REGS Committee Report

Appendix

Executive Summary

It is the position of the Joint Committee that absent an express grant of authority or a clear indication to the contrary in the enabling statute, the incorporation by reference in regulations of external material is proper only where a fixed text is incorporated, as opposed to a text “as amended from time to time”.

This view is rooted in the rule against subdelegation, which reflects the principle that a person to whom a power to legislate has been delegated may not redelegate that power to someone else unless clearly authorized to do so by law. It has always been the view of the Committee that the incorporation by reference of external material into regulations “as amended from time to time” amounts to a subdelegation of regulation-making power. This is so given that the body amending the incorporated material will determine the content of the regulations, and not the authority on whom the power to make the regulations has been conferred.

The current position adopted by the Department of Justice is apparently that open incorporation by reference involves no element of subdelegation of legislative powers. This conclusion seems to be drawn chiefly from an analysis of certain court decisions of the Supreme Court of Canada concerning the “inter-delegation” of powers between the federal and provincial governments and concerning constitutional language requirements.

As used in constitutional law, “delegation” refers to the delegation of federal power to the provinces, or of provincial power to the federal level of government. Such a delegation of legislative power has been held by the courts to be unconstitutional on the ground that it disturbs the allocation of powers between the federal and provincial governments In the context of subordinate legislation, however, the notion of subdelegation is concerned with the relationship between the delegate possessing regulation-making powers and the authority that has delegated these powers. A delegate can only possess those powers conferred on it by the delegator. There can be no doubt that a delegator may confer on its delegate the power to in turn subdelegate the power to someone else. The question to be answered in each instance is whether there has in fact been a conferral of such a power. Issues of subdelegation are merely aspects of the broad question of whether a delegate is acting within the scope of the delegate's authority.

It has also been claimed that the conferral of a power to make regulations in all instances carries with it the power to incorporate by reference external materials as they are amended from time to time. Support for this is said to be found in the judgment of the Supreme Court of Canada in Reference re Manitoba Language Rights, a case dealing with the application of constitutional language requirements to referentially incorporated documents. The Department of Justice has argued that the same grounds justifying the incorporation by reference of existing material in only one official language will also justify the open incorporation by reference of external material in regulations, regardless of the terms of the relevant enabling powers. This ascribes to the reasoning of the Court a scope it simply does not have.

Several other court decisions have been cited which are claimed to lend support to the position advanced on behalf of the government. None of these can be taken as standing for the proposition that in every case a delegate may use open referential incorporation. It should be emphasized as well that there are Canadian court decisions which have held that an ambulatory incorporation by reference did constitute an unlawful subdelegation of authority.

Moreover, in a great many statutes Parliament has expressly conferred the power to make regulations incorporating external documents “as amended from time to time”. Accepting the position advanced by the Department would lead to the conclusion that this provision is completely unnecessary.

The Joint Committee can only conclude that the incorporation of external material into regulations “as amended from time to time” should, in the absence of clear authority, be seen to be illegal. The only relevant issue is whether in each specific instance the delegate has been given the power to make open incorporations by reference. The question is not whether this constitutes a subdelegation, but rather whether such a subdelegation has been authorized by Parliament.

It is not unusual for individual statutes to expressly grant power to make regulations incorporating external documents “as amended from time to time”. In a number of jurisdictions, the further step has been taken of enacting a general rule permitting open incorporation by reference. Other jurisdictions have legislated to expressly prohibit open incorporation by reference in the absence of explicit authority. In assessing the desirability of this sort of blanket approach, it should be kept in mind that incorporation by reference, when it provides for the incorporation of material as amended from time to time, means that Parliament's delegate is in effect permitted to select another person or agency to perform a part of its law-making power in its place.  On the other hand, the conclusion could be reached that there can be little objection to the enactment of a general provision permitting open incorporation by reference so long as the incorporation by reference of material “as amended from time to time” is in relation to classes of documents or material that do not contain substantive provisions and is limited to open incorporation of such things as technical standards.

Incorporation by reference also gives rise to concerns relating to accessibility to the law, in that although incorporated material becomes part of the regulations, the actual text of that material must be found elsewhere. Such concerns are heightened where material is incorporated “as amended from time to time”, in that members of the public may have difficulty ascertaining precisely what the current version is at a particular point in time. Where open incorporation by reference is to be permitted, provisions should also be put in place to require the regulation-maker to ensure that the current version of an incorporated document is readily available to the public, as are all previous versions that were incorporated.