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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 9 - Evidence, October 8, 2009

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OTTAWA, Thursday, October 8, 2009

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:37 a.m. for the election of the Joint Chairs (House of Commons and Senate); and for the review of statutory instruments.

[English]

Marcy Zlotnick, Joint Clerk of the Committee: Good morning honourable senators and members of the House of Commons.

With the retirement of Senator Eyton, the position of the joint chair for the Senate is vacant. As clerk of your committee for the Senate, it is my duty to preside over the election of the Senate joint chair. I am ready to receive a motion to that effect. Are there any nominations?

Mr. Dreeshen: I nominate Senator John Wallace.

Ms. Zlotnick: It is moved by Mr. Dreeshen that the Honourable Senator Wallace do take the joint chair for the Senate of this committee.

Is it your pleasure, honourable members, to adopt the motion?

Hon. Members: Agreed.

Ms. Zlotnick: I declare the motion carried.

Senator Wallace, will you take the chair?

The Joint Chair (Senator Wallace): I had one campaign experience that was not as successful, so I am relishing this moment.

Ms. Zlotnick: I now turn the proceedings over to my colleague from the House of Commons.

[Translation]

Bonnie Charron, Joint Clerk of the Committee: We can now proceed with the election of the joint chair from the House of Commons.

[English]

Pursuant to standing order 106(2), the joint chair acting on behalf of the House of Commons must be a member of the official opposition. I am now ready to receive motions to that effect.

Mr. Szabo: I nominate Andrew Kania.

Ms. Charron: Mr. Szabo has moved that Andrew Kania be elected joint chair of the committee. Are there any other nominations?

Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Ms. Charron: I declare the motion carried and Mr. Kania duly elected as joint chair of the committee.

Before inviting Mr. Kania to take the chair, we will proceed to the election of the vice-chairs. Pursuant to standing order 106(2), the first vice-chair must be a member of the government party.

[Translation]

I am now prepared to receive motions to elect the first vice-chair.

[English]

Mr. Saxton: I nominate Royal Galipeau.

Ms. Charron: It is been moved by Mr. Saxton that Mr. Galipeau be elected as first vice-chair of the committee in absentia.

Are there any further motions? Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Ms. Charron: I declare the motion carried.

Mr. Galipeau: I was in a prayer meeting hoping this would not happen.

Ms. Charron: I declare Mr. Galipeau duly elected first vice-chair of the committee.

[Translation]

Pursuant to Standing Order 106(2), the second vice-chair must be a member of an opposition party other than the official opposition.

[English]

I am ready to receive motions to that effect.

[Translation]

Mr. Asselin: I would like to nominate Brian Masse, a member of the NDP.

The Joint Clerk (Ms. Charron): It is moved that Mr. Masse be elected second vice-chair of the committee.

[English]

Are there any further motions? Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

[Translation]

The Joint Clerk (Ms. Charron): I declare the motion carried and Mr. Masse duly elected second vice-chair of the committee.

[English]

I now invite Mr. Kania to take the chair.

Senator John D. Wallace and Mr. Andrew Kania (Joint Chairs) in the chair.

The Joint Chair (Mr. Kania): Thank you very much and good morning. For those who are new to the committee, welcome. I will say something similar to what we said when we started.

This committee is a non-partisan committee. We do not have questioning by party. Everyone contributes. We act in a collegial manner because of the nature of this particular committee.

Senator Wallace and I meet on our own. We were in Australia together. We get along, I would say, quite well. This committee is important in terms of the functioning of Parliament, and that is the way we keep this committee.

The Joint Chair (Senator Wallace): I am pleased and honoured to have this opportunity. I am — as many of you who have been on the committee know — one of the new 18 that arrived earlier in the year. I am relatively new to the committee. I have been thoroughly impressed with the quality of the technical assistance that we have. We have brilliant people and we are fortunate to have that assistance.

As a committee member, there will times that committee members — with all the pressures we have — may be tempted not to spend the time in examining these documents because we have such confidence in our technical advice. I encourage everyone — including myself — to take the time to prepare for each of the issues that come up and to contribute as we can.

When I listened to some of the comments around the table, one of the problems — it has been an historical one — seems to be delays in receiving responses and moving items along. This delay is not the result of any lack of effort by General Counsel Peter Bernhardt and his team. The joint chair and I have talked about this problem. It might be wise for us to take a meeting in the near future — if not a whole meeting, at least part of one — to talk about practical ways we might knock down some of those log jams that exist. Each of us has abilities to get things done outside of this room. We represent parties. We may be able to look at practical ways to move things ahead in a more effective way rather than simply relying upon technical procedures.

There are probably a lot of thoughts. It would be interesting to hear them, especially from those who have been on this committee for many years. What can we do to move this issue forward and to spend as little time as possible dealing with problems?

Thank you and I look forward to working with all of you.

The Joint Chair (Mr. Kania): Today, the only thing that was permitted to be put on the notice of meeting was election of chairs. We have distributed all the material. If we have unanimous consent, we can proceed with the agenda and go through the material. Without unanimous consent, we adjourn to the next meeting. I do not want to put anyone on the spot because we did not put this material on the schedule. May we have discussion?

Mr. Lee: I give my consent. I hope there is unanimous consent.

Where did the advice come from that somehow the notice of meeting would have been ineffective, that the planned agenda might have been nugatory and the inference that at some point this committee was out of commission? Can you advise where the advice came from that causes me to infer at some point the committee ceased to exist, and the chair ceased to be the chair?

The Joint Chair (Mr. Kania): This situation applied to the other committee that I am on as well. I was advised of the standing order that requires the election of chairs. We are not allowed to set an agenda until we have the chairs of each committee. This rule was not something peculiar to this committee; I understand this situation happens with all committees.

Mr. Lee: Do you have anything concrete for me at this time?

The Joint Chair (Mr. Kania): I am on the Standing Committee on Public Safety and National Security, and we went through this same procedure.

Mr. Lee: They must be right. In any event, I understand.

Some members may wonder where I am coming from on this matter. I have been a continuing objector to the interpretation of our standing orders. The rules clearly say that committees continue from session to session. If the report, as filed in the house, terminated your chairmanship, it took you off the committee. That is fine.

However, nowhere in the rules does it say that the committee ceased to function for even a scintilla juris. At no point did your chairmanship cease for even a scintilla juris. Every function that you carried out as committee chair over the last many weeks or months were valid, subsisting and the notice of meeting we have here is a notice of meeting.

There may be an argument on this committee that the absence of a Senate chair might have impaired our continuity. I am not sure about that. However, in any event, I will stop now. I would like to see unanimous consent, and get on with the meeting.

Some Hon. Members: Question.

The Joint Chair (Mr. Kania): Does anyone object to proceeding with our sitting?

Some Hon. Members: No.

The Joint Chair (Mr. Kania): Good: We will start with Special Agenda Items.

REPORT TO THE COMMITTEE ON THE AUSTRALIA - NEW ZEALAND SCRUTINY OF REGULATIONS CONFERENCE OF JULY 2009

(For text of documents, see Appendix A, p. 9A:1.)

Peter Bernhardt, General Counsel to the Committee: Thank you chair. As members know, in July, the joint chairs, Serge Ménard from the Bloc Québécois, and I attended the Australia-New Zealand Scrutiny of Legislation Conference in Canberra. The report that members have before them includes two papers that were presented on behalf of the committee, as well as the conference program. We have also given a web link to all the conference papers, although they have not been reproduced here. The papers reflect a considerable range of issues.

The report that has been prepared also discusses several aspects of the work of other scrutiny committees represented at the conference that were thought to be of particular interest. These aspects include the way in which work is organized, in particular with respect to dealing with outstanding replies and undertakings, scrutiny of bills committees and, finally, the present debate in Australia over the possible adoption of a bill or a charter of rights.

In particular, I draw members' attention to the paper on the use of incorporation by reference in federal delegated legislation that was prepared for the conference and presented by the joint chair. In view of the fact the Minister of Justice has indicated a bill will be introduced to resolve the impasse between this committee and the department on the issue, and to clarify principles governing the use of incorporation by reference in federal regulations, the issues that were discussed and identified in that paper might possibly be a starting point for a discussion of the form that any such legislation ought to take. The committee might consider providing the minister with comments along the lines of the comments made in that paper, or perhaps incorporating some of this material into a formal report, assuming, of course, that the committee is in agreement with the views expressed.

In general, I think everyone who attended the conference found it to be worthwhile, and it was a good opportunity to learn from the experiences of other scrutiny committees, as well as to share this committee's expertise.

The Joint Chair (Mr. Kania): At some point in time, this report will have to be tabled. Does anyone have any comments with respect to the contents of this report?

[Translation]

Senator Hervieux-Payette: I will refer to the French version, because it is easier this morning. One paragraph states: ``Obviously, the Canadian Parliament has no equivalent to a scrutiny of bills committee.'' Does that mean that Canada lags behind Australia, New Zealand and the United Kingdom?

A little further on, it says: ``That is not to say that there might not be other alternate mechanisms to foster a greater scrutiny of provisions in bills that delegate powers to the executive.''

My question is this: What sort of follow-up and scrutiny should we give this issue? I do not know whether we lag behind either, but the fact remains that, if the provisions were more rigorous when the bill was being drafted, our committee might have less work to do. That is how I see it; we should take a preventative approach, rather than delay things and use the disallowance section.

So I am asking which mechanism should our committee—and I endorse the scrutiny option—apply in order to reach a solution? I also mention this because, when the House of Commons passes a bill, which can be 500 pages long, in one day, mistakes can happen. It is then up to the Senate to fix those mistakes and send the bill back to the House of Commons.

I think that, from a preventative perspective, there may be a mechanism that we should look at, and we might need to ask our counsel. I do not know which mechanism it is. I wonder if Senator Wallace, who went on the trip, knows what type of committee could study this; what mechanism is used so that bills do not give rise to inconsistencies in regulations?

[English]

The Joint Chair (Senator Wallace): That question is an interesting one. In part, I made my earlier comments about the need to look at what lessons we have learned in my brief time on the committee and, in part, going to this conference, and what experiences you and others who have been here for many years would have, I think you are right. With a lot of these reports and conferences, it is easy to go and come back with a lot of interesting information, but then it is on the shelf and not followed up.

Regarding your point about scrutiny of bills and what might be done to streamline that process, we heard that, in Australia, they have scrutiny of bills committees. I cannot begin to describe this work in any detail but, to a large extent, it seems in many ways that the work the committees perform presently is the same work that is done here by many other committees. I can speak in reference to the Senate, such as some of the Senate committee work that is done, in particular with the Standing Senate Committee on Legal and Constitutional Affairs.

Australia's scrutiny of bills committee seems to focus fundamentally on charter of rights issues, ensuring that civil rights and liberties are not violated with particular legislation. The committee seems to be rather narrow in its approach. That said, I do not think any of us want to layer more bureaucracy and create duplicate work by adding potentially another committee, in addition to the Senate and House of Commons committees that already exist.

What do we do with all this information? I strongly recommend that we have a focused discussion on that issue. It relates to streamlining and making more effective the work we perform, and not always relying simply on Mr. Bernhardt and his team to deal with the item in the purely formal sense that exists today.

I would say follow-up is required, and a focused meeting is in order.

Senator Hervieux-Payette: May I suggest that different avenues can be developed, so that we discuss, not only from our own imagination, but that we see exactly what is being done and what we approve of as logical and practical for us within our institution. Every piece of legislation or regulation that is not correct for citizens can cost millions of dollars before the courts. As lawyers, we know that fact. I am talking about being efficient here but also being efficient for the people that we represent.

As far as I am concerned, we should examine this question and also have two or three options in terms of the way we address this question.

The Joint Chair (Senator Wallace): To your point, senator, we each have our own thoughts from our own backgrounds on these topics. However, as you say, it will be helpful to have the thought process from any jurisdiction — Australia is one, but there may be others — that has gone through the same thought process. I am sure other jurisdictions have gone through the process. I agree to having that background information. I think what you are saying makes sense.

Senator Hervieux-Payette: I suggest that, maybe, in a month or six weeks, we receive something to outline the various options. Then, of course, we have a meeting on this issue because it is complementary. However, if it is done properly, I would say that this meeting would probably diminish the load of this committee.

The Joint Chair (Mr. Kania): Senator Wallace and I met to go through this report. During the meeting, we came to the conclusion that it was probably better not to have this report as a recommendation report, but rather a report of summary of what occurred there. We agreed to meet subsequently to put forward ideas to the committee so that we can all discuss the report fully. Then we, as a committee, can make recommendations in terms of what was learned and what can be changed with this process in a subsequent report.

Rather than simply making quick recommendations, we thought it would be better to take a little more time.

Senator Hervieux-Payette: I totally agree with that. I am sure other people here reading your report find it of use. I think this section, especially, is fundamental.

Mr. Masse: There is a report. Often there are trips without reports.

I want to ask staff to examine House of Commons bills that have either restricted or changed the way this committee operates in terms of regulations, and to see whether there has been a difference in the past. I think that information would be helpful to this committee.

Mr. Bernhardt: Are you thinking about bills, for example, that take away from the committee's jurisdiction, such as exclusions from statutory instruments?

Mr. Masse: That is exactly it. It would be good to have analysis, and to give examples of those bills and how they affect the committee. We need to understand that situation: if the relationship is changing with legislation being proposed and how the change affects this committee. We need to be aware of that situation to make our own decisions about how we deal with it.

The Joint Chair (Mr. Kania): Are there any comments on the report?

Is there a motion to table it?

Some Hon. Members: So moved.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

GOVERNMENT RESPONSE TO THE SECOND REPORT (REPORT NO. 83)

BY-LAWS UNDER THE INDIAN ACT

(For text of documents, see Appendix B, p. 9B:1.)

Mr. Bernhardt: Report No. 83 drew the attention of the houses to certain outstanding issues in connection with the exercise of bylaw-making powers by First Nations bands, pursuant to the Indian Act. These issues were first raised by the committee in a report in 1987. At that time, the committee recommended that bylaws passed by elected band councils be excluded from the application of the Statutory Instruments Act. However, the committee also expressed concern that these bylaws be accessible to those affected by them, and recommended that the Indian Act be amended to prescribe appropriate publication and access requirements.

At the time, the government accepted the committee's recommendations but it acted only on the exemption from examination, registration and publication, pursuant to the Statutory Instruments Act. The result of this action being taken on its own is that there is no legislative framework to ensure that bylaws made by band councils are made known to those to whom they apply.

The committee has continued to seek the implementation of the other recommendations in that first report, and there have been a number of bills introduced that, to some extent, would have implemented the commitments given to the committee. Unfortunately, for various reasons, none of these bills passed.

In the government response to Report No. 83, the government now expresses a view that no amendments are required. It relies on subsection 11(2) of the Statutory Instruments Act as providing a sufficient safeguard. Subsection 11(2) says that no person can be convicted for a violation of a regulation that was not published in the Canada Gazette, unless it is proved that reasonable steps were taken to bring the regulation to the notice of those persons likely to be affected.

This provision continues to apply to band bylaws, but the fact remains that exempting the bylaws from registration and publication without putting anything else in place as an equivalent removes guarantees of access.

At this point, we are somewhat at a loss as to what to recommend. I think the committee's options are somewhat limited. Frankly, there seems little point in yet another report expressing disappointment and the hope that any new framework for First Nations governance will reflect the recommendations.

The committee can continue to monitor the situation and, from time to time, ask what progress is being made in this area.

Another alternative is that members can decide the committee has done its job, achieved what it can and, at this point, it is not the best forum for pursuing a whole new framework for First Nations governance, or deciding what should be in that framework. The committee's concerns can be conveyed to the Senate and Commons committees on Aboriginal affairs. Copies can be provided to the minister and then the file can be closed perhaps.

Mr. Lee: There is one glaring fact here: This file is 26 years old. We have been unsuccessful in convincing various governments to move the yardsticks forward on this item.

In looking at the item, I had given up. The government has decided on a policy basis that it will not govern, force- govern or force-spoon-feed our First Nations. If anything happens in that envelope, the First Nations will do it.

I accept that fact and I think that we should take the government letter, put it in a report, say we have been working on this item for 26 years and that we reluctantly accept the policy position of the government. Then, we indicate that the approach that is out there — the complete absence of a mechanism for disclosure, promulgation and transparency, and access to the regulations — will not only potentially undermine individual prosecution and enforcement, but looked at with a wider lens, might undermine the whole piece of the regulatory system that is in place to protect people.

If we put that information in a report and say we did our job for 26 years, this decision is the government's and First Nations', because the ball is in their court and they are not running with it, we leave the item and finish our business.

The one thing that bothers me is that we are walking away from a mechanism of protection for citizens, and we are saying we will not pursue the issue anymore. Why should we abandon First Nations to the vagaries of the regulatory field? I suppose we can continue to look at regulations as they come down the pipeline. I do not want to be seen to abandon citizens only because they are First Nations citizens, and because they want to address the issue their way.

However, if the consensus around the committee is to close the file, I accept that. A 26-year-old file ought to be dealt with. I am inclined to take an approach similar to what I described: Close the file and say we did our best.

Ms. Cadman: Can we write to the Minister of Indian Affairs and Northern Development and state our concerns?

Mr. Lee: We recently received a good letter from him, and Mr. Strahl has done as well as he can.

Ms. Cadman: Where do we go from here? We cannot give up on them.

Mr. Lee: The government has made a commitment to put this issue in front of First Nations. The commitment is in the letter. I think we should accept that commitment. That letter should be part of our report. Seal the drum tight and put it into Parliament and, if anybody is curious as to whether we finished our work or abandoned anyone, there is our report. Good luck: First Nations, come back to us if you want.

The Joint Chair (Mr. Kania): I know the file is 26 years old, but what about the possibility of deferring it for a period of time and asking for an update?

Mr. Hoback: That was to be my suggestion.

Mr. Lee: That is probably the approach we have been taking for about 20 years. There is no harm in that approach but I want to be business-like.

The Joint Chair (Mr. Kania): I am concerned about the thought process that the committee may abandon the item in circumstances we are not satisfied with.

Mr. Masse: I also agree with that approach. I can understand the logic behind Mr. Lee proposing that option, but I think that gives somebody else the excuse that we have given up. I am more concerned about that perception; it can be used to others' advantage against the committee in a deferral. If we are persistent in our position, it cannot be used against us that we have taken a conclusion and finished the file.

Although we effectively are taking the approach that Mr. Lee suggests, in some respects, it still provides us an opportunity as an out; and it does not allow the item to be used in other arguments against a committee decision.

The Joint Chair (Senator Wallace): I wonder if what I am hearing around the table a feeling is that, effectively, we are out of options and we are not sure. Is that the case? Where do we go from here? After 26 years, we find ourselves no further ahead.

Before we think of abandoning this item — and perhaps we never would — is there something we can do through timeliness, although after 26 years, it is hard to imagine it would not have surfaced? Would it not be wise at least to go back to the department and express the sense of where we are, and that we feel we must receive some indication so that we are able to do our job; something along that line to prompt a response?

Other than that, we close the file or do not mention it for another year. Those options are not ones I sense any of us want. We want to prompt some response, perhaps through an indication of the frustration we have now, and our inability to do our job. That approach might elicit some sort of response.

Mr. Shory: This is the first time I have come to this committee. Since this matter is related to First Nations, is there a way they can become involved? Perhaps we can have input from the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, or convey the message to them in some manner, rather than dumping the file after 26 years?

The Joint Chair (Mr. Kania): I do not know if that approach is procedurally possible; but can we table another report advising that we are not satisfied? Then, can we pass a motion asking that particular committee to respond to our report as well; to comment on it?

Mr. Bernhardt: I do not know that we can require a committee to respond to this committee. We can invite any reaction the committee may wish to make. Alternatively, we can send a letter to the minister that is copied to the chairs of the Aboriginal affairs committees in the two houses.

As I said earlier, the sense one has from the government is that this issue will be taken up in the course of a new Indian Act, whenever that may be. I think it is not likely to be any time soon.

Mr. Hoback: If that is the case, when the new act comes forward, is that the appropriate time to look at this item to see if it has been settled or not? Is it better to close the item now and go into the new act with a breath of fresh air, or to keep this one open?

Mr. Bernhardt: That question is an internal administrative question for the committee. In a sense, the approach comes to the same thing. If the file is closed, I expect the committee still will want to take a look when new legislation is introduced to see whether the concerns they had those many years back were still there in the new bill. On the other hand, the committee can assure they take another look then by keeping the file alive to monitor the situation.

Mr. Masse: I am concerned about closing the file because that approach can lead to the new act having the same procedure, which we are not accepting. We can write a letter. If we need to have this item for 50 years and our position is right, it is right and it does not hurt us.

Once again, I do not want to provide others with an excuse that can be used later because we might be following a procedural element in the committee. The new act can come forward with the same problem. If we close this item, we have accepted the problem and our role in it.

Senator Moore: In the second last paragraph of his letter, the minister says that the department ``will communicate directly with all First Nation band councils before the end of 2009 regarding their obligations under the Statutory Instruments Act.''

I guess someone will write to each of the band councils across Canada.

First, is the grand chief aware of this item; and does the grand chief have a legal counsel office within their structure? I do not know what the structure is of the officers of the First Nations, but are they aware of this item now?

I know First Nations held elections this summer and there is a new grand chief. Is he aware of this issue, and does he want his people to have this access that we think they should have? How do we engage that office and its legal counsel?

If you write a letter, is it appropriate for us to copy the grand chief? I do not know. I want to spread the message that we are doing what we can here but we need a little help from their side; do they care about this issue? Maybe we can have a response from the grand chief.

The Joint Chair (Senator Wallace): Before broadening the circle, if we are reaching the point that we are discussing whether we should close the file after 26 years and walk away from it because we cannot go further, that matter is probably as serious as we would find before this committee. If the item has reached that point, is it not better first to go back directly to the minister and give the minister the opportunity so the minister is aware of that matter?

Senator Moore: Yes, absolutely.

The Joint Chair (Senator Wallace): Then we decide if the ripple must go further.

Senator Moore: I agree.

Senator Hervieux-Payette: I subscribe to the view that we do not seal the file forever, but that we keep it open. Perhaps we should find out if the minister has written to every band council. There are over 500 bands in this country. That is a lot of chiefs to contact. The minister can tell us if he has contacted them.

Of course, we can also tell the minister what we think about the issue in this letter and keep the item on the back burner; I would not close it.

Ms. Cadman: I agree. I think we should write to the minister again and state what we have to offer and what we want, and see what his answer is then.

Senator Moore: On the idea of the letter going to each band council, in one of his letters, does the minister at least copy the grand chief? Let the minister exhaust all persons that he thinks should have knowledge of what is going on here.

Mr. Masse: Why do we not ask for a copy of that letter and the letters that have gone to all the grand chiefs? If the minister does not want to provide that information to the committee, then we can submit an access to information request. At least, we are showing that we are interested in following this issue.

If the minister has written publicly, let us find out when. If he has not, when will that communication take place and who is he sending it to? Let us follow the footprints. If we can do anything, we can follow the process. At least that will show we are interested; we are not giving up and we want to see these things addressed.

When the chiefs respond, we can ask for copies of those responses. I routinely make that request when I send correspondence to ministers from my constituency. It is a regular practice, so there should be no apprehension on the part of the minister to provide that information to this committee.

The Joint Chair (Mr. Kania): Why do we not put the minister on notice; say, thank you, and ask for copies of all letters by the end of the year because the minister said he would send out letters, and ask for a response. Are members agreed?

Hon. Members: Agreed.

C.R.C. c. 954 — INDIAN ESTATES REGULATIONS

(For text of document, see Appendix C, p. 9C:1.)

Mr. Bernhardt: Section 14 of these regulations purported to authorize the minister to deem certain persons to be the widow of a deceased Indian for intestate succession. This practice was typically followed to allow common-law spouses to inherit. Following a report from the committee in 1999, the government conceded there was no authority for this provision, and the provision was revoked. The government also accepted that any complete solution must involve introducing a bill to validate the 3,000 orders that had been made under section 14 in the past.

In May, the joint chairs asked the minister when this proposed legislation is expected and, once again, made the suggestion to add the necessary provisions to Bill C-8, which is the Family Homes on Reserves and Matrimonial Interests or Rights Act. In response, the minister advised that various options, including Bill C-8, which has yet to progress beyond first reading, are being considered. At this time, we suggest writing to the department and asking for an update on where things stand.

Mr. Dreeshen: I agree with that plan of action. It is an appropriate way to deal with this item.

The Joint Chair (Mr. Kania): Are there other comments? Is it agreed that we send a follow-up letter?

Hon. Members: Agreed.

SOR/93-108—QUEBEC BEEF CATTLE PRODUCERS' LEVIES OR CHARGES (INTERPROVINCIAL AND EXPORT TRADE) ORDER

(For text of document, see Appendix D, p. 9D:1.)

Mr. Bernhardt: Section 3 of this order imposes levies and charges on cattle marketed in interprovincial and export trade in the amounts of those fixed or imposed under various provincial regulations as those regulations are amended from time to time. The enabling authority permits the Quebec federation to fix levies or charges, but the view of the committee is that section 3 does not fix the levies or charges. Rather, they are fixed by the provincial regulation makers. This situation is the result of incorporating the provincial regulations as amended the from time to time. On June 12, the joint chairs noted that the Minister of Justice, as we have heard already this morning, has indicated that he is working toward introducing legislation to deal with the use of incorporation by reference in federal regulations generally. Notwithstanding this information, given that the nature of that bill is not known at this time, the minister was asked to agree to amend the enabling legislation in this particular case to provide clear authority for incorporation by reference of levies or charges imposed by provincial laws as those laws are amended from time to time.

In his reply, the minister expresses his preference to wait for the promised bill on incorporation by reference to see if the bill addresses the committee's particular concern. The committee has also been advised that, in the meantime, an analysis of the course of action recommended by the joint chairs will be undertaken. Again, on this particular file, perhaps we can ask the minister for an update on this analysis of the committee's recommendation.

Senator Moore: The second last paragraph of the minister's letter states: ``Once the legislation is tabled, we will be able to determine whether it will address your committee's concerns.''

Should they not table legislation that addresses the committee's concerns?

Mr. Bernhardt: The minister refers to the bill that the Minister of Justice is apparently planning that will set out the rules for incorporation by reference. Given that the issue in this agriculture file is incorporation by reference, he is holding out the hope that a general bill from the Department of Justice will make all these problems go away. However, we have no idea what will be in that general justice bill. As was suggested earlier, the committee might want to make recommendations to the Minister of Justice in respect of that bill.

Senator Moore: Yes.

Mr. Bernhardt: I am not sure whether any bill will go back and fix pre-existing problems. For that reason, the joint chair recommended that the committee address this particular problem and not wait for the bill from the Department of Justice to be introduced. As well, notwithstanding that situation, there is an undertaking to have an analysis of the committee's recommendation.

Senator Moore: Are you comfortable with that undertaking?

Mr. Bernhardt: We can inquire as to the result of the analysis and whether they are willing to proceed with amending the enabling order so that at least this particular problem is resolved.

Senator Moore: What will the committee do about your comments on the suggestion to justice? That suggestion is important.

Mr. Bernhardt: As I mentioned, that topic was in one of the papers presented by the joint chair in Australia. It might be a good idea to bring that particular issue back, with a view to communicating, either through a report or a letter directly to the minister, what the committee wants to see as some of the governing principles in that proposed legislation.

Mr. Hoback: We are talking about proposed legislation coming out this fall. I can understand making recommendations to the minister on what we want to see in that legislation, but we need to wait and see what is in the bill before we can deal with this file. Is it not prudent to proceed that way?

Mr. Bernhardt: In light of that last sentence about analyzing the suggestion in the June letter, that could be a way of pursuing the file in the interim. We can send a letter to inquire as to whether the committee's suggestion has been analyzed and what the conclusion is. In the meantime, perhaps by then we will have seen the bill and the committee can proceed from there.

Mr. Masse: The letter was written six months ago, so we can reasonably ask for that analysis now. If it is not available, we can ask when it will be forthcoming, given that our letter goes back to last June. I thought it was interesting that this response to the committee was not copied to the Minister of Justice. Perhaps it was a communications oversight. I will not sit as a bystander, so perhaps we can forward our case and the information to the Minister of Justice, as well as the letter. Maybe communication is taking place with the minister — it is possible. Originally when I saw the letter, I found it peculiar that the vice chairs were copied but not the minister. When asking another minister of a department for an analysis, normally when that letter goes out, it would be copied to the minister.

The Joint Chair (Mr. Kania): To be fair to the minister, this letter was received recently, on August 25, 2009. Perhaps the committee can provide further guidance in terms of what it wants to see.

Mr. Masse: That is fine. The minister acknowledges in the letter that he has been aware of the issue since June 12, although the response is new.

The Joint Chair (Mr. Kania): Correct. Should the committee write a letter containing what we hope we will see when the bill arrives?

Mr. Hoback: That is fair.

The Joint Chair (Mr. Kania): Are members agreed?

Mr. Masse: I want to ask specifically what the announcement will be.

The Joint Chair (Mr. Kania): We will provide suggestions and ask when we might expect to see the changes.

Mr. Masse: Ask for a copy, and if a copy is not available, ask when it will be available.

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

SOR/98-2 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/99-169 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/2002-435 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

(For text of documents, see Appendix E, p. 9E:1.)

Mr. Bernhardt: In May, the minister advised the committee that amendments to the Fish Inspection Act will be introduced to address concerns over the lack of authority for a number of aspects of the regulations. In June, the joint chairs sought further particulars and also made the suggestion that provisions of the regulations for which authority is now lacking be remade once the act has been amended, to remove any doubt as to their validity.

The minister's response indicates that he expects a bill to be tabled this fall. The minister also indicates that the regulations will be amended to fill — in his words — ``gaps for which authority is currently lacking,'' as the committee suggested.

It is not entirely clear whether filling these gaps refers to re-enacting provisions, but the response may be satisfactory at least for the time being. Given the time frame provided by the minister, I suggest simply monitoring the file. We will see if the legislation is introduced this fall, as indicated. If that proves not to be the case, we can follow up.

The Joint Chair (Mr. Kania): Is it agreed?

Hon. Members: Agreed.

[Translation]

SOR/2001-532 — TELECOMMUNICATIONS APPARATUS REGULATIONS

(For text of documents, see Appendix F, p. 9F:1.)

The Joint Chair (Mr. Kania): We will now move on to the Telecommunications Apparatus Regulations.

Jacques Rousseau, Counsel: Mr. Chair, in this file, the committee was of the opinion that, in the Telecommunications Apparatus Regulations, the Governor in Council illegally delegated his power to prescribe by regulation the apparatus or class of apparatus requiring a technical acceptance certificate.

Although the minister wrote that he did not share the committee's opinion, he promised to seek amendments to the act and the regulations. In the letter sent by the chairs on April 30, 2008, they asked the minister to specify the nature of the proposed amendments, as well as the time frame for completing those amendments.

On May 31, 2008, the minister reiterated his previous statements on the nature of the legislative amendments. It is a matter of clearly transferring from the Governor in Council to the minister the power to determine which apparatus or class of apparatus is subject to certificate requirements.

When that letter was written, consultations had been undertaken with manufacturers and importers of telecommunications equipment. Since the letter was written more than 15 months ago, committee counsel recommend that the joint chairs send another letter to the minister to inquire about the outcome of those consultations, as it relates to both the nature of the amendments and the date when they are expected to be passed.

[English]

The Joint Chair (Mr. Kania): Are there comments? Is it agreed?

Hon. Members: Agreed.

SOR/2005-383 — REGULATIONS AMENDING THE ACCOUNTING FOR IMPORTED GOODS AND PAYMENT OF DUTIES REGULATIONS

(For text of documents, see Appendix G, p. 9G:1.)

Mr. Bernhardt: Under these regulations, to qualify for a customs self-assessment authorization, an importer or carrier must be of good character. In response to an inquiry as to precisely what is meant by being of ``good character,'' the Canada Border Services Agency indicated that it applies certain criteria. The committee then suggested that these criteria should be set out in the regulations themselves so that the importer and carriers can know what is required. In the minister's July letter, the minister indicates that the regulations will be amended to address the committee's concern. This being the case, the matter is simply one of asking the agency for a progress report and, perhaps, for further particulars of the proposed amendments.

The Joint Chair (Mr. Kania): Are there comments?

Senator Moore: Who are we writing to?

Mr. Bernhardt: The Canada Border Services Agency.

Senator Moore: Are you writing to the minister or only the agency? You have been communicating with the minister, so why go down the ladder?

Mr. Bernhardt: In this case, the committee would have communicated with the minister because the committee was not receiving satisfaction from the agency. We now have the minister's undertaking to make changes. Those changes will be processed within the agency. I think we can assume the agency is now bound to go ahead with these changes, the minister having committed them. I think it is probably sufficient to ask for a progress report at this time, rather than go to the minister.

Senator Moore: Will you reference this commitment from the minister in your letter to the agency?

Mr. Bernhardt: Yes.

Senator Moore: Maybe we should copy the minister.

Mr. Bernhardt: We can do that.

The Joint Chair (Mr. Kania): Is it agreed?

Hon. Members: Agreed.

[Translation]

SOR/2003-241 — REGULATIONS AMENDING THE CUSTOMS BONDED WAREHOUSES REGULATIONS

(For text of documents, see Appendix H, p. 9H:1.)

The Joint Chair (Mr. Kania): We will now move on to the Regulations Amending the Customs Bonded Warehouses Regulations.

Mr. Rousseau: Mr. Chair, the note describes the reason why the committee, after proposing a regulatory amendment in order to remove the discretionary authority that it considered unnecessarily broad, could accept that the discretionary authority is, ultimately, justified by sections 91(3) and 99(f)(iv) of the Customs Tariff, as submitted by the Agency.

In the first section, Parliament clearly delegated discretionary power to the minister to cancel a warehouse's licence. In the English version of the second section, Parliament delegated to the Governor in Council the power to prescribe by regulation the circumstances in which the minister may cancel a licence, even if the version does not indicate that this regulatory power covers the circumstances in which the minister may cancel a licence.

Committee counsel are of the opinion that this is nevertheless how section 99 should be interpreted. If the committee is in agreement, the file can be closed.

[English]

The Joint Chair (Mr. Kania): Does anyone not want to close the file?

The file is closed.

SOR/2002-421 — CANADIAN FORCES EMPLOYMENT EQUITY REGULATIONS

(For text of documents, see Appendix I, p. 9I:1.)

Mr. Bernhardt: The committee questioned the use of the term ``national security requirements'' as it applies to the handling of information by the Canadian Human Rights Commission, the Employment Equity Review Tribunal and their officers or agents. The Department of National Defence replied that the meaning of the term ``national security'' is still under debate, and it would be preferable to allow more time to allow this term to evolve through further judicial treatment.

The department seems to be focused on the uncertainty as to what is meant by ``national security.'' For the committee, however, the concern is more the uncertainty as to precisely which requirements people are expected to comply with. Are we talking about legislation or administrative guidelines and manuals? What is a ``requirement''?

If the department does not know what national security requirements are, how is a person governed by the provision expected to know? It was suggested that these requirements need to be specified more precisely.

The reply was that this concern has been duly noted and will be examined in the course of a complete review of the regulations. In this connection, it is worth noting that although section 29 of the regulations requires this review to be completed by November 2007, the review has yet to see the light of day and apparently had not even been commenced in August 2008.

In short, I suggest this reply seems a little vague and open-ended. Perhaps the Department of National Defence can be asked precisely when it expects to complete its review, as well as what exactly it intends to do to address the committee's concern.

Mr. Saxton: Will we ask for clarification?

Mr. Bernhardt: And a firmer undertaking that they will do something.

The Joint Chair (Mr. Kania): And a timeline.

Mr. Saxton: To the deputy minister?

Mr. Bernhardt: In this case, it is the Secretary of the Treasury Board.

Mr. Lee: I had difficulty comprehending how we went off on a tangent on this item. We do not have the wording before us. Perhaps the form of the regulation was before us previously, but is counsel able to read now the reference to ``national security requirements'' as part of the regulation?

Mr. Bernhardt: I do not have the text before me, but the effect of the provision was that when these organizations handled information, they were required to comply with national security requirements.

Mr. Lee: That is what I thought.

Mr. Bernhardt: We asked what they meant by requirements. The term is vague. Is that regulation, statutes or what exactly? It seems that it goes to guidelines, administrative criteria and all sorts of things other than the law itself. If that is the case, I think they need to say so.

Mr. Lee: There are two areas. First, there is government security policy, which will change from time to time. It is like ambulatory incorporation by reference, which all departments are required to comply with in any event. The reference to that area is benign and generic.

Second, application of the Canada Evidence Act provisions would impose restrictions on disclosure of certain classified information. I think officials have made a mountain out of a mole hill but it would not hurt to have clarification, if my inference is correct.

It would be a simple thing to refer to government security policy requirements. However, going into a definition of ``national security'' is a deep affair.

Mr. Bernhardt: The committee's concern was more about the definition of ``requirement'' as opposed to the whole national security question.

Mr. Lee: My point is that no one is making this stuff up; it already exists. The requirements are set out in government security policy, and also in the Canada Evidence Act.

Mr. Bernhardt: In the interest of clarity, the suggestion was to say exactly what those requirements are. They do not need to reproduce them but only to refer to them by name.

Mr. Lee: Shawn Abel is always so meticulous in his work. He pushed them into a corner and they became lost.

The Joint Chair (Mr. Kania): Are there other comments?

SOR/2006-242 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

(For text of documents, see Appendix J, p. 9J:1.)

Mr. Bernhardt: Chair, following the committee's instructions when it last considered this file, there was a further exchange of correspondence with Industry Canada on three points. The first relates to subsection 3(2) of the amending regulations. Under this provision, the minister has discretion to refuse to add or delete a patent from the registry if it does not meet the criteria set out in the regulations. In other words, the minister is not required to remove a patent even if the minister determines that it fails to meet the criteria, and the minister can choose to add a patent even if the minister concludes it does not meet the criteria. Clearly, the rights of manufacturers are dependent on administrative discretion.

In its latest reply, the department describes the determination whether to add a patent as complex, sophisticated and sometimes subjective or quasi-judicial. It then asserts that the decision to confer this discretion is a policy matter that, presumably, should be deferred to.

We could point out that the court decision relied on by the department is being misread, and the fact that a decision is complex does not make it judicial. At the end of the day, all this information is beside the point. The point is simple: Once the minister has decided a patent does not meet the requirements for registration, why does the minister need discretion to ignore the minister's own conclusion? The only purpose this provision serves is to restrict the scope of judicial review; effectively, it prevents a court from looking at the question of whether the decision that a patent did not meet the requirements was correct in the first place.

This provision is a clear contravention of the committee's scrutiny criteria and I suggest that the matter be pursued.

The second point concerns the French version of subsection 6(7). It uses the word ``ordonner'' when dealing with people, generally, and ``enjoindre'' when dealing with the minister. The department argues that the two terms are synonyms and this situation is so clear that it rebuts the presumption that different words used in legislation have different meanings. I suggest this reply begs the question of why not use one term in the interests of simplicity, as the English text does. It uses the word ``order'' in both cases.

The answer given is that the word ``enjoindre'' is softer and more polite. In other words, it is inappropriate in French, although apparently not inappropriate in English, for a court to order a minister in the same way it would order a normal person.

One is tempted to chuckle, I suppose. Aside from the fact that everyone is equally subject to the law, there are also numerous examples in federal legislation of the phrase ``ordonner au ministre.'' It is used frequently. It is difficult to see the intransigence here over what they seem to consider a question of politesse. Nevertheless, there it is.

Third, section 7 of the amending regulations provides that certain submissions made to the minister prior to the coming into force of the amendments are deemed to have been made on the date of the amendments coming into force. The committee considers this provision as having retroactive effect. The department continues to argue that the provision removes the previous requirement as of the date of coming into force of the amendments.

If that is all the provision accomplishes, that intent could have been clearly stated. The simple fact is that the regulations accomplish considerably more than that. They deem something to have been done in the past other than on the date it actually was done. That is a retroactive effect.

In short, I suggest the reply is unsatisfactory on all three points. Given that correspondence has gone back and forth several times with the officials at this point, perhaps a letter to the minister requesting the minister's reconsideration is appropriate at this time.

Mr. Galipeau: I concur with all the comments that have been made by counsel, except the flippancy about language. I have lived my whole life as a francophone in English in Ontario, and I am assiduous at learning the second language that I use at this moment. I never took the choice of words to be frivolous and, consequently, my recommendation to this committee is that we limit ourselves in English to using the word ``direct'' and to use the word ``enjoindre'' in French. It has nothing to do with politeness; it has everything to do with the intent.

Mr. Bernhardt: If I understand correctly, Mr. Galipeau, you suggest that instead of ``order'' in English, we use ``direct'' consistently. Also, instead of ``enjoindre'' and ``ordonner'' in French, we use ``enjoindre'' consistently. Is that correct?

Mr. Galipeau: Yes, any time we use ``direct,'' we use ``enjoindre;'' and any time we use ``direct,'' we never say ``ordonner.'' Also, any time we say ``order,'' we say ``ordonner.''

Mr. Bernhardt: As long as the text is consistent, absolutely.

Mr. Galipeau: Yes, and as long as we are not flippant about it.

Senator Hervieux-Payette: I have never seen this committee be impolite, so I think we should be to the point. As far as I am concerned, I totally agree with my colleague from Quebec.

Mr. Galipeau: Who is from Quebec?

Senator Hervieux-Payette: I apologize. I agree with my French-speaking colleague.

If I adopt you, you will not lose anything.

I like the word ``enjoindre.'' As for the translation, I will leave it with all the experts. However, the word ``enjoindre'' is an exact word in French. It is the right word for me.

Nevertheless, I want to tell the new colleagues that sometimes all this correspondence goes over several governments and ministers. In fact, we are dealing with technocrats, not ministers. Therefore, whenever we write, we do not put the minister on the spot except that the minister has to accept the responsibility of his or her position. However, we know very well that the roadblock is not put together by the minister's attitude but much more by the ministry that thinks it is easier to work with the actual methodology that they are using when, in fact, they are not using legal means.

Again, I always say, the purpose of this committee is to correct these things and I would not sit here if we did not do that.

Mr. Lee: In terms of linguistic precision, if there is no legal or practical implication between the words ``ordonner'' and ``enjoindre,'' then I will endorse my brother Galipeau's approach to the consistency and the use of language. The issue is not a huge one. Is there a legal slant or practical implication here?

Mr. Bernhardt: No, not aside from the principle that we start from the assumption that if we use different words, we mean different things. I think Mr. Galipeau is right. The question is one of consistency.

Mr. Lee: In this case, it is hard to pinpoint the difference. We can speculate there is a difference but, if we try to nail it down, we cannot.

The second issue pertains to the regulations themselves; dealing with the discretion of the department. This issue is huge because billions of dollars hang in the balance when these notices of compliance are filed, or produced. I think we have to hang tough on that issue.

You said that our scrutiny criteria were breached, or one was breached. Can you be specific about which one? Is it the unusual and unexpected use of power?

Mr. Bernhardt: I will give you the precise wording.

Mr. Lee: If we go back to the department, I think we want to make reference to the precise criterion.

Mr. Bernhardt: Absolutely; scrutiny criteria number 6 is whether a regulation tends directly or indirectly to exclude the jurisdiction of the courts without express authority having been provided for in the enabling legislation.

It has become clear that the entire purpose here, the focus, is to cut down on litigation.

Mr. Lee: That issue was always out there. I endorse counsel's approach and, if anything, a firmer statement. This issue, in theory, could end up in the disallowance tray. It could, but the committee should take it seriously as a serious defect in the regs.

Mr. Galipeau: I think I will make my remarks to my colleagues off-line.

Basically, ``enjoindre'' means one better do this if one knows what is good for one; and ``ordonner'' means there is no leeway. ``Enjoindre'' is a little bit like your whip telling you what to do. It is not quite an order, but one knows damn well one better do it.

Mr. Masse: On that, I want to make sure from counsel that the language change is correct, especially in terms of what can be used in a court of law. I have had dealings with notice of compliance issues in patent drug issues for seven years, and I think that is the least of our problems on this file.

This item is important, and I am skeptical that we will receive a satisfactory response. I believe it will go to disallowance, with anything I have experienced with the department on this issue.

The language that is suggested by Mr. Galipeau is fine by me but I am an anglophone. I want to ensure that in the court, the change will be upheld. That is my particular issue.

I agree with the course of action, but I hope we can track this item. It is important; it is a significant issue. I think we will have to be stronger on it.

Mr. Bernhardt: In the provisions we are dealing with, it is a court issuing an order. For lack of a better word, the court is telling people to do something. In one case, they are telling patent applicants or patent contestants to do something; and in another case, they are telling the minister to do something.

For example, in English, if one says ``directs'' or one says ``orders,'' one could say there is a difference; but practically, if it comes from the court to someone, I think everyone is pretty clear that is intended to be binding and if a person does not do it, that person risks certain consequences.

My concern is not so much what word is used, as long as we have a single term that is used consistently. I think either one, in this case, will probably do the job.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

[Translation]

SOR/2008-116 — LOBBYISTS REGISTRATION REGULATIONS

(For text of documents, see Appendix K, p. 9K:1.)

Mr. Rousseau: In this file, Mr. Chair, three points were raised in the letter dated July 23, 2008. The note prepared for the committee briefly explains why the answers provided are, in the opinion of committee counsel, unsatisfactory.

Regarding point 1, the regulations set out when a return that is delivered by mail or by hand, or sent by fax, is considered to have been received by the commissioner. However, the regulations do not set out when a return that is filed electronically is considered to be received.

Treasury Board indicates that an electronic return is considered to be received when the return enters into the system maintained by the Office of the Commissioner of Lobbying, as recorded by that system. In the opinion of counsel, this should be stated in the regulations.

In point 2, the problem raised was that the individual called upon by the commissioner to provide clarification or correction might not be able to determine exactly how long they had to fulfill the request. The note suggests, based on the practice described by Treasury Board, how the regulations could be amended to address this problem.

Point 3 has to do with a discrepancy between the English and French versions of one of the forms prescribed by the regulations. Treasury Board acknowledges that there is a problem and writes that it may be corrected in the future. Even if this form is used only in rare cases for the reason given by Treasury Board, the form is nonetheless prescribed in the regulations, and both versions should therefore be consistent.

If the committee is in agreement, counsel will write to Treasury Board to suggest that the regulations be amended as indicated in the note.

Some Hon. Senators: Agreed.

SOR/2001-167 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990

SOR/2004-280 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990

(For text of documents, see Appendix L, p. 9L:1.)

Mr. Rousseau: The committee considered both of these files at its May 31, 2007 meeting and was of the opinion that the Agency's response was unsatisfactory regarding five points. Therefore, committee counsel wrote to the Agency again.

In point 6, the Agency announced that the disputed provision would be repealed. This promise is worthy of mention since the committee has raised this problem repeatedly over the years. Section 29(6) of the regulations provides, and I quote:

. . . The operator of a registered establishment shall comply with all the conditions of the licence to operate the establishment.

The committee challenged the validity of regulatory provisions such as this one and recommended a disallowance during its scrutiny of the Ontario Fishery Regulations, 1989.

It is the committee's view that adopting a provision such as this one, without clear legislative authority, is an illegal attempt to ensure that failure to comply with a simple administrative document is punishable by a prison term or a fine. The fact that the Agency promised to repeal this provision is significant.

In point 8, the Agency promised to amend two regulatory provisions to make them consistent with actual practice.

In point 11, the regulations are a duplication of the act. The Agency simply wrote that it would revise the regulations. We should ask the Agency whether this review has been completed and whether it can clarify its intentions.

In points 15 and 16, the Agency maintains the validity of the regulatory provisions in question. The committee has already scrutinized the legislative provisions cited by the Agency. It is the committee's view that none of these legislative provisions authorizes the adoption of the regulations whose validity the committee is challenging.

However, the Agency had promised to remove the disputed provisions once Bill C-51, introduced on April 8, 2008, was passed, and this bill would have amended the Food and Drugs Act. It clearly set out the adoption of regulations such as those challenged by the committee. The powers are mentioned in the note that was prepared for the committee. The product recall procedure would have become mandatory further to regulations made pursuant to the Food and Drugs Act, and the provisions of the Meat Inspection Regulations, 1990, could have been repealed.

However, Bill C-50 died on the Order Paper, and no similar bill is before Parliament at this time. We should ask the Agency whether it expects a similar bill to be introduced again.

If the committee is in agreement, counsel will write back to the Agency.

Some Hon. Senators: Agreed.

[English]

SOR/2004-27 — REGULATIONS AMENDING THE COLLISION REGULATIONS

(For text of document, see Appendix M, p. 9M:1.)

Mr. Bernhardt: The promised amendments concerning points 1, 2 and part of point 3 in the correspondence have been made. Those matters have been resolved. The other aspect of point 3, and points 4 and 5 concern the same issue.

The way in which the regulations are structured — their purpose — is to implement the Convention on the International Regulations for Preventing Collisions at Sea. This implementation is accomplished by reproducing the entire text of the convention in schedule 1 and then saying in the regulations that one must comply with the schedule. This approach has given rise to a problem whereby in several instances the convention, as reproduced, draws the attention of the reader to some other document, or it provides that certain material is provided for the information of the reader.

The purpose of these references is unclear, and the question was asked: What is the intent? Are people required to comply with the information mentioned in the footnote? Does this information tell the reader that there might be something else out there that might be interesting? The department replied that it is essential to reproduce the text of the convention word for word, that these references are in the convention, and that this information is essential to complying with the regulations. The proposition that one can implement an international agreement only by reproducing it word for word in domestic legislation is dubious, to say the least. Any number of agreements are implemented without recourse to this approach. This point aside, if there is another document that will determine the meaning of certain terms used in a regulation, I suggest that the fact should be clearly stated rather than simply footnoting the document or drawing the reader's attention to it or using some such other language. I suggest there is a need for clarification in this regard, and the matter should be pursued with the department.

The Joint Chair (Mr. Kania): Are there comments? Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): It is ten o'clock. Is there unanimous consent to proceed with the remaining agenda items? Mr. Bernhardt says that we can conclude in five minutes.

Hon. Members: Agreed.

[Translation]

SOR/2006-148 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS

SOR/2006-155 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS

(For text of documents, see Appendix N, p. 9N:1.)

Mr. Rousseau: Mr. Chair, the letter sent by committee counsel focused on three points. Point 1 simply has to do with the reference in the recommendation preceding the regulations to the regulatory powers allowed to make regulations. Counsel pointed out that there was a specific provision addressing the regulations in question that was not cited, and we should ask for confirmation that this will be done the next time.

Point 2 refers to the wording in the English version of the regulations. A correction was promised.

Last, for point 3, the agency provided a satisfactory explanation in response to the comment made by committee counsel regarding the drafting of the regulations.

It is the recommendation of counsel to continue corresponding with the agency with respect to points 1 and 2. If the committee is in agreement, counsel will write back to the agency.

Mr. Lee: Agreed.

SOR/2006-193 — REGULATIONS AMENDING THE EGG REGULATIONS

(For text of documents, see Appendix O, p. 9O:1.)

Mr. Rousseau: Mr. Chair, as mentioned in the note prepared for the committee, SOR/2006-193 made it possible to correct three wording problems raised by the committee. Five points were raised in the letter dated February 19, 2007. Amendments regarding points 3 and 5 were promised. We should, however, ask for clarification on the amendment that was promised with respect to point 3.

Points 1 and 2 raise similar problems. They have to do with the discretionary power of the director to suspend the registration of an egg station if it does not meet the requirements of any other federal legislation applicable to it, in the case of point 1, or if it does not comply with the provisions of any other federal legislation applicable to the operator in respect of their operation of the egg station, in the case of point 2. This power may seem larger in scope than the simple marketing of agricultural products, and these expressions should be defined in the regulations.

Point 4 addresses the time limit during which it is necessary to maintain the records required under section 9(3) of the regulations.

In short, the regulations do not specify a time limit, so the information must be archived indefinitely. In its letter, the agency informed us that it has a policy on standard retention periods. We should no doubt have a copy of that policy in order to determine whether the regulations can be amended accordingly.

Finally, if the committee is in agreement on these three points, counsel will write to the agency regarding all of the issues.

Mr. Lee: Agreed.

SOR/2008-25 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS

(For text of documents, see Appendix P, p. 9P:1.)

Mr. Rousseau: This is a case where counsel requested confirmation, as evidenced by the correspondence. The requested confirmation was provided. Therefore, if the committee is satisfied, the file can be closed.

[English]

The Joint Chair (Mr. Kania): This file is closed. Are members agreed?

Hon. Members: Agreed.

SOR/2005-320 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

(For text of document, see Appendix Q, p. 9Q:1.)

SOR/2008-155 — REGULATIONS AMENDING THE REGULATIONS SPECIFYING INVESTIGATIVE BODIES

(For text of document, see Appendix R, p. 9R:1.)

SOR/2008-285 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA POST CORPORATION ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix S, p. 9S:1.)

Mr. Bernhardt: Under Action Promised, there are four amendments in connection with those three instruments. SOR/2008-285 also made one amendment that was promised to the committee.

SOR/2004-180 — ORDER AMENDING THE ONTARIO HOG CHARGES (INTERPROVINCIAL AND EXPORT) ORDER

(For text of document, see Appendix T, p. 9T:1.)

SOR/2008-169 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE COPYRIGHT ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix U, p. 9U:1.)

SOR/2008-183 — REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS

(For text of document, see Appendix V, p. 9V:1.)

SOR/2009-134 — PROCLAMATION AMENDING THE CANADIAN BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION AGENCY PROCLAMATION

(For text of document, see Appendix W, p. 9W:1.)

Mr. Bernhardt: Under Action Taken, four instruments resolve 12 of the committee's concerns, including revoking two ultra vires provisions. I will take a few seconds to highlight the order amending the Ontario Hog Charges (Interprovincial and Export) Order. Last spring, members will recall that the committee dealt with how best to resolve the matter of a levies increase that, due to an error, was collected unlawfully over three months. The committee decided that even though the total amount of $5,000 was not large, reimbursement should be made as a matter of principle, although the exact mechanism for doing so was left to the marketing board. We have been told that refunds have been mailed to the affected producers, so that matter is resolved.

SI/2009-5 — ORDER TRANSFERRING FROM THE DEPARTMENT OF FINANCE TO THE TREASURY BOARD THE CONTROL AND SUPERVISION OF CERTAIN PORTIONS OF THE FEDERAL PUBLIC ADMINISTRATION

SI/2009-9 — ORDER TRANSFERRING FROM THE PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT AGENCY OF CANADA TO THE PRIVY COUNCIL OFFICE THE CONTROL AND SUPERVISION OF THE PUBLIC SERVICE RENEWAL TASKFORCE BRANCH

SI/2009-15 — ORDER FIXING FEBRUARY 19, 2009 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2009-17 — WENDY DREVER REMISSION ORDER

SI/2009-18 — LES FILLES DE LA SAGESSE D'ONTARIO REMISSION ORDER

SI/2009-19 — MAISON ACCUEIL-SAGESSE REMISSION ORDER

SI/2009-20 — LIST OF WILDLIFE SPECIES AT RISK (DECISION NOT TO ADD OR REFERRAL BACK TO COSEWIC) ORDER

SI/2009-21 — FISHERS REMISSION ORDER

SI/2009-25 — ORDER FIXING MARCH 31, 2009 AS THE DATE OF THE COMING INTO FORCE OF PART 7 OF THE ACT

SI/2009-26 — LORIE A. POIRIER REMISSION ORDER

SI/2009-37 — SHERRI-LEE MERSON REMISSION ORDER

SI/2009-38 — ORDER FIXING JULY 1, 2009 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SI/2009-40 — PROCLAMATION DESIGNATING THE ``FIRE PREVENTION WEEK''

SI/2009-42 — ORDER FIXING JUNE 1, 2009 AS THE DATE OF THE COMING INTO FORCE OF PART 5 OF THE ACT

SI/2009-43 — CAPE JOURIMAIN NATURE CENTRE REMISSION ORDER

SI/2009-44 — JARED TORGERSON REMISSION ORDER

SI/2009-51 — PIERRE GOSSELIN REMISSION ORDER

SI/2009-52 — ORDER FIXING SEPTEMBER 28, 2009 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SI/2009-53 — ORDER FIXING JUNE 16, 2009 AS THE DATE OF THE COMING INTO FORCE OF THE ACT, EXCEPT SECTION 5

SI/2009-54 — TWO ONTARIO FERRY OPERATORS REMISSION ORDER

SI/2009-55 — NELLY BITUALA-MAYALA REMISSION ORDER

SI/2009-57 — ORDER FIXING JULY 1, 2009 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2009-58 — LAURIE'S RECYCLING & WASTE SERVICES INC. REMISSION ORDER

SI/2009-59 — ORDER FIXING AUGUST 1, 2009 AS THE DATE OF THE COMING INTO FORCE OF SECTION 104 OF THE ACT

SI/2009-60 — ORDER FIXING JULY 13, 2009 AS THE DATE OF THE COMING INTO FORCE OF SECTION 297 OF THE ACT

SI/2009-66 — ORDER FIXING AUGUST 1, 2009 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2009-67 — ORDER FIXING AUGUST 1, 2009 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SI/2009-68 — ORDER FIXING SEPTEMBER 18, 2009 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACTS

SI/2009-69 — ROSA AMORIM REMISSION ORDER

SI/2009-70 — MARGARET BRULE REMISSION ORDER

SI/2009-71 — GAGNÉ-LESSARD SPORTS INC. REMISSION ORDER

SI/2009-72 — ORDER FIXING AUGUST 1, 2009 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

Mr. Bernhardt: Under Statutory Instruments without comment are 32 instruments reviewed and found to comply with all of the committee's criteria. We have copies if anyone has questions.

The Joint Chair (Mr. Kania): On the recommendation of counsel, the tradition is to meet every other week. Therefore, future meetings will be October 22, November 5, November 19, December 3 and December 10. There is one extra date for a missed meeting.

(The committee adjourned.)

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