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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 7 - Evidence

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:40 a.m. to consider regulatory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) presiding.



The Joint Chairman (Senator Hervieux-Payette): The first item on our agenda is SOR/90-218.


Mr. Peter Bernhardt, Counsel to the Committee: The Canadian Food Inspection Agency has agreed to amend the Fresh Fruit and Vegetable Regulations so that they distinguish between the grounds for suspension and the grounds for cancellation of the registration of an establishment. The committee has always taken the position that regulations authorizing suspension or cancellation ought to make such a distinction, in order to avoid the possibility of an arbitrary difference in the treatment in similar fact situations. Failure to make the distinction between the circumstances that would lead to suspension and those that would lead to cancellation of a licence, registration or permit may be seen to make the rights of the citizen unduly dependent on the discretion of officials.

The agency had indicated that it hoped to make the promised amendments part of a rewrite of the regulations following passage of the new Canadian Food Safety and Inspection Act.

The agency also promised that should the bill be delayed or should it fail to receive passage it would quickly proceed with the amendments separately. In the course of an appearance by agency officials in April 1998, the committee was assured that whichever course of action was ultimately followed the matter would be resolved within two years.

Of course, the Canadian Food Safety and Inspection Act did not become law, and counsel's letter of November 9, 1999 then sought an assurance that it remained the agency's intent to proceed with the promised amendments within the two-year time frame given in April 1998.

Despite the April 10 reminder letter, no reply from the agency has been forthcoming; needless to say, the amendments still remain to be made.

The Joint Chairman (Senator Hervieux-Payette): So, this is a sad story of not having had any progress since 1994.

Mr. Bernhardt: We had the promise in April that it would be done within two years.

The Joint Chairman (Senator Hervieux-Payette): Yes, promises; that is all.

Mr. Bernhardt: The two years have now passed and it has not been done. Now it is back to the committee.

The Joint Chairman (Senator Hervieux-Payette): I am in your hands, honourable members.

Senator Finestone: I would like to know if the fruits and vegetables are rotting or if people are paying too much money for them when they get here. What is the problem?

Mr. Bernhardt: The issue here is the provisions in the regulations that provide for suspension or cancellation of the registration of an establishment -- in short, your business licence.

Senator Finestone: Let us say I have a stall at the Jean Talon market and a licence from the City of Montreal to sell fruits and vegetables. What has that to do with the right of my establishment to sell fruits and vegetables?

Mr. Bernhardt: Here we would be dealing primarily with importers of fruits and vegetables, and it would come in, basically, I think, at the wholesale level. You have to register your establishment in order to engage in that business. Then there are provisions in the regulations that set out the circumstances where you can have your registration suspended or cancelled. The regulations make no distinction between those circumstances. They simply say that, if you are contravening the regulations, you can be suspended or cancelled. The committee has always objected to that sort of thing, on the following grounds: There could be two people in identical situations. In one case, a fellow gets his registration suspended; in the other, the other fellow, who is in identical circumstances, gets his registration cancelled, depending on which inspector comes down the line or whether the inspector is in a good mood that day or not. The committee has always taken the view that any regulation that provides for both cancellation and suspension of anything, whether a registration, a licence or a permit, should clearly distinguish the circumstances in which a suspension will be imposed and the circumstances in which a cancellation will be imposed. Doing so removes the possibility of an arbitrary administrative discretion being exercised.

Senator Finestone: Is the problem, as you see it, that it is not clearly defined in the law?

Mr. Bernhardt: That is right. It simply leaves it to the officials to decide in any instance whether they wish to suspend or cancel.

The Joint Chairman (Senator Hervieux-Payette): Can we correct that just with regulations?

Mr. Bernhardt: Yes. The committee has been promised that they will amend the regulation to set out two categories of behaviour, if you will: If you do these things, you will be cancelled; if you do these things, you will be suspended. That is commonly done in regulations. There is nothing unusual about that. Here, the difficulty that has arisen is with the time frame. The committee was assured that this would be done within two years. The two-year deadline passed in April. Not only has it not been done, but also the request for information from the agency has not been answered.

Senator Finestone: Do we have a list of companies or businesses that have lost a licence in these circumstances, who have suffered financial loss and the ability to earn a living as a result of these regulations?

Mr. Bernhardt: We certainly do not have that information. Frankly, I would turn the question around slightly. The problem is that the potential is there. How many times that has been exercised, whether it is possible, whether it is occurred, the problem is that the potential for abuse sits in the regulations. It can easily be removed.

Mr. François-R. Bernier, General Counsel to the Committee: The immediate issue is really that the committee had a personal appearance by the vice-president of the agency in April 1998 and at the urging and prompting of, among others, Mr. Wappel. Mr. Ray, who was the vice-president then, gave a clear, formal undertaking that this promised amendment, which had already been promised by the agency, would be done within two years at the outside. It has not been done. When counsel have sought an explanation as to why it has not been done or an indication of when that commitment would be met, letters have been ignored. On the substantive point, there is agreement. The agency has already agreed with the committee.

Mr. Epp: What can we as a committee do about it? Can we haul Mr. Chartier before the committee and have him explain the delay? Would that work? Could we write him a letter and say, "You are hereby disallowed being able to suspend or cancel anybody until you have a regulation that controls it"? What are our options?

Mr. Bernier: The first option is probably the most viable. Given that this is a needed enforcement mechanism -- no one doubts that -- I think you would have to look at the consequences of disallowance. You are leaving a vacuum and leaving inspectors without any tools. I think the first option is probably better. The concern now is the time frame, if the committee were to go that route. The agency has already bought itself a slight grace period because they could be informed that unless the situation is rectified the committee wants to see representatives of the agency at its first meeting in the fall, which gives them the summer to get moving and to fulfil their commitment.

The Joint Chairman (Senator Hervieux-Payette): It is the most practical course, knowing the time of year we are in, with just a few weeks left. If we were to undertake the disallowance procedure right now, we would not go very far at this time of the year. Telling them that they have to appear at the first committee meeting in the fall, giving them of course the opportunity to change it, might be wise. If they change it, we will just forget about the appearance. That may be the most efficient way.

Mr. Epp: I so move.

Senator Finestone: The letter should indicate that disallowance will take place the end of September if they have not fulfilled their commitments. They have already had two years and almost six months.

The Joint Chairman (Senator Hervieux-Payette): Is it agreed that we should conclude by saying they have to appear and explain, and that, in the meantime, they can change it and comply with our request, otherwise the regulations will be disallowed?

Senator Wiebe: I am rather new on the committee, but it seems to me that two years is a tremendous amount of time to make that kind of change.

Senator Finestone: It is six years.

Senator Wiebe: Yes, I agree, six years and now two years. I think we are just fooling ourselves if we wait until next fall. We could take the belief in their letter that they do have the regulations changed and they just have not gotten around to forwarding them to us, because they did make a commitment that they would have them in two years. We are going to be here for another three weeks, maybe four. I think we should put pressure on them. There is no reason under the sun why they should not have ample time in two years to have this done. If we wait until fall, they will drag it out until fall. Then there will probably be another excuse, saying, "We cannot get it done until spring," and we will be sitting here for another year.

The Joint Chairman (Senator Hervieux-Payette): How many meetings do we have left?

Mr. Bernier: One possibly, depending on when the houses rise.

The Joint Chairman (Senator Hervieux-Payette): We might have one meeting. I am ready to call them to appear at the next meeting, if we have one.

Mr. Bernier: That assumes they are available.

The Joint Chairman (Senator Hervieux-Payette): They have to be available. We are not asking them if they would like to come.

Mr. Epp: While I appreciate what Senator Finestone was saying about threatening disallowance, I did hear what counsel said, which is that we would create a vacuum by doing that. I think we should give them notice that this is a possibility but not say that it will be done if we go that far. I think we should write them the letter and ask them to appear here at our first meeting in the fall. If they do not have it done, that would give them the whole summer to get it done, and I think that the results will be accomplished without using a club on them.

Senator Bryden: I take it that this a Governor in Council action creates this regulation. I do not know the empowering act. It is not a ministerial action. If they have not done anything yet, it is not simply a matter of getting this into the Governor in Council next week. It will not happen.

The Joint Chairman (Senator Hervieux-Payette): Technically, yes.

Senator Bryden: It will not get done. I would lean towards doing what has been suggested, namely, inform them that it should have been done, that they will be expected to explain, and that they have the summer to get it done or further action will be taken at that time.

The Joint Chairman (Senator Hervieux-Payette): They are requested to appear before us at our first meeting when we return after the break.

Senator Finestone: I still feel like I am the new girl on the block. Is it allowable to ask if there have been any licences that have been suspended, or how many, or how many have been cancelled? We are supposed to be here as the eyes of the citizens of the country. If I lose my licence, I have lost the right to an income to support my family. For this matter to drag on from 1994 is irresponsible. The letter could indicate that we would like them to bring to our attention the cost that this has created for families or businesses.

I find this to be highly irresponsible. This has dragged on for over six years. I know that you like to go step by step, very cautiously -- that is what I am learning from this committee -- but my caution does not go to where the ordinary citizen is losing his job and his income.

The Joint Chairman (Senator Hervieux-Payette): My experience with the committee is that when the regulation is not used, they do not bother to change it. That is not our task. Our task is to have regulations that comply with their legislation. Whether or not it has been used is not our role. However, if our colleagues agree are in agreement, I do not mind if we ask them how many licences were suspended or cancelled. We have the legitimate right to ask them whether the regulation was used over the last two years. It will probably give us an explanation about why they have not moved on it.

Mr. Wappel: I do not want to beat this to death, but I see it from a slightly different perspective. I look at the letter of May 5, 1999, from the Canadian Food Inspection Agency, the last full paragraph. They had a contingency plan. They expected the bill to pass. If the bill did not pass, they had a regulation ready to go. That is what they said. However, the bill did not pass. Therefore, the question that must be asked is: Why did they not put plan B into effect? We tried to ask that, in a manner of speaking, but our correspondence was ignored. The issue really is the same issue as to why we had Mr. Ray here in the first place. Why was our correspondence being ignored?

Two years ago, they admitted that our correspondence was being ignored. They promised that that would no longer be the case; they promised that they would put procedures into place to ensure that this would not happen again. It is clear that it has happened again. I am in complete agreement with Mr. Epp that we should call Mr. Chartier. I guess I have been worn down. I am no longer as upset as other members about the time. Whether it is two weeks from today or whether it is in the first week in September, either way, they will get the message. We can certainly say in that letter that we expect them to appear and we expect them to have an explanation as to why they did not put the plan that is mentioned in Mr. Standish's letter into effect. We want to know how people's licences have been cancelled and we want them to be on notice that, if the answers are not satisfactory, the committee will consider disallowance. That ought to shake them up.

The Joint Chairman (Senator Hervieux-Payette): To whom do you suggestion we send the letter? There are the people with whom we correspond normally; there is the president of the agency; and there is the boss of the boss, who is the minister. We should target the right target. I would be inclined to send the letter to the president of the agency, with a copy to the minister, saying that we need some explanation. Those people down the line are not the ones that we should target. They should be responsible to what the agency is all about and give us the proper explanation. I would include a paragraph, Mr. Bernier, about the fact that this was promised and refer to the fact that they have not only not acted but also they have not even complied with what they had promised. Is it agreed?

Hon. Members: Agreed.


The Joint Chairman (Senator Hervieux-Payette): The next item is SOR/88-66.

Mr. Bernier: Before addressing the content of the replies before the committee, I wish to clarify with respect to Mr. Weiner's letter of July 7, 1999 that, although it is written further to the minister's response, the minister's response was only received a month later. There may been some confusion for anyone going through that correspondence. The minister's reply is dated August 23. Yet on July 7, Mr. Weiner said he was writing further to that letter of his minister. He obviously saw the letter on its way up and then did his follow up, but the letter that went up was only received later by the committee.

Having said that, when the chairmen wrote to the minister in early 1999, the committee was waiting for additional amendments to the regulations as well as amendments to the enabling statute that would provide required legal authority for certain regulatory provisions. At the time, the committee was not happy with the vague timeline that was put forward by the department. It sought the minister's cooperation "in ensuring that the outstanding amendments to both the Act and the Regulations will be made without further delays and postponements."

Regarding amendments to the regulations, the minister, in his letter, states that he asked his officials to give priority to dealing with the outstanding concerns of the committee. In his follow-up letter, Mr. Weiner states that these amendments have been included in a current package for which the RIAS, or regulatory impact analysis statement, was to be completed in August 1999. At this time, the anticipated amendments have not been made; nor have they even been pre-published, so far as I can see.

As for the amendments to the act, which are designed to provide proper authority for certain provisions of the regulations, the minister informs the committee that the government is committed to modernizing the health system to meet the needs of Canadians in the 21st century, and that updating the Hazardous Products Act is also a top priority of his department.

As for the minister's suggestion that greater efficiencies would be realized if the committee commented on proposed regulations, I regret to say that this comment simply shows that the minister does not really understand the role of this committee.

In summary, the committee appears to be no further ahead than it was when it decided that the chair should write to the responsible minister.

The Joint Chairman (Senator Hervieux-Payette): If they want to give us the right to stop any regulation that does not comply with the law before it is implemented, we will need more staff and we will scrutinize and probably delay the regulations.

Mr. Bernier: Not to mention that, in that case, one might well ask why Parliament would even delegate the legislative power. If it is to look at things before they are made, Parliament might as well make the law itself.

The Joint Chairman (Senator Hervieux-Payette): We should look at it before and tell them whether or not they are right. We told them it is not right. What is the suggestion in this case? Do we have any particular problem with their staff? What is the real story behind it?

Mr. Bernier: As far as regulatory amendments are concerned, those have been accepted. Those are promised amendments to this committee. In 1999, the department preferred to wait and delay those amendments until some global study was done, perhaps to have concluded in 2001. The committee did not accept that as satisfactory and so informed the minister. The minister said that he has told his officials that our concern is a priority. That was in August 1999 and the regulations still have not been made. Thus, if that is the way the department treats regulatory amendments that are a priority, and so declared by their own minister, I would hate to see how long they would take to move on something that is not a priority.

Mr. Wappel: I think what you just said, Mr. Bernier, should be put in the next letter, exactly the way you said it. Having said that, if we look at the July 7, 1999 letter, the last paragraph on the first page, there is not only an undertaking but a statement that the regulations have been prepared. They have been blue-stamped and they have recently been received from Justice. All that needs to be done is a RIAS, and the promise that the RIAS will be done in one month, namely August 1999. Here it is, June 2000, and we have not heard a word. That is on the regulation.

On that issue, we should write to Mr. Weiner and ask him why it is that what he undertook in that particular paragraph 10 months ago has not come to pass, using the words that Mr. Bernier stated.

As far as legislative changes are concerned, that is a matter for a particular government. We cannot force a minister to bring in legislation, as we have seen when we have tried to get the Solicitor General to bring in legislation. The best we can do is to move as slowly as we can, or as fast as slow will allow, to get the regulations changed.

I have no doubt that Mr. Rock has every good intention of modernizing the health system. I would think any reasonable and responsible minister of any government has every intention of modernizing the health system. I do not think we need to enter into any further correspondence with the minister at this point. I certainly think we should follow up with Mr. Weiner, because he gave a clear, unequivocal and time-dated undertaking and has not kept it.

Whether we want to call him as well, I am not sure at this point. Let's see what his response is. It could be on the agenda at the first meeting, and, assuming he has a response, it might answer the matter. If he does not have a response, then perhaps at the second meeting we can call him and "roast the Weiner."

Mr. Epp: It is always risky to express one's ignorance, but what is RIAS?

Mr. Bernier: RIAS is an acronym for Regulatory Impact Analysis Statement. If you look at any new regulation, or most of them, some are exempted, at the end of the regulation you will find a Regulatory Impact Analysis Statement, which consists of a series of pre-determined items that must be addressed. There is a description of the regulatory proposal. That is followed by a statement of the alternatives to regulation that were considered by the government and then there is a benefit and cost-analysis part, which, in most cases, is rather summary. Then there is a consultation, where the department indicates what consultations have taken place over the proposal, and then a heading of "compliance and enforcement." That will explain how that regulatory amendment will be enforced.

Mr. Epp: Is that the last step before it is brought into play and announced in the Gazette?

Mr. Bernier: Yes, it is. To be honest, I am not perfectly sure exactly when the RIAS is completed in terms of the internal process of the government. I would think it should be there before the regulation goes on cabinet.

Mr. Epp: Could it be that this is held up in cabinet? If you look again at the last paragraph on the first page of the July 7 letter, it says, "We will completely the RIAS within the next month..." After that, it goes to cabinet and then it goes to the Gazette, right?

It could be that we are dealing with a cabinet matter and perhaps the letter should go to the minister on this.

The Joint Chairman (Senator Hervieux-Payette): My assumption, having been in the other place and in this capacity, is that it has probably never gone to the other level. It is still jammed in the machine. What the reasons are, we never know. Normally, the process will be gone through. It will go automatically. I can tell you it is not the minister who will review each line of each regulation. It is a process. Also, it is a matter of sharing with other people who are on that committee.

This impact is the wishful thinking of politicians about the impact of their regulations. I do not think anyone can really enforce that for the simple reason that large mechanics are involved. The purpose of it was to ensure that we are not over-regulated. From what we see here, we know that this process would need to be revised.

I agree with Mr. Wappel, to write to Mr. Weiner. He is the person who probably has it in his drawer. It appears from the letter that Mr. Weiner is in an acting position, so I hope he has been appointed. That may be why he is not pushing the regulations. He was just holding the position temporarily.

We are writing not necessarily to this individual, but the person occupying that position, to see where that regulation is, why has it not been processed and when will it be published, according to the letter of July 7, 1999. If we have no answer, we will put that on the agenda early first meeting in the fall.

Senator Finestone: When we see the words "Controlled Product Regulations," and we know that there is a big discussion going on about marijuana and other substances of that nature, how do we know what product is of concern here? How do we know what the real issue is? Are we not supposed to know that?

What concerns me in terms of all these issues from 1990 and 1994 is that, as parliamentarians, we conscientiously determine whether to pass a law and then we do not seem to have any control over the application of that law until we get a regulation that has not been properly put into place.

Parliamentarians look at a piece of legislation and they want to know the impact on their own constituents. Here is the substance of what would impinge on the citizens, and yet we do not really know to what it is referring. What I do not know is whether this is the responsibility of the committee or just the fact that this regulation falls under controlled substances or the issue we just finished, the business issue for people selling fruits and vegetables. I find it sort of hanging out there in space. Can you explain whether we ever know what the particular substance is; and do we have any right to question them?

Mr. Bernier: If I take your question in the narrow sense, of course, you can ask any questions you want of your legal counsel, and we will try to answer them as best as possible.

The Joint Chairman (Senator Hervieux-Payette): What substance are we talking about?

Mr. Bernier: In this case, we are dealing with the Controlled Products Regulations dealing with hazardous chemicals and the control of hazardous chemicals in the workplace under the Hazardous Products Act.

Senator Finestone, you were talking about the Controlled Products Regulations; is that right?

Senator Finestone: Yes. You just used the words "hazardous materials." That is the next issue.

Mr. Bernier: That is also the Hazardous Materials Information Review Regulations, senator. They are related, obviously, but this is under the Hazardous Products Act. The Controlled Products Regulations deal with hazardous chemicals in the workplace, the shipping of hazardous chemicals, their use and labelling of them, as well as precautions to be taken, including reporting requirements, et cetera.

Mr. Epp: It also has to do, in my understanding, with international agreements.

Mr. Bernier: Yes.

Senator Finestone: If the regulations are not clear, how can you have a big action against them travelling into Canada from Russia or somewhere else?

Mr. Bernier: Obviously, any regulation can have flaws when it is made. That is why this committee exists.

If I take your question in a broader sense, senator, that as parliamentarians you adopt legislation and you have no idea what the actual impact will be on the citizen, then that complaint echoes every other complaint that has been made about the use of delegated legislation and regulations in our system of government. Unfortunately, they are a necessary evil.

To take one example, these regulations probably measure a good three quarters of an inch thick. In terms of time and processing legislation, Parliament is stretched to the limits. If, on top of that, Parliament were required to actually legislate in all these details, then the system would break down. In this day and age, it is no longer possible for Parliament to attend to everything, which, at the same time, should not be an excuse for parliamentarians to feel casual or comfortable about delegating their power. It is their power. The legislative function belongs to the sovereign Parliament, and Parliament should very jealously delegate the right to legislate to others, such as cabinet, the Governor in Council, a minister or an agency. However, there is a balance here, which is precisely why this committee exists. It is Parliament's answer to the reality that we will have delegated legislation whether we like it or not, even though in an ideal world we would not have it and everything would be debated and enacted by Parliament itself.

Recognizing that it is there, let us give ourselves the means, through a committee of parliamentarians, to ensure that we keep an oversight on the use of the powers we have been required to delegate, which is what we do.

Senator Finestone: It seems to me that there is a step missing somewhere, Madam Chair. This committee is privileged to have the work and the study done by good counsel, but we never go back and ask questions of the minister except through the letters that are here. I wondered whether we ever asked questions in the House or in the Senate with respect to the lack of fulfilment of obligations under legislation that was put forward in the House and vigorously argued, accepted or rejected, whatever the case may be, and then ensure that ministers are called to account so that their staff follows up on the work that you have brought to this committee's attention.

The Joint Chairman (Senator Hervieux-Payette): We have attended some conferences. I do not know if that is a consolation or not. In terms of Parliament, we are the ones who go much further than many other legislators in other countries like ours. We are much more specific. In terms of delegating, yes, we are delegating. However, I would say that it is more in terms of the modalities of implementation of the legislation. Of course, they must comply with the legislation. This committee has 25 members with, of course, a majority from the House of Commons. We are four senators on the committee. At least there is some interest in terms of senators. We can raise any questions we want in the house. We have free speech. Some ministers have appeared before the committee, when we feel it is necessary. It is here that we should address the specifics. We could ask questions in the house. However, you understand, senator, that unless we give notice to the minister, he will not be able to answer questions concerning specific regulations.

I suggest that in this case we will address the question to the person who, supposedly, has the regulation. When we reconvene in September, it will be the first thing that we will consider. It should be corrected.

Like Mr. Wappel, I read that this is supposed to lie on his desk for several months. I do not see why it should not be implemented.

Since I was an insider of the department, I know that people think that their bill will be next. That is not realistic because there are many bills competing for the same position. Of course, they are not in charge of the agenda of the House or the Senate; in other words, their bill may be prepared, on their desk and ready to go for modification, but unless it is introduced by the government it still has to be introduced for first reading. Those who are working on these matters every day are not ready to change the regulations. They say, "Well, my bill is prepared and it will be changed very shortly." We have gone through that process several times. Yes, their bill was ready for modification, which would include new regulations; however, the bill is not dealt with. Thus, we must modify the regulations of the old bill, because it is the one that is in force.

Senator Finestone: Who is responsible for drafting regulations? Does it fall under the responsibilities of the Minister of Justice or under the Privy Council Office?

The Joint Chairman (Senator Hervieux-Payette): There are many steps in the process.

Mr. Bernier: The actual drafting falls under the Minister of Justice. Of course, they have to have drafting instructions from the main line department.

Senator Finestone: Would you say the ball stops at the Minister of Justice?

Mr. Bernier: The Department of Justice lawyers are just hired guns, senator. It is up to the department. It is their minister who is responsible for the administration of the act, including the making of proper regulations.



(For text of documents, see Appendix, p. 7A:1)

The Joint Chairman (Senator Hervieux-Payette): Our next item is SOR/89-288.

Mr. Bernier: Madam Joint Chairman, the minister has promised to make a correction to the French version of section 12 of the Hazardous Materials Information Review Act when the next Miscellaneous Statute Law Amendment bill is brought in. The response is therefore deemed satisfactory.



The Joint Chairman (Senator Hervieux-Payette): The next two items are SOR/88-267 and SOR/92-432.


Mr. Bernier: The concern of the committee in this case focused on the absence of statutory authority for provisions that gave the Chief Electoral Officer a discretion to determine the amount of certain fees and costs to be paid to electoral officers and election officials. It is was initially proposed to address this concern by way of an amendment to section 198 of the act, which is the enabling power for the prescribing of fees.

As indicated in the minister's letter, this approach was not followed. Instead, the tariff was amended to remove those provisions that caused the problem. As for the similar provisions that appeared in the Northwest Territories Elections Fees Tariff, that tariff has now been revoked and the matter is resolved. In light of these developments, I think the committee can consider that action has been taken.


Mr. Bernhardt: Counsel's letter simply confirms with the department that a promised amendment is, in fact, not necessary and that the file can be closed.

Mr. Wappel: Just as a matter of interest, why was that last one included in this material?

Mr. Bernhardt: It was included for the information of members. The committee had been promised an amendment. It has now come to light that that amendment will not be made, because it should not be made, so this is just to bring it back to the committee before we close the file.

Mr. Wappel: It was before the committee? I see, it was before the committee.

Mr. Bernhardt: We had an action promised previously. It has been back on, justifiably so.

Mr. Wappel: I know mistakes are very infrequent. I do not see that they need to be brought before the committee, but since the matter was before the committee, I guess that is why you are doing it.

Mr. Bernhardt: Yes.


Mr. Bernhardt: Here the meaning of the term "protected areas" was questioned. The department has advised that, although this term is not defined in the regulations nor in the parent act, it is explained in detail in a guide prepared for those required to give notice of the intended introduction of new substances into Canada.

The committee may consider this to be a satisfactory explanation. On the other hand, members may feel that a definition of the term, even if it simply refers readers to the guide, should be added to the regulations directly.

The Joint Chairman (Senator Hervieux-Payette): Do we have any comments on this?

Mr. Wappel: Madam Chair, I would not say I was happy; I would say I am not unhappy. I suppose it would be better if it were in the definition; however, by the time we get the regulation everyone who is interested will read the guidelines anyway, hopefully, so I would say move on it.

The Joint Chairman (Senator Hervieux-Payette): We can live with it?

Mr. Wappel: Yes.

The Joint Chairman (Senator Hervieux-Payette): No rights will be infringed because of that.


(For text of documents, see Appendix, p. 7B:1)

Mr. Bernier: The authority given to the minister, Madam Chair, is to prescribe fees by order. Those are fees to be paid to the Canadian Environmental Assessment Agency for services provided by that agency.

Instead of prescribing the fees, many items in the schedule purport to incorporate by reference the fees that are set by other persons or organizations. To the extent this incorporation is an open incorporation, it can be said that the minister has failed to prescribe the fees that are payable and has effectively subdelegated his authority to do so to the persons and agencies that will amend those incorporated documents.

Except as regards some seven items in the schedule, the agency rejects the position put to them and asserts there is no subdelegation because the minister always retains the possibility to revoke or amend those rates at any time in whole or in part.

That the minister may terminate the subdelegation or alter its scope does not in any way change the fact that there is a subdelegation in the first place. When a legal instrument states that the fees payable for stationery supplies are those found in a yearly catalogue of company X, until such time as the provision is changed, it is that company that will effectively determine what the fee is, every time they issue their yearly catalogue. That is a subdelegation of the power to prescribe fees.

I note that the agency also advances a number of subsidiary arguments. For example, it is said that to re-enact a regulation each time there is a change in the costs associated with a panel review would involve an expenditure of time and resources that is completely at odds with the goal of administrative efficiency.

I believe, Madam Chair, that the agency should be asked in this case to explain in detail when the goal of administrative efficiency became part of the doctrine of vires. We are also told that proceeding as the minister has in this case is a bona fide means of prescribing the fees associated with panel review.

What exactly does this mean? Does it mean that the manner in which the agency has proceeded is reasonable? Does the agency truly think that because something is reasonable it is necessarily legal? Along the same lines, the committee is informed that no objections were raised during the consultation period and even that industry studies commended this order as a model to be followed.

All of that is wonderful news, but it has absolutely nothing whatsoever to do with the issue of the legality of the order.

If subordinate laws are going to be considered valid from the moment they are determined to be reasonable and fairly popular with those to whom they apply, this committee might as well just stop functioning. This is not what law is about. Law is about respecting the limits of the authority conferred to you by statute.

Frankly, as a lawyer, I do not care one whit whether the people like a regulation or not. What I care about is, did Parliament authorize you to make that law?

In this case, Parliament gave to a minister the power to prescribe fees by order. Instead of doing so, and for a variety of, no doubt, very legitimate reasons, the minister has failed to do that. Instead, he said the fees will be whatever appears in this document or whatever this other person decides to charge you. That is not prescribing fees. If that is inefficient, not administratively efficient, fine. Go back to Parliament and explain your problem to Parliament and ask them to change the enabling authority. That is the proper approach to take. I would suggest this be pursued with the agency.

Mr. Wappel: I thought it was a good letter. Why is this under "Reply Unsatisfactory"? The letter says, in part: "Adoption of rates set by an independent body in pursuit of its own objectives is not in any way delegating the Minister's authority to set fees."

I think that is a correct statement. Do you disagree with it?

Mr. Bernier: Yes.

Mr. Wappel: Why?

Mr. Bernier: Let us take item 5.

Mr. Wappel: No. I am not talking about the minister saying that the price of the shirt will be what the Sears catalogue says, and that is it. However, if the minister says in an order that the price of shirts for 2000 will be what is in the Sears catalogue for 2000, and he then comes along in 2001 and says that the price for shirts in 2001 will be what is in the Sears catalogue for 2001, that is not a delegation of authority.

Mr. Bernier: You are right, but there you are dealing with a fixed incorporation by reference.

Mr. Wappel: Then we could suggest a compromise that would not involve a lot of extra work by simply having the minister sign off each year on the fees that are set by whatever agency he wants to have set them, if I can put it that bluntly, without having to go through the various complaints, or perceived complaints, of inefficiency and all of that which Mr. Clarke is mentioning.

So long as the minister designates the fee, even if the minister designates the fee based on someone else's calculations of what that fee should be, you would accept that as a reasonable exercise of the minister's authority?

Mr. Bernier: If it is a true, fixed incorporation by reference.

Mr. Wappel: Right. So that sentence, by itself, at the top of page 2, is correct as it stands.

Mr. Bernier: Not as it stands, because this sentence could be read as applying either to an open incorporation by reference or a fixed incorporation.

Mr. Wappel: Then why do we not narrow it to insist that their interpretation of that sentence is the latter, fixed incorporation by reference? If we said that we can accept that sentence provided that it is by way of fixed incorporation by reference, and we expect the minister to do it on a yearly basis, and that is in fact the minister then setting the fee, then we have narrowed the issue. I can certainly understand the efficiencies that would make it a compelling argument to let the minister do this. What we are worried about, I guess, is that the minister actually addresses his mind, on a yearly basis or on whatever time period it may be, to the various fees, and says to himself, through his officials, "We think the Sears catalogue for 2001 does in fact accurately represent the fees that we should be charging in this case and therefore I will designate that the fees for shirts for 2001 is what is in the Sears catalogue." We want to ensure that the minister is averting his or her mind to that particular thing on a yearly basis, or whenever it is he or she has to do it.

Could we perhaps, rather than getting into a long debate about efficiencies and lack of efficiencies -- although I always like the way you phrase things; do not misunderstand me -- narrow it to insist that that statement is an accurate reflection, provided it is fixed? I hate to use this phrase, but for the sake of efficiency, if we could narrow it to that, I think we should pursue it.

The Joint Chairman (Senator Hervieux-Payette): With this approach, we could say at least they are complying.

Mr. Bernier: There would still be an amendment required, too, because what is now contemplated is not a fixed incorporation, it is an open incorporation. Item 5, for example, refers to the rates set by Canada Post Corporation. That is not the rate set by Canada Post Corporation in document XYZ dated such a date. That would be a fixed incorporation. It would be fine. Here, clearly, the intent is to catch, if you will, any future changes in the rates that Canada Post may make, and make those the fees payable under this act.

There are alternatives, if one wants to talk about efficiency. If in the enabling authority Parliament had given the power to the minister to make an order respecting fees to be paid, there probably would not be any problem with this order, but my hands, in the sense that I am an advisor to this committee, are tied. This is not the authority Parliament has given. Parliament has said, "We want you to prescribe the fees." Again, if that is not efficient, then maybe those agencies should go back to Parliament and ask for a change in the enabling authority.

The Joint Chairman (Senator Hervieux-Payette): For the time being, I guess we have to take a shortcut to ensure that they comply with the regulations, but maybe Mr. Lee has a better option.

Mr. Lee: I am trying to be creative here. Is it possible, either in reality or by way of a suggestion from us, that these fees, or the elements of fees that are incorporated by open reference, could be characterized not so much as fees but as disbursements? If, in fact, the element of the fee is 99 per cent or 100 per cent disbursement, much in the way that a taxi fare or postage stamp would be, would that allow the department to avoid the rubric of "fee", by focusing rather on a disbursement incurred for the purpose of the procedure, and therefore it really would not be a fee at all but a disbursement?

The Joint Chairman (Senator Hervieux-Payette): I will let other colleagues give their advice, but I can give you my personal opinion. I am quite willing to go with the compromise suggested by Mr. Wappel. I must say that, right now, many government agencies are collecting fees that are sometimes far beyond the disbursement, and in fact they are collecting taxes indirectly with these fees.

We will not enter into an accounting or an audit procedure to see what it means, what they are collecting, how much they are collecting, and what is being covered, so I guess if we can narrow that to just say they must comply with the regulations, at least it is valid. If, once a year, the minister sanctioned the new rate structure and the new fee structure, at least it would not be invalid.

I know it probably covers a lot of fees, so that is why the practicality is to go that route. Perhaps Mr. Epp has another creative suggestion.

Mr. Epp: I have a different perspective to bring to this. I am a member of the House of Commons Standing Committee on Finance, and we have been doing a study of cost recovery. The representations that we have had in the last couple of weeks from a number of witnesses have been that this is indeed a tax because what they are being charged for various areas of cost recovery from the government far exceed any reasonable estimate of the actual cost.

The Joint Chairman (Senator Hervieux-Payette): We all know that.

Mr. Epp: We need to be very careful here. In this particular case, we are doing environmental assessment reviews, and there is a fee for that. No matter what a person or an organization or a corporation is doing, there has to be an environmental assessment. In come the government inspectors and then they send a bill to the corporation saying, "This is what this environmental assessment cost you," and it is just pulled out of the sky. They just say, "Here is a number. Pay us."

The question is: Under what legal authority are they required to pay this? What we are dealing with here is whether they charge whatever they want. Is there an obligation to have some legislative authority on the fee that is charged for this? I do not know.

Mr. Bernier: Under a previous government, Parliament amended the Financial Administration Act and amended the fee-charging sections in such a way that there is presently practically unlimited authority on the part of the government to charge for everything, including for things that are a right. If I have a right to a pension, I can now be charged in order to obtain the right or to have my right recognized. That was Parliament's choice. It is not for me to comment on.

The Joint Chairman (Senator Hervieux-Payette): I think your point is valid but it is not something this committee can solve. We will let you deal with it in the Standing Committee on Finance.

Senator Finestone: I am pleased that Mr. Epp raised that because it strikes me that we are always talking about being on the competitive edge and that we are going to be transparent while being very competitive. Is there no obligation to get competitive bids? I do not understand how this works. I would like to be the company with whom they contracted. I could then just hike up my final bill, the fee you have to pay me. There is no competitive analysis. There does not seem to be any obligation to go to competitive bid.

The Joint Chairman (Senator Hervieux-Payette): Perhaps legal counsel could tell us how they select the fee schedule. Is it just a one-on-one decision or do they go to bid and the lowest bidder will get it? We do not know this.

Mr. Bryden: With all due respect, I do not think that is any of our business in this committee. I think our business in relation to this is to determine whether what is happening here is a subdelegation. If it is a subdelegation, then it is improper. If it is not, if it is a specific delegation, then they have a right to do so. We may not agree with it but they have a right to do it. Our only task is to determine whether they in fact, in this instance, are subdelegating. I think what Mr. Wappel is saying is that they have to be specific and name, say, specifically the Sears catalogue this year. That is okay. Their other option may be to say, "We do not have to do that. We will make a list on our own."

The Joint Chairman (Senator Hervieux-Payette): We will ask for that approach -- that is, if the committee agrees that Mr. Wappel's suggestion could be done -- along with your suggestion. Do you agree, Mr. Lee?

Mr. Lee: Sure.

Mr. Epp: At the end of Mr. Clarke's letter, with respect to items 4 and 7 and the last list, he says that these items "refer to rates established in standing offers." They cannot be ascertainable. He further says: The Order will be amended accordingly in the near future." What order is being referred to there? It would be an Order in Council, obviously. We are in the process of formulating our recommendations in this regard. Has anything happened there? If so, what?

Mr. Bernier: No, not yet. The order referred to is this instrument. The charges that are prescribed, for example, for publication printing are "the rates established in standing offers with the Department of Public Works and Government Services." You could be charged anything. I presume that the printers have standing offers with the government to print for so much a page. That is recorded with Public Works. Then the person on whom the fee is charged was told, "The fee you will pay is whatever rate happens at the moment to be that listed in those standing offers."

Mr. Epp: It does not refer directly to it, but it could be comparable to it. For example, to receive a copy of the year 2000 budget, you must send $80, following which that publication will be sent to you. Presumably, that $80 reflects somewhere near the actual cost of producing those documents. So that would be comparable; am I right?

Mr. Bernier: On those items, they are accepting it because it is not even a publication. The rate will be determined by whatever bid has been put in by private printers. They are acknowledging, for those seven items, that that amounts to a subdelegation, and that they will have to come up with something that has more certainty to it.

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

Hon. Members: Agreed.


(For text of documents, see Appendix, p. 7C:1)

The Joint Chairman (Senator Hervieux-Payette): The next item is SOR/99-16.

Mr. Bernhardt: Four questions were raised in connection with this instrument. I would suggest that the department's explanation concerning the latter two, namely, points 3 and 4, can be taken to be satisfactory; while points 1 and 2 are unsatisfactory.

Point 1 deals with section 41.2 of the regulations. While the various provisions of the act mentioned in this section require forms to be sent to the director within a prescribed time, section 41.2 actually deals with when these forms will be deemed to be received. Of course, when something is sent and when something is received are two quite different things. The department's reply indicates that the purpose in providing, in section 41.2, for the date on which certain forms are deemed to be received by the director is to establish the date on which the director can comply with sections 262.2 and .3 of the act. If that is the case, then it is these provisions of the act that should be referred to in section 41.2. The provision of the act now referred to in that section requires forms to be sent to the director. In fact, sections 262.2 and 262.3 impose obligations to the director once those forms have been received. It is simply a matter of changing the appropriate cross-references to the pertinent provisions of the act.

Turning to point 2, at issue here are several provisions that provide for the filing of documents other than in the form prescribed by the regulations, despite the fact that the act requires these document to be filed in prescribed form. Although the department states that the act is to be amended to provide for the fixing of forms by the director, apparently on an administrative basis, the fact remains that at present the act requires that certain documents be prescribed by the regulations. To the extent that sections 4.2, 4.3 and 4.4 of the regulation permit filing of documents other than in the prescribed form, they are ultra vires.

The department could be advised that unless the introduction of the amendments to the act is imminent the possibility of filing documents other than in the prescribed form should be removed from the regulations. At the same time, it might be helpful to advise the department that simply amending the act to provide for the filing of documents in the form fixed by the director would still not allow the filing of documents other than in the form fixed by the directors. The same problem will arise in the future. One solution would be to amend the act to provide that documents can be filed in a form acceptable to the director. That would be the end of that. Perhaps that could be put to the department as well. I would then suggest a follow-up letter on those two points.

The Joint Chairman (Senator Hervieux-Payette): The bill is before the Senate and should proceed this year. We are modifying that law and it is in the process. We should certainly have that completed this year.

Is it agreed?

Hon. Members: Agreed.


The Joint Chairman (Senator Hervieux-Payette): Next is SOR/85-588.

Mr. Bernhardt: The issues to which this file gives rise as well as its history are summarized in counsel's letter of January 14, 1999. The committee's concerns go back 15 years. The department has, several times, changed the apparent course proposed to address these concerns.

Most recently, the committee has been told that an amendment to the regulations will be made to delete the words "in the opinion of the Minister" from section 9(1) of the regulations. Apparently, this was to proceed without further delay, although it remains outstanding more than a year later. The department should be asked exactly where this amendment is at.

As for the other concerns, they were to be dealt with as part of a comprehensive rewrite of the Narcotic Control Regulations and the relevant portions of the Food and Drug Regulations. Clearly, this is a significant and substantial project and will take some considerable time. I suppose the question for members this morning then is whether they wish to consider continuing to exercise their considerable patience or, perhaps, write to the minister seeking his cooperation in ensuring that all these amendments are made without further delay.

Senator Finestone: On a point of information, is this the same Mr. Weiner we were talking about earlier?

The Joint Chairman (Senator Hervieux-Payette): Yes.

Senator Finestone: Since 1996, he is been signing this not as full director?

The Joint Chairman (Senator Hervieux-Payette): Yes. When you say "progress", it means that two things have been dealt with; two others have not been dealt with. We will go back and say, "Could you complete the work?" That is it.

Senator Finestone: Could you write a letter and say, "Insofar as we have been reviewing your productivity, would you please finish both of them"?

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

Hon. Members: Agreed.


(For text of documents, see Appendix, p. 7D:1)

The Joint Chairman (Senator Hervieux-Payette): Next is SOR/97-10.

Mr. Bernier: Corrective action is promised on the matters raised in points 1 to 4 and 6 of Ms Jodoin Rasmussen's letter of September 19. Section 9 of these regulations provides that, where the owner of a storage system fails to register the system as required by the regulations, the federal department that owns or controls the land on which the storage system is situated is required to make any efforts it considers warranted to cause the owner to register the system. If registration is not achieved within 60 days as a result of those efforts, that department must inform the Minister of the Environment of the existence of the unregistered storage system. Ms Jodoin Rasmussen queried what efforts the department would make, other than informing the owner of his obligation to register. The answer that was given is vague, with talk of the compliance continuum, and so on.

Counsel continues to have a problem with a provision that purports to allow a government department to take any enforcement action it considers warranted. It is the subjective aspect of this that is bothersome. Compliance measures are lawful measures that are provided for either in the act or the regulations.

The regulations should identify those precisely and not purport to allow government officials the discretion that is imported in this provision by the subjective test. I expect that there is a way to rephrase this section that would remove this concern while still meeting the needs of the department. I would suggest pursuing that point with the department.

The Joint Chairman (Senator Hervieux-Payette): Shall we proceed to the next item.




(For text of document, see Appendix, p. 7E:1)

Mr. Bernhardt: These files will be familiar to some members, no doubt. The committee had long-standing concerns relating to the clarity of certain requirements in the Tobacco Products Control Regulations pertaining to display of health messages on tobacco packages.

The immediate issue was resolved when the enabling legislation was struck down by the Supreme Court. The committee did, however, seek assurances that any new tobacco labelling regulations would not simply give rise to the same problems. The department's last letter was somewhat nebulous, which gave rise to the question mark after "Reply Satisfactory."

I can advise members that the proposed tobacco products information regulations to be made under the new Tobacco Act were tabled in the House of Commons on May 12. A preliminary review indicates they appear to avoid the defects noted in connection with their predecessors. The only caveat is that this would be subject to the department providing a satisfactory explanation on one or two questions concerning the practical application of the regulations, exactly how certain measurements are made in practice. Aside from that, the new regulations would seem to avoid the problems.

The Joint Chairman (Senator Hervieux-Payette): Let us move on to the next one.


(For text of document, see Appendix, p.)

Mr. Bernhardt: Promises of amendments or satisfactory explanations have been provided on all points, except for points 1 and 2. The issue is identical in those two points.

Section 42(a) of the act authorizes the Governor in Council to include in the Canadian Cultural Property Export Control List "objects of any value that are of archeological, prehistorical, historical, artistic or scientific interest...that have been recovered from the soil." All other objects must have a value of more than $3,000 in order to be included on the list.

The provisions in question list mineral and fossil specimens recovered from the soil with a value of more than $2,000. The wrinkle is that the list goes on to include a definition of "recovered from the soil," defining that to mean an object or specimen that has originated in or has been excavated from bedrock or sediment, has been retrieved as a find from the surface of bedrock or sediments, or has been recovered from snow or ice.

It was suggested to the department that "retrieved from bedrock or sediment" or recovered "from snow or ice" would not normally be said to be recovered from the soil, whereas the French states found "in the soil." Therefore, the definition in the list represents an unauthorized attempt to amend the act through the regulations.

The department disputes this conclusion. Simply stated, their position is that the definition clarifies a possible ambiguity in the act. It should go without saying that it is not for regulation-makers to use their powers to patch up what they perceive to be defects in the parent statute that Parliament passed.

They have, however, proposed an amendment to the French version of the act and the list, although of itself, the proposed amendment would not resolve the matter. I suppose the question then for members is whether the committee wants to defer pursuing the issue of the legality of the regulations pending an attempt to agree on a proper acceptable amendment to the act that would then clear up the regulations.

For example, it could be suggested, since they are agreeing to amend the act anyway, that they simply ask Parliament to take that definition from the regulation and insert it in the act.

Mr. Wappel: Sometimes we consider things that are so esoteric as to be almost irrelevant. This is about as relevant as yesterday's news -- if you happened to watch yesterday's news where they recovered meteorite fragments from ice on top of a lake. There is no way on this earth that one could say that recovering meteor fragments from the middle of a lake can be recovering them from the soil, because they were on top of water, so there is no soil anywhere. I would think we would certainly want the power to control the export of such valuable scientific information.

Clearly, the act should be amended to cover this loophole that was not thought of at the time. I would say that we try to work towards them amending the act, rather than them amending the regulation. If they amend the regulation, it will not include snow and ice, and we want it to include snow and ice for the very reason of what happened yesterday. I think we should proceed along the line that you suggested, that we try to get them to amend the act or ask Parliament to amend the act.

Mr. Lee: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Part of the problem is that you do not have "Académie Anglaise" like we have the Académie Française, to define what soil is all about. In French, if we say "le sol," it would include the water and any other thing on the surface of the earth.


Mr. Bernier: In the French version of the act, the legislation restricts this authority to objects found "dans le sol".


In the French version, it is in the soil, recovered in the soil.

The Joint Chairman (Senator Hervieux-Payette): This is somewhat more semantic than normal, I would say. I agree that this could be of immense value and that we should be more specific, because these are national treasures. They could be artefacts that could date from over a million years ago.

Mr. Lee: This is more of a point of order, and I hope colleagues will indulge me. I must be in the House in about two or three minutes.

With us today is our colleague Senator Grimard, and, as the calendar evolves, this could be his last meeting with us. I wanted to make a comment. If I could do that now, it would allow me to complete this before I must go to the House.

Senator Grimard has been with us for a decade. I have had the privilege of working with him, as have all colleagues. He is truly a professional. He is a wonderful person and he is politically skilled. He has contributed all these examples and his own strength of character to the committee and to Parliament. He is perhaps one of the best examples of the skills and character that are brought to Parliament through the Senate.

I want to say that it has been a privilege to work with him. I know colleagues will all agree with me. I recall the finesse with which he manoeuvred the Kemano completion project file through the committee many years ago. It was a significant file for us.

I would like to move a motion with respect to his service, and the motion would be "That the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations express its gratitude to Senator Normand Grimard for his many years of service to the committee and his contribution to the promotion of parliamentary scrutiny in Canada," and that that fact be suitably reflected by the clerk in a document or scroll which we would extend to Senator Grimard.

I so move.

Mr. Wappel: I second the motion.

Mr. Epp: With all of those great credentials, he could probably win an election.

Senator Grimard: It depends with which party.

Thank you very much, Mr. Lee.

That is true. I was summoned to the Senate in 1990. Several months after my arrival here, I was appointed as joint chairman with Derek and I very much enjoyed working those three years. I was doing such a good job -- you do not believe that -- that in 1993, when the Liberal Party won the general election, Senator Hébert, who was the whip of the Liberal Party, asked me to be joint chairman of the committee. I said that I would accept, but you must know that it is up to the Liberal Party to choose the joint chairman. In fact, they chose Senator Lewis.

Now we have the pleasure to work with Senator Hervieux-Payette.

I spent 10 marvellous years here. I do not think it is the most glamorous committee. It is almost a punishment, sometimes, to be here. Perhaps, fellow members, we should have a special decoration for working in this committee.

Thank you again. I would like to say a special thank you to Mr. Bernier and the other counsellors, Mr. Bernhardt, and one who comes from my home town, Rouyn-Noranda, Jacques Rousseau. I spent with you, I must admit, 10 years. I am sorry to be leaving but, on the other hand, as I like golf, that will give me a chance to play more games and practise my mistakes.

Hon. Members: Hear, hear!

Senator Grimard: I forgot one name, Tom Wappel. Mr. Wappel is part of the furniture of this committee.


The Joint Chairman (Senator Hervieux-Payette): I had the opportunity to travel to Australia with Senator Grimard. His contribution to the committee has always been much appreciated. I will try to be equal to the task. After a while, every person who serves on this committee becomes "masochistic" or else has the impression that the work of this committee is truly important to the democratic process and that parliamentarians need to have the right of review over government operations.

I want to thank committee members, an you in particular, for doing your civic duty. We wish you a pleasant retirement and we will always welcome your sound advice. If we do make some mistakes, we will be happy to accept your counsel.

Senator Grimard: You can wish me a hole-in-one in golf!

The Joint Chairman (Senator Hervieux-Payette): We will now process to vote on Mr. Lee's motion.


Does everyone agree with the motion of Mr. Lee?

Hon. Members: Agree.

The Joint Chairman (Senator Hervieux-Payette): We will proceed with decorations for the members of this committee at the next meeting. Maybe it should be a good putter with an inscription.

Regarding SOR/94-639, on this question we said that we would recommend an amendment to the act.

Mr. Bernier: I can deal with all the others in a block. With regard to the instruments listed on under the heading of "Action Promised," the committee has a total of some 63 amendments that are promised. As for the instruments under the heading of "Action Taken," one statutory instrument required to be registered was finally registered, some five years after it was made. The repeal of the retroactive remuneration regulations resolves another problem. There are also some 10 amendments that have been made at the request of the Joint Committee.

The Joint Chairman (Senator Hervieux-Payette): Thank you. The other ones are without comment.

Senator Finestone: You say we have one more meeting. I do not know how you figure that out. If we have three weeks, why do we have only one more meeting?

Are we planning to table a report or make a report? We have had some good successes against lots of aggravation here. Is there a way we could make a written report to the House and to the Senate indicating our thanks to our legal staff and also saying that we would be most pleased if ministers would be a little more careful and conscientious in their assurance that the regulations that put their bills into action are properly completed? We might list the things that we have gained, but the number of years it took to get there. You see 1990 and you realize it is 2000 when you finally get an answer. That would have an impact on people. It certainly has had an impact on me.

The Joint Chairman (Senator Hervieux-Payette): Mr. Wappel, was a report, besides the disallowance procedure, done in the House about this committee work in the past?

Mr. Wappel: Mr. Bernier will no doubt correct me but I do not think we have ever set out a report to the House detailing our successes. That is not a bad idea. It will be a lot of work because there are a lot of successes, but, as Senator Grimard has said, this is not a glamorous committee. Not many people know about the committee and how important it is. Perhaps our profile would not be hurt by a wrap-up report -- when I say wrap-up, I mean a wrap-up for the end of the year -- to both Houses as to what was accomplished by the committee over the period of time. We can add something to the effect that we appreciate the cooperation of the ministers and put it into flowery diplomatic language in the hope that they will cooperate even more vigorously. I do not think there is any reason why we should not blow our own horn, because absolutely no one else will.

The Joint Chairman (Senator Hervieux-Payette): That is an excellent suggestion. I know it will represent some work. When we talk about reports, I do not think my colleague was meaning that we should comment on every success and every regulation, but since we have had a major victory on the RCMP regulations, we can highlight a few accomplishments from this committee that really were significant. I will say there are more than a few. The rest could be just an accounting procedure, how many things were changed and so on.

I would say a short report, not 50 pages naming every regulation that went through the committee, but a picture of what was processed during a session, because we should have some kind of guideline in terms of timing.

Senator Finestone: The reason I thought about this, and Mr. Wappel said it very well, is to highlight the role of this committee. It should be seen as an honour, rather than as a punishment, to sit on this committee. Further to that, it is to ensure that there is respect for the regulations. I do not disagree with a shortened version, except that there has to be an indication that there are regulations that have been waiting for change since 1990 and 1994, and I would indicate in the second paragraph the departments that have been most remiss.

I am sorry, that is the only way you will get ministers to stop and think. It is the only way that standing committees should get a report of this nature. I would send it not only to the House, but also to the relevant standing committees. I do think that if this is an important aspect of the life of the Parliament of Canada, and its assurance that what we say we get to do, then it has to go back to where it belongs. Relevant committees are supposed to have charge. A standing committee should not be a eunuch, as I think I heard somewhere or other. It should be an action-oriented standing committee. They, as well as we, should be looking into these things.

The Joint Chairman (Senator Hervieux-Payette): Perhaps we could consider having some kind of a framework for what the report should be all about and then consult you if we are going to have a meeting before then, so that we know what will be in the report. We want to say that we would like to expand the mandate of this committee and that we need some changes in regulation. We have never dealt with regulations from our Crown corporations. Of course, this would be a good place to say that as parliamentarians we should oversee every regulation for which this government, after enacting legislation, is responsible. Since some are escaping, it would be a good way of introducing the possibility of expanding the mandate of this committee and enhancing the importance of this committee. If you agree, we will just discuss this.

Senator Bryden: How long has this committee has been in existence?

Mr. Bernier: Twenty-five years.

Senator Bryden: Will this be the first time it has made a report?

The Joint Chairman (Senator Hervieux-Payette): Yes.

Mr. Wappel: Of this nature.

Senator Bryden: We should probably take a little bit of consideration as to what impact that will make on whatever the limited time of the staff is. I would like to have some views of the people who will actually produce the report. Also, I think it would be useful to spend some time deciding what the format will be and how it will come out. It has been over 20 years without a report, and we are still here, so presumably it would be worthwhile if we took a little time to get the initial one done in a manner that will not be onerous but will be informative and effective.

Mr. Bernier: Perhaps this matter should be referred to the steering committee, Madam Chair, and discussed there. Then something could be brought back to the full committee.

The Joint Chairman (Senator Hervieux-Payette): I was not thinking we should do it now but see what could be done and what should be in it. Would it be appropriate to say that each session we just report on what was dealt with and, of course, on what was done and what was not done? I think it is as important to highlight the fact that in some areas they are dragging their feet. Of course, in light of the fact that we are looking at amending the mandate, the timing is not too bad either.

Mr. Wappel: I totally agree with Senator Bryden. The summer is a good time during which counsel could think about that. Our steering committee could meet and set some guidelines. It is very important, in view of the fact that it has been a quarter century, that we do it right, because once we do it, we will establish a precedent, and then when we are long gone from here, this committee hopefully will still be doing it. We want to set that template correctly, so that it becomes a matter of second nature for this committee at the end of each session to report on its successes, its failures and so on. Congratulations to Senator Finestone for coming up with it and to Senator Bryden for focusing the need for a proper thought process.

The Joint Chairman (Senator Hervieux-Payette): I have another item that is not on the agenda. We sent a letter to Minister Collenette about the air transportation regulations, the railway interswitching regulations and Canada Ports Corporation, asking to organize a meeting. We sent a reminder, because we started our discussion in February and March of this year, but we have not had any success in arranging the meeting. We were talking about today's meeting or the next meeting, because we said that we should meet before the end of the session. I am just reporting that we have not had success there.

Mr. Wappel: Madam Chair, I was not at the last meeting, but I was at the meeting at which we discussed this. My recollection of that meeting is that we ordered him to appear, I believe, or if we did not order him to appear, we summonsed him to appear, or that is what we were supposed to do. I talked to the clerk at the beginning of the meeting, and she says we do not have the power to do that with respect to a minister. I made a note to myself to request a paper from the Library of Parliament on that issue, and I will do that as soon as I get back to my office, so that I can report to you at the next meeting as to what the powers of this committee are with respect to a minister, as distinct from, say, a deputy minister or, if I can put it this way, and not sarcastically, an ordinary Canadian.

Mr. Bernier: The problem arises not so much from the fact that the minister is a minister, but from the fact that the minister is a member of the same House you belong to, and a committee of the House, which is a mere creature of the House, does not have the power to order the appearance of a member of the House. Only the House can order its own members.

Mr. Wappel: This is also a Senate committee.

Mr. Bernier: That is an interesting twist.

Mr. Epp: Which reduces its power because of the division of powers between the Houses.

Mr. Wappel: I have set various scenarios in my question and I will ask the Library of Parliament to give me some answers.

Senator Bryden: It is normally the case that the Senate cannot order a member of the House of Commons to appear before one of our committees. We can invite them, but not order them. The same rule applies in reverse.

Mr. Wappel: If that is the rule, then we will have to go back to the House of Commons to ask the House to order it.

Mr. Epp: If he does not show up, the official opposition will raise it in such a way that he will come.

The Joint Chairman (Senator Hervieux-Payette): Thank you, colleagues.

The committee adjourned.