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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 11 - Evidence, November 5, 2009
OTTAWA, Thursday, November 5, 2009
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:38 a.m. for the review of statutory instruments.
Senator John D. Wallace (Joint Chair) in the chair.
The Joint Chair (Senator Wallace): Good morning, ladies and gentlemen. Please bear with me today as I chair my first meeting of the Standing Joint Committee for the Scrutiny of Regulations. I have seen from my past time here that it is a raucous group. Thank you for being here this morning. Mr. Kania had planned to be here. There was an illness in his family and he wanted to be home for that. We wish him and his family well and look forward to him returning.
If you have your materials before you, we will move through the agenda.
REPORT NO. 80 — INCORPORATION BY REFERENCE
Peter Bernhardt, General Counsel to the Committee: At the last meeting, the committee decided to write to the Minister of Justice to seek his agreement to allow more time for the committee to provide its views concerning possible legislation enacting general provisions governing incorporation by reference in regulations. That letter was delivered on October 27. It is in the materials this morning for the information of members.
At the next meeting scheduled for November 19, the committee will have draft comments and recommendations for its consideration. Also, there will be a background note on incorporation by reference and the issues related to it. The note will be distributed as well for the next meeting.
The Joint Chair (Senator Wallace): Are there any questions or comments? The next item is under the heading, Letters to and from Ministers.
SOR/97-6 — FEEDS REGULATIONS, 1983, AMENDMENT
SOR/97-9 — SEEDS REGULATIONS, AMENDMENT
SOR/2001-274 — REGULATIONS AMENDING THE SEEDS REGULATIONS
(For text of document, see Appendix A, p. 11A:1)
Mr. Bernhardt: The amendments to the feeds regulations put in place a regime whereby new, or what they term ``novel,'' feeds may not be released into the environment unless an authorization has been obtained from the Minister of Agriculture.
The problem is that the purpose of the Feeds Act is to control and regulate manufacturing, selling or importing of feeds. The act does this by prohibiting the manufacture, sale or import other than in accordance with the regulations.
As the chair's May 7 letter explained, none of this necessarily has anything to do with release into the environment. In other words, release into the environment can encompass things other than manufacture, import and sale, such as, for example, research. Obviously, regulation-making powers must be exercised for the purposes of the enabling act.
The regulations also purport to regulate the release of a livestock product produced from a feed, as well as the exposure of a feed or a livestock product produced from a feed, into the environment. These products encompass things like eggs, meat, milk, other animal parts and even manure. These products, then, have to be described somehow as ``feeds.''
This is clearly beyond the scope of the Feeds Act. Because the Seeds Act is similar to the Feeds Act in structure, the same problem was noted in connection with the Seeds Regulations, as well. In the minister's letter of August 7, he advised that a series of legislative options to resolve these matters were being explored in collaboration with other government departments. This letter seems to accept at least tacitly the committee's position and, presumably, either amendments to the two acts in question or the proposal for new legislation will be involved here.
Perhaps at this time a letter could be written to the minister asking whether a preferred option has been selected yet and, if it has, whether there is a timeframe for taking action.
The Joint Chair (Senator Wallace): Are there any questions or comments? We will do that.
SOR/2005-39— REGULATIONS AMENDING THE VETERANS HEALTH CARE REGULATIONS
(For text of documents, see Appendix B, p. 11B:1)
Mr. Bernhardt: The Department of Veterans Affairs Act authorizes the Governor-in-Council to make regulations specifying the persons or classes of persons from among veterans and the dependents and survivors of veterans who are entitled to receive benefits. The regulations extend eligibility for housekeeping and grounds maintenance services to the primary caregiver of a veteran, if the veteran was in receipt of these services prior to veteran's death or admission to a health care facility.
However, ``primary health giver'' is defined in a manner so as to encompass persons who might not be spouses, survivors or dependents.
Again, the minister has undertaken to amend the act, in his words, to ``clarify and strengthen the enabling authority.'' The most recent update from the minister indicates that a memorandum to cabinet is expected within the next 18 months. That memorandum then, presumably, will result in the issuing of instructions to proceed with drafting of the bill.
If that is acceptable to members, I suggest that the file be brought forward in the New Year for a progress report.
Hon. Members: Agreed.
Mr. Lee: A memorandum to cabinet is exactly the next step that must happen. However, what struck me was the 18 months. That is a long time and it is only for the next step. First, they have to figure out how they will change the statute. The next step is the memorandum.
I think 18 months is too long. I realize these things take time. If the minister had said 6 or 10 months, I would be less concerned. There is a pipelining and a priority to moving things into cabinet; I understand that. They take a number and wait a long time if it is 18 months. It is too long.
I appreciate that the minister has accepted the position of the committee on this item and they will fix it, but is there some way we can indicate, in our correspondence, that 18 months is too long? Has counsel found a way to articulate a greater sense of urgency?
Mr. Bernhardt: The letter can ask whether there is any way to speed up the process.
Mr. Lee: I do not think we should accept 18 months as a fix because 18 months is a two- or three-year operation, if they are amending a statute; it is almost Never Never Land.
If we are doing our job, we want to see something crisper in the response. I am looking for a firmer wording that the 18-month line-up is too long.
Mr. Bernhardt: The point can be made that the provisions of the regulations in question have been found by the committee at present to be unlawful. Given that situation, it is preferable to have the situation corrected as quickly as possible.
Mr. Lee: We can disallow in 30 days. I will say that but I do not want a debate about that subject. Our time lines are much shorter.
Mr. Bernhardt: In theory, yes, bearing in mind here that we are dealing with the payment of benefits to caregivers of deceased veterans, it might be a case where the committee wishes to exercise certain patience.
Mr. Lee: This member is not patient with 18 months. I have made the point. I am asking counsel to find a way to signal that impatience in the letter.
Mr. Bernhardt: We can make the point that we have illegal provisions nevertheless, and the committee wants the item addressed as quickly as possible, and that 18 months is too long.
Mr. Lee: This point is on the public record anyway, but one could say that, when the committee benchmarks things in terms of time, 18 months is a little longer than we expect.
The Joint Chair (Senator Wallace): We can come back to that issue. Your point is well taken and there is a lot to be said for it.
Senator Hervieux-Payette: I want to add my support. Even though it is not specific, these are veteran health care regulations. We are talking about health care. As far as I am concerned, by the time things are changed, most of the people will be dead. I am saying that, if this item was scrutinized by other people, they would think we are not doing our job.
I have the feeling that maybe you are patient. As senators, we are here for some time. However, others perhaps want to see the change while they are still in office.
The Joint Chair (Senator Wallace): Things were going so well to this point. The point is well taken. We will express the view that we hope the change can be made in less than 18 months, and perhaps ask for a shorter time for the change to be made. I think that approach is appropriate.
Hon. Members: Agreed.
SOR/2008-135 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT.
SOR/2008-136 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT
(For text of documents, see Appendix C, p. 11C:1 )
Mr. Rousseau: Mr. Chair, regarding this file, committee counsel have pointed out that the relevant enabling legislation allows the Governor-in-Council to amend the schedules to the two acts to add the names of agencies. The two orders before the committee today amend the schedules to these acts in order to strike out the Office of Indian Residential Schools Resolution of Canada from the schedules. Committee counsel have explained why, in their opinion, the government does not have this authority. In a letter dated April 30, 2009 sent by the Privy Council, we were informed that amendments to delete the Office from the schedule will be introduced through the Miscellaneous Statute Law Amendment Act and that the same procedure will be followed in respect of any future deletions.
Committee counsel will monitor this file until the Miscellaneous Statute Law Amendment Act is adopted.
The Joint Chair (Senator Wallace): Was April 30, 2009, the last response we received?
Mr. Rousseau: You are quite right, Mr. Chair. It is time to send them a reminder.
The Joint Chair (Senator Wallace): Are there any comments or questions? Thank you.
SOR/2001-520 — CANADA INDUSTRIAL RELATIONS BOARD REGULATIONS, 2001
(For text of documents, see Appendix D, p. 11D:1)
Mr. Bernhardt: The history of this file is summarized in the note that is included in the materials. There were 15 points first raised in 2002 and a number of amendments were promised. However, a significant number of unresolved matters remained.
After the initial exchange of correspondence, the committee had considerable difficulty in obtaining a further response that dealt with the substance of the specific points. That response was finally provided. In the response, the board reiterates its agreement to make a number of previously promised amendments and indicates that amendments will be made to address one additional matter.
There are still seven remaining matters. They are discussed in the note.
The first point concerns the need to clarify how paragraph 10(d) and paragraph 12(1)(b) are intended to operate together.
Points 2, 4, 5 and 7 all concern provisions that simply repeat what is already the case by virtue of provisions in the Canada Labour Code. Such repetition legally serves no purpose and it is also potentially confusing.
Turning to point 3, there was a long-standing commitment to enumerate in the regulations the general considerations the board will take into account when it decides whether a document should be treated as confidential. The board now advises, however, that it has decided not to enumerate these considerations because they would merely summarize the general considerations from the common law.
Nevertheless, there are a number of examples in federal regulations where the procedure for federal boards and agencies provides this sort of criteria for making decisions on the confidential treatment of documents. One of these examples is reproduced in the note; it is taken from the Canadian Transportation Agency rules. There is no doubt that similar provisions could be added to these regulations.
Finally, on point 5, there is an agreement to make a number of clarifying amendments. The board apparently prefers to wait on these amendments for a more substantive review of the regulations to take place as a phase 2 of amendments. That review will be undertaken after phase 1, which includes those amendments already promised to the committee. No time frame is given for the completion of this initiative, so before accepting such an undertaking, the committee should seek perhaps some indication as to how long this initiative is expected to take.
In summary, in addition to pursuing the matters in respect of which the response from the board is considered unsatisfactory for the reasons explained in the note, it is suggested that a time frame for the completion of each of the two phases of the planned amendment be sought.
The Joint Chair (Senator Wallace): Are there questions or comments?
Mr. Lee: I thought counsel's memorandum to the committee on this item was very good. If the board involved had access to that memorandum, I think it would be helpful to them.
Mr. Bernhardt: I expect any subsequent letter following this meeting will bear a similarity to the text of the memorandum.
Mr. Lee: This file on more than one occasion looks like it is out there in a bizarre remote location of the globe — like Lieutenant John Dunbar in Dances with Wolves — where the real world does not apply. The politeness of the replies forces me to accept this silliness. I want to put that point on the record.
Mr. Saxton: I point out also that the new person in charge, Elizabeth MacPherson, seems to be responsive. Each time we have asked for something, she has responded right away; she has followed up. I think she is someone who will be responsive to whatever we send the board.
Mr. Bernhardt: I think you are right in identifying a change — I do not want to say in attitude, but a change in approach to dealing with this item.
Mr. Saxton: She seems to have a good approach.
SOR/2004-68 — REGULATIONS AMENDING THE VETERANS ALLOWANCE REGULATIONS
(For text of documents, see Appendix E, p. 11E:1)
Mr. Rousseau: Mr. Chair, pursuant to section 3 of the Regulations, the applicant must furnish the names of the spouse or common-law spouse and of dependant children, along with, and I quote, ``all relevant information relating to them.''
When it reviewed this provision, the committee suggested that it be amended to clarify what specific information needed to be provided along with the application for financial assistance. The Department initially responded that this provision could be amended to make the requested clarifications. It even sent us a copy of its policy manual, Program for Veterans.
However, in a letter dated July 30, 2009, the Department announced that it had decided not to amend section 3 and that it would only be asking applicants to disclose relevant information when completing the allowance application form. It seems the department is well aware of the information that applicants must furnish. That information should be specified in the regulations rather than in administrative documents, all the more so given that furnishing this information is one of the conditions that must be met in order to receive financial assistance. Committee counsel recommends writing back to the Department regarding this matter.
Mr. Shory: I agree with writing back to the department. I read these letters and it seemed like they were in contradiction in some fashion. We should write back and ask for clarification.
The Joint Chair (Senator Wallace): Thank you. Is there anything else? We will proceed in that way.
SOR/2007-282 — DIRECTIVE TO THE CANADIAN NUCLEAR SAFETY COMMISSION REGARDING THE HEALTH OF CANADIANS
(For text of document, see Appendix F, p. 11F:1)
Mr. Bernhardt: This directive requires the Canadian Nuclear Safety Commission to take into account the health of Canadians who for medical purposes depend on nuclear substances, when the commission regulates the production, possession and use of such substances.
Section 19(1) of the Nuclear Safety and Control Act authorizes the Governor-in-Council to issue directives on broad policy matters with respect to the objects of the commission. The question, then, is whether this directive deals with a matter that is within the objects of the commission.
Counsel's letter of March 27, 2008, sets out the provisions of the act that state the purpose and the objects. The relevant purpose of the act is to limit to a reasonable level the risks to the health of persons associated with production, possession and use of nuclear substances. The relevant object of the commission is to regulate those things to prevent unreasonable risk to the health of persons.
Under the act, the commission must decide on regulations to prevent unreasonable risks that are associated with nuclear activities. To comply with the directive, the commission must consider also the health benefits of nuclear activities in deciding whether the level of inherent risk is acceptable. The act addresses health risks; the directive addresses health benefits.
This situation gives rise to a couple of questions. Does the act contemplate that the benefits are also to be taken into account in deciding what an acceptable risk is? Does Parliament want the commission to determine whether a risk is acceptable, based on an assessment of that particular technology, or does it want the commission to balance the risk with the benefits of the nuclear technology?
As detailed in the initial letter to the department, the parliamentary record seems to provide clear indication that at the time the act was passed, it was not intended that the commission conduct a cost-benefit analysis. The role of the commission was considered to be only to set safety standards and to ensure that the safety standards are met.
In view of this indication, it was suggested to the department that the legality of this directive can be cast into doubt. The department argues that the reference to the commission's objects, being to regulate to prevent unreasonable risk to the health of persons associated with the production or use of nuclear substances, includes the risk to the health of persons caused by the non-production of nuclear substances. As I have already said, the evidence from the debates in Parliament seems to suggest otherwise.
The department also argues that the relevant provisions in the act have to be given a liberal interpretation as will best reflect the intent, meaning and spirit of the act. In a sense, that is precisely the point. There are clear indications in the record in Parliament as to what that spirit and intent is, and they lead to the conclusion that the directive goes beyond the scope of the act.
There does not seem to be anything in the department's response to counter such a conclusion. Unless there is another stronger argument that has yet to be advanced, if the commission is to be required to undertake this sort of risk-benefit analysis, it seems the act has to be amended to provide this scope.
In conclusion, our view is that an attempt to impose such a requirement under the act, as it reads, by means of a directive is ultra vires. I suggest the committee send a letter to the minister asking him to reconsider the various arguments.
Mr. Saxton: Will the letter request clarification?
Mr. Bernhardt: Yes; the response from the department is thin in that it suggests that one has to interpret the act to comply with the spirit of the act. It concludes that analyzing an acceptable risk from a particular technology includes analyzing what happens if we do not have the technology. There is no mention made of the various excerpts from the parliamentary record to which we referred. At this time, the letter will ask for clarification in a reply that makes a counterargument and deals with what was presented in the House at the time by the minister responsible for the bill, and how that information is consistent with the expressed intent of the act.
Mr. Lee: Counsel has done an excellent job on this file. He has taken out the magnifying glass and looked closely at it. I cannot argue with him on the technical analysis but for one exception: The statutory framework, as I read it, is like a leaky boat that leaks both ways because the statute refers to ``limitation, to a reasonable level'' whereas the object of the commission description refers to ``prevent unreasonable risk'' to an entire class of persons and objectives. I cannot convince myself that a directive stating that one of the factors in assessing that reasonableness, going either way, is the health and safety of Canadians who use the radioactive isotopes. It is a kind of back-door-mechanism directive. I cannot reach the conclusion that it is completely offside and that there is no room for consideration of the absence of isotopes as a health risk affecting the class of people who are supposed to be reasonably protected from risk as defined in the statute.
I do not want to take counsel away from the technical point but if counsel believes that we are absolutely right and that my remarks have no merit, then I am content to support further correspondence on this file. However, if counsel thinks there is even a dim light at the end of my tunnel, perhaps we can leave it. We will never fix this item easily because there is a whole lot of life lying behind it.
Mr. Bernhardt: That was exactly the discussion we had when we first looked at this item and we went back and forth exactly as you describe. At that point, we decided to dig around and try to find something to help us determine one way or the other. We reviewed committee proceedings and debates of the House of Commons when the bill was passed. We found a number of statements. One in particular from the parliamentary secretary to the minister who sponsored the bill stated that:
. . . the inclusion of cost benefit analysis . . . is something that the government has discussed . . . . There was a consensus that there is a role for cost benefit analysis . . . but that it is premature to include cost benefit analysis in this legislation.
She also asked how one could place a value on human life or on environmental protection and that until those issues were addressed, the government determined that it would be unwise to include a requirement for cost-benefit analysis in this legislation.
Those comments were made when the parliamentary secretary to the minister spoke against an amendment that was introduced in the House of Commons to include cost-benefit analysis.
Those comments tilted the argument in one direction for us. It is not even mentioned in the reply from the department. The recommendation to write a letter to the minister is an attempt to focus on the intent of the statute as passed, and whether the departmental interpretation of the statute can be squared with those statements made at the time. It was only when we conducted our review that we were able to resolve our difficulty in interpreting the statute that you identified when looking at it in isolation.
Senator Ogilvie: I appreciate the technicalities and I sympathize with the various interpretations. I draw attention to the somewhat parallel situation in the approval of pharmaceuticals. There was a clear intent for absolute process in that area, and yet we have recognized that there are times when approval of a pharmaceutical prior to the completion of all phases in their detail is required to bring benefit to humanity under the humanitarian release program. Having invented a drug released under that program, I am very much aware of it.
I have also served on the Atomic Energy Control Board, and I am aware that we have attempted, over time, to bring regulatory process to a complex technological situation. Nevertheless, within those efforts there are relative levels of risk. I am inclined to think that if there is a way that the act can allow for a benefit to humanity that does not exacerbate risk, somewhat parallel to the example I have given in the pharmaceutical area, I hope that we are able to find that way. We are dealing with a situation that involves people in a high-risk situation who need the benefit of these isotopes. I realize that point does not address the language that you are dealing with, but I put out that point with regard to how we obtain a final interpretation.
Mr. Bernhardt: It is possible to ask for an amendment to the act, if only for the purpose of clarification. Such a strategy could be adopted.
Mr. Lee: We are searching for a way to receive in writing for the committee record a reasonable justification for the directive. If the department is able to rearticulate it in a way that follows the law, then we can leave it and not seek amendments. We should continue to correspond with the department in an attempt to see if they can address our concern.
Mr. Saxton: To clarify, is our intention to write back to the Chief of Parliamentary Affairs of the Strategic Planning and Coordination Directorate at Natural Resources Canada?
Mr. Bernhardt: Yes.
Mr. Saxton: The Acting Chief at the time was Jeff Wilson, I believe.
Mr. Bernhardt: I believe he is still the contact for this file.
Mr. Saxton: We will continue to correspond with the person in the same position.
Mr. Lee: I would like to see the agency move this issue into the hands of a high-quality legal technician. I do not want our counsel, who is highly skilled, dialoguing with a departmental person who might not have had that type of experience. It is important that the agency turn this item over to someone who has the ability to dialogue with our counsel, one on one. Counsel should keep his eye on that item. Otherwise, it will go sideways for another six months.
Mr. Comartin: I have a question and a comment about the correspondence.
Is there any other material that you have not looked at that might counter what happened at committee?
With regards to the letter, we have to communicate to the minister our concern that unless they can come up with a rational, logical explanation why we should allow this directive, we will have to seek an amendment. The committee is seeking some methodology to avoid that course. We can communicate the concern you have heard from the senator and Mr. Lee in that regard. I think you have to express our concern about setting a precedent and ignoring what is — from what you have given us so far — clear evidentiary material that the intent was the opposite of what this directive will accomplish.
The Joint Chair (Senator Wallace): That approach sounds reasonable. Are we in agreement on the point that we express our concern? To avoid an amendment, we expect a more precise response on the directive.
Mr. Saxton: However, the letter will be sent to this person still?
The Joint Chair (Senator Wallace): Yes.
Mr. Bernhardt: That is the usual practice of the committee following the meeting. In this case, we are dealing with departmental officials. That letter would come from counsel. At some point if it is kicked upstairs to the minister, which the committee does as the next level if it is not satisfied with the way things have gone between counsel and the officials, the chairman would write directly to the minister. That course of action is taken routinely as the next level of discussion, as it were.
Mr. Comartin: Back to my initial question, is there any other material we can look at to see if we can have a counter- interpretation?
Mr. Rousseau: Mr. Chair, when we initially examined the file, we wanted to see how the commission had interpreted its mandate over the years. As you know, regulations and regulatory amendments come with an impact assessment summary. In the case of each of these summaries, the Commission approached the issue by asking what was the best possible standard available in the world to protect Canadians from the risks associated with nuclear activities. Basically, that was the question that the Commission was asking itself and the basis for its adopting or amending the Regulations.
In some respects, this confirmed to us that our interpretation of the directive was correct. As the General Counsel pointed out, Parliament had released a statement at the time the bill was under consideration and based on the studies done by the Commission, it decided which regulations to adopt. Its approach was consistent, that is it tried to come up with a standard that would protect Canadians from nuclear activities. Therefore, its approach was consistent with the one being suggested here this morning.
Mr. Comartin: Thank you.
SOR/96-484 — RADIOCOMMUNICATION REGULATIONS
SOR/98-437 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS
SOR/99-107 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS
SOR/2001-533 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS
(For text of documents, see Appendix G, p. 11G:1)
Mr. Rousseau: Mr. Chair, this is a rather large file. As we can see from the note prepared for the committee, the Radiocommunication Regulations replaced three regulations that the committee has commented on over the years. All of the details as to the nature of these comments and the various amendments made in response to the comments, including an amendment to the Radiocommunication Act, are described in the comment accompanying the file which appears after the note.
The files pertaining to the three regulations that were replaced can be closed.
The Department and committee counsel exchanged letters about the new Regulations. Twelve points were raised in a letter dated August 8, 2005.
Amendments were promised in the case of points 7 and 12. The minister was looking into possible amendments in the case of point 7.
With respect to point 4, the minister was also looking into the problem identified and will advise us of the solution retained. It would be advisable to inquire of the department as to whether any decisions have been made.
In the opinion of committee counsel, the responses given to points 1, 5, 9 and 10 are satisfactory, but unsatisfactory in the case of points 2, 3, 6, 8 and 11.
Regarding point 2, subsection 14(2) of the Regulations states that every subscriber to the services and lessee of radio apparatus of a radiocommunication service shall, and I quote: ``comply with the terms and conditions of its radio licence that are applicable to those subscribers or lessees''. It is the type of regulatory provision that the committee recommended be removed when it examined the Ontario Fishery Regulations, 1989.
As explained in detail in the note, subsection 14(2) of the Regulations is unnecessary in that it constitutes either an attempt to make non-compliance with a contract liable to a fine or imprisonment without a clear regulatory power to that effect, or an attempt to make conditions applicable to the subscriber which are not prescribed by regulations, without a clear enabling provision to that effect. In light of the explanations provided by the department on the nature of this provision, subsection 14(2) should be removed.
Point 3 concerns sections 15, 15(1), 15(2) and 16 of the Regulations. Pursuant to paragraph 14(1)(a) of the Act, it is prohibited without a communications authorization and without respecting its conditions to install, operate or possess radio apparatus other that apparatus exempted pursuant to regulations made under paragraph 6(1)(m) of the Act. This provision states that the Governor-in-Council may make regulations prescribing radio apparatus or any class thereof, that is exempt, either absolutely or subject to prescribed qualifications from the application of subsection 4(1).
Section 15 of the Regulations, like the other provisions mentioned, is supposed to be an exercise of this power to exempt certain apparatus. Pursuant to this provision, radio apparatus that meets a standard set out in the Licence Exempt Radio Apparatus Standards List, as amended from time to time, published by the Department of Industry, is exempt from the application of subsection 4(1) of the Act in respect of a radio licence.
In summary, when the department decides to publish a standard, in so doing it decides that an apparatus will be exempted. The minister is therefore exercising the power to exempt that Parliament has delegated to the Governor-in- Council. The committee encountered the same provision when it examined the Telecommunications Apparatus Regulations. The minister undertook to request an amendment to the Telecommunications Act. The same solution should apply in this case.
The problem raised in point 6 concerns the fact that Parliament has granted the minister the discretionary power to suspend or cancel certain authorizations. Conversely, pursuant to the Regulations, the minister is under the obligation in certain instances to either suspend or revoke these authorizations. No provision in the Act clearly gives the Governor-in-Council the power to make regulations concerning the suspension or cancellation of radiocommunication authorizations.
The department has indicated that it is examining possible amendments to section 29 of the Regulations. It might be a good idea to request a status report.
Regarding the other two provisions in the Regulations, as explained in the note, committee counsel is of the opinion that there is no regulatory authority for adopting them. Furthermore, their usefulness is questionable and they can be viewed as attempts to amend the legislation through regulation which, in the absence of a clear enabling provision to that effect, makes them illegal regulatory provisions that should be revoked.
Point 8 concerns section 32 of the Regulations which stated that a person may only operate radio apparatus to transmit a signal which does not contain profane or obscene radiocommunications.
In light of the Supreme Court of Canada case law, in particular in R. v. Butler, one may doubt the compatibility of subsection 32(1) of the Regulations with subsection 2(b) of the Canadian Charter of Rights and Freedoms, which protects the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. As mentioned in the note, the problem the department faces is that there are a very large number of users. In order to solve that problem, it chooses to forbid any signal containing profane or obscene radiocommunications. It is thus attempting to settle its technical problem with a solution that constitutes an infringement on rights and freedoms. This can hardly be considered a restriction that is justified under the Canadian Charter of Rights and Freedoms.
For the reasons stated in the note, it would be appropriate to write back to the department about the difficulty justifying subsection 32 (1) of the Regulations.
Finally, regarding point 11, given the department's response, one might be inclined to think that it misunderstood the problem raised. Pursuant to subsection 53(2) of the Regulations, no person shall operate radio apparatus contrary to an order made under subsection 52(1). The issue is knowing why the interdiction in subsection 53(2) only applies to radio apparatus if the minister may, pursuant to subsection 52(1) issue an order concerning not only radio apparatus, but also interference-causing equipment and radio-sensitive equipment. I think it would be appropriate to write back to the department.
If the committee has no objections, counsel will write back regarding those points raised for which no satisfactory solution was found and request a status report on the points under consideration and the promised amendments.
Senator Hervieux-Payette: Has any progress been made since 2005 or 2006? You are talking about issues that have yet to be resolved. However, 50 per cent of the problem has been settled. I merely want to know what progress has been made over the past four years.
Mr. Rousseau: You are right in that some satisfactory responses have been received and some amendments have been promised. Some points are under consideration. Now we need to find out if any decisions have been made. There are still five outstanding issues, but this is a complex file and historically, with respect to these Regulations, there have been numerous letters exchanged with the departments. In my opinion, things are progressing more or less normally.
Mr. Asselin: You are not talking about radio communications?
Mr. Rousseau: No, we have always exchanged letters.
Senator Hervieux-Payette: I agree that counsel should write back and ask that the remaining problems be corrected, emphasizing all the while that we greatly appreciate everything they have done so far but that after four years, the problems should be resolved once and for all.
Mr. Rousseau: Fine.
Mr. Lee: The agenda this morning on this file makes it seem like one tree probably gave its life so we could have all this paper before us. I am sorry to reuse the phrase, but the file also looks like a ``target-rich environment.'' There is a lot of potential ultra vires illegality in this item. It touches on Charter issues, as well. Although the department says these issues are all broadcast technical issues and we should not worry about them, someone must be the traffic cop out there.
I think Mr. Rousseau might understate the significance. The thickness of the file is a testament to a number of issues. Perhaps the department should know that we would like to have it cleaned up, particularly the more egregious legal issues involving illegality and Charter issues.
Can we move it up the totem pole, so the department knows we are serious? I realize the correspondence must still go back and forth to gain clarity on their position, but I do not want this item to sit around for another two years.
The Joint Chair (Senator Wallace): When you say move it ``up the totem pole,'' where do you suggest it be directed?
Mr. Lee: If I were a bureaucrat and I received a letter and paper about three-quarters of an inch, that information would take me at least half a year to go through. I do not want the department to fall back into that attitude.
There are so many issues here. Perhaps we should break the file up into smaller files. I am only joking. However, can we bring it back sooner or look for a reply from the department more quickly? I could say: Get clarification on everything in 60 days and come back to us. That is one way to do it. If colleagues want to do that, we can ask counsel to take that approach.
Mr. Rousseau: It is certainly possible to ask the department to proceed more quickly — 60 days — as noted.
Mr. Galipeau: I want to speak to point 7 for a minute. Regarding the advice we are receiving here, I want to know what direction they are headed and I want them to know in what direction I want to go.
The last line talks about ``thus taking away the benefits of the spectrum to younger family users.'' This is not about taking away benefits. This is strictly about the protection of minors and that is the angle under which I would like this to be considered. That is my only comment.
The Joint Chair (Senator Wallace): We will take that into account in the response. Thank you. Is there anything else?
SOR/98-159 — MOTOR VEHICLE RESTRAINT SYSTEMS AND BOOSTER CUSHIONS SAFETY REGULATIONS
(For text of documents, see Appendix H, p. 11H:1)
Mr. Bernhardt: Following the committee's initial consideration of this instrument, five points were pursued further. Using the numbering in the correspondence, there are amendments promised to address points 8, 9 and 13. These amendments have now been made, as have the other previously promised amendments in connection with the regulations.
That leaves points 14 and 25. On point 14, under the terms of the authorization document set out in Schedule 1, a company can use and apply the national safety mark only at the specified premises set out in the authorization. Apparently, this is not the intent. The department has undertaken to amend the form and this amendment is being followed-up in connection with other related amendments to related regulations that, I believe, were before the committee two meetings ago.
That leaves only point 25. On this point, the department is continuing to claim that requirements that certain parts of restraint systems have no corrosion that can be transferred to the occupant or occupant's clothing, and that the parts be colour-fast and non-staining, are for the purpose of reducing the risk of death, injury or property damage from vehicle use. It is claimed this is because, if seatbelts damage people's clothing, people will be less inclined to use the seatbelts.
We have seen this argument elsewhere and the committee has taken the view that these sorts of requirements have nothing do with the safety of the equipment, as such. Therefore, the authority for them is doubtful.
In short the issue before the committee this morning is whether it is still of the view that requirements that prevent seatbelts from damaging clothing can be characterized as safety requirements. To date, the committee has said they cannot.
The Joint Chair (Senator Wallace): Do members have any questions or comments?
Mr. Shory: I believe we should write them again. Safety and security of infants and citizens, rather than clothing, should be the priority.
If they want to make more amendments about the cleanliness and safety of clothes as well, they are welcome to. However, we should write them back, emphasizing that we are concerned about the security and protection of the seat- belt wearers.
The Joint Chair (Senator Wallace): Are there any other comments or questions? Mr. Bernhardt will respond with that emphasis.
Mr. Bernhardt: We will try again.
Mr. Lee: Sorry, Mr. Chair, can I go back for a minute? When we finished off the last item, I think we asked counsel to run it up the flag pole again, to continue correspondence. I do not think we have given counsel anything additional to write beyond what was written the last time.
We may be setting up a perpetual motion machine here, where we write, they write back, we write and they write back. I think we should allow counsel to firm up in some way here. I am divided on the item myself; but from a strictly legal point of view, legislating about the taste of sugar or the damage that sugar might do to clothing is not necessarily a safety thing. I sympathize with counsel's predicament.
What message are we asking counsel to send? Is counsel clear on what he is to write back to the department now on that motor vehicle safety issue?
Mr. Bernhardt: We can make the argument again and convey that it remains the committee's view that these issues are not safety requirements.
Mr. Lee: Is there law elsewhere in our files that allow counsel to provide a little vignette that teaches — a teaching moment?
Mr. Bernhardt: We have another file where basically the same issue has arisen.
Mr. Lee: With the same department?
Mr. Bernhardt: Yes, it is another set of provisions dealing with restraint systems in another context where there are similar provisions. The argument has been raised there as well.
In fairness, each time the committee has gone back, it has gotten some satisfaction. The committee started with 25 points and ended up having to write back on five. We received promises on 4 of those points, and 23 of the 25 have in fact been made. One is being followed up in another file.
Slowly but surely, we have whittled down the problems, and we are left with this one. In that sense, it may be worth going back one more time to have another try, and say the committee has considered the latest reply and it does not buy the argument. The next option is to write to the minister as opposed —
Mr. Lee: If the department adopted a regulation that said the manufacturer of a seat belt shall not do anything in that manufacturing process that would in the end reduce the propensity of a user to use the seat belt — it is a shotgun approach to public safety — would that be legal?
Mr. Bernhardt: It would be vague. That might be the objection. There is a matter of drawing a line, I suppose. Unfortunately, it falls to the committee to decide where that line is drawn.
On the one hand, if the regulation stated that ``a seat belt shall be pretty colours,'' and the response was, people like pretty colours so they will use the seat belt, and for that reason, requiring that they be pretty colours is a safety issue, the committee would say no.
Mr. Lee: I do not know about that.
Mr. Bernhardt: Maybe not.
Mr. Lee: Let us ask some of the female members of Parliament here; they care more about colours. I am sure that remark sounds sexist. I will stop there.
Mr. Dreeshen: In response, whether it is legal or not, there are enough excuses out there not to use seat belts. I think we should try to pin this issue down, state it as clearly as we possibly can and move on with it.
For these other excuses for example, maybe there is rust on the seat belt so that is the reason why someone was not wearing a seat belt and that person was in an accident, et cetera, I want us to do what we can to encourage people to use seat belts rather than coming up with lame excuses.
The Joint Chair (Senator Wallace): Is there anything else? Mr. Bernhardt, do you have a clear sense now of what we will write? Again, I realize you want to elevate it. I do not want to reopen the discussion, but are we clear?
Mr. Lee: Mr. Bernhardt is to seek from the department a clear linkage between safety and the content of the regulation. In the absence of that clear linkage, I do not think we can accept it as a valid regulation under that rubric. The department may well find a way to link safety to the colour of the seat belt. Let us see what they come up with.
Mr. Shory: I apologize for taking time, but I am trying to understand whether we are trying to compromise between the safety and the clothes here? What are we looking at? Is security not a primary purpose?
Mr. Bernhardt: Exactly; and the authority that the regulation maker has here is to set safety standards for automobile parts, components and equipment. The regulation then says that seat belts must be colourfast and they should not have parts that will corrode and damage people's clothes.
In their interpretation, that is a safety standard. The question for the committee is whether it agrees with that argument or not. To date, it has not, but the question is, as always, on the table.
Mr. Hoback: I look at that corrosion — I put my farmer hat on here — and say corrosion is a safety hazard. If seat belts have any type of corrosion, it will weaken the belt or the fastening joint. It can even be separated from the possibility of staining a person's clothes. That is irrelevant in a lot of cases.
However, any type of corrosion can be perceived as a safety risk. Thus, they need to prevent it from happening. I think that is what they are trying to do here. If we voiced our letter in that context, maybe we would receive the reply we want.
The Joint Chair (Senator Wallace): Obviously, the focus is on safety. Let us not lose that focus in the process. If we are agreed, we will move on.
SOR/2003-105 — SEAWAY PROPERTY REGULATIONS
(For text of document, see Appendix I, p. 11I:1)
Mr. Bernhardt: We have 19 points that were raised. A number of amendments were promised. As well, I suggest the response is satisfactory with regard to the third point.
There are eight remaining issues. These are all addressed in the note. To spare the committee pain, I am happy just to summarize any of those points or answer questions.
The majority of them concern the need for greater clarification. I will highlight two, however. The first is point 11, which concerns provisions that require compliance with directions issued by a manager or a person authorized by the manager.
The effect of these provisions is that contravention of a direction will amount to a contravention of the regulations, which is an offence. In other words, the provisions indirectly create offences by requiring people to obey administrative directions as if they were the law, and for contravention of which they could suffer penal consequences.
There may be a way around that situation in this case. The act does make it an offence to fail to comply with a reasonable requirement of an enforcement officer. One solution might be for the manager or the manager's representative to be designated as an enforcement officer. Then the provisions in the regulations would not be needed and could be taken out.
At point 13, some amendments are promised as a partial solution. With respect to the concern raised in the first paragraph, the regulations authorize the manager to remove things from seaway property at the expense of the owner for reasons other than interference with navigation. This goes beyond the authority conferred in the parent act. The committee raised the same issue in connection with the Port Authorities Operations Regulations. A solution was arrived at in that case. That same remedy should be suggested to the seaway authority to resolve this issue. I suggest a further letter following up the points outlined in the note. I will be pleased to answer any questions on the other points.
The Joint Chair (Senator Wallace): Any questions or comments on the suggested resolution that Mr. Bernhardt has laid out in his memo for each of these points? Are members agreed?
Hon. Members: Agreed.
SOR32006-101 — TRAFFIC ON THE LAND SIDE OF AIRPORTS REGULATIONS
(For text of documents, see Appendix J, p. 11J:1)
Mr. Rousseau: Mr. Chair, this file contains a note and a comment drafted for the committee. The comment describes the amendments that have been made in response to the committee's comment about various related regulations. The note explains the correspondence concerning SOR/2006-102.
Counsel initially raised eight points in the letter dated October 23, 2006. The department responded in the letters dated May 23, 2007, July 22 and October 24, 2008. Amendments were promised with respect to points 1 through 4 and 8, and the appropriate corrective action has already been taken with respect to points 1 through 3 and 8, when SOR/ 2009-123 was passed. These regulations are also on today's agenda. For the reasons stated in the note, counsel is of the opinion that the response to point 6 is satisfactory.
The problem highlighted in point 7 concerns the incorporation by reference of documents with subsequent amendments. Absent an express grant of authority, recourse to this type of incorporation by reference should be seen to be an illegal subdelegation. The committee is following this matter closely and even discussed it again this morning. Barring a satisfactory solution within a reasonable period of time by way of draft legislation announced by the Minister of Justice, the department should agree to take timely corrective action on this matter. It would be appropriate to ask it to commit to taking such action.
Finally, in the opinion of committee counsel, the response to point 5 is unsatisfactory. Section 22 of the Regulations prescribes the fines and term of imprisonment to which persons are liable if they contravene a provision of the Regulations. Judging from the recommendation preceding the text of the Regulations, these were adopted pursuant to the regulatory authority that Parliament has delegated to the Governor-in-Council under sections 2 of the Government Property Traffic Act and 4.9 of the Aeronautics Act. Consequently, section 22 of the Regulations is ultra vires in as much as it stipulates that ``any person who contravenes a provision of these Regulations'' is liable to a fine, as prescribed.
The punishment set out in section 22 of the Regulations applies only to the provisions of the Regulations made under the Government Property Traffic Act and would not apply to regulations made under the Aeronautics Act. Therefore, in the opinion of committee counsel, these fines would not apply, for example, in the case of an offence under section 20 of the Regulations pursuant to which no person shall throw, deposit or leave any form of trash or garbage except in a container provided for that purpose.
The department acknowledged in a letter dated May 23, 2007 that only the provisions of regulations made under the Government Property Traffic Act may be subject to the fines prescribed in section 22. In the opinion of the department, all of the provisions of the Regulations were adopted pursuant to the Act, even those that pertain to animals at large and the deposit of trash and garbage, because this can present a danger and obstruct traffic. According to the department, section 4.9 of the Aeronautics Act was mentioned merely for the purpose of ``erring on the side of caution . . . in the event the powers of the Government Property Traffic Act are deemed inadequate'' with respect to the two provisions relating to animals and trash and garbage.
Unless one accepts the department lumping together animals at large, trash, garbage and traffic, this response does not appear to be very satisfactory. The mere fact that citing section 4.9 of the Aeronautics Act was deemed necessary shows that the department is not at all certain that opting to do this is justified.
Moreover, the department noted in its response that it can apply the Regulations either pursuant to the Aeronautics Act or the Government Property Traffic Act. A person who contravenes the Regulations is liable either to a fine as prescribed by Parliament in the Aeronautics Act or to the fines prescribed by the Governor-in-Council in the Regulations. This observation is surprising and the department should at the very least demonstrate that it is acting on the basis of a well-established legal principle. The department would also be well advised to show how it does not stand in contradiction to its statement that only the provisions of regulations made under the Government Property Traffic Act may be subject to the penalties prescribed in section 22.
If the committee agrees, counsel will write to the department about points 4, 5 and 7.
Hon. Members: Agreed.
SOR/206-239 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS
(For text of documents, see Appendix K, p. 11K:1)
Mr. Rousseau: Mr. Chair, let me begin by pointing out that the adoption of SOR/2006-239 has resulted, as noted in the comment drafted for the committee, in the correction of six drafting problems in the Regulations. As for SOR/ 2006-239 itself, the letter sent by committee counsel on March 12, 2008 raised four points. Amendments were promised with respect to points 1, 2 and 4. The committee needs to decide whether the response in the case of point 3 is satisfactory.
The concern raised in point 3 is that the Regulations impose no timeframe on the owner or operator of a mine to inform the minister that the compensation plan's purpose in offsetting the loss of fish habitat has not been achieved. Committee counsel wondered if it would be advisable to insist that the notice must be given without delay. In a letter dated October 17, 2008, the department responded that the Regulations did not need to be amended because, in its opinion, ``it is very difficult, if not impossible, to determine precisely when the requirements intended to attain the objectives have not been met''. One can think that even though it may be difficult to determine precisely when the requirements have not been met, that particular moment does necessarily exist. In any event, committee counsel were merely making a suggestion and since, pursuant to the Regulations, the compensation plan presented to the minister must specify a timeframe for implementation, one that would make it possible to attain the objectives set out in a reasonable timeframe, we can interpret this provision as implicitly setting a deadline. If that deadline cannot be met, then the minister must be informed.
If the committee is satisfied, counsel will write back to the department to inquire about the progress made in terms of making the promised amendments.
The Joint Chair (Senator Wallace): Are there questions or comments? Are members agreed?
Hon. Members: Agreed.
C.R.C. c. 1486 — SMALL FISHING VESSEL INSPECTION REGULATIONS
(For text of document, see Appendix L, p. 11L:1)
Mr. Bernhardt: A number of concerns were first identified in connection with these regulations in 1983. All the requested amendments to the regulations have been made. In addition, because the regulations incorporate by reference the department's standard numbered TP 127, that document was examined as part of the review of the regulations. Therein, a number of defects were noted as well.
Over the years, successive revisions of the standard have gradually addressed most of the concerns. By 2008, only those concerns described in counsel's March 5, 2008 letter remained. Since that time, there has been yet another new edition of the standard. It has resolved all but one of these remaining issues.
All that is left is to remove all references in the standard to the Board of Steamship Inspection because the Board of Steamship Inspection no longer exists.
Recently, the committee has been told that this revision will be made following a major revision of marine safety regulations. This revision presumably will result in yet another new standard. This revision is all to be completed in early 2012.
If this response is satisfactory, we can write and ask whether this time frame is still the projected one. One wonders why deleting references to a board that has ceased to function should be put off. It is a relatively minor revision to a departmental standard. The committee has waited this long, so the question is whether it wishes to exercise more patience.
Mr. Lee: I am curious to know if this is our oldest file; it is 26 years old.
Mr. Bernhardt: It is definitely right up there.
Mr. Lee: I say that only because, if it is, we should accord it a whole lot of respect. These files are relics from the past.
Is there a way we can receive ceremonially the final commitment to make the change, then close the file and have a party or something? Do we ever simply accept the undertaking and close the file, if it is a minor thing?
Mr. Bernhardt: In this case, I think we can presume that when the standard is rewritten, it will not contain references to a board that has not existed for years. In the interests of thoroughness, perhaps, we ought to hang on until it is done. I do not wish to sound flippant, but it might be like losing an old friend.
Mr. Lee: It would not be the first time that a department failed to deliver on a commitment. In that one-out-of-a- thousand chance that the individual preparing these regulations believes that the steamboat packet ship control authority still exists, I am happy with whatever counsel wants to do.
The Joint Chair (Senator Wallace): Are we in agreement that we will write back and accept the 2012 date?
Hon. Members: Agreed.
SOR/2004-214 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART I)
(For text of documents, see Appendix M, p. 11M:1)
Mr. Rousseau: These Regulations impose charges for the reinstatement of certain suspended documents. The act authorizes the Governor-in-Council to impose charges in respect of the issue, renewal, amendment or endorsement of any document. Counsel wanted to know how the department could justify a charge for the reinstatement of a document when there is no mention of this in the act. The department responded that the term ``renewal'' includes ``reinstatement.''
After doing more research, committee counsel found that the definition of the verb ``to renew'' in the Canadian Oxford Dictionary confirms this usage. Before recommending to the committee that it accept the department's response, Counsel asked the department to confirm that no one will have to pay a charge if the decision to suspend the document is not upheld by the Transportation Appeal Tribunal of Canada. The department confirmed that no one would be charged under these circumstances in a letter dated August 28, 2009. If the committee is satisfied, this file can be closed.
The Joint Chair (Senator Wallace): Are members agreed?
Hon. Members: Agreed.
SOR/2008-258 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (INTRODUCTION OF TECHNICAL STANDARDS DOCUMENTS NOS. 110 AND 120) AND MOTOR VEHICLE TIRE SAFETY REGULATIONS, 1995
(For text of documents, see Appendix N, p. 11N:1)
Mr. Rousseau: As mentioned in the note prepared for the committee, the adoption of SOR/2008-258 corrected a drafting problem identified by the committee. Regarding SOR/2008-258, counsel raised a concern about the drafting of the English version. The minister explained in letters dated February 24 and April 14, 2009 why changes to the English version were not warranted.
In the opinion of committee counsel, the department's response is satisfactory. If the committee has no objections, the file can be closed.
The Joint Chair (Senator Wallace): Are members agreed?
Hon. Members: Agreed.
SOR/98-526 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND V)
(For text of documents, see Appendix O, p. 11O:1 )
Mr. Rousseau: In a letter dated January 21, 2009, committee counsel raised 6 points which are summarized in the note prepared for the committee. In its letter of May 13, 2009, the department did not provide a detailed response to each of the points raised. However, it did announce that the parts of the Regulations containing the disputed provisions would be repealed.
If this will be a straightforward repeal and no new provisions will be introduced, then the source of the problem will be eliminated. If that is in fact the case, the committee could accept not having received a detailed replay. If the committee has no objections, counsel will write back to the department to request confirmation of its actions.
The Joint Chair (Senator Wallace): Are members agreed?
Hon. Members: Agreed.
SOR/2005-149 — EXPORT AND IMPORT OF HAZARDOUS WASTE AND HAZARDOUS RECYCLABLE MATERIAL REGULATIONS
(For text of documents, see Appendix P, p. 11P:1)
Mr. Rousseau: Amendments to the Regulations and to the act have been promised. In the letter dated August 7, 2008, the department informed us that the amendments to the Regulations to correct drafting problems should be adopted in 2010. As for amending the act itself to harmonize the two versions of subsection 191(b), the department indicated in its letter of May 28, 2009 that the wording would be harmonized the next time a government bill regarding this part of the act is introduced in Parliament.
It would be advisable for committee counsel to write back to ask if the department has any idea when the bill will be introduced. Counsel could ask at the same time whether any progress has been made on amending the Regulations.
The Joint Chair (Senator Wallace): Are members agreed?
Hon. Members: Agreed.
SOR/2003-288 — STAMPING AND MARKING OF TOBACCO PRODUCTS REGULATIONS
(For text of document, see Appendix Q, p. 11Q:1)
Mr. Bernhardt: There were three slight discrepancies identified between the English and French versions. Initially, it was forecast that the necessary corrections would be made in 2008. Later, the anticipated date was moved back to the end of 2009. That date is fast approaching and the amendments have yet to see the light of day. Perhaps, the Canada Revenue Agency should be asked if it still expects to meet this end-of-year deadline.
The Vice-Chair (Mr. Galipeau): Should they be asked or should they be told?
Ms. Gagnon: I have a question because I am new to the committee. Why does it take so long to get a response to a request for an amendment to harmonize the French and English versions? I really do not understand why it takes this long. We can send a letter to the translation services and get the translation the very same day. What is this so complicated?
Mr. Rousseau: This issue is complex. One file is different from another. In some cases, we do admittedly ask ourselves what is happening. However, there is no simple answer to the question. Circumstances vary from one file to the next.
Ms. Gagnon: I understand the importance of finding the right word and the impact this can have. Perhaps the problem is due to a shortage of translators.
Mr. Rousseau: I doubt that is the reason, especially with respect to English to French translators.
Mr. Galipeau: Mr. Chair, I suggest we request a response from the department before the end of the year. Otherwise, matters could drag on indefinitely and we might never get an answer.
Mr. Lee: The Auditor General's report from a couple of days ago flagged some 400 technical changes required for the Income Tax Act, which is managed by CRA. It may be that particular agency and its connection to Finance might have a huge backlog. I ask counsel only to keep an eye on it. I certainly will.
It could be that this issue is a departmental weakness or that, because we have these short parliaments, departments are having difficulty putting their technical changes through when there is other legislation that seems to have greater priority. This situation may also hold true with regulations and statutory amendments to square up the regulations.
Mr. Galipeau: The issue is one of consistency between the two versions. This is, after all, a parliamentary committee, a joint committee of the Senate and House of Commons. We have requested some clarification from the Canada Revenue Agency. If we do not insist on the problem being addressed within the timeframe they announced, the issue might never be resolved. All I am doing is considering how the CRA deals with taxpayers. They do not ask taxpayers to get around to paying when they have the time. They set deadlines that must be respected. I think they understand that kind of language. We simply need to set a deadline and stick with it.
Mr. Lee: I am in full agreement with Mr. Galipeau.
The Joint Chair (Senator Wallace): We are agreed; we will send a letter and prompt this one to conclusion.
SOR/2007-13 — REGULATIONS AMENDING THE CANADA PENSION PLAN INVESTMENT BOARD REGULATIONS
(For text of documents, see Appendix R, p. 11R:1 )
Mr. Rousseau: The committee believes that subsection 53(2) of the Canada Pension Plan Investment Board Act, which is quoted in the letter dated June 17, 2008, requires provincial approval of any amendments to the Regulations prior to their adoption by the Governor-in-Council.
In this instance, the amendment in question was approved prior to its adoption. The committee suggested that if the current procedure was not appropriate, then the solution was to ask Parliament to amend the act.
In its letter of January 15, 2008, the department replied that after researching the matter further and consulting with the Department of Justice, it would, and I quote: ``be prudent that measures be taken to remove any doubt. Accordingly, the Department of Finance has agreed to take such measures in due course.''
This is an extremely vague undertaking. Committee counsel recommends that the committee write back to the department and ask it to clarify the measures it plans to take and when it intends to act.
The Joint Chair (Senator Wallace): Are members agreed?
Hon. Members: Agreed.
SOR/2007-29 — REGULATIONS AMENDING THE PUBLIC SERVICE SUPERANNUATION REGULATIONS
(For text of documents, see Appendix S, p. 11S:1)
Mr. Rousseau: Committee counsel highlighted a discrepancy between the French and English versions of the enabling legislation pursuant to which the Regulations were adopted.
In a letter dated November 12, 2008, Treasury Board advised that there is, and I quote, ``merit'' in the recommendation to amend the French version of this legislative provision to reflect the wording and intent of the English version. This is a vague response which does not necessarily translate into a commitment to ask Parliament to make the requested amendment. Counsel therefore recommends that the committee write back and request confirmation that action will be taken, if it has not already been taken, within a reasonable timeframe.
The Joint Chair (Senator Wallace): Are members agreed?
Some Hon. Members: Agreed.
Mr. Bernhardt: If members are in agreement, I propose to follow the usual practice and deal with the instruments under Action Promised, Action Taken and Statutory Instruments Without Comment as three groups.
Some Hon. Members: Agreed.
SOR/87-259 — POSTAL SERVICES INTERRUPTION REGULATIONS
SOR/87-260 — PROHIBITED MAIL REGULATIONS, AMENDMENT
(For text of document, see Appendix T, p. 11T:1)
SOR/2006-157 — ORDER AMENDING THE SCHEDULE TO THE INSURANCE COMPANIES ACT
(For text of document, see Appendix U, p. 11U:1)
SOR/2007-63 — SERVICE OF DOCUMENTS REQUIRED OR AUTHORIZED TO BE SERVED UNDER SECTIONS 53 TO 57 OF THE CONFLICT OF INTEREST ACT REGULATIONS
(For text of document, see Appendix V, p. 11V:1)
SOR/2008-151 — REGULATIONS AMENDING THE PACIFIC PILOTAGE TARIFF REGULATIONS (ADDITIONAL CHARGES)
(For text of document, see Appendix W, p. 11W:1)
Mr. Bernhardt: Under Action Promised, there are five instruments in connection with which a total of five amendments are promised. We will follow up on their progress.
SOR/2009-64 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE REGULATIONS
(For text of document, see Appendix X, p. 11X:1)
SOR/2009-123 — REGULATIONS AMENDING THE TRAFFIC ON THE LAND SIDE OF AIRPORTS REGULATIONS
(For text of document, see Appendix Y, p. 11Y:1)
SOR/2009-167 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF TRANSPORT REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix Z, p. 11Z:1)
SOR/2009-185 — STANDING ORDERS AMENDING THE COMMISSIONER'S STANDING ORDERS (DISPUTE RESOLUTION PROCESS FOR PROMOTIONS AND JOB REQUIREMENTS)
(For text of document, see Appendix AA, p. 11AA:1)
SOR/2009-220 — REGULATIONS AMENDING CERTAIN CANADIAN FOOD INSPECTION AGENCY REGULATIONS
(For text of document, see Appendix BB, p. 11BB:1)
Mr. Bernhardt: Under Action Taken, there are five instruments and these instruments make 13 amendments requested by the committee. The amendments include the revocation of three provisions, the authority for which had been questioned.
SI/2009-6 — EUGENE SKRIPKARIUK REMISSION ORDER
SI/2009-7 — CATHERINE BLAND REMISSION ORDER
SI/2009-8 — JESSICA MCKENNA REMISSION ORDER
SI/2009-13 — ORDER REPEALING ORDER IN COUNCIL P.C. 2003-2076 OF DECEMBER 12, 2003
SOR/2005-101 — REGULATIONS AMENDING THE WILD ANIMAL AND PLANT TRADE REGULATIONS
SOR/2006-135 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2006-179 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS
SOR/2006-200 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS
SOR/2006-205 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (SCHEDULE VIII)
SOR/2006-208 — REGULATIONS AMENDING THE PENSION BENEFITS STANDARDS REGULATIONS, 1985
SOR/2006-249 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CAPITAL COST ALLOWANCE FORESTRY — BIOENERGY EQUIPMENT)
SOR/2006-250 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MOTOR VEHICLE EXPENSES AND BENEFITS 2006)
SOR/2006-259 — REGULATIONS AMENDING THE INSURABLE EARNINGS AND COLLECTION OF PREMIUMS REGULATIONS
SOR/2006-274 — ORDER AMENDING THE SASKATCHEWAN CANOLA DEVELOPMENT COMMISSION LEVIES ORDER
SOR/2006-296 — REGULATIONS AMENDING THE FAMILY SUPPORT ORDERS AND AGREEMENTS GARNISHMENT REGULATIONS
SOR/2006-331 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS
SOR/2007-25 — ORDER ESTABLISHING THE TEXT OF A RESOLUTION PROVIDING FOR THE EXTENSION OF THE APPLICATION OF SECTIONS 83.28, 83.29 AND 83.3 OF THE CRIMINAL CODE
SOR/2007-43 — REGULATIONS AMENDING THE FEDERAL REAL PROPERTY REGULATIONS
SOR/2007-138 — REGULATIONS AMENDING THE WILDLIFE AREA REGULATIONS
SOR/2007-139 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
SOR/2007-168 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS
SOR/2007-202 — REGULATIONS AMENDING THE AUTOMOBILE OPERATING EXPENSE BENEFIT (GST/HST) REGULATIONS
SOR/2007-233 — REGULATIONS AMENDING THE NON-SMOKERS' HEALTH REGULATIONS
SOR/2007-247 — ORDER AMENDING THE PROPOSED REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS
SOR/2007-253 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS
SOR/2008-14 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986
SOR/2008-49 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MEMBERS OF THE CANADIAN FORCES AND POLICE OFFICERS)
SOR/2008-51 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS LAND MANAGEMENT ACT
SOR/2008-54— REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
SOR/2008-56 — ORDER 2007-87-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2008-74 — REGULATIONS AMENDING THE FAMILY SUPPORT ORDERS AND AGREEMENTS GARNISHMENT REGULATIONS
SOR/2008-92 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER
Mr. Bernhardt: Finally, under Statutory Instruments Without Comment, 32 instruments are listed that have been reviewed and found to comply with all the committee's criteria. Copies of those items are available for anyone who wishes to see them.
The Joint Chair (Senator Wallace): Are there any comments or questions?
Thank you so much. I look forward to talking to Mr. Kania when he returns to tell him how quickly we were able to move things in his absence. None of that had anything to do with me, I realize.
Before members leave, Mr. Saxton had an item to bring to our attention.
Mr. Saxton: Today marks a milestone. I believe one of our colleagues, by virtue of having sat on this committee for over 20 years, now holds the distinction of being the longest-serving member to sit uninterrupted on any Parliamentary committee in Canadian history. That member is Mr. Lee.
I move that the committee congratulate Mr. Lee on this achievement today.
The Joint Chair (Senator Wallace): I take it the applause implies total agreement with that motion.
Mr. Galipeau: I propose that, in the 41st Parliament, when he will not be here, that he be made a member emeritus of the committee.
I withdraw that motion, seeing as I have no seconder.
Mr. Saxton: Anybody who can survive more than 20 years on this committee deserves some sort of distinction.
The Joint Chair (Senator Wallace): Congratulations; we are at both ends of the spectrum. I am coming in. Thank you for your service.
Mr. Lee: Thank you, Mr. Saxton.
(The committee adjourned.)