Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6, Evidence - April 2, 2014
OTTAWA, Wednesday, April 2, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, met this day at 4:51 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We're here today to study Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.
According to its summary, Bill S-2 amends the Statutory Instruments Act in the following ways: It provides for the express power to incorporate by reference in regulations; it imposes an obligation on regulation-making authorities to ensure a document, index, rate or number that is incorporated by reference is accessible; and it provides that a person is not liable to be found guilty of an offence or subjected to an administrative sanction for a contravention relating to a document, index, rate or number that is incorporated by reference unless certain requirements in relation to accessibility are met.
Bill S-2 was introduced in the Senate on October 22 of last year. This bill had been introduced during the previous parliamentary session as Bill S-12, which died on the Order Paper when Parliament was prorogued in September of last year. At the time, Bill S-12 had passed the Senate and was awaiting second reading in the House of Commons.
Those of you who were members of this committee in the previous parliamentary session may remember that this committee held public hearings on Bill S-12 in November and December of 2012. The committee met four times and heard from five witnesses, including the Minister of Justice and the Attorney General of Canada.
In addition to witness testimony, the committee also received four briefs and a number of reports and supporting documents from the Standing Joint Committee for the Scrutiny of Regulations. Those documents and copies of the transcripts have been circulated again to all members of the committee.
On December 6, 2012, after debate during clause-by-clause consideration, the committee adopted Bill S-12 on division, and appended the following observation to its report to the Senate:
Some witnesses who were supportive of Bill S-12 nonetheless expressed a desire for greater certainty about how the bill would be supplemented. The committee encourages the government to develop guidelines with respect to the use of incorporation by reference.
Because the committee completed its work on this similar bill in the previous session, the steering committee felt the committee could proceed with clause-by-clause consideration on Bill S-2 later today, after hearing one more time from Justice officials. The steering committee also proposes the following motion, in order to include in the records of this committee all of the work that was undertaken on this subject during the last parliamentary session:
That a list of witnesses who appeared before the committee, along with the list of all briefs, documents and testimony received during the First Session of the Forty-first Parliament on Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, by the Standing Senate Committee on Legal and Constitutional Affairs, be appended to the official minutes of this committee proceeding.
That list has been circulated to members, so now I would ask for a mover for this motion.
It is moved by Senator Baker.
Senator Baker: Mr. Chairman, I move this motion as well in that Senator Frum has given several speeches concerning this matter and assures us that everything in this bill has been dealt with by this committee in previous sittings with all of these witnesses.
The Chair: Any more discussion for this motion? Seeing none, is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Carried.
We'll now move on to begin our examination of Bill S-2, and with that in mind, I present to the committee from Justice Canada, Philippe Hallée, Chief Legislative Counsel; and Patricia Pledge, Senior Counsel, Advisory and Development Services Section.
I understand you have some opening comments. Please proceed.
[Translation]
Philippe Hallée, Chief Legislative Counsel, Justice Canada: Thank you, Mr. Chair, for giving me this opportunity to discuss Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. As you know, this bill is a verbatim reproduction of Bill S-12 which was debated before the prorogation of Parliament. As its title indicates, the bill concerns a drafting technique — incorporation by reference — used in legal texts, most often in regulations.
Incorporation by regulation is a technique that is commonly used in legal drafting, one that allows through a simple reference to a document in a regulation to incorporate it conceptually without having to reproduce the text. The content of such a document then acquires force of law and is as much a part of the regulatory framework as the text of the regulation itself.
Incorporation by reference may be static or dynamic. In the case of static incorporation by reference, only the version of the document which is cited in the regulation is incorporated, as though it were frozen in time. Amendments made to the document after the regulation is made that has incorporated it would not be included in the regulatory framework. Should it be advisable to include these amendments, the regulation would have to be amended so as to refer to a subsequent version of the document.
In the case of dynamic incorporation by reference, the amendments made to the document that has been incorporated into the regulation are a part of the regulatory framework without it being necessary to amend the regulation. In other words, successive amendments made to the document will be automatically integrated into the regulatory framework.
Incorporation by reference of documents in different types of federal regulations is very widespread. Among the different types of documents commonly incorporated by reference in regulations are provincial and territorial laws and legislation from other countries, international and national standards, as well as technical documents created by different departments. Incorporation by reference is already expressly authorized by more than 60 federal acts.
[English]
This bill proposes to amend the Statutory Instruments Act to create a general authority for the use of the technique of incorporation by reference in regulations, which would complement all existing regulation-making authorities found in acts of Parliament. It is important to clarify that this bill does not seek to retroactively validate anything that the government did not consider to be already authorized. Rather, it is intended to simply add certainty about regulations that the government has been debating with the Standing Joint Committee for the Scrutiny of Regulations over many years.
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 Consumer Price Index and 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 that is 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 S-2 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 the scrutiny of the Standing Joint Committee for the Scrutiny of Regulations.
Bill S-2 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 the constitutional requirement now, and it remains unchanged by this legislation.
While Bill S-2 is important, it must still be put into perspective. Ambulatory incorporation by reference is already widely used in federal regulations. One of the primary goals of Bill S-2 is to end the legal debate between the government and the Standing Joint Committee for the Scrutiny of 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 other aspect of regulation-making authority, is shaped by the enabling statute under which the regulations are made.
Bill S-2 is intended to confirm the existence of the legal foundation for the use of this drafting technique.
The Chair: Thank you.
Does any member have questions or comments?
[Translation]
Senator Rivest: Is the procedure that you are confirming with this bill compatible, similar to what is being done in other jurisdictions in Canada, in the provinces? Do all of the provinces have legislation that is similar to this bill?
Mr. Hallée: Yes. In several provinces there are indeed certain texts that enable and frame the practice of incorporation by reference, which is very widespread, and is included in legislation to varying degrees depending on the province. In the case of federal legislation, there are in different provinces specific acts containing specific provisions authorizing the use of the technique. But in certain cases there are also provisions in interpretation acts that are of general application and authorize in a general way, as we do here, the use of the drafting technique known as incorporation by reference.
[English]
The Chair: Do any other members have questions or concerns?
I just had one. At the last meeting of the Standing Joint Committee for the Scrutiny of Regulations, we dealt with a file in which standards were incorporated by references that were available in English only and accessible only after paying a fee. Is that the sort of thing we'll see if Bill S-2 passes? How do you define "accessibility" if you have to, in certain situations, require someone to pay a fee to gain that access?
Mr. Hallée: Thank you for the question, senator. As I mentioned, it does not really change the constitutional landscape with respect to the accessibility to the documents in English and French. As you may know, the Manitoba language rights case from the Supreme Court is still very much the reference in that matter, so there can be incorporation by reference of unilingual documents when there is a bona fide reason to do so, that is, essentially, when there is a very technical component to the documents that are being incorporated by reference or where they refer to a specific expertise that could not be found elsewhere generally. I'm summarizing.
In terms of the accessibility with a cost, as we had discussed in this committee, I believe there is a requirement for accessibility for the regulation-making authorities to make those documents accessible to the public, to the "regulatees." In a sense, it's an unqualified requirement — burden — on the regulation-making authorities to make those documents accessible. That means that, essentially, they will have to find reasonable ways to make those documents accessible to the public, accessible in a sense from the public side of things, with a minimum of effort. In some cases, as you know, it could be provincial legislation, so it is already published on the Internet. It could be standards, as you pointed out, senator, that are either on the website of the departments making the regulations, in some cases, or else on the websites of those standard bodies. There are different elements there of the accessibility, but the one thing to perhaps bear in mind is that it's the first time that it is provided in legislation that the regulation-making authorities have to make an effort to make those documents accessible to the public.
The Chair: Thank you.
Anything else from members?
Is it agreed that the committee proceed to clause-by-clause — sorry, Senator Rivest.
[Translation]
Senator Rivest: Have the provinces already been consulted on the new provisions in Bill S-2?
Mr. Hallée: The provinces were not consulted on this bill specifically. There are various informal discussions during different meetings among senior legislative counsel, among various members of the drafting offices staff on the use that is made of this technique at the federal level, as compared to the provincial level, but there was nothing official on the bill as such.
[English]
The Chair: Are we now ready to move into clause-by-clause consideration?
Senator Baker.
Senator Baker: But the Standards Council of Canada, I believe, presented to this committee, representing some 12,000 organizations across the country.
Okay, Mr. Chair.
The Chair: Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Are there any observations that we wish to attach? We've already, in the last session, attached an observation, which is going to be appended to the report, so I think that covers that base.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Very efficient, members. No additional business? We thank our witnesses again.
(The committee adjourned.)