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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 8 - Evidence of February 1, 2007
OTTAWA, Thursday, February 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.
The Joint Chairman (Mr. Szabo): Good morning, ladies and gentlemen. Welcome to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations. This morning we have a full agenda so we should begin right away unless members have any urgent matters to raise first. Hearing none, we will proceed with the first special agenda item, which has been before the committee since 1998.
SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989
(For text of document, see Appendix A, p. 8A:1)
Peter Bernhardt, General Counsel to the Committee: Mr. Chairman, subsequent to the preparation and distribution of the materials for today's meeting, a letter was received concerning this item from the Minister of Fisheries and Oceans. That letter was circulated to members' offices last week but we have extra copies here today if they are needed.
At its last meeting in 2006, the committee instructed counsel to prepare a draft report recommending the disallowance of section 36(2) of the Ontario Fishery Regulations 1989. As members are all too aware, the effect of this provision is to make it an offence to contravene the terms and conditions of a licence. The draft report is before members this morning. In the meantime, Bill C-45, the proposed new fisheries act, has been introduced. The new regime contemplated by the bill would resolve the committee's concern in the sense that provisions such as section 36(2) would become unnecessary because a general provision to the same effect would be in the act.
The question is whether the committee is content to wait in the hope that Bill C-45 will be passed in the current Parliament, or whether it wishes to proceed with the disallowance report.
The Joint Chairman (Mr. Szabo): Are there comments, questions or recommendations?
The Joint Chairman (Senator Eyton): I have a question for counsel. Mr. Bernhardt, you gave us the long history of the regulation, beginning before this committee in 1998. I assume that we have been in this same position before that we are in today. I want to hear that history and what has transpired over the years.
Mr. Bernhardt: Somewhere in the report, there is reference to some of that history. If one counts an earlier report that dealt, in part, with the same provision in the Aboriginal Communal Fishing Licences, this report would count as the third one tabled by the committee in dealing with this issue. On the other side of the fence, I believe there have been five previous attempts to resolve this issue by legislation. At least two, if not three, short bills have been introduced to deal specifically with the issue. None of those bills progressed past first reading. As well, a complete rewrite of the Fisheries Act was introduced, I believe, in the Parliament before the last one. Again, the item died on the Order Paper.
In a sense, the pattern followed by the committee for the last several years is to pursue the issue and bring it to report stage, which is followed by the introduction of legislation. Then, the session of Parliament ends or Parliament dissolves with the call of an election, and the item dies on the Order Paper. The next year, the committee finds itself in the same position, taking another lap around the same track, as it were. The committee finds itself in this position today.
Mr. Kamp: We all realize that the tradition of this committee is not simply to disallow regulations when a concrete action is being taken. Otherwise, every agenda item under ``Reply Unsatisfactory'' would lead to consideration of a disallowance motion. In this case, the minister is doing what he said he would do by introducing a comprehensive bill to solve the problems. It appears to me that general counsel has made two points about the Ontario Fishery Regulations: one, that there is not the enabling authority for this regulation and, two, that the regulation, as it is administered, puts bureaucrats in a position whereby they have too much power. Although a small piece of proposed legislation like Bill C-52 was introduced and considered in 2005, it failed for the main reason that it solved only a legal problem and not that other problem. Bill C-45 will resolve both problems.
In my opinion, this committee is trying to speculate on whether this bill will pass. Frankly, I am not sure that the role of this committee is to engage in such speculation. A bona fide piece of legislation will be debated soon. The government has every expectation that it will pass in this Parliament, and that is the direction we are taking.
Senator Nolin: For everyone's benefit, it might be a good idea to have a clear understanding of the disallowance process. As someone who is familiar with procedure, this is not the first time that the department has used this to achieve its objectives and to keep in place for as long as possible a provision which we feel is illegal, quote, unquote. Ultimately, the decision rests with both houses.
I invite counsel to correct me if I am mistaken. We need to alert our colleagues in both houses that there is a long- standing problem. It will be left to both houses to decide if our assumption is valid. Simply put, this is a pressure tactic that we need to adopt if we want to achieve the results that we have long been seeking.
A number of our predecessors on this committee examined the same provision. They often tackled the following question: Is the minister acting in good faith? Yes, the ministers are acting in good faith. Are the department's senior bureaucrats acting in good faith? I doubt that they are, sirs.
I have a great deal of respect for the current minister, but I think we need to use every means available to us to get the two houses to think about the advisability of forcing the department's hand. The minister enjoys full latitude to intervene in the disallowance process. The pros and cons need to be weighed later.
However, for now, I think we have a duty to move the process forward and bring this matter to the attention of our colleagues in both chambers. This is not the first time that we have discussed this matter, and this is not the only issue pending with this department.
Instead of allowing the situation to drag on, we need to use every means available to us to convey to the department our desire to see a change in attitude on its part.
Mr. Dewar: I appreciate Mr.Kamp's intervention and the idea that we have something in front of us with the new bill that the minister said was coming forward and that has taken place. Notwithstanding that, it is a matter of sequencing here. What is our role?
If the legislation is not passed, we still have to deal with this item in front of us. Notwithstanding that bill is on the horizon — and we all hope that it passes and it will be a better and reinvigorated act — we should do due diligence and follow along with what is in front of us, which is faulty. Correct me if I am wrong, counsel, but we can still pursue this path. If the act comes forward and passes, fine; but in the interim, we still have this problem to deal with.
In 1989, I was in Winnipeg studying political science. If I had known things happened this way, I would have done a paper on it. It makes sense to follow the track. I do not think we are making mischief, and it does not undermine the minister. In fact, I read the subtext of the minister's comments to be that we need all the help we can get. I want to see us still pursue the disallowance. If the overview of the act goes on the fast track, terrific: this committee item will be set aside.
Ms. Guay: I have been a member of this committee for approximately twelve years and the same problem always seems to crop up. I would like counsel to tell us what approach we should take to move these matters forward. This file has been pending for some time and discussions have dragged on for a long time.
What is the fastest way to appeal to both Houses and to get the department to respond?
Senator Bryden: First, I want to make sure I am clear on what the proposed bill will do. Our problem has been that without proper authority, there was a regulation that allowed the charging and incarceration of someone. It is ultra vires.
If I read this correctly, under the proposed bill, that violation is not punishable by imprisonment, but only by fines. Does that mean that there will not be a regulation that says if someone does not do this, however, we will put them in jail?
The Joint Chairman (Mr. Szabo): I have a comment on that but I will let counsel make it.
Mr. Bernhardt: From my fairly brief reading of the bill, as I understand it, a provision in the act will require everyone to comply with the terms and conditions of the licence. Then the sanctions for non-compliance will be restricted to monetary penalties, that is, a fine; there will be no more imprisonment.
Also, on top of that, a new tribunal will be created, which will deal with appeals from charges — from these fines. If someone has a problem with the conditions that are put into their licence, they can appeal that issue to this tribunal. In a sense, I guess the effort is to move the issue out of that quasi-criminal area and make it more of an issue of an administrative tribunal, administrative process and procedure.
Senator Bryden: Do you know whether the section of the bill that says ``violation of this section'' — I am making it up as I go along — will be sanctioned by fines but will not be punishable by imprisonment?
Mr. Bernhardt: I believe that the offence provision simply states that anyone who contravenes a term or condition of a licence is liable on conviction to a fine of whatever amount. There is no mention of imprisonment and thus there would be no possibility.
Senator Bryden: If they do not pay the fine, then what?
The Joint Chairman (Mr. Szabo): Senator, with your question about whether the regulations might specify some exception, all of a sudden you are splitting a provision of the bill. The enabling provision must be whole or silent, and say the penalty is in accordance with the regulations, at which time it leaves it up to the discretion of Order-in-Council. However, it is a good point. We are now dealing with a piece of legislation that has a different view of the regime that they want to follow in terms of sanctions.
Senator Bryden: We have been at this for 20 years, so another few minutes will not hurt. I am suspicious of the bureaucracy's ability to say the offence is punishable by fine, but not telling us that they are relying on another provision of the law that says if you do not pay your fines to the courts, you go to prison. That is one concern.
The other issue I wanted to raise is that the last time a disallowance report was passed by this committee, it went to both Houses.
This item was disallowed in the Senate but in the House of Commons there was some interesting political manoeuvring and a compromise was reached. The House of Commons decided it would send the entire matter back to the joint committee; hence, it is before us today. I would be surprised if we are able to pass a major bill, which has taken so long to come this far, before the risk of an interruption in this Parliament occurs.
To at least buttress the minister's position in trying to action this matter, perhaps the committee would follow its usual procedure and possibly communicate privately to the minister that the regulations and this committee have travelled this road before.
Mr. Lee: I thank Mr. Dewar for mentioning 1989, which was the year I first came to this committee. The mandate of this committee on behalf of Parliament is to crystallize and define the limits of legal action by the government — by the executive. Throughout this file, while there have been a number of issues, the principal one has been whether the state, by regulation, could criminalize the conduct of the subject. Our position on that is, absolutely not, which is consistent with the Constitution, the common law and the whole tradition of this place. The committee has been firm on this position in my 17 years here.
With a sidebar reference to the court decision on the Broadcasting Licence Fee Regulations, we have never been wrong, so I think we are batting 1,000. In every case there was a confrontation on issues like this one and I see no flaws in our reasoning, logic and argument on this issue.
I ask counsel to respond to the following: It appears that Bill C-45 introduced in the House of Commons contains a statutory fix. In most cases when government introduces a bill containing a statutory fix to a grievance of an illegality pointed out by this committee, it is the usual practice of the committee to then stand down on the issue and allow it to go ahead. Therefore, I wonder why we would depart from that stance in this case and not do our best to have this bill passed. The great fear is that if we stand down, the bill will languish in this minority Parliament. There are many other issues in the Fisheries Act that could hang this bill up and prevent its passage. Therefore, on a major point of legal principle, we would have stood down and allowed more time to pass.
On balance, my view is that we should proceed with a disallowance but be prepared to receive any submissions that might come in from provincial enforcement officers, who have told us in the past that if we disallow, in their opinion there will be a legal enforcement vacuum in the real world. In some contexts, that alleged zone of lawlessness could create problems for our police and enforcement officials. Depending on what might come forward, should the committee decide to proceed, on balance this issue is an important point of principle. As parliamentarians we do not need to apologize to anyone for proceeding with this. I favour proceeding with a disallowance report.
The Joint Chairman (Mr. Szabo): Perhaps counsel would comment on the sense around the table. The committee has some responsibilities. The way to remediate the problem was to include an enabling provision in the bill, and that can be done. Although another bill has been tabled, it can still include a simple enabling provision to amend the existing act. Given the history and all the detail, this bill is a focused piece of legislation and will likely receive the cooperation of both Houses to address it speedily simply because of the timeline involved. To rely on the new act might raise other issues that will raise a much more comprehensive focus on the issue than simply the absence of an enabling provision in the existing act. There will be other changes, and interest will be created because that bill has been a long time in coming. The disallowance might accelerate a resolution, either by a quick amendment for an enabling provision to the existing act or by aggressive support by the government of its bill through all stages of both Houses if it is not happy with such an enabling provision. Perhaps the committee could have certitude that, one way or another, the committee will address the problem that has been before it for such a long time. Counsel, if the committee proceeded with the disallowance, would that present a problem in terms of precedent of practice not to proceed if a relevant bill or remediation was on the table. Is there a foreseeable flaw or would the committee add to the problem? Can the committee introduce an opportunity for the problem to be resolved? It is a question of strategy and, as a new consideration, given the timeline, the implications and other jurisdictions, whether it is necessary for this committee to discharge its responsibility without bias and to do simply what it should do.
The Joint Chairman (Senator Eyton): As a supplement to that, what are the options? The committee will present the disallowance report, which goes to both the Senate and the House of Commons. Disallowance takes effect unless the minister introduces a motion within 15 days. Until the moment that the motion is debated in both chambers, the committee can revoke or change its course of action? What are the committee's options for action during those 15 days?
Mr. Bernhardt: If a disallowance report were tabled in the Houses and, for whatever reason, a decision were made that the report should not proceed, the ideal solution, when the report comes up for debate, would be simply to move that the report be referred back to the committee. That would take it off the table in both Houses and send it back to this committee without the need for the Houses to take a view on the actual merits of the report one way or another. That happened last time. For example, the government introduced a bill to resolve the situation. The House of Commons made the decision that the report should be referred back to the committee, thereby taking it off the table.
As Senator Bryden said, taking note of that, the Senate decided that it would let the disallowance go through. It must be disallowed in both Houses. As far as strategy, precedents and such, this situation would be fairly unique. The committee has not had many disallowances, eight or nine, I think. There has never been a case where a bill dealing with the issue has also been in the House. This situation is unique given the nature of the legislation we are dealing with, as well as the history of the file.
As the chairman alluded to, it is a question of strategy. This item is very much a decision that parliamentarians are in a position to evaluate and judge. It is difficult for counsel to express a view because we are not dealing with a legal issue or the merits of an issue.
The question is, given the fact that a bill is before the House, does the committee still feel something is to be gained, and there is a responsibility or a duty to pursue it on the other track, by means of a disallowance?
I think parliamentarians are in the best position to evaluate and decide upon that decision.
Mr. Del Mastro: As much as anyone else, I like to see things move along. I express great sympathy for anyone who has been dealing with this item since 1989. It must be incredibly frustrating.
Mr. Lee brought up a point I would like counsel to expand on. If we were to exercise this report, would we effectively strike down that part of the act, and would that allow for challenges to the act in other cases? Could someone make the case that the House of Commons has already started striking down pieces of this act so it is clearly an outdated act? Could there be otherwise enforceable cases before the court that would be struck down because we have said that we do not have faith in this act anymore?
My fear is that there is a potential danger. Even though our intent is good, we might do something that is inherently bad for the fisheries.
Mr. Bernhardt: We are dealing with the provision of the regulations, not the act itself. We refer to it as a disallowance report, but, of course, it is not the committee here that disallows. The committee would table a report recommending disallowance, which starts the clock running in the Houses.
After 15 days, if nothing is done in the House, the House is deemed to have ordered that the provision be revoked; the report is adopted. Within those 15 days, the minister has the opportunity to request a debate and a vote on that report. Depending on the outcome of the vote, the report stands or falls and the disallowance proceeds or does not. Both Houses must approve the disallowance.
Mr. Lee: I offer this observation only in the hope it might be helpful. It is not like we are dealing with an execution at midnight here.
Can we canvass whether or not this bill has legs? Can we canvass whether or not there is any material opposition in any of the caucuses? I have a sense there could be, because it is the Fisheries Act, folks.
Can anyone here answer the question, when is the bill coming forward for second reading debate? If the government proceeded in good faith to move quickly with the bill, it would be put on the Order Paper for debate. If I saw that happening, I would not be so aggressive in supporting a disallowance; but I do not see that movement happening now and we are in a minority Parliament.
Perhaps we can defer this for one more meeting to obtain the answers to those questions. If we do not receive the appropriate answers, we can take up a resolution.
The Joint Chairman (Mr. Szabo): This answer is not a yes or no, and we have no recourse following that decision being taken. We will have a couple of weeks. The committee will have pushed this issue to a head. We will receive some representations. The minister will have some tools to work with.
I think all members would be a little disappointed if we said, let us just hope, only to find that the legislative process is interrupted for an election and the committee that comes in with the Fortieth Parliament receives the file again that started in 1989.
I believe that if this issue is important enough, a quick bill to deal with an enabling provision in the existing act would receive the full support and accelerated treatment in both Houses, which will at least patch a hole for us. If members and senators can work with it, that is great. If it is cumbersome still, both chambers will have the inducement to deal with the new act expeditiously.
We may add a little bit of facility to both chambers to bring this matter to a conclusion. The stakeholders outside of Parliament have a right to a resolution of this issue, because it has been going on for so long.
We can make no fatal move here. This is serious time to talk about our strategy, and I would be comfortable talking about it now. I think we have heard the opinions, unless someone wants to add something.
Mr. Del Mastro: I support the disallowance report provided we have some consensus in the room that if the bill is placed on the Order Paper, we agree to the disallowance report being referred back to committee. That way, there is good faith on the government side to introduce the new fisheries act in an expeditious manner. Then we can withdraw the disallowance report or at least refer it back to committee. That approach would be acting in good faith on the committee side as well, and would also do what we are seeking to do, which is put some urgency to the matter.
The Joint Chairman (Mr. Szabo): I cannot speak on behalf of both Houses and all parties, but I think we all want to do the right thing and make the assessment at the appropriate time. I suspect that simply bringing in the bill for debate at second reading is nice, but that is a long way from the end of it.
Mr. Kamp: A clarification, Mr. Chairman: Once you proceed with this disallowance, it is not within the power of this committee to take it off the table in the House of Commons or the Senate. It will go through that process. We can recommend all we like that now it looks like progress is being made, we wish we had not proceeded with the disallowance; we would support a motion to send it back to us. However, that is not the chairman's call or the call of this committee at that point. I do not see the sense of this approach.
The last time we went through this process with Bill C-52, it was an acceptable solution. It sounds like the chairman is saying a Bill C-52-like bill, a small bill that provides enabling powers for that regulation, would be a solution to this problem; but it does not solve the other half of the problem that Mr. Bernhardt has ably outlined for us in his document. We will go around the same thing.
Last time it was brought to the House, the government of the day said we have a small bill in the works, Bill C-52. On the basis of that information, the motion to revoke was not passed; instead, it was referred back here again.
The House now will have a bill before it that solves both problems. The likelihood is the motion will be sent back here again. I am curious why we do not follow the normal procedure of this committee to give it more time. To answer Mr. Lee's question, our intention is to start this debate at second reading by mid-February, at least within February. Why do we not wait to see how that debate looks before taking this measure?
The Joint Chairman (Mr. Szabo): We will need to engage the minister, officials and political parties to determine whether they have a debate on the disallowance recommendation as per the report from the committee. This issue now becomes a matter for Parliament to decide, ultimately. Are there viable options? Mr. Kamp, you might be correct in suggesting an enabling provision as a band-aid solution but Parliament has that call. I suspect that both Houses will have an opportunity to debate the report that recommends disallowance and they will be briefed on all the necessary information and options. As well, the government will provide both Houses with a timeline on Bill C-45.
We do not have that information so we can only speculate. However, from our standpoint, this approach moves the issue forward to the point that before the committee tables its report in the House over two or three weeks, the minister will have an opportunity to work out his strategy.
If necessary, the committee can discuss this issue at its next meeting, and can try to obtain some assurances. The minister has appeared before the committee on the issue and the final decision will not be taken today. Rather, the point is to indicate some remediation must be taken, and members have a problem with speculating whether a bill tabled in the House will pass the current minority Parliament.
Mr. Lee: The committee has not given formal notice of its intent to move disallowance, which provides a 30-day notice period. Can we not decide today to give notice? That notice period will run through February into March. This new procedural tool now available to the committee since the disallowance procedure was put into statutory form has not been used often for that purpose.
It has come to my attention that the committee has given formal notice. I withdraw my comment.
The Joint Chairman (Mr. Szabo): Counsel points out that in December 2006 this matter was followed up again because the notice did not prompt remediation.
The proper motion would be to report to both Houses, to adopt the fourth report of the committee. Senator Nolin, seconded by Mr. Dewar, moves the motion.
All those in favour, please raise a hand.
Opposed, please raise a hand.
Carried, on division.
SOR/97-144 — BROADCASTING LICENCE FEE REGULATIONS, 1997
(For text of document, see Appendix B, p. 8B:1)
Mr. Bernhardt: Mr. Chairman, this file is another old friend. It is before the committee this morning simply for the information of members. Members will recall that the issue was whether the Part II licence fees constitute a tax rather than a fee. Members will also recall that a challenge to the fees was launched in Federal Court by the Canadian Association of Broadcasters. The Federal Court rendered its judgment on December 14, 2006, which held that the Part II fees constitute an illegal tax. The court ruled that those who had paid the taxes were not entitled to a refund, and an appeal has been filed on that ruling.
It is also worth noting that in his decision the judge quoted, in considerable detail, from a paper prepared by the joint committee in 1989 that was presented by Mr. Wappel at the Third Commonwealth Conference on Delegated Legislation in London. The judge described the paper, and I paraphrase, as containing comments made by those parliamentary members experienced and charged with reviewing delegated legislation, and reflect legitimate expectations of those within Parliament as to the meaning and use of the word ``fee'' in legislation.
Mr. Lee: Has the government accepted that the broadcasting licence fees are a tax and, therefore, illegal, and has the government stopped charging the fees?
Mr. Bernhardt: The government has not appealed the decision but the broadcasters have appealed the decision to contest whether they are entitled to a refund of money paid as such a fee. Broadcasters will not pay any more fees but they want the money paid from past years to be refunded.
Mr. Lee: We won.
Mr. Bernhardt: Yes.
The Joint Chairman (Mr. Szabo): The committee will continue to monitor this matter.
Mr. Lee: May I assume that there is absolutely no need for the committee to disallow because the courts have done it?
Mr. Bernhardt: Precisely: It is particularly gratifying in this case that several pages were quoted verbatim from materials prepared by this committee.
The Joint Chairman (Mr. Szabo): On this matter I have a question. From the perspective of the committee, it looks as if this decision brings the matter to a close, other than the interest in the outcome of the appeal by the broadcasters for recoveries. Should this item be reported to the House?
Mr. Bernhardt: The committee has reported previously on the issue and updated the Houses last fall to inform them of the litigation and of its continued monitoring of the situation. Perhaps the only purpose in providing yet another report would be for the committee to give itself a little pat on the back, and there is certainly nothing wrong with that.
The Joint Chairman (Mr. Szabo): I recommend that when a file with a bit of a twist has some history and some protracted activity, and becomes almost a story unto itself, the committee provide to any interested parties a referral to a report on the issue of what transpired and how the matter was disposed of. In that way, interested parties can avoid having to dig through the files to look at the relevant correspondence or the minutes of these meetings to piece the information together.
If members are amenable, the committee can simply report that this matter has been discharged in respect of the responsibilities of the committee for the following reasons, et cetera, including a bit of background material.
The Joint Chairman (Senator Eyton): It is not merely a matter of patting the committee on the back but rather that this whole area of broadcasting fees and licences, as we all know, is a hot one currently. There is some discussion about the television production fund and the cablecasters not paying, so that whole area is one of great discussion.
Mr. Bernhardt: I did not intend to be flippant, because we are dealing with approximately $100 million yearly in this regard.
The Joint Chairman (Mr. Szabo): Do members want to see a draft of the report proposed to be tabled in both Houses or is there an indication that the committee simply proceed and table the report right away? Comments indicate the committee is in favour of seeing a draft at the next meeting.
Senator Nolin: We will see the draft or give the steering committee that authority?
The Joint Chairman (Mr. Szabo): It is my understanding that the members want to see the draft.
Senator Nolin: This kind of report would have some educational value in that it would give our colleagues and the media an opportunity to read about the work that the committee is doing.
The Joint Chairman (Mr. Szabo): We have a motion from Mr. Lee to prepare a draft report for both Houses with regard to SOR/97-144 for consideration, to be tabled at both Houses. Is it agreed?
Hon. Members: Agreed.
Senator Bryden: Before we leave this item, an interesting thing has happened. As I understand it, there is a loophole in the Income Tax Act. The courts can determine that a tax should not continue to be imposed, but those who have paid the tax cannot get the money back. That is the law, as I understand it.
A case was decided recently in New Brunswick, which I think is now being appealed, where the New Brunswick Liquor Corporation charged a 4 per cent service fee — for want of a better term. The courts found that the charge was not a fee but a tax, similar to this situation. What is more, the courts determined that the fee was to be paid back. The case involved two bars, I think. A few hundred thousand dollars must be paid back, so I wanted to pass that on.
Mr. Bernhardt: I think the Supreme Court decided on the appeal a couple of weeks ago. It affirmed that the bars are entitled to the refund and I suspect that will be the case here in the end, as well. I do not see any basis to distinguish between the two cases.
Mr. Lee: It is especially true where illegal taxes are paid under protest.
Mr. Bernhardt: My expectation is that they will get their money back.
The Joint Chairman (Mr. Szabo): I hope our report will identify the significance of some of the issues and how they may affect future legislation or regulations. That is excellent. I am pleased. Two items could come off the agenda.
Mr. Lee: If the courts consulted our work previously, they may have a mind to consult it this time. An illegal tax is an illegal tax. It comes from Parliament. Let us do the report.
SOR/2003-75 — CANADIAN EGG MARKETING LEVIES ORDER
(For text of documents, see Appendix C, p. 8C:1)
Mr. Rousseau: The Canadian Egg Marketing Levies Order sets the levies collected from egg producers involved in interprovincial or export trade. The committee observed that on two occasions, during two set periods, as mentioned in the letter, no levies were collected. When asked if levies had been collected during the periods in question, the Council initially responded that no levies had been collected during these two periods pursuant to the order.
At its meeting of June 16, 2005, the committee questioned whether levies may have been collected in some other manner than pursuant to the order. The National Farm Products Council responded that provincial boards voluntarily forwarded monies when no order was in effect. The Council stressed that in the absence of a valid order, it cannot compel payment of levies.
The question at this time is whether provincial boards, and mainly producers who ultimately are the ones who pay the levies, knew that monies were being paid voluntarily. Obviously, counsel recommends that a letter asking this question be sent to the National Farm Products Council.
Senator De Bané: So then, their explanation is that these levies were paid voluntarily? I do not get the feeling that this explanation was given by way of an excuse.
Mr. Rousseau: What remains to be determined is whether provincial boards and producers knew that they were paying these levies voluntarily. That is the question that we need to ask at this time. With respect to this file, we seem to be extracting bits of information in piecemeal fashion.
The question is this: Were provincial boards and especially producers aware that they were making voluntary payments?
Senator De Bané: The last person to use the expression ``voluntary tax'' was Mr. Drapeau in reference to the lottery. And in that case, it was more than likely true. However, I have a big problem using the expression in the case of a tax and where no possibility of a jackpot exists. I think it is a rather weak defence.
The Joint Chairman (Senator Eyton): It could have been voluntary with the arm twisted behind their back.
The Joint Chairman (Mr. Szabo): We have our recommendation from counsel to ask the National Farm Products Council, NFPC, so we can try move it forward. The request is for information.
Mr. Rousseau: The National Council has legal representation.
The Joint Chairman (Mr. Szabo): Are there any further comments? Is the motion agreed to?
Hon. Members: Agreed.
SOR/96-254 — PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS
SOR/2000-299 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1218 — ALTERNATIVE TESTS)
SOR/2000-410 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1238 — SPECIAL ACCESS)
(For text of documents, see Appendix D, p. 8D:1)
Mr. Bernhardt: As explained in the letter of June 19, the committee has concluded that human semen processed for assisted conception is not a drug within the meaning of the Food and Drugs Act, and thus cannot be regulated under that statute. The letter also contained the suggestion that these regulations be revoked and remade pursuant to the Assisted Human Reproduction Act, which now provides the clear authority to regulate the relevant matters.
The reply from the minister advises that without accepting the committee's position, serious consideration is being given to such a course of action. The minister also states, however, that a carefully managed transition period would be required, and that current protections need to remain in place during this period.
The problem is that the current protections are unlawful, at least as far as the committee is concerned. Nothing in the minister's letter attempts to counter this position. Moreover, there is no indication from the minister as to how long this transition process might take.
The minister concludes by promising a more detailed response from the department in the near future. Perhaps in the meantime, the chairman might consider writing again to the minister advising that the committee expects this more detailed reply will deal with the substance of the issue, as well as give an assurance that new regulations will be made under the Assisted Human Reproduction Act. The committee can also ask the minister to provide a time frame for this process.
There is also a subsidiary issue concerning authority for an information provision in section 7 of the regulations. This issue was not addressed in the minister's reply, and any further letter could seek a response on this as well.
Mr. Lee: The department better fix this problem. First, I know we are right and they are wrong. Their letter should have stated that the position of the committee had merit, without prejudice to the government's position. In fairness to the government, they have a regulatory regime and a whole system to uphold, and they do not want the bottom falling out of it.
First, we must have a clear acknowledgement from the department that the committee's position has merit. It can be without prejudice, if they wish, but we must have that acknowledgement. I do not ask the department to admit publicly that they are wrong.
Second, there is no time line here. When the issue is as clear as this one, we need to know they are acting forthwith to adopt an appropriate regulation under the new statute. Anything short of that response would be a real caution light for us.
I recommend we seek both those items from the minister forthwith and then proceed accordingly.
The Joint Chairman (Mr. Szabo): Seeing no more comments, I want to advise the committee that I am familiar with the Assisted Human Reproduction Act, 2004. It dealt with the two aspects, prohibited activities and controlled activities. The prohibited ones included human cloning, and purchase and sale of gametes, et cetera. The controlled activities dealt with matters to do with research, chimera and some very interesting things.
The first part, prohibited activities, were in force on Royal Assent. For the second part, controlled activities, which is extensive, 24 references required compliance with the regulations.
At the time of the committee hearings on this bill in 2004, Health Canada officials estimated that it would take approximately two years to draft the regulations. The bill states that the regulations must be referred to the House of Commons Standing Committee on Health for comment only and not for approval or disapproval so that the minister of the day is in a position to move forward and make those regulations.
Most of those regulations have not come before the Health Committee yet, although they are coming in bits and drabs. In my view, there is a problem because significant legislation dealing with embryonic stem cell research and some highly controversial issues has enabling provisions but the legislation is not supported by any regulations. In the meantime, the Canadian Institutes of Health Research, the principal funding agency for health research activities in Canada, operates under its own rules and guidelines in the absence of the coming into force of the controlled activity section of the bill. That means, notwithstanding the will of Parliament and all other good things, we might never see some of these regulations and the controlled activities part of the legislation come into force. That situation would permit the Canadian Institutes of Health Research to use its own good guidelines, which it does from time to time.
I am concerned because the matter has moved beyond the control of Parliament. Both Houses dealt with this piece of legislation in the absence of regulations. We knew it would take some time to consult with stakeholders on matters of import or export of human reproductive materials: semen and ova, the importation — and even the issue of payment for donations — of semen from college students, et cetera.
I raise that issue before the committee as background information. I was more than surprised when I read the minister's response because it seemed to set up a series of barriers such that this matter will be before the committee for a long time. Standing back as chair for a moment, I strongly recommend that the committee take a clear, firm line of communication that members do not want to start down the path that will lead us to years of open files. As well, bear in mind that this item is only one regulatory aspect of at least 20 to 24 that I recall.
On this issue for a bill that received Royal Assent more than one year ago, we should advise the minister that the committee is aware and has some knowledge of the bill's history and the various provisions, and the committee looks forward to having these matters dealt with on a more fulsome basis and in a comprehensive way when the committee raises issues or questions.
This is not the time to play games and the importance of the matter should be communicated to the minister, and that the committee expects to have these matters resolved as expeditiously as possible, thereby throwing the ball into the minister's court with regard to a time line. The committee needs to know the time line because it will give members an idea of the amount of good faith to be seen. I am sure the barriers are not from the minister but rather the officials, because they have some idea of these matters.
Is there further discussion on the matter?
The Joint Chairman (Senator Eyton): Mr. Lee had two points: first, acknowledgement that they were wrong and, second, that the matter is urgent.
The Joint Chairman (Mr. Szabo): The committee will communicate to the minister to ensure that we all understand each other and we hope to receive constructive communications on a timely basis.
Is it 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 E, p. 8E:1)
Mr. Bernhardt: The joint chairmen's letter of October 31, 2006, sought the cooperation of the Minister of Industry in ensuring that amendments to the Book Importation Regulations, promised more than six years ago, would be made without further delay. In addition, 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 issues relating to those regulations would be forthcoming. The minister was advised that the committee wished to bring back these files at its first meeting in 2007, and that the committee hoped a reply would be received by then. To date, no reply has been received. Informal inquiries were made last week when the materials were being prepared for the meeting. The indication was that a letter had been drafted and was on the minister's desk. As instructed, the file is back before the committee.
The Joint Chairman (Mr. Szabo): Are there questions or comments?
Mr. Lee: I want to hear from a government member.
The Joint Chairman (Mr. Szabo): Seeing none forthcoming, does counsel have a recommendation?
Mr. Bernhardt: The committee can advise the minister that if a reply is not forthcoming at the next meeting, it would be helpful if someone could provide it in person. I do not have a suggestion beyond that.
Mr. Del Mastro: The committee meets again in two weeks, I believe. I recommend that the committee send notice to the minister that this file cannot be dealt with because the minister has not yet responded, and that the committee looks forward to seeing his reply at its next meeting in two weeks.
The Joint Chairman (Mr. Szabo): It is recommended that the committee communicate with the minister with a view to receiving a response for consideration at its next meeting. That is clear enough for now. Is there further discussion?
Mr. Cannan: I agree with the direction. Mr. Lee wants to hear from government, which leads me to ask why it has taken so long to obtain a response from the minister, given that this item was brought forward in 2000?
The Joint Chairman (Mr. Szabo): That is a good question. The committee sent its letter in October 2006 and there has been no response. That is unacceptable. Perhaps a harder line should be taken by sending to the minister a copy of the letter previously sent by the joint chairs, along with the message that the committee now discharges itself of the matter. The message could say that the committee has done its job and passed the matter on to the minister, who has been unable to respond within a reasonable period of time, and it would be appreciated if the minister would advise the committee of that fact and the reasons, to allow committee members to consider other options.
One way or another, we need responses. Possibly our letters ought to indicate that we expect an acknowledgement — or full response or explanation why there is no full response — in time for our next meeting to have some indication that there is not a black hole out there that the item seems to have fallen through.
The committee did its work. There is a fulsome letter. We all signed it, and Mr. Dewar gave us the O.K. as well. When we do our work, we expect others to show courtesy and good faith, and respond to us.
Mr. Cannan: I tried to obtain the background on this item. It has been percolating along for six years. Is there any additional background information?
Mr. Bernhardt: I do not have the full file but in this case, correspondence would have gone back and forth between our office and departmental officials. I presume that correspondence would have been before the committee on October 19. At that point, the decision was made to kick it upstairs to the minister.
Mr. Del Mastro: In lieu of any evidence of bad faith — in fact, there is evidence to the contrary — I suggest that the letter does not need too much wordsmithing. It could simply say that because we had not received correspondence from the minister, we were not able to deal with this file. We want to deal with the file in two weeks, so we expect the minister's response. I do not think the letter needs to be any more substantial than that.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
SOR/2003-284 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
(For text of documents, see Appendix F, p. 8F:1)
Mr. Rousseau: Correspondence exchanged between the chairman and the minister, as well as the note prepared for the committee, show a difference of opinion on the interpretation of section 68.1 of the Canada Grains Act.
The legislative provision is quoted in the letter of May 11, 2005 that was forwarded to the minister. The act stipulates that the producer who delivers grain to an elevator facility shall receive an elevator receipt which entitles him to a delivery of grain of the same quality. If the producer does not avail himself of his right to a delivery of grain, the elevator operator must pay him for the grain.
Again, as is explained in the note drafted for the committee, the latter's position is that section 68.1 of the Canada Grains Act must be read as requiring a prescribed period during which the holder of an elevator receipt is entitled to delivery of grain.
The committee's position is based on the fact that according to section 68.1 of the Act, the holder of an elevator receipt is, and I quote, ``entitled to delivery of grain only if the elevator receipt is surrendered [. . .] within such period as is prescribed.''
The regulations, which provided for a 90-day period, were repealed to eliminate the requirement that payment shall be made after 90 days from delivery. Parliament passed section 68.1 of the Act to ensure that the grain would not tax the elevator's storage capacity.
Clearly, Parliament wanted to fix a period of time in the Act. This is confirmed by statements made by the minister in 1988. In his response to the chairman's letter, the Minister of Agriculture and Agri-food acknowledged this fact, but indicated that circumstances had changed and that requirements were no longer the same.
From a legal standpoint, the minister justified doing away with the prescribed period on the grounds that delivery of grain is guaranteed by the Act and cannot be affected by the absence in the regulations of a prescribed period during which the holder can avail himself of his right to delivery of grain.
This interpretation disregards Parliament's clearly stated intent in section 68.1, namely that the holder of an elevator receipt is entitled to delivery of grain only within the prescribed period.
Mr. Chairman, if circumstances have changed and it is no longer the case that producers are entitled to delivery of grain only within the prescribed period, then all that remains to do is to ask Parliament to repeal section 68.1 of the Act. Counsel recommends that the joint chairs write back to the minister regarding this matter.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Seeing none, is it agreed?
Hon. Members: Agreed.
SOR/2002-309 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE ORDER
(For text of documents, see Appendix G, p. 8G:1)
Mr. Bernhardt: This order authorizes the British Columbia Vegetable Marketing Commission, BCVMC, to fix and impose by order levies and charges by persons engaged in the production and marketing of vegetables for interprovincial or export trade. Any such orders will be regulations under the Statutory Instruments Act. This means not only that they have to be examined, registered and published, but that they do not come into force until they are registered.
It turns out that no orders or regulations have ever been made pursuant to this order. This situation seems rather odd and led to a number of questions. Are no levies collected in respect of vegetables produced in British Columbia that are marketed outside the province? Has the commission not exercised its powers? If there are these orders and regulations, and they have not been registered or published, on what basis can they be considered to be in force?
The reply from the commission does not deal directly with any of these questions. However, from some of its statements — and I quote here:
It is evident that the BCVMC is deficient in its administrative practices regarding federal levy authority. The BCVMC has every intention to remedy this situation.
I think members can understand from this response that the commission has been making orders and collecting federal levies, even though these orders have never validly come into force. It would be best to seek an express confirmation of this understanding, however, and also ask for copies of any such orders.
Moreover, some eight months after this problem was drawn to their attention, no regulations or orders have been registered by the commission, so it seems the commission does not take the situation seriously. It might help focus their attention if the committee asked for an assurance that no levies will be collected in respect of vegetables marketed in interprovincial export trade from British Columbia until such time as a valid order is in place.
The Joint Chairman (Mr. Szabo): That is a good suggestion. You suggested that there may not be as much attention at the other end of this discussion. Should we do something to set a timeline? Alternatively, in the absence of a response, should we consider our next step or something? We need to show a stick of some sort.
Mr. Del Mastro: I think the suggestion that any levies currently being collected are invalid should spur them to act — at least, that would be my hope. This lack of action is unconscionable, really. It is ridiculous. It is evident they are deficient. That response obviously states that they are collecting levies they have no regulation to collect. The letter should clearly state that.
Mr. Bernhardt: We can put a ``bring forward'' on a short time frame, and if we do not receive a response quickly —
The Joint Chairman (Mr. Szabo): It is our intention to discharge the matter as responsibly and quickly as possible.
Mr. Del Mastro: That should get them moving.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
SOR/2004-232 — ORDER AMENDING THE SASKATCHEWAN PULSE CROP MARKETING LEVIES (INTERPROVINCIAL AND EXPORT) ORDER
(For text of document, see Appendix H, p. 8H:1)
Senator Bryden: I have a question. I am a farmer, but I do not know — what is a pulse crop?
Mr. Bernhardt: It is beans and peas, I believe.
Mr. Bernhardt: This situation is similar, Mr. Chairman. The order increased the levy deducted on the value of pulse crops produced in Saskatchewan marketing interprovincial and export trade. The order was made by the Saskatchewan Pulse Crop Development Board, SPCDB, on August 1, 2003 and registered on October 25, 2004 — about 15 months later. Of course, as we saw in the last file, the order came into force only when it was registered. This situation gave rise to the question of whether these fees were collected during that 15-month period.
The first reply from the National Farm Products Council, NFPC, simply indicated that when the Saskatchewan board made the order, the board was unaware of the requirements under the federal law. The question as to whether money was collected was asked again. The reply from the National Farm Products Council of January 19, 2006, states that in its earlier letter it neglected to tell the committee that the commission stated that no interprovincial export levies were collected during the time frame in question. With a little further digging, this situation turned out to be not the case. Apparently, the provincial commission imposed the levy under its provincial authority and then proceeded to collect it in respect of all producers, regardless of whether they were marketing within or outside the province.
The consequence is that the money was illegally collected in respect of crops that were marketed outside Saskatchewan until such time as the order was registered.
It is possible that the provincial commission at the time was confused about what it needed to do under its provincial and federal heads. However, one can wonder whether the National Farm Products Council was not aware of this situation when it replied to the committee but chose simply to repeat what it had been told by the SPCDB. I suggest that at the least, the committee write to the National Farm Products Council to point out that its advice to the committee was, to put it politely, incomplete. Given that the committee has a series of similar files this morning, it might be legitimate to ask the NFPC what steps it will take to make all these various boards in the provinces aware that they have obligations that must be complied with under the federal legislation as well as their respective provincial legislation.
The Joint Chairman (Mr. Szabo): Are there questions? Is it agreed?
Hon. Members: Agreed.
SOR/2005-299 — REGULATIONS REPEALING THE DIRECTIONS TO THE CANADIAN DAIRY COMMISSION (EXPORT DAIRY PRODUCTS)
(For text of document, see Appendix I, p. 8I:1)
Mr. Bernhardt: A report tabled by the committee in October, 2006, drew the attention of both Houses to the frequent failure to table instruments in Parliament as required by various federal statutes. This particular instrument was one of the examples cited in that report. In this instance, tabling took place quickly after the omission was drawn to the department's attention. The instrument was also not registered within seven days as required under the Statutory Instruments Act. The department advises that it has amended its internal procedures to ensure that this does not happen again. In view of these assurances and given that the instrument was already dealt with by the committee in its report, that brings resolution to the matter and the file can be closed.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
SOR/2005-103 — BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER
(For text of documents, see Appendix J, p. 8J:1)
Mr. Rousseau: In the opinion of committee counsel, the National Farm Product Council's response with respect to the three points raised is unsatisfactory. Regarding the first point, counsel wanted to know the date on which the order currently before the committee was made by the Canadian Beef Cattle Research, Market Development and Promotion Agency.
The letter revealed that the Agency made the order on March 21, 2005 and that it was approved by the National Farm Products Council on April 14, 2005. However, pursuant to section 7.1(d) of the Farm Products Agencies Act, the National Council must approve draft orders before, and not after, they are adopted, as is the case here.
Also deserving of closer consideration is the odd assertion by the National Council that the levies fixed pursuant to the order cannot be collected until a service agreement has been signed by the provincial board. Yet, these levies are due to be paid immediately after the order takes effect. The National Council should be asked to justify its response from a legal standpoint.
The National Council acknowledges failure in this case to comply with the provisions of the Statutory Instruments Act respecting the registration of regulations.
The second point concerns a drafting problem. Committee counsel identified a discrepancy between the English and French versions of section 6.2 of the order. Council replied that the English version was the correct one. Under the circumstances, the French version should be amended, something that the Council failed to recommend.
The third point also concerns a drafting problem. According to the correspondence exchanged with the Council, it would appear that the French version of section 10.3 of the order is in fact the correct version. The solution would be to have the Council agree to have the English version amended to bring it in line with the French version.
If the committee agrees, counsel will write to the National Council to follow up on these three points.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): I am not sure that I would describe it as ``continuing our exchange.'' Rather, the committee will communicate and, hopefully, bring the item to resolution. I do not want to see this matter three years hence.
The objective of the committee is to ensure that every envelope moves forward at a reasonable pace.
SOR/97-10 — REGISTRATION OF STORAGE TANK SYSTEMS FOR PETROLEUM PRODUCTS AND ALLIED PETROLEUM PRODUCTS ON FEDERAL LANDS REGULATIONS
(For text of documents, see Appendix K, p. 8K:1)
Mr. Rousseau: Amendments were promised in the department's letter dated April 2006. If the committee agrees, counsel will write to the department and request a status report.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
SOR/94-356 — EASTERN TOWNSHIPS WOOD PRODUCERS' LEVIES (INTERPROVINCIAL AND EXPORT TRADE) ORDER
(For text of documents, see Appendix L, p. 8L:1)
Mr. Rousseau: The National Farm Products Council agrees that amendments are in order with respect to the preliminary point made as well as to points 1 and 2 of the letter forwarded by counsel on May 4, 2006. It has undertaken to recommend to the Syndicat des producteurs de bois de l'Estrie, which has the necessary regulatory weight, to amend the wording of the order.
Regarding the third point, the Council provided the requested confirmation. If the committee agrees, counsel will write to the Council to request a status report and will keep the committee apprised, as per usual, of any developments.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
SOR/98-277 — QUEBEC WOOD PRODUCERS' LEVIES (INTERPROVINCIAL AND EXPORT TRADE ORDER)
(For text of documents, see Appendix M, p. 8M:1)
Mr. Rousseau: Regarding this item, the National Farm Products Council also acknowledged that with respect to the preliminary comments and paragraphs 1, 2 and 3 of the letter forwarded on May 4, 2006, the wording of the order's provisions could be amended. It indicated that it would bring the matter to the attention of the Syndicat des producteurs de bois de la region de Québec.
The Council provided the confirmation requested in the fourth paragraph. The comments in the fifth paragraph concerned sections 3 and 4 of the order. The Council admitted that there were problems with the current wording and that changes were required. It indicated that it would discuss the matter again with the Board. The Council's proposed interpretation of these provisions can be deemed satisfactory.
If the committee has no objections, counsel will monitor progress on the promised amendments and will keep the committee apprised, as per usual, of any developments.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
SOR/99-467 — CANADA TRAVELLING EXHIBITIONS INDEMNIFICATION REGULATIONS
(For text of document, see Appendix N, p. 8N:1)
Mr. Bernhardt: On point one, an amendment is promised and needs to be followed up on. The second point concerns a provision in the regulations that refers to the submission of a condition report and talks about submitting all condition reports. The problem is that only one condition report is referred to in the regulations. After much toing and froing with the department, it turns out that, under the policy manual, a slew of other condition reports are required. Why are these other condition reports not referred to in the regulations as well? That suggestion would be made to the department, having referred to one of the reports.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
SOR/2001-188 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MODERNIZATION OF BENEFITS AND OBLIGATIONS)
(For text of documents, see Appendix O, p. 8O:1)
Mr. Rousseau: The department promised to make some amendments to correct the problems identified in paragraphs 1, 2, 4, 5, 6 and 7. As for the comments made in paragraphs 3 and 8 concerning the wording of the regulations, the department supplied a reasonable, satisfactory explanation for not amending the provision mentioned in paragraph 3 and undertook to follow through with the recommendation made in paragraph 8 in the case of future amendments.
If the committee has no objections, counsel will monitor developments closely, as per usual, and will keep the committee apprised of any progress on the promised amendments.
The Joint Chairman (Mr. Szabo): Are there any questions or comments? Is it agreed?
Hon. Members: Agreed.
SOR/2005-182 — REGULATIONS AMENDING THE DUTY FREE SHOP REGULATIONS
(For text of documents, see Appendix P, p. 8P:1)
Mr. Rousseau: Regarding this file, the committee needs to take a stand on two matters. The first is outlined in the commentary prepared for the committee. It lists the reasons why the committee should reconsider its position and stop maintaining that section 3(5) of the Regulations constitutes a subdelegation.
Regarding the second paragraph, committee counsel noted in the letter dated March 2, 2006 that the Regulations authorize the minister to suspend or cancel a licence when the duty free shop has been altered in a manner that ``detrimentally affects the immediate export of goods.''
Counsel questioned how an amendment like this could detrimentally affect the immediate export of goods. The Agency replied by providing two examples that can be deemed satisfactory.
Strangely, however, the Agency refers to amendments that have been made without its prior approval. Neither the act nor the regulations require the operator of a duty free shop to obtain prior approval before altering the structure of the shop. Counsel wanted to know where such condition was prescribed. The Agency responded that this was an administrative requirement. It also stated that if the licensee failed to comply with this administrative requirement, no consequential action would be taken against him.
If the committee is of the opinion that section 3(5) of the Regulations does not constitute a subdelegation and that the Agency's explanations regarding alterations to duty free shops are satisfactory, then the file can be closed.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Do you have a recommendation?
Mr. Lee: I want counsel to be clearer on this alleged subdelegation. What is the view of counsel? Is there or is there not a subdelegation?
Mr. Rousseau: As explained in the note, this does not constitute a subdelegation.
Mr. Lee: Does counsel accept that?
Mr. Rousseau: Yes. The note explains why counsel feels the committee should reconsider its position on this matter and accept that there is no subdelegation. I can go into more detail as to counsel's reasons. Pursuant to the act, the minister issues the operating license. Also pursuant to the act, it is the Governor in Council who prescribes the qualifications that must be met by the operator in order to obtain a license.
Mr. Lee: I am prepared to accept it if counsel is of the view that under these facts, there is no subdelegation.
Mr. Rousseau: Our reasons for believing that this does not constitute a subdelegation are outlined in the note prepared for the committee.
The Joint Chairman (Mr. Szabo): We have a recommendation from counsel before us. Is it agreed?
Mr. Rousseau: If the committee agrees, the file can be closed.
Mr. Szabo: It is agreed?
Some hon. members: Agreed.
SI/2005-128 — MCINTYRE LANDS INCOME TAX REMISSION ORDER
(For text of documents, see Appendix Q, p. 8Q:1)
SOR/96-369 — CANADA STUDENT LOANS REGULATIONS, AMENDMENT
(For text of documents, see Appendix R, p. 8R:1)
SOR/2002-48 — CANADIAN BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION AGENCY PROCLAMATION
(For text of documents, see Appendix S, p. 8S:1)
SOR/2003-288 — STAMPING AND MARKING OF TOBACCO PRODUCTS REGULATIONS
(For text of documents, see Appendix T, p. 8T:1)
SOR/2005-406 — REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 1989
(For text of documents, see Appendix U, p. 8U:1)
SOR/96-153 — DUTY FREE SHOP REGULATIONS, AMENDMENT
(For text of documents, see Appendix V, p. 8V:1)
SOR/2006-3 — REGULATIONS AMENDING THE AIR TRANSPORTATION REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix W, p. 8W:1)
SOR/2006-160 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL REGULATIONS
SOR/2002-347 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL REGULATIONS
(For text of documents, see Appendix X, p. 8X:1)
SOR/2006-161 — RULES AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL RULES
(For text of documents, see Appendix Y, p. 8Y:1)
SOR/2006-162 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS MADE UNDER PART IX OF THE EXCISE TAX ACT (MISCELLANEOUS PROGRAM)
SOR/2001-171 — SELECTED LISTED FINANCIAL INSTITUTIONS ATTRIBUTION METHOD (GST/HST) REGULATIONS
(For text of documents, see Appendix Z, p. 8Z:1)
Mr. Bernhardt: With the committee's indulgence, I propose dealing with the agenda items under ``Action Promised'' and ``Action Taken'' together. Under ``Action Promised,'' there are five files in respect of which some 14 amendments are promised. Included among these amendments is the revocation of two ultra vires provisions. The progress on these amendments will be followed up after the meeting.
The seven instruments under ``Action Taken'' make 27 amendments in total that were promised to the committee. Again, two of these amendments involved the removal of provisions for which there was no authority. A third narrows what the committee viewed as the overly broad scope of the discretion conferred on a minister to cancel or suspend a licence to operate a duty free shop.
SI/2005-118 — PUBLIC SERVICE OFFICIAL LANGUAGES EXCLUSION APPROVAL ORDER
SI/2005-120 — ORDER SETTING OUT THE RESPECTIVE RESPONSIBILITIES OF THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS UNDER THE ACT
SI/2006-51 — ORDER TRANSFERRING FROM THE PRIVY COUNCIL OFFICE TO THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT THE CONTROL AND SUPERVISION OF THE ABORIGINAL AFFAIRS SECRETARIAT
SI/2006-52 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON APRIL 3, 2006 (DISPATCH OF BUSINESS)
SI/2006-54 — ORDER FIXING APRIL 1, 2006 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT
SI/2006-55 — ORDER FIXING APRIL 1, 2006 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SUBSECTIONS OF THE FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS ACT
SI/2006-56 — ORDER FIXING APRIL 1, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT
SI/2006-57 — ORDER FIXING APRIL 1, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT
SI/2006-58 — ORDER FIXING MARCH 31, 2006 AS THE DATE OF THE COMING INTO FORCE OF SECTION 42 OF THE ACT
SI/2006-59 — ORDER FIXING APRIL 1, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT
SI/2006-60 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN NUNAVUT (THE NUNAVIK MARINE REGION, NUNAVUT)
SI/2006-62 — ORDER DESIGNATING THE PRIME MINISTER AS PRESIDING MINISTER FOR THE PUBLIC APPOINTMENTS COMMISSION SECRETARIAT
SI/2006-63 — ORDER DESIGNATING THE EXECUTIVE DIRECTOR OF THE PUBLIC APPOINTMENTS COMMISSION SECRETARIAT AS DEPUTY HEAD
SI/2006-64 — ORDER DESIGNATING THE PUBLIC APPOINTMENTS COMMISSION SECRETARIAT AS A DEPARTMENT AND THE EXECUTIVE DIRECTOR AS DEPUTY HEAD
SI/2006-65 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2006-67 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER
SI/2006-68 — ORDER FIXING APRIL 27, 2006 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN PROVISIONS OF THE ACT
SI/2006-69 — RESERVATION TO THE CROWN WAIVER ORDER (HAY RIVER, N.W.T.)
SI/2006-70 — ORDER FIXING JUNE 30, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT
SI/2006-71 — ORDER DESIGNATING THE COMMISSION OF INQUIRY INTO THE INVESTIGATION OF THE BOMBING OF AIR INDIA FLIGHT 182 AS A DEPARTMENT AND THE PRIME MINISTER AS APPROPRIATE MINISTER
SI/2006-72 — ORDER TRANSFERRING FROM THE PRIVY COUNCIL OFFICE TO THE DEPARTMENT OF INDUSTRY THE CONTROL AND SUPERVISION OF THE NATIONAL SCIENCE ADVISOR SECRETARIAT
SI/2006-73 — ORDER TRANSFERRING FROM THE PRIVY COUNCIL OFFICE TO THE DEPARTMENT OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS THE CONTROL AND SUPERVISION OF THE BORDERS TASK FORCE
SI/2006-74 — ORDER TRANSFERRING FROM THE PRIVY COUNCIL OFFICE TO THE DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT THE CONTROL AND SUPERVISION OF THE POLICY RESEARCH INITIATIVE
SI/2006-75 — ORDER TRANSFERRING FROM THE PRIVY COUNCIL OFFICE TO THE TREASURY BOARD THE CONTROL AND SUPERVISION OF THE REGULATORY AFFAIRS AND ORDERS IN COUNCIL SECRETARIAT EXCEPT ORDERS IN COUNCIL DIVISION
SI/2006-76 — ORDER TRANSFERRING FROM THE PRIVY COUNCIL OFFICE TO THE TREASURY BOARD THE CONTROL AND SUPERVISION OF THE REGIONAL OFFICES IN THE COMMUNICATIONS AND CONSULTATIONS SECRETARIAT
SI/2006-78 — CLARA REID REMISSION ORDER
SI/2006-79 — FIREARMS FEES REMISSION ORDER (LICENCES)
SI/2006-80 — ORDER TRANSFERRING FROM THE CANADIAN FIREARMS CENTRE TO THE ROYAL CANADIAN MOUNTED POLICE THE CONTROL AND SUPERVISION OF THE CANADIAN FIREARMS CENTRE
SI/2006-81 — ORDER REPEALING THE CANADIAN FIREARMS CENTRE AS A DEPARTMENT AND THE COMMISSIONER OF FIREARMS AS DEPUTY HEAD
SI/2006-82 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2006-83 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2006-84 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER
SI/2006-85 — ORDER TRANSFERRING FROM THE MINISTER OF CANADIAN HERITAGE TO THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT THE CONTROL AND SUPERVISION OF THE OFFICE OF INDIAN RESIDENTIAL SCHOOLS RESOLUTION OF CANADA AND ORDERING THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT TO PRESIDE OVER THE OFFICE
SI/2006-86 — UNITED NATIONS OPERATION IN CÔTE D'IVOIRE (UNOCI) MEDAL ORDER
SI/2006-87 — NON-ARTICLE 5 NORTH ATLANTIC TREATY ORGANIZATION (NATO) MEDAL FOR THE NATO TRAINING MISSION IN IRAQ ORDER
SI/2006-88 — JACQUES BEAUVAIS REMISSION ORDER
SI/2006-91 — RAM SEWAK REMISSION ORDER
SI/2006-92 — JERRY MATHEWS REMISSION ORDER
SI/2006-93 — ORDER FIXING JUNE 28, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT
SI/2006-94 — RONALD FRANCOEUR REMISSION ORDER
SI/2006-96 — ORDER FIXING JUNE 16, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT
SI/2006-99 — VIOLET MEIKLE REMISSION ORDER
SOR/88-465 — MANITOBA CHICKEN MARKETING (INTERPROVINCIAL AND EXPORT) ORDER
SOR/88-527 — MANITOBA TURKEY MARKETING (INTERPROVINCIAL AND EXPORT TRADE) ORDER
SOR/89-537 — RACE TRACK SUPERVISION REGULATIONS, AMENDMENT
SOR/95-107 — ONTARIO FISHERY REGULATIONS, 1989, AMENDMENT
SOR/95-283 — NEWFOUNDLAND OFFSHORE AREA PETROLEUM DIVING REGULATIONS, AMENDMENT
SOR/96-40 — SHIPS' STORES REGULATIONS
SOR/96-84 — FOREIGN EXTRATERRITORIAL MEASURES (UNITED STATES) ORDER, 1992, AMENDMENT
SOR/98-15 — ORDER AMENDING THE QUEBEC BEEF CATTLE PRODUCERS' LEVIES OR CHARGES (INTERPROVINCIAL AND EXPORT TRADE) ORDER
SOR/2002-110 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS
SOR/2002-274 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2002-278 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF JUSTICE REGULATIONS (MISCELLANEOUS PROGRAM)
SOR/2002-314 — REGULATIONS AMENDING THE GENERAL PILOTAGE REGULATIONS
SOR/2002-364 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2002-373 —MEMBERS OF PARLIAMENT DISABILITY ALLOWANCE REGULATIONS
SOR/2002-377 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2002-379 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL HEALTH AND SAFETY REGULATIONS
SOR/2003-7 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
SOR/2003-15 — EXPORT AND IMPORT OF ROUGH DIAMONDS REGULATIONS
SOR/2003-52 — ORDER AMENDING THE EXPORT CONTROL LIST
SOR/2003-56 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS
SOR/2003-82 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996
SOR/2003-153 — REGULATIONS AMENDING THE PRECURSOR CONTROL REGULATIONS
SOR/2003-184 — ACCESS TO BASIC BANKING SERVICES REGULATIONS
SOR/2003-237 — REGULATIONS AMENDING THE GOODS IMPORTED AND EXPORTED REFUND AND DRAWBACK REGULATIONS
SOR/2003-246 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
SOR/2003-269 — ORDER AMENDING THE IMPORT CONTROL LIST
SOR/2003-276 — REGULATIONS AMENDING THE JUDGES ACT (WIDOW AND CHILDREN ANNUITIES) REGULATIONS
SOR/2003-278 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS
SOR/2003-286 — PORTIONS OF THE DEPARTMENT OF HEALTH DIVESTITURE REGULATIONS
SOR/2003-338 — REGULATIONS AMENDING THE NEWFOUNDLAND FISHERY REGULATIONS
SOR/2003-339 — REGULATIONS AMENDING THE YUKON TERRITORY FISHERY REGULATIONS
SOR/2003-369 — REGULATIONS AMENDING THE FISHERY (GENERAL) REGULATIONS
SOR/2003-386 — REGULATIONS AMENDING THE SHIP STATION (RADIO) TECHNICAL REGULATIONS, 1999
SOR/2003-387 — REGULATIONS AMENDING THE MARIHUANA MEDICAL ACCESS REGULATIONS
SOR/2003-390 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2003-3
SOR/2003-394 — REGULATIONS AMENDING THE SHIPS' STORES REGULATIONS
SI/2000-17 — ORDER FIXING MARCH 31, 2000 AS THE DATE OF THE COMING INTO FORCE OF PART IV AND OF CERTAIN SUBSECTIONS OF THE ACT
SI/2000-62 — ORDER FIXING JULY 17, 2000 AS THE DATE OF THE COMING INTO FORCE OF PART III OF THE ACT
SI/2000-67 — ORDER FIXING SEPTEMBER 30, 2000 AS THE DATE OF THE COMING INTO FORCE OF PART I AND PART III OF THE ACT
SI/2001-18 — ORDER FIXING FEBRUARY 1, 2001 AS THE DATE OF THE COMING INTO FORCE OF THE ACT
SI/2001-25 — ORDER FIXING FEBRUARY 12, 2001 AS THE DATE OF THE COMING INTO FORCE OF SUBSECTION 107(2) OF THE ACT
SI/2001-33 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-34 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-36 — UNITED NATIONS MISSION IN SIERRA LEONE (UNAMSIL) MEDAL ORDER
SI/2001-37 — UNITED NATIONS MISSION IN EAST TIMOR AND THE UNITED NATIONS TRANSITIONAL ADMINISTRATION IN EAST TIMOR (UNAMET/UNTAET) MEDAL ORDER
SI/2001-38 — UNITED NATIONS ORGANIZATION MISSION IN THE DEMOCRATIC REPUBLIC OF THE CONGO (MONUC) MEDAL ORDER
SI/2001-39 — INTERNATIONAL FORCE EAST TIMOR (INTERFET) MEDAL ORDER
SI/2001-40 — ORDER AMENDING THE CANADIAN VOLUNTEER SERVICE MEDAL ORDER
SI/2001-44 — ORDER AMENDING THE DESIGNATION OF COUNTRIES (STANDARDS COUNCIL OF CANADA) ORDER
SI/2001-52 — ORDER REPEALING THE ORDER DESIGNATING THE LEADERSHIP NETWORK AS A DEPARTMENT AND THE HEAD AS THE DEPUTY HEAD
SI/2001-53 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER AND REPEALING THE ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-54 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER AND REPEALING THE ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-56 — ORDER RESPECTING THE REMISSION OF A PORTION OF THE TAX PAID BY PATRICIA MERKEL UNDER PART IX OF THE EXCISE TAX ACT IN RESPECT OF HER PURCHASE OF A BARE LAND UNIT
SI/2001-64 — ORDER FIXING JUNE 1, 2001 AS THE DATE OF THE COMING INTO FORCE OF SECTION 23 OF THE OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS ACT
SI/2001-71 — ORDER FIXING JUNE 1, 2001 AS THE DATE OF THE COMING INTO FORCE OF THE PROVISIONS OF THE ACT, OTHER THAN PART VIII
SI/2001-75 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-76 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-77 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-78 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-79 — PIETRO SANDINI REMISSION ORDER
SI/2001-80 — HANK K. DER REMISSION ORDER
SI/2001-83 — ORDER FIXING THE DAY OF THE MAKING OF THIS ORDER AS THE DAY ON WHICH THE ACT COMES INTO FORCE
SI/2001-86 — ORDER FIXING AUGUST 1, 2001 AS THE DATE OF THE COMING INTO FORCE OF SECTION 41.2 OF THE JUDGES ACT
SI/2001-87 — UNITED NATIONS ORGANIZATION MISSION IN ETHIOPIA AND ERITREA (UNMEE) MEDAL ORDER
SI/2001-89 — EXCLUSION APPROVAL ORDER TO CERTAIN PERSONS AND TO A CERTAIN POSITION IN HUMAN RESOURCES DEVELOPMENT
SI/2001-91 — ORDER FIXING SEPTEMBER 1, 2001 AS THE DATE OF THE COMING INTO FORCE OF SECTION 10 OF THE ACT
SI/2001-92 — STRATA PLAN NO. 2 REMISSION ORDER
SI/2001-94 — RESERVATION TO THE CROWN WAIVER ORDER (FRANCES LAKE, Y.T.)
SI/2001-95 — RESERVATION TO THE CROWN WAIVER ORDER (MARSH LAKE, Y.T.)
SI/2001-97 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-98 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER
SI/2001-112 — EXCLUSION APPROVAL ORDER FOR THE APPOINTMENT OF ONE EMPLOYEE TO POSITIONS IN THE CANADIAN INTERNATIONAL DEVELOPMENT AGENCY
SI/2001-118 — ORDER AMENDING THE SCHEDULE TO THE DESIGNATION OF CERTAIN PORTIONS OF THE PUBLIC SERVICE ORDER
SI/2002-9 — RESERVATION TO THE CROWN WAIVER ORDER (GREAT SLAVE LAKE, N.W.T.)
SI/2002-10 — RESERVATION TO THE CROWN WAIVER ORDER (LA MARTRE LAKE, N.W.T.)
SI/2002-11 — RESERVATION TO THE CROWN WAIVER ORDER (MARSH LAKE Y.T.)
SI/2002-121 — ORDER AMENDING THE DESIGNATION OF COUNTRIES (STANDARDS COUNCIL OF CANADA) ORDER
SI-2003-120 — ORDER AMENDING THE CANADIAN VOLUNTEER SERVICE MEDAL ORDER
Mr. Bernhardt: Finally, under the heading ``Statutory Instruments Without Comment,'' 120 instruments have been reviewed and found to comply with all the committee's criteria.
The Joint Chairman (Mr. Szabo): We will follow up, and we have complied. Is that acceptable to the committee? Is it agreed we proceed in that fashion?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): Do members want to bring any other matters to the attention of the committee for consideration at the next meeting?
We still have Mr. Bernhardt's report on administrative matters that we have not forgotten. We will look for an opportunity and maybe we will have a little progress on that item at the next meeting. Thank you, colleagues.
The committee adjourned.