REGS Committee Meeting
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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 10 - Evidence - March 29, 2012
OTTAWA, Thursday, March 29, 2012
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:45 a.m. for the review of statutory instruments.
Senator Bob Runciman and Ms. Françoise Boivin (Joint Chairs) in the chair.
The Joint Chair (Senator Runciman): I put on the record our thanks to the staff. I understand that this room was completely empty at 8 a.m. and they pulled it together quickly. Thank you.
Mr. Albas raised an issue at the last meeting, and I want to give him the opportunity to bring it to the table again.
Mr. Albas: In efforts to try to ensure that we are as effective as possible when we come to this place, many members, at least on the Conservative side, have expressed interest in seeing changes to the way that materials are presented, such as a template outlining recommendations with some background information on the front. They are open to seeing some change so that they can be more effective in their duties. I have been made aware that we have a steering committee that has not been assembled. A steering committee might be a good way to gauge the members' and senators' interests and it could report back to the joint committee with changes.
Mr. Young: I thank Mr. Albas for raising this issue, which is the exact issue that has been on my mind. I served on this committee before, and I am newly appointed. When I get the material, I often do not have the chance to look at it until the night before or early in the morning. I find it awkward to use. It would be great if the steering committee would consider asking staff to come up with a new format.
Maybe one idea would be to give the files a four-digit number so that we could find them more easily in the material and make reference to them more easily. I see the letters that went out three years ago and the letters that have come back, but I have no way of looking at the file to see how important the regulation is and what it actually does.
I was telling someone recently that I was appointed to the Joint Committee for the Scrutiny of Regulations and they said, "Are the regulations important?" I said, "Yes, they are very important to a subset of the population, but they get lost in the mix." If we had a page with each of these files that listed what the regulation does in the field, who likes it, who does not like it and some idea of its importance along with the letters, it would be extremely helpful. Perhaps there could be some kind of numbering and narrative or indexing and narrative that explains the importance of the files so we can read them and understand the importance. It would be very helpful. If the steering committee could consider coming up with a better structure, the committee could make a greater contribution and do it in less time.
The Joint Chair (Senator Runciman): Does any other member wish to comment? Mr. Bernhardt, do you have any comments with respect to this?
Peter Bernhardt, General Counsel to the Committee: We can certainly see what we can do to provide more information by way of summary. Some of that is given orally at the meeting but certainly, we can try to beef some of that up.
On a couple of specific things, as far as the importance of a regulation, who likes a regulation and who does not, we are very much bound by the mandate of this committee. We can give an explanation as to the issue being raised on the file, but that is a legal review. As far as whether the regulation is, for example, economically significant or affects a large number of people, we are simply not in a position to say. I am a lawyer. The staff of the committee are lawyers; we are not economists. The committee must bear its mandate in mind when it examines the regulations.
Every regulation currently has a number. That is the registration number given when it is gazetted and registered in the Privy Council Office. Those are the numbers that we go by and that they are known by in the government when we correspond with people. Those are the numbers that are referred to.
By way of the sort of thing that Mr. Young and Mr. Albas might be alluding to, there is, for example on the third item this morning just for discussion, a one-page note. Is that the sort of thing that members have in mind? Would they like to see something more by way of summary highlighted at the start? Looking at a specific example, what can we do with that to make members happy?
Mr. Young: When you say "the third item this morning," it is a good example of how this is not working for me: I do not know what you are referring to. See what I mean? If there was a file number —
Mr. Bernhardt: The file number is SI/2009-102 at the bottom of the first page of the agenda under "Reply Unsatisfactory."
Mr. Albas: We got off to a late start this morning, but the general sentiment is that members and senators have received feedback, at least from our caucus, outlining that they feel there are some advantages to having a look at it. I believe the steering committee is a mechanism that would allow this kind of thoughtful discussion as to what is possible and what can be achieved so that members and senators can be more efficient in their duties. I think that just raising the point and asking for the steering committee to meet would be a good idea rather than taking time away from the rest of the committee, if that is the will of the committee.
The Joint Chair (Senator Runciman): Would it be fair to suggest that perhaps if you have ideas with respect to how this would be structured, you could submit them to the steering committee in writing with a draft or two in terms of options that we could look at and provide feedback with respect to concerns the committee has. We could move forward from there. Is that reasonable?
Mr. Albas: Absolutely.
The Joint Chair (Senator Runciman): I have not been made aware of a steering committee.
Mr. Pacetti: Do we have a format for a steering committee?
The Joint Chair (Ms. Boivin): Who is the steering committee?
The Joint Chair (Senator Runciman): The clerk is advising me that it is comprised of the joint chairs, Mr. Breitkreuz and Mr. Pacetti.
Mr. Pacetti: That is what I thought. I do not really want to commit to extra meetings.
The Joint Chair (Senator Runciman): The government also puts forward another member.
Mr. Breitkreuz: Would Mr. Albas be on that committee? Would it be helpful for Mr. Bernhardt to attend this committee? Should you be on that committee?
The Joint Chair (Ms. Boivin): The joint chairs are automatically on the committee.
Mr. Breitkreuz: The two joint chairs are on it.
The Joint Chair (Ms. Boivin): There is one extra member from the Conservatives. Can I ask our clerks to set a meeting and that will be it for that? We understand that someone from our counsel, probably Mr. Bernhardt, will be present. We can discuss it. The suggestion from my joint chair is pretty smart. Those who have ideas on how this could change could submit them. Personally, maybe because I am a lawyer and I have been doing this for a long time, I get myself through it without a problem.
It would be easier for certain members to understand if the reports were drafted differently.
I still want to say to the committee members that it was a matter of asking our counsel to formulate recommendations. I do not think they have the political role of providing recommendations on the issue. That is our job. They may provide various opinions, but they cannot adopt a specific position. The role of our counsel should not be politicized at that level.
Mr. Pacetti: Since we have a consensus, I would suggest that we meet next Thursday, since that is not a committee meeting with all members. We could already schedule a meeting, and members who want to contribute could attend. Could we decide right away who those members will be?
The Joint Chair (Ms. Boivin): The only problem with next Thursday is that Friday is a holiday.
Mr. Pacetti: That does not matter. We could have the meeting at 8:30 a.m.
The Joint Chair (Ms. Boivin): If that works for everyone, it is fine.
The Joint Chair (Senator Runciman): I do not want to agree to it right now because I have to check my schedule. There may be some changes in sitting times as well for next Thursday for both the House and the Senate. Perhaps we can work on that later today.
We will move to the regular agenda, if there is agreement.
REPORT NO. 83 (BY-LAWS UNDER THE INDIAN ACT)
(For text of documents, see Appendix A, p. 10A:1.)
Mr. Bernhardt: I believe it was back in 1987 that the committee first reported on the question of bylaws under the Indian Act. At that time, the committee recommended that bylaws passed by elected band councils should be excluded from the application of the Statutory Instruments Act. The idea at the time was that band councils being democratically elected bodies it would seem somewhat inappropriate to require them to submit their bylaws to the Department of Justice for examination and approval and then to have scrutiny by this committee.
However, it was suggested that there should be some guarantees added to the Indian Act that these bylaws would be published and made available to everyone. At the time, the government accepted the committee's recommendations but acted only on the exemption of the bylaws from the Statutory Instruments Act. The result of this action being taken on its own is that there is no legislative framework at present that ensures that bylaws made by band councils have to be published and made known to the people they affect.
The committee continued to seek implementation of this other half of its recommendations. In fact, on more than one occasion, bills were introduced that, to a greater or lesser extent, would address those remaining concerns. Unfortunately, all of those bills died on the Order Paper. That led the committee to make a second report on the matter, Report No. 83.
In its response to that report, the government suggested that no further amendments were required. It relied on subsection 11(2) of the Statutory Instruments Act as providing a sufficient safeguard. That provision states that nobody can be convicted for violating a regulation that has not been published in the Canada Gazette unless it can be shown that reasonable steps were taken to bring it to the attention of people likely to be affected. Of course, that might allow a person to raise a defence once they have been charged and brought into court. It does not guarantee you will have a right to get access to the bylaw in the first place.
The committee has always been reluctant to simply close the file. At the same time, as the chair's letter from 2009 indicates, members of the committee have come to accept that a solution will only arise at such time as the Indian Act is replaced.
In its response, the government did undertake to communicate with all First Nations band councils regarding their obligations to make the bylaws available. As a way to keep the file open, I suppose, the minister was asked for a copy of that letter as well as for any replies that were received from band councils. It took some two years to get that, but in January, the minister did provide a copy of the letter that was sent to all chiefs on December 23, 2009. That is in the materials for this morning.
I suppose at this point the question for the committee is what options it has and what it wishes to do, if anything, on the file. One approach might be to monitor the situation and ask the minister from time to time if it there is expected to be a new Indian Act in the foreseeable future. On the other hand, I suppose members could decide that the committee has done its job, it has achieved what it can and this is not really the forum for pursuing a new comprehensive framework for First Nations.
Mr. Wilks: It is good to see that the letter is now attached and that nothing has come back from any of the bands in contravention of this. I would say the committee has done what it needed to do. We have the letter on hand. I would suggest we close the file.
The Joint Chair (Senator Runciman): Are there any other comments? Are we in agreement?
Hon. Members: Agreed.
SOR/2004-274 — REGULATIONS AMENDING THE FIREARMS LICENCES REGULATIONS
(For text of documents, see Appendix B, p. 10B:1.)
The Joint Chair (Senator Runciman): This item has been before the committee since 2007. This deals with minor amendments that were accepted by the RCMP, but nothing has occurred. The committee wrote to the Minister of Public Safety. Since 2008 there has been no reply.
Counsel, is there anything additional with respect to this?
Mr. Bernhardt: I just wish to advise members that apparently last night a reply was received from the minister dated yesterday. I think copies of that have been circulated to members this morning.
Whether that is coincidence is for members to surmise. Given that the reply has only been made available just before the meeting this morning, if members are in agreement, perhaps we could put the matter aside and bring the letter back with an analysis at the next meeting.
The Joint Chair (Senator Runciman): That is reasonable. We will defer that item and look for a report at the next meeting.
SI/2009-102 — ORDER FIXING THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT
(For text of documents, see Appendix C, p. 10C:1.)
The Joint Chair (Senator Runciman): This was an order fixing the date of the coming into force of certain sections of the act. It was an order issued under subsection 24(2) of "an Act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other acts."
Mr. Bernhardt: As you said, this order brings into force certain provisions of the act that, under that act, were to be brought into force on a day to be fixed by order of the Governor-in-Council. This order states that the sections come into force on the first day on which both of two international agreements are in force in Canada. At the time the order was made, when this date would be was not known.
At its meeting back in September 2011, the committee concluded the order had not fixed the date of the coming into force. The reasons why the committee arrived at this conclusion are detailed in the December 30 letter that went back to the department. The department replied on January 30.
At the risk of editorializing, I suggest the tone of that report is somewhat dismissive. It suggests the distinction the department is trying to make between the date fixed by an order and a date fixed in an order might still exist, even though it is not reflected in the Cabinet Directive on Law-making, the Federal Regulations Manual or, indeed, any other place the department can identify. As well, it seems to suggest that where the two formulations are used interchangeably, these are somehow just drafting mistakes.
Rather than responding to the analysis of the case law that was provided in the last letter to the department, the reply provides an example of two people agreeing to meet the day after the next win by the Ottawa Senators. In its view, apparently the day of the meeting has thus been fixed. If it has, then what is that day? The day remains uncertain; obviously it has not been fixed. Try making a reservation in a restaurant based on that; you would be told to call back when you have a fixed day.
At this point, the correspondence has gone back and forth several times with the department. Perhaps the issue can be brought to the minister's attention in the hope that it might lead to the matter being dealt with by officials who would treat it with some seriousness.
Mr. Albas: I just have a question for counsel. On page 2 of our letter to them, in the second-last paragraph there is a line. I just want to confirm something. Does the following come from the Cabinet Directive on Law-making: "An Act comes into force on Royal Assent, unless it says otherwise"?
Mr. Bernhardt: That is the general principle of common law. That is why, if you want the possibility of it coming into force on some other day, there is usually a clause at the very end of the bill that says the act comes into force on the day to be fixed by the Governor-in-Council. That allows for some other date to be decided. Royal Assent is basically the default.
Mr. Albas: Second, what do we hope to achieve by striking this? I understand we have our position and the department has its position. Whether it has been communicated effectively is obviously subjective. Are we looking to see a change in the law, per se? I just do not see what the clear achievement is that we are seeking in pursuing this file.
Mr. Bernhardt: The question is whether these provisions are in force. If a day has not been fixed, the law is not in force. Presumably it is being applied. Presumably it is being treated by the government — the various officials, the people who apply the law — as the law.
In the committee's analysis from September, this law is not in force and needs to be brought into force. As far as the broader principle goes, from the committee's point of view, this needs to be nailed down to ensure the issue does not arise again in the future. What we have here is uncertainty as to what the state of the law actually is; is it in force or is it not?
Mr. Albas: I do not think we have struck the point obviously to the department. In that case, I think we should write back to them and explain our position and that we expect a better response from them. I think this is a disagreement of interpretation. I do not think it is a political thing we need to be raising with the minister at this time. Let us give them a chance to actually come back with it.
When it says an act comes into force on Royal Assent unless it says otherwise, that almost says the position they are taking is that it takes effect when Royal Assent is given.
Mr. Bernhardt: No. There is a provision in the act that says it does not. It says it takes effect on the date the Governor-in-Council fixes. Until the Governor-in-Council fixes a day, it is not in force.
Mr. Albas: All the more reason I think to go back to the department again.
The Joint Chair (Ms. Boivin): The only question I would have, then — and this goes back to a point we were making at the beginning for the steering committee — is what are the consequences? We might have just an exchange in six months and be back with the same problem again and then we will say, "Okay, let us write to the minister."
Is there an issue in terms of the person on trial, or is it simply a matter of interpretation exchanges? If there is some sort of a consequence — as we have seen in the case of other regulations we have studied, such as the ones involving firearms two weeks ago — in that context, things sometimes need to be done a bit quicker. That is my only concern.
The Joint Chair (Senator Runciman): I personally have no problem with writing back, but I think it is the tone of the letter that is important here. We should clearly indicate that the committee rejects their interpretation and expects an appropriate response within 30 or 90 days — whatever time period the committee feels is appropriate.
Are members okay with that? Is there any further conversation about that?
Mr. Albas: I would just suggest we write back and say their response is not to the satisfaction of the committee. Adding a timeline for response might add a level of curtness. We may want to suggest counsel places a phone call, advising them of a letter and try to establish some rapport here.
There seems to be a lack of respect for our position, and I think we need to increase that. I do not think we do that by sending a nasty letter demanding something. I think it is set by telling them we are trying to seek resolution here and that we would like their engagement.
The Joint Chair (Senator Runciman): I was not suggesting a nasty letter. The tone should clearly indicate the committee's commitment to seeing this change occur.
Mr. Albas: I have no problem with the response, but I do with adding artificial timelines to it. I think a phone call would be much more effective use of counsel's time.
The Joint Chair (Senator Runciman): Is there any further discussion on this?
Mr. Dionne Labelle: Various provisions of the act mentioned here were supposed to come into force — according to the document before us — once the 2001 international convention and the protocol were adopted. Have those provisions actually been applied since those two protocols came into force?
Mr. Bernhardt: Yes.
Mr. Dionne Labelle: Departments are acting as if the provisions have been applied.
The Joint Chair (Senator Runciman): Do we agree with a letter that leaves no doubt that the committee has strong feelings about this, but Mr. Albas has suggested no time line attached to that; is that the consensus here?
Hon. Members: Agreed.
Senator Moore: The position is pretty clear to me. It is a simple reading of the law. They are not adhering to the law. What else will you say here, counsel, to try to bring home the point? I do not think you want to drift it along. It is being dealt with as if it was properly in place and it is not. If they take another three or four months to come back with an answer, I do not think that is acceptable.
Maybe we can give some kind of indication. Mr. Albas suggested a phone call. Maybe if you do that, you might get some feeling for where this is headed and you can perhaps emphasize the committee's thinking on this and let them know that we expect some kind of a proper, professional response. I would not play the game and start talking about these analogies with the Senators.
Mr. Bernhardt: We can certainly do that in addition to writing. We can make the call and let it be known on the less formal basis what the committee's views and reactions were this morning.
The Joint Chair (Senator Runciman): In addition to a letter?
Mr. Bernhardt: Yes.
The Joint Chair (Senator Runciman): Is everyone in agreement with that approach?
Hon. Members: Agreed.
SOR/2005-141 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1402 — DRUGS FOR DEVELOPING COUNTRIES)
(For text of documents, see Appendix D, p. 10D:1.)
The Joint Chair (Senator Runciman): Regarding this item under "Reply Unsatisfactory (?)," Health Canada said an analysis was underway as a first step to amending the regulations. The department has written six quite similar letters over the last three years, all of which suggested an analysis is ongoing.
Evelyne Borkowski-Parent, Counsel to the Committee: There is one outstanding issue on this file for which action was promised in 2007. The regulations impose a duty on manufacturers to establish and maintain records in a way that enables an audit to be made. The provision in question does not provide for a time limit for which those records must be maintained. It was suggested that the length of time for the retention of records should be provided for in the regulations.
The department went from waiting for the Canada's Access to Medicines Regime recommendations to be made in 2007, to a firm commitment of publication in 2009, to what can be perceived as a bit of a regression in the January 6 letter where no time frame was provided.
According to the latest correspondence, we seem to be at the second round of legal advice and research on the matter. Five years have lapsed since the initial letter. Members might want to consider writing to the minister and asking for her cooperation in hopes of accelerating what is otherwise a fairly straightforward matter.
Mr. Young: Chair, that excellent description of the situation is exactly what I was talking about at the beginning of the meeting. I would like to see that written in the section, rather than just struggling with correspondence. That was my only comment. Thank you; it was very helpful.
Mr. Breitkreuz: I agree with counsel here. I think we should ask for some kind of a firm timeline. I do not think we should let this drag on.
The Joint Chair (Senator Runciman): What do you suggest?
Mr. Breitkreuz: That we write to the department.
The Joint Chair (Senator Runciman): Yes, but in terms of the timeline?
Mr. Breitkreuz: It is up to the committee. I do not think we should let it go too long. I would like to see a firm commitment here with a timeline established.
Mr. Albas: I agree with Mr. Breitkreuz that we should write back to the department and ask them for a specific time frame regarding when they plan on addressing the committee's concerns. I think that is completely appropriate. The committee has gotten the majority of the amendments done. I think we just need to focus on that last one.
The Joint Chair (Senator Runciman): Counsel was suggesting a letter to the minister. Was that not what you were suggesting? I thought I heard a letter back to the department. Is that what you were suggesting, as well?
Mr. Breitkreuz: To the department. Then if we do not get a reply, we go to the minister.
The Joint Chair (Senator Runciman): Would anyone else like to comment on this issue?
The Joint Chair (Ms. Boivin): May I ask why not to the minister? I kind of agree with counsel. I see the following in a letter over and over:
Please be assured that Health Canada acknowledges the importance of the Standing Joint Committee's work and we will be pleased to continue to keep you informed of our progress on this file.
All of those answers make me think that someone does not give a damn about us. In this context, it may be appropriate to say the following:
"Okay, very politely, minister, perhaps you can tell your officials to get their act together." How many letters does that committee accept to receive before they see movement?
Mr. Albas: I recognize the frustration. We also have to remember that this is one of a series, and it is the last remaining amendment that needs to happen. In some cases, these things just fall of the radar. Let us write back to the department, again reiterating the committee's commitment to seeing this through and asking them to do the same, build up a profile of this committee.
Again, they are the ones who are responsible and who have made the commitment. Before going to a minister who has not made that commitment, let us try to see if we can get some resolution at the officials level.
Mr. Dionne Labelle: I have a quick comment. In October 2010, they consulted their legal counsel. A year later, they are once again consulting their legal counsel. They do a lot of consulting. That was just a comment I wanted to make.
Mr. Pacetti: I would agree with counsel's suggestions. However, after hearing Ms. Boivin's and Mr. Dionne Labelle's comments, I think we should just go directly to the minister. It does not make sense to write to the department; they have not been cooperative.
Senator Moore: There is no reason given as to why they have not done this. "We will let you know when we know something." What is that?
Why did they not just clean it all up? I do not understand that. If they were working for you, you would not put up with that. They are working for the people of Canada, so we should not put up with that. I would write to the minister. I would write to the boss.
The Joint Chair (Ms. Boivin): So far we have had ministers really making things move. That might raise the understanding of what this committee does.
The Joint Chair (Senator Runciman): Any additional comments on this?
Mr. Wilks: I do agree with my colleague, Mr. Breitkreuz. Again, I do not know what that time line would be, but I think it should be relatively quick to give them an opportunity. If they do not respond in light of what the committee is looking for in a reasonable period of time, then you can up the ante. I do agree that it has been going back and forth for a number of years. I do not disagree with that. If we can put a time line on it — may I be so bold as to suggest 60 days, as a starting point?
Senator Moore: No, no. Six days.
Mr. Albas: One of the things we are dealing with is this particular file is very complicated and complex. So far the committee has been able to get some resolution towards some of the amendments. I am sure those were the more difficult issues.
I do believe that we need to again write to the department, outline the position and maybe make a phone call again. Building relationships and building that sense of direction is important. I can understand the frustration here but this is a very complicated issue and we should not be able to expect that things can change overnight or in six days or 60 days.
I have listened to everyone else's points and, yes, I can sense the frustration. Again, we are here to do the work of the committee. At some point we just have to continue to write back and to get the results that we are expecting.
Mr. Dionne Labelle: Could we not summon this famous legal counsel to explain to us what is so complicated in this file?
Ms. Borkowski-Parent: Unfortunately, I doubt it. Confidentiality is involved, so the legal counsel could probably not meet with us to discuss the file.
Nevertheless, I wanted to point out that a time limit needs to be set for document retention. So we would be talking about 1, 2, 3, 5, 10, 25 years; it is simply a matter of setting a specific time frame.
The Food and Drug Regulations set out 14 other time periods for document retention; therefore, there is one such period per program. This is new to the department.
I think that they simply forgot to set a time period in this case, but when it comes to the complexity of a legal issue, it is simple.
The Joint Chair (Ms. Boivin): It is very simple.
The Joint Chair (Senator Runciman): I was told this committee traditionally does not have votes. I am wondering if we can agree on a letter and a tight time frame of 30 days, perhaps. Can we look at that as a compromise?
Mr. Breitkreuz: I was going to suggest that same thing. We are at a bit of an impasse here. If we can tighten it up a bit, maybe we can agree on that.
Mr. Vellacott: I would suggest if we do write a letter, ask for a specific time line so we know what we are dealing with back from them. We should ask for a specific time line.
The Joint Chair (Senator Runciman): Is it okay proceeding in that manner? Can we live with that?
Hon. Members: Agreed.
The Joint Chair (Ms. Boivin): That is a good compromise.
The Joint Chair (Senator Runciman): The next heading on our agenda, "Reply Satisfactory," should be easier.
Mr. Albas: What was the final arrangement?
The Joint Chair (Ms. Boivin): A letter to the minister, with 30 days to answer. No, just kidding. A letter to the department with a firm 30 days asking for a time line, as Mr. Vellacott said.
Mr. Albas: Was it 30 days?
The Joint Chair (Ms. Boivin): Yes.
The Joint Chair (Senator Runciman): Is it agreed?
Hon. Members: Agreed.
SOR/2010-79 — REGULATIONS AMENDING THE OCEAN DUMPING PERMIT FEE REGULATIONS (SITE MONITORING) (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix E, p. 10E:1.)
The Joint Chair (Senator Runciman): The department cited the Financial Administration Act as the enabling legislation and the committee expressed the view that it should be the Canadian Environmental Protection Act. Environment Canada is intending to move the regulations under the authority of the Environmental Protection Act. There has been agreement with that. Does counsel want to add anything?
Ms. Borkowski-Parent: I have nothing to add other than we seem to have received the assurance we needed so the file could perhaps be closed.
The Joint Chair (Senator Runciman): Is there consensus?
Hon. Members: Agreed.
SOR/2001-227 — MARIHUANA MEDICAL ACCESS REGULATIONS
(For text of documents, see Appendix F, p. 10F:1.)
Ms. Borkowski-Parent: This file was presented to the committee on November 3 under the heading "Action Promised." Of the 19 points originally raised, 18 were addressed in 2007 and only one remains. In the interim, courts scrutinized the Marihuana Medical Access Program, ultimately invalidating certain provisions of the regulations. This meant that any project of amendment was brought to a complete halt until the whole scheme was reviewed.
In its February 13, 2012 letter, the department shared its intention of having a complete set of new regulations for March 2014. At this point, members could either consider this time frame satisfactory and progress will be monitored as per usual or could contemplate asking that the amendment proceed, independently of the general review should the regulations be delayed past the 2014 time estimate.
Mr. Vellacott: To clarify, the one that has so far been excluded because it was engaged in legal proceedings, could you give me the nature of that?
Ms. Borkowski-Parent: It is a bit of a technical anomaly in the way the regulations were drafted. Section 50 provides for the licence holder to notify the minister if the location of the production should change, and then cross references to section 46. Unfortunately, section 46 imposes the obligation to notify the minister on the applicant, so there is a bit of a disjoint between the two sections. One requires the applicant to do something and the other one is the licence holder. You cannot really comply with that provision the way it stands. That is the nature of the problem here. The other 18 points were mostly drafting and they were addressed for quickly.
Mr. Vellacott: The assumption is now that the legal proceeding is completed that there would be coherence and consistency in terms of that last one?
Ms. Borkowski-Parent: That is right.
Mr. Vellacott: I would suggest that we leave and monitor it, be sure it is followed through with the time lines they have indicated and that they will publish by 2014.
The Joint Chair (Senator Runciman): Is that acceptable?
Senator Moore: Do we write back and confirm what Mr. Vellacott said? Do we write a letter?
Mr. Bernhardt: We will follow that up. From time to time we will ask whether that time frame remains the current time frame. If there is any change we bring that back to the committee.
The Joint Chair (Senator Runciman): Any other comments? Thank you.
Hon. Members: Agreed.
SOR/2010-182 — ORDER AMENDING SCHEDULE 2 TO THE CANADA NATIONAL PARKS ACT
(For text of documents, see Appendix G, p. 10G:1.)
Mr. Bernhardt: A minor typographical error was noted in the amendments to Schedule 2 of the National Parks Act. The schedule sets out the boundary descriptions for national parks and that schedule can be amended by regulation.
In this case, rather than proceeding with an amending regulation, Parks Canada advised it proposed to make the correction through the next miscellaneous statute law amendment bill.
In getting ready for the meeting this morning, we noticed yesterday that the correction has already been made to the official version of the act posted on the Department of Justice website. Under the Legislation Revision and Consolidation Act, simple typographical errors can be corrected in this way. It would seem that no formal amendment is necessary. It probably behooves us to write to Parks Canada to them tell them that, since they are not aware the correction has been made and after that the file could be closed.
The Joint Chair (Ms. Boivin): Sounds good.
Hon. Members: Agreed.
SOR/2000-108 — EXPORT CONTROL LIST NOTIFICATION REGULATIONS
SOR/2002-317 — EXPORT OF SUBSTANCES UNDER THE ROTTERDAM CONVENTION REGULATIONS
(For text of documents, see Appendix H, p. 10H:1.)
Mr. Bernhardt: These two regulations are to be merged and replaced with a single regulation. That new regulation was pre-published for notice and comment last August in draft form. That draft addressed several drafting issues raised by the committee and would also eliminate a provision requiring a holder of an export permit to comply with the conditions set out in it. Of course members will be quickly becoming familiar with these types of provisions; the intent is to indirectly create an offence not found in the enabling act.
The committee concluded there was no authority to do this. An assurance was sought and was received from the department that pending the revocation of the provision, no one is being prosecuted for contravening it.
Most recently the department advised that a new regulation should come into force by the summer. One way or another, it will be reported back in the fall either as an action taken or as action not taken.
The Joint Chair (Ms. Boivin): We will follow up on that? Excellent.
SOR/2004-195 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (REAR IMPACT GUARDS)
(For text of documents, see Appendix I, p. 10I:1.)
Ms. Borkowski-Parent: This file concerns a discrepancy between the English and French versions of the regulations. While the French version imposes requirements regarding trailers set up as temporary living quarters, the English version specifies that the standard applies to trailers designed to be used as temporary living quarters. It goes without saying that a trailer may be set up as temporary living quarters without being designed for that purpose.
The draft amendment should be in its final stage, and a prepublication in the Canada Gazette Part I is anticipated by the end of June 2012.
With your consent, counsel could monitor usage.
The Joint Chair (Ms. Boivin): Thumbs up from Mr. Wilks. That is excellent.
SOR/2008-72 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (SEAT BELT ANCHORAGES, USER-READY TETHER ANCHORAGES, LOWER UNIVERSAL ANCHORAGE SYSTEMS, BUILT-IN CHILD RESTRAINT SYSTEMS AND BUILT-IN BOOSTER CUSHIONS) AND THE MOTOR VEHICLE RESTRAINT SYSTEMS AND BOOSTER CUSHIONS SAFETY REGULATIONS
(For text of documents, see Appendix J, p. 10J:1.)
Ms. Borkowski-Parent: Three drafting questions were raised back in 2008 and the department promised action in 2009. Draft regulations were published in the Canada Gazette Part I in November 2011. Now that the consultation period has ended, it is the intent of the department to enact the regulations before the end of 2012. If this is acceptable, progress could be monitored as per usual.
Hon. Members: Agreed.
The Joint Chair (Ms. Boivin): Excellent. Thank you.
SOR/2009-110 — GLASS DOORS AND ENCLOSURES REGULATIONS
(For text of documents, see Appendix K, p. 10K:1.)
Ms. Borkowski-Parent: This file concerns the consistency between the regulations and the enabling legislation.
The department recognized from the outset the need to change the wording used in the regulations, but said the exercise would take place as part of the reorganization prompted by the passing of the Canada Consumer Product Safety Act.
There have been a few delays since, but the department seems to be making progress and has always been very transparent when it comes to deviations from the set deadlines.
It is anticipated that the regulations will be published in the Canada Gazette Part II in the spring of 2012.
Counsel could then do their usual follow-up.
Some hon. senators: Agreed.
SOR/2009-112 — CORDED WINDOW COVERING PRODUCTS REGULATIONS
(For text of documents, see Appendix L, p. 10L:1.)
Ms. Borkowski-Parent: The only remaining item in this file is identical to the one presented as part of the previous file on glass doors and enclosures.
The department has proposed the same timeline, that is, a publication in the Canada Gazette Part II in the spring of 2012.
The Joint Chair (Ms. Boivin): Part II in the spring of 2012.
SOR/95-100 — NEWFOUNDLAND OFFSHORE CERTIFICATE OF FITNESS REGULATIONS
SOR/95-104 — NEWFOUNDLAND OFFSHORE PETROLEUM INSTALLATIONS REGULATIONS
SOR/95-144 — NOVA SCOTIA OFFSHORE AREA PETROLEUM GEOPHYSICAL OPERATIONS REGULATIONS
SOR/95-187 — NOVA SCOTIA OFFSHORE CERTIFICATE OF FITNESS REGULATIONS
SOR/95-191 — NOVA SCOTIA OFFSHORE PETROLEUM INSTALLATIONS REGULATIONS
SOR/95-334 — NEWFOUNDLAND OFFSHORE AREA PETROLEUM GEOPHYSICAL OPERATIONS REGULATIONS
SOR/96-114 — CANADA OIL AND GAS CERTIFICATE OF FITNESS REGULATIONS
SOR/96-117 — CANADA OIL AND GAS GEOPHYSICAL OPERATIONS REGULATIONS
SOR/96-118 — CANADA OIL AND GAS INSTALLATIONS REGULATIONS
(For text of documents, see Appendix M, p. 10M:1.)
Mr. Bernhardt: There are a large number of amendments promised in connection with the large number of regulations listed here as a group under "Progress (?)." All of these regulations are to be amalgamated and updated as part of what is called the frontier and offshore regulatory renewal initiative. The first phase of this was completed in December of 2009 and it dealt with other regulations. These new regulations from 2009 were reviewed and an initial letter was sent to the department. In February, the department advised that they wanted to first deal with the comments made dealing with the first phase new regulations because they might impact on the drafting of this new framework legislation that will combine these and address other concerns of the committee.
The original target date for completion of this whole initiative was late 2012. The most recent letter from the department, however, gives no indication whether this remains the current time frame. Given the size of this project, we are dealing here with hundreds of pages of regulations, and with the fact that there seems to be a considerable amount of work left to be done, I suppose it might be worth asking the department whether that end of 2012 is still the anticipated completion date or whether it has been pushed back.
The Joint Chair (Ms. Boivin): Then report to us. Does that sound good to everyone?
Hon. Members: Agreed.
SOR/97-109 — PCB WASTE EXPORT REGULATIONS, 1996
(For text of documents, see Appendix N, p. 10N:1.)
Ms. Borkowski-Parent: In this file, the department proposed to deal with drafting issues raised in 2005 through a new set of regulations dealing with hazardous waste. In 2006, the enactment of those regulations was planned for the end of 2010. This was pushed back to 2011, and according to the department's latest letter, now to 2013.
While there seems to have been little progress on this file since the first promise of action in 2006, the committee received assurance in 2008 that the current regulations were in fact obsolete because they applied to exports only to the U.S. and because of new American legislation the border was closed to PCB exports.
Given that 2013 is only a year away, progress could be monitored on this file, but assurance could be sought from the department that the regulations still cannot be applied because of lack of exports.
The Joint Chair (Ms. Boivin): That seems like a very reasonable recommendation. Does everyone agree? Great.
Item No. 8, action taken.
Mr. Albas: The translation came in a little delayed. The course of action is?
The Joint Chair (Ms. Boivin): It is to do a follow-up, but just to make sure that they think it is still reasonable to achieve and that no one would be penalized; that it is still the same understanding that there are no consequences for the delay.
Mr. Albas: It is just an update?
The Joint Chair (Ms. Boivin): Exactly.
Mr. Albas: Thank you.
SOR/77-111 — ONTARIO FRESH GRAPE SHIPPERS AND DEALER-SHIPPERS (INTERPROVINCIAL AND EXPORT REGULATIONS)
(For text of documents, see Appendix O, p. 10O:1.)
Mr. Bernhardt: Under "Action Taken," amendments to these regulations had been promised literally decades ago, but as a result of amendments to the enabling authority under which they are made, any amendments to the regulations are no longer registered or published in the Gazette. There was no easy way to know whether or not these amendments had ever been made. Inquiries were made and the Ontario Fresh Grape Growers Marketing Board confirmed that the regulations had simply been repealed. Since these regulations were made pursuant to a federal act, the repealing instrument was required to be made in both official languages. The board was unable to show this had been the case, and had to redo the repeal, which was done on December 5. That would resolve the matter and the file can be closed.
I should add that the last line of the note refers to attached documents. Those documents were inadvertently omitted from the materials. However, copies in both languages are available if any member wishes to see the actual order from the board that revoked the regulations.
The Joint Chair (Ms. Boivin): Then the file is closed.
SOR/2007-29 — REGULATIONS AMENDING THE PUBLIC SERVICE SUPERANNUATION REGULATIONS
(For text of documents, see Appendix P, p. 10P:1.)
Mr. Bernhardt: In reviewing this instrument, a discrepancy between the English and French versions of the enabling act was identified.
In fact, the discrepancy was addressed in 2002 by an amendment to the act, although that amendment had never been brought into force. The Statutes Repeal Act provides for repeals of provisions after 10 years if they have not been brought into force. That timeline was fast approaching and the committee was concerned this amendment might be caught up in that and everything would have to start over again.
That turned out not to be the case. The amendment came into force January 1 through the mechanism provided for in the Statutes Repeal Act, so we can now close this file.
The Joint Chair (Ms. Boivin): Case dismissed.
SOR/2011-291 — REGULATIONS AMENDING THE CANADA LANDS SURVEYORS REGULATIONS
(For text of documents, see Appendix Q, p. 10Q:1.)
Mr. Bernhardt: These regulations make amendments to 18 provisions to address concerns raised by the committee. Most of these correct terminology, harmonize the two versions and provide further clarification in the regulations.
In addition, however, an illegal power to compel people to testify before the discipline committee has been removed. Another provision has been removed that directed a surveyor to reimburse the association or the complainant for any costs associated with appearing before the discipline committee. I think those are significant amendments.
The Joint Chair (Ms. Boivin): Excellent.
SOR/2010-211 — REGULATIONS AMENDING THE PROHIBITION OF CERTAIN TOXIC SUBSTANCES REGULATIONS, 2005 (FOUR NEW FLUOROTELOMER-BASED SUBSTANCES)
SOR/2010-217 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)
SOR/2011-14 — REGULATIONS AMENDING THE SURFACE COATING MATERIALS REGULATIONS
SOR/2011-16 — RESTRAINT SYSTEMS AND BOOSTER SEATS FOR MOTOR VEHICLES REGULATIONS
SOR/2011-19 — CHILDREN'S JEWELLERY REGULATIONS
SOR/2011-20 — FACE PROTECTORS FOR ICE HOCKEY AND BOX LACROSSE PLAYERS REGULATIONS
SOR/2011-21 — ICE HOCKEY HELMET REGULATIONS
SOR/2011-129 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
SOR/2011-154 — REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 2007
SOR/2011-189 — REGULATIONS AMENDING THE FAMILY SUPPORT ORDERS AND AGREEMENTS GARNISHMENT REGULATIONS
SOR/2011-242 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)
SOR/2011-252 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT
SOR/2011-253 — ORDER AMENDING SCHEDULE V TO THE FINANCIAL ADMINISTRATION ACT
SOR/2011-254 — TRANSFER OF THE COMMUNICATIONS SECURITY ESTABLISHMENT IN THE DEPARTMENT OF NATIONAL DEFENCE REGULATIONS
SOR/2011-255 — COMMUNICATIONS SECURITY ESTABLISHMENT REGULATIONS
SOR/2011-256 — ORDER AMENDING SCHEDULE V TO THE FINANCIAL ADMINISTRATION ACT
SOR/2011-257 — ORDER AMENDING PART II OF SCHEDULE VI TO THE FINANCIAL ADMINISTRATION ACT
SOR/2011-258 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT
SOR/2011-259 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT
SOR/2011-288 — ORDER AMENDING THE INDIAN BAND REVENUE MONEYS ORDER (MISCELLANEOUS PROGRAM)
SOR/2011-296 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS
SOR/2011-298 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS
SOR/2011-299 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS
SOR/2011-303 — ORDER AMENDING THE ALLOCATION METHODS ORDER — HATCHING EGGS, LIVE BROILERS, EGGS AND EGG PRODUCTS
SOR/2011-304 — ORDER AMENDING THE ALLOCATION METHOD ORDER — TURKEY AND TURKEY PRODUCTS
SOR/2011-305 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 1 — DAIRY PRODUCTS FOR PERSONAL USE
SOR/2011-306 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 2 — CHICKENS AND CHICKEN PRODUCTS FOR PERSONAL USE
SOR/2011-307 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 3 — WHEAT AND WHEAT PRODUCTS AND BARLEY AND BARLEY PRODUCTS FOR PERSONAL USE
SOR/2011-308 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 7 — TURKEYS AND TURKEY PRODUCTS FOR PERSONAL USE
SOR/2011-310 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 20 — WHEAT AND WHEAT PRODUCTS AND BARLEY AND BARLEY PRODUCTS
SOR/2011-311 — ORDER AMENDING THE GENERAL IMPORT PERMIT NO. 100 — ELIGIBLE AGRICULTURAL GOODS
SOR/2011-332 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986
SOR/2012-2 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER
SOR/2012-3 — REGULATIONS AMENDING THE AIR SERVICES CHARGES REGULATIONS (MISCELLANEOUS PROGRAM)
SOR/2012-4 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS
SOR/2012-9 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
Mr. Bernhardt: I simply note for the record that under "Statutory Instruments Without Comment," 36 instruments are listed.
The Joint Chair (Ms. Boivin): Thank you.
With respect to the steering committee, we will get in touch with everyone.
The Joint Chair (Senator Runciman): We will coordinate a steering committee meeting today.
(The committee adjourned.)