Mr. Speaker, I rise today to speak to Bill S-2, the incorporation by reference in regulations act.

Liberals will not be supporting the bill. I want to be clear that we do not seek to invalidate incorporation by reference in regulations, a technique that has been long in use and that is useful on a case-by-case basis. However, the government cannot be trusted to act responsibly with these expanded powers. We have seen time and time again the government's abuse of oversight mechanisms. I think specifically of its use of omnibus legislation and its bad-faith approach to the Department of Justice's constitutional review process, including the use of private members' bills to avoid that process.

A general power to incorporate by reference could embolden the government to do indirectly what it cannot do directly. For that reason, expanding the government's power to delegate lawmaking to foreign or private entities will not serve the public interest.

Liberals will not expand the Conservatives' power to privatize and export the power to make Canadian law.

There is also a chance that this bill could prioritize the English version of Canadian laws by allowing changes to be made to the English text without updating the French version.

To be clear, we agree that regulating by reference will undoubtedly continue to expand. Globalization, standardization, and technical and scientific progress make the tool necessary. However, a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference.

Bill S-2 is a highly technical bill. Before elaborating on why Liberals will not be supporting it, let us go over the contents of the bill. Bill S-2 would amend the Statutory Instruments Act to provide an express general power to incorporate by reference in regulations. To incorporate by reference is to give a secondary document legal force by referencing it in regulations, such as a set of technical standards developed by the Standards Council of Canada.

Incorporation by reference has long been in use, and it is already expressly authorized in more than 60 federal acts. However, its legal status outside of these acts is uncertain. Bill S-2 aims to clarify that incorporation by reference is a valid technique of general application. Bill S-2 would also provide that any secondary documents referenced must be accessible and that liability or administrative sanctions could not apply if a document was not accessible. In addition, Bill S-2 would retroactively validate any incorporation by reference that was made before its coming into force.

In effect, incorporation by reference sub-delegates the details of regulation to a designated entity, which may be private or foreign. It creates efficiencies in the context of globalization, standardization, and rapid technical and scientific developments. It is important to appreciate that regulations incorporated by reference may not exceed the regulatory powers granted by statute. In addition, regulations made by reference remain subject to review and possible revocation by the Standing Joint Committee for the Scrutiny of Regulations.

There are two varieties of incorporation by reference. They are incorporation by closed or static reference and incorporation by open or dynamic or ambulatory reference. Incorporation by closed reference cites a secondary document as it existed on a particular date. Incorporation by open reference automatically allows regulations to change as secondary documents are amended. This latter technique delegates the details of regulation to whomever has the ongoing power to amend the secondary document. Bill S-2 would expressly allow both open and closed incorporation by reference.

Why are these changes a bad thing? Bill S-2 would reduce the oversight of federal regulations by allowing the sub-delegation of the regulatory power that is already delegated by Parliament to the Governor in Council and other persons. The current government cannot be trusted to use this power responsibly. Time and again, we have seen its willingness to abuse oversight mechanisms, restrict democratic debate, and violate Canadians' constitutional rights.

For example, the government's use of omnibus legislation has degraded the committee review process and hidden important legal changes from public scrutiny. Most recently, I can think of the unconstitutional amendments to the Supreme Court Act being hidden in a budget implementation bill. Yes, changes to the Supreme Court Act were in a budget bill. When those changes failed, we all remember how the Prime Minister and the Minister of Justice wrongfully criticized the Chief Justice of the Supreme Court for trying to save them some embarrassment.

With omnibus legislation, I also think of Bill C-13 and the way the government linked urgent and necessary cyberbullying legislation with immunity for telecommunications companies for warrantless disclosure. Again, the Supreme Court came to the rescue with the Spencer decision, which allowed us to support that cynically packaged piece of legislation.

In opposing Bill S-2's reduction of regulatory oversight, we also think of the government's disregard for the Department of Justice's constitutional review procedure. As the House is aware, Department of Justice lawyer Edgar Schmidt revealed to Canadians that the government proceeds with legislation even if it has a 5% chance or less of being charter compliant. It is the government's own faint hope clause, so to speak.

Is this a government that needs less oversight or more oversight? The revelation of the government's outright contempt for the charter was not surprising, given how often legislation and executive actions have been ruled unconstitutional by the courts. Let us review some of the greatest hits.

In 2011, the Supreme Court of Canada prevented the member for Parry Sound—Muskoka, who was health minister at the time, from closing a safe injection site, which would have caused an increase in the number of fatal overdoses and the spread of communicable diseases.

Last year the Federal Court prevented the government from making cuts to health care services for refugees. Also last year, right here in Ottawa, Justice David Paciocco of the Ontario Court of Justice found that the decision to impose a $900 victim surcharge on a 26-year-old impoverished Inuit offender who was an addict amounted to cruel and unusual punishment.

Some British Columbia courts and the Ontario Court of Appeal have also struck down the mandatory minimum sentences brought in by the government. This is all in addition to the negative responses to referrals related to the unilateral Senate reform and the appointment of federal judges to represent Quebec on the Supreme Court.

We have also seen the Conservative government's willingness to veil government legislation as private members' bills to avoid constitutional review. There are numerous examples of tough-on-crime, presumably government-driven legislation that masqueraded as private member's bills. All of these bills contained significant changes to the Criminal Code, and regardless of their merits, they should have passed through the Department of Justice's charter compliance review process.

This is not a government that Canadians can trust to protect and promote their rights and interests. This is a government tainted by scandals of public betrayal, from election fraud with robocalls to tampering with the Duffy audit, to a $90,000 payment to Duffy from the Prime Minister's chief of staff, to the Prime Minister defaming the Chief Justice of the Supreme Court. Canadians should not trust the current Conservative government.

As I have said, the danger with Bill S-2 is that the government would be emboldened to do indirectly what it cannot do directly, and any oversight would be retrospective rather than forward looking. That is why we will not support the expansion of the current government's power to delegate law-making powers to foreign and private entities.

In addition, Bill S-2 would put the average person at a disadvantage, since there is no guarantee that documents incorporated by reference would be meaningfully accessible. In particular, an incorporated document would not have to be registered in the Canada Gazette and might even be protected by copyright. It would also be increasingly difficult for people to know whether the version of the incorporated document they have is up to date, and in some cases, they would have to pay for access to copyright-protected documents. The bill would weaken the right of those governed by the law to know the contents of the law. We will not support the Conservative government's privatization of Canadian law.

We heard at committee that it may be possible for international bodies to amend Canadian law without our having a representative at the table. We heard that Canadian laws would not be centrally available to the public and that Canadians would sometimes have to pay to access Canadian law. Moreover, if Bill S-2 passed, the government would be generally empowered to decide which foreign and private entities could make law, and which laws Canadians should pay to see.

Time and again, the government has not been forthright with Parliament and the public, and so our position is that a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference. For that reason, we will not support the bill.

Sean Casey

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