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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 10 - Evidence of March 1, 2007

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OTTAWA, Thursday, March 1, 2007

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Paul Szabo (Joint Chairmen) in the chair.

[English]

The Joint Chairman (Mr. Szabo): I want to go right to the agenda, if we can. If members would like to raise other matters, we can talk about them at the end of the meeting.

SOR/97-144 — BROADCASTING LICENCE FEE REGULATIONS, 1997

Peter Bernhardt, General Counsel to the Committee: As members will recall, last December, the Federal Court held that the Part II broadcasting licence fees constitute an illegal tax. In the judge's decision, he quoted in considerable detail from a paper prepared by the joint committee in 1989 for the Third Commonwealth Conference on Delegated Legislation in London, England. The committee had also reported previously on this issue to keep the Houses informed of the litigation, and of its continued monitoring of the situation.

In view of this, and given the reliance of the court on what it termed ``parliamentary members experienced and charged with reviewing delegated legislation,'' namely this committee, members considered it would be appropriate to wrap the matter up by way of a final report summarizing the events as well as the applicable principles, and noting the satisfactory outcome. That draft report is before the committee this morning.

Senator Bryden: I think it is an excellent piece of work. For the staff, in particular, and committee as a whole, this item has gone on for a long time. Our judgment has been good on the way by, and I think our instincts have been perfect. The results are great. I want to put that on the record.

The Joint Chairman (Mr. Szabo): Are there other comments?

Mr. Lee: Does the chair want to say something?

The Joint Chairman (Mr. Szabo): No.

Mr. Lee: I endorse Senator Bryden's comments. It is a good report. It does not stop me from making a comment or two and I would like to recommend a couple of things.

I find that the report, while it is 100 per cent accurate, does not hit the nail on the head the way that I thought we could. As I read the report, it makes us look like spectators. While we were not an active agent in the court decisions, we were there with our views on the law. Therefore, I want to recommend a couple of changes — not because there is anything wrong with what is there.

The first page opens the issue but does not refer to our previous report, which was a good one. It was only a short time ago. Right off the top, it would be useful if it referred to our report. Even though the report is referred to later, on page 3, the reader should know that this is not the first time we have engaged in this issue. I recommend, at the end of the first paragraph, that it somehow reads something like ``which were addressed'' or ``on which the committee reported in our seventy-sixth report.''

We should tag that this is not something that we have observed; the fact is that we have been engaged.

The Joint Chairman (Senator Eyton): Mr. Lee, can you be more particular? Where do you want the insertion?

Mr. Lee: At the end of the first paragraph, so that right off the bat, the reader will know that this issue is not new, that we have engaged and that we have views already on the parliamentary record.

The second thing, if you go to page 6, the middle paragraph says ``Not all of these factors need to be present in order to find a regulatory. . . .'' I assume that the sentence means to find that a regulatory regime is ultra vires, intra vires. I assume that means not all of these factors need to be present to find a regulatory regime that is in compliance.

If it is the former, I think we need a break to distinguish between the last half of the paragraph and the front part. The front part of the paragraph seems to be buttressing a regulatory regime that is okay. The last part of the paragraph is dealing with a regulatory regime that is not okay.

Mr. Bernhardt: The difficulty one runs into there is that, the Supreme Court, in setting out its principles, has talked about fees that are part of a broader regulatory scheme, by which it means what we generally refer to here as a regime. When the Supreme Court, in this context, talks about a regulatory scheme, they are not simply talking about the existence of valid regulations, but something broader.

Mr. Lee: Can we say that all these factors need to be present to find the existence of a regulatory regime?

Mr. Bernhardt: We can do that.

Mr. Lee: That is fine but the factors they have listed are intended to describe a regulatory regime that is in compliance and has the earmarks of a regulatory regime.

Mr. Bernhardt: Yes.

Mr. Lee: We are dealing with regulatory regimes that either work or do not work, not whether they exist.

Mr. Bernhardt: The court is saying that if we simply have a fee plucked out of mid-air as opposed to a fee that is interwoven with a broad scheme of regulation, then that fee may be used for a purpose other than simply collecting money, such as controlling behaviour and so on. That is an indication of a valid fee and, because it forms a part of a regulatory scheme, that is one of the things we look at for a fee.

Mr. Lee: I would be happy with this paragraph if you inserted the phrase, ``on the other hand'' or the word ``however,'' before the third sentence because I believe that it would express what we want to express. Therefore, it would read, ``However, the committee pointed out that the millions of dollars generated,'' et cetera. That would distinguish between the generic comments about a good regulatory regime and what we had found.

Moving to page 7 and the paragraph at the top of the page, I will read the sentence to provide context: ``. . . despite the broad discretion conferred on the CRTC by Parliament to determine the bases on which to prescribe fees, the Court of Appeal was not persuaded. . . ''

I thought that we were not persuaded either. I would like to insert the word ``also'' or ``too.'' It would then read, ``the Court of Appeal too was not persuaded.'' I thought we had reached the conclusion that we were not persuaded. This report is not a journalistic report on what the Court of Appeal only has done but also a committee report on the views of this committee. Does counsel find that acceptable?

Mr. Bernhardt: We can add in brackets, ``the Court of Appeal was not persuaded (nor was the committee). . .''

Mr. Lee: ``Nor was the committee. . .'' would have the same impact. I am happy with that.

In the next paragraph, the final sentence reads: ``As the committee has already indicated.'' Is that indication contained in this report, in the previous report or on the parliamentary record?

Mr. Bernhardt: It refers to earlier in this report.

Mr. Lee: That would be acceptable as it reads.

The next paragraph says: ``All the characteristics of the Part II licence fees pointed in this direction'' To which direction is the reference?

Jacques Rousseau, Counsel: That it was an illegal tax.

Mr. Lee: The reference is that it was an unlawful tax. I agree with that position. I am not sure that the wording makes it clear.

Mr. Bernhardt: Would it be clearer if we simply moved that paragraph up and continued it as part of the preceding paragraph?

Mr. Lee: Yes, that would help.

Mr. Bernhardt: Perfect: That makes the connection clearer.

Mr. Lee: Yes, thank you. There are a couple of minor editorial changes that I will not speak to. I will move instead to the last page. I thought that perhaps we could make it more robust in terms of the view of the committee on the retention by the government of the unlawfully collected taxes. The draft does not nail that down. The second last paragraph says, ``The committee can only approve. . .'' whereas I thought we should be more aggressive and say, ``The committee fully approves of this viewpoint, which reflects the fundamental nature of Parliament's authorization. . .''

The Joint Chairman (Senator Eyton): It would be accurate to say, ``The committee supports this viewpoint. . .''

Mr. Lee: It could say ``supports'' or ``approves'' but the phrase ``can only approve'' is somewhat reluctant in tone. We are positive about encouraging, perhaps forcing, the government to return unlawfully collected taxes.

The Joint Chairman (Senator Eyton): It could say, ``fully agrees with this. . .''

Mr. Lee: Yes, ``fully agrees'' or ``approves,'' but I am happy with any change that would firm that up.

The Joint Chairman (Mr. Szabo): The committee's position does not emanate from the judicial proceedings. Rather, the committee has held this position from the outset.

Mr. Lee: If I may, one other thing is missing. We have not given our view on the return of the taxes. I respect that staff does not lead the politicians on these matters but we are parliamentarians. We have the tools and we should use them.

It needs a phrase and I will read a suggested draft for your comments.

The Joint Chairman (Senator Eyton): Where would this phrase be added?

Mr. Lee: It would go after ``lawful collection of fees and taxes.'' I suggest: ``The committee urges the government to consider faithfully the views of this committee set out in its seventy-sixth report and herein, in determining the matter of return of any and all taxes found to be unlawfully collected.''

We have determined this is a tax so, given that government would not return a fee, perhaps it could return a tax. I will let counsel take it from here but it is my view that we should inform the government that it must deal with this issue and consider the views of the committee in so doing. We cannot order the government to return the money but we can ask the government to consider these positions faithfully.

The Joint Chairman (Mr. Szabo): Could we use the words, ``monies unlawfully collected. . .''?

Mr. Lee: Yes: Otherwise, the matter sits while we watch others try to figure out whether the money should be returned. This matter falls within our top 10 list, along with civil liberties.

Mr. Epp: How far back does this item go?

Mr. Bernhardt: It dates back to 1997.

Mr. Epp: The returns would encompass 10 years of unlawful taxes. How much money would that be?

Mr. Bernhardt: It totals about $600 million.

Mr. Lee: I believe that the court cases reach back to the time when the tax was challenged.

Mr. Bernhardt: In the recent Supreme Court decision, they say any limitation periods would still apply. I am not sure, in this case, what the limitation periods would be if they would apply. Those issues will be before the Court of Appeal. There may be some limits on how far back, even if —

Mr. Lee: I am only asking the government to buy into the fact that they have money that was taken illegally.

Mr. Epp: May I ask again then, is the purview of this committee to begin working as an advocate for the people who paid the unfair taxes? Is it not be up to them to say, we want the money back? Why should this committee, prior to that event happening, already begin advocating for it? I do not follow that part.

The Joint Chairman (Senator Eyton): It is because we think it is wrong.

Mr. Lee: The government cannot take any taxes, not a nickel, from the citizens unless it is lawful and Parliament approves it. In this case, we did not, the government did and we disapprove, so we are inviting the government to consider those principles. If I had my way, I would say, give the damn money back, but I am not saying that. I am asking the government to consider the principles enunciated in our reports. I am sure they will take the court's views into consideration as well.

Mr. Epp: It would be the same principle as, for example, the money that was taken from the civil servants' pension fund.

Mr. Lee: If money was taken, yes.

The Joint Chairman (Mr. Szabo): The Government of Canada is a stakeholder from the standpoint that they have an obligation to uphold the law. The court's decision will trigger some action; the government must be fully apprised, and they may be able to be involved somehow in resolving the disposition of the wrongly collected monies.

[Translation]

Mr. Asselin: Mr. Epp's questions are very pertinent. We are talking about a tax that has been collected since 1997. We are talking about $600 million in illegally collected taxes, and this morning the committee is finalizing the wording.

Under what authority did the government begin to collect this tax ten years ago? This was done pursuant to the Income Tax Act, admittedly, but was it levied following the sale of equipment or buildings? I imagine that it was not a payroll tax.

Mr. Rousseau: These were fees. We now know that this is an illegal tax collected pursuant to the Broadcasting Act. So, broadcasters were paying it.

Mr. Asselin: At that time, the Department of National Revenue levied a tax on broadcasters, even though the law did not permit this?

Mr. Rousseau: The Broadcasting Act gave the CRTC the power to levy these fees, which have now been declared an illegal tax. The CRTC received these funds which were redirected to the Treasury, the Consolidated Revenue Fund. It was a tax collected by the CRTC under the Broadcasting Act.

Mr. Asselin: Did those who paid this tax take legal action?

Mr. Rousseau: If I understand your question correctly, the broadcasters did institute proceedings. The decision was made by the Federal Court. The Federal Court ruled that this was an illegal tax, but that the broadcasters did not have a right to a reimbursement. The broadcasters appealed the decision to the Federal Court of Appeal, to try to obtain a favorable ruling as to their right to reimbursement. As the senior legal Counsel was explaining earlier, between the Federal Court decision and the Court of Appeal ruling, the Supreme Court rendered a decision in January. Under this decision, the broadcasters now have a good chance of obtaining at least a partial reimbursement of these taxes.

Mr. Asselin: When a final decision has been handed down by the Supreme Court, the highest court in the land, must the government not respect the Supreme Court's decision and reimburse the sums of money due to the broadcasters?

Mr. Rousseau: The answer is yes, but the Supreme Court says in its judgment that there can be a time limit stipulated in law for the exercise of this recourse. This could interfere with the reimbursement. The Supreme Court also refers to laws that Parliament could pass, given the circumstances. If Parliament decided to change things retroactively, this could be a solution to the problem.

[English]

Mr. Norlock: It appears to me that the court cases surrounding the issue we are speaking of have not come to a completion. I stand to be corrected, but I think that this body would await the decision of the court. They are listening to all the arguments on either side of the issue, so it would be prudent to wait until the completion of all the court cases before we make a determination as to where the committee should go — especially since it surrounds the actual fees themselves: who is owed what and what the surrounding circumstances are. I think it would be premature for us to start making demands.

The Joint Chairman (Mr. Szabo): There is some history here. The committee's initial work was with regard to the fees issue. Our work was suspended because of the court cases. The whole question is whether or not monies paid under a proviso of a fee that was in excess of the true underlying costs that they were covering, would be a tax. The court agreed with the committee.

The only question now is with regard to the settlement of the funds. That will happen. I doubt any more judgments will come out of the court. There may be an argument with regard to the time limitations or whatever, but there is no question some monies will have to be paid back.

This could take a long time. However, I do not think that our involvement is much there. What do you think, counsel?

Mr. Bernhardt: You are right. The one issue to be determined still is should there be a repayment? If there is a repayment, what is it that should be repaid?

The question of the fee or the tax, which was the committee's primary concern, has been addressed. The courts have agreed with the committee's view. That part of the decision has not been appealed, so we know definitively now that we had an illegal tax.

The question now that has been appealed is that the court also said, from now on they do not have to pay the tax because it is illegal, but they do not get the money back that they paid over the last 10 years. That aspect of the decision has been appealed.

Things were complicated because after the appeal was launched, the Supreme Court, literally days later, came out with a judgment in another case dealing with the repayment of unconstitutional taxes, and said, yes, they can be repaid, subject to some limitations.

It looks like those same principles will probably apply to this case. Until the Federal Court of Appeal says that, however, we will not have a judicial decision to that effect. Mr. Lee's point was that the committee should comment on that in this report. That question is for members to decide upon: whether they wish to insert something hopefully to prod the government in a particular direction.

Mr. Epp: This issue probably will be sorted out by the courts. It would be almost prejudicial for this committee to comment on it because a lawyer could then use committee testimony, or the court case could quote from the committee testimony to prejudice the case.

I agree with Mr. Lee in the supposition that if the monies have been collected illegally, they ought to be returned. However, I do not think that we should prejudice the outcome of the court appeal, which must look at both sides to determine a fair judgment.

Mr. Lee: Mr. Chairman, I would say to Mr. Norlock and Mr. Epp that the committee is dealing only with my proposal for wording at the end of the report. I have not, in any of this suggested wording, proposed any demand on the government. The committee has not said, «you must give the money back.» Rather, the committee has elaborated only on the legal principles that have brought us to this point — the most important one being the Kingstreet decision. It is loud and clear, it is in our report and my wording only urges the government to consider this report and our previous report in dealing with that issue. That is all.

Mr. Norlock's suggestion that my words constitute a demand on the government to give the money back is not the case at all. The government will make its decision but, in making that decision, the committee asks the government to consider faithfully the two reports of this committee, including the jurisprudence referred to in this one. The information in our reports is as solid as bedrock and I encourage and exhort the relevant staff at Privy Council, at the CRTC and at Treasury Board to read it, understand it and abide by it. My words say only that the committee urges the government to consider faithfully the views of this committee set out in its previous reports when making a determination on the matter of the return of any and all taxes found to be ultra vires.

In this case, we are dealing only with illegal taxes and we are not dealing with fees. This is a tax case. It might have been ambiguous a couple of years ago but after the federal trial court, it is no longer ambiguous. That is why I referred to illegal taxes only.

The Joint Chairman (Mr. Szabo): You are right, Mr. Lee, because the court determined that of the monies paid, some were fees and the excess constituted taxes and those taxes were illegally collected.

Mr. Lee: No, Mr. Chairman, the court found that all monies taken in the Part II fees were taxes and not fees. Part I fees are fees but Part II alleged fees are taxes. The case deals only with the Part II fees and they are illegal taxes. That is clearer.

The Joint Chairman (Mr. Szabo): Thank you, Mr. Lee, for the interventions and suggestions for the draft. Upon reflection, we see that Mr. Lee has been a responsible member of this committee and has put in language that states precisely what we have been engaged in. We have referred to our reports, our previous opinions, et cetera, to show that the committee has done its job and done it well. That information is helpful to the report.

We want to be careful with members' comments on the penultimate paragraph. We do not want to stray beyond the facts. Counsel has drafted the wording but I want to spend a couple more minutes to determine whether we have consensus on the length and the strength of the final two sentences, which are likely the only contentious ones. With consensus, we might move forward with approval of the draft, as amended, on the last two sentences.

The committee heard Mr. Lee's intent, which was that the committee bring to the attention of the government the matters found in this report and in our previous report.

Mr. Bernhardt: We could say, ``The committee urges the government to give proper consideration to these principles as enunciated by the courts and by the committee in its reports when addressing issues arising from the unlawful imposition of taxes.''

Mr. Epp: I do not think it is okay. First, I presume that the broadcasters who have paid these taxes will ask for the monies back. Then, it would be up to the government to determine whether they will do so. This committee, therefore, is looking ahead at something that is not within the purview of its study or its report — the disposition of the taxes collected illegally. It will be stated in the committee's reports and deliberations. I do not think the committee should weigh in advance of this process.

The Joint Chairman (Senator Eyton): My first thought is that if we do not insert such concluding language then we are wasting the time of the committee. It leads naturally to the kind of recommendation that is suggested. The language that I heard was that the government ``consider'' this report and the work of the committee along with the decision of the Court of Appeal. We are not backing anyone into a corner or exerting any kind of undue pressure with the use of such wording. Rather, the wording provides a proper conclusion to the report that advocates a position and action.

Mr. Cannan: Mr. Lee, perhaps we could take out the four words, ``can only approve of,'' and replace them with ``fully agrees with.'' It would read, ``The committee fully agrees with this viewpoint, which reflects the fundamental nature of Parliament's authorization for the unlawful collection of fees and taxes.''

The Joint Chairman (Mr. Szabo): Those are the principles. Two things are happening. First, we have the determination of whether there was a tax. The court has made a decision that the Part II fees are taxes, and that decision has not been appealed. Is that correct, Mr. Lee?

Mr. Lee: That is correct.

The Joint Chairman (Mr. Szabo): The committee is proceeding only to that point. We do know under the judicial proceedings that there are questions and that an appeal has been launched with regard to whether there will be full repayment and whether it will be time limited. That decision will take a long time.

That has nothing to do with this committee. We will not do any work on that, I assume, counsel, with regard to the court's decisions on the amounts to be repaid.

Mr. Bernhardt: We will monitor the situation.

The Joint Chairman (Mr. Szabo): We will monitor but the principle that we fought initially was whether the Part II fees constitute a fee or a tax; and if a tax, then the amounts were unlawfully collected. The courts agreed.

Mr. Lee: It is my recollection, and counsel can correct me if I am wrong, that the committee has never backed off where fees or taxes were improperly taken from citizens. In every case where we found them, we insisted that there be some adjustment or return.

We have always done that. This case is another one, and I am sure there will be lots in the future. I think we should continue that tradition. We are here to protect the citizens.

The Joint Chairman (Mr. Szabo): That is the reason we want to put this last paragraph in there, to bring it to the attention of the government.

Mr. Lee: Suggestions that it is not part of the committee's mandate or work to —

The Joint Chairman (Mr. Szabo): I meant in terms of determining the amount or the time limit; that has nothing to do with us.

Mr. Lee: This report does not determine any of that.

The Joint Chairman (Mr. Szabo): The principle — up until it is a tax and it is illegally collected, yes.

Let us have this language again for this last paragraph. Let us see if we can get the wording. Read it into the record.

Mr. Bernhardt: ``The committee urges the government to give proper consideration to these principles, as enunciated by the courts and by the committee in its reports, when addressing the issues arising from the unlawful imposition of taxes.''

I presume if someone imposes it, they will go to the trouble to collect it, but if «collected» reads better, I am fine with that.

The Joint Chairman (Mr. Szabo): Read it one more time. It is worth it. Be careful: listen for the break of the two issues.

Mr. Bernhardt: ``The committee urges the government to give proper consideration to these principles, as enunciated by the courts and by the committee in its reports, when addressing the issues arising from the unlawful imposition of taxes.''

[Translation]

Ms. Guay: We are taking a position on matters that are still before the courts. This concerns me and makes me very uncomfortable. I cannot entirely agree with this proposal until the matter has been closed. When the legal proceedings are over, we will examine the file and we can react at that time. I do not think we can influence a Supreme Court decision until the legal process is complete.

[English]

The Joint Chairman (Mr. Szabo): I understand that there are some issues, but there is a line in the sand that the courts have drawn. They have determined that taxes have been illegally collected. The committee has always taken that position, based on our assessment, and that decision has not been appealed. Everyone agrees it is over.

The only thing that has been appealed and is in dispute is the settlement. As you know, when someone goes to court and receives a judgment, the settlement activities are a whole other area of activity, which will be the decision of the courts or negotiated among the parties. One way or another, the matter will be settled.

Those are not the principles that we have been defending about the settlement. We have no compromise — the taxes were illegally collected — but in the law, we have to abide by the court judgments. They are unlawfully collected taxes and that case is over and it has not been appealed. Our report should stop right there.

More activity may go on, but not with regard to whether the fees were a tax. That has been established. Mr. Lee's suggested paragraph is to say that the court's ruling agrees with the position that we had taken earlier and that we continue to concur. We ask the government to take note of those principles, et cetera, in whatever else they may do on this matter. We have not said, and are not proposing to say, that all the monies must be repaid. We are not commenting on the settlement or any repayments. We are commenting on the principles of law that we defended.

[Translation]

Mr. Asselin: You just said that, Mr. Chairman. Why should we add a new paragraph if we are aware that the decision was rendered by the Supreme Court? As for the reimbursements, that is being appealed. Let us wait for the appeal decision on the reimbursements. We should not be telling the government what to do or raising its awareness about possible reimbursements. When the Court of Appeal has handed down its decision, it will be incumbent upon the government to discharge its responsibility. We are complicating our existence trying to see how we could put in our two cents' worth and derive personal satisfaction from being able to say that we participated and that our wording is in the report. Let us not talk about the tax anymore; a decision was handed down and it is illegal. Let us wait for the decision of the Appeal Court.

[English]

The Joint Chairman (Mr. Szabo): I doubt that the amount of the reimbursement will affect this report one iota.

Mr. Epp: Nor will the report affect the amount of the reimbursement.

The Joint Chairman (Mr. Szabo): That is right. They are independent of each other. I think you are incorrect in your assessment.

Senator Bryden: We may be missing something, and that is that since the decision we have been dealing with, there is now a Supreme Court decision dealing with the refund of money. That one is on the second last page, Kingstreet Investments.

The Supreme Court ruled unanimously ``that there is no general immunity affecting recovery of illegal tax.'' According to the court, when taxes are illegally collected, they ``must be returned, subject to limitation periods and remedial legislation, when such a measure is deemed appropriate.''

Then they went on:

The Court's central concern must be to guarantee respect for constitutional principles. One such principle is that the Crown may not levy a tax except with authority of the Parliament or the legislature... This principle of ``no taxation without representation'' is central to our conception of democracy and the rule of law... When the government collects and retains taxes pursuant to ultra vires legislation, it undermines the rule of law. To permit the Crown to retain an ultra vires tax would condone a breach of this most fundamental constitutional principle.

The Supreme Court has already said if they take an illegal tax, they must give it back. The only issue going to the courts is how much. All the rest has been determined. It has been determined that if they take an illegal tax, if they are the government, it has to be paid back. Therefore, we are not interfering at all with that principle. That principle is already established.

I think we stop with the next paragraph, with perhaps some direction from Mr. Lee. However, the question is not for us to determine, now that they have found an illegal tax whether the money should be paid back. The Supreme Court, after the CRTC decision, decided that if a tax is illegally imposed or collected, it should be returned.

We want to make sure we do not say it should be fully refunded or go back forever or whatever. If we stay away from that, what is proposed is a fine. Do you want to read it one more time? We need to keep in mind that the decision has already been made. Government, if you collected a tax illegally, you have to pay it back.

The Joint Chairman (Mr. Szabo): Mr. Lee's suggestion about the second last paragraph is our stumbling block. One member, Mr. Cannan perhaps, suggested we use the words ``The committee fully agrees with this viewpoint'' in the second last paragraph. That wording substantiates the committee's viewpoint as articulated in our previous reports and in the body of this one. When we try to summarize the essence of the entire report, we raise some interpretive concerns, which we do not want to do. Mr. Lee, we could make those minor amendments to that second last paragraph but I am looking at possibly not adding the word ``fully.'' Are there other points?

Mr. Lee: If members are of the view that they do not want to add the word ``fully,'' that is fine but the report will sound like a newspaper report rather than a committee report. We could ask the government to reply but we are not asking at this time. We are simply bringing focus to the report. If members want to walk from that, it is okay but then I wonder why we are reporting. The Federal Court reports are available for all to read.

The Joint Chairman (Mr. Szabo): Committee members will agree that you have done a masterful job, Mr. Lee, in taking the time to look at the nuances. Some of this report is better expressed and more reflective of the views of the committee when members provide their input.

I suggest that we make the change in the second last paragraph to «fully agrees with this viewpoint,» and ask that government read the entire report and be reminded of the viewpoints of the courts and of the committee.

The other question is whether it is appropriate or helpful to ask for a government response. That is sometimes done but I am not sure if it is appropriate in this instance.

Senator Moore: I am sympathetic to Mr. Lee's comments. With regard to the second last paragraph and the words, ``The committee fully agrees with the viewpoint, which reflects the fundamental nature of Parliament's authorization for the lawful collection of fees and taxes,'' perhaps we should say ``and the return of taxes unlawfully collected.''

Mr. Lee: We would never disagree with the Supreme Court of Canada.

The Joint Chairman (Mr. Szabo): I thought the subtlety of your addition was that the committee took the position before the matter went before the court. The committee took this position and concurs. We could turn that around and say that the court concurs with the committee.

Mr. Norlock: I like the wording that you mentioned because the message is positive when the word «lawful» is used instead of ``unlawful.'' When you read the report, already knowing the Supreme Court decision, you can understand the message clearly. It has a positive ring to it and serves the purpose.

The Joint Chairman (Mr. Szabo): We are receiving diminishing returns at this time so, again, I thank Mr. Lee. The first suggested amendments were understood by members and they could be made easily. With the concurrence of the committee, we will put in that ``The committee agrees with this viewpoint,'' and that substantively we have not made any significant assertions that are not self-evident.

With the approval of the committee, I will entertain a motion that the draft report be adopted, as amended.

Mr. Epp: I so move.

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

Hon. Members: Agreed.

SOR/88-66 — CONTROLLED PRODUCTS REGULATIONS

(For text of document, see Appendix A, p. 10A:1)

Mr. Bernhardt: As explained in the note included in the materials, the minister's letter of December 13 advised that amendments to a number of provisions in the Controlled Products Regulations will be made. The purpose of these amendments is to replace subjective wording with objective criteria. While the proposed amendments to sections 33(1)(b), 64 and 33(3) would resolve the committee's concerns, unfortunately, the same cannot be said of the proposed amendments to sections 12(11) and 33(2). The reasons for this conclusion are set out in the note. In the case of section 12(11), it would appear to be a matter of clarifying what is intended in the proposed amendment to the provision.

The provision proposed in the minister's letter, section 33(2), would allow a supplier to use any other ``relevant material'' in place of the prescribed criteria to establish that a product, material or substance is not in Class D. Since we have to presume that Parliament would not give the Governor-in-Council the authority to authorize the consideration of irrelevant criteria, proposed section 33(2) does no more than provide anything that may properly be considered to be considered. This amounts to prescribing nothing at all. I suggest that these two points be pursued in a further letter to the minister.

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

Hon. Members: Agreed.

SOR/99-324 — BOOK IMPORTATION REGULATIONS

SOR/99-325 — EXCEPTIONS FOR EDUCATIONAL INSTITUTIONS, LIBRARIES, ARCHIVES AND MUSEUMS REGULATIONS

(For text of document, see Appendix B, p. 10B:1)

Mr. Bernhardt: In their letter of October 31, 2006, the joint chairmen advised the Minister of Industry that the committee wanted these files to be brought back at the first meeting of 2007. It was hoped that a reply would be received by then. No reply being received, at its last meeting the committee determined that unless a reply were forthcoming in the interim, officials from the department should appear before the committee this morning to provide the requested reply in person. At that time, however, the minister's letter was already on its way and, in fact, was received the day after the meeting.

The joint chairmen's letter sought the minister's cooperation in ensuring that amendments to the Book Importation Regulations, promised more than six years ago, would be made without further delay. In addition, an assurance was sought that a promised amendment to the Exceptions for Educational Institutions Libraries, Archives and Museums Regulations would proceed at once, and that an outstanding reply dealing with certain other matters relating to these latter regulations would be forthcoming. In the minister's reply, he advises that he has instructed his officials to develop a plan to move forward and that a more complete response will be forthcoming in the weeks ahead.

The matter before the committee this morning is whether that response is satisfactory for now.

Mr. Lee: Despite our previous discussions and the apparent reluctance of members to do anything that would ruffle the feathers of government, I suggest that the reply of February 9 from Minister Bernier is a little disrespectful. He actually sloughs the thing off in saying, ``As additional time is required to review this matter,'' — In parentheses, I would add that the committee certainly does not need more time — then the letter continues, ``Industry Canada will provide a more complete response in the coming weeks.''

That will takes us into 2008 and a new Parliament so the minister's response is totally unacceptable, is a slough-off and is disrespectful. I grant that the minister is new in his position and might not be familiar with the work of this committee so perhaps he is simply signing what his officials have asked him to sign. We need to firm up a great deal more and request a timeline. If his officials need time to do this, let us allow that, but we need a firmer timeframe than ``the coming weeks.''

Mr. Del Mastro: I take an alternative viewpoint from Mr. Lee. In the coming weeks does not mean in the coming months, nor does it mean in the coming years. I think the minister should be given an opportunity to come forward with a plan, as he suggested that he will, and that the committee should be patient and wait to receive that response from the minister.

[Translation]

Ms. Guay: I do not think that it is impolite at all, Mr. Chairman, I think it is a time frame. We just received the letter dated February 9. However, as another possible solution, you could, if we do not receive a reply by the end of March, write to him again and ask him for a time frame, and thus give him at least a few weeks to reply to us. However, I would ask our council to write to him again before the end of March to ask for a timeframe.

[English]

Senator Moore: I do not want to see it drag on beyond the end of March. We should hear from him within three or four weeks of the date of his letter. If we wait till the end of March, as has been suggested, I do not want to go back to him then and ask for a timeline. I want his response here by that time or we will take whatever action we need to take.

Mr. Cannan: I support that. I wonder if Mr. Lee can explain why it has been six years and we have not gotten any action.

Mr. Lee: That is an excellent question, and the file is a six-year one. Let us get on with it.

The Joint Chairman (Mr. Szabo): Members must be reminded that we were frustrated enough to ask them to appear here at this meeting. Our frustration level was already at that point. The letter is a little bit dismissive, but —

Senator Moore: The minister may be new but the bureaucrats on the file are not, so come on.

The Joint Chairman (Mr. Szabo): That is where the problem is. I sense we want a response. We probably should write now to say that we acknowledge the undertaking to provide the committee with the responses that you indicated in your letter of February 9, and we will raise this matter at our meeting of March 22 for follow-up. We should probably also say if the ministry is unable to provide the necessary information, we request that the committee be advised in advance of that meeting.

Mr. Norlock: Mr. Chair, why do we not simply say our expectation is to have a response by March 22?

The Joint Chairman (Mr. Szabo): That is what we are saying.

Mr. Norlock: What you are saying is the long way.

The Joint Chairman (Mr. Szabo): Let us be clear. I think the senator is right. We need to write a letter now and say we will take the minister at his word; we will deal with it on March 22.

Senator Moore: After that, the minister will be called to appear.

The Joint Chairman (Mr. Szabo): If they know tomorrow or whenever they get the letter that everyone will be on vacation, March break, and they will not respond, we expect the courtesy of being advised.

[Translation]

Mr. Asselin: As Mr. Lee indicated, if this dragged on for six years under the Liberal government, we can at least challenge the new Conservative minister to settle this matter before March 22.

[English]

The Joint Chairman (Mr. Szabo): The spirit is there. We will continue to be active in this file.

Mr. Epp: I want to take a slightly stronger stance on this. If you look at the October 31 letter, page 2, I am disturbed when I read,

Ms. Bincoletto again indicated that there are apparently no plans to make the promised amendment in the foreseeable future. . . .

This is four or five months ago. We wrote on February 1. We wanted a response by February 15. Today is two weeks past February 15 and we still do not have a response.

I think we should word the letter more strongly. I would not use the word «defiance,» but they are almost saying we have asked for this, but they do not think they will do this. They are putting this off month by month. I would make it fairly strong.

The Joint Chairman (Mr. Szabo): We accept their undertaking and expect their response by the next meeting.

Senator Moore: Failing which, they will be asked to appear.

The Joint Chairman (Mr. Szabo): Is that agreed?

Hon. Members: Agreed.

SOR/2004-154 — REGULATIONS REPEALING THE RADIATION DOSIMETRY SERVICES FEES REGULATIONS

(For text of documents, see Appendix C, p. 10C:1)

Mr. Bernhardt: Since 1951, National Dosimetry Services has provided an optional service that monitors the exposure to radiation of individual workers in certain fields. This instrument repealed the regulations that set the fees for this service. These fees are now to be established on a contractual basis.

The regulatory impact analysis statement indicated that regulations imposing these fees had existed since 1952. In fact, no such regulations existed until 1990. Moreover, at that time, the committee had questioned some statements made in connection with the fees, and had been told that the 1990 fees were new fees.

This statement led to counsel's inquiries as to exactly what the history of these fees was. In its reply, Health Canada explains that fees for the service were charged on a contractual basis from 1952 until 1990. Therefore, the 1990 fees could be seen as new, in the sense that 1990 was the first time they had been set out in regulations.

Be this as it may, the point is really of historical interest only, and it would not appear to be anything that needs to be pursued here. If members agree, we can simply close the file.

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

Hon. Members: Agreed.

SOR/2000-374 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of documents, see Appendix D, p. 10D:1 )

Mr. Bernhardt: Two outstanding issues were pursued in counsel's letter of May 18, 2005. The first concerned section 2.20(1). This section provides that requirements applicable to heat, ventilation and air conditioning systems apply to a building in which the federal employer is the principal tenant, even though the employer does not have control over these systems. The intent is apparently to ensure that employers negotiate leases that provide for the requirements to be met by the landlord.

The problem is that if the landlord fails to comply with the lease that requires these standards to be met, it is not the landlord that contravenes the regulations, it is the employer, even though the employer has absolutely no control over the building. This situation clearly does not seem right. To avoid this, it was suggested that the regulations simply require that employers who lease building space must include in their lease agreement a clause requiring compliance with the standards by the landlord.

I am not sure the department really grasps the point yet, but they have agreed to consider the suggestion. Perhaps, at this time, they could be asked if they will make an amendment to the provision and, if so, precisely what this amendment will be.

The second point deals with section 2.24(2)(a), which requires that instructions prepared by a person appointed by the employer take into account a particular Canadian Standards Association, CSA, standard. The committee is told that taking the standard into account is something less than complying with it, although it is hard to see how they can demonstrate that a guideline or standard has been taken into account unless they actually incorporate it into their instructions for the world to see.

Again, the department says they are contemplating an amendment to the provision, so another inquiry as to what they intend to do would seem to be in order. I suggest we ask for further particulars on these two points from the department.

Mr. Lee: Can I ask counsel, is this not a case where we are actually out in front, along with the ministry, in dealing with the changes to these regulations before they put them in place?

Mr. Bernhardt: Yes.

Mr. Lee: Drafting is going on, which hopefully incorporates the views of the committee. In the end, we may have a draft product that they will offer.

Mr. Bernhardt: Right.

Mr. Lee: We will have a chance to preview the draft product. This is a good circumstance.

Mr. Bernhardt: The key word here is «hopefully.» That is what we look for at this point. You have said you are thinking about changing these. Exactly what are you intending to do? Then we can decide whether the committee is satisfied.

The Joint Chairman (Mr. Szabo): We will continue to monitor.

Senator Moore: Perhaps we should send a follow-up letter.

The Joint Chairman (Mr. Szabo): Yes, excellent.

[Translation]

SOR/2002-60 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

(For text of documents, see Appendix E, p. 10E:1 )

Mr. Rousseau: In this file, the committee asked the department to indicate what enabling authorities allowed for the adoption of section 400.07 of the regulations. This section requires permit holders to advise the department of any change in their permanent address within seven days. The department first identified section 4.9(s) Nota: Re: 4.9 (s) or (f) — According to the Scrutiny of Regs. Committee documents concerning SOR/2002-60, it is 4.9(s) — may be the French should be changed. Thank you of the Aeronautics Act as the enabling authority. The committee did not accept that answer. In its letter of June 21, 2006, the department now suggests that the necessary enabling authority is to be found in section 4.9(a) of the Act which authorizes the governor in council to make regulations respecting aeronautics governing, for instance, the accreditation or licensing of persons referred to in the act. This reply is no more satisfactory than the first, in the opinion of committee counsel.

On the one hand, the committee has never accepted that a requirement to provide information to the government be imposed pursuant to a provision as general as one which states that regulations may be made concerning aeronautics.

Moreover, the power of making regulations concerning the accreditation of persons mentioned in the act confers the power of regulating that accreditation. In the regulations the committee is examining today, the intent is to use that power to require persons who were already accredited to provide information. That is no more acceptable than the first authority cited, and in the opinion of committee counsel, section 400.07 of the regulations is illegal.

That said, Mr. Chairman, there is a way of requiring permit holders to provide that information by using the regulatory powers the governor in council already holds. The requirement would have to be made a condition of the permit, which is different from a regulatory requirement. If each permit provided that the permit holder had to inform the government of any change of address within seven days, the permit holder would be obliged to provide that information.

Committee counsel's recommendation is to write to the department again to explain why its most recent response is not satisfactory, and to suggest an amendment to the regulations requiring permit holders to provide that information.

[English]

The Joint Chairman (Mr. Szabo): Counsel suggests that the committee reply with an explanation as to why the committee funds this unsatisfactory. That is reasonable.

[Translation]

Senator De Bané: So you are saying that the way in which they went about obtaining this information is not in compliance with the legislation. However, if this were part of the information that had to be provided in order to obtain one's permit, that would be acceptable. Why is the department resisting when you are providing it with an elegant solution?

Mr. Rousseau: I do not think the suggestion to obtain this information by making this a condition of the permit has been made to the department. That is the suggestion we could make if we were to write to the department again.

The power exists. The power of requiring that certain conditions be agreed to obtain the permits exists. It should be used.

Senator De Bané: So the department could do this by going about it in that way?

Mr. Rousseau: Yes.

Senator De Bané: You are telling us that this elegant method which you suggest has not yet been conveyed to the department. Perhaps you should do so.

Mr. Rousseau: Counsel are today suggesting that you write to the department again to suggest that it use these powers.

[English]

Mr. Lee: It is my understanding that this regulatory requirement would require a licence or permit holder to advise of a change of address. Failing to do so would subject the holder to what they describe as an administrative penalty of up to $1,000. If it is the view of the committee that the requirement is illegal, and yet a citizen can be potentially subjected to a penalty, then I ask whether this is truly an administrative penalty? Is it applicable in the case of a citizen failing to provide a notice of change of address?

Mr. Bernhardt: There is a system under the Aeronautics Act for imposing these penalties that they call administrative monetary penalties. In reality, the penalty is a fine and the fine is usually imposed as a kind of ticket for an offence. They are referring to that kind of thing as opposed to a penalty involving court appearances. For the citizen, it amounts to the same thing and comes down to simply a question of the mechanism by which it is done. Yes, a citizen would be subject to the fine in that case and probably does not care because that citizen would be out $1,000 whether because of an administrative fine or a fine levied by the courts.

The Joint Chairman (Mr. Szabo): The recommendation is that we write back to explain why it is unsatisfactory. I note that this matter was not complex. It is still only on the table on matters and positions that were taken in history some time ago. It took three months to respond to the last letter.

Mr. Bernhardt: That is good.

The Joint Chairman (Mr. Szabo): That is relative but in terms of the operational aspects, three months to respond to this committee is too long. I raise this point for interest's sake because we regularly fight slow timeframes. Is it agreed that the committee write back with the reasons for concern?

Hon. Members: Agreed.

SOR/2002-148 — REGULATIONS DESIGNATING PERSONS AND CATEGORIES OF PERSONS — OTHER THAN TRAVELLERS DESTINED FOR THE UNITED STATES — WHO MAY ENTER A PRECLEARANCE AREA

(For text of document, see Appendix F, p. 10F:1 )

Mr. Bernhardt: The provisions in question permit a person to enter a pre-clearance area at an airport to perform maintenance or repairs if the person is under constant surveillance by the airport operator. A person is also permitted to enter for other purposes with permission from the operator and if under constant surveillance by way of personal escort. The Aeronautics Act authorizes regulations designating persons or categories of persons who can enter a pre- clearance area, and its authority is narrow. It permits designating persons or classes of persons. It does not permit making that designation subject to terms and conditions. Yet, the accompanying regulatory impact analysis statement says that the regulations both designate ``those persons and classes of persons. . . who may enter a preclearance area'' and set out ``the conditions under which they may do so.'' In view of this, it was suggested to the department that while a regulation could be made that requires airport operators to place certain people under surveillance in certain areas, there is no authority in the Aeronautics Act to make membership in a designated class of persons dependent on some action being taken by the airport operator.

In reply, the department attempts to characterize these provisions as simply describing classes of persons, and it is claimed that no duty is actually placed on airport operators because they keep these people under surveillance anyway.

The point is not whether the operator would do this in any event but whether there is a legal duty put on the operator to do it. The provisions impose this duty in relation to certain people in certain areas in certain circumstances; and this duty clearly goes beyond simply prescribing classes of people who can enter certain areas.

The real reason for the department's position is revealed in the final paragraph of their letter of June 20, where they explain that these regulations implement an agreement with the United States, and that any changes would require consultation, which might allow unrelated matters to be brought to the table against Canada's interests.

I suggest what this position overlooks is the fact that the Preclearance Act could simply be amended to provide the proper authority for the regulations; or the regulations could be amended, as was suggested in counsel's letter, to result in the same effect. In either case, there does not seem to be any need to reopen the agreement with the United States.

I presume the intent of that agreement would be carried out either way, so I think that is a bit of a red herring. The matter could be pursued in another letter to the department to try to get them to come around.

Mr. Lee: I have read through this letter. I am a little bit more partial to the view of the department than is counsel.

I will make a comment about that but I also want to note, which counsel probably has already noticed, that this particular official — Ms. Thompson — is also the official we are dealing with on an item on beef and veal imports later in the agenda, under Reply Satisfactory (?). As I read it, the issue in that beef and veal import regulation is almost the same as the one we are dealing with now. We could probably deal with them both together.

She will be a tough customer — I can tell from her correspondence — but I am not making light of it. A certain amount of attitude is buried in this correspondence, but she is well-intentioned. Here is the point I want to make: What counsel describes as a condition could arguably also be seen as simply a descriptor of the exemption circumstance.

I will use the following analogy. One basis on which a person is exempted in being present in a preclearance area is if the person has a pass. The pass must be issued by an appropriate authority, it must have a photograph, it must be signed and there are a lot of other little conditions, as you call them — or we can call them descriptors or denominators — that are involved in the pass issuance, such as the wearing of it, how it is worn and that type of thing.

For the sake of discussion, I suggest that having a pass requirement for someone entering a preclearance area is not any different than having a surveillance requirement for someone entering a preclearance area. The class of person who may enter the preclearance area is a person who is supervised — who is under surveillance or has someone with that person. While counsel may regard that requirement as imposing a condition involving a third party, et cetera, so is the issuance of a pass. A third party must issue the pass.

I am partial to the department's view that they simply describe a class of person, which, at the given moment in time, is present to do a piece of work, and is supervised or under surveillance. I am somewhat partial to that view. Counsel may want to set me back a bit here with some law, but that is how I look at it now.

Mr. Bernhardt: It is not a question of law. By way of playing devil's advocate, perhaps, I suggest the difference could be said to be that if they are required to have a permit, the permit is issued, they are a person with a permit, they are in that class and they can enter the area. However, if we say they can go in if they will be under constant surveillance, that activity is ongoing; it requires the operator to do something on an ongoing basis during that time. If that person providing surveillance leaves, they are no longer allowed in the area.

In the one sense, it is a bit like saying a person with a bow tie can go in. That is fine; a person has a bow tie and can go in. Then we could say a person with a bow time can go in if someone will follow that person along, and as long as that person keeps the bow tie on, the person can stay. That is a little bit of a different situation. The one imposes an ongoing duty: the other simply describes a person at a given point in time.

Mr. Lee: One situation is dynamic and the other is not — or maybe they are both dynamic, I do not know. I am not convinced yet that on both these files, the department does not have a case. Other colleagues may want to comment.

The Joint Chairman (Mr. Szabo): It sounds like something we should pursue. I think we should write back. We might want to take note of Mr. Lee's slant on this, and see if we can get a better focus on our position if there is a possibility that maybe we are not there yet.

Mr. Bernhardt: We can seek to explore the issue further without taking too hard a line.

Mr. Lee: I know counsel will enjoy working with Ms. Thompson.

The Joint Chairman (Mr. Szabo): Is it agreed that we will write and explore this matter further?

Hon. Members: Agreed.

[Translation]

SOR/88-560 — CRIBS AND CRADLES REGULATIONS, AMENDMENT

(For text of documents, see Appendix G, p. 10G:1 )

Mr. Rousseau: In this file which concerns drafting problems, the department stated that the draft regulations should be published in the Canada Gazette by March 31, 2007. It seems, thus, that things are moving along and should be settled. It might, however, be a good idea to indicate to the department in your next letter that if there were to be further delays, the committee wishes to see the promised amendments adopted quickly, without further delay.

Counsel's recommendation is to write to the department to ask for a timeframe for the adoption of the new regulations, and to indicate to the department that should their adoption be postponed, the committee wishes to see the promised amendments made without further delay.

Senator De Bané: Very well.

SOR/2000-290 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS

(For text of documents, see Appendix H, p. 10H:1 )

Mr. Rousseau: This file concerns two promised amendments, one to the regulations and one to the act. In its letter dated September 1, 2006, the department states that these amendments will be made as soon as an opportunity presents itself. In the case of the amendment to the regulations, which concerns a section which is no longer applied, as the department indicated, this commitment could be accepted on condition that this opportunity present itself within a reasonable time period, after which the committee usually asks that the amendment be made without any further delay.

In the case of the amendment to the act, the purpose is to clarify the act by harmonizing the French and English versions. It might be good to suggest to the department, should no amendment to the Canada Student Financial Assistance Act be planned, to consider the possibility of making this amendment through the miscellaneous program amendments.

The Joint Chairman (Mr. Szabo): Does the committee agree with counsel's suggestion?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Very well.

SOR/99-13 — EXEMPTION LIST REGULATIONS

(For text of documents, see appendix I, p. 10I:1 )

Mr. Rousseau: The department's letter states that it was unable to respect its timeframe and that it will initiate the formal drafting process to correct the drafting problems as soon as possible. The department's letter is dated May 10, 2006.

Counsel's recommendation is to write to the department to inquire about progress made since that date.

[English]

Mr. Lee: We all know how difficult it is sometimes to complete regulatory enactments in the North. The official asked us to join in celebrating what he describes as a significant regulatory achievement, and it says a whole lot about the work of the committee.

The significant regulatory achievement was the completion of the Assessable Activities, Exceptions and Executive Committee Projects Regulations, pursuant to the Yukon Environmental and Socio-economic Assessment Act. I congratulate the department, that official and his team for completing that work because I know how much it means to the system. I note that work because it encapsulates so much of what this committee does.

The Joint Chairman (Mr. Szabo): Agreed: The pride in workmanship is not to be knocked.

[Translation]

SI/2003-38 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS (TUKTUT NOGAIT NATIONAL PARK, NORTHWEST TERRITORIES AND NUNAVUT)

(For text of documents, see Appendix J, p. 10J:1 )

Mr. Rousseau: Mr. Chairman, two points were raised in this file. An amendment to the wording of the order was promised concerning the first point of the letter sent by committee counsel on October 28, 2004. The January 16, 2006, letter confirms that this amendment will be made.

As to the second point, the department, in its letter dated January 16, 2006, provided the requested confirmation as to the proper interpretation to be given to one of the provisions describing the lands that are the subject to the order. If the committee is satisfied, the counsel will follow up in the usual way on the progress of the promised amendment and keep the committee apprised of developments.

[English]

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

Hon. Members: Agreed.

[Translation]

SOR /2001-203 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1024 — CLINICAL TRIALS)

(For text of documents, see Appendix K, p. 10K:1 )

Mr. Rousseau: Mr. Chairman, in this file 14 points were raised in the letter dated August 4, 2005, sent by committee counsel. Amendments were promised concerning 12 of these points. As for the other two points, points two and seven, concerning the drafting of the regulations, the department provided satisfactory answers in support of its decision to keep the current wording of the regulations. If the committee is in agreement, counsel will follow up on the progress of the promised amendment and keep the committee apprised in the usual way.

[English]

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

Hon. Members: Agreed.

SOR/2001-219 — NORTHWEST TERRITORIES ARCHAEOLOGICAL SITES REGULATIONS

SOR/2001-220 — NUNAVUT ARCHAEOLOGICAL AND PALAEONTOLOGICAL SITES REGULATIONS

(For text of document, see Appendix L, p. 10L:1 )

Mr. Bernhardt: Mr. Chairman, at the committee's direction, three points were pursued through further correspondence. Amendments have been promised. On point one, however, there is some concern with the reference to certain decisions being made by an agency, ``in its sole discretion.'' The intended effect of this wording is unclear, although it might be an attempt to preclude a full judicial review of the decision. Clarification as to precisely what is intended should be sought. On point two, the amendment proposed is satisfactory. The third point concerns unnecessary and potentially misleading references in the regulations. The promised amendment does the same thing in different words. Therefore, I suggest that situation should be pointed out to the department in a further letter. If the committee is agreed, counsel will write to try to sort these matters out.

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

Hon. Members: Agreed.

[Translation]

SOR/2005-401 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

(For text of documents, see Appendix M, p. 10M:1 )

Mr. Rousseau: Mr. Chairman, amendments were promised in response to comments made on points one and two in the letter sent by committee counsel on February 27, 2006.

The other point raised in this letter relates to the obligation to provide the minister with a copy of the reports prepared by the employer on the evaluation of the effectiveness of a hazard prevention program. The committee has always considered that such requirements must be clearly authorized in the enabling legislation. As the committee can see, when we examined SOR/2002-60, this was the same type of problem, and the committee decided to write to the department again. With your permission, I would make the same suggestion here. The problem is of a similar nature and counsel suggest that you write to the department again to explain why the reply provided by the department is not satisfactory.

[English]

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

Hon. Members: Agreed.

[Translation]

SOR/96-48 — EXEMPTION REGULATIONS (BEEF AND VEAL IMPORTS), AMENDMENT

(For text of documents, see Appendix N, p. 10N:1 )

Mr. Rousseau: Mr. Chairman, this file concerns a regulatory provision deemed illegal by the committee. The act states that any person or goods or any class of persons or goods may be exempted from the operation of any or all of the provisions of this act. Section 3 of the regulations grants an exemption from the obligation to obtain an import licence if the persons concerned comply with the conditions in the regulations. The committee considers that the legislation does not authorize the governor in council to impose conditions in order to obtain the exemption.

The department stated in its letter dated April 26, 2006, that even though it did not share the committee's point of view, it would undertake the necessary steps to have Parliament amend the regulatory powers of the governor in council. From this perspective, the department's answer is satisfactory.

However, the fact remains that section 3 of the regulations is illegal, a fact which the department has indirectly admitted. Originally the department refused to recognize that section 3 imposed conditions. However, in its letter of April 26, 2006, the department wrote:

. . . that it is beneficial for all Canadians for the governor in council to maintain the authority to determine the conditions that apply to the exemption regulations . . .

Thus, amending the act will not correct this illegality. For this to be corrected, section 3 of the regulations would have to be adopted again after the act was amended. If the committee is in agreement, counsel will write again to the department to explain why the committee wishes to see section 3 of the regulations adopted again after the law is amended.

[English]

Mr. Del Mastro: Mr. Chairman, I have a question. Are these regulations still subject to import quotas on beef and veal? These regulations do not deal with supplemental beef imports, as I understand.

Mr. Rousseau: No.

Mr. Del Mastro: This amendment would exempt them within the given framework for allowable imports.

Mr. Lee: I mentioned earlier that we dealt with the same official from the same department in respect of the Aeronautics Act exemptions. Counsel has staked out some ground that describes the wording in these regulations as conditions. We have conditions that look back, conditions in the present and conditions that require something in the future. Is there any case law or something that would allow the committee to have better focus? I am somewhat partial to the views of the department but I do not want to take a position that is dumb in view of the current state of the law. Perhaps counsel could address whether there is any relevant case law. I was a little disturbed by the position of disagreement of the department with what they call the argument of the committee. The committee does not generally accept those disagreements where we have firmed up our position.

I appreciate that counsel suggests continuing the dialogue with the department but if counsel could try to dig up relevant case law, it might provide focus for the committee on the issue of the different conditions and whether they are descriptors or conditions.

Mr. Bernhardt: I note in this case that we have an agreement from the department to amend the statute. On the one hand, they are positive of their view but on the other hand they will amend the act. One wonders how positive they might be at the end of the day. If that is the way they wish to characterize it, so be it because, from the committee's point of view, the amendment is the amendment.

The Joint Chairman (Mr. Szabo): Positively flexible.

Mr. Lee: This particular official manages to transmit in her correspondence a certain amount of attitude. I look forward to what evolves.

Senator De Bané: Mr. Chair, when the lawyer says that in any event, the department will introduce a bill — that was said in a letter about a year ago, I think on April 26, 2006 — will they introduce that bill so the matter is closed? Will it be handled through a special bill instead of by Order-in-Council?

Mr. Bernhardt: The bill would expressly give them authority to make the regulations. That authority will not retroactively validate an illegal regulation, so the next step to complete the circle would be to simply revoke the old regulation and instantly remake it under the new legislation. Then they have a valid regulation because the act has given them the power.

We will certainly ask when they plan to do that, some time now having passed.

The Joint Chairman (Mr. Szabo): Thank you, Mr. Lee, for your input. I think we will reflect some of those sentiments in the response. Is it agreed that we respond in that fashion?

Hon. Members: Agreed.

Mr. Bernhardt: In the interest of wrapping things up, Mr. Chairman, I propose dealing with the next three categories as groups, which is the usual practice of the committee.

SOR/2000-211 — CANADIAN NUCLEAR SAFETY COMMISSION RULES OF PROCEDURES

(For text of documents, see Appendix O, p. 10O:1 )

SOR/2001-227 — MARIHUANA MEDICAL ACCESS REGULATIONS

SOR/2005-177 — REGULATIONS AMENDING THE MARIHUANA MEDICAL ACCESS REGULATIONS

(For text of documents, see Appendix P, p. 10P:1 )

SOR/2004-89 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (FUEL SYSTEM INTEGRITY AND ELECTROLYTE SPILLAGE AND ELECTRICAL SHOCK PROTECTION)

(For text of documents, see Appendix Q, p. 10Q:1 )

SOR/2004-255 — REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix R, p. 10R:1 )

SOR/2005-132 — CHILDREN'S JEWELLERY REGULATIONS

(For text of documents, see Appendix S, p. 10S:1 )

Under Action Promised this morning, a total of 34 amendments have been promised to the committee. Those will be followed up by counsel.

SOR/2006-272 — REGULATIONS AMENDING THE CANADA SMALL BUSINESS FINANCING (ESTABLISHMENT AND OPERATION OF CAPITAL LEASING PILOT PROJECT) REGULATIONS

(For text of documents, see Appendix T, p. 10T:1 )

SOR/2006-285 — REGULATIONS AMENDING THE ENHANCED SURVIVOR ANNUITY REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix U, p. 10U:1 )

SOR/2006-286 — REGULATIONS AMENDING THE OPTIONAL SURVIVOR ANNUITY REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix V, p. 10V:1 )

SOR/2006-291 — REGULATIONS AMENDING THE SHIP STATION (RADIO) TECHNICAL REGULATIONS, 1999 (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix W, p. 10W:1 )

SOR/2006-325 — REGULATIONS AMENDING THE CROWN CORPORATION PAYMENTS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix X, p. 10X:1 )

Under Action Taken, a total of 26 amendments promised to the committee have been made.

SOR/2006-1 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS — SECTION 3300

SOR/2006-2 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (SMALLPOX VACCINE)

SOR/2006-4 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER

SOR/2006-5 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2006-7 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (PREMIÈRE NATION DUNCAN'S FIRST NATION)

SOR/2006-8 — REGULATIONS AMENDING THE SPECIALTY SERVICES REGULATIONS, 1990

SOR/2006-9 — REGULATIONS AMENDING THE RADIO REGULATIONS, 1986

SOR/2006-10 — REGULATIONS AMENDING THE PAY TELEVISION REGULATIONS, 1990

SOR/2006-12 — ORDER 2005-66-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2006-13 — ORDER 2005-87-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2006-14 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (KAWACATOOSE)

SOR/2006-17 — ORDER AMENDING PART 1 OF THE SCHEDULE TO THE ACT

SOR/2006-18 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWENTY-FIVE CENT CIRCULATION COIN

SOR/2006-19 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWO DOLLAR CIRCULATION COIN

SOR/2006-20 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF VARIOUS CIRCULATION COINS

SOR/2006-21 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2006-22 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2006-23 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER

SOR/2006-24 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2006-25 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2006-26 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-27 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-28 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2006-29 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2006-30 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-31 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-32 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-33 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2006-34 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2006-35 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-36 — TRANSFER OF THE CROWN CORPORATION SECRETARIAT REGULATIONS (ROYAL CANADIAN MINT AND CANADA POST CORPORATION)

SOR/2006-37 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-38 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-39 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-40 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-1

SOR/2006-41 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-2

SOR/2006-42 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-44 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-3

SOR/2006-45 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2006-46 — ORDER 2005-87-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2006-48 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-49 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-4

SOR/2006-51 — REGULATIONS AMENDING THE BREWERY REGULATIONS

SOR/2006-52 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS

SOR/2006-53 — ORDER REPEALING THE GRAIN CORN COUNTERVAILING DUTY REMISSION ORDER (NUMBER 2)

SOR/2006-54 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2006-55 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2006-56 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF MOST-FAVOURED-NATION TARIFF TO EAST TIMOR)

SOR/2006-57 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF GENERAL PREFERENTIAL TARIFF TO EAST TIMOR)

SOR/2006-58 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF LEAST DEVELOPED COUNTRY TARIFF TO EAST TIMOR)

SOR/2006-59 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS

SOR/2006-61— SPECIAL APPOINTMENT REGULATIONS, NO. 2006-5

SOR/2006-62 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2006-63 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2006-64 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-6

SOR/2006-65 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-7

SOR/2006-66 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-8

SOR/2006-67— SPECIAL APPOINTMENT REGULATIONS, NO. 2006-9

SOR/2006-68 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-69 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-70 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2006-71 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2006-72 — ORDER 2006-87-02-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2006-76 — REGULATIONS AMENDING THE ELECTRICITY AND GAS INSPECTION REGULATIONS

SOR/2006-79 — ORDER AMENDING THE AGENCE DE LA FRANCOPHONIE AND THE INSTITUT DE L'ENERGIE ET DE L'ENVIRONNEMENT DE LA FRANCOPHONIE PRIVILEGES AND IMMUNITIES ORDER (MISCELLANEOUS PROGRAM)

SOR/2006-80 — ORDER AMENDING THE SCHEDULE TO THE CANADA EVIDENCE ACT

SOR/2006-81 — ORDER AMENDING THE SCHEDULE TO THE SECURITY OF INFORMATION ACT

SOR/2006-82 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-10

SOR/2006-83 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-11

SOR/2006-84 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2006-2

SOR/2006-88 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-12

SOR/2006-89 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (SECTION 303 FEE)

SOR/2006-90 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (EXTENSION OF GENERAL PREFERENTIAL TARIFF TO THE SULTANATE OF OMAN)

SOR/2006-92 — BANKING INDUSTRY COMMISSION-PAID SALESPEOPLE HOURS OF WORK REGULATIONS

SOR/2006-97 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-98 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2006-99 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT

SOR/2006-100 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2006-101 — ORDER AMENDING SCHEDULE I.1 TO THE ACT

SOR/2006-105 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

SOR/2006-106 — SPECIAL APPOINTMENT REGULATIONS, NO. 2006-13

SOR/2006-109 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2006-110 — REGULATIONS AMENDING THE TELEVISION BROADCASTING REGULATIONS, 1987

SOR/2006-111 — REGULATIONS AMENDING THE TELEVISION BROADCASTING REGULATIONS, 1987

SOR/2006-112 — REGULATIONS AMENDING THE PAY TELEVISION REGULATIONS, 1990

SOR/2006-113 — REGULATIONS AMENDING THE SPECIALTY SERVICES REGULATIONS, 1990

SOR/2006-115 — ORDER EXTENDING THE TIME FOR THE ASSESSMENT OF THE STATUS OF WILDLIFE SPECIES

SOR/2006-116 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2006-118 — REGULATIONS AMENDING THE FISHING AND RECREATIONAL HARBOURS REGULATIONS

SOR/2006-125 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

Finally, under Statutory Instruments Without Comment, there are 90 instruments listed that have been reviewed and found to be unobjectionable.

The Joint Chairman (Mr. Szabo): Are there any comments? Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): I would like to deal with one last thing. The disallowance on the Fisheries Act was before the House. As you know, the minister put forward a motion to say that the report from the committee with regard to the disallowance not be adopted and that the matter be referred back to us. There is, I think, the understanding that the minister has tabled a bill, Bill C-45, and the representation that this bill addresses the concerns of the regulation and its operation.

I gather that they are already running into trouble on Bill C-45, there are amendments and passing this legislation will be a fairly protracted process. I have given Ms. Guay, Mr. Dewar, Mr. Epp and Senator Eyton copies of Bill C-52 from the last Parliament. This one-clause bill would resolve the whole disallowance situation in the current legislation.

The reason I gave it to representatives of each party is that I want you to go back to your party leadership to see whether there is an appetite to pass, at all stages, a bill — whether it be a government bill or even a private member's bill that would be tabled. On tabling, the chair will say, ``When shall the bill be read the second time?'' We could do it that way. There are instruments to do it.

I raise it for consideration. We could throw it out to see if the parties would agree to unanimous consent to pass this bill, tidy up and close that file on our behalf.

Can you take that back to your parties and report at our next meeting on March 22?

[Translation]

Mr. Asselin: I don't know if it was the interpretation, but I heard you mention the bill tabled by the Minister of Fisheries, and you referred to Bill C-35, but it is Bill C-45.

[English]

The Joint Chairman (Mr. Szabo): No, it is 45, absolutely. I am sorry if I said 35.

This is something we have spent years on. The sooner we can close the file, the better. In any event, would members please consider it.

Mr. Epp: I have one quick question with respect to this file. If it says that for the purposes of these permissions, et cetera, these are not statutory instruments, does that mean that any fines levied are not collectible?

Mr. Bernhardt: No, the Department of Justice gets itself into that problem because of its magic words — as we call it on the committee — its interpretation of the definition of statutory instruments in the Statutory Instruments Act. On their interpretation, one could argue that a lease and a licence is a statutory instrument. Because there is a penalty for it, it becomes also a regulation under the act, which means it must be registered and published.

The committee has never advanced that interpretation, but it is the result of the way they view it. Then they would be in a situation of having to register every lease and fishing regulation issued in Canada and publish them in the Canada Gazette. That is clearly something they wish to avoid, and that is the reason for putting that in there. From the committee's perspective, it does not really do anything.

Mr. Epp: My ancillary question is, having studied the act — Bill C-45 — that the government has put forward — does that do the same thing?

Mr. Bernhardt: I believe a provision is stuck in there somewhere that says for greater certainty, leases and licences and so on are not statutory instruments.

Mr. Epp: This measure would be a stop-gap one, pending the ultimate conclusion.

Mr. Bernhardt: Yes, it does not preclude anything in Bill C-45. In fact, there is a similar provision in Bill C-45.

The Joint Chairman (Mr. Szabo): This is an amendment to the existing act.

Mr. Epp: Why was this bill not passed last year?

The Joint Chairman (Mr. Szabo): It died on the Order Paper.

Mr. Bernhardt: There was objection from certain members in certain parties that this bill was a part solution, and that they wished to see the whole issue addressed in the broader scope of a general review of the Fisheries Act. They did not want a piecemeal situation.

The Joint Chairman (Senator Eyton): If we do not do this, can you give us a scenario? What are we looking at?

Mr. Bernhardt: If there is no willingness to reintroduce something like Bill C-52, the committee then is in a position of monitoring the progress of Bill C-45 until the end of this session. The issue then comes back before the next committee; and I expect the next committee will write to whoever the minister is, asking if he plans to address the issue with a new Fisheries Act, a new Bill C-52 or something in the new Parliament. Those are the two options at this point.

The Joint Chairman (Mr. Szabo): It really is up to the current or future government to pass a new bill. However, the bill is of high interest to all parties, and there are some contentious areas. It will be probably a long process to enact that bill properly.

In the interim, though, we know we have licence terms and conditions that are not enforceable before the courts — that is the bottom line — and this will make them legal. In any event, we could offer this solution, and maybe we could broker an agreement.

Our next meeting is Thursday, March 22. Thank you, and have a safe break for all colleagues and staff as well.

The committee adjourned.

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