Mr. Speaker, it is my pleasure today to speak to this House about Bill S-2, the incorporation by reference in regulations act.

Bill S-2 has been studied by the Standing Committee on Justice and Human Rights and has been reported, without amendment, back to this House. Before that, the Standing Senate Committee on Legal and Constitutional Affairs reported, also without amendment, to this House for consideration.

This bill deals with the regulatory drafting technique. Essentially, the bill is about when federal regulators can or cannot use the technique of incorporation by reference. The technique of incorporation by reference is currently used in a wide range of federal regulations. Indeed, it is difficult to think of a regulated area in which incorporation by reference is not used to some degree.

Bill S-2 is about securing the government's access to a drafting technique that has already become essential to the way government regulates. It is also about leading the way internationally in the modernization of regulations. More particularly, Bill S-2 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. This bill would create the legal clarification needed so that regulators and the committee could leave the uncertainty behind.

Incorporation by reference has already become an essential tool that is widely relied upon to achieve the objectives of the government. Both committees have heard that it is also an effective way to achieve many of the current goals of the “Cabinet Directive on Regulatory Management”, cabinet's instructions on how to ensure effective and responsive regulations. For example, regulations that use this technique are effective in facilitating intergovernmental co-operation and harmonization, a key objective of the Regulatory Cooperation Council established by the Prime Minister and President Obama. By incorporating the legislation of other jurisdictions with which harmonization is desired, or by incorporating standards developed internationally, regulations can minimize duplication, an important objective of the Red Tape Reduction Commission. The result of Bill S-2 would be that regulators would have the option of using this drafting technique in regulations aimed at achieving these objectives.

Incorporation by reference is also an important tool for the government to help Canada comply with its international obligations. Referencing material that is internationally accepted, rather than attempting to reproduce the same rules in the regulations, also reduces technical differences that place barriers to trade and is in fact something Canada is required to do under the World Trade Organization's Agreement on Technical Barriers to Trade.

Incorporation by reference is also an effective way to take advantage of the expertise of standards writing bodies in Canada. Canada has a national standards system that is recognized all over the world. Incorporation of standards, whether developed in Canada or internationally, allows the best science and the most accepted approach in areas that affect people on a day-to-day basis to be used in regulations. Indeed, reliance on this expertise is essential to ensuring access to technical knowledge across the country and across the world.

Testimony by witnesses from the Standards Council of Canada before the Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs made it clear how Canada already relies extensively on international and national standards. Ensuring that regulators continue to have the ability to use ambulatory incorporation by reference, meaning the ability to incorporate by reference a document as it is amended from time to time, rather than just its fixed or static version, in their regulations means that Canadians can be assured that they are protected by the most up-to-date technology.

Incorporation by reference allows for the expertise of the Canadian national standards system and the international standards system to form a meaningful part of the regulatory toolbox.

Another important aspect of Bill S-2 is that it allows for the incorporation by reference of rates and indices, such as the consumer price index or the Bank of Canada rate, important elements in many regulations.

For these reasons and more, ambulatory incorporation by reference is an important instrument available to regulators when they are designing their regulatory initiatives.

However, Bill S-2 also strikes an important balance in respect of what may be incorporated by reference by limiting the type of document that can be incorporated when it is produced by the regulation maker. Also, only the versions of such a document as it exists on a particular day can be incorporated when the document is produced by the regulation maker only. This is an important safeguard against circumvention of the regulatory process.

Although there was some testimony at the Standing Committee on Justice and Human Rights that suggested that the bill should go further to allow all types of documents to be incorporated by reference, including documents produced by the regulation maker, we believe that Bill S-2 strikes the right balance, and where more is needed, Parliament can and has authorized incorporation by reference of that material as well.

Parliament's ability to control the delegation of regulation-making powers continues, as does the oversight of the Standing Joint Committee for the Scrutiny of Regulations. We expect that the standing joint committee will continue its work in respect of the scrutiny of regulations that use incorporation by reference. The standing joint committee will indeed play an important role in ensuring that the use of this technique continues to be exercised in the way Parliament has authorized.

One of the most important aspects of the bill relates to accessibility. Bill S-2 will not only provide a solid legal basis for the use of this regulatory drafting technique but will also expressly impose in legislation an obligation on all regulators to ensure that the documents they incorporate are accessible. While this has always been something the common law required, this bill clearly enshrines this 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 are accessible by those who are required to comply with them. This is an important and significant step forward in this legislation.

The general approach to accessibility found in Bill S-2 will provide flexibility to regulatory bodies to take whatever steps might be necessary to make sure that the diverse types of material from various sources are in fact accessible.

In general, material that is incorporated by reference is already accessible. As a result, in some cases, no further action on the part of the regulation-making authority will be necessary. For example, provincial legislation is already generally accessible. Federal regulations that incorporate provincial legislation will undoubtedly allow the regulator to meet the requirement to ensure that the material is accessible.

Sometimes, accessing the document through the standards organization itself will be appropriate. It will be clear that the proposed legislation will ensure that the regulated community will have access to the incorporated material with a reasonable effort on their part.

It is also important to note that standards organizations, such as the Canadian Standards Association, understand the need to provide access to incorporated standards. By recognizing the changing landscape of the Internet, the bill creates a meaningful obligation on the part of regulators to ensure accessibility while still allowing for innovation, flexibility, and creativity.

Bill S-2 is intended to solidify the government's access to a regulatory drafting technique that is essential to modern and responsive regulation. It also recognizes the corresponding obligations that regulators must meet when using this tool. The bill strikes an important balance, and it reflects the reality of modern regulation while ensuring that appropriate protections are enshrined in law. No person can suffer a penalty or sanction if the relevant material is not accessible by them.

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

We have many years of successful experience with the use of ambulatory and static incorporation by reference in legislation at the federal level and this knowledge will be useful in providing guidance to the future.

The enactment of this legislation is the logical and necessary next step to securing access in a responsible manner to incorporation by reference in regulations.

Joy Smith

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