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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 5 - Evidence

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OTTAWA, Thursday, May 17, 2001

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.

Senator Céline Hervieux-Payette (Joint Chairman) in the Chair.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): We received a letter from the Department of Transport concerning the Chandler file about which we had told them that we were giving up our request to change their faulty Regulation. They replied that we would have to agree to disagree. That is more or less the message I received from the Minister of Transport. It is true that we did not think it was worth continuing, but had he not replied, the result would have been about the same. I found the letter somewhat amusing.

SOR/90-218 - REGULATION ON FRUITS AND VEGETABLES FEES B AMENDMENT

[English]

Mr. François-R. Bernier, General Counsel to the Committee: Madam Chairman, members have before them the draft report containing a resolution for the disallowance of section 58 of the Fresh Fruit and Vegetable Regulations as requested at the last meeting of the committee.

The committee also wished the Canadian Food Inspection Agency to be advised that such a report would be considered by the committee today. You have my letter of May 3 to the president of the agency, the letter that was copied to the responsible minister. There is a reply, dated May 8, 2001, from Mr. Doering. Members will recall that in 1998 the committee was given a formal undertaking by a vice-president of the agency that the requested amendments would be made by April 30, 2000, at the latest.

Mr. Doering does not explain why his commitment was not fulfilled. He states, in part, as follows:

Given the number of regulatory amendments to be promulgated by the CFIA, we have made a determined effort to conclude this requested amendment.

He reiterates that the amendment is under review by the Department of Justice.

The Joint Chairman (Senator Hervieux-Payette): It is in the hands of the committee as to whether we should table this in the house or wait until the end of this month so that, at the next committee, if they have not reported, we will proceed with disallowance.

Do honourable members want to proceed right now?

Mr. Schmidt: This issue has been on the table long enough, Madam Chairman.

The Joint Chairman (Senator Hervieux-Payette): There is no file here that does not take time. One year is a very short time. A long time here is about 10 years.

Mr. Schmidt: That is notwithstanding that the life of one parliament is only five years at the maximum. I will not accept 10 years as a reasonable delay. There is nothing wrong with giving them the warning and waiting until the end of the month. That is two weeks. That is reasonable. I am not prepared to wait a month. If there is no reply by that time, it should be tabled in the house.

The Joint Chairman (Senator Hervieux-Payette): Are there other comments? Would members of the committee like to proceed with this approach, giving them until the end of May and then tabling it in the house?

Mr. Schmidt: They should be advised accordingly.

The Joint Chairman (Senator Hervieux-Payette): Yes, we can send a note. They just have to read the proceedings.

Mr. Bernier: They were already sent a note on May 3. Do I understand the proposal correctly that this committee would adopt the disallowance report today but instruct the chair to delay tabling until the end of May?

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

Hon. Members: Agreed.

Mr. Schmidt: Unless of course there is a favourable response.

The Joint Chairman (Senator Hervieux-Payette): If the new regulations come into place, there is no need to table the report. If by May 30 the new regulations are not in place, we shall proceed with disallowance. What is your technical advice on this?

Mr. Bernier: The clerk would prefer that the committee wait, if the committee is not disposed to proceed with a report. I suppose there is a point as to why would the committee adopt a report that may never be tabled.

Mr. Wappel: Madam Chairman, the answer to that question is simple. I think Mr. Bernier knows it. It is simply giving one last gasp to the bureaucracy to do something within two weeks and to indicate that we are so serious that we did not say we would reconsider it in two weeks, that we passed a disallowance. They had better get a move on or it will be tabled in the house. They might as well read that.

The Joint Chairman (Senator Hervieux-Payette): If the new regulation is coming, though, there is no need to table the report if it is done. If it is not done, the report will be tabled. The report is adopted. On the last day of May, if it is not done, the tabling should proceed.

Mr. Bernier: Could the committee ask the clerks, Madam Chairman, whether there is an obligation on a committee of the House that adopts a report to table that report in the House?

Mr. Jean-Michel, Joint Clerk of the Committee: If there is a real obligation to do something like that, then the best procedure - for any reason the committee might adopt a report and face certain delays.

The Joint Chairman (Senator Hervieux-Payette): We do not want any delays.

The Joint Clerk (Mr. Roy): For any type of report, there is no problem, but this would be the second report. The next report would be the third report. There may be no tabling of the second report. So probably we should change this.

[Translation]

Perhaps we should withdraw the second report if we decide not to table it.

The Joint Chairman (Senator Hervieux-Payette): What do you mean by "second report"?

Mr. Roy: This is the second report of the committee, and the next report will be the third. We will have adopted a second report, so if we should decide not to table it, the next one will nevertheless remain the third report of the committee. So, technically speaking, a first report will have been submitted, as well as a third one, but not a second one.

[English]

Mr. Bernier: Can the committee reverse or cancel a report, should the amendment be made? If it adopts this report today and there is no need to table because the amendment is made, then the committee in early June could simply reverse its reporting decision. That would take care of the numbering problem.

[Translation]

Mr. Lanctôt: I think I would table the report without referring to its cancellation. If we receive the Regulation, we will then be able to disallow rather than cancel. Cancelling the report seems to imply that there is something wrong with it, while disallowing it would mean that it no longer exists. I suggest that we table the report as the Regulation will probably not even be ready. We can then ask that it be disallowed.

Mr. Roy: According to the House of Commons Standing Orders, concerning a disallowance report, the House must receive a motion to adopt the report during the two weeks following its tabling. To a certain extent, there is an automatic process to adopt or reject the report. This takes place in the two weeks following the tabling of the report.

Mr. Lanctôt: Once we are advised that the Regulation has been made, everyone votes against the adoption of the report and the report is not adopted. We then submit the report and everyone in the House of Commons will commit to voting against the adoption of the report. That gives you the two weeks you need.

[English]

The Joint Chairman (Senator Hervieux-Payette): I will take your advice. The committee is aware of the technical side of the issue, and we should do it properly.

Mr. Schmidt: I would agree, Madam Chairman. I wonder if it would help us out of this conundrum to suggest that the chair be authorized to approve the report on the condition that a favourable reply not be received, and then I think you are out of the dilemma.

Mr. Bernier: I do not want to take on the role of clerk, but I am almost positive the report has to be approved by the committee. I do not think a committee can empower a chair to approve.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Isn't Mr. Lanctôt's technique the best? In any case, they will still have the two weeks' notice.

Mr. Lanctôt: The report will be submitted, but it must be passed by the House of Commons. If you tell us that the Regulation has been made, that is fine, then. All we have to do is vote against the adoption of the report, quite simply.

Mr. Bernier: According to the disallowance procedure, the disallowance motion of the committee is deemed to have been passed by the House of Commons when the 15-day notice period expires, that is to say three weeks, and this happens automatically, unless a minister has asked for a debate within that time period and the House has rejected the report. This might be a way of adopting the report today, with this condition in mind. Someone can always table a motion in the House asking that the report be referred to the committee for further study. Should the need arise, that can be done within the 15-day notice period - i.e., three weeks - between the tabling of the report and its deemed adoption.

If the Regulation were amended, then the joint chairman of the committee could ask for unanimous consent to have the report referred to the joint committee. That would put an end to the report.

[English]

Mr. Wappel: I do not want to muddy the waters further, but if we submit this report on June 1 and there are not 15 sitting days left in the session, what happens? I am addressing this question to the clerk.

Mr. Till Heyde, Joint Clerk of the Committee: It will carry on until September.

Mr. Wappel: That would effectively give the bureaucracy the entire summer to solve this problem before it came back, and within three or four days of the first working day of the new session they had better have it solved or the House would have to deal with it.

The Joint Clerk (Mr. Heyde): The House would not have to deal with it.

The Joint Chairman (Senator Hervieux-Payette): It is automatic, unless the minister asks, and of course -

Mr. Wappel: That is what I meant - dealt with unless. I did not phrase that correctly.

It is really a question of approach as to whether we do it now, put the feet of the bureaucracy to the fire. They have in effect three weeks, or we give them until June 1. They are not going to do anything in two weeks if they have not done it by now. They are able to figure out the calendar just as well as the rest of us, and they will know that unless we go for the appropriate length of time they will have the summer to do it. We will know that if they do not do it by the end of the summer when we come back, the House will already be seized of this situation because we have already given our report. That might give enough time to the bureaucracy to deal with it, while showing that we are deadly serious about the issue.

While Mr. Lanctôt would like to table now, it may be more strategic to adopt the report today with instructions to report on June 1, unless there is no reason to do so because the section has been disallowed by no later than May 31. If it has not, then we report, the process proceeds, and we adjourn for the summer. By the time we come back, the matter is either dealt with or within two or three days it will be disallowed. That I would suggest would seem to be a compromise that would permit the bureaucracy to save face while showing them that the committee is deadly serious about disallowing the regulation.

The Joint Chairman (Senator Hervieux-Payette): Not deadly, but serious.

Mr. Wappel: Very serious.

Senator Finestone: I have a question about a point of information, Mr. Wappel. Did you ask if they would send a letter advising what the procedure is? I do not think this has happened often with most of these ministries.

Madam Chairman, I wonder how familiar any one of these ministries are. Is there a letter that accompanies the motion to disallow, so that whoever receives it in the mailroom might wake up and smell the coffee as he passes it along?

The Joint Chairman (Senator Hervieux-Payette): The clerk tells me that we should put a real date for the deadline, because we have to come back and add up the days. It will be June 5, which would be the first date. If it is not done, that would be the day we table the report.

Senator Bryden: Madam Chairman, I just want someone to refresh me as to the implications of disallowing this in this regard. Does this regulation affect the rights or benefits or obligations of citizens? If it does, if we go halfway along and disallow it in two weeks, who will be affected? Are there fresh fruit growers that cannot ship? If it is a nothing regulation, simply bureaucratic, that is one thing; if it seriously impacts on citizens, I think we need to act in a different manner.

Mr. Bernier: Senator Bryden, section 58, which would be the section disallowed here, provides for the cancellation of registrations of establishments that prepare fresh fruit and vegetables. The result of the disallowance, if the government does not at the same time that it acts on the disallowance replace the regulation, would be that the agency could not cancel the registration. Now, it would retain its authority to suspend the registration. In terms of enforcement, as is mentioned in the draft report, I do not think it would create an impossible situation for the agency.

Senator Bryden: Thank you.

The Joint Chairman (Senator Hervieux-Payette): The joint chairman will report recommending disallowance on June 5 unless section 58 is revoked. Not just revoked, but replaced.

This is not just a vacuum, but a new section. Is everyone agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Do I have a mover for the report?

Mr. Schmidt: I so move.

The Joint Clerk (Mr. Heyde): Mr. Schmidt moved that the second report be adopted and that the joint chairmen report same to their respective Houses on June 5, 2001, unless section 58 is replaced in the interim.

SOR/2000-251 - REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988

Mr. Peter Bernhardt, Counsel to the Committee: Members who sat on the committee in the previous Parliament will know that the provisions of the Royal Canadian Mounted Police regulations governing political activities of members of the RCMP were the subject of much of the committee's attention.

While the committee has already concluded that the amendments made by SOR/2000-251 have now brought the regulations into conformity with the Charter, in its report to the Houses the committee also expressed the view that provisions restricting political activities in the end should be included in the act by Parliament, rather than being left to be enacted by regulation.

As the explanatory note indicates, there has been a succession of solicitors general who have agreed to consider this recommendation at some point in the future, but there has been no firmer undertaking forthcoming. The question for the committee this morning is whether to follow up this recommendation, and if so, how.

This was brought before the committee in the dying days of the last Parliament. At that time, members took the view that it was a question that should be decided by the new committee.

Mr. Wappel: Madam Chairman, my note on this is a big question mark. I am not sure what I would want to do about it, either, or what I would even suggest. As you noted, successive solicitors general have indicated they would consider the matter. This is a policy decision, plain and simple, a decision to be made by the executive. That does not disenfranchise us from giving our opinion and perhaps prompting the appropriate department to consider, but ultimately it is a policy decision.

If we were going to do anything, perhaps what we could do is simply reiterate in a new report that portion of the old report that we gave to Parliament that deals with the advisability of enshrining the rights of the members of the RCMP in statutory form.

My thinking here would be that at least the committee would go on record in the new Parliament reiterating its philosophy from the last Parliament. I am hard-pressed to think that we could do anything further, because it really is a policy matter for the government of the day, particularly since we are satisfied with the regulations. When I was reading this information yesterday, that is how I looked at it.

As this is a new committee, we would be required to reconsider a new report, which would have to be drafted, because we do not have, in our collective memories, the old report and the rationale for that. I am completely open to any suggestions that any other members would have, but I am hesitant to take any sort of position that would not recognize that the ultimate decision is that of the executive as to what they wish to do with this matter.

I have not reviewed the report lately. I know that Mr. Bernier is fidgeting in his chair. He may want to remind us that we took a stronger position than I am indicating, but I get the feeling that at some point we must put our opinion on record, and then let the executive decide what is policy.

Mr. Bernier: The reason for my fidgeting was that, yes, I wanted to point out that this is a matter of policy; however, it is a matter within the mandate of this committee. Scrutiny criterion 12 states that the committee will examine and report on whether any statutory instrument, which these regulations are, and amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment.

That is the basis on which the committee acted when it recommended that restrictions on Charter rights and freedoms should not be enacted by means of regulations but should be the subject of direct parliamentary enactment. That is the point.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): My remark is addressed to the members of the committee: this Regulation does not contravene the spirit of the Constitution. It may not be in full compliance with the specific act, but, at least, it does comply with the broader legislation, the Canadian Constitution. I would tend to think that Mr. Bernier, from the strictly legal perspective, is right when he says that we should insist that the regulation comply with a specific act rather than with the Constitution.

The members of this committee, after long and difficult negotiations, proposed the amendment to this Regulation. Each word and each paragraph was negotiated by the members of our committee, by one of our colleagues in particular, who is now parliamentary secretary and who is very well-informed about these matters.

We thus took a giant step on behalf of the legal counsel of the RCMP. We obtained this regulation with the agreement of the Commissioner. We are satisfied with regard to the issue of human rights. As to whether this Regulation is more or less an act in disguise, I would tend to think, as does Mr. Bernier, that this is more than a Regulation, and that the act should be amended.

The final report is not before us. It would be easy enough, however, to present it at the next meeting and to have a new report recommending to the new legislature that the executive amend the act in order to have this Regulation attached to a piece of legislation. I think that is the spirit in which we should do this work. I have several remarks to make. This regulation is the best the committee could do. The ball is now in the executive's camp.

[English]

Senator Finestone: This committee does not have a high profile. My sense of this committee is that it is the most important committee on the Hill. That is the way I see it and the way I feel about it.

The abuse of power by the functionaries or the bureaucrats is often the problem. When we were discussing this in the last Parliament, it struck me that the kind of letter that we send indicates the importance of the work that is done. That letter should go to PCO or PMO, whichever is appropriate, I think it is PCO, because they are the ones who should be overseeing regulation. This is a flagrant abuse of power. It happens to have been of an important nature in the political process. It is an abridgement of human rights. This is a really good way to bring home a number of factors. We are governed by a Charter. We have ministers' staff who can effectively ignore what a minister might think if he or she was aware of what was happening with such a regulation. It has been a long time that subsequent solicitors general have been aware of this issue. It is not as if it arrived on the plate yesterday and we are waving a red flag.

I would like to see a strong letter go out to PCO, with a copy to the Cabinet and the concerned minister. It is not only an opportunity for us to flex our muscles, but also an opportunity to point out the reality that there is a responsibility in a democratic institution of the Parliament.

The Joint Chairman (Senator Hervieux-Payette): I would not entirely blame the Solicitor General. We know the process for the new legislation, and it is a process.

Justice and PCO have to see it. If we are going to address this question, we have to put our house in order and submit an amendment to the bill. In order to inform everyone, I suggest that we send copies of our letter. Even though one minister is responsible for tabling it in the House, the minister cannot do it by himself. It is not difficult to send a copy of our request to the various authorities in the chain of command, along with the rationale for our recommendation.

[Translation]

Mr. Lanctôt: I agree with what Senator Finestone said. We must not simply demonstrate that we did good work on the regulation, this goes beyond that. It is not up to us to do so. We must demand that they do it. You both have some very interesting things to say, but the two things must go together; that is not the same as what you are asking me.

[English]

Ms Barnes: I believe this is a matter that should be in the bill itself. We should respond by saying that the regulations are an interim measure but that they do not fully meet the requirements of this committee and that this should be done by act of Parliament.

Several years ago the Harris government had to deal with the same issue with police, and I believe they took it before the Ontario Legislature.There had been a prohibition on political activity by police officers in Ontario. That prohibition was removed openly so that the people of Ontario knew about it.

These are very important provisions. I think this is the subject matter of a law. It is a technical stretch to say that these regulations embrace what Parliament intended. Regulations can be changed very easily, and the impact of potential changes would be of concern to the public.

Mr. Schmidt: I completely agree with the previous speakers. The principle of democracy and representation of the people is involved here. I support the suggestion of Ms Barnes. This is an interim measure and we support that, but it is the responsibility of the House of Commons to deal with these matters. We should not equivocate at all on this. We should simply lay on the table that it is the House of Commons that makes these decisions.

The Joint Chairman (Senator Hervieux-Payette): Do you disagree with amending the bill?

Senator Bryden: I do not disagree with it. I just wonder whether we should go about it in the manner that has been suggested. I have just read the paragraph that says that this is not a legal issue. We have a set of regulations that are made in accordance with the statute. I take it that this committee worked on that at some stage to ensure that it was right. The document says:

It bears emphasizing that this is not a legal issue. The Charter requires that any limit on protected rights and freedoms be "prescribed by law," and a regulation is a law as much as a statute. This issue is therefore one of propriety, rather than legality.

I do not know that this committee is charged with dealing with propriety. You read scrutiny criterion 12, which, in my opinion, requires a judgment as to whether we are complying with that by having these regulations. It is clearly a matter of interpretation to say whether the regulations do or do not. The executive has obviously decided that this complies with the regulations. This committee says that it is illegal to do this.

If we want to express a view that this committee would prefer that these regulations be incorporated in statute, I think that is fair, just as the RCMP's association or anyone else could express that view. However, I do not know that we are in a position to insist that this be put in legislation - or else what?

Mr. Bernier: I am not sure, senator, that I would put it as an "or else." I do not want to prejudge. The committee will decide what the committee will decide. Scrutiny criterion 12 is not a legal criterion. The committee has told the Houses that in the case of any particular regulation it would exercise a judgment as to whether the subject matter of that regulation is one that is more properly dealt with in an act of Parliament. In other words, it is clearly a political judgment based on, one presumes, some rational deciding factors that what this regulation does is not something that should be done by a delegate of Parliament but something that should be done by the Houses themselves, for whatever reason.

That is what we are dealing with here. As to the "or else," if the committee were to decide to pursue the recommendation of the previous report, which was firmly grounded in scrutiny criterion 12 and the committee's mandate as approved by both Houses, I do not think it is really a question of an "or else." The committee is a committee of Parliament. It would report to the Houses and it is up to the Houses to decide what they wish to do with that report.

Senator Bryden: We are simply expressing the considered opinion of this committee that it would be better to put this in legislation as opposed to regulation.

The Joint Chairman (Senator Hervieux-Payette): I think that the person who very skilfully negotiated the regulation was also of the opinion that the substance of this should be in a bill. I think it was recommended that the minister amend the bill so that the regulation would be on firm ground.

We recommended that the minister amend the bill so that this regulation would be specifically attached to one article in the act.

Mr. Lee: As a committee, we should always exhort the government to ensure that matters that affect civil liberties and Charter rights are in statute. However, there is another perspective that might be relevant here that we have noted in the past, and that is that the way the Royal Canadian Mounted Police governs its officers is similar to the way the military governs its officers. The ability of a commander to force an individual to do something by way of a military order appears odd in view of the Charter. A soldier could read the Charter and say, "I have all these rights and freedoms." Then the colonel comes along and says, "I order you to shut up and dig the hole."

The soldier will say, "I have the right to freedom of expression," and the standing orders of the military say, "Well, no, you have to follow the order, or you will go to the slammer, or whatever."

What we have is an historic paradigm here where the military form of governance, which the RCMP has always borrowed, still exists. It was always quasi-military. It is not like a regular police force, although it is becoming more regular. If you use that perspective, then you might want to consider if you want to force this quasi-military paradigm to fit perfectly within the way we view the law here from this committee.

I am tending to the view now that we have covered as much ground as we ever could. We may have done better than we originally thought. We have done the right thing, and so have the RCMP. However, I do not think we will ever force them completely to fit within the constitutional Charter paradigm, just like we will never get the military to fit within it. That is my view.

Mr. Schmidt: Madam Chairman, with all due respect, it is not a matter of forcing; it is a matter of recognizing a democratic principle. The democratic principle is that the House of Commons and the Senate are the legislative bodies of this country. That is what we are trying to do here. We are not suggesting that this regulation is wrong or that it is going in the wrong direction. We are suggesting that the legislation itself is deficient. We are simply suggesting to the ministers involved and to the government that this ought to be changed so that it is in there. We are the ones who should be making that decision, not a small group that is not part of Parliament. That is the issue.

The Joint Chairman (Senator Hervieux-Payette): I do not interpret the legislation as being deficient. We just say that when you limit the rights of people we would prefer that this be in the bill rather than in the regulation. Every time you reduce the rights of people, it should be on the record that members of Parliament are standing up against that reduction of rights. This is a very important thing. I do not think the regulation is ultra vires. As my colleague mentioned, it is just that it would be too easy to change it.

As far as I am concerned, we can certainly be in agreement with the preceding committee because, in the previous Parliament, the committee made that recommendation.

Since we do not have the wording of the last recommendations to the minister in front of us, I would ask counsel to tell us how we should address this matter.

Mr. Bernier: Madam Chairman, does the committee wish, perhaps at the next meeting, for us to distribute to members the full report made by the committee in the last Parliament, and then members can have a chance to read it? I believe this was mentioned at some point earlier in our proceedings.

Ms Barnes: No. That just adds to the delay around this place. I think we pretty well came to a consensus agreement. I will not vary from what I said a couple minutes ago.

Mr. Bernier: We would be looking at preparing a draft report to this Parliament essentially reiterating the recommendation made in the last Parliament; is that correct?

Senator Bryden: What was that recommendation?

Mr. Bernier: It was that the committee, based on various factors that have been mentioned, considers that in terms of constitutional propriety it is the judgment of the committee that the law, which is now in this regulation, should really be enacted after debate in the form of an act of Parliament as an amendment to the RCMP Act.

The Joint Chairman (Senator Hervieux-Payette): What I can add is that there was unanimity around this table. As a result of that, we will also inform the chain of command as to the changes in the legislation, such as Justice and the PCO. We will send them a copy of that letter, rather than just writing to the Solicitor General. In that letter, we will give him support for such an amendment in this Parliament. Because we are at the beginning of a new Parliament, we stand a chance of having this amendment in the coming years.

Mr. Bernier: If the committee adopts the report, then we can distribute it to all the players.

Ms Barnes: Do you want to add some recommendation for working with a member of the committee on the regulations? I am referring to Mr. Lee's work on getting it to this stage.

The Joint Chairman (Senator Hervieux-Payette): The regulation will still stand. It is just that there will be an enabling clause in the bill.

PARKS CANADA MASTER LIST OF FEES

Mr. Bernhardt: Madam Chairman, each year the Parks Canada master list of fees is published in Part I of the Canada Gazette. It has not been reproduced here. It runs well over 100 pages long. It sets out various fees charged for various things at each national park and historic site across Canada.

These fees are fixed by the minister pursuant to the Department of Canadian Heritage Act, which came into force in 1996. Section 11(3) of that act provides that these fees stand referred to the standing joint committee to be reviewed and scrutinized. In December 1998, counsel requested from the department a copy of all original documents by which the minister had fixed fees pursuant to the act.

In reply, I was directed to the master list published in the Canada Gazette. While publication in the Canada Gazette may serve notice that the fees have been fixed, it is not the act of publication that fixes the fees. What is published are fees that have already been fixed. Therefore, there must be some prior original documentation prepared by the minister pursuant to which the minister actually did fix the fees, and that is what was requested. This has been pointed out to the department, but with no result.

The conclusion one is left with is that either the department simply does not understand what is being asked for or it is unable to provide the documentation because it does not have it.

In addition, several other instruments were identified by the department as imposing fees. These in turn gave rise to a series of questions. They are set out on page 2 of counsel's letter of April 26, 2000. There is no reply to these questions either.

I suggest, perhaps, a letter from the joint chairmen to the minister directly at this point. Perhaps we could seek her cooperation in clearing up these matters.

Senator Finestone: On a point of information, Madam Chairman. If there are areas where a lack of understanding exists about the responsibility a particular department or ministry might have, we could call before the committee, not necessarily the minister, but certainly the deputy minister.

I think we suggested in the last session of Parliament that if there is a department that does not seem to follow the rules setting out the differences between legislation, regulation and responsibilities, we should call that department. Is Canadian Heritage one of those departments?

If so, this is a wonderful opportunity to have an exchange, so that there is an understanding about what the process is here, why we note these things and what the importance is. If we have two, three or four issues that have come up with Heritage that we can use as examples, it would be helpful, rather than having correspondence back and forth between the parties.

Mr. Bernhardt: Certainly, it is something the committee has done in the past, as members who have sat on the committee for some time will recall. It does happen from time to time where you have a series of files with a particular department and a decision is made to call in departmental officials to go through them, usually in cases where there are delays in providing responses or in carrying out actions.

Off the top of my head, it is not my impression at this point that Canadian Heritage is particularly better or worse than any other department. I think there may be a particular problem here, which was the fact that when the act was passed in 1996 this fee structure was put in place to avoid having to do this through regulation. Rather than saying, "There will be a regulation fixing fees," it was simply decided the minister could go ahead and fix the fees. The compromise that was reached then was that those fees would still be referred to this committee to be examined.

It may have been that the department was delighted at not having to go through the regulatory process to fix the fees and that that delight led to the bureaucrats exchanging e-mails and letters to decide on the fees and then shipping them off to the Canada Gazette for publication.

That process may lead to some questions as to whether these are fees fixed by the minister. We simply do not have any documentation, other than what was published in the Canada Gazette, to make any kind of analysis at this point.

Mr. Wappel: Madam Chairman, Mr. Bernhardt raises the nub of it. We are dealing with an assistant deputy minister first of all. We are not dealing low down on the food chain.

I cannot see how much more clear the request could have been than the August 24, 1999 letter and, in particular, the clear indication that just because it is in the Canada Gazette does not mean that that fixes it. There has to be some prior documentation. I was thinking exactly what Mr. Bernhardt said: They seem to be simply publishing the fees in the Canada Gazette as a way of fixing the fees.

That is not right. Your suggestion that the joint chairmen write to the minister is correct. It need not be a lengthy letter, because one cannot improve on your sentence. It is pretty clear.

My question is this: Is there a designated instruments officer - I think that is what we call them - in the Department of Canadian Heritage who might give some guidance to the ADM?

Mr. Bernhardt: I believe this ADM is the designated instruments officer.

Mr. Wappel: Then I certainly concur with your suggestion that we should write to the minister and bring this to his attention.

Mr. Schmidt: Agreed.

The Joint Chairman (Senator Hervieux-Payette): If we get to the same place, then we will ask them to attend here to explain why they are not proceeding with giving the proper documents.

Ms Barnes: Can I just make a point here? I do not want to see any of our work delayed on the basis that someone believes there is still no joint chairman here. My understanding is we have a co-chair until the whips assign someone new, and that is something that needs the concurrence of all parties. I do not want any of our work delayed because, as far as I am concerned, we do have a joint chairman.

The Joint Chairman (Senator Hervieux-Payette): I will just ask for a salary increase.

Ms Barnes: This is a serious point.

The Joint Chairman (Senator Hervieux-Payette): I know, but I asked at the beginning of the meeting about the procedure. Yes, technically, legally, there is a joint chairman.

Mr. Bernier: He is joint chairman until he resigns or the committee elects someone else.

Ms Barnes: I have had experience with this. If you want to add or remove someone from a committee, all the House leaders have to sign; it then has to be tabled, and then there is an election. As far as we concerned, we have two sitting joint chairmen right now. I want to make sure our work is not delayed.

The Joint Chairman (Senator Hervieux-Payette): We are legally sitting. I hope so, or it would be a very bad example for our committee to set.

Ms Barnes: We are moving that a letter signed by both chairs be sent, as recommended by Mr. Wappel. I want to be sure that we are not back here in three weeks from now doing the same thing.

SOR/97-103 - REGULATIONS AMENDING THE CROWN CORPORATION GRANTS REGULATIONS

(For text of documents, see Appendix , p. 5A:1)

Mr. Bernier: Madam Chairman, subsection 3(3) of the Crown Corporation Grants Regulations illegally froze the 1993 grants to be made to municipalities by various Crown corporations in lieu of taxes to 1992 levels. The result is that moneys are owed by those Crown corporations to the municipalities concerned.

Initially, the department undertook to present legislation to Parliament to retroactively validate subsection 3(3), which would have eliminated any debt owed by those Crown corporations. The committee was then informed that the department had changed its mind and would not proceed with the validation of section 3. Rather, it would revoke the section, inform the Crown corporations concerned of their liability to the municipalities, and would support a proposal to the Treasury Board to provide those Crown corporations with the resources needed to make those payments.

When this was put before the committee, members thought this approach was acceptable, provided it involved a guarantee or reasonable certainty that the payments would in fact be made. A financial commitment was needed to make the resources available and to make the payments. As well, the committee felt that the municipalities concerned should be officially informed of their rights.

The reply before us is from Mr. Quail. I suggest that it is not very encouraging. After giving reasons for which Public Works cannot take any of the steps recommended by the committee, Mr. Quail concludes as follows:

...Public Works has taken note of and shares the concerns raised by Committee Members...In searching for a solution, the Department will consider the government's unfulfilled obligation towards municipalities as its top priority.

At this stage, I suggest the department be asked to indicate whether those payments have now been made. Were the resources made available by Treasury Board? I would also note for members that, as of the end of March, section 3 still had not been revoked.

The Joint Chairman (Senator Hervieux-Payette): We have a new deputy minister, and it is a woman, so I guess it might be solved. You never know.

[Translation]

Are there any comments? Mr. Bernier, what is your recommendation?

Mr. Bernier: We should write to the department to see what is going on, whether payments have been made.

Mr. Lanctôt: If the reply is that they have not been made, the file will come back to the committee.

[English]

SOR/91-301 - NAMAO AIRPORT ZONING REGULATIONS, 1990

Mr. Bernhardt: On March 1, Lieutenant-Colonel Joshi had promised that the amendments would be made in the near future. I can now report that, with military efficiency, those were made on March 15. Action has been taken and the file can be closed.

Hon. Senators: Hear, hear!

SOR/91-334 - SEAWAY REGULATIONS, AMENDMENT

Mr. Bernier: Because of the failure to follow proper enactment procedure, the amendments registered as SOR/91-334 were not validly made by the St. Lawrence Seaway Authority and must be treated as never having come into force. The committee had sought from the Seaway Authority and the responsible minister an assurance that until such time as the rules set out in that amendment were properly enacted or re-enacted they would not be enforced.

In August 1999, the minister did request of the Seaway Management Corporation that they not enforce the provisions of that amendment. The minister also indicated that new operations regulations would replace the previous regulations, including this instrument.

The committee has the letter of February 8 of this year in which it said that the new regulation should be in place in six months, which would be August of this year. If that is agreeable, progress will be monitored in the usual way.

Hon. Members: Agreed.

SOR/85-588 - NARCOTIC CONTROL REGULATIONS, AMENDMENT

Mr. Bernier: For the reasons set out in Mr. Michol's letter, little progress has been made on the issues raised in this committee in 1985. Work on subsection 9(1) was to resume early this year. Counsel will verify whether this has occurred. That amendment involved the removal of an unnecessary reference to the opinion of the minister from that section. The more significant issue here had to do with sections 50 and 60 of the regulations.

One result of these provisions is to put the onus on a pharmacist suspected of having contravened the regulations to prove that he has not done so in order for that pharmacist to maintain his ability to obtain narcotics.

The committee was of the view that provisions that put the onus on those subject to the regulation to demonstrate they have obeyed the law are contrary to its scrutiny criteria. Amendments to those sections were promised to the committee in October 1986.

It is now said in the latest progress report that these amendments will be considered as part of a comprehensive review and rewrite of the narcotic control regulations and that "policy development on the consolidation of regulations is expected to begin this year" and the resulting regulations would be available "in subsequent years."

This probably raises a fairly evident question of whether that is a sufficient indication of progress, given the significance of the objection of the committee and the age of this file.

Ms Barnes: The regulations as they stand essentially put a reverse onus on a pharmacist to prove that he or she is not guilty. This is in a regulation. Their answer is that we better deal with it in the act, and we will have a new act by the end of 2001 and in subsequent years we will do regulations.

For me, reverse onus clauses should have the highest level of scrutiny of any. They should be rarely, if ever, used. It is a serious matter having this clause in a regulation. I want to hear what other members have to say before I come to a conclusion on this. This is a serious infraction.

The Joint Chairman (Senator Hervieux-Payette): If you read the letter, I just want to draw your attention that they are talking about revisiting the regulations, not amending the law. They say they are in the process and will start at the beginning of 2001 and so on.

As far as I am concerned, that is not even contemplating modifying the law. We must first deal with the regulations in accordance with the bill, because it may not be even legal to do that. We do not have any enabling clause in the bill.

Mr. Bernier: Madam Chairman, the undertaking of 1986 may have changed. The undertaking at the time was that they would revise these two sections so as to remove this reverse onus feature. Those are the amendments the committee has been waiting for.

Mr. Lee: For 15 years.

Ms Barnes: I would disallow this.

Mr. Schmidt: Madam Chairman, the undertaking to revisit the total picture of the regulations is probably a great undertaking, but there is no time limit or indication as to when they will do this. The committee should, at a minimum, if we want to give them a break, say that the process must be begun by a set date. If not, then we should simply disallow this provision.

[Translation]

Mr. Lanctôt: Are we taken seriously? It seems to me I am always repeating the same thing. If this has existed since 1996, I am sorry, but there must be a disallowance. I should not have to repeat this each time. Perhaps we should impose deadlines?

The Joint Chairman (Senator Hervieux-Payette): That is what we do.

Mr. Lanctôt: Yes, but it seems absurd to me that we are always having to ask for things after five years. If we disallow a regulation, after the second or third time, word will be out, and we may receive replies.

[English]

The Joint Chairman (Senator Hervieux-Payette): In this case, we must deal with the amendment of the legislation and the regulations that are also not necessarily in accordance with normal Charter rights. The law is fine, our concern relates to the regulations.

I am in the hands of the committee, to proceed with disallowance as per Mr. Lanctôt or a timetable as per Mr. Schmidt where we give notice.

Mr. Bernier: If I may, Madam Chairman, going by what the procedure of the committee has been in the past, prior to any of those steps, whether report or disallowance, the next normal step would be that the chair of the committee would communicate directly with the minister and seek the minister's cooperation in resolving this before moving on to other means.

In regard to Mr. Lanctôt's suggestion, I truly do not think that the delays in these situations are the result of a lack of respect by the public service for committees of Parliament.

I will not say that a request from this committee is seen with the same level of priority in the department as a request from their minister's office, but I do think you would find, whether you are in Parliament or in a department dealing with another department, unfortunate as it may be, that those are the kinds of delays that are simply the nature of the beast in this day and age. These delays are not directed at this committee.

This committee is well-acquainted with the situation because it meets it every two weeks, but we should avoid any feeling of persecution.

[Translation]

Mr. Lanctôt: Without feeling persecuted, if you act methodically, you must write to the minister. Let us not wait six months or five years to write to the minister again. We should give ourselves a deadline when we do not receive a reply after a certain time period has elapsed, a time period we feel is reasonable. We should take the book and say: "Six years, I am sorry, but is there anyone around the table who thinks this is normal?" If it is normal, well, can someone explain that to me?

The Joint Chairman (Senator Hervieux-Payette): The reason that is most often given to explain the lag is that we are waiting for new legislation and that it would be counterproductive to amend a regulation without having that new legislation. This delay is not necessarily ill will.

We also have legislators who are on the cutting edge of regulations drafting, which is not always the case in the various departments. Discussions foundered for a long time on matters of legislation, but that is par for the course. As to negligence, if that happens, it is an exception, not the rule.

Often, because these are technical matters, we will get in touch with the deputy minister and by the time we reach the minister, it is getting to be late in the game. If the minister replies that he or she will not change anything, we can still resort to disallowance.

Mr. Lanctôt: I am not pushing anything in particular, I simply want to understand. You all seem to be saying that this has to take five years.

The Joint Chairman (Senator Hervieux-Payette): No.

Mr. Lanctôt: I have to admit that I don't understand. You referred to 1996; I did not follow the matter, but I simply want to understand. How often did we write to the deputy minister? Did we write to one of the deputy ministers' assistants?

The Joint Chairman (Senator Hervieux-Payette): It is true that you do not have the complete history of each file.

Mr. Lanctôt: I am told that in the beginning, in 1996, you asked that the change be made for sections 50 and 60, but we are now in the year 2001.

The Joint Chairman (Senator Hervieux-Payette): The relevant sections of the act were amended.

[English]

Mr. Lee: I think the matter of the particular regulatory deficiency is serious enough that it is above the threshold where we could disregard it. It has been a long time. We would not use the nuclear option without advising them that we intended to do so. Given that we are in the month of May, if we moved toward disallowance we might not get to it before the summer.

We could write a letter saying that the committee is of the view that they have had plenty of time to fix this and that if it is not repaired by September 1, the committee will consider disallowance. In that way, we would be ready in the fall if they were not able to fix it.

[Translation]

Senator Nolin: I agree with what Mr. Lee just said. I think that we must be much more aggressive in this letter, because this is unacceptable. The legislation was amended in 1996 and came into effect in 1997. Thus, they had ample time to study possible changes to the Regulation.

As to the delay in responding, if I take Parks Canada as an example, with the correspondence that was exchanged and is before us, there is a delay of approximately six to eight months between the time we sent our letter and the time we received their reply. In the case of this letter, we are talking about someone at the deputy minister level. I may accept incompetence at lower levels, but not at that level.

I understand that some people don't want to use a "nuclear" tool, but I think that if we are convinced that we do good work - and I believe that is the case - we definitely have to get out our boxing gloves. Otherwise, people are going to be laughing at us, politely.

[English]

Senator Bryden: It is not unusual for actions to take a considerable period of time in government. In some instances, it takes five years or more from the conception of a policy and the introduction of a bill in Parliament for it to work its way through. Think of the Endangered Species Act and the Young Offenders Act. It just takes a long time, and that is not necessarily a bad thing. It is to be hoped that as a result we end up with a better product.

That also applies, in most instances, to getting things on priorities lists to get done. Some things can be fixed relatively quickly, and others take longer.

We must rely to some extent on the judgment of our experts on which ones can be moved more quickly. However, in addition to consultation within departments in trying to get these regulations fixed, I assume that in many instances there is reference to the Department of Justice for legal opinion. Regardless of what they do, they run the risk that it will end up being discussed on the floor of one of the Houses, whether that be due to delay or due to the ultimate result.

I do not perceive the same level of urgency. I think the committee is treated reasonably well.

However, I should like to suggest that we develop the practice of including in the last paragraph of letters that we write at each stage, be they to ADMs, deputy ministers or whoever, the next step that may be taken, although not as a threat. In that way, people are given notice before we reach the stage of deciding to disallow. People must be given the opportunity to establish their priorities, because presumably they have other things to do than respond to us. One would hope people are involved in many things, but we want to move up on their priority list.

Mr. Bernier: In the same vein, I note that counsel was appointed to draft the Controlled Substances Act in 1986 and that the bill was enacted by Parliament in 1996. It took 10 years to get the legislation in place.

With regard to the senator's suggestion, I am a little reluctant to announce future courses of actions to departments. I have learned through experience that, when a matter comes back before the committee, the committee sometimes takes a different approach to it. The committee does not appear in very good light when it announces its next step and then does not proceed in that way. I would be reluctant to anticipate what the committee might decide at a future meeting.

The Joint Chairman (Senator Hervieux-Payette): Mr. Bernier, we are masters of our own procedures. I agree that we should have a procedure, but I would be reluctant to reveal it because we would be binding the decision of the committee. Due to time frames, we may set out various levels, but there is always a time frame, as Mr. Lanctôt was saying. We may skip some levels of the time frame when one or another is unacceptable. We might jump from ADM to the minister if we receive an answer eight or nine months later.

I would not wish to impair our capacity to take a tough stance and jump some steps if the time frame is not acceptable. We can say that we will follow a certain procedure if the timetable is reasonable.

Senator Bryden: I am not saying that we should have a system that we must follow precisely. However, I think it is fair that people are aware. Someone asked whether they know we can disallow. Everyone assumes that everyone knows the law, but I think it would be useful to tell people what things can be done.

Mr. Wappel: I agree with everything that all the previous speakers have said. To follow up on what Senator Bryden said, we passed the Oceans Act in 1997. In 2001, we still do not have regulations under the Oceans Act.

The minister came before us two days ago and provided a very credible explanation in this particular case. Sometimes there are huge delays between the passage of an act and the passage of regulations, and a variety of factors can account for this.

On this specific case, I support Mr. Lee's suggestion that we state a date sometime in early September by which time we expect an answer.

I urge the committee and counsel to put in the letter the words of Ms Barnes, or words very similar thereto, to express that this is a reverse onus situation. I suggest that we put it exactly as Ms Barnes put it, and not in some fancy, flowery, legal phraseology. This reverse onus is very rare. This is not the appropriate case for it. That is why we are concerned and that is why we want an answer very quickly.

Ms Barnes: I go along with that, but I think Senator Bryden gave an excellent suggestion. We do not have to tell them every step we can or will take along the path, but we could close every letter with the simple statement that the ultimate sanction or remedy for this committee is to disallow and that "We will work with you so that we do not have to move to that step."

If every letter ends that way, each person who deals with the letter will realize that this could be urgent. It gives them a little bit of power.

I also like Senator Bryden's idea about assisting us. I agree with you, Madam Chairman, that we may not want to share because of the variance in the cases. It would be useful if, over the summer, we could work on a flowchart of potential actions. That would be a useful guide to committee members, knowing that there are always varied levels of experience here. Perhaps the flowchart could be included in the little handbook that is provided to all new members. A flowchart would be easier to understand than the format of regulations that I have read describing committee powers.

This was a useful and instructive discussion. I agree with Mr. Wappel.

The Joint Chairman (Senator Hervieux-Payette): Shall we go along with the proposal, asking for an answer in September, a letter to the minister with notice that we have the power to disallow, including a pinpointing of the emergency aspects in our view. This issue does touch on the rights of individuals.

Ms Barnes: It is a reversal.

The Joint Chairman (Senator Hervieux-Payette): We will use the words of Ms Barnes.

Ms Barnes: Quite frankly, do not use my exact words, but use my sentiment.

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

Hon. Members: Agreed.

SOR/96-431 - REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix , p. 5B:1)

SOR/97-159 - ORDER AMENDING THE CANADIAN CULTURAL PROPERTY EXPORT CONTROL LIST

(For text of documents, see Appendix , p. 5C:1)

SOR/98-216 - REGULATIONS AMENDING THE DAIRY PRODUCTS REGULATIONS

(For text of documents, see Appendix , p. 5D:1)

SOR/99-192 - REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS

SOR/99-193 - REGULATIONS AMENDING THE OLD AGE SECURITY REGULATIONS

(For text of documents, see Appendix , p. 5E:1)

Mr. Bernier: With regard to the five files mentioned under the heading "Action Promised," the committee has received undertakings to make 13 modifications to regulations and one amendment to an enabling statute. Those will be monitored.

The Joint Chairman (Senator Hervieux-Payette): Are we satisfied with that, members?

Hon. Members: Agreed.

SOR/94-232 - GENERAL EXPORT PERMIT NO. 28- ANGOLA

Mr. Bernhardt: Madam Chairman, it has been pointed out to the department that, as a result of amendments to the parent statute, this particular general permit must be considered to have ceased to have effect. The department advised that it intends to formally revoke the permit, and that should take place sometime next month. That seems satisfactory.

The department has also been asked to confirm that it had not relied on this permit after the date it accepted that it had ceased to have effect. Apparently, there is not a sufficient paper trail to state this categorically. The committee has been assured, however, that the department has taken the reference to the permit out of their administrative manual, that exporters have been made aware of the need to get individual permits for exports to Angola, that there are applications for these permits and that the individual permits are being issued in place of the general one now. This all seems quite satisfactory.

[Translation]

SI/96-86 - CERTAIN TAXPAYERS REMISSION ORDER, 1996-2

(For text of documents, see Appendix , p. 5F:1)

SI/2001-32 - ORDER AMENDING CERTAIN ORDERS MADE UNDER THE TERRITORIAL LANDS ACT

(For text of documents, see Appendix , p. 5G:1)

SOR/97-149 - REGULATIONS AMENDING THE NATIONAL PARKS GENERAL REGULATIONS

(For text of documents, see Appendix , p. 5H:1)

SOR/2000-233 - COMPENSATION FOR DESTROYED ANIMALS REGULATIONS

(For text of documents, see Appendix , p. 5I:1)

SOR/2000-305 - AMENDING THE LICENSING AND ARBITRATION REGULATIONS

(For text of documents, see Appendix , p. 5J:1)

SOR/2000-318 - REGULATIONS AMENDING THE EXPORTATION OF CERTAIN GOODS TO THE FEDERAL REPUBLIC OF YUGOSLAVIA (SERBIA AND MONTENEGRO) EXEMPTION REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix , p. 5K:1)

SOR/2000-14 - REGULATIONS AMENDING THE DAIRY PRODUCTS MARKETING REGULATIONS

(For text of documents, see Appendix , p. 5L:1)

The Joint Chairman (Senator Hervieux-Payette): The next files, under the heading "Action Taken."

Mr. Bernier: Under the "Action Taken" heading, there are 26 amendments, as well as five disallowances made in reply to the committee's comments. Finally, I note that there are 39 statutory instruments submitted to the committee without comment.

Senator Nolin: Are we looking at items under the "miscellaneous" heading?

The Joint Chairman (Senator Hervieux-Payette): We do not have that heading in this agenda.

Senator Nolin: Is there a list, in the community, of statutory instruments experts? I note that there are lot of personnel transfers within the departments and organizations that reply to us. Is this a community of experts that is easy to delineate?

[English]

Senator Bryden: The question is not being translated.

Senator Nolin: Among the community of regulations and delegated instruments - of which our experts are a part - can we be informed when a new individual appears in one of the departments or organizations? Can we be in touch with them before we have a problem with what they are doing? We can alert them that we exist and what we are doing and that, in the course of their responsibility, we may end up writing to them. We could establish some kind of a link of communication.

Mr. Bernier: As you pointed out, senator, there is a lot of turnover across government. My suspicion would be that the hard-core group of regulation specialists are, if you will, at a working level in the department. I am not sure how to put that in a nice way - downstairs.

Senator Nolin: They are not the ones who are writing to us?

Mr. Bernier: Exactly. Even though those people actually do the work, they do not have the authority to make commitments to change something. That has to be done by the upstairs group. Those are the ones with whom we communicate.

Senator Nolin: In one organization, there is no one desk where all regulations of the department or the organization are addressed?

Mr. Bernier: There is a designated instruments officer. That person is designated for the whole department to deal with us.

Senator Nolin: Why do we not first monitor what is going on in that community and tell each new DIO that we know they have just been appointed to that position and that we are here to work with them in future. Perhaps that is impossible. I just heard a suggestion - why not organize a party for them?

The Joint Chairman (Senator Hervieux-Payette): In the meantime, Mr. Bernier will prepare a one-page paper in this regard. This is already in the handout that we receive at the beginning of a session. As a reminder, we will have one piece of paper so we know what we are discussing. That will be done. Mr. Bernier agreed to do that.

[Translation]

Mr. Lanctôt: Under the heading "Reply Satisfactory," there is one item accompanied by a question mark. I would like to go back to SOR/95-74, on page 3. We forgot a regulation.

[English]

SOR/95-74 - MARINE OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

Mr. Bernhardt: Mr. Lanctôt is correct. The department had promised to make amendments addressing the committee's concerns in a particular package they planned to put forward.

Ultimately, that package came forward. The amendments were not there.

They were then asked where the amendments were at. A little blithely, I think, the reply came, "We have now put them in an overall rewrite of the regulations." It was expected that this rewrite would be pre-published in the second quarter of 2001. We are smack in the middle of the second quarter of 2001 right now. The amendments have not yet been pre-published.

I suppose the next step would be to write to the department and ask if they still intend to meet this deadline. We could, perhaps, suggest to them that if they anticipate further delays of any significant kind the committee's amendment should be proceeded with separately.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I am sorry, Mr. Lanctôt, that was my mistake.

Mr. Lanctôt: I see that this regulation was submitted to the committee on May 11, 1996, and once again, I want to know who to write to. After a five-year delay, do we write to the deputy minister or to the minister?

This takes us back to what I was saying earlier. When we are told after five years that none of the promised amendments and corrections are on the list, I wonder what we should do.

Mr. Bernier: Mr. Lanctôt, I do not think we can always have an inflexible procedure, which would always be the same. In the present case, we are dealing with changes to the drafting of the regulations.

The Joint Chairman (Senator Hervieux-Payette): These are semantic amendments.

Mr. Bernier: In a provision such as the RCMP Regulation, where we are talking about restrictions of fundamental freedoms, the committee will not take the same approach, it will be much less generous.

It is difficult to foresee what will happen in five years, that is a fact. We do what the committee tells us to do.

Mr. Lanctôt: I understand very well that this is not a substantive amendment. However, we are asking for it and getting nowhere. What to do?

Mr. Bernier: When we look at the dates upon which a file was submitted to the committee, it is not as though nothing had happened. There is a follow-up at the secretariat. Each file is brought forward every three or four months, by the system.

Mr. Lanctôt: That is what I was saying the last time. That should be done and things should not always be re-submitted to the committee.

Mr. Bernier: When a file is submitted to the committee, we do not re-reproduce the enormous pile of documents, or the 10 letters saying: "You have not replied to my letter." We will be provided with the latest correspondence, which nevertheless gives the committee an idea of what has been going on.

You must not think, because the correspondence of the committee has this year's date that the file was seen for the last time in 1995, that nothing happened during those five years. There is a follow-up system.

Mr. Lanctôt: That was not what I meant.

The Joint Chairman (Senator Hervieux-Payette): In the present case, since we are dealing with drafting issues, if the delegated deputy minister replied to us the last time, normally we would now write to the deputy minister and he might have to turn to the same person.

Mr. Bernier: According to the system that is in place, counsels are to communicate exclusively with the person in charge of statutory instruments. This is for the purpose of simplifying procedures, because otherwise, we would constantly be referred to different people.

The Joint Chairman (Senator Hervieux-Payette): In this file, the last person who wrote to us and let us know that the changes had not been made was the delegated deputy minister.

Mr. Bernier: I am presuming that this was the officer in charge of statutory instruments. If we are dealing with more important amendments and if the committee considers that the file is not progressing as it should, the committee chairmen would write to the minister responsible.

The Joint Chairman (Senator Hervieux-Payette): Are you proposing that you yourself write to the deputy minister?

Mr. Bernier: Yes, because this is simply a drafting issue.

Mr. Lanctôt: I wonder what we could do. Without wanting to reprimand anyone, we should act to indicate that this is not acceptable. I understand that we must wait, but we should not raise something we know they will not reply to. The last time, the reply was that we should do our work.

Ms. Barnes: That will be done, Mr. Lanctôt, but it will take whatever time it takes. The committee's persistence pays off, as I pointed out this morning. Sixty changes to regulations have been made because of this committee's work. That also must be taken into consideration. The committee has certainly had more successes than failures.

[English]

The Joint Chairman (Senator Hervieux-Payette): Ms Barnes, you have the last word.

Ms Barnes: Obviously, we will not deal with it today. Most of us are trying to make our summer arrangements. It will be nearly June before we meet again. I was hoping that we would an update as to whether we will participate in that conference, or if there is some holdup we are not aware of. I made you aware earlier of my offer of points. It is getting tough at this stage. For planning purposes, I would just like to know what the delay is.

The Joint Chairman (Senator Hervieux-Payette): Do we have any specific information on the trip to Australia? I know we now have a budget allocation.

The Joint Clerk (Mr. Roy): The budget has been approved by the subcommittee of the budget liaison committee. The decision is now in the hands of the House leaders. They will meet the Tuesday after the recess.

Ms Barnes: Will it be likely that we will have something on our agenda to deal with this the next time we meet?

The Joint Chairman (Senator Hervieux-Payette): You will have to talk to your whip. I know some people are offering to use their points. We can make the reservations using the points and then cancel them if we do not use them.

The Joint Clerk (Mr. Heyde): On the Senate side, the budget still has to be taken into consideration. It will probably be done shortly after the Victoria Day break.

Ms Barnes: I will wait.

The Joint Chairman (Senator Hervieux-Payette): We do not have everything in place, but they are moving.

The committee adjourned.

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