[Recorded by Electronic Apparatus]
Wednesday, November 6, 1996
.1544 
[English]
The Chairman: Thank you very much, ladies and gentlemen. I'd like to recommence the subcommittee's hearing of witnesses on Bill C-25 and our review of the second reading of that bill.
We're very fortunate to have as a witness today the Canadian Environmental Law Association, in the person of Michelle Swenarchuk, the executive director.
I'd like to welcome you here today. I would ask that you make your presentation, after which we would perhaps have the opportunity to ask some questions. Is that all right? Please begin.
Ms Michelle Swenarchuk (Executive Director, Canadian Environmental Law Association): Thank you, Mr. Chairman. I want to express my appreciation to the committee for giving us the opportunity to appear here today.
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The Canadian Environmental Law Association - or CELA, as it's called - has been around for 26 years. This small brief that I've done for you will be approximately the 300th of the law reform briefs that we've done over those 26 years on many aspects of environmental and administrative law. We are a legal aid clinic still funded through the Ontario legal aid plan.
When we approach proposed changes to environmental and administrative laws in this era, we have a growing concern that this is an era of deregulation. In fact, the framework of environmental law that has been constructed over the past 25 to 30 years is being rapidly dismantled. This is certainly the case in Ontario, but we have concerns about that process at the federal level too. Last year we were involved in persuading the government not to proceed with the Regulatory Efficiency Act, which we considered to be an absolutely drastic deregulatory piece. We're therefore relieved in some senses in looking at the Regulations Act. It's certainly not drastic in the way the other one was, but we are concerned about some of the elements in it.
On the first page of our brief, we've set out the context for why we think this is an era of deregulation. It flows from the liberalized trade agreements; the shrinking government budgets; the shrinking political will, in some respects, on environmental protection; and the internationalization of standards setting and harmonization of standards.
It's important to remember that in regard to environmental protection, deregulation and environmental roll-backs are not supported by the Canadian population. We have tracked public opinion polls since 1988, many of which were done by Canadian Ministers of the Environment through the Canadian Council of Ministers of the Environment. Those polls, from 1988 to 1994, and many individual polls since, paint the same picture. The most recent one was done by Environics last July, and it was a national poll. There are many questions in it, but I'll summarize it briefly.
People were asked what they thought governments should do about environmental laws in a context of shrinking budgets and deregulatory initiatives. Half of the Canadians polled said that even in that context, governments should slowly and continuously improve environmental laws, and another 31% said government should quickly improve environmental laws. So there is a lot of evidence the public supports environmental protection and thinks we need strong environmental laws to do it.
The bill we're looking at today, of course, isn't strictly an environmental law, but I'm going to use some environmental examples in showing some of the concerns we have. First of all, I want to say that I think the language of this bill is a tremendous improvement over the old Statutory Instruments Act, which is just about impenetrable when you try to read it. So I think the attempt to simplify language and call everything a regulation is an improvement. I think there are some problems with applying that definition, but I really congratulate the government on this effort to simplify that old-style act.
The first area of concern that we have with this bill is that of broadened exemption powers, specifically clause 5 of the bill providing that the Governor in Council may, by regulation, exempt regulations from the application of the regulatory process. As I read that and compare it to section 20 of the Statutory Instruments Act, it's a much broader exemption power. The previous act listed a number of circumstances in which regulations could be exempted from the regulatory process - I've listed them, and I'm sure you're aware of them - but I think this is a very different act that we're looking at here.
The previous exemptions were relatively broad exemption powers, and the secrecy that goes with an exemption makes that exercise of discretion unreviewable. We can't say anything about officials doing that because, by definition, we won't know. However, this new unfettered discretion to exempt is a new and dangerous extension of these powers. It essentially removes any certainty that regulation-making will be broadly accessible to the public scrutiny that is fundamental to democracy. It permits the government of the day to operate almost entirely in secret if it chooses to do so. The removal of all criteria for the exercise of this discretion is a serious roll-back of basic, democratic citizens' rights to ensure that governments are accountable for their actions.
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As I said, we were leaders in last year's national mobilization to persuade the government not to proceed with the Regulatory Efficiency Act. Some of you may recall that the staff of the Standing Joint Committee on the Scrutiny of Regulations provided a quite scathing analysis of that bill. The appendix of that analysis looked at all of the regulatory exemption powers. I've quoted from it on page 3 of my brief, and I'll just make one citation:
- When one examines the individual statutes relied upon by the government as
precedents...(although) there are instances of the conferral of a blanket power to make
regulations exempting persons from any of the provisions of the parent statute or its regulations,
the great majority of statutory exemption provisions are much more limited.... Even where a
relatively broad power is granted by Parliament to make regulations establishing exemptions,
the grant of power is usually defined by reference to prescribed circumstances or conditions.
In addition to the abhorrence of democratic societies for secrecy in government decision-making and the fundamental dangers it represents for democracy, it should be remembered that the legal process of regulation-making has, in itself, provided a basic level of public notice and information with opportunities for public involvement and accountability through reporting. It has also provided impetus for legitimate public debate. Removal of this process seriously undermines these public values.
I'm sure you're aware that in many fields of public safety - environmental, health, child safety, transport safety, regulation - public interest groups across the country get involved in regulation-making in those fields. That's what we mean when we say it's an impetus for public debate and a basic process that allows public involvement. So that's another one of the democratic values that broad exemption powers like this one really endanger. Our recommendation, then, is that the powers to exempt regulations from the regulatory process should not be expanded beyond those currently in the Statutory Instruments Act.
Mr. Chairman, if someone wants to ask questions or discuss anything at anytime, I'd be happy to do that.
The Chairman: We'll wait until you've finished.
Ms Swenarchuk: Okay.
Our second concern is the apparent reduction in legal scrutiny of regulations prior to promulgation. That appears to be the case when I look again at the pre-promulgation scrutiny provisions of this bill as compared to the one in the Statutory Instruments Act. This change may or may not be of significance depending on what the government intends. We really can't tell.
If the same level of scrutiny is intended, the listed criteria of the previous act and the named reviewers should not be deleted. Skeptics must wonder if this is a cost-cutting measure that will lead to less professional scrutiny of proposed regulations. If there will be less scrutiny, we risk having poorer drafting and more litigation over unauthorized exercises of power by officials. So again our recommendation is that the current criteria and levels of professionalism for review of proposed regulations should be maintained.
I think we're in an era where all of us want simpler regulations that the public can understand. We want regulatory reform to proceed quickly and efficiently. Removing professional scrutiny is likely to lead to worse drafting in regulations, more complexity, all the things we all agree should not be part of current regulation.
.1555
Our third concern relates to the lack of certainty and speed in publication of regulations in the future. No one in the country finds the Canada Gazette very scintillating to read, of course. On the other hand, it does provide a basic and reliable source for practitioners, for anyone who wants to know what the current state of regulation is in any particular subject.
The Statutory Instruments Act says explicitly the Queen's Printer shall print the Canada Gazette. That statement isn't in this bill. The bill seems to imply the Canada Gazette will be continued, but our concern is that not all regulations will be published in the Gazette. For example, subclause 10(3) of this bill contemplates increased use of means other than the Canada Gazette for publication, namely means:
- the Clerk considers will be effective in bringing the substance of the regulation to the notice of
persons likely to be affected by it
I've used the example here of another kind of notice process we're very familiar with. In Ontario it has been the case that forest planners in the Ministry of Natural Resources have been required to notify everyone who is likely to be affected by a particular timber management plan. Typically what happens is that they draw up a list. It can be hundreds long. It can include individuals, municipalities, professional associations, environmental organizations. Then they have to mail systematically to all those people and organizations. Typically, people get left off the list and a whole lot of people get information they are never going to use.
It's not very efficient to have a public official spending time trying to figure out who should be notified about an impending legal change. Just put it in an accepted source. Then the courts presume knowledge of the law, enforcement is easier, and everybody knows about it.
Just one further point. The previous bill prescribed periods for publication. This one does not. It says ``as soon as possible''.
Our recommendation is that a reasonable time line for publication of regulations in the Canada Gazette should be implanted in Bill C-25 and all regulations subject to the regulatory process should be published in it. Additional means of publicizing regulations may be appropriate in various circumstances.
So go ahead and provide more notice, but as a minimum let's not have regulations that are not accessible through the Gazette.
We have very serious concerns about the implications of the provisions on incorporation by reference. Of course this can be an efficient short cut for officials and regulators for covering a broad subject area, and sometimes it's appropriate. For example, I used to practise aviation law and I remember when the air navigation orders, which were technical standards written by civil aviation inspectors, were regulated simply by making the regulations.
Actually, the wording of those orders and some of the problems of the wording exemplify part of the problem here. When you simply insert into a regulation another kind of document that was not written as law, you may well end up with wording that just isn't appropriate.
So that's a concern.
Then we think the intention of the government to expand incorporation by reference, which is implied in this bill, is fraught with legal and policy problems. While it can be sensible and efficient to incorporate documents by reference into regulation, this should only be done when the incorporated document has been thoroughly reviewed by regulators and has been subject to meaningful public consultation.
.1600
We're particularly concerned about a trend that is occurring in the environmental field now and elsewhere, which is to replace regulation, despite how strongly it's supported by the public, with voluntary corporate codes, self-regulation, and self-certification. That's a process in which the Standards Council of Canada is extremely active. I expect Environment Canada would very much like to simply incorporate Standards Council documents and stop responding to our requests for regulation. So I think this is a real trend I'm talking about here.
I think it's important to look at Standards Council of Canada processes and results. We have particularly developed examples on the environmental side.
The apparent intention to incorporate products of the Standards Council of Canada and industrial or trade organizations raises serious concern. These bodies are not elected or accountable to the citizens of Canada. They typically operate with unrepresentative, industry-heavy participation in deliberations that are private or inaccessible to the public for reasons of cost. Their products are developed in the interests of the industries that commission and fund them, not in the public interest. Their documentation, which Bill C-25 proposes to include in the public law of Canada, is typically not available to the public except at a cost.
In our view, a great deal of unwarranted attention is being paid to the ISO 14000 series now, called their environmental management series, ISO being the international standards organization. The CSA - the Canadian Standards Association - and the Standards Council of Canada are affiliated with the ISO.
So I'm talking here about a proposed international industry certification standard for environmental systems that is being promoted in Canada through these bodies, which the bill has named as providing documents for the future for incorporation regulation. So this is a real issue I'm talking about.
The ISO 14000 encompasses five documents. Each one of them costs $60. If you want to get your hands on the ISO 14000 series, you have to pay $300. These are not otherwise available. If the Government of Canada is going to list in regulation such documents as this, I think it's entirely undemocratic to suggest that we'll have law in Canada that cannot be accessible to citizens except by paying very large fees.
I went to some trouble to try to get these five documents. I went through the various steps of the organizations asking for them and the answer always was, pay your $300 and you can have them.
The ISO standardization process is becoming more and more globalized through the World Trade Organization, and I expect that in addition to these environmental standards processes, we're going to have others. So I think it's important to look closely at this example.
A useful critique of the ISO 14000 has been provided for the European Environmental Bureau by Benchmark Consulting of Portland, Maine. I want to summarize what this standard actually contains and doesn't contain. The International Organization for Standardization series 14000 takes the ISO into a new domain of public rather than engineering standards-setting and pushes the argument for business self-regulation into a new phase.
Unlike a comparable British or European system, the ISO presents a system for global environmental management that was drafted sans public debate; will be implemented regardless of public opinion or pre-existing international environmental conventions; measures a firm's conformance with its management system, not its environmental, health and safety performance; produces volumes of environmental information that is confidential and need not be given to the public, government authorities, or workers; and requires compliance only with local regulation, not with international or even the firm's home country standards.
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That's a summary of the benchmark paper. Many more excellent details are provided in it.
A similar CSA process for the certification of forest processes in Canada has also been severely critiqued.
A fundamental deficiency of these processes is that they do not produce standards for performance, as we typically have in regulation. They merely produce processes for certifying management systems. Fundamentally they certify, through confidential auditing, whether a company has a management system that delivers whatever its environmental goals are. These goals need not entail any substantive steps toward environmental protection. The documents do not set standards, they merely require compliance with local standards.
If the Government of Canada ceases to set standards through regulation and incorporates ISO and CSA documents by reference into regulation, we will have no enforceable performance standards. Rather, we will have ISO requiring compliance with local standards. We'll have no local standards and be left with an empty circle of words.
The second issue that immediately arises from incorporation by reference is the question of enforceability, especially since the bill says that these documents incorporated into regulation will not be regulations. How then can they be enforced, even if they are documents that, unlike ISO or CSA, include standards? That's a major problem in the bill, I think.
I was very happy to see at the beginning of the bill this simplified definition of regulations as compared to the pages and pages of statutory instruments description. It was very nice to see that nice, neat description of what a regulation is. But once we start talking about incorporation by reference and saying those documents aren't regulations, that simplified regulation definition doesn't apply any more. There's a problem. It's just not that simple.
If you have a regulation and you incorporate another document into it, surely that document has to become a regulation, or part of it. If it doesn't, it's not enforceable, and if it doesn't, why would you bother incorporating it anyway?
If it is the intention of the government to make materials incorporated by reference enforceable legal standards, where will it incorporate performance standards? The wording of clauses 18 and 19 and the apparent conflict between them should be resolved.
Our recommendations on incorporation by reference are two. First of all, no document should be incorporated by reference, including those from the Standards Council of Canada, industrial or trade organizations, or international bodies, unless they include enforceable performance standards and have been subject to meaningful public consultation conducted by the relevant Canadian regulatory authority, which may result in necessary amendments for the purposes of regulation in the public interest. We simply can't assume that international standardization bodies are going to produce regulations that are appropriate for this country.
The second recommendation is that the apparent contradiction between clauses 18 and 19 of the bill should be resolved to ensure that performance standards incorporated by reference, after public consultation, are clearly enforceable.
Our last concern here is that we're in an era when the public wants to be and expects to be involved in government regulation-making and policy-making. One way to do that is to establish clear rights of notice and comment to the public when regulations are being made.
One model for that occurs in the Environmental Bill of Rights in Ontario, where there is an electronic registry accessible across the province in libraries and on which departments of the government are required to post notice of impending changes.
We regret that the Government of Canada hasn't taken a route something like that; it needn't be the same one. In our view, fundamental regulatory change like this should have opened the door, and should still open the door, to including public notice and comment on all regulation-making.
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Those are our concerns. Thank you.
The Chairman: Thank you very much. I would now go to Mr. Lebel
[Translation]
for a few questions.
Mr. Lebel (Chambly): First, I would like to congratulate Ms Swenarchuk on her well-prepared and well-made presentation. I also wish to tell you, Ms Swenarchuk, that I praise you for being courageous enough to come here not to applaud bill C-25.
I did let you speak because you were doing my job. I won't add anything else since I wouldn't like my friends on the other side to forget the truths you have expressed.
I think there is only one concern that you didn't address and about which I would very simply like to know your opinion. Some people are now suggesting that the fact of not publishing a regulation or the fact of exempting some regulations from the regulatory process would contravene clause 133 of the Constitution, that is of the British North America Act. They claim that laws and recent court decisions confirmed that regulations must be considered as laws and, therefore, should be drafted and published in both official languages of Canada.
How do you react when a document, which actually is a regulation by virtue of the exemption power conferred here, is neither published nor written? Do you question its validity or legality? Have the members of the Canadian Environmental Law Association considered that issue?
[English]
Ms Swenarchuk: I'm sorry, we haven't actually considered that question. It does indeed raise possible additional fertile grounds for legal challenges and litigation in the future. I wouldn't express an opinion conclusively one way or the other, but that does accord with one of my concerns, which is that lack of clarity in regulations and lack of public accessibility will mean more litigation and more challenges to government secrecy, not less.
[Translation]
M. Lebel: You don't agree that by simplifying the regulatory process, as proposed in bill C-25, costs could be reduced. Giving the example of forest management in Ontario, you said that we might face much higher costs if the relevant regulation was distributed only to those affected or concerned by the forests of Ontario rather than published in the Canada Gazette.
Ms Swenarchuk: Exactly.
Mr. Lebel: Thank you. I think that is all right, and I thank you very much.
Ms Swenarchuk: Thank you, sir.
The Chairman: Thank you, Mr. Lebel.
[English]
Mr. Maloney.
Mr. Maloney (Erie): In your third recommendation you suggest a reasonable time line for publication of regulations should be implanted in Bill C-25. What, in your estimation, is a reasonable time?
Ms Swenarchuk: I don't know, frankly. When C-25 says as soon as possible, it seems to me the Privy Council Office and Justice think they need more time than they have now. I think this is one where practicality can well pertain. I don't think it should be longer than a month. I think it's 23 days now. Maybe they need twice as long as that; maybe they need a month and a half. I could certainly live with that a lot better than with not having regulations published.
Again, the concern is what is the intention here? Are there going to be so many lay-offs in the Department of Justice that we can't process regulations any more? Is that why we need a lot more time? Or is it just that the current period is too short? I can't read that from outside the public service.
We need a number that's reasonable in terms of the resources available to Justice and also the public interest in having law publicly accessible. Perhaps they need twice as long as they have now, a month and a half instead of 23 days. I would listen to arguments for why it should be any longer than that, but I think there needs to be a time line there.
.1615
Mr. Maloney: Thank you.
The second part of the recommendation refers to additional means of publicizing regulations, means other than the Canada Gazette. Could you give some examples of what you think might be appropriate?
Ms Swenarchuk: I do find it ironic, after practising law for a lot of years when everybody laughs at the Gazette because it's so hard to read, to be here defending it. But I do still think it needs to be there as a basic means of accessibility that every practitioner uses and that the courts use. It's a basic statement of Canadian law.
First of all, I would have no problem with the Gazette being electronic as opposed to in print. I wouldn't personally. There are many citizens, though, who won't have access to it at all unless it's in print. So even that kind of transition has to be carefully thought through.
But given electronic media, there are additional ways now to publicize legal change through those media so they become more accessible to people. The electronic registry in Ontario, for example, being in libraries, allows people to focus on change rather than going through gazette after gazette. That's a useful way of conveying information.
Then there are some kinds of public policy changes that need the kind of broad diffusion through newspapers that we sometimes get: notice of committee hearings or whatever. I still think on matters of environmental and human health and safety issues it's appropriate to put out as much notice of those considerations as possible.
Mr. Maloney: Should those be codified, though? I have often heard ``who reads the Canada Gazette?'' Then all of a sudden someone has had the rug pulled out from under them because they were unaware of some obscure regulation published in the Gazette.
Ms Swenarchuk: Right. And the form of the Gazette and the form of publication of federal legal documents could certainly be improved.
Mr. Maloney: But should we be codifying publication in newspapers, as you have indicated?
Ms Swenarchuk: I'm not sure what you mean by ``codifying'' in this context.
Mr. Maloney: I mean stipulating it in the bill as an alternative to the Canada Gazette.
Ms Swenarchuk: As an alternative or in addition to?
Mr. Maloney: I guess ``in addition to'' would be more appropriate.
Ms Swenarchuk: You mean list other means of diffusion in the bill? That would be useful, yes.
Mr. Maloney: Still along those lines, could you elaborate a little on how the Ontario Environmental Bill of Rights is on an electronic registry?
Ms Swenarchuk: The bill required that the ministries of Ontario, in phases over a certain number of years, begin to list on an electronic registry, set up and administered by the Ministry of Environment and Energy, I believe.... The bill requires that departments provide notice on that registry of impending changes, whether regulatory changes or certificates of approval, depending on which ministry it is. They must post notice of impending changes or decisions that have considerable environmental impact. Then citizens are given a certain length of time, a minimum of thirty days, to comment on those changes.
There are appeal processes that can be triggered by the bill itself. That's a matter separate from the notice and comment.
At a minimum, in public libraries throughout the province there are computers in which the Ontario Environmental Bill of Rights registry is accessible and citizens can go to them and find out whether decisions are coming that affect their local community or waste management or forest management - forest management we hope is yet to come - or local industry, for example pollution. Citizens can call up this registry in their local library, right across the province, see what's happening, and put in comments if they wish to.
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Mr. Maloney: Thank you, Mr. Chairman.
The Chairman: Thank you very much, Mr. Maloney.
Yes, Mr. Lebel.
[Translation]
Mr. Lebel: I would like to point out, Madam, that when we talk we often start from a false premise. People say that about nobody reads the Canada Gazette, but I'm beginning to think that they are mistaken from the outset. You only have to table a bill to realize it. For example, how did you get invited to come here and comment on that matter?
At the Committee on the Scrutiny of Regulations, quite often we don't even need to send invitations, and we may still find ourselves with our room full of people for the review of a regulation. How did people know it? I couldn't tell, since such meetings are not even announced in the official Gazette. I must recognize that in the bus, every morning, we seldom see people carrying their Canada Gazette with them. Pressure groups, though, such as activists who fight in favour of others, labour unions, in short all community and special interest groups are aware of notices published in the Canada Gazette. I think that we have been misled when we were told, at the beginning of our review when we met the drafters of the bill, that the Canada Gazette was neither seen nor read by anybody. That's wrong. Many people read it, sometimes through other people or associations. You would have been surprised of the response when our government tabled its code of ethics for the trustees in bankruptcy. The reaction was almost immediate; about every expert in bankruptcy and insolvency gave us a call within three days. Yet, that document had been published strictly in the Canada Gazette.
Do you read the Canada Gazette yourself, Madam?
[English]
Ms Swenarchuk: I think there are at least two categories of people who read the Gazette. Most of us don't sit down and read statutes either, unless we have to, but I think there are two categories of people who do.
First, the legal system absolutely depends on accurate, up-to-date reporting of the status of the law. A practitioner, a lawyer, a judge - anyone involved in a legal process has to know exactly what the current status of regulation is. It's close to negligence - and in some circumstances it would be negligence - for a lawyer in representing a client not to be absolutely clear of the exact status of regulation in that issue at that moment. So the legal system requires some comprehensive and completely reliable and up-to-date publication of what the law is. That's one group of people who use it all the time and read it.
The second group I can think of are citizen activists and professionals in all sectors, including industry of course, who are involved in conducting their particular business, their particular campaigns. All the medical personnel, of course, are aware of medical regulations, and have to be, because they have to comply with them. Every mining executive will be very well aware of what regulations his company has to comply with. How do you know that you know it? By relying on the official publication that tells you what the law is.
So, yes, a lot of people, not for pleasure but for business, rely on the Gazette.
[Translation]
Mr. Lebel: You just suggested that it would be a lack of professionalism for a lawyer not to read the Canada Gazette. How in the future will he be able to carry out his professional duties correctly if some of those regulations cannot be and will never be published? Do you think that it might lead to some problems for the law practitioners?
[English]
Ms Swenarchuk: That's what I mean when I say that there are a couple of different levels of problem that are caused by non-publication. The first one is a democratic rights problem. This is not a democracy that favours secrecy in government actions, except in very restricted circumstances. So non-publication - government secrecy like that is antithetical to democratic process.
.1625
Secondly, what you have identified is exactly a problem. How can any of us - whether lawyers, medical officers of health who have to enforce local medical standards, health and safety inspectors, labour inspectors, environmental inspectors - do their job if they don't have a comprehensive picture of regulations in the sector they're dealing with?
[Translation]
Mr. Lebel: I thank you, Madam.
The Chairman: Thank you, Mr. Lebel.
[English]
The Chairman: I have just a couple of questions, if I might. What do you think of the proposition of having the regulation coming into force on the date of its publication?
Ms Swenarchuk: As opposed to the date before its publication?
The Chairman: Yes.
Ms Swenarchuk: Obviously it's pretty hard to insist that someone comply with a regulation that isn't yet in effect. That's one thing. Secondly, some regulations need a phase-in period before they take effect. So I wouldn't say, as a principle, that all regulations have to be in effect on the day they're published, but I would think it's appropriate that a regulation publish the phase-in time by which it's in effect.
I can't agree, though, that anyone can be held to a legal standard that hasn't been properly implemented; that won't be until later on.
The Chairman: You also talk about deregulation. What exactly do you mean by deregulation? Could you perhaps give the committee a little more information on how you feel this deregulation is taking place? I think it's important.
Ms Swenarchuk: In Ontario, at the provincial level, more environmental laws have been dismantled since last January than I can easily remember. We've had changes or roll-backs to the Environmental Assessment Act, the Planning Act, the Municipal Act, the Intervenor Funding Project Act, landfill, garbage dump standards, the Aggregate Resources Act that governs gravel mining, forest laws - the list just goes on and on.
By deregulation I mean removing regulations that citizens and companies have had to comply with to achieve environmental goals.
The Chairman: And you feel Bill C-25 will be part of a deregulation, federally?
Ms Swenarchuk: I think it could be. What I have said is that it could end up giving us a two-tier system of law, with one set of regulations that are published and that apply to all of us and that we know, and another set of regulations that aren't published, that may apply to some of us or not, but that we aren't going to know about.
I think the proposed exemption of any kind of regulation from the regulatory process is a major deregulatory move. The discretion is completely unfettered. How it's exercised will never be known, because by definition there will be no publication of all those regulations that weren't published. So it's a very major roll-back, in my view.
The Chairman: I have just one more question, if I might.
You mention the incorporation by reference and that the language would not be judicial; it may not be -
Ms Swenarchuk: In some circumstances.
The Chairman: Yes, and you feel that would be a concern. Could you perhaps explain that a little more fully?
Ms Swenarchuk: I think there are all kinds of documents out there that various sectors comply with to some extent. In Ontario, for example, we have some guidelines for drinking water. They aren't law; they're just guidelines. There are building codes that aren't law, but just guidelines. In all sectors I think you can find examples of documents like that.
They might have been developed by a few people in the field and then become generally used. They haven't been looked at in terms of whether they really are good law, to start with - even whether the principles in them are good law. Then also they haven't been looked at for drafting and clarity.
I think back to those air navigation orders that all became law overnight. It was a good thing to make them enforceable, but I remember working with them with pilots, and sometimes we'd just shake our heads because they just weren't clear enough. There would be internal contradictions, because they just hadn't been looked at in that way. That's one kind of problem.
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I just don't think we can promulgate law quickly without trying to make it - like the Regulations Act says its purpose is - clear and consistent. That's one problem with incorporation by reference.
I think another problem is the whole enforceability issue. When this act says we're going to incorporate documents by reference into regulation but they aren't regulations, what are they then?
For purposes of enforcement, especially in criminal or quasi-criminal proceedings where a company or an individual is being accused of a regulatory offence, courts insist that the law has to be strictly construed and it has to be clear. There aren't going to be convictions, in my view, for documents incorporated by reference that aren't clear.
The Chairman: Do you feel that the main problem is not so much with the language itself, but that documents we incorporate may be somewhat contradictory to other regulations, or contradictory enough to make the intention, one to the other, very fuzzy? Do you feel that the average citizen will not know what regulations are and what guidelines are?
Ms Swenarchuk: As a lawyer, I won't know what a regulation is and what a guideline is. If I'm told that it's incorporated by reference into a regulation that's not a regulation, then I don't know what it is. Maybe the justice department people can tell us what they think it is, but I don't get it.
The language is one problem. I have that whole other large policy concern. Again, is the intention here to incorporate ISO standardization documents, which are not standards, into Canadian regulations as an excuse for not passing standards? Very frankly, some politicians in this country are talking about that for the environmental side. They're saying they'll just use ISO 14000, and that will be our standard.
And no, ISO 14000 doesn't have standards in it.
So there's the sort of technical, professional concern about wording and the professional concern about enforceability, and then there is the policy concern about what the real intention is here.
The Chairman: Thank you very much, Ms Swenarchuk.
Are there any more questions?
Ms Swenarchuk, you've been very helpful. Thank you for your presentation.
Ms Swenarchuk: Thank you.
The Chairman: Members, thank you for your questions and for your time here this afternoon.
The committee will be adjourning until November 19, at which time we'll have three witnesses in the morning, the Barreau du Québec, the University of Ottawa and the Université du Québec à Montréal. In the afternoon I believe we'll hear from Mr. Anisman, who is not confirmed, and Mr. Lee and Mr. Wappel will be appearing. On November 20, at 3:30 p.m. our witness will be Professor Roderick Macdonald of McGill University.
The meeting is adjourned.