Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 27 - Evidence for November 29, 2012
OTTAWA, Thursday, November 29, 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 10:31 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning. Welcome, honourable senators, 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 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. Bill S-12 amends the Statutory Instruments Act to provide for the express power to incorporate by reference in regulations, and it sets out certain obligations around the use of incorporation by reference.
This is our second meeting on Bill S-12, and 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.''
Our witnesses this morning are from the Standards Council of Canada, a federal Crown corporation. Due to short notice, their submission was sent in English only. They were only called on Monday, and I am asking if we can have the agreement of the committee to circulate the submission, even though it is not in both official languages.
Senator Joyal: I am sorry to say no, Mr. Chair. Not that I do not speak English, as you know. However, I think that the principle is in the law, and we have to abide by that.
The Chair: Okay, we will not have unanimity.
Yes, Senator Fraser?
Senator Fraser: I, of course, agree that Crown corporations, as agents of the Crown, should deal with the committee in both languages. I understand because I was part of the short notice period. Perhaps you could simply ask the clerk to make copies available at the back of the room for any senator who wishes to consult them.
The Chair: All right; we shall do that. Thank you.
Our witnesses from the Standards Council are John Walter, Chief Executive Officer; and Michel Girard, Vice President, Policy and Stakeholder Relations. Mr. Walter, I understand that you have an opening statement. The floor is yours.
John Walter, Chief Executive Officer, Standards Council of Canada: Good morning, and thank you very much. I will speak for a few minutes about the importance of this bill. On behalf of the Standards Council of Canada, I appreciate the opportunity to provide our comments. To give a very quick background so that you understand my experience in the standards field, I was appointed as CEO of the Standards Council of Canada three years ago. We have a mandate to facilitate the development and use of standards and accreditation or certification services that benefit Canada's competitiveness and, importantly, protect the health and safety of Canadians. We oversee the Canadian standardization system.
Prior to my appointment and three years in this job as the CEO of the system, I was vice-president, standards development for the Canadian Standards Association for eight years, where I was responsible for the full standards development activity of that organization. Prior to that, I worked for the Province of Ontario for 30 years, the last 10 where I was an assistant deputy minister in charge of a technical standards division and in charge of an organization called The Technical Standards and Safety Authority, which referenced dozens of national, regional and international standards into regulation. I have a lot of experience as a user of standards, for both government and industry, as a developer of standards and then as head of the system now.
Incorporation by reference has considerable significance for the entire standardization network in Canada, particularly for the individuals and organizations who are involved in what we call ``voluntary standardization.'' None of these standards become law unless a government says that they are law. Technical standards and certification requirements are among the external materials most often cited by Canadian law makers to achieve regulatory objectives.
As a baseline, we know that, in checking nine separate federal government departments, there are 900 standards referenced in some 90 regulations. There are hundreds and hundreds of standards referenced in regulation across this country. The departments are the ones that you would normally assume would be involved with the use of standards — Transport, Environment, Natural Resources. There is a long list. However, the vast majority of these standards exist to protect the health and safety of Canadians. There are things like standards for tempered or laminated safety glass. You will all be aware of glass that fell from balconies in Toronto in the recent past. There are standards for leak detection in tanks or packing and storage of explosives, medical devices, immersion suits for people falling off into the middle of the ocean.
Canadians benefit when the most recent version of a standard is incorporated by reference in a regulation. As a rule, you have to understand that new standards raise the bar in terms of safety and performance.
I have spoken briefly about what is in the federal system. If you add all of the standards that are involved in the provinces and municipalities or in Canada's model national building and fire codes, there are thousands of references to standards.
To give you a sense of the development process, voluntary standards are developed by organizations that are accredited by SCC. The standards are developed through a formal, rigorous process, and it is based on internationally accepted guidelines. We comply with the code of good practices for the World Trade Organization to ensure that standards are open, transparent and inclusive.
To be accredited by Standards Council, those organizations must adhere to the process. They must have standards development committees that consist of a balanced matrix of representatives from stakeholder groups. They must select committee members based on their ability to represent the technical expertise, their interests and the regions of the country. An important point for you to understand is that no single group can dominate the agenda or decide the outcome. The outcome is decided through consensus, the consensus of the committee to move forward in a certain direction. Once that consensus is achieved, the organization is required to post the document for public review and comment so that it gets out for a period of time, particularly to those organizations who are interested in that particular standard. Each comment must be examined, addressed or resolved by the technical committee. That creates a standard that is more accepted and thus more used across all stakeholders.
The developer of the standard is required to assess the need for revision at least once every five years, so the standard does not stay forever. You should understand that there are many standards that are under almost constant review and revision. The industry or the regulator decides that things change so fast that they want to be involved on a regular basis. For example, the Canadian Electrical Code is revised every three years, regardless of the amount of information coming forward that has been deemed the best thing for Canada. It follows the distribution and publication of the electrical code in the United States by 12 months to ensure that Canada can follow anything that we might learn there.
For the interest of this committee, you should understand that Canadian government regulators are among the experts who participate in those standards development committees. They are an integral part of the balanced matrix. They almost have a veto — not really because it needs to be a balanced matrix. However, if there are a number of regulators on a standards committee and they say they are not sure at the end of the day that the standard meets the needs of the government, there is not much point in publishing that standard, so it is not a true veto, but it certainly carries a lot of influence.
To give a sense of the interactions in Canada, approximately 370 federal government employees participate in the development of the International Organization for Standardization, ISO, and others. Hundreds more participate in standards development activities to develop or update technical standards that find their way into federal and provincial regulations. The role of the SCC is to coordinate that activity internationally and to even fund some of our participation. Our goal is to ensure that we know which standards Canada will need and that we have the right experts at those committees, so that when those international standards are ready to be published, Canada perhaps is ahead of other countries and certainly not behind.
Standards that are developed that way can be submitted to the SCC for approval as national standards for Canada. National Standards of Canada provide regulators with a confirmation of the approval that it has met Canadian conditions and requirements, that public consultation has occurred and that the standard is available in both official languages — those kinds of requirements.
We have noticed, and this is where I want to talk briefly about the static or ambulatory methods of incorporation, that there have been some inconsistencies in the methods that have been used. We certainly note that they are both used widely. The challenge for all of us is to ensure that the development and use of standards is widely understood. I do not think that the use of ambulatory or static methods has been consistently understood. Each of the methods has certain variables that should be evaluated before deciding to cite the reference.
One of the most important things before citing a standard into regulation would be the level of involvement of the regulator during the standards development process. That way, they should understand what is being presented and should be able to bring that forward for adoption fairly quickly. We very much support this bill, but we would suggest that there needs to be a government guideline or policy that outlines how these options should be considered and when a static or an ambulatory process would be best.
I would say that in using standards, Canadian businesses voluntarily participate and use the standardization system. Obviously, it is an enabler of their economic priorities, facilitates their trade in global markets and assists in their integration into global supply chains. The advantage of using standards, because of the involvement of industry, is a way for regulators to establish those requirements without introducing new or duplicative burdens on industry. The referencing of those standards, which have been agreed upon and used by industry experts, protect the health and safety of Canadians and, in many cases, drive Canada's economic interests.
We are committed to working with federal departments to ensure cooperation and collaboration on standards- related topics. We want to monitor that house standards are referenced in regulations and to facilitate the use of them. The SCC is the sole organization mandated by Parliament to provide leadership and governance of the system, and we exist to coordinate that effective and efficient voluntary standardization. We view Bill S-12 as a valuable component to achieving consistent regulatory practices across all of government.
[Translation]
Mr. Girard, have you something to add?
Mr. Girard: No.
[English]
Senator Fraser: I bow in humility before your technical experience. Clearly, the degree to which your structures have been set up to ensure high quality of standards is very impressive. My difficulty with this bill is not the need to have a high quality of regulation and a prompt response where change is needed but rather that, as written, it seems too broad. One thing that struck me is that there seems to be no limit to what can be incorporated by reference. For example, there is nothing in this bill that would require Canadian sources — not only indices but also whole documents from foreign sources could be incorporated by reference. That could include any further changes that a foreign government might make to its standard or its document or whatever.
How often in your experience, in the fields in which you work, do you rely on incorporate or use foreign material, and how important is it?
Mr. Walter: I do not have the percentages, but Canada, as many other nations do, relies more and more on international standards. We see a decrease in the number of specific standards for Canada. That is going in the right direction because if we want to play a major role in trade, we need to match what is going on in other countries. Certainly, we encourage the use of international standards. I can speak only from a standards point of view, not from some of the other documents that you cite.
Senator Fraser: There are other regulatory frameworks, which are not yours; I understand that.
Mr. Walter: Yes. When I speak from the standards point of view, the value that we have in working internationally, as I said, is to decide which of those standards have the most benefit for Canada. Is it corporate social responsibility, is it nanotechnology or is it electrical products? There are a number of them.
We need to make sure that we have identified with governments and industry which of those committees are most important and then make certain that we have the right experts and regulators there. The regulators play a considerable role, whether provincial or federal, at those committees. When they are ready to come back to Canada, we would put them through the process to create a national standard of Canada. It is not like they are out there and, bang, in they come; they go through a process that ensures that the regulators have been involved, there are both official languages, and the public have been involved — all of those kinds of things.
In our view, the use of National Standards of Canada is one of the ways in which we can support what the bill wants to do, while providing the security to Canadians that it is being done in the right way.
Mr. Walter: The standards in federal regulation are 400 domestic Canadian; 260 regional, and that could be U.S. or other; and 236 international. That is the breakdown.
Senator Fraser: More than half are outside Canada.
Mr. Walter: Yes.
Senator Fraser: That is fascinating.
Another thing that struck me about this bill is that it does not simply permit the incorporation of indices, rates or formulas or whatever, but also the incorporation of documents. Do documents form part of standards? When you mentioned corporate social responsibility, my ears pricked up in that framework.
Mr. Walter: The word ``document'' in the bill is fairly wide. We would certainly consider a standard to be a document, yes.
Senator Fraser: I will think about that. Thank you.
Senator Frum: Thank you, Mr. Walter, for your presentation.
As I understand it, the Standards Council of Canada is supporting this bill because of the efficiency with which it would allow you, particularly in the area of the health and safety of Canadians, to update standards without the ability to attach ambulatory incorporation by reference to the way things stand today. Could you elaborate on some of the health and safety challenges that present to Canadians when you are not able to efficiently and quickly, sometimes urgently, update standards?
Mr. Walter: Certainly. Mr. Girard and I have worked together at the Standards Council now for a little over three years. We found when we were first looking at the situation of standards and how they are used in the federal government that one of the challenges was that because the process to reference standards and regulations was difficult, onerous and complicated, the department simply stopped bringing the new ones forward. There were standards referenced in federal regulation that were out of date and did not reflect the most recent edition, and in fact some of the standards had even been withdrawn.
To be fair to the departments, not many of them knew that, because there was a lack of understanding of the use of standards. In our meetings with a large number of departments, we raised that with them, and they began to understand that referencing standards that were not the most recent impacts on health and safety and on Canada's competitiveness.
Leaving the system the way it is, frankly, does not provide the right solutions for Canada. We have to find a way, and I say this again, through the development of guidelines to say, ``Here is when a standard could be referenced on a static basis, and here is when it could be referenced on an ambulatory basis.'' Parliament does not lose any control in doing that. It simply sets the rules by which those could be used.
I will not reference any of the standards in particular, but I believe there are too many times that we have not referenced the most up-to-date edition because it has been too difficult a process to get it done.
Senator Frum: One of the areas of discussion we had yesterday on this bill was also about accessibility of the information when you attach it on an ambulatory basis. What does your council do in order to inform Canadian manufacturers that there have been changes to a standard? How do you communicate? How do you make that information accessible?
Mr. Walter: It is made accessible in a number of ways. First, it would be made accessible even before the revision occurred to the standard. We do not develop the standard ourselves. We accredit four organizations who develop them, CSA being one of those. Before CSA or others would start to develop a standard, they would be required to advise the stakeholders that the work was even beginning because we would want to ensure that the stakeholders, industry or consumer groups, or whoever is involved in this standard, would be present right from the very beginning so their input would be available on the technical aspects.
Then, part way through it, depending on what stage they have reached, there is another public review in which the standards development organization is required to get out — most of it now is done on the Internet and those kinds of processes — to a wide group of Canadians, including industries, regulators, whatever. Then finally, when it is published, we would both go back, the Standards Council is saying it is now a national standard of Canada and the developer is going back to that same group of stakeholders and saying it has now been published. It occurs all through the process.
Senator Frum: Does this bill impact the accessibility of information for stakeholders?
Mr. Walter: It does impact. It would make it better because we would be able to get out with the information earlier, but the process would still be the same.
Senator Frum: I should have said ``negatively impact.'' Does it negatively impact accessibility?
Mr. Walter: No.
Senator Frum: Thank you.
Senator Joyal: Welcome. You mentioned in your presentation, and I made a note, that policy and guidelines would be needed because it is not clear, and you mentioned ambiguity that surrounds the technique of incorporation by reference.
Do you have a copy of the bill before you? Looking at page 3, proposed section 18.4 states:
For greater certainty, a document . . . that is incorporated by reference in a regulation is not required to be transmitted for registration or published in the Canada Gazette . . .
This seems to be part of the policy and guidelines that should be developed by the government, as you have suggested. It is one of the elements of what could be a policy or guideline. Do you not think that we should have a clause in the bill that would provide for that kind of policy and guideline?
It seems that the issue that you have raised was such a magnitude that in fact it would need to be framed. When I say ``framed'', I mean there should be criteria, clear objectives and obligations defined or stated in that kind of policy whereby the stakeholder would be reassured of what they have to comply with in order to be covered by the technique of incorporation by reference. Would you suggest that that obligation for the government to come forward with the policy be clearly stated in the legislation?
Mr. Walter: I am not a legislative expert. The issue for me that I would support is the communication. To be quite frank, I am not sure the Canada Gazette is the best way to tell Canadians that there has been a change, but there certainly needs to be a policy to advise regulators how to use this static or ambulatory reference, and I would suggest that part of that policy or guideline should then include how that is communicated to Canadians.
The challenge we have in Canada is that standards are the silent success story underneath. We do not know, because everything works really well. The challenge we have is to get out to Canadians and to Canadian industry: Standards really work well for this country.
Again, I am not an expert in legislation, but my plea would be to have a guideline that expressed the processes whereby Canadians would have these changes communicated to them. That is what is important.
Senator Joyal: Would it be covered, then, by proposed section 18.3(1) of the bill? It states:
The regulation-making authority shall ensure that a document . . . that is incorporated by reference is accessible.
Is that what you mean by ``accessible''?
Mr. Walter: I think perhaps the definition of ``accessible'' in the guidelines might be helpful, but that would certainly cover it.
Senator Joyal: That is the way I understand it.
Mr. Walter: That is the way I would look at it, too.
Senator Joyal: In other words, it should be attached to that section of the bill. In order to make clear what is accessible, that should be explained or stated in the policy objective developed by government. In other words, there would be an additional step for confirming the accessibility, if I can say it that way, or how the accessibility would be made real to the stakeholder.
Mr. Walter: I do not think it needs to go in the bill. I think it needs to go in some guidelines. In regard to accessibility changes, 10 or 15 years ago, we would not have thought that accessibility on the Internet was one of the best ways to go. I do not think the bill needs to be changed. I come back to what is in the guidelines, and I think that is where these definitions have to come forward.
Senator Joyal: The bill does not state any obligation for the regulating authority or the government to come forward with guidelines. That is where I feel there is a conundrum. We all want it to be accessible, but someone has to make it accessible. Who has the responsibility to develop the policy to make it accessible? I do not mean it has to go into detail, but, at least, the obligation to state the policy has to be somewhere.
Mr. Walter: All I would ask, because I am not the expert there, is when the legislation goes through in whatever form that there is some process put in place so that the people who will use it understand how it will be used. That means: What do you consider for static? What do you consider for ambulatory? How do you make it accessible? How do you communicate to the right groups? That is what I would like to see in the guideline. I am not sure how that is best done through this legislation, but that is what I would like to see it in.
[Translation]
Senator Joyal: You are a witness, Mr. Girard, you may speak. I know you would not wish to contradict Mr. Walter.
Mr. Girard: You are absolutely right.
Senator Joyal: You seem to have something else to say?
Mr. Girard: What I want to point out to Mr. Walter is that the Standards Council of Canada would certainly be willing to participate in the drafting of those guidelines once the government has made a decision on this bill. This is extremely important for us.
Senator Joyal: It seems to me that, in order for the process to be accessible, as the bill proposes to do, we have to take an additional step, that is, to define the obligation to make it accessible. Otherwise, all we are doing is expressing a general intention rather than making it a formal obligation.
And it seems to me that to attain the objectives defined in the bill, this policy, this process, should at least be recognized in the bill, in other words, that the government has that obligation.
Your head movements do not appear in the minutes. That is why I would like to hear what you have to say about this.
Mr. Girard: I am not an expert in legislation. I recognize that guidelines are necessary. I believe that the Standards Council of Canada would be happy to participate in the drafting of such guidelines.
We are a Crown corporation. And so, we are not part of a department as such and we will transmit our observations at the request of the Government of Canada.
[English]
Senator McIntyre: Thank you for your presentation. As we all know, incorporation by reference can be either closed or open. Closed or static incorporates a document as it exists at the time into the regulation. On the other hand, open or dynamic or rolling incorporates subsequent amendments into the regulations. In other words, the train is picking up new amendments as it rolls down the tracks.
Upon reviewing the documents and hearing the evidence, it appears to me that there are both advantages and disadvantages to incorporation by reference. Advantages, as you have already pointed out, would include avoiding duplication and promoting harmonization to, for example, facilitate transactions or activities that cross borders.
Disadvantages would mean that the reader would consult more than one source in order to understand the text in its entirety, and cost might be involved in accessing copyrighted material. Under certain circumstances, the material might not be available in both official languages. I know that you have chosen the side of advantages. How do you feel about the disadvantages of this bill?
Mr. Walter: Having used standards and referenced them in regulations for so long, I suppose I come with a certain bias to success. I am not sure I would say that there are disadvantages. I think there are issues that need to be resolved.
When you talk about accessibility, cost, intellectual property and those kinds of things, there are many different ways in which those standards can be made available. In Canada, we are funding the development of standards for northern infrastructure, and part of that funding stipulates that the standard development organization must make the standard available for free because Canada is paying for the development of the standard.
In other situations, the Canadian Standards Association and some of the provinces in Eastern Canada have come together and agreed on a process whereby the provinces have paid a small amount of money so that the occupational health and safety standards are made available for read-only access. There are many different ways that they can be made accessible.
I do not see many disadvantages to the referencing of standards in regulations. I have been doing it for 20 years, and it happens across the country regularly. It probably happens more in the provinces and territories than it does in the federal government. The provinces and territories get together, adopt the same standard across the country and adopt it in each province. Their challenge is to try to get together early to make certain that they understand what is in the standard and that they all try to adopt it at the same time because that is beneficial to Canada as well. I do not see many disadvantages to referencing standards into regulations.
Senator McIntyre: Even if the incorporation by reference is rolling or dynamic and picks up new amendments?
Mr. Walter: It is an advantage that it is rolling and dynamic and picks up new amendments, new technical requirements and new safety requirements. My caution is that it is not that process that we need to worry about; it is the communication process. It is to ensure that the regulator who is going to use that standard in regulation needs to have had staff involved from the beginning so that they know what is in the standard and can be part of that process.
There might be, as part of a guideline, a need to decide what the date of implementation is. When we would reference a standard in regulation in Ontario, it was perhaps not on the date of publication. It would be six months in advance so that industry had time to get ready to use it. It is the guideline that I think we need to put some work into, not the referencing of standards in regulation.
Senator McIntyre: I would have seen the advantage in terms of the incorporation by reference being closed or static.
Mr. Walter: Not ambulatory, you mean?
Senator McIntyre: Yes.
Mr. Walter: Static can work, and it may well be the decision of choice. However, I think that there could well be a number of situations and a number of standards where it is advantageous to Canada or to the health and safety of Canadians to take a standard where the regulator has been involved, the stakeholder has been involved and there has been public consultation. Rather than having to take that back through the legislative process and have it changed again as another regulation, there is that ambulatory process. It is amended. Here is the new edition; let us use it.
Senator Jaffer: I have a number of short questions. Before I ask my questions, you have explained it, but I am going to ask you again. When standards are changed under the present law, how are they communicated to you now?
Mr. Walter: How is Standards Council advised?
Senator Fraser: No, how is the public advised?
Mr. Walter: How is the public advised?
Senator Jaffer: First them and then the public. You are involved in most standards that are changed, right?
Mr. Walter: All national standards of Canada must be approved by us. For us to be advised, they have to submit it to us for approval.
Senator Jaffer: Then how do you or how does the government communicate that to the public now?
Mr. Walter: We are not nearly as responsible for communicating that as the organization that developed the standard. Standards development organizations do not make a lot of money. Most standards development organizations in the world lose money and must be funded through some other process because it is not a money-making deal. What they want to do, when they have completed a standard and it has been published, is to advise all of the stakeholders as quickly as possible. First, there is often a health and safety issue. Second, there is an economic issue. Third, they want to sell as many standards as they can. Fourth, they might even want to have training programs that can go out and bring in some money that will help to fund the development of standards in the first place. It would go back to the organization that developed it. They want to market it.
Senator Jaffer: They are responsible.
Mr. Walter: Yes.
Senator Jaffer: I may have misunderstood, but when you talked about how standards will be communicated in the future, did you say that the government has to find a way to communicate that?
Mr. Walter: First, the standards development organization still needs to continue in the role they are in. If it will be a change by a government, then the government needs to find some way to communicate that to the same group of stakeholders.
Senator Jaffer: Do you have any suggestions?
Mr. Walter: That is why Mr. Girard suggested that we would develop a guideline.
Mr. Girard: A wide variety of standards are used in federal and provincial regulations. Sometimes they only impact a very limited number of stakeholders. For example, a test method for the flammability of textile will have only a limited number of interested stakeholders. When a new version becomes available, the regulator would have an interest and obligation to communicate this new standard to the ones regulated.
In other cases, the standard is applicable more broadly, for example, standards for organic foods. The standards development organizations, the regulators and other stakeholders with an interest in this will communicate the availability of that new standard to ensure that the new clauses are understood and applied. It depends on the standard that we are talking about.
Senator Jaffer: My understanding, which is not as deep as yours, is that standards are ongoing in development, a format is put — and I am simplifying it — and then it is communicated. In your remarks, you said that sometimes there is an urgency to get the standard out. When would that happen? I thought this was an ongoing process. Maybe I am mistaken. Why would there be an urgent reason to communicate a different standard?
Mr. Walter: You are correct in that certainly for a lot of technical standards referenced as codes in government regulations, there are fairly regular meetings, perhaps a couple of times a year. I can provide some examples. The best would be years ago when a number of children were killed when riding the tops of elevators in Ontario. Boys found out how to hook the wire and hold the door open and then bring the elevator down so they could get on top of it; and a number of them were killed. That required a change in the standard, and that needed to go through regulation very quickly. That is just one. You could go into propane tanks and on and on.
Senator Jaffer: From time to time, there is an urgent need.
Mr. Walter: Yes.
Senator Jaffer: I understood from your presentation that standards get changed but government officials do not bring them to be changed because it is cumbersome. Is that what you said?
Mr. Walter: Yes. It happens in part because of the lack of understanding of standards and in part because government and public servants are so busy. I confess to looking at a standard and saying, for example, ``Good; now we have the latest elevator code in place.'' You forget that they will come back in three years with a new one; and you better be on top of it. When it is technical, and then it has to go back through some legislative process, it takes time; it is not always understood; it does not always get to the top of a minister's agenda, quite frankly; and it is better that there is some kind of ambulatory way of referencing those standards.
Senator Fraser: I want to come back to this business of incorporating foreign elements on an ambulatory basis into our regulations.
Mr. Walter, you spoke about the system you have essentially to ensure that the foreign thing being brought in is ``Canadian-ized'' — that it meets Canadian needs and situations that may differ. As I read this bill, it seems that it would be perfectly possible for regulations to circumvent that process down the road. For example, on tires, a regulation adopts a standard based on whatever the EPA has decided, for the sake of argument. Down the road, the EPA adopts a new standard that is basically better suited to southern climates. However, if our regulation has permitted the incorporation on an ambulatory basis of the original regulation, you would not have a word to say about the continued application of the now different American rule, would you?
Mr. Walter: No. That is why we need guidelines as to when those standards could be used either in a static or ambulatory way.
Mr. Girard and I get involved in too many statistics. There are 300 standards referenced in federal regulations that come in from U.S. standards development organizations. They are being used in our country right now. We are taking steps to ensure that when those standards need to be used by federal regulators, they go through a process to create them as national standards of Canada. Perhaps one would put in the guidelines that the ambulatory process could not be used unless the standard had gone through a process to Canadian-ize it, to use your word. I keep saying: The ambulatory process has very positive attributes for Canada. Let us make sure that the rules are set to have it used properly.
Senator Fraser: You have made that clear, and I am not disputing that there are areas in which the ambulatory process operates to the benefit of ordinary Canadians. I truly am not. However, I am concerned about the open-ended nature of this bill and about the potentially vast new area that will be opened up that will escape scrutiny by the Standing Joint Committee for the Scrutiny of Regulations. This will be a tremendous convenience for the civil service, but I am not sure that it is in the public interest.
In your experience, does the fact that the Joint Committee for the Scrutiny of Regulations exists operate to the disadvantage of the regulatory system from the point of view of ordinary Canadians, not from the point of view of the people who have to appear before the committee and justify their regulation?
Mr. Walter: I have never appeared before that committee on a federal basis. I have done so a number of times for the Province of Ontario. Certainly, there is value in it coming forward, but I have to say that on many occasions, unfortunately, the legislators did not have the technical expertise to understand what was coming through on the standard in the first place. Therefore, it seemed to me to be a roadblock that was not helpful to Canadians.
Senator Fraser: It is not that no regulation takes effect until the committee has pronounced upon it, but it is that the joint committee has the right to focus in on and, on occasion, overturn if upheld by Parliament.
Mr. Walter: I would not suggest that be taken away.
Senator Fraser: However, it will be. The more you have that is ambulatory, the less you have potential scrutiny by Parliament.
Mr. Walter: Unless there are guidelines put in place to ensure that static and ambulatory are used appropriately.
Senator Fraser: This really is my last question, chair, I promise. You are so patient with me.
At the moment, as I understand it, ambulatory incorporation must occur on a law-by-law basis and not necessarily on a case-by-case basis. Specific statutes must say that, for the purposes of this statute, we may use ambulatory incorporation. What is wrong with that?
Mr. Walter: I am not sure there is anything wrong with it.
Mr. Girard: It creates uncertainty for regulators. Right now, there are many thousands of laws. The process is you find them a couple at a time in a bill. It is pretty hard for all the stakeholders to know what is happening.
When we compiled our statistics, we started with a manual process, and now we are going into more of an electronic process. We had to go back, and not only did we have to worry about the standard itself and the regulation, but we had to go back to the act itself to see whether ``as amended from time to time'' was mentioned or not. Imagine the regulatee, the person who needs to comply with the regulation or the act. That creates an additional issue that they need to worry about. We found it difficult and time consuming to manage all of that.
Senator Fraser: You were going from a standing start, but if there is a statute involving widgets, then widget makers are aware of that statute and aware of the regulatory framework and aware if that regulatory framework includes ambulatory incorporation or not.
The Chair: That clearly was a comment. No response is required. Senator Fraser promised that was her last question.
Senator Joyal: Mr. Walter, you had a distinguished career in Ontario, and you were probably instrumental in having the Ontario legislation adopted in 2006. Let me give you the title of the legislation. It is the legislation 1006 of Ontario that was adopted in 2006 in reference to the incorporation of standards.
Why do you think the legislation we have in front of us is better than the one you yourself were involved with that was adopted in 2006?
Mr. Walter: Let me clarify that I was not involved in that in 2006. I was obviously aware of it, but I was not part of the process.
Senator Joyal: You were deputy minister at the time.
Mr. Walter: I was an assistant deputy minister of a division that used standards, but there would be dozens of people involved in that at the time. It was not part of my portfolio at the time.
Senator Joyal: You know the legislation.
Mr. Walter: Yes. The Ontario legislation fixed the static aspect. I think that the Ontario legislation missed the opportunity to use ambulatory. This is better because it gives more flexibility to the regulatory community. It provides faster adoption of standards for health and safety and competitiveness reasons. It is simply a better way of doing it.
You would now have to go back, and I have not done it, obviously, since I left that role many years ago. In fact, you said 2006. I left the Ontario public service in 2001, so no, I was not part of it.
Senator Joyal: Good alibi.
Mr. Walter: I was not even working there then, sir.
This is better because it allows that flexibility that is needed. If we stay with static, we take away the opportunities to move Canada in the right direction in the use of standards, and that is very important for the country, health and safety and for competitiveness.
Senator Joyal: Would you say that if we move on the other approach, that the need for policy and guidelines is even more acute in the context of the option that this bill is taking in comparison to a static approach?
Mr. Walter: It certainly supports the need for that communication at all stages, yes. There needs to be guidelines to explain how it can be used, yes.
Senator Joyal: It makes it so open that it would better for the stakeholder to have a source of information that would give them the parameters of what is to be done and how.
Mr. Walter: Yes.
Senator Joyal: I come back to my point: you would support any statement in the bill that would recognize the obligation to come forward with policy and guidelines for the stakeholder.
Mr. Walter: I am not an expert in legislation. All I would like to see is that the guidelines and the policy are there. You are the expert in how it gets there, sir.
The Chair: Thank you, gentlemen, for your appearance here today. It is very much appreciated and helpful to the committee members in their deliberations.
This concludes our hearings on Bill S-12. We are tentatively scheduled to meet next Wednesday at 3:30, when the Minister of Justice will appear. He will answer any questions the committee members have with respect to Bill S-12 as well as Bill C-36, the next legislation the committee will be dealing with.
That concludes today's meeting.
(The committee adjourned.)