do agree that dynamic incorporation by reference should henceforth be expressly authorized.
I believe that they would like dynamic incorporation to be limited to Canadian provincial legislation. That is a question of direction, but I feel that they do agree that, in legal terms, if Bill S-2 becomes law, that part of the issue will be solved.
:
Of course on the issue of unilingual incorporation by reference, the highest decision we have would be from the Supreme Court of Canada in 1992, the Manitoba language reference, which really set out the parameters for when it is acceptable to incorporate material that is unilingual. That is really the highest level of court.
There are other court decisions. One of the highest would be from the British Columbia Court of Appeal from about 20 years ago, which set out the principle that documents that are incorporated by reference don't need to be published in the Canada Gazette and registered.
There is a case called Scott that dealt with reciprocal enforcement of family law orders and incorporation of provincial legislation. Again that was probably almost 20 years ago.
There is the odd case in which a document that had been incorporated by reference needed to be interpreted, but it is very rare. There is very limited case law at all to provide guidance on this, and no judicial guidance, which is why the government and the standing joint committee have not agreed on the principles that apply to this.
:
My question follows up on the ones I asked about the oversight mechanism.
You told me that, when the joint committee looks at regulations, it will also look at incorporating the regulations. However, that only applies in the cases where the legislative authority is the one that makes the inclusion directly in the regulations, not when we are dealing with non-governmental organizations or foreign legislation. Basically, that is a problem. Let me give you an example.
Paragraph 18.1(3) reads as follows:
(3) The power to make a regulation also includes the power to incorporate by reference an index, rate or number—as it exists on a particular date or as it is varied from time to time—established by Statistics Canada, the Bank of Canada or a person or body other than the regulation-making authority.
It seems to me that the definition of the words “a person or body” is extremely broad in this case. As Ms. Pledge said, the scope of an act goes far beyond a simple examination of the regulations by the joint committee. We are talking here about a regulation-making authority that could incorporate other regulations without consultation in any case. It could even be an external organization, a foreign one. Perhaps I am wrong, but I believe that we may well be authorizing connections with no consultation or oversight mechanism.
Do you not find that the words “a person or body” should be better defined and have a meaning that is less broad? In some situations—as many witnesses in the Senate pointed out—our national standards could be changed by organizations without the slightest consultation.
:
Mr. Chair, I would like to thank the hon. member and suggest she refer to the last example of incorporation by reference that we provided.
It clearly illustrates the application of subsection 18.1(3) that you referred to. In this type of context a number, an index or a rate could be applied. We refer here to the consumer price index. These numbers and these rates, which are very easily accessible, are published by Statistics Canada, so by the government. Needless to say, they are published in both official languages
In practice, if this number, rate or coefficient was incorporated by reference in a regulatory provision, as is the case here, once the regulation is published in Part 2, the Standing Joint Committee for the Scrutiny of Regulations would study the document incorporated by reference, in the same way that it would review other provisions of the regulation.
In practice that is how it would work.
:
Mr. Chair, I would say to the hon. member that the following distinction needs to be made.
The documents incorporated by reference will not be published in the Canada Gazette. The idea underlying incorporation by reference is primarily not having to publish the incorporated documents.
However, the regulations that incorporate documents by reference will continue to be published in the Canada Gazette, which is what will allow people to know whether incorporation by reference has occurred. Part 1 of the Canada Gazette provides them with the opportunity to express their concerns. In Part 2, the Standing Joint Committee for the Scrutiny of Regulations can review these documents. The committee could even do so in Part 1, like any other citizen.
Indeed, there is no obligation to publish documents incorporated by reference, but they will have to be accessible through another mechanism.
:
It's always a good speech, in my case, but anyway....
[Translation]
During Senate debates, a number of interesting issues have been raised. As I can see in the conclusion, the recommended amendments were not adopted in the Senate either. I would like you to tell us about that.
In a letter to the Minister of Justice in 2009 on incorporation by reference, the Standing Joint Committee for the Scrutiny of Regulations established a distinction between four types of documents. You have spoken about them.
There are documents related to federal or provincial legislation. That is not as complex because they are more accessible and in collections. There are also regulatory documents that are more difficult to find and interpret, particularly foreign legislation. Lastly, there are documents drafted by non-governmental organizations.
The committee had requested that this type of catchall section allowing regulation by dynamic reference concern only regulations that apply to federal and provincial legislation.
Could you explain to the members of this House committee why this suggestion was not accepted?
You could have done so for the others, with specific things that would alert people, such as with foreign legislation or a particular perspective. Still, we are giving the power. I have nothing against giving this power. I want that to be very clear. It's just the method used that I am questioning.
Thank you, officials, for being here today. Thank you for those answers.
We will be dealing with this item again on Tuesday. We have three guests who have confirmed that they are coming to speak to it. My goal is that if we can get through the witnesses—this is a four-clause bill—we may do clause-by-clause at the end of the meeting.
There may be another motion coming that we'll deal with at the time, but we'll see if we can get through. We'll definitely get the witnesses through.
If you have any amendments that you're planning, it would be great if you would bring them forward. You obviously can move amendments at the table based on the presentations that we have, and if we are not able to get through clause-by-clause, it will be the first item of business when we get back after the Christmas break, because I'm not planning on having a meeting on Thursday afternoon at 3:30 to 5:30. I'm not sure the House will be sitting at that particular time, so we'll see. That will be my Christmas present to the committee.
With that, if there is nothing else, we will see you on Tuesday. Thank you very much.
The meeting is adjourned.