Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 3 - Evidence

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:40 a.m. for the review of statutory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.

[English]

The Joint Chairman (Mr. Grewal): Good morning, everyone. We have added two items to our official agenda. The first is a motion with which we have to deal. The other matter is a briefing on the Royal Canadian Mounted Police. We will start with the briefing. There has been some progress on that issue, and I will ask our counsel to proceed.

Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, members will recall that Mr. Lee had agreed to meet with representatives of the Department of the Solicitor General and the Royal Canadian Mounted Police on the question of regulations respecting political activities of the Royal Canadian Mounted Police. In anticipation of that meeting, a set of proposed drafting instructions for new regulations was sent about four or five days ago to Mr. Lee, with a copy to counsel.

We have looked at those documents, and they appear fine. If regulations were made in accordance with those drafting instructions, we think they would pass any Charter test.

We did have seven or eight points, which did not go to constitutionality. Some had to do with drafting and some had to do with the actual operation. We put those to Mr. Dubrule, senior legal counsel with the Department of the Solicitor General, and the department has agreed to include all of those points in the drafting instructions.

Right now, the proposed drafting instructions as they stand would be constitutional. There is no question about that. I will contact Mr. Lee later this morning. I think that he will not be required to attend a meeting because if the regulations that are made correspond to these drafting instructions, there will be no problem; hence, there will be no point in holding a meeting. Hopefully, we will place this set of drafting instructions formally on the agenda of the next meeting so that all members can have a look at it.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next item on the agenda falls under the heading "Special Agenda Item."

SOR/89-93 -- ONTARIO FISHERY REGULATIONS, 1989

Mr. Bernier: This is a draft report the committee instructed be prepared, and members have copies of it. It is before the committee for amendment, if needed, and adoption.

I would point out that at page 4 in the French version, in the fifth line of the first paragraph there is a misspelling of the word "baux". It should not be "beaux". It has been corrected in the final copies.

Do members of the committee have questions regarding that draft?

Mr. Wappel: I do. Perhaps counsel can refresh my memory.

The second full paragraph on page 6 of the English version outlines why we are displeased with this regulation. Why are we not disallowing it as opposed to asking for a report?

Mr. Bernier: In this case, Mr. Wappel, that would be an option. This is a penal provision that the committee considers to be illegal. Obviously, no vacuum would be created with the disallowance of the provision because, as we say in the report, we still have the cancellation and suspension of licences as a mechanism to ensure observance of licence conditions. I suppose the only answer is that the committee instructed that it be a report and did not mention disallowance.

Mr. Wappel: All right.

The Joint Chairman (Senator Hervieux-Payette): It can happen at a later date.

Mr. Bernier: The committee requested a comprehensive government response. If the committee is not satisfied with that comprehensive response, then perhaps it can consider moving disallowance.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Could we set a deadline, to ensure that this file does not remain open for the next fourteen years

Mr. Bernier: The Standing Orders of the House of Commons stipulate that the government has either 120 or 150 days to table a comprehensive response to a report.

[English]

The Joint Chairman (Mr. Grewal): We need a motion to adopt.

Mr. Wappel: I so move.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next item is under "Letters to and from Ministers."

SOR/92-626 -- FOOD AND DRUG REGULATIONS, AMENDMENT

(For text of documents, see appendix, p. 3A:1)

Mr. Bernier: Regarding section A.01.044 of the regulations, the minister states that the required amendments should be pre-published in the near future. That was over six months ago, and they do not appear to have been pre-published or enacted at this time. I suggest a follow-up with the department.

Regarding the committee's objection to section B.01.009(3)(f), the minister's reply really provides the first adequate explanation that has been received for the current wording of this provision.

[Translation]

In light of this explanation, I would suggest that the committee withdraw it objection over the drafting of the report.

The Joint Chairman (Senator Hervieux-Payette): Is that suggestion satisfactory?

Mr. Bernier: An explanation has been provided as to why the section is drafted the way it is. This is the first time that we have received a proper explanation. If we had received one four or five years ago, we would never have pursued the matter. However, better late than never.

[English]

The Joint Chairman (Mr. Grewal): Any comments? Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next item is under "Reconsideration."

SOR/94-789 -- SCIENTIFIC OR TECHNICAL ASSISTANCE FEES ORDER (RESEARCH BRANCH -- AGRICULTURE)

[Translation]

Mr. Jacques Rousseau, Counsel: Madam Joint Chairman, the Agency had promised to amend this order to improve the drafting. It has since reversed its position, maintaining that in its view, the additional clarity resulting from the changes required would not be sufficient to justify undertaking amendments at this time. Admittedly, these changes are not essential and could wait until such time as there is a full-scale revision of fees, as the Agency suggests.

The Joint Chairman (Senator Hervieux-Payette): Is this reasonable, in your estimation?

Mr. Rousseau: Yes, Madam Joint Chairman. We will monitor the situation, but we will expect them to keep their word.

[English]

The Joint Chairman (Mr. Grewal): Any comments? Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next items is fall under the heading "New Instruments."

SOR/99-308 -- TARIFF OF COSTS

(For text of documents, see appendix, p. 3B:1)

[Translation]

Mr. Rousseau: Mr. Joint Chairman, in the matter of this file, counsel brought to the committee's attention the fact that the department had never registered the previous tariff of costs. However, the fact that the tariff was not registered did not render invalid subsequent actions taken by departmental officials. Therefore, no further action on the committee's part is warranted, and the file may be closed.

[English]

The Joint Chairman (Mr. Grewal): Are there any comments?

Mr. Wappel: There does not appear to have been an acknowledgement of receipt. Is counsel satisfied that Mr. Quail received the letter and read it?

Mr. Rousseau: I am sorry, Mr. Wappel, I did not get the question.

[Translation]

Mr. Wappel: No response has been forthcoming from Mr. Quail.

Mr. Rousseau: No, and no response was requested, Mr. Wappel. We merely drew the department's attention to the fact that these instruments had not been registered. As you will note, at the end of the letter signed by Mr. Bernhardt, no reply is requested.

[English]

The Joint Chairman (Mr. Grewal): Is that all right, Mr. Wappel?

Mr. Wappel: Yes.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

SOR/99-336 -- REGULATIONS REPEALING THE LIST OF PREMISES IN THE EASTERN DIVISION REGULATIONS

Mr. Bernier: The correspondence in this case deals with the determination of the correct date on which these regulations were made by the Canadian Grain Commission. We were initially told that they were made on July 28, 1999. For the reasons set out in Mr. Bernhardt's letter of September 22, 1999, this could not be correct.

It was eventually ascertained that the date of making of the regulations was in fact October 15, 1998, and that the date of making in the Canada Gazette was in error. The file can now be closed.

The Joint Chairman (Mr. Grewal): Not hearing any comments, is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

SOR/99-428 -- STATISTICS CANADA 2001 CENSUS TERM EMPLOYEES EXCLUSION APPROVAL ORDER; REGULATIONS ON THE EMPLOYMENT WITH STATISTICS CANADA FOR THE PURPOSE OF THE 2001 CENSUS

(For text of documents, see appendix, p. 3C:1)

Mr. Bernier: The Statistics Canada order, as the note explains, contains a provision that establishes a discrimination in favour of Canadian citizens. The validity of this hiring preference has been upheld by the Federal Court of Appeal. Leave to appeal to the Supreme Court has been filed, but the application has yet to be heard. At this point, this note is provided for the information of members.

Senator Finestone: Would you explain why anyone other than a Canadian would be hired anyway? You said that it had to do with the hiring of a Canadian.

Mr. Bernier: There are landed immigrants in this country.

Senator Finestone: All right.

Mr. Bernier: In the public service regulations, hiring preference is given to people who have Canadian citizenship. That raises a question in terms of the Charter. The courts already have decided that citizenship is a section 15 ground of discrimination, comparable to the listed grounds of discrimination. The question remains whether it is a reasonable discrimination.

In the Bailey case, the Federal Court of Appeal said that, in this context of the public service, it is reasonable. There is a fairly good chance that the Supreme Court will hear that appeal, given the nature of the issue, but who knows.

Senator Finestone: When did the Bailey decision occur?

Mr. Bernier: I would have to verify that. I can send you a copy of the judgment. In respect of whether leave was granted, I verified that two days ago.

Senator Finestone: Send me a copy of that judgment, please.

Mr. Bernier: For the information of committee members, we now have a court decision stating that this provision is constitutional. It would be a little difficult for the committee to say it is not.

Mr. Wappel: Why would we even want to do so? It is constitutional. There is nothing wrong with it as far as I am concerned.

Mr. Bernier: As in all legal matters, Mr. Wappel, there could be different points of view.

Mr. Wappel: Of course.

SOR/99-126 -- REGULATIONS AMENDING THE PUBLIC SERVICE EMPLOYMENT REGULATIONS, 1993

(For text of documents, see appendix, p. 3D:1)

[Translation]

Mr. Rousseau: Mr. Joint Chairman, this is a case of regulations registered eight days after they were adopted. Pursuant to the Statutory Instruments Act, registration must take place seven days after such regulations are made. Apparently, the time discrepancy was due to transmission problems. The Commission assures us that steps have been taken to prevent a recurrence of the problem.

The Joint Chairman (Senator Hervieux-Payette): Is this a valid explanation?

Mr. Rousseau: It is an acceptable one.

Senator Grimard: What happens if regulations are registered a day late, as we saw in this case?

Mr. Rousseau: Legally speaking, there is no fallout.

Senator Grimard: None whatsoever?

The Joint Chairman (Senator Hervieux-Payette): As I see it, the requirement exists to prevent a three-month time span between the moment regulations are made and subsequently registered.

Mr. Rousseau: Until they are registered, the regulations do not come into force. To all intents and purposes, the regulations come into force on the day of registration. However, if registration does not take place...

The Joint Chairman (Senator Hervieux-Payette): There are consequences, because there are no regulations per se.

[English]

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next items are under "Reply Unsatisfactory."

SOR/96-363 -- LICENSING AND ARBITRATION REGULATIONS, AMENDMENT

SOR/84-432 -- LICENSING AND ARBITRATION REGULATIONS

(For text of documents, see appendix, p. 3E:1)

[Translation]

Mr. Rousseau: Mr. Joint Chairman, with respect to these items, it should be noted that SOR/96-363 introduces a number of changes requested by the committee when it reviewed SOR/84-432 and SOR/94-411. All of the promised amendments have not been made. The Agency informs us that discussions are continuing with interested stakeholders.

The Agency's response is unsatisfactory in that it fails to address the five points raised by counsel with respect to SOR/96-363. The purpose of these regulations is to promote fair practices in the international and interprovincial trade of fresh produce. However, one has to wonder just how the provisions singled out by counsel contribute to the attainment of this goal. The department responded in a rather general way to questions concerning the powers awarded to the minister or the rationale for or relevance of the criteria used to assess licence applications. It referred to the need to promote ethical practices in international and interprovincial trade. For example, pursuant to section 20 of the regulations, the minister is required to cancel the licence of a person who is conducting his business in complete observance of the act and regulations simply because the person employed a person previously employed by a dealer whose licence was cancelled. Counsel called this a remarkable illustration of guilt by association. The minister responded as follows, and I quote:

The powers under section 20 are necessary to emphasize to licensees their inherent obligations, and to promote confidence in the system among those who choose to respect fair and ethical business practices.

The Agency should be able to clearly justify the measures imposed to promote ethical business practices. Therefore, we recommend that it be contacted in writing once again, advised that this response is unsatisfactory and given the opportunity to provide a more pertinent response.

Ms Venne: You criticize the Justice Department for using the Criminal Code in an attempt to establish ethical practices. Were it not for this reference to the Criminal Code, you would not have a problem with this. It is all good and well to speak of ethical practices. However, the problem arises when an association is made with persons who have not committed any crimes themselves and who hire persons who may have committed an offence. Therefore, we are dealing with a problem of guilt by association and in your view, the regulations should be amended to correct this problem. Is that right?

Mr. Rousseau: In our view, the measures provided for in the regulations are rational. However, to invoke ethical considerations as justification for some of these measures, that we feel is overly general and not in keeping with the attainment of the stated objective.

[English]

Mr. Bernier: There is a question of fundamental fairness here. For example, if you look at section 20 to which my colleague referred, you are depriving people of their livelihood. These people require licences. It is a business.

By way of example, let us assume that a man named John has never done anything contrary to the law. His only mistake was that he worked for Mr. X and Mr. X's licence was cancelled. John did not do anything wrong, even while working for Mr. X. He then moves on to work for Mr. Y, and Mr. Y loses his licence because he hired John. That is absurd.

Senator Finestone: It is absurd. It is a strain on business, and we are talking about fresh produce. That is not very good.

Mr. Bernier: I realize there have been problems in the past with the character, shall we say, of the people involved in the fresh fruit produce business. The department wants to ensure, through its regulation, that business is conducted properly and in an ethical manner, but at the same time we must keep a grip on reality.

Senator Finestone: Could you give us an example of unethical business practices in the fruit and vegetable business? Were fruits and vegetables eaten, or what?

Mr. Bernier: There are many examples. Trucks are emptied on a highway and shipments are stolen. There is theft. We are dealing with a perishable commodity, so things move fast. People order grade-A produce, but what they get is not that at all.

Senator Finestone: Is this interprovincial and international?

Mr. Bernier: Yes.

Senator Finestone: Therefore, we have a serious breach of good business practice.

Mr. Bernier: Yes. They are trying to get there, but they go a little too far. At least that was the opinion of the committee when they looked at those provisions.

The reply which has come back does not, in our view, satisfactorily address the need for this kind of provision, except for the general claim that this will lead to more ethical business practices. That may be, but if, at the same time, you are causing people to lose their jobs and lose permits and licences -- which they lawfully hold -- on the flimsiest of pretexts, there must be a balance. The best way to put it is that even in light of the reply, we do not think the proper balance is being struck.

Senator Finestone: Is it possible to find out how often this article has been used? I do not know if the Mafia is involved here or a bike gang. I am not quite sure.

The Joint Chairman (Senator Hervieux-Payette): I think they are more involved with vehicles than with fruit.

Senator Finestone: I know that, but maybe if they run the truck off the road and the fresh lettuce wilts, it would be bad for business.

[Translation]

Ms Venne: Was the person previously employed by a dealer whose licence was cancelled aware of what was going on and perhaps failed to report the irregularities? Are we making an assumption here?

The Joint Chairman (Senator Hervieux-Payette): Even if that were the case, our legal system does not sanction this practice. People are not required to act as informers.

Ms Venne: You are quite right. That is why I have to wonder what possible justification there can be for these provisions. It is all rather odd.

The Joint Chairman (Senator Hervieux-Payette): It is a little like embarking on a witch hunt. Protecting the public is one thing, but are such wide-ranging measures really necessary? The important thing here is to strike a balance between quality produce and ethical trade practices. Otherwise, there would be nothing on the market. There would be so many barriers in place that products could not circulate freely.

Ms Venne: I find this all rather odd. What is the rationale for these regulatory provisions?

Mr. Bernier: In its response, the Agency noted the following:

[English]

The powers in section 20 are necessary to emphasize to licencees their inherent obligations.

[Translation]

They are attempting to give us a lesson in morality.

[English]

As well, we promote confidence in the system among those who choose to respect fair and ethical business practices.

[Translation]

People will have confidence in the system when they see how strict conditions are. The standards will be so high that everyone will say: "Good God".

The Joint Chairman (Senator Hervieux-Payette): This is known as devotion to otherworldliness.

Mr. Bernier: That is correct.

[English]

Senator Finestone: I come again to my joy and pleasure at sitting in this committee with what I have been learning. I think our legal staff are geniuses to be able to sit here and look at this. This is 11 years old. For 11 years we have been giving moral and ethical lessons to a sector of the population that, supposedly, is meant for a criminal act. I find this rather strange. What do we do? This is the reason for our frustration. That is why I take my hat off to Tom Wappel and Derek Lee. How have they been able to sit here since 1989 and look at this and say, "Well, that's tough; let's see what happens next"?

The Joint Chairman (Mr. Grewal): Since 1984.

Senator Finestone: I have 1989 on my copy.

The Joint Chairman (Mr. Grewal): The second one refers to 1984.

Senator Finestone: That is even worse. I find that terribly frustrating. Could you please give me some hope that something will be done? I would be much happier.

Is this matter before the courts? Have the courts taken 11 years? Do we need to give the courts and judges more money so that they look at this case? What is the problem?

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I do not believe the courts are involved in this. We can still denounce the provision in question and ask that it be revoked. This has nothing to do with the courts. Why are we not more insistent, Mr. Bernier?

Mr. Bernier: It should be noted, Madam Joint Chairman, that in this case, the problem with SOR/84-432 was first raised in 1989 and the situation has since been resolved. As my colleague pointed out, amendments have been made. The focus of our objections is SOR/96-363, regulations adopted in 1996. Admittedly, the situation is not much better since we are now in the year 2000. Four years have gone by, but four years is better than 10 years.

Senator Finestone: It is an improvement, particularly for a person who wants to be hired and wants to work and enjoy a better standard of living.

The Joint Chairman (Senator Hervieux-Payette): Are you recommending then that we teach them a lesson about the law and moral issues and tell them that their system does not jibe with our legal system in Canada?

[English]

Senator Finestone: Why do we never do that?

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I am wondering if this is the most effective approach to take.

[English]

The Joint Chairman (Mr. Grewal): Would there be disallowance, or what?

Mr. Bernier: Anything that is a regulation is potentially subject to disallowance. Before I give you an answer, I would need to look carefully at each of these provisions. The technical answer is yes, you can disallow. The broader issue is should the committee disallow?

When one has a power, one must be careful to exercise some judgment as to when to exercise that power. Here, I have not looked at those provisions. One needs to look, in each and every case, at what are the consequences of disallowance. If the consequences as a result of disallowance are worse than the impact of an illegal regulation, then I suggest the committee might be better not to disallow in such a case.

In this particular case, I cannot give committee members an answer because I have not looked at those sections in that light. I can provide one, but it means looking at the impact of the section, how it operates and what is the result of disallowance and of removing that provision from the regulation without putting a new one in place.

Senator Finestone: It seems to me that if we do that once, each one of the justice departments will start to have a bit more respect for the role and responsibility they have in drafting regulations that make good sense. I would hope that you explain Mr. X and Mr. Y to them because this is ridiculous.

As Madam Chair said, we are not giving lessons in ethics and morals; we are dealing with the laws of Canada.

[Translation]

Senator Grimard: What are you suggesting?

Mr. Bernier: I accept Senator Finestone's suggestion and, if the committee has no objections, we will not proceed with the letter that Mr. Rousseau proposed to write to the department. The next time this matter comes before the committee, we will have already considered the possibility of disallowance. I will keep the committee apprised of possible consequences so that it can make an enlightened decision.

[English]

Senator Finestone: In the letter, would you be so bold as to suggest that the committee is concerned about the mix of ethics and morals with the laws of Canada, or is that beyond the pale?

Mr. Bernier: No, it is not.

Senator Finestone: That is good.

The Joint Chairman (Mr. Grewal): Is that agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

SOR/91-139 -- CANADIAN CHICKEN MARKETING AGENCY PROCLAMATION, AMENDMENT

(For text of documents, see appendix, p. 3F:1)

Mr. Bernier: In this proclamation, the Governor in Council has authorized the marketing agency to exercise its regulatory powers in relation not only to poultry and poultry parts but also in relation to processed poultry products. At issue is the legality of this last aspect of the proclamation.

A separate objection to the validity of the proclamation was that it authorizes the agency to regulate products in so-called non-designated areas of Canada, even though the product is not already regulated in a designated area, contrary to section 17 of the act.

Those objections of the committee are very well summarized in the third paragraph of the note attached to Mr. Claydon's letter of May 4, 1999. The reply of the department is contained in the fifth and sixth paragraphs of the same note.

No alternative reading of the statute is offered by the department. The reply simply notes that a court could very well agree with the committee's reading of the statutory authority. However, the issues of validity raised by the committee are said to be moot because the agency has not exercised those powers which the committee says are illegal powers.

Reference is then made to the fact that amendments to the proclamation are on the horizon and that nothing should be done until the outcome of what is called the renewal process is known. It sounds very spiritual.

Our problem with that reply is that the grant of illegal authority surely is no less a concern of the joint committee because the illegal authority has not been exercised in practice. This is what we are talking about. Should the fact that the agency has not exercised an illegal grant of authority diminish the concern that this illegal authority has been granted at all?

I believe that the fact that the illegal provisions have not been used is simply an added argument for their removal. Not only does the committee consider these provisions to be illegal in the proclamations, but they are not even being used. Surely, that is an added reason to delete them.

The committee could either adopt that line of reasoning and request amendments now or, as suggested by the department, accept to defer correction of this until this so-called renewal process is complete. If the committee chooses the second option, I think it should demand an assurance that those powers will not be resorted to until such time as the renewal process is complete.

Mr. Wappel: I am not entirely sure that paragraph 4 says exactly what counsel said it does. Perhaps I misheard him. He is talking about the issue of a court challenge being moot -- a court challenge, not our challenge. Clearly that means that there cannot be a court challenge because the regulations have never been used.

In previous cases, we have frequently awaited a review, with an undertaking that the objectionable regulation not be used. In this case, I suggest that we send a letter stating that the committee views these regulations as objectionable, that we believe we could demand their immediate removal, but, in the spirit of cooperation and renewal, we are prepared to await the renewal, provided that there is an ironclad guarantee that the objectionable regulations will not be acted upon.

Senator Finestone: Will you ask for that undertaking?

Mr. Wappel: Yes, absolutely.

Senator Finestone: Thank you.

Mr. Bernier: With that approach, would there be a limit on how long the committee is disposed to wait?

Mr. Wappel: I think 11 years should do it.

Mr. Bernier: We will let the department know.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

SOR/93-332 -- ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS

SOR/94-390 -- ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT

SOR/94-531 -- ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT

SOR/95-106 -- ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT

(For text of documents, see appendix, p. 3G:1)

Mr. Bernier: Mr. Chairman, I will deal with these partly in the order in which they are dealt with in the original letter.

Point 1 deals with sections 4, 5(1)(b), 5(1)(h), 6 and 7. The committee wanted to know what is meant by the words "related activity," which are used in each of these sections. The reply states that this is meant to deal with transporting fish to landing sites and the landing of fish at such sites.

I suggest that this, then, is what the regulation should provide for, either by way of definition or by replacing the references with the actual description of the activities. Those are activities for which a licence can be required. The committee felt that to require someone to have a licence to engage in related activity was a pretty late requirement, unless there is a definition of activities for which a licence is required.

I will skip over point 2 for now, which is the main objection of the committee, and go to point 3, which deals with section 5(1)(k). In this case, an amendment is promised to clarify the intent.

On point 4, section 6 would make the provisions of a licence issued by the minister prevail over duly made regulations of the Governor in Council in case of inconsistency. In other words, the purpose of this provision is to state that the minister may, by means of an administrative document, which is the licence, override vague laws. One would think even the Department of Fisheries might recognize this as problematic.

Senator Finestone: Is that not illegal?

Mr. Bernier: They take refuge in generalities about the need for flexibility and the alleged intent of Parliament.

Mr. Chairman, it seems that, for them, the law is what they say the law is and the intent of Parliament is whatever they have decided to do. Their biggest problem is that they no longer perceive the crucial difference between policy justification and a legal justification.

The suggestion made in the reply that the Peralta decision has any bearing whatsoever on this particular objection simply shows that officials of that department no longer even feel the need to read cases before they cite them. To anyone who takes the time to read the Peralta decision, it is obvious that it has nothing to do with the issue raised here.

Turning to point 5, which relates to section 7, the issue dealt with here is the same issue that is dealt with in the report that the committee just adopted at the beginning of this meeting. In a way, that will be pursued through that venue.

As for point 6, which concerns section 9, I would simply note that even though a reply is made, none was requested. My letter specifically requested a reply on points 1 to 5, so I will not spend more time on this one.

Returning to point 2, which deals with sections 4, 5(1)(b) and 8, we have not only the reply from the department on this point but we also have a three-page introduction at the outset of the department's response. These first three pages are not their response to a legal objection; they read like a policy statement or a press release.

The scheme set up by these regulations contemplates the issue of so-called communal licences that are issued to an Indian band or a band council. Acting under the authority of that so-called licence, the band council then designates persons or vessels that can fish under the communal licence.

When you examine the scheme, it becomes clear that the so-called communal licence is not a licence at all. In and of itself, it does not allow anyone to fish, which is the definition of a licence. A licence is something that allows you to do that which would otherwise be prohibited. It is a designation made by the band council that would allow a person to fish legally where it would be otherwise prohibited.

Senator Finestone: Does R. v. Marshall have any impact on the things you are relating? It sounds to me like a band licence would be a logical thing and the responsibility for fishing rights and the assignment of who has the right to fish falls under the band. What you have just said seems to counteract or contravene what is in my head. However, that does not mean it is right. Does the Marshall case make it different now?

Mr. Bernier: We are back to this very difference I was pointing out between policy justification and legal justification.

The real problem with the Fisheries Act is that it is over 100 years old. That statute was passed by Parliament at a time when the fishery resource was considered to be unlimited. It was a public resource. At common law there was a right of the public to the fishery and no one saw or perceived an end to the fishery. The act was tailored to those circumstances over 100 years ago.

I do not need to tell anyone in this room that these circumstances have changed completely. Our legal regime is totally inadequate today to deal with contemporary management of today's fishery. For reasons of which I am not aware, Parliament has not adopted a new act, has not touched it. Attempts have been made at times, but they have not been successful.

The Department of Fisheries has been driven -- and to that extent I have some sympathy for them -- in an attempt to manage the fishery properly and in a way that ensures its efficient utilization, to adopt regulatory solutions that are drifting further and further away from the legal framework of the act.

Senator Finestone: Is the legal framework of the act considered to be the result of court decisions? Do these decisions not change the legality of the act?

Mr. Bernier: No, and that is a good example. Court decisions have been made with respect to native fishing rights. A court decision in and of itself does not alter or amend an act of Parliament. An act of Parliament must still be applied and interpreted according to the intent of Parliament at the time that legislation was enacted.

If there is a conflict between legislation and what a court now says the law should be, the approach is to introduce amending legislation. Parliament changes the act to provide the tools that will allow the government to act in accordance with its legal obligations as determined by the court.

Coming back to the scheme that has been put in place here, there is no doubt that the Governor in Council has the authority to make regulations respecting the issue of licences. If the Governor in Council were to make regulations providing for the issue of fishing licences by band councils, those regulations would be valid. However, that is not what is done here. Instead, the Governor in Council has authorized the minister to exercise the very discretion that Parliament conferred on him, namely, the discretion to authorize someone else to issue licences, in this case, the band council. We have introduced a third party between the licence-issuing authority and the Governor in Council.

Again, in this case the reply refers to the Peralta decision, a decision which did not deal with the delegation of the administration of the regulations as stated in this reply but, rather, with the delegation of administrative powers. That is an important distinction between the two concepts.

At issue in Peralta was the validity of a provision that allowed the minister to fix quotas. All the court decided in that case was that the fixing of quotas involved the exercise of an administrative function as opposed to a legislative function and that, therefore, it could be lawfully delegated to a provincial minister in a regulation made by the Governor in Council.

Again, if the Governor in Council here had simply made a regulation authorizing band councils to issue licences, that case would be pertinent and there would be no problem with the regulations. However, this is not what the regulations do; they delegate to the minister a discretion to authorize or not authorize band councils to issue licences.

That is why we say there has been subdelegation here. If there had been a single delegation from the Governor in Council to the band council, licences can be issued and there is no problem. What we have here is a delegation from the Governor in Council to the minister saying that he is delegating not the power to issue licences but the power to authorize someone else to issue licences. That is why the issue of subdelegation comes into play. That is where the scheme differs fundamentally from what was involved in the Peralta decision.

I suggest that an attempt be made to explain matters to the minister at this point, but I suggest as well that the committee not expect too much. The fact of the matter is that the quality of responses coming out of that particular department has seriously and progressively deteriorated over the last few years. This reply is a good example of that.

For reasons I have mentioned in my reply, I think the department has become so used to operating on the fringes of legality that it no longer understands the difference between policy justification and legal justification. They have reached a point, apparently, where, as long as it has to do with the management of fisheries, it must be legal.

I have some sympathy in that regard. I understand how they got there. The fault really lies with governments and Parliament, who have failed to provide a new legal regime adapted to today's circumstances, not to the fishery of over a century ago. In the meantime, as long as this act is in place, I think this committee, despite recognizing this fact, should still insist that the law should be respected.

Senator Finestone: I found your report fascinating. In recognition of the age of this statute and the frustration that DMs or ADMs must live with, would it be worthwhile for the committee to ask the Minister of Fisheries and his deputy to appear before us? We could ask if somewhere on the horizon there is a will, a wish or a way to deal with this issue; or is it just caught up in the political morass? After all, we are dealing with politics here.

Mr. Bernier: The Fisheries Act is considered a can of worms. There are many competing, opposing interests, whether they are on the West Coast or the East Coast, although I believe the situation on the West Coast is, perhaps, more volatile. There was an attempt to do something, but it went nowhere. A new fisheries act was proposed under which many of these things would have been fine. It provided a modern, legal framework.

The fact that this act is hopelessly out of date is acknowledged by the government. A previous minister of fisheries in the House of Commons stated quite frankly that the legislation is hopelessly outdated and not adaptable to today's reality.

Senator Finestone: Should the efforts and energies of your staff, which is stressed to its full complement, attend to the issues of the fisheries if you know there is nothing you can do about the situation? Why not just leave it?

The Joint Chairman (Senator Hervieux-Payette): We are looking at whether there is a solution under the existing law. If we are in a deadlock, you are saying that there is no point in acting, but is there a way out? Is there a way of doing what they want to do in a legal manner with the actual legislation? We are not here to rewrite legislation.

Senator Finestone: Had the judge issued his decision in light of the fact that the actual undertaking, administratively, is given to the band council and if he had issued in favour of the band council rather than the provincial minister, would that have avoided you bothering to adjust it? Perhaps that is the answer.

Mr. Bernier: As I stated, if a regulation directly authorized band councils to issue licences, then that would be valid. There would be no objection. There is no difference between that regulation and a regulation that authorizes a minister to issue licences.

Senator Finestone: Except that calls for a third order of government, which may not be in place everywhere and which might create additional problems.

Mr. Bernier: The problem is that the wish is for the minister to retain the discretion to decide which band councils will have the authority to issue licences. If you make the regulation I suggest, you necessarily grant the power to all band councils. That is the nature of law. You make a rule that says band councils may issue licences. I take it they do not want that.

The Joint Chairman (Senator Hervieux-Payette): They have said to the band, "You will give us the names of the people who can operate under that licence." In other legislation, recommendations are made to the minister and the minister might rubber stamp them and say yes most of the time. Would it not comply with the law if the minister had the last word?

Mr. Bernier: The minister has the last word right now.

The Joint Chairman (Senator Hervieux-Payette): If the band is giving licences to people, does the minister have anything to do with it? The band is exercising its power.

Mr. Bernier: No. Once the minister delegates a power to issue licences to a band under these regulations, as long as the band respects the terms and conditions the minister has attached to this grant of authority, then there is no further involvement by the minister, unless it is to verify that the terms and conditions of the delegation are respected.

The Joint Chairman (Senator Hervieux-Payette): However, you say that it is not legal.

Mr. Bernier: What is not legal is the interjection of the minister. One must distinguish between the power to issue licences and the power to decide who should issue licences. If the Governor in Council makes a regulation stating that band councils may issue licences, he is delegating the power to issue licences. What he has delegated to the minister is not a power to issue licences, even though we have tried to paper that over by calling it a communal licence. If you look at the nature of the instrument, you will see it is not a licence at all because it does not authorize fishing. The real licences are those so-called designations.

What has been delegated in this case by the Governor in Council to the minister is not the power to issue licences, which is something he can lawfully delegate; he has delegated his very own power to decide who can be authorized to issue licences.

The Joint Chairman (Senator Hervieux-Payette): That is what I was saying. In order to keep that power, the band would make a recommendation. The minister would keep the power to issue the licences, not the band. The band would have the power of regulation.

I am trying to find a solution under the present legislation. Rather than being in a corner, I asked if we had a way out of this situation that is at least elegant. I made a suggestion, but I am not an expert like Senator Finestone.

[Translation]

Senator Grimard: We must not lose sight of the problem Mr. Bernier alluded to earlier, namely the problems encountered by Fisheries and Oceans. Every time aboriginals are affected, either directly or indirectly, the matter must be dealt with very carefully. In his letter, Mr. Leclerc employs the word "souplesse" in French and the word "flexibility" in English on three separate occasions. He acknowledges problems with aboriginals. This explains why it is taking so long to resolve this whole matter.

I have been a member of this committee for the past ten years and I served as joint chairman for three years. Each time we deal with a problem that affects aboriginals, either directly or indirectly, the rule seems to be: Hands Off! It is impossible to make any kind of decision. Mr. Bernier will agree with me. This is why the department is skating on thin ice over the aboriginal issue.

[English]

Mr. Wappel: I agree completely with Senator Grimard. I think there is a way of doing this under the current law that would allow the minister to keep some control. It would not be necessary for the Governor in Council to grant band councils -- in the plural -- the power to issue a licence. Rather, the Governor in Council would have the authority to grant to a band council the power to issue a licence.

What do I mean by that? What is the difference? Nothing happens, as far as I know, with the Governor in Council except through the appropriate minister. In this case, the Minister of Fisheries would come before cabinet and request that the Chippewa band in northern Saskatchewan be given the power to grant licences. Based on the minister's recommendation, the Governor in Council would issue to that particular band the power to issue licences. Should it happen that this particular band in the future is not staying within the parameters that Mr. Bernier described, then the minister would have the power, and the duty I would argue, to come back before the Governor in Council and say that the Chippewa band of northern Saskatchewan is no longer complying with our understanding. He would therefore recommend to the Governor in Council the revoking of that band's power to issue licences.

That, to me, is sufficient power for the minister through the Governor in Council under the current statute. I would argue that he does not need the procedure that is currently in place. The current act, with its limitations, still gives the minister the ultimate power -- which is what the deputy minister and the department want -- to manage the fishery, albeit in a somewhat more cumbersome way. He makes his pitch to the Governor in Council instead, doing it himself at his desk. There is a way of doing this within the current law, as I have outlined.

I suggest we write a letter to Mr. Leclerc, with sympathy, expressing that we understand the problem, that we understand that the Fisheries Act is old and that we understand that there are political problems in drafting a new act. We also understand -- and we may not want to say this -- that anything which impacts on the aboriginal community raises 150 other problems. However, there is a legal way of carrying out the policy, and I need not repeat that legal course again.

I stress that we should be seen to be understanding of the department's difficulties with a 100-year-old act.

The Joint Chairman (Mr. Grewal): That is a good point.

Senator Hervieux-Payette: Since this matter is a little more political than legalistic, I suggest we write to the minister and send a copy to Mr. Leclerc.

Mr. Wappel: That is fine.

The Joint Chairman (Senator Hervieux-Payette): This is a change. It is probably an approach that can also be discussed with our counsel. If we find a solution for the minister, it will be helpful. It is an elegant way of not criticizing but stating that we know the limitations and the difficulties. That is what we are here for, to help them.

The Joint Chairman (Mr. Grewal): What about the fifth point regarding section 7? Should we deal with that in the same manner? Are we to include that in the letter?

Mr. Bernier: The fifth point is really the same point that is dealt with in the committee's report adopted this morning. I suggest that the reply on that point to the minister from the government apply across the board to a number of fishery regulations.

The Joint Chairman (Mr. Grewal): We will write a letter to the minister and send a copy of it to the DIO. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

SOR/97-118 -- REGULATIONS AMENDING THE SEEDS REGULATIONS

(For text of documents, see appendix, p. 3H:1)

[Translation]

Mr. Rousseau: Counsel for the committee commented in relation to two points. With respect to the second point, the department has stated that the regulatory provision would be revoked. The department's reply in relation to the first point has been deemed unsatisfactory.

At issue is whether by law, the Governor in Council has the authority to impose, by way of regulations, a record keeping requirement on growers. The department maintains that it does have such authority, pursuant to section 4.1(1) of the Act, which allows the making of regulations for carrying out the purposes and provisions of this act.

[English]

If I may quote the enabling provision in English, it states, "for carrying out the purposes and provisions of this act."

[Translation]

This reply is unsatisfactory because the record keeping requirement was not brought in for the purposes of carrying our the provisions of the act, but rather for the purposes of carrying out the regulatory provisions. The department has been doing inspections for many years. It has always been able to carry out its inspections in the absence of any record keeping requirement. However, the regulations were amended in 1997 to provide for a new class of seed potatoes, namely the Nuclear Stock class. As the department notes, the Nuclear Stock class is the starting point for all other classes. This represents a fundamental change in the regulatory regime. It was at this point that the need for a record keeping requirement was felt. In other words, the creation of this class of seed potato created the need for the record keeping requirement. Moreover, this is why we feel that the record keeping requirement was brought in for the purposes of carrying out the provisions of the regulations, not those of the act. The department is interpreting the act on the basis of the amendments made to the regulations. Furthermore, it would appear that the department is going too far in stating that the record keeping requirement is necessary.

The Agency argues that record keeping is necessary in order to prove that a grower's potatoes adhere to the standards set out in the regulations. It maintains that in order for a grower who requests an inspection for the purposes of certification to satisfy these conditions, there must be some evidence that the origin, testing and pedigrees have been documented. Without the keeping of documents, there is no practical means by which there would be evidence that the standards for the class have been maintained. Let us assume that this is a true statement. Can we then infer that the Agency can impose a record keeping requirement on growers? In our opinion, we cannot. We can, however, simply deduce that when an inspection is carried out, a competent, knowledgeable grower will have kept all of the records needed to prove that his potatoes meet the standards.

If the grower cannot produce these records, he runs the risk of not receiving a certification following the inspection. The Agency also mentions section 6.1(d) of the act which authorizes inspectors to require any person to produce for inspection any books or other documents or papers with respect to the administration of the act and regulations. In its opinion, this provision clearly anticipates that various types of records must be kept for the effective application of the act and regulations.

The Agency further notes that since Parliament chose to include these provisions in the act, it must have anticipated that records would form a vital and necessary aspect of the inspection function that it authorized. The Agency goes on to say that without evidence of this nature, the inspection program that is contemplated by the act and set out in the regulations would simply not work and the purposes of the act would be defeated. The Agency is exaggerating. To begin with, the purpose of the act is to prohibit the sale of seed potatoes that do not adhere to the standards set out in the regulations. Inspections are carried out for the express purpose of ensuring that these seed potatoes meet these standards. If an inspection fails to prove compliance, then the seed potatoes in question cannot be sold. Once again, if, during the course of an inspection, the Agency asks to see evidence, as it has the right to do, that the standards have been maintained and the grower cannot produce the proper documents, the inspector will not be able to issue a certificate. Far from being paralyzed, the system will have worked very well.

In short, if these documents are requested, a competent grower will have them in his possession and will be able to produce them for the inspector. This is not to say that the Governor in Council can require a grower to keep records. Counsel for the committee recommends that further correspondence be exchanged with the Agency to shed more additional light on this matter.

[English]

Senator Finestone: Are we talking here about genetically modified foods?

The Joint Chairman (Mr. Grewal): No.

Senator Finestone: What are we talking about, then?

Mr. Bernier: Potato seeds.

Senator Finestone: Does the issue relate to what we are putting on the ground and how it affects the potato?

Mr. Rousseau: Yes.

Senator Finestone: If any of you watched the program 20/20 the other night, it showed exactly how McCain Foods Limited examines the product, the potato, and the seed, and the people who sell the seed. I do not understand. What is this register they are supposed to keep? Is it to find out if the seed is a purebred or whether it is a hybrid?

Mr. Rousseau: The seeds must conform to the regulations, and the seeds are inspected by department inspectors.

Senator Finestone: What does this have to do with "nuclear"?

Mr. Rousseau: That is the name they gave to their foundation. The foundation seed is called the "nuclear stock" in the regulations.

Senator Finestone: That is the one our great grandfathers did, nuclear stock.

Ms Venne: They are not atomic potatoes.

The Joint Chairman (Senator Hervieux-Payette): I did not think there was a seed. When you grow a potato, you plant a potato. It is a small one, but you plant a potato; you do not put a little seed in the ground.

Senator Finestone: The little white thing that grows out of the potato is the seed. You just cut it out and stick it in the ground.

The Joint Chairman (Senator Hervieux-Payette): Perhaps you can find out their big concern. They seem to be concerned about a foreign potato. I feel your rationale is very good.

[Translation]

I understand what you are saying. The first step is to purchase seed potatoes from the co-op store.

[English]

Senator Finestone: Ask Mr. MacAulay. He is a big potato seed grower.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I think we agree that the matter of seed potatoes needs to be explored further. We will prepare a report explaining why we feel growers should not be required to keep records.

[English]

The Joint Chairman (Mr. Grewal): On page 6 of the letter, paragraph 2, it states that in two cases the regulation was found to be ultra vires the legislation. Which two cases?

Mr. Bernier: I would need to look at the cases they have cited, Mr. Chairman. In the previous correspondence this refers to a series of cases that the department, in somewhat typical fashion, has thrown into their letter helter-skelter. I would need to give you that answer later.

The Joint Chairman (Mr. Grewal): All right. In conclusion, what will we do?

The Joint Chairman (Senator Hervieux-Payette): Educate the department.

Mr. Rousseau: I would suggest that we write again to the department.

The Joint Chairman (Mr. Grewal): All right. Any comments?

The Joint Chairman (Senator Hervieux-Payette): Is what you told us, in summary, the argument in your letter?

Mr. Rousseau: Yes.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next items fall under the heading "Progress."

SOR/93-117 -- MANITOBA FISHERY REGULATIONS, 1987, AMENDMENT

[Translation]

Mr. Rousseau: An amendment has been promised to validate the practice whereby licence fees, which should rightfully belong to the federal government, are in fact retained by the province. The current practice is for the province to retain fees, although this is not a regulatory stipulation. Nevertheless, the committee has expressed an interest in following developments in this area and this item was put on our agenda to inform members.

[English]

Senator Finestone: Sorry, what item is this?

[Translation]

The Joint Chairman (Senator Hervieux-Payette): The item is SOR/93-117, further to our letter of November 29, 1999. That is not that long ago.

[English]

Mr. Wappel: I do not understand why this item is under the heading "Progress" and not under "Progress (?)" because I see no progress. I see zero progress.

The Joint Chairman (Senator Hervieux-Payette): Is there progress or no progress?

Mr. Wappel: The first line says that there is no progress.

Senator Hervieux-Payette: The progress is that they answered our letter just 16 days after we wrote to them.

Mr. Wappel: Good for that, but I see no progress, none, never mind the question mark.

The Joint Chairman (M r. Grewal): You are right.

Mr. Wappel: That is all I have to say about this matter.

The Joint Chairman (Mr. Grewal): That is a valid point, but let us move on to the next item on the agenda.

SOR/94-45 -- ATLANTIC FISHERY REGULATIONS, 1985, AMENDMENT

(For text of documents, see appendix, p. 3I:1)

[Translation]

Mr. Rousseau: The department informs us that the promised amendments will be made, although it prefers to wait until new legislation is introduced. The fact remains that these amendments have yet to be made and I think it would be appropriate to write to the department and request a status report.

The Joint Chairman (Senator Hervieux-Payette): Is everyone agreed?

Mr. Bernier: With your permission, in light of our earlier discussion, let me give you an example of the lack of progress on reforming the Fisheries Act. In the First Session of the 35th Parliament, the government introduced Bill C-115, proposed legislation to enact a new Fisheries Act. The bill subsequently died on the Order Paper. The same bill was re-introduced during the Second Session of the 35th parliament as Bill C-62. It too died on the Order Paper. In October of 1997, the Secretary of State (Fisheries and Oceans) announced that the bill would be re-introduced once more in February 1998, but that was not to be the case.

[English]

The Joint Chairman (Mr. Grewal): If there is no further progress, in this case you are planning to write a letter, then.

Mr. Rousseau: Yes.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next items are under "Progress (?)."

SOR/87-372 -- PROCESSED PRODUCTS REGULATIONS, AMENDMENT

SOR/88-8 -- PROCESSED PRODUCTS REGULATIONS, AMENDMENT

SOR/88-383 -- PROCESSED PRODUCTS REGULATIONS, AMENDMENT

SOR/91-687 -- PROCESSED PRODUCTS REGULATIONS, AMENDMENT

[Translation]

Mr. Rousseau: It is apparent on reading the Agency's letter that it can give no assurances as to when the promised amendments will be made. It even suggests that these modifications be made after new legislation has been adopted. I think it would be appropriate to ask the Agency if it plans to act on this matter within a reasonable period of time. Therefore, I think another letter to the Agency is in order.

Ms Venne: When do we reasonably expect the new legislation to be passed, so that these regulatory changes can be incorporated?

Mr. Rousseau: That is precisely the question we should be asking the Agency. What do they think would be a reasonable time frame?

[English]

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

SOR/90-111 -- DAIRY PRODUCTS REGULATIONS, AMENDMENT

SOR/91-558 -- DAIRY PRODUCTS REGULATIONS, AMENDMENT

SOR/92-248 -- DAIRY PRODUCTS REGULATIONS, AMENDMENT

Mr. Bernier: Progress on the amendments mentioned by Mr. Chartier should be inquired into at this time. Two matters are proposed to be set aside and we need to know whether this is acceptable to the committee. They deal with clarifying the distinction between adulterated and contaminated food, and also with setting out the criteria that will distinguish the suspension of a licence from the cancellation of a licence -- that is, the grounds on which a licence will be suspended as opposed to cancelled.

It is proposed to delay these two matters pending the potential enactment of a new federal food act. In either the last session or the previous Parliament a food act was introduced. It ran into considerable difficulty, partly due to the genetically modified food issue and the methods of inspection at the Food and Drugs Directorate of Health Canada.

The new act has not yet been reintroduced. If the committee decides that it is willing to wait for these two matters to be dealt with, I suggest that this be subject to the proviso that the new legislation is introduced in this session. Otherwise, I believe that the department should be asked to go ahead with the amendments it promised.

The Joint Chairman (Mr. Grewal): I am not aware that a new foods act will be introduced in the House of Commons.

Mr. Wappel: It is ironic that this agency continues to refer to this fabled food act while their headquarters are located on a street named after the fabled land of Camelot. The two go perfectly together.We will wait for the food act as long as we will wait to see Camelot.

Senator Finestone: The safety of food is absolutely vital. Do any of these regulations deal with any potential damage to Canadian citizens or visitors to Canada? We do not as yet know what genetically modified foods can do. There is an argument to be made in that respect. Is there anything else that we need worry about?

The Joint Chairman (Senator Hervieux-Payette): These regulations deal with packaging and transportation. With regard to life span, after a product has complied with the regulations, it is up the individual as to how long they keep it in their home. That is not a government problem.

Senator Finestone: I realize that. That was why I asked the question. How urgent is it that these regulations be amended? Is this a serious problem?

Mr. Bernier: With regard to the distinction between adulterated and contaminated, which is the most important, I cannot tell you whether effecting that clarification now as opposed to in a year will have an impact on the health of people. I am not a food health expert. I am just a legal beagle.

The Joint Chairman (Senator Hervieux-Payette): Adulterated means that the product is not what it is stated to be. It may be the wrong product.

Senator Finestone: And that can make you sick.

The Joint Chairman (Senator Hervieux-Payette): No. It is not contaminated; it is just that it is not the right product.

[Translation]

I checked the meaning of the word "falsifié" in French. A "produit falsifié" is not necessarily contaminated.

Mr. Bernier: I believe the department would move quickly if the public's health was in danger in any way because of some regulatory shortcomings. When matters remain unresolved for long periods of time, often, it is because of legal, not health, issues.

[English]

The Joint Chairman (Senator Hervieux-Payette): At 10:15, I must appear before the committee that will approve our budget. Therefore, if members do not mind, I should like to interrupt the process in order that I can report to you about the work we have done with regard to the possibility of having a Commonwealth conference on delegated legislation in the summer. We need a motion to initiate the process to determine how much that will cost. After that, we will then return with a proposal. I require the following motion:

That the Joint Chairmen of the Standing Joint Committee for the Scrutiny of Regulations be authorized to prepare a budget proposal for review and adoption by this committee at its next meeting on April 6, 2000, to host the 5th Commonwealth Conference on Delegation Legislation in the summer of 2000.

[Translation]

Adopting this motion would allow us to do the preliminary work and to report back to you with a proposal at the next meeting. If committee members reject the proposal, at least we will know what hosting this conference would involve.

Before I leave, I would just like to say that hosting a conference of this nature would mean having to hire additional personnel because our own staff is already very busy. Obviously, we would need to hire several persons. When Mr. Grewal, myself and a few members travelled to Australia, we observed first hand the work taken on by the host country versus expenses incurred by delegates.

I need someone to propose that a draft budget be drawn up for the next meeting. I believe Senator Finestone is moving the motion.

The final report on this meeting is available. Since the Australian conference was of an extremely high caliber, this document is indeed a good source of information.

[English]

The Joint Chairman (Mr. Grewal): Is it your pleasure to adopt the motion?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): The motion is carried.

SOR/91-370 -- HONEY REGULATIONS, AMENDMENT

Mr. Bernier: In this case, Mr. Chairman, we are told that the required amendments will be made sometime in 2000. If this is satisfactory to the committee, we will monitor progress.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

SOR/95-548 -- MISCELLANEOUS AMENDMENTS REGULATIONS (DEPARTMENT OF AGRICULTURE AND AGRI-FOOD) 1995-2

Mr. Bernier: In this case, Mr. Chairman, I suggest an inquiry should be made as to the current status of the promised amendments.

The Joint Chairman (Mr. Grewal): That will be done. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next item falls under the heading "Reply Satisfactory."

SOR/97-315 -- MANITOBA MILK MARKETING LEVIES ORDER, 1991

(For text of documents, see appendix, p. 3J:1)

The Joint Chairman (Mr. Grewal): The next item is under "Reply Satisfactory."

Mr. Bernier: The reply received from Mr. Claydon satisfactorily disposes of the issue and the file can be closed.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next items are under "Reply Satisfactory (?)."

SI/97-38 -- ORDER AUTHORIZING THE CANADIAN FOOD INSPECTION AGENCY TO PRESCRIBE FEES

SOR/97-305 -- HONEY FEES ORDER

(For text of documents, see appendix, p. 3K:1)

[Translation]

Mr. Rousseau: The Agency fails to address the points raised by counsel for the committee concerning the authority pursuant to which fees can be prescribed. The Agency informs us that henceforth, its fees will be made pursuant to the Canadian Food Inspection Agency Act and this is consistent with the committee's finding. Consequently, if the committee agrees, the Agency's reply can be deemed satisfactory.

[English]

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next items are under "Action Promised."

SOR/94-728 -- PACIFIC FISHERY REGULATIONS, 1993, AMENDMENT

(For text of documents, see appendix, p. 3L:1)

SOR/98-579 -- REGULATIONS AMENDING THE PROCESSED PRODUCTS REGULATIONS

(For text of documents, see appendix, p. 3M:1)

SOR/99-225 -- REGULATIONS AMENDING THE MAXIMUM AMOUNTS FOR DESTROYED ANIMALS REGULATIONS, 1992

(For text of documents, see appendix, p. 3N:1)

Mr. Bernier: On these three items, regulatory amendments are promised.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next item is under "Action Taken."

SOR/2000-19 -- REGULATIONS AMENDING THE MANAGEMENT TRAINEE PROGRAM REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see appendix, p. 3O:1)

Mr. Bernier: This instrument effects one change requested by the committee.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The committee adjourned.