REGS Committee Meeting
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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 2 - Evidence, December 6, 2007
OTTAWA, Thursday, December 6, 2007
The Standing Joint Committee 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. Derek Lee (Joint Chairs) in the chair.
The Joint Chair (Mr. Lee): I call the meeting to order and ask counsel to proceed with the first item on the agenda: Incorporation by reference — Consideration of a draft report.
Peter Bernhardt, General Counsel to the Committee: Last May, members noted that the question of the authority for open incorporations by reference — that is, the incorporation into a regulation of an external document, as that document is amended from time to time — is one that the committee encounters frequently. The committee has always taken the position that this kind of incorporation by reference requires an express enabling authority.
Unlike the situation where documents are incorporated as of a fixed time, an open incorporation involves a transfer or a sub-delegation of the rule-making power. In other words, the actual content of the rule will be set by the author of that incorporated document rather than by the person to whom Parliament has given that power. This view has tended to be resisted by federal regulation-making authorities. The result is that the argument goes back and forth, covering old ground and discussing cases that the committee has already dealt with numerous times before.
In essence, these cases concern inter-delegation of legislative authority between the federal and provincial levels of government as a constitutional question, and these cases are of limited relevance to issues of sub-delegation in the administrative law context. This being the case, the committee felt that the time had come to report to the Houses on the whole question of incorporation by reference, generally. The idea was to set out the committee's overall position on the issue in a way that could be referred to in such cases as arise in the future. It would provide the opportunity to ask for a comprehensive government response to the report. We have a draft of that report before members this morning.
The Joint Chair (Mr. Lee): Are there comments? First, this is very well-crafted report covering everything. It will be helpful in further discussion. It sets out the markers that we are relying on and attempts to give fair interpretation to the markers laid down by the courts in individual instances. Suffice to say, there are many scenarios that can evolve with these incorporations by reference. I have three minor comments.
First, between pages 38 and 39 in the English version, there appears to be a line missing. The words ``time to time is only permitted where'' should be inserted, in my view, if I am translating correctly from the French.
Second, on page five of the English version, paragraph 6 reads, and I quote: ``The foregoing represents the view adopted by the Joint Committee since its inception.'' That is correct, but who in the world would know the committee's inception? Could we agree to have it read, ``. . .since its inception over 30 years ago''?
Third, on page 15 of the English and French versions, in the long paragraph on that page I would refer members to a sentence that begins as follows: ``Delegation concerns the distribution of powers...'' I find the use of the word ``delegation'' too broad. Was it the intent of the drafters to refer to a form of delegation so that we could use the word ``delegation'' in the context of distribution? Or are we referring to sub-delegation?
Mr. Bernhardt: In this instance, we are referring to inter-delegation as a constitutional term between the two levels of government.
The Joint Chair (Mr. Lee): In this case, that is correct.
Mr. Bernhardt: We could use the words ``inter-delegation.''
The Joint Chair (Mr. Lee): We could say ``delegation in this context'' to refer to the distribution of powers constitutionally. I make the point for clarification only; it would not change the meaning. I suggest that counsel decide whether that is an appropriate amendment.
Mr. Bernhardt: That seems to work for me.
The Joint Chair (Mr. Lee): Are there any other comments on this report?
The Joint Chair (Senator Eyton): The report is well thought out and well written in raising the points. However, it is lengthy and will not receive much attention from those not at these meetings.
I am a strong believer in executive summaries at the onset, thereby giving everyone access to the seven or eight observations we are trying to make in our report. It seems to be an easier way of presenting information. That does not presuppose that the second record in its entirety will be tabled, but it may help readership if there is a summary that addresses the five to seven points that are important.
Mr. Bernhardt: To some extent, that exists at the end of the report. It starts, I believe, at paragraph 46 and continues through to 49. This attempts to wrap the whole issue up by way of conclusion.
Senator Bryden: Perhaps the main conclusion can be changed to the summary.
The Joint Chair (Senator Eyton): If it is stuck at the end, readers may never get to it. The purpose is to have access to the key points, but perhaps I am confusing it.
Mr. Bernhardt: I would also add that the audience for this report is the Department of Justice and the lawyers who deal with these issues. In speaking to some of them, they expressed an interest in this report when they found out it was something the committee was looking at. In part, that explains why it reads something like a law journal article rather than a committee report.
The Joint Chair (Senator Eyton): We are also trying to get the attention and support of our colleagues in the Senate and Commons.
The Joint Chair (Mr. Lee): We are also seeking the attention and support of the Federal Court.
Mr. Bernhardt: We can draft something and bring it back to the committee at the next meeting. We can certainly add in something by way of a summary at the start.
The Joint Chair (Mr. Lee): Throughout the last 80 reports since our inception over 30 years ago, it has not been the practice to insert a headnote, such as exists in many law reports, whereby the reader gets a quick summary.
We could do it. However, I prefer not to miss an opportunity to get this report introduced before the January break. However, if the suggestion can be accomplished within that time frame, I think it is a very good suggestion.
Mr. Wappel: I agree with counsel. I agree that the audience is the lawyers at the Department of Justice; in my view, this report is not designed for the audience of MPs and senators. Let us assume for a moment that the Department of Justice does not agree with the report and that they will maintain the position they have maintained. I was thinking that after the Department of Justice responds to this report we will have to do something and make a decision as to whether or not we agree. At that time, our audience will be a different audience, namely MPs and senators. We would have to word it in such a way that it would be shorter, crisper and easier to understand for non-lawyers, for example.
On the other hand, I agree with the joint chair that it would not hurt to have a quick executive summary. Frankly, I do not think it is necessary to delay the matter. If the committee were of the view that the report as written is acceptable, then my suggestion would be to allow the joint chairs to review an executive summary prepared by counsel, attach it and then present the report. That would be my recommendation.
The Joint Chair (Mr. Lee): Is that possible?
Hon. Members: Yes.
Senator Bryden: This is quite a change from the way we do reports. As has been said, we have always presented a straight report, like this one. If we are going to do an executive summary, is there any problem with putting that executive summary at the end? Otherwise, a great many readers will read three paragraphs and not continue. I do not think there is a rule stipulating that an executive summary must be at the front.
Mr. Bernhardt: We can attach it as an appendix.
Senator Bryden: I would probably be the one that reads these summaries. Nevertheless, it would be useful. I think we should maintain our good reputation of having complete reports that go to our superiors.
The Joint Chair (Mr. Lee): That is a good suggestion. Counsel, would you be prepared to take these suggestions, take that consensus, and wrap it up? I think we better continue. Senator Moore, please go ahead.
Senator Moore: I am not clear about the earlier discussion of a missing line between sections.
Mr. Bernhardt: At the bottom of page 38, in the English version, the last sentence on that page reads, and I quote: ``For this reason, the incorporation by reference of external documents ``as amended from'' — the sentence appears to be missing the words ``time to time is only permitted where.'' Moving on to page 39, it reads: ``Parliament has authorized the use of such a device. . .''
Senator Moore: ``From time to time is only permitted...''
The Joint Chair (Mr. Lee): The French version is correct.
Senator Moore: I do not want to see us delay the issuance of this report in the form presented by counsel this morning. Therefore, what kind of time were you looking at in terms of completing and adding this summary?
Mr. Bernhardt: We can get that tabled next week.
The Joint Chair (Mr. Lee): Will someone move this report?
Senator Harb: So moved.
The Joint Chair (Mr. Lee): Moved by Senator Harb, seconded by Mr. Wappel. This report is being moved with the amendments that have been discussed and agreed to around the table up to now.
I will put the question. Are members agreed?
Hon. Members: Agreed.
PARKS CANADA MASTER LIST OF FEES 2003-2004
(For text of documents, see Appendix A, p. 2A:1)
Mr. Bernhardt: As the note indicates, this is the file concerning charges for a licence to sell alcoholic beverages in certain national parks and at certain national historic sites based on gross purchases for sale under the licence. The question is whether they constitute an unlawful tax on the activity to be carried out under the licence.
This issue has also been the subject of litigation. The Supreme Court of Canada heard an appeal on the case on November 16. Judgment was reserved; the court's decision will be rendered in the coming months.
At the end of the last session, the committee determined that the file should be brought back in the fall in order that members could be updated and consideration given as to how best to proceed. Given that the Supreme Court has now heard the case, one option that might be considered prudent would be to await its decision before deciding what, if any, further action is required.
Mr. Epp: Did we make a representation to the Supreme Court?
Mr. Bernhardt: No. It was determined that it was not appropriate for a parliamentary committee to seek to intervene in a Supreme Court hearing. In all likelihood, a committee would not have standing in any case.
Mr. Wappel: That was exactly my point. I wanted to ask if it would not be possible to ask the Supreme Court in a case like this to file an amicus curiae brief. I cannot believe that the Supreme Court would say that a parliamentary committee would not have standing, especially a parliamentary committee that has been dealing with the issue for so long.
If we see this kind of thing coming down the pipe, perhaps the chairs could ask counsel to bring it to our attention well in advance. This may have been done while I was chairing another committee and was not here. I would argue in favour of at least attempting to have the committee file a brief of its opinion and its authorities, to guide the Supreme Court.
The Joint Chair (Mr. Lee): Before counsel answers, I would piggyback one or two things.
Apparently, the hearing took place three weeks ago, so the train has left the station, if I can put it that way. I was curious as to whether the party litigants were privy to the committee's views on this. If they were, then we have sort of done our job. Could I get counsel to answer those questions?
Mr. Bernhardt: Taking the last questions first, the committee has made its views known to the responsible government department. As a result, I presume the Attorney General is well aware of the committee's position. I also know that the counsel for the appellants — in this case, the bar and restaurant owners — were also aware of the committee's position.
As for Mr. Wappel's question, I can confirm this came to the committee last spring. At that time, there was a tentative hearing date set. The issue was discussed in committee and the decision was made to defer the matter until the committee resumed in a new session in the fall, which is where we are now.
The Joint Chair (Mr. Lee): If there are no more questions, the chair has the same gut feeling as some members around the table. However, I am sure the Supreme Court, in its wisdom, will bring it to a good conclusion.
SOR/2005-241 — REGULATIONS AMENDING THE GUN SHOWS REGULATIONS
SOR/2005-242 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS
(For text of documents, see Appendix B, p. 2B:1)
Mr. Bernhardt: Section 118 of the Firearms Act requires proposed regulations to be tabled in both Houses. However, section 119 of the act sets out a number of exceptions. One of these is where the minister is of the opinion that the changes are minor. In such cases, a statement of the reasons for the minister's opinion must be laid before each House.
These two regulations were made on August 30, 2005. In each case, they state that, because they make only minor changes, they will not be tabled; however, the minister will table a statement of the reasons for the opinion that they are minor, which the act requires. No such statements have ever been tabled.
These two amendments postponed the coming-into-force date of each regulation. In fact, they have now been superseded by later amendments, further postponing coming into force. I am not sure whether this mitigates or compounds the failure to table the required statement of reasons. It bears noting that in the case of the gun shows' regulations, a statement of reasons in connection with the later amendment has not been tabled, either.
Last May, the RCMP advised the committee that it had identified a number of amendments in respect of which nothing has been tabled, and that it was in the process of rectifying this.
As counsel's June 15 letter pointed out, although the act does not fix a time when a statement must be tabled, at the very least, a delay of more than two years violates the spirit of the law. It was also pointed out that the Speaker of the House of Commons has ruled that non-observance of tabling requirements constitutes a prima facie breach of the privileges of the House.
The RCMP was further advised that these files would be brought back to the committee in the fall, and that it was expected the requisite documents would have been tabled by then. This has not been the case.
Mr. Wappel: I realize that the RCMP at the upper levels has been going through some turmoil. However, Mr. Lee and I will particularly remember that the issue of gun regulations is a very sensitive subject in Canada.
We were on the committee when the bill went through the House of Commons. One of the undertakings given to placate members was this guarantee that regulations would be filed before both Houses so they could be reviewed, given the various inflammatory charges that were being made about what might happen with the legislation.
Therefore, I am very disappointed that no response has come to the committee since June 15. I think it is important for future precedent that we push this matter and insist that a statement be filed. Perhaps Parliament was remiss in not putting a time frame, but I do not think anyone would consider two years to be a reasonable period of time to file a statement of reasons for such a regulation.
In a case like this, my usual inclination is to call in the commissioner and find out why this letter has not been answered, why a statement has not been done. Maybe that is what I will recommend. Let us call in the commissioner and get to the bottom of this.
The Joint Chair (Senator Eyton): Has there been any discussion at the department on the failure? It seems odd that in the two years someone has not dreamt up a reason for the delay. I do not think there is any kind of standard for the reasons. All you need to do is file a statement setting them out. Have you ever had any discussion with anyone about this?
Mr. Bernhardt: There has been correspondence back and forth. It has been a chronic problem. It goes back to before the firearms responsibilities were with the RCMP, when it was with the Department of Justice and the Canadian Firearms Centre.
To be honest, the requirement to table a statement in the case of minor amendments has been routinely ignored by whoever is responsible at the time for administering the firearms legislation. In the last session, the committee tabled a report on the issue of tabling requirements generally.
As to why, I think you are quite right; it is a fairly pro forma thing. You would think it would be part of the tracking process when you make an amendment. You have the standard set of reasons and ensure they get tabled.
Mr. Epp: When we say they are required to file a statement, is that with this committee or in Parliament?
Mr. Bernhardt: In both Houses.
Mr. Epp: Is it just a case of filing it?
Mr. Bernhardt: Yes; they have to table a statement of the reasons the changes were so minor they did not table the actual changes.
Senator Bryden: Did this same type of thing happen a short time ago, where there was a movement ahead of the marking requirements for another two years?
Mr. Bernhardt: That is correct.
Senator Bryden: When does this become stale?
Mr. Bernhardt: That is the question. They made amendments in 2005 but nothing was tabled. Then, that amendment was changed in 2006, and nothing was tabled. The Firearms Marking Regulations were changed again recently, and a statement has been tabled for the 2007 change, whether that compounds or mitigates the failure.
Senator Bryden: Members of the House will be more familiar with this than I am. Is not the impact of what was done recently to put a moratorium on people's requirement to have to mark guns for another two years?
Mr. Bernhardt: These regulations have never come into force. The amendments we are talking about simply postpone the coming-into-force date set out in the regulations.
Senator Bryden: Are these ministerial regulations?
Mr. Bernhardt: These are Governor-in-Council regulations.
Senator Bryden: Do you have any idea why these have been pushed back another two years?
The Joint Chair (Mr. Lee): These sound like policy issues.
Senator Bryden: Do you comment on policy issues?
The Joint Chair (Mr. Lee): We deal with the legal technicalities. Can counsel respond to Senator Bryden's question?
Mr. Bernhardt: I have no idea.
The Joint Chair (Mr. Lee): It would seem the statute places the burden on the minister, yet our correspondence is with the RCMP. One might be able to infer some tension between the two. Why would we not correspond with the minister, advising of the patent statutory obligation, which, if not fulfilled, could result in a contempt, whereby the commissioner could suggest, let the minister's office take care of the minister. Is there some way we could alert the minister to this?
Mr. Bernhardt: As you know, in the normal course of events, counsel deals with officials responsible for administering the program, the act and the regulations when things are not satisfactory and then it moves up to the responsible minister.
The Joint Chair (Mr. Lee): In this case, for most practical purposes, the RCMP is independent and does not have regular couriers to the minister's office.
Mr. Bernhardt: I can only presume that the Commissioner of the RCMP has some contact with the Minister of Public Safety from time to time. If the joint committee wishes to write to the minister to advise that he has the responsibility to table these amendments, then members have that option. The committee has yet to correspond with the minister on this matter.
Mr. Christopherson: Just the other day at the Public Accounts Committee, we dealt with some of the difficulties regarding the RCMP. I did not realize before it came up at the meeting that the Commissioner of the RCMP is a designated deputy, so there may be lawful requirements on the part of the commissioner in that deputy capacity. I truly do not care whether we bring in the commissioner or the minister. I am new to this committee, but it sounds appalling, given the nature of what we are talking about — neglect, at best, at worst, someone is playing games. Certainly, I would hope that the joint committee would hold someone to account for the issue.
The Joint Chair (Mr. Lee): We only need an effective member of the opposition to take the matter up with the Speaker and, suddenly, things begin to happen — been there, done that.
Ms. Barnes: I would suggest that the joint committee write a letter to the minister to deal with this serious matter.
Mr. Wappel: The first paragraph references a letter from Peter D. Martin. Who is Peter D. Martin? Does he work for the RCMP? I understand from the summary that Mr. Martin's letter gave an assurance that statements of reasons would be forwarded, I presume from the RCMP, to the minister, so that the minister could file. That would indicate to me that someone — if Mr. Martin works for the RCMP, that the RCMP acknowledges that it is their job to prepare the statement, give it to the minister, the minister then tables it in the House and that is the end of it. Could you refresh our collective memory, counsel, as to what Mr. Martin's letter said and for whom Mr. Martin works?
Mr. Bernhardt: I assume that Mr. Martin has some responsibility for the firearms program within the RCMP, although I do not have his exact title. His letter advised that the RCMP had identified a number of amendments in respect of which nothing was tabled, and that they were in the process of rectifying this.
Mr. Wappel: They were in the process of forwarding statements of reasons.
Mr. Bernhardt: That is how it would be rectified, and that was six months ago. Apparently, those statements have not made it from the RCMP to the minister and subsequently from the minister to the House.
The Joint Chair (Mr. Lee): I would suggest that, in an appropriate fashion and as a courtesy, we promptly write a letter to inform the Minister of Public Safety, Mr. Day, of this serious problem, which could amount to a statutory default.
At the first meeting when we come back, members will be prepared to either make a decision or stomp up and down at the time.
Senator Moore: Will someone inquire as to whether Mr. Martin sent these statements to the minister? Perhaps he did send them or perhaps they have been mischievously sat on. I should like to know.
The Joint Chair (Mr. Lee): Perhaps counsel could try to uncover these little nuggets of truth, if he has a conversation with the department. At the end of the day, senator, political and statutory responsibility lies with the minister, and this has gone on far too long.
Mr. Bernhardt: We could ask Mr. Martin.
Senator Moore: Exactly.
The Joint Chair (Mr. Lee): Members are agreed on that; I see no dissent.
SOR/99-324 — BOOK IMPORTATION REGULATIONS
SOR/99-325 — EXCEPTIONS FOR EDUCATIONAL INSTITUTIONS, LIBRARIES, ARCHIVES AND MUSEUMS REGULATIONS
(For text of document, see Appendix C, p. 2C:1)
Lindsay Armstrong, Legal Counsel to the Committee: The points raised in the first file deal with the drafting of the regulations. In 2000, the department undertook to make the necessary changes when the regulations were next amended. The committee accepted this proposal provided that it was done in a reasonable time. More than seven years have now passed since the department promised to make the changes.
As to the second file, SOR/99-325, three points were raised. One amendment promised in 2003 has still not been made. The two other problems were about rescinding section 5 of the regulations, which became redundant after an amendment to the act in 2004, and about the validity of section 7. The department has not yet replied to the points that were raised about sections 5 and 7. The joint chairs wrote to the minister to ask for his cooperation in having the promised amendments made without further delay. In addition, the joint chairs asked for a reply on sections 5 and 7 as quickly as possible.
In February of this year, the minister replied that he had asked his officials to study the matter in order to develop a plan to move it forward. The minister stated that a more complete reply would follow.
The minister's most recent letter is before the committee this morning. The minister indicates that his officials have completed a preliminary evaluation, but that it will be necessary to consult the Department of Canadian Heritage. As a result, more time will be needed to study the amendments before a reply to the committee can be provided.
Given that five months have past, the committee could write back to the minister asking for a more complete answer.
Mr. Wappel: We are now, presumably, dealing with a different minister, but the following sentence was not drafted by the minister:
Therefore, more time is required to carefully think through the proposed changes prior to the government being ready to respond to your committee.
That was not drafted by the minister. That is a ludicrous sentence.
This is another case where I do not really know what is going on. This matter has been going on for a long time. It has nothing to do with a particular government; it has to do with the bureaucrats. They are just pushing us off, it seems to me. Again, I do not know what to do. Hence, cases like this, where I do not know what to do, I always fall back to calling upon the officials.
The Joint Chair (Mr. Lee): Does anyone else have any comments?
Mr. Bernhardt: I suppose the one difficulty here is that we are dealing with correspondence from the minister. It may be awkward to ask the minister to send in the officials who ``wrote'' his letter.
Mr. Wappel: I am fine with bringing the minister before us. We have not had a minister here for a while.
Senator Harb: The minister should have the bureaucrat accompany him.
The Joint Chair (Mr. Lee): We have had correspondence with the minister and he has given us a polite reply. He has, quite sincerely, told us that he is doing everything he can and that he is taking the matter seriously. Perhaps in view of the way the next few weeks will unfold here, we could tell the new minister we, too, are taking it seriously and that we need some clarity on this issue.
Senator Moore: We will ask him to appear at next meeting.
Mr. Jaffer: In looking at these particular regulations, it seems to me that a copyright bill is supposed to be coming forth shortly, possibly before the House rises for the winter session. From some of the discussions I had with the minister, the new copyright bill includes this aspect of the exception for educational institutions.
There have been many discussions; this issue has been floating around for seven years. We will finally be able to deal with it, I hope. We may want to wait to hear what this bill will do, as I understand it will be introduced shortly. I do not know what its impact on the current regulations on the books will be, as I am new to this process as well. It may solve the problem that we are concerned about.
Ms. Barnes: There is a maze in that; we are not dealing with legislation we have not seen yet. I would suggest we write to the minister and ask either for an explanation or, if we do not have one by our next meeting, ask for him to appear before us.
Mr. Jaffer: Do you not trust me, Ms. Barnes?
Ms. Barnes: When you are tabling bills, I will look at that, but that is not what this is committee is about. This committee deals with existing regulations. This matter has gone on for years.
The Joint Chair (Mr. Lee): Mr. Jaffer confirms discussions circulating on the back benches for the last couple of days. That may be a solution, but until there is a bill in, there is no bill.
I think we have direction here. Are members agreed?
Hon. Members: Agreed.
SOR/2001-111 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990
(For text of documents, see Appendix D, p. 2D:1)
Ms. Armstrong: Section 61.1 requires calves transported for slaughter to be transported in accordance with the provisions of the recommended code of practice for the care and handling of farm animals. The committee has taken the position that section 61.1, because it seeks to regulate the humane transportation of animals, falls outside the scope of the Meat Inspection Act, which is concerned with the wholesomeness of meat products.
In September 2004, the Canadian Food Inspection Agency agreed to revoke section 61.1. The agency indicated that section 148 of the Health of Animals Regulations would be amended at the same time to provide for the humane transportation of calves. The agency later advised, however, that section 61.1 would not be revoked until the amendments to the Health of Animals Regulations were finalized. The agency further advised that this would be done only after the development of a policy on the humane transport of animals generally.
In June of this year, the committee sought the cooperation of the Minister of Agriculture to ensure that the promised revocation of section 61.1 would proceed without further delay. The committee set out its view that the agency's reasons for retaining section 61.1, pending the development of a broader policy, were insufficient to justify delaying the removal of the unlawful provision.
In his response, the minister states that all efforts will be made to move forward in collaboration with stakeholders as quickly as possible. He does not indicate how long it will take nor does he provide a time frame within which it is expected the amendments will be finalized. In the meantime, the illegal provision remains in force.
The agency recently indicated that amendments to the Health of Animals Regulations had been drafted and would be sent shortly to the Department of Justice for review.
Counsel's recommendation is to write back to the minister seeking a firm assurance that amendments will be made without delay as well as a time table for completion. An assurance should also be sought that, in the meantime, the unlawful provision would not be enforced.
Mr. Epp: I should like to know who it was that came up with the idea that this was unlawful.
Mr. Bernhardt: That is the view of the Standing Joint Committee for the Scrutiny of Regulations as communicated to the Government of Canada.
Mr. Epp: Over what time frame?
Ms. Armstrong: The first time it went to committee was in February 2005.
Mr. Epp: I know about moving cattle and calves. I think the committee may have been wrong at that time. The health of the resulting meat and the slaughter of an animal is closely related to the transportation of those animals, especially in winter. It is very much a health and safety of meat issue.
Mr. Bernhardt: There are two aspects to that. The first is that the committee has taken a view that there is authority for these provisions under a different statute. For example, humane slaughter is dealt with under that other statute as opposed to humane transportation.
We can also infer quite strongly, I believe, that the Canadian Food Inspection Agency, indeed the Government of Canada, agrees with the committee. They have tacitly accepted that they should be transferred, that it is not under the right statute and that they will fix that. They have gone as far as they are likely to go without using the words, ``Yes, we admit it is unlawful,'' in agreeing with the committee.
Hence, what we have here is a situation where the committee has taken the view that something should be revoked and put under a different statute. The government has agreed on that course of action.
We have gone past discussing the merits of the issue; the situation now is simply one of a time frame for completing what the government promised it would do. If the committee wishes to reconsider and advise the government that both sides are wrong, we can all go back to where we were in 2004. That is the committee's prerogative.
Mr. Epp: The issue is, for example, that if you move animals in winter and they are not properly sheltered in the truck or whatever device they are being moved in the meat is not useful if part of the animal freezes. I think it would be the role of the meat inspection agency to say that such and such an animal should not be accepted for processing. That is basically what this says, so perhaps we should reconsider whether we were right.
The Joint Chair (Mr. Lee): Mr. Epp, both our counsel and the department have accepted that there is no legal authority to make this regulation under this statute. There is a policy basis to make such a regulation and to take care of the animals in transport; the department could do it under another statute, but under this one, they are dead in the water. There is no legal basis for claiming they have authority to make this regulation under this statute.
As a result, we could disallow it or the department could revoke it, but it would not make any difference because it is not enforceable. The regulation as drafted now under the statute is not enforceable. Although the department has not gone so far as to actually say that, their agreement with the committee on the principles involved would lead directly to that conclusion.
Your comments are fair enough, that there should be such a regulation, but technically, it cannot be done under this statute. That is what counsel has said, and we are trying to get the department to go ahead and redraft a properly framed regulation. We are just trying to figure out how to get there quicker.
The Joint Chair (Senator Eyton): What is counsel's recommendation?
Ms. Armstrong: The recommendation is to write to the minister again, seeking a timetable and assurance that the provision will not be enforced pending its revocation.
Mr. Epp: I am ready to concede the point on the technicalities. Certainly, I believe what I said to be truthful and accurate.
The Joint Chair (Mr. Lee): Would counsel care to address Mr. Epp's position? Is there any basis on which the department could argue that under the general purpose of the statute involved here it must, or has to, or should or is legally able to adopt this kind of a regulation, or have we gone past that? I am trying to accommodate Mr. Epp's view.
Mr. Bernhardt: What was telling to us when we looked at it is that, under the Health of Animals Act, which is the statute under which the new regulations would be made, there is an express power to make regulations providing for humane transportation of animals. That is a clear indication of where Parliament wanted to go.
Mr. Epp: That is quite aside from the safety of the product at the end, is it?
Mr. Bernhardt: Yes. Therefore, you have another statute that deals with meat inspection that does have that express power. If you did not have the second statute, you might well say there is a connection there. However, when you go to the other statute and it is expressly said that you can make regulations to deal with that under this statute then that is where Parliament intended those regulations to be.
Mr. Epp: Would a meat inspector on site at a plant have the ability to decline to accept an animal into the food chain, based on it not having been transported correctly?
Mr. Bernhardt: On the ground, Mr. Epp, I am guessing it is the same inspector. He is there, he has authority under a variety of agricultural statutes and he is carrying out a variety of duties. It is a question of having this particular requirement put in its proper place in its proper lawful form. Either way, I assume it will be the same Canadian Food Inspection Agency fellow in a white jacket.
Mr. Epp: That could be checked out. We have a reputation in Canada of having the safest beef in the world coming out of Alberta. I feel we would be doing a disservice to our reputation and to all of the people who eat our products if we were not able to disqualify an animal under this particular circumstance.
Mr. Bernhardt: I do not think the change would be any different on the ground. It is simply that what is being done will be on a proper legal footing.
Mr. Epp: In that case, Mr. Chair, I concede my point; let us go on.
Mr. Wappel: On the same subject, I am a little concerned with the last line in the minister's letter, and I wonder if it could be addressed in counsel's letter. The reason I say this is that we have a Meat Inspection Act with regulations that already exist; we have Health of Animals Regulations that already exist. All we are recommending is that the regulation be moved from the one act to the other.
Since both regulations already exist, why is it necessary to have ``in collaboration with stakeholders''? That sounds to me like a signal to delay the matter. What collaboration could there be for regulations already in existence, when we are just asking to move the regulation from one to the other?
Ms. Armstrong: We are asking that the regulation dealing with the humane transportation of calves be moved. They are saying that they will do that at the same time they develop a broad policy on the humane transportation of animals generally. They are consulting on that broader policy.
Mr. Wappel: In the meantime, there already is a policy, because I presume we transport animals humanely now, pursuant to regulations; I certainly hope so. There are already existing regulations. Therefore, all of these discussions should not prevent the transfer of this particular regulation from one act to the other.
Mr. Bernhardt: If I may surmise a bit, I think this is bureaucratic code for the fact that this is a contentious issue in the industry. It was at the time and will continue to be. What is humane and what is not, what will be required and what will not have been matters of some contention between the Canadian Food Inspection Agency and the industry in hashing out what the requirement should be. In their veiled way, it is a reference to the fact that anything they do in this area will be the subject of some friction with the industry.
Mr. Wappel: That is fair enough, but they have already done this — illegal though it may be — so it is already there. To move it someplace to make it legal is just shuffling.
Mr. Bernhardt: In their mind, it may bring attention to the issue again and cause further friction with the industry.
Ms. Barnes: We should be moving forward and restating our case. August 7 was the last letter to the minister and the response came back to us. Let us move forward and get on with our next case, please.
The Joint Chair (Mr. Lee): Counsel, do you know where we are headed here? All agreed?
Hon. Members: Agreed.
SOR/2003-284 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
(For text of documents, see Appendix E, p. 2E:1)
Ms. Armstrong: These amendments to the Canada Grain Regulations repealed section 43(1), which prescribed a period of 90 days for the purpose of section 68.1 of the Canada Grain Act.
The intent was to remove the requirement that an elevator operator automatically provide payment in full to producers for grain after 90 days from delivery. However, the committee has taken the position that section 68.1 of the act must be read as requiring the prescribing of a period.
The committee set out in detail its views in a letter to the minister in February 2007. The minister replied that he remains of the view that there is no requirement to prescribe a time period. However, the minister advised that the committee's concerns would be considered at the same time as amendments to the Canada Grain Act, resulting from a December 2006 report of the House of Commons Standing Committee on Agriculture and Agri-Food. In his most recent letter, the minister said it was his intention to work toward introducing amendments to the Canada Grain Act in the fall of 2007.
Another letter could be sent to the minister requesting an update on progress as well as confirmation that it is still intended that the legislative amendments will address the committee's concern.
The Joint Chair (Mr. Lee): Counsel, can you confirm that no bill has yet been introduced?
Mr. Bernhardt: That is right.
The Joint Chair (Mr. Lee): Colleagues?
Hon. Members: Agreed.
SOR/2004-221 — UNITED NATIONS IRAQ REGULATIONS
(For text of documents, see Appendix F, p. 2F:1)
The Joint Chairman (Mr. Lee): We will now go to reconsideration of the United Nations Iraq regulations.
Mr. Bernhardt: Mr. Chair, when the committee examined these regulations at the last meeting, members wanted to know the exact wording of paragraph 27 of the United Nations Security Council Resolution 1546 (2004) to be able to compare it with the wording of subsection 3(2) of the regulations. The text of paragraph 27 is set out in the note and the entire UNSC resolution is attached.
First, I should point out there is a typographical error in the English version. The second-last line reads ``. . .after 30 June 2004. . .'' and should read ``. . .after 28 June 2004. . . .'' That is a fairly significant error, given the nature of the issue.
Section 3 of these regulations was adopted in order to give effect to paragraph 27. Subsection 3(1) of the regulations states that no attachment may be laid against petroleum originating in Iraq. Section 3(2) of the regulations states that this immunity does not apply in respect of the enforcement of a final judgment arising out of a contractual obligation entered into after June 28, 2004. As the note explains, however, paragraph 27 of the resolution sets the key date as June 30, not June 28.
The department has tried to justify this by pointing out that, in the resolution, the Security Council did not know the exact date on which the interim government of Iraq would assume full authority and added that the expression ``by June 30'' was used several times in the resolution. This is true. However, the point is that based on the plain wording of paragraph 27, the specific provision in question, the Governor-in-Council cannot provide that these immunities do not apply in respect of the date other than the date in the resolution of June 30.
I suggest this matter be pursued in a further letter to the department. In addition, the matter of whether these regulations were applied in respect of judgments arising out of obligations entered into on June 29 and 30 should also be pursued.
Mr. Wappel: Briefly, I believe I asked that this be brought back. I note that, in several places, the resolution uses the phrase ``by 30 June.'' However, they did not use that phrase in section 27 and used ``after 30 June'' instead. I have to assume there is a reason for the different wording. The second report of the joint committee mentions presuming that all words are important, so I agree with the recommendation.
The Joint Chairman (Mr. Lee): Are members agreed?
Hon. Members: Agreed.
SOR/95-233 — SASKATCHEWAN FISHERY REGULATIONS, 1995
(For text of documents, see Appendix G, p. 2G:1)
Ms. Armstrong: Three amendments were promised in January 2000. Two of the proposed amendments were to resolve points of drafting and the other concern was the need to limit the types of conditions that could be specified in a licence by the provincial minister. These amendments were to be included with other amendments to the regulations. Between 2000 and 2006, the department indicated that the amendments were being delayed pending consultation with stakeholders and the submission of a regulatory proposal from the provincial government. However, the department reiterated on several occasions its intention to address the committee's concerns in the next set of amendments.
In November 2006, the department indicated that work on a comprehensive amendment proposal was under way, that the amendments would be promulgated as soon as possible and that the committee's concerns had been noted and would be given careful consideration.
At its meeting on May 17, 2007, the joint committee instructed counsel to request a timetable for completion and to confirm with the department that the committee's concerns would actually be addressed. The department's response is that, while the committee's comments will be taken into account, it cannot advise whether changes recommended by the committee will be adopted. In addition, the department declined to provide a time frame.
Given that it has been nearly eight years since the department first promised to amend the regulations, perhaps the joint chair should write to the minister to ask for his cooperation in ensuring that the promised amendments are made without further delay, regardless of any other changes contemplated.
The Joint Chairman (Mr. Lee): If there is no comment, the joint chair will reconfirm that this is looking like a very old file. The last letter from the department on June 29 makes it feel like the bottom fell out of the file because they have not agreed with all of our positions. Therefore, the letter to the minister should be firm rather than conversational.
Mr. Wappel: If I may, I have a question. Counsel, you mentioned two drafting points and one in respect of the conditions of a licence. Is that similar in any way to the issue before the joint committee when we heard from two separate ministers before this committee, or is this a different issue?
Mr. Bernhardt: This is a different issue and is one of the many fisheries files that give rise to the issue to which you refer. As you know, the joint committee has chosen to pursue that in the context of the Ontario regulations with the understanding that it is a kind of test case.
Senator Moore: In firming up the position of the joint committee, will a time limit be put forward in the letter, such as a cut-off date of 30 days? How do we firm this up if we do not put a time frame around it?
Mr. Bernhardt: We can advise the minister that the joint committee wants it back early in the New Year. I do not have a date.
The Joint Chairman (Mr. Lee): We need a reasonable date. In the context, a 60-day window would likely suffice for the minister and for us. Would that be suitable?
Mr. Wappel: Sure.
Mr. Epp: I have an additional concern. The June 29 letter explicitly states:
. . . I cannot advise you at this time whether changes recommended by the Committee could be fully adopted.
There is almost an underlying element of defiance. In the letter, we should request/demand that we get their commitment to work on this issue and to not say that the changes cannot be fully adopted. We will see how they respond.
Mr. Bernhardt: Part of the problem as well is that regulations dealing with a particular province require a great deal of back and forth discussion with the province. It might be that the province is not interested in rushing to implement changes asked for by some distant committee in Ottawa.
To give the department the benefit of the doubt, perhaps the department needs the province on side and they do not have a particular whip in this case.
Mr. Epp: They could say that.
Mr. Bernhardt: They are probably loathe to admit their powers in this.
The Joint Chairman (Mr. Lee): If it takes seven years for one province, thank goodness we do not have to go to 10 provinces.
Mr. Epp: Would that then take 70 years?
The Joint Chairman (Mr. Lee): That is possible.
SOR/90-264 — MARINE MACHINERY REGULATIONS
(For text of document, see Appendix H, p. 2H:1)
Ms. Armstrong: Forty-six points were raised about the drafting of the regulations. The department advised us that revisions to the regulations were part of their plan to review the regulations in the light of the coming into force of the Canada Shipping Act, 2001. The department said that this review would take the comments from legal counsel under consideration. In its letter of May 17, 2007, the department indicated that the review of the regulations, including the amendments proposed by the committee, should be complete in 2009.
Since the amendments were to the drafting, counsel's recommendation is to accept the department's reply. If the committee is in agreement, counsel will monitor the progress and keep the committee up-to-date in the usual fashion.
Senator Moore: Do we expect the regulations to be completed by 2009?
The Joint Chair (Mr. Lee): Yes, senator, we expect it to be completed by 2009, and we can be thankful for that clarity.
Senator Moore: Can this be considered a normal time frame or are we moving at their pace?
Mr. Bernhardt: They are doing a complete rewrite of the regulations as a result of the new Canada Shipping Act. We have a great number of amendments with issues of drafting and clarification, rather than substantive legal issues, and we have brought the file along under ``Progress (?).'' The matter seems to be moving forward, albeit not quickly but with a time frame. The committee's concerns are of a technical drafting nature so perhaps patience is warranted. As always, counsel is in the hands of the joint committee.
Senator Moore: I find it extraordinary that it would take that length of time to sit down with the lawyers to tidy up some drafting. If counsel considers that a normal time frame, then that is fair enough.
Mr. Bernhardt: It is not for me to comment on the work speed of the Department of Justice.
The Joint Chair (Mr. Lee): Most of us are thankful for the clarity of a calendar year on this file.
Are members agreed?
Hon. Members: Agreed.
SOR/98-159 — MOTOR VEHICLE RESTRAINT SYSTEMS AND BOOSTER CUSHIONS SAFETY REGULATIONS
SOR/98-160 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (RESTRAINT SYSTEMS CONSEQUENTIAL AMENDMENTS)
(For text of documents, see Appendix I, p. 2I:1)
Mr. Bernhardt: Members have a fairly detailed note on these regulations before them this morning. As the note explains, together with the enactment some time ago of a new Motor Vehicle Safety Act, the new regulations resolve a concern of the committee.
These regulations re-enact provisions for which there had been no authority previously. They also take action on two points of drafting. The new regulations then gave rise to 25 matters. These are set out in counsel's January 3, 2007, letter. In the March 30 reply, the Department of Transport agrees to make amendments to address the majority of these matters. The ones on which actions have been promised are enumerated in the note.
In addition, the reply indicates that the wording of certain provisions will be reviewed with a view to clarifying their intent. These amendments were expected to be completed in the fall of 2007. They have yet to be made, so a progress report would seem to be in order.
I suggest that the department's reply as it relates to points 7 and 17 can be considered satisfactory. On points 11 and 12, in which very minor amendments to clarify some wording were suggested, while the department does not agree, I am not sure these matters would be so significant as to require them being pursued further. That leaves points 8, 9, 13, 14 and 15 as being unsatisfactory. I suggest these five points be pursued in a further letter to the department. The note gives full explanations on each of those. I can summarize them if members wish.
The Joint Chair (Mr. Lee): That is up to Senator Moore.
Senator Moore: Will it take until 2009?
The Joint Chair (Mr. Lee): I am interested in the definition of booster cushions; however, if we are okay with counsel's suggestions, we may continue.
Mr. Bernhardt: We would simply pursue those points as detailed in the note.
The Joint Chair (Mr. Lee): Are we agreed?
Hon. Members: Agreed.
SOR/2003-3 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS
(For text of documents, see Appendix J, p. 2J:1)
Mr. Bernhardt: Mr. Chair, the department's response deals with two files; only the first of these is before the committee this morning. Unfortunately, all of the promised amendments concern the other file. Hence, I suppose SOR/ 2003-3 should have been placed under the heading ``Reply Unsatisfactory.''
Paragraph 36(5)(f) of the Fisheries Act authorizes the making of regulations prescribing the persons who may authorize the deposit of deleterious substances in the absence of any other authority. For Quebec, Saskatchewan and Alberta, the relevant items in the schedule to the regulations state that a given official of the provincial government will be the authorization officer if there is a written agreement in effect between the government of Canada and the province and if the Minister has notified all operators in the province of the agreement. If there is no such agreement, or if notice of an agreement is not given to all operators, the Regional Director, Environmental Protection, Department of Environment, will be the authorization officer.
Therefore, the actual identity of this officer depends on whether the federal government and the province have an agreement and whether the federal government has given notice of the agreement. The committee has concluded this does not prescribe authorization officers.
As counsel's February 19 letter argued, what has been prescribed is a rule for determining who will be the officer. What the act requires is that the identity of the officer be authoritatively set down in the regulations. This is not the case where the determining factor is the exercise of discretion of other persons and bodies.
The department has replied that it is sufficient that the identity of the officer will be known at any given time and that the authority to determine who the officer is has not been sub-delegated. The question has never been one of sub- delegation, however. It is simply what the wording of the enabling provision in the act requires. Nor is it sufficient that people can find out who the officer is. By requiring that the officer be prescribed in the regulations, Parliament has determined that this must be ascertainable from the regulations themselves and not left to be determined on the basis of some future action that may or may not be taken by other people.
I suggest that, if the committee remains unconvinced by the department's reasoning, a letter should go to the minister seeking his reconsideration.
The Joint Chair (Mr. Lee): Are there any comments?
Counsel, I was a little concerned that we were being a bit too exacting in our interpretation. On the other end, I recognize the lack of clarity as to who the designated person is. I suppose it is for the department and not me to make those arguments. I will go with our counsel's view.
Are members agreed?
Hon. Members: Agreed.
SOR/95-26 — SPECIAL IMPORT MEASURES REGULATIONS, AMENDMENT
SOR/2000-138 — REGULATIONS AMENDING THE SPECIAL IMPORT MEASURES REGULATIONS
(For text of documents, see Appendix K, p. 2K:1)
Mr. Bernhardt: What is of concern here are provisions that permit the commissioner of Customs and Revenue to take into account any factors relevant to the circumstances when he makes certain determinations. Again, the committee has concluded that this cannot be said to prescribe the factors to be taken into account as required by the enabling statute. To simply provide that every factor that may be considered can be considered amounts to prescribing nothing at all.
The department first proposed to amend the regulations to provide that all relevant factors could be considered, but the committee advised, in turn, that it did not see how this made any difference.
The department is now proposing to state that any factors pertaining to the current or likely behaviour or state of the domestic, foreign or international industry market or economy may be considered. This is still very broad, but it would put in place some parameters and it may be that it would be impossible to be any more precise.
Two other suggested amendments have also been accepted.
If members are in agreement, the department could be informed that the proposed course of action is acceptable and a forecast time frame for completing this action could be requested at the same time.
The Joint Chair (Mr. Lee): That is the kind of flexibility I was looking for in the last file.
Are members agreed?
Hon. Members: Agreed.
SOR/2001-101 — COST OF BORROWING (BANKS) REGULATIONS
SOR/2001-102 — COST OF BORROWING (CANADIAN INSURANCE COMPANIES) REGULATIONS
SOR/2001-103 — COST OF BORROWING (FOREIGN INSURANCE COMPANIES) REGULATIONS
SOR/2001-104 — COST OF BORROWING (TRUST AND LOAN COMPANIES) REGULATIONS
(For text of documents, see Appendix L, p. 2L:1)
Ms. Armstrong: Mr. Chair, counsel initially raised 11 points concerning the drafting of these regulations. These were discussed at the committee's meeting of June 15, 2006. Amendments were promised on five points and the department provided a satisfactory response on five other points.
The only outstanding matter is the question of why the regulations provide that written consent is necessary for receiving a disclosure statement by electronic means while written consent is not required in the case of a fax machine transmission.
The department said that it was reviewing this in the context of the broader issue of the treatment of electronic communications in financial institutions legislation in general. The department's most recent letter indicates that the committee's concerns will be resolved through the implementation of a legislative framework governing the communication of electronic documents put forth in amendments to regulations as well as the provisions of Bill C-57, An Act to amend certain Acts in relation to financial institutions. Bill C-57 received Royal Assent on November 25, 2005, but the provisions dealing with electronic documents have not yet been proclaimed into force.
With respect to the other promised amendments, the department hopes to be in a position to recommend the amendments later this year. Their letter explains that they recently undertook a periodic review of financial institutions legislation and regulations, including the Cost of Borrowing Regulations.
Regulatory amendments were to be made once Bill C-37, an act to amend the law governing financial institutions, received Royal Assent. The bill received Royal Assent on March 29, 2007. Therefore, a letter should be sent to the department requesting an update on the proposed amendments and following up on the proposed framework for electronic documents.
The Joint Chair (Mr. Lee): Any comment?
Hon. Members: Agreed.
SOR/2002-162 — GUIDELINES RESPECTING CONTROL IN FACT FOR THE PURPOSE OF SUBSECTION 407.2(1) OF THE INSURANCE COMPANIES ACT
SOR/2002-163 — GUIDELINES RESPECTING CONTROL IN FACT FOR THE PURPOSE OF SUBSECTION 377(1) OF THE BANK ACT
(For text of documents, see Appendix M, p. 2M:1)
Mr. Bernhardt: Each of these instruments uses the term ``significant subsidiary'' and the term ``significant dependency'' in connection with when banks or insurance companies are considered to have control of a subsidiary or be in a position of dependence on another person. The department was asked to explain the meaning of these terms and it was suggested that definitions should be included in the instruments.
The initial reply was that there was no need to define the terms because they were intended to be understood in their ordinary meaning. When asked to elaborate on what the ordinary meaning was, the department advised that something is significant if it is important. The committee did not find this particularly helpful and then asked for a proper and complete explanation of the analysis that is undertaken and the guidelines and criteria that are applied to determine whether, in a particular instance, a subsidiary or a dependency is significant.
The latest reply is to the effect that there are no administrative guidelines because it was decided to base the formal guidelines we have here on the recognition that the criteria to be taken into account will vary from case to case. The department, however, does propose to delete the word ``significant'' if that would address the committee's concern.
The term ``subsidiary'' on its own is defined in both the Bank Act and the Insurance Companies Act, so that would resolve that aspect of the problem. The only question then is whether the term ``dependency'' on its own is sufficiently clear. At the very least, we would not have to deal with the question of whether it was a significant dependency.
On the other hand, given that ``subsidiary'' is defined, we could suggest that ``dependency'' should also be defined, even if the word ``significant'' is deleted. I suggest the department be advised of this suggestion.
The Joint Chair (Mr. Lee): I am seeing nodding heads. Are we agreed?
Hon. Members: Agreed.
SOR/2006-236 — CANADA DEPOSIT INSURANCE CORPORATION APPLICATION FOR DEPOSIT INSURANCE BY-LAW
(For text of documents, see Appendix N, p. 2N:1)
Ms. Armstrong: This instrument was considered at the committee's meeting of March 22, 2007. Counsel was instructed to request clarification from the CDIC on one point, respecting the use of the term ``affiliate'' in relation to applicants for deposit insurance.
CDIC's June 12 reply provides the requested explanation of the difference between the usual and ordinary meaning of the term and the statutory definition in the act, as well as an explanation of why the regulations require an applicant for deposit insurance to adhere to the usual and ordinary meaning of the term.
Counsel suggests that CDIC's response is satisfactory. If the committee agrees, this file can be closed.
The Joint Chair (Mr. Lee): Good for you, good for them. All agreed?
Hon. Members: Agreed.
SOR/2006-245 — SHORT-TERM POOLED INVESTMENT FUND REGULATIONS
(For text of document, see Appendix O, p. 2O:1)
The Joint Chair (Mr. Lee): Let us now review SOR/2006-245
Mrs Armstrong : Legal counsel pointed out the recommendation that preceded the regulations does not mention that the minister consulted the First Nations' financial administration before recommending that the Governor-in- Council make the regulations. This consultation is required by section 89(a) of the act. The summary of the impact study on the regulations, however, indicates that, in actual fact, the consultation did take place. This should have been mentioned in the recommendation. The department has confirmed that the consultation will be mentioned for any regulation under section 89(a) in future. If the committee in is agreement, the file can be closed.
The Joint Chair (Mr. Lee): Are we satisfied? Yes, we are. Agreed?
Hon. Members: Agreed.
NATIONAL FARM PRODUCTS COUNCIL GUIDELINES FOR COMPLAINTS
(For text of documents, see Appendix P, p. 2P:1)
Mr. Bernhardt: The National Farm Products Council developed and implemented guidelines for dealing with complaints made pursuant to the Farm Products Agencies Act. In fact, however, these so-called guidelines appeared to be mandatory.
In the course of exchanging correspondence, it became clear that the issue had to do with the status of these guidelines under the Statutory Instruments Act and whether they are required to be examined, registered and published.
Eventually, the council adopted the position that the guidelines ``were only an informational document to assist parties in understanding the best current practices in use for raising issues.'' The problem was that the guidelines did not at all read like an informational document, but rather like rules.
Eventually, the council agreed to review the drafting of these guidelines; members have the new ones before them this morning. I draw members' attention to the disclaimer in the third paragraph of the ``purpose'' section. On page 2 of the guidelines, it states that they are for informational purposes only and are not part of the formal rules.
As well, some of the mandatory language has been modified throughout the guidelines, for example, by replacing ``shall'' with ``should.'' If members are satisfied this makes the nature of the guidelines sufficiently clear, the file can be closed.
Mr. Wappel: It seems to me that what we requested was done. I was confused as to why it was under the rubric ``Reply Satisfactory (?)'' as opposed to ``Reply Satisfactory,'' since it seemed they had done everything.
As long as I have the mike, on a sort of semi-point of order — and I have talked about this before — I am wondering why something that is a ``Reply Satisfactory (?)'' would not be immediately following, for example, ``Reply Unsatisfactory (?).''
Here it is almost 10 o'clock and we are getting to a situation where there might be a question as to whether it is satisfactory. I am wondering if it would be possible to have our agenda in such a manner — and I see that it is usually this way, ``Special Agenda Items, followed by ``Letters to and from Ministers,'' followed by ``Reconsideration'' — that we go right into ``Reply Unsatisfactory,'' then ``Reply Unsatisfactory (?)'', then ``Reply Satisfactory ?'' and ``Reply Unsatisfactory (?)'' — get those out of the way in the first hour and then go to ``Part Action Promised'' et cetera.
Mr. Bernhardt: It has probably been done historically because it is tied to ``satisfactory.'' I have no problem altering that.
As far as the time goes, I put together the agenda and make my best guess as to how much we can get through. If I overload the committee, that is my fault and I take the blame for piling on.
Mr. Wappel: Why the question mark, though?
Mr. Bernhardt: Given the nature of the concern, given we had a new document, our leaning was that it was satisfactory but we wanted the committee to have the opportunity to make a more conclusive judgement on that.
The Joint Chair (Mr. Lee): All agreed?
Hon. Members: Agreed.
SOR/77-595 — COUNTING OF SERVICE BY FORMER MEMBERS OF THE SENATE OR HOUSE OF COMMONS REGULATIONS, NO. 2
(For text of documents, see Appendix Q, p. 2Q:1)
Mr. Bernhardt: The committee's concerns here relate to provisions dealing with medical examinations. There are a number of provisions for which there is no authority, and many matters are dealt with in administrative documents, such as forms, which ought to be the subject of the regulations.
Similar concerns were raised in connection with other parallel regulations made under the Public Service Superannuation Act generally. However, these concerns were remedied a number of years ago, leaving only these regulations.
As can be seen from the correspondence, progress on the file has been nonexistent. Most recently, the RCMP cites resource constraints and conveys the hope that there will be more to report in the coming months.
On the other hand, it seems there has never been a case that required these regulations to be applied. They would apply only in the case where a former senator or member of the House of Commons joins the RCMP. For that reason, it might be acceptable simply to write again in the hope that something concrete can be reported.
The Joint Chair (Mr. Lee): Are these numbers correct? Have we have been carrying this file for 30 years?
Mr. Bernhardt: Yes, and in 30 years, they have never been used. They are on the books because they would apply where someone leaves the Senate or the House of Commons to go to the RCMP. That has never happened in 30 years.
Mr. Wappel: I am not running for election again; one of the things I am considering is joining the Mounties. Perhaps we could get this finished before I do that.
The Joint Chair (Mr. Lee): Mr. Epp wants to join now, too.
Mr. Epp: I was thinking the same thing but I was told they have some sort of a fitness requirement.
Mr. Bernhardt: We are dealing with medical exams.
The Joint Chair (Mr. Lee): I must recognize Constable Epp for the next comment. Counsel, you are doing a fine job on that, and try to wrap that up.
Mr. Epp: Sometime in the next 30 years.
The Joint Chair (Mr. Lee): Now we are into the wrap-up, counsel, with the summary of the work completed.
SOR/2001-219 — NORTHWEST TERRITORIES ARCHAEOLOGICAL SITES REGULATIONS
SOR/2001-220 — NUNAVUT ARCHAEOLOGICAL AND PALAEONTOLOGICAL SITES REGULATIONS
(For text of documents, see Appendix R, p. 2R:1)
SOR/2006-91 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1014 — WINE STANDARD)
(For text of documents, see Appendix S, p. 2S:1)
SOR/2006-261 — PEST CONTROL PRODUCTS SALES INFORMATION REPORTING REGULATIONS
(For text of documents, see Appendix T, p. 2T:1)
Mr. Bernhardt: Given the time, I propose to follow our usual practice and deal with these three headings as three separate groups.
Under ``Action Promised,'' there are four files this morning in connection with which 10 amendments have been promised. Progress on these will be followed up in the usual fashion.
SOR/77-1117 — AIR REGULATIONS, AMENDMENT
SOR/78-473 — AIR REGULATIONS, AMENDMENT
(For text of documents, see Appendix U, p. 2U:1)
SOR/2007-110 — REGULATIONS REPEALING CERTAIN REGULATIONS MADE UNDER THE PLANT PROTECTION ACT
(For text of documents, see Appendix V, p. 2V:1)
SOR/78-473 — AIR REGULATIONS, AMENDMENT
(For text of document, see Appendix W, p. 2W:1)
SOR/2007-165 — REPEALING ORDER IN COUNCIL P.C. 2004-876 AND MAKING DIRECTION APPLYING THE AUDITOR GENERAL ACT SUSTAINABLE DEVELOPMENT STRATEGY REQUIREMENTS TO CERTAIN DEPARTMENT
(For text of document, see Appendix X, p. 2X:1)
SOR/2007-208 — REGULATIONS AMENDING CERTAIN INSTRUMENTS MADE UNDER THE NUCLEAR SAFETY AND CONTROL ACT (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix Y, p. 2Y:1)
Mr. Bernhardt: Under ``Action Taken,'' there are six instruments that make 43 corrections that were promised to the committee. As well, SOR/2007-110 repeals the Ash-free Zone Regulations in respect of which several points had been raised, while the revocation and replacement of the Air Regulations by the Canadian Aviation Regulations means that two files, SOR/77-1117 and SOR/78-473, can be closed.
Finally, SOR/2007-165 remakes a regulation that initially had been enacted by the wrong authority.
Lastly, under the heading ``Statutory Instruments Without Comment,'' we have 24 instruments listed that have been reviewed and found to comply with all the committee's criteria.
SI/2007-37 — CITIZENSHIP FEES REMISSION ORDER
SI/2007-40 — ORDER AMENDING THE ORDER AWARDING OF A BAR ``ALLIED FORCE'' TO THE GENERAL SERVICE MEDAL (AVIANO AND VICENZA, ITALY)
SI/2007-41 — NON-ARTICLE 5 NORTH ATLANTIC TREATY ORGANIZATION (NATO) MEDAL FOR NATO LOGISTICAL SUPPORT TO THE AFRICAN UNION MISSION IN SUDAN (AMIS) ORDER
SI/2007-42 — UNITED NATIONS MISSION IN SUDAN (UNMIS) MEDAL ORDER
SI/2007-48 — ORDER AMENDING THE JUDGES ACT (REMOVAL ALLOWANCE) ORDER
SI/2007-49 — ORDER FIXING APRIL 20, 2007 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN PROVISIONS OF THE ACT
SI/2007-61 — PRINCE ALBERT NATIONAL PARK OF CANADA LAND RENTS REMISSION ORDER
SI/2007-63 — ORDER SELECTING AN APPROACH FOR THE LONG-TERM MANAGEMENT OF NUCLEAR FUEL WASTE
SI/2007-64 — ORDER FIXING JUNE 30, 2007 AND JUNE 23, 2008 AS THE DATES OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT
SI/2007-67 — ORDER FIXING DECEMBER 1, 2007 AS THE DATE OF THE COMING INTO FORCE OF SECTION 8 OF THE ACT
SI/2007-73 — VF IMAGEWEAR, INC. REMISSION ORDER
SI/2007-74 — HORST SCHENK REMISSION ORDER
SI/2007-75 — ORDER FIXING JULY 9, 2007 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT
SI/2007-76 — PROCLAMATION DESIGNATING THE ``FIRE PREVENTION WEEK''
SI/2007-79 — ORDER FIXING AUGUST 3, 2007 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT
SOR/90-738 — IMMIGRATION APPEAL DIVISION RULES
SOR/92-415 — ABORIGINAL FISHERIES AGREEMENTS REGULATIONS
SOR/92-435 — GENUINE GUN COLLECTOR REGULATIONS
SOR/93-464 — PEST CONTROL PRODUCTS REGULATIONS, AMENDMENT
SOR/94-185 — CANADA BUSINESS CORPORATIONS REGULATIONS, AMENDMENT
SOR/95-407 — CANADA BUSINESS CORPORATIONS REGULATIONS, AMENDMENT
SOR/98-273 — REGULATIONS AMENDING THE CANADA BUSINESS CORPORATIONS REGULATIONS
SOR/2003-230 — REGULATIONS AMENDING THE RETIREMENT COMPENSATION ARRANGEMENTS REGULATIONS, NO. 1
SOR/2004-201 — REGULATIONS AMENDING THE RAILWAY INTERSWITCHING REGULATIONS
The Joint Chair (Mr. Lee): That is a truckload of work. Are there any comments from members? Are we agreed with all this progress?
Hon. Members: Agreed.
The Joint Chair (Mr. Lee): Thank you, members. We have completed the agenda, which was a thick one.
The committee adjourned.