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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 11 - Evidence, June 2, 2005

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OTTAWA, Thursday, June 2, 2005

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments.

Senator John G. Bryden and Mr. Gurmant Grewal (Joint Chairmen) in the chair.

[English]

The Joint Chairman (Senator Bryden): Honourable members, I call the meeting to order.

Before dealing with the agenda, there are several matters we should discuss first.

All members of the committee should have copies of the motions made to the court by the Department of Heritage on the question of whether this is a tax. As I recall, they were hoping to be heard on May 28. We do not know whether the court has rendered a decision on whether to grant this motion. That is the only information I have at this time regarding this matter. I hope that is a sufficient update for members of the committee.

The other outstanding issue before the committee had to do with the fact that both Houses have before them a disallowance motion. That motion can be found in the last report of the committee to the Senate.

Mr. Lee brought something to the table the last time we met. Mr. Lee, would you give us an update, please, on the status of this issue?

Mr. Lee: Mr. Chairman, at the last meeting it was noted that the government had introduced a notice of intention to introduce a bill to make the correction requested by this committee. That bill was introduced, although I do not have the number of the bill at the moment. Mr. Wappel may have it, as he chairs the Fisheries Committee.

The bill contains but one section that would bring into the statute the regulatory penalty piece with which we had some difficulty. Having discussed it with counsel and others, the bill would solve statutorily the problem identified by the committee.

Had the government introduced this legislation a month or two ago, we would not have proceeded with the disallowance. Alternatively, if the disallowance were in process, we probably would have said, “There is the solution. We do not need to disallow. The statute will make the correction.”

At this point, consistent with the way we normally handle these matters, the committee would adapt to whatever the government had put forward to make the correction. In this case, however, the procedure being followed is new. While it is similar to what was in place before, it is important to recognize that the procedure is in the statute — and because it is in the statute, we can no longer control it, as if it were just a procedural item of the Houses. It is a statutory provision; thus, we cannot derail it or stop it.

Personally, I am of a disposition to stop the procedure, until the government has had a chance to pass the bill. While I have been looking for a way to accommodate that move, I have not been able to find one. Therefore, it looks as if we are headed for the House procedure that has been outlined. In other words, there will be a one-hour debate on the Wednesday that follows the passage of 15 days. As I understand it, the minister will likely file a resolution that the committee's motion not be adopted. In other words, the minister will take advantage of the procedure that is allowed and ask the House not to adopt the committee's report.

Every member is able to make his or her own way on this matter. However, I commend to the committee the view that, if we had control of the procedure, we would not proceed with the disallowance. We would then, I would hope, reach an understanding with the government that would allow for quick passage of this bill.

Mr. Wappel may have a comment on the prospects for quick passage of the bill. We do not control the procedure now. If anyone has any creative suggestions, I am prepared to discuss them.

Mr. Wappel: Mr. Chairman, I had a conversation with the minister yesterday. He asked me to discuss this matter with the committee, because he needs the help of this committee.

The bill to which Mr. Lee referred is Bill C-52. In fact, it contains two clauses, the second being the coming-into- force clause. The first clause is the offence section. For all intents and purposes, it would add to the Fisheries Act a new section 10, which would make it an offence not to comply with the terms and conditions of a licence.

Once passed, Parliament will have designated that the breach of a term or condition of a licence would be an offence under the Fisheries Act. As I understand it from Mr. Lee, who has had discussions with counsel, that would solve our problem.

Here is the problem more or less as outlined by Mr. Lee. As I expressed to the minister, we have seen bills tabled to deal with problems. However, for one reason or another, these bills are not passed and the problems remain. I would suggest that the minister approach our House leader, who should then approach the other House leaders, to gain consent that this bill receive second and third readings immediately, and that it do pass. Presumably, that could occur as early as Friday or Monday, or even Tuesday. If that happens, then at least it gets through the House of Commons. The difficulty is that the clock continues to tick. The minister is concerned because, as of Wednesday, it will be disallowed, and with the 30-day countdown, it may not pass the Senate. They have no idea of the Senate's agenda or how long the Senate will sit.

Therefore, the possible solution that we worked out is that, if all parties were in agreement, we would pass the bill in the House immediately on consent and refer it to the other place right away. Then, the minister would put in the appropriate objection, I believe it is, to the report of this committee. Members would be free to vote on the motion to agree or disagree with this committee. It would be logical to conclude that because the bill had passed the House of Commons, the House would not support the disallowance. By that time, the bill would be in the Senate for debate and would be dealt with as expeditiously as possible.

That is the proposed plan, but it requires the consent of the House leaders. The minister asked me to ask committee members whether the bill is acceptable to deal with the problem. If it is, then we can go back to our House leaders and convey that message. If all parties could recommend to their House leaders that the bill pass all stages as quickly as possible, on consent, then it would not need to be referred to the Fisheries Committee for further study. To comply with the minister's proposal, we need only the consent of this committee that the bill deals with the problem and that members of the committee will undertake to speak to their respective House leaders to expedite the matter.

The Joint Chairman (Senator Bryden): Are there additional comments?

Mr. Anders: I do not have philosophical issues with the procedure laid out by Mr. Wappel. Do we have a copy of the bill?

Mr. Wappel: I was able to obtain one copy only of the bill, which is literally one clause — in addition to the coming- into-force — which states:

10.(1) Everyone acting under the authority of a permission referred to in section 4 or of a lease or licence issued under this Act shall comply with its terms and conditions.

(2) For greater certainty, those permissions, leases and licences — including their terms and conditions — are not statutory instruments for the purposes of the Statutory Instruments Act.

Clause 2 deals with the coming into force.

Mr. Anders: I am not an expert on fisheries, but you might want to talk with Mr. Loyola Hearn — because he may have some concerns about that.

Mr. Wappel: I would be happy to do that. Perhaps, Mr. Chairman, I could ask counsel whether the bill does deal with the committee's objection.

Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, as Mr. Wappel pointed out, this provision first appeared in Bill C-33, then in Bill C-43 and now in Bill C-52. The committee, in respect of Bill C-43, had written to the then fisheries minister to inform him that, obviously, if Parliament had passed the bill, then the problem disappeared, that regulations are no longer necessary, and that the regulatory provisions now subject to disallowance would be revoked by the government because the matter would now be in an act.

On the substance of the proposal, the committee specified that its statement in that respect should not be taken as an endorsement of the bill because the committee recognized that there might be parliamentarians who would object, from a legislative policy point of view, to criminalizing, if you will, the breach of an administrative document.

That question was left. Frankly, it is not a matter for the committee in any event, so it was left to the House. However, the committee wanted to indicate that clearly to the minister.

Mr. Wappel: Sorry, counsel, does this deal with the legal problem — not the policy problem — that was outlined?

Mr. Bernier: The bill deals with the legal problem in that what you had was the creation of an offence by regulation without authority of Parliament. That is the objection of the committee. Now, Parliament would be creating the offence, which obviously Parliament can do. Yes, legally, the problem is resolved.

Mr. Wappel: Thank you.

Mr. Bernier: I might just add, in terms of the timeline that people need to keep in mind, that for a disallowance motion or resolution to come into force and be effective it needs to pass both Houses of Parliament. In the timeline to which you referred, given the 15-day requirement during which a minister can file a motion tending to the rejection of the resolution, that deadline would continue to run, I would assume, in the Senate for a few more days than in the House of Commons.

Certainly, it is open to letting the report take its course in the House to see whether the bill passes because there would still be time in the Senate to file a motion in that house. I mention that as a possibility.

Mr. Wappel: If there is consensus, the minister would be happy to have the bill pass as quickly as possible. If there is no consensus, we will have to deal with the situation as it stands.

[Translation]

Ms. Guay: On the issue of consent, we still need to consult with our respective critics. We are already losing some time here and the timeline is quite short. There is another problem as well. If you want unanimous consent, you will need to consult with independent members to gauge their position on this issue. We the members of the Bloc Québécois will speak to our critic to find out if this is possible and we will get back to you.

[English]

Mr. Kamp: I understand the logistical problem we have with the disallowance motion, but we cannot allow that to drive the policy consideration contained in the bill. That may be an easy one to resolve with all parties, but I am not entirely sure it will be as Mr. Bernier has said. It criminalizes a certain breach of administrative procedure. We want to give that some thought. I would not be in favour of running the bill as quickly as possible through the House merely to solve the problem we have in this committee.

Ms. Wasylycia-Leis: There is an important issue here for us and for Parliament that we would all be interested in resolving, that being the question of a regulatory mechanism being used to advance something that should otherwise have been approved by Parliament.

I am interested in pursuing this by talking to my colleagues. I can imagine that this kind of thing will get caught up in all of the dynamics of sorting through what gets passed and how we expedite the entire session. We need to be able to make a strong case for this one, and be able to emphasize the urgency of it. I will do my part, but it would help, since I am so preoccupied with the budget and the Finance Committee, in order to communicate with my colleagues what has transpired on this, if there were a one- or two-page note that outlines what transpired when. I could just circulate it quickly. Is there anything in writing on the history of this issue?

The Joint Chairman (Senator Bryden): There is not, other than what appears in our report, which is pretty brief.

Ms. Wasylycia-Leis: That is true.

The Joint Chairman (Senator Bryden): It is just over a page, if that is acceptable.

Ms. Wasylycia-Leis: Yes. I was worried about time, because it is crazy around here.

Senator Moore: I wish to make a comment for the benefit of the members of the Conservative caucus who are on this committee. If they do not know, they should know that a former member of the committee, Mr. John Cummins from B.C, worked very hard on this. If you speak with him, you would find that he is very supportive of this and would want to see it expedited.

The Joint Chairman (Mr. Grewal): It is of the utmost importance that the House leaders are contacted today. Let me give you the time frame of what has happened, very briefly, so that members are up to speed. On Monday, May 9, a disallowance report was presented in the House. On Tuesday, May 10, the concurrence motion appeared on the Notice Paper. Then, on Wednesday, May 11, the concurrence motion was on the Order Paper. On May 9, day one of the period of 15 sitting days had started.

Senator Moore: Is this the disallowance in the House of Commons? Could you run through that again, please?

The Joint Chairman (Mr. Grewal): Let me repeat. On Monday, May 9, the disallowance report was presented in the House. On Tuesday, May 10, there was a concurrence motion on the Notice Paper; and on Wednesday, May 11, the concurrence motion was on the Order Paper. Monday, May 9, was day one of the period of 15 sitting days; a minister may designate a day for debate starting from that date. On Friday, May 20, the House adjourned for a week. That was the day 9, so we have to now move forward. Wednesday, June 1 — there is a crucial point here for the procedural aspect — Wednesday June 1 is the last possible day for debate, which is the twelfth day, according to the procedures. That was yesterday.

Then Monday, June 6, is day 15 — report deemed adopted at a time of adjournment unless previously disposed of. Now, since days 1 and 15 fall on a Monday, the previous Wednesday before the fifteenth day was an important date. There can then be two options for the concurrence motion. First, it can automatically be adopted — that is, deemed moved and adopted at the time of adjournment, on the fifteenth sitting day from the tabling of the report — or it can be decided by the House, that is, the minister calls for consideration, which takes place at 1 p.m. on a Wednesday before the end of the 15 sitting days following the tabling of the report. That was yesterday.

That procedural aspect has to be dealt with. I do not know how it can be dealt with — perhaps by unanimous consent in the House, or perhaps by another means, I do not know. Contacting the House leaders is of the utmost importance if we want to proceed in this fashion.

Mr. Wappel: I believe what the chair said describes the previous procedure, at least on some of the dates.

I believe that the new procedure is that our report is deemed adopted on the fifteenth day, unless, prior to that time, the minister gives notice that he intends to debate the issue. I forget the exact terminology, but I see one of our clerks nodding in the affirmative. Then, if the minister does that, on this Wednesday coming up, at 1 p.m., there will be a one- hour debate on this issue and a vote of the House. The vote of the House would be whether or not to accept the report of the committee.

If the House supports the vote — is that not right?

The Joint Chairman (Mr. Grewal): Let me quickly comment on that. This was advised to me by the Clerk of the House of Commons. However, during this discussion, when I was quickly talking with counsel here, it seems like the new procedure is different. I think we should let counsel explain that.

Mr. Bernier: If I may, Mr. Chairman, the deadline, the 15 sitting days under the statutory procedures, starts running from the tabling of a report. The motion that may be voted on by the House is no longer a motion for concurrence in the report. That was under the old procedure under the standing orders.

What is filed by the minister is a motion opposing the resolution, the disallowance resolution; that is what is voted on. The report is out of it at this stage. What the House decides on is whether it will support the minister's motion tending to the rejection of the resolution, or approve it.

If the House votes with the minister, then the disallowance resolution of the committee that was in the report tabled is rejected. If the House does not vote in favour the minister's motion, it is implicitly supporting the disallowance resolution. Therefore, there is no motion for concurrence and there is no report at that stage.

Mr. Lee: I am personally disappointed. We just walked through this whole procedure and it is not even accurate. Mr. Grewal, wherever you got that, someone has given you incorrect information. You say you got it from the table. The table may have given you incorrect information. For the record, let us just acknowledge that what you have read through carefully may not be accurate. I will stop there.

The Joint Chairman (Mr. Grewal): I was given —

Mr. Lee: There this is no need to interrupt me to clarify.

The Joint Chairman (Mr. Grewal): I was given this by the Clerk of the House of Commons — I want the members to know.

Mr. Lee: That is great, but it is not accurate. I do not care where it came from; if it is garbage, it is garbage.

Our difficulty here is only that we are trying to find a way to synchronize the disallowance, whenever it happens — because it must happen at some point, even if the bill is adopted. Even when it is adopted, the government still has to revoke the regulation. We are trying to synchronize the revocation of the regulation with the disallowance procedure.

The reason we are trying to do that, I believe, is that there is some concern in government circles in Ottawa and in Ontario — because this is an Ontario fishery regulation — that a gap between the disallowance of the regulation and the start date of the new statute could create a gap where administratively, in terms of enforcement in the fishery, there might be a problem. I have heard that described. I have not gone into all of it, but I can accept conceptually that, if there is a gap in the enforcement provisions of a statute of the regulations, it creates difficulty for enforcement officers who may be operating inside or outside the law. It may not allow for good enforcement of the portions of the Ontario fishery. That is why we are trying to synchronize this.

We will be constrained by the existence of a statute. The statute, as opposed to our own rules, will govern the procedure. In the past, it was the other way around. However, knowing that we will not get this matter resolved this morning, I wish to put on the record a way to address the issue.

The motion that the minister would introduce into the House will be to the effect that the disallowance resolution not be adopted. Therefore, in the wording the minister uses, it might be possible to say that the House resolution not be adopted until, for example, October 1, October 15 or October 30, to give time for both Houses to pass the bill.

Technically, would that fall within the allowance set out in the words in the statute? It might. I am merely putting this suggestion on the table in order to be creative because of this statutory straitjacket that we find ourselves in.

I will leave it at that, Mr. Chairman. I do not expect an answer today. The minister may want to consider what I have set out. Procedurally, it might be a way to synchronize this so that the order of the House to revoke would not be triggered until the government has had sufficient time to give Royal Assent to the passed statute.

I will stop there, Mr. Chairman.

The Joint Chairman (Senator Bryden): If there are no more comments at this stage, I will take a shot at trying to see where we are.

The action date in the House is June 6, which is when the 15 days runs out. In the Senate, the date is June 19 — and that is because we have the same number of sitting days spread over a longer period of time. We must remember that in order for this to be disallowed, it must be disallowed in both places. In a sense, the Senate is not a problem, in that we have all kinds of time to deal with the situation.

As a result of everything we have heard, I believe this committee needs to take the position that the statutory process underway will continue until such time as it is interrupted by, basically, the consensus of the parties involved on the basis that statutory relief is forthcoming and we are well assured that it will go forward. I do not have any problem in saying that we would be able to get whatever needs to be done in the Senate before June 19.

Some of the reasons for saying what I have just said in relation to continuing to proceed is that, in response to the disallowance report and the minister taking the position that the report not be adopted, the motion must then be debated. The fact is that the minister can make his case in the debate and say, “It should not be adopted because this piece of legislation has been tabled, it is proceeding and it is intended that it pass.”

Strange things can happen in our parliamentary process, particularly at this stage. I do not think this committee wants to be in the position that we lose our position because of something over which we have no control. At the moment, the process is working in the manner in which it should work, unless it is interrupted by something that is satisfactory to the parties.

The alternative is that which was set out by Mr. Lee — that is to say, when the issue is in debate before the House, the House can accept that we move this and not deal with it until a later date.

That is my recommendation. This matter could become extremely complicated. So many actors will have to be lined up in a row that by June 6 we could end up with a real problem. We cannot withdraw this unless it is resolved satisfactorily.

If it looks like we have a resolution, I am prepared to ask our clerks to poll the members of the committee, at least those members who have participated in the discussion, to inform them that this is the solution, that members have agreed and let us see if we can reach a consensus.

Is my suggestion, or some version of it, acceptable?

Hon. Members: Agreed.

SI/2004-112 — ORDER TRANSFERRING FROM THE DEPARTMENT OF CANADIAN HERITAGE TO THE PARKS CANADA AGENCY THE CONTROL AND SUPERVISION OF THE HISTORIC PLACES POLICY GROUP AND FROM THE MINISTER OF CANADIAN HERITAGE TO THE MINISTER OF THE ENVIRONMENT THE POWERS, DUTIES AND FUNCTIONS OF THE DEPARTMENT OF CANADIAN HERITAGE ACT RELATING TO CERTAIN PROGRAMS

Mr. Bernier: Mr. Chairman, the reply from the Clerk of the Privy Council explains the somewhat unusual coming- into-force clause that was in this instrument, that is, two minutes past midnight. This is of an explanatory nature and nothing further needs to be done.

The Joint Chairman (Senator Bryden): Is it agreed?

Hon. Members: Agreed.

SOR/2001-342 — REGULATIONS AMENDING THE LIVESTOCK AND POULTRY CARCASS GRADING REGULATIONS

Mr. Bernier: Mr. Chairman, the Food Inspection Agency indicates that the lack of a regulatory definition of the word “veal” between January 1 and September 20, 2001, did not cause a problem in terms of the application of the regulations, given an industry consensus to deal with the term in accordance with the previous definition.

Given that we are dealing here with a voluntary regulatory program, this reply can be accepted as satisfactory.

The Joint Chairman (Senator Bryden): Is it agreed?

Hon. Members: Agreed.

SOR/2004-57 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DIFFERENTIAL PREMIUMS BY-LAW

Mr. Bernier: In this instance, the published SOR did not indicate when the board of directors of CDIC made the bylaw in question. That information has now been provided by Ms. Morrow and the file can be closed.

The Joint Chairman (Senator Bryden): Is it agreed?

Hon. Members: Agreed.

SOR/2004-181 — ORDER AMENDING THE NEW BRUNSWICK HOG MARKETING LEVIES (INTERPROVINCIAL AND EXPORT TRADE) ORDER

Mr. Bernier: The correspondence on this file, Mr. Chairman, deals with the failure of the provincial marketing agency to respect the registration deadline set out in the Statutory Instruments Act.

Judging from the letter sent to the provincial agency by the National Farm Products Council on April 25, it appears that measures have or will be taken to avoid similar problems in the future.

This response can be considered satisfactory and the file closed.

The Joint Chairman (Senator Bryden): Is it agreed?

Hon. Members: Agreed.

SOR/2005-15 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (LUXEMBOURG AND WARSAW STOCK EXCHANGES)

Mr. Bernier: In this case, Mr. Chairman, an error in the date of the making of the instrument was corrected by the publication of an erratum in the Canada Gazette.

The Joint Chairman (Senator Bryden): Is it agreed?

Hon. Members: Agreed.

PARKS CANADA MASTER LIST OF FEES (2003-2004)

(For text of document, see Appendix A, p. 11A:1.)

Mr. Rob Billingsley, Counsel to the Committee: Mr. Chairman, in November of last year, the committee directed counsel to continue to press for the revocation of the charges that Parks Canada imposes for a licence to sell alcohol in certain of its parks. These charges, as members may recall, are calculated as a percentage of the value of alcoholic beverages purchased by the licensee.

In its reply to Mr. Bernhardt's most recent letter, the agency again fails to address the committee's position that the charges are business taxes rather than licence fees, are not authorized by the Parks Canada Agency Act, and are illegal. Instead, the reply suggests that the agency remain committed to replacing the charges, which it had previously characterized as “not appropriate,” with fees that can be determined at the time the licence is issued, as suggested by the committee. However, it advises that to date it has been unable to arrive at a mutually acceptable fee proposal with the affected businesses. The agency has prepared a revised proposal that it intends to discuss with the business operators once they return to the parks later this spring.

Mr. Chairman, like the birds that fly south, apparently the whereabouts of these business operators are unknown to Parks Canada until they reappear each spring. Meanwhile, these illegal charges remain in force and another business season seems likely to come and go before any new fee structure is agreed upon by the agency and its licensees. Furthermore, the agency advises that once agreement has been reached, it will then table the revised fee proposal in both Houses pursuant to the User Fees Act, to the extent the letter suggests that the fee proposal will only be forwarded to the Minister of the Environment for approval if it is supported in Parliament.

I would note that, under the User Fees Act, neither House is obliged to take a position on the proposal — and silence by the Houses is not considered to constitute support for the proposal. The new fee structure promised by the agency is unlikely to be in place in the foreseeable future. The agency appears to be unwilling to desist from collecting the current charges in the interim.

The committee may wish to consider whether a letter from the joint chairs to the minister is in order.

The Joint Chairman (Senator Bryden): Are there comments?

Mr. Anders: Mr. Chairman, I find it hard to believe that, because they have levied fees against people in the past, they would not have records of that and therefore be able to approach them to discuss the issue. I do not sense that the agency is making much effort in this capacity. I do not understand how they can collect these fees when they have not done some work to proceed with modifying their tax.

The Joint Chairman (Senator Bryden): Are members agreed that the committee send a letter to the minister?

Senator Moore: Yes.

The Joint Chairman (Senator Bryden): That would expedite the matter, given the season now.

Hon. Members: Agreed.

Senator Hervieux-Payette: Parks Canada is now a corporation. I know that the agency answers to a minister but has the change of status made a difference being an autonomous corporation? I understood that the change would lead to a better management of Parks Canada, such that it would be more business oriented. I sense that this practice was done when the agency fell under the ministry, but now that it is a Crown corporation, perhaps the status has changed — because we have two kinds of corporations.

The Joint Chairman (Senator Bryden): Do we correspond with the senior officer at Parks Canada?

Mr. Billingsley: Yes.

The Joint Chairman (Senator Bryden): Is it the chief executive officer?

Senator Moore: Who signed that letter? Was it Mr. Latourelle, or was it someone on behalf of him?

Mr. Bernier: It was signed by someone on behalf of Mr. Latourelle.

The Joint Chairman (Senator Bryden): The agency is a Crown corporation so perhaps the joint chairs should write the letter, rather than counsel, addressed to the head of that corporation drawing to his attention our concern at this level so that he will have an opportunity to respond. We would probably receive a response more quickly from him than from the minister. Perhaps we should ring this guy's bell a little.

Senator Hervieux-Payette: I suggest that we underline the fact that the agency was created to be more hands-on in terms of the management of Canada's parks. The agency should be more efficient than it was before. I am surprised that this has not been settled.

The Joint Chairman (Senator Bryden): We might also suggest that, prior to the committee approaching the minister responsible, the agency might give the committee the courtesy of a proper reply.

Mr. Lee: My comment is not on topic. However, I could not help but note that, given the alleged propensity of government employees to over-classify documents, the letter back to the committee on April 8 is marked “SECRET.” I cannot for the life of me figure out why an agency writing to a committee of Parliament would send a letter marked “SECRET.” Thankfully, the translation from English to French omits the reference to secret.

The Joint Chairman (Senator Bryden): If members are agreed, I would ask counsel to prepare the letter.

Mr. Wappel: Mr. Chairman, perhaps counsel could ask why the letter was marked “SECRET.” Quite seriously, I think there is an over propensity to be secretive about things.

The Joint Chairman (Senator Bryden): We could draw attention to the fact that we noticed it.

SOR/97-115 — REGULATIONS AMENDING THE GOVERNMENT CONTRACTS REGULATIONS

Mr. Billingsley: Mr. Chairman, according to the most recent correspondence from the Treasury Board Secretariat, the regulations section of the Department of Justice Canada has approved the draft amendments to the regulations that were promised in April 2004 to address the concerns raised by Mr. Rousseau that are of a technical nature. The anticipated timeline for amending the regulations appears to be reasonable and counsel will continue to monitor this matter.

The Joint Chairman (Senator Bryden): Are members agreed?

Hon. Members: Agreed.

C.R.C. c. 1238 — NORTHWEST TERRITORIES REINDEER REGULATIONS

Mr. Bernier: Mr. Chairman, at the outset I should note that the disallowed section, 15(5), of these regulations has been revoked. In May 2002, the minister had given a commitment that remaining amendments to these regulations would be finalized and published in January 2003. That did not occur. In a letter September 2, 2003, the department affirmed its commitment to finalize those amendments and, I quote, “as quickly as possible.”

In March, I asked the DIO to provide an update on the current status of the file so it could be placed before the committee prior to the summer adjournment. The requested update has not been received, although the receipt of my letter has been acknowledged.

It would seem necessary to suggest that the committee go back to the responsible minister and seek his cooperation in ensuring that his officials proceed with the promised amendments without further delay.

The Joint Chairman (Senator Bryden): Are members agreed?

Hon. Members: Agreed.

SOR/93-515 — CANADA DEPOSIT INSURANCE CORPORATION APPLICATION FOR DEPOSIT INSURANCE BY-LAW

Mr. Billingsley: Mr. Chairman, the committee has been awaiting the deletion of two definitions from this bylaw since December 1997, when the corporation advised that it was “inappropriate” to have the definitions in the bylaw because they had been added recently to the governing act. At that time, they anticipated that the bylaw would be amended within one year.

Since that time, the expected date for the amendments has been pushed back on several occasions. Most recently, the corporation neglected to meet its undertaking to delete the definitions from the bylaw by the end of fiscal year 2004-05. We are told now that the promised amendments will be made when the bylaw is “next amended,” which is currently forecasted for this fiscal year.

Given that this is a drafting issue, perhaps it would be sufficient at this time to write to the corporation to say that, while it recognizes that the issue is not of great substance, the committee expects that the amendment will be made within the current fiscal year.

The Joint Chairman (Senator Bryden): Are members agreed?

Hon. Members: Agreed.

SOR/96-400 — CANADA OCCUPATIONAL HEALTH AND SAFETY REGULATIONS, AMENDMENT

Mr. Billingsley: Mr. Chairman, the committee has been awaiting a single amendment to these regulations that was first promised in December of 2002. You can see from the two most recent letters from the department, which are nearly identical, the anticipated date of the amendment has been pushed back from the winter of 2004-05 to “next” fiscal year, which, judging from the date of the most recent letter, could conceivably be fiscal year 2006-07, that date being after April 1. We would suggest that counsel write back to the department to say the committee expects the amendment to be made during the current fiscal year.

The Joint Chairman (Senator Bryden): Agreed?

The Joint Chairman (Mr. Grewal): What were the reasons given by them?

Senator Moore: Chair, same as the item just before this, you can write back and say sometime in this fiscal year, which could take it to next March 31. We have been dragging on now. If it is a simple drafting matter, why do not they just get it in to us within the month? Why are we waiting for another six, seven, eight, nine months? I do not understand that. Cannot we somehow push this agenda a little more to get this done? Why is it being waltzed around if it is such a simple matter? I would like us to do something to move it more quickly.

The Joint Chairman (Mr. Grewal): Any further comment?

The Joint Chairman (Senator Bryden): I am all for moving it more quickly, but even a simple drafting change, if they just start it the day they receive our letter, will take more than 30 days to go through.

Senator Moore: They have had it for over a year now. Any first-year drafting student could knock this off in an hour.

The Joint Chairman (Senator Bryden): Then it has to go to Department of Justice and then it has to go to —

Senator Moore: That is not satisfactory, I do not think.

The Joint Chairman (Senator Bryden): We need to impress on them the urgency, place a time limit on there as to what the action is and indicate that the matter will be monitored. If they have not started, 30 days, I do not think they can produce a piece of legislation — unless they have the unanimous consent of the world.

Senator Hervieux-Payette: We have to put a set date. Either we put September 1, or something specific, so that they have a time frame.

The Joint Chairman (Senator Bryden): Can I ask counsel, what would be, in your experience, a reasonable limit to put, if they are starting now? They have indicated they are going for a year.

Mr. Bernier: It is hard to say, Mr. Chairman. I think you correctly pointed out that there is a bit of a dilemma here. The simpler the amendment, sometimes the longer it takes, because the bureaucracy, and understandably, is reluctant to initiate the process for a minor drafting amendment. They tend to flag it and wait until they have something more substantive, to initiate this whole machinery.

The short answer is: any period of time. I have seen amendments made in a matter of weeks, if they are a political priority and a ministerial priority. On the other hand, this committee has waited 25 years for amendments, and that were made after that period of time, which is too long.

We also have to keep in mind that the miscellaneous amendment process was put in place precisely for these kinds of minor amendments. Perhaps departments are not using that process as often, which does provide an expedited review by Department of Justice and so on. Perhaps you could say six months, and the letter could ask that the department look into using the miscellaneous regulatory amendment process.

Mr. Billingsley: If I can interrupt, they have consulted with Justice Canada and have been advised that, in their opinion, it does not qualify for that miscellaneous program. They have explored that and have been turned down.

Senator Moore: Why not have Justice Canada come up with a quick solution?

The Joint Chairman (Senator Bryden): We could still put the six-month deadline.

The Joint Chairman (Mr. Grewal): All right, will we send a letter with a six-month deadline; agreed?

Hon. Members: Agreed.

C.R.C. C. 1134 — NATIONAL PARKS WATER AND SEWER REGULATIONS

SOR/2001-320 — REGULATIONS AMENDING THE NATIONAL PARKS WATER AND SEWER REGULATIONS

(For text of document, see Appendix B, p. 11B:1.)

Mr. Billingsley: Mr. Chairman, as outlined in the note on C.R.C. chapter 1134, the department had promised legislative and regulatory amendments to address the committee's concerns with respect to 10 provisions in these regulations.

Points 2 and 3 of the note set out the amendments that have been made to date, which resolve the concerns with respect to five of the 10 provisions. Points 4 and 5 of the note describe the provisions for which amendments are still outstanding, and which have been pursued by Mr. Rousseau in his letter of October 7, 2004.

We now have fresh promises from the department to make the remaining amendments, as well as promises to make amendments to address the concerns raised in Mr. Rousseau's October 6, 2004, letter with respect to the second regulation, SOR/2001-320. We propose to follow up in the fall to make sure the amendments are made.

The Joint Chairman (Senator Bryden): Agreed?

Hon. Members: Agreed.

SOR/97-447 — MOTOR VEHICLE SAFETY REGULATIONS, AMENDMENT

(For text of document, see Appendix C, p. 11C:1.)

Mr. Bernier: As is stated in the note, this instrument effects four corrections to the wording of provisions. Five points of drafting were raised and corrective amendments were promised in four of those cases.

As regards the point raised in paragraph number 4 of Mr. Rousseau's letter, a correction was made by SOR/2003- 57. Prepublication of the promised amendment is anticipated before the end of the year, and that commitment will be monitored in the usual way.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.

[Translation]

SOR/98-177 — NATIONAL PARKS DOMESTIC ANIMALS REGULATIONS, 1998

Mr. Bernier: When the National Capital Commission Animals Regulations were reviewed, the Committee raised an objection over the definition of “keeper” in the Regulations. In the opinion of the Committee, the effect of the definition was to create a vicarious liability. The National Capital Committee agreed to review the definition to eliminate the problem. It was subsequently discovered that the same definition was contained in the National Parks Domestic Animals Regulations, 1998 and Mr. Rousseau brought the matter to the attention of the Parks Canada Agency. The Agency has agreed to amend the definition.

[English]

With the committee's agreement, counsel will send a letter inquiring into the progress of this regulatory initiative.

The Joint Chairman (Mr. Grewal): Agreed?

The Joint Chairman (Senator Bryden): Did anyone read this? I find it interesting — and I am not so sure that we are right. I should not say that, because we just agreed to it. For example, section 6(1), looking at page 2 of the letter, provides that — and I quote:

When a dog or cat defecates, its keeper shall immediately pick up any faeces and either remove them to a refuse container or remove them from the park.

In that letter, Mr. Rousseau continues:

Should such an incident occur when an animal is being walked by a minor, the keeper is the parent or the adult responsible for that minor. If the minor does not obey the provision, this parent or adult has just contravened the Regulations and is liable to a fine under section 24(3) of the Canada National Parks Act...

While that really sounds a little strange, nevertheless, I assume someone is supposed to clean up this. If it is not the minor or the parent, then it is up to the park — who has to pay someone to go and pick the stuff up. Is the fine intended for the purpose of doing this sort of thing? I am asking counsel. Do you have a view?

Mr. Bernier: I am sorry, Mr. Chairman.

The Joint Chairman (Senator Bryden): You were not listening.

Mr. Bernier: I was listening, Mr. Chairman. As you recall on this file, the committee heard witnesses from the National Capital Commission.

Senator Hervieux-Payette: It was a great moment.

Mr. Bernier: It went on, I believe, on more than one occasion, and went on at length over these provisions. An amendment was promised because certainly the National Capital Commission and, I assume, eventually the Department of Justice, agreed that this creates a vicarious liability. No one is questioning the policy of the regulation. It is a matter of authority. That is really all I can say; we are just going by the precedent.

The Joint Chairman (Senator Bryden): Are you saying they do not have the authority to do this?

Mr. Bernier: Currently, they do not have the authority to do this.

Mr. Anders: This is a silly question, but, therefore, would they have the authority to fine the child instead? Is that the issue?

Mr. Bernier: They would have the authority to fine the child. I presume it would be up to a court to then determine to what extent. I am not a criminal lawyer. I am sure the joint chairman would know more about what is permissible in terms of imposing penal liability on minors than I would. However, I would imagine it is possible to fine a minor to the extent that the person is of the age of reason.

The Joint Chairman (Senator Bryden): I do not know; I do not want to go down that road.

SOR/99-142 — CANADA LANDS SURVEYORS REGULATIONS

SOR/2003-1 — REGULATIONS AMENDING THE CANADA LANDS SURVEYORS REGULATIONS

(For text of document, see Appendix D, p. 11D:1.)

Mr. Billingsley: Mr. Chairman, amendments are promised with respect to 11 of the 16 points raised in Mr. Rousseau's letter.

The department's reply indicates that consultations are being undertaken with respect to three other points, being numbers 9, 11 and 15. We propose to follow up on the results of these consultations.

As for point 13, this is a grammatical objection relating to the French version of the provision in question. In refusing to make the change requested by counsel, the department appears to have misunderstood the nature of the objection. Our intent is to write back to the department and explain the reasons for the objection more fully.

Finally, the department's response to point 14 is ambiguous. We intend to ask for confirmation of the amendment they appear to have proposed.

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

Hon. Members: Agreed.

SOR/2001-527 — CANADA SMALL BUSINESS FINANCING (ESTABLISHMENT AND OPERATION OF CAPITAL LEASING PILOT PROJECT) REGULATIONS

(For text of document, see Appendix E, p. 11E:1.)

Mr. Bernier: Mr. Chairman. I am pleased to note that amendments are promised on the issues raised under paragraphs 1, 5, the second paragraph in paragraph 6, and paragraphs 8 to 16 of Mr. Bernhardt's letter of August 25.

It is suggested that the reply on all other matters raised is satisfactory.

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

Hon. Members: Agreed.

SI/2003-215 — ORDER TRANSFERRING CERTAIN PORTIONS FROM THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION TO THE CANADA BORDER SERVICES AGENCY

SI/2004-135 — ORDER TRANSFERRING TO THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION THE CONTROL AND SUPERVISION OF CERTAIN PORTIONS WITHIN THE CANADA BORDER SERVICES AGENCY AND TRANSFERRING FROM THE DEPUTY PRIME MINISTER AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS TO THE MINISTER OF CITIZENSHIP AND IMMIGRATION CERTAIN POWERS, DUTIES AND FUNCTIONS

Mr. Billingsley: Mr. Chairman, Mr. Himelfarb has clarified that the second order mentioned reversed the effect of the first order so as to restore the situation envisioned in section 77(1) of the Immigration and Refugee Protection Act, whereby the signatures of both the Minister of Citizenship and Immigration and the Solicitor General are required on a security certificate before it can be referred to the Federal Court.

This matter can be accepted as satisfactory.

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

Hon. Members: Agreed.

SOR/2003-112 — REGULATIONS AMENDING THE NOVA SCOTIA OFFSHORE CERTIFICATE OF FITNESS REGULATIONS

Mr. Billingsley: Mr. Chairman, although the reply appears to be satisfactory, it is also somewhat ambiguous. Therefore, we propose sending a follow-up letter to confirm that they did not intend to define the term “certifying authority” for the purposes of the act but, rather, only for the purposes of the regulation.

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

Hon. Members: Agreed.

SI/2002-113 — ORDER TRANSFERRING FROM THE MINISTER OF STATE, DEPUTY PRIME MINISTER AND MINISTER OF INFRASTRUCTURE AND CROWN CORPORATIONS TO THE MINISTER OF TRANSPORT THE CONTROL AND SUPERVISION OF THE ROYAL CANADIAN MINT AND THE POWERS, DUTIES AND FUNCTIONS UNDER THE ROYAL CANADIAN MINT ACT

(For text of document, see Appendix F, p. 11F:1.)

Mr. Billingsley: Mr. Chairman, as you know, orders made under the Public Service Rearrangement and Transfer of Duties Act are a convenient way for the government to transfer powers and duties between members of the cabinet.

In my letter of November 2, 2004, I indicated that it was not clear from the order in question which powers, duties and functions under the Royal Canadian Mint Act had been transferred from the one minister to the other.

In his reply, Mr. Himelfarb asserts that these powers, duties and functions are “readily discoverable by simply reading” the Royal Canadian Mint Act.

This statement would appear to be wrong. In this case, the transferring minister, that is the Minister of State, Deputy Prime Minister and Minister of Infrastructure and Crown Corporations — all of whom was one person — is not one of the two ministers to whom powers and duties are assigned by the Royal Canadian Mint Act. Consequently, in order to be in a position to transfer powers and duties found in that act, the Deputy Prime Minister must have obtained them by way of a previous transfer or transfers.

It is only with reference to a previous order or orders under the Public Service Rearrangement and Transfer of Duties Act that it is possible to verify which powers and duties under the Royal Canadian Mint Act had been transferred to the Deputy Prime Minister. In other words, simply reading the Royal Canadian Mint Act does not lead to the ready discovery of the powers and duties that have been transferred by the order in question. As the clerk's reply discloses, a previous order, SI/2002-32, was made under the Public Service Rearrangement and Transfer of Duties Act, and that conferred certain powers and duties on the Deputy Prime Minister.

Finding these previous orders is not an easy task. It involves reviewing previous editions of the quarterly Consolidated Index of Statutory Instruments back to the date the powers and duties were first transferred under the Public Service Rearrangement and Transfer of Duties Act.

I note that at the end of his letter Mr. Himelfarb indicates that he has asked the Department of Justice to consider how best to clarify this and similar matters in the future.

Although we might have hoped for a stronger commitment for reform, given this development and the fact that the legality of these types of orders is not in question, I suggest that it is not necessary to pursue the clerk's suggestion, erroneous in my view, that the powers and duties transferred may be ascertained simply by reading the act.

The Joint Chairman (Mr. Grewal): Are there any comments?

Senator Moore: Where does that leave us, Mr. Chairman?

Mr. Billingsley: I am suggesting that we accept the reply as satisfactory.

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

Hon. Members: Agreed.

SI/2003-238 — ORDER DESIGNATING THE PRESIDENT OF THE TREASURY BOARD AS MINISTER FOR PURPOSES OF THE CANADIAN WHEAT BOARD ACT AND AS APPROPRIATE MINISTER FOR PURPOSES OF THE FINANCIAL ADMINISTRATION ACT

(For text of document, see Appendix G, p. 11G:1.)

Mr. Billingsley: Mr. Chairman, of the three actions purportedly taken under this order, only that taken under paragraph (a)(ii) was effective.

The revoking of Order in Council P.C. 2002-32 had already been affected by an earlier order, and the designation under paragraph (b) was ineffective because the Wheat Board is no longer a Crown corporation for the purposes of the Financial Administration Act.

In his letter, Mr. Himelfarb acknowledges the deficiencies raised in my letter and goes on to defend the validity of the action taken under paragraph (a)(ii) at some length. I note that I did not and do not question that aspect of the order.

Having received an acknowledgement of the lack of effectiveness of the other two actions, it is my opinion this file can be closed.

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

Hon. Members: Agreed.

SI/2004-16 — ORDER AMALGAMATING AND COMBINING COMMUNICATION CANADA WITH THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

(For text of document, see Appendix H, p. 11H:1.)

Mr. Billingsley: Mr. Chairman, I suggest this matter actually not be considered at this time. In reviewing the file in preparation for today's meeting, counsel felt that additional research is needed before it can be presented to the committee.

The Joint Chairman (Mr. Grewal): Will it be brought forward at a later date?

Mr. Billingsley: Yes.

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

Hon. Members: Agreed.

SI/2004-67 — ORDER AWARDING A BAR “ALLIED FORCE” TO THE GENERAL CAMPAIGN STAR (FEDERAL REPUBLIC OF YUGOSLAVIA, ALBANIA, THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA AND ADRIATIC AND IONIAN SEAS)

SI/2004-68 — ORDER AWARDING OF A BAR “ALLIED FORCE” TO THE GENERAL SERVICE MEDAL (AVIANO AND VICENZA, ITALY)

SI/2004-69 — ORDER AWARDING OF A BAR WITH THE NATO STAR FLANKED WITH THE LETTERS “ISAF” AND “FIAS” TO THE GENERAL CAMPAIGN STAR (AFGHANISTAN)

SI/2004-70 — ORDER AWARDING OF A BAR WITH THE NATO STAR FLANKED WITH THE LETTERS “ISAF” AND “FIAS” TO THE GENERAL SERVICE MEDAL (AFGHANISTAN)

(For text of document, see Appendix I, p. 11I:1.)

Mr. Bernier: These four orders, Mr. Chairman, were made pursuant to an instrument called a General Campaign Star and General Service Medal Regulations. The orders made pursuant to these regulations were registered and published in Part II of the Canada Gazette.

The regulations pursuant to which these orders were made are a prerogative instrument. Mr. Rousseau inquired as to why it was deemed to be in the public interest to register and publish the orders when the regulations themselves under which those orders are made were never registered or published in Part II of the Canada Gazette.

In his reply, Mr. Himelfarb points out that the regulations were published in Part I of the Canada Gazette, together with the letters patent providing for them. This still does not really explain why the subsidiary orders were treated differently and registered under the Statutory Instruments Act. Why were those orders not simply also published in Part I of the Canada Gazette?

In any event, these are the questions. I suppose we can either go back to Mr. Himelfarb for answers or, if the committee thinks it can live without those answers, close this file.

Whatever answer would be provided would likely be of an explanatory nature in any event.

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

Hon. Members: Agreed.

SOR/93-299 — PENSION BENEFITS STANDARDS REGULATIONS, 1985, AMENDMENT

Mr. Bernier: In this case, Mr. Chairman, the issue concerned the need for the regulations to require administrators of pension plans to provide copies of investment policy and procedure statements to the pension council and to the actuary of a plan. It is fairly clear that the debate has come to centre on the need for those regulatory provisions as opposed to their legality. Given that the Office of the Superintendent of Financial Institutions is adamant that it requires these provisions and deems them useful, while we continue to have doubts on that score, and given that the concerns are not related to vires, I would recommend that the reply be accepted as satisfactory.

The Joint Chairman (Mr. Grewal): Are members agreed?

Hon. Members: Agreed.

SOR/80-127 — NATIONAL PARKS CAMPING REGULATIONS

(For text of document, see Appendix J, p. 11J:1.)

SOR/2000-381 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS

(For text of document, see Appendix K, p. 11K:1.)

SOR/2000-213 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

SOR/2002-255 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of document, see Appendix L, p. 11L:1.)

SOR/2004-309 — ORDER AMENDING SCHEDULES 2 AND 3 TO THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

(For text of document, see Appendix M, p. 11M:1.)

SOR/2004-251 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

(For text of document, see Appendix N, p. 11N:1.)

Mr. Bernier: Mr. Chairman, I will deal with these as a group as usual. Under “Action Promised,” there are 12 amendments promised to the joint committee. Under the heading of “Action Taken,” the instruments listed represent 11 amendments that have been made at the request of the committee. This number includes some of the amendments made to instruments listed under “Action Promised.”

Finally, a total of 73 statutory instruments are submitted without comment.

The committee adjourned.

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