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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations
Issue 4 - Evidence
OTTAWA, Thursday, April 6, 2000
The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:25 a.m. for the review of statutory instruments.
Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.
The Joint Chairman (Mr. Grewal): The first two items on our routine agenda fall under the heading "Special Agenda Items," and we will deal initially with the disallowance matter.
Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, the previous committee decided it wanted to make adoption of a statutory disallowance procedure a priority for this Parliament. This was reflected in a letter sent to the Minister of Justice on December 20. If the current committee remains committed to this goal, time is of the essence.
Perhaps the committee should identify a volunteer to approach the minister and ask her if she is willing to meet with members in an informal setting.
The Joint Chairman (Mr. Grewal): Any comments?
Senator Finestone: Do you mean we should meet with the minister outside of the committee, or do you mean as part of the committee?
Mr. Bernier: I think the idea at the time was that it might be more productive to have an off-the-record discussion with the minister on the possibility of providing a statutory basis for disallowance. After that informal discussion, the committee could decide how it wished to proceed.
Mr. Chairman, since we have one or two new members, the current disallowance procedure is to be found in the Standing Orders of the House of Commons. The committee has long been of the view that the disallowance procedure should be found in a statute of Parliament, which would allow us to simplify the procedure, in a sense. Under the current procedure, before a regulation is disallowed, the motion for disallowance is passed by the House. However, cabinet, or the regulation-making authority, must still act in order to revoke the regulation. If this were done by statute, the statute could deem the regulation to be revoked automatically.
More important, because of constitutional constraints, the current disallowance procedure only applies to regulations made either by the Governor in Council or a minister. Therefore, it excludes delegated legislation made by other bodies, such as the CRTC and various other administrative boards.
Senator Moore: Including this committee?
Mr. Bernier: Similar organisms. This committee exercises no regulation-making powers. There is no logical basis for making this distinction. If Parliament has the right to disallow, it ought to have the right to disallow any piece of delegated legislation, subject to stated exemptions, such as national defence or national security grounds.
Essentially, that forms the basis for this longstanding recommendation of the committee that disallowance be put in a statute of Parliament, not in the Standing Orders. Again, the committee decided in the last Parliament that in this Parliament it wished to make adoption of such a statutory procedure its main order of business. It had written this letter to the Minister of Justice. It was decided to start with an informal meeting with the minister -- take the lay of the land, as it were -- and then the committee could decide on a strategy.
Mr. Lee: This has been a project the committee has cared a great deal about and worked on for a few decades now. Therefore, I suggest that one of us approach the Minister of Justice with reference to our last letter. We might even want to write to the Minister of Justice with a polite and courteous follow-up or reminder, perhaps to ask if she would like the opportunity to appear and review the matter with the committee. In the meantime, one of us could take it up with her and the Department of Justice to see where the file really sits. I should like to volunteer Mr. Saada for that purpose.
The Joint Chairman (Senator Hervieux-Payette): Those of you, like me, who were here when Mr. MacGuigan was here know that what we are doing was started by the MacGuigan committee several decades ago. The plan was to revise and update the committee's work at a certain point. This process did not exist 50 years ago, and I believe the members of this committee feel that the process can be improved and extended.
After some discussion with the members of this committee, it was felt that both subject matters should be discussed with the Minister of Justice. The purpose of meeting with the minister would be, first, to clarify the process and make it more efficient, and, second, to extend it to any Crown corporation -- any organization that is a creature of the federal government and has escaped the scrutiny of the members of Parliament who created these institutions. It is passing strange that many organizations owe their existence to Parliament but, at the end of the day, totally escape the power of this committee in terms of their regulations. These organizations can adopt regulations totally outside of their legislation. That is why we feel that the government may be ready to examine this issue.
I concur with my colleague's recommendation of Mr. Saada as a volunteer. As well, it would be good to set a date after Easter recess so that we can examine this matter and give notice to members of the committee. That way, we may have people who are interested in that subject matter attend the meeting.
The Joint Chairman (Mr. Grewal): In my view, this disallowance procedure has been a nuisance for quite some time -- for decades, as Mr. Lee mentioned. Limitations and the weaknesses in the system have caused this committee to be stonewalled many times. We must clear the pipeline. We cannot tolerate those 25-year-old regulations that have continued against the wishes of this committee. It is beyond the expectation of the committee's powers, as well as the efficiency of the committee.
Other than voluntarily giving the minister the opportunity to look into that problem, we wrote to her in December of last year. It is now four months later. I think it would be appropriate to invite the minister to the committee so that all members can share their ideas with her.
I appreciate Mr. Lee's concern that we proceed on a voluntary basis. However, everyone in the government knows, because recommendations have been made by this committee going way back to 1986, that two committees have made very strong recommendations and nothing has happened.
Mr. Lee: Mr. Chairman, I hope you realize that your views must be those of the committee. In this particular case, in my view, the file does have movement. We do not wish to let go of the file. It is not a question of us needing to firm up, but rather a question of us continuing to work toward a goal in cooperation with the minister, with the other elements of the cabinet, and with the support in the house that would lead us to a statutory change. There is no negativity here at all. There is no need to push, but simply to nurse the matter along toward the goal on which we all agree.
Mr. Bernier: Mr. Chairman, in the letter you sent to the minister on December 20, 1999, it was stated at the bottom of page 3:
Members of the Joint Committee have discussed amongst themselves how best to proceed with this initiative which is very much considered to be of a non-partisan nature. Members thought it would be useful to have an opportunity to discuss this matter with you before proceeding.
The letter then went on to say that this need not involve an official meeting. The minister was not asked for a reply. She was merely informed that we wish to have that meeting. The expectation at the time was that she would then be contacted in a somewhat informal manner and an invitation would be made to see if she was interested in having this discussion.
The Joint Chairman (Mr. Grewal): Before we go to Mr. Saada, in my view, we ought not to use a hard-stick approach. We should not offer a long rope so that we are not able to decide anything about the disallowance procedure in this session. We should not let the matter linger.
This is a good opportunity for the minister to contribute. I do not mean that we should not go that route, but we should have a game plan. We must set up a time frame to give the minister the opportunity to contribute and look into this matter. If we do not do that, what is our next step?
The idea is that Mr. Saada will contact the minister. Let us set up a tentative time frame.
Mr. Saada: If the objective is to facilitate matters and to make things go smoothly, then I will be happy to intervene.
The Joint Chairman (Senator Hervieux-Payette): Our final committee meeting before Easter is slated for next week.
Mr. Bernier: The committee could hold a special meeting, at the minister's convenience.
Mr. Saada: The minister currently has a very hectic schedule. I do not know when he is available, but if you allow me some leeway, I will try to propose a date to him as soon as possible.
The Joint Chairman (Senator Hervieux-Payette): Come back to us with several possible dates and we will decide what is the best time for all committee members.
Mr. Saada: Gladly.
The Joint Chairman (Mr. Grewal): Mr. Saada will contact the minister.
The next item on our agenda falls under the heading "Special Agenda Items" as well.
SOR/99-26 -- REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988
Mr. Bernier: Members have in hand a letter sent to Mr. Lee on March 24, 2000, to which are attached proposed drafting instructions for the preparation of new regulations governing political activities by RCMP members.
It is counsel's view that regulations drafted in accordance with the proposed instructions would fully comply with the Canadian Charter of Rights and Freedoms. Should such regulations be enacted, the only outstanding issue on this file would concern the joint committee's view that the subject matter of the regulation should be dealt with in a statute rather than in regulations. That being said, that recommendation can certainly be pursued at a later time. For the moment, I would think the priority is to simply have new regulations in place that are constitutional.
Mr. Lee: Mr. Chairman, I am sure colleagues will agree that at the end of the day we have had good progress. On the assumption that our counsel are comfortable with the drafting of instructions now being used to draft the new regulations, there are two things to do.
First, we should write to the Solicitor General and acknowledge the process and thank him for the opportunity of participating or offering the committee's advice. Second, having invested so much time in this matter already, it would not hurt if we offered to look at the draft of the new regulations before they are adopted. That means another investment of the time of counsel, but we have already invested so much time in this issue that that might be helpful. We could suggest in the letter that our committee, through our counsel, would be prepared to do that if the Solicitor General wished. That would keep us up-to-date.
Mr. Wappel: Mr. Chairman, I do not think we should write to the Solicitor General until the regulations are promulgated. We have had a long time with this file. It has taken a tremendous amount of time, a number of committees and appearances by three separate solicitors general. I do not think we should be premature because I am not confident at this point. When I see the promulgated regulations, that is when I will be confident. We can congratulate the solicitor general of the day, whoever that may be, before or after the next election. I do not think it is necessary to send a letter to the Solicitor General at present.
The Joint Chairman (Mr. Grewal): What would you suggest we do in the meantime?
Mr. Wappel: We should monitor the situation and ask the Solicitor General's counsel to advise us exactly how the regulations are proceeding through the appropriate process, with some dates. When promulgation of the regulations has occurred, bring them back before the committee for a final decision. At that time, I would support a glowing letter to the Solicitor General.
The Joint Chairman (Senator Hervieux-Payette): This letter was received on March 28, 2000. I would like to know if legal counsel have any remarks in regard to the correspondence. I see there is no French translation.
Is this the last time that we will be dealing with these regulations, because there seem to be new changes at each meeting. I never know if the last version is the one you favour and the one you feel is consistent with the Charter.
Was the March 24 version in line with the committee's recommendations and is this another amended version of the earlier version with which you professed to be in agreement? Which version do you agree with?
Mr. Bernier: Madam Chairman, these are drafting instructions. We are in total agreement that regulations would be constitutional if they are drafted in accordance with these instructions in every respect.
I may have misunderstood, but I did not hear Mr. Lee suggesting that anyone be congratulated at this point in time. I agree that it would be premature considering the history. I think what he had in mind is that the Solicitor General should be officially informed of what I just said -- that a regulation made in accordance with this draft would meet the committee's agreement.
To this point, all the Solicitor General has by way of information is that counsel thinks it would be constitutional. Counsel is not the committee. The idea was that the committee confirm to the government that this would be acceptable and perhaps reserve the balloons and champagne for later.
Mr. Saada: I am very pleased with the way things are going and I would like to take this opportunity to thank Mr. Lee, who has left, and Mr. Bernier and his team for their excellent work. As Mr. Wappel said, I too would rather wait until the final outcome of the process is known before giving a definitive opinion. However, I agree with Mr. Lee that the Solicitor General should be told that the drafting instructions are being drawn up.
The Joint Chairman (Senator Hervieux-Payette): I would like our counsel to receive confirmation of this fact, either verbally or in writing. The fastest way would be to have him contact them and to have something for us on internal procedure at the next meeting, that is details on how they plan to proceed and when they think these regulations will be ready for tabling.
I agree with Mr. Wappel. We need to have some specific dates because we want everything to happen within a relatively short time span. The drafting committee should put this item at the top of its list, before dealing with any other regulatory items. By next week, we could have a report from you on the procedure to follow for resubmitting the amended regulations, as well as some approximate dates so that we have an idea of when they might be resubmitted to cabinet. We do not need to know if that is going to happen on the fifth or the sixth, but there should be some order of priority for the next few weeks. Are committee members amenable to this course of action?
Mr. Lebel: The draft version is in only one official language and that is not the customary way of doing things. Has someone been negligent? Admittedly, this does not happen very often.
Mr. Bernier: In essence, these are draft regulations. Since the choice of words is important and can affect whether or not the regulations are deemed constitutional, the department did not present us with a French version.
In my opinion, it was not up to us to request a translation which might not have faithfully reflected their position. I thought it wiser to keep the original and submit it to the committee.
The Joint Chairman (Senator Hervieux-Payette): I simply want to point out that this letter was addressed to Mr. Lee. This is not a case of a government document addressed to our committee. This is merely a copy of a letter informing us that an internal process was under way.
I did not raise much of a fuss about this because these are only the instructions to departments for drafting the regulations. When drafted, the regulations will be in both official languages. Correct?
Mr. Bernier: That is correct.
The Joint Chairman (Senator Hervieux-Payette): I have noted your comments, but I see that this is more in the nature of an information document for the committee. No one was obliged to send it to us and it is not addressed to the committee per se.
Mr. Lebel: In that case, why are we examining it?
The Joint Chairman (Senator Hervieux-Payette): Mr. Bernier will be contacting them to find out about the process and when we receive an official document, we will review it, as per our mandate. This document only gives us a kind of status report, with instructions to departments for revising the infamous regulations. The purpose was to reassure us that something is being done on this front.
However, we would like to know when exactly the final regulations will be tabled. We would also like to know what procedure to follow when the regulations are enacted.
Senator Moore: Further to the concerns expressed by Mr. Wappel and both co-chairs regarding scheduling, we should be setting the agenda rather than letting the agenda run us. We should be trying to get this completed in May, if possible. We have to set some benchmarks or the frustration will continue. If we have some momentum going, let us try to nudge it forward and get it done next month.
Mr. Bernier: In terms of the delay, I can give the committee a rough idea of what is required. The drafting instructions are very precise, so de facto you have a regulation. However, we must go through this process. The drafting of the regulation could be done in a week.
However, this draft must be submitted to an internal committee of the RCMP on which representatives of the members sit. That group, which I believe is called the Internal Affairs Committee, a management-member consultation group, will study it. Members will give their input to management on the draft which, after all, will primarily apply to them. I assume that they will find this draft acceptable in relatively short order. They found the September draft acceptable.
Then there is the prepublication period in Part I of the Canada Gazette of the draft proposed regulations, unless, of course, cabinet is willing to grant a dispensation. That can be sought and granted, but one must ask whether there is any reason that the normal process should not be followed.
Mr. Lee mentioned the committee looking at the draft at that stage. Certainly counsel can look at the prepublished draft in Part I of the Gazette to verify that it complies with the instructions now before the committee.
After that 30-day period, there may be comments by the public as a result of the prepublication. In this case, it is fairly doubtful that would happen. I would imagine that cabinet would be in a position to adopt the regulation immediately after the 30-day period. Therefore, I do not think it can all be done next month. There must be 30 days for prepublication and probably two or three weeks for the Internal Affairs Committee review.
Senator Moore: We have discussed the timing before. I just want to know when this committee will sign off on it.
The Joint Chairman (Senator Hervieux-Payette): You say that the draft can be finished in one week. You say that the Internal Affairs Committee may not take too long.
The Joint Chairman (Senator Hervieux-Payette): It could take as long as two weeks, which brings us to the end of April. The committee does not meet during the Easter break. The regulations are to be published on April 30, which brings us to May 30.
That would leave cabinet just about two weeks to adopt the regulations and enact them before the end of the session. You are right to say that this does not leave us much time.
It is important for officials to realize that the committee wants the process to be completed before the House rises. My colleagues will not tolerate having the document sit on some shelf for three weeks.
Mr. Lebel: They have been putting up with this for 25 years.
The Joint Chairman (Senator Hervieux-Payette): But not with this process as such. It is important nonetheless that in the course of his discussions, Mr. Bernier advise those responsible for the technical side of this matter that the committee wants things to move forward as quickly as possible.
Mr. Saada: My term as parliamentary secretary to the Solicitor General concludes in June. Normally, the position is for two years. I truly hope that if at all possible, this matter can be resolved.
The Joint Chairman (Senator Hervieux-Payette): As a rule, with these instructions, everything is clear, as Mr. Bernier said.
Mr. Saada: Regardless of when these regulations are adopted by cabinet and so forth, when they officially appear in the Canada Gazette, then we will have all of the details. Already, we will be in a good position to know where we are heading with all of this.
Mr. Wappel: If memory serves correctly, this interdepartmental committee examined things in September. I thought we did not get a response from the Solicitor General until January and then took it up at our next meeting. I seem to recall a letter in January.
Mr. Bernier: There are two groups involved, Mr. Wappel. An interdepartmental working committee -- representatives of management -- are preparing drafting instructions. The one to which I was referring is the Internal Affairs Committee on which representatives of the members sit. I might add that the deadlines are possible for the end of June. The committee also must acknowledge that if we are having a consultation with members of the RCMP, and if these people do raise an objection, then management has to deal with it. There is no sense saying to people ahead of time, "We will consult you, but, come hell or high water, this regulation passes by June." Assuming there is no objection, yes, it would be feasible.
Mr. Wappel: I agree with Senator Moore. We need some sort of reasonable time line. Perhaps I am jaded by this file, but I cannot think that two to three weeks to get it through the RCMP is a reasonable time period. I hope that is true.
Mr. Bernier: It is a matter of political will. If the will is there, it can be done.
Mr. Wappel: If the committee expresses a desire that it wants this matter resolved by the end of the session, perhaps the "political will" will be nudged, as Senator Moore says. The committee should clearly say we are looking at some time frame of the end of the session. We understand things can happen, but we are still looking at that.
The Joint Chairman (Senator Hervieux-Payette): With your permission, I think we will issue two sets of instructions: technical ones to Mr. Bernier and political ones to Mr. Saada. We will ask Mr. Saada to advise political authorities that we are working to a rather tight schedule if we want to adopt these regulations before June. We need their cooperation to keep to our schedule and accomplish everything. We will be away for two weeks in April. This will give officials more time to work on this and hold consultations, to send the text to the Canada Gazette at the end of April, leave May open for consultations and send the document back to cabinet in early June. Hopefully, the end result will be regulations for which you can take credit. Therefore, you have your instructions. In any event, you will be compensated at double time by the committee for your efforts.
SOR/90-829 -- CANADA PENSION PLAN REGULATIONS, AMENDMENT
Mr. Peter Bernhardt, Counsel to the Committee: Madam Chairman, the issue here is with section 44(2) of the Canada Pension Plan Regulations, which provides for the making of an application for a mandatory division of adjusted pensionable earnings by the representative of the deceased's former spouse or on behalf of a child of the deceased's former spouse. It was pointed out to the department that the act only allowed for the making of such division where the application was made by or on behalf of the former spouse, not by or on behalf of the children of the spouse.
In 1997, amendments were made to the Canada Pension Plan to provide the necessary enabling authority for section 44(2). What then remained was simply to re-enact this provision under the enabling authorities.
After several delays, the committee is now informed that this amendment has been dropped from the package of miscellaneous amendments, apparently on the advice of the Department of Justice. The committee is now told it will be made later as part of another series of amendments.
I would suggest that any further postponement, particularly if it seems likely that the delay will be considerable, is not satisfactory. If members are of a similar view, the department should be advised that the committee wishes the outstanding amendment to proceed without further delay.
Mr. Wappel: I have two comments, Madam Chairman. First, I find the correspondence interesting because back in September of 1998, Mr. Bernhardt specifically referred to section 44(2) in his correspondence. All subsequent correspondence from the department indicates that everything is going swimmingly. There is no indication whatsoever there is any problem with section 44(2). Out of the blue, at the last minute, two years later, they are still saying everything is going swimmingly and that they will pass everything -- but, by the way, not section 44(2). That is point one, and I think that is unacceptable.
Second, in the last section, section 44(2) will be amended later as part of the updating of certain benefit and obligation plans. Those words strike a cord in view of Bill C-23. Do you know whether Bill C-23 deals with section 44 of the Canada Pension Plan? I am talking about the statute. I realize these are regulations. Is there anything in Bill C-23 dealing with the Canada Pension Plan that would, in its scheme of things, impact, in your view, on section 44(2)? If the answer is yes, I can understand why the department wants to wait. At that time, they could not very well explain it because the bill had not been brought forward, in which case it becomes a little clearer as to what was going on here.
Notwithstanding all of that, I think it is wrong that they should have led you to believe all along that things were going well, only to let you know at the last minute that section 44(2) was not in the scheme. My own suspicion is that it has to do with Bill C-23 and the regulations that will be promulgated after Bill C-23 is passed by Parliament. That is my guess.
Mr. Bernhardt: That is conceivable. I can see, for example, that if you are dealing with children of deceased former spouses of same sex couples, there may be an impact. I have not looked at that, but I can get back to you in that regard.
As for being advised at the last minute, I am just speculating. That may be because it was dropped at the last minute. This went through as part of the package, and it was only at the very end when the Department of Justice drafters got hold of it that they suggested it be dropped, either for that reason or some other reason.
Mr. Wappel: I do not know all 68 statutes, but I believe that the Canada Pension Plan is one of the 68 statutes that is being amended by Bill C-23. I am certain this concerns that bill. If that is the case, then I can certainly understand the department's conundrum in not being able to explain things clearly in view of policy that had not yet been made public. I think we should wait.
Mr. Bernhardt: The only problem for the committee in doing so is that what remains are applications that are being considered, which have been brought by people who have no standing under the act to bring those applications. That will remain the case until something is done with clause 44(2)
Mr. Lee: I fortuitously attended a hearing of the Justice Committee that dealt with this matter. There is a lock-in date and a reach-back date for these types of applications and the applicability of the newer modernization provisions for benefits and obligations under Bill C-23. I am confident that Bill C-23 deals with the envelope. Forgive me for not remembering the date, but the Department of Justice has fixed a date, plus a reach-back date, and that date has already passed us by. Therefore, the time period for whatever changes we wanted to see happen for the benefit of those who would apply for benefits has already passed, plus a one-year reach-back date. I think it goes back to 1998.
The Joint Chairman (Senator Hervieux-Payette): First, we should clarify if the bill is in fact the cause of the problem. It might be. Second, by not making the adjustment, are we depriving anyone of any kind of pension or benefits that they would otherwise have? If there is a confusion and some people are penalized by it, then we will not wait for another year before the other regulations are put in place. However, we do not know when the regulations will be in place.
We will meet next week and counsel will have time to clarify this matter. First, the bill is not out of the Senate, is it?
Senator Moore: We do not have it yet.
The Joint Chairman (Senator Hervieux-Payette): It will be quite a long time, then. We probably will not have time to finish this matter before the end of the session. It will be quite an accomplishment if we can do it in six weeks -- that is, between May and June.
We must know if benefits are lost and if Bill C-23 affects things. We will make the appropriate decision next week. Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Senator Hervieux-Payette): Carried.
SOR/95-233 -- SASKATCHEWAN FISHERY REGULATIONS, AMENDMENT
(For text of documents, see Appendix, p. 4A:1)
The Joint Chairman (Senator Hervieux-Payette): The next item of business in SOR/95-233.
Mr. Bernhardt: Amendments have been promised in connection with the first three points raised. The reply is unsatisfactory with respect to point four. This concerns a provision, the effect of which is to make it an offence to contravene the conditions of a licence. This identical issue was the subject of the committee's second report dealing with the Ontario Fishery Regulations that was tabled a few days ago. In view of that, the committee can await the government's comprehensive response to the committee's second report, which will deal with this issue.
Mr. Lee: I had a question about the meat and potatoes side of this issue. According to these regulations, it is an offence to contravene a condition of a licence. What is the penalty for contravening a licence? That is my question to counsel. Can you tell me what the penalty would be if you contravened the condition? Do you lose the licence or are you committing an offence?
Mr. Bernhardt: Absent this provision, the sanction would be that you would be liable to have your licence pulled. This is here because it then bootstraps the criminal offence provisions in the act, which are a fine and/or imprisonment. The term of imprisonment is a maximum six months, I believe. I think the maximum fine is $50,000.
SOR/99-192 -- REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS
SOR/193 -- REGULATIONS AMENDING THE OLD AGE SECURITY REGULATIONS
(For text of documents, see Appendix, p. 4B:1)
The Joint Chairman (Senator Hervieux-Payette): The next items are SOR/99-192 and SOR/99-193.
Mr. Bernhardt: These two items come as a pair, Madam Chairman. The issue is the same in each; they are parallel provisions.
In the Canada Pension Plan Regulations and the Old Age Security Regulations, under the relevant statutes the minister is given a discretion to reimburse provincial or municipal authorities or administrators of disability income programs for payments they have made to a person for a month in which that person is afterwards found to be entitled to benefits under the Canada Pension Plan or the Old Age Security Act. This is done by deducting an amount from the benefits payable to the person and reimbursing it to the authority that has made an equivalent payment elsewhere.
The provisions that have been questioned state that where the maximum reimbursement is not paid, this is not to be taken as obliging the minister to authorize a further reimbursement. Since the decision to reimburse is completely discretionary in the first place, these provisions only state what is already the case and they serve no purpose.
The department argues that the provisions in question provide greater certainty and clarify matters. As my letter of November 9, 1999, sought to point out, however, the two acts in question could hardly be any clearer. The department's last letter further muddies the waters and seems to reveal that there is a more basic failure to understand the two provisions in question. Mr. Lahey states:
The Regulations clarify the circumstances under which the Minister is bound not to make a deduction or any further payment.
By that he means for purposes of reimbursement. He also states that the provisions make it clear that the minister could not authorize a deduction or a further payment. This is simply not so. The minister always has a discretion and the regulations simply confirm this by stating that he is under no obligation to further reimburse.
How this could be taken as prohibiting the minister from doing anything is a mystery. It now seems that at least part of the problem is that the department does not understand its own regulations. I suggest a further letter attempting to explain matters to them once again. In addition, there are two subsidiary questions concerning the drafting of these provisions which Mr. Lahey's last letter does not clearly address. Those could be followed up on as well.
Mr. Wappel: I read the letter from Mr. Lahey and was satisfied with it. Yes, they do not understand it. So what? I am being slightly sarcastic here. What they have done is helped themselves to understand by putting in regulations that are not necessary because if they understood, they would not be necessary. Given all that, so what? So they are not necessary. What criteria of ours have they breached, other than being not necessary? Have they breached a specific criteria of the committee's list of criteria? If so, what is it other than that this is just overkill?
Mr. Bernhardt: But for those statements in the last letter, I think I would tend to agree with you, Mr. Wappel. If it had simply been the case that they were saying, "We realize that he has a discretion, but we have put it in here in a second place as well," then the issue for the committee would be whether or not they could live with a duplicative provision. The only thing that causes me concern are the statements the department is apparently reading into this matter that these provisions prohibit the minister from doing something. When one sees a provision stating that the minister is under no obligation to do something and the department says that this means the minister is prohibited from doing something, then that raises a further question of whether the regulations reflect the intent.
Mr. Wappel: I do not think that is what they are saying. They believe the act -- and I am not saying they are right -- does not explicitly permit the minister to refuse to pay. That is not what you said. It is different terminology. They want it to be absolutely crystal clear in their own bureaucratic minds that the minister has the authority to say no. Clearly, he can say no if he does not have to say yes.
Mr. Bernhardt: When I read the December 7 letter, the department says:
The Regulations clarify the circumstances under which the minister is bound not to make a deduction....
They are saying that the minister does not have a discretion. He cannot do this.
Mr. Wappel: Where is that?
Mr. Bernhardt: This is the bottom of the third paragraph on the first page of the December 7 letter. The second sentence begins, "The regulations clarify the circumstances under which the minister is bound not..." If it had said "is not bound," that would be completely different. That is a discretion. The minister does not have to do it. He is not bound and not obligated. Here it says he is "bound not to make a deduction..."
Mr. Wappel: What if you wrote to them and asked them to agree that the phrase should have been "is not bound"?
Mr. Bernhardt: We must determine exactly how they are reading their own provision. Is this simply repeating that the minister has a discretion, or is this purporting to say that the minister is bound not to give consent, has no discretion and is prohibited.
Mr. Wappel: On that basis, I agree.
Mr. Bernhardt: After that, we may be back to your point at the end of the day. They may say that it was expressed badly and is simply repetition.
Mr. Lee: I want to nominate Mr. Wappel for the Florence Nightingale award for compassion and understanding. I have compassion but I do not have the understanding. I have great difficulty with this issue. I admit that to all. I am glad Mr. Wappel has done this. He deserves all our respect and thanks for ferreting out this cow flap at the side of the road.
The Joint Chairman (Senator Hervieux-Payette): I have never seen so much sincerity, honesty and humility from parliamentarians in my life. As a French speaker, listening to you discuss "is bound not" or "is not bound," I had a little bit of fun. I thought only the French could split words like that. I still have no course of action, though. What is our next step?
Mr. Bernhardt: I suggest at this point it is simply a matter of writing back to the department and having them clarify their reading of the provisions.
The Joint Chairman (Senator Hervieux-Payette): They might move the word "not" to the right place. Tell them that this has confused even Mr. Lee. That will raise even more compassion for our situation.
Mr. Wappel: Make sure you put in the letter that they are "not bound not" to reply.
SOR/86-21 -- ATLANTIC FISHERY REGULATIONS, 1985
SOR/86-1000 -- ATLANTIC FISHERY REGULATIONS, 1985, AMENDMENT
SOR/87-313 -- ATLANTIC FISHERY REGULATIONS, 1985, AMENDMENT
OR/87-672 -- ATLANTIC FISHERY REGULATIONS, 1985, AMENDMENT
(For text of documents, see Appendix, p. 4C:1)
Mr. Bernier: Now that the committee has secured a firm commitment that section 60 of these regulations will not appear in the revised regulations, the department should simply be queried as to progress.
Mr. Wappel: Hear, hear!
SOR/93-56 -- MARINE MAMMAL REGULATIONS
(For text of documents, see Appendix, p. 4D:1)
The Joint Chairman (Senator Hervieux-Payette): If there are no further comments, we will move on to SOR/93-56.
Mr. Bernier: Revised regulations are promised for the spring of 2001. The issues raised by the committee will be addressed at that point.
The Joint Chairman (Senator Hervieux-Payette): Is no one worried that marine mammal regulations will be in trouble until then?
Mr. Bernier: I understand that the seal hunt is going on now. Any change in those regulations will only become relevant next year at about this time. Obviously, we are too late to do the changes for this season. They are promised in time for next year.
Senator Cochrane: The seal hunt is almost over.
SOR/87-19 -- PENSION BENEFITS STANDARDS REGULATIONS, 1985
Mr. Bernier: In this case, the reply from Mr. Palmer explains why a promised statutory amendment was not included in the Miscellaneous Statute Law Amendment bill proposed in 1999. He promises that those changes will be included in the next bill. That issue will be followed up in the usual manner, if the committee agrees.
Mr. Wappel: Madam Chairman, I thought Mr. Palmer's letter was quite frank. He could not have been more honest. He was diplomatic but very honest about it.
Mr. Bernier: Mr. Lee is not the only one.
The Joint Chairman (Senator Hervieux-Payette): That is the second confession today.
SOR/98-103 -- TECHNICAL AMENDMENTS ORDER (CUSTOMS TARIFF) 1998-2
(For text of documents, see Appendix, p. 4E:1)
Mr. Bernhardt: Corrections were promised to deal with the drafting matters noted in points 1 and 4 of Mr. Rousseau's letter. These were to have been made in February. They are still outstanding, so a progress update should be sought. The reply as it relates to points 2, 3 and 5 appears to be satisfactory.
The Joint Chairman (Senator Hervieux-Payette): We will follow it up.
SOR/99-279 -- NOTICES OF DEPOSIT RESTRICTIONS (AUTHORIZED FOREIGN BANKS) REGULATIONS
SOR/99-388 -- NOTICES OF UNINSURED DEPOSITS REGULATIONS
(For text of documents see Appendix, p. 4F:1)
The Joint Chairman (Senator Hervieux-Payette): The next items are SOR/99-279 and 99-388.
Mr. Bernhardt: In connection with the notices of uninsured deposit regulations, an amendment has been promised to correct the minor discrepancy between the font size used in part of the form in the schedule and the requirement related to it found in section 1 of the regulations. This is to be done when the regulations are next amended.
Mr. Wappel: Why not immediately?
Mr. Bernhardt: I was about to suggest that this seems satisfactory, given the nature of the problem. As concerns the other point common to both files, the superintendent's letter has given a satisfactory confirmation of the intent of the provision, and no further action is required.
The Joint Chairman (Senator Hervieux-Payette): The Chair is the one who does not understand. May I be honest with you and ask you to explain to me once again the story of French and English and the whole issue of the size of the letters. Can you give me a general overview of this matter?
Mr. Bernhardt: Somewhat unusually, there is a provision in the regulations that requires certain parts of the notice to be in a font of a certain size. When you go to the form in the schedule, the sample form, the font size does not match. It was suggested to them that they should change the font size on the form. Clearly, they have agreed. It is a factual matter. Obviously it is something that can be done whenever these things are next opened up. Given the very minor nature of the problem, that would seem to be an acceptable approach to take.
SOR/97-468 -- CANADA HEALTH AND SOCIAL TRANSFER REGULATIONS
(For text of documents, see Appendix, p. 4G:1)
The Joint Chairman (Senator Hervieux-Payette): The next item is SOR/97-468.
Mr. Bernhardt: The question here was whether reference to the amount of an under-payment clearly reflects the intended meaning of the provision. In the end, it boiled down to a choice of words, which amount to the same thing either way. I submit there is nothing to pursue here and that the file can be closed.
Hon. Members: Agreed.
SOR/91-428 -- NORTHWEST TERRITORIES FISHERY REGULATIONS, AMENDMENT
SOR/91-481 -- NORTHWEST TERRITORIES FISHERY REGULATIONS, AMENDMENT
(For text of documents, see Appendix, p. 4H:1)
The Joint Chairman (Senator Hervieux-Payette): Next is SOR/91-428 and SOR/91-481.
Mr. Bernhardt: Amendments addressing the committee's concerns in connection with both these files had been deferred in anticipation of new fisheries legislation. The bill was introduced twice but both times failed to pass. Eventually the committee was informed that promised amendments to various fisheries regulations would no longer be delayed in anticipation of a new fisheries act.
In the instance of these two items, the department states, in effect, that the promised amendments will now be made when the regulations are next amended. As Mr. Leclerc's letter indicates, fisheries regulations tend to be amended fairly frequently. Provided that action is taken within a reasonable period of time, I suggest that the promise is satisfactory, at least for the time being.
The Joint Chairman (Senator Hervieux-Payette): What is a reasonable amount of time? How reasonable is reasonable?
Mr. Bernhardt: In the past, for drafting amendments, the committee has usually accepted about two years as being the outside of the time frame.
The Joint Chairman (Senator Hervieux-Payette): They will certainly not die of a heart attack going at that speed. Perhaps you could explain that again. If I have to explain it to someone one else, I will need more information as to why it will take two years. Are they in the process of doing the revisions over the course of two years?
Mr. Bernhardt: No. In this case, they have suggested that the committee's concerns are largely with regard to drafting points, and they will make these amendments whenever they have other amendments they propose to make to these regulations. In the past, the committee has usually accepted this practice for minor amendments, with the proviso that, at some point, the committee will insist that things are falling behind.
The Joint Chairman (Senator Hervieux-Payette): I will be here for the next two years. I will make sure it is done.
SI/99-53 -- ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES
SI/98-36 -- ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES
SI/95-23 -- WITHDRAWAL FROM DISPOSAL ORDER (KELLY LAKE AREA, N.W.T.)
(For text of documents, see Appendix, p. 4I:1)
SOR/94-140 -- INCOME TAX REGULATIONS, AMENDMENT
(For text of document, see Appendix, p. 4J:1)
SOR/96-549 -- YUKON TIMBER REGULATIONS, AMENDMENT
(For text of documents, see Appendix, p. 4K:1)
SOR/97-486 -- REGULATIONS AMENDING THE BOARD OF STEAMSHIP INSPECTION SCALE OF FEES
SOR/98-524 -- REGULATIONS AMENDING CERTAIN DEPARTMENT OF TRANSPORT REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix, p. 4L:1)
SOR/98-484 -- REGULATIONS AMENDING CERTAIN DEPARTMENT OF FINANCE REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix, p. 4M:1)
SOR/99-232 -- REGULATIONS AMENDING CERTAIN DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT INSTRUMENTS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix, p. 4N:1)
Mr. Bernier: Madam Joint Chairman, perhaps we could review all of the regulatory instruments under the heading "Action Promised"
A total of ten amendments have been promised. Furthermore, six amendments have been made to the items in question at the committee's request.
The Joint Chairman (Senator Hervieux-Payette): Then the reply was satisfactory?
Mr. Bernier: Yes.
The Joint Chairman (Senator Hervieux-Payette): Our next item of business then is SOR/94-140
Mr. Bernier: This item also falls under the same heading as the previous items. Ten amendments were promised and six have been made in all.
The Joint Chairman (Senator Hervieux-Payette): Then you have made progress on all of these items.
Mr. Bernier: Yes.
The Joint Chairman (Senator Hervieux-Payette): All of the other items satisfy the review criteria. Is that correct?
Mr. Bernier: Yes.
The Joint Chairman (Senator Hervieux-Payette): I do not know why I was under the impression that we had a meeting next week. Obviously, that was a misunderstanding, which I wish to correct. There is no meeting next week.
Our next item of business is to consider the draft of the special budget for the Commonwealth conference, which has been circulated. It has to be presented to Internal Economy. This is the proposed budget prepared by our staff after my discussion with them. It seems to be reasonable, if we are to have 70 people attending. We will need some special staff to help the regular staff to keep on schedule. There are a few meals, and one dinner.
Mr. Wappel: Madam Chairman, the budget appears to be very reasonable. I wonder if it is sufficiently padded to take into account any contingent expenses. In other words, I hope it is slightly overrealistic. I have never been involved, even peripherally, in the planning of an international conference, so I have no idea how much it costs. I would hate to think that we go in with $86,000 and it ends up costing $92,000, which would be rather embarrassing. If $86,000 is already an overestimation, then that is fine.
The Joint Chairman (Senator Hervieux-Payette): I will ask the clerk. Most of the expenses are related to the number of participants, apart from the big expenditure of $51,000 for "Professional and Other Services." We have a contingency in our regular budget. If we have five or ten delegates, we can pay for their meals from this budget.
The only uncertainty is the number of delegates who will be registering. If there is overwhelming participation and 100 people attend, we will have to discuss that. We certainly will not phone the country and say, "You are too many and we do not want you."
Mr. Wappel: We are charging some fee, are we not? Did we not have to pay some sort of registration fee for the Australian conference? I cannot recall.
Mr. Bernier: Australia had a registration fee, Mr. Wappel. I believe the clerk prepared this budget on that basis. This is a Commonwealth conference, and perhaps the approach is a little different. I do not think there is a tradition of charging registration fees for Commonwealth-wide conferences.
Mr. Wappel: Perhaps 70 is a good estimate.
Ms Jill Anne Joseph (Joint Clerk of the Committee): Seventy is not an overly generous estimate. According to my notes, the four previous Commonwealth conferences had 58, 77, 58 and 70 representatives respectively. If we were to have a higher number of delegates, say close to 80, this budget could prove insufficient. If the committee wishes a bit of padding, it might want to raise the number to 75 or 80 delegates.
Senator Moore: We have a nice donation from Pillitteri wines.
Mr. Pillitteri: Senator, I have so many friends. Where is the conference?
Mr. Wappel: Here.
The Joint Chairman (Senator Hervieux-Payette): We promise Senator Fitzpatrick will also be requested to help with the hospitality item, so we can cut this item by one-half.
Mr. Wappel: Perhaps we should throw the number up to 75 delegates so we have some padding.
The Joint Chairman (Senator Hervieux-Payette): Is it agreed that we add five delegates? It will not cost anything if they do not show up.
Mr. Lee: Before nominating Mr. Pillitteri for the Mother Teresa award for past charity, have we had the opportunity to review the budgets of previous conferences? Would you please, for the record, give me the dates of this conference?
The Joint Chairman (Senator Hervieux-Payette): It is the second week of September, which is the week before the regular business of the House and the Senate starts.
Mr. Lee: Have we looked at previous budgets?
Mr. Wappel: I do not want to be unduly pedantic here, but I wish to remind committee members that we hope this conference will be a success. The 2000 Olympics are taking place in Sydney, Australia. My recollection is that it is in September.
Senator Moore: The games begin September 15, 2000.
Mr. Wappel: All the people we met with from Australasia said that they were very much looking forward to the Olympic Games. I would be fearful that we would lose much of the Australian and New Zealand participation if we had a conference anywhere close to the time of the Olympic Games. I cannot blame them. I urge that we hold the conference a week earlier than the Olympic Games, recognizing that school is starting and all the rest of it. We must be very careful about that. I know they will pick the Olympics over a Commonwealth conference.
The Joint Chairman (Senator Hervieux-Payette): Since time is very short, my suggestion for a time slot would be during the recess, which will take place on October 9. The weather is still very nice here and Parliament will not be sitting. This would give us a little bit of time. The more we shorten the time, the more we make it difficult for the preparation of the meeting. This would be after the Olympics.
Mr. Lee: I am still waiting for an answer to my earlier question, but I want to point out that none of the delegates to this conference are actually competitors in the Olympics. The Olympics run on for a few weeks. Perhaps there are key dates in the Olympic agenda that they might wish to attend, but the fact that this event would be held close to the Olympics would not really impair the training time available to some of our political friends.
The Joint Chairman (Senator Hervieux-Payette): In the first week of September we have Labour Day, so that time slot is not appropriate. Some of our colleagues have families and children. The second week is the week of October 11. If the Olympic Games start on October 14, this would be on the same date as the opening ceremony; therefore, it would be a bit unfair to the people from Australia to schedule the meeting for October 14. As I say, October 9 would give us an extra two or three weeks to plan and to have the delegates make it to the conference. If we host the conference any earlier than that, we risk losing delegates who will make presentations and, at the same time, impose stress on our system. We will have our staff and we will have our supplementary staff. This way, we are sure of achieving success.
I ask that members agree to have the meeting during the recess of October 9. We are looking at almost three days of work -- two and one-half days in terms of events. Perhaps we can decide the specific days of the week at another time. There are hotel rooms, et cetera, to arrange, but I think delegates will come for one week. Some of them will want to stay on in Canada. We must hold the conference during the week, not during the weekend. If everyone agrees, we will go with that. As well, we will add five delegates to the budget.
Any other suggestions?
The Joint Clerk (Ms Joseph): Mr. Lee was asked whether budgets from the previous Commonwealth conferences were reviewed to prepare this budget. They were not. I did not call the various Parliaments and track down copies of their budgets from previous years.
Mr. Lee: At the risk of stating the obvious, it might be helpful to review previous budgets. We would like to get it right, just in case we have missed some category of expenditure or saving.
The Joint Chairman (Senator Hervieux-Payette): We said what we got when we were at a regional Commonwealth conference. We were on our own at night and for breakfast, but coffee and doughnuts were served before we met each morning. The luncheon was on the conference site and was offered by the host country. We had one official dinner at the end. I suppose we do not add a translation service because it is part of the regular service for the two Houses. The cost of translation is not there because I believe permanent staff will be conducting the translation. We do not charge the committee, do we?
Mr. Lee: My rule is to assume nothing.
The Joint Chairman (Senator Hervieux-Payette): Therefore, assume nothing and we will check.
Usually, what we do is try to convince the two Speakers that they make a little contribution for gifts to the parliamentarians attending, but that is not regularly put into the budget of the committee. I have never seen that in other budgets.
Senator Moore: Do you need a motion that the budget be adopted, as amended?
The Joint Chairman (Senator Hervieux-Payette): Mr. Bernier asked whether the printing of the report might be included. I would need at least a motion to approve that for the simple reason that it must go through the Internal Economy Committee and then we must hire the people to do the work. Printing the report -- $5,000.
Mr. Lee: Madam Chairman, I move we adopt the report as presented but with a proviso that it may be necessary to adapt and amend the budget as we continue to plan for the conference. Mr. Wappel has urged one amendment.
Mr. Wappel: I thought we had some concurrence around the table that we would have an estimation of 75 delegates rather than 70. If Mr. Lee and others agree, we could go with that.
Hon. Members: Agreed.
The Joint Chairman (Senator Hervieux-Payette): Just to ensure that we will not be short, I will add, under the heading "All Other Expenditures," $5,000 for printing the report of the conference.
Hon. Members: Agreed.
The Joint Chairman (Senator Hervieux-Payette): The next meeting is scheduled for May 4.
The committee adjourned.