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Report of the Standing Joint Committee for the Scrutiny of Regulations, entitled Accessibility of Documents Incorporated by Reference in Federal Regulations

Report of the Standing Joint Committee for the Scrutiny of Regulations, entitled Accessibility of Documents Incorporated by Reference in Federal Regulations

Report of the Standing Joint Committee for the Scrutiny of Regulations, entitled Accessibility of Documents Incorporated by Reference in Federal Regulations

Hon. Joseph A. Day (Leader of the Senate Liberals) moved the adoption of the report.

He said: Honourable colleagues, this is a matter concerning the scrutiny of regulations, and it has been ongoing for some time. Those of us who serve on the Standing Joint Committee for the Scrutiny of Regulations — I see a number of colleagues here who will be familiar with this matter — know that these matters seem to drag on for some considerable period of time, an inexcusable period of time. This particular report is asking you to consider adopting its conclusions and requiring the responsible minister to provide us with a substantial answer to matters that are of serious importance and consequence to the public.

Let me give you some background in an area that we don’t deal with that often, the area of regulations as opposed to legislation.

Early in our lives, we all learned that ignorance of the law is no excuse. The legal maxim dates back to Roman law, in fact. It’s even contained in our own statutes. For example, section 19 of the Criminal Code states: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”

This principle applies not only to the laws found in the statutes of Canada, which have all been debated and adopted by both houses; it also applies with equal force to regulations adopted by various government departments. Those regulations are enacted by the government under the authority we give in the individual bills we pass here in Parliament. For instance, we have been dealing at length with Bill C-45, the cannabis legislation. It contains a number of schedules that may be modified by the government through the regulatory power we give the government in the bill.

For example, subclause 151(1) of Bill C-45 states:

The Governor in Council may, by order, amend Schedule 1 or 2 by adding or by deleting from it any item or portion of an item.

These two schedules list what is and what is not considered as cannabis. These schedules or lists of items can be modified by the government without needing to come back to Parliament for us to agree to the change.

Canadians are presumed to know what is contained in these schedules, even when they are quietly changed by regulation. Ignorance of the law is no excuse for breaching a regulatory provision. This was made clear in the 1980 decision of the Supreme Court of Canada in R. v. Molis. Molis and a partner, owned a private company that operated a laboratory. In 1975 they started producing a drug known as MDMA. At the time, the drug was not listed as a restricted substance in Schedule H of the Food and Drugs Act, but in June of the following year it was added to the schedule by way of regulation, and the change was published in theCanada Gazette. Two months later, Mr. Molis was arrested, charged and then convicted of trafficking in a restricted drug.

At trial he claimed he had not known that the drug had been added to Schedule H. He tried to give evidence that he had been as duly diligent as he could be expected in his attempts to ascertain whether it was legal to manufacture the product MDMA. The trial judge refused to allow him to present such evidence. The judge said:

. . . ignorance of the accused as to the state of the statute and the regulations . . . provides no defence, and that evidence proposed to be introduced to prove such ignorance and any steps taken by the accused to obtain knowledge of the law, is inadmissible.

Mr. Molis appealed his conviction, but the Court of Appeal for Ontario found that, “The trial judge did not err in refusing to submit to the jury ignorance of the law as a defence.” Mr. Molis appealed that ruling to the Supreme Court of Canada but his appeal was dismissed.

Speaking for a unanimous court, Justice Lamer reviewed the facts of the case. When he considered the possibility of ignorance of the law being a legitimate defence to the charge, he simply said, “I am of the opinion that the defence does not exist.”

Colleagues, all Canadians, therefore, are presumed to know the law, and that includes regulations as well as the statutes we pass in this chamber. They are punished if they break that law, and it stands to reason, therefore, that they should have ready access to the law. They should have ready access to whatever documentation exists or publications exist that help ascertain what the law is that they are expected to follow.

For some years now, the Standing Joint Committee for the Scrutiny of Regulations has been examining whether Canadians have a reasonable opportunity to learn of all the federal laws that are enacted through the regulatory process. In particular, the committee has been looking at regulations that are put in place through a process known as incorporation by reference. This is a technique where a particular document or a list that is not in the text of the regulation itself is nevertheless made part of that regulation. That document or list was created by some other entity and exists somewhere outside of government.

Let me give you an example. Transport Canada has detailed regulations concerning the transportation of dangerous goods. These regulations include rules for propane cylinders and a special section for propane cylinders used in hot air balloons. Section 1.50 of these regulations provide that the normal transportation rules for propane cylinders do not apply if the cylinders are being used for hot air balloons, as long as they are, “manufactured, selected and used in accordance with CSA B340, except clause 5.3.1.4 of that standard.” This is a regulation that the citizens of Canada are expected to follow.

So the citizen would say, “Well, what is CSA B340 and what does clause 5.3.1.4 say?” CSA stands for the Canadian Standards Association. This association develops standards in 57 different areas and is made up of representatives from industry, government and consumer groups. CSA B340 is a 70-page document entitled “Selection and Use of Cylinders, Spheres, Tubes and Other Containers for the Transportation of Dangerous Goods.”

This entire document has been incorporated into the Transportation of Dangerous Goods Regulations. It has the force of law and we’re all expected to follow it. It must be followed, but it’s not available from the government. Even online it’s not available. The only place one can obtain it is on the Canadian Standards Association website, and that costs the person making the inquiry $157. Unless I’m prepared to pay $157, I cannot even tell you what is in this document.

Other government regulations refer to documents other associations and groups have created. For instance, Transport Canada also has regulations concerning sound level metres. They have to meet the specifications contained in a document entitled “International Standard IEC 61672-1:2002.” It is available from the International Electrotechnical Commission based in Geneva, Switzerland. It is available on their website for US$240. Is that a reasonable price for a citizen of our country to pay to a foreign-based organization in order to comply with Canadian law? That’s the question you should be posing.

Other problems the Standing Joint Committee for the Scrutiny of Regulations has discovered is that many of these documents that are incorporated in the regulations are not in both official languages.

For example, Environment and Climate Change Canada has regulations for testing petroleum products. These regulations incorporate by reference document D3231-13, entitled “Standard Test Method for Phosphorus in Gasoline.” It is available from ASTM International, located in Pennsylvania, United States of America, for US$46, but it is available in English only.

This report of the Standing Joint Committee for the Scrutiny of Regulations questions whether documents incorporated into our regulations by reference are truly accessible to all Canadians when they are available in only one language, and asks whether the costs Canadians must pay to determine what is the law are reasonable. Your committee was unable to identify any criteria that various government departments apply in order to answer those questions: Is a document bilingual, or can we translate it? What about costs? Should someone have to pay $1,000 or $200? There seems to be no standard.

Colleagues, I urge you to take a look at this report, which will tell you the history of this matter. This is the second time we’ve gone to the Minister of Justice. The first time, the minister didn’t seem to be moved by our concerns. We brought representatives to our committee and generated a report as a result of that, which is before you. The recommendations appear in this fourth report. More important — or equally important — is that we’re asking the Minister of Justice to give us a substantial answer in relation to these issues.

For example, one of the recommendations is that the government examine means of minimizing the incorporation by reference in federal regulations of unilingual documents and of documents available only at a cost; that the standard should be to reduce that to an absolute minimum; and that the government develop a directive applicable to all regulation-making authorities that outlines the various requirements I’ve made mention of. One of these requirements is that a regulation-making authority provide justification in the Regulatory Impact Analysis Statement accompanying a regulation for the incorporation of any document that is not in Canada’s two official languages and that is available only at a cost.

Those are the kinds of recommendations we’re making. I spent some time explaining to you why we have come up with these recommendations, so that you can understand this area of the law that is not as extensively canvassed — certainly not in this chamber or otherwise. We do have a number of honourable colleagues who serve on this committee, and it is an important part of the work that should be done by Parliament. When we pass a bill here, you often see the various clauses in the bill that say the Governor-in-Council, minister and cabinet can determine, by reference or otherwise, certain regulations. That continues to be an important part of the scrutiny that we should be applying.

Honourable senators, I hope that you can support the committee in relation to this particular report. As part of the report, we’re asking the minister to reply with meaningful action in the time provided by our Rules. Thank you, honourable senators.