Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 27 - Evidence for November 28, 2012
OTTAWA, Wednesday, November 28, 2012
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, met this day at 4:15 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome to the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our consideration of Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. This bill was introduced in the Senate on October 17 of this year. According to its summary, the bill 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 that 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-12 was referred to this committee on Tuesday, November 6 of this year for further consideration. This is our first meeting on the bill.
These committee hearings are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the website under ``Senate Committees.''
To begin our conversation today we have invited senior officials from the Department of Justice Canada: John Mark Keyes, Chief Legislative Counsel; and Philippe Hallée, Deputy Chief Legislative Counsel. We have other officials in the room who are not at the table. Bernard Auger is General Counsel of the Advisory and Development Services Section and Patricia Pledge is Senior Counsel with the Advisory and Development Services Section.
Mr. Keyes, I believe you have an opening statement.
John Mark Keyes, Chief Legislative Counsel, Department of Justice Canada: Thank you very much, Senator Runciman. I would like to begin by thanking the committee for the invitation to speak to you today about Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. The short title of the bill provides a more precise indication of its subject — Incorporation by Reference in Regulations.
The Minister of Justice, Mr. Nicholson, is unable to attend today but is planning to attend on December 5 prior to clause-by-clause study of the bill. My colleague Philippe Hallée and I will do our best to assist you today.
I would like it begin with a brief overview of the subject of Bill S-12 and then comment on how it proposes to deal with this subject.
[Translation]
Incorporation by reference is a drafting technique commonly used in statutory instruments, and particularly in regulations. This technique allows for the incorporation of a document in a regulation without having to reproduce its content. The content of the document has a binding effect and is as much part of the regulation as the regulation itself.
Incorporation by reference of a document may be static or ambulatory. In the case of an incorporation by reference on a static basis, only the document mentioned is incorporated, as if it were frozen in time. Thus, amendments to the document after the passing of the incorporating regulation are not included in the regulation. When it is preferable that any such amendments be included, the regulation must be amended in order to bring the incorporation by reference up to date in the regulation itself.
In an incorporation by reference on an ambulatory basis, any amendment to the incorporated document becomes part of the regulation without having to amend the regulation itself. In other words, every subsequent amendment to the document is automatically incorporated in the regulation.
Incorporation by reference of various kinds of documents in federal regulations has been practised for quite some time. Provincial and territorial, as well as foreign legislation, national and international standards, and departmental documents of a technical nature are among the documents that are most often incorporated by reference.
[English]
For many years the Standing Joint Committee on Scrutiny of Regulations and the Department of Justice have debated whether express authority is needed for ambulatory incorporation by reference in regulations. One of the objectives of this bill is to resolve this debate with a clear statement of the legal authority to use the technique.
Bill S-12 proposes to amend the Statutory Instruments Act to provide a generally applicable express authority for the use of incorporation by reference in regulations which would complement existing regulation-making authorities found in other acts of Parliament. In general, under this legislative proposal material that is generated independently of the government could be incorporated either statically or in an ambulatory basis as it is 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 could only be incorporated statically and only if the content of the document is limited to elements that are incidental to or that elaborate upon the content of the regulations that incorporate them.
This bill also makes it clear that certain types of rates and indicators, such as the consumer price index or the prime rate set by the Bank of Canada, can be referenced in regulations as well.
In addition to providing express authority for incorporation by reference, Bill S-12 also recognizes a corresponding 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 summary, Bill S-12 is intended to confirm the legal foundation for the use of incorporation by reference in federal regulations. I would be pleased to answer your questions and discuss the bill.
The Chair: Thank you. We will begin questioning with the deputy chair of the committee, Senator Fraser.
Senator Fraser: Thank you for being here. For something this technical, we really need you.
This bill, which does seem at first blush quite dry and technical, actually strikes me as being quite sweeping when I think about it. I have to say that my reflections have been greatly helped by the work of the Standing Joint Committee on Scrutiny of Regulations.
It seems to me that, among other things, you are potentially removing from the scrutiny of Parliament huge swaths of regulation. You may wish to comment on that, but my first question has to do with proposed subsection 18.1(3), which says:
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 —
— that is, as it may change in the future —
— established by Statistics Canada, the Bank of Canada or a person or body other than the regulation-making authority.
``Person or body'' strikes me as being an immensely wide category. I hope you will tell me I am wrong, but it sounds to me like we would potentially allow regulations to be made by the association of widget makers for the establishment of indexes relating to standards for widgets, or potentially give to foreign bodies the ability to make what amounts to our law. Once a regulation is a regulation, you are in trouble if you do not obey it.
Please tell me I am wrong.
Mr. Keyes: Thank you for your question, senator.
Yes, we are dealing with a particular technique of drafting and regulating, but we are also talking about substantive powers that have been conferred on regulation-making authorities by Parliament to deal with certain subject matter. We are really talking about the way in which they deal with that subject matter, and it certainly would be possible to deal with that subject matter by putting everything into the regulations. Incorporation by reference, though, is a technique for facilitating that regulation-making power. It is not about enlarging the power or making it any broader; it is simply about how the power is exercised.
In Justice, we have drawn a distinction based on the case law for a very long time between documents that are produced by the regulation-making authority itself and documents that are produced by some other body. That is a distinction that is founded on constitutional case law dealing with incorporation by reference that has recognized that distinction as well, that there is no delegation of power when you are simply adopting something from an outside body.
This provision is focusing on rates and, in particular, statistics. It is really a parallel to what is found in the previous subsections that deal more generally with the incorporation of documents. The reason for the focus on rates here is that the focus is not on the document that states the rate; it is on the rate itself, and it is a focus that permits the regulation-making authority to use that information that is out in the world generally and to reflect that in the exercise of their regulation-making power.
Senator Fraser: You have not clarified my qualms. Is it not the case that, at the moment, when ambulatory procedures like this are used it must be established on a case-by-case basis in the legislation, rather than simply saying that any regulation may use this technique, as this bill does?
Mr. Keyes: I believe the practice in federal regulations has for many years been, in many instances, to incorporate these kinds of rates as amended from time to time. Certainly incorporating the bank rate and incorporating statistics from Statistics Canada have been used for many years, and these sorts of incorporation by reference exist in existing regulations. The foundation for that is the position to which I was alluding a few moments ago based on the distinction that has been drawn in the case law.
Senator Fraser: Let me ask again: Am I wrong in my understanding that currently when this technique is used it is authorized on a case-by-case, that is, law-by-law basis?
Mr. Keyes: I do not believe that is correct. I believe there are instances where there is no express authority to incorporate rates.
Senator Fraser: Could we ask the witness to provide some examples of that for us. As you know, Christmas approaches and we are on a tight timetable, so the sooner the better.
My next question is about number and body. I can understand the reasoning for an index or a rate, but it seems to me that a number is a very wide range. Why do we have to include ``number''? Why could we not just talk about index or rate? Why would we not specify what kind of person or body, other than the regulation-making authority, we would be talking about? Specify Canadian person or body; specify persons or bodies with certain statutory responsibilities. I know the joint committee said this kind of sweeping authorization should only be used for provincial or federal legislation. Why would you not be more limited in the range that you are setting out here?
Mr. Keyes: I would go back to the breadth of the kinds of regulation-making powers that exist. Fr example, there are regulation-making powers intended to help implement international agreements where we are trying to cooperate with other countries in regulating particular areas. This legislation is intended to provide a foundation for the practices that will be used in all of those areas and not to be specific to regulating areas that are exclusively within Canada or do not relate to international agreements or international relations.
Senator Fraser: However laudable the purposes of the international agreements may be — and by and large we do not sign them unless they are laudable — it seems to me it is asking a lot more for Parliament to say okay, we are going to give over a blank cheque for other countries to determine what our regulations will be, without the scrutiny of Parliament.
Mr. Keyes: The decision to incorporate that sort of information is not made lightly. It is made for purposes that must be founded and authorized by the enabling legislation. I would suggest that decisions that made in that regard have been made responsibly, tuned to the purposes of the enabling legislation and the needs of regulating within Canada.
If there have been, or were to be, problems with overly broad incorporation by reference of rates that were inappropriate, that is certainly a matter that the regulation-making authority would be accountable for.
Senator Fraser: ``Trust us'' is what you are saying to me.
Mr. Keyes: Not just trust us; trust the delegates that Parliament has already entrusted with regulation-making powers. Trust them because they already have the substantive power to decide what the rules are. We are talking about a technique that may essentially facilitate the promulgation of those rules.
Senator Fraser: They have that power, but subject —
The Chair: That one question turned into three and you are turning it into four.
Senator Frum: Let me ask the flip side to Senator Fraser's questions in terms of the benefits to the efficiency of this legislation. If we do not have this legislation, can you talk about the burdens and difficulties it creates?
Mr. Keyes: The main feature that is of interest to the committee is the aspect of ambulatory incorporation by reference. The incorporation of static documents is universally recognized as something that is authorized. I will address that aspect of your question.
If ambulatory incorporation is not permitted, it would mean that all of these documents would have to be incorporated on a static basis. If updates are needed to update those references, the government or regulation maker would have to invoke the regulation-making process again to bring those updates forward and have them approved according to that process. One result would be a very significant increase in the number of regulations that would have to be made on a regular basis to provide these updates.
Another disadvantage is one of time because regulatory processes take time. They cannot be done overnight. I believe in certain instances it is critical to have these updates effective fairly quickly after the incorporated document is changed. The purpose of the regulation is to ensure that in Canada we have a harmonious regulator regime with another country; we do not want gaps between those two regimes. Those are two difficulties that would result if Parliament were only to authorize incorporation by reference on a static basis.
Senator Frum: Sometimes it is our obligation to be in harmony with other countries and to have that kind of international cooperation, and there is fear that we are delegating regulation to other countries for our own standards. First, that harmonization is something that is happening now and is something that we often have an obligation to do. We are not handing off our responsibilities to other countries.
Mr. Keyes: That is right. In many of these harmonized regimes it is a two-way street. The other country is also harmonizing their laws, to a certain extent, with us.
One of the threshold cases in incorporation by reference in Canada is Scott. It was a case about the reciprocal enforcement of maintenance orders. People have children, they split up and one of them goes to another country. It is legislation intended to facilitate support arrangements for those sorts of situations. You have a choice of law. Which law will you apply now? Is it the law of one country or the other? The legislation was intended to harmonize those choices. In some cases it might be the law of one country and in other cases it might be the law of the other, but the objective is to have a harmonized legal regime for Canadians or family groupings that are now living across borders.
Obviously, in a situation like that you do not want to have to update your reference every time any number of these other jurisdictions amends their law on divorce or family relations.
Senator Jaffer: I used to be a member of the Joint Committee on Scrutiny and Regulations, and it was not us who were holding up regulations. We were always waiting for departments to bring regulations to us, sometimes for a year. I am at a loss as to why you could not, if a regulation was needed. Tell me why it would take so long to go through the process. What is the haste? The example you have given of support takes years. I have been a family lawyer; I know how long those things take. It is not necessary to be done overnight, and I do not know why it should not have that oversight process of going to the Joint Committee on Scrutiny of Regulations.
Mr. Keyes: The existing process for regulations involves a certain number of steps mentioned in the Statutory Instruments Act review by the Department of Justice registration publication. There are a number of other steps the government has recently put in place as a matter of policy. The cabinet approved a cabinet directive on regulatory management, which is a successor to a series of previous cabinet directives going back to the late 1970s and early 1980s. These cabinet directives recognize that the decision to make a regulation should not be made lightly. There are a variety of considerations that should be looked at, looking at the potential regulatory burden on those who are regulated but also at things like our international obligations. The processes required to conduct that analysis and review take time. These processes are justified by the objectives of ensuring that regulatory decisions are well founded and are not creating burdens that are unwarranted. The downside is that time is needed for the regulatory process.
Senator Jaffer: Can you give me an example where you need to have a process go very quickly, a regulation passed through very quickly?
Mr. Keyes: I will go back to a matter that I was involved in a few years ago with the Chalk River nuclear reactor and the need to authorize the operator of that reactor to restart it quickly because of the urgency relating to medical isotopes. Legislation was passed within a week in both houses and at the same time a directive, which is essentially a regulation, was issued to the Canadian Nuclear Safety Commission to complement the legislation. That is one example of a situation of national importance and great urgency that I think was recognized by all parties.
Senator Jaffer: Does it say ``under urgent circumstances'' in the act? This act is quite sweeping. It does not talk about emergencies or urgent circumstances.
Mr. Keyes: You are correct. There are no criteria of that sort. Again, I would go back to appealing to the criteria that relate generally to the exercise of the power itself — that those are the criteria and the purposes that will shape decisions about using the technique of incorporation by reference as well as the substance of the regulatory decisions that are being made.
Senator McIntyre: As I understand the act and the regulations, there are three basic requirements for making regulations: legal examination, registration and publication in the Canada Gazette. I have concerns regarding proposed section 18.4, which calls for no registration or publication unless open or dynamic. In your opinion, does Bill S-12 meet the requirements of the act and the regulations?
Mr. Keyes: Proposed section 18.4 is intended to recognize one of the fundamental features of incorporation by reference, which is that the incorporated documents are not subject to the same process requirements as apply to the making of the regulation itself, specifically the requirement to publish in the Canada Gazette.
One of the original rationales for incorporation by reference is to avoid the need to republish the incorporated material on the basis that the material is usually published and available in some other form. Therefore, saying that the incorporated material does not have to be published in the Canada Gazette is based on the fact that the incorporated material is already accessible and available to people, and that publishing in the Canada Gazette will not serve any greater purpose in terms of bringing it to the notice of those affected.
Senator McIntyre: As I understand it, Bill S-12 calls for three provisions: power to incorporate by reference in regulations; obligations on the regulation maker to ensure that the document index, rate or number is accessible; and finally, an exception to liability.
On the issue of liability, I have concerns with respect to new section 18.6, which states that there is no finding of guilt or administrative sanction ``. . .unless, at the time of the alleged contravention, it was accessible as required by section 18.3 or it was otherwise accessible to that person.'' New subsection 18.3(1) deals with accessibility. I note the term is not defined. In your opinion, what is meant by ``accessible''?
Mr. Keyes: I believe it would be interpreted in terms of allowing a person affected by the regulation to obtain a copy of the document and understand from that what needs to be understood. It is not that a copy has been sent to them; it is that it is, with reasonable effort, accessible to them. They would be able to obtain a copy of the incorporated document or rate with a reasonable effort to do so.
If that is not the case, then proposed section 18.7, which you mentioned, would protect them from the imposition of a sanction or conviction related to that incorporated document.
Senator Joyal: Welcome, Mr. Keyes. I am happy to see you back at this committee. May I tell you candidly that I would have appreciated the declaration of your part in both languages, because I do not think this invitation from this committee — I asked for it and I do not have it.
Senator Fraser: No, we do not have the text.
Senator Joyal: That is what I am saying.
Senator Fraser: I am sorry. I did not understand. I apologize.
Senator Joyal: I would have appreciated it. These are complex issues and it would have been nice to have the time to reflect upon it, because your contribution is always well thought out, substantial and encompassing in terms of its implications. I would have appreciated that, personally. I wanted to tell you that first.
Mr. Keyes: Certainly. I have given a copy of my remarks to the clerk, so a copy is certainly available.
Senator Joyal: I know, but it could not be circulated because it was not in both official languages. That is what I want to say.
Mr. Keyes: Yes.
Senator Joyal: My first point is a follow-up to Senator McIntyre. It is in relation to proposed subsection 18.3(1) of the bill, on page 3, at the top. I will read it:
The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible.
My preoccupation is the definition of ``accessible.'' What is accessible? In the following paragraph, which Senator McIntyre quoted, it excluded that anything can be made accessible that has not been published in the Canada Gazette. How can an ordinary citizen be sure he will have access to that document if it is not published somewhere in an official, reliable source?
As you know, the tendency of modern legislation is to have bills with two or three clauses and the rest is in the regulations. We have before this committee Bill C-293, which will bar someone from making a complaint in the penitentiary system whereby the process for that person to be barred from that right will be in regulations. We were told it will be in regulation, so we have a short bill with two clauses, but the substance of the bill to protect the rights of the citizens will be developed in the regulations.
It seems to me that if we are to incorporate documents, statistics, index rates, et cetera, it has to be made accessible easily to citizens, especially in the modern context.
What does ``accessible'' mean, in your opinion, in that bill?
Mr. Keyes: ``Accessible'' means that, with a reasonable amount of effort, the person who is affected can obtain a copy of the document.
The requirement of accessibility is one that is on the regulation-making authority. If that requirement is not met, the regulation itself becomes unenforceable. That is the means of ensuring that the obligation is met. If it is not met, then the regulation is not enforceable through prosecution or through the imposition of administrative sanctions.
The legislation is recognizing that the regulation-making authority has that obligation. They have to take steps to ensure that documents are accessible. If they do not, they risk having difficulty enforcing the regulation.
Senator Joyal: In a nutshell, is it the regulating authority that has the responsibility or the obligation to ensure that documents, statistics, indices or whatever are accessible?
Mr. Keyes: That is right: to ensure that accessibility is there. It may be that these documents are already accessible, so there is nothing more to be done. Something like the consumer price index is readily accessible through Statistics Canada. In other cases, it may be that something needs to be done.
It is an obligation that will vary considerably with the particular regulation, the particular circumstances, and the particular kinds of documents that are incorporated. For example, if the incorporated material is the law of the province, I would suggest that really nothing more is needed to ensure accessibility. By any reasonable standard, provincial laws are accessible in Canada.
In other cases, where the reference document is rather more obscure or more specialized, then some attention will have to be made to ensure that the people who are expected to comply with that document in fact do have access to it. If that obligation is not met, then the regulation-making authority will have difficulty enforcing the regulation against those bodies or those people.
Senator Joyal: Why have they not put in the bill a specific obligation for the regulating authority to make the incorporated material accessible, stating clearly in the bill that the regulating authority has that obligation? It seems to me that what you are saying is that they make it accessible, but there is no system through which one can control the authority of making the information available. In fact, 18.4 is a disclaimer of responsibility, the way I read the bill.
Mr. Keyes: I believe 18.3 fairly clearly states the obligation. It says:
The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible.
It is clearly imposing an obligation on the regulation-making authority to do that.
The other side of that obligation is when you come to 18.7, and you see that if it does not discharge that obligation, it will be unable to effectively enforce the regulation in a criminal proceeding or in administrative sanction proceedings.
Senator Joyal: When the authority refers to incorporating materials, why do you not state that the authority has the obligation to inform whoever is concerned how the material is accessible and let the person fight the overall administrative system to find the information?
Mr. Keyes: It could be that there may be circumstances where that kind of proactive informing is required. However, in many circumstances, if not most, that sort of proactive informing will not be necessary because the incorporated material is already available and is already accessible. Part of the reason for incorporating it is the fact that it is already accessible and already familiar to the people who are affected by it. In those cases, nothing would be gained by creating an obligation to go further, over and above ensuring that it is accessible, to somehow publicize the fact that it is accessible.
Senator Joyal: I have the impression that you are cutting the obligation of the regulating authority to make the information available very short. It seems to me that consumers or citizens are normally so lost when they approach the administration that the information should be accessible-friendly. In other words, it should be easy. The way I read the bill, it seems it will be very tight: ``Our obligation is limited and this is it; fight your way through the system to get the information.''
It seems to me that if we are to make it easy for the regulating authority by incorporating a lot of other information, we should make as much effort for the consumer and the average citizen to have access to that information. It is a two-way balance in the system.
What you are asking of us, in fact, is to make your job easier, but at the same time we should be concerned about making access easier for the consumer or the average citizen. That is the way I am trying to understand the philosophy behind the bill.
Mr. Keyes: Perhaps I could suggest a slightly different perspective with particularly this section of the bill. It is actually for the first time stating in Canadian law a positive obligation to make these documents accessible.
Today, there may be a few rare instances in particular statute, but there is no generalized statement in federal law that incorporated documents have to be accessible. What we rely on is basically the common law, which has recognized that if these documents are truly part of the law and part of a regulation, then to be enforceable they have to be accessible.
I believe the bill is making a substantial improvement in that it is for the first time generally stating this obligation, and it is largely stating the obligation in the way that it exists right now in terms of the common law and in terms of the way the courts have dealt with these issues in the very limited number of cases that incorporated documents have ever come up in the courts.
[Translation]
Senator Dagenais: Mr. Keyes, if I understood you correctly, in your presentation, you pointed out that incorporation by reference facilitates harmonization of regimes between jurisdictions. Can you give us one example in particular of this harmonization?
Mr. Keyes: Earlier, I mentioned international agreements, that is the regulating of a particular area between two countries. In this case, it becomes imperative to harmonize regulations between the two countries. When it comes to regulating the safety of certain imported products, for example automobiles, these products have to comply with certain safety standards. This is the case between Canada and the United States. Currently, both countries have similar schemes in that industry, and we often incorporate American standards in our own.
[English]
Senator Baker: I thank the witness for his informative presentation. What was going through my mind when you were describing accessibility and familiarity with the law was that we use the term ``reasonable person'' when making a judgment, and we assume that the reasonable person knows the law.
In this particular case, thinking of the maxim that ignorance of the law is no excuse, let me just quote for you paragraph 87 of a judgment made in May of this year, Vilardell v. Dunham from the Supreme Court of British Columbia, paragraph 87:
As John Mark Keyes points out in his Essay ``Perils of the Unknown - Fair Notice and the Promulgation of Legislation'' (1993), 25 Ottawa L. Rev. 579 at 582:
The law is no longer, if indeed it ever was, like a Parker Brothers game that can be played by reading the inside of a Box.
Do you remember saying that?
Mr. Keyes: Indeed, I do.
Senator Baker: Then the Superior Court judge concludes by saying this:
Instead, the law is a complex structure which is not known by the simple act of looking or reading. The very structure of the law presupposes the existence of and access to legal counsel.
When you reference accessibility and familiarity, you are really referencing that of legal counsel and not the person affected by the situation.
Mr. Keyes: Yes, that would certainly be true. In many cases where we are talking about very complex pieces of legislation that are essentially understood by specialists in those areas, that would certainly be true. In terms of substantive accessibility, which really benefits the people who are ultimately affected, what is critical is that their legal advisers or other advisers have the access they need to provide them with the right advice in terms of their own affairs.
The Chair: We have two senators who have asked for second round opportunities.
Senator Fraser: This is an important bill.
Senator Jaffer: Which other countries have the same kind of legislation that you are proposing?
Mr. Keyes: Basically the approach we have here is substantially reflected in the United States and the United Kingdom. There are certainly other countries around the world — and in some provinces, in fact — that have taken a more limited view of the scope for incorporation by reference than we have been taking in Canada. In the United Kingdom and the United States, there are generally similar sorts of scope for incorporating on an ambulatory basis.
Senator Jaffer: How will you consult? I understand with regulations there is normally a consultation with the stakeholders and just general consultation. How will you do consultations for these regulations?
Mr. Keyes: There would be consultations when the regulations are being proposed and put forward with an incorporated document.
Senator Jaffer: That is right.
Mr. Keyes: The consultation would take place around the entire package. Typically, your proposed regulation is given to the stakeholders who are being consulted, and they would see the reference to the incorporated document. If they have questions about that, consultation would relate not just to the merits of incorporating that document, but perhaps to the appropriateness of some of the contents of those documents.
The consultation would be of the entire regulatory package. If the incorporated document is providing important elements of that package, then the consultation has to relate to that package as well.
Senator Jaffer: Am I correct in understanding what Senator Baker was saying; namely, that for some regulations I can no longer look at the Canada Gazette and I will have to retain a lawyer? Is that what you were saying?
Mr. Keyes: All regulations would continue to be published in the Canada Gazette, but what you would have and what you have now are some regulations that refer to these incorporated documents.
With the information in the regulation, you should be able to identify what that document is and obtain access to that document by reference to the details that are given.
Senator Joyal: In the letter that the joint committee sent to the minister in 2009 about incorporation by reference, the committee distinguished between four kinds of documents. There are the ones that are related to federal and provincial statutes, which are easy to access because the law is there in the books. However, there are also the regulating materials, which are more complex to find; foreign legislation, which is even more complex to find and interpret; and then, finally, the materials produced by non-governmental bodies.
The joint committee was asking for the last three groups of information that it be possible to be incorporated only if the enabling statute clearly stated that as an objective. Why did you not reflect in the bill we have today that kind of recommendation the committee made to ensure that the accessibility that we talked about — proposed section 18.3 — is real for average citizens?
Mr. Keyes: We considered very carefully the recommendations of the committee in looking at those four categories. Ultimately, we felt that the better approach would be to reflect our understanding of the law over the course of many years and to put forward a bill that would reflect that understanding of the law that is broader than encompassing simply the incorporation of provincial or territorial laws but rather one that does encompass the ambulatory incorporation of those other kinds of documents, the other three categories. We have developed an established practice of regulation-making that goes across all of those groups, and the purpose of the bill was to provide a very clear legislative statement of that foundation.
Senator Joyal: It seems to me that it would have been easy to be precise and make it clear in the bill that information relating to foreign legislation and materials produced by non-governmental bodies could be incorporated if the enabling legislation allowed it. It seems to me that would have been quite clear for citizens to understand in the enabling legislation that the power has been given to incorporate by reference some information that otherwise could be there without citizens knowing. It seems to me that would have been easy in any piece of legislation to have that attached to it, and it would have been, in my opinion, a protection for the accessibility of the information.
Mr. Keyes: It could have been done, but it would have been a change in terms of the approach the government has been taking for decades and decades. It would have been a change from our understanding of what the common law authorizes at the moment. We certainly recognize at the moment that we and the joint committee have different understandings of what that law is. We felt it was best for the government to go forward with legislation that would put on a secure foundation the practices that have been in place for years and years.
Senator Joyal: Yet it exists in Manitoba and Ontario.
Mr. Keyes: Yes, certainly some other jurisdictions have taken a narrower view. I am not sure what their practice has been with incorporation by reference. This bill mirrors the federal practice.
Senator Joyal: It has some implications, however. What you have done is essentially an across-the-board authorization for everyone, while the joint committee has realized that there are distinctions to be made and that some provinces have made those distinctions. It seems to me it is the prudent approach to adopt.
Mr. Keyes: That is the very question before this committee and these houses; namely, which of those approaches is the better one?
Senator Fraser: I have a few questions and I will try to keep them as tight as possible in deference to your generosity.
To get back to proposed sections 18.3 and 18.4, as you rightly pointed out, section 18.3 says that it is the regulation- making authority that has to ensure that the regulation in its entirety is accessible, as amended from time to time.
Then the question arises of how they will do that, which we have been discussing. I take your point that the bank rate and the consumer price index and such things are very public, but not everything is. Then I look at 18.4. Under that, would it be possible for the regulation-making authority to have included in the regulation a requirement for the third party — that is whose work will be incorporated by reference — to inform the regulation-making authority formally when a change occurs in the future, from time to time, or would that be banned under 18.4? It is not required to be transmitted for registration or published in the Canada Gazette. I am not sure how far that ban goes in 18.4.
Mr. Keyes: I do not believe that 18.4 would affect the situation that you have described, which would be where the regulation-making authority makes arrangements with the body that is producing the incorporated document and that the body takes proactive steps.
Senator Fraser: It could even be part of the regulation.
Mr. Keyes: Proposed section 18.4 is focused on registration and gazetting in the Canada Gazette. In the situation you have described, certainly these documents could be published in the Canada Gazette. Part I of the Canada Gazette publishes all sorts of official documents. Whether that would be an effective way of ensuring access is perhaps another question, and my guess is that there would probably be more effective ways.
Senator Fraser: Anyway, the situation could be addressed. That was just my first question.
This bill refers frequently to documents, including documents as they may be amended from time to time, being incorporated by reference. I betray my ignorance. What, for these purposes, is a document?
Mr. Keyes: A document.
Senator Fraser: Any old document? A calendar? A letter? I am serious. We are going to hear, for example, from witnesses who were very concerned that guidance documents could become part of the regulations. I do not know if I share their concern, but I think I understand it, and so I would like your comment on a little more precision about ``document.''
Mr. Keyes: In conceptual terms, it is a container for some material, some content, that the regulation maker wants to bring into a regulation. There is any number of names for that document. It would have to be some identifiable, transportable, communicable container for that information.
One of the reasons for the provision that deals with rates is that the reference often is not to the document, not to the container, but directly to the contents. That was why there was a focus on rates without having to necessitate a need to specify some document that Statistics Canada is publishing. We just specify what they publish.
In all other cases, that notion of document is critical in terms of communicating and giving people the information they need to access that document or to find that document. A document is a container that presumably has a name and is identifiable in some way to allow an interested person to find that document and then read it and have access to it.
Senator Fraser: Since Mr. Keyes has already agreed to provide us with some information, could we ask him to include also two or three examples of a ``document'' in this context so that I have a better understanding of what we are talking about?
Mr. Keyes: Certainly.
Senator Joyal: Will the regulation-making authority have the responsibility to translate in both official languages the documents that will be incorporated by reference?
Mr. Keyes: This legislation does not change or alter in any way the application of constitutional or quasi- constitutional obligations relating to official languages. It maintains the status quo in that regard. In Justice, we take very seriously the obligations that have been recognized in cases like Blakey and the Reference re Manitoba Language Rights. We provide advice on the basis of the law that has been stated by the Supreme Court of Canada in relation to those obligations. This bill does not alter those obligations in any way. They continue as they were, and we would anticipate continuing to provide advice on the same basis if this bill is passed.
The Chair: Thank you, sir. Thank you, gentlemen. We appreciate it.
I would now like to introduce to the committee Mr. Robert White, Director of Regulatory Affairs, Consumer Health Products Canada. Consumer Health Products Canada is the national industry association representing manufacturers, marketers and distributors of consumer health products.
Welcome, Mr. White. The floor is yours.
Robert White, Director of Regulatory Affairs, Consumer Health Products Canada: Thank you, Mr. Chair and members of the committee, for allowing me the opportunity to speak to you today on Bill S-12.
Consumer Health Products Canada is a national industry association representing manufacturers, marketers and distributors of consumer health products. The association's members, who range from small businesses to large corporations, account for the vast majority of sales in Canada's $4.7 billion market for consumer health products. Our members' sales are equally proportioned between natural health products and over-the-counter medications. Consumer Health Products Canada has been the leading advocate for our industry for more than 115 years.
It has been proposed that the Statutory Instruments Act be revised to provide the power to incorporate by reference a document or part of a document as it exists on a particular date or as it is amended from time to time. Consumer Health Products Canada supports the goals of this initiative with respect to permitting timely and flexible approaches to regulatory modernization by allowing dynamic incorporation.
Currently, the department with which Consumer Health Products Canada has the greatest degree of involvement is Health Canada, which administers the Food and Drugs Act and Food and Drug Regulations.
There have been many instances where Health Canada has needed to reference foreign documents such as recommended daily intake levels of ingredients or pharmacopeias within regulation. We can attest to the effectiveness and efficiency of this approach and believe it has saved significant law-making costs.
However, we believe it is important to add greater clarity by explicitly stating in Bill S-12 that government guidance documents should be outside the scope of what is considered to be a document for the purposes of the act. It is clear that government departments regularly develop guidance documents to help clarify the current interpretation of regulations and to help ensure that both industry and regulators have a clear and consistent understanding of requirements.
Paragraph 18.1(2)(b) as proposed would allow for bodies or persons outside of the regulation-making authority to procure a guidance document that the regulatory authority could incorporate by reference. This could result in new requirements being given legal status without public consultation and be contrary to the government red tape reduction initiatives aimed at imposing the least possible cost on Canadians and businesses that is necessary to achieve the intended policy objectives.
While we support the proposed Incorporation by Reference in Regulations Act provided the appropriate safeguards are put in place, we would suggest amending proposed section 18.1 by adding a clause that would say something to the effect that a document or part of a document incorporated by reference does not include guidance documents that are intended to provide clarity for stakeholders around the regulation or parts of a regulation's intent.
We would also suggest adding at the end of subsection (2)(a) that this may include lists or schedules; however, cannot include stakeholder guidance documents intended solely to provide clarity regarding a regulation's intent. Finally, we suggest clarifying subsection (2)(b) to include not only documents procured by a person or body other than the regulation-making authority but also those procured by the regulation-making authority.
Thank you for your time and consideration of our industry's perspective of this important legislative proposal. I look forward to answering any questions you may have.
Senator Fraser: Thank you for being here, Mr. White. Your presentation was very interesting.
Let me start by asking a quick question based on ignorance. What are consumer health products? Does that include prescription drugs?
Mr. White: It includes over-the-counter drugs such as pain relievers, cough and cold medicines and heartburn relief, as well as natural health products, which includes vitamins and supplements as well as herbal ingredients. It is anything for which you do not need a prescription or the intervention of a pharmacist.
Senator Fraser: With regard to your concern about guidance documents, am I to take it that your concern arises because the people in Health Canada, or other departments as the case may be, who utter the guidance documents are not the regulation-making authorities? As I read subsection (2), a document that the regulation-making authority itself has produced cannot be incorporated. Am I reading that incorrectly? Please clarify.
Mr. White: That is a very good question. We have read this document many times and it does not seem to be very clear in terms of the intent of the regulation or the intent of the act. We have had some concern ourselves with regard to understanding exactly what can be done and what cannot be done.
I heard some of the questions earlier, and I think a number of people are a little confused. It is sure not plain- language English. I cannot answer that question. There is a guidance document that talks about advertising, and it explains the intent of the regulation. Our concern is that the regulator was to put this, by incorporation into reference, right into regulation without any type of public consultation whatsoever around the content. It could add new requirements to industry where no reassessment has been done to calculate the costs to business or to consumers for these changes.
Senator Fraser: It is nice to know I am not the only one with great clouds of uncertainty. Thank you very much, Mr. White.
Senator Frum: You heard the conversation we had with the last panel about accessibility. I have a question for information and clarification. When there are changes to regulations that affect the consumer health products industry, how do you generally tend to find out about them?
Mr. White: We have a lot of ears on the ground and we follow these things closely. Health Canada usually gives us advance notice of changes to policies or regulations, and we do this on a rolling basis every six months. We are very proactive in following these things and letting our members know. I do not think there is a problem with our members knowing, but groups that are not members of our association or the general public may not be aware of changes made. Accessibility is critical.
Senator Frum: How important a role does the Canada Gazette play in your organization?
Mr. White: I read every Canada Gazette issue, and not only the parts that pertain to health. I scan through them all to see what types of things are going through that could potentially affect our members' businesses.
Senator Frum: The burden is on you to find things? Things are not sent to you; you have to seek them out?
Mr. White: There are some list serves the government puts out, and we are on those. Health Canada maintains a mailing list, so we get it from the push side also, but we are very proactive in ensuring that things do not slip through, because it is important that people are consulted on it, and it is important that our views are made known to the regulator as they are going forward in terms of the impact they could have on business.
Senator Fraser: Bill S-12 will not affect your ability to access ambulatory incorporation by reference? That will not be an issue for your organization?
Mr. White: I would say generally not. We would know when changes are made to some of these documents that are already incorporated by reference, but our members would know about that too. If they do not, we would let them know, but again, that is not what the general public will find out, that is for sure.
Senator Joyal: Mr. White, you mentioned that you do not want guidance documents to be incorporated by reference. Is that a matter of corporate responsibility for your members? Why are you so clear in your demand that you do not at all want guidance documents to be incorporated by reference?
Mr. White: We were concerned by the word ``document'' to start with. Senator Fraser brought that up in terms of what a document is. We have had that concern as well.
A guidance document is put together to explain the current intent of a regulation. We know we have an act, and under the act we have regulations. I believe you made some comments before about the act not having a lot of content, but regulations have a lot of content.
Below regulations there is something called guidance documents which explain the current interpretation of the regulations. That provides even more detail. However, if this additional detail was to make its way into regulation without any type of public consultation, there could be a lot more requirements added without any discussion. Guidance documents say that this is one way to do it but there are alternative means if you can justify meeting the same intent in another way. If the guidance document, which is just one interpretation, finds its way into regulation, those alternative means will be gone.
Senator Joyal: In other words, you are concerned that the guidance documents might explain the regulation in a way that goes beyond your knowledge of the substance of the regulation?
Mr. White: The guidance documents are put together by regulators, but they have never had any oversight through Parliament. This is just the current interpretation of how they believe that the regulation should be interpreted.
Senator Joyal: Exactly.
Mr. White: If something like that went into regulation, there would be no oversight by Parliament of what that new regulation encompasses.
Senator Joyal: In other words, it would be a way to regulate without anyone being consulted?
Mr. White: That is our greatest concern, yes.
Senator Joyal: Is this a preoccupation that might exist in other industries or is it something particular to your own industry?
Mr. White: I will not be able to speak for other industries. We deal with Health Canada, but I believe guidance documents are probably done by other industries too. However, I am not familiar enough with the contents to say how other organizations may feel. I am sorry about that.
Senator Joyal: Generally, I understand from your written presentation that you favour incorporation by reference.
Mr. White: Incorporation by reference will help in certain things, for example, recommended daily intakes of vitamins. They are usually put together by a group called the Institute of Medicine and they change over time. Having to go through regulation for that is probably not necessary. There is also something called pharmacopoeia. There is a variety of pharmacopoeias in the world, and they look at ingredients and provide the standards that should be followed to make a quality product. These things change over time. You must meet the pharmacopoeia when you put a submission into Health Canada for your drug. The pharmacopoeia changes over time.
If you had to wait for the regulation to change, you may be using a very old standard and not something that is up to date, and it could affect the quality of your product. Pharmacopoeias and things like that are why we support incorporation by reference of those types of documents. We believe it actually saves law-making costs and ensures that what we are getting as Canadians and as consumers is up to date and at the best quality or best level that can be made.
Senator Joyal: What you say is an illustration of what my colleague Senator Baker said earlier on, that you have to be a lawyer or specialist to try to understand all the implications of a change of regulation by incorporation. Most of the time, I understand it would refer to scientific material or very complex materials related to a particular sector or industry. Of course, only experts in that field would be able to understand and find their way. It would not appeal to ordinary citizens to have access to that kind of information.
Mr. White: I would agree with you. Many of the things we are talking about — some of these standards — can be very technical. I heard some of the discussion earlier. Consumer Price Index probably is not as technical. We probably would understand that if we were looking at population from Statistics Canada. That stuff would be easier. The documents we are talking about from Health Canada are usually very technical and specialized.
The Chair: We have exhausted our list.
Senator Fraser, do you have another question?
Senator Fraser: I am never reluctant.
You make a good case for the need to incorporate some things by reference. The pharmacopoeia example is one that I think everyone can understand. This bill is about giving an open-ended power to incorporate things by reference. Would it make any difference to you if the power to provide the automatic updating you are talking about, for things like pharmacopoeia, came from Health Canada specifically authorized under a given statute as long as the automatic updating was possible or whether it was under the broader umbrella of the Statutory Instruments Act?
Mr. White: I would say that if it was required, and I do not know if it is in the act, because the act is probably not as clear as we can understand. If the act specifically put the documents that can be incorporated by regulation through the regulation, through Canada Gazette, and identified it, it may solve some of the problem. However, if it is just an open- ended document chosen by someone to basically incorporate into regulation without consultation, it is challenging to do that.
Senator Fraser: Yes. Are you aware of any cases where the department's interpretation, as set out in guidance documents, has been challenged before the courts and upheld or overturned?
Mr. White: I am not aware of any particular times. Health Canada would know of other documents that have been challenged. As an industry association, we do not usually get involved in a legal challenge with of one of our companies against Health Canada. It is something we cannot participate in because we do not have any standing.
Senator Fraser: I ask because when I was listening to you earlier, I suddenly thought about the documents that I understand the revenue department supplies for accountants — how to interpret the impenetrable prose of the Income Tax Act — and sometimes they get taken to court. Sometimes the court says, ``We do not agree with the way things are interpreted,'' whereas if they were to incorporate a regulation incorporating its interpretation into a regulation that had the force of law, you are sort of stuck, are you not?
Mr. White: I tend to agree with you. I have seen in the Canada Gazette where a decision is made by the courts in terms of rebates for your income tax and other things. Yes, I would agree with your comment.
Senator Joyal: Proposed section 18.3 of the bill provides that the regulation-making authority that incorporates by reference documents, statistics, et cetera, has to make it accessible. What is accessible in your opinion? How accessible is accessible, in your opinion?
Mr. White: I do not think that I can even comment on that. Once again, I do not really know what accessible means or how accessible it should be. Is it accessible to all Canadians? Is it accessible only to experts? I really cannot answer that. I did not write the regulation, so I do not know —
Senator Joyal: It is the legislation, by the way.
Mr. White: Sorry.
Senator Joyal: You do not have a copy in front of you? Let me read it. It is only three lines:
The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible.
In other words, who will determine if the document is accessible or not, in which circumstances should it be accessible and under what conditions? That is essentially is what is at stake with that section of the bill.
Mr. White: I think your question is an excellent one. I really cannot answer it. However, it is a very good comment. I do not know what they mean by ``accessible'' either. The Canada Gazette is accessible to all Canadians, but that is a document that we look at for both regulations and legislation that basically provides information.
Senator Joyal: The problem is that 18.4 exempts that kind of incorporation by reference to be registered or published in the Canada Gazette. In other words, what you have access to easily through the Canada Gazette — the regulation incorporated by reference, documentation, statistics or whatever — will not have to be published in the Canada Gazette. It will be more difficult for you, or for any other citizens, to have access to that information. It is essential because it is regulation.
Mr. White: I would agree with you 100 per cent. Regulation is something we need to know about and our members need to know about because they must meet those regulations.
Senator Joyal: Of course. Thank you.
The Chair: Thank you, Mr. White. We appreciate your appearance here today and your contributions to our deliberations.
(The committee adjourned.)