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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 17 - Evidence - November 22, 2012

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OTTAWA, Thursday, November 22, 2012

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for a briefing on Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.

Senator Bob Runciman and Ms. Chris Charlton (Joint Chairs) in the chair.

[English]

The Joint Chair (Ms. Charlton): As a consequence of our discussions about Bill S-12 at the last meeting of this committee, we had asked that counsel prepare an in-depth briefing for us on the bill. We have since received a letter of invitation from the Standing Senate Committee on Legal and Constitutional Affairs for the joint chairs to appear before that committee with respect to Bill S-12. I would suggest that this morning we start with the briefing by counsel, entertain questions on that briefing, and then have as a decision point before us whether to appear before the Senate Committee on Legal and Constitutional Affairs and to accept its kind invitation.

Peter Bernhardt, General Counsel to the Committee: Members will have a paper version and PowerPoint slides that summarize what we will go through this morning. We propose to have Mr. Rousseau speak first to give some background on incorporation by reference, touch on the issues that it gives rise to and summarize the history of the committee's involvement in the matter. After that, I will go through the provisions of Bill S-12. Hopefully that will take only 15 to 20 minutes, after which the committee will have lots of time for questions and discussions.

[Translation]

Jacques Rousseau, Counsel: As general counsel was saying, I will start by reminding you what incorporation by reference is, the reasons it is used, the concerns it raises, the codification of the general rules for its use and, very briefly, the approaches of other jurisdictions.

First of all, what does incorporation by reference mean? When Parliament confers a power to make regulations, the regulation maker usually exercises this power by drafting the text of the regulation to be enacted. The regulation maker may also decide that the contents of an existing document are what should be used in the regulation.

Rather than reproducing it word for word, the regulation maker can simply refer to the title of the document. The legal effect of this incorporation by reference is typically described as being to write the words of the incorporated document into the regulation just as if it had actually been reproduced.

Different types of materials may be incorporated by reference, including other legislation from the same or another jurisdiction, and non-legislative texts such as technical standards, international agreements or administrative manuals.

In Canada, the incorporation by reference of an existing document has always been considered no more than a drafting technique, and a regulation maker need not be granted any specific power in order to use this technique. This is usually referred to as closed or static incorporation by reference.

Static incorporation by reference results in the incorporation by reference of the relevant material as it exists at the time it is made part of the regulation. If the material is amended after its incorporation, the amendment will not be automatically incorporated. A regulation-making authority wishing to adopt a subsequent amendment to the referentially incorporated material will have to amend the incorporating regulation. The committee has never taken issue with this type of incorporation by reference.

An enabling provision may also confer on a regulation-making authority the power to incorporate by reference future amendments to existing material. One way in which this can be achieved is to expressly provide in the enabling statute that regulations may be made incorporating material as amended from time to time — an action referred to variously as open, ambulatory, dynamic or rolling incorporation by reference.

Once material is incorporated as amended from time to time, any change to the incorporated material will automatically become part of the incorporating regulation.

Now for the reasons. There are a number of legitimate reasons for the use of incorporation by reference. These include the need for federal-provincial cooperation, the value of relying on technical standards developed by non- governmental bodies, and harmonization of standards and requirements internationally.

From a purely bureaucratic perspective, there is also convenience in not having to reproduce documents, and ambulatory incorporation by reference removes the need to amend the incorporating regulation each time the incorporated material is revised.

Moreover, ambulatory incorporation of material generated by the regulation maker is frequently justified as being a more flexible approach. What this really means is that it allows rules to be imposed without having to go through the regulatory process.

Given all of these factors, it is not surprising that in recent years, there has been a noticeable increase in the use of incorporation by reference in Canadian federal delegated legislation. In many ways, we have now moved into the post- regulations era, with more and more rules of conduct found, not in acts of Parliament, not in regulations, but in other documents. Incorporation by reference, in particular ambulatory incorporation by reference, is one aspect of this. There is no doubt that recourse to this technique will only increase.

Moving to the concerns arising from the use of incorporation by reference. The use of this technique, however, gives rise to issues concerning the preservation of Parliament's choice as to the delegate on whom it confers law-making powers, the form by which the resulting measures are established, and access to those measures by the persons required to comply with them. It is a well-established legal 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. In relation to regulations, this means that a given authority, whether it be the Governor in Council or a minister, board or commission, that is empowered by statute to make regulations must not, in the absence of a clear grant of power to do so, authorize another person or body to act in its place. This is intended to protect Parliament's choice as to who is to make the rules.

If Parliament gives the Governor in Council the power to make regulations governing a particular matter and the resulting regulation simply incorporates a CSA standard as amended from time to time, who is really making the rules, the Governor in Council or the CSA?

It has always been the committee's position that absent an express grant of authority or a clear indication to the contrary in the enabling statute, the incorporation by reference of external material is proper only where a fixed text is incorporated, as opposed to a text as amended from time to time.

The current position taken by the Department of Justice, however, is apparently that open incorporation by reference involves no element of subdelegation of legislative powers. This has led to an ongoing dispute that Bill S-12 is intended to resolve. A second, related, concern is that where material to be referentially incorporated originates with the regulation-making authority itself, this technique may be used to circumvent the regulatory process by the incorporation of substantive rules of conduct. Take, for example, an aviation regulation that simply incorporates a Department of Transport manual as amended from time to time. Any required changes can simply be added to the manual without any need to amend the regulations. This avoids the need for examination by the Department of Justice, registration and publication, not to mention Treasury Board requirements for consultation and impact analysis and, for that matter, the government's one-for-one rule. All this aside, a power that Parliament has decided was to be exercised by the Governor in Council by the making of legislation will now effectively be exercised by the Department of Transport on the basis of administrative discretion.

Finally, incorporation by reference gives rise to concerns as to the accessibility of the law. If ignorance of the law is no defence, the other side of this principle is that the law must be available to citizens. While incorporated material becomes part of the incorporating regulations, the actual text of that material must be found elsewhere. There are, in fact, a great many documents that are now incorporated by reference in regulations that are not accessible according to any reasonable interpretation of that term. Numerous standards developed by private organizations are available only upon purchase, and may carry a significant price. Others are so obscure as to be virtually untraceable. While government departments and agencies may well have copies of all of these standards and other documents, no attempt is made to make the public aware of this or to provide any information as to where within the department they reside, even assuming they are available to be consulted by the public. Such concerns are heightened where material is incorporated as amended from time to time. Even if one has access to a particular standard, if that standard is incorporated as amended from time to time, how is one to know whether the copy is current?

Moving on to codification. In the government's response to the committee's report, the Minister of Justice proposed that a legislative solution be pursued to resolve the impasse between the Department of Justice and the committee, and to clarify the principles governing the use of ambulatory incorporation by reference in federal regulations.

Clarity is, of course, a good thing, but the concerns must be taken into account, not only in deciding on the types and sources of material that may be incorporated by reference as amended from time to time, but also in shaping unproved mechanisms for the handling of such material by regulation-making authorities. In its recommendations to the Minister of Justice, the committee proposed a regime whereby the ambulatory incorporation by reference of Canadian federal or provincial legislation should generally be permitted. However, when such incorporation concerns foreign legislation or material produced by the federal government or created by non-government bodies, incorporation by reference as amended from time to time should be permitted only if the terms of the particular enabling statute allow.

Now, I will briefly speak to how other jurisdictions deal with this matter. Australia, New Zealand, Manitoba and Ontario have enacted general rules for open incorporation by reference. Some jurisdictions permit it, while others expressly prohibit open incorporation by reference in the absence of explicit authority.

I will conclude by saying that in assessing a blanket approach, it should be kept in mind that the result of open incorporation by reference of material is that Parliament's delegate is, in effect, selecting someone else to perform a part of its law-making function. This is so regardless of whether this is seen as constituting a formal subdelegation. Clearly, it is too formalistic an analysis to rely on the fact that the incorporating regulation sets out the rule that must be followed, and that therefore the incorporated document is merely technical. On that note, I will hand the floor over to my colleague for a clause-by-clause study of Bill S-12.

[English]

Mr. Bernhardt: With that background, we come to Bill S-12 itself. If Bill S-12 is enacted, general rules governing incorporation by reference of a document as amended from time to time will become part of the Statutory Instruments Act. The bill will add them as sections 18.1 to 18.7.

As a preliminary note, I suppose there is no doubt that the subject matter of the bill, if not the bill itself, falls within the committee's mandate. The committee's general order of reference authorizes the committee to inquire into and report on appropriate principles and practices in the drafting of powers enabling delegates to make subordinate laws in the enactment of statutory instruments and in the use of executive regulation. Clearly, that is what this bill is dealing with.

The base principle set out in the bill is found in section 18.1(1). It provides that the power to make a regulation includes the power to incorporate in it, by reference, a document or part of a document as it exists on a particular date or as it is amended from time to time. In other words, a regulation-making authority could always use open incorporation by reference. Obviously, this is a much broader approach than advocated by the committee.

There are limits, however, and those are set out in 18.1(2). There are three limits. First, it sets out a general exception to the open incorporation by reference rule that says a regulation maker may not use incorporation by reference in connection with a document it has produced itself, either alone or jointly with someone, another person or body in the federal administration.

Then we have the general exception that says open incorporation does not apply to things the regulation maker itself has created. Then of course, being modern legislation, we have exceptions to the exception. First, if the document contains only — in the words of the bill — elements that are incidental to or elaborate on the rules set out in the regulation, and the incorporation is of a particular date, the regulation maker can incorporate their own material. That would be a closed incorporation by reference. That is consistent with the committee's position. As was mentioned earlier, the committee has never objected to a closed incorporation by reference: that is, to an existing document as it exists on a stated date.

Of course, this is to ensure that the regulation-making authority cannot circumvent the regulation-making process by making the substance of a regulation in a separate document and incorporating that as amended from time to time; this would prevent that.

Second, if the incorporated material is reproduced or translated from a document produced by some other person or body, it can be incorporated by the regulation maker. That is to say, if you had a standard from a German engineering institute, for example, and you wish to incorporate that, the department prepares a translation of that into English and French and it can then incorporate that.

I think the purpose here is to clarify that it is not really the regulation maker's own document. They have translated it, but the actual document was not produced by the regulation maker. It does not say expressly, but presumably that would permit that document to be incorporated as amended from time to time, as well.

Finally, the regulation maker can incorporate a regulation that it has made as amended from time to time. If the regulation maker has another regulation and he wants to adapt that and bring it into a second regulation that he is also making, he can do that as amended from time to time. Again, I think that is consistent with the committee's position. You do not have a problem there with subdelegation of authority because it is the same regulation maker making the two regulations. You will not have a problem with access to that other regulation as incorporated because it will be registered, published and subject to the full regulation-making process. Therefore, there is not really a problem in incorporating back and forth between federal regulations, even if they are made by the same person.

I should note, however, that nothing would prevent a minister from incorporating a document produced by another federal government body as amended from time to time. There are examples of this, for instance, typically Treasury Board guidelines. We see these often in regulations, such as a list of allowable expenses for some official and what it will say. Sometimes it will set up an amount and sometimes it will say "the amounts decided in accordance with the Treasury Board guidelines as amended from time to time." That would be permissible here.

We move on to proposed subsection 18.1(3), which deals with formulas. That is another issue the committee will be very familiar with. This subsection would permit the use of formulas in which at least one of the factors will vary after the regulations are made. The committee has seen, for instance, an interest rate at prime plus one, or imposing a fee that will automatically increase with increases in the consumer price index down the road.

Under those types of formulations, the actual amount of the fee or charge will depend on the future actions of some other person. The committee has always viewed this as a subdelegation of the power to determine the amount of a fee. Proposed subsection 18.1(3) would, in effect, provide that every regulation-making power is to be read as containing a power to impose this sort of formula.

It also bears noting that this would permit the adoption of indexes, rates and numbers established by all bodies other than the regulation-making authority. Again, you would not be able to incorporate your own material this way, but you could, as I say, incorporate something like a consumer price index or Treasury Board manuals and the like.

Proposed subsection 18.1(4) defines regulation-making authority for the purposes of the relevant provisions 18.1(2) and (3). It extends what you might normally think of as a regulation-making authority. For example, if the authority is the Governor-in-Council or the Treasury Board, then the minister who recommends the regulation, the minister who is accountable for the administration of the regulations, and any other person or body for which the minister is accountable are also considered the regulation-making authority. In cases where the regulation-making authority is not the Governor-in-Council, the Treasury Board or a minister, the regulation-making authority will include whatever minister is accountable to Parliament.

I think the idea here is to prevent incorporation of materials produced under the responsibility of the same minister but under another aspect of that minister's power. It would prevent "shuffling." You say, "Well, I cannot incorporate my own material as amended from time to time, but I have another responsibility under another act and I will do it there and then use my power and switch." It extends to everything that minister is responsible for. That will all come within the definition of regulation-making authority.

A very important provision, then, is proposed section 18.2, which says:

The powers conferred by section 18.1 are in addition to any power to incorporate by reference that is conferred by the Act under which a regulation is made and that section [18.1] does not limit such a power.

This makes it clear that the powers conferred by section 18.1 will, in many instances, expand regulation-making powers now found in federal acts. Section 18.1 therefore is more than a mere codification of the availability of incorporation by reference as a drafting tool. An example would be a power to make regulations prescribing a standard. In the committee's view, you would not be permitted an open incorporation by reference of an external standard. The existence of general provisions such as we have in section 18.1 would broaden the scope of such powers. I think it is safe to say hundreds, if not thousands, of regulation-making powers now found in federal legislation will be broadened in this way.

At the same time, there are also statutes that now confer a blanket power to incorporate material as amended from time to time, regardless of its source. That expressly now would allow a regulation maker to incorporate their own administrative material. I think there are examples of that in the Aeronautics Act and the Food and Drugs Act. By saying that nothing in section 18.1 limits those powers, section 18.2 would make it clear that the limitations set out in 18.1 would not apply to these broader powers where they exist now.

We will move on to proposed section 18.3. As has been talked about at some length already, incorporation by reference raises accessibility concerns. The content of the material will be found outside the regulations. Where materials are incorporated as amended from time to time, these concerns are heightened. It will be even more difficult to know which version of a particular document is applicable at any given time. It may be thought that some questions arise from 18.3 in that it is rather vague. It provides simply that regulation-making authorities must ensure that incorporated material is accessible.

The obvious question is what constitutes "accessible"? Is it sufficient to provide the name and address of the head office of the body that created the material? Is it sufficient simply to give the name of the body that created material? If the material is only available on payment of a fee, is that accessible? If copies of the material are only located outside the area where the person lives or indeed outside Canada completely, is that accessible? If it is available on the Internet, is it sufficient to provide an Internet address? Must other contact information be provided? If the material is only available in one official language, is that accessible to a person not necessarily fluent in that language? At the end of the day, it will be left to the courts to decide, when these issues come up on a case-by-case basis, whether material is accessible in a particular instance.

You can contrast this with requirements you see in some other jurisdictions. For example, a regulation maker could be required to have copies of the material available to those who request it. If a document is incorporated by reference, would there be any objection or requirement to keep a copy of that document and to make it available to the public? Some jurisdictions have even set up a central registry or repository of incorporated documents that the public can go to.

In making its recommendations to the Minister of Justice, the joint committee referred to a number of these jurisdictions and stated that it considered the clear and specific notice and availability provisions would be preferable to a simple, more general obligation to make things accessible.

At the end of the day when you are talking about accessibility, it comes down to a fundamental question: If material incorporated by reference is considered to form part of the regulations, is there any reason in principle that this material should not be just as accessible as the regulations itself? I leave that question for the committee, of course.

New section 18.4 clarifies that simply because a document is incorporated by reference in a regulation, it does not need to be registered or published in the Canada Gazette. It would appear to permit publication of incorporated materials, although it is not required. This would not affect any individual statute that contains a particular publication requirement in a particular instance.

Proposed section 18.5 creates an evidentiary presumption for court proceedings relating to proof of the document, the index, the rate or the number that has been incorporated. In the case of a regulation, the Statutory Instruments Act provides the publication in the Canada Gazette is proof of the regulation in court, and because the incorporated document is not going to be published in the Canada Gazette, you need some other rule to be the equivalent of that rule. That is set out in section 18.5.

Senator Moore: What is the rule? How is that covered off?

Mr. Bernhardt: The Crown produces a copy of the incorporated document and attests that this is the proper version of the document that was incorporated. That is accepted in court as proof of the document.

Proposed section 18.6 provides a defence in that it states that a person is not liable to be found guilty of an offence or subjected to an administrative penalty for contravening incorporated material if the material was not accessible to the person. A similar defence exists in the Statutory Instruments Act concerning contravention of a regulation that has not been published in the Canada Gazette. The defence reflects a recommendation made by this committee. It bears pointing out, however, that it would allow for the prosecution or administrative sanction of a person for the contravention of the material incorporated by reference, even if the regulation maker took no steps to ensure that it was accessible, as long as it was otherwise accessible. If it was accessible somewhere else, even if the regulation maker has failed to meet its duty under section 18.3, you can still secure a conviction because it was accessible elsewhere. The effect of this provision turns on the meaning of "accessible."

The committee has always argued that this defence is necessary but is not a complete substitute for clearly stating requirements to make incorporated material accessible. Obviously, a defence can only be relied on after a person has been charged and comes before a judge. A court may consider whether there was sufficient access, but this does not address the question of providing access in the first place.

New section 18.7 is interesting in that it confirms that current open incorporations by reference found in federal regulations are valid if they meet the requirements in section 18.1. This reflects the position of the Department of Justice that no express authority is required now for open incorporation by reference. In the committee's view, section 18.7 would validate retroactively a large number of provisions that were made without lawful authority. It is also a bit difficult to reconcile the statement that they are confirming open incorporation by reference found in federal regulations at present with the statement in section 18.2 that the powers conferred by 18.1 are in addition to existing powers. On the one hand, they are confirming the existing powers while on the other hand, they are saying that they are adding to existing powers.

Clauses 3 and 4 of the bill amend the French version of the Statutory Instruments Act and the regulations to replace the term "autorité réglementante" with "autorité réglementaire." This is simply a drafting change of little consequence.

That concludes our remarks, which, I apologize, were a little more lengthy than we had intended.

The Joint Chair (Ms. Charlton): Thank you for that thorough briefing, counsel.

I propose that we proceed in a couple of ways. First, perhaps we should open the floor to questions about the briefing, either on the larger issue as presented or the bill specifically. Once we have disposed of questions and answers, we will proceed to the question that is before the committee today with respect to appearing before the Standing Senate Committee on Legal and Constitutional Affairs.

Are there any questions to counsel about the presentation?

[Translation]

Senator Bellemare: I have a question for our expert. I paid close attention to what you told us about Bill S-12. My question falls slightly outside that scope. The economic world we live in is increasingly interdependent, a world where specialization happens at the global level, and we are seeing all kinds of regulations, voluntary or not, being developed, whether in a lawful or unlawful manner. In your expert opinion, how can a government acknowledge those developments at the global level in its regulatory process, while allowing for the expediency needed to adapt to the world we live in?

[English]

Mr. Bernhardt: Certainly that is a concern and one reason that we have seen more and more emphasis on incorporation by reference as the world changes. At times, I say that we are moving to a post-regulation era. Originally when people started making regulations, it was because there were too many technical details to put in a bill and parliamentarians could not go through all the technical details. We have heard a great deal of criticism of skeleton legislation with all the details in the regulations. As the world gets even faster and more complicated, we start to see almost skeleton regulations with all the details left to what some jurisdictions call "soft law" — the various international standards, treaties, administrative manuals, raising questions about their status and how to give them an enforceable status and so on. That is why we see more and more incorporation by reference, which has its pitfalls.

The question for the committee is: What does the balance need to be to allow for the flexibility and adaptability that modern government needs, while ensuring that first, people can find the law that they are required to obey; and second, that it is presented in a coherent fashion?

When you have a regulation, you have the Canada Gazette and ongoing consolidations, so it is easy to say where the regulation is, what it says and what it used to say. That is often an issue, especially in areas like income tax. In such cases, by the time you get into a disagreement, the question is not so much what the act or the regulation reads today because you may be interested in what they read three or four years ago given the crux of the dispute. If it is an incorporated document, you may be fine that the government keeps it updated but you may need to know what that version read three years ago. Will you be able to find it? There are also issues of accountability to Parliament. If Parliament has given someone the power to do something, then Parliament expects that person to be the person making the legislation.

At the end of the day, it is not so much a question of incorporation by reference good or incorporation by reference bad. Rather, if you are to have incorporation by reference, should there be limits on it? What should those limits be? How do you go about putting in the necessary safeguards to ensure that people have access to the law and that there is some responsibility on government to ensure that people have that access? It is very easy for the bureaucrats to simply take a standard, say it is great, adopt it and write it into the regulation — problem solved. They have an ongoing responsibility after that to ensure that the material is available to people. I am not sure it is good enough to say that people can get it from the organization. If any government wants it to be part of the regulations, they have an ongoing responsibility, after they have done that, to ensure that people can have access to it.

I am not sure that necessarily hamstrings adaptability. They can still adapt to changing circumstances.

[Translation]

Mr. Rousseau: I would add that, as far as the various approaches taken by other jurisdictions are concerned, in the documents you were given today, keep in mind that the committee's recommendations to the minister included a description of how other jurisdictions and countries define accessibility.

Of course, they granted powers allowing for open incorporation by reference, but they also placed a lot more limitations on how the authority using incorporation by reference had to proceed in order to ensure that a document was accessible. It is clear to me that Bill S-12 does not include anything to that effect. So, while other countries have indeed allowed for the ability to adapt quickly to change, they have also established very clear rules on the need to ensure the accessibility of a document. All we have here is a requirement that the material be accessible or "otherwise accessible." When a case makes it to court, "otherwise accessible" comes into play.

Ms. Ayala: That strikes me as highly delicate, given that, once a law is made, all citizens are supposed to know it. In that respect, then, accessibility is fundamental. Another important consideration is knowing who is administering the act and who is making the regulations. What do you suggest? You referred to the approaches taken by other countries, but what would you recommend specifically in the Canadian context? As I understand it, if someone is not aware of the actual content of the regulations, that person will be punished. But if people do not have access to the information, they are in the dark. I would like you to explain that a bit further, because being informed and having access is a citizen's fundamental right.

Mr. Rousseau: A number of available mechanisms are possible or already in place in other countries. An ideal solution might be a central registry. Another possibility is a system requiring departments to keep copies of incorporated documents, and subsequently copies of any corresponding amendments. As my colleague pointed out, there may come a point when it is very important to know, at the time of the incident, what version of the incorporated document was in force under what we call the law of the land. An ideal solution would be a registry of incorporated documents. A much more detailed obligation could be imposed on every department stipulating that they keep a document and that they provide information on where the document can be obtained, obviously within a reasonable time frame. Likely, it would be necessary to do some promotion around the need to comply with those requirements.

[English]

Mr. Albas: I have a question to counsel through you. I make a habit of meeting with local business people when I am back in the riding. I went to an electrical contractor and I understand they sometimes have to purchase very expensive manuals in order to keep compliance with safety standards, to ensure their employees are doing everything safely, and to ensure the consumer is well looked after.

The cost of the safety manuals is because of the extensive amount of research in producing them. Suggesting that the government should look at a central registry, I am not going to say it is good or not. The first I heard of it is this presentation today. I asked, "Why do you have to pay for it?" He says the costs are borne by my consumer because it should not be up to the taxpayers of Canada so that I can have access to those regulations in order to have safe employees and the highest standards. He says that is built into our system and if I am doing a new electrical job, I pass that on to the consumer.

By the suggestion that you are proposing to have a central database for these kinds of safety manuals, would that then be borne by taxpayers generally? Is that the idea?

Mr. Bernhardt: I think it would be. Remember, what we are talking about here is the law. It may be a manual, but once it is incorporated by reference it is law. Should the public have to buy the law? I just raise that rhetorical question.

Mr. Albas: I visited these businesses and I asked the question. The owner of the company said, "I am in the business of not only protecting my clients for whom I install these systems but also my employees and to ensure that they are following it. It is something that I purchase as soon as an update comes out because I am holding my business to the highest standards." He suggested that that would be the wrong approach. Again, it is an idea that I have not heard a lot about and I appreciate it being raised today.

Mr. Bernhardt: I point out that the law is supposedly available to everyone, not simply to a contractor who is required to obey it. As a lawyer, if I want access to that law, or if a law professor, journalist or simply an interested member of the public wishes access to the law, that is the law. If it is an act or a regulation, I have easy and cost-free access to that because it is the law. In our system of law and government, it is generally a given that the law should be available to everyone. It gets more complicated when you start incorporating things by reference because automatically it becomes less available. The question is how much less availability is acceptable.

Mr. Albas: A lot of the time it is the cost of producing the manual and the technical expertise that goes behind it, so that is a question we have to wrestle with going forward. However, from speaking to someone, if anyone wanted to see it, I am sure they could ask their contractor, "Are you following this and can I take a look at it?" They could go to the organization itself. I do not think there is an unwillingness not to share it, but there are costs associated with it in that specialty field. I am pointing out, at a practical level, that people I have spoken to in my riding on this subject have said that is not the standard for that industry.

Senator Moore: The idea of a depository is intriguing. Does that mean there would be one in Ottawa only? Is there one in each province and territory? How is it available? Is it available in hard copy? Is it only available online? People do not have access to that; we do not have full broadband coverage across the land.

The access issue raised by Ms. Ayala is important to me because we are here to make the country better for citizens. That leaves a lot of questions.

I recall legislation that was attempted in the past which said that certain things set out in the legislation would not be a regulation under the Statutory Instruments Act and thereby not reviewable by Parliament, by this committee. Rather than a bill having that in it so that we could take a look at it — Parliament and this committee — could someone, by reference, put a clause in so we would not even know that that was happening?

Mr. Bernhardt: I am not sure I am clear on what the mechanism would be that they would use. The incorporated material is reviewable by this committee. It will not be registered; it will not be published. However, because it is being incorporated into the regulations, it will still be subject to committee scrutiny. There are individual statutes that exempt certain things from the Statutory Instruments Act. However, the general rule would still be that the incorporated material is subject to scrutiny by the committee as part of the regulation.

Again, we will have the same access issues as any other member of the public; we will have to find it first and ensure we can get it, ensure that we have up-to-date versions and so on.

The difficulty again may be down the road. Presumably when the regulation is made and the initial incorporation is made, then that incorporated document can be reviewed. I do not think it likely the committee will know or come back to that document each time it is amended and take another look at it.

Senator Moore: Practically speaking, how does this impact your office? How do you keep track of what is going on if things are not done in the normal course of the way processes are done today? That will, of course, impact on us and our work here in the committee.

Mr. Bernhardt: On the one hand, certainly fewer issues of subdelegation and questions of whether something has been validly incorporated by reference or whether a particular formula is authorized will come before the committee. What we have here is a broad authorization for that kind of thing.

As far as reviewing the material goes, if a document, a manual or a standard is incorporated by reference, we will take a look at that in the course of doing a review of the regulations.

Senator Moore: How are you alerted to that?

Mr. Bernhardt: It will be mentioned in the regulation. For example, it will say, "every contractor must comply with CSA electrical standard X, Y, Z, as amended from time to time." We will look at the regulation, get the current version of that standard and look at it to ensure that there are not things in there that are completely beyond what the act would provide for. Once that is done, if there is a problem there, the committee can raise it and suggest that the standard needs to be adapted or changed. That can be problematic because the regulation maker is not responsible for the standard.

Leaving that aside, assuming that there are no problems with that standard at that time, the other issue is that it is not likely that the subsequent versions of that standard will ever be looked at. There will be no new regulations. There will be no change to the regulation. We are certainly not in a position to flag every change to every standard made around the world that might be referred to in a federal regulation.

Senator Moore: Yet that could happen here.

Mr. Bernhardt: Yes.

Senator Moore: This is what I was thinking about. Practically speaking, if this went through, I do not know how you would do that.

Mr. Bernhardt: We would do what we do now when you see an open incorporation by reference: We will take a look at the standard as it reads when we look at the regulation.

Senator Moore: Then you have to look at that in terms of our own law, the Charter rights — all those normal things that come under our mandate and our mission here. You have to be reviewing foreign documents or foreign law and standards or something to see if it —

Mr. Bernhardt: That is often the case. Let us look at something from the International Maritime Organization. If you look at the way they draft those, it is not the way you will see a federal regulation drafted, and meshing the two together can be problematic. For example, we have seen where you find an inconsistent use of terminology between the English and the French, which you would not tolerate in regulation, but the response you will get is that, "Well, this was done by an international convention. That is what they arrived at; that is the official version and we cannot do anything about that." When the next meeting on the convention is held in a few years, we could perhaps suggest that as a revision to the convention. However, we are simply adapting the language of the convention.

[Translation]

Ms. Ayala: We talked about costs and accessibility. A company president is the one who has to foot the bill. Democracy does not have a price tag. That may mean more experts need to be brought in. We have to protect our democratic system; we are here for that reason as well. We cannot say that democracy is more expensive for those who have to foot the bill.

Mr. Rousseau: One thing is certain, there are more and more rules to follow, not fewer. Our increasing use of incorporation by reference — open incorporation by reference, at that — facilitates law-making. We can incorporate material that has already been drafted, but there are more and more rules, overall.

In aviation alone, it is staggering. I challenge anyone, any Transport Canada lawyer, to come here to answer the questions we could possibly ask. Committee members ask the Department of Transport questions about the regulations, and three years later, the department is still in the midst of conducting studies, audits or other checks in order to answer those questions. Those regulations, which are probably 400 pages long, incorporate a ton of standards drafted by the department, and some of the committee's comments concern the fact that an incorporated standard is not consistent with the one appearing in the regulations. The standard is supposed to clarify it. So there is an ongoing problem in terms of adjusting all those standards. As I said, it is impossible to have a comprehensive view of all that.

To the senator's point, I would say that a certain part of our job now is to tell the department that the incorporated standard is completely inconsistent with the standard prescribed by the regulations; it does not complement it in any way, and in fact contradicts it. We have seen cases like that, clearly, and we will continue to. Ultimately, yes.

In short, then, to do the work, yes, we would need a lot more people than the four counsel we have now.

[English]

Mr. Vellacott: I have two questions. One relates to what Senator Moore had asked. For the purposes of our committee and regulations, with your competence, do you actually think in the future you will not be able to track down these instruments in these various things? It may take more time, but surely with the level of competence you have, and that we have accessible through you, you would still be able to do that.

Mr. Bernhardt: I suppose I would deflect the response in a sense and say that, yes, we will probably be able to, if we have to look for an incorporated document with the resources we have — we have the Library of Parliament. We will be able to track it down.

Having said that, there was one glaring example several years ago where the Library of Parliament could not locate in any lending library in the country a copy of the standard that was only available from the source for several hundred dollars.

That being said, my concern would be not so much with us, who know our way around the federal regulations world pretty well. My concern is with the average citizen out there, whether he be a small businessperson or just an interested person trying to go through what is already a fairly complicated system for people and then having to go to other levels to find things.

As I say, there are a number of ways to address that. We have mentioned a central repository. Another way, when you mention it in the regulations, is to have a footnote that provides a hyperlink and boom, there it is. The person who has the regulation can find the standard they are talking about. In that way, there is a rule and those who make the regulations know not only that they have to make it accessible but also what they have to do to make it accessible. That may short-circuit such problems.

Mr. Vellacott: I hope I do not appear selfish, but I am more concerned about the purview of this committee than about the people out there, although it may ramp up the work for our offices by coming to the joint chair's MP office to ask for accessibility. The purview of the committee is to ensure that we can get it. The other is secondary as to how other committees might deal with that.

We all like a bit of history and it should teach us something. Historically, federal governments of whatever description came to the fore and had a greater reach. Some would say "overeach" as there were trade guilds, unions and professional associations that did this stuff, and I do not know that there was collation. Certainly, going back to jolly old England and elsewhere the trade guilds did this stuff. They had a kind of sovereignty within that sphere to do that without governments being involved.

Getting back to Mr. Albas' reference to electrical manuals, and so on, I assume that given the highly technical language, competent people are writing these because they require a broader expertise. Is a body of competent people tasked with that sort of thing? I assume it is not one person only.

Mr. Bernhardt: I presume so as well. One reason to adopt the technique is that the bureaucracy may say, "These are the people out there who have the real expertise; they know what they are doing; let us talk to them, take a look at their standard to see if it is workable for us, and adopt it."

Mr. Vellacott: The corollary would be: If there is no trust in that body, we cannot sanction what they do because they are fly-by-nights or rogues or simply incompetent people. I suspect that we would not incorporate that by reference.

Mr. Bernhardt: I would like to think so. The thing with the incorporation is that it becomes law. In many cases, contravening it becomes an offence. It kind of puts it on a different plane than simply an industry standard. For example, if you want to put yourself out there as a member of the Canadian Electrical Contractors Association, you have to show that you understand and comply with their standards or they do not let you use that designation. It is a kind of self-regulation, which is only one aspect. It goes to a different level once you take that and put it in the law. In that case, not only will you lose your designation, but they will fine you or throw you in jail if you do not obey it. It takes it to the next level.

Mr. Pacetti: On this conversation, I would be comfortable with recommending something online. The technicality of what we are talking about would be understood only by someone with the ability to have access. I do not think that anyone without access to technology or who cannot work a computer will understand any of these technicalities. I am comfortable with these things being available online. It is not acceptable that we let private industry be in charge of what is and is not available. It must be government. It must be the openness of government. Contrary to what Mr. Albas was saying, I have constituents who say that they cannot get copies of the standards. They went to see their entrepreneur, the person who did the work and the government when they came out with this rule, but they cannot get access to it. They ask me if I can help. We have tried. This happens not only at the federal level but also at other levels of government where we cannot get past the first door. The information is not accessible. Even sometimes when we pay a fee we do not get a reply. That is the openness.

Everyone has access to the Internet. I am aware that there are places where it is not accessible, but we have to plan for the future with hyperlinks and references. It should be easier now to keep a registry and a website where people can look things up. You can actually Google something and it is available.

I have a quick question about something on page 17. At the second bullet on fee structure, it says that the actual amount of the fee or charge will depend on the future actions of some other body. What is that in English? I see only dollar signs.

Mr. Bernhardt: For example, if you are a regulation maker and you set a fee and you want that fee to vary automatically, you tie the fee to changes in the Bank of Canada rate. The question then arises: Who is actually setting the fee? Is it the regulation maker or is it the Bank of Canada because the fee will change automatically each time the Bank of Canada makes a change. If Parliament has said in the regulation who is to set the fee and it gets passed to someone else, at what point does that defeat the will of Parliament? In this case, some other person, in effect, is setting the fee. It is a bit different if you have a fixed fee such as $1 per tonne. Although that fee will vary with weight, you will know exactly what the fee will be for 10 tonnes of something or 50 tonnes of something. In that sense, it is set and will not vary based on someone else's calculation or decision down the road.

The Joint Chair (Ms. Charlton): Let me try to focus the discussion a little differently. Am I right to suggest that this committee is seized with the question of whether access is adequately protected by Bill S-12 but not necessarily seized with the question of how we should guarantee such access? We are not proposing today to determine whether we create an online registry or central repository, or other mechanisms because that will not be part of Bill S-12. Are we seized with making recommendations as to whether the bill, as currently written, adequately protects access or should we be talking about the mechanism?

Mr. Bernhardt: That is a matter for the committee to decide. The bill is before the legal and constitutional affairs committee. At this point, the committee is discussing first, whether it has concerns; second, what those concerns are; and third, whether it wishes to make those known. It is pretty open-ended for the committee to decide where it wants to go.

The Joint Chair (Ms. Charlton): We will ask for a two-hour time slot at the Senate committee.

[Translation]

Senator Bellemare: I will pass. I was going to bring up the Web possibilities, but that would take us off topic if we are sticking to the task at hand.

[English]

Mr. Boughen: I have a couple of observations on the electrical debate. I cannot speak for all provinces, but in my other life I was heavily involved in construction. Building inspectors come around and check all the work. If it is not up to par, whether mechanical, electrical or other, you are obligated to tear it out and make it right. There are checks and balances. I am sure that other provinces have similar legislation that protects the person having the work done. At the same time, the law protects the contractors.

I will come back to what the joint chair mentioned earlier about focusing. At page 5 on reasons for incorporation by reference, there are six bullets. I share with the rest of the members that we heard from the presenters a very adequate briefing. It was very well done, in my estimation. Looking at that page, I wonder whether there is a down side. If so, could we hear about that? It seems very positive. On the plus side, cooperation is there, standards are there, harmonization is there, and the reproducing of documents is there.

Mr. Bernhardt: On the next page, basically the concerns fall into three categories. The legalistic tag for that is subdelegation, but it is a question of whether the person Parliament has tasked with making the rules is the person who is actually making them. That is the first concern.

The second concern is around using the technique simply to do an end run around the regulation-making process. When you make a regulation, there is a process where the draft is examined by the Department of Justice. It must be registered and it must be published in the Canada Gazette. You have to go to Treasury Board. They assess the level of impact and they tell you what kind of impact analysis you have to go through and how much consultation you have to undertake. There are all those processes you go through and they are there for a reason.

The downside of incorporation by reference is that — and I am not saying it is in every case — there is the potential to abuse the technique simply to do a bureaucratic end run around all that.

The third one we talked about is the accessibility. When you do it for all these reasons you also need to ensure that people can actually get the stuff. Those are the potential downsides.

That is not to say that the technique does not have its place. The question is: Is there a need for a balance and what should that balance be?

Mr. Rafferty: You might have partially answered the question that I have, but it concerns end runs. I am new here this morning to the Standing Joint Committee for the Scrutiny of Regulations, but it is scrutiny that I am interested in. It seems to me that this bill will concentrate more power with the government of the day and their bureaucrats, and provide less ability for the House of Commons and members of Parliament to look at these things before they move forward and become law. Is that a concern? Is that a concern that has been raised?

Mr. Bernhardt: Yes, that is part of circumventing the regulatory process in a sense because it is a less visible process, less visible result.

Mr. Rafferty: I understand the need for speed and the changing world and so forth, but I am concerned that things will simply happen and become law and members of Parliament will say what happened here?

Mr. Bernhardt: Going back to Mr. Vellacott's concern, which was with the work of the committee, it is not new. It is an issue we have now; we have open incorporation by reference in federal regulations now. Certainly it is the case, as far as this committee goes, that we are not in a position to go back and look at every standard that is incorporated every time it is amended and reassess it. We will look at it when the regulation is made. It if it incorporates a standard, we will look at that standard.

Mr. Rafferty: Something will have been examined by Parliament, such as a free trade deal for example. It will be signed and it will become law. Shortly thereafter, the government of the day could simply make changes to that free trade deal that were not part of what was scrutinized originally by the House of Commons, and it becomes the new way of doing business.

Mr. Bernhardt: That is certainly the result as amended from time to time, yes.

Mr. Vellacott: In reference to the honourable member's questions here, as members of Parliament we do not see when legislation is tabled, we do not see all the regulations at that point anyhow, do we?

The Joint Chair (Ms. Charlton): That is what this committee is for.

Mr. Vellacott: Exactly. It is only this committee, as opposed to any others. I guess this gets to the issue of proscribing, keeping it focused on how it impinges on our work as opposed to the work of others in this place. We have other committees and if it is a justice bill or a health bill, they will look at it. If they are doing their proper job and due diligence, they should be burrowing deep to find out what those other incorporation by reference are. Is that not the task of that respective committee as opposed to this committee?

Mr. Bernhardt: It depends. Within the scope of this committee's mandate, it is the task of this committee. This committee is not a policy committee. The role of this committee, when it looks at an incorporated document, is the same as when it looks at a regulation. Is it clear, is it coherent and is the content of that authorized by the parent statute? I presume those other committees would be in a position, if they wished, to look at a particular standard in terms of whether it is adequate, the most appropriate standard and if there is there some other body that should be consulted and may have a better standard.

Those sorts of questions would certainly not be for this committee, but would be within the purview of the health committee, the natural resources committee or agriculture or whatever.

Mr. Calkins: I beg the indulgence of my colleagues. I am new here today and I am filling in. As someone looking from the outside looking in, I have a few questions you can help me with.

First of all, I understand my role here is as a legislator; my job is to vote in favour of or against or amend or propose amendments to legislation. This committee is unique in its role in the scrutiny of regulations, which only have authority insofar as the legislation that is passed or is current grants that regulatory body.

I understand this static incorporation by reference and ambulatory incorporation by reference. These are easy things to understand from a conceptual perspective. However, without the oversight and scrutiny of any schedule, annex, code that might be out there under the purview of any other legislative body — that might have been granted its power through another act of Parliament or an act of a provincial legislature whatever the case might be — certainly it would have the technical expertise to handle their particular mandate. The issue I have as a parliamentarian is that it is not just about the expertise of that particular mandate. If that body's mandate is to deal completely in the scope of public safety, there may be concerns for the cost of escalating regulation, what the impact might be on the broader economy at large or whatever the case might be.

A case in point would be any regulations made by a body, such as the SPCA or whatever the case might be, when it comes to animal safety or health. Those are all very important to parliamentarians, but overregulation of a particular sector of our economy without the proper scrutiny or oversight might result in a situation where we are at an impasse and it is a very difficult thing to monitor.

However, we have to maintain that our role as legislators is not to get into that level of detail.

My question and concern arise from the one comment you have on page 25 in the deck. If we are talking about incorporating all these documents, how much are we talking about here? It is one thing to know; we do not even know.

On the idea of dropping in a hyperlink, anyone who has surfed the Internet knows a link can change at any time you can find a broken link at any time, whether you are talking about Internet or intranet. Hyperlinking only guarantees it insofar as the host continues to leave a document in a particular place and that brings up absolute and relative referencing when referencing a document, which is a completely different terminology. How much regulation are we talking about here?

Mr. Bernhardt: How many standards are incorporated in federal regulations? I presume it would be in the hundreds, certainly. It could be everything from departmental manuals to international treaties and free trade agreements.

Mr. Calkins: Taking this further, in theory we could then be referencing a policy manual on various staff procedures, or anything like that, as long as it fits in the purview of the legislation.

Mr. Bernhardt: Certainly, for example, in the whole agriculture area, you do see regulations that say little more than "every producer shall comply with the Canadian Food Inspection Agency manual."

Mr. Calkins: The oversight on that would be virtually nonexistent in this reference, and that is the issue. If it does not go through the gazetting process, it does not come before this committee.

Mr. Bernhardt: This committee would look at it in the sense that when that legislation was promulgated, we would sit down and look at what is in that manual. However, that manual could change weekly or monthly, and we will not revisit it every time the manual changes to see what the changes have been. That is physically impossible.

Mr. Calkins: If I also understand this correctly, there is no version control and no requirement set out in any of our statutes or regulations that would require any organization that has a reference document — reference by incorporation in any way, static or otherwise — to maintain version control of the documents.

Mr. Bernhardt: If the bill passes, you would have the requirement that they take steps to make it accessible.

Mr. Calkins: But we do not know what that is yet, either.

The Joint Chair (Ms. Charlton): I am conscious of the time. It is 9:50. The invitation for us to attend the Senate committee is next week. We have two urgent questions before us. First, do we want to accept the invitation to appear? Second, what would the committee like the joint chairs to say?

We have a report that came from this committee in 2007 that made recommendations about the action that needed to be taken with respect to these issues. I am looking for feedback as to whether you want us to say that this meets it or does not meet it, and how.

Mr. Albas: I have a quick question based on Mr. Calkins' questioning. On page 25, in the second paragraph, there has been a long-standing practice of incorporation by reference where it did not include "as amended from time to time." Counsel, would this particular bill then substantiate or fix that process by giving parliamentary authority for that to happen?

Mr. Bernhardt: Yes.

Mr. Albas: Right now, there is a practice and the committee has said that we are not entirely kosher — to use that term — with this practice. This bill would then fix that, which was the recommendation of the committee.

Mr. Bernhardt: One thing for sure, it does provide clarity.

Mr. Albas: Excellent.

Mr. Saxton: I want to deal specifically with the invitation to the joint chairs to appear before the Senate committee. There are some logistical issues that could be complicated; namely, that Senator Runciman himself is on that committee, and I think he is even the chair of that committee, are you not?

The Joint Chair (Senator Runciman): I am.

Mr. Saxton: The senator would be running back and forth from the witness stand to the chair. I do not know if that would be a wise idea. There are issues from a logistics standpoint.

This committee has some very valuable information that we should be sharing with the Senate committee. How should we share that information? What is the most effective way for us to do that? There is a great deal of information. Perhaps a written submission to the committee would be a better way to do it, taking into consideration that neither of our chairs were present for a lot of the information that came before this committee in the past, given that they are new members, as many people are new members of this committee.

It might be more effective to give a written submission to the Senate committee. I would like to get counsel's opinion on that.

Mr. Bernhardt: I am in the committee's hands. We can certainly draft something for approval and go from there. We would need guidance as to the exact direction that submission should take. One option would be to reiterate the committee's earlier recommendations with some comment.

There was also a 2009 submission to the Minister of Justice, at his invitation, which set out some more concrete things. The 2007 report was more concerned with what the state of the law is at present — a dispute with the Department of Justice Canada. The 2009 recommendations and indeed the bill now are not so much concerned with what the law is but what it should be and what it will be going forward. That is a different focus.

As I say, it could be a case of reiterating those with some comment as to how they were and were not met in the bill. It could be highlighting areas of concern the committee has with the bill, such as highlighting that some areas might be not be as strong as they could be or whatever. They could also be specific recommendations.

Mr. Saxton: There are obviously several ways we could do this. We have previous letters sent, one from 2007 and another from 2009. We have perhaps some other suggestions, as well.

I think the whole purpose of this is to help the Senate committee in its role of investigating and reporting on this particular issue. My recommendation would be for our committee to write a written submission, which counsel could draft for us. If time is of the essence, then perhaps it could be reviewed by the subcommittee before it is sent off.

It should not take that long, though, because those letters are already done. They are already done; it is a matter of compiling it and putting it together and then presenting it as a written submission to the Senate committee. That is my suggestion this morning.

Senator Moore: I was going to make a comment along the same lines. As a beginning point, we start with our two past efforts, which are the 2007 and 2009 reports. Then we can confirm our concerns expressed here today.

I am looking at this email. It says you are invited.

The Joint Chair (Ms. Charlton): You are invited this morning or next Wednesday, which I think is a typo.

Senator Moore: We would like to invite you. You are not ordered, et cetera.

The Joint Chair (Ms. Charlton): Is there a consensus?

Senator Moore: Decline the invitation, but submit a written response.

The Joint Chair (Ms. Charlton): Is there consensus about that approach? I was wondering how I was going to fill that really empty week next week, so I am completely fine with sending a letter. Are you okay with that?

The Joint Chair (Senator Runciman): I am sure we are lining up a number of expert witnesses who I suspect will also comment on the positions this committee has taken in the past, as well. I think it is a good approach.

Mr. Saxton: Will there be a subcommittee meeting then? Today is already Thursday. We should get this in early next week, I presume. Why does the subcommittee not meet on Monday? Does that make sense?

The Joint Chair (Ms. Charlton): Is the subcommittee meeting necessary? We know what the 2007 report is. We know what the 2009 report is. There was pretty significant consensus, I think, about the presentation we had here today.

Mr. Bernhardt: Subject to approval by both chairs?

The Joint Chair (Ms. Charlton): Could we do it as subject to approval by the joint chairs?

Mr. Albas: I was going to make mention that because the whole committee here would probably benefit by seeing it, maybe you could circulate a draft to everyone. If someone contacts a joint chair and says, "This is the concern I have," it could be left in the joint chair's hands to resolve that. That would be helpful. It is just that oversight is always welcome.

Mr. Saxton: I agree with that. It would be preferable if we got the email at least 48 hours before it actually goes out so we have some time to look at it. If we got the email on Monday, with the plan that it goes out on Wednesday, that would be great.

Mr. Bernhardt: We will shoot for that.

Mr. Pacetti: I am okay with that. We can work well with the email. Does that mean that you, chair, will not appear?

The Joint Chair (Ms. Charlton): I am reading that as the consensus. I think people are generally agreed that they are concerned about what I might say.

Mr. Pacetti: That is why I would encourage you to go. I think it would be a good experience for you and try and repeat this performance. I would obviously bring counsel with you.

Senator Moore: I see you are invited to appear on Wednesday the 28 in the afternoon and Thursday, November 27. That should be the 29, I assume. You are going this afternoon, are you?

The Joint Chair (Ms. Charlton): This morning, right after this.

Seeing a consensus, we will circulate the report. I appreciate your feedback, so we can get it back to counsel.

(The committee adjourned.)

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