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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 21 - Evidence - March 21, 2013

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OTTAWA, Thursday, March 21, 2013

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of statutory instruments.

Senator Bob Runciman (Joint Chair) and Mr. Massimo Pacetti (Vice-Chair) in the chair.

[English]

The Joint Chair (Senator Runciman): You may recall that at the last meeting we deferred a report that Mr. Bernhardt prepared at the request of Mr. Masse with respect to the number of times that the resource issue was raised as a justification for delay in responding to the concerns of the committee. Mr. Masse was not sure he was going to be here. It looks doubtful at this point, so I suggest that we defer that report one more time and hope Mr. Masse will be able to attend the next meeting.

SOR/97-6 — FEEDS REGULATIONS, 1983, AMENDMENT

SOR/97-9 — SEEDS REGULATIONS, AMENDMENT

SOR/2001-274 — REGULATIONS AMENDING THE SEEDS REGULATIONS

(For text of documents, see Appendix A, p. 21A:1.)

The Joint Chair (Senator Runciman): We will move on to the agenda. The first item is "Letters To and From Ministers."

I will let counsel describe the Feeds Regulations and the Seeds Regulations.

Peter Bernhardt, General Counsel to the Committee: Thank you.

The issue here is provisions that put in place a regime for new feeds or seeds, providing they cannot be released into the environment unless an authorization has been obtained from the minister. The problem is that the purpose of the Feeds Act and the Seeds Act is to control and regulate manufacturing, selling or importing of feeds and seeds. This is done by prohibiting these activities other than in accordance with the regulations. None of the activities, however, necessarily have anything to do with release into the environment.

An undertaking has been given to amend the statutes in question to provide authority to regulate release into the environment. Back in March 2012, the minister indicated that progress was continuing on the amendments, that they would be introduced as soon as the legislative opportunity arose, and that hopefully that would be during the current session.

In his most recent letter, the minister indicates that the amendments to the Feeds Act and the Seeds Act remain a priority. Development of the amendments is progressing and again it is hoped to introduce a bill in the near future, although the minister is unable to provide more details on the timing at this point.

Mr. Saxton: We had a letter from the minister in January, is that right? That is fairly recent. If we write back now we will get another letter which may be similar to the one in January, so why do we not just diarize to come back to this at a later date?

The Joint Chair (Senator Runciman): Do you have a suggested time frame?

Mr. Saxton: Three months.

Senator Hervieux-Payette: Three months is very vague. I would like to say the beginning of June so that we have a more specific time frame before we leave for the summer.

Mr. Saxton: That is a good idea.

The Joint Chair (Senator Runciman): Are members agreed?

Hon. Members: Agreed.

SOR/2004-122 — REGULATIONS AMENDING THE CERTIFICATION OF ORIGIN OF GOODS EXPORTED TO A FREE TRADE PARTNER REGULATIONS

SOR/2004-127 — REGULATIONS AMENDING THE TARIFF ITEM NOS. 9971.00.00 AND 9992.00.00 ACCOUNTING REGULATIONS

SOR/2004-128 — REGULATIONS AMENDING THE TEMPORARY IMPORTATION (TARIFF ITEM NO. 9993.00.00) REGULATIONS

SOR/2004-129 — CCRFTA VERIFICATION OF ORIGIN REGULATIONS

SOR/2005-257 — DEFINITION OF "SETTLER" FOR THE PURPOSE OF TARIFF ITEM NO. 9807.00.00 REGULATIONS

(For text of documents, see Appendix B, p. 21B:1.)

The Joint Chair (Senator Runciman): Item 2 on our agenda concerns Regulations Amending the Certificate of Origin of Goods Exported to a Free Trade Partner Regulations, et cetera. This has been before the committee for eight years and involves the use of orders under the Public Service Rearrangement and Transfer of Duties Act. We sent the minister a letter on February 3, 2011. That has been followed up with three reminder letters and has not been responded to.

Have I got that right, counsel?

Mr. Bernhardt: That is why the file is before the committee this morning. If members wish a brief comment, I can go through the substance of the issue. As I say, the reason the file was brought back this morning is simply because the committee has been unable to obtain a reply.

Mr. Saxton: The bottom line is that we would like to have a response. Since we have not had one, maybe we should put a deadline on the letter to the minister, asking for a letter within a very specific length of time. Otherwise, we will have to take other action.

The Joint Chair (Senator Runciman): Are you suggesting we spell that out in the letter?

Mr. Saxton: We need to somehow get a conclusion here.

Senator Moore: I agree with that. I think we should ask for a response within a month. If not, someone will be asked to come before the committee and respond.

The Joint Chair (Senator Runciman): Are we in agreement?

Hon. Members: Agreed.

SOR/2007-16 — SOFTWOOD LUMBER PRODUCTS EXPORT ALLOCATIONS REGULATIONS

(For text of documents, see Appendix C, p. 21C:1.)

The Joint Chair (Senator Runciman): Under the heading "Reply Unsatisfactory" we find Item 3 on our agenda. These regulations established the process governing softwood lumber export allocations. The committee raised four issues.

Mr. Bernhardt: On this item, four points were raised. The department's reply provides some information in connection with these points, but in many ways it raises as many questions as it answers. For instance, the first point deals with subsection 2(1). This provision states that an application for an export allocation must include a statement that the information in the application is "true, correct and complete," and the department explains that the statement, in its words, "entitles the Minister to rely on the information in the application without using inspection powers to validate it."

The Export and Import Permits Act already prohibits furnishing false or misleading information, or knowingly making any misrepresentation in an application. Therefore, the minister can rely on the information in the application in any event, and it is hard to see what requiring this statement adds to that. This aside, it is difficult to see how, other than by carrying out an inspection, it will ever come to light that the information on an application was not "true, correct and complete."

As well, another provision authorizes the minister to require additional information to clarify the information in an application. The department says this would not mean that the information provided in the application was incomplete, which begs the question that if the application was complete in the first place, why would you need additional clarification of the information in the application?

Again, the response seems to raise as many questions as it answers.

The second point is paragraph 2(1)(d). This provision states that the minister has to provide information necessary for him to take into account a number of factors. The department explains that what they are contemplating is information relating to yearly allocation method orders and, in particular, export permits on record and transfers of quota on record.

Perhaps this could simply be clearly stated rather than referring vaguely to information entitling you to take into account various factors.

There is also an issue here of enabling authority. The department cites subsection 12(a.1) of the act. It authorizes regulations respecting considerations the minister must take into account when deciding whether to issue an allocation.

However, there is also subsection 12(a) of the act, and it authorizes regulation prescribing the information to be furnished by applicants. We would suggest that this is the proper enabling authority, because it specifically deals with the information to be in an application and it says that information must be prescribed in the regulations. It seems doubtful that requiring whatever information is necessary to enable the minister to take into account certain considerations establishes what is required with sufficient certainty that it can be said to be prescribed in the regulations.

Subsection 2(2) is a similar issue. Again, it seems doubtful whether requiring whatever information is necessary to clarify other information can be said to prescribe information that has to be submitted. This time, however, the department cites a different enabling authority, which is subsection 12(f), which is a general provision to make regulations for carrying out the purposes and provisions of the act.

There are two difficulties with this. The first is that there is already a specific provision dealing with information that must be submitted, and it says that information has to be prescribed. Second, I would note, even if only in passing, that the paragraph the department is now relying on was not even cited when the amendments were made. Therefore, it seems likely that we are dealing with an ex post facto attempt here to scrounge around to find some basis on which to justify the regulations.

Finally, it was suggested that to the extent section 5 requires export allocation holders to report their own contraventions, this could be seen to infringe the right against self-incrimination. The department correctly points out that the regulations impose no requirements on citizens; they merely set out the process for applying for an allocation, and it is not even an offence to contravene the terms and conditions of an allocation. That is true. However, then the question becomes: Why does section 5 refer to contravening the requirements of the regulations when the regulations contain no requirements that can be contravened?

The department's reply states that this provision is there to protect the minister from any liability and judicial review. Frankly, I have no idea what that means.

In the end, on each of these points, I would suggest probably what should be done is to write back to the department and try and get further information and explanations as to the intent underlying these various provisions.

Mr. Anders: Sounds good to me.

Senator Braley: You explained it better than I could read it with the paperwork; I could not put those things together with the paperwork. I got three quarters of it.

Mr. Bernhardt: Perhaps the next time we do the note, we will read it to each other in the office and it might help to see what needs to be clarified.

Senator Braley: I did not mean that to be derogatory. It was just difficult for me as a person with no experience in that area to understand the complexities of the back-and-forth over there.

Mr. Bernhardt: I always appreciate the feedback. That is great.

The Joint Chair (Senator Runciman): Except for the term "ex post facto."

SOR/95-405 — RESPONSE ORGANIZATIONS AND OIL HANDLING FACILITIES REGULATIONS

(For text of documents, see Appendix D, p. 21D:1.)

SOR/2001-179 — REGULATIONS AMENDING THE LIFE SAVING EQUIPMENT REGULATIONS

(For text of documents, see Appendix E, p. 21E:1.)

SOR/2006-256 — REGULATIONS AMENDING THE LIFE SAVING EQUIPMENT REGULATIONS

(For text of documents, see Appendix F, p. 21F:1.)

SOR/2007-99 — LOAD LINE REGULATIONS

(For text of documents, see Appendix G, p. 21G:1.)

SOR/2007-100 — TARIFF AMENDING THE SHIPS REGISTRY AND LICENSING FEES TARIFF

(For text of documents, see Appendix H, p. 21H:1.)

SOR/2008-275 — ENVIRONMENTAL RESPONSE ARRANGEMENTS REGULATIONS

(For text of documents, see Appendix I, p. 21I:1.)

The Joint Chair (Senator Runciman): Item 4 on our agenda, Response Organizations and Oil Handling Facilities Regulations, appears under the heading "Reply Unsatisfactory (?)." This item is an amendment to correct a drafting error in the French version. It was promised 11 years ago. The most recent response from Transport Canada is that it will be made as soon as possible, given the resources available. I think this may be the same department that drew Mr. Masse's attention.

Mr. Bernhardt: That is it in a nutshell. I suppose, without going into topics that the committee has decided to defer, this, as well as the number of following files, was the one instance we came across where a particular department or particular part of a department seemed to be repeatedly relying on the lack of resources. We had that answer in connection with a number of files; there are eight on the agenda this morning. Six of them were dealt with in one letter from the department. They come as a group. Those are Items 4 through 9. That explanation is simply meant to give a bit of context for members.

The Joint Chair (Senator Runciman): Should the committee deal with all of these items as one? They are essentially all the same issue.

Mr. Bernhardt: That is one approach. It is essentially the same reply on each of them. The delays are of various durations; the first one is the oldest file. However, basically, the situation is more or less the same for Items 4 through 9.

Senator Braley: I believe you should list them all as one. There is probably something that needs to be done in the department that could get straightened out if it went to the appropriate person.

The Joint Chair (Senator Runciman): Who is the appropriate person? Item No. 4 has been out there for 11 years. Counsel, do you have any advice?

Senator Moore: Write the minister. If nobody else is responding, why do we not write to the minister? We keep working our way up. It is a little frustrating. Why do we not just go to the top, point out what is going on here and say we want some answers and a proper response? Where does it end?

An Hon. Member: You are right.

The Joint Chair (Senator Runciman): I believe we have agreement to write the minister on Items 4 through 9.

SOR/2002-18 — REGULATIONS AMENDING THE COMPETENCY OF OPERATORS OF PLEASURE CRAFT REGULATIONS

SOR/2007-124 — REGULATIONS AMENDING THE COMPETENCY OF OPERATORS OF PLEASURE CRAFT REGULATIONS

(For Text of documents, see Appendix J, p. 21J:1.)

The Joint Chair (Senator Runciman): The next item is somewhat different. This amendment was promised in 2007. The Department of Transport is indicating that it has been delayed due to a large volume of high profile priorities. They use the issue of resources.

Mr. Bernhardt: This file could be included with the others. I indicated that it is somewhat different because the last time the committee wrote back to the department it had already expressed concern that the timeline given of mid-2012 represented the latest in a series of postponements. In its words, the committee fully expected that forecast to be met. We now have a further delay; so it could be dealt with together with the other items. The committee had already expressed a particular concern with this one.

The Joint Chair (Senator Runciman): It was not expressed to the minister.

Mr. Bernhardt: No, not to the minister.

The Joint Chair (Senator Runciman): Perhaps we should include it. Do members agree?

Hon. Members: Agreed.

SOR/2012-28 — REGULATIONS AMENDING THE WEIGHTS AND MEASURES REGULATIONS

(For text of document, see Appendix K, p. 21K:1)

The Joint Chair (Senator Runciman): Under the heading of "Part Action Promised" we have amendments to the Weights and Measures Regulations. The committee raised eight points. Some have been responded to appropriately, while counsel has concerns about others.

Mr. Bernhardt: That is correct. I also note that this instrument made 17 amendments that the committee had been looking for. Unfortunately, it gave rise to eight new issues. The department's response does not deal with each point individually. However, it indicates that discrepancies between the English and French versions will be resolved; and I presume that refers to points 3, 4 and 6. They also state that other suggested changes will be made, which appears to be a reference to points 2, 5 and 8. These amendments are to be made within two years. In connection with point 1 and the final paragraph of point 7, the department undertakes only to take these matters up with the Department of Justice drafters. It seems to be the case that the wording that we had suggested was used in the initial version of the regulations prepared by the department but was then changed by the Department of Justice before they were enacted, interestingly enough. Perhaps confirmation could be sought that amendments will be made to address those matters.

That leaves only the remainder of point 7. The question is whether there is a need to clarify subsection 172(1) to expressly state that if a device is used to weigh an object in pounds, the maximum value of the minimum increment cannot exceed 50 pounds, and if it is used to weigh an object in kilograms, the maximum value of the minimum increment cannot exceed 20 kilograms. On a strict reading of the provision as presently drafted, it could be argued that either maximum increment can be used, even though the two are not identical in the sense that 50 pounds does not equal 20 kilograms. The note in the materials gives an example of how the provision could be said to work and suggests additional wording that could be used.

It is up to members to determine whether this needs to be pursued.

Mr. Saxton: Counsel, are you recommending that we write back and seek clarification? What would you recommend?

Mr. Bernhardt: I would suggest writing back in connection with the two points where they have agreed to take it up with the Department of Justice and ask whether after those consultations they are willing to make the amendments. Depending on how the members view the final point, we could pursue it at the same time. It is a matter of adding some clarification. The department seems to think you can kind of figure it out from the provision as it is drafted, but it could be more clearly expressed.

Mr. Saxton: Why do we not write back to seek clarification?

Hon. Members: Agreed.

SOR/2012-305—REGULATIONS AMENDING THE CANADA INDUSTRIAL RELATIONS BOARD REGULATIONS, 2001

(For text of documents, see Appendix L, p. 21L:1.)

The Joint Chair (Senator Runciman): The amendments in the next item address problems originally raised by the committee in 2003. They give rise to some new points that have caused concern.

[Translation]

Jacques Rousseau, Counsel to the Committee: Further to what you said, Mr. Chair, I would begin by pointing out that SOR/2012-305 provided the opportunity to make the last two changes that had been promised in connection with the committee's review of SOR/2001-520. Further to those changes, an unnecessary provision was repealed and the factors to be considered by the Canada Industrial Relations Board when deciding whether a document should be treated as confidential were set out in the regulations.

The correspondence regarding SOR/2012-305 addressed three new issues related to the drafting of the regulations, as raised in the letter of January 22, 2013. The board promised an amendment to correct the matter identified in point 2, and the issue raised in point 3 was corrected administratively.

Point 1 pertains to a difference in the drafting of certain regulatory provisions setting out the time limits in relation to proceedings. Only one of those provisions, subsection 12.1(2), specifies that the prescribed time limits are subject to section 16 of the regulations.

Section 16 of the regulations provides the time limits that are applicable with respect to expedited processes. The issue is why it was not considered necessary to expressly state, in all of the provisions concerned, that the prescribed time limits are subject to section 16.

In its February 8, 2013 letter, the board acknowledged that section 16 applied to all of the provisions in the regulations establishing time limits and not just to subsection 12.1(2).

The board explained, however, that only subsection 12.1(2) refers to the time limits prescribed in section 16 for the purposes of an expedited process because a person making a request to intervene would not yet be a party to the proceedings and, thus, would have no prior communication from the board.

It is the board's view that, because its procedural letters direct parties to the expedited process under section 16, the reference is not necessary in other regulatory provisions.

The fact remains that the matter gives rise to inconsistency in the wording of the regulations and the implication that only the time limits in subsection 12.1(2) are subject to section 16. The reader of the regulations should not be forced to rely on the board's explanation to understand that this is not the case.

If the board sees the need to clarify the situation in its procedural letters, it would seem to follow that the same references should be included in the regulations themselves.

After all, it is the regulations that establish the rules, and the regulations should be capable of being read on their own.

If the committee is in agreement, counsel will address that point in another letter to the board.

[English]

Hon. Members: Agreed.

SI/2012-37— ORDER AMENDING THE CANADIAN PASSPORT ORDER

(For text of documents, see Appendix M, p. 21M:1.)

The Vice-Chair (Mr. Pacetti): This item under "Part Action Taken" corrects problems identified by the committee. However, other promises and amendments were not made.

[Translation]

Mr. Rousseau: This amendment partly corrects the problems identified by the committee further to its review of SI/ 2009-56. The corrections made pertain to inappropriate references resulting in the minister or Passport Canada being able to impose a period of withheld passport service or revoke a passport on the same grounds that it could refuse to issue a passport. One of those grounds, contained in subsection 9(g) of the order, extends to an applicant who "has been issued a passport that has not expired and has not been revoked."

Why impose a period of withheld passport service or revoke a passport in the case of an applicant who has been issued a passport that has not expired or been revoked? The order was amended so as not to refer to subsection 9(g).

The other promised amendment that was not made under SI/2012-37 would result in the order stipulating the maximum period during which Passport Canada or the minister could withhold passport service.

As explained in the note accompanying SI/2009-56, in order to "support and give meaning to the decision" to refuse or revoke a passport, Passport Canada or the minister may impose a period of withheld passport service of up to five years.

However, that maximum period of five years is not set out in the order. Thus, there is nothing to prevent Passport Canada or the minister from imposing a longer period of withheld passport service. The committee suggested that the department amend the order to stipulate the maximum period, and the department agreed to do so.

In its February 4, 2013 letter, the department explained why the promised amendment had not yet been made. Passport Canada intended to make an electronic passport with a validity period of 10 years available to Canadians this year. The department also indicated that, as a result of the change, Passport Canada had undertaken an in-depth review of the order and was thoroughly examining the period of withheld passport service. The agency was hoping to be able to introduce an applicable policy in a timely manner. If the committee is in agreement, counsel will monitor the file in the usual manner and keep the committee apprised of any progress.

[English]

Mr. Masse: I am a little worried about this one. This affects people being able to go across the border and also employment, so I think I would like more details from the department to come back. Five years is a long time on the refusal side. However, even as it stands right now, if we do not have any specific direction, we have individuals who will not be able to get to employment, travel and a whole series of things such as visiting friends and family. It is too murky. I would like to see a more developed approach to this, if possible.

Mr. Strahl: Do we know if the five-year maximum, which is not spelled out, was intended to correspond with the length of a normal passport — the five-year expiry — and would we expect to see that change with the introduction of a 10-year passport? That would be my question. If we are pushing for this and there is going to be a change, would we not simply want the regulation to make sense no matter which type of passport a Canadian chooses?

[Translation]

Mr. Rousseau: That is the outcome of the correspondence to date; the committee suggested that the period prescribed in the department's policy be stipulated in the order. The department is now reviewing the entire passport matter, including the maximum period in question. It is quite possible that the department will respond that it is issuing a passport with a 10-year validity period and that the service period should therefore be X number of years given the new passport system. We are waiting to see what the department decides on that point.

The issue at this point is whether the matter will be addressed in a reasonable amount of time. In other words, will the department introduce its policy in a timely manner? That is, in my view, the question that the committee should seek to answer this morning.

[English]

Mr. Masse: That is exactly it. They could come back with an answer that it be 10 years.

[Translation]

Mr. Rousseau: Obviously, that is possible. For the time being, the department has given no indication to that effect. However, the connection you described between the current five-year period and the current passport validity period could very well apply in the case of a 10-year passport, resulting in a 10-year maximum period. I cannot give you any more information than what is indicated in the correspondence to date.

Mr. Masse: Do you have a recommendation?

Mr. Rousseau: The department's letter is fairly recent, given that it was sent in February. At this point, it is not reasonable to hope for much more information with respect to the department's progress on the matter. Normally, the committee would write back to the department in two months' time to request an update on the policy in question. And as soon as a response was received, counsel would advise the committee of progress. The next letter should probably be written in May.

[English]

Mr. Saxton: Why not do the beginning of June like we did with the other one? We could do them both at the same time.

Hon. Members: Agreed.

The Vice-Chair (Mr. Pacetti): Thank you.

SOR/2007-302 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS AND THE DAIRY PRODUCTS REGULATIONS

(For text of documents, see Appendix N, p. 21N:1.)

The Vice-Chair (Mr. Pacetti): Item 14 under "Reply Satisfactory (?) deals with Regulations Amending the Food and Drug Regulation and the Dairy Product Regulations.

[Translation]

Mr. Rousseau: The committee's comments pertain to subsections 26.5(1), 26.6(1) and 26.2(2) of the Dairy Products Regulations. The first two provisions confer upon directors designated by the agency discretionary power that the committee considers to be unjustified. For instance, the regulations stipulate that the director may suspend an importer's licence if it is reasonable to believe that public health will be endangered if the importer is allowed to continue importing. The committee suggested that, in such circumstances, the director be required to suspend the licence.

At its meeting of May 31, 2012, the committee was unsure what to make of the agency's reply indicating that it would take the committee's comments into consideration when drafting the regulatory amendments. The letter of January 29, 2013 confirms that these provisions will be amended.

With respect to the third regulatory provision in question, subsection 26.2(2), the promised amendment would bring the description of the inspector's role in line with the objectives of the regulations. The agency indicated that the amendment would be made under its regulatory modernization plan. Furthermore, the committee received information from the minister indicating that the agency was reviewing possible options to make the promised amendments independently of the other changes that would be made under the modernization plan.

The letter of January 29, 2013 says nothing concerning subsection 26.2(2), but the committee may infer that the agency intends to make the promised amendments to that provision, as well as to subsections 26.5(1) and 26.6(1), at the same time as it makes the changes to modernize the regulations. According to the agency, those amendments will be made within the next two years.

The issue is whether the committee considers that response to be satisfactory. If so, counsel will monitor the file in the usual manner and keep the committee apprised of progress.

The Vice Chair (Mr. Pacetti): Thank you. Any comments?

Senator Hervieux-Payette: I am curious as to the reason for the two-year time frame.

Mr. Rousseau: It is an extensive modernization plan, and originally, the agency indicated that the process would take five years, if I am not mistaken. Then the agency indicated that it would take three years, and now the agency is anticipating two years. The more time that goes by, the closer that deadline becomes.

We have noted, however, that certain regulatory amendments within the Canadian Food Inspection Agency's responsibility were made. When all of the regulations within the agency's mandate are taken into account, it can be said that some progress has been made. The correspondence regarding this file goes back to 2008, and an amendment was made in 2012. The question for the committee is whether two years is an acceptable period of time to wait for the remaining amendments to be made.

Senator Hervieux-Payette: Can we negotiate a year? I am not sure, but two years strikes me as a bit long.

Mr. Rousseau: If it pleases the committee, counsel can simply indicate that the agency has been working on the matter long enough to produce results in a more timely fashion than is possible under its regulatory modernization plan, which could, of course, take longer than expected.

If the committee would like, counsel will ask the agency to make the promised amendments within a year.

[English]

Mr. Anders: It sounds to me like they have actually confirmed they want to make the amendments, so that is not the problem here. It is a question of timing. If they said they would do it in two years, or if they are talking about a three- year context, we monitor the file.

Mr. Bernhardt: They contemplate several phases: a two-year phase, a three-year and a five-year phase. I guess this will be part of the two-year phase.

[Translation]

Senator Hervieux-Payette: Earlier it was 2008. It is now five years later. Every time, the agency cites another phase.

You said that this dialogue began in 2008. Since we are already in 2013, it has been going for five years. With another two years added, the total will be seven. Perhaps we should ask that this be done by the end of the year. That would make more sense than waiting another two years.

In addition, we are losing sight of the issue. It is kind of being put on the back burner. Will the committee consider it again in March 2015?

The Vice-Chair (Mr. Pacetti): So you are suggesting that we ask that this be done before the end of the year. Did I understand correctly?

Mr. Rousseau: By the end of the year or next year?

Senator Hervieux-Payette: Next year.

[English]

The Vice-Chair (Mr. Pacetti): Is everyone okay with next year?

Mr. Anders: They have given you a timeline, and I do not think it is inappropriate.

Senator Braley: Did you not recommend that, because of some current correspondence, we monitor it for about two months and then you would write and try to nail it down?

[Translation]

Mr. Rousseau: In that case, if the committee agrees with the two-year time frame, we should write to the agency again soon — I would say next month — since the last letter was sent in January.

However, if the committee does not agree with that time frame, we will write to the agency right away to inform it that the committee would like to see Ð

[English]

The Vice-Chair (Mr. Pacetti): It is either write now or in a month.

Mr. Bernhardt: As an intermediate position, we could also — as the committee did on an earlier file this morning — write and say, "Yes, there is a two-year timeline and . . ."

The Vice-Chair (Mr. Pacetti): ". . . could we speed it up?"

Mr. Bernhardt: That would be one way. The other would be that the committee expects that if it encounters delays beyond two years, the amendments would proceed independently regardless of this overall review. As I say, that is a position between the two.

The Vice-Chair (Mr. Pacetti): Thank you. All agreed?

Hon. Members: Agreed.

SOR/93-195 — QUEBEC MAPLE SYRUP PRODUCERS' LEVY (INTERPROVINCIAL AND EXPORT TRADE) ORDER

(For text of documents, see Appendix O, p. 21O:1. )

The Vice-Chair (Mr. Pacetti): Item 15 under "Progress" is the Quebec Maple Syrup Producers' Levy. We have had this file for a few years as well.

[Translation]

Mr. Rousseau: The Governor in Council, under the Quebec Maple Sap and Maple Syrup Order, delegates to the Federation of Quebec Maple Syrup Producers regulatory powers that the federation can exercise only in respect of persons and goods within the boundaries of Quebec.

However, the order made by the federation imposes obligations on "buyers" without specifying that it applies only to those in Quebec. The committee was promised that the order would be amended to specify that it applied only to buyers in Quebec.

In its letter of December 19, 2012, the Farm Products Council of Canada announced that the Quebec Maple Sap and Maple Syrup Order would be amended rather than the order. In a subsequent telephone conversation, a council official indicated that the Quebec Maple Sap and Maple Syrup Order would be amended in 2013.

Presumably, amending the Quebec Maple Sap and Maple Syrup Order will expand the federation's powers to enable it to impose obligations on buyers from outside Quebec. If so, the Governor in Council will grant the federation a power it did not have when it adopted the order. Amending the Quebec Maple Sap and Maple Syrup Order will not make the provisions targeted by the committee's comments valid. The federation will have to adopt them again once it has the necessary powers to do so. After reviewing the changes to the Quebec Maple Sap and Maple Syrup Order, the committee may decide to make that suggestion.

In the meantime, it would be appropriate to obtain confirmation that the Quebec Maple Sap and Maple Syrup Order will indeed be amended this year. If the committee is agreed, counsel could write to the council about that.

The Vice-Chair (Mr. Pacetti): Is that okay?

Hon. members: Agreed.

SOR/96-484 — RADIOCOMMUNICATION REGULATIONS

(For text of documents, see Appendix P, p. 21P:1. )

The Vice-Chair (Mr. Pacetti): SOR/96-484 — Radiocommunication Regulations.

Mr. Rousseau: The issue raised by the committee is described in detail in the note on this file.

At its meeting of December 15, 2011, the committee expressed a wish to obtain details about the nature of the promised amendment that will be enacted to ensure that subsection 52(1) of the regulations is in keeping with its intended objective as stated by the department, and to ensure that it is compatible with the other sections of the regulations. The committee also wished to be provided with a time frame for the enactment of this amendment.

In the correspondence exchanged since, the department has not provided any detailed information on the promised amendment. Public consultations have been held on the regulations and, in its letter of November 19, 2012, the department indicates that the promised amendment should come into force in spring 2013.

It would be appropriate for committee counsel to write to the department to obtain confirmation that the promised amendment will be adopted this spring. Once it has been adopted, it will be referred to the committee, which will then be able to decide whether the problem has been resolved.

The Vice-Chair (Mr. Pacetti): Does everyone agree?

Hon. members: Agreed.

SOR/99-122 — FARM IMPROVEMENT AND MARKETING COOPERATIVES LOANS AND FEES REGULATIONS, 1998

(For text of documents, see Appendix Q, p. 21Q;1.)

The Vice-Chair (Mr. Pacetti): SOR/99-122.

Mr. Rousseau: In this file, the committee questioned the validity of several provisions of the regulations and commented on the discretionary powers set out in other provisions. Amendments were promised for 16 of the 17 points raised.

Regarding one point — the requirement for lenders to provide certain information to the minister — Parliament, as a first step in correcting the problem, amended the enabling legislation to authorize the Governor in Council to make regulations to prescribe the information to be furnished to the minister by lenders in respect of loans made by it and to the time when the information is to be furnished.

As for amendments to the actual regulations, the department indicates, in its letter of January 14, 2013, that they should be adopted this spring. Counsel will monitor the file and provide the committee with regular updates on the progress made.

The Vice-Chair (Mr. Pacetti): Does everyone agree?

Hon. members: Agreed.

SOR/2002-148 — REGULATIONS DESIGNATING PERSONS AND CATEGORIES OF PERSONS — OTHER THAN TRAVELLERS DESTINED FOR THE UNITED STATES — WHO MAY ENTER A PRECLEARANCE AREA

(For text of documents, see Appendix R, p. 21R:1.)

The Vice-Chair (Mr. Pacetti): SOR/2002-148.

Mr. Rousseau: Paragraph 38(1)(b) of the act authorizes the Governor in Council to make regulations designating the persons or categories of persons who may enter an airport's preclearance area.

The committee is of the opinion that this authority is quite narrow. While it permits the designation of persons or categories of persons, the authority does not permit the making of that designation subject to terms and conditions, as is the case in the regulations. The regulations set out that belonging to a designated category of persons is dependent upon the person being kept under constant close surveillance by the airport operator.

In 2010, the department agreed to remove that condition. In its letter of February 5, 2013, the department states that this amendment should be made no later than June 2013.

This is another file counsel will monitor and keep the committee appraised of any relevant developments.

Hon. members: Agreed.

[English]

SOR/2008-97 — ADMINISTRATIVE MONETARY PENALTIES REGULATIONS

(For text of documents, see Appendix S, p. 21S:1.)

The Vice-Chair (Mr. Pacetti): Next is SOR/2008-97.

Mr. Bernhardt: These regulations allow the contravention of certain designated provisions of the Canada Shipping Act to be pursued by way of an administrative fine rather than prosecution. It was noted that one of the designated provisions of the act contains an inaccurate reference to another provision with the result that the first provision is incapable of being contravened.

The department intends to seek to correct the error by way of the next miscellaneous statute law amendment bill. In the meantime, the committee asked for and was given confirmation that no person has been or will be fined for contravening the statutory provision in question. It is still not known when the next set of proposals for miscellaneous statute law amendment bill will be tabled. The Minister of Justice has previously indicated that work is ongoing, and the committee has been seeking updates from time to time on that.

Senator Moore: I have a question about the miscellaneous statute law amendment bill, which we have done before. Are there a number of files that we are hoping to have cleared up by way of that process?

Mr. Bernhardt: Yes.

Senator Moore: Can that process be initiated in the Senate?

Mr. Bernhardt: Yes, I suppose it could be.

Senator Moore: We keep getting stalled. Why can we not introduce it in the Senate and get it moving?

Mr. Bernhardt: As I say, the committee has been receiving regular updates from the Minister of Justice. I suppose it would be up to the government where it introduces the bill, but I do not think there would be any bar to doing that in the Senate.

Senator Moore: We can introduce proposed legislation provided it is not a money bill. Why do we not compile a list of these situations? I could introduce it in the Senate to get the thing going. I do not have to wait on any government member or anybody else; we can do that.

Senator Batters: Would some of those pieces of legislation not potentially deal with money, which we cannot do? I do not think that the holdup is the introduction of the bill but rather just getting the drafting done.

Senator Moore: That is a matter for consideration, but some of these things have been around for years. I do not understand the delay. This is way before we had any concern about resources, so that is a pretty lame argument. That applies to all the other files we have discussed today. We have files dating back 12 years, and no one complained about lack of resources then. They simply did not want to do it; they did not want to adhere to the law of the country.

Mr. Bernhardt: I suppose for the benefit of some newer members, and because it has been over a decade since the last miscellaneous statute law amendment bill, there is a procedure in place whereby routine, noncontroversial, technical amendments — corrections of errors and so on — can be combined into one bill. I hate to use the word "omnibus bill," but it is that kind of bill. Rather than introduce it as a bill, it is tabled as a set of proposals for a bill. It then goes to committee and if anyone objects to any of them, the amendment is taken out. When the committee is done with it, it goes back to the house and becomes a bill. The idea behind it is that routine, non-controversial items can go through the house very quickly in that way.

Senator Moore: Most of the issues were not controversial.

Mr. Bernhardt: The original intent was that every couple of years there would be such a bill, and that used to happen; but the last one was 10 to 12 years ago.

Perhaps the reason there has not been one in a while is that it is a housekeeping measure and not necessarily a priority in terms of house time to do such a bill.

The Vice-Chair (Mr. Pacetti): Who would initiate the bill?

Mr. Bernhardt: The Minister of Justice.

Senator Moore: Can we talk to someone over there?

Mr. Saxton: How frequently in the past have these omnibus cleanup bills happened?

Mr. Bernhardt: When the procedure started, which I believe was between 15 and 20 years ago, there was such a bill every two or three years. I do not have the exact time, but it has been over a decade since the last one. The Department of Justice has always said that yes, the program is active, they are compiling items, and there will be a bill in due course; but there has not been one. The last advice the committee received from the Minister of Justice was that a bill was to come fairly soon.

Mr. Saxton: How long ago was that?

Mr. Bernhardt: I believe it was last year. If my memory serves me, the joint chairs asked for an update from the minister in the last week or so.

Mr. Saxton: Was that by letter?

Mr. Bernhardt: Yes, it was a pro forma letter asking if there were any developments in that direction. When we get the reply, certainly we will bring it back to the committee.

Mr. Saxton: They have written a letter.

Mr. Bernhardt: I believe that the latest progress report was requested quite recently.

Mr. Saxton: Please share with the committee the response when you receive it.

Senator Hervieux-Payette: I am tempted to ask why we do not keep someone working for the committee clerk during the summer and committee members could undertake an overview of those files, unless you have them all before you so that it could be done within weeks. Maybe we could prepare a pre-agenda for that bill and then ask the Minister of Justice about it. Let us presume that they are short of resources. We have the expertise here, so let us be efficient. When we come back in September, we will have the list of tentative amendments.

It is only fair for Canadian taxpayers to have laws that they recognize as being in good order. We could ask the ministry to review it and come up with the amendments, whether there are 10 or 15 or 20 of them. I would rather see that than see it again in a new budget bill, where we do not have any consultation. This would be the proper way to deal with it. I like this approach, and I am sure that Senator Runciman would be delighted to table that bill in the Senate if they are too busy in the house. Senator Moore as well could volunteer to do that.

We could initiate this. Yes, it was done regularly under previous Conservative and Liberal governments. I have gone through that in the past. The committees will sit and consult on the amendments — we are used to consulting at the Senate level quite a lot. I do not know if my colleagues agree, but it could be done first administratively and then on to the government.

Senator Batters: I am not sure when that last bill was tabled, but if it was 12 years ago, then under the last five years of the Liberal government, it was not done regularly. Maybe there is a reason for that. I would be curious to know why they seem less anxious to do these types of bills now before we plow ahead with it.

Senator Hervieux-Payette: I am not looking at the reason, I am sorry. Departmental employees work for both the Liberals and the Conservatives. We are talking about the mechanics of the functioning of government. As far as I am concerned, perhaps it is not a priority for them. As well, I can understand that they often have a lot on their plate with regular legislation. We could do the preliminary work and submit what could be done; and they could appoint someone at the Department of Justice to review it. When it goes to the Department of Justice, it will have to go through the cabinet committee before it can be submitted. I feel that we are not innovating because it is quite normal to do that and not on a piecemeal basis. You take one or two articles here, there and so on. It is a matter of cleaning up and ensuring that Parliament is doing its work, which is good legislation.

The Vice-Chair (Mr. Pacetti): Counsel, is it possible to put a list like that together?

Mr. Bernhardt: We did have one a couple of years ago, so it would be a matter of going back and updating; but it can be done.

The Vice-Chair (Mr. Pacetti): We can have counsel working while we wait for a reply to this letter. Is that okay?

Hon. Members: Yes.

Mr. Saxton: It would be with an understanding that in a future letter, we would attach the list as a recommendation.

Hon. Members: Agreed.

Mr. Bernhardt: In some of those cases, the committee will have been promised that it will be included in those proposals whenever. Those are a little more concrete than others that have simply been put on the table.

SOR/77-702 — ONTARIO GREENHOUSE VEGETABLE APPOINTED SHIPPERS' PROCEDURES (INTERPROVINCIAL AND EXPORT) REGULATIONS, AMENDMENT

(For text of documents, see Appendix T, p. 21T:1.)

The Vice-Chair (Mr. Pacetti): Item 20 on our agenda falls under the heading Under "Progress(?)".

Mr. Bernhardt: In the course of reviewing other regulations, it was noted that according to the consolidated index of statutory instruments these regulations had not been amended since 1977. It was then ascertained that a number of years ago the joint committee had raised concerns relating to administrative discretion that the provincial board in question had given to itself. Way back then, the committee had been told that the board was preparing amendments to correct the situation. These regulations were made pursuant to something called the Ontario Greenhouse Vegetable Order. This order delegates to the Ontario Greenhouse Vegetable Growers all or any powers like those it has under corresponding provincial legislation. This originally included the power to regulate the marking of products by order or regulation.

The phrase "by order or regulation," is significant because under the Department of Justice's interpretation of the Statutory Instruments Act, this meant regulations made by the provincial board under the order had to be registered and published in the Canada Gazette. However, back in 1987, the order was amended to delete the words "by order or regulation." Again, according to the Department of Justice's view, this had the effect of removing regulations made pursuant to the order from registration and publication under the Statutory Instruments Act.

As a result, the regulations continue to appear in the index, but no amendments are recorded. It bears emphasizing that the committee has never accepted the interpretation of the Department of Justice in this particular matter and considers that it puts form ahead of substance.

That aside, the fact remains that in order to exercise its jurisdiction the board has to create some instrument or document, whether it is called a regulation, a resolution, a minute, whatever. The question then is whether the issues raised in the past by the committee were never corrected or if they were but the new instrument was simply never registered or published. We looked at the Ontario Greenhouse Vegetable Growers website. It lists the regulations that it is responsible for and makes no mention of these regulations.

The Farm Products Council of Canada does not know what has happened to them. It claims it has repeatedly attempted to contact the Ontario Greenhouse Vegetable Growers without success. In short, the Vegetable Growers do not wish to talk to them. It has also raised the issue with the Ontario Farm Products Marketing Commission. The committee is left with these mystery regulations and no one seems to know whether they exist or if they do not, whatever became of them and when.

Mr. Saxton: Does Ontario have a committee like this?

Mr. Bernhardt: It does. I am not sure it is very active.

Mr. Masse: I would invite them to the committee and put them all in the same room. That is my recommendation.

Mr. Anders: I am a little more moderate. I might just write back.

[Translation]

Mr. Genest: It seems to me that, when legislation exists, it should be published. We should be aware of things. How is it that we are not even responding to this? It is our role to react! We should react and tell them. We should send them a letter, do something, but we need to take action. Why are we letting them do whatever they want and allowing them to play around like children in a schoolyard, without supervision?

If our role is to respond, we should do so. How do we go about doing that? I think you know.

[English]

Mr. Masse: We are going to burn up a lot of staff time writing letters back and forth amongst parties that are not being cooperative with us or with themselves. I think the best thing to do is to invite them all to come here at the same time to discuss and deal with the issue.

Mr. Saxton: Obviously we have to react, but my recommendation would be that we write a letter and put them on notice that if they do not respond then we will call them before the committee. However, we can at least put them on notice by writing back first.

Do we have a proper address, counsel? Have our letters been returned to us?

Mr. Bernhardt: There is the umbrella organization federally that is supposed to deal with the various provincial bodies, which is the Farm Products Council. They do not seem to get replies from the provincial bodies that are supposed to coordinate.

Mr. Saxton: Counsel, would you be willing to meet with them yourself?

Mr. Bernhardt: The answer may be as simple as, "We got rid of those in 1989," and that is fine.

Mr. Saxton: They are not responding to letters. How about a telephone call?

Senator Hervieux-Payette: No, no.

Mr. Saxton: We want to make contact in some way, obviously.

Counsel, do you have a recommendation?

Mr. Bernhardt: We can certainly try that.

The Vice-Chair (Mr. Pacetti): If you want to have them appear for a meeting you will have to call them anyway, so why not call? Is that right, Mr. Saxton?

Mr. Saxton: No, we want the information. Counsel can possibly get the information either through a letter or the telephone without necessarily having them come here. If they are not willing to give that information we go to step B, which is to have them come here, but first we should exhaust step A.

Senator Hervieux-Payette: It is complementary. I would send a letter to meet with them within 30 days, and if they do not agree to the 30 days we will ask them to appear before us. We should perhaps give them some time to reflect, but I would do it in writing. Phone calls can just disappear in the minds of people. A letter will not disappear. Let us send a letter saying you want to meet with them about this, what you want to achieve during that meeting and that they have 30 days to meet you and to report at the next two meetings.

Mr. Vellacott: This is delegated authority, but it is not the Farm Products Council of Canada that is not responding; it is the body underneath them.

Have we made, attempted to make or is it appropriate to make direct contact with the Ontario Greenhouse Vegetable Growers? They are that sub-body under the Farm Products Council of Canada.

Mr. Bernhardt: That is exactly the point. To date, we have been dealing with the Farm Products Council of Canada.

Mr. Vellacott: They are not being obstreperous or anything?

Mr. Bernhardt: They are replying that they cannot get a reply in return. As to whether that is appropriate, it is certainly appropriate if that is what the committee directs.

Mr. Vellacott: If we have never attempted that, we should make the vault over Farm Products and see if we can write or phone those other people. Perhaps they are understaffed or under-resourced and will say it was dealt with a long time ago.

Mr. Masse: As a compromise, we could give them an option to either respond or appear. I agree with what you are suggesting, just go across and over, but give them a timeline and an option to either respond or appear.

Senator Moore: I thought that was the suggestion of Senator Hervieux-Payette.

Mr. Saxton: My understanding of what Senator Hervieux-Payette suggested was that you contact them and ask for a meeting through a letter. The body that is not responding is Ontario Greenhouse Vegetable Growers. They are not responding to the Farm Products Council of Canada for some reason, but maybe they will respond to us. Let us write a letter to the Ontario Greenhouse Vegetable Growers and request a meeting for counsel to meet with them.

Senator Hervieux-Payette: Within 30 days — I agree with that. We are talking about a multi-million dollar business, not about a small thing. I cannot understand that they would not have the resources to answer.

The Vice-Chair (Mr. Pacetti): Are all agreed?

Hon. Members: Agreed.

[Translation]

SOR/2010-57 — REGULATIONS AMENDING THE PCB REGULATIONS

(For text of documents, see Appendix U, p. 21U:1.)

The Vice-Chair (Mr. Pacetti): SOR/2010-57.

Mr. Rousseau: The correspondence in this file goes back to June 2010. The department promised to amend the English version of the regulations, so that it would be consistent with what is set out in the French version.

When the committee studied this issue on December 1, 2011, the department expected the proposed regulations with the promised amendment to be published in summer 2013. It maintained that deadline in its letter of March 5, 2012. In its letter of January 16, 2013, the department repeated that it was re-evaluating its priorities regarding its regulations and amendments to the regulations as a result of the new directives. At that point, the department expected to begin preparing the proposed regulations in February 2013 and to publish them in summer 2014.

If the committee agrees with that time frame, counsel will monitor the file and provide the committee with regular updates on the progress made.

[English]

The Vice-Chair (Mr. Pacetti): Are all agreed?

Hon. Members: Agreed.

Senator Hervieux-Payette: On a point of information, will they apply the French version or the English version in the meantime? You say they need to have the English go the French way. I am wondering if, for people in English Canada, will they know and receive an interpretation of the French version?

[Translation]

Mr. Rousseau: I cannot answer the question, as I do not recall that we asked them the question in the correspondence to ensure that they would enforce the French version, but we can presume that this is was they are doing since they are proposing to amend the English version. We could ask the question in the next letter we will send them and obtain confirmation.

Senator Hervieux-Payette: That would be helpful. Thank you.

SOR/95-212 — PLANT PROTECTION REGULATIONS

(For text of documents, see Appendix V, p. 21V:1.)

The Vice-Chair (Mr. Pacetti): "Action Promised", SOR/95-212.

Mr. Rousseau: In its letter of January 14, 2013, the Canadian Food Inspection Agency informed us that it has undertaken — at the committee's suggestion — the necessary procedure to amend the Plant Protection Act, so that Parliament can incorporate into it the substance of the three regulatory provisions mentioned in the letter of November 2, 2012.

Since it began considering those three provisions in 2005, the committee has maintained that they are illegal because they concern fraud and create criminal offenses without Parliament having clearly authorized the adoption of those provisions. Over the years, the agency has expressed the opinion that those regulatory provisions are valid, but it has never succeeded in convincing the committee.

Today, without saying that it shares the committee's point of view, the agency agrees to implement the solution proposed by the committee. We will monitor the file.

The Vice-Chair (Mr. Pacetti): Are there any comments?

SOR/2010-83 — FIRE AND BOAT DRILLS REGULATIONS

(For text of documents, see Appendix W, p. 21W:1.)

The Vice-Chair (Mr. Pacetti): SOR/2010-83.

Mr. Rousseau: This is a promised amendment aimed at correcting, harmonizing the English and French versions of a regulatory provision. Once again, we will monitor the file.

[English]

The Vice-Chair (Mr. Pacetti): Are there comments? Thank you.

SOR/99-325 — EXCEPTION FOR EDUCATIONAL INSTITUTIONS, LIBRARIES, ARCHIVES AND MUSEUMS REGULATIONS

(For text of documents, see Appendix X, p. 21X:1. )

SOR/2012-114 — REGULATIONS AMENDING THE RETIREMENT COMPENSATION ARRANGEMENTS REGULATIONS, NO. 1

(For text of documents, see Appendix Y, p. 21Y:1.)

SOR/2012-131 — REGULATIONS AMENDING THE RETIREMENT COMPENSATION ARRANGEMENTS REGULATIONS, NO. 1

(For text of documents, see Appendix Z, p. 21Z:1.)

SOR/2012-238 — REGULATIONS AMENDING THE POWER LINE CROSSING REGULATIONS

(For text of documents, see Appendix AA, p. 21AA:1.)

The Vice-Chair (Mr. Pacetti): Next is "Action Taken."

Mr. Bernhardt: If members agree, I propose to quickly deal with the items under "Action Taken" as a group. Under Item No. 24, the enactment of the Copyright Modernization Act resolved the final matter outstanding in connection with SOR/99-325. The three instruments under Item Nos. 25, 26 and 27 in total make seven promised amendments.

SI/2012-49 — ORDER AMENDING THE ORDER RESPECTING THE INTERIM FEDERAL HEALTH PROGRAM, 2012

SI/2012-58 — ORDER DESIGNATING THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES FOR THE PURPOSES OF THE ACT

SI/2012-59 — ORDER TRANSFERRING TO SHARED SERVICES CANADA THE CONTROL AND SUPERVISION OF THE PORTION OF THE FEDERAL PUBLIC ADMINISTRATION IN THE ACQUISITIONS BRANCH OF THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES KNOWN AS THE INFORMATION TECHNOLOGY SHARED SERVICES PROCUREMENT DIRECTORATE

SI/2012-60 — ORDER TRANSFERRING TO THE DEPARTMENT OF HEALTH AND TO THE PUBLIC HEALTH AGENCY OF CANADA THE CONTROL AND SUPERVISION OF CERTAIN PORTIONS OF THE FEDERAL PUBLIC ADMINISTRATION

SI/2012-62 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2012-63 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2012-68 — ORDER FIXING AUGUST 20, 2012 AS THE DAY ON WHICH DIVISION 12 OF THE ACT COMES INTO FORCE

SI/2012-69 - ORDER DECLINING TO REFER BACK TO THE CRTC DECISION CRTC 2012-308

SI/2012-70 — ORDER ASSIGNING THE HONOURABLE LEONA AGLUKKAQ TO ASSIST THE MINISTER OF FOREIGN AFFAIRS

SI/2012-71 - ORDER FIXING OCTOBER 1, 2012 AS THE DAY ON WHICH THE ACT COMES INTO FORCE

SI/2012-72 — PERSONAL HEALTH INFORMATION CUSTODIANS IN NEWFOUNDLAND AND LABRADOR EXEMPTION ORDER

SI/2012-73 — HAITI REMISSION ORDER

SI/2012-74 — PROCLAMATION DESIGNATING THE "FIRE PREVENTION WEEK"

SI/2012-75 — ORDER FIXING SEPTEMBER 30, 2012 AS THE DAY ON WHICH SUBSECTION 713(2) AND CERTAIN SECTIONS OF THE ACT COME INTO FORCE

SI/2012-76 — RESERVATION TO THE CROWN WAIVER ORDER (HECLA AND GRIPER BAY, N.W.T.)

SI/2012-78 - ORDER DESIGNATING THE MINISTER OF TRANSPORT AS THE APPROPRIATE MINISTER FOR THE WINDSOR-DETROIT BRIDGE AUTHORITY

SI/2012-79 — INDIAN ART-I-CRAFTS OF ONTARIO REMISSION ORDER

SI/2012-80 — RESERVATION TO THE CROWN WAIVER ORDER (DOLOMITE LAKE, N.W.T.)

SI/2012-81 — RESERVATION TO THE CROWN WAIVER ORDER (MACKENZIE RIVER, N.W.T.)

SI/2012-82 — RESERVATION TO THE CROWN WAIVER ORDER (GREAT SLAVE LAKE, N.W.T.)

SI/2012-83 — RESERVATION TO THE CROWN WAIVER ORDER (YELLOWKNIFE BAY, N.W.T.)

SI/2012-84 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE

SI/2012-86 — GREGORY MACNEVIN REMISSION ORDER

SI/2012-87 — ORDER FIXING JANUARY 1, 2013 AS THE DAY ON WHICH PART 7, OTHER THAN SECTIONS 22 TO 24, OF THE ACT COMES INTO FORCE

SI/2012-88 — ORDER FIXING DECEMBER 1, 2012 AS THE DAY ON WHICH SECTIONS 526 TO 528 OF THE ACT COME INTO FORCE

SOR/2008-269 — REGULATIONS AMENDING THE ONSHORE PIPELINE REGULATIONS, 1999

SOR/2010-105 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (743 — NON- MEDICINAL INGREDIENTS)

SOR/2012-101 — REGULATIONS AMENDING THE FIREARMS FEES REGULATIONS

SOR/2012-140 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS

SOR/2012-142 — REGULATIONS AMENDING THE SPECIALTY SERVICES REGULATIONS, 1990

SOR/2012-149 — ADMINISTRATIVE MONETARY PENALTIES REGULATIONS (INTERNATIONAL BRIDGES AND TUNNELS)

SOR/2012-223 — ORDER AMENDING SCHEDULE III TO THE FINANCIAL ADMINISTRATION ACT

SOR/2012-226 — MICROSD CARDS EXCLUSION REGULATIONS (COPYRIGHT ACT)

Mr. Bernhardt: Finally, under "Statutory Instruments Without Comment," I would simply note for the record that there are 33 listed. They have been reviewed and found to comply with all the committee's criteria. As always, they are simply listed but copies are available here if anyone has questions or wishes to have a copy of any of those.

The Vice-Chair (Mr. Pacetti): Are there any comments?

Counsel, let us go back to the matter that Mr. Masse brought up two meetings ago, I believe. Please bring us up to speed.

Mr. Bernhardt: Back at the February 14 meeting, the question was raised whether there has been an increase in the number of instances where regulation makers are citing a lack of financial or other resources as a reason for delaying or postponing promised amendments. We were asked to review the committee's current files and report back.

We did an overview of approximately 600 active committee files. There is some indication that this kind of justification may have become slightly more common over the past year or so. At the same time, most departments and agencies have not raised it — at least not yet.

Aside from the one department that the committee dealt with on a number of files this morning, we identified four recent instances where a regulation maker expressly cited a lack of resources as a reason for not meeting the deadline. Two of those are Parks Canada files. One was the Environment Canada file that was before the committee back on February 14. The fourth instance was also before the committee on February 14, and that was a file with Public Works and Government Services Canada, where they indicated in the course of meeting with the committee staff, they did not have a budget to amend regulations and would need to secure the necessary funds before doing so. The committee has never heard that before.

On the other hand, Public Works administers very few regulations, and this response may well reflect unfamiliarity with the relevant internal government processes, as much as anything else. At present the committee only has one other active file with Public Works and Government Services Canada.

As the committee saw earlier this morning, the one department that did stand out was Transport Canada. There, we had the delays attributed to lack of resources in a large number of priorities in connection with 10 files. All of these, again as the committee saw this morning, concern marine regulations. Therefore, it may be that there are issues in that particular part of the department.

At the same time, Transport Canada is one of the largest federal regulators. It has extensive responsibilities, so it may feel restraint more acutely than some others. It is difficult to say. Due to that and because those files were ready to go, we had them on the agenda this morning. In those cases, as members know, the decision was to write to the minister and express some concern with those delays and that attribution.

I suppose just by way of a couple of final comments, most of the larger regulatory departments and agencies at one time or another have invoked limited resources or increased responsibilities as reasons for failing to make amendments, so there is not really a lot new in that. A reference to the need to make choices and set priorities might simply reflect the fact that in a given instance, the department's priorities are not the same as the committee's.

It may also be that references to allocation of resources and competing priorities reflect a changing approach to how the law in general is viewed. Increasingly public administration adopts what is called a risk-based approach. This is not unique to Canada. The danger with this, however, is that questions of legality can simply become another consideration that is viewed through the lens of risk management. If it seems no one is likely to take government to court, the bureaucracy may decide that the risk of an illegal or defective regulation is acceptable. This ignores the fact that, under our system of law and government, rule of law is paramount; in other words, legality is not something that is to be cost-benefited or risk-analyzed. I suppose that is one reason there is a scrutiny committee.

Members have pointed out on occasion, and I believe did so this morning, that when the committee identifies a problem and the regulation-maker agrees, then it is for the regulation-maker to fix the problem. How it arranges its resources to do that may not be the committee's concern. The committee has never accepted scarcity of resources as a reason for not following through on promised amendments.

We can keep the concern in mind and report back if it appears there is a broader trend developing and progress is grinding to a halt across the board; although I expect members sitting here on Thursday morning would come to that realization as quickly as we would.

The Vice-Chair (Mr. Pacetti): Of the 600 files, do you have the total number of files, roughly, that they are working on?

Mr. Bernhardt: We came up with 14 files where lack of resources was cited. Of those 14, 10 were Transport Canada and specifically marine regulations.

The Vice-Chair (Mr. Pacetti): I have two from Parks Canada and one from Public Works. What is the other one?

Mr. Bernhardt: There is one from Environment.

The Vice-Chair (Mr. Pacetti): Are there any questions?

Mr. Masse: I would like to have a review in a month. We are not looking for a silver bullet to solve this right now, but we have to develop trends. One month from now, we should find out whether we have more files still open because of lack of resources than we had before and whether those are resolved. I am very concerned about Public Works saying that they basically have no budget. That means Public Works is not accountable to this committee — that is the end result. They have no budget; and they will not assign resources. If they do not resolve our questions, they are deciding discretionally that they are not accountable to the Standing Joint Committee for the Scrutiny of Regulations in this Parliament. That is an issue we have to deal with.

The Vice-Chair (Mr. Pacetti): Any other comments? I am looking at it from a materiel aspect. It is one file we asked them to take action on.

Mr. Bernhardt: They have agreed to make the amendment, so they are not saying they will not make it for a reason. They are saying that they agree to make the amendment but will have to find some money to do it. In a sense, that is always the case. Anything a department does, it has to find the money to do it. The proof will be whether the amendment is made in a timely fashion.

The Joint Chair (Senator Runciman): I heard counsel indicate that he will monitor the trends and draw them to the committee's attention. I do not know if one month is absolutely necessary, if counsel sees an increasing trend across government. One or two files jump out at us with respect to one department continually using "lack of resources" as its justification. If it is not found to be a broader government challenge, then the committee may want to deal with that department, which may mean calling them here and having a conversation. That is something we can discuss at a future date. If we see that the trend remains developing as it has to date, then we should do something about it.

Senator Hervieux-Payette: I hope everyone knows that every department has to comply. For some departments, we never see any of the regulations because they are in conformity with their legislation. Those departments are doing their jobs perfectly well. However, 20 years ago this department was not doing its work properly and the trend continues. This department has always been difficult to deal with in terms of the regulations.

Instead of asking them to appear before the committee, recognize that there is a problem within the department. We cannot blame five or six or seven ministers who were there before. I have not heard any minister say, "I do not want my regulations to conform." There is a problem internally in the administration of the department. Normally, the Clerk of the Privy Council is the boss of these deputy ministers, of course, and the people working for them.

As far as I am concerned, there is a problem. We can ask them to come here, but they do not respond. It is the political people who are trying to make these people do their jobs properly. I am tempted to say we should talk to the bosses of these guys. I would not put any blame on the political leadership, because minister after minister has not improved the quality of the work that is done in respect of the regulations. We know that in some departments, some employees are there almost forever. I remember a deputy minister who was there for maybe 10 years.

We have to look at how things are happening within the mechanics of government. In this case, there is poor management of the drafting of their regulations. I do not know why they do not pay attention to that. We never hear about the Department of Health, on a repetitive basis, not doing their regulations and having to come before us. We almost never see any of their regulations. It is the same for many departments. Of the more than 20 departments, we hear from only three or four or five. The rest are doing their jobs properly.

We have to address the question to the right place. I do not know what the suggestion of our friend on the other side is, but I agree that it is not correct. We can simply underline that they are not doing their job, but we cannot do their job. They come before us regularly, and we lose committee time on the repetitive nature of this. Either we should raise the concern with the ministers or with the boss of the drafters of the regulations. I have never known a minister to draft a regulation.

Mr. Saxton: Counsel has identified 14 files for us this morning. We have an action plan for each one of those files; and 10 of them were dealt with this morning. We need to wait to see how those are dealt with over the next few weeks and monitor the situation as it develops.

The Vice-Chair (Mr. Pacetti): Are members agreed?

Mr. Masse: I would like a report on the trend in a month.

The Vice-Chair (Mr. Pacetti): I am with Senator Runciman on this. I would like to ask counsel if one month makes sense.

Mr. Bernhardt: We can certainly do that. Given the pace of government, one month is a very short period of time.

Mr. Masse: I am open to whatever counsel suggests. I want to know if a trend is developing.

Mr. Bernhardt: It can be whatever time the committee is comfortable with. It is not a problem for us to monitor things that come across our desk.

The Vice-Chair (Mr. Pacetti): Should we have that for the meeting in May? That will give us two months, as a compromise.

Mr. Saxton: We talked about the beginning of June being the deadline for other things. Let us stick to that. Before we depart for the summer, we will have a review or update.

The Vice-Chair (Mr. Pacetti): It will be June 6. Perfect.

(The committee adjourned.)

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