The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:37 a.m. for the review of statutory instruments.
EVIDENCE
[Recorded by Electronic Apparatus]
Thursday, February 12, 1998
• 0837
The Standing Joint Committee of the Senate and the House of Commons
for the Scrutiny of Regulations met this day at 8:37 a.m. for the
review of statutory instruments.
Mr. Derek Lee (Joint Chairman) in the Chair.
[English]
The Joint Chairman (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Unless there are any points of order, we will proceed with our agenda.
SOR/88-361 — ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988
The first item deals with the Royal Canadian Mounted Police Regulations. The committee is of the view that two sections of the regulation are unconstitutional/ultra vires.
I would like to ask counsel about the timing of this item. I know it was before us about nine or ten months ago. It is a serious matter, and perhaps counsel would comment on it.
Mr. François-R. Bernier (General Counsel to the Committtee): The draft report included in the material was not adopted by the committee but was included to provide background information.
Following an appearance before the committee by the Solicitor General, the committee did not adopt the report. The Solicitor General undertook to proceed with a revision of current regulation and stated that this revision would be ready for submission to him in the fall of 1997. The correspondence before the committee updates this commitment. In there, it was said that the revision would be ready in the New Year.
I spoke to Mr. Paul Dubrule yesterday, and it is now expected that this will be done next week — that is, a series of proposed amendments being submitted to the Solicitor General. After that, it might still be some time before those amendments are in place.
If the committee is satisfied with that progress, it could still seek an assurance that those proposed regulations be pre-published prior to being adopted so as to ensure that various interested parties have an opportunity to make representations before the new rules are cast in stone.
The Joint Chairman (Mr. Lee): Are there any comments?
[Translation]
Senator Grimard: Are you saying that we are not going to proceed with the report?
Mr. Bernier: No, I do not believe so. You will recall that in the spring, shortly before Parliament was prorogued, the committee voted not to adopt the report since the Solicitor General had undertaken to review the contentious provisions of these regulations with a view to extending to members of the RCMP the right to engage in political activities.
[English]
The Joint Chairman (Mr. Lee): I have read through the report again and I agree with it all. In the view of your chair, these two sections of the RCMP regulations are burnt toast. They are not sustainable; they are unconstitutional; they will have to be changed. The question is when. It should have been yesterday but it will apparently be tomorrow.
This committee has seen many tomorrows. I regret that something as clear and well-written as this draft report will not be put into effect. The last time we considered this, I was of the view that if matters were not rectified by the time Parliament came back into session, I personally would take a firmer view of them.
Counsel, by modifying our draft slightly, is it possible that we could produce a report without disallowance for the consumption and edification of the individuals who are preparing this file for court, for the Department of Justice, and the Solicitor General? I am suggesting that we actually make use of the report as it is written, with a few procedural modifications. We could report to our respective houses, but not recommend a disallowance at this point.
Mr. Bernier: Mr. Chairman, the report can easily be changed to an explanatory one in which what is now Appendix B would become the report. At some point therein, we could indicate that the regulations are in the process of being changed and that the committee trusts that those changes will adequately reflect the constitutional concerns.
Senator Lewis: Will there be some indication in the report that disallowance might follow?
Mr. Bernier: We could add to the history to indicate that at one point the committee did consider disallowance but, given the minister's assurance, decided to take this route. That makes it clear that the committee was willing to consider that.
Senator Lewis: Yes.
Senator Moore: At the last meeting of this committee, we had a witness before us who exhibited a tremendous dalliance in responding to the very reasonable requests of counsel for the committee. Is this just another put-off? I do not think there is enough respect or credence given to the work of the committee. I do not know how we would go about this, but I would like to put some type of a termination on it, saying that we want a response by a specified date. Surely people can get back to us within a month. Some of the stuff we heard at the last meeting of this committee was unbelievable. It took them months to even acknowledge receipt of a letter. That is not good enough. We take this task seriously. It is serious business because these regulations are the law of the land. How do we tighten that up and get the word out? Is there someone to whom we give notice, or do we advise every department individually that we want some action in a timely manner?
[Translation]
Mr. Lebel: Are we really being serious here? This matter has been before the committee since 1990. I recall that when the 35th Parliament was drawing to a close, we were starting to show some guts, that we were even on the verge of disallowing these regulations which, in the opinion of our legal experts, corresponded in every respect to an outright attack on personal rights and freedoms. The problem, Mr. Chairman, and I say this with all due respect, is that this committee controls parliamentary activity. People have perhaps been critical of the fact the committee joint chairmen are members of the government party. This is readily apparent. I am not trying to be sarcastic, but that is the way things are.
When I was joint chairman of the committee along with Senator Lewis, we ordered the minister to appear and he managed somehow to get out of it. Elections were called. Here I am in this committee a year or so later and we are still grappling with this issue.
I think that we should submit the report as drafted to the government since the regulations are ultra vires. This committee is here to control government activity and if we do not to live up to our role, some people may be victimized by these regulations. This has already happened. I am quite willing to believe that the fire has been put out for the time being. Officer Delisle is back on the job. However, what is to say that tomorrow morning, the RCMP will not proceed with another round of firings, still acting in accordance with these regulations. In my opinion, we should move to table the report disallowing these regulations.
[English]
Mr. Shepherd: As a new member of this committee, I wonder about its effectiveness. There appears to be a question of respect. I think the committee can use its power of disallowance to get a degree of respect. This has been going on for a long time. Presumably that is the power of the committee, and if we do not use our power, we are powerless.
Mr. DeVillers: At our last meeting, we saw that the committee has been ignored for years at a time. I think some responsibility for that comes back to the committee. If one sends a letter and does not receive an answer within a year, there is responsibility on both sides.
This is a new committee in a new Parliament. We have a commitment from the Solicitor General that a response will be made. I am reluctant to say that we should go back because we were ignored for so many years in the past. Perhaps we should send out fresh notices with fresh dates, say that we mean business, and let it go.
The Joint Chairman (Mr. Lee): Your chairman is looking for a consensus among members. I suggest that it is important for us to go on the record in this matter with regard to the principles. They are important. I should like to see this document or a form of it on the record in the House.
Second, I can see that most of the committee is ready to move to disallowance. All the clocks have run. I propose that we report immediately using this very report, modifying it only to change it from a disallowance report to a non-disallowance report, and to include a reference to the fact that undertakings were given and the Solicitor General did appear on April 24, 1997, if those facts are not already in the report.
We should indicate in a letter, which we are capable of producing on a timely basis, that if the regulations are not revoked or revised to our satisfaction by April 24 — that is, the one-year anniversary of the Solicitor General's appearance — then we will move to disallowance at that point.
Does anyone else wish to comment?
Mr. Wappel: I do not understand the rationale that you put forward to submit a report to the House now and to the Senate, especially if it is a watered-down report. I agree that we should write to the Solicitor General. I agree that we should give a date. The date you suggest is as reasonable as any other. We can just as easily enclose a draft of what we are proposing to send to the Houses in the letter and let the Solicitor General read it. I do not see what purpose will be served, and I have not heard or could not understand your argument in favour of submitting a watered-down report to both houses. Could you tell me what the purpose would be?
The Joint Chairman (Mr. Lee): I do not regard the report as being "watered down." The report will remain precisely as it is written, modified only to change it from a disallowance report.
Mr. Wappel: That is watering it down. If the report says "disallowance" and you say, "No, not disallowance," that is watering it down no matter what you call it.
The Joint Chairman (Mr. Lee): The intellectual positions on the Constitution are not watered down, nor is the committee's resolve watered down. The only item is the view of the committee that there is some hope that the Solicitor General, the Department of Justice and the Commissioner of the RCMP may get this thing modified. We are simply putting out the guillotine and the clock. We are capable of moving to disallowance in April in a way that would have this disallowed or at least debated in the House. The disallowance procedure will have been triggered by April and certainly before the summer.
I do not regard it as watered down now. Why put the document on record? It is for all those who would read it so that they may see, very clearly, the views of the committee.
Senator Moore: We have been tolerant beyond that.
The Joint Chairman (Mr. Lee): I would rather not publish the fact that we are so tolerant. We have been very tolerant, but there are some clear legal positions staked out in this document. I should like the courts to see it, if they wish to read it. I should also like the commissioner of the RCMP to have it on his desk.
Mr. Wappel: It does not have to be filed in Parliament to do that.
The Joint Chairman (Mr. Lee): I suppose we do not have to introduce it into Parliament. We could just prepare to send it out with the morning newspaper. However, putting it before Parliament makes it a public document. It will have the committee's seal and will be adopted by the committee.
Mr. Malhi: I am a new member. The last time I attended this committee meeting, I was replacing someone else. I was shocked to hear on that day that the department takes so long to prepare a report. If they are ignoring the committee, how can ordinary people ever get a copy of a report?
I am happy with your decision. In the future, the committee should set up some deadlines so that departments know about them and honour them.
[Translation]
Mr. Lebel: Yes, I understand that you are quite naturally full of goodwill. During the 35th Parliament, we complained that this committee was not being taken seriously, that its recommendations were being viewed as unimportant and insignificant. We protested this kind of attitude on the part of organizations and departments ordered to appear before the committee. Our wishes were being blatantly disregarded.
During the 35th Parliament, the committee had decided to take a more serious approach, to be more aggressive and demanding and to order departments to comply with the mandate assigned to us by Parliament.
I see that we are still wavering. We are still trying to sugar coat things, so as not to ruffle the feathers of those close to the governing party. Quite frankly, we are wasting our time because we are incapable of being serious or of showing any kind of self-respect. We are asking the government and government organizations to show us some respect, whereas we do not even respect ourselves.
I would like to make a formal motion. You will have to take it into consideration, Mr. Chairman.
I move that the report as tabled be forwarded immediately to the government. The deadline for responding would be April 24. Let us see what kind of answer we get. You can bet that the government will respond later than April 24, and that it will of course have an excuse of some kind, just like it always does! However, I will wager that by April 24, the government will not even have acknowledged receipt of the letter or of the watered-down report, as Mr. Wappel called it, that we are preparing to submit. I favor a hard-line position. We must command some respect, otherwise we are simply wasting our time here.
I move that we forward the report as presented by counsel. That is my motion and I would like it put to a vote, Mr. Chairman.
[English]
The Joint Chairman (Mr. Lee): Does the clerk have a sense of that motion?
The Joint Clerk of the Committee (Mr. Tõnu Onu): Mr. Lebel is proposing that we adopt the draft report as it stands, immediately.
[Translation]
You would like us to adopt the report. Is that correct, Mr. Lebel?
Mr. Lebel: Call the question.
[English]
The Joint Chairman (Mr. Lee): We need someone to second the motion.
Senator Grimard: I so move.
The Joint Chairman (Mr. Lee): The motion is on the floor. Do we have firm enough wording on it?
The Joint Clerk (Mr. Onu): Yes.
The Joint Chairman (Mr. Lee): Could we have comments, then?
Senator Moore: What will the resolution be? What will be the disposition of the report? Is that part of the resolution? What are you going to say?
The Joint Chairman (Mr. Lee): To be fair to Mr. Lebel, he has moved a motion. We usually accept motions from the floor. Perhaps the clerk could read that again for Senator Moore.
The Joint Clerk (Mr. Onu): Mr. Lebel is proposing that we adopt the draft report as it stands, immediately, with no changes — that is to say, that the committee adopt the report before it.
[Translation]
Mr. Lebel: And that it be presented in the House.
[English]
The Joint Clerk (Mr. Onu): And that it be presented to the House of Commons and to the Senate.
The Joint Chairman (Mr. Lee): And that would be a disallowance report; is that correct?
Mr. Lebel: Yes.
Senator Moore: I thought I heard Mr. Lebel mention something about April 24. What was that?
Mr. Lebel: I said that if we impose a deadline of April 24, for example, we will not even have received a response by that time.
[Translation]
Mr. DeVillers: Are we ready to debate the motion?
[English]
The Joint Chairman (Mr. Lee): There is a motion on the floor, so, yes, we are.
[Translation]
Mr. DeVillers: I have two reasons for objecting to Mr. Lebel's motion. First of all, the composition of the committee has changed since the report was drafted. Second, we have a new minister. We should send out another notice. The committee has not been taken seriously for some time now. I agree that we should take steps to ensure that this changes. However, I think we should send another notice before going any further.
[English]
Mr. Wappel: Mr. Chairman, I wonder if I might suggest a compromise solution.
I do not agree with you that we should file with Parliament what I call a watered-down report. I am sympathetic with Mr. Lebel, but I agree with Mr. DeVillers.
I suggest that we adopt the fifth report as is, recommending disallowance so that it becomes the report of this committee. We then write to the new Solicitor General and enclose a copy of the report. We indicate that if we do not have this matter satisfactorily resolved by April 24, the joint chairmen will report the fifth report to the House at the earliest opportunity thereafter without further discussion.
We have the report — it is ours. It recommends disallowance and shows we are not fooling around. However, we will give a little bit of an opportunity to the officials and the new Solicitor General to comply.
Senator Lewis: If we adopt a report, we have to file it, do not we?
The Joint Chairman (Mr. Lee): Our counsel may wish to address that issue.
Mr. Bernier: Members may want to give serious thought as to whether the committee should adopt a report that does not even mention the fact that the Solicitor General urgently asked to appear before the committee on April 24 and did appear, and the result of that appearance. There is no mention of that in this draft. Obviously it was prepared before that time. Frankly, I think the committee would not be reporting the full story to both houses, whichever form it takes — whether it is a disallowance report or a regular report — unless it mentioned the undertaking of the minister to revise the regulation. Surely that is a crucial element. Whatever the decision of the committee, I suggest that the draft must be modified to reflect later events or events that post-date this.
[Translation]
Mr. Lebel: What events are you talking about?
Mr. Bernier: By the time the Solicitor General appeared before the committee, the report had already been drafted. If you recall, the Solicitor General had obtained a copy of it, I am not sure by what means, and had made a rather urgent request to appear before us. He did in fact testify on April 24, at which time he agreed to amend the regulations in question.
None of this is mentioned in the draft report which was drawn up prior to the minister's appearance. In my view, it would be unfortunate if we were to present a report to Parliament which disregarded some essential facts.
Regardless of what the committee decides, that is whether to present a report disallowing the regulations or a regular report, at the very least, we should give our counsel time to draft an amendment to the report to show where the matter now stands.
[English]
This notion is interesting, quite frankly. I am speaking of a suspensive disallowance where the committee would adopt the report, hold on to it until some future date, and then the tabling in the House would kick-start disallowance itself. I think we should get advice from the clerks as to whether that is proper.
My normal inclination is that of Senator Lewis, that the point of a committee report is a report to its houses from which the committee is created. It would seem odd and anomalous that a committee would adopt a report and then deliberately withhold that report from the houses.
I think that is a procedural point, but I think it should be looked into if that option is to be seriously considered.
The Joint Chairman (Mr. Lee): As we continue our discussion, I see consent around the table that these two sections of the regulations have to go.
[Translation]
Mr. Lebel: There is a motion on the table, Mr. Chairman. I am prepared to amend it to take into account counsel's suggestion. I will withdraw my motion and ask counsel to prepare a new report, if possible, for the next meeting. We will decide on further action at that time. This will give him an opportunity to include recent events in the report.
[English]
Mr. Bernier: Mr. Chairman, in that event, we still must know what is the wish of the committee, because if we are preparing a regular report, the changes in the draft are not the same as if we stick to a disallowance report. They are two very different forms of report. Before the committee leaves today, we still need a decision as to what the committee wishes to do.
As Mr. Lee suggested, the committee could simply report to the houses indicating that this is what the committee thinks. In the event such and such does not take place before such a time, the committee will consider disallowing these regulations, or the committee moves directly in two weeks to disallowance.
Mr. Chairman, I am not sure the committee would do itself much good in terms of credibility by springing disallowance on the minister, when the minister has taken the trouble to appear before the committee and has promised to make certain changes to accommodate the concerns of the committee.
A resolution is at hand. There may be a question of timing. The question is whether disallowance is perhaps too blunt an instrument to simply achieve greater speed.
[Translation]
Mr. Lebel: Mr. Bernier, the report that you have tabled and the legal opinion that you have issued are nevertheless quite serious. Your comments about the personal rights and freedoms guaranteed in paragraph 2(b) and 2(d) of the Charter are serious. When you conclude that these regulations violate the Charter of Rights and Freedoms, I assume that you did not just say this to get the committee's attention. There is a serious backdrop to all of this.
We are talking about fundamental rights, unconstitutional provisions and freedoms that have been denied. These provisions have been ultra vires for seven years and should never have been adopted in the first place. Should we continue to wring our hands for the next four years? Is that what you are suggesting? You talk about the committee's credibility. How credible is it if it cannot enforce its own resolutions, or if it is afraid to table them or only adopts them out of fear?
I am quite willing to give our counsel and support staff an opportunity to amend the draft report to make it more current. I do not really see the need to do this, but if this eases counsel's concerns, then so much the better!
We are talking about fundamental rights that have been denied. We are supposed to be the guardians of fundamental rights when it comes to regulatory legislation and we are letting anyone who is not satisfied with our report pass us on the right and on the left. We are being passed on both sides. It is time to do something. I am quite willing to amend my motion, but we have to get serious here.
We get up at 6 o'clock in the morning for these meetings, only to have to contend with frustrating issues like this.
Getting back to my motion, I am prepared to wait until the next meeting, by which time I hope the amended report calling for the disallowance of the regulations will be ready. I hope that the clerk is taking note of this. This is a formal motion, one that needs to be voted on if we are to debate the subject.
[English]
The Joint Chairman (Mr. Lee): Thank you for your comments, Mr. Lebel. You have chaired this committee before, and you offer good guidance. Did I hear you say that you would withdraw the motion as presented?
Mr. Lebel: Yes.
The Joint Chairman (Mr. Lee): I do not know if we need consent to have a motion withdrawn, but I am sure all members will consent to that. The question then is what shall we do? I see around the table a determination to disallow, if necessary. I saw a consensus that April 24 was a reasonable date as a deadline for disallowance. If these regulations are still in place on April 24, we will do them a favour and offer them a disallowance from the House.
In the meantime, do we make this draft report available for public consumption? Of course, the Solicitor General already has this because he had the draft when he came to see us. That is another issue. The department already has the benefit, unofficially, of our views. It would be useful for all of the country to have the benefit of our views and to get them on the public record, or at least those who wish to read them.
We should get the Justice Department officials in here to reply. I would hope that the change in the regulations would come before the reply was due back to us.
I go back to my suggestion about getting something on the record. It will either be a very long letter from us or a report containing the issues. I see a determination here to put a clock on the disallowance procedure. April 24, being the one-year anniversary of the Solicitor General's appearance, would probably be seen as reasonable by everyone, except the Solicitor General's officials, who work a little bit slower.
[Translation]
Mr. Lebel: February 14 is also Valentine's Day. I am not certain that everyone agrees on April 24, Mr. Chairman. You are assuming that there is a consensus. We should find out if this is in fact the case. Is this a motion that we are going to vote on?
[English]
The Joint Chairman (Mr. Lee): Let us hear from members and try to get through this as quickly as we can.
[Translation]
Senator Grimard: I am having some trouble understanding why it is that we are getting this report today, February 12, even though it was drafted some time ago.
Mr. Bernier: The report was presented to the committee last spring. The committee had the report in hand, and if you recall, it proceeded to vote after the minister's appearance. The committee voted on whether or not to adopt the report and decided not to. This is not the first time that committee members who sat in the previous Parliament are seeing this report.
Senator Grimard: I understand, but the new parliament has been sitting for several months now, so why are we only seeing the report today? Why was this issue not on the agenda of previous committee meetings?
Mr. Bernier: The committee had voted not to adopt the report. As I explained earlier, this report was presented today to provide some background for the correspondence presented to the committee. The committee was to consider today the progress being made in the drafting of the new regulations. I thought that for the benefit of the new committee members, instead of writing a note or talking for an hour about these particular provisions, it would be a better idea to submit a copy of the draft report. The members could then read it and get some background information.
Senator Grimard: Will the new report be signed by Senator Lewis and Mr. Lebel, who were joint chairmen at the time, or will it be signed by the new joint chairmen?
Mr. Bernier: No, it will automatically be signed by the new joint chairmen.
[English]
Mr. Wappel: Very briefly, it may have been submitted for background, counsel, but it is obvious that the committee is unhappy with the progress of this file. That is the whole point of this discussion. We are unhappy at how long it has taken, notwithstanding the Solicitor General's undertaking in April. The struggle we are having is what to do because we are unhappy.
The fifth report shows us how unhappy we were in the previous Parliament. As I recall it, this report would have been adopted but for the 11:59 p.m. appearance of the Solicitor General here. We backed off as a courtesy to him since he undertook to proceed with the amendment of these regulations.
Now you have brought it forward for progress, and the progress is not sufficient. We are discussing how to resolve this issue as quickly as possible. We understand — and the nuance had not occurred to me, I must admit — that indeed the report will have to be updated. That is only obvious and only fair. However, updating the report does not change the fact that this committee feels these regulations are unconstitutional and should be disallowed. The only issue is when we do that and how. Technically, can we hold off on a report? Do we want to do that? This is what we are discussing.
While this report was provided for background, it is fair to say that we are all in agreement. No one here is happy with the progress of this file. We do not want to simply move it along; we want to finish it as quickly as possible. I think that is what we are talking about.
Senator Moore: We have a new Solicitor General. He may not even be aware of this.
Is he aware of this, counsel?
Mr. Bernier: I would assume so. Given the significance of the issue raised, his departmental officials would be seriously at fault if they had not briefed him.
Senator Moore: Is he aware? Would his officials tell him?
Mr. Bernier: I should hope so.
Senator Moore: We do not know. I am assuming he does not know. I give Andy Scott the benefit of the doubt here. He is a reasonable, effective MP and minister. I would like to see him have the opportunity to react. Perhaps we should send a letter now saying that the committee will be meeting again on a certain date and that if we do not have some action by that date, we will move to disallow.
We should copy the letter to the head of the RCMP and to whomever else we think needs a copy. However, I do not know if we should be waiting for two months to make that decision. It is a nice round date because it is the anniversary, but we are also putting this off and being nice people, which we are. At the same time, the reputation that members of this committee are a soft bunch is developed throughout all of these files. If they keep throwing paper at us, they need not worry. Our members keep changing, and they can make the issue go on forever until it disappears.
In connection with the feelings of committee members, I keep hearing the terms "lack of respect" and "displeasure". We must have respect. We should send a good, firm recording letter immediately, stating the date of the committee's next meeting and that we will take firm action.
The Joint Chairman (Mr. Lee): Perhaps we should move the date up to April Fool's Day.
Senator Lewis: When we had this draft report before us last April, that did get some reaction.
I think we should update the report and write the letter to the minister, including a date, so he will be cognizant of the fact that if nothing is done, the regulations will be revoked or disallowed.
Mr. DeVillers: I am having difficulty with the report going for disallowance at this point when there has been a shift change.
If I am a right winger in a hockey game and get high sticked because of something the right winger of my team did on the last shift, there is something fundamentally wrong with that. I acknowledge counsel's position. The minister takes over the portfolio and the file, and he is aware. However, I try to think of it more personally than that. Is this Solicitor General aware and has he had the opportunity to respond?
Mr. Bernier: We must look at two aspects. We have two sections of the regulation that the committee is convinced are unconstitutional. Those could be revoked and gone tomorrow. It does not change a thing. We also have the separate question of the adoption of new limits on political activity by members of the RCMP.
In regard to the adoption of new regulations, the committee must be careful not to create so much pressure for speedy adoption of new regulations that they do not undergo a proper public consultation process. Given the significance of restrictions on fundamental rights and freedoms, it is important that when the Solicitor General comes up with new draft regulations, there be sufficient time for public consultation and discussion of that draft before it is cast in stone. Otherwise, the risk is that you are caught with unsatisfactory limitations from a constitutional point of view.
Any pressure on movement must be pressure in terms of pre-publication of the regulation — that is, obtaining a published official draft that interested parties can comment on. That is on the new side.
On the existing regulations, there is no real need to ensure a bridge between revocation or the current regulations and the new regulations. If the committee is correct that the existing regulations are unconstitutional, they are a nullity. Revoking them or disallowing them at this stage does not create a legal vacuum. If they do not exist, they should not be applied. For all intents and purposes, I suspect that the RCMP has ceased applying them or would not rely on them, to wit, the fact that one gentleman who had been caught under those regulations was reinstated, and the RCMP simply dropped the proceedings against him.
We must keep in mind that there are two aspects to the file. There is the aspect of getting rid of unconstitutional regulations, and there is a very separate question of adopting new limitations. Everyone agrees that limitations can be properly put in place to limit political activities by members of the RCMP.
On the second part of the process, rushing is not in anyone's interest. We must apply pressure to get a draft for discussion and an official government position. If we push to have something adopted, the risk is that we end up with something on which there is not sufficient public participation and consultation by interested parties, including this committee.
Even though they will be draft regulations, the committee would be interested in taking a long, hard look as to whether the new, proposed limitations are constitutional in this committee's view.
[Translation]
Mr. Lebel: It is not up to the committee to concern itself about what the government plans to do if these regulations are disallowed. This is not part of our mandate. The government passes legislation and we, the committee, scrutinize the regulations.
You say that the RCMP is no longer enforcing these regulations. I can tell you that Officer Delisle whom I met in Parliament last week is now back on the job, although he had to resign from his job as mayor of Saint-Blaise, Quebec. This was a sine qua non condition.
Counsel, or we politicians for that matter, do not seem to think that there is anything seriously wrong with being put under the gun by the boss as a result of unconstitutional regulations which violate human rights and freedoms. I am not the one saying this. Our counsel has been saying this for the past seven years. We arrive here this morning and we are told that this matter really is not that important. Considering that a Quebec police officer — and this could happen anywhere in Canada, in your own regions — had to resign as the mayor of a municipality in order to keep his job with the RCMP, well — as far as I am concerned, that was like putting a knife to his throat. The committee has to decide if it is prepared to accept that for seven or eight more years. However, I think we need to get serious about this!
[English]
The Joint Chairman (Mr. Lee): Colleagues, we are looking for a procedural route to get us through the next 71 days. It is my view that the contents of this report should be on the public record because at this point they are not. It is useful to have them there, but I do not know how to get them there unless we report. It may be slightly premature to go to disallowance now.
Mr. Wappel's proposal is that we put in place all elements of a disallowance, save and except the tabling in the houses. I do not know whether that gets the report on the street because it is not tabled yet. Is there any proposal that would get us through this now? Does anyone have a proposal?
Mr. White: I do not know if it is practical, but listening to the discussion I wondered if we should send a letter to the Solicitor General along with the transcript of this meeting, saying, "As you can read for yourself, sir, there is no mood within the committee to tolerate the situation much longer, and we would appreciate that you meet the April 24 date with some sort of substantive action."
The Joint Chairman (Mr. Lee): Is there any resistance among committee members to adopting the report as it is, without the disallowance resolution, and tabling that?
Mr. Wappel: It cannot be as it is. Based on counsel's comments, it must be updated.
The Joint Chairman (Mr. Lee): My comments earlier included the appearance of the Solicitor General and getting it on the record. Can we agree to adopt a position today that would have this issue come back for reconsideration on some date in April, and make it clear that if the RCMP has not put its house in order by then, we will consider disallowance?
[Translation]
Mr. DeVillers: I simply want to respond to Mr. Lebel's comment. No one is saying that we are not taking this matter seriously. I want the record of this morning's meeting to clearly reflect that all committee members take this matter very seriously.
Mr. Lebel: Did to the Solicitor General's appearance before the committee on April 24 last change in any way the substance of the matter at hand? You are saying that the report will be amended to reflect the fact that the Solicitor General appeared before the committee. Did this result in any substantive changes? If so, what kind? If not, what do we expect from an amended report? Are we going to tell the House that the Solicitor General was kind enough to come and answer our questions? Has this resulted in any substantive changes to the regulations or do we simply want to advise the House that the Solicitor General met with the committee? I do not understand. I would like you to explain this to me, because there surely has to be an explanation.
Mr. Bernier: Nothing that the Solicitor General said at the time of his appearance swayed the opinion of counsel. However, it would be normal, in my view, for the report to be amended to reflect the fact that the Solicitor General asked to appear, did in fact appear and stated his position, and to explain why the committee rejected this position.
If you recall, the Solicitor General merely reaffirmed the constitutionality of the disputed sections. At the same time, he contradicted himself, saying that he was committed to amending the regulations. From a constitutional standpoint, rights and freedoms are subject to such reasonable limits as prescribed by law.
It is contradictory to say that on the one hand, the sections are constitutional, but on the other hand, that there is room for fewer limitations. I think we simply need to point that out in the report to fully inform the House.
Mr. Lebel: I am not a member of the governing party, but I would be worried if this appeared in a report tabled in the House. When we talk about the Solicitor General, we are talking about the institution as such, not about the person appointed to this position. Therefore, to go so far as to mention in a report tabled in the House that the Solicitor General came before the committee and made promises that he failed to keep — even though I am not a Liberal, I would object to this course of action.
To my knowledge, the report was properly drafted in the spring of 1997. We should have stuck with the original report so is not to embarrass the former Solicitor General, or the present one for that matter, and we should report that no substantive changes have been made. Whether or not any promises were made, the Solicitor General is the one who is going to look bad. We should not mention the fact that promises were made, but we do want to get across the fact that these sections are unconstitutional. That is the position of the committee.
If there is some back room maneuvering going on between the Solicitor General and certain members of our team, that is fair enough. I do not object to this sort of thing among friends. However, the substantive legal issue has not changed, regardless of whether the Solicitor General appeared before the committee or not or whether he made promises or not. Are we going to write in a report that he made promises that he did not keep? This would hurt him far more than it would help him.
In any event, I do not want to make more of an issue of this than necessary, but again, we are going to look bad.
[English]
The Joint Chairman (Mr. Lee): One resists the temptation to let the debate run into partisan territory. Mr. Lebel, I hope you will accept that comment for what it is worth. I do not recall that the Solicitor General made explicit promises that he has now been found not to have kept.
In any event, as your chairman, I have made a proposal. Is someone here prepared to move what I have proposed as a reasonable resolution of this matter? If someone is prepared to move it, then we can deal with it.
Senator Lewis: I so move.
The Joint Chairman (Mr. Lee): Would counsel care to re-articulate what I have proposed so that we are sure the clerk understands it?
Mr. Bernier: What we will present to the committee at the next meeting is a regular report, as any committee of the House makes, drawing the attention of the houses to the fact that these limitations on the political rights of members of the RCMP are unconstitutional in the committee's view; that the minister has appeared before the committee; that the responsible minister has agreed to change those limitations; and that there has been a slight delay in doing so. There would be an intimation that in the event new, proper and constitutional regulations are not in place by spring, the committee will consider disallowing the existing limitations.
The Joint Chairman (Mr. Lee): Are there any comments?
Mr. Wappel: I am not happy with that summation because counsel was warning us not to mix apples and oranges.
There are two things here. There are the unconstitutional sections and then there are the new regulations. He went through a long, elaborate process of warning us why we should not put any pressure here. The report states that the two sections are unconstitutional and we should not require a whole new set of regulations by a particular date necessarily — that is, if I understood counsel correctly — but that we should do more than "intimate", to use counsel's words, that 56 and 57 are unconstitutional. They have to go. How they do it is their business. If they want to change the regulations to get rid of 56 and 57 and then work on the other regulations, that is their business. Our concern is 56 and 57. They have to go. If they do not go by a particular day, then we will disallow them or we will discuss disallowance.
Mr. Bernier: I am mixing apples and oranges. I can warn people; members are free to mix any fruits they want to mix. I was asked to summarize what I thought was the proposal and I did that, mixed fruits or not.
What we could do, then, is slightly amend and indicate in that normal, regular report that the committee is concerned at the fact that these regulations are still in place, and that in the event these regulations are still in place by the spring, the committee will consider disallowing them. We would make no reference at all to new regulations, except to the extent the minister promised them, and that would be reported.
The Joint Chairman (Mr. Lee): Is that all right, Mr. Wappel?
Mr. Wappel: Yes. Mr. White said April 24, not this spring.
The Joint Chairman (Mr. Lee): I like the month of April.
Mr. Wappel: Spring goes to June 21.
The Joint Chairman (Mr. Lee): Mr. Wappel is quite correct. This is definitely an April item.
Are members comfortable with April 1 as a deadline?
Mr. Bernier: Do you want to have that symbolism, namely, the fact that April 1 is April Fool's Day?
The Joint Chairman (Mr. Lee): Would counsel be happy with April 2?
Mr. Bernier: Perhaps just April.
Senator Moore: Do we have a meeting date in April? Pick that date.
The Joint Chairman (Mr. Lee): What about the first meeting that follows April 1?
Mr. Bernier: Both houses are gone from the week of the April 6 to April 17.
The Joint Chairman (Mr. Lee): The first meeting of the committee in the month of April 1998, then. Do we have to put this to a vote, or is there a consensus? Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.We will discuss the report at the next meeting, then.
[Translation]
Mr. Lebel: These provisions are constitutional until April 24, if I understand correctly?
Mr. Bernier: As a legal expert, I would have to say that there is always a presumption of legality.
[English]
The Joint Chairman (Mr. Lee): Let us move to the other items on the agenda, then. Do we have time?
Mr. Bernier: Yes.
Mr. Wappel: In view of the time, I suggest we move to "Reply Unsatisfactory" and deal with that first.
SOR/92-626 — FOOD AND DRUG REGULATIONS, AMENDMENT
(For text of documents, see appendix, p. 5G:1)
The Joint Chairman (Mr. Lee): Counsel, would you outline the issues?
Mr. Peter Bernhardt (Counsel to the Committee): At issue here are provisions that allow for the importation and sale of non-complying foods and drugs that have been relabeled to the satisfaction of an inspector to enable their sale to be lawful in Canada. The words "to the satisfaction of an inspector" introduce a subjective element that confers an undue administrative discretion and also reduces the scope of review by the courts of the decisions taken by the officials on whom this discretion has been conferred.
For these reasons, the wording can be seen to contravene committee scrutiny criterion number 6, to either directly or indirectly exclude jurisdiction of the court without express authority, as well as criterion number 10, pursuant to which regulations are reviewed to determine whether they make the rights and liberties of the subject unduly dependent on administrative discretion.
On this basis, the committee has generally objected to the inclusion of this kind of subjective wording in any regulation. Moreover, its view has routinely been accepted by any number of government departments and agencies down through the years. In this case, however, for reasons that are completely unknown, the food inspection agency has chosen to argue that the words "to the satisfaction of an inspector" impart no subjective discretionary aspect.
The note in the material refers to a number of authorities, to case law, and in fact to the past positions of the Department of Agriculture — the department from which the agency sprang — to illustrate that the intransigence displayed by the agency in this instance is not only misguided but is completely unprecedented.
The final paragraph of the note suggests a letter to the minister in the hope of obtaining a more satisfactory response. The second possibility would be to ask the appropriate officials to appear to explain their position. The letter containing this request could also set out the substance of the note, going over the points made in the note by way of indicating why the committee cannot accept the agency's position.
Mr. White: Let us cut to the chase here. The last sentence of paragraph 15 states:
Failing this, members may wish to consider whether the appropriate officials should be asked to appear to explain their eccentric position.
Let us do it now. It has been almost three years. It is time to get the officials in here and get the story straightened out. I move that we ask officials to appear at one of our upcoming meetings.
Mr. Wappel: I was going to suggest that we write to the minister. I think that the adjective "eccentric" is excellent.
Mr. Bernhardt: I am at a loss. I took the case to them twice. It pained me to write the note, probably as much as it pained members to read it. We are going back to Law 101 here. It is an obvious point.
Mr. Wappel: I would not object to what Mr. White said, but I do suggest that we take the approach set out in paragraph 15, which is to write to the minister. If that does not produce a satisfactory result, we go with the eccentric officials. If the committee wants to cut to the chase, that is fine with me. That is my usual course at any rate.
The Joint Chairman (Mr. Lee): There is no reason we cannot run both of these things in tandem — write the minister and call officials. As I read it, the position of the department is unsustainable. I do not want to waste time with this. Let us go right to it. If they do not buy in, we will look at our options then.
Mr. Bernier: If I understand, we will invite them to appear and inform the minister that this is why we have invited his officials to appear.
The Joint Chairman (Mr. Lee): Yes. There is no intention to invite the minister after that; is that correct?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): I think our position is clear.
Counsel, could you direct us to other items on the agenda you would like to have dealt with today as opposed to at some future date?
[Translation]
SOR/93-75 — PROCEEDS OF CRIME (MONEY LAUNDERING) REGULATIONS
Mr. Lebel: Mr. Chairman, I had trouble following you because we moved from the RCMP regulations on to SOR/92-626. I would like some explanations about the next item on our agenda, namely SOR/93-75, Proceeds of Crime (Money Laundering) Regulations.
[English]
The Joint Chairman (Mr. Lee): Mr. Lebel is asking that we take up the matter of proceeds of crime. That would be the reconsideration of SOR/93-75.
Mr. Bernhardt: The department has agreed to amend the act to address the problem noted. It was then suggested that this amendment should be made retroactive so as to remove any doubt concerning the validity of the relevant section of the regulations. The department takes the view, however, that the amendment to the act is merely a matter of clarification and therefore there is no need to make it retroactive. In fairness to the department, there is some plausibility to this argument. The department also argued that in this instance a retroactive amendment might be seen to give rise to concerns relating to the Charter and principles of natural justice.
Recognizing that there is some merit to the department's position that the amendment in question is merely for clarification purposes, this would not seem to be a case to insist to the bitter end on the retroactive aspect. Therefore, I suggest that the department's undertaking can be accepted as it stands. However, I suppose that by now a follow-up letter is in order as to when they anticipate tabling the amendment to the act.
The Joint Chairman (Mr. Lee): The department would accept that an amendment to the act would clear this up, but they do not regard it as urgent; and an amendment to the act might be some years away.
Mr. Bernhardt: In fact, that is in their letter of July 30. In the concluding line, they reiterate their undertaking but say that the exact timing of the bill is unsure. Perhaps the next step would be to write to say that we accept that they make the amendment and will not insist that it be done retroactively; however, we would like a firmer time-frame as to when that is anticipated.
[Translation]
Mr. Lebel: I asked the question for purely technical reasons. Jurisdiction is an issue here. A distinction is being drawn between incorporated institutions and regulated institutions. I am having problems grasping the legal nuance.
Mr. Bernier: The problem lies in the fact that the new legislation referred to institutions "incorporated by" a provincial act, whereas the requirement applies to credit unions either "incorporated by" or "regulated by" a provincial act. There is a distinction here. We are not talking about all credit unions. In certain provinces, credit unions may be established pursuant to general legislation. There was a problem in terms of amending the act.
There was one version, although I cannot recall which one, which could possibly be interpreted two ways, with the reference being to institutions directly incorporated by a provincial act and to institutions regulated by a provincial act. The other version could not be interpreted this way. Section 5 was deemed to apply to all credit unions whether incorporated by or regulated by a provincial act. We maintain that section 5 is ultra vires because the legislation applies only to credit unions incorporated directly by a provincial act. We were told that the legislation contains an error and that it would be corrected. Obviously, the other version is a little more ambiguous, as I indicated, and does not discount the other interpretation.
Mr. Lebel: You have answered my question quite nicely. Thank you.
[English]
The Joint Chairman (Mr. Lee): This file will not close for a number of years. Are there any compelling reasons why we could not wait for a number of years? Long after we have all left this place, the file may still be in existence. Do we want to close the file, or is it serious enough to see it to its fruition?
Mr. Bernier: A plausible argument in favour of validity can be made. We do not really buy it, but we recognize that it is plausible. This is why we suggest waiting, or not insisting that the legislative amendment be retroactive.
At the same time, like any promise of action, within reason we do not propose putting it on a 10-year "bring forward." We hope the committee would want a somewhat more precise indication of when they propose to amend the act. If there are no plans to amend this particular legislation, perhaps the Miscellaneous Statutes Law Amendment Program could be used. Given that this is merely a clarification of the act from the point of view of the government, the MSLA program is an appropriate place to make these clarifications.
The Joint Chairman (Mr. Lee): That would require us to accept their argument that it is just a clarification.
Mr. Bernier: Yes, but it is their argument. The MSLA program is a government program.
The Joint Chairman (Mr. Lee): For the time being, as you call it, we will BF the thing through to a reasonable date and ask for clarification.
Mr. Bernier: We will seek a more precise time frame on the statutory amendment.
The Joint Chairman (Mr. Lee): Is it agreed?
Hon. Members: Agreed.
SOR/82-925 — FORM OF PROXY REGULATIONS
Mr. Wappel: I wonder if I could ask counsel to put the item Form of Proxy Regulations on the next agenda. I note that it was first before the committee in 1983, and "Progress (?)" is very apropos. I would not want to wait another year to have this brought forward. Perhaps it could be on the agenda for the next meeting.
Mr. Bernier: Everything that is not dealt with today will be on the next agenda.
The Joint Chairman (Mr. Lee): A visiting delegation from the Republic of Vietnam will be in Ottawa next Thursday morning and have expressed an interest in meeting some members of this committee. Their focus is the parliamentary or legislative oversight of government. The clerk or the parliamentary centre will be touch with your offices in the event you can spare some time.
Could we dispose of the category of "Statutory Instruments Without Comment"? They are part of our agenda. If we can simply accept them as having been disposed of, then they do not have to be on a future agenda.
Is it agreed?
Hon. Members: Agreed.
Mr. Bernier: For new members, these are instruments reviewed by counsel that we find are in conformity with all the committee's scrutiny criteria. The titles are listed under the heading "Statutory Instruments Without Comment." We always have a copy of these instruments with us. If any member sees a title they have an interest in or question about, we hopefully can answer the questions.
The Joint Chairman (Mr. Lee): Our next meeting will be in two weeks, February 26. Is it agreed?
Hon. Members: Agreed.
The committee adjourned