REGS Committee Meeting
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Proceedings of the Standing Joint Committee on
Issue 9 - Evidence
OTTAWA, Thursday, June 12, 2003
The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:41 a.m. for the review of Statutory Instruments and consideration of a draft report.
Mr. Gurmant Grewal (Joint Chairman) in the Chair.
The Joint Chairman (Mr. Grewal): Good morning members. Before we proceed to the main items of the agenda today I have two announcements.
The efforts of this committee helped us to move Bill C-205 expeditiously through the House. It will be up for debate on Friday, and we are very hopeful like last time that it will go to Senate next week.
I take this opportunity to thank all the members of the committee. It was a collective effort. I know all members lobbied very hard in the other chamber, and I particularly extend my appreciation to Mr. Paul Macklin, Parliamentary Secretary to the Minister of Justice, Mr. Derek Lee and Mr. Tom Wappel. All the other members worked very hard.
I extend my special appreciation to the General Counsel to the Committee, Mr. Bernier, who also worked very hard in shedding insight into the legal and technical aspects on this bill. We appreciate his help.
The second announcement relates to Bill C-43, An Act to amend the Fisheries Act. It is the second item on the agenda. It was introduced in the House on June 11.
We have an additional agenda item today. It is the issue of transfer of powers from the Department of Justice to the Solicitor General with respect to the Firearms Act. I will have counsel explain it.
Mr. François-R. Bernier, General Counsel to the Committee: On May 26, the joint chairmen of the committee received a letter from the Member for Yorkton—Melville asking the committee to consider the issue of the validity of Order in Council P.C. 2003-556, an order made under the Public Service Rearrangement and Transfer of Duties Act. It was intended to transfer the powers of the Minister of Justice under the Firearms Act to the Solicitor General.
Given the importance of this issue for the member, I wanted to make sure the committee dealt with it prior to the adjournment. The relevant material could only be sent to members yesterday. I apologize for that. As a courtesy to the Member for Yorkton—Melville, he was also provided with a copy of the same documents.
Turning to the substantive issue, I will give a very short summary of the note. It is the view of counsel that Order in Council 2003-556, which was registered as SI/2003-96, represents a valid exercise of the legislative authority conferred by Parliament.
As noted in the note circulated to members, this is not a new issue for counsel. We have been unable to articulate a convincing rationale for changing our earlier view that orders of this kind are exactly what Parliament intended when it first adopted this statute in 1918.
Unless the committee disagrees with this view, I would suggest, perhaps as a courtesy, that the chairmen write back to the Member for Yorkton—Melville thanking him for his interest and formally advising him of this finding, if it is indeed shared by the committee.
The Joint Chairman (Mr. Grewal): Have members any comments?
Mr. Lee: The Member for Yorkton—Melville is persistent in his work in the House on matters related to the firearms registry. I suggest that the letter not just say that we have looked at it and cannot find any problem with it, but rather we attempt to include in the letter a concise, pithy, condensed rationale, if there is a way for counsel to do that.
Mr. Bernier: Members have the note before them. We can certainly draw from it.
Mr. Lee: The member really believes that there is an issue here. He should understand that counsel and committee members did our work and looked at it closely.
Mr. Bernier: I understand why there would be a concern with section 2 of the Public Service Rearrangement and Transfer of Duties Act. As I said, this is not a new issue for counsel. When there was the major government reorganization in 1993, the interpretation of that provision caused us considerable grief as to whether it authorized orders that were made then, which essentially reorganized all the government pursuant to Order in Council.
There is a discomfort there, as there always is, when one sees subordinate legislation being used to nullify statutes of Parliament or the express will of Parliament. However, in the end, we are simply not able to articulate a convincing rationale for a finding that these orders are not what was intended.
Whether Parliament ought to have given that authority to the Governor in Council in 1918 is another question. That goes to the wisdom of the legislation.
The Joint Chairman (Mr. Grewal): The member from Yorkton—Melville is persistent, but I commend him for his hard work on this issue. We will write a letter to him and address the concern that Mr. Lee mentioned.
Let us go the agenda items now.
SOR/99-268 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (FERRO- CHROMIUM AND CERTAIN AUTOMOTIVE GOODS)
(For text of documents, see Appendix A, p. 9A:1)
Mr. Jacques Rousseau, Legal Adviser: In this file, we had to dangle the threat of having to appear before the committee in order to obtain a complete response from departmental officials. The department confirmed that the drafting of the order contains mistakes. It has also explained to our satisfaction why these mistakes do not need to be corrected. There is no further action to take in this file. It can therefore be closed.
The Joint Chairman (Mr. Grewal): Any comments?
Mr. Macklin: Great work.
SOR/2002-225 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE FISHERIES ACT (MISCELLANEOUS PROGRAM)
Mr. Bernier: Mr. Chairman, this file was listed on the agenda. There is no material before members. It was put on the agenda for the simple reason that counsel needed directions as to how the file was to be dealt with in the event the government's commitment to introduce legislation prior to adjournment was not met. That question happily does not arise as the chairman has indicated that a bill has been introduced and was given first reading yesterday.
Unfortunately, I have had only a very quick glance at it this morning. We could not get it before then. I can confirm what appears to be the feeling of the members who have looked at it that the bill, if adopted, would take care of the issues raised by the committee.
It now becomes a matter of the committee giving itself a pat on the back and monitoring the progress of that legislation.
Mr. Cummins: I wish to note that Mr. Farrah did say at our March 20 meeting:
Before any amendments are formally introduced in the Commons, the department is committed to meeting with your committee to discuss the various options. Is that clear?
I just want to point out that that commitment has not been met, which is unfortunate. We got a copy of the bill yesterday and are concerned about it. Our lawyers are carefully reviewing it. Our main concern is the broad discretionary powers that are given to the minister. Under this bill, for the first time in history, he will be able to segregate Canadians by race. It should be noted that this bill is not necessary to manage Aboriginal rights currently identified by the courts. In other words, you do not need this bill so that the courts could recognize the food fishery, which is a right under section 35. However, it will enable the minister to reallocate large chunks of the fishery without proper parliamentary scrutiny.
At first glance, we are quite concerned with that generous allocation of powers to the minister and think it quite inappropriate. I can assure you that we will be looking at it carefully.
The Joint Chairman (Mr. Grewal): Your office is doing that.
Are there any other comments?
Mr. Lee: Although I am not speaking directly to the quote that Mr. Cummins read into the record, may I confirm that the minister and/or his staff provided a briefing to our staff within the last one or two days? It was either just after or just before the introduction of the bill.
The Joint Chairman (Mr. Grewal): That was just before the introduction of the bill. Myself, a few MPs and Mr. Bernhardt were there for that briefing.
Senator Moore: Yes.
Mr. Lee: Am I to conclude, therefore, that prior to the formal introduction of the bill there was a briefing by the minister?
The Joint Chairman (Mr. Grewal): The minister's staff did the briefing.
Mr. Lee: Mr. Cummins was somewhat under-informed when he read that quote.
Mr. Cummins: Mr. Chairman, that is not correct. The presentation was made mere hours before the bill was presented in the House. Department officials spoke to the bill at that time but did not make copies of it available to the people assembled. I think, Mr. Chairman, that you asked for the spokesman's notes and were told that they would be forthcoming. This was in no way the kind of consultation that Mr. Farrah promised. Mr. Farrah promised that there would be consultation to discuss the various options. The meeting that occurred was simply to advise people that a bill would be introduced and to provide a general view of what would be in the bill. As I say, it was a done deal, and the meeting was held mere hours before the bill was tabled in the House.
Mr. Lee: That is fine. Thank you.
The Joint Chairman (Mr. Grewal): On behalf of all members of this committee, I send best wishes to Mr. Farrah for his recovery from his surgery.
The next item on the agenda falls under the heading ``Letters to and from Ministers.''
SOR/89-127 — FOOD AND DRUG REGULATIONS, AMENDMENT
Mr. Bernier: Mr. Chairman, this file harkens back to the spring of 1989. The amendment, the legality of which is being questioned by the committee, was drafted to give effect to a trade commitment made by then Prime Minister Mulroney within the framework of economic development objectives established under CARICOM in the course of a visit to the Caribbean. The promotion of international trade objectives, of course, is not a purpose of the Food and Drugs Act. The committee took the position that the amendment is ultra vires the act.
More than three years passed before the joint committee finally secured a commitment from legal services to the Department of Consumer and Corporate Affairs that section B.02.034 of the Food and Drugs Regulations would be revoked. It should be noted that the government at no time contested the committee's conclusion that this section is ultra vires the Food and Drugs Act.
In September 1992, the committee was informed that the section would be revoked upon the amendment of the Importation of Intoxicating Liquors Act. That amendment would be designed to ``continue the promise of the Prime Minister that Canadian law would be amended to permit the importation in bulk of Caribbean rum.''
By May 30, 1996, the committee was advised that it was planning to introduce amendments to the Importation of Intoxicating Liquors Act in the fall of 1996. Some years later, on January 30, 2001, the committee was advised that the Canadian Food Inspection Agency was involved in the final stages of discussions with the Canada Customs and Revenue Agency, with the Department of Finance and with the Department of Foreign Affairs and International Trade to ``try and bring closure to this issue.''
By October 24, 2001, the then Minister for International Trade requested that the committee take no further action on this file pending the conclusion of a possible free trade agreement, which could be negotiated by 2002.
As disclosed in the minister's most recent letter, that did not occur, and it now seems fairly clear that those negotiations will not take place any time soon. The minister also raises the possibility, and I emphasize ``possibility,'' that a free trade of the Americas agreement may be concluded by December 2005, which would remove the need for the illegal section B.02.034.
When it last reviewed this file, the committee expressed a willingness to exercise patience, provided the minister could give the committee a clear idea of the timetable for the negotiations that he first referred to with Caribbean countries and the planned introduction of legislation. It seems to me that the minister has not provided this.
I also realize, as I am sure members know, that this illegal regulation does provide significant economic benefits for Caribbean rum producers. Tens of millions of dollars were mentioned at one time. The question remains whether it is appropriate to have such an important element of our trade policy with those countries based on a regulation that lacks legal validity. If the matter is that important, why has the government not presented a bill to Parliament to validate this provision?
As I noted at the outset, the committee has now had this file before it for 14 years. If the committee thinks that there has been enough patience shown, perhaps the time has come to at least draw the matter to the attention of both Houses through a report.
Mr. Wappel: To show members just how much time has transpired, it was spring 1989 when the Leader of the Liberal Party of Canada, the Right Honourable John Turner, asked me to chair this committee.
Mr. Cummins: Is he taking responsibility for that?
Mr. Wappel: I have drunk a lot of rum since then. I think counsel is correct in that we have shown patience beyond our usual capacity and we should proceed with a report. What kind of report is counsel suggesting? Would it be a regular report? That is fine; I would go along with that.
The Joint Chairman (Mr. Grewal): Thank you for the candid remarks.
Senator Kelleher: Knowing something about these agreements, I can assure you that there is not a snowball's chance in you-know-where of any agreement being concluded by 2005. It is way off the map at this time, and I do not think we should wait any longer.
Mr. Lee: I want the record to show that it was never the intention of this joint committee to interfere with the flow of good quality Caribbean rum. Whatever the reasons for our patience over all of these years, the file is, in my view, too long in the tooth, and I think we should move to a report. I wonder whether this would be a disallowance item or whether a report would affect the commodity rather than the individuals in part of a broader trading relationship.
I would support preparation of a report at this time. I would hate to say that there would be another letter to say that if we do not get a firm date for removal, we will report.
Let us get a report drafted anyway. We will have a report and/or other action.
Mr. Bernier: Any report would only be before this committee in the fall, which does not preclude sending a letter now and letting the minister know that this report is coming.
Mr. Lee: Mr. Wappel has full corporate memory on this file. He goes back that far.
The Joint Chairman (Mr. Grewal): Thank you, we will do both. We will send a letter now and prepare a report for the committee when we meet next time.
The Joint Chairman (Mr. Grewal): Our next agenda item is SOR/92-631.
SOR/92-631 — VINYL CHLORIDE RELEASE REGULATIONS, 1992
(For text of documents, see Appendix B, p. 9B:1)
Mr. Bernier: Mr. Chairman, the reply from Minister Anderson is satisfactory. Progress will be monitored in the usual way.
The Joint Chairman (Mr. Grewal): All right. We will move on to SOR/ 99-170.
SOR/99-170 — REGULATIONS AMENDING THE UNITED NATIONS ANGOLA REGULATIONS
Mr. Rousseau: In this file, the joint chairs had to write to the minister in order to elicit a response regarding a simple drafting problem. The department informed us that the regulation is not necessary anymore and will therefore be repealed. This has not yet been done, even though the department had planned on repealing the regulation at the end of March. So, the legal adviser should write the department to ask where things stand.
The Joint Chairman (Mr. Grewal): Are we agreed that we write a letter?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The next agenda item is under the heading ``Reply Unsatisfactory.''
SOR/96-48 — EXEMPTION REGULATIONS (BEEF AND VEAL IMPORTS), AMENDMENT
(For text of documents, see Appendix C, p. 9C:1)
Mr. Rousseau: Under the Export and Import Permits Act, the governor in council may, by regulation, exempt any individual, good or any category of individuals or goods from the application of any or all provisions of the act. The governor in council has invoked this power to exempt certain individuals from the obligation to obtain an import licence as stipulated under section 14 of the act. So far there is no problem. However, the regulation goes even further. It sets out conditions which individuals must respect in order to obtain the exemption. In doing so, the governor in council is regulating the import of goods as set out by regulation. But the act does not provide for any conditional exemptions. The department responded that the regulation simply defines categories of individuals or goods which are exempted. It is not the first time that a department gives the committee this type of answer and the committee has already rejected it in the past.
If the committee agrees, the legal advisers will write the department again to explain why this response does not satisfy the committee.
The Joint Chairman (Mr. Grewal): Any comments? I think this matter is straightforward.
Mr. Lee: My reaction is that this file is getting a little long in the tooth as well. It is seven years old. If we do write back, I think we had better be able to say very clearly why we regard this type of regulation with conditions as invalid or ultra vires. If our position is crisp and clear, the department will understand. Seven years is long enough for me. If they cannot help us out after seven years, we will help ourselves.
Senator Moore: I agree with Mr. Lee, but I would like to somehow put a little muscle into this thing. Let them know that if we do not hear something by a certain time, we will take the appropriate action, similar to what was said about another file we discussed earlier this morning.
It is great to write back giving reasons. We have done that time and again. We have to put some stick to this issue so that they will respond in a timely way and know that the committee will take the action it deems appropriate.
Mr. Lee: I will ask counsel if there are other dispensation regulations out there that attempt to attach conditions in the same way that this set of regulations does. How have we handled those other circumstances?
Mr. Rousseau: We have always managed to let the department know why the committee did not want those conditions to be attached to the exemptions. If I am not mistaken, we have always convinced the department that it was wrong.
Mr. Lee: This department is particularly stubborn.
Mr. Rousseau: This is a new issue.
Mr. Bernier: When given the power to exempt, the temptation is always there to attach a couple of conditions and transform the power from a power to exempt to a power to grant conditional exemptions, which is fundamentally different. That temptation being there, government officials regularly succumb to the temptation, but generally we do succeed. It may take a couple of exchanges of correspondence to bring them back to the path of purity.
Mr. Lee: As long as the department understands that we usually succeed in holding the line.
Mr. Bernier: If they do not understand, presumably this matter will come back to the committee.
Mr. Rousseau: I do not remember a single time where we did not have to try to convince the department. Sometimes, it takes a long time before we see results, but we have always managed to do so.
The Joint Chairman (Mr. Grewal): We will write a letter and put some muscle behind the request.
The next agenda items are under the heading ``Progress.''
SOR/88-230 — FRONTIER LANDS REGISTRATION REGULATIONS
SOR/88-263 — NEWFOUNDLAND OFFSHORE AREA REGISTRATION REGULATIONS
Mr. Rousseau: In cases involving drafting errors, information provided by the department indicates that progress has been made, even if it was slow. The committee's legal advisers will continue to monitor these cases in the usual way and keep the committee abreast of any progress. Again, these are minor drafting issues.
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): It is agreed. The next item is SOR 95/571.
SOR/95-571 — ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS, AMENDMENT
Mr. Rousseau: The RCMP has informed us that the final version of promised amendments should be completed at the latest by the end of the summer of 2003. We will continue to monitor the progress of the promised changes and keep the committee up-to-date in the usual fashion.
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): It is agreed. The next one item is SOR 97-501.
SOR/97-501 — PRIVILEGES AND IMMUNITIES OF THE SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY ORDER
Mr. Rousseau: The department has written that it will submit the amendments for approval at the latest in May. The legal advisers of the committee will ensure that that will indeed be done.
The Joint Chairman (Mr. Grewal): Any comments?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The next item is SOR 98-240.
SOR/98-240 — RULES AMENDING THE BANKRUPTCY AND INSOLVENCY RULES
Mr. Rousseau: In its letter dated March 10th, the department informed us that the task of drafting the amendments approved by the committee will be given to the Justice Department. Again, the committee's legal advisers will monitor this file and keep the committee abreast of any developments in the usual fashion.
The Joint Chairman (Mr. Grewal): Agreed?
Mr. Wappel: I am following the timeline here. There is reference to Mr. Sulzenko's letter of February 1, 2001. The February 1, 2002 letter makes reference to a letter of February 1, 2001. I am presuming that that is the letter that gave the undertaking that they would do something.
Two years after they indicated that they would do something, if I understand it correctly, they are saying that they are about to instruct the Department of Justice. I find that unacceptable. What was their problem in instructing the Department of Justice over a period of two years?
Mr. Rousseau: I do not know. However, I spoke to a departmental official and realized that several people had been in charge of this file. This led to delays because no one had any real idea of where things stood.
Mr. Wappel: When someone has failed to advise us about something, we hear the excuse relatively frequently that someone changed jobs or that someone took an extended sick leave or that someone went on holidays. I am getting sick of those excuses. I have no difficulty with what you have recommended. I would urge you to be very careful and to not let another year go by without a substantive indication of what is happening.
Senator Kelleher: Mr. Chairman, I can advise that this bill contains a five-year review clause and is currently before the Standing Senate Committee on Banking, Trade and Commerce for revision. There are, I think, approximately 84 recommendations for amendment to the bill. The study will not be concluded until this fall. I do not know how they can draft proper rules and regulations until they know what sections of the act will be amended.
I would tread carefully on this matter. I think that is actually the problem, but I do not know why they are not telling you.
The Joint Chairman (Mr. Grewal): Thank you for the comments, Senator Kelleher.
Mr. Rousseau: Departmental officials assured me that the amendments approved by the committee do not require the act to be amended first. There is no relationship between the act and the changes which were promised to the committee. The changes will be made irrespective of where the bill is at.
The Joint Chairman (Mr. Grewal): Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The next agenda items are under the heading ``Progress'' with a question mark.
SOR/90-791 — CANADA OIL AND GAS PRODUCTION AND CONSERVATION REGULATIONS
SOR/92-676 — NOVA SCOTIA OFFSHORE PETROLEUM DRILLING REGULATIONS
SOR/95-188 — NOVA SCOTIA OFFSHORE PETROLEUM DRILLING REGULATIONS, AMENDMENT
SOR/93-23 — NEWFOUNDLAND OFFSHORE PETROLEUM DRILLING REGULATIONS
SOR/95-101 — NEWFOUNDLAND OFFSHORE PETROLEUM DRILLING REGULATIONS, AMENDMENT
Mr. Bernier: Mr. Chairman, a series of amendments to the regulations made under the Canada Oil and Gas Operations Act, the Canada-Nova Scotia Offshore Resources Accord Implementation Act and the Canada- Newfoundland Atlantic Accord Implementation Act are required to be made as a result of the review of those regulations by the standing joint committee. As indicated in the correspondence, many of these regulations are intended to be consolidated into new regulations. The Department of Natural Resources wanted to know whether the joint committee was disposed to defer the taking of corrective action until this consolidation exercise was concluded.
I replied on November 4, 2002, that I thought this course of action might be acceptable to the joint committee but that I anticipated the committee would want to know whether the consolidated regulations under the Nova Scotia and Newfoundland statutes were also under review at that time by the Department of Justice.
Members have before them the reply dated March 19, 2003, from Natural Resources Canada. That reply confirms that the review of the consolidated Canada Oil and Gas Drilling and Production Regulations, which govern activities in Canada, is expected to be completed in July 2003. As for the similar consolidations that are planned under the Canada-Newfoundland and the Canada-Nova Scotia acts, Ms. Crawford stated that miscellaneous amendments to the existing regulations would likely be processed before the review of the draft consolidated regulations could be completed.
I understand that this means that the amendments requested by the committee in relation to the existing regulations made under those statutes will proceed independently of the consolidation exercise, but this should be confirmed with the department.
The Joint Chairman (Mr. Grewal): Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The next item is under ``Part Action Promised.''
SOR/92-507 — STORAGE OF PCB MATERIAL REGULATIONS
(For text of documents, see Appendix D, p. 9D:1)
Mr. Bernier: Mr. Chairman, changes have been promised in response to the points I raised some in paragraphs 2, 3 and 4 of my letter dated October 8. As for the question posed in paragraph 1 of that same letter, the response was satisfactory.
The Joint Chairman (Mr. Grewal): Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The next items are SOR/92-620 and SOR 96/108.
SOR/92-620 — CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS
SOR/96-108 — CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS, AMENDMENT
(For text of documents, see Appendix E, p. 9E:1)
Mr. Bernier: Mr. Chairman, with reference to Mr. Bernhardt's initial letter, I note that action has been promised on the following issues: the third and fourth paragraphs of point 2 and points 4 to 6, 8, 10 to 15, 18, 20, 26 to 31, 33 and 34, 37 to 39, 41 and 45.
There are a few instances in which an amendment has been promised, but there has been no precise indication as to what form the amendment will take or where the issue that was raised was still under review. This is the case with the issues raised in the third paragraph of point 25, points 32, 35, and 44. The next letter that is sent should seek to clarify the department's intention in relation to those issues.
In a great many cases, it was pointed out that the current enabling authority does not support the regulations, and amendments to the statute have been promised. This is the case with the issues raised in points 2, 9, 22, 23, 25, 40 and 42.
In many of these cases, it would seem desirable to re-enact the regulatory provisions after any amendment of the enabling statute in order to put the validity of the regulations beyond doubt. If the committee agrees with this approach, that comment would be conveyed to the department.
Counsel would suggest that the replies in respect to the issues raised in paragraphs 7, 21 and 24 be accepted as satisfactory.
Turning to point 16 of the letter dealing with section 70 of the regulations, the issue is whether a reference to a condition of release includes a condition of temporary absence or whether temporary absence needs to be expressly mentioned in the provision. It would seem a simple enough matter of drafting, but for some reason the department is adamant that the reference to ``release'' includes ``temporary absence.'' The arguments put forward are a little convoluted and not very convincing. For example, the department points out that section 55 of the act does not refer to ``temporary absences.'' I am sorry, but section 55 of the act, which refers to breach of conditions, does refer to ``temporary absence.'' However, section 70 does not refer to a hearing or review respecting the contravention of a condition referred to in section 55 of the act. It refers to a hearing or review respecting the contravention of a condition of release.
In the end, this is an issue of clarity of drafting. One should not have to rely on an interpretation or a reading that the department characterizes as commonly accepted in the corrections community, or on convoluted interpretations, in order to determine the meaning of an enactment when there is no need. Here, the matter would be easily clarified through a simple change in drafting, and I think the department should be asked to reconsider its position.
In respect of point 17, dealing with section 71, we would suggest monitoring the outcome of the Royer case, in which the validity of this provision is apparently an issue to see what the outcome of a possible appeal would be.
Point 19 deals with the absence of any deadline regarding the time within which the matters and procedural steps mentioned in sections 76, 77(1) and 79(1) of the regulations must be dealt with.
It was noted by counsel that this stands in contrast to the rest of the regulation in which very specific deadlines are set out for various procedural steps. The question was asked that if the requirement for an effective and expeditious grievance process necessitates that other steps in the process be taken within a stated time, do the same considerations not apply to the steps mentioned in sections 76, 77 and 79?
The reply from the department was that ``strict and effective limits relevant to those provisions are imposed administratively, principally in the format of the commissioner's directive.''
I would suggest to members that it would be preferable for these strict and effective limits that have been set administratively to appear in the regulations themselves, as do all other limits in this grievance process.
Mr. Wappel: Mr. Chairman, I have been actively interested in the CCRA for many years. I know that the bureaucracy in this situation takes an extremely long time to move. I want to urge counsel that whatever letter they send that they advise this matter will be back before the committee. We can pick an arbitrary date, but I suggest early October. I am hoping that the issues will become further narrowed by appropriate responses by the department, because when reviewing a pile like this, it becomes a little difficult.
These regulations deal with people on a daily basis, primarily prisoners, but obviously the people who look after them as well as society when the prisoners are released. It is critical that they have a proper foundation.
I would urge that we advise department that we will bring this matter back before the committee in October and that we expect full and complete answers and proper responses by that time and no later.
Mr. Lee: I want to provide a bit of a shock absorber if I could. The regulations here govern an area that has not previously been so highly regulated. It follows upon the passage of relatively new legislation, with which Mr. Wappel is very familiar.
I want to acknowledge the complexity of regulating an area that involves considerations of safety to the public, safety of the institution, administrative efficacy and the Charter of Rights of persons who were inmates.
They are regulating by using new statutory authorities in a field in which we have not done much regulating previously. The warden of the institution was the master of the institution. This matter is complex, and it is not surprising to me that many issues have arisen in drafting and otherwise. I want to put that on the record.
Mr. Bernier: The response from the department has been very good. Overall, there are 41 undertakings to amend the regulations, which is not insignificant. It might also be taken to indicate that a little more work should have been done ahead of promulgating the regulations, but we will leave that. The letter could ask for a reply by October.
The Joint Chairman (Mr. Grewal): Agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The next item is SOR/2000-141.
SOR/2000-141 — COMMISSIONER'S STANDING ORDERS (DISPUTE RESOLUTION PROCESS FOR PROMOTIONS AND JOB REQUIREMENTS)
(For text of documents, see Appendix F, p. 9F:1)
Mr. Rousseau: In this file, the Royal Canadian Mounted Police has promised to correct the discrepancy between the English and French versions which we raised in point number 1, and gave us a satisfactory response with regard to the other point which was raised. We will monitor this case in the usual way and keep the committee abreast of any developments.
The Joint Chairman (Mr. Grewal): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The next item is SOR/2001-520.
SOR/2001-520 — CANADA INDUSTRIAL RELATIONS BOARD REGULATIONS, 2001
(For text of documents, see Appendix G, p. 9G:1)
Mr. Rousseau: As noted in the paper prepared for the committee, the 2001 regulations, as well as amendments to the Canada Labour Code, have addressed 17 concerns raised by the committee with regard to the former regulations. As for the new regulations, amendments have been promised to correct the problems raised in point 1, 2, 3, 5, 6, part of 9, 11, part of 14, and point 15.
However, the response was not satisfactory with regard to certain other points. But I just wish to point out that the problems raised have nothing to do with the legality of the regulations. Let me summarize. In point 4, the board had promised an amendment without providing an explanation, as we had requested. In points 7, 9, 10 and 12, the regulation simply repeated what is already contained in the act. The board has recognized this, but has justified the existence of these provisions for several reasons, including their educational character. But the regulations are a legislative text and should only include provisions of a legislative nature.
We should try to convince the board that these repetitive provisions should be deleted. In point 8, the problem is that the regulations enable a person authorized to act on behalf of the council to issue a summons requiring an individual to appear, if the authorized individual has the necessary knowledge and competency.
Since the board has already authorized these people to issue a summons, why should the regulations require that they have the necessary knowledge and competency? This aspect of the regulations is not clear. The board's answer has left us in the dark as to why this requirement exists for someone who has been authorized to act.
In point 13, the board admits that the drafting of the regulation is fuzzy and explains how it should be interpreted. We would suggest that the regulation be clarified.
Lastly, in point 14, the problem is that the regulation contains a list, which is not exhaustive, of some circumstances in which the board may exercise the power of reconsideration as set out in the Canada Labour Code. The board claimed that this situation is comparable to the one proposed by the committee's legal advisers in point 2.
In fact, in point 2, the proposal which was accepted by the board was to provide a general list of the criteria which the board will take into account when making a decision. This is not the same thing as providing a non-exhaustive list of some circumstances in which the board may agree to reconsider a case, and this distinction should be brought to the attention of the board.
If the committee is in agreement, the committee's legal advisers would recommend to write the board once more with regard to the non-satisfactory aspects of its response.
The Joint Chairman (Mr. Grewal): What is the nature of those skills? Are they language skills or technical skills?
Mr. Rousseau: That is not clear.
In their response, they said that they wanted a guarantee that things will be done well, which does not really explain why these individuals were given the authority to act in the first place, and that the regulations require that these authorized individuals have the necessary knowledge and competency. The regulations do not explain what the nature of this competency is.
Mr. Bernier: The implication here is that the board would authorize persons who do not have sufficient knowledge, who are ignorant and incompetent. Why would they have been designated in the first place? If they have been designated, is that not based on a finding that they have the required competence?
The Joint Chairman (Mr. Grewal): Are we agreed on the conditions?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The remaining agenda items are under the headings ``Action Promised'' and ``Action Taken.''
SOR/2000-288 — UNITED NATIONS ERITREA REGULATIONS
SOR/2000-289 — UNITED NATIONS ETHIOPIA REGULATIONS
(For text of documents, see Appendix H, p. 9H:1)
SOR/2000-93 — REGULATIONS AMENDING THE GOVERNMENT WHARVES REGULATIONS
(For text of documents, see Appendix i, p. 9I:1)
SOR/2001-445 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS
(For text of documents, see Appendix J, p. 9J:1)
SOR/2002-308 — REGULATIONS AMENDING THE PUBLIC PORTS AND PUBLIC PORT FACILITIES REGULATIONS
(For text of documents, see Appendix K, p. 9K:1)
SOR/2002-358 — REGULATIONS AMENDING THE PUBLIC PORTS AND PUBLIC PORT FACILITIES REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix L, p. 9L:1)
SOR/2002-372 — STANDING ORDERS AMENDING THE COMMISSIONER'S STANDING ORDERS (PRACTICE AND PROCEDURE)
(For text of documents, see Appendix M, p. 9M:1)
SOR/2002-424 — REGULATIONS AMENDING THE CHARTS AND NAUTICAL PUBLICATIONS REGULATIONS, 1995
(For text of documents, see Appendix N, p. 9N:1)
Mr. Bernier: I can inform members that the revocation of the United Nations Eritrea and Ethiopia regulations, which was promised in respect of the first two SORs, took place in early April.
The other instruments revoke some seven sections objected to by the committee and amend three other sections in a manner that meets the committee's concerns.
There are 58 statutory instruments submitted without comment.
Mr. Lee: On the record, I would like to invite the honourable senators present today to do whatever they can to facilitate what is now known as Bill C-205 in the House. It can be assumed that the bill will reach the Senate fairly soon, where hopefully it might be adopted before the Senate breaks for the summer. I ask senators to do what they are able to do to facilitate that.
The Joint Chairman (Mr. Grewal): I join you, Mr. Lee, in your appeal to the senators. It would help us to accomplish what is so near and dear to the committee's heart.
Mr. Lee: Mr. Chairman, I did not have an opportunity to meet with what would constitute the steering committee of this committee. Did the joint chairs of the committee have any comment on the CRTC Part II fees that we had reviewed? In my opinion, the committee should attempt to dispose of it as quickly as possible because, obviously, we are entering into the summer recess.
The Joint Chairman (Mr. Grewal): Hearings were pending. Has there been any progress regarding those who wanted to appear before the committee?
Mr. Bernier: There has been no progress, Mr. Chairman. Counsel was asked to look at two sets of regulations — two sets of fees. We reviewed them and provided our view to the committee that we would find it difficult to advise that these instruments breached or contravened any of the scrutiny criteria.
Given the interest of the committee, it was simply suggested that members might want to have information or hear from representatives of the relevant departments to obtain information on those fees. That was done.
That is the extent of our involvement or our suggestion. If the committee wants to do something further, then presumably the committee will tell us what it wants us to do.
Mr. Lee: Mr. Chairman, it was my reaction, although it may not be shared by all members, that there was something reportable as an issue. Clearly, we will need more discussion at the steering committee level and further consultation with our counsel. I will simply indicate my desire to do more work on that file.
The Joint Chairman (Mr. Grewal): In the meantime, if I understand correctly, you are indicating that we should have a report from the committee.
Mr. Lee: We had better talk about a report and its content. I have had no indication yet that members around the table feel the same way that I feel. If there is consensus, then I would like to proceed as soon as practicable.
The Joint Chairman (Mr. Grewal): We have consensus from a show of hands. We can proceed on this issue as quickly as possible.
I wish all members well over the summer recess.
The committee adjourned.