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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations
Issue 2 - Evidence, March 25, 2004
OTTAWA, Thursday, March 25, 2004
The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:37 a.m. for the review of Statutory Instruments.
Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.
The Joint Chairman (Mr. Grewal): I call the meeting to order. The future is very uncertain but, for scheduling purposes, we have future meetings decided. The dates proposed are April 22, May 6, May 27 and June 10. For planning purposes, it is important that we know the schedule of meetings. Is there any comment about scheduling?
The next item on the agenda is our budget, which members have copies of. I will have the clerk explain the budget to us, and then we will pass it.
The Joint Clerk (Mr. François Michaud): I believe everyone has received a copy of the document. The budget covers the 2004-2005 fiscal year, that is the period from April 1, 2004 to March 31, 2005. It is similar to previous budgets. In addition, it includes hypothetical budget items designed to meet the committee's financial requirements for the coming fiscal year.
If you have any specific questions about the budget, I would be happy to answer them for you.
The Joint Chairman (Mr. Grewal): Is there any increase or decrease from the previous year?
The Joint Clerk (Mr. François Michaud): Yes, this represents an increase of approximately $4,000 over the previous fiscal year, to cover any unexpected expenses.
The Joint Chairman (Mr. Grewal): Are there any comments?
Senator Kelleher: There is nothing in here for world travel?
The Joint Chairman (Senator Hervieux Payette): You will not travel around the planet for that.
Senator Kelleher: Every other committee has, so I was wondering what the problem was.
The Joint Chairman (Mr. Grewal): Are there any comments?
Mr. Macklin: For my curiosity, is there a comparison to what we spent last year?
The Joint Clerk (Mr. Michaud): The last page has some information on the previous fiscal year. It is provided by the two sessions. To date, I do not have figures available for the third session because we are still in it and I have not finished my accounting.
Mr. Macklin: Were there any concerns expressed in respect of that budgetary use from last year that ought to be translated into this particular budget? In other words, were any expenditures made that we should look at that were over budget last year?
The Joint Clerk (Mr. Michaud): Not that I am aware of.
The Joint Chairman (Mr. Grewal): It is a very conservative budget; we do not have much room to play with it.
Are there further comments?
If not, I need a motion to pass the budget.
Mr. Macklin: I so move.
The Joint Chairman (Mr. Grewal): All those in favour?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): Our next item of business on our agenda is ``Special Agenda Items.''
SOR/93-3 — OIL POLLUTION PREVENTION REGULATIONS
Mr. François-R. Bernier, General Counsel to the Committee: Thank you, Mr. Chairman. The joint chairmen's letter of September 23, 2003, refers to the earlier letter of February 11, 2003, in which the joint chairmen had indicated on behalf of the committee that immediate corrective action should be taken with regard to two sections of the oil pollution prevention regulations that are ultra vires the Canada Shipping Act. The joint chairmen had indicated in that letter that, unless such corrective action was taken shortly, the committee would give consideration to making a report to the Houses or possibly proposing disallowance of the sections in question.
These two provisions sought to impose obligation on persons other than persons on board a ship. The required authority to impose these obligations has now been granted by Parliament in the Canada Shipping Act, 2001. However, the committee at the time was not disposed to wait until that act came into force.
I might add that the Canada Shipping Act, 2001, has yet to be proclaimed into force.
I am glad to report that the March 10 issue of the Canada Gazette Part II includes an amendment that both revokes sections 41 and 43 of the regulations and amends section 44 so as to remove a reference to the supervisor of a transfer operation. That brings the oil pollution prevention regulations in conformity with the current enabling authorities.
The making of this amendment resolves the issues and the committee can close its file on SOR/93-3.
The Joint Chairman (Mr. Grewal): Are there comments? Are all in favour of the recommendations?
Hon. Members: Agreed.
SOR/94-439 — NATIONAL PARKS CAMPING REGULATIONS, AMENDMENT
SOR/94-512 — NATIONAL PARKS GENERAL REGULATIONS, AMENDMENT
Mr. Jacques Rousseau, Counsel: The Joint Committee adopted the fourth report at its meeting of November 6, 2003. Members will recall that the committee decided at the time to ask the government to respond to the report within 90 days, rather than the 150-day time frame set out in House of Commons Standing Order 109. The 90-day delay expired on February 5 last and the government has yet to table its response. That is the reason why this matter is before the committee today.
When the decision was made to request a response within 90 days, the committee was aware that the government was not bound to comply. The government would be obliged to table a global response within a specific time frame only if the committee had made a request in accordance with Standing Order 109.
The government may choose to respond within 115 days, which would bring us to April 5. I suggest the committee wait until then and if an answer has not yet been provided, it could decide on a further course of action.
The Joint Chairman (Mr. Grewal): Are there any comments?
I should like to ask a question of counsel regarding the expiry date to request a response from the government. We tabled a report about tier-two broadcasting, and the 150 days expired today. Originally, we had asked for a response within 45 days — perhaps it was 30 days. We received a letter from the deputy minister requesting 150 days, and that will expire today. It is not on the agenda.
Mr. Bernier: I believe, Mr. Chairman, that deadline, subject to correction, expires tomorrow.
That file will obviously be on the agenda for the next meeting of the committee — either with or without the government response — at which time the committee can decide how it wants to deal with it.
The Joint Chairman (Mr. Grewal): We will now move to ``Reply Unsatisfactory'' on the agenda.
SOR/2000-221 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS
(For text of document, see Appendix A, p. 2A:1)
Mr. Bernier: Mr. Chairman, under the Canada Post Corporation Act, the corporation may, with the approval of the Governor in Council, make regulations prescribing rates of postage. Until the making of SOR/2000-221 in June 2000, when it was necessary to increase postage rates for a domestic letter, Canada Post would invariably make a regulation increasing the rate, and that regulation would then be submitted to cabinet for approval. That approach, of course, was entirely consistent with the act.
In 2000, in this regulation, Canada Post adopted and the Governor in Council approved a regulation that puts in place a mechanism for automatic increases in the domestic letter rate every January 1, without the need for subsequent cabinet approval of those increases. The mechanism in question relies on a formula that is based on a percentage increase in the consumer price index.
Now, the first objection to this approach is that the adoption of the formula cannot be seen as prescribing rates of postage. The corporation disagrees and relies on the conclusion to an opinion from the Department of Justice, according to which the authority to prescribe includes both the ability to prescribe an actual rate and the ability to prescribe a formula from which it is possible to determine the actual rate. In his latest letter, Mr. Olsen argues for the taking of a ``broader approach'' to the interpretation of the power to prescribe rates of postage.
The broader approach advocated here, in my view, amounts to denying the distinction between a power to make regulations prescribing rates and the making of a regulation respecting rates. That distinction exists. It has long been acknowledged in federal legislative practice and, I believe, should be followed in this case.
If one can envisage a fee being prescribed with reference to a formula, at the very least all of the elements of the formula must be known and certain at the time of the making of the regulation, so that what the rate will be is known at the time that the regulation is made, even if a formula is used. In this case, obviously, this cannot be the case because one does not know what the consumer price index will be or what average the percentage will be.
Still on this question of the scope of the power to prescribe rates of postage, Mr. Olsen refers to two decisions: One is the decision of the Ontario Court, General Division, in Re Eurig Estate; the second is that of the Supreme Court of Canada in Canada (Attorney General) v. Compagnie de Publication la Presse Ltée.
The Re Eurig Estate case involved an ad valorem fee, and I question the relevance of that case to this regulation. In terms of the ad valorem fee that had been prescribed by the Lieutenant Governor of Ontario in Re Eurig Estate, the amount was known at the time the regulation was enacted. There were, to quote Mr. Olsen, no ``variables determined at future dates.'' In that case, the amount that would be payable on a $1-million estate was known. An individual knew that he or she was paying 5 per cent. So anyone looking at the regulation could know what the fee was.
The amount in the case of this formula is not known in a similar fashion. At this point in time, no one can say what the rates of postage will be in 2006 or 2009, contrary to what occurs with an ad valorem fee.
As regards the decision in Canada (Attorney General) v. Compagnie de Publication la Presse Ltée, Mr. Olsen states that the Supreme Court decision essentially turned on a consideration of the meaning of the word ``prescribed.'' That is not an accurate description of that decision. The issues in that case have to do with retroactivity. That case turned on whether the fees imposed constituted an illegal tax and whether it was the Governor in Council or the minister who was authorized to prescribe the fee. The court made these comments as they relate to the scope of the power and the authority to prescribe rates of postage.
I should like to turn to what is really the principal objection to the technique used in this regulation. The scheme is fundamentally at odds with the intent of Parliament. Rates of postage have always been considered to be a very significant matter by parliamentarians, as anyone who was around at the time of the passage of the Canada Post Corporation Act can attest.
Parliament, in passing that act, delegated to the corporation the authority to prescribe rates of postage for domestic mail. Parliament, however, also decided that whenever the corporation exercised that authority the exercise of the authority would be subject to approval by the Governor in Council. In other words, the act makes it clear that Parliament intended that any increase or change in the rates of postage would be subject to the control of ministers of Crown advising Her Excellency. Those same ministers, of course, are then accountable to the House of Commons for the decision to approve or refuse to approve a rate change or increase.
The fundamental objection of the regulatory technique used here is that it is designed to set aside this political control mechanism that Parliament intended would apply to changes in the rates of postage. The rates, for example, were increased this past January in accordance with the challenged regulation. The question is simple: Did cabinet approve a 49-cent postage rate for domestic mail effective January 1? The answer is clearly that cabinet did not approve. That rate of postage was established automatically on the basis of the formula established in June 2000. Had a regulation increase in postage to 49 cents been submitted to the Governor in Council for approval, cabinet would then have had the opportunity to reject that increase. That is the purpose of the approval requirement in the statute. This requirement is being evaded here.
In his reply, Mr. Olsen goes on at length about various ways other than through a formal approval process — which he says could be used by the government to influence Canada Post, if there were disagreement with a rate increase. This is all good but none of this addresses the fact that the result of the regulation here is that postal rates will be increased without approval of the Governor in Council given in accordance with the Canada Post Corporation Act.
Canada Post can adopt whatever means it wishes for determining rates of postage for a given year, including basing the rate increase on the change in the consumer price index. However, it cannot implement such a rate without obtaining the consent of the Governor in Council.
The regulation before the committee is nothing short of an attempt by Canada Post to amend an act of Parliament by removing the approval requirement that legislators chose to impose in that statute.
Senator Harb: I can see where we are coming from and where Canada Post is coming from. If Canada Post were to go to cabinet and say, ``It is within your jurisdiction to approve on an annual basis, based on the act, any increases that might be brought forward, or to reject any proposed increases; would you give us blanket authorization to do so?''
If we were to write to Canada Post and tell the corporation to go to cabinet and get that clarification from cabinet — that they have a carte blanche to proceed — would they subsequently be able to change rates automatically without submitting to cabinet every time?
If the act provided that the government has that authority, one would think then that the government could delegate the authority to Canada Post.
Mr. Bernier: Cabinet cannot renounce a power, an obligation or a duty that is imposed on it by statute. Parliament here has said that if the corporation changes the rate of postage, we, the legislators, want this to be approved by cabinet. The reason is obvious — that is, so there will be accountability, because those ministers who advise the Governor in Council are accountable to the House of Commons. In other words, there was to be political accountability for changes in domestic letter rates.
Senator Harb: The logical thing to do then is to bring this matter to the attention of the minister responsible. You have communicated with the counsel general for Canada Post.
Mr. Bernier: I think that you are right.
Senator Harb: He should take a note of this. At the end of the day, it is affecting their authority. They may not be aware of that.
Mr. Wappel: I want a bit of clarification on two points. Mr. Bernier, have you conceded that the formula is arguably correct? That is what I thought you said. I thought you said that they could make any formula they want as long as the rate change is approved by Order in Council.
You are shaking your head, so the answer is, no, you have not conceded that point in your own mind; is that right?
Second, is the relevant section of the act to which you are referring — the one that is quoted in Mr. Power's letter — 19(1)?
Mr. Bernier: The answer to the second question is yes.
The answer to the first question is a mitigated yes. What we are prepared to recognize is that, where a formula is prescribed — a formula, if you will, that, upon looking at the regulation, will tell you exactly what the rate would be.
This may be a poor example — but it is the difference between a formula that would say the fee is, say, $5 minus $2, divided by whatever amount, plus such other amount. That is a formula. All the elements of that formula are fixed. In other words, at the time one looks at the regulation, he can apply the formula and know exactly what the fee is, and will be, so long as that regulation remains in force.
Here, we have a formula that relies on future variables that are unknown at the time the regulation is made. You look at the regulation today, because you do not know what the percentage increase in the consumer price index will be for next year or the year following, and so on.
The latter is still a formula, but it is not a formula that can be accepted as being equivalent to prescribing a rate.
Mr. Wappel: Let me challenge you a bit, if I may. As I see this, it is a difference of legal opinion. As I see Mr. Olsen letter, he is merely a messenger for the opinion of the Department of Justice. It suits Canada Post's purposes, but he makes clear that everything he is arguing is based on a team of advice from the Department of Justice.
On the one hand, the Department of Justice, on the other, counsel to this committee. How do we resolve a difference of legal opinion without direction of court?
On page 3 of Mr. Olsen's letter, he refers to Re Eurig Estate. Let me quote:
The Court rejected that argument and held that ``the use of the word `prescribe' was intended to give wide authority for regulations to be made that set down a specific rule or direction on how the fees were to be calculated including fees on an ad valorem basis.''
The use of the quotation marks there leads me to assume that it is a direct quote from the case. Generously read, that would give authority, in my view, for the first part of the argument, which is to prescribe a rule or direction on how the fees are to be calculated. We may not know what the consumer price index is for any particular year; however, we know there is a consumer price index and that it is calculated on a yearly basis. At least to my mind, it is arguable that Re Eurig Estate might address the concern that you have expressed on the prescription.
Section 19(1) of the Canada Post Corporation Act reads as follows:
The Corporation may, with the approval of the Governor in Council...may make regulations
(d) prescribing rates of postage and the terms and condition and method of payment thereof;
One could read that as follows: If the Governor in Council has approved the formula, that is it.
Senator Harb: That is my point.
Mr. Wappel: I am not saying that I disagree with your approach. I am saying that I can see that there is another argument. We have two legal arguments, and somebody has to decide between them. My problem with going to the minister — I do not even know who the minister is — is that it is unlikely that the minister is a retired judge or has any experience in deciding cases. Therefore, that minister clearly will seek the opinion of their lawyer, and their lawyer — the Department of Justice — will say that it is correct.
Now, what is the suggestion? I do not think we can appropriately argue this on the floor of the House of Commons. The issue is simply too technical. Do we bring the Department of Justice here in an attempt to convince them through questioning and legal arguments that they are wrong? Senator Harb wants to write to the minister. That is fine, and it is okay with me. Obviously, if I were the minister, I would turn to my lawyer, and my lawyer would tell me that this committee is wrong. It is clear; it is in the correspondence.
What do we do next? That is all I am asking. I am happy to write to the minister. I can certainly see that there are arguments on the other side, on both aspects.
Having said that, I think your political analysis is correct, although I was not here when the act was passed, and I think postal rates are sensitive. Politically, the idea was that, when a postal rate is increased, cabinet should look at it and determine whether there will be some political problem. I think that is a correct political analysis.
Whether that translates into how this was done — I can certainly appreciate the arguments on the other side.
The Joint Chairman (Senator Hervieux-Payette): May I ask a question on this? For instance, is it automatic or do they pass the regulations for the increase?
Mr. Bernier: There is no longer a regulation; it is automatic and is simply announced.
The Joint Chairman (Senator Hervieux-Payette): If the government were not in agreement, what would it do? Would the government write in December to advise Canada Post to not apply the formula on January 1?
Mr. Bernier: That is the point.
The Joint Chairman (Senator Hervieux-Payette): That is my point, too.
Mr. Bernier: Lawfully, the government, having approved the formula, no longer has that input. Any future amendment to a regulation must come from the corporation. The government cannot even say that it no longer likes the use of the formula and that it is beyond what it considers to be reasonable, for whatever reason. The government cannot say that it will repeal this regulation because it is an approval authority. The corporation must go to the government and say that it wants to repeal the regulation.
The Joint Chairman (Senator Hervieux-Payette): On page 5 of Mr. Olsen's letter, he writes:
In the event that for any reason the Government considers that a rate increase should not proceed, the reality is that this would undoubtedly lead directly to Ministerial and/or Governor in Council involvement and/or intersession. Governor in Council is far from being ``powerless'' as Canada Post remains under Government supervision through the regulatory mechanisms established for the oversight of Canada Post.
If they do not like it, then they can do something about it.
Mr. Wappel: Page 4, in the middle, specifically addresses the arguments of Mr. Bernier. Whether it is correct is another matter. They acknowledge the argument, address it and say that there is a six-month pre-approval notice time, that if it is not liked it provides ample opportunity to amend the regulation prior to implementation. That is their answer. I am not saying it is correct or incorrect but it is their answer. Theoretically, regulations can be amended any time, provided one wants to move swiftly on it, in theory. I am not saying in practice that that would happen. However, his answer to that specific objection is that there are six months before the increase takes effect, that the government does not like the response to the increase — for example, if it is getting bad press — it has six months to move on it, change the regulations and backdate or refuse to allow the increase in the stamp fee. That is what he says.
Senator Harb: That is negative billing.
Mr. Bernier: The reference here is to the consumer price index. The relevant period is May to May. In May of the preceding year, you can know what the rate increase will be in the domestic letter rate.
The senator correctly quoted this reference, and I did mention this in my presentation. Mr. Olsen referred to the realities. My suggestion is that this is a far cry from a legal right, to say that the Governor in Council, ministers or the Prime Minister can call the chairman of the Canada Post Corporation and say, ``I am not too keen on where this rate is going to be,'' that is true. Those are the realities. These are not formal legal means, and they are not what Parliament provided for when it provided for an approval power.
I think that addresses this. Obviously, one recognizes that there is even a power of directives, so that ultimately the government could direct Canada Post to submit a regulation revoking this regulation if it changed its mind. That does not address the in between, the fact that you now have rate increases taking place year after year without formal cabinet approval, for which ministers are accountable to the House of Commons, which in my view, again I suggest, was the intent of legislators.
I was around when the Canada Post Corporation Act was passed, and I well remember the strength of the debate. I believe the senator was here as well. This was contentious legislation at the time. Not everyone agreed, because postal rates traditionally had been fixed by the government — and certainly not everyone agreed with the creation of the Canada Post Corporation, much less delegating to that organization the power to set rates.
Mr. Wappel: Mr. Bernier, if section 19(1)(d) of the act said ``prescribing the method by which rates of postage can be determined,'' your argument would be gone.
Mr. Bernier: The argument would be gone, which is why I referred to the federal legislative practice in this area. You find two kinds of provisions in statutes — prescribing a rate or a fee, and prescribing the method or the manner of the determining. When Parliament wants to give that authority, it gives it. It is a well-known formula. A number of statutes will give a delegate the authority to prescribe a fee or the manner of determining a fee. There is no problem with that.
Even if this said ``respecting rates of postage,'' the matter would have to be looked at very differently. That is a much broader enabling power.
I do not think Parliament wanted to give such a broad power here.
Mr. Wappel: I would recommend that, when writing to the minister, we use that very example. My recommendation is that we say the following to the minister: ``If (d) had been worded in the following manner, the committee could say nothing. It was not worded in that manner. That is why we are bringing this to the attention of the committee.''
The formula will not change because everybody is happy with it. Perhaps we can get the act amended at some point to allow the formula to continue pursuant to legal amendment to the act.
Mr. Bernier, you know that is what will happen. Everybody is quite content now, it would appear, with the way the stamp rate is set.
Mr. Bernier: Ministers certainly are.
Mr. Wappel: We do not hear the kind of huge battles that occurred at the beginning. The simple solution for everybody here would be to amend (d) with a word or two. That would be it folks, instead of all these huge legal battles.
Perhaps we can put that into the ear of the minister and point out that we are objecting because the way it is worded indicates that it should be more than what it is, or something to that effect, so that we give the minister a way to approach his department and his legal counsel to see if there is some way we can resolve this.
Senator Harb: To make a point in support of Mr. Bernier's argument, this amounts to negative billing. In other words, I will do it, and tell me if you do not like it. We know that Parliament has said no to negative billing.
This is exactly what is happening in this situation. Their argument is that they will do it. If the government does not like it, then they will tell us not to do it.
I think it is a good idea to write to the minister to rebut the contents of the letter to their counsel. We should stress the importance, as Mr. Wappel has indicated, that should they wish to give a permanent delegation of power to Canada Post, do so through the act.
The Joint Chairman (Senator Hervieux-Payette): I should like to raise the bigger picture, which is collecting taxes. It is in line with our criticism about the CRTC and other institutions collecting money indirectly and putting it in general revenues.
Since we are now undergoing a revision of tax collection and the management of government, I would submit to you that this question is very important. We know that many Crown corporations are collecting taxes indirectly and that services to users are not in line with the costs.
There is, in this case, a 40 per cent dividend and an 11 per cent return on equity. We collect $175 million.
We have seen that in many organizations throughout the government. If we are going to talk about transparency, we should know how much tax we are paying, after adding up all the taxes collected through all these agencies.
That is the purpose of it; let us not kid ourselves. I have much sympathy — regardless of who is setting the rate. I know who is benefiting from it.
This would be in line with what Treasury Board wants. We have seen them in other instances. They are happy with this way of collecting.
I would put that in the broader context of just who is determining the rate. You the come back to the substance, which is why would the government be obliged to propose it? You would then know that it is a tax.
That is where I stand. I feel that, if we are to address the question, it should not be in a narrow way but by looking at the much broader picture.
The Joint Chairman (Mr. Grewal): I agree with the senator. We need to look at broader picture.
Keeping in consideration all the varied views, is the committee of the opinion that we should write to the minister, incorporating the suggestions and recommendations of Mr. Wappel and Mr. Harb? Is where we are heading clear?
Hon. Members: Yes.
Mr. Bernier: If I may, Mr. Chairman, I forgot to address earlier Mr. Wappel's initial comments about there being a difference of legal opinion. I am sure Mr. Wappel will know from his long experience on this committee that that is nothing new, exceptional or extraordinary. In fact, it is routine on this committee. That is the bread and butter of this committee.
There are differences of opinion. That has never stopped the committee before. The committee adopts a particular stance.
The Joint Chairman (Mr. Grewal): A letter will be prepared and sent.
SOR/92-507 — STORAGE OF PCB MATERIAL REGULATIONS
Mr. Rousseau: According to the department's letter, even though the process has taken longer than expected, the required consultations have been carried out and the draft regulations should be published later this summer. Committee counsel will continue to monitor this file and will keep members apprised of any developments.
SOR/88-230 — FRONTIER LANDS REGISTRATION REGULATIONS
SOR/88-263 — NEWFOUNDLAND OFFSHORE AREA REGISTRATION REGULATIONS
Mr. Rousseau: The department's latest letter confirms that the Justice Department is slated to complete its review of the draft regulations by the end of May 2004. The question mark in terms of the progress made on these files, as shown in the committee's chronology, reflects the fact that matters have not exactly progressed as expected.
Committee counsel will monitor these files to see what transpires between now and the end of May. If any new delay is expected, the committee may have to consider asking the joint chairs to write another letter to the minister.
The Joint Chairman (Mr. Grewal): Something was lost in the translation.
Mr. Bernier: The recommendation by Mr. Rousseau is essentially that if this is not done by May, which is now the latest of many deadlines that have been provided, at that point the committee might consider giving an instruction to the chair to write to the responsible minister to prod this along.
The Joint Chairman (Senator Hervieux-Payette): If I understand correctly, you have chronicled developments in this file since August 9, 1988. The department was contacted on December 14, 1990, on December 13, 1991, on April 24, 1992 and so on and so forth. You list all of the dates over three pages. Why wait until May to write another letter when we could do so right away, particularly since the month of June is fast approaching? In my view, if we wait until May, that is already too long a wait.
Mr. Rousseau: If that is what the committee wants to do, then I have no problem with that decision.
Mr. Bernier: So then, the committee will write the minister right away to obtain his cooperation and will ensure compliance with the last deadline.
The Joint Chairman (Senator Hervieux-Payette): Is everyone agreed?
Senator Harb: That is precisely my point. I came on and off this committee and I remember this item dragging along forever. It does not seem to go away. I think that it is a good idea to do that as quickly as possible.
The Joint Chairman (Senator Hervieux-Payette): It is a job creation program.
Mr. Wappel: Mr. Chairman, luckily we have corporate memory on this committee in the form of our counsel. In the event that there are no chairs in May, and in the event that this committee is reconstituted at some point in the fall, could I ask counsel that this be on the order of business of the first meeting of the committee, unless everything has been done, obviously.
If it has been done, wonderful. If not, perhaps it could be on the agenda immediately. Whoever is here could be apprised of the fact that it has a long history and was promised to be resolved in May.
The Joint Chairman (Senator Hervieux-Payette): I agree.
The Joint Chairman (Mr. Grewal): Any other comments?
We did what we thought should be done.
SOR/78-213 — NATIONAL PARKS GENERAL REGULATIONS
SOR/82-949 — NATIONAL PARKS GENERAL REGULATIONS, AMENDMENT
(For text of documents, see Appendix, p. 2B:1)
Mr. Rousseau: First off, let me point out an error in the title of the English version of the note drafted for the committee. The regulations should be numbered SOR/78-213.
As the note indicates, most of the points raised by the committee have been resolved. The department has provided a response that the committee has deemed to be satisfactory. Either it has moved to amend the regulations or to bring in legislative changes, such as the new National Parks Act, which came into effect on February 19, 2001. Regulatory authority has thus been clarified.
The four outstanding issues were restated in the letter dated March 31, 2003. The department has confirmed that amendments will be made to correct three of the problems identified. Regarding section 33, the department informed the committee, in the last paragraph of a letter dated March 3, 2004, that its comments will be discussed at greater length with Justice Department officials. This could be considered standard procedure since this provision must be examined in the light of the Canadian Charter of Rights and Freedoms to see whether it might be best to do away with section 33 of the regulations, rather than amend them, as originally planned.
Committee counsel will monitor this file and keep members apprised of any developments.
The Joint Chairman (Mr. Grewal): Are all in agreement?
Hon. Members: Yes.
The Joint Chairman (Mr. Grewal): We will move on to the next item.
SOR/92-620 — CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS
SOR/96-108 — CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS, AMENDMENT
Mr. Bernier: Mr. Chairman, the correspondence before the committee concerns some outstanding issues in relation to these regulations.
Turning to the sections listed under points 2, 9, 22, et cetera, of the letter of September 2, 2003, the department acknowledges that these provisions for which there is currently no statutory authority will be re-enacted following the passage of Bill C-19, if it does pass.
Amendments are promised in relation to the matters discussed under points 16, 25 and 44 of the letter of September 2.
Point 19 of that letter deals with three provisions that do not impose any time limit for the taking of certain actions or doing certain things by correctional authorities, in respect of the inmate grievance procedure. It had been pointed out that these provisions stand in contrast with other provisions in the same part of the regulations that do set out limits for the taking of various steps or procedures by a grieving inmate. The reply received from the department on that point prompted a second letter, dated November 24, 2003, from counsel, in reply to which the department indicated that officials are examining the issue.
The same is the case with the issues raised under points 32 and 35 of the first letter, of September 2, 2003. As for all the other promised amendments, progress on those is tied to the fate of Bill C-19.
The Joint Chairman (Mr. Grewal): At what stage is Bill C-19?
Mr. Bernier: It was at first reading the last time I looked, two days ago.
Mr. Wappel: Mr. Chairman, this act and any amendments to it are of particular interest to me because I was on the Justice Committee when it was passed and I was on the subcommittee when it was reviewed. I am not comfortable with the following phrase in the letter dated December 19, 2003:
...I am advised that Departmental officials are in the process of consulting with representatives of Correctional Service Canada in order to examine the point you raised.
The point you raised is the one that is in point 19. Is that correct?
Mr. Bernier: Yes.
Mr. Wappel: It is the grievance procedures, which is not a terribly complex issue. I note that Mr. Bernhardt wrote on March 5, 2004, to ask if those consultations were over. I ask if you would specifically ask if they are not over and when they are expected to be over because this will be just talked into oblivion. I think it is important that grievance procedures, as the letter says, have a fixed time to them. The conditions are such that if the grievance procedures are not felt to be fair, then it can sometimes have repercussions in the prison system. It is important to push this along.
The Joint Chairman (Mr. Grewal): Are there any comments?
Mr. Bernier: No. We will write a second letter and make that point.
The Joint Chairman (Mr. Grewal): All those in favour?
Hon. Members: Agreed.
SOR/2001-84 — LAURENTIAN PILOTAGE TARIFF REGULATIONS
(For text of documents, see Appendix C., p. 2C:1)
Mr. Rousseau: Three points were raised by committee counsel with respect to these regulations. Points 1 and 3 concern the drafting of the regulations. The department has provided a satisfactory response in so far as the first point is concerned and has promised an amendment for the third one. The response provided was deemed unsatisfactory in the case of the second point. Pursuant to section 6 of the regulations, the charges payable for the use of a pilot boat are equal to the cost incurred by the Authority in providing the service. Counsel has suggested that section 6 be amended to specify that these are reasonable expenses incurred by the Authority, as is stated elsewhere in the regulations in the case of charges payable by the pilots.
In a letter dated January 29, 2004, the department rejected this suggestion, arguing that the legislation already requires the Authority to impose reasonable charges. That is not exactly true.
As can be seen from section 33 of the act, which is reproduced in the letter of January 29, 2004 on which the department has based its position, the legislation stipulates that the charges imposed by the Authority must be reasonable. Section 33 of the act restricts the Authority's regulatory authority and this limitation must be reflected in the regulations. This is true in the case of the charges payable by pilots and, in the opinion of counsel, it should also be true of the charges incurred by the Authority. If the committee is in agreement, counsel will write to the department once again to explain why the reply to the second point raised is unsatisfactory.
The Joint Chairman (Mr. Grewal): All those in favour?
Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): The letter will be written.
SOR/2002-164 — NATIONAL CAPITAL COMMISSION ANIMAL REGULATIONS
(For text of document, see Appendix D, p. 2D:1)
Mr. Bernier: First, I will draw the attention of members to a brief submitted by Mr. Robin Quinn in relation to these regulations. The brief, which is dated January 18, 2003, as well as an executive summary, dated September 5, 2003, were included in the material distributed to members. The English version of these documents follows the correspondence between the NCC and counsel.
The French version of the documents was distributed at some point yesterday and as it so happens, the clerk has additional copies.
I have no comments to make at this time in respect of this brief other than to note that it raises a number of issues that go to policy or that involve matters that are not strictly related to scrutiny criteria of the committee.
With your permission, Mr. Chairman, I shall begin by reviewing the issues raised by counsel following a review of these regulations and obtain the guidance of members on those issues. Once that is done, the committee may decide how it wants to deal with Mr. Quinn's submission, which included the request to appear before this committee.
These regulations, in the words of the regulatory impact analysis statement, ``prescribe the rules governing animals on unleased NCC lands and on commission lands leased for residential or agricultural purposes.''
It would be helpful at the outset to recall that its enabling statute contemplates that the NCC can make regulations under three headings: the protection of commission property; the prevention of accidents, presumably on commission property; and the preservation of order on commission property.
The first problem raised by counsel relates to the definition of ``domestic animal.'' The breadth of this definition means that the regulations in question apply to all species of vertebrate domesticated by humans, with the exception of fish. I have suggested to the NCC that the resulting scope of the regulations brings them beyond the enabling powers.
Ms. McNeil denies that the regulations suffer from over-breadth and states the definition is intended to capture all species and vertebrates that are or are capable of being kept as pets by persons using NCC property.
I come back to the one example that I used to illustrate my comment to the NCC, which is that of the tenant who would keep four songbirds in a cage. That tenant would be in breach of section 17(1) of the regulations.
The question that Ms. McNeil does not address in her reply is how a prohibition against possessing four songbirds in a house on leased NCC property is either necessary or required for the protection of commission property. How is this a regulation designed to prevent accidents? Can such prohibition be characterized as being necessary for the preservation of order on commission lands?
There is little question that these regulations are primarily directed at one species of vertebrate — a favourite of mine, dogs. The NCC, however, for what appears to be public relation reasons, wishes to be able to assert that it is applying these controls to all pet animals, not only dogs.
While there may be something to commend that approach from a public relations point of view, it is not exactly conducive to good regulation making from a legislative point of view. When you legislate, you legislate to the extent necessary to achieve a proper authorized purpose of the statute. As I say here, through this definition, which of course extends the scope of all the provisions of the regulation, the NCC is really overreaching its delegated powers.
The issue raised with respect to point 2, the definition of ``keeper,'' concerns the inclusion in that definition of the father or mother of a minor or any other adult responsible for a minor. A minor in this case is confirmed by Ms. McNeil as anyone under the age of 18 years. This means that, in the event a minor, a 17 year old, for example, contravenes a regulation, a parent could be held liable for the breach. In effect, the result of that provision is that a parent can be deemed to have committed the offence actually committed by the minor and could be fined or imprisoned.
The imposition of such vicarious liability goes beyond the powers of the commission and would, in my view, require express grant of legislative authority from Parliament. That is lacking here. I would suggest that the committee consider this provision to be ultra vires the act.
Senator Harb: I agree with you that the intent is for dogs. I would beg this committee to stay as far away as it can from this issue. In my 15 years as a Member of Parliament, I received more representation on this issue of dogs than on any other — leashed, unleashed, dogs defecating on NCC property.
Mr. Bernier, is there any possible way we can meet with the NCC to try to deal with those issues? I am sure the NCC would be more than happy to meet with us, to see if there is some way around this, without throwing this entire notion out the window and starting all over again.
There was almost a revolution in the city of Ottawa by dog owners. It became overwhelming. I never realized the power of dog owners. One of the school boards wanted to build on a lot on Richmond Road that was used for nothing as far as I was concerned — it was only grass. There was a huge petition from people in the community against the school being built on that 10-acre lot.
What could be the reason? It is a school with little girls and boys. They told me, ``Mr. Harb, you really do not understand; there is no other place we can take our dogs to defecate.'' If I am to be incarnated, let it be as a businessperson; I will invent a diaper for these dogs.
Mr. Bernier, my appeal to you is that before we do anything, let us meet with these guys so that they can tell us the other side of the story.
Mr. Wappel: I want to declare my interest. I am a dog owner.
The Joint Chairman (Mr. Grewal): Conflict of interest!
Mr. Wappel: I do walk my dogs on NCC property, where they do defecate, but I do clean up, absolutely.
This one absolutely fascinates me. The letter from the lady is hilarious. She is a personal eyewitness to people walking parrots on NCC property. This is hilarious.
I agree with the senator. Let us give them the opportunity to talk. Clearly, the definition is too broad. Vicarious liability is dangerous. It is clearly admitted that it is vicarious liability.
Some of the other points are interesting. They give themselves permission to allow wildlife to be on their property, as if they could do anything about it.
I certainly understand what the senator is saying about the sensitivity of issue, but as we can see from Mr. Quinn's submission, he is not the only one. That brings us to what we should do about Mr. Quinn.
I certainly think we should hear from the NCC. This might be one that we can have a little fun with. Perhaps they can tell us a few stories. Certainly, dogs are the main threat, in quotation marks. It is really not the dogs. It is irresponsible owners that are the problem.
In any event, I would suggest is, in due course because we do not have much time, that we do have the NCC in here to talk to us about this. All kidding aside, vicarious liability is a serious issue. We should certainly follow that up and indicate that we are not terribly happy about that.
I am not too sure what to do about Mr. Quinn. He specifically asked us. He has gone to the trouble of making a competent submission; we should speak with him after the NCC.
The Joint Chairman (Mr. Grewal): My suggestion is that we hand that to the steering committee to work on.
The Joint Chairman (Senator Hervieux Payette): Is the NCC is in charge of all the territory within the NCR or does the City of Ottawa also have a bylaw?
Senator Harb: NCC properties are regulated by the NCC. The City of Ottawa has bylaws to govern its territories.
There are two issues here. There is the legitimate side of what Mr. Quinn is raising, which has to be addressed in some sort of a dialogue.
There are other issues — for example, the definition of an animal. As far as I am concerned, those should be treated separately.
I would suggest that we could deal with Mr. Quinn's submission and the NCC. We might have to have another meeting, to discuss the definition of an animal.
The Joint Chairman (Senator Hervieux Payette): Perhaps I should declare that I, too, have a prejudice. My neighbour next door has five German shepherds. At 5:30 in the morning, the dogs start making noise. They bark at midnight, as well.
There are two sides to the story.
The Joint Chairman (Mr. Grewal): You have a conflict of interest, too.
The Joint Chairman (Senator Hervieux Payette): There is a regulation pertaining to the number of animals in a house, but that is not being respected.
Senator Harb: I can assure you that that meeting will go to the dogs, unless it is properly managed and controlled.
The Joint Chairman (Senator Hervieux Payette): We all have an interest.
Mr. Epp: Why is this in front of this committee? I do not quite understand. You indicated, Mr. Bernier, that it had something to do with the NCC overusing their regulatory ability, that it was ultra vires, and so on.
Mr. Bernier: It is before the committee because it is a regulation. All regulations are subject to review and scrutiny. This one is being reviewed in the same manner as any other regulation. There are certain issues, which I have not finished reviewing. I spoke to two points. Yes, those points raised issues of legality, in my view. Vicarious liability cannot be imposed by regulation by a delegate without express parliamentary authority. You cannot deem one person to be guilty of an act committed by another person unless Parliament has said that you can do that.
Mr. Epp: Are we acting on those objections, or will we let this pass? I think we should act on it.
Mr. Bernier: As I say, I was in the middle of presenting and members decided to deal with it segment by segment, which they are free to do. At some point, I presume I will be —
Mr. Epp: I should like to hear the total story and what we should do about it. It seems to me if there is a regulatory body that is overstepping its bounds it should be reigned in.
Mr. Bernier: Should I continue?
The Joint Chairman (Mr. Grewal): Yes.
Mr. Wappel: Mr. Chairman, I should like to apologize to Mr. Bernier. I thought he had finished.
Senator Harb: I apologize also. I thought you were done.
Mr. Bernier: I dealt with items 1 and 2, Mr. Chairman. Item 3 is that section 4(3) of these regulations provides for an exception to the section 4(1) prohibition in favour of the commission, allowing it to have an animal other than a domestic animal on leased lands. I queried the need for this exception, given that section 4(1) would not apply to the National Capital Commission in any event. In her reply, Ms. McNeil suggests that the word ``person'' in the section 4(1) prohibition could be thought to include the NCC based on the definition of that word in the Interpretation Act.
That portion of the reply makes some sense. The part that does not make sense is where Ms. McNeil assumes that the NCC could possibly be considered to be in possession of all the wildlife that happens to be on commission property at any point in time, which is really what the prohibition is directed at.
Wildlife is just that. It is called wildlife for a reason. It is wild, and it is absurd to suggest that, in the absence of section 4(3), the NCC could possibly be found to be in breach of that prohibition. Perhaps, it would be sufficient in that case, given there is no great harm done, to make the point to the commission and leave it at that.
The fourth point concerns the prohibition against having an animal. Keep in mind, this covers the range from dog to pet frog, within three metres of the shoreline of a permanent body of water.
The explanation provided by Ms. McNeil in this case, I believe, could be accepted. The rationale is that animals present in this area may damage sensitive ecosystems. One, from a policy point of view may hold a different view — I recognize that — but from a legal point of view there is a rationale that has been put forward for the regulatory provision that brings it clearly within the commission's power to protect its property.
Point number 5 deals with section 9(1) of the regulations. The scheme of the regulations is as follows. The regulations prohibit anyone from having an unleashed animal anywhere on NCC property. In section 9(1), the commission is given a discretionary power to designate areas in which that prohibition will not apply.
As I see it, this amounts to a subdelegation of the Governor in Council's authority. A reading of the RIAS makes it clear that the establishment of so-called off-leash areas on NCC lands is a key element of the regulatory scheme. There is no question that the Governor in Council may delegate to the commission the authority to establish off-leash areas, but the regulations must, at a minimum, establish some criteria in accordance with which this authority will be exercised. Here, there is nothing but the grant of an unfettered discretion.
It would seem from Ms. McNeil's reply that some criteria do in fact exist, and they are identified in her reply. It would be a simple enough matter for these criteria to be incorporated in the regulations. I take it that the NCC is not opposed to doing so.
In relation to the issues raised under points 6, 7 and 8 of my letter of August 26, 2003, action is promised. Regarding sections 29(2) and 29(3), I suggest these provisions are unnecessary and should be deleted. With respect to section 29(3), it does also suggest that section 28 should be amended to make it clear that the commission may impose terms and conditions on the grant of an authorization.
Section 28, as it now stands, simply refers to an authorization being present. There is no mention that this can be accompanied by terms and conditions. Section 29(3) makes it is clear that there will be such terms and conditions. This should be clarified in section 28.
Finally, as regards section 30, which deals with the penalty under point 11 of my August letter, Ms. McNeil indicates that the section is presently under review and will likely be amended. The course of action she suggests seems reasonable in the circumstances.
Overall, the points to be pursued would be points number 1, if the committee agrees, 2, and 5, which is really a matter of indicating to the commission how they can avoid the subdelegation accusation. Sections 29(2), 29(3) would be a deletion. Progress would be monitored on the other ones.
The Joint Chairman (Senator Hervieux Payette): You will not go to jail.
Mr. Bernier: I may not go to jail.
The Joint Chairman (Mr. Grewal): Have you have completed your presentation?
Mr. Bernier: Yes.
The Joint Chairman (Senator Hervieux Payette): Are there any questions?
Senator Harb: We have an understanding that the committee will determine an appropriate date and then invite Mr. Quinn as well as the NCC?
The Joint Chairman (Mr. Grewal): We will refer it to the steering committee to arrange that.
We will move on.
SOR/2001-214 — ORDER 2001-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
Mr. Rousseau: Committee counsel requested an explanation on the drafting of the regulations. The department provided a satisfactory reply and explained that those who consult the lists were taken into consideration. If the committee has no objections, this file can be closed.
SOR/2001-275 — DISPOSAL AT SEA REGULATIONS
Mr. Rousseau: Mr. Chairman, in a letter dated October 4, 2003, counsel wanted to know why the regulations pertained solely to the disposal at sea from a ship, platform or aircraft, whereas the legislation refers to the disposal at sea from another structure. In its reply, the department explained that the regulations were drafted in this manner because it could not envision any other circumstance where dumping at sea would be required. Therefore, there was no need to specify other structures the regulations.
If the committee has no objections, this file can be considered closed.
In a letter dated February 10, 2004, committee counsel pointed out a discrepancy between the English and French versions of the act and suggested that the problem be rectified when the next amending legislation is enacted. Counsel will monitor developments and keep committee members apprised of the situation.
The Joint Chairman (Mr. Grewal): We will not close the file, but we will monitor it for a little while. Are there any comments?
We will move on.
SOR/99-436 — REGULATIONS AMENDING THE INCLUSION LIST REGULATIONS
(For text of document, see Appendix E, p. 2E:1)
SOR/2001-2 — REGULATIONS AMENDING THE OZONE-DEPLETING SUBSTANCES REGULATIONS, 1998
(For text of document, see Appendix F, p. 2F:1)
SOR/82-263 — NATIONAL HISTORIC PARKS GENERAL REGULATIONS
(For text of document, see Appendix G, p. 2G:1)
SOR/94-162 — LIST OF TOXIC SUBSTANCES AUTHORITIES
(For text of document, see Appendix H, p. 2H:1)
SOR/2003-352 — REGULATIONS AMENDING THE COMPREHENSIVE STUDY LIST REGULATIONS
(For text of document, see Appendix I, p. 2I:1)
Mr. Bernier: With your permission, Mr. Chairman, I will deal with all of the items under those next two headings. Under action promised, corrective action is promised in relation to 18 points raised by the committee.
Under action taken, the enactment of a new National Parks Act has resolved concerns in regards of vires in relation to nine regulatory provisions. The revocation of one instrument has made it unnecessary to pursue a number of amendments that had been promised to the committee. Finally, two amendments have been made at the request of the committee.
I would add that there are 94 instruments submitted without comment.
The Joint Chairman (Mr. Grewal): Any further comments?
If not, we will adjourn. The next meeting will be April 22.
The committee adjourned.