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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations
Issue 18 - Evidence
OTTAWA, Thursday, June 6, 2002
The Standing Joint committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.
Mr. Gurmant Grewal (Joint Chairman) in the Chair.
The Joint Chairman: Before we begin, I should like to announce, for information purposes, that my private member's bill is in the House of Commons. It is Bill C-202, to amend the Statutory Instruments Act with respect to a disallowance procedure for statutory instruments. The objective of the bill is to put the disallowance procedure on a statutory footing. It is a votable bill.
Any comments, amendments or suggestions are most welcome. The bill will be in the House on Tuesday.
SOR/95-447 — DETERMINATION OF COUNTRY OF ORIGIN FOR THE PURPOSES OF MARKING GOODS (NAFTA COUNTRIES) REGULATIONS, AMENDMENT
Mr. François-R. Bernier, General Counsel to the committee: We are still waiting, in this case, for a reply from the Department of Finance to a letter sent a little over two years ago, on March 2, 2000.
Last December, the Minister of Finance stated that a reply would be provided shortly. I suggest that the chairmen write to the new minister to reiterate the request for a prompt reply.
Mr. Wappel: Was there any telephone follow-up to these letters?
Mr. Bernier: No.
Mr. Wappel: Would it not be advisable, after two years, or after a year, let us say, to pick up the phone to find out why the person has not responded?
Mr. Bernier: I would be spending a fair bit of time on the phone.
Mr. Wappel: Perhaps your secretary could do it. I am not making critical remarks. I am suggesting a follow-up telephone call, as opposed to bringing the letter back to us two years later. I would suggest that, after correspondence has not been answered for a year, someone in your office might be able to call and leave a message that the relevant matter will be brought to the attention of the Standing Joint committee of the Senate and the House of Commons for the Scrutiny of Regulations within the next month if a reply is not received.
Mr. Bernier: Follow-up letters would be sent just about every three to four months on any of those. We do not necessarily reproduce that correspondence because it is repetitive and does not add anything except to the printing volume.
In this case, the only reason it is brought back as opposed to being chased up the regular way in writing is that the chair had written to the minister and a reply was received from the minister promising a reply shortly. That has not occurred.
It is being brought back because it is a ministerial commitment that is not being met.
Mr. Wappel: Then I should like to recommend that, rather than reproduce follow-up letters, a short memo be sent from counsel advising that seven follow-up letters were sent and no answer was received. It does add something to the file because, for one, it irritates me, and if I see that seven follow-up letters have been sent to which there has been no answer my response is not going to be to send another letter but to get someone in here. That is why I would be asking for this. That is all; I do not want to make a federal case out of it.
The Joint Chairman: The minister promised that very early in 2002 action would be taken, so I think it is time to ask the minister why action has not been taken. A letter would be appropriate.
There being no further comments, let us move on to the next item.
SOR/99-326 — REGULATIONS AMENDING THE CHILDREN'S SPECIAL ALLOWANCE REGULATIONS
Mr. Bernier: The committee's dealings with this file are outlined in the first two numbered paragraphs of the note before the committee. Paragraph number 3, however, notes that there now appears to be a more serious problem with section 6.1 of these regulations in that this section could conflict with subsection 4 (2) of the Children's Special Allowances Act. Section 4 (2) mandates that payment of special allowances begin on the month or in the month following the month of receipt of an application. This refers, we believe, to the month in which an application is actually received, so payments must begin the following month.
The reference in the statute would not include reference to the month in which an application is deemed to be received. Insofar as section 6.1 could result in situations in which an application is treated as being received in a month other than the month during which it was actually received, that section can then be considered to conflict with subsection 4(2) of the act. On this basis, counsel suggested the Canada Customs and Revenue Agency be asked to provide its view on the validity of section 6.1.
Mr. White: Counsel has raised a very serious point. I should like to suggest, if the committee agrees, that the point be made in the letter to the CCRA that this would be a high priority item for this committee and that we urge them to put it at the top of their urgency list for attention.
The Joint Chairman: Are there any comments?
Mr. White: I can see this turning into a bit of a problem for the government as a whole, if the public began to realize that payments they were receiving may not be in sync with the days that applications are received. I believe it should be treated as a priority item, and that should be made clear to CCRA.
The Joint Chairman: A letter will be in order. We will move to the next item.
SOR/2001-38 — REGULATIONS AMENDING THE BOATING RESTRICTION REGULATIONS
(For text of documents, see appendix, p. 18A:1 )
Mr. Bernier: The committee in this case had queried the validity of regulations made for the purpose of protecting the quality of drinking water taken from bodies of water in the provinces of Quebec and Saskatchewan.
As noted, the committee has taken the view that the protection of the quality of drinking water is not a purpose of Part IX of the Canada Shipping Act and that regulations made under that part are to be made for the purpose of ensuring safety of navigation.
On that reading of the statute, a regulation made under Part IX for the purpose of protecting the safety of the drinking water supply serves a collateral purpose and is ultra vires the act.
In its reply, the department has referred the committee to Part XV of the act to show that protection of the environment is one of the purposes of the Canada Shipping Act. The only problem, of course, is that the regulations we are now discussing were made under Part IX and not under Part XV of the act.
However, the department also refers the committee to two decisions of the British Columbia Court of Appeal that are discussed in paragraphs 3 and 4 of the note that is before the committee. Although these are constitutional cases, it is likely that the same reasoning would be adopted, we feel, in the interpretation of the scope of Part IX of the act. The result would be that preventing damage to the quality of drinking water as a result of navigation would be seen to form part and parcel of the power to prohibit or limit navigation in the interests of public safety, or promoting or ensuring the effective regulation of waters in the public interest. In other words, we believe that it is likely that a court that was asked to decide the issue raised by the joint committee would adopt a reasoning that parallels the reasoning adopted in those two constitutional cases and would find that the regulations have not been made for a collateral purpose. After giving this a great deal of thought, counsel would recommend that the committee accept the department's reply on this question.
The Joint Chairman: Are there any comments? The matter is resolved.
SOR/89-330 — LAUZON DRY DOCKS REGULATIONS
Mr. Jacques Rousseau (Counsel): In its letter, the department advises us that the regulation in question will be repealed, a move that, clearly, will resolve the problem. All counsel needs to do is to monitor the situation and to ensure that the regulation is in fact revoked.
The Joint Chairman: Are there any comments? That is fine.
SOR/98-28 — REGULATIONS AMENDING CERTAIN INSTRUMENTS MADE UNDER THE CUSTOMS TARIFF (TARIFF SIMPLIFICATION)
(For text of documents, see appendix, p. 18B:1)
Mr. Rousseau: As indicated in the note drawn up for the committee, the problems identified have been resolved and this matter can therefore be considered closed.
The Joint Chairman: Are there any comments? We will move to items on firearms.
SOR/98-468 — REGULATIONS AMENDING THE PUBLIC AGENTS FIREARMS REGULATIONS
SOR/98-469 — REGULATIONS AMENDING THE AUTHORIZATION TO EXPORT OR IMPORT FIREARMS REGULATIONS (BUSINESSES)
SOR/98-470 — REGULATIONS AMENDING THE GUN SHOWS REGULATIONS
SOR/99-109 — REGULATIONS AMENDING THE PUBLIC AGENTS FIREARMS REGULATIONS
SOR/99-110 — REGULATIONS AMENDING THE AUTHORIZATION TO EXPORT OR IMPORT FIREARMS REGULATIONS (BUSINESSES)
SOR/99-111 — REGULATIONS AMENDING THE GUN SHOWS REGULATIONS
SOR/99-453 — REGULATIONS AMENDING THE GUN SHOWS REGULATIONS
SOR/2000-224 — REGULATIONS AMENDING THE FIREARMS FEES REGULATIONS
SOR/2000-225 — REGULATIONS AMENDING THE FIREARMS LICENCES REGULATIONS
SOR/2000-259 — REGULATIONS AMENDING THE FIREARMS FEES REGULATIONS
SOR/2001-9 — REGULATIONS AMENDING THE PUBLIC AGENTS FIREARMS REGULATIONS
SOR/2001-10 — REGULATIONS AMENDING THE IMPORTATION AND EXPORTATION OF FIREARMS REGULATIONS (INDIVIDUALS)
SOR/2001-11 — REGULATIONS AMENDING THE AUTHORIZATION TO EXPORT OR IMPORT FIREARMS REGULATIONS (BUSINESSES)
SOR/2001-12 — REGULATIONS AMENDING THE FIREARMS FEES REGULATIONS
SOR/2001-232 — REGULATIONS AMENDING THE FIREARMS FEES REGULATIONS
(For text of documents, see appendix p. 18C:1)
Mr. Rousseau: All of these items pertain to documents tabled by the Minister of Justice to Parliament. As explained in the note drafted for the committee, the tabling had been delayed owing to a question of privilege about this matter which was raised in the House of Commons by the Joint Chair of the committee. This led to the Speaker of the House ordering the hasty tabling of the statements required by law. Statements issued by the Joint Chair of the committee as well as by the Speaker of the House are reproduced in the note for information purposes.
The Joint Chairman: Are there any comments?
Mr. Rousseau: Than I think these files can be considered closed.
The Joint Chairman: Do we have examples of issues on any other regulations where the minister has failed to take action?
Mr. Bernier: Yes, this has occurred. Similar questions of privilege following non-tabling of documents have been raised, by Mr. Lee in particular, on two occasions. I recall that one occasion was in relation to the customs tariff.
The Joint Chairman: Currently, there is nothing that we need to remind the government ministers of. We will review the next item.
SOR/2000-386 — TECHNICAL AMENDMENTS ORDER (CUSTOMS TARIFF) 2000-3
SOR/98-541 — TECHNICAL AMENDMENTS ORDER (CUSTOMS TARIFF) 1998-8
(For text of documents, see appendix p. 18D:1)
Mr. Rousseau: As explained in the note, a number of problems were corrected when the order in question was adopted. Correspondence exchanged focuses on information in the Canada Gazette about the legislative background of amended regulations. As a result of administrative changes, the inclusion of footnotes in orders amending the Customs Tariff Schedule is no longer required, for reasons noted in Mr. Desjardins' letter. All we can do is hope this practice does not become more widespread.
The Joint Chairman: Are there any comments? Is this file almost closed?
Mr. Rousseau: Yes, it is almost closed.
The Joint Chairman: There are no further comments.
We will move on to the next item.
SOR/96-310 — ``SVANEN'' REMISSION ORDER, 1996
(For text of documents, see appendix p. 18E:1)
Mr. Rousseau: In the case of the above-mentioned order, a drafting problem was identified and brought to the department's attention. No correction was requested. The point was simply to draw their attention to this minor drafting problem.
Mr. Wappel: It has been one year since the letter was written, it would appear, and no answer has been received.
Mr. Rousseau: No answer has been asked for.
Mr. Bernier: This was just a ``drawing to the attention.''
Mr. Rousseau: We draw the point to attention so that, with future regulations, they will not repeat the mistake.
Mr. Wappel: What is the likelihood that they will remember this letter?
Mr. Bernier: I cannot say.
Mr. Wappel: Perhaps when are you writing to her on the previous file you could just add a paragraph about this file and ask that they at least acknowledge receipt of the letter. We would then know that the letter was received and, one hopes, that they were taking it into account. It is the same person, so it is a matter of another sentence or two.
The Joint Chairman: Are there any further comments? We will move to the next item.
SOR/95-223 — CROWN CORPORATIONS CORPORATE PLAN, BUDGET AND SUMMARIES REGULATIONS
(For text of documents, see appendix, p. 18F:1)
Mr. Bernier: The new regulations, Mr. Chairman, not only respond to an earlier comment made by the Standing Joint committee in respect of SOR/87-37 but also give rise to a new discrepancy between the provisions of the Financial Administration Act, FAA, and the regulations. The Financial Administration Act provides for the approval by the Governor in Council of amendments to a corporate plan or budget. The regulations, however, do not reflect that; they refer to the approval of plans or budgets as amended. There is an obvious distinction between these two types of approval, and I suggested that the regulations should reflect strictly what the statute requires.
The reply made by Mr. Heintzman on behalf of the Treasury Board is interesting. According to him, the expressions ``amended plan or budget'' or ``amendments to a plan or budget'' are used interchangeably by government officials and therefore must have the same meaning. He adds that the FAA does not define these terms.
With due respect to Mr. Heintzman, I do not think that bureaucratic usage has ever been considered a reliable guide to the interpretation of a statute. Frankly, the way in which officials use these terms internally is entirely irrelevant. Legally, it is clear that there is a difference between a power to approve amendments and a power to approve a plan as amended. Whether Mr. Heintzman agrees, Parliament has clearly distinguished in the statute between the two, and the subordinate laws made under that statute should reflect the distinction made by Parliament.
In this case, I would suggest that the chair of the joint committee write to the President of the Treasury Board, if the committee wishes to pursue this matter.
The Joint Chairman: Thank you.
Mr. Wappel: Briefly, I agree, but could we use the wording you just gave us, including what you said about the bureaucrats' usage?
Mr. Bernier: Yes.
The Joint Chairman: Are there any other comments?
We will move to the next item.
SOR/97-488 — TARIFF AMENDING THE SHIPS REGISTRY FEES TARIFF
(For text of documents, see appendix p. 18G:1)
Mr. Bernier: At the outset, Mr. Chairman, I should emphasize that section 48 of the Canada Shipping Act, as enacted by Statutes of Canada, 1998, chapter 16, does provide authority for the fees being questioned here. However, those fees were prescribed under the authority of the previous section 80 of the Canada Shipping Act, a provision that is significantly different from section 48.
As pointed out in the correspondence, the validity of any regulation, of course, is to be assessed by reference to the enabling statute as it existed at the time the regulation was made. Thus, it is to section 80 that we must look to decide whether these provisions are legal.
Section 80 of the Canada Shipping Act, which is the enabling authority, provides that the Governor in Council can prescribe a tariff of fees for the registration of Canadian ships. Counsel pointed out that insofar as the regulations require the payment of fees, even when no registration takes place, they appear to be ultra vires section 80. The department, on the other hand, insists that fees for registration may be required even in the absence of registration. They consider registration to be a process and fees can legally be charged in relation to that process. They say:
With respect, the department cannot accept your interpretation, which would prevent Transport Canada from recovering the costs associated with the review of an application for registration of a ship where the review does not result in the registration of the ship.
I would compare this to a situation in which a real estate agent is entitled to a commission on the sale of a house, never sells the house, but nevertheless insists on being paid the commission on the ground that the sale involves a process and that some parts of the process were completed.
There is no disagreement that the registration of ships involves a process. There is an application, an examination, and so on. However, for a fee to be lawfully charged under section 80 of the Canada Shipping Act that process must culminate in the registration of a ship. It is at that point that you can speak of a fee being charged for the registration of a ship. This is not a question of strict versus liberal interpretation. It is simply a question of respecting the ordinary grammatical meaning of words used in a statute.
We suggest the committee pursue this with the department. At the same time, emphasis should perhaps be put on the fact that section 48 does allow them to enact these kinds of fees. What we are talking about here is essentially the department re-enacting the fees it has put in place.
The Joint Chairman: That was a good analogy, by the way.
Mr. Wappel: This file is another example of what we have seen most recently in the fisheries file, where the department is confusing legality and policy.
On page 3 of Transport Canada's last letter, December 20, 2001, Mr. McCullough writes, and I quote:
The Department is of the view that your interpretation of section 80 of the former CSA and, in particular, the literal meaning that you assign to the expression ``fees for the registration of ships'' is too narrow in scope to achieve the goal set out in the CSA with respect to the charging of fees.
My note to myself is this: That may be so, but so what? If they had said ``is too narrow in scope according to the law, see R. v. Smith,'' or something similar, that would be a different answer. He confirms it with the sentence at the bottom of the page:
It is also our belief that a strict interpretation defeats the purpose of the government's policy on the recovery of costs associated with the provision of services by departments.
If they draft the regulation correctly, they can recover whatever costs they want. To me, this is a clear misapplication in trying to effect policy by reinventing legal principles.
You should suggest to them that that is what they are really trying to do. It is not a torturous process of going to Black's Law Dictionary or checking Oxford. It is not an issue of whether this will affect the policy of the department; the issue is a legal issue, and they had better answer it from a legal perspective, not from a policy perspective. We saw exactly the same thing in the fisheries file.
Mr. Bernier: This is amusing, Mr. Wappel, because the note I wrote in the margin to the very first sentence you pointed out is this: Please do not confuse your desires with those of Parliament.
Mr. Wappel: Exactly.
Mr. White: At the beginning of this meeting, someone said that as there is nothing on fish here not many people are present. However, I saw Mr. Cummins arrive, and, in relation to what Mr. Wappel just said, he handed me a news report from CKNW in Vancouver where the fisheries people there are still refusing to accept the legality of the situation and are saying that the policy will continue. This is a good example, Mr. Wappel.
The Joint Chairman: What should we do?
Mr. Bernier: Write to the department to pursue this.
Senator Bryden: I am a little concerned that we, too, may be moving outside our jurisdiction. This is probably just as good a place as any to express a concern I have: Sometimes our concerns are expressed in our dealings that have lasted for a long period of time between the bureaucrats of the department and this committee's advisers.
If you carefully read our report that was tabled with Parliament last week, the position that is taken is very argumentative. There is much emotive terminology, the type of wording I would use as an advocate for my client's position. Maybe that is what our counsel should be doing; I do not know. However, I had the impression that we might be better advised to make sure that our opinions and our position vis-à-vis the opinions are taken in good faith. There often is, even in statute interpretation and what applies, more than one side to the story and more than one interpretation that may ultimately be accepted by the courts.
As a general principle, maybe this committee needs to instruct whether we are in a contest, in a sense, with the opinions coming from elsewhere, or whether our job is to be as objective as we can in stating what we want to say.
I will not go over it. Anyone can read it and see that say there are words that are, in my view, extraneous to the position that was taken and might have been better left out. I have noticed it in some of our other correspondence.
For example, Mr. Wappel, it would not help our position if the letter drafted by counsel for the signature of the chairmen said, ``Don't try to use an interpretation of the law to create the policy that is Parliament's business.'' That is not a comment that we should be making to these people.
It is all right to look up a word in the dictionary.
I would be willing to bet that it is an arguable question in front of a court whether ``for the registration'' indicates the object to which the activity is directed — fees are prescribed for the registration. The word ``for'' also means with the object or purpose of. I am not sure that your analogy is correct — that is, a fee is charged for registration and that it would not be found to include all of the expense that a person puts the department to. You are saying that, if we were absolutely precise, we would say ``the fees charged for making an application for registration.''
Mr. Bernier: ``With respect to registration.''
Senator Bryden: Although I wanted to raise this matter, I will not make a fuss over it at this time. However, I think it would be worthwhile for counsel to take a look at the terminology that we use. You may have been instructed to say, for example, ``You are advocates of our position,'' or whatever emotive terms you want to use. I do not know that you used the phrase, for example, that such and such was a ``pretty brainless interpretation you put on that.'' However, some of the terminology would lead one to that type of approach.
My view is that we should be far more objective in our wording of our dealings with people who at least are doing the best they can and not be twigged by what appears to be, in some instances, the reverse situation from the correspondence that may be coming to us. Mr. Chairman, I just use this as an opportunity to make that comment, because this may be the last time we meet before fall.
The Joint Chairman: Dealing with this particular issue, I think a strong letter is required. We understand what you are saying, Senator Bryden, but with respect to this issue, as Mr. Wappel and Mr. White have said, it is legality versus policy. I think we need to need to send a strong letter on this one.
Senator Bryden: What does a ``strong letter'' mean? If a strong letter means saying, ``We still believe that the wording that is used in the statute does not support what is being done,'' is that strong enough? Or is it stronger to say, ``The committee really believes that it does not support it''? Or is it better to say, ``The committee really believes that it does not support it and, what is more, anyone in their right mind would agree with us''?
What constitutes a strong letter? My concern is that our job should be to point out that such and such is not correct and that, ultimately, if it is not corrected there are things that we can do. I wonder if some of the delay that occurs in the correspondence that goes back and forth is due to bureaucrats on both sides digging in their heels to justify a position that was taken. I will not beat this dead horse except, if the horse lives, I will probably revisit it in the fall.
The Joint Chairman: Thank you.
Mr. White: I just wanted to make the point that, within our governmental system, this committee is charged with examining regulations and setting some sort of standard. Someone has to do that. We could argue that maybe at some point there could be a case in court where a decision of this committee is shown to be incorrect.
However, in the absence of that happening, we are charged with a great responsibility. If we look at the usual agenda for this committee, there are a huge number that go through as ``reply satisfactory,'' using the same sort of approach and the same sort of letters that I have seen for many years sitting here as a committee member.
There are very few instances we come across where we get, as in this case, an attempt by the department to justify the continuing use of a regulation because it meets a policy objective. They have to understand that that is wrong. We can continue to write them pleasant letters for two, three, six years, sometimes a decade, and not get anywhere. Sooner or later, we have to bring down the hammer. Those of us who have been here for a long time lose patience after six or seven years and feel it is about time that something was done. The fisheries example is a case in point. It took five years to get anywhere.
With all due respect to the senator's position, I certainly support a strong letter in this case. We need to move along.
Mr. Wappel: Senator Bryden raises a very interesting point because I can see what he means. There are many definitions of a ``strong letter.'' Perhaps the senator might find too strong even my definition of a non-strong letter. However, let me give you two examples from this file.
One might be: ``The committee has reviewed this matter, and it is the committee's view that this is a legal issue and not a policy issue. We disagree with your opinion. We would ask you to justify it from a legal point of view, not from the policy point of view.'' A stronger letter might be: ``The committee rejected your explanation and would ask what law school you went to.'' We would not want to do the latter, according to Senator Bryden.
The Joint Chairman: Let us close the debate here. We will write a strong letter, whatever ``strong'' means.
SOR/88-58 — AIR TRANSPORTATION REGULATIONS
(For text of documents, see appendix p. 18H:1)
Mr. Rousseau: Regarding this file, the Canadian Transportation Agency has written to say that the promised corrections have either been made, or are in the process of being made. Counsel for the committee recommends that the department be contacted again in writing for a progress report on the amendments still pending.
The Joint Chairman: Are there any comments? So we agree with your position.
SOR/89-123 — CANADIAN EXPLORATION INCENTIVE PROGRAM REGULATIONS
SOR/452 — CANADIAN EXPLORATION INCENTIVE PROGRAM REGULATIONS, AMENDMENT
Mr. Rousseau: The department notes in its letter that these regulations have not yet been revoked because of one outstanding incentive application, an explanation that the committee has accepted in the past. Counsel for the committee will continue to monitor this file in the usual way and will keep members abreast of any progress made.
The Joint Chairman: Do you have any idea as to when the court decision is coming? Do you have a time frame on that?
Mr. Rousseau: No specific date is mentioned in the department's letter. One outstanding application must first be resolved and I would imagine there is no way to know when exactly that will happen.
The Joint Chairman: What is the recommendation?
Mr. Bernier: We have no choice but to wait, Mr. Chairman. Those regulations are no longer in force, are no longer applied, so there is no problem. There is this one outstanding lawsuit that involves the regulations. The department feels that it would be more cautious to defer repeal until the lawsuit is settled. We are monitoring it on an ongoing basis. This goes back to 1997 when these regulations ceased to have any application out in the real world. We are solely monitoring this until we reach a point where the lawsuit is over and we can get the formal revocation.
The Joint Chairman: Do members feel that they should continue monitoring?
We will do that, then.
SOR/90-364 — EXTRA-PROVINCIAL TRUCK UNDERTAKING LICENCING REGULATIONS, AMENDMENT
Mr. Rousseau: The department writes that the promised changes will be made following the coming into force of the proposed amendments to the legislation, most likely sometime in 2002. Counsel will also monitor this file as usual and keep the committee informed of any developments.
The Joint Chairman (Mr. Grewal): Are there any comments?
Keep us abreast of the situation.
SOR/98-177 — NATIONAL PARKS DOMESTIC ANIMALS REGULATIONS, 1998
(For text of documents, see appendix, p. 18I:1)
Mr. Bernier: The amendments promised are forecast to be completed by the end of fiscal 2002-03. Compliance will be monitored in the usual way.
The Joint Chairman: Are there any comments?
Let us move to the next items.
SOR/85-686 — PEST CONTROL PRODUCTS REGULATIONS, AMENDMENT
SOR/93-232 — DEPARTMENT OF AGRICULTURE OMNIBUS AMENDMENT ORDER, 1993-1
Mr. Bernier: Mr. Chairman, the resolution of the concerns raised by the committee turns on the introduction of legislative amendments to the Pest Control Products Act. In his letter of March 11, 2002, Mr. Flaherty states:
At the current time, we are awaiting direction from the Minister of Health as to the timing of introduction of a Bill into Parliament.
The Joint Chairman: That is Bill C-53.
Mr. Bernier: When is that? I checked on the parliamentary Web site yesterday.
The Joint Chairman: Third reading is next week.
Are there any comments?
Mr. White: Might I suggest that counsel get a copy of the bill and just check that this matter has been dealt with?
The Joint Chairman: Let us move on.
SOR/91-659 — NON-PLEASURE CRAFT SEWAGE POLLUTION PREVENTION REGULATIONS
SOR/91-661 — PLEASURE CRAFT SEWAGE POLLUTION PREVENTION REGULATIONS
Mr. Rousseau: One might be inclined to think on reading the department's letter that the promised changes could be made in 2002, but the department does not seem certain of this fact. However, I should point out that the issue is one of resolving a drafting problem. Some of the promised corrections have already been made. Therefore, there has been some progress with respect to this file. I would simply suggest that counsel continue to follow developments and to keep the committee informed.
The Joint Chairman: I do not see any comments. That is fine.
The next item is SOR/96-335.
SOR/96-335 — AIR TRANSPORTATION REGULATIONS, AMENDMENT
(For text of documents, see appendix p. 18J:1)
Mr. Rousseau: The file was reviewed in the past by the committee. Since then, the Canadian Transportation Agency has promised seven additional amendments to the regulations. Again, counsel will monitor the situation and keep the committee abreast of any developments.
SOR/99-12 — PRELIMINARY SCREENING REQUIREMENT REGULATIONS
(For text of documents, see appendix, p. 18K:1 )
Mr. Bernier: Mr. Chairman, following a rather involved exchange of correspondence with the department, we have undertakings from them to make amendments dealing with most of the issues raised by counsel. Replies on the remaining points appear satisfactory, subject to two comments. We believe that two issues arising out of the replies made by the department should be taken up.
Regarding Item No. 9, which concerns items 9(a) and 9(d) of Part 1 of Schedule 1, the department agrees to expressly exclude the approval of the Governor in Council from those provisions. However, if it is correct that the Governor in Council is not a regulatory authority for purposes of section 124(1) of the Mackenzie Valley Resource Management Act, something the department now appears to accept, there really should be no need to expressly exclude Governor-in-Council approvals insofar as section 124(1) refers only to applications made to a regulatory authority. Those would already be excluded. So that point should be clarified.
The second point concerns the agreement to revoke existing provisions of the regulations on the understanding that the provisions in question are already captured by section 124(2) of the same statute. Section 124(2) of the act requires a preliminary screening for developments proposed to be carried out by a department or agency of the federal or territorial government or by the Gwich'in or Sahtu First Nation.
The problem is that most, if not all, of the developments contemplated by the provisions of the regulations that the department is agreeing to revoke would not appear to be developments of the nature described in section 124(2). It is really that comment of the department that ought to be clarified, that is, that they will revoke these things because they are caught by 124(2) in any event. We just want to make sure we share the same understanding of section 124(2).
As I said, on both these points, I believe further clarification to the department's reply should be sought. At the same time, counsel can inquire into the progress of the amendments that have already been promised.
The Joint Chairman: Are there any comments?
Counsel should be directed to seek clarification.
SOR/2001-162 — REGULATIONS AMENDING THE YUKON TIMBER REGULATIONS
(For text of documents, see appendix p. 18L:1)
Mr. Rousseau: This amendment makes several changes to the Regulations, further to some of the committee's comments. These changes are described in the note attached to the file. Regarding the two new points raised, an amendment has been promised and a satisfactory reply has been provided. Again, counsel for the committee will monitor this file and keep the committee informed of any developments.
The Joint Chairman: Are there any comments?
We will now move to ``Action Promised.''
SOR/2000-184 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 2000-1 (Miscellaneous Program)
(For text of documents, see appendix p. 18M:1)
Mr. Rousseau: The ambiguous portion of the Agency's response has to do with the confirmation requested about the bilingual nature of health and safety information on product labels. The Agency writes that it is not in a position to impose mandatory bilingualism on labels without first undertaking proper consultation with all regulated parties. Does this mean the CFIA is prepared to make bilingual health and safety product labelling mandatory once the consultation process is completed? This is not clear from the response provided.
Counsel recommends that this matter be followed up in writing with the CFIA. Elsewhere, the CFIA has promised to revoke the illegal provisions.
The Joint Chairman: This is not in the scope of Bill S-41. Are there any other comments?
We are now at ``Reply Satisfactory.''
SOR/97-106 — ORDER AMENDING THE NATIONAL HISTORIC PARKS ORDER
(For text of documents, see appendix p. 18N:1)
Mr. Rousseau: With respect to the next item, SOR/97-106, the department has provided a satisfactory reply to the question as to why the Governor in Council has the authority to exclude certain natural resources when establishing an historic park, despite the fact that the definition of ``public lands'' specifically includes a reference to the natural resources of those lands. Since the department's reply is deemed satisfactory, this matter can be considered closed.
The Joint Chairman: Good job.
SOR/97-362 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS
(For text of documents, see appendix p. 18O:1)
Mr. Rousseau: In its response, the CFIA cites a decision by the Supreme Court of Canada which settles the issue raised. Therefore, this case can also be considered closed.
The Joint Chairman: Are there any comments?
SOR/98-197 — REGULATIONS AMENDING CERTAIN CANADIAN TRANSPORTATION AGENCY REGULATIONS (MISCELLANEOUS PROGRAM)
Mr. Bernier: Mr. Chairman, the correspondence is self-explanatory. There is no action required on the part of the committee.
The Joint Chairman: Hence, the file should be closed.
SOR/2001-97 — SPECIAL APPOINTMENT REGULATIONS, NO. 2001-1
(For text of documents, see appendix, p. 18P:1)
Mr. Bernier: In this case, Mr. Chairman, the Clerk of the Privy Council agrees there was no authority for section 2, which purported to bring these regulations into force as of the day earlier than the day of their making. Given the nature of the regulations, this acknowledgment constitutes sufficient corrective action and the file can be closed.
The Joint Chairman: Agreed?
SOR/97-144 — BROADCASTING LICENCE FEE REGULATIONS, 1997
Mr. Bernier: When this file was last before the committee, Mr. Chairman, members were strongly of the view that the illegal provisions imposing administrative charges should be revoked by the fall of 2001.
The committee also directed that the letter that was to be sent be sent to the Chairman of the CRTC rather than to the DIO. Members have a reply from Mr. Colville who assures the committee that no administrative charges are being levied and collected and that the section should be revoked sometime before the fall of 2003.
The Joint Chairman: Hence, counsel is monitoring it. Are there any comments?
SOR/97-270 — MARINE TRANSPORTATION SECURITY REGULATIONS (CRUISE SHIPS AND CRUISE SHIP FACILITIES)
(For text of documents, see appendix, p. 18Q:1)
Mr. Bernier: Mr. Chairman, while it is fairly hazy, there does appear to be agreement with the observations made by Mr. Bernhardt in his letter of August 21, 2001. As to when those amendments may be made, things are no longer hazy, but in a fog.
In his letter of November 20, 2001, Mr. McCullough states that the events of September 11, 2001, may result in an acceleration of the department's plans to review and adjust the regulations. When pressed further for a date, he indicates, in his letter of March 7, 2002, that he is not in a position to indicate when this review will even be initiated, far less completed. Given that response, I am not at all sure that the events of September 11 have accelerated anything. Perhaps the committee might consider asking the chairmen to seek some sort of undertaking in terms of time frame from the responsible minister.
The Joint Chairman: In light of that, let us see how much there is and how it turns out. Are there any comments?
SI/99-40 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/99-41 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
(For text of documents, see appendix p. 18R:1)
SOR/96-170 — NATIONAL PARKS GARBAGE REGULATIONS, AMENDMENT
(For text of documents, see appendix p. 18S:1)
SOR/98-133 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990
(For text of documents, see appendix p. 18T:1)
SOR/98-203 — PUBLIC AGENTS FIREARMS REGULATIONS
(For text of documents, see appendix p. 18U:1)
SOR/98-211 — GUN SHOWS REGULATIONS
(For text of documents, see appendix p. 18V:1)
SOR/2000-113 — INSIDER REPORTS EXEMPTIONS (BANKS) REGULATIONS
(For text of documents, see appendix p. 18W:1)
SOR/2000-177 — CANADA DEPOSIT INSURANCE CORPORATION NOTICE REGULATIONS (COMPENSATION IN RESPECT OF THE RESTRUCTURING OF FEDERAL MEMBER INSTITUTIONS)
(For text of documents, see appendix p. 18X:1)
SOR/2001-242 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
(For text of documents, see appendix p. 18Y:1)
Mr. Rousseau: As is customary for items listed under the heading ``Action Promised'', we will deal with all of these items as a package. There are nine items in total, from SI/99-40 to SOR/2000-113 and a total of 38 amendments have been promised.
The Joint Chairman: Are there any comments?
Let us move to ``Action Taken.''
SI/2000-77 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES (DOGRIB SETTLEMENT AGREEMENT, NORTH SLAVE REGION, N.W.T.)
(For text of documents, see appendix, p. 18Z:1)
SOR/87-19 — PENSION BENEFITS STANDARDS REGULATIONS, 1985
(For text of documents, see appendix, p. 18AA;1)
SOR/96-508 — CANADA GRAIN REGULATIONS, AMENDMENT
(For text of documents, see appendix, p. 18BB:1)
SOR/97-26 — TECHNICAL AMENDMENTS ORDER (CUSTOMS TARIFF), NO. 7
(For text of documents, see appendix, p. 18CC:1)
SOR/2000-169 — ORDER REPEALING CERTAIN FEES ORDERS AND REGULATIONS
(For text of documents, see appendix, p. 18DD:1 )
SOR/2001-273 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
(For text of documents, see appendix, p. 18EE:1)
SOR/2001-295 — MISCELLANEOUS PROGRAM REGULATIONS AMENDING THE INCOME TAX REGULATIONS AND ONE OF THE REGULATIONS AMENDING THE INCOME TAX REGULATIONS
(For text of documents, see appendix, p. 18FF:1)
SOR/2001-298 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996
(For text of documents, see appendix, p. 18GG:1)
SOR/2002-15 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF TRANSPORT REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see appendix, p. 18HH:1)
SOR/2002-19 — REGULATIONS AMENDING THE PRIVATE BUOY REGULATIONS
(For text of documents, see appendix, p. 18II:1)
Mr. Bernier: Dealing with all of the instruments listed under ``Action Taken,'' a total of 39 amendments have been made at the request of the Joint committee. One ultra vires instrument has been revoked and one statutory amendment has been made.
I would add, as has now become the custom, that 80 statutory instruments have been reviewed and are presented to the committee without comment.
The Joint Chairman: Good. Are there any comments?
Senator Bryden: Does that bring us up to date? Is the committee up to date, in consideration of the pending summer recess? Do we have a backlog of items?
Mr. Bernier: There is a backlog, but there will always be one.
Senator Bryden: Is it the usual amount of backlog?
Mr. Bernier: This was fairly substantial, in terms of what was ready and what had to go. At the last meeting, there were a number of urgent matters to be dealt with involving correspondence with ministers. Those were done at the last meeting. The overall state of affairs is manageable, I would say.
The Joint Chairman: I have a brief comment. In some cases, where there are English and French versions of letters, there was French on both sides but I did not have the English version. It happened in two different cases.
Is it possible to request English only copies, or vice versa? How can we eliminate that problem? Other members might be experiencing this also. Did this happen in anyone else's package?
Mr. Bernier: I know that one letter ended up on the back of the agenda itself.
The Joint Chairman: That is fine. I understand that.
Mr. Bernier: That is a printing decision, over which we have no control. At some point, we prepare an agenda, put together the material and send it to printing. Obviously, from time to time, they drop the pile or something, put it back together the wrong way and then print it. They do not call us to review it and to ensure that it is correct.
The Joint Chairman: I understand.
Senator Bryden: I have one question that might be considered, and I hope it is not controversial. I notice that we do our correspondence beginning with the oldest, I believe, correspondence first in the pile and the latest correspondence toward the end.
Mr. Bernier: Do you mean on the agenda, senator?
Senator Bryden: I was referring to the stack.
Mr. Bernier: You mean in order of time.
Senator Bryden: Chronologically, we begin with the first letter and then we go to the next one and the next one. Is there a reason for doing it that way rather than in the reverse, such that as soon as you look at the file, you have the current item and then below would be the details behind it. I ask this because many people do it that way. When I receive corporate files, for example, they are generally set up that way — the most recent item is on top.
There is probably a good reason for doing it the other way. I do not know which way is better.
Mr. Bernier: Our own files are kept in the same way that you mention — the top letter is the most recent letter. I guess the thinking might have been that it could be confusing for some members. In many cases, to understand the latest issue, you need to know what went before. Let us say we have the chair write a letter to a minister and we then receive a reply from the minister. If, when the member receives the material, he has the reply from the minister and then the chairmen's letter is underneath, in any event, he will have to skip over the minister's letter, read the chair's letter to understand what the minister is replying to, and then come back to it. Is it not easier to simply read the chair's letter, which sets out the problem, and then move on to the reply from the minister? That is the only explanation.
Senator Bryden: You might just think about that. I believe the other way is pretty standard. When you go through chronological —
Mr. Bernier: If the members of the committee prefer to have it done that way, we will do it that way.
Senator Bryden: Often, we look at our agenda and see that a particular issue is something that we have talked about before, that it is an ongoing issue. What is commented on is that we have received a reply from the minister and that he said such and such about the issue. However, what you are actually looking at in this file, say, is not the reply from the minister but the question that was drafted to the minister.
There is a great deal of paperwork to go through each time we meet. Some of us, and particularly when we have substitutes on the committee, find that by the time we have found the letter you are actually talking about the committee is ready to move to the next file.
Anyway, I am not asking that it be done. Since we are near the end of the season, I just thought that it would be food for thought.
Mr. Bernier: I am entirely in the hands of the committee. I know my files and I do not read the material before the meeting. If members want it done another way, we will do it another way.
Senator Bryden: We might just put it aside and talk about it when we return.
Mr. Bernier: At some point, perhaps the members would like to give it a trial — try one agenda set up the other way.
The Joint Chairman: It is a good suggestion to experiment that way. I think that makes sense.
Mr. Carignan: I would go along with the usual, or international method. The last document in is on the top. Perhaps those in charge of the file use the FIFO approach, that is ``first in, first out.'' That is how I work and I have no problem with this approach.
Mr. White: Yes, I have actually thought about this from time to time over the last few years, and I come always to the conclusion that it is six of one and half a dozen of the other, for the very two discussions we have just heard. I am certainly not averse to trying an experiment for one meeting where we place the latest at the top, but I think we will probably come to the conclusion that they are the same in terms of the inconvenience that may be produced or the convenience that may be produced.
The Joint Chairman: As long it is not inconvenient for the staff to do that, then let us try the experiment.
Mr. Bernier: It is no inconvenience to us whatsoever.
The Joint Chairman: In my opinion, the latest action gives you an idea what is required. If you wish to have the details, they are available further down. That makes sense to me, but I understand the other point.
Since we have been doing it the other way, we can try the reverse, if we agree.
The only thing left for me to do is to thank the staff and counsel for their cooperation in facilitating these meetings for us.
The committee adjourned.