REGS Committee Meeting
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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS
OTTAWA, Thursday, October 19, 2017
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. to review statutory instruments.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
Draft Cabinet Directive on Regulation
(For text of documents, see Appendix A, p. 24A:1.)
The Joint Chair (Senator Day): The agenda comprises three items, and it’s a little different from our normal type of meeting. We’ll go through the various items with the help of counsel.
The first item I’ll direct your attention to is Item No. 1, Draft Cabinet Directive on Regulation. As I understand it, the cabinet issues them. The draft Cabinet Directive on Regulation sets out the Government of Canada’s expectations and requirements in the development, management and review of federal regulations.
This is up for consultation and review at this time, so I will call on counsel to explain to us what impact, if any, that may have on the work that we do here.
Evelyne Borkowski-Parent, General Counsel to the Committee: You should have in front of you the regulatory process chart. I thought it would help put things into context for Item No. 1.
As the chair mentioned, the Treasury Board of Canada Secretariat is presently holding consultations on the draft Cabinet Directive on Regulation and is set to replace the current Cabinet Directive on Regulatory Management. All Canadians have been invited to comment on the directive, and we wanted to bring it to your attention and seek members’ comments as the consultation period is coming to a close on October 29.
You will note that section 7.3 of the directive is dedicated to this standing joint committee. It contains a rather broad statement that reads as follows:
Departments and agencies must respond to issues raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) in a timely manner.
If the members will allow me, I have a few preliminary comments. First, the Treasury Board’s focus has always been on policy issues. It’s the organization that oversees the development of the regulatory impact analysis statement that accompanies each regulation that is published in the Canada Gazette. As such, much of the directive focuses on the principles of consultation, transparency and accountability in the context of regulatory development and implementation.
One key concept that seems to be lacking, however, is legality. It remains the fact that regulations, by definition, are rules of conduct that have the force of law. It follows that their implementation must fall within a larger legal context.
While part of that legal analysis is conducted by the Department of Justice and the Privy Council Office during the drafting process, regulation-making authorities should also be paying great attention to the legal framework surrounding the regulations. Put simply, it matters very little how open, transparent and evidence-based a regulation is if it is not allowed in law.
This is of particular importance if you consider that this standing joint committee’s analysis is done ex post facto. In order to correct deficiencies raised by the committee after sometimes arguing for years on the substance of the issues, regulation-making authorities will have to go through the regulatory process once more to make the appropriate amendments. This accounts for some rather time-worn files examined by this committee.
Counsel have prepared observations on the directive should members wish to hear them.
The Joint Chair (Senator Day): Should we comment at this time or go on and hear what counsel has to say?
Ms. Borkowski-Parent: Under section 3.0, which deals with principles, one principle that could be added is parliamentary supremacy along the lines that regulations must be made in conformity with the powers delegated by Parliament in the enabling statute. They should also take into account the views and findings arising from parliamentary oversight of the regulatory system, including those provided by the Standing Joint Committee for the Scrutiny of Regulations.
That’s one thing that could be clarified or added to section 3.0 on principles.
The Joint Chair (Senator Day): Are there any comments on that proposal? This would be a submission from this committee. Is that what you’re proposing as a result of this consultation?
Ms. Borkowski-Parent: Correct. As the consultation period is coming to a close before the next meeting, any comments the committee wishes to make would have to go under the joint chairs’ signature.
Mr. Tilson: To go back to 7.3, I enjoyed the words, “timely manner.” I like those words, particularly for my first meeting. There is a file that has been open for eight years. Regarding the banter back and forth, I understand the legalities. I mean, it takes a certain amount of time for you and for the departments to develop these things.
I guess the question is: What do you think a timely manner is? I find that if that’s the way things operate and a timely manner could mean eight years, there is something funny with the system.
The Joint Chair (Senator Day): Do you intend to return to 7.3?
Mr. Tilson: I’m sorry, Mr. Chair. I should have spoken before, but I didn’t realize you were going to start again. I’m sorry if I’m out of order.
The Joint Chair (Senator Day): You’re not out of order, except we were just considering the proposed reply with respect to 3.0.
I’m wondering if counsel is intending to go back to the phrase “timely manner.”
Mr. Tilson: You’ll do that later?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): We’re starting at 3.0. There is the suggestion we should put some wording there.
Are we content to include this comment regarding 3.0 as suggested?
Seeing no objection, we’ll proceed as you proposed.
Ms. Borkowski-Parent: There is mention in the annex, but it might be worth repeating, that departments and agencies should, during the development process, verify that they have the necessary legal authority to make or amend regulation. So that should be that care should be given during the development process.
The Joint Chair (Senator Day): Where would you propose that wording would appear?
Ms. Borkowski-Parent: There are a few places where it could go so I think we could leave it.
The Joint Chair (Senator Day): Any comment in relation to that proposal?
Mr. Di Iorio: I’m sorry, I’m also lost. Do we comment at the time you mention the section, or can we just come back to it?
The Joint Chair (Senator Day): I think it would be helpful if we went through this from front-to-back, with the sections where you think we should make comments. We won’t comment on all of this, obviously.
Mr. Di Iorio: Can I make a comment on something else?
The Joint Chair (Senator Day): Absolutely.
Mr. Di Iorio: I’m at 5.1.2.
On the choice of the instrument, the government is an employer, so the employer could choose an instrument by which it gives directives to its employees: You will open the office at such a time; you will let people in in such a way, and all that. But it should not be a way to get around a regulation.
The problem with a directive is that it’s not law, and the citizen is deprived, to a great extent, not entirely, of his or her ability to challenge it or to question it. So it shouldn’t be like the government saying, “Well, if this is a regulation, maybe people are going to start analyzing too closely and asking too many questions, so we’ll use the other route.” Because you can get to the other route by saying, “You will not issue a permit if such and such is not done.” It’s a directive that I give to my employees, but then it becomes binding on the citizens.
So directives should not be binding on citizens because it’s fundamentally unfair. The citizen, first of all, doesn’t necessarily have access to the directives because they’re not published, and there is no requirement as per regulation. There is no scrutiny of that, for example.
This is something dramatic in a democracy because, in a democracy, already there’s a problem with regulation because it’s not adopted by Parliament. But government is responsible every four years and has to respond every four years. But, if you go the route of the directive, it’s the bureaucracy that does that. So it totally escapes the supervision of Parliament.
The Joint Chair (Senator Day): Do you have the proposed wording? I understand your point, but I’m just —
Mr. Di Iorio: I understand your question, chair. I’m alone against a machine of 100,000 or 500,000; I don’t even know how many they are. I voice it, but I’m alone.
Ms. Borkowski-Parent: I can make a suggestion along those lines. If the intent is to have enforceable, binding rules, then the instrument choice should be a regulation and not an administrative document.
Mr. Di Iorio: Yes, that would be a start, but then we also leave it to the government to choose again. The problem is always the machine versus the citizen. The machine always wins, and the citizen always loses. That’s how you contract democracy slowly. Something gets lost there, something important. It might be my friends here, my friends there; we’re all governing at some point. Our intentions are good, but we rely on the machine. Their reaction is always to say, “It’s better this way; it’s better that way.” People see, challenge, discuss and debate regulations. There’s a very strong tendency in all democracies, not just ours, to do that. From time to time, somebody in government gets up and says, “Look at the pile of regulations that we have,” but they don’t look at the pile of directives that exists, which is always 10 times bigger and impedes the citizens. I think the message should be stronger than that. We want something that constrains the government much more than what we have here. Government can decide.
We’ve seen cases that were shocking to us, and we’ve only seen one millionth of what happens. You see more, but even you can’t get to see everything. A lot goes by because there is so much coming down the assembly line. If we don’t make a statement here, we let it go for the next 25 years.
The Joint Chair (Senator Day): Is there any further discussion on that point?
Why don’t we ask counsel to think about where it would be appropriate to put a comment? Is it appropriate here or in some other general area?
Ms. Borkowski-Parent: I think it would fall under “Instrument choice” at 5.1.2.
One thing I can mention — and then again it’s a bit of an after-the-fact remedy — is that when we see that rules are incomplete and departments want to rely on administrative documents to complete what has been left out of the regulations, the committee has objected consistently to having those administrative directives used as a supplement to the law. That being said, it is after the fact, and there goes a number of years before the changes are implemented.
So I think make a comment on the nature of regulations and that, if it’s meant to be legally binding, it should be in the proper instrument, that is, a regulation.
Mr. Di Iorio: Impose an onus on the government. Government has to be called upon.
We have these reviews that we impose, that the legislation has to take into account. A review based on gender, for example. Does it create gender inequalities? At the same time, a review should exist for directives. Is the government really here attempting to regulate without using the regulatory instrument? Is it trying to get away from using a regulatory instrument? If that were imposed on every department, they would have to be much more cautious. Now, a directive, you can have one a day if you want to, and, what you just pointed out, we’re blessed. We’re members of Parliament and we’re senators, so we have a certain authority. A citizen has nothing, zero. A small business person has nothing: “You’re on your own; deal with it.” You’re trying to start a business; you have a job. You have kids, family; you’re involved and you want to do something with your kids. You want to register them for something. You want to have some activities, some type of leisure. The government is in your way and you’re being told that there is a directive. “What directive? Can I see it?” “No, we don’t have to show it to you.” Wow. “So go home.” I’ll go home because I have no way to defend, protect myself.
We can do a lot of things, a certain number of things. A citizen cannot do that. That’s why I say that now is the time to send a strong message that Parliament, as a whole, will be very vigilant.
Maybe they should have to provide some type of report to Parliament once a year on the use of directives and what the government is doing to ensure that it is done via legislation, if not regulation, and, if not regulation, a justification for issuing the directive.
As a solution, maybe simply say that when a directive is issued, the directive has to mention why it’s not done through regulation. Second, to be valid, it must explain what the authority issuing it intends to do to ensure the transparency and availability of the directive.
So if we impose at least an onus on government, the arbitrariness of a directive or activity of issuing directives, at least we put some safeguards in place; there will be some safety valves in the system. Currently there are no safety valves.
The Joint Chair (Senator Day): Mr. Di Iorio, we have heard your comments.
Mr. Badawey: As we only have seen this today and we’re only getting input into this process today, I’m assuming that before you send this back you will distribute it to the members so we can look at it. So the intent today is to provide recommendations to you, go back, bring it all together, forward it to us for further comments and then forward it on to the proper authorities.
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): I think the joint chairs would have a look at it before we distribute it to everyone. Because the time line is pretty tight on this one, we will try to move it along as quickly as we can.
Mr. Badawey: I think Mr. Di Iorio brings up an excellent point, and it goes to some of the comments made earlier about our concerns with timely processes and the accountability of the process.
May I suggest that we take Mr. Di Iorio’s comments back, punt it over to you, and you can find the proper instruments to place this in with the intent of what he is expressing here today. Does that sound fair?
Mr. Di Iorio: You were asking about solutions. The document mentions stakeholders. In addition to what I mentioned, we should also add that the stakeholders should be consulted or given an opportunity — and I don’t want to create another machine — to react when directives are contemplated.
The government knows the stakeholders. If you don’t know your stakeholders then we have another problem, which is much bigger. The stakeholders are known, so we should at least impose on the government that we intend to do this directive, it will come into force in 90 days or whatever, and if you have a reaction, please let them know as a way to improve the document. At least it’s done.
The Joint Chair (Mr. Albrecht): On that point, the second paragraph of section 4.0 clearly states:
During all stages . . . regulators must seek opportunities to engage Indigenous people and stakeholders; pursue regulatory cooperation . . . .
Mr. Di Iorio: My point is that that’s exactly what I’m saying, but it’s not done. This is for regulations. I’m saying it for directives. If you don’t want to go through the fact of saying, “Well, I have to inform my stakeholders and I don’t want to do that, so what am I going to do?” Issue a directive instead of issuing a regulation; it’s a way to get around it. If we extend it — I would accept a diluted form, because regulations are much more formal — in some way for interaction with the stakeholders, I think it should be mentioned.
Mr. Badawey: On the point Mr. Di Iorio brought up, I was reading through this and I noticed something. It might be a bit picky, but I just raise my interest on 4.1.1. We’re in a process right now that some people call truth and reconciliation; I call it truth and resurgence. When you look at the first paragraph, we see indigenous people being identified. It says “impacted stakeholders, Indigenous peoples,” and I’m assuming indigenous peoples are impacted stakeholders. I don’t know why it has to be separated. I you have a comma and then “including,” it will suffice. I don’t like the fact that it is separated because indigenous people are impacted stakeholders. If we could bring that closer together, Ms. Borkowski-Parent, that would be great.
Then on page 3, point 2 of the footnotes — Mr. Di Iorio brought this to my attention, so I can’t take credit for it; he caught it — we look at the previous page where indigenous peoples are recognized, but here there is a reference to “Aboriginal peoples.” Is there a reason why you’re using both instead of using one throughout the entire document?
Ms. Borkowski-Parent: It should be one. I think the intent of footnote 2 is to indicate that the phrase “consultation with Aboriginal peoples” was intended to be used throughout because it is what is in the Constitution Act. It’s the language used in the Constitution Act. In order to maintain uniformity with that act, they were going to use the same wording, except throughout the directive they use “Indigenous peoples” instead, which is not consistent.
Mr. Badawey: Can we have that be consistent?
The Joint Chair (Senator Day): Good comment. If it’s not consistent, it implies different meaning.
Can we get back to our order? We were on 5.0.
Ms. Borkowski-Parent: With following two comments, I didn’t have a specific. It could have gone under 4.0 or 5.0, but it had to do with ensuring legal authority and finding ways also to streamline the regulatory process to reduce delays in the development and maintenance of regulations. So where the process itself could be adapted, in order to streamline things, an effort should be made in that regard. But it could go under “4.3 Coordination,” or “5.0 Development of regulations.”
The Joint Chair (Senator Day): And the legal authority you had already mentioned under 3.0.
Ms. Borkowski-Parent: As a principle.
The Joint Chair (Senator Day): As a guiding principle.
Ms. Borkowski-Parent: So definitely a fifth principle under point 3, then maybe emphasis on legal authority and streamlining the process.
I don’t know if there are comments before we reach 5.
Mr. Di Iorio: I have a comment at 5.
Ms. Borkowski-Parent: Without jumping into Item No. 2 on the agenda, under 5, I think the directive should address the issue of accessibility of incorporated documents, particularly in light of the committee’s comments in Report No. 90, which is Item No. 2 on the agenda. But that could be something added to section 5.0.
The Joint Chair (Senator Day): That would reflect our report, but the report was already adopted by this group earlier on. In any event, all we will do later on today in Item No. 2 is to deal with the government’s response to our report.
Ms. Borkowski-Parent: Correct, but considering the committee’s concerns about accessibility of incorporated documents, a mention should be made that if a regulation-making authority is intending on incorporating, accessibility should be paid attention to.
The Joint Chair (Senator Day): Okay.
Mr. Oliver: I was going to raise exactly that point, so I think this is where it belongs. I didn’t know whether it was minimizing burden on business or what.
Is there also a reference to French and English requirements? That’s another big part of the accessibility document. Does it say anywhere that all regulatory documents must be in both official languages?
Ms. Borkowski-Parent: The Constitution states as such, so that requirement is implied. That’s why regulations and statutes are drafted in both languages. But it doesn’t address the accessibility in both languages.
Mr. Oliver: That was my point.
The Joint Chair (Senator Day): Thank you, Mr. Oliver. We’ll see your draft wording for that then, counsel.
Mr. Di Iorio: I’m at 5.5. The first paragraph says:
Exemptions from certain regulatory development requirements can be granted by Treasury Board (Governor-in-Council) or Cabinet in case of serious and immediate risk to the health and safety of Canadians, their security, the environment, the economy, internal government reorganizations, or other exceptional circumstances.
What is left out? A fair day in July?
“I just won $100 million. I give everybody whatever they want, as long as I can buy my five private jets, 50 villas and 50 yachts. Then I will give the rest to everyone else.” You say one thing and then you say the opposite. You can’t have an exception this wide. It’s not an exception, then. This has to be rewritten. If they want, to be able to do it on those, but to make it sound like it’s a rule when it’s not a rule, that’s stretching it.
Ms. Borkowski-Parent: I can tell you what is missing in 5.5: legal deficiencies. There is no consideration given to the fact that when legal deficiencies are raised by the committee, for example, that maybe this warrants a more expeditious process than having to go through all the elements of the RIAS: the cost-benefit analysis, the one-for-one rule, the small-business lens. If you have a legal deficiency, those things will not mitigate the legal problem, except as it is right now.
Even when legal deficiencies are corrected, you have to go through the whole process with all that analysis. The one aspect of 5.5 that caught my attention is that in the circumstances where adherence to a long period to making regulatory changes is not really in the interests of the law or the public, so perhaps consideration should be given to making an express allowance for correcting legal deficiencies.
Mr. Di Iorio: Here, we’re talking about exemptions. It’s a nice document, but at the end, we say, “By the way, we will not comply with it in a long list that covers 99 per cent of the surface of the planet.” The economy. What is not the economy? What is not the environment? Internal government reorganizations: From what I’m seeing, it’s being reorganized every other second. You pretty much cover everything with these exceptions. If you stretch it, you cover more than everything.
It’s not serious work here. This is not serious to say this. We can’t be doing this.
The other thing — and I just mentioned it, although I know we’ll get to it — it’s connected to something else in Annex A at page 204, at the bottom, registration. We can make a note. I’m saying now that it’s connected to that, but I’ll mention it later.
Ms. Borkowski-Parent: I also have a comment under 5.2.5, which is “Regulatory cooperation.” That is an issue the committee has seen with regulations that implement international agreements. When ensuring uniformity with other jurisdictions, attention should be given to domestic legal principles and drafting conventions, and also to ensure the general uniformity of the statute book.
This is so because, in public and international law, in Canada, we’re a dualist country. If you are to implement international agreements, it has to be done in a domestic instrument, and that domestic instrument is part of a greater statute book. Conformity with Canadian drafting conventions and domestic legal principles should be given consideration.
The Joint Chair (Senator Day): Would the term “domestic principles” be included in a Canada-specific approach?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): Because that terminology is here: “provide a rationale for the Canada-specific approach.”
Ms. Borkowski-Parent: In practice, though, we have seen drafting conventions not being followed under the assumption that because it was to be uniform in international agreement, it shouldn’t trump the internal drafting conventions.
The Joint Chair (Senator Day): So you have some proposed wording for that — or you will have?
Ms. Borkowski-Parent: Yes, it was that attention should be given to domestic legal principles, drafting conventions and general uniformity of the statute book.
The Joint Chair (Senator Day): Any comments?
Mr. Badawey: It’s a question: Who is actually facilitating that process?
Ms. Borkowski-Parent: Do you mean the directive? The Treasury Board of Canada Secretariat.
Mr. Badawey: They’re facilitating the process of aligning regulations and differences with other agencies and jurisdictions.
Ms. Borkowski-Parent: Annex A, in terms of responsibility, Global Affairs Canada will comment on regulations that might have an impact on trade, the Department of Justice as well. I think that is it.
Treasury Board also has a unit that deals with regulatory cooperation.
Mr. Badawey: So they have the unit; they have the responsibility.
My second question is: Are they doing it? I ask the question because that may be part of the problem we’re seeing here with respect to time; that, in fact, it’s not being facilitated and therefore people are waiting for the next person to do something, it’s not being done and then we’re waiting one to ten years because of that.
Ms. Borkowski-Parent: I do not know. I know that there are initiatives in place. As to how they function and whether they are effective is not something I can comment on.
Mr. Badawey: That begs a third question: How can we then deal with that? Do we add something here, put a comment there or try to put some teeth into that specific section so that we can prompt that process to happen?
I raise the comment because in my experience of being in this line of work for close to 20 years, a major problem in government is the fact there is often no facilitating between one agency to the other agency, from one department or ministry to the other. There are different silos. When it needs to happen and it doesn’t, the committees, agencies or boards like this suffer because of it.
I’m looking at a mechanism to put in place to prompt that facilitation so that it occurs on a regular basis.
Ms. Borkowski-Parent: The committee would be within its right to make a comment. It is part of the regulatory process and therefore part of the committee’s mandate.
So it could be part of the comments. It could be part of a study the committee makes on the regulatory process to see where it could be made more efficient.
It is a point that could be made, perhaps, to the Clerk of the Privy Council.
Mr. Badawey: Could we do it within this process, make comment on it such that the committee urges — I’m looking for some wording here and thinking out loud, so please bear with me — that this happens on a more regular basis, and that facilitating between different jurisdictions and agencies may prompt better timing of responses to the regulations that are being looked at?
I’ll throw it back at you, Ms. Borkowski-Parent, to come back with a recommendation with respect to wording. All I’m looking for is not just letting it go as a loose end, to try to tie it up. At least as one committee, we can prompt them to do it on more of a regular basis and ensure this is, in fact, happening.
The Joint Chair (Senator Day): It might be possible for us to make comment on these paragraphs without giving the specific wording. Leave it at: “This is our concern; you come up with the wording,” especially since we’re rather tight on time.
Ms. Borkowski-Parent: So that’s what I had for point 5. It then goes to 7.3, so I don’t know if the members have other comments.
The Joint Chair (Senator Day): Anything else, in between?
Mr. Albrecht: I just have a question on 7.2. It talks about requiring departments and agencies to undertake a periodic review. Do we have any guidelines as to how frequently “periodic” is? It could be every year or every 15 years. It would be good to have a benchmark as to what a reasonable periodic review is.I’m not going to tie their hands, but I was thinking it would be good if there was a benchmark given to clarify matters.
The Joint Chair (Senator Day): Are we in agreement on that? Looks like we are.
Counsel, if you could, please work on something there.
That brings Mr. Tilson back in, as well.
Ms. Borkowski-Parent: Lastly, under 7.3, to supplement the statement, the wording we had was: As the standing joint committee represents Parliament’s principal method of review of the use of its delegated legislative powers, deference should be given to the committee’s views and recommendations and actions agreed to by departments or agencies should be implemented in a reasonable time frame.
Mr. Badawey: Again, “in a timely manner” or “a reasonable time frame” could be subjective. What I would add to that is, “as advised by the committee,” because that tightens it up. With all due respect to the issue at hand, it could be different. A reasonable time frame could be six months or, if it’s a different issue, could be three weeks. So I would add, to the end, “as advised by the committee.” That tightens it up.
Ms. Borkowski-Parent: To answer Mr. Tilson about the length of time, typically the committee has considered two to three years to make the amendments. For regulation-making authorities to go through the process and make their amendments, two to three years was considered an acceptable time frame.
That being said, to echo Mr. Badawey’s comments, if the deficiencies raised are, for example, grammar or French-English discrepancies in drafting, it’s possible that less than two to three years is an acceptable time frame.
I’m thinking of the regulations for semen for assisted reproduction, where there has been litigation in court and the department has to review their entire scheme in light of that, two to three years is too short. So it really depends on the nature and complexity of issues. That is why those issues are presented to the committee and decided upon. But having that comment, “as advised by the committee,” keeps departments apprised of the committee’s work and what it will consider.
Mr. Tilson: I have nothing to add. I like Mr. Badawey’s suggestion.
Obviously, each case is dealt with individually, and at that time the committee would advise what’s appropriate. Based on your recommendation, obviously, if there is litigation proceeding or something we haven’t even thought of, my first initiation to this committee is that things go on for too long. I understand it may be that that’s appropriate, but in many cases it’s inappropriate.
I like his suggestion of wording and that perhaps the committee, at the time, puts forward a recommendation for a specific time, because each case and each situation is different.
The Joint Chair (Senator Day): I believe it would be appropriate to put in wording like that, and I think we have consensus on his suggestion.
Mr. Dusseault: I hope that the work we do this morning will bear fruit. Where government consultations are concerned, we know from experience that even if the government hears what we have to say, it does not always listen. Even when the majority supports something at a consultation, if it does not suit the government, it just ignores the recommendation.
That said, I think we are probably at a stage where it would be important to mention the bad habit that certain regulatory authorities have gotten into when we raise the problems that one of their instruments poses; they always want to wait to include changes to regulations in a more comprehensive reform, even for changes that would be simple and easy to correct. So we need to indicate somewhere that for simple amendments, regulatory authorities should not wait for a comprehensive reform of the regulations to make the changes, but should act quickly, especially to correct simple translation issues or matters of consistency between English and French versions, and so on. This has, in my opinion, come up rather too frequently in the committee’s work over the past few years.
Mr. Oliver: Just to go back to Mr. Badawey’s comments, which I agree with in principle, I’m not sure how it will be expressed. I don’t think we should have to attach a timeline to every response we send back. I wouldn’t want to see this change so that “timely” is only defined by the committee. We may not have enough information or knowledge, so it needs to be flexible. It needs to be timely and in response to committees. It should be an “and.”
Ms. Borkowski-Parent: In my informal discussions with the departments, what I encourage them to do more and more when they present their time frame is to give as much detail as possible as to why it will take so long. If there are other factors the committee that might not be aware of that would lengthen that time frame, please make them known so the committee can make an enlightened decision as to whether a time frame is acceptable.
At the same time, we have had regulation-making authorities advancing time frames and pushing them back by nearly a decade, so that is the other issue.
The Joint Chair (Senator Day): We’ll try to work on some wording for Mr. Badawey’s suggestion, being sensitive to Mr. Oliver’s caveat there.
Anything further from you, counsel?
Ms. Borkowski-Parent: No.
The Joint Chair (Senator Day): Any general comments, Mr. Di Iorio?
Mr. Di Iorio: I’m at Appendix A, page 204, at the bottom. Here, it’s the Privy Council Office, and it describes what it has to do and the examination, then it goes to registration. Within seven days after making a regulation, the regulation-making authority transmits copies of the regulation, in both official languages, to PCO, which then registers them. PCO can refuse registration if it deems that certain sections of the Statutory Instruments Act were not followed.
This is also part of the work that we do. We work on that on a regular basis. Here, first of all, it says “in both official languages,” so this is where the safety valve is. Otherwise it can’t be registered. It’s within seven days, so they do have a limit there, and it’s a very strict limit. Seven days is very short. What I don’t know is what happens if they do it within 700 days instead of seven days. Do they have to redo the whole process? No? So there is no consequence of complying with the seven days. Why do they state seven days if there is no consequence? It’s indicative?
Ms. Borkowski-Parent: Yes. It is to make sure that regulations that are made are officially registered. When we see — and we do see them — regulations that have not been registered in the time frame, we will ask the regulation-making authorities — I’m going to backtrack here a little bit.
Section 5 of the Statutory Instruments Act says that within seven days, the regulation-making authorities have to transmit the regulations. We have no way of knowing when it was put in the mail. So we’re going to look at the registration and the making of the instrument, and, if it’s over seven days, then counsel will ask the regulation-making authority, “Did you transmit it within seven days?” Sometimes, because of various circumstances, the registration does not happen within seven days, but the requirement of the act is that it be transmitted. So we’ll ask the question, and we’ll remind them of their obligation under the Statutory Instruments Act.
Mr. Di Iorio: Wouldn’t this be an appropriate opportunity for us to indicate that there is a penumbra there that has to be resolved? There is a purpose as to why there is seven days, so what happens? Does it happen often that it’s not complied with, or is it always complied with?
Ms. Borkowski-Parent: Usually, especially if it’s regulations made by the Governor-in-Council, the registration will happen the same day. We see those delays when there are regulation-making authorities that are not the Governor-in-Council, bodies like the Nuclear Safety Commission and other such things, piloted authorities.
The consequence of not having them registered, though, is that most regulations come into force on registration, so if you don’t have it registered for 700 days, your regulation is not in force for all of that period of time. You’ve made it, but it just sits there and does nothing.
Mr. Di Iorio: I was just wondering if one could choose the opportune time to send it. That’s the only reason I was highlighting this.
Then there is another thing. It says, “within seven days, in both official languages, which then registers them.” It’s the wording here. It registers them when it receives them within seven days, but then it says it can refuse a registration if it deems that certain sections of the Statutory Instruments Act were not followed.
How can they do that so quickly? How could that exercise be done because it seems to be simultaneously here? How could you do that simultaneously? These regulations, some of them are quite hefty.
Ms. Borkowski-Parent: I think it’s done so quickly because, as a matter of practice, the legal counsel to the Privy Council Office is the Department of Justice, which is also the entity that drafts the regulations and blue stamps them after examining them.
Mr. Di Iorio: They approve their own work?
Mr. Tilson: Just say yes.
The Joint Chair (Senator Day): That’s how they can be so fast.
Mr. Di Iorio: Wow.
Ms. Borkowski-Parent: In addition, the Treasury Board ministers also review the package, so they’re the ones making the regulations. Then it is sent to the Privy Council for registration. But when the Privy Council receives the regulations, it is not the first time they see it. They will have seen it when it was approved for prepublication in Part I.
Mr. Di Iorio: It’s a perfect world.
The Joint Chair (The Joint Chair (Mr. Albrecht)): I’m just wondering if you addressed Mr. Di Iorio’s concern about the fact that those are contradictory messages in the same paragraph and if he would be happier if it was a separate paragraph where it says that PCO can refuse registration on these grounds. Is that your concern?
Mr. Di Iorio: No. My concern is that it says it registers them, but then it says it can refuse. So it says you’re supposed to register it as you receive it, and then you could refuse it. I was just trying to figure out the timeline. How could that be physically possible? We have the answer. The same person who did the work reviews their own work. That’s why I said life is beautiful.
Ms. Borkowski-Parent: I’m just reading the specific wording in the act, if you would give me one second. It’s probably better if I just read it out loud.
The section on refusal is section 7, and it says:
Where any statutory instrument is transmitted or forwarded to the Clerk of the Privy Council for registration under this Act, the Clerk of the Privy Council may refuse to register the instrument if (a) he is not advised that the instrument was, before it was issued, made or established, determined by the Deputy Minister of Justice pursuant to section 4 to be one that would, if it were issued, made or established, not be a regulation; and (b) in his opinion, the instrument was, before it was issued, made or established, a proposed regulation to which subsection 3(1) applied and was not examined in accordance with subsection 3(2).
It ties it back to the examination by the Department of Justice.
Mr. Di Iorio: Within seven days, in both official languages. The PCO then determines or examines whether it complies with the Statutory Instruments Act and, if so, then registers it.
This paragraph should reflect that sequence. It doesn’t. There are steps. You receive it, examine it, and then register it. This one says you receive it, register it and — so they flipped the sequence.
The Joint Chair (Senator Day): So we could suggest wording that says that PCO receives them, which then registers them if and when they are satisfied that they comply with the Statutory Instruments Act.
Mr. Di Iorio: That would be a suitable option.
The Joint Chair (Senator Day): That takes the last sentence and incorporates it into the action of registering, if you could work on some wording there.
Thank you, Mr. Di Iorio.
Anything further on that?
Mr. Tilson: I think it’s quite clear. You read the first sentence “. . . but PCO can then refuse registration,” et cetera. I don’t see a problem with the wording, but that’s just my opinion. It’s clear to me when I read it. I understand what you’re saying, but I don’t agree.
The Joint Chair (Senator Day): We’re trying to think about wording that won’t make it unclear to you but clearer to other people.
Mr. Tilson: Excellent, Mr. Chair. Keep up the good work.
Mr. Badawey: I think as well that we have to ensure that this is tightened up, that if in fact it is going to be refused, there is a reason for it. That has to be communicated.
The Joint Chair (Senator Day): We’re going to ask about the seven days. What’s the magic of seven days? There is no sanction. All of those points, I think, could be in our submission, just asking questions in a number of instances.
Ms. Borkowski-Parent: The seven and days in and of itself — the Statutory Instruments Act states that it has to be transmitted in seven days and not registered in seven days — is where the problem lies, and that is not something that can be fixed by directive. It’s a statutory amendment.
The Joint Chair (Senator Day): And the word “transmit” is used here, which is the same as the Statutory Instruments Act.
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): Is there anything further?
We have a tight timeline on this. Would it be possible for us, if we need, to ask for an extension of time to get our submission in?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): That might be possible?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): We’ll only do that if we need to. We’re putting quite a bit of work on you to draft something and circulate it, and we want comments back. That will take time.
Ms. Borkowski-Parent: I will reach out to Treasury Board.
Mr. Badawey: I want to make a final comment with respect to all of this. When you read it over, to some extent our processes have allowed things to get loose and create or naturally identify loose ends, and we’re constantly in a tug of war with respect to time because of those loose ends. There has never been a mechanism in place to prompt proper dialogue, opinion versus opinion and, therefore, the dialogue to express that opinion and come to a conclusion. That’s what I think we have an opportunity to do here.
The second part of it is to ensure accountable direction so that consequences of the decisions that we or they are making are recognized, and therefore proper directive or directions are taken.
Personally, what I’m trying to do with this document is to use this process to establish all of the above.
The Joint Chair (Senator Day): Would you want some wording along those lines?
Mr. Badawey: No, I think it’s just a mindset. It’s a culture I’m trying to give counsel while they’re putting this together, to keep that in front of mind. The overall goal is to tighten it up, give some definition to it. I think that’s where Mr. Di Iorio was going, too. It goes back to my comment earlier about the timing. Yes, there will be different circumstances. We can identify that. But at the very least, it prompts that dialogue.
So if we say as a committee, for example, that we need this back in a month, it’s going to prompt them to come back and say, “We can’t do it in a month because of,” and then we would respond accordingly.
I go back to my other comment; it prompts dialogue. We don’t have enough of that. All we have is reaction. We’re reacting to them and they’re reacting to us. Let’s just prompt a dialogue, and then we can come to some more accountable conclusions based on that dialogue.
The Joint Chair (Senator Day): Very good point.
Seeing no further comments on that, we’ll follow the action that has been outlined.
I will now pass the microphone to Mr. Albrecht to deal with Items No. 2 and 3 on our agenda.
ACCESSIBILITY OF DOCUMENTS INCORPORATED BY REFERENCE IN FEDERAL REGULATIONS
(REPORT NO. 90)
With Government Response
(For text of documents, see Appendix B, p. 24B:1.)
The Joint Chair (Mr. Albrecht): It’s clear from communication by the government that they don’t agree with the committee’s perspective on shortfalls in this particular regime, so I will ask counsel to walk us through what we feel are the best responses.
Ms. Borkowski-Parent: I will summarize Report No. 90 quickly.
The Statutory Instruments Act was amended in 2015 to allow for ambulatory incorporation by reference, so documents that are incorporated as amended from time to time. This was meant to resolve an impasse between the committee, which considered it was a form of illegal subdelegation, and the Department of Justice, which considered that it was just a drafting technique.
In return, section 18.3 of the act was added to ensure that documents, indexes, rates or numbers that are incorporated by reference are accessible. The act does not specify what “accessible” is. So when the committee first examined the instruments that were made after the 2015 amendments, it asked departments, as part of its mandate to ensure that the requirements of the Statutory Instruments Act are met, what steps they had taken to make a standard that was available in English only, and at a cost, accessible.
The department in question was of the opinion that those conditions met the accessibility requirement of the act. Correspondence followed with the Department of Justice and the Minister of Justice, following which the committee elected to table our report.
Three areas of concern were highlighted in the report: language, cost and temporal application.
On the issue of language, the committee was very well aware of the minimal constitutional requirements stated in the reference Reference re Manitoba Language Rights, which is why they were explained at length in the report. The committee went on to say that by specifying a requirement for accessibility, Parliament must have meant more than the bare minimal constitutional requirement.
Unlike what is stated on page 2 of the government response, the committee never suggested that the constitutional requirements be altered, only that if Parliament went through the trouble of adding a requirement of accessibility, this requirement can only be given full effect if it means more than the bare minimal constitutional requirement that would have applied in any event.
Furthermore, the government response goes on to state that ambulatory incorporation is necessary for the effective cooperation between the federal government and provincial governments, which might enact legislation in only one language.
This is a bit of a non sequitur. The committee never objected to the incorporation by reference of provincial legislation. It’s a practice that does not raise the same validity or access to the law issue, and it has also been confirmed by the courts. In fact, the committee stated as much in its representations during the study of Bill S-2 and Bill S-12, which led to the 2015 amendments.
It remains, however, that a large number of the documents incorporated are not provincial legislation but rather third party standards.
Those are my comments on language.
As for cost, the essence of the government’s argument can be found at the bottom of page 1 and top of page 2 of the response. Essentially, it can be summed up as Parliament must have known that there were over a thousand third party standards that had already been incorporated. It states:
Had Parliament intended to alter the authority of regulation-makers to continue to avail themselves of the expertise of standards development organizations where any fee is not unreasonable, Parliament would have done so clearly.
It bears pointing out that it’s because the committee has consistently and persistently, for well over a decade, argued that regulation makers did not have the authority to incorporate by reference in an ambulatory manner that the amendments to the act were brought forward.
The fact that most of these standards are copyright protected was also addressed under the committee’s report, which underlined initiatives done abroad to bring down that barrier to accessibility. Some of these initiatives are, in fact, being carried at the federal level currently. For example, Transport Canada has entered into an agreement with the CSA Group to provide an online platform that allows registered users free access to safety standards published by the CSA Group and that are referenced in the Transportation of Dangerous Goods Regulations. It remains an isolated initiative but it shows that given the will, it can be done.
The committee had also outlined its concerns with regard to the temporal application of documents incorporated in an ambulatory manner. When modifications to a standard are integrated in the law automatically, it becomes very hard for the citizen to ascertain, at a certain point in time, what the state of the law is. The government response is silent on this point.
Finally, the committee’s report stated a number of recommendations, mainly that ambulatory incorporation by reference be used as a last resort; that regulation makers have to justify its use; that to ensure equal access to the law, documents be in both languages; that regulation makers make available to the public for consultation the materials free of charge, with all previous versions; that a central repository of incorporated material be established; and that regulation makers be required to provide an annual statement.
These recommendations were largely based on models used by other jurisdictions, mainly the United States and New Zealand.
The government’s response states that these recommendations would be too restrictive on the rights of regulation makers to incorporate by reference but concedes that policy direction could enhance the government’s commitment to accessibility.
There are two reasons why this seems insufficient. First, the department’s response is largely based on the assumption that the nature of incorporated materials is so vastly different that it would be impossible to make a general rule regarding accessibility. As of yet, there has been no data provided to support that assumption, so it might be time to ask the Department of Justice to support that claim by providing a complete stock of the documents that are currently being incorporated.
Second, much of the response revolves around the right of regulation makers to incorporate, without giving any consideration to the other actors involved or impacted by the regulatory process. So even with a policy in place, which by nature is administrative and non-legally binding, the only recourse for a citizen who finds that there is a barrier to accessing the law will be to seek redress in a court. This goes against one of the committee’s tenets, namely, that citizens should not have to incur the cost and time involved with legal proceedings to find out the state of the law.
Furthermore, the committee also has a statutory and sessional mandate to fulfill, which at the moment is considerably hindered by leaving the termination of accessibility solely to the regulation making authorities.
Those are my thoughts.
The Joint Chair (Mr. Albrecht): Thank you.
If we go back to our original letter with the points that we wanted to have addressed and the recommendations, then you see the response, there is clearly an impasse. I’m looking to committee members to suggest potential ways forward.
Just a quick question: Has there been any dialogue between the department and counsel to try to resolve any of those issues, or are we primarily relying on paper communication at this point?
Ms. Borkowski-Parent: Paper communication.
The Joint Chair (Mr. Albrecht): Are there initial comments as to how we might proceed? We have an obligation as a committee to stand up for the citizens of Canada who will access these regulations. How far do we go in making sure they are accessible in both official languages at reasonable or no cost? Also, the time frame may not clearly indicated as to when one regulation is superseded by another.
The Joint Chair (Senator Day): At the very end of the government response — and you went over that, counsel — this is the government acknowledging policy direction to regulation-making authorities. A policy direction to regulation-making authorities is a document we just looked at, is it not?
Ms. Borkowski-Parent: Presumably, yes.
The Joint Chair (Senator Day): They’re suggesting that could be enhanced by making certain reference to government’s commitment to accessibility. Is this the time to make reference to that when we’re talking about the document we’ve just looked at — the direction to the regulation-making authorities, all the departments that make regulations — that we should make some specific reference to accessibility?
Ms. Borkowski-Parent: Yes. I believe it was part of my comments that, in light of that, it should definitely be put in the policy that accessibility is a point that regulation makers should give consideration to.
The Joint Chair (Senator Day): And the government is supporting us. That’s what they say. They acknowledge that policy direction and regulation-making authorities could be enhanced.
The Joint Chair (Mr. Albrecht): It doesn’t say “could be enhanced.” It says “could enhance the government’s commitment to accessibility.” It’s a difference.
Ms. Borkowski-Parent: It’s putting in place a policy to address something that is a requirement under an act. It’s not clear how the committee would discharge that function based on the government policy.
The Joint Chair (Senator Day): I would like to see, if possible, a paragraph, maybe under the policy, under the direction to the regulation-making authorities, that they should bear in mind the issue of accessibility, including bilingualism, et cetera — the points we already made.
The Joint Chair (Mr. Albrecht): That was already taken care of in the last communication.
Mr. Tilson: I’ve been waiting for Mr. Choquette to explode. I thought it was a bilingual country, and we seem to be referring to a Supreme Court of Canada decision that is about 25 years old that says — I don’t know what page it is. The best part is I don’t even speak French, but “As the Joint Committee has summarized, the Supreme Court of Canada found, in the Reference re Manitoba Language Rights” — and it gives the citation — “that it is constitutionally permissible where there is a bona fide (or “legitimate”) reason, to incorporate by reference unilingual material in a legislative instrument.”
I’d like to hear Mr. Choquette’s comment about that.
Mr. Choquette: Thank you for this invitation. I am sorry, but I missed the beginning of your presentation. And I know that my colleague Mr. Pierre-Luc Dusseault would have much to say. He quickly explained the committee’s position to me, and I support it. Indeed, I believe that all incorporated documents must be accessible and offered free of charge in both official languages. We continuously fight to promote the country’s two official languages. In Canada, we have two official languages we can be very proud of. We should also add indigenous languages, eventually. In fact, we should be able to express ourselves in First Nations languages in the House of Commons. I hope that that will happen someday, but that is another debate. For the time being, it is inconceivable that the section on accessibility not be better defined and better explained. That is what I understand.
I have a question for you. I missed the beginning of your intervention, but you said that we could ask the Department of Justice to provide incorporated documents, because according to your understanding, it is not clear that it is as difficult as claimed to make the documents accessible in both official languages free of charge.
Could you provide further explanations on that?
Ms. Borkowski-Parent: The essence of the argument presented in the government’s response is that it is impossible to establish a rule to define accessibility because the documents incorporated by reference are so different one from the other. It would thus be difficult to establish a general rule such as the one proposed by the committee, that is to say to make everything accessible free of charge in both official languages.
I have no supporting data aside from what we observe when we review regulations. There are generally three types of documents incorporated by reference: provincial legislation, international agreements, or technical standards prepared by third-party organizations.
It is not clear to us why the government could not establish rules that would at least apply to those three types of documents. This gives to rise to the idea of creating a list of everything that has already been incorporated into regulations, in order to determine whether it would really be burdensome to create rules governing accessibility, rather than letting departments settle the requests on a case-by-case basis.
Mr. Choquette: Do the incorporated documents represent tons of pages? Are there thousands of pages, or millions of them? We have an excellent Translation Bureau that is generally called upon in Parliament by members, senators and other people who work in the House of Commons. The Translation Bureau is very efficient and does very good work. I would like to know how many pages you are talking about and in what language those documents are. If I put myself in the shoes of an anglophone, if these documents were in Finnish, neither an anglophone nor a francophone in Canada could have access to them. This makes no sense. I am trying to understand how a Canadian could find his way through all of this.
That brings me back to the proposal on incorporated documents which you submitted to the Department of Justice. Was that request made? Does the committee intend to make the request? I apologize for taking up a lot of time, given that I am not a permanent member of the committee.
Ms. Borkowski-Parent: The request was not made; the government raised this in its response, that is to say that it is a suggestion the committee could act on. I meant a list of what has been incorporated and not necessarily the documents themselves. Currently, large numbers are being bandied about and people say there are thousands of technical standards that have been incorporated, but we don’t really know.
Mr. Badawey: We’re looking at two documents here, numbers 2 and 3. On number 2, we are looking at recommendations. The recommendations do take into account the concerns that have been raised thus far, and we see a response from the department.The response from the department states that although they’re in disagreement with the position of the joint committee’s report, the need to amend the Statutory Instruments Act is acknowledged and that policy direction to regulation-making authorities could enhance the government’s commitment to accessibility.So although they are somewhat making comment on our report, they are not really coming to a conclusion with respect to what direction they will take.
The question would be: Do you get anything more out of this than what I’m reading?
Ms. Borkowski-Parent: No. The only proposed solution is that they’ve dismissed all the committee’s comments to have the Statutory Instruments Act amended by putting in place a policy direction.
Mr. Badawey: Is there a method or a mechanism that we can actually put forward in response to this to push them off the fence?
Ms. Borkowski-Parent: The committee could table a further report expressing its views on the response — that’s one aspect — or raise the issues with other stakeholders. I’m thinking of official languages, notably, that the Commissioner of Official Languages and Parliament’s committees on official languages might have an interest in that matter. Further than that, I don’t see any other mechanism.
Mr. Badawey: Basically what you’re saying is we really don’t have any authority to push them further to enact the recommendations that we established.
Ms. Borkowski-Parent: The committee has a mandate to follow under the act. The act says documents have to be accessible, and it’s within the committee’s right to decide what it means in lieu of further indication in the statute. So the committee could adopt its own vision or policy based on the recommendations of the report — mainly cost and temporal application — continue to ask regulation-making authorities the steps they have taken, and continue to pursue the issue with regulation-making authorities.
Mr. Badawey: My last question would be: If, in fact, they are not going to embed this into their policy, would it be prudent for us to simply just add it to every request we make? Basically, as part of that recommendation there would be a (b) or a (c) whereby we can actually identify our expectations.
Ms. Borkowski-Parent: That’s a valid point because no matter what happens with this, the committee still has to do its work and we will need guidance from the committee on how we will approach all the instruments that come in and that have things incorporated by reference.
As a matter of practice, we raise it automatically: “What have you done to make it accessible?” Now that the committee has a position, the committee’s position is free of cost, in both official languages, and do they have their previous versions available?
Mr. Badawey: What’s equally important, if not more so, is that we have that authority. From what I’m hearing, right now we don’t have any authority with respect to them moving in the direction we’re recommending. But when we actually respond to individual regulations that we do on a daily basis, or at least on a bi-weekly basis, we then do have an authority based on the response we would give, and we can make that part of our response.
Ms. Borkowski-Parent: The committee has no authority to amend the act itself. It would have to be brought forward in a bill, so that’s where the problem lies.
Mr. Badawey: But we can, under authority, individually, put those directives forward as a part of our recommendations?
Ms. Borkowski-Parent: Yes.
Mr. Tilson: I think my concerns have been addressed. My immediate reaction was that, regarding Mr. Choquette’s comments, there hasn’t been a response. If we’re only going to deal with the French language in something, the anglophones will be upset; and if we only deal the other way, the francophones will be upset. This committee is bilingual, the country is bilingual and everything that goes on in this place should be bilingual.
I’m rather surprised that this is here. If we don’t have the authority, I think we should do whatever we can to ensure that everything is bilingual. The Supreme Court of Canada, which I don’t always agree with, said that where there is a bona fide or legitimate reason, you can be unilingual. That decision was made 20-some odd years ago and it’s nonsense.
The Joint Chair (Mr. Albrecht): To follow up to your question, Mr. Tilson, this feeds on Mr. Badawey’s point. On the question of reacting individually to these regulations as they come, even if they have been incorporated by reference and the materials aren’t in both languages, technically can this committee say if it is not in both official languages, we disallow the regulation?
Ms. Borkowski-Parent: You wouldn’t disallow the regulation, but you would disallow the provision.
In all fairness, the committee can raise the issue on a case-by-case basis. I think we’re just going to get a similar response as to what is stated in the government response, which is, “Thank you for your comments, but no.”
Mr. Badawey: Don’t we have a mechanism, then, to follow through on it?
The Joint Chair (Mr. Albrecht): We can take additional steps on an individual basis, but does that improve the efficiency of government and this committee if we’re constantly going back over the same ground on the same point? It would be nice if we could have a blanket agreement to deal with all of them.
Mr. Oliver: I’m trying to figure out where this takes us. We’re clearly at an impasse. There is no agreement between our committee and what the government has written back in terms of their interpretation. As I understand it, our option is we define accessibility and then apply that lens to every regulation we look at.
If it doesn’t pass our definition of accessibility, we have the power to go all the way up to disallowance. That’s really the route we’re headed. We’re going to find a reg that has an egregious translation problem or cost to stakeholders to acquire the third party reference material, and we’re going to run it all the way up.
Is that where we’re headed with this, or is there any other route? Do we meet with the author of this opinion? Do we do an interview with them, ask them to attend the committee so that we can hear their perspective directly before we go to this dire outcome?
Ms. Borkowski-Parent: Possibly. That’s definitely an option. Pushing the issue on a macro basis by another report, by raising the issue with other stakeholders, is another way of having a more global resolution than on a regulation-by-regulation basis?
Mr. Oliver: How do we do that? We would then run a stakeholder consultation on the definition of accessibility?
Ms. Borkowski-Parent: No, I meant the Official Languages Committee. A letter could be sent to the chair, raising the issue. Maybe that’s something the committee would like to take a look at. It just pushes the issue a little more.
Mr. Oliver: Is there a list of other parties that you would identify for the committee?
Ms. Borkowski-Parent: We could definitely to do that.
The Joint Chair (Mr. Albrecht): If someone is prepared to make a motion that we do bring a representative from the Department of Justice in to explain why we can’t move on this, I’m certainly open to that.
Anybody else? I didn’t see any other hands that want to speak to this issue right now.
Are you through, Mr. Oliver?
Mr. Oliver: I’ll make that motion.
The Joint Chair (Mr. Albrecht): Okay, move that.
Mr. Oliver: That the committee request representatives from the Department of Justice — the minister, and then she’ll send her others — to come to speak to this impasse.
Mr. Badawey: Just a quick comment. I think it’s a great idea. As I said earlier, it prompts that dialogue. If we can just preface that invitation with why they are coming out so that they are fully prepared and don’t have to go back and then come back again. So if we can give them just a short summary of what our concerns are and what we want to discuss.
Mr. Di Iorio: A comment also.
Everything we do we try to make evidence-based, and I’m frankly surprised that this reply would not be evidence-based. I agree with what Mr. Oliver said. It would be appropriate, when the person comes, to provide us with some evidence of the statements contained in this document. Certainly we’re very open to listen and consider the evidence and accept it also, but it would be, I would say, an element of courtesy to provide it to the committee.
The Joint Chair (Mr. Albrecht): Let’s vote on the motion. All agreed that we can ask the Minister of Justice and/or her officials to the appear before the committee to discuss this? All in favour?
Hon. Members: Agreed.
The Joint Chair (Mr. Albrecht): Okay, that is approved.
Mr. Oliver: Are we also, then, pursuing other stakeholders? So would we, at our next meeting, maybe have a list of potential stakeholders with other groups to see if the definition of accessibility that we’re promulgating is the right one?
Ms. Borkowski-Parent: I think that could be done as a second step. Maybe the department can first provide a stock of what’s out there in terms of incorporated documents and explain their response, and, as part of the committee’s consideration of next steps, it could decide to have a study on accessibility.
MARGINAL NOTES (REPORT NO. 91)
With Government Response
(For text of documents, see Appendix C, p. 24C:1.)
The Joint Chair (Mr. Albrecht): We’ll move on to Item No. 3 on our agenda, Marginal Notes. I had circulated, as you arrived today, an example of marginal notes in the Railway Safety Management System Regulations, where you have the one format with the notes in the margin and the other format with the notes incorporated as headings. So I think you see graphically the difference that it makes. I’m going to ask counsel to walk through the response, as well as her response to the response.
Ms. Borkowski-Parent: The question is of importance because part of the text that does not form part of the enactment because of the Interpretation Act was moved in the enactment, such that they look the same. The report already discussed at length the case law. The government response does not bring anything new. It’s a rehash of the previous arguments that were already submitted, debated, addressed and rebutted in the report.
In any event, the department is apparently looking at options to clarify matters. There’s no word yet as to what that might entail.
The Joint Chair (Mr. Albrecht): Committee members, do we want to keep pushing on this, or what’s your approach?
Mr. Tilson: When you look at statutes, everyone looks at the notes. The lawyers look at the notes. The judges look. I’m talking about the things in the margins. I’ve never heard the argument that that’s part of the legislation.
Legislation is difficult, as it is, to understand. Those notes in the margins, number one, save time and, number two, help you to perhaps better understand what those sections say.
Who has said that the notes in the margins are part of the legislation? It’s like those little summaries at the beginning of each bill or each act. That’s not part of the legislation either. What are we going to do with that? Are we going to get rid of that too?
I think the government’s role is to make it easier in terms of understanding what legislation says. Surely to goodness everyone doesn’t have to be a lawyer to understand this stuff. Even lawyers don’t understand this stuff. It helps a great deal.
You’re a lawyer; I’m sure it helps you.
Ms. Borkowski-Parent: Yes.
The objection is based purely on the fact that they were moved into the text such that you can’t distinguish. So it’s amending regulations without going through the process.
Mr. Tilson: I understand that. Put them back out.
The Joint Chair (Mr. Albrecht): That’s your position, that we should leave them out and they should not be continuing on by incorporating them as headings?
Mr. Tilson: Yes.
Mr. Badawey: If I can just make a recommendation, or lack thereof because I don’t think one is needed.
The last paragraph in the government’s response does recognize that “marginal notes” is no longer an appropriate label for notes, and, with that, they’re looking at different options to clarify matters, including those suggested by the joint committee in its report. With that, am I to understand that this is just going to be a work-in-progress? They’re going to look at considering different options? They’re going to work with you, us, and come back with recommendations?
Ms. Borkowski-Parent: I don’t think they’re going to work with us, but they’re supposed to find a solution. So the committee could ask for an update as to where they are at and what they have picked.
Mr. Badawey: I would recommend that.
The Joint Chair (Mr. Albrecht): Should we ask for a response within six months, three months? What’s appropriate?
Mr. Badawey: I would say three months.
The Joint Chair (Mr. Albrecht): Three months.
The Joint Chair (Senator Day): We could be a bit cheeky in the letter and say, “We assume that three months is enough for you to currently and diligently make some proposals.”
The Joint Chair (Mr. Albrecht): Is there general agreement that we allow this last paragraph of their response to be satisfactory and expect an update on their progress? I know that Mr. Tilson isn’t thrilled with that.
Mr. Oliver: Would it be too much to ask to see a copy of the third document before they table it, or is it something we would only get after the fact?
The Joint Chair (Mr. Albrecht): A copy of which document?
Mr. Oliver: They said they’re going to work on a third —
The Joint Chair (Mr. Albrecht): Third report. That was our report.
Mr. Oliver: Oh, our report. Okay.
The Joint Chair (Mr. Albrecht): We suggested these changes in our third report to Parliament on March 24. I tabled those in the house on March 24.
Mr. Oliver: It says the government is currently and diligently looking at options to clarify matters — oh, it’s our report; sorry.
The Joint Chair (Mr. Albrecht): We’re asking them to ask what progress is being made now with the suggestion they’re making in this last paragraph.
Mr. Oliver: Just change the font so it doesn’t look like a heading, right?
The Joint Chair (Mr. Albrecht): I think we’re all in agreement on that. I don’t see any disagreement. We will move forward with that.
(The committee adjourned.)