Benjamin Faveri (Carleton University)
Incorporation by reference (IbR) allows regulators to make public and private standards legally binding without reproducing their text by referencing them into legislation or regulation. This referencing blends public authority with private technical expertise, raising some important questions about democratic oversight and regulatory capture. Canada has used IbR 1,430 times from 1949 to 2024, yet little attention has been given to Canadian IbR. This thesis provides an initial exploration of Canadian IbR usage trends, possible influencing factors, and how government and standard-setting bodies think about, use, and engage in the IbR decision-making process. These explorations are carried out through the creation of a novel dataset of Canadian IbR instances, IbR policy analyses, and 10 semi-structured interviews with senior government and standard-setting officials who have each worked on IbR. The findings illustrate that IbR usage shifted from periodic spikes to more consistent yearly usage after 2015, when most of the identified IbR policy efforts began appearing. Five departments accounted for about 60% of all IbR use and five standard-setting bodies developed approximately 60% of all referenced standards, evidencing concentration and potential path dependence in Canadian IbR usage. Governments and standard-setting bodies tended to view IbR the same way, to reduce administrative burdens, benefit from external expertise and convening power, and improve international trade and competitiveness. IbR streamlines rulemaking and fosters regulatory alignment but amplifies concerns over accessibility, democratic accountability, and capture. Future research ought to explore these concerns.