Hon. Tony Loffreda: Honourable senators, I rise today at third reading to speak to Bill S-6, an Act respecting regulatory modernization. I want to thank Senators Woo, Smith and Deacon for their excellent speeches. I intend to be brief and complementary. It is getting late. This must be the latest I’ve spoken on a bill, so I will be brief.

My gratitude goes to all senators from the seven standing committees who studied the subject matter of certain parts of the bill, as well as my colleagues on the Banking Committee for their review of the bill.

As you know, the bill makes common-sense changes to 29 different acts of Parliament that will modernize Canada’s regulatory system.

Senators may remember that the government’s commitment to regulatory modernization was first announced in the Fall Economic Statement 2018. At the time, the government acknowledged — as Senator Deacon expressed so eloquently — that:

Many federal regulations have been developed and built up over decades. Over time, some regulations can become obsolete and present a real barrier to innovation.

The government committed to introducing an Annual Regulatory Modernization Bill to remove outdated and duplicative regulatory requirements. This is an important step forward and one that is certainly appreciated by the business community.

As Senator Woo pointed out last week:

The modern regulatory system must . . . promote business investment and innovation; second, it must ensure the health, safety and security of Canadians and the protection of the environment. . . .

I agree completely with him. It’s no secret that Canada’s regulatory system is complex, often outdated and a red-tape nightmare for many businesses — which has the chilling effect of slowing down innovation, stalling growth and hindering productivity. The changes proposed in Bill S-6 are meant to eliminate irritants and reduce the overall administrative burden.

For instance, the bill accelerates the coming into force of amendments to the Trademarks Act that were introduced as part of Canada’s Intellectual Property Strategy. I asked Ms. Miller from Innovation, Science and Economic Development Canada about this provision when she appeared before the Banking Committee. I argued that having a strong intellectual property and trademarks system is key to attracting foreign investment and to Canada’s overall global competitiveness. Indeed, Ms. Miller confirmed how important it is. She said:

The importance of intellectual property in making sure that Canada is an attractive place to do business, an attractive place for Canadian companies to grow and scale up and be able to compete globally, cannot really be overstated. It’s an incredibly important asset for businesses to be able to understand and then use and deploy strategically.

She went on to say:

By permitting the entry into force of the amendment, that will really underline the importance of using that intellectual property, that trademark, in Canada; that not only reinforces your brand in Canada, it reinforces it as well globally. . . .

Colleagues, this amendment, like most others in the bill, although minor in scope, has the combined effect of making our regulatory system more efficient and less burdensome.

As Mona Fortier, President of the Treasury Board, said, “We’re modernizing rules to make it easier for Canadians to get things done.”

Allow me to say a few words about results and consultations.

In its Regulatory Policy Outlook 2021, the OECD reminds us that governments “spend far too little time checking whether rules work in practice, not just on paper” and they need to “move past the traditional “set and forget” rule-making mindset and develop “adapt and learn” approaches.”

But for the government’s annual regulatory modernization exercise to be successful, the government must engage early with all relevant stakeholders. As the OECD suggests:

People —

— and I would suggest businesses too —

— are more likely to view regulations as fair if they are engaged in the deliberative process and the outcomes of consultations are clearly explained.

And as early as possible. Even in business, when we did budgets and looked at projections and strategies, we obtained the best results when we involved stakeholders — the bottom-up approach. You then take the decision on top, but you need the engagement. To get the engagement, you have to get them involved, and it’s important to involve stakeholders early in the process. We’ve heard Senators Woo, Smith and Deacon make the same point, and it’s an important point.

As we described in our Banking Committee report:

. . . a number of witnesses expressed their dissatisfaction —

— and I’m stressing the point —

— with the limited or, in some cases, the lack of government consultations on the regulatory changes proposed in Bill S-6. Since extensive and inclusive consultations lead to better regulations by allowing the government to gather valuable expertise and feedback, the committee urges the government to improve its consultation process for the regulatory modernization by including more diverse stakeholders —

— diversity is very important —

— using online consultations more frequently and reaching out to stakeholders sooner in its regulatory development process.

The government’s Let’s Talk Federal Regulations pilot project is a good start and will help address some of the concerns raised by industry when it comes to consultations. This new platform has a lot of potential and I hope it will be able to enhance the government’s engagement practices — engagement, engagement, engagement. You need engagement from the business community. There is a lot of talk that the government must improve those links to the business community, and I think it’s a fine place to start.

It is also extremely important for the government to monitor and assess the impact of any new regulatory changes. In my view, our Joint Committee for the Scrutiny of Regulations is an important part of that review.

Honourable senators, although we may have felt rushed in pre‑studying and studying Bill S-6, we did some great work, and we should feel confident in adopting this bill at third reading today.

The government’s commitment to reviewing regulations yearly, through legislation, is a great decision. I certainly look forward to participating in the legislative review of any such bill in the future. The Senate can contribute much value and expertise to this exercise. Thank you.

The Hon. the Speaker: Honourable senators, Senator Ringuette’s time has expired. She is asking for five more minutes. If you are opposed to leave, please say “no.”

Senator Cotter: I wasn’t intending to enter the debate, but particularly Senator Jaffer and Senator Ataullahjan’s observations about the risks of stereotyping and particularly vulnerable, marginalized or racialized communities invite me to pose this question of you. This is the only part of the bill that has given me concern.

You have spoken to the three words that we have been debating and that have been amended out of the bill. The word I’m most interested in your viewpoints on is the word “general.” I accept your observations about “reasonable” requiring an objective articulation, but the fact of the matter is that people who do get stopped at the border are stopped as individuals. For the life of me, I don’t understand why the choice of a word like “general” as opposed to “specific,” even with the word “concern” was adopted. It seems to me the word “general” invites a border guard to use criteria that are not specific to the individual. As a result, it invites the very kind of concerns that our last two questioners posed. Could you speak to that?

Hon. Michael L. MacDonald: Honourable senators, my question is for the Leader of the Government in the Senate and concerns our access to information system. According to an answer to a written question from Conservative member of Parliament Kelly McCauley tabled in the House of Commons, the Trudeau government paid private consultants over $39 million to process access to information requests. This $39 million has been spent just since January 1, 2020.

Senator Gold, the annual report of the Information Commissioner says that in 2021-22, access to information staff in 28 federal institutions had no access or limited on-site access for processing physical files. Given this, how can the government justify paying tens of millions of taxpayer dollars to consultants to censor government documents?

Senator Gold: Thank you for your question. I can’t answer the specifics of your question. I would imagine and hope that questions of this nature would have been posed to officials when they appeared at the various committees looking at Bill C-19, and more than that, I will certainly make inquiries, Senator Duncan, in the event that the bill receives third reading vote this week as planned.

Hon. Frances Lankin: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the impact of subsection 268(3) of the Criminal Code, enacted in 1997, including but not limited to:

(a)the reasons why there have been no prosecutions under this provision since its enactment 25 years ago; and

(b)the extent to which female genital mutilation is currently occurring in Canada and to Canadian girls taken abroad for such procedures;

That the committee make recommendations, as appropriate, to ensure the Criminal Code provision has its intended impact of ending such crimes being perpetrated against girls in Canada; and

That the committee submit its final report no later than December 31, 2023, and that the committee retain all powers necessary to publicize its findings for 180 days after the tabling of the final report.

Senator McCallum: How will intellectual property that is in the laptop be handled?

Hon. Senators: Agreed.

(Motion agreed to.)

On the Order:

Resuming debate on the motion of the Honourable Senator Dalphond, seconded by the Honourable Senator Bovey, for the third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures), as amended.

Senator Gold: Thank you for the question. With respect, senator, it is not the case the minister does not recognize the problem. The government and the minister thank the commissioner for her report and take access to information seriously. There are more requests, indeed, and they are more complex. The government is taking action.

I am advised that Library and Archives Canada is creating a task force to address the issues. It is reducing the backlog and developing a long-term plan. The government, for its part, added $25 million in Budget 2022 to make documents related to residential schools accessible to all survivors. The government hopes these measures will improve the situation as set out in the report.

Hon. Marty Deacon: Honourable senators, my question is for the Government Representative in the Senate. Senator Gold, about this time last year I inquired about plans to begin a three-year review provided for in the Cannabis Act as I was concerned we would miss the deadline on starting this important work. The three-year mark was this past October, but the only reference made to the cannabis industry by government was the launch of the cannabis strategy table to engage with the industry in this year’s budget document. This will not really look at the public health aspect, and I would suggest this falls short of the kind of review envisioned by the Cannabis Act.

When will the government begin this important review of the Cannabis Act and its impact on Canadians?

Senator Jaffer: Senator Gold, congratulations on an extremely well-thought-out and very difficult speech. Also, congratulations to the minister. As you said in your speech, it is not an easy thing to change politically and in all other ways. I compliment you and the minister. The minister has been very courageous in doing this.

But, senator, you know where I’m coming from and, of course, I support what you said, every single word you said. But to everything you say — that one size does not fit all, that we have to introduce discretion into the justice system, and, as you say, that this is difficult — yes, it’s difficult. I am saying to you not to shoot for the moon. I am saying to you that there are some cases to consider. In my calculation — and we will sort this out in committee — you said 20; I would have said 22, but that doesn’t matter.

The government is making mandatory minimum changes on 20. From what I’ve counted, there are around 73 mandatory minimums, and the judges have held at around 37. My figures may be wrong. I’m not sure — 37 mandatory minimums seem to be unconstitutional.

I say to you that there is now a mishmash out there, 20 and 37, and then there is 73. Would the government look at, in unusual and cruel circumstances, allowing the judge, on mandatory minimums, to have the discretion to not impose mandatory minimums?

Thank you, Senator Gold, once again for an excellent presentation.

Senator Gold: Well, I’ll certainly make inquiries. I will do that, but I really do want to underline the point that this is not a bill about pepper spray. This is a bill about judicial discretion to avoid injustice where circumstances and justice require that discretion be exercised and where the law simply does not allow the judge to have that discretion.

Senator Christmas: Thank you, Senator Gold. I would very much be interested to see what studies and projections were done. I think that kind of data will be most useful.

I also appreciate the reintroduction of community service orders, and I believe the success of that amendment will depend upon a significant increase in support services that are offered to the communities. Quite often judges are so hesitant to refer individuals back to the communities because of the lack of services.

You mentioned some funding increases, but has Indigenous Services Canada been a part of this bill? Will they significantly increase the amount of support services that the communities will need to assist people on community service orders?

Hon. Mobina S. B. Jaffer: Senator Gold, thank you very much for your presentation.

The National Security and Defence Committee has a very competent steering committee, and they chose 12 witnesses. You are saying that we didn’t have children appear before our committee. These witnesses are well-known people who, I’m sure, have studied this material. I think it’s a little unfair to say that they couldn’t speak for the children. I can’t repeat the words you said because I don’t have them in front of me, but I think it’s a bit unfair.

The steering committee had an opportunity to call those witnesses. They could have called children if they had deemed it necessary. As chair, I have done that a number of times. The fact that they called 12 credible people to the committee, do you not think they were able to balance the number of witnesses? Don’t you think you were unfair in the way you addressed those witnesses who appeared before us and provided good testimony?

The Hon. the Speaker: I regret to inform the honourable senator that her time has expired again. Are you asking for more time?

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Massicotte, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

[English]

An Hon. Senator: On division.

(Motion agreed to and bill, as amended, read third time and passed, on division.)

(At 11:39 p.m., the Senate was continued until tomorrow at 2 p.m.)

Senator Gold: Thank you, senator, for your question. Of course, the government and I share the concern, as we all should, that the application of any legal standard could encourage a bias or racial profiling.

I do believe that the general concern speaks more to the fact that with digital devices, unlike other kinds of measures — and I addressed this in my speech — the officer may have no specific contravention in mind and no knowledge of what he or she may find because they are simply in the moment, although there would have been objective indicators to signal that something may be being hidden.

We had testimony before the committee as to what some of these indicators might be. I believe that it is still very much focused on the individual before the officer who has, in some way or other, in the answering of the normal questions one is asked, given some indication that there is something amiss and, therefore, is then required to go to a second stage of questioning, at which point the officer may very well have reached the conclusion that the threshold has been met.

Senator Gold: The attendance of the official at the party was a mistake and unacceptable. It has been so stated by the minister and by the Prime Minister himself. It shall not happen again.