REGS Committee Report

HOUSE OF COMMONS
CANADA

February 11, 1999

The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its

(Report No. 63 – Disallowance)

Pursuant to Standing Order 123 of the House of Commons, the Joint Committee resolves that sections G.06.001(1) and J.01.033(1) of the Food and Drug Regulations, C.R.C. 1978, c.870, be revoked.

The text of the provisions it is proposed to disallow is reproduced in Appendix A to this Report. Your Committee’s reasons in support of disallowance are set out in Appendix B.

The Joint Committee has further resolved that a copy of this Report be tabled in the Senate for the information of that House.

A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 18, First Session, Thirty-sixth Parliament) is tabled in the House of Commons.

Respectfully submitted,

Joint Chairmen

APPENDIX B

In the Second Session of the Thirty-fourth Parliament, the Fourth Report of the Standing Joint Committee for the Scrutiny of Regulations was tabled in the Senate and the House of Commons. In that Report, the Committee noted that its objections to the legality of sections G.06.001 and J.01.033 of the Food and Drug Regulations were made known to the relevant Department as early as April of 1977. By October of 1980, the Committee was advised that the Department accepted its position that these sections were not valid. A commitment was made to seek appropriate authority in future legislation.

The Fourth Report was made to draw the attention of the Houses to the fact that although the Department had been aware of the lack of proper legal authority for these regulations for at least fifteen years, there was no indication that remedial legislation was imminent. It was the view of the Committee that continued reliance on the impugned regulations in these circumstances was inconsistent with constitutional government and inimical to the Rule of Law. The same Report called for the immediate revocation of sections G.06.001 and J.01.033 of the Food and Drug Regulations and their replacement with regulations that conformed to the statute.

This recommendation was not acted upon by the government and another five years was to elapse before Parliament adopted the Controlled Drugs and Substances Act, S.C.1996, c.19. Section 63 of that Act deemed all authorizations previously issued under sections G.06.001(1) and J.01.033(1) of the Food and Drug Regulations to have been validly issued. The Controlled Drugs and Substances Act also repealed the provisions of the Food and Drugs Act pursuant to which the invalid regulations had purportedly been made and section 56 of the Act now grants the authority previously exercised under sections G.06.001(1) and J.01.033(1).

In summary, sections G.06.001(1) and J.01.033(1) of the Food and Drug Regulations no longer have any force or effect and can be considered to have been revoked as a result of the repeal of the authorities under which they were purportedly made. Your Committee has nevertheless sought an assurance from the Department of Health that these sections would be formally revoked so that they no longer appear in the Food and Drug Regulations.

When informed of the Committee’s request that these provisions, which have been under consideration by your Committee for more than twenty years, be formally revoked without further delay so as to allow your Committee to close its file, the Department of Health replied that "Health Canada intends to

undertake a comprehensive review and rewrite of […] relevant parts of the Food and Drug Regulations as part of a consolidation of all regulations under the Controlled Drugs and Substances Act." The Designated Instruments Officer added that this review was "tentatively planned for the 2000-2001 fiscal year".

For reasons which should be obvious, your Committee is not prepared to carry this file into the next century having already had it under consideration for nearly a quarter of a century. Although it is reluctant to use the power conferred by Standing Order 123 in order merely to counter inordinate bureaucratic delay in achieving something as simple as the formal revocation of regulations admitted to be illegal by the government, the Committee feels the facts of this case justify this use of the disallowance power.