Incorporation by Reference in Regulations Act

Mr. Speaker, I thank my colleagues for that consent.

As I was saying, Mr. Speaker, I will be dividing my time with the Parliamentary Secretary to the President of the Treasury Board, who is far more passionate than I about the plumbing of state and the updating of our legislative and drafting requirements.

As a lawyer, prior to coming to this House, I know that these sorts of bills are important for governance and for drafting. This would have some measures that would allow our legislative and regulatory regime to be modern, and the broadest way is the technique of incorporation by reference.

Bill S-2, and the specific provision on incorporation by reference, has been studied by the Senate Committee on Legal and Constitutional Affairs and reported, without amendment, to this House.

The technique of incorporation by reference is already used in a vast array of federal regulations. It is difficult to actually think of an area, a regulated area federally, where incorporation by reference is not used to some degree.

Bill S-2, the bill before the House today, is about securing the government’s access to a drafting technique that has already become essential to the way governance operates in Canada. It is also in line with international trends in the modernization of regulations, and as I said, it responds to Senate and House committees, including the Standing Joint Committee on the Scrutiny of Regulations. That is certainly a committee I want to try to avoid during my time here in Ottawa.

Incorporation by reference is an effective way to tap the resources of expertise in standards in writing bodies across Canada. Canada has a national standards system that is recognized around the world, and the incorporation of standards, whether developed here in Canada or internationally, allows the best science and the most widely accepted approaches to be used so that people can have a modern and comprehensive approach to the day-to-day use of regulations in Canada.

In fact, reliance on this sort of expertise, whether domestic or international, is essential to ensuring access to the technical knowledge needed for such regulations.

Witnesses from the Standards Council of Canada before the Senate Committee on Legal and Constitutional Affairs were clear in their testimony that Canada already relies extensively on international and national standards. The bill, in many ways, would ensure that regulators continue to have the ability to use incorporation by reference, or the ability to incorporate documents as they are amended from time to time, in our regulations so that Canadians can be assured that they are protected by the most up-to-date technology without the need to amend regulations or to constantly be referring to newer versions.

For these reasons, incorporation by reference is an important tool for regulators when they are designing our regulatory regimes.

The bill before the House today also strikes an important balance in respect of what may be incorporated by reference by limiting the types of documents that can be incorporated by the maker of regulations. Also, only the versions of such documents as they exist on a particular day can be incorporated when they are produced by the regulation maker. This is an important safeguard against circumvention of the regulatory process when incorporating documents that are internal to the government.

In addition to providing an express legal basis for the use of the technique of incorporation by reference, one of the most important aspects of Bill S-2 relates to accessibility. The bill would expressly impose, in legislation, an obligation on all regulators to ensure that the documents they incorporate are accessible. While this has always been something in the common law, and access to justice and common law principles always have applied to our regulatory regime in Canada, the bill would clearly enshrine that obligation in legislation.

There is no doubt that accessibility should be part of the bill. It is essential that documents that are incorporated by reference be accessible to those who are required, by regulation, to comply with those documents. That is an important and necessary step, and that is why it is included in Bill S-2.

The general approach to accessibility found in this bill would provide flexibility to regulatory bodies to take whatever steps might be necessary to ensure that these diverse types of materials, from a wide variety of sources, both domestic and international, could in fact be accessible.

Material that is incorporated by reference is generally accessible, and as a result, in some cases, no further action on the part of a regulatory authority would be necessary. An example of this is provincial legislation across Canada that is already widely and generally accessible. Federal regulations that incorporated provincial legislation would undoubtedly allow the regulator to meet the requirement to ensure that the material was accessible.

Sometimes accessing the document through the standards organization itself might be necessary. The proposed legislation would ensure that the regulated community would have access to whatever material was incorporated, with reasonable effort on their part. In this modern age, so many things are easily accessible by those that are regulated, so this reasonable-effort standard should be very easily met.

The bill, therefore, would create a meaningful obligation on the part of regulators to ensure accessibility while still allowing for innovation, modernity, flexibility, and creativity.

Bill S-2 is intended to solidify the government’s access to a regulatory drafting technique, essential and responsive, in our regulations. It also recognizes corresponding obligations regulators must meet when using this tool. This bill strikes an important balance that reflects the reality of modern regulation while ensuring that appropriate protections and accessibility measures are enshrined in law.

This proposal is consistent with the position the government has long taken on the question of whether the technique of incorporation by reference can or cannot be used in regulations. It would provide express legislative authority for the use of this technique in the future and would confirm the validity of existing regulations incorporating documents in a manner that was consistent with that authority.

Parliament’s ability to control the delegation of regulatory-making power would continue, as would the oversight of the Standing Joint Committee for the Scrutiny of Regulations. We expect that this standing joint committee would indeed continue to play an important role in ensuring that the use of the technique continued and was exercised in the way Parliament intended.

We have many years of successful experience with the use of incorporation by reference in regulations at the federal level, and this knowledge will be useful in providing guidance with respect to this legislation in the future. There is also every indication that the use of this technique will be essential in implementing regulatory modernization initiatives here in Canada in conjunction with some of our regulatory partners around the world, most notably our partners to the south, in the United States.

We have before us today one of these bills that are essentially the plumbing in our laws and regulations in Canada. The enactment of Bill S-2 would be a logical and necessary next step to ensuring that there is access in a responsible manner to incorporation by reference documentation in a way that is accessible but that allows our regulations to be modern and to incorporate some of the best references from around the world.

I invite members to support this important legislative proposal in Bill S-2 and recognize the important steps it would take to ensure that our laws and regulations are modern, accessible, and the best they can be.

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