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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 9 - Evidence

OTTAWA, Thursday, November 22, 2001

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:40 a.m. for the review of statutory instruments.


Mr. Lee: I should like to record the fact that Mr. Grewal, the joint chair of the committee, has designated me acting chair for today.

Do I have the consent of the committee?

Hon. Members: Agreed.

Mr. Derek Lee (Acting Joint Chairman) in the Chair.

The Acting Joint Chairman (Mr. Lee): Are there any preliminary matters?

Mr. François-R. Bernier, General Counsel to the Committee: I have one item. A letter came in yesterday, and I would like direction from the committee. The committee had decided to have the Deputy Minister of the Department of Agriculture and Agri-Food and the Executive Director of the National Farm Products Marketing Council appear before the committee in relation to three orders. The request was made initially because two letters, one dated July 10, 1996, and a 1997 letter, were still without reply despite numerous attempts to obtain a reply. A reply has been provided as of yesterday.

The question before us is this: Does the committee still want to hear these witnesses in order to explain why letters, one dated in 1996 and the other 1997, could only be replied to in 2001, or is the submission of the reply considered to be satisfactory? I should note that there is no explanation for the failure to reply earlier in the letter that was received yesterday.

The Acting Joint Chairman (Mr. Lee): Is there any comment respecting the adequacy of the reply in those letters?

Mr. Bernier: This is very much a preliminary look at it, but in one case the reply sidesteps the real issue.

The Acting Joint Chairman (Mr. Lee): Is it your view that members would or should have additional questions?

Mr. Bernier: I would expect so.

Mr. Macklin: I would think that if, in the opinion of counsel, we do not have a full and complete resolution of the matter, then it would be appropriate to bring them forward. It is not retribution; rather, it is time that we deal with issues like this.

The Acting Joint Chairman (Mr. Lee): If there are no other comments, it looks like we have their attention. Perhaps one of two officials might be sufficient, rather than two of two, unless it is the view of counsel that we should have two.

Mr. Bernier: Part of the problem is that the instruments involved are made by local marketing boards that have delegated powers by federal legislation to regulate interprovincial marketing. Traditionally, they have proven a little difficult to deal with because these boards sit locally in various provinces. To them, the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations could be in China for all they care. The Department of Agriculture and Agri-Food, which is technically responsible for the administration of the Farm Products Agencies Act and the Agricultural Products Marketing Act, operates somewhat at arm's length; and then you have the National Farm Products Marketing Council. Between these various actors what we have found over the years is that the buck gets passed quite a bit. We end up with these situations where we cannot seem to secure replies in good time.

Perhaps that is an issue that could also be dealt with, if the committee is to have these witnesses. The committee could have witnesses from both the National Farm Products Marketing Council and the Department of Agriculture and Agri-Food. The committee could explore with them whether these people have suggestions on how this could be made a little more efficient.

The Acting Joint Chairman (Mr. Lee): In your view, both witnesses would be practical and necessary if we are to make some progress in vetting the problems; is that right?

Mr. Bernier: I think so.

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

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried. Is that satisfactory, counsel?

Mr. Bernier: Yes.

The Acting Joint Chairman (Mr. Lee): That deals with the preliminary matter. We will now go to the agenda.


The Acting Joint Chairman (Mr. Lee): The first item on our agenda is "Letters To and From Ministers."

Mr. Bernier: The legislation referred to in the correspondence has now been introduced as Bill C- 35, An Act to amend the Foreign Missions and International Organizations Act. The bill was given first reading on October 1, 2001, and I believe may have gone to second reading yesterday.

Mr. Myers: Yes.

Mr. Bernier: Progress of the legislation will be monitored and we will report back to the committee.

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

Hon. Members: Agreed.


The Acting Joint Chairman (Mr. Lee): The next item is the fourth report of this committee.

Mr. Bernier: The minister's reply indicates that Mr. Manley is of the view that the objectives set out in the joint committee's Report No. 5 of February 13, 1979, have been met. While this is, perhaps, a debatable point to a certain extent, I also feel that some changes have been made, although not through legislation. They go part of the way in meeting the concerns set out in that report of the committee.

In light of this and the fact that the minister is quite clearly unprepared to consider further legislative amendments, my suggestion to the committee would be to accept the minister's reply as satisfactory and close this file.

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

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.


The Acting Joint Chairman (Mr. Lee): The next item is Northwest Territories Reindeer regulations. This file is as old as the hills. It predates Mr. Wappel.

Counsel, where do we stand on this?

Mr. Bernier: The file was before the committee at its last meeting. It is brought back in order to get clarification of the committee's instructions.

The letter to the minister of May 23, 2001, included a statement that the committee would consider disallowance of the whole regulation, unless the minister gave the committee a firm undertaking that the amendments that had been promised would be made within a set period of time.

In his letter of October 1, the minister indicated that his department would begin work on a revision immediately, but did not give a completion date. Given the failure of the minister to provide a date for completion, members felt that the committee should go ahead with disallowance.

At that time, I asked the committee whether disallowance would be disallowance of the whole regulations, as originally suggested by the chair, or only of those provisions that are ultra vires. The answer was that only the ultra vires provision should be disallowed.

Review of the file following the meeting showed that there is only one ultra vires provision. It is a provision that seeks to impose statutory liability on owners of dogs that molest reindeer.

The other provisions objected to by the committee were provisions that conferred unframed discretionary powers on the minister with regard to the issue of some licences and authorizations.

The question on which we would like clarification is this: Does the committee wish to proceed with the disallowance of section 15(5) alone on the grounds that this is the only ultra vires provision, or does the committee want to go back to a disallowance of the whole regulations, which then includes, the committee should be aware, certain provisions that provide for the issue of export permits, for example, for the export of meat and reindeer products?

Mr. Macklin: Clearly, if it is ultra vires, we should proceed. I do not think that we should let something go by if it is ultra vires, unless for some reason it is of no force and effect.

Mr. Bernier: There is certainly no problem with disallowing only section 15(5), which is ultra vires. I am sure most dogs in the Northwest Territories have other things to do than molest reindeer.

The committee should be aware that disallowing this one section leaves outstanding some five or six objections to other provisions of the regulations that would not be dealt with in the disallowance.

Mr. Macklin: Clearly, the ultra vires one needs to be addressed. I should like to hear some more information on the other areas, to ensure that we should attend to them as well because, again, our job, is it not, is to scrutinize the regulations?If they are either beyond their powers or outside their jurisdiction, we should deal with it, despite the fact that it has gone on for years.

The Acting Joint Chairman (Mr. Lee): While you are doing that, could you also comment on how the repairs took place to the unframed delegated discretionary powers?

Mr. Bernier: Mr. Chairman, I will give you an example of one such provision to which the committee objected. I refer to section 5(4), which states that a licence may be suspended, cancelled or the conditions thereof altered at any time by the minister or any person authorized by him for any cause that to him seems sufficient. The committee objected to this wide and unfettered discretion and said that you should have criteria that set out when the minister may suspend or cancel a licence.

Those suggestions were accepted by the department back in about 1983. Those are the amendments for which we are waiting. However, I do not think one can say that section 5(4) is ultra vires. It is inadequate in the way it is now drafted. It should be more complete and it should provide criteria for the exercise of the discretion.

In any exercise of disallowance, the question is this: Do you disallow a provisions such as this, which may well serve a useful role right now in terms of practical administration of the regulations, or do you step back and wait, exercise a little more patience and wait for amendments?

Senator Finestone: The provision relating to reindeer harassment by the dogs should be disallowed. Since they have not listed their necessary descriptions since 1983 also weighs in favour of disallowance. That is the only way those ministers will learn. That is what we should do on both of those.

Senator Moore: When the minister, in his letter of October 1, says, "INAC will commence the regulatory review procedure immediately" is that one of the things that is to be provided for in the new legislation?

Mr. Bernier: Yes, that is correct.

Senator Moore: That has been pending since 1983; is that correct?

Mr. Bernier: That is correct.

Senator Moore: I agree with Senator Finestone.

Senator Bryden: A quick reading of the paragraph in the minister's letter would suggest that there are many things at play up there. Legal processes are ongoing; there are environmental implications; and a number of things are being negotiated, dealt with and so on. My question is this: If we disallow, are we better off to disallow all of the regulations that are there, as against disallowing the ultra vires item, and perhaps a specific other one if that makes us feel good, and have some regulatory process in place and extend our period of time on the substantive changes? The request is until the fall. What is the implication if we disallow everything? Are we left with a vacuum that prevents things from working up there?

Mr. Bernier: One is left, I presume, with no regulation relating to the management of reindeer herds in the Northwest Territories. I would point out, and the department recognizes that, that there is only one reindeer herd at present in the Northwest Territories. It is a private herd. In that sense, those provisions or regulations that concern management of reindeer herds do not apply to anyone.

The one provision that is still being used that is contained in these regulations is the provision regarding the export permits. The department wishes to retain the ability to control the export or require a permit for the export of reindeer and reindeer parts. That is mostly because the reindeer products may be easily mistaken for caribou. That is where the concern lies. They wish to retain authority over reindeer to ensure that caribou products are not exported under the guise of or disguised as reindeer.

Senator Bryden: To turn it around, then, can you disallow everything except the ones that are essential?

Senator Moore: Are they better off with a fresh start here? That is what the senator is asking.

Senator Bryden: Are we leaving them with a vacuum?

Mr. Bernier: To answer your first question, yes, it would be possible. The provisions are severable to leave out the export provision, leave that one standing and disallow the rest.

If you look at the entire regulation, given that it is a regulation that provides for the issue of licences to have the right to maintain a reindeer herd, and so on, those are all provisions that were questioned by the committee. If those provisions are to be disallowed, yes, there certainly is a vacuum.

Senator Bryden: That is my point. Do we not need to have something, if we can, to allow it to be regulated, although not quite to our satisfaction, and give them a little more time, that is to say, disallow the ultra vires elements and if there is something about dogs eating reindeer, then we can do that? To leave it leaves us with nothing. The enforcement people are left with nothing to manage is my point.

I would suggest, if I may, a recommendation from our counsel to indicate what would be not just technically and legally possible for us to do, but what is an advisable position for us to take, a recommendation that says, "This would allow it to work and we can still maintain our supervision over this." How would you suggest we do this?

The Acting Joint Chairman (Mr. Lee): That is a tough question for counsel, because it is really the members who make those decisions.

I should like to make two or three points. First, the minister appears to have shown conspicuous good faith here in recognizing the age of the file and the department's inability to get rid of this area of regulation. They tried. This issue has been flipped around between ministries. No one wants to take care of this reindeer herd.

In the end, the department has accepted that they are stuck with the job of regulating this envelope. We have identified one element of these regulations as ultra vires, in relation to which we do not have much doubt.

The rest of the regulations are, perhaps consensually among us, necessary to regulate in whatever way they will, this herd of reindeer. While our legal debate has gone on for some 17 or 18 years, I see from the correspondence that the herd has actually been moved, and certainly there are reindeer that have come and gone in the meantime and we are dealing with their offspring. The minister, in an earlier correspondence, invited us to go ahead and disallow if that were to happen.

In the end, I do not think we would find an agreement to gut the entire regulation, because that would leave us with an unprotected herd. If we were to get rid of the one element that is clearly ultra vires, what we have removed from the regulatory authority is the ability to place liability on the owner of a dog that the owner may use to go and hunt down a reindeer. That could still happen.

Perhaps a disallowance of the one section would allow us - for the sake of the reindeer and our colleagues who have come before us - to firm this up and do our job and allow the ministry more time to reconfigure these regulations in a way that suits them. It could not possibly be a priority in the scheme of things. I understand that. There is one reindeer herd that is privately owned. There is an issue up there, whether or not these reindeer are domestic or wild. There are a thousand other issues in the North.

Senator Moore: How does this issue come under federal jurisdiction, then?

The Acting Joint Chairman (Mr. Lee): You can own uranium and it falls under federal jurisdiction. You can own the uranium, but you cannot move it without a federal licence. That is what has happened to the reindeer.

Senator Moore: Is there no responsibility or obligation by the owner of the herd to provide protection?

The Acting Joint Chairman (Mr. Lee): Protection from the dogs? For the owner of the herd, it is a business.

Senator Moore: Yes, but we are protecting his business.

The Acting Joint Chairman (Mr. Lee): If you own cattle in a meat operation, the meat is federally regulated when you slaughter and sell. It is the same thing with the reindeer, if you export the reindeer alive or passé.

Senator Finestone: As a point of information, if we disallow - and I believe we should disallow the wild dogs - and put a time limit on the regulations, just reaffirm that the regulations must be more clearly identified, then do you think that perhaps by the spring time we could have the regulations? Would that do it?

I think the letter could say: "We have been asking you to do this for 17 years. Could you do it for the 18th anniversary?"

Mr. Bernier: One possibility that was raised before the committee at the last meeting was to simply write the minister and point out that he did not give a completion date and that the committee wanted to see a completion date. I do not want to undermine the decision that was made last time, but for all the committee knows, there could be a planned date for these amendments to be completed and he simply omitted to mention it. Would it not be sensible, before moving to disallowance, to at least ask the question and then make a decision?

Senator Finestone: Tell him autumn is almost over and the snow is coming.

Mr. Macklin: I want to clarify that we would still go forward with the disallowance of the ultra vires section, and it is with respect to the balance that the minister refers to in the letter of October 1, saying that they were commencing a regulatory review procedure immediately to address the concerns of the committee. That, then, could relate to the balance of the concerns of the committee. Those are the ones on which, if it is the will of the committee, we should simply ask for a completion date with respect to that regulatory review and implementation.

Mr. Myers: That is exactly what I wanted: ultra vires, disallowed, and completion date. It is as simple as that.

Senator Moore: Get the completion date before the Christmas break. They can give you the date. Obviously, he has something in mind here.

The Acting Joint Chairman (Mr. Lee): Senator Bryden, do you agree with the previous answer?

Senator Bryden: Yes.

Mr. Bernier: The only problem is something we met last week, and this is a good place to mention it. The committee, at the last meeting, decided that the chair would write to the minister and request something be done by December 6. Immediately upon return to the office, I drafted a letter for signature of the chair. We got it Tuesday, signed. It took 12 days to be signed by the two joint chairmen and the vice-chairman. The letter was sent yesterday to the minister. He is effectively given two weeks to complete the actions requested, which clearly will not happen. There is a danger here in setting deadlines. Perhaps it is best left to the staff to judge.

The Acting Joint Chairman (Mr. Lee): Colleagues seem to be prepared now to move on a disallowance. At the same time, we would like to hear back from the minister on an end date. Can we move on both tracks?

Mr. Bernier: Yes.

The Acting Joint Chairman (Mr. Lee): I will leave it to the joint chairmen of this committee to decide when and if a disallowance report is brought forward. Counsel will draft a disallowance report on the one item. We will also seek clarification from the minister on an end date for the other amendments. That is also an opportunity to signal to the minister that we have a disallowance report being drafted. Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix, p. 9A:1)

Ms Margaret Jodoin-Rasmussen, Counsel to the Committee: Originally it was asserted that the absence of a maximum interest rate between March 21 and March 31, 1995, prevented the minister from ascertaining a condition necessary for him in order to indemnify the lenders during that particular period. Industry Canada has argued that the absence of the maximum interest rate makes it impossible for lenders to contravene this condition, given that it is non-existent since there is no maximum rate to be exceeded. The argument is plausible, and it can be concluded that the absence of a maximum interest rate was not an impediment to the minister indemnifying the lenders during that particular period of time.

We recommend that the explanation be accepted and close the file.

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

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.


(For text of documents, see Appendix, p. 9B:1)

Ms Jodoin Rasmussen: Rather than repeating the note, it is quite self-explanatory, and I have nothing else to add.

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

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.


The Acting Joint Chairman (Mr. Lee): The next item is import is the Arms Permit. This is a 14-year-old file.

Ms Jodoin Rasmussen: On reading the note, the committee will realize that the problem raised in the attached correspondence is now moot. The committee may just wish to simply close the file.

Mr. Myers: Close the file, Mr. Chairman.

The Acting Joint Chairman (Mr. Lee): Thank you, Mr. Myers. Is it agreed?

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.

Under "New Instruments," we have a Corrected Certificates Remission Order.


(For text of documents, see Appendix, p. 9C:1)

Ms Jodoin Rasmussen: This instrument results from the committee's request that a remission order be made to extinguish the debt to the Crown incurred by corporations that had obtained a corrected certificate during that period when the departmental officials had decided not to collect the fees that were legally set by the regulations. Once again, we recommend that the file be closed.

Mr. Myers: Close the file, Mr. Chairman.

Mr. Macklin: Fine work.

The Acting Joint Chairman (Mr. Lee): That is a good result. Well done.

Is it agreed?

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.

We will now move to the items under "Reply Unsatisfactory."


Mr. Bernier: In 1998, five sections of these regulations were identified by the committee as being in need of amendment. I should note that the amendments were not designed to resolve issues of legality. This is why Mr. Bernhardt indicated that the committee has always been willing to wait for a reasonable period of time for minor amendments to be completed. Mr. Sulzenko's reply raises the possibility that the necessary corrections in this case could be delayed until a substantive issue as defined by the department arises. Counsel suggests that the committee insist that the required amendments be initiated now.

It could perhaps also be pointed out to the department that the omnibus amendment process has been put in place precisely to deal with these types of minor corrections.

Mr. Macklin: Should we suggest a time?

Senator Finestone: What is your view?

Mr. Bernier: I think we have a process, and it will be done.

The Acting Joint Chairman (Mr. Lee): I would also suggest, counsel, that there has been more than one instance of ministries promising regulations to minor matters where the ministry eventually goes ahead with amendments but forgets to make the minor amendments. You could subtly weave that theme into our letter that you are preparing. We would not want that to happen again. Some people around the committee might get irritated if that happens again.

Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix, p. 9D:1)

Mr. Bernier: The correspondence on this file goes back to 1998. In time, a number of amendments were identified as being necessary but have yet to be made. Given the indication that the current regulations continue to serve a purpose, I believe that the committee should insist that the amendments previously agreed upon be made without further delay.

Mr. Myers: Yes.

Mr. Macklin: Absolutely.

Senator Finestone: I think a strong letter from this committee would be very much in order. We would be very uncomfortable if there were crib deaths as a result of their negligence.

Mr. Macklin: That is right. In fact, they refer to them.

The Acting Joint Chairman (Mr. Lee): I made some comments in looking at this file. It appeared to me that the party representing the ministry wanted to make the case that they were on the case; in other words, they are out there taking care of safety and doing a great job. While we applaud and acknowledge that, our real focus is the regulations, and we are not seeing any movement on it.

Even though they are doing a great job of protecting the children in cribs - and they are - we have a technical problem with the regulations. The focus seemed to be a bit off, if I may say so.

Mr. Macklin: That is right. While the department should be focused on the practical, as opposed to the legalistic, our job is to focus on the legalistic. I am suggesting that we re-focus, not with a vengeance but with firmness.

Senator Finestone: Why not? I think a vengeance suits us.

The Acting Joint Chairman (Mr. Lee): Having made the point, any other comments?

Mr. Macklin: I was disturbed by the suggestion that the regulations were effective because there had been no crib-related deaths. To me, that is absolutely unreasonable as an argument. The regulations should be dealt with. We do not need to wait for a death to justify regulatory correctness.

Senator Finestone: Could we be firm?

The Acting Joint Chairman (Mr. Lee): Senator Finestone wants our approach to be firmness, something a little shy of vengeance.

Hon. Members: Agreed.

Mr. Bernier: Will it suit the committee to have the chair write to the minister instead of writing to the designated instruments officer?

The Acting Joint Chairman (Mr. Lee): There appears to be consensus on that. The chair will try to refocus this. This file is only 11 years old. Is it agreed?

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.


Mr. Bernier: I am pleased to inform the committee that Bill S-11 has now been adopted as chapter 14 in the Statutes of Canada, 2001. As a result, and given the earlier amendments that were made by SOR/95-532, all action on this file has been completed. It can be treated as action taken.

The Acting Joint Chairman (Mr. Lee): That is a good result. Thank you, counsel.




Ms Jodoin-Rasmussen: In the letter dated July 20, 2001, the commissioner assures the committee that the amendments promised will be concluded before the end of this year. We recommend that counsel monitor the file until that time, until a conclusion is reached.

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

Hon. Members: Agreed.


Ms Jodoin-Rasmussen: Progress is evident on this file insofar as the passage of Bill C-14 provides a statutory basis for an acting provision that this committee found to be ultra vires. Whether or not sections 41, 43 and 44 will be re-enacted depends on the outcome of regulatory review activities. Regardless, the committee has been promised that no charges or prosecutions will be laid pursuant to these sections. We should continue to monitor the file to see whether they revoke the sections or re-enact them.

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

Hon. Members: Agreed.


Ms Jodoin-Rasmussen: Mr. Chairman, the most recent correspondence on this file informs the committee that the promised amendments are presently being reviewed by the regulatory drafters and that they should be enacted by the end of the year. We are suggesting perhaps a follow-up letter querying the progress of these particular amendments.

Senator Finestone: How old is the file?

The Acting Joint Chairman (Mr. Lee): This is a new one.

Mr. Bernier: This is from 1994.

Senator Moore: What is the recommendation, counsel, again?

Ms Jodoin-Rasmussen: The recommendation is that we write a follow-up letter to inquire as to the status of the amendments.

The Acting Joint Chairman (Mr. Lee): It is alive. It is moving.

Mr. Macklin: It is promised by year-end.

Ms Jodoin-Rasmussen: Yes.

The Acting Joint Chairman (Mr. Lee): Without going into details about all the deficiencies, it is moving. Agreed?

Hon. Members: Agreed.


The Acting Joint Chairman (Mr. Lee): Under the rubric "Progress," we move to maple products regulations.

Ms Jodoin-Rasmussen: Mr. Chairman, Ms Stolarik's letter of September 6 reiterates that the amendment promised to the committee was submitted to the Department of Justice in March of this year. We suggest a follow-up letter be sent to determine the status there as well.

The Acting Joint Chairman (Mr. Lee): I am curious as to why there was a question mark on the progress. The thing is moving along nicely and it is not that old a file.

Mr. Bernier: The question mark arises if you read Mr. Rousseau's letter. On March 6, 2000, the committee was informed that this amendment is "currently" being studied by the Department of Justice. On November 15, 2000, we are told that this amendment is currently being studied by the Canadian Food Inspection Agency and will be submitted to the Department of Justice, whereas in the last letter, suddenly the draft has been completed and submitted for review. If the draft was submitted for review in 2001, what were we talking about on March 6, 2000, when it was supposed to be under review? Ms Stolarik has clarified that one of her letter's was in error. The question mark reflects the degree of uncertainty on the part of the department.

The Acting Joint Chairman (Mr. Lee): We have caught the issue and framed it nicely. Thank you, counsel. Is it agreed?

Hon. Members: Agreed.


Ms Jodoin-Rasmussen: The department had promised amendments to correct concerns of the committee, but due to an oversight, it omitted some of them. These omissions will be rectified the next time the department amends the regulations. If the committee wishes, we could send a follow-up letter to the department's letter of March 2000.

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

Mr. Macklin: It refers to "next time we amend them." I would suggest that if they do not go through in an amendment process within a reasonable period of time, which we would suggest, then they should be dealt with independently.

Mr. Bernier: That is usually the way it is done. These are simply deletions of unnecessary definitions. There is no substantive issue that turns on them. Usually the committee expects to receive an undertaking to do those amendments when the regulations are next amended. Reasonable time has been considered to be roughly two years. If, in those two years, there has been no other occasion to amend the regulations, then at that point the committee will ask that they be proceeded with independently.

Mr. Macklin: I would ask that that reference to the two-year period be stated in the letter so that we will have a definite return date.

The Acting Joint Chairman (Mr. Lee): This is the same ministry involved in the earlier file on copyright regulations. They do seem to move things to the slower track. We will get to it when we do an amendment later. Counsel has recognized Mr. Macklin's comments. Is it agreed?

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): We will move to "Reply Satisfactory."



(For text of documents, see Appendix, p. 9E:1)

Mr. Bernier: As per the explanation set out in the note, the committee can drop its objection to the validity of the instrument that added laser weapons to the export control list. Progress of the amendments mentioned in the last two paragraphs of Mr. Simard's letter of April 10, 2001, will be monitored in the usual way.

The Acting Joint Chairman (Mr. Lee): We had an earlier item involving an element of the Export and Import Permits Act. Now we have something on the export side that we believe has been adequately dealt with. Were we not of the view at some point that there was a general structural problem in the Export and Import Permits Act involving regulations? Did we ever come to the conclusion that there was a statutory problem that keeps giving rise to the regulatory problems?

Mr. Bernier: We dealt with that earlier today.

The Acting Joint Chairman (Mr. Lee): That was in 1976?

Mr. Bernier: No, it was 1979. The problems that were identified in that report were comments of the committee directed to the fact that the Export and Import Permits Act is really skeleton legislation and generally provides very little guidance as to how import quotas, for example, will be determined, and for the conditions for issuance of permits. There is a whole system of notices to importers that existed without a statutory basis. These notices to importers set out various requirements that the department will follow.

Those were the kinds of concerns expressed. I would hesitate to say that there is a direct causative link between those deficiencies dealt with in the report and the fact that particular regulations may have certain problems.

In this case, the problem is that laser weapons were added to the Export Control List and were described in the RIAS as non-existent weapons at this time. They were sort of science-fiction weapons. The committee pointed out that you can only add goods that actually exist to the Export Control List, not goods that you think may come into existence. A whole debate was engaged with the Department of Foreign Affairs, a debate that lasted for a couple of years, until finally, in the letter of April 10, 2001, for the first time we are informed by Foreign Affairs that these weapons do in fact exist. They finally went to National Defence and learned that these things have existed since 1995.

If we had been told that two years earlier, there would have been no problem. We were not told that. They kept arguing that they could put weapons on the list even though they did not exist, and we kept saying they could not.

Senator Finestone: It is often uncertain whether there are official regulations. In our ridings, many of us get complaints from people about the different manner in which their imported goods are treated when they come in at the Port of Montreal versus at a port in Ontario. Would that be attributable to the fact that the importing officers at the gate use their own discretion because there are no rules?

How do we deal with that kind of question when the regulations are so open?

Mr. Bernier: I am aware of the kind of problem you are raising, senator. I have come across the same problem in the importation of certain animals. I do not think the legislation is to blame. Certain regional officers establish certain practices over time. People are not always as diligent as they might be in reading updates of departmental manuals that provide instructions to inspection staff, et cetera.

As an example, I imported products for which a letter of consent from Agriculture Canada was once required. It has not been required for four years. When I inquired, I was told that if I imported through particular ports of entry I would do well to get the letter of consent, even though it is not a legislative requirement. I pointed out that the departmental manual clearly indicates that the letter is not required. I was told that if I imported through Montreal and Toronto they may be aware of that but that they may not be elsewhere.

Therefore, de facto, the requirement still exists because you still get the letter just to be on the safe side.

Senator Finestone: Then you have to go to the minister to see about getting your goods cleared because it is costing you a lot of money every day. It is our job to ensure that the regulations are clear, identifiable and properly administered.

Mr. Bernier: This is really a problem of administration.

Senator Finestone: Is there no way to indicate to the department that there must be clarity?

Mr. Bernier: That is the job of a different committee.

Senator Finestone: Which committee is that?

The Acting Joint Chairman (Mr. Lee): The Senate Banking Committee deals with imports-exports in the Senate.

Senator Finestone: And which committee in the House?

The Acting Joint Chairman (Mr. Lee): Foreign Affairs and International Trade.


(For text of documents, see Appendix, p. 9F:1)

Mr. Bernier: The committee had originally suggested that section 4(1.2) of these regulations was unnecessary. Although the department initially disagreed, they have apparently changed their minds and now agree to delete it.

As for the question whether provisions referring to forms fixed by the director allow the filing of forms that conform as closely as possible to the fixed form, under Bill S-11 this will now be done directly under the act, so is no longer of concern to the committee.


(For text of documents, see Appendix, p. 9G:1)

Ms Jodoin-Rasmussen: This amendment deals with concerns raised by the committee with respect to the instrument designated as SOR/84-689 and raises three additional issues.

With regard to the first issue, the department has provided a satisfactory explanation and promises action on the second and third issues. We suggest that we monitor the progress of the promised amendments.

The Acting Joint Chairman (Mr. Lee): Noting that it is a 1983 item, is that agreed?

Mr. Macklin: In my short tenure here I have come to understand that this committee believes that some of these files go on far too long. What we can do to tighten the leash on those who are supposedly operating to meet our requirements? Review is one matter, but review should always have a deadline, especially when it has gone on this long. I get very concerned about files this old.

The Acting Joint Chairman (Mr. Lee): Counsel, could you make a comment about the grey beard on this file?

Ms Jodoin-Rasmussen: Other than the fact that they have finally dealt with it, I cannot add much. The additional matters are new matters, for the most part.

Mr. Macklin: When we say "keep it under review," we do not seem to be in any way suggesting a time line to them. You say the standard time line is two years if it is going to be an omnibus process. Otherwise, we want something definite. Therefore, we have established a two-year window. With something like this, what period would be reasonable for us to suggest that they complete the matters that we have said need compliance?

Mr. Bernier: First, this instrument, which was made in February of this year, takes action on a 1984 and a 1987 file, so there was that delay.

The undertakings we now have are undertakings on this 2001 amendment. Thus, it is a new, fresh file. In a case such as this, we do not, and it is not the role of this committee, control or to do the job of the executive branch of government. It is the role of the committee to review and to suggest. We can prod and prompt as best we can and seek to persuade. In essence, we can lobby for changes that are considered desirable to be done. However, one must always be conscious of the fact that it is not the function, constitutionally, of this committee to substitute itself for the executive branch. The legislative powers being exercised here have been delegated by Parliament to the executive. We can ask the executive to exercise them in a certain way, and we certainly do that and we are rather persistent in seeking it. However, I do not think this committee can reasonably expect that it will ever be in a position to impose deadlines on the executive branch of government, whether it be the Governor in Council or ministers.

With that background in mind, when amendments are important - and I think I can speak for the committee - the committee expects them to be done as soon as possible. The committee's agenda and a department's agenda, when that department is administering a multitude of regulations and statutes, plus the regular administration of government, may not always coincide. Of course, the committee is focusing on the changes it has identified for the departments. That is often only one item among a myriad of items.

Having said that, in this case it looks to me as if both issues here are really issues of drafting. There is no ultra vires provision. There is no substantive problem that is being caused for citizens in the application. It is a matter of cleaning up the regulations. We would probably give a little more leeway, I would think.

Mr. Macklin: I think keeping it under review should have a reporting back time to this committee so that it does not lose its vitality in this process.

Mr. Bernier: Mr. Macklin, we have an internal system. Files are reviewed periodically. We have, on average, at any time, 800 current files. We cannot bring 800 files to the committee every second month. There is simply not time for the committee to deal with that number of files. The review is internal. Depending on the stage a file is at, a professional determination is made regarding whether this needs to go back to the committee for further direction or whether we simply do an internal follow-up with the department. This is done.

On a file like this, if it is submitted to the committee, the committee will only see the last piece of correspondence. That does not mean there has not been a follow-up. Every four or five months, a letter goes to the department asking: "What are you doing? What is the progress?" We assess the reply and then decide whether it needs to come back to the committee.

Mr. Macklin: As a committee member, my only concern is that when something is under review, when do we, once again, see it before us, on average, so that we have a chance to see whether we should take any other action? Would that be annually?

Mr. Bernier: I cannot say there is any fixed rule. It is a matter of judgment, of looking at the file and when we feel that it must go back to the committee. That is to say, we have reached the end on what we can usefully do in moving it forward.

Mr. Myers: I take these things seriously. I tend to read them. As a result, when I said I agree with counsel's suggestion, it was because in fact they had met the obligation of 1987. What is now on the table are two new drafting - not substantive but drafting - issues that we will now monitor. Hence, it seems to me that we can proceed. It is quite straightforward.

The Acting Joint Chairman (Mr. Lee): Can we close the file?

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.


(For text of documents, see Appendix, p. 9H:1)

Ms Jodoin-Rasmussen: Of the eight issues raised by counsel respecting this instrument, Industry Canada promises to rectify six of them. The responses to the two remaining issues are satisfactory.

In this instance, we suggest a letter to inquire as to the status of the actions promised.

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

Hon. Members: Agreed.

The Acting Joint Chairman (Mr. Lee): Carried.


(For text of documents, see Appendix p. 9I:1)

Mr. Bernier: Action is promised to points 1 and 3 of Mr. Bernhardt's letter. The reply on other points is considered satisfactory.

The Acting Joint Chairman (Mr. Lee): The next item is under "Action Promised (?)".


(For text of documents, see Appendix, p. 9J:1)

Mr. Bernier: This instrument should have appeared under the heading "Action Promised," without a question mark. Amendments are promised on both points raised by counsel, and this undertaking will be followed up.

The Acting Joint Chairman (Mr. Lee): The next item is under "Reply Satisfactory."


(For text of documents, see Appendix, p. 9K:1)

Mr. Bernier: The correspondence before the committee deals with an issue of compliance with section 5(2) of the Export and Import Permits Act. Section 5(2) provides that where any goods are included in the Import Control List for the purpose of implementing an intergovernmental arrangement, a summary of the arrangement must be laid before Parliament no later than 15 days after the making of the order adding the goods to the Import Control List.

At issue here is whether this requirement was complied with in the case of SOR/95-32. Initially, the department sought to argue that a publication of the summary in Part I of the Canada Gazette and the presentation of the bill implementing the agreement were sufficient to meet the tabling requirement for a summary of the arrangement itself.

For the reasons stated in Mr. Rousseau's letter of August 16, 2000, that argument was clearly unacceptable.

Thankfully, the department then found that a summary of the arrangement had in fact been tabled as required by the statute.

The reason both my colleague and initially the department did not find the tabled document was that it erroneously identified SOR/95-32 as SOR/94-897-01.

Having said that, the statutory tabling requirement was indeed met and the matter can be closed.

The Acting Joint Chairman (Mr. Lee): That is great. Congratulations for the vigilance.

The Acting Joint Chairman (Mr. Lee): We can now move to "Action Promised" and "Action Taken." There are four instruments here. Any comments from counsel on those?


(For text of documents, see Appendix, p. 9L:1)


(For text of documents, see Appendix, p. 9M:1)


(For text of documents, see Appendix, p. 9N:1)


(For text of documents, see Appendix, p. 9O:1)

Mr. Bernier: There is one amendment promised under "Action Promised," in addition to the two amendments previously mentioned under SOR/97-501. Under the heading "Action Taken," a total of eight amendments have been made at the request of the committee. There are 25 instruments without comment.

The Acting Joint Chairman (Mr. Lee): Twenty-five instruments reviewed and put to bed, that is very good.

I wanted to thank counsel for a memorandum that he prepared in connection with the United Nations Act and the regulatory procedure for listing of terrorist assets. That was helpful to me personally. It is amazing what you can learn by asking questions of our counsel. Thank you, counsel, for that earlier this week.

Senator Finestone: I should like to ask counsel if it would be an onerous task, as we are facing the end of this year, to take a look at how many cases have been pending for longer than five years, and indicate the number of cases we have settled in the year of operation.

I am asking for this because often people have said the following to me: "What do you mean you sit on the Scrutiny of Regulations Committee? How can you? It is a terrible committee. It is boring." Well, it is not. To me, this committee it is the guts and soul of how Parliament works.

The staff put forward a very laudatory effort. I am sure it is not pleasant to have parliamentarians sitting here and making critical observations. If we could have some statistics, it might give the committee a sense of accomplishment and a sense of appreciation of the task that is undertaken. I do not know if that has ever been done. I know that you, Mr. Chairman, have been on this committee longer than any of us. You might be in a position to suggest whether this is a necessary undertaking.

It has been a frustration for me to see the number of cases that have come up that are from 1979. When I first came to this committee, there were cases from 1979. I do not know if those cases are still hanging around, but this is not an acceptable response by government to a committee that is looking at these cases, making observations about them and working hard. I should like to know what is outstanding that is more than five years old.

The Acting Joint Chairman (Mr. Lee): Counsel, is that a feasible undertaking?

Mr. Bernier: Yes. It so happens that we just did a review for 2000. Unfortunately, the note is at the office, but in the year 2000, the committee examined over 100 instances of amendments being made as a result of the work of the committee. That is not insignificant. If any committee of the Senate or the House could say that their work has resulted in 100 amendments to statutes or bills presented to the House, I think that committee would consider it is doing valuable work.

Senator Moore: Somehow, that information should be submitted in our report to both Houses.

The Acting Joint Chairman (Mr. Lee): That is not a bad suggestion.

Senator Moore: That is good information, counsel.

Senator Finestone: Have we ever done an annual report indicating that not only were there 100 success stories but also how many were no stories and no shows?

You just told us something very interesting, namely, that you review on an ongoing basis somewhere in the neighbourhood of 800 files. What is going on in those 800 files? Do we know what is in those files?

Mr. Myers: I sat on this committee last year, and I remember the scorecard. It is a document that gives us a snapshot of what has been going on, where we are going and where we have and have not cleared cases and files.

The staff is doing a good job here. Both Houses are benefiting. Whether or not we do an annual report, you will have to check that out and determine through, perhaps, house leaders or others, if that is appropriate. If it is, perhaps it is a good idea. If not, we would have to revisit it.

I wish to say again that the document that we saw in 2000 laid that all out. It was very worthwhile.

Senator Finestone: Did we table it?

Mr. Myers: It was here.

Senator Finestone: I know, but was it tabled in both Houses?

Mr. Myers: No.

Senator Finestone: We should table at least once a year. Why not? We are a standing committee.

Mr. Bernier: It can certainly be done. The committee can report on its meetings.

The Acting Joint Chairman (Mr. Lee): It is a bit like doing our own auditing and reporting to both Houses.

Senator Moore: But if the minister knows there are things out there to do, it may be useful to do a report.

Mr. Myers: Check it out with the house leaders.

Senator Finestone: Never mind the house leaders. We are masters of our own destiny.

The Acting Joint Chairman (Mr. Lee): Counsel will sort out how much person power or resources would be needed on either an annual or sessional basis to do this. It is an excellent idea. It would better allow the House and the public to be aware of the committee's work on an ongoing basis. If that is all right, then counsel and the clerk can check into it and bring it back to us when you have had a chance to talk about it around the secretariat.

The committee adjourned.

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