Ève Péclet NDP La Pointe-de-l'Île, QC

Mr. Speaker, I am very pleased to speak to this extremely problematic bill. I will provide more details in my speech.

This bill stems from the tabling of the 80th report of the Standing Joint Committee on Scrutiny of Regulations in December 2007. The committee found that:

...the incorporation by reference of external material into regulations “as amended from time to time” should, in the absence of clear authority, be seen to be [inappropriate and] illegal.

In fact, the parliamentary secretary just confirmed that incorporation by reference is a long-standing practice in the departments. However, we have a report here that says that without a clear law to that effect, these incorporations should be considered inappropriate and illegal. I will read the last clause of the bill:

18.7 The validity of an incorporation by reference that conforms with section 18.1 and that was made before the day on which that section comes into force is confirmed.

I will explain to those watching today—I know many people are—what this government has just done and what the parliamentary secretary has just confirmed to us. The parliamentary secretary just acknowledged that incorporation by reference is currently illegal, but now he is making it legal. Material was incorporated by reference without enabling power and without enabling legislation, which means that, unfortunately, we could have hundreds of thousands of incorporations by reference. I do not know exactly how many. Thousands of incorporations by reference may have been done without legislative authority. That is a problem.

One has to wonder what the purpose of such a bill is. We know that the Conservatives' budget contained a small provision—hidden in a large budget that is hundreds of pages long—that legalized an illegal act committed by the RCMP. Here, the Conservatives are legalizing incorporations by reference that the Standing Joint Committee on Scrutiny of Regulations would consider inappropriate and unlawful. I have here the findings of the report. The first thing that came to mind was the following question: how can we really vote for a bill that would make retroactive amendments to allow actions that were not allowed before Bill S-2 was passed? I would like to remind members that this bill has not yet passed. In accordance with this bill, incorporation by reference is unlawful and inappropriate right now. I would simply like to put that out there, and members will have to decide whether it is acceptable or not. However, in my opinion and in the opinion of the NDP, this sort of retroactive amendment cannot be allowed without a law that allows regulations to be incorporated by reference.

That is some of the background behind Bill S-2. The government said that there was a problem because it did not have regulatory power so it was going to pass a law that would give it this regulatory power to incorporate regulations by reference.

In his speech, the Parliamentary Secretary to the Minister of Justice said that this bill gives guidance and direction with regard to the various incorporation by reference mechanisms. I would like to remind him that I asked this question to a number of witnesses who appeared before the the Standing Committee on Justice and Human Rights.

These witnesses clearly told me that the bill unfortunately did not address their concerns and that it did not create rules and guidelines for making regulations and incorporations by reference. I have the minutes of the meeting. The witnesses clearly told me that Treasury Board and the government must adopt directives and guidelines as quickly as possible for making regulations and for incorporations by reference. There are currently none, and Bill S-2 does not change that. All it does is grant the general authority to make regulations by reference. It does not include directives or guidelines.

I will give a very quick overview of incorporation by reference. It is a technique for drafting laws or regulations that refer to another piece of legislation, in order to avoid having to recopy everything in the bills. I will concede that we save a lot of paper by doing this. This technique is used to incorporate legislative texts, for example, regulations, rates, texts from other jurisdictions—provincial or federal—or other legislative texts from other governments, meaning other states.

There are two types of incorporation by reference. There is static incorporation, which means that when a reference is made to a regulation, the reference is made to the regulation as it exists at the time the legislation is passed, without any amendments that are made in the future.

There is also dynamic, or open, incorporation, which automatically incorporates changes to other incorporated regulations. This means that if we incorporate regulations from another country, like the United States—the Parliamentary Secretary to the Minister of Justice mentioned international trade—and that country amends its regulations, ours will also be changed. Governments change and we have no way of knowing what kind of amendments a new government might make, but these amendments will automatically be made to Canadian laws.

This means that these amendments will never be reviewed by parliamentarians. That is a problem. Canadians, who are supposed to know the law, and parliamentarians, who are supposed to study it, will not be able to do so. They will not necessarily be aware of all of the changes made to the hundreds of thousands of regulations pertaining to legislation in other countries. In addition, incorporations by reference will not even have to be published in the Canada Gazette.

That is a big problem because all of the government's regulations must be published in the Canada Gazette before coming into effect, to prevent abuses. The problem is that clause 18.4 states that the requirements in the Statutory Instruments Act for registration and publication of regulations do not apply to documents incorporated by reference. That means they do not have to be published in the Canada Gazette. The government is creating an exception. Usually, as I said, all laws and regulations have to be published in the Canada Gazette. However, clause 18.4 confirms that documents incorporated by reference will not have to be published.

There is a double standard here. I can imagine what the Conservatives are thinking. They will say that this has already been published, but that is not the problem. Perhaps it has already been published as it stands, but it did not say that it would apply to another law or another regulation. The problem is not that the regulations have already been published. What matters is knowing that the application of the regulation to another regulation will never be published. How, then, is anyone supposed to know what anything applies to, if it is not published in the Canada Gazette? That is very problematic.

If we cannot figure out what anything applies to, and it is not published in the Canada Gazette, what is the Conservatives' idea of accessibility? Do they think that everyone should just know how to find that information online? If so, I would remind them that the Canada Gazette website is usually where people look up which regulation applies to which law or which regulation by incorporation applies to which regulation.

If it is not published in the Canada Gazette, then where? Will it be posted on the department's website? If that is what they mean by accessibility criteria, then I hope there will be no fees involved because the Canada Gazette can be accessed for free. Will there be fees? Will it be translated in both official languages?

In any case, I sincerely hope so because the United States is not subject to bilingualism requirements. If we incorporate U.S. regulations by reference, I hope that the government will ensure that these regulations are translated into French and English for all Canadians.

A letter sent by the Standing Joint Committee on Scrutiny of Regulations raises some concerns that I raised in committee and for which the government has not provided a response, unfortunately. Generally, ambulatory incorporation by reference of administrative documents produced internally by the federal government should not be allowed in federal regulations.

Why not? When documents are incorporated by reference by the regulatory authority itself, there is a risk of abuse and of creating a system where that authority has a free pass to incorporate by reference and make changes to the regulations without submitting the material for review by parliamentarians. That is very problematic.

Several thousand regulations could be incorporated by reference every year, without parliamentarians being notified and without these regulations being subject to review by a parliamentary committee. I find that very problematic. That shows that the Conservatives are not at all concerned about creating a parallel means of making regulations and opening the door to abuse by using incorporation by reference.

Only when this is deemed to be essential should it be permitted, and that should be clearly indicated in the enabling legislation, not in Bill S-2. This is general enabling legislation concerning the general authority to adopt measures by incorporation, not a specific power given to a department or departmental agency, for example.

It is no big deal for the Conservatives. They will just pass Bill S-2 and create a general power that applies to all departments and departmental agencies. That way, they will not have to include it in specific enabling legislation. That is what Bill S-2 does.

For example, the bill talks about the power to incorporate by reference rates, numbers and indices established by, for example, a body other than the regulation-making authority. However, we do not know what body is being referred to. The bill refers to persons or bodies other than the regulation-making authority. Could that be public servants or peace officers? I do not know.

When we pass a law we generally want it to be clear. What is a person or body other than the regulation-making authority?

This came up a number of times in the debates on Bill S-2 in the Senate. It was said that the bill was not clear enough and that guidelines were necessary. Unfortunately Bill S-2 will not fix that because it does not include guidelines as to who can use this new power or who or what is considered a person or body other than the regulation-making authority. As I already said, this came up a number of times during the Senate's studies.

Incorporation by reference of foreign legislation, as amended from time to time, is another problem. Once again, in the report and in the letter sent to the minister, the Standing Joint Committee on Scrutiny of Regulations clearly stated that ambulatory incorporation by reference of foreign legislation should not generally be permitted.

It goes on to explain that with ambulatory incorporation by reference of federal, provincial or foreign legislation, parliamentarians do not have the option of reviewing the amendments. I am not making this up. It was in a report and in a letter from the Standing Joint Committee on Scrutiny of Regulations. The committee provides some examples, such as the fact that Ontario, Australia, New South Wales, South Australia and the Australian Capital Territory have all prohibited the incorporation by reference of foreign legislation.

There are already some Commonwealth countries that say that foreign legislation should never be incorporated by reference, especially not as amended from time to time, because parliamentarians then do not have the opportunity to examine any amendments that may be made to the law. We cannot allow amendments to be incorporated into Canadian laws without debating them in the House of Commons. That is clear. Any amendments to regulations must be put before the House. That is clear. That is how a parliament works. It is a legislature.

The report of the Standing Joint Committee on Scrutiny of Regulations also talks about how such power should not necessarily be exercised without guidelines. For example, the report indicates that the regulation-maker who drafts the actual text of the regulations or who decides to incorporate material by reference must act within the clear limits of the authority bestowed upon him by law. The enactment of general provisions governing incorporation by reference could raise questions about whether those provisions constitute autonomous authority or whether they are subject to the conditions of the enabling legislation under which the regulation-maker makes a regulation by incorporating a document by reference.

It says here in the report that the passage of Bill S-2, which is a general authority for incorporation by reference, unfortunately may not meet the conditions and guidelines. Since no such conditions exist, that is a bit difficult. However, that could mean that this does not meet the conditions of the enabling legislation that falls within the purview of a department or agency.

That is very problematic. I think all members need to think about this before they allow hundreds of pages of regulations to evade parliamentary scrutiny. I am asking members to vote against this bill.