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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 8 - Evidence

OTTAWA, Thursday, November 8, 2001

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

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


The Joint Chairman (Mr. Grewal): Honourable members, I see a quorum. I call the meeting to order.


Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, honourable members have before them a draft report that should be the third, not the fourth report. That draft report was prepared in accordance with instructions received from the committee shortly before the summer adjournment. The purpose of the report is to reiterate the committee's view that the Royal Canadian Mounted Police Act is the appropriate vehicle for the imposition of restrictions on political activities by members of the RCMP.

The draft report would also request that the government provide Parliament with a possible time frame for the introduction of amending legislation.

The Joint Chairman (Mr. Grewal): Must this report be tabled in both Houses?

Mr. Bernier: It must be adopted by the committee first.

Mr. Wappel: I thought the report was drafted well. It is important that the direct quotes from the various solicitors general are included, because that makes it difficult to backtrack on those comments. It is a good report and we should get on with adopting the document and sending it to both Houses.

The Joint Chairman (Mr. Grewal): Honourable members, is it agreed to adopt the report?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.


(For text of documents, see Appendix p. 8A:1)

Mr. Bernier: Mr. Chairman, in the letter of May 23, 2001, the chairmen pointed out that the committee's concerns respecting these regulations were brought to the attention of the government some 18 years earlier and that action had yet to be taken to address those concerns.

As instructed by the committee, the chairmen informed the responsible minister that committee members were disposed to proceed with the disallowance of the regulations unless the minister could give a firm undertaking that this matter would be resolved within a set period of time.

The minister replied on June 7, 2001, asking for a postponement until the fall. Finally, in a letter dated October 1, 2001, the minister indicates the following:

I can now inform the Committee that INAC will commence the regulatory review procedure immediately, both to address the concerns of the Committee, as well as other housekeeping amendments to modernize the Regulations.

Would it be a good idea to write the minister, apart from thanking him for his cooperation, to ask that he furnish the committee with a time frame within which the committee can expect this revision process to be completed?

Mr. Wappel: I have several comments. We have already asked him to do that. I am not disposed to ask twice for the same thing.

As I understand the last sentence, INAC will continue to administer the regulations that we feel should be disallowed. Am I reading that right, Mr. Bernier?

Mr. Bernier: The reference to INAC continuing to administer is a comment made in relation to one of the options that was being pursued at one point by the government, which was to effect a transfer of this jurisdiction to the Government of the Northwest Territories. As it turned out, the Government of the Northwest Territories was not interested in exercising that responsibility. This is what the minister refers to here. There has been a recurring notion on the part of INAC that perhaps they did not have to amend the regulations because they were about to transfer the jurisdiction.

Mr. Wappel: I thought that was dealt with by the N.W.T. saying that they were not interested.

Mr. Bernier: Yes, but hope springs eternal. This was recently tried again, apparently, or put forward as a proposal. It was again turned down. The minister is saying here, "We are finally accepting that we are stuck with administering this area for the foreseeable future."

Mr. Wappel: Under those circumstances, after 18 years, it would be my view that we should disallow the regulations without further ado and let the reindeer be unregulated as they migrate.

Senator Moore: That is unbelievable.


Mr. Brien: You mentioned earlier in your recommendation that you would like a schedule. Is the Committee on Aboriginal and Northern Affairs under any kind of deadline in terms of the completion of its study?

Mr. Bernier: No.

Mr. Brien: Then it would be merely to save some time.

The Joint Chairman (Senator Hervieux-Payette): As far as the Department of Indian and Northern Affairs is concerned, time is not a consideration.


Mr. Bernier: If the committee is to take up Mr. Wappel's suggestion, could I in turn suggest that perhaps the scope of any disallowance resolution be restricted to those provisions that the committee has identified as being ultra vires as opposed to the whole of the regulations?

Mr. Wappel: Yes, ultra vires.

The Joint Chairman (Mr. Grewal): Is there agreement?

Mr. Bernier: We will draft a disallowance report and present it to the committee. With translation requirements, it may be a little tight, but we will certainly try to have it done before the Christmas adjournment.

The Joint Chairman (Mr. Grewal): Possibly December 6?

Mr. Bernier: At the latest, possibly before.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The next file is SOR/87-65, another 13-year-old file.


Mr. Bernier: When this file was before the committee on June 7, members instructed that a report be prepared. The committee requested that a reply be furnished to the committee by April 30 providing reasons in support of the minister's position in this file and giving some indication that progress was being made. As I just said, by June 7 the reply had not been received and the committee decided to report its concerns to the Houses. The minister eventually did provide a reply, by letter dated July 26. That letter does not provide the requested reasons in support of the minister's position that the Associate Chief Justice of the Federal Court is authorized to hear compensation appeals notwithstanding the enactment of Chapter 8 of the Statutes of Canada, 1990.

In terms of correcting the situation and getting judges of the superior courts of the provinces appointed, which are the people designated to hear those appeals under the 1990 legislation, the minister reports in July that they have yet to be appointed.

As for the assessor's rules of procedure, which were the initial concerns of this committee, the minister does state that he has requested that work begin on the drafting of new rules.

The question for the committee this morning is whether the committee wishes to proceed with a report in light of this reply by the minister. I should indicate that, following the meeting of June 7, a draft report had been prepared, and we have it on deck. The question is whether the committee wants us to bring this report forward.

Mr. Wappel: At the end of July, the minister indicated that he would ask the Minister of Justice for some follow-up. It is now about five months later, and we have not heard a word, I presume.

Mr. Bernier: No.

Mr. Wappel: He has also asked the Minister of Health to repeal the current assessor's rules. Do you know whether or not they have been reviewed?

Mr. Bernier: No.

Mr. Wappel: As well, the minister missed by a good three months, to the point where we had already prepared a draft report?

Mr. Bernier: Yes.

Mr. Wappel: Perhaps we should send the minister a letter asking him to provide us with what happened as a result of his letter of July 26 and indicate to him that, if no progress has been made, we are prepared to proceed with the next step. He indicates that he will do something. The issue is that we do not know if he did. We should give him a chance to indicate whether he did or did not.

Mr. Bernier: The initial concern of the committee had to do with the rules of procedure made by the assessor. Those rules contain drafting errors, and so on. For 13 years, the committee has pursued the correction of these drafting errors. None of them is of real significance.

In the course of doing this, Parliament amended its statute in 1990. The new statute provided that the assessor - there is only one assessor - and the deputy assessors, would, from the coming into force of that statute, which occurred in 1992, be appointed from among the judges of the superior courts of the provinces, whereas the previous legislation allowed the assessor and deputy assessors to be appointed from among the judges of the Federal Court. As of 1992, this is no longer the case. That is a good number of years ago. In fact, Federal Court judges have continued to hear appeals and act in this process.

Mr. Wappel: Obviously without authority.

Mr. Bernier: Without authority, in the view of the committee. This is the point on which the minister so far has failed to provide us satisfactory reasons.

This came out in the course of testimony when we had witnesses from the Food Inspection Agency before the committee. In an incidental fashion, it was learned that one of the reasons the 1990 statute had not been acted upon was that the deputy minister and high civil servants objected to that statute and thought that the amendments made by Parliament were ill-advised. Inertia, I guess, became the order of the day, with the results that we have.

The committee obviously could hardly resist looking into this aspect of things. It is mostly this aspect of things that is dealt with in that draft report that was prepared, drawing the attention of the Houses to the fact that their will has been deliberately ignored by the executive.

The statute has been brought into force, and under that statute one would expect the Minister of Justice to proceed with the appointments mandated by Parliament, and she has failed to do so. There has been a general failure to enforce the statute.

Mr. Wappel: All of that is true, but it does not appear to me that the Minister of Agriculture is disputing any of this. He is simply saying that they have not been appointed. He does not say they do not have to be; he says they have not been appointed, I will check with my colleague to see what is going on - and that was five months ago.

The Joint Chairman (Senator Hervieux-Payette): To whom do you write? Do you write to the minister who does not have the power to appoint or to the person who is supposed to appoint? Actually, if the Minister of Agriculture wanted to do something, he could not. It is law, but the Minister of Justice is applying this portion of the law. If we are to write to them and give them until just before Christmas to correct the situation and appoint the people and say we will table the report just after Christmas, at the first meeting we will proceed and we will send a copy to the Minister of Justice. Otherwise, we are not helping the Minister of Agriculture because he is in a situation where he cannot proceed with that decision.

The Joint Chairman (Mr. Grewal): In addition to that, the Minister of Agriculture has directed the Minister of Health. However, we did not hear anything from him, did we?

The Joint Chairman (Senator Hervieux-Payette): That does not help.

Senator Moore: The main one is Justice.

The Joint Chairman (Senator Hervieux-Payette): It is probably the same people who were there nine years ago. The position came from the Justice Department.

Mr. Bernier: Agriculture.

The Joint Chairman (Senator Hervieux-Payette): Agriculture, too?

Mr. Bernier: Yes, the Deputy Minister of Agriculture. That is what the witnesses told us, which is recited in the draft report. They did not think it was a good idea to have judges from the provincial superior courts doing this job. I guess they decided that their opinion was better than that of Parliament.

The Joint Chairman (Senator Hervieux-Payette): That is strange.

Mr. Wappel: I think the chair's suggestion is agreeable.

Mr. Bernier: A letter to the Minister of Agriculture with a copy to the Minister of Justice asking that the matter be corrected and proper appointments be made before Christmas; in the alternative, the committee will look at its draft report at its first meeting at the resumption of the session.

The Joint Chairman (Mr. Grewal): Is there no need to send a copy to the Minister of Health?

Mr. Bernier: We could probably add a copy. It does not hurt certainly.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.


(For text of documents, see Appendix p. 8B:1)

The Joint Chairman (Mr. Grewal): The reply seems to be satisfactory. Would you like to comment, counsel?


Mr. Rousseau: Committee members will recall that the committee pushed hard to discover the commission's reasons. As the note attached to this file indicates, counsel is of the opinion that the commission's response is satisfactory. If the committee agrees, we can therefore close this file.


The Joint Chairman (Mr. Grewal): Any comments helping us to close the file? Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.



The Joint Chairman (Mr. Grewal): The next item is SI/97-60 and SI/97-61.


Mr. Rousseau: This item is on the agenda simply to advise the committee that a letter has been sent to the department to bring to its attention a discrepancy between the actual date on which the orders were adopted and the date listed in the Canada Gazette. This discrepancy has no bearing on the coming into force of these provisions. Therefore, no action is warranted. The purpose was simply to inform members.


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

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.


(For text of documents, see Appendix p. 8C:1)

The Joint Chairman (Mr. Grewal): The next item is "Reply Unsatisfactory." You want to take it separately, I guess. It is C.R.C. c. 954, the Indian Estates Regulations.


Mr. Rousseau: Regarding the referenced regulations, the committee challenged the validity of section 14 pursuant to which the minister may direct that a woman shall be deemed to be the widow of a deceased Indian who died intestate. Orders were made pursuant to these regulations, orders which the committee deems unlawful.

In his letter of July 20, 2001, the minister writes that section 14 will be revoked upon the coming into force of the relevant provisions of the Modernizing Benefits legislation. These provisions in fact took effect on September 4, 2001. The repeal of section 14 should follow. I think it would be a good idea to get the minister to confirm this fact.

Moreover, in response to its sixth report, the committee also received an undertaking from the government that the orders made by the minister pursuant to section 14 would be validated. The minister also notes in his letter that his department's officials as well as officials in the Justice Department are currently consulting with a view to exploring options for carrying out this commitment. This response is unsatisfactory.

The only possible course of action is legislation enacted by Parliament. It is hard to imagine that this would require extensive consultations. Counsel therefore recommends that the joint chairs write to the minister again regarding this matter. The orders made by the minister pursuant to section 14 must be validated.


Mr. Wappel: What is "unsatisfactory"?


Mr. Rousseau: The department says that it is consulting with the Justice Department to explore ways of validating the orders. In reality, there is only one possible course of action, and that is for Parliament to enact legislation. We do not see how it could be anything other than a drafting matter.


Mr. Bernier: This foreshadows considerable delay here, the very fact that we are talking about consultations as to remedial action. As my colleague pointed out, there is only one remedial action possible and that is obvious, namely, Parliament validating those orders. There is no other option. A first-year law student would know that.

Senator Moore: He is talking about timing, though. "I am considering the appropriate timing in which to bring..." I think he knows what counsel is saying. I think he is talking about timing with respect to the initiative that he has underway.

Mr. Bernier: The options to properly carry out the commitment would have to do with this interpretation as to when?

Senator Moore: I may be reading too much into that, but that is what I think he is talking about.

The Joint Chairman (Mr. Grewal): He is talking about time because he is concerned about not diminishing the importance of the legislation. You are correct, counsel, that the Justice minister's initiative can be corrected by the option you have given.

Mr. Wappel: There are two issues here. The first issue is S.C. 2000, chapter 12, and he is considering timing on that one. The section issue is section 14 of the regulations, upon which he is considering consulting. The point that Mr. Bernier made is that there is nothing to consult. There is only one way of correcting this problem. Am I getting this correctly?

Mr. Bernier: Yes.

Mr. Wappel: Your suggestion was what, Mr. Rousseau?

Mr. Rousseau: My suggestion was for the chairmen of the committee write to the minister again.

Mr. Wappel: Saying exactly what? Saying that a first-year law student would know that there is only one way of proceeding, and failing that, what?

Mr. Rousseau: Personally, I would probably phrase it differently so someone could understand what that means.

Mr. Wappel: What else do we say?

The Joint Chairman (Mr. Grewal): Let Mr. Lee explain.

The Joint Chairman (Senator Hervieux-Payette): You are knowledgeable about things like this.

Mr. Lee: I think we should continue to draw in the wagons. There are not too many options out there, apparently. We will write back and ask them how they are doing in pursuing the option. They think there are options and they are consulting with Justice to determine that.

If we take the "s" off options, we have one option. I say that tongue in cheek.

At some point they have to conclude their consultations and come back with suggestions on how they will validate the orders.

I take some consolation from the fact that the file is much further advanced than it was five years ago. We are quite close to an end gain and I think we should confirm indirectly.

The Joint Chairman (Senator Hervieux-Payette): We can offer mediation or consultation with us. Both parties can come here and explain why they have not been able to rectify this.

Mr. Lee: A three-minute conversation between our counsel and Justice would probably conclude that there is only one option; then we could get on with it.

The Joint Chairman (Senator Hervieux-Payette): We should ask them about their timing.

Mr. Wappel: Because we have our own timing.

The Joint Chairman (Senator Hervieux-Payette): Yes. Their timing could be one month, three months or three years.

The Joint Chairman (Mr. Grewal): Can you shed some light on the validity of it?

Mr. Bernier: I will not draft it here and now, but you would have a statute containing a provision to the effect that any order made pursuant to section 14 of the Indian estates regulations between certain dates is deemed to have been validly made.

The Joint Chairman (Senator Hervieux-Payette): In this case, it is not an entire bill; it is an amendment to a bill. We can introduce amendments to adjust a bill as part of an omnibus bill. We do not go through the entire process of consultation that we undertake with an entire bill.

The Joint Chairman (Mr. Grewal): Is it agreed that we write that letter?

Hon. Members: Agreed.


(For text of documents, see Appendix p.8D:1)

Mr. Bernier: The central issue in this case is whether the Governor in Council has the legal authority to amend a representation order, whether to correct errors in the order or for any other reason.

The reasons for which counsel believes there is no such authority have been carefully laid out in my colleague's letter of January 9. I wish I could say that the arguments put forward by the responsible minister had been as carefully thought out and expressed, but this is certainly not the case.

First, with regard to the question of functus officio, the minister has clearly read far more into Mr. Bernhardt's letter than is supported by the words of that letter. The context in which my colleague made that remark was that electoral boundaries commissions would appear to be functus officio once they have made their report to the Chief Electoral Officer.

The minister seems to have taken the remark out of context and needlessly argues that the doctrine of functus officio does not apply to exercises of legislative authority. No one ever said it did, least of all Mr. Bernhardt.

The provincial electoral boundary commissions, however, are not exercising a legislative function at all. It is quite clear, when one reads the whole statute, that once those commissions have made a report they are disbanded and cease to function. This is what Mr. Bernhardt sought to summarize by referring to them as being functus.

The minister also claims that the Governor in Council may amend the representation order made by the Governor in Council because section 31(4) of the Interpretation Act provides that a power to make regulations includes the power to amend the regulations. What is unfortunately absent from the reply is any recognition that this rule, as pointed out by Mr. Bernhardt, will apply unless a contrary intention appears in the statute.

The first two and a half pages of Mr. Bernhardt's letter set out at length the very reasons for which the Electoral Boundaries Readjustment Act does indeed disclose a contrary intent. All this is simply overlooked in the minister's reply.

Another aspect of that reply that deserves comment is the emphasis that the minister places on the fact that 31(4) of the Interpretation Act provides that a power to amend shall be exercised in the same manner and subject to the same conditions as applied to the original exercise of power.

This was also emphasized by Mr. Bernhardt. The minister fails to acknowledge and deal with the fact that in this case those conditions were not followed in the making of the so-called amendment to the representation order.

We then have the interesting argument that the provincial boundary commissions, which are an essential part of the process when it comes to making an original representation order, suddenly can be dispensed with when it comes to amending the order, assuming such a thing could be done.

Furthermore, the only authority of the Chief Electoral Officer is to prepare a draft representation order in accordance with section 24 of the act, and a copy of the relevant provisions of the statute has been included in the material.

As I said, the authority of the Chief Electoral Officer is to prepare a draft representation order in accordance with section 24 in the specific circumstances outlined in that section, including the fact that the Chief Electoral Officer is acting on the basis of reports made by the provincial commissions. If there are no reports from provincial commissions, there is nothing for the Chief Electoral Officer to do.

Once a draft order is out of his hands, the Chief Electoral Officer is simply without jurisdiction to prepare any other order, whether it be called a revision, by way of amendments, or whatever.

In summary, the reply that has been received is entirely inadequate, in our view, and we believe that the matter should definitely be pursued with the minister.

Mr. Lee: This particular type of problem could recur because we do electoral boundary readjustments every 10 years. In fact, there is one in the pipeline right now. Is there no other mechanism in the statute that would provide for a correction like this? Have we drafted an electoral boundary readjustment procedure that requires these things to be right the first time?

Mr. Bernier: Clearly, Parliament attaches a great deal of importance to this procedure, for understandable reasons.

First, there was an expectation that the representation order would not contain errors. Let us look at the process. We have a provincial commission, proposed of more than one appointed individual that prepares this. Therefore, in theory, a number of people are reviewing this document. It is then sent to the Chief Electrical Officer, who must immediately send it to the Speaker of the House. It is then referred to a committee of the House. Again, a number of people are examining this document. The committee may make recommendations and so on. It is then sent back to the Chief Electrical Officer, and only then does he prepare a draft representation order.

The Chief Electoral Officer again looks at it. One would think the document would be vetted for errors, even though by then 25 or 30 people have looked at it.

It is then sent to the Governor in Council for bringing into force by Order in Council.

A number of people through that process have looked at this order. You would think an incorrect boundary of a riding would have been caught. Having said this, clearly, this is not what happened here. Some errors slipped in.

As I pointed out earlier, I do not think you can bring back the commissions. Once the commissions have done their job under this statute, their work is done.

If you look at section 27(4) of the excerpt from the statute that is attached to the material, the marginal note is "Incorrect references." Clearly, one type of error here was anticipated by Parliament, and Parliament dealt directly with the matter. It says that whenever there is an incorrect reference to a municipality "....within the territorial limits of the electoral district...the reference shall be taken to be to that municipality or other place."

In other words, you can deem that the correct reference has been made.

This further reinforces our view that there is no power in the Governor in Council to amend. If there were, there would be no need for this provision because you would have expected them to simply amend the representation order and correct the reference.

Based on my reading of that statute, I think what Parliament expected is that if there are still errors that are so important that they warrant correction this will be done directly by Parliament by statute at that time, which is the only option you have left.

Mr. Lee: To wrap up, because there is another electoral boundary readjustment in the pipeline and there is a clock running on it, it is quite likely that we will have new electoral boundary definitions and confirmations before our file ever gets to a conclusion. Therefore, I suggest that if we are looking for a solution we could look for it in the current process. Should we look for an acknowledgement that we cannot amend this way, in the way that it has happened, look for an acknowledgement of that, and then look for a resolution in the new electoral boundary process?

Mr. Bernier: Certainly, Mr. Lee. In terms of the actual errors that were made, certainly we will not propose that one of you introduce a bill this afternoon to correct those errors. What is important, however, is to get an acknowledgement from the government that it does not have the power to amend the representation order once it is brought into force.

Here, this was done for the purpose of correcting obvious errors. The minister claims that the Governor in Council has the power to amend in order to correct errors.

Legally, however, if you have the power to amend to correct errors, you necessarily also have the power to amend for any other reason. The claim here, today, is that the amendments that were made were made to correct errors. However, that may not be the case tomorrow, if one concedes that there is a right to amend a representation order.

You might find in another instance that the amendment is made not to correct an error but to alter the boundaries that have been fixed by the provincial commission and approved by Parliament.

Mr. Lee: Let us make that point on the record.

Mr. Wappel: Mr. Bernier, what about section 27(2)? I have not read or absorbed the whole act, but there is provision for the Chief Electoral Officer to finally determine the electoral district in doubtful cases. I know it refers to subsection 1.

Mr. Bernier: Yes, that subsection concerns the interpretation of the order, not amending the order. Subparagraph (1) is the rule directed at construction of order. That is the interpretation of a valid representation order.

Mr. Wappel: Does it deal with descriptions of electoral districts?

Mr. Bernier: Correct.

Mr. Wappel: Where the electoral district is improperly described, does he not have the power to make the final decision?

Mr. Bernier: Yes, he does. Again, the whole of section 27, as I have said before, militates against a finding that the Governor in Council has authority to amend the order. Clearly, if you read section 27 as a whole, Parliament anticipated there might be errors or ambiguities in the representation order and provided these powers to the Chief Electoral Officer or enacted a rule as in subsection (4), which is really a rule of interpretation, to provide for and cover those cases.

In other words, if there is an ambiguity in a boundary description, paragraph (2) tells you that we will authorize the Chief Electoral Officer to make a final determination, because practically you need to know. However, that is not the same thing as amending the representation order. That is exercising a power conferred directly by statute on the Chief Electoral Officer.

Here, what we are dealing with is the Governor in Council purporting to have the authority to amend the representation order - in other words, to do himself the job of the Chief Electoral Officer that Parliament said would be done by the Chief Electoral Officer.

The Joint Chairman (Senator Hervieux-Payette): If it were done by the Chief Electoral Officer, would it be valid?

Mr. Bernier: The Chief Electoral Officer does not have the power. At the formal level, we have to make a difference between amending an order and interpreting or applying an order. The rule here, section 27(2) that has just been referred to by Mr. Wappel, is something that applies in the context of applying an order practically, from an administrative point of view. It does not authorize the Chief Electoral Officer to amend a representation order. He is merely interpreting it.

The Joint Chairman (Senator Hervieux-Payette): Let us talk of concretes. If a street is missing, do you amend or correct?

Senator Finestone: I thought the electoral officer could do it.

The Joint Chairman (Senator Hervieux-Payette): I want you to tell me if it is a correction or an amendment.

Mr. Bernier: It is our view of the statute that you cannot amend a representation order that has been brought into force.

The Joint Chairman (Senator Hervieux-Payette): My question is, what is an amendment or a correction?

Mr. Bernier: An amendment and a correction would be the same in this context. You are changing the text of the formal instrument known as a representation order. Whether I say it is a correction to a regulation or a change, or an amendment to a regulation, it all comes to the same thing.

Let us say that we have an ambiguous boundary description in the representation order. No one can amend the boundary description or change the formal text in which that representation is made. In some cases, what section 27 does and what Parliament has done is to authorize certain officials, in one case the Chief Electoral Officer, to interpret, in a case where there is a doubt.

...the Chief Electoral Officer shall finally determine the electoral district, if any, of which any area not expressly referred to in the representation order was intended to form part...
Let us say we have a whole area that is not mentioned. This says - and this is not an amendment to the representation order - there is a distinct power given to the Chief Electoral Officer to make a determination: "Well, I think they intended to have this area in this riding." He just makes that determination. This is not an amendment. He then reports that determination to Parliament, to the Speaker in the session next following.

The Joint Chairman (Senator Hervieux-Payette): My interpretation of a border is that it is the outline. What is inside is where there are usually mistakes. Certain streets are missing or were not there the last time. Even though you have 100 people studying it, you must be on the ground. The last election came very fast and we had a new electronic computer drawing the map. I am quite sure that the tests were not totally completed so there might have been some loopholes in the descriptions of each riding.

From what you are saying, however, you know you cannot add. If you are staying inside and there is something missing, the Chief Electoral Officer can say, "This street has the right to vote. They are in that district." However, you cannot modify the border.

Mr. Bernier: I want to be clear about this. Technically, you cannot modify or amend a representation order. I am talking about the particular document. In fact, practically, certain corrections or adjustments may be made, provided they fall within the cases given in the statute by Parliament itself. In section 27, Parliament has provided for certain cases, as well as a remedy. In other cases, in our view, there is no remedy available. If there is an error in a representation order that cannot be dealt with under section 27, then the only way it could possibly be dealt with, unless it is in a future representation order, of course, is by Parliament itself by way of statute.

Mr. Wappel: Unless the statute itself were to authorize that, amendments could be made by the Chief Electoral Officer or by the Governor in Council; is that right?

Mr. Bernier: Of course.

Mr. Wappel: That would be another way of dealing with it, would it?

Mr. Bernier: Yes. From reading this statute, one assumes that, clearly, Parliament did not want that, for a number of reasons.

Mr. Wappel: No. I assume they forgot that.

Mr. Bernier: Once you give your power to amend, it would have to be carefully circumscribed. If we accept the claim of Minister Boudria - and I come back to that because it is an important point - that we have a power to amend the representation order to correct errors, the power here relied on to amend is implied. It is an implied power, and there is no limitation to the correction of errors. If he can amend to correct errors, legally, necessarily, logically, he can amend for other reasons as well.

Mr. Wappel: Why?

Mr. Bernier: Because, Mr. Wappel, there is no doctrine in support. If you are relying on a partial reading of section 31(4) of the Interpretation Act that the power to make an order includes the power to amend that order, then that authority is not qualified or restricted in any way. It is a power to amend, period. If Parliament could say, "You may amend only to correct errors," and if that has not been done and you accept the power to amend, then the Governor in Council could also amend a representation order approved by the House of Commons in order to change the whole boundary.

Senator Finestone: It is very undemocratic.

Mr. Wappel: It is a gerrymander.

Mr. Lee: I do not need an answer to this now, but is it possible that Parliament could make use of the Miscellaneous Statutes Amendment Act to correct this kind of an error? I just throw that out as something you may want to consider in seeking a resolution.

Senator Finestone: If this power is there, it is wrong. It is very undemocratic and it is anti-Canadian policy. In my own experience, I know they had left out a 10-block area at one point, and then a whole new district that was just being built. I believe that what Senator Hervieux-Payette said is correct. It was within what was on a map within defined boundaries. It was not outside defined boundaries.

The Joint Chairman (Senator Hervieux-Payette): My impression was that the boundaries could not be amended but that within the boundaries, if there is a mistake or something was missed, then you cannot deprive these people of their right to vote just because the commission has not seen them. To say that there will always be a perfect document for the whole of Canada is impossible. There will always be something missing and there will always be human error concerning the area within the boundary. I am not talking about the boundary but within the boundary.

Mr. Bernier: This is the exact situation that Parliament addressed in section 27(1). In that section, Parliament is saying that whatever may be in a representation order, all of the province must be represented in an electoral district. This is where there is the power of the Chief Electrical Officer. If there is a doubt here, and we have this area and it does not appear to have been included, he will settle. He has been given that power by Parliament directly to avoid and to ensure that everyone's right to vote is there. He has the power to make a determination and say, "This area is in this electoral district," and he then reports that determination to the Speaker at the next session.

I am, perhaps, emphasizing the obvious, but the very fact that Parliament put in these provisions, I think, is indicative that it did not intend the Governor in Council to have the power of amendment concerning the representation order. Otherwise, why have this power in the Chief Electoral Officer?

Mr. Wappel: I do not want to prolong this, but I do not think Mr. Bernhardt's letter sets out what the amendment did. I think the chairman is correct that, if a boundary is done and described, everything inside it is inside it. That is obvious. If someone has made a list of streets and forgotten a number of them, that is not an amendment, that is just correcting the obvious. Are you telling us, then, that for these two electoral districts something was done with the actual boundaries? Is that what happened?

The Joint Chairman (Mr. Grewal): That is what happened.

Mr. Bernier: To be perfectly honest, Mr. Wappel, we did not look at what they did because it is immaterial and irrelevant. Our view is that there is no power to amend, whatever your purpose.

Mr. Wappel: Suppose that everyone is talking about an amendment that was really something within the jurisdiction of section 27(2).

Mr. Bernier: But there are no amendments within the jurisdiction of section 27(2).

Mr. Wappel: Suppose everyone is calling them amendments but they are not really amendments. If you have not looked at what they did, then how do we know that it was in fact an amendment, regardless of whether a person is calling it an amendment or an error?

Perhaps I am not making myself clear. If you do not know what the order or proclamation was changing, the representation order, then how can you call it an amendment?

Mr. Bernier: Because any change to a statutory instrument made by another statutory instrument is an amendment in law. It is legally an amendment.

Mr. Wappel: All right. It is totally irrelevant, then, as to what the actual change was; is that right?

Mr. Bernier: Yes, from the point of view of the issue that is raised, yes, it is irrelevant.

Mr. Rousseau: We have the text.


The complete text of the proclamation is appended to the correspondence. It concerns amendments. I have not read the document in detail, but it does contain a description of electoral boundaries.


Mr. Bernier: There is no doubt that these are amendments.

Mr. Rousseau: I am not sure of the nature of the amendments, but I am sure that they are amendments and they are called amendments by the person who made them.

The Joint Chairman (Senator Hervieux-Payette): You have not checked with the previous description and this description, if I understand correctly, but this is the new description of these districts, is it?

Mr. Rousseau: Yes.

The Joint Chairman (Senator Hervieux-Payette): All right.

The Joint Chairman (Mr. Grewal): I heard that the redistribution of boundaries has been planned. My understanding is that it cannot start before 2003. Is that correct, Mr. Lee?

Mr. Lee: That is right. There is a clock running now that would cause the next general election, if it happened in the ordinary course, to be held on new boundaries, if that general election were held in June 2004.

Mr. Wappel: Or after.

Mr. Lee: That is right, if the electoral boundary procedure proceeds as per the statute without any delay or interruption.

The Joint Chairman (Senator Hervieux-Payette): That is why suggesting that this would be enacted as being the new border would legalize it if it is before June. After June, it would at least tell them not to repeat the same mistake in the actual description.

The Joint Chairman (Mr. Grewal): We do have time if we want to correct something quickly. If we take quick action, we can probably do it before the next redistribution of the boundaries.

Mr. Wappel: It would appear, since this was made January 1998, assuming that what is said is all correct, that in these four districts the election was held on amended boundaries that were illegal in the year 2000 because there was no legal authority on which to amend the boundaries, yet they were amended, and in these four districts these were the amended boundaries upon which the election was held. Am I interpreting that correctly, Mr. Bernier?

Mr. Bernier: At this stage, before reaching that conclusion, I would want to look at what was done. I am not certain the boundaries were changed. For all I know, incorrect geographical coordinates were corrected without really a change in the boundary in any real way. To answer that question, one would indeed have to compare the original representation order.

The Joint Chairman (Mr. Grewal): This is a completely new writing.

Mr. Bernier: Probably as far as the courts are concerned, you would know that. The deed is done, and no one would loose his or her seat.

Mr. Wappel: Could you bring us back to what you are recommending?

Mr. Bernier: I am recommending that we write again to the minister, indicating that his reply is not adequate, indicating why his reply is not adequate, and restating the objection to the making of that amendment.

The Joint Chairman (Senator Hervieux-Payette): To conclude, can we specify what can and cannot be done, so it is clear?


I assume that is why he feels he has the authority to do that.

Mr. Bernier: He feels his authority is implicit and does not flow from section 27. I do not think the minister or the Governor in Council looks to section 27 to make corrections. I believe he looks to the power invested in him, as in every regulatory authority, to amend regulations he himself made. As we pointed out, this rule does not apply. Admittedly, the Interpretation Act says that a person to whom legislative authority has been granted has the power to amend that legislation. However, the act always includes a reference to "unless a contrary intention appears." In this case, it is obvious from reading the act that a contrary intention exists and that section 27 proves that Parliament was merely authorizing the making of an order, not authorizing any subsequent amendments to that order.

The Joint Chairman (Senator Hervieux-Payette): This should be specified. We should also reissue our instructions to be certain that we are clearly understood.


The Joint Chairman (Mr. Grewal): We should also be cautious of the timing of any action. We should emphasize that since we have an opportunity to fix their errors it may be preferable if you give them a tight time frame for the expectation of taking any action.

Mr. Bernier: Other than reaching an agreement on the proper construction of the statute in this case, I am not sure there is practically any action that would be required to be taken or any remedial action.

As someone pointed out, elections have been held. The main issue is simply obtaining the recognition that if there are any changes made to a representation order there can be no changes. If there are any adjustments, they must be done under section 27, and the Governor in Council has no authority to amend such an order.

The Joint Chairman (Senator Hervieux-Payette): We can recommend, vis-à-vis the actual regulations or amendment that he has done, that when he goes through an omnibus bill or miscellaneous statutes bill he could incorporate this, so that when they draft the new bill these four will be correct and the description will be correct. We do not loose anything by doing that.

Is it agreed?

Hon. Members: Agreed.

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



The Joint Chairman (Senator Hervieux-Payette): The next item on our agenda is SOR/82-171, Progress.

Mr. Rousseau: Madam Chair, regarding the referenced regulations, the promised amendments were submitted to the Privy Council Office and are slated to be examined by a special Cabinet committee at an upcoming meeting. It is suggested that committee counsel write to the department again to ascertain if matters are progressing according to plan.


The Joint Chairman (Senator Hervieux-Payette): If there are no questions, we can move on to our next item, SOR/95-571.

Mr. Rousseau: The RCMP informs us that the process of drafting the promised amendments has been undertaken. Counsel will monitor this case in its customary fashion and will keep the committee apprised of all developments.


(For text of documents, see appendix p. 8E:1)

The Joint Chairman (Senator Hervieux-Payette): The next item under Part Action Promised is SOR/2001-38.

Mr. Rousseau: First of all, it should be noted that SOR/2001-38 calls for five minor amendments to be made to the regulations, as requested by the committee during a review of the previous amendment. Two new promises were made to address two drafting concerns noted in connection with SOR/2001-38.

The Department's response to point number 3 is deemed unsatisfactory for the reasons set out in the comments prepared by the committee. Counsel for the committee therefore recommends that this third point be pursued through a letter to the Department.

The Joint Chairman (Senator Hervieux-Payette): Are we satisfied then?

Mr. Rousseau: Except for the third point, for reasons spelled out in the note attached to the file.

The Joint Chairman (Senator Hervieux-Payette): What are we recommending?

Mr. Rousseau: That counsel pursue the matter through a further letter to the Department explaining why its response is deemed unsatisfactory.

The Joint Chairman (Senator Hervieux-Payette): Are there any comments? We are very pleased to see that two points have been settled, but we would be even happier if the third issue were resolved. Would you not agree?

Mr. Rousseau: Yes indeed.



(For text of documents, see appendix p. 8F:1)

Mr. Bernier: In this case, Mrs. Cochrane's letter of August 13 indicates that there has been considerable progress made in correcting the situation created by the illegal freezing of grants in lieu of taxes in 1993. Subject, perhaps, to confirmation with the Federation of Canadian Municipalities that they are following up on that issue, I think that at this time the committee could well consider that it has fulfilled its responsibilities in relation to this file.

Is it the inclination of the committee to verify with the federation that they are seized of this? They represent the municipalities who should have received those monies. Presumably, they have as much interest in seeing the proper resolution of this as this committee. I think the committee could rely on them to ensure that the proper reimbursements are made.


Mr. Brien: Not all municipalities belong to the Canadian Federation of Municipalities. Two or three groups of municipalities in Quebec are not members. This only provides a partial view. Clearly, we should write to the provincial authority to find out which of these municipalities has or has not been reimbursed by the federations.

The Joint Chairman (Senator Hervieux-Payette): Then we would need to write to all of the provinces to find out if their municipalities are satisfied. I am assuming that we have done our duty and that if the municipalities were dissatisfied, they would have told us so given that funds are involved.

Mr. Bernier: That was the problem encountered by the committee. It was assumed that municipalities were abreast of the situation, namely that they were owed money for the year 1993. At some point, the department was very reluctant to advise municipalities that as a result of an invalid regulation, it owed them some money.

The Joint Chairman (Senator Hervieux-Payette): My colleague from Quebec is telling you, as I am, that the federal government does not write to municipalities under provincial jurisdiction. They have their own provincial representatives.

Mr. Brien: Why not ask the municipalities to whom they remitted these sums and whether or not the government reimbursed them? They should be apprised of the situation.

Mr. Bernier: As of this moment, no one has been reimbursed. The Minister, Mr. Gagliano, sent a letter to many of his colleagues asking them to advise Crown corporations within their area of responsibility of the potential for outstanding liability in the case of municipalities in which their buildings or properties are located. The department also informed the Canadian Federation of Municipalities that owing to the passage of an unlawful regulation, some money may be owed to them by these Crown corporations.

Right now, we have no documented proof that all Crown corporations have in fact reimbursed the money owing to municipalities in which they are located. This being said, the committee's responsibility is to examine regulations and statutory instruments. The unlawful regulation has been withdrawn and the department has acknowledged that it was invalid. One could argue that the committee has fulfilled its mandate.

Mr. Brien: I agree with the chair.


(For text of documents, see appendix p. 8G:1)

The Joint Chairman (Senator Hervieux-Payette): We now move on to SI/2000-50. Why is there a question mark after the heading "Reply Satisfactory"?

Mr. Bernier: The department is of the opinion that it would be preferable if the missing references in two of the provisions in the English version of the regulations were included. However, it does not feel that an amendment to the provisions in question is warranted.

Moreover, the general feeling is that in future, in the case of similar orders, the pertinent references should be included. The question mark is there because on the one hand, there is an admission that the version of this order is not as clear as is might be, but there is no willingness to amend it. However, there is a willingness to adopt the practice in the case of future orders.

The Joint Chairman (Senator Hervieux-Payette): Since the responsible officials with the Department of Indian and Northern Affairs are delinquent, I do not see why we cannot instruct them to amend the regulations. It is not all that difficult. They often do that. Otherwise, the matter will still not be settled in the year 2020.

We should continue to write to the department, requesting the following: "Now that you have agreed there is a problem, amending the regulations would be a mere formality." The department is being rather cavalier about this.

Mr. Bernier: One of the reasons that may have prompted the department to respond in this manner is that these orders apply for a limited period of time. According to section 2 of the order, the withdrawal from disposal applies for the period beginning on the day on which the order is made and ending on March 31, 2002. Therefore, as of March 31, 2002, the order is no longer in force.


(For text of documents, see appendix p. 8H:1 )

The Joint Chairman (Senator Hervieux-Payette): The next item is SOR/99-335, Private Buoy Regulations.


Mr. Bernier: The department, in this case, agrees with the objection to section 5(2) of the regulations. The reason for the question mark is that when she was asked to provide an assurance that this section would not be relied upon pending its revocation Ms Green replied that her department had "advised the Coast Guard" of the concerns. Is this good enough or does the committee wish to have a clear confirmation by the Coast Guard that this illegal provision will not be used pending its revocation?

Mr. Wappel: The latter would be my view. I had written down here, "yes or no?" It is a wishy-washy sentence. It is not just our concerns; if they are accepting our position, it should be everyone's concern. They should not be collecting the money. We should follow it up and ask for a specific undertaking. It will not be relied upon.

Mr. Bernier: It is a penalty provision.

Mr. Wappel: It is a penalty provision. This is definitely too wishy-washy. We should write and ask for a specific undertaking.

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

Hon. Members: Agreed.

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



(For text of documents, see appendix p. 8I:1 )


(For text of documents, see appendix p. 8J:1 )


(For text of documents, see appendix p. 8K:1 )


(For text of documents, see appendix p. 8L:1 )

The Joint Chairman (Senator Hervieux-Payette): We now move on to items under the heading "Action Promised," SOR/98-531, SOR/99-105, SOR/2001-50 and SOR/2001-156.

Mr. Rousseau: Regarding the four referenced regulations under the heading "Action Promised," let me bring you up to speed on the number of relevant amendments.

The results are rather good. In the case of the four referenced regulations, a total of 54 regulatory provisions were amended as promised. Furthermore, promises were made to amend a total of 38 legislative provisions.


Senator Moore: How many items was it again, counsel?

Mr. Rousseau: Thirty-eight amendments have been promised and 54 have been made.


Mr. Rousseau: This is in regards to the four referenced regulations under the heading "Action Promised."


Mr. Bernier: I would simply add that there are 43 instruments submitted to the committee without comment.

The Joint Chairman (Senator Hervieux-Payette): All right.

The committee adjourned.

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