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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 1 - Evidence - November 21, 2013

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OTTAWA, Thursday, November 21, 2013

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.

Senator Bob Runciman and Ms. Chris Charlton (Joint Chairs) in the chair.

[English]

The Joint Chair (Ms. Charlton): I call the meeting to order. Let's begin.

SOR/94-439 — NATIONAL PARKS CAMPING REGULATIONS, AMENDMENT

SOR/94-512 — NATIONAL PARKS GENERAL REGULATIONS, AMENDMENT

SOR/2000-183 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 1999-2 (MISCELLANEOUS PROGRAM)

The Joint Chair (Ms. Charlton): These are fee-setting provisions under two acts, and it is still not clear how they will operate together.

Peter Bernhardt, General Counsel to the Committee: As the former Minister of the Environment's June 7 letter notes, the Canada National Parks Act, specifically section 4, has now been amended to address the flaw that was in the French version of that section and also to add a provision to make it clear that fees can be imposed for the use of national parks under other legislation, specifically the Parks Canada Agency Act.

That addresses the primary aspect of the committee's concern. However, it does not resolve the subsidiary question of how the fee-setting provisions in the National Parks Act and the Parks Canada Agency Act are intended to operate together. The minister's reply expresses the view that a further amendment is not necessary.

As members will know, fees for access to and the use of national parks are currently fixed on an administrative basis under the Parks Canada Agency Act. The committee's difficulty was that section 4 of the National Parks Act stated that:

The national parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations . . . .

The committee took that to mean that any restrictions imposed on the use of national parks had to be done through the National Parks Act or the regulations made under that act. The imposition of fees for using the park is obviously a restriction.

There is quite a detailed note in the materials that goes through the history of the file and all the various technical arguments that went back and forth over the years.

As I indicated, we now have an amendment that makes it clear that fees for the use of national parks can be imposed under either statute. Of course, the problem for the committee has always been that if you accept that you have these overlapping fee-setting powers, you at least have the possibility in theory that you could have two fees imposed for the same use.

The possibility of that happening, as a practical matter, may seem quite remote, but the situation could easily be clarified. The committee has always argued that clarifying it would preclude the possibility of anyone ever having to go to court to take the time and expense of sorting this all out. That suggestion has never been met with a positive response.

Something else that at this point may be considered of some significance, given that we have the existence of the power to set fees simply on an administrative basis in the Parks Canada Agency Act, is if there is even any need now for provisions in the National Parks Act that permit regulation-setting fees. After all, if you have an easier way of doing the same thing, which is simply to have the minister fix a fee, why would you ever go to the bother of going through the entire regulatory process to do the same thing?

If these regulation-making powers don't serve any purpose anymore, perhaps one solution would be simply to take them out of the National Parks Act; all the fees would be fixed as they are now by the minister, and you would remove any possibility of a conflict.

The next file this morning, in fact, perhaps provides a partial precedent for that approach, and the committee might consider putting that suggestion to the Minister of Agriculture.

The Joint Chair (Ms. Charlton): Thank you very much. Any comments?

Ms. Ambler: I'm familiar with Bill S-15, having served on the Environment Committee for some time. I read this with great interest and wasn't aware of the situation in the regulations. I would like more information. There are some outstanding questions that I have. I'm new to this committee, so I don't believe this is the time that we could get this information in this particular meeting. I'm hoping that you would allow us to put this back one more meeting so that we could get a little bit more information and then make the right decision on this file.

The Joint Chair (Ms. Charlton): Are you looking for more information from counsel, from the ministry, from your colleagues?

Ms. Ambler: Probably the first two: from counsel and the ministry.

The Joint Chair (Ms. Charlton): Do you have questions for counsel that maybe counsel could answer?

Ms. Ambler: I was hoping that I could put the concerns in writing, have them dealt with offline and then come back with a recommendation for the next meeting.

The Joint Chair (Ms. Charlton): I'm in the committee's hands.

Mr. Albas: Madam Chair, I think the member is seeking more time to examine it, but if counsel has more background —

Given the fact that most of us got here Monday — and, yes, we had the sheets last week — I only got to start looking at this on Monday night. I found there to be rather complex legal arguments in there, and I think the member is just asking for this to be pushed back to the next meeting. I think that's reasonable.

The Joint Chair (Ms. Charlton): Does anybody have strong views that we need to deal with this today? Then let's bring it forward.

Mr. Albas: On that, the next file has some parallels. Could we do the same thing? I actually think we should try to deal with them as one package.

The Joint Chair (Ms. Charlton): Are members agreed?

Hon. Members: Agreed.

SOR/2001-532 — TELECOMMUNICATIONS APPARATUS REGULATIONS

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

The Joint Chair (Ms. Charlton): This item deals with Telecom Apparatus Regulations. In this case, amendments to the Telecom Act still have not been brought forward, but there is no interim revocation of the regs as the committee had asked on earlier occasions.

Mr. Bernhardt: That's basically the situation. Amendments were first promised to the act and regulations in 2008. The committee was looking for a precise time frame and the minister's most recent letter indicates the issue will be addressed at the earliest possible opportunity.

The Joint Chair (Ms. Charlton): Any comments on this file?

Senator Tannas: Given that it's been six months, we should elevate this again to the minister, write him back and ask this time for a specific, concrete time frame by which he will address the committee's concerns.

The Joint Chair (Ms. Charlton): Is that agreeable?

Hon. Members: Agreed.

SOR/2012-251 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

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

The Joint Chair (Ms. Charlton): This item deals with the tabling of the statement of reasons. Does counsel want to the elaborate?

[Translation]

Evelyne Borkowski-Parent, Counsel to the Committee: Previous committee members will certainly recall the problem that arises from this file. For new members, here is a brief overview of the legislative issues surrounding the regulations.

The act requires all draft regulations to be tabled in both houses of Parliament except when the Minister of Public Safety feels that the draft regulations in question do not include any substantive or noteworthy amendments. In that case, the minister tables a statement setting out the rationale on which he bases his decision.

The act sets no timeframe for such statements to be tabled. But there comes a point at which delays run counter to the obligation to table the statements and to the spirit of the legislation itself. This has already been the subject of a Speaker's ruling, on November 21, 2001, in which it was declared to be a prima facie breach of privilege.

The committee also concluded, in its report number 77, that regulatory authorities should show more diligence in meeting the requirements to table. Typically, what happens is that the statement is tabled after committee counsel have noted that it has not been.

Normally, it has taken an inquiry from counsel about the missing statement, five months after the regulations are made, before a statement is tabled in both Houses. In this case, since a trend seems to be developing, the committee may find it useful to bring the matter to the attention of the new Minister of Public Safety in hopes of getting better results in the future.

[English]

Mr. Breitkreuz: I have taken a special interest in this issue and I want to acknowledge the good work of the committee with regard to raising the awareness of it. I think it's good for us to know this.

[Translation]

Senator Hervieux-Payette: I agree with bringing it to the minister's attention, but I would also like a reply from him telling us when he going to do it. It is important that we receive an indication from the minister that our recommendation has reached him.

Mr. Bélanger: If the minister does not provide an answer about the deadline for giving notice of a change, what suggestions could the committee have for setting a deadline?

Ms. Borkowski-Parent: The only way for the committee to raise the matter would be to write a report on it, as it previously did with report No. 77.

In this case, the Act does not set a specific deadline for the statement to be tabled. So the last statement was tabled after we had pointed it out.

What counsel are suggesting this morning is perhaps to bring the matter to the minister's attention to see if things are going to improve in the future.

Mr. Bélanger: Can we recommend an amendment to the regulations in a report?

Ms. Borkowski-Parent: Yes, it would need an amendment to the enabling legislation.

Mr. Bélanger: But we can make that recommendation?

Ms. Borkowski-Parent: Yes.

Mr. Bélanger: Thank you.

[English]

Mr. Albas: I certainly understand the concern that committee members may have in this regard, but simply put, this committee has raised the issue in a report previously with both houses. That report, to my knowledge, was received and probably studied by all parties. It is certainly outside the ability of this committee to make legislative changes. If a particular member of this committee believes this should be looked at and examined, they can go back to their particular leadership and express that concern. But this committee has already weighed in on this particular subject, so I think what Mr. Breitkreuz said is to appreciate that our counsel continues to keep an eye on these things.

The tabling has happened. While we may call it a delay, I would remind everyone that there is no legislative requirement for a timeline. There is a legislative requirement for a tabling, but not a timeline. I would point out that this committee has done its due diligence; it has done a report. We have raised it with the authorities and they have complied. We are doing our job.

From my understanding, this particular tabling issue applies to all ministries or all departments that have to make housekeeping recommendations; is that correct?

Mr. Bernhardt: No, this particular tabling requirement pertains to regulations under the Firearms Act.

Mr. Albas: Okay.

Again, I would point out that we have already have expressed our views to Parliament. If a particular member feels this issue needs to have greater resolve, it is outside this committee's mandate.

I would simply say that we acknowledge the good work of counsel. We can remain vigilant as a committee on these things, and if individual members wish to speak with their respective leaders, they can do that and seek political change through the legislative process. I would recommend that we close the file.

The Joint Chair (Ms. Charlton): I have heard three different recommendations. The first was from counsel suggesting we write a letter, which was amended by the senator suggesting we write a letter asking for a concrete timeline, and the third recommendation the floor now is that we close the file.

Senator Hervieux-Payette: That's not what I said.

Given that we change ministers and that sometimes it falls in the hands of administrators at the technocratic level, I'm asking that we at least make sure that the minister is aware that this is there.

I agree with my colleague that this was submitted to the previous minister, but I know that when you change ministers — I have been one — you don't know what the previous one has been doing. That's why I don't think it would put any overload on the minister's shoulders for him to take notice that this has been standing there, and we would like him to act upon it.

But it is not more than that. I am not asking for any changes in the legislation for the delay. I'm just asking to make sure he's aware of it. I don't think it will create a big fuss with the ministry. If we do nothing, nothing will happen, and we will see it again in six months. This is just to save us from seeing it in six months.

Senator Batters: The only thing is that the action is already complete. It has already been tabled. There is nothing more to do, so maybe we can hope that it doesn't happen again with that particular ministry. If it does, our committee always follows up to make sure that action is taken.

The Joint Chair (Senator Runciman): It's hard to believe we're spending a lot of time on this. I appreciate closing the file, but I see no problem with sending a letter to the minister, congratulating him on his new responsibilities and saying the committee wants to apprise him of a concern we had in the past and we would appreciate an acknowledgment of receipt of this letter. That's all; end of story.

Ms. Hughes: To reiterate what's been said, given the fact that there is a new minister, it's important to flag this so that it hopefully doesn't fall behind, and at least he has received notice if something does not get done. This committee will have done even more of its job by saying that this is an issue and, hopefully, there will be some action on it.

Mr. Albas: I can appreciate the argument of there being a new minister, but I would remind the committee that this is the law. The law currently says there has to be a tabling but does not stipulate when; so that's the crux of it. We may not like the law or agree with the law, but that is how it is. If the new minister were to have the same issue, we would probably hear it from counsel and we could write a letter outlining it. This is an action that has already been passed. There is nothing technically illegal. It is just something that we might not like. There's a big difference.

Senator Hervieux-Payette: You're looking at me when you say ``not like.''

Mr. Albas: Excuse me, senator, I have the floor. Again, I would point out that we have counsel to ensure that we are aware of it. Those actions are happening. There's a to-and-fro to this committee, and I would be mindful that we should stay within our mandate.

Senator Moore: Counsel suggests a letter and our joint chair suggested a letter. It's not legalese or challenging anything. Rather, it's an awareness and congratulatory. I don't see any harm in that.

Ms. Hughes: Can I just ask counsel to see if it has been done in the past, where they have actually flagged something to a new minister who has taken on a new portfolio?

Mr. Bernhardt: In a sense that's one of the things this committee does where it considers it appropriate. That's one approach the committee can always take.

What's being suggested here, for lack of a better description, would be a gentle reminder that there have been a number of these in the past where the committee is sometimes worried that it takes longer than it looks like it ought to, and they would like to draw that to the minister's attention. I don't think much more could be insisted upon in this case, if that's the will of the committee.

Ms. Hughes: To finish my thought, I was going to ask: Is it out of the norm? Is it within the guidelines of this committee to do?

Mr. Bernhardt: Yes, if that's what the committee wants to do in a particular case.

Ms. Hughes: Thank you. I call for the vote.

The Joint Chair (Ms. Charlton): Normally, we try not to do these things by vote. I'm in the committee's hands and happy to have a vote.

Mr. Albas, as far as you're concerned everything's been done that needs to be done. I don't see anyone on the committee calling for a hard-hitting letter reprimanding the ministry. Therefore, I don't see the suggestion to write a letter as contrary to your suggestion either. I don't understanding truthfully why we are having a long debate about this. I don't think the two are at odds. Would you be comfortable with —

Mr. Albas: No, Madam Chair. I would simply point out that as of April 22 this year we pointed this out to the minister's office — to the acting deputy. This has already been spotlighted recently. I totally understand where people are coming from when they say they want to bring it to the new minister's attention, but ultimately these things get handled by the department. I don't see any sense in writing a letter at this point.

The Joint Chair (Ms. Charlton): May I ask, but perhaps I shouldn't as chair: What is the downside of a letter that brings this to the minister's attention?

Mr. Albas: Madam Chair, I remind you that your role is process, not to actually engage.

The Joint Chair (Ms. Charlton): Fair enough.

I do not know how to resolve this. We have to put this to a vote as both sides feel strongly.

Senator Moore: That's ridiculous.

The Joint Chair (Ms. Charlton): There is a motion on the floor that we do not send a letter. All those this favour?

Mr. Albas: Can you clarify the motion?

The Joint Chair (Ms. Charlton): It was your motion. You had moved that we close the file.

Mr. Albas: I just made the suggestion.

The Joint Chair (Ms. Charlton): I'm sorry; I thought you moved a motion.

Is there a motion on the floor? Would someone like to move a motion to any effect so we can move on?

Mr. Breitkreuz: After Mr. Albas had spoken, it was my turn to speak and I agreed with him. I will make the motion that we close the file.

The Joint Chair (Ms. Charlton): We have a motion on the floor to close the file. All those in favour of that motion? Will the clerk do a count?

Marcy Zlotnick, Joint Clerk of the Committee: Could you keep your hands up for a second? Eleven.

The Joint Chair (Ms. Charlton): All those opposed, please raise your hands.

Ms. Zlotnick: Six. The motion carries.

Mr. Bélanger: I'm abstaining.

The Joint Chair (Ms. Charlton): You're abstaining.

The motion is carried, so we're closing the file.

The vote was 11 to 5, and 1 abstention. Is that right?

Ms. Zlotnick: Yes.

The Joint Chair (Ms. Charlton): The file is closed.

SOR/2013-29 — REGULATIONS AMENDING THE SCHEDULE TO THE CANADA MARINE ACT

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

The Joint Chair (Ms. Charlton): Under ``New Instruments,'' we will move on to Item 5 on our agenda. This deals with potential violations to the Statutory Instruments Act by not meeting the seven-day time line.

[Translation]

Ms. Borkowski-Parent: As the letter from counsel indicated, subsection 5(1) of the Statutory Instruments Act requires every regulation-making authority to transmit copies of the regulation to the Clerk of the Privy Council within seven days after making a regulation. The department confirms that, despite the fact that the registration took place eight days after the regulation was made, that regulation had been transmitted within seven days. So we can assume that the delay in registration was caused by some administrative problem in the Privy Council Office.

As a result, the file can be closed.

[English]

Senator Batters: I agree with that. It sounds like the committee's good work was done on this, and now we can close the file.

The Joint Chair (Ms. Charlton): There is a recommendation from counsel that we close the file. Are there any other comments? I do not know how to deal with something that's not contentious. Does anybody want to help me out? We're closing the file.

SOR/2002-145 — MANNER OF DISPOSAL OF DETAINED, SEIZED OR FORFEITED GOODS REGULATIONS (PRECLEARANCE ACT)

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

The Joint Chair (Ms. Charlton): These regulations don't seem to have much relationship with the act and the department has offered to meet with the committee. Counsel, do you want to elaborate?

Mr. Bernhardt: I suppose I feel a bit like a broken record reciting this again, but the concerns of the committee arise from the fact that the regulations seem to bear little relationship to the provisions of the Preclearance Act. There are provisions that require a pre-clearance officer to transfer to a Canadian officer goods other than those that may be designated under the act; provisions that authorize the forfeiture of goods in circumstances other than those set out in the act; provisions that can only operate together with other regulations that have never been made; and provisions that apparently contradict the act itself. In fact, the regulations do not even actually provide at all for the manner of disposing of detained, seized or forfeited goods despite their title.

The committee has had considerable difficulty obtaining a substantive response. In 2008, the department advised that the act would be amended and new regulations made following a review of the act that was to be completed by the end of 2008. That did not happen.

In November 2011, the department reported that it had finished the review of the act and had concluded there was, in the department's words, ``a need to develop an approach that would preserve the essential elements of the regulations in a manner that was consistent with the enabling authority.'' Nevertheless, the department proposed to wait and bring forward amendments only after the Governments of Canada and the United States had finalized a new pre-clearance agreement.

Last February, the committee was advised that the timelines for amendments to the regulations and the act would not be met because there had been delays in commencing negotiations aimed at establishing that new agreement. The department advised that it was considering other options to make the amendments so the regulations are consistent with the act. In other words, while the department apparently accepts that the regulations are not consistent with the act, which means they are unlawful, the department had yet to decide how to deal with the situation, and it gave no indication when a solution might be expected.

In its last letter on June 11, the department expressed the view that it would be imprudent to initiate an amendment process until negotiations on the new pre-clearance agreement are completed.

In addition, as you noted, Madam Chair, the department offers to meet to further discuss the committee's specific concerns. That being the case, and as the department has made a similar offer on another file on the agenda this morning that also involves other regulations made under the same act, I wonder if the committee itself would like to hear on these matters from the department.

Mr. Albas: I certainly appreciate counsel's work on this. Obviously this is a complex issue.

I would like to take a step back. The manner of thinking that was in the report Mr. Bernhardt gave is the assumption that just because the department has concerns means that the regulations are unlawful. I think that is something that needs to be articulated by a court — that they are unlawful. There is a potentiality. I think that's what the department is concerned with and also what we're concerned with.

In order to see these things dealt with, I will go to the June 11, 2013, letter written on behalf of the department to our counsel and read from the last paragraph:

We are available to meet with you to further discuss the specific concerns in this matter as well as the Department's commitment to its eventually resolution.

It has been said that our general counsel has been invited to further discuss. I would suggest, Madam Chair, that we ask our counsel to meet with the regulatory affairs coordinator to discuss these concerns about the potential issues with these regs, and to seek firmer timelines and resolution. I think that would be important.

Senator Hervieux-Payette: I totally agree with the meeting, but the meeting should be with us. After seven years, I think it's about time that we hear what's going to be done. That's why I wanted to write the letter. We know these things are coming over and over again. I don't see why we would not have the explanation directly.

In this case, it's because of the time frame. I always mentioned that challenging a regulation that's illegal costs more than $1 million and takes five years. It could go to the Supreme Court. I don't think we should impose that on the people who are affected. We're here to serve the public of Canada.

This letter should say, ``Yes, we agree to meet,'' but we should meet with that person for an explanation. We are reasonable people, and we would be able to exchange information and know where they are going and the timeline to make the necessary changes to make it legal. Something illegal is for me something very unusual.

The Joint Chair (Ms. Charlton): There are two suggestions on the floor now: one, that counsel meet with the department and, two, that we as a committee meet with the department.

Ms. Hughes: Sorry, I just want some clarification. Again, I may be subbing here, but as I'm reading this, he's raising a concern as whether or not it contradicts the act. It says here that it apparently contradicts the act.

Can counsel clarify for me what background provides us with that information that says it apparently contradicts the act? Was there legal counsel? How do we get this information or how do you actually get the information to come up with this?

Mr. Bernhardt: We are the lawyers; we are the counsel who review the regulations.

Ms. Hughes: Perfect.

Mr. Bernhardt: The procedures the committee has adopted are that we do an initial review of a regulation. If we feel there may be a potential problem, we will write to the responsible department. Once that response has been received, that documentation is brought to the committee. It then falls to the committee to decide what its view is of the matter and how it wishes to proceed.

In this case, issues were identified and the department was approached. The department has never contested any of those points raised. In fact, it replied it was reviewing the act and the regulations. Ultimately, it announced it had finished the review of the act and the regulations, and there was a need to make amendments to make the regulations consistent with the act. Those are the department's words. The department is saying they need to make amendments because the regulations are not consistent with the act.

It is true that it has not been decided by a court of law, but I would strongly suggest, having put that on the public record, that for the government and the government department to go to court and argue otherwise would be plain and simple bad faith.

Ms. Hughes: Thank you. I wanted to clarify that because the comment made by my colleague a few minutes ago questioned whether or not it did contravene the act. I wanted to make sure there was a legal opinion and that it's not challenged. I would actually support having the department come to the committee.

Mr. Albas: Madam Chair, there are a couple of different issues here, and I would like us to be mindful of a few things. I'm not disagreeing with counsel that there are issues that are not recognized, but for someone to say that these particular regulations are illegal, that is best determined by someone in a position such as a justice to claim that. That's why they are called legal opinions.

What we are trying to do here is to seek resolution to the concerns that have been raised by the committee. A potential way of doing this has been for counsel to meet with the department to further discuss the concerns, as was suggested.

I don't believe there currently is an actual offer to meet with the committee, so I think we should stay focused on the resolutions that the department itself has proposed. I don't believe that any of the Conservative members here today would be supportive of taking up more committee time to discuss an issue that is best served by a frank discussion between our counsel and the department itself.

I think the way to resolve this is simply to direct our counsel — and I will make the motion — to meet with the department to speak about these concerns and to seek resolution to amend the timetable and report back. I think that's the reasonable thing to do.

Senator Moore: This has gone on way too long. If the Canadian public knew what was going on here, any of those people would have these officials before them to answer. That's what we're here for. It's one thing to be neat and tidy and make sure everything works according to the charter and all that, but there is still a matter of doing our job and representing the people of Canada, and this is not doing it.

If counsel meets with them, fine, but I would like you to come back and report at the next meeting. If it's not satisfactory, bring them in here.

The Joint Chair (Ms. Charlton): So is there consensus that the first step be that counsel meet with them?

Hon. Members: Agreed.

The Joint Chair (Ms. Charlton): And report back at the next meeting?

Hon. Members: Agreed.

Mr. Breitkreuz: Is that reasonable? Our next meeting is when? Will it be in January or before Christmas? There is a very short timeline.

Mr. Bernhardt: Two weeks.

Senator Moore: He calls them today and goes to see them. Two weeks to see somebody? Come on.

The Joint Chair (Ms. Charlton): I think counsel understands the urgency, and unless there is a reason in your schedule that you can't meet —

Mr. Bernhardt: I'll be on the phone this morning.

Before moving on, could I seek guidance from the committee? Mr. Albas mentioned seeking a timetable. Can I take it that the committee's chief concern is the question of when action will be taken? As I understand it, the substantive points have not been contested; there is agreement on those. What we're dealing with now is how and when things will be remedied.

Mr. Albas: I think it's a fact-finding mission to find out if the department is still committed and, if it can't give a specific date, to say what has to happen prior to it. This is so we understand that they are taking this committee's concerns seriously and are working with us in good faith to see this resolved as quickly as possible. That is a fair statement to make. So it is those basic facts.

Senator Moore: I think they should know that — are you finished?

Mr. Albas: I was just about to finish.

I would point out that this is how the committee works. Senator Braley, who was a member previously, continually pointed out the importance of connecting with department officials, especially on specific, complex issues, building a rapport in the sense that we will get this done together. I think that will go a lot further than simply prodding. I'm very happy to hear that counsel will seek this meeting.

Senator Moore: I do not know how many years of prodding we've had here and nothing seems to have impressed them, so they should know that failing a satisfactory resolution, they could be expected to come before the committee to answer questions.

They have to be impressed with the fact that we're not happy with the way this has been dragged out and has not been dealt with in a forthright matter.

The Joint Chair (Ms. Charlton): Does that give you the guidance you need, counsel?

Mr. Bernhardt: Yes.

SOR/88-58 — AIR TRANSPORTATION REGULATIONS

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

The Joint Chair (Ms. Charlton): Under ``Reply Unsatisfactory (?),'' if we thought the last file had been around for a while, this one has been around for 23 years. The Canadian Transportation Agency's new timeline for amendments to the regulations is now sometime over the next two years.

Ms. Borkowski-Parent: There are two outstanding issues regarding these regulations. One pertains to a French- English discrepancy and the other deals with a form set out in Schedule XIII that indirectly imposes a substantive requirement for a carrier to provide service schedules to connecting carriers. It is the view of the committee that this requirement should be in the regulations themselves and not buried in the schedule.

Now the burning question: How does a file span over a quarter century? Back in the early 1990s, the agency agreed to proceed with the required amendments. In the background note, you will find the chronology of this file starting in 2007. It is worth noting that since the late 1980s the regulations were amended 12 times, most recently in 2009, but never included these two amendments promised to the committee.

Suffice it to say that 24 years is a significant amount of time to effect what constitute fairly simple changes.

At issue is the fact that the two amendments keep being bundled in overarching reviews of the regulations. The agency has made it clear that it would amend the provisions at hand only if it were to otherwise amend the relevant parts of the regulations.

As you can see, this plan has been pushed back a number of times. Attempts by the committee to obtain an undertaking by the agency to proceed to the required amendments outside of a general review of the regulations have been unsuccessful thus far.

Mr. Anders: Because this just involves certain words being left out of the French version, I do not know why they have taken so long, but it's not necessarily life and death. I think we would look to seek clarification for why it's taken so long, but it's not life-threatening.

Senator Hervieux-Payette: Just the language? I thought it was not just language.

Ms. Borkowski-Parent: There are two points. The first is the French-English discrepancy and the second is to include in the regulations the requirement to give connecting carriers their service schedules.

Senator Hervieux-Payette: Is a service schedule important for the operation of a transportation company?

Ms. Borkowski-Parent: Yes. If it's a requirement for them to submit it, it should be in the regulations and not at the end of the form.

Senator Hervieux-Payette: After Lac-Mégantic, I feel that we should be cautious on this.

Mr. Albas: I fail to see the connection between a rail safety issue and an airline safety issue.

Senator Hervieux-Payette: Scheduling? Yes, there is. If you are not scheduling properly, you have accidents.

Mr. Albas: I think they are different.

Mr. Albas: I want to clarify with Mr. Anders whether we are suggesting to write to the same officials or to elevate it to the president of the agency.

Mr. Anders: I think the president of the agency makes sense to me.

The Joint Chair (Ms. Charlton): The suggestion is we write to the president of the agency. Is there agreement?

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 F, p. 1F:1.)

The Joint Chair (Ms. Charlton): This is another set of postponed amendments ostensibly awaiting a new pre- clearance agreement with the United States.

Mr. Bernhardt: Given the previous discussion on the pre-clearance regulations, I presume, unless I hear otherwise, that this would be part of that meeting with the officials.

The amendments here are more routine. In fact, up until June, the department had always indicated that it didn't need to wait for the new pre-clearance agreement. Now it says it continues to be of the opinion that proceeding with the amendment would not be prudent. I might take issue with the fact that it's continuing to be of that view since up until June it was of completely the opposite view. Again, I assume these will be dealt with in the course of the meeting with the officials.

Mr. Albas: I agree with counsel that they have already made commitments. This is independent of any other measure they are undertaking. At that meeting, I hope we would seek that position. If not, we could write a letter outlining the committee's position that this is independent of any other issue and we expect that commitment to be done. But if counsel believes it can be done at the same meeting, to me this is a case where I think that the other one should probably dominate the discussion, as long as we see this resolved from the committee's viewpoint that this should go ahead, unless some facts come out that reasonably account otherwise.

Mr. Bernhardt: I will convey that message.

The Joint Chair (Senator Runciman): I'm not sure it should take a back seat. I infer from this that something has arisen during the negotiations on the pre-clearance agreement that has caused concerns within the department. Hopefully that will be conveyed perhaps in some limited detail with respect to what's going on in the negotiations. That strikes me as a potential rationale for why the ministry's position has changed on this. I don't think it should take a back seat.

The Joint Chair (Ms. Charlton): Is there agreement we raise it at the same meeting?

Hon. Members: Agreed.

SOR/2003-296 — REGULATIONS AMENDING THE WILDLIFE AREA REGULATIONS

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

The Joint Chair (Ms. Charlton): Again, we are dealing with delayed amendments, this time to the regs amending the Wildlife Area Regulations.

Mr. Bernhardt: That's correct. The committee is seeking two simple amendments to provisions setting the amounts payable to enter the Cap Tourmente National Wildlife Area. The committee was told in 2005 that the amendments would be made in the coming months. That has yet to happen.

It was also discovered in 2012 that the entry fees on the departmental website did not actually match what was provided in the regulations. In its May 17 letter, the department writes that progress is being made. It's still unable to provide the exact date the amendments will be finished, but they continue to be a priority. It also notes that this discrepancy between the regulations and the website has been corrected.

Again, the delay seems to be that the promised amendments have been wrapped up in a larger package of other amendments. I assume these other amendments are causing the delays given that what the committee is looking for here is very simple.

In connection with the statement that they can't provide the exact date, at the risk of editorializing, that strikes me as a bit of a disingenuous comment. Environment Canada deals with this committee all the time, and they're well aware that when the committee asks for a time frame, it's looking for a general time frame, not a calendar day. To use that as an excuse to provide no time frame is a bit thin.

The Joint Chair (Ms. Charlton): Are there comments?

Ms. Ambler: What would the committee normally do in a situation like this? I sense a bit of frustration. Would we ask for a specific time frame?

Mr. Bernhardt: Typically what the committee would do is write back. Depending on how strongly the committee feels, it could decide whether the time had come to ask for the minister's cooperation or simply to write back to the regular contact person within the department.

Ms. Ambler: I would be comfortable with recommending that the minister be involved at this point. It seems like eight years is a long time and we should move on this.

Senator Hervieux-Payette: Was it regarding the entry price to the park? Were they asking for a higher fee than previously?

Mr. Bernhardt: Yes. It's really more routine than that. For example, there is a fee for children under 12 accompanied by a parent, but there is no fee for any other children under 12. We asked: ``What if they are accompanied by a grandparent or an aunt or an uncle?'' Their response was, ``Oops, we forgot to cover that; we should stick that in.'' At one point, they went ahead and changed the website without actually changing the regulation.

As I say, we're talking about housekeeping matters here. I'm sure it's because they have taken those amendments and put them in a bigger, broader review with other changes, and those other changes are taking longer than expected.

Senator Hervieux-Payette: I would recommend that people don't pay for children, period.

Ms. Ambler: I would recommend that we ask for a specific time frame.

The Joint Chair (Ms. Charlton): From the minister.

Hon. Members: Agreed.

SOR/2005-248 — NEW SUBSTANCES NOTIFICATION REGULATIONS (ORGANISMS)

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

The Joint Chair (Senator Runciman): On this regulation under ``Part Action Promised,'' we raised four points with the department in the past. They promised to correct two discrepancies between the French and English versions, but I know counsel has additional concerns.

Mr. Bernhardt: At the end of the day, Mr. Chair, the committee could accept the department's explanation on point 4. As you indicated, we have promised corrections on point 1, the first part of the point 2, as well as point 3. That leaves the second paragraph of point 2, which deals with what's meant by ``information and data to which the person ought reasonably to have access.''

In its response to another file, Item 19, which relates to twin regulations dealing with chemicals and polymers, the department notes that there is similar wording in the act itself. That being the case, if Parliament has used the same criteria, it must be appropriate to use it in the regulations. However, the regulations introduce slight variations in the wording. The regulations talk about ``information to which the person ought reasonably to have access'' where the act uses ``may reasonably be expected to have access.'' That other regulation under Item 19 has a third formulation.

On this point, it's simply a case of writing back to the department to ask them to change the two regulations slightly to use the exact language found in the act. At that point, there will be no further concern.

Mr. Albas: I have a quick question to counsel. Do you know what era this piece of legislation — the statute — is from?

Mr. Bernhardt: 1999.

Mr. Albas: It's fairly modern. Some legislation I've seen dates back to 1928 and the wording is quite antiquated. Obviously, this statute is fairly modern and the language should be fairly clear for people to use. We should be encouraging the department to be consistent in its regulations by directly using the same language that's appropriate from the act. I would follow up with counsel's recommendation that we encourage the department to be consistent in that regard.

The Joint Chair (Senator Runciman): Does everyone agree with the advice offered by counsel?

Senator Batters: Could you handle Item 19 in the same way?

Mr. Bernhardt: Exactly. It would probably be best to roll the two files together and make the same suggestion.

Ms. Hughes: I am not against this, but from what I can see, there seems to be continuity with respect to differences between the English and French language. I do not know if it's something that this committee can do anything about, but we need to ensure that when things are transcribed, the correct words are used. It could put the government in an unwanted predicament when those words are not being used properly. The departments and whoever is responsible for the translation need to make sure that it's corrected as soon as possible.

I wanted to raise that because often when things are translated, they are not translated the right way, and that's problematic.

Mr. Bernhardt: Here they have a solution because they have a model in both languages in the act. It's a case of copying that language into the regulation.

SOR/2005-248 — NEW SUBSTANCES NOTIFICATION REGULATIONS (ORGANISMS)

SOR/2008-120 — VESSEL OPERATION RESTRICTION REGULATIONS

SOR/2010-34 —REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS

SOR/2010-226 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS

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

The Joint Chair (Senator Runciman): Moving on to Item 11 on our agenda, a very thick file dealing with Transport Canada, these files concern restrictions on navigation to improve safety of waterways and protection of the environment. We have in the past raised 30 points with them.

[Translation]

Ms. Borkowski-Parent: After its study, the department committed to correct 21 the 30 points that had initially been raised. I would like to point out that among the promised corrections is the commitment to withdraw a provision that makes the failure to comply with the conditions of a permit an offence. That is something that always gets the committee ready to do battle.

In addition, the department has also committed to amend some provisions so that they no longer subject the judiciary to discretionary power.

Beside the 21 promised corrections, the department provided explanations that, if the committee agrees, can be considered satisfactory for points 12, 13, 15 and 29. So clarification is required on five remaining points.

Point 1 is an issue of form.

Point 19 just requires the department's confirmation that it will make the same amendment as in another section.

Point 2 is about the need to include in the regulations the requirement for public consultations with the local authority. By the department's own admission, these public consultations are necessary before a new restriction can be applied. But they do not see the need to establish them formally in the regulations. If the committee agrees, this point merits reconsideration.

As for point 8, paragraph 14(2)(b) of the regulations require that, for the minister to issue a permit, the owner or operator shall provide information indicating that ``the vessel is seaworthy.'' The question that arises is: what is seaworthy? The department's reply indicates that, if necessary, seaworthiness can be established by an inspection conducted in compliance with the act.

Paragraph 14(2)(b) sets a prior condition for the issuance of a permit. The fact that an inspection can be done subsequently does not answer the question of how the minister checks the seaworthiness of each vessel covered under the permit. So the point requires clarification from the department.

Clarifications are also necessary for point 10 about the meaning of ``in a safe manner'' in section 15 of the regulations.

If the committee is in agreement, counsel could write to clarify the five remaining outstanding points and inquire about the progress made with regard to the 21 other promised corrections.

[English]

Mr. Albas: When I opened this file, I started to feel sorry for myself, which doesn't happen that often, because I looked at the amount of paper that goes into this. Then, for once I actually thought about someone else and thought, ``Wow, counsel probably has to deal with many more pages than this,'' so I didn't feel so bad for myself.

We should write back and thank the department for the progress that we have been able to achieve. I also want to take a moment to thank our counsel. This is an extremely complicated amount of work, and I appreciate what they have to say.

Moving forward, Mr. Chair, one little note on how the actual note is structured. It would be helpful for me — and maybe other members could independently express their own views to counsel — when the report is structured where we say ``Points are satisfactory for 12, 13, 15, 29,'' it would be helpful to put those separate from the ones that are unsatisfactory just for ease of reference. I kept having to flip back and forth to figure out if this is a recommended one that we can accept or is it an unsatisfactory one.

That being said, I do think counsel has raised amendments that are critical. I think we should write to the department, ask for further resolution on the five outstanding items and ask for a time frame to see this file closed. I think they would be happy on their end to see that as well, Mr. Chair.

The Joint Chair (Senator Runciman): Further comments? Is there agreement with that recommendation?

Hon. Members: Agreed.

SOR/2006-50 — CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS

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

The Joint Chair (Senator Runciman): We are moving on to Item 12 under ``Part Action Taken,'' dealing with veterans. It boils down to a debate surrounding one word in the French version, essentially, with a couple of other concerns.

The committee raised 23 matters initially. Several of them were dealt with through amendments and most of the remaining concerns involve that one word.

Mr. Bernhardt: That's correct, Mr. Chair. We have ended up being engaged in a rather drawn-out debate over the meaning of terms such as ``any'' in English and ``tout'' in French. Apparently what's intended is that the information required to be submitted is information and documentation sufficient to decide the particular application. Perhaps the suggestion could be made that if that's what's intended, that's precisely what should be stated, and we could avoid any of these words in question and get out of this loop this way, perhaps.

There is also the question of a formula the committee has objected to. I would suggest pursuing that with the caveat that Bill S-2, which is currently before the Senate, would provide blanket authority for regulations that involve these types of formulas. That bill deals mainly with incorporation by reference.

The only other matter is that the committee had identified what was apparently duplication in the regulations. The department indicated it was exploring options as to how to deal with that. Perhaps that could be followed up, as well.

At the end of the day, in a nutshell, there are three issues left in all this that we could pursue in a further letter to the department.

The Joint Chair (Senator Runciman): Is anyone in disagreement with that approach: write back, raising those three issues, and asking for an indication of when they can be dealt with?

[Translation]

Senator Hervieux-Payette: When Bill S-2 goes into effect, will our committee be dealing with the associated regulations or will we never hear about them again? Is anyone going to examine them?

[English]

Mr. Bernhardt: The committee will still, under its mandate, be able to look at all the documents incorporated by reference to make sure they are clear, properly put together and correspond to the enabling statute.

As a practical matter, how often the committee and its staff will be a position to do that given the length of some of these documents is an open question. But that's a question the committee has now. Even where something is incorporated as of a fixed date, it can still be a huge document — very technical — but they will still fall within the committee's mandate.

Senator Hervieux-Payette: That was my question. Thank you.

SI/2013-26 — ORDER FIXING APRIL 1, 2013 AS THE DAY ON WHICH THE PROVISIONS OF THE INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT (AIRCRAFT EQUIPMENT) ACT THAT ARE NOT IN FORCE, AND SECTIONS 414 TO 423 OF THE JOBS AND GROWTH ACT, 2012 COME INTO FORCE

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

The Joint Chair (Senator Runciman): Moving on to ``Reply Satisfactory,'' this is an order fixing April 1, 2013 as the day on which the provisions of the International Interests in Mobile Equipment Act that are not in force in sections 414 to 423 of the Jobs and Growth Act 2012 come into force.

Counsel, I will let you explain this one. It is interesting.

Mr. Bernhardt: I will try, Mr. Chair.

This file concerns what can only be described as a rather obscure point of statutory law involving something called the doctrine of merger.

The situation was that Parliament amended a provision of an act that had not yet been brought into force. That amendment, however, was brought into force. The question that arises is whether bringing the amendment into force had the effect of bringing into force the entire provision as it had been amended, or whether it simply brought into force the change to the wording of a provision that was still not actually in force.

As the department pointed out, the latter is the case, so this particular order was necessary to bring the provision into force as it had been amended by the subsequent amendment that had already been brought into force.

The Joint Chair (Senator Runciman): Can you run over that again?

Mr. Bernhardt: I'm not sure I can, Mr. Chair.

Suffice it to say, we think the reply is satisfactory. The order was necessary and properly made, and thankfully the file can be closed.

The Joint Chair (Senator Runciman): Do we have a motion to close the file?

Mr. Breitkreuz moves, and we're all in agreement.

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

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

The Joint Chair (Senator Runciman): Next is Item 14 under ``Reply Satisfactory (?).'' We had concerns with these regulations involving discretionary powers that are granted to inspectors under the regulations.

Ms. Borkowski-Parent: There remain two points for which amendments have been promised by the agency. The first deals with subsection 26.2(2) and the need to include more specific criteria for the pest control program. The second pertains to subsections 26.5(1) and 26.6(1) of the regulations which grant discretion to the director to suspend or not, or cancel or not, the licence of a cheese importer who fails to meet the requirements of the act or the regulations, has been notified and subsequently still fails to meet the requirements in question.

As was the case with the Air Transportation Regulations, which were discussed earlier, this is another iteration of delays caused by the will to amalgamate several regulatory initiatives, with the end result being that the deadline keeps being pushed back.

In the case at hand, the agency agreed to proceed with the amendments in the context of an agency-wide regulatory modernization plan, which should be completed by 2015. At its March 21 meeting, the committee decided to ask the agency whether, should there be additional delays, it would undertake to make the required amendments outside of the agency-wide regulations overhaul. The agency's May 21 letter states only that it would explore all possible options should that be the case.

The question today becomes whether the committee is satisfied with that answer.

[Translation]

Senator Hervieux-Payette: What is the difference between ``published'' and ``adopted''?

Ms. Borkowski-Parent: ``Published'' includes two parts of the process. There is a pre-publication that takes place in the Canada Gazette, Part I.

Senator Hervieux-Payette: A 60-day consultation period.

Ms. Borkowski-Parent: The length of the consultation period can vary. Then, once the regulation is adopted, it is published in the Canada Gazette, Part II. So when they say ``published''—

Senator Hervieux-Payette: It means that it has been adopted.

Ms. Borkowski-Parent: Yes. Sometimes, in the correspondence with the departments, the actual stage is not always clear when they say that things have been published.

Senator Hervieux-Payette: I knew that things are published twice and when the word ``published'' is used, we do not know which time is referred to. Anyway, when they say that it will take two years, does that mean that the current regulations will still stay in effect for two years?

Ms. Borkowski-Parent: Yes.

[English]

The Joint Chair (Senator Runciman): So we have a recommendation. Continue to monitor the file?

Hon. Members: Agreed.

SOR/94-276 — CANADIAN FORCES SUPERANNUATION REGULATIONS, AMENDMENT

SOR/94-277 — DEFENCE SERVICES PENSION CONTINUATION REGULATIONS, AMENDMENT

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

The Joint Chair (Senator Runciman): Item 15 falls under the heading ``Progress.'' This file dates back to 1997, when they originally agreed to make amendments dealing with inconsistent wording between French and English versions. We have had a series of delays on this, but we are assured that those amendments will be later this year or I guess early next year is more likely.

[Translation]

Ms. Borkowski-Parent: I have nothing else to add. As we have an imminent deadline, perhaps counsel could follow up in the usual way.

Senator Hervieux-Payette: Agreed.

[English]

Mr. Schellenberger: Because of the department promising amendments by the end of 2013 or early 2014, I would like to say that we monitor this situation.

The Joint Chair (Senator Runciman): I think it was raised earlier, but we had a follow-up letter, given that we are almost at the end of this calendar year.

Mr. Albas: I think we're trying to say we are getting close and when the deadline passes of early 2014, we have the regular follow-up. I suggest we do both but we monitor until that point and follow up at the appropriate time because we have had a commitment and based on that, we respond as necessary.

Mr. Bernhardt: For ``early 2014,'' what would the committee like to see by way of a bring-forward date so I'm not deciding what's early 2014. Is it the first quarter?

The Joint Chair (Senator Runciman): The first quarter.

SOR/96-254 — PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS

SOR/2000-299 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1218 — ALTERNATIVE TESTS)

SOR/2000-410 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1238 — SPECIAL ACCESS)

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

The Joint Chair (Senator Runciman): Moving on to Item 16 on our agenda, these three files relate to regulations under the Food and Drugs Act that classify human semen as a drug.

[Translation]

Ms. Borkowski-Parent: The committee is of the opinion that the regulations in question have no enabling authority in the Food and Drugs Act for the reasons the chair mentioned, and that the regulations ought to have been made pursuant to the Assisted Human Reproduction Act.

The constitutionality of that act was the subject of a legal challenge that culminated in the Reference re Assisted Human Reproduction Act given by the Supreme Court in 2010.

The committee accepted the department's position to make no changes to the regulations while the case was before the court.

Following the reference, amendments were made to the Assisted Human Reproduction Act that, once they are in force, will allow the transfer of the regulations from one act to another. This will also address the committee's concerns about information on ova and sperm used for the purpose of assisted reproduction being communicated to the minister.

No timeline has been set for the promised corrections. But the department has committed to provide quarterly updates.

If committee members are in agreement, counsel could continue to monitor this file.

[English]

The Joint Chair (Senator Runciman): Is everyone in agreement with that approach?

Senator Hervieux-Payette: Am I interpreting that it's still in the illegal regulations?

[Translation]

Ms. Borkowski-Parent: The act has no enabling authority in the act under which it was made.

Senator Hervieux-Payette: Because of the Supreme Court decision?

Ms. Borkowski-Parent: No. The Supreme Court struck down some of the provisions of the Assisted Human Reproduction Act that were not matters of criminal law. In this file, we are saying that the regulations should not have been made pursuant to the Food and Drugs Act because we are not dealing with a food or a drug. They should have been made pursuant to the Assisted Human Reproduction Act.

The act is now evolving again. As soon as the provisions are in effect, the regulations could be made again pursuant to the Assisted Human Reproduction Act.

Senator Hervieux-Payette: ``In effect'' meaning what? That some clauses will be put into effect later?

Ms. Borkowski-Parent: Yes. At the moment, some provisions of the Assisted Human Reproduction Act, introduced after the reference to the Supreme Court, are not yet in effect.

Senator Hervieux-Payette: They were passed, but they are not in effect.

Ms. Borkowski-Parent: Exactly.

[English]

Senator Batters: I suggest we write back asking for an update and a timeline.

The Joint Chair (Senator Runciman): Agreed?

Hon. Members: Agreed.

SOR/2001-284 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

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

The Joint Chair (Senator Runciman): This file relates again to a discrepancy between English and French versions. We have correspondence from the labour minister indicating the correction was to be made in 2013.

Ms. Borkowski-Parent: Three amendments to address French-English discrepancies in the regulations were promised by the department back in 2004. The amendments were subsequently bundled in a bigger regulatory review package which has yet to be made, but following correspondence from the co-chairs to the minister on other ongoing files with the department, it seems that the amendments will now proceed independently of the overall review. These should be completed before the end of the year; therefore counsel could continue to monitor progress on this file.

Mr. Bélanger: I have no problems with this, but I have a general question. It seems there are a lot of these discrepancies between English and French. Would it be possible to understand whether, once regulations are written, they are subject to tests of some sort to prevent this?

Mr. Bernhardt: The regulations section of the Department of Justice is the section of government responsible for preparing, reviewing and processing the regulations. They have drafters, jurilinguists and various people who do these regulations. Then the regulations are made and if there is any sort of audit function, it falls to this committee.

While overall it can be said that the level of drafting of federal regulations is very good, given the sheer volume of regulations that are produced, yes, there are a number of discrepant provisions that are identified. I'm not in a position to speak to whether that reflects on anything further.

Senator Hervieux-Payette: For those who have not been here for the last 15 years, the process starts with the department making the first draft. The draft goes to Justice and that's where it's translated.

Does it come back to the ministry?

Mr. Bernhardt: Typically, Justice will either receive instructions or oversee the draft prepared by the department, and then Justice puts together its document that goes back to the department. Often there is a process of exchange of a number of drafts over a period of time. Eventually there is a final version that is given what is called ``blue stamping,'' which is the Department of Justice seal. It used to be a stamp in blue ink back in the day.

Associated documentation is then prepared and it goes to the regulation maker, typically the Governor-in-Council. It could be a minister, whoever, and if that's approved then the regulation is registered in Privy Council Office and published in the Gazette and comes into force.

Senator Hervieux-Payette: It has many steps before getting to the end.

Mr. Bernhardt: As my colleague pointed out, the process the Department of Justice follows is a co-drafting process. It's not intended to be a situation where one language version is prepared, finalized and then there is simply a translation. There is to be one drafter in each language sitting side by side who simultaneously discuss the text of the regulation.

SOR/2001-390 — FORM OF PROXY (BANKS AND BANK HOLDING COMPANIES) REGULATIONS

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

The Joint Chair (Senator Runciman): Moving on to Item 18, these regulations refer to other regulations that were revoked and replaced more than a decade ago.

Ms. Borkowski-Parent: These regulations cross-reference regulations that have been repealed in 2001. The point was raised in 2004. To address the concerns of the committee, the regulations only need to update the references to section numbers of the new Canada Business Corporations Regulations 2001.

Since then, the department has been rather elusive as to its plan for these regulations. Most recently, it had indefinitely deferred any amendment to these regulations until the question of the national securities regulator was resolved.

The committee expressed its frustration at this state of affairs, and the department seemed to come around in its last letter and agreed to make the promised amendments as soon as possible. If this is acceptable, counsel could inquire as to the deadline for the completion of the amendments.

Hon. Members: Agreed.

SOR/2005-247 — NEW SUBSTANCES NOTIFICATION REGULATIONS (CHEMICALS AND POLYMERS)

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

The Joint Chair (Senator Runciman): Item No. 19 was tied in with Item No. 9 with respect to asking for an update and encouraging consistency with the act.

SOR/95-26 — SPECIAL IMPORT MEASURES REGULATIONS, AMENDMENT

SOR/2000-138 — REGULATIONS AMENDING THE SPECIAL IMPORT MEASURES REGULATIONS

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

The Joint Chair (Senator Runciman): Under the heading ``Progress (?),'' Item 20 concerns the Special Import Measures Regulations. These two files involve criteria to be considered by the Commissioner of Customs and Revenue.

[Translation]

Ms. Borkowski-Parent: In October 2010, draft regulations that would have addressed the committee's concerns were pre-published in the Canada Gazette, Part I. So it was reasonable to expect the file to be concluded in the weeks that followed. But, since that time, the proposed amendments are being reviewed by the department, with no indication of a possible timeline.

In February 2013, the department blended the promised corrections into a group of other amendments that flowed from the amendments to the enabling act.

After the committee meeting on April 25, counsel tried to obtain a date for the completion of the work as well as an assurance that the amendments would be made independently of the others in the case of any further delay.

The department's reply remains vague: not only do we not have the assurances we were looking for, but we also have no indication of progress until 2014.

[English]

Mr. Schellenberger: To that point, because things have been bundled, it would be my suggestion to write back and encourage the department to advance the committee's recommended amendments on their own. Bundling seems to be a good way to prolong the response, so I think they should respond to the committee.

The Joint Chair (Senator Runciman): Are there additional comments on that? Are all in agreement?

Hon. Members: Agreed.

SOR/2008-80 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE AUTHORITY REGULATIONS

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

The Joint Chair (Senator Runciman): Four corrections have been promised, three of which involve harmonizing French and English, one which is the repeal of an unnecessary section. Transport Canada has advised the committee that those proposed regulations should be published at some point in 2014, but we've heard those promises before.

Ms. Borkowski-Parent: I have nothing to add.

The Joint Chair (Senator Runciman): We heard those promises in 2010, 2012 and 2013. What's the wish of the committee?

Mr. Breitkreuz: I suggest we continue to monitor this file.

I'm curious to know why these language discrepancies come about and how they are discovered to be at variance. Does counsel discover that?

Ms. Borkowski-Parent: Yes.

Mr. Breitkreuz: We have these high-priced lawyers getting paid to develop these regulations.

Enough said. I find this very interesting. I wonder who is getting the bonuses.

Mr. Bernhardt: If the committee wishes to make inquiries to that effect, they are free to do so, but it's not information that we have.

Mr. Breitkreuz: Let's continue to monitor the file.

The Joint Chair (Senator Runciman): It may be an interesting point. Mr. Bélanger raised the point that at some juncture we may wish to write to Justice to express our concern about the continuing challenge facing both the committee and the government with respect to English-French versions.

Mr. Bélanger: I was going to take it upon myself to do a bit of digging to find out, if I can, from Justice and from the Official Languages Commissioner to see if they have any information as to how this is done. Then I was going to see if there is something the committee may want to consider.

Mr. Albas: I want to point out that we deal with different authorities. My understanding is that this authority provides its own regulations, so I think they would be the ones who would present them. This is not the usual process of a department within government working with a minister of justice; is that correct?

Mr. Bernhardt: I'm presuming these would still be blue-stamped by Justice, but they would originate from an independent body outside the core of the government.

Mr. Albas: I can understand the concern, but part of the committee's work is to find these things. To be fair, sometimes the arguments can be accepted for the reason they use a particular rationale as well. Part of the challenge function of the committee is to be constantly surveying and bringing those items to bear. If there weren't those issues, where would we be?

Ms. Hughes: Certainly over the years, everyone's language evolves and sometimes the competency changes as well, even in some documents we as MPs get translated. I often get my staff, who are very French, to oversee. This is probably where we've seen some of the differences. Some of them may have been in play for quite a few years and some may have been more recent. The terminology changes, and we have to weigh that.

It's a great idea that this is being flagged, but it would be even better if the changes could be made quickly when we recognize that. I wanted to raise that because often it's in the terminology, and if you get someone who isn't as fluent as others doing the translation, then we can run into these problems.

The Joint Chair (Senator Runciman): The recommendation is to monitor, but probably it would be appropriate for counsel at some point mid-year 2014 to provide the committee with an update with respect to action taken, if any.

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

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

The Joint Chair (Senator Runciman): Next is Item 23 under the heading ``Action Promised.'' Amendments were promised in the past addressing five matters. We're now being advised that they also intend to address two other issues that were raised by the committee, and they're dealing with Department of Justice drafters.

Mr. Bernhardt: The only caveat is on a couple of those amendments. They have indicated that they will seek to make the amendments and are confident that Department of Justice drafters will also agree. In another case, they agree with the benefit of the amendment but simply say they will bring the amendment to the assigned drafters.

The question for members is whether they consider that to be a sufficiently concrete undertaking. As I say, it's there as action promised with, I suppose, a slight question mark.

Mr. Anders: I want to thank counsel for the suggestion in terms of the wording vis-à-vis pounds and kilograms and the example provided. I thought that was superlative to the possibility of calculating 44.1 pounds for 20 kilograms. That was a good way to go. I would suggest writing back to seek clarification and request a concrete timeline for implementation.

The Joint Chair (Senator Runciman): The suggestion is that we write back seeking clarification and a timeline. Agreed?

Hon. Members: Agreed.

SOR/2002-421 — CANADIAN FORCES EMPLOYMENT EQUITY REGULATIONS

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

The Joint Chair (Senator Runciman): There are two issues here: a drafting error and use of a vague term.

Mr. Bernhardt: That's correct, Mr. Chair. The last advice was that this should be completed by the end of this year. We can follow up on that in the usual fashion.

The Joint Chair (Senator Runciman): Under all of these ``Action Promised'' items, can we proceed in the same way?

SOR/2008-186 — CANADA DISABILITY SAVINGS REGULATIONS

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

SOR/2011-236 — REGULATIONS AMENDING THE CRIMINAL RECORDS REGULATIONS

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

SOR/2012-285 — PROHIBITION OF CERTAIN TOXIC SUBTANCES REGULATIONS, 2012

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

Mr. Bernhardt: Certainly. I will sum them up.

Taken as a group, the four instruments together promise 24 amendments to the committee. As well, SOR/2012-285 actually made two corrections the committee had asked for.

Mr. Albas: I wanted to point out, because we have a few new members, that this last section is where the committee gets complete responses right away, based on the issues counsel has flagged. I wanted to point out this is where a lot of these drafting errors or different translation issues get resolved without us as a committee having to formally look into it. This section, even though it doesn't get a lot of attention, is a very important one.

SOR/2013-75 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990

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

SOR/2013-91 — ORDER AMENDING THE EXPORT AND IMPORT PERMITS AND CERTIFICATES FEES ORDER

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

SOR/2013-94 — REGULATIONS AMENDING THE REGULATIONS ADAPTING THE EMPLOYMENT EQUITY ACT IN RESPECT OF THE CANADIAN SECURITY INTELLIGENCE SERVICE (MISCELLANEOUS PROGRAM)

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

The Joint Chair (Senator Runciman): Counsel, would you like to deal with Items 27 to 29 under ``Action Taken''?

Mr. Bernhardt: As Mr. Albas just indicated, this is the ``good news'' portion of the program.

These three instruments together made 14 amendments that the committee had requested.

SI/2013-29 — ORDER TRANSFERRING TO THE LEADER OF THE GOVERNMENT IN THE HOUSE OF COMMONS THE POWERS, DUTIES AND FUNCTIONS OF THE PRESIDENT OF THE QUEEN'S PRIVY COUNCIL FOR CANADA UNDER THE CANADIAN TRANSPORTATION ACCIDENT INVESTIGATION AND SAFETY BOARD ACT

SI/2013-30 — ORDER DESIGNATING THE LEADER OF THE GOVERNMENT IN THE HOUSE OF COMMONS AS THE APPROPRIATE MINISTER WITH RESPECT TO THE CANADIAN TRANSPORTATION ACCIDENT INVESTIGATION AND SAFETY BOARD FOR THE PURPOSES OF THE ACT

SI/2013-31 — UNITED NATIONS MISSION IN THE REPUBLIC OF SOUTH SUDAN (UNMISS) MEDAL ORDER

SI/2013-32 — ORDER FIXING SEPTEMBER 2, 2013 AS THE DAY ON WHICH PART 4 OF THE ACT COMES INTO FORCE

SI/2013-36 — ORDER FIXING APRIL 1, 2013 AS THE DAY ON WHICH SECTIONS 579 TO 593 OF THE ACT COME INTO FORCE

SI/2013-37 — ORDER FIXING APRIL 1, 2013 AS THE DAY ON WHICH DIVISION 39 OF PART 4 OF THE ACT COMES INTO FORCE

SI/2013-38 — ORDER FIXING APRIL 1, 2013 AS THE DAY ON WHICH DIVISION 49 OF PART 4 OF THE ACT COMES INTO FORCE

SI/2013-39 — ORDER FIXING APRIL 1, 2013 AS THE DAY ON WHICH DIVISION 13, OTHER THAN SECTION 285, OF PART 4 OF THE ACT COMES INTO FORCE

SI/2013-40 — ORDER TRANSFERRING TO THE PUBLIC HEALTH AGENCY OF CANADA THE CONTROL AND SUPERVISION OF THE PORTION OF THE FEDERAL PUBLIC ADMINISTRATION IN THE DEPARTMENT OF HEALTH KNOWN AS THE TRAVELLING PUBLIC PROGRAM UNIT

SI/2013-41 — ORDER TRANSFERRING TO THE MINISTER OF HEALTH THE POWERS, DUTIES AND FUNCTIONS OF THE MINISTER OF AGRICULTURE AND AGRI-FOOD AND FROM THE CANADIAN FOOD INSPECTION AGENCY TO THE PUBLIC HEALTH AGENCY OF CANADA THE CONTROL AND SUPERVISION OF THAT PORTION OF THE FEDERAL PUBLIC ADMINISTRATION KNOWN AS THE DOMESTIC TERRESTRIAL ANIMAL PATHOGEN UNIT

SI/2013-43 — 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 END USER DEVICES PROCUREMENT UNIT

SI/2013-44 — ORDER AMENDING THE CANADIAN VOLUNTEER SERVICE MEDAL ORDER

SI/2013-48 — ORDER FIXING APRIL 29, 2013 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2013-49 — ORDER FIXING JULY 1, 2014 AS THE DAY ON WHICH SECTIONS 434 TO 439 OF THE ACT COME INTO FORCE

SI/2013-50 — ORDER FIXING MAY 1, 2013 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE SAFER RAILWAYS ACT AND THE RAILWAY SAFETY ACT COME INTO FORCE

SI/2013-52 — SCHUKRA GERÄTEBAU AG REMISSION ORDER

SI/2013-54 — SONIA VALLÉE REMISSION ORDER

SOR/2007-166 — ALLOCATION METHOD ORDER — SOFTWOOD LUMBER PRODUCTS

SOR/2007-305 — ALLOCATION METHOD ORDER (2008) — SOFTWOOD LUMBER PRODUCTS

SOR/2009-10 — ALLOCATION METHOD ORDER (2009) — SOFTWOOD LUMBER PRODUCTS

SOR/2009-33 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (VEHICLE IDENTIFICATION NUMBER)

SOR/2009-157 — REGULATIONS AMENDING THE COMMERCIAL VEHICLE DRIVERS HOURS OF SERVICE REGULATIONS

SOR/2010-144 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS AND THE CANADA STUDENT LOANS REGULATIONS

SOR/2010-148 — STUDENT EMPLOYMENT PROGRAMS PARTICIPANTS REGULATIONS

SOR/2010-278 — ALLOCATION METHOD ORDER (2011) — SOFTWOOD LUMBER PRODUCTS

SOR/2011-269 — ALLOCATION METHOD ORDER (2012) — SOFTWOOD LUMBER PRODUCTS

SOR/2012-29 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996

SOR/2012-248 — ALLOCATION METHOD ORDER (2013) — SOFTWOOD LUMBER PRODUCTS

SOR/2013-6 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DIFFERENTIAL PREMIUMS BY-LAW

SOR/2013-36 — REGULATIONS AMENDING THE FISHERY (GENERAL) REGULATIONS

SOR/2013-47 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2013-58 — TRANSFER OF A PORTION OF THE CANADIAN FOOD INSPECTION AGENCY REGULATIONS

SOR/2013-61 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS AND REPEALING THE REVIEW TRIBUNAL RULES OF PROCEDURE AND THE PENSION APPEALS BOARD RULES OF PROCEDURE (BENEFITS)

SOR/2013-62 — REGULATIONS AMENDING THE OLD AGE SECURITY REGULATIONS

SOR/2013-65 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996

Mr. Bernhardt: Then, finally, simply for the record, under ``Statutory Instruments Without Comment'' are listed 35 instruments that have been reviewed and found to comply with all of the committee's criteria.

For the benefit of new members, I would indicate that in this case, we simply list these by title. There are no materials, but copies of each one are always brought to the meeting and are available if any member has questions or wishes to examine any of them.

The Joint Chair (Senator Runciman): Before we adjourn, Mr. Bélanger made an inquiry with respect to the steering committee meeting.

Senator Moore, do you remain as a steering committee member?

Senator Moore: Not that I'm aware of.

The Joint Chair (Senator Runciman): We will have to look at having advice from the various caucuses with respect to who they are appointing to serve on the steering committee prior to any meeting taking place, so if you can go back to your whips, that would be appreciated.

(The committee adjourned.)

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