THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, May 11, 2022
The Standing Senate Committee on Transport and Communications met, in public and then in camera, with videoconference this day at 6:32 p.m. [ET] to study the subject matter of those elements contained in Part 10 of Bill S-6, An Act respecting regulatory modernization.
Senator Julie Miville-Dechêne (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: I am Julie Miville-Dechêne, a senator from Quebec and the deputy chair of the committee.
I would like to introduce the members of the committee who are participating in this meeting: Senator Clement from Ontario; Senator Cormier from New Brunswick; Senator Busson from British Columbia; Senator Dawson from Quebec; Senator Gerba from Quebec; Senator Manning from Newfoundland and Labrador; Senator Quinn from New Brunswick; Senator Simons from Alberta; and Senator Sorensen from Alberta.
Honourable senators, on April 28, the Senate Committee on Transportation and Communications was authorized to examine and report on the subject matter contained in Part 10 of Bill S-6, An Act respecting regulatory modernization.
[English]
Today, we begin our examination of this government legislation described as the Second Annual Regulatory Modernization Bill. We are pleased to welcome by video conference from Transport Canada, Christopher Hynes, Director, Connected Vehicle/Automated Vehicle Regulatory Policy; and Melanie Vanstone, Director General, Multimodal and Road Safety Programs. From the Treasury Board of Canada Secretariat, we welcome James van Raalte, Executive Director, Regulatory Policy and Cooperation Directorate. Thank you all for joining us.
We’ll begin with your opening remarks before we move to questions from senators. The floor is yours when you’re ready, Mr. Hynes.
Christopher Hynes, Director, Connected Vehicle/Automated Vehicle Regulatory Policy, Transport Canada: Thank you, senator. I will turn the presentation over to my colleague Melanie Vanstone who has prepared and is ready to give the opening remarks on our behalf.
Melanie Vanstone, Director General, Multimodal and Road Safety Programs, Transport Canada: Thank you very much, honourable senators and chair. It is a pleasure to be here this evening to speak to you about this legislation.
The government is proposing an amendment to the Canada Transportation Act to authorize interim orders to incorporate international transportation standards and obligations into law.
Currently, it can take a few years to update a regulation when a new or revised standard is approved. This can result in regulatory misalignment and cause unnecessary costs to businesses and impediments to economic growth. The proposed amendment would allow for a more efficient alignment of Canada’s transportation requirements with international best practices while longer-term regulatory solutions are pursued. It would include a consultation and publication requirement to ensure transparency, accountability and accessibility.
The amendment would apply across Transport Canada’s legislative regime and not be specific to one mode of transportation or one industry sector. The objective is to provide a consistent and predictable multimodal framework via the Canada Transportation Act, benefiting the entire transportation industry.
The amendment responds to transportation stakeholders from all modes who have repeatedly called for the enhanced and timely use of trusted third-party standards in Transport Canada’s regulations, including during consultations for the second round of the government’s targeted regulatory reviews. Indeed, the amendment that is proposed supports the government’s regulatory modernization agenda and was one of the initiatives included in the Regulatory Roadmap on International Standards that was published last year.
According to Treasury Board’s targeted regulatory-reviewed Regulatory Roadmap on International Standards, the link between standardization, productivity and economic growth is clear. In Canada, evidence shows that standards contributed to nearly $5.9 billion of the $33.7 billion increase in Canada’s gross domestic product in 2019. It has also been estimated that standards and technical regulations influence up to 93% of global trade. For Canada, international trade accounts for more than 60% of our gross domestic product.
International standards are developed in broad, multi-stakeholder environments and reflect consensus among participating jurisdictions and technical experts. They are regularly updated to maintain state-of-the-art safety and technical requirements, thereby improving health, safety and environmental outcomes for Canadians.
For example, Transport Canada works with the international community to develop standards for automated and connected vehicles, setting performance and testing requirements for specific driver-assistance technologies. Transport Canada also participates in the United Nations Global Forum for Road Traffic Safety and the United Nations World Forum for Harmonization of Vehicle Regulations.
The proposed amendment would also help Canada’s regulatory regime keep pace with the rapidly evolving transportation sector by allowing for faster alignment with evolving standards due to new technology, innovation and emerging risks. The amendment would allow for a more efficient alignment of Canada’s transportation requirements with international standards and obligations to support supply chain efficiency; spur Canada’s economic growth and competitiveness; contribute to lower business costs; and improve safety, security and environmental protection outcomes for Canadians. Thank you.
The Deputy Chair: Thank you very much.
Mr. van Raalte, the floor is yours.
James van Raalte, Executive Director, Regulatory Policy and Cooperation Directorate, Treasury Board of Canada Secretariat: Thank you, Madam Chair and honourable senators, for again having us this evening. I’m pleased to be here today to provide you with an overview of Bill S-6 and answer any questions you may have on the broad context of the legislation.
As the chair introduced, Bill S-6, An Act respecting regulatory modernization, which is also referred to as the Second Annual Regulatory Modernization Bill, proposes to amend 29 pieces of legislation via 46 amendments. Amendments would help keep regulations relevant and up to date by reducing administrative burden for business; facilitating digital interactions with government; simplifying regulatory processes; making exemptions from certain regulatory requirements in order to test new products; and/or making cross-border trade easier through more consistent and coherent rules across governments.
Bill S-6 is the government’s second Annual Regulatory Modernization Bill, or as we call it, the ARMB. Having been announced in 2018’s Fall Economic Statement, the ARMB is intended to be a recurring legislative mechanism that enables the government to make common sense changes across many pieces of legislation at once in order to address overly complicated, inconsistent or outdated requirements raised by businesses and Canadians. The ARMB is one part of the government’s agenda to improve Canada’s regulatory system while continuing to ensure the health, safety and security of Canadians and protection of the environment.
Taken individually, the amendments in Bill S-6 are modest in scope. Taken as a whole, they will make an impact and contribute to the government’s regulatory modernization agenda. Grouping relatively minor legislative changes in one bill is both time- and cost-efficient. The ARMB is designed specifically to propose multiple non-contentious legislative changes all at once. These are fixes that the President of the Treasury Board can represent or sponsor on behalf of her cabinet colleagues. Anything above and beyond this threshold may be a great proposal for regulatory modernization, however, they should be brought forward by individual responsible ministers for parliamentary and public scrutiny. All of the 46 proposed amendments are either stakeholder driven — 33 — or in response to issues raised by Parliament’s Standing Joint Committee for the Scrutiny of Regulations — 13.
The Treasury Board of Canada Secretariat, or TBS, launched a public consultation via the Canada Gazette over the summer of 2019, inviting interested stakeholders to share their views on themes related to regulatory modernization more broadly — and these included proposed suggestions for the next ARMB — and 48 stakeholder submissions were referred to the ARMB. However, most of these responses were not within scope as they proposed changes to the regulations rather than the legislation. However, all feedback was shared with responsible regulatory departments and agencies.
Following this consultation, the What We Heard: Report on Regulatory Modernization was published in November 2020. Themes emerging from the consultation and covered in the report included reducing administrative burden, increasing regulatory flexibility and opportunities for experimentation, enabling harmonization with major trading partners and removing duplicative, redundant and unclear requirements.
Similarly, a call-out to regulatory departments and agencies was initiated in August 2019. The result was 174 proposals submitted, impacting 72 acts submitted by 14 organizations. All proposals were reviewed extensively to ensure there was no negative impact on the health, safety and security of Canadians and the protection of the environment.
Beyond what may be contained in Bill S-6, additional proposals were set aside for further consideration for a variety of reasons. Some of these reasons include that the proposals were too broad in scope or deemed not a regulatory issue in nature, while others were not considered, for example, if they sought to alter service fees or the proposed additional activities actually contributed to increased administrative burden.
The process to develop the third version of this bill is already under way based upon COVID lessons learned. The President of the Treasury Board has committed to introducing the third ARMB in spring of 2023. Moving forward, the Treasury Board of Canada Secretariat will use its newly launched Let’s Talk Federal Regulations platform to seek input from Canadian businesses and individuals on ways we can improve Canada’s federal regulatory system. Consultations on the fourth ARMB are expected to be launched in fall of 2022.
Thank you, senators.
The Deputy Chair: Before starting the question period, I want to clarify something with Mr. van Raalte. You gave us an overview of Bill S-6, but we are here in the Transport and Communications Committee, so our interest is what it does in the transport section. Will you be able to answer questions specifically on that section, or should we rely on Ms. Melanie Vanstone?
Mr. van Raalte: Thank you, Madam Chair. I’m here to support my colleagues from Transport Canada. They are here to answer direct questions regarding Part 10 of the bill. It has been our experience across the different standing committees that are reviewing individual parts of Bill S-6 that from time to time, broader questions related to regulatory modernization may come up, and I’m here to support you in responding to those.
The Deputy Chair: Thank you for that clarification.
Senator Dawson: That’s the awkward part of these studies. We overflow from what we’re supposed to be studying.
As you know, this committee, a few years ago, did a major study on automated vehicles, and one of the obvious recommendations was that we had to find a simpler way to modernize the regulations, because obviously technology — I’m not criticizing bureaucracy, because bureaucracy follows political decisions; I criticize politicians more — is going much faster than the regulations and much faster than the legislation. I’m quite happy that you are simplifying the modernization, because I think it was one of the cornerstones of that study.
Without having to go back to that premature study where we were trying to do studies on automated vehicles, we were faster than the market and certainly faster than the legislators, the reality is that a lot of issues were brought up during that debate about new security measures that are now in place as we lean toward purchasing automated vehicles. We found all kinds of security measures to protect drivers, cars, people and the other cars, but they’re not obligatory. When it was debated, we brought up the idea of seatbelts. Everybody has seatbelts; everybody has cushions. Why? Because we know it saves lives. We know that some of the new technology — not only in the expensive modern cars — should be obligatory in all cars, since it has been proven through your studies that it saves lives.
How do we get into mechanisms by which we force the industry to make it obligatory? Sometimes it’s a $10 plug in a car that makes the car much safer because they built the car with the technology in mind, but they don’t put it in later because nobody wants to pay for it. They charge you a fortune to put it in. Anyway, I’m rambling.
Is there a way we can start adopting these security measures faster so that we do save lives? I think it might be Mr. Hynes or Ms. Vanstone who will answer this. I’m sure it’s not a Treasury Board issue. I’m sorry to not keep you busy.
Ms. Vanstone: I’m happy to respond to that question, and I may ask Mr. Hynes to add to my answer.
In addition to having responsibility at Transport Canada on the regulatory modernization file in general, I also am the director general responsible for road safety, and this is an important part of my work.
Overall, Transport Canada is taking a multi-pronged approach to addressing the very quickly evolving technology in the automotive sector. We work closely on an international level at United Nations forums in the development of technical standards to ensure those are developed in a timely manner to support the adoption of these technologies. We also have a robust engagement with our American counterparts in support of the North American market around automobiles.
Where technologies are emerging and are not quite mature enough to be regulated, we have developed several pieces of guidance to support the industry in the adoption of new and innovative vehicle technologies, including guidance related to cybersecurity of connected and automated vehicles.
We are moving toward a regulatory approach for several technologies, for example, in the area of automatic emergency braking and advanced driver assistance programs. Some of these are already appearing on our regulatory agenda and should come forward within the next few years.
It is important that we do follow, as technologies reach a point of maturity, where it is appropriate to adopt them into regulation. We are making an effort to move toward doing that as quickly as possible. In these cases, we would use the traditional regulatory approach in terms of going through Canada Gazette, Part I, and Canada Gazette, Part II, to bring in new regulations.
However, once regulations are in place and if those regulations are relying on an international standard — there’s an international standard incorporated into those regulations — the amendment that’s being proposed today may be a tool that could be used as the technology evolves, as those standards continue to evolve to keep the regulatory regime quickly aligned to those evolving standards.
I would invite Christopher to add anything more in particular on the current status of the regulatory agenda for connected and automated vehicles.
Mr. Hynes: Thank you kindly, Melanie. I think that was a very fulsome response. We are very much engaged on several fronts, particularly at the international level, such as Working Party 29 at the UN where discussions include establishing standards for advanced driver assistance systems, for example, braking systems. As Melanie indicated, these are subject matter that on our regulatory agenda. It is something that we’re working towards. It is, as you know, a dynamic environment, so it’s always a challenge to find the right moment to bring in regulations when things are evolving quickly. As Melanie indicated, we’ll put in place regulatory frameworks from which we’ll have greater flexibility ideally with this proposed power to continue to keep pace with the evolving technology.
[Translation]
Senator Cormier: I will be asking my questions in French. I would ask the witnesses to forgive me if my questions seem simplistic, but I want to understand how this works, first and foremost.
Here is my question, along with a number of sub-questions. What is an interim order? What procedure must the minister follow to make an interim order? Why not do a proper update of the regulations, instead of making an interim order? How exactly will the order be made public? Can you give us examples of exceptional circumstances in which publication would be considered inappropriate? Was the transportation sector consulted? Why would the minister need the authority to not disclose certain information? After reading new subsection 49.1(8), in Part 10 of the bill, which deals with unpublished orders, I wondered how someone contravening the order would know about the order if it was not published in the Canada Gazette.
While my questions may seem quite basic, I am really trying to understand why this is being proposed in the regulatory modernization bill, impacting as many as 34 Transport Canada regulations. This is not the standard process being proposed; rather, it is a measure allowing the minister to make decisions, in an almost secret manner, without informing the public. I would appreciate your explanation to help me understand the purpose of the bill.
[English]
Ms. Vanstone: I will start with a response to those questions.
First of all, with respect to the process, the bill does lay out that the minister would consult with any parties with which the minister feels that it would be necessary to consult with before issuing an interim order. There is definitely an expectation that the minister will do this in a very public manner, in terms of issuing an interim order, and that it would be published. I do believe the legislation does have a provision that if for some reason, in very exceptional circumstances, it was not within the public interest for that to be published, there is some room. But it is absolutely expected that the minister would both consult and publish the interim order for full transparency.
Following my response, my colleague Christopher may be able to elaborate on the way the text is drafted in more detail and the reasoning for that.
In terms of going back to the question about the purpose of this and why we cannot simply rely on the regulatory process, we’ve heard very clearly from stakeholders through our discussions that in some cases the regulatory process is moving too slowly. It does take a few years for a regulation to go through the process from development of a proposal, publication first in Canada Gazette, Part I and then Canada Gazette, Part II.
A number of cases when it comes to international standards, they’re being developed in international fora where industry stakeholders have strong engagement. Canada is at the table building consensus around the standards. So by the time it’s actually completed, there’s a strong consensus around the value of that standard. Stakeholders don’t want Canada to be the last one to adopt. They want us to be adopting these standards, in part, because it supports trade. If Canada lags behind and they’re dealing with a different standard than perhaps their competitors in other countries. There are also sometimes safety and health imperatives relating to the adoption of these standards in a timely manner.
The intention is to give the minister another tool — where it’s appropriate, where a standard is trusted and there’s a strong sense of consensus — to be able to put that standard into place on an interim basis while we do the regulatory process. The intention is this is helping that standard come into place on an interim basis, but for it to be adopted on a permanent basis we would still go through the regular regulatory process.
I hope that helps to explain a little bit more the purpose. It’s not intended to be used in situations where an international standard would cause great expense to business, where there is not a strong support or there’s a definite need for much more detailed cost-benefit analysis on a provision. In those cases, it would be expected that we would continue to use the regular regulatory process, so it’s really intended where it’s trusted standards to which Canada typically adheres.
To provide a couple of tangible examples, in the area of transportation of dangerous goods, Transport Canada currently undertakes a recurrent two-year cycle to harmonize the transportation of dangerous goods regulations with international standards and codes such as the UN Recommendations on the Transport of Dangerous Goods — Model Regulations. This authority could expedite this alignment. Under current circumstances, sometimes it’s taking up to five years for Canada to catch up with the latest cycle because of the delays that sometimes happen with the regulatory process.
Another example would be that we could use this authority to temporarily amend the Arctic Shipping Safety and Pollution Prevention Regulations to ensure Canada meets deadlines for implementing International Maritime Organization Convention amendments. Again, there’s certainly a reputational risk to Canada when we’re slow in implementing some of those critical international obligations.
At this point, I will stop. I’m going to turn it over to my colleague Christopher Hynes, who can speak in more detail about the provisions of the legislation and why it does provide in some circumstances some exceptions for the minister with respect to the publication provisions.
Mr. Hynes: Thank you, Melanie. I would add to that answer that the way the proposal is drafted, it reflects language that we’ve seen in other modernized and contemporary statutes where publication requirements are not solely in the Canada Gazette. The intention there is to raise the level of disclosure, if you will, and publication through other means that may be more effective.
To the point — excellent question, obviously — on where there may be restrictions on publication, several Transport Canada statutes contain a security mandate. In some instances where security requirements are made, there are restrictions on the publication of those requirements, but any stakeholder who was subject to those requirements is consulted. It is absolutely obligatory that anyone subject to measures or regulations related to security would be consulted and would have the opportunity to comment and influence the development of those requirements.
The threshold is very high. The purpose of that provision is really just to address those particular limited circumstances where, for security reasons, publication is not public and in some cases it’s explicitly prohibited. We are trying to make the provision of the proposal as effective as possible by providing the widest scope of possible use. I hope that answers the question.
[Translation]
The Deputy Chair: Thank you for your clear and complete answers.
Senator Gerba: Usually, I would ask the Transport Canada officials this question, but I think Mr. van Raalte will be able to answer. I would just like to know what efficiencies Transport Canada hopes to gain through this legislation.
[English]
Ms. Vanstone: I can speak to the efficiencies that we are looking for in the transportation sector. We’re seeking efficiencies for regulated entities and businesses in the transportation sector. They have explained to us that when the Canadian regime is lagging behind key international trusted standards that other countries have adopted, it creates inefficiencies in how they do their business because they have to follow a certain set of standards within Canada and then a second set of standards for their export business, for example; they may be working in an international context where they are subject to those international standards in one part of their business and subject to different standards in Canada. Having that misalignment does create business inefficiencies for them and can impact from an export and trade perspective and an innovation perspective.
In terms of internal efficiencies, it’s not necessarily seeking internal efficiencies for the department. This is intended to support the regulated entities. As a department, we would do the process of supporting the minister for the interim order and then subsequently there would be a regulatory process similar to what we would typically follow.
I hope I’ve been able to answer the intent of the question. Perhaps my colleague Mr. van Raalte from Treasury Board could talk a bit more generally about some of the efficiencies that the bill is looking to achieve.
Mr. van Raalte: We’ve had testimony in front of other standing committees over the past week and a half, but, in general, the mix of amendments that are included in Bill S-6 is intended to address efficiencies by reducing administrative burden for businesses. They’re requirements, transactions or filings of reports that have become unnecessary over time because they are accomplished by other means. They are intended to possibly facilitate digital interactions with government.
Can we improve our digital service delivery to business? We need the authorities for that interaction. It’s not in this bill, but you might be surprised to learn that there are some pieces of legislation that actually say you must send something to the government by fax machine. How many of us still have a fax machine these days? That’s a simple, easy example, but that still can exist. We’re still finding those and trying to get them out of the system.
It may be an opportunity to facilitate, through legislation and regulations, bringing new products to market. There are opportunities, through modernization efforts, to set aside existing regulations and build temporary regulations under some sort of innovation framework that says you want to test out this new product. We want to build all the right rules and we want to make it fair to all the players. That, again, is an opportunity for those efficiencies so that we can support those emerging markets and make Canada more competitive.
Finally, it’s about making cross-border trade easier through more consistent and coherent rules. Again, other committees have heard about opportunities, especially under the Customs Act, for improving how we implement free trade agreements when they come into force.
Senator Quinn: I’m excited by this. I think this is great. As somebody who worked in the system for some time, it was always too slow to modernize change, regulatory processes and whatnot.
This is an outstanding initiative. This is important to our economy. It’s important for the environment. You mentioned the Arctic Waters Pollution Prevention Act, something that needs to be done and be done effectively. How do we ensure that we’re responsive to the ongoing changes that will occur and continue to occur in a more rapid fashion as we go forward?
How do we ensure that we are responsive?
Ms. Vanstone: That’s an excellent question. Obviously, this is intended to be one tool to improve that responsiveness of the system. Once a standard has been completed and there’s a strong consensus behind it, the minister can say it meets a public interest test for Canada.
With respect to other activities, from the Transport Canada perspective, we are seeking to ensure that we are participating actively and effectively in a number of international fora where technical standards are being developed. As I mentioned before, I have somewhat of a focus on road safety in my capacities at Transport Canada. We engage very actively in the UNECE fora related to the creation of technical standards. Our counterparts at Transport Canada are involved in similar international fora where the development of international standards happens on an ongoing basis.
An important piece of the overall picture is that for Canada to have confidence in these standards, we must have a seat at the table and bring our expertise to bear in the development of those standards.
Senator Quinn: I’ll come back on it just a little bit. Again, all the right initiatives and having our expertise at those international tables is so vitally important, but what more do departments need to have the nimbleness to put in place those things that we’ve agreed to internationally with all of the experts? Quite frankly, the expertise resides in those people that come back to Canada and say these are the things that need to be changed to allow us to maintain our competitive position.
What more do departments need to have that nimbleness?
Ms. Vanstone: I think we’re looking at various ways to ensure that we’re being nimble. We do a good job of consulting with our industry stakeholders during the development process so that they are very tuned in to that as it happens. That helps to ensure we are anticipating and addressing any issues that may be coming up through the standards development process, and I think that helps with the nimbleness.
We’re always looking internally at our own capacity to be able to participate in these things. Our department and others are working closely with one another to look at ideas around how we continue to modernize as regulators. That includes some things that we may be able to do with the regulatory process, in terms of technology and use of better digital tools and how we move through the regulatory process. That’s an excellent question.
The Deputy Chair: Mr. van Raalte, you had your hand up. So, briefly, how can we be better?
Mr. van Raalte: More broadly, Madam Chair and senators, it’s also about how we design legislative frameworks and regulatory frameworks.
We often talk about future-proofing legislation and regulations, not just to solve yesterday’s problems but anticipate the problems of the future. You’ll hear terms like, “we need to be designing for outcomes and not for outputs,” or not designing how we’re going to do things but what we want to accomplish, and provide a greater amount of flexibility for departments to work with stakeholders on achieving those outcomes through consultations on the “how.”
My answer is a bit more philosophical, but that is what we are all working towards — not locking ourselves in by overprescribing in detail, in regulations, and adding words like “fax machines.” That was a practice in the 1980s. A terrible practice. Again, I make fun of it, but we have to make sure that we don’t do that so there is the manoeuvrability for those needs or international standards, whatever they may be, in bringing them forward.
[Translation]
The Deputy Chair: Thank you.
[English]
Senator Simons: I have two fairly simple questions, so I will try to ask them quickly. This is supposed to be a legislative change that deals with interim orders, but as I read the legislation, it says that the interim order may be in place for up to three years.
What guarantees or certainties do we have that it’s not going to be abused, that we won’t be interim orders papering over larger problems and staying in place? Three years does not seem interim to me.
My other concern relates to the question raised by Senator Cormier. If you’re going to have secret interim orders for reasons of national security, will there be any parliamentary oversight or something akin to what the National Security and Intelligence Committee of Parliamentarians does for CSIS? Because I am uneasy at the thought of secret interim orders that could last up to three years.
Ms. Vanstone: Thank you for the question. In terms of the three-year time frame that’s included in the interim order, it’s intended to provide sufficient time for a full regulatory process to be completed that would bring the interim order into the regulations on a permanent basis.
When you look at the time frame that’s involved in bringing a regulation through the full process, it often takes two to three years because it starts with developing the regulatory analysis, Canada Gazette Part I, there’s a comment period, Canada Gazette Part II, and final publication. It’s intended, by design, that you would want to avoid having that interim order run out. The idea is you put the regulation in place. You would use that three-year time frame to put the regulation in place. In the meantime, business would be able to benefit immediately from that standard being in place.
Senator Simons: Do you ever foresee a time when you might have to renew? Is there an option in this legislation to renew an interim order for a second round?
Ms. Vanstone: There’s no renewal authority in the legislation. In the event that you reached the three-year period and, essentially, the order would end, the same type of order could be put in place following that three-year period, but it would have to go through the same process of consultation and publication. It would be a new order, essentially.
So there’s no renewal authority, and that is purposeful in that the intention here is really to provide that single, one-time window for businesses to have the benefit of the update of that regulation or for Canada to have the benefit of aligning to that international obligation while a regulatory process is completed.
In terms of the oversight, again, we initially do feel it’s very exceptional that you would have a situation where that would come into play in terms of the security side of things. The bill is talking about not the creation of a regulation but the adoption of a standard or an international order within the framework of a regulation. In that case, it’s fairly narrow in terms of the subject matter that we’re speaking of with regard to the scope of the bill.
On the question of parliamentary oversight, I will pause there and ask my colleague Christopher Hynes if he has anything to add with respect to that particular part of the question.
Mr. Hynes: Thank you very much for the question. I would just underscore one point before I address specifics. Anything dealing with security would not necessarily be secret as we all may understand it. Transport Canada’s mandate relating to security would still require the typical regulatory process in terms of consultation.
Any stakeholders that are subject to the legislation would be consulted and have access to the proposal. There are just certain restrictions on how broadly you would consult and how broadly you would publish and disclose the contents of the proposal. That would be subject to the legislative scheme under which the authority is being exercised.
As my colleague Melanie mentioned in her opening remarks, the authority resides in the CTA. We tried to streamline many of our modernization objectives and proposals, and by putting it there, all programs have access to the authority. But when it’s exercised, the requirements that they would be putting in place would reflect the particular legislation under which they are operating. So if it’s aeronautics, it would be the Aeronautics Act. If it was marine security, it would be the Marine Transportation Security Act, and those have requirements in terms of oversight and what must be disclosed and what must be reviewed.
Those types of requirements don’t reside in this particular suite of amendments, but they do reside in respective acts that actually govern the subject matter under which any sort of interim order would be made. I hope that addresses the question.
[Translation]
The Deputy Chair: Yes, thank you.
[English]
Senator Clement: Thank you to the witnesses. This was described as dealing with legislative irritants. I guess I want to understand how we got to this particular iteration.
My question is for Mr. van Raalte. You referenced a What We Heard report, so I imagine that’s what you heard back from stakeholders, and you talked about them wanting more flexibility and more capacity to experiment. If you could delve into that a little bit more and help me with some more context as to how we got here with this particular version.
Mr. van Raalte: Thank you for the question.
Senator Clement: And I have a fax machine, Mr. van Raalte, so go easy. Take it slow.
Mr. van Raalte: Congratulations. In terms of input that inform the development of Bill S-6, as I briefly provided in an overview in my opening remarks, there were two streams of input. Treasury Board Secretariat, on behalf of all the departments and agencies, led a public consultation process through the Canada Gazette over the summer of 2019 on regulatory modernization broadly and included themes around regulatory cooperation with other jurisdictions. It included issues around competitiveness, and one of the themes was legislative irritants that have a downstream negative impact on regulations.
The What We Heard report — and I’m happy to share the link to that with the committee so that you can have a look at it yourself — speaks at a summary level to the different issues that we heard under the different themes of consultation, including, again, what went into the legislation. That was public driven. Tell us where your irritants are.
Departments and agencies have a depth of relationship with their stakeholders and their public constituents that know their issues better than anybody else, and they also know from a regulatory modernization perspective what’s working for them and what’s not working.
The other stream was we did a call-out letter to departments and agencies later that summer while we were doing the public consultation piece and said, “Bring forward your issues that could go into a legislative package like this.”
One special stream that’s linked to that is that, again, the Treasury Board of Canada Secretariat also facilitates what we call “targeted regulatory reviews,” and these are facilitated initiatives for departments and agencies to take a look back at their existing stock of regulations, their regulatory processes, and as well look at potential novel practices or — I don’t want to use the word “innovative” because that can get overused — is there anything new that you want to try in terms of modernizing regulations.
We’ve now facilitated two rounds of those regulatory reviews. They had a huge stakeholder input segment to those as well, and so this particular amendment was part of that regulatory review process that got it into Bill S-6. Again, I’m happy to share links with the committee on the roadmaps that have been published in round one and round two of our regulatory reviews.
[Translation]
The Deputy Chair: What I have found surprising since this conversation began is that it seems as though we are putting a Band-Aid on a gaping wound, that wound being our regulatory system — one that is so slow that we have to find ways around it just to be able to function.
Here’s something of an obvious question. Isn’t it a good idea to clean up our regulatory system? I’m not trying to be simplistic, but it seems to me that ways could be found to streamline and shorten the process, so it wouldn’t be necessary to rely on interim orders to modify regulations ahead of the process that determines whether the change makes sense. What’s more, since the beginning of the conversation, you have talked about consulting the business community, car manufacturers, transportation companies and the like, but you don’t seem to consult other people even when health, safety and other considerations are involved.
I see a lot of paradoxes in all this. I’m not sure whether anyone would care to venture an answer.
[English]
Mr. van Raalte: Thank you, Madam Chair. That’s probably for me in terms of the big system. The regulatory development cycle is governed by the Cabinet Directive on Regulation. Again, I’m happy to share that link with the committee. That cabinet directive is informed by OECD good regulatory practices.
The cycle of regulatory development is meant to ensure quality stakeholder engagement and quality regulatory analysis, in terms of the impact that the regulations will have on stakeholders, on the public, on health and safety, et cetera.
It includes cost-benefit analysis. It includes a small business lens. It includes gender-based analysis plus, and then it requires a cycle back; after we’ve had the formal consultation, we may need to make tweaks to those published draft regulations, in terms of then bringing them forward to bringing them into force. In general, that process takes 18 to 24 months.
The more complex the problem is, where there’s no silver bullet about exactly what the answer may be in terms of the differing views between stakeholders, in terms of attempting to find a consensus or balancing that public interest and getting that right, which can extend the process.
The complexity of analysis required for that regulatory impact analysis that must be published and can be challenged by industry, by anybody about getting the analysis wrong; that’s not going to be the burden. The burden is going to be more on us, and we want to have a discussion about that. That’s all part of the democratic process that is built into the Cabinet Directive on Regulation for the development of any and all regulations.
Can we attempt to streamline that? We do from time to time. There is permission to exempt publication in Canada Gazette, Part I. That means we think that the stakeholder consensus is so strong, we don’t need to publish and we can move things faster, or the issue is so important that we’re going to actually manage the stakeholder issue, but we need to get it through faster because the public interest of getting the regulations in place trumps the stakeholder consultation side of the equation.
However, the oversight role of the Treasury Board, as a cabinet committee, is that regulatory development process to ensure stakeholder consultation, the appropriate engagement, to ensure that rigour and analysis in terms of the impact that it will have, and then in terms of, again, following through on making sure that we’ve heard and attempted to address when stakeholders see the final draft text of the regulations and start to work through what it really could mean, following through on that.
[Translation]
The Deputy Chair: Thank you for answering my question.
We have a second round, so I would ask everyone to keep their answers a bit shorter. Senator Dawson, please keep it brief.
Senator Dawson: You mentioned consulting the international community, especially the Americans. Closer to home, however, one of the issues of concern that came up when we were studying vehicles is that roads are under provincial jurisdiction while cars are under federal jurisdiction. What is your relationship or cooperation like with the provinces? I’m referring to regulations that may apply to the use of certain smart car components. How does that work on a province-by-province basis?
[English]
Ms. Vanstone: Thank you very much for the question. In fact, we’re working very closely with our provincial and territorial counterparts with respect to the development of the infrastructure that is required for connected and automated vehicles.
In terms of testing these technologies with new technologies emerging, there’s importance to work very closely to ensure that both provincial and federal requirements are met around the innovation, research and testing of new technologies, and we cooperate very closely on an ongoing basis around vehicle technologies as well as road safety.
A lot of these things go together. These new vehicle technologies have a tremendous amount of potential to reduce fatalities among vulnerable road users, so that collaboration is an essential part of our program.
Senator Quinn: I want to say thanks to the folks who are here tonight and applaud taking this step to do things in a more efficient way, but I want to come back to how we can learn, the nimble theme, just briefly.
We’ve had different initiatives in the past. We did Beyond the Border about 12 years ago. That was to get efficiencies in operations for all modes of transportation between the United States and Canada. I don’t know where that ended up.
But I do know that one of the things in regulatory development is the internal processes of government, interdepartmental, the back and forth with central agencies. That’s a very time-consuming process. How do we streamline that?
Mr. van Raalte: Thank you for the question. I’m going to try my best, Melanie.
Complex problems lead to complex discussions. The more upfront work that a sponsoring department can do in terms of their analysis, their coordination of alignment in discussions with international and domestic — provincial and territorial — partners and in terms of where their regulations may butt up against the authorities and mandates of other departments and agencies, the faster things can move. What we will see, in terms of the regulatory development cycle, is that the more that can be invested up front in that early policy-development work that informs the development of the regulations — what we call either early consultations or pre-consultations — the chances are that the reg package then moves much faster through the system, because it’s basically the ethic of no surprises.
But in a complex world, we can’t guarantee, senator, that it happens all the time. It is a best practice. We try to encourage it as much as possible. Then there is the challenge function that is required. The system needs to make sure that everything is aligned so that we avoid little irritants that show up in legislation and regulations down the road or we avoid regulations that come forward where somebody very important out of some corner goes, “Whoa, whoa.” That really slows things down.
The more that can be done up front under that no-surprises ethic, the faster — ideally — things can move through the formal process. Again, it’s more of a theoretical response, senator, but we have seen that as a best practice.
Senator Quinn: Thank you. I recognize it’s theoretical.
[Translation]
Senator Miville-Dechêne: Thank you for your answer on opportunities for improvement. That gives us some hope.
Senator Cormier: Quickly, I’d like to follow up on transparency. What I am wondering is how we can make things more efficient while being as transparent as possible. The perception of a lack of transparency makes lawmakers like us nervous. New section 49.1 provided for in the bill includes the following provision:
The Statutory Instruments Act does not apply to an interim order. However, the order must be made publicly available unless, in the opinion of the Minister, its publication is inappropriate due to exceptional circumstances, such as if the publication compromises public safety.
You talked about security issues. My question is not about the exact number, but how many times have exceptional circumstances been cited to prevent the publication of an order? Is it a provision that is used frequently? I would like to hear more about that.
[English]
Ms. Vanstone: Thank you for the question.
This is a new authority that we’re seeking to implement. We are anticipating it is something that would be used periodically but not necessarily frequently. It’s difficult right now to quantify exactly how many cases may come up in a security context. I think a lot of the stakeholder push for this is really more in an economic context, such as for those international standards that relate to technology or, as I mentioned, international obligations like the Arctic shipping obligation or the Transportation of Dangerous Goods Regulations.
Typically, in the areas where we’ve heard stakeholders ask for this, it would not be in the context of a security piece. Because the legislation is being drafted to apply across a broad number of pieces of legislation, it’s written in a way to account for that possibility, but we would anticipate that to be very exceptional.
We certainly don’t see this as being the method that would always be used in the case of an international standard or obligation. It really would need to meet that public-interest test and there would need to be a strong supporting consensus around the standard for the minister to go forward and use this interim order versus using the regular regulatory process that will, of course, continue to be in place.
[Translation]
Senator Gerba: I’m going to come back to a concern that was raised: finding temporary solutions to permanent problems. My question is for Mr. van Raalte. Do you think that, by giving the Minister of Transport the authority to issue emergency orders, the bill will allow you to be more nimble in responding to the transportation industry’s concerns?
[English]
Mr. van Raalte: Thank you for the question.
It’s striking that right balance between rigour of analysis and rigour of lining up everything in the system to make sure we aren’t tripping over other departments’ or other ministers’ authorities, or wading into a jurisdictional issue, versus offering up the flexibility in terms of responding to an international consensus in the publication of the international standard.
This particular amendment to the Canada Transportation Act is that balancing act. It’s recognizing the need to respect the Cabinet Directive on Regulation, providing interim authorities to the minister to be agile and responsive to those changes — as my colleague from Transport Canada said — of credible, trusted, international standard-setting bodies. It’s not an interim authority where somebody out there in another country has published some great idea. The international standard-setting process is well understood and trusted. Canada is at the table for many of those standard-setting bodies.
Again, it offers that balance and agility, in this case to the Minister of Transport.
The Deputy Chair: Thank you very much, witnesses, for all your answers and your patience.
(The committee continued in camera.)