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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 5 - Evidence - March27, 2014

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OTTAWA, Thursday, March 27, 2014

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): Welcome. Before we begin, I want to say a huge thank you to Senator Runciman for covering for me at the last meeting. I am delighted to be back.

SI/2009-102 — ORDER FIXING THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

The Joint Chair (Ms. Charlton): We will start today with Item No. 1 under "Special Agenda Items,'' consideration of a draft report.

Peter Bernhardt, General Counsel to the Committee: This was prepared on the instruction of the committee at the last meeting. The issue is whether providing that sections of an act come into force on a date that is not yet known because it depends on some future event can be said to fix the date of coming into force as Parliament required. This order purported to fix the first day on which an international convention and a protocol to that convention are in force in Canada as the day on which the relevant provisions of the act that implemented those agreements came into force.

At the time the order was made, however, the agreements had not been ratified so the date in question was not known. Because it was not possible to say when the sections of the act would come into force, the committee concluded the order did not fix the date of coming into force. The department argued that the coming into force date could be said to be fixed because the order provided an objective mechanism for determining the date: At some time after the order was adopted, the day would become known.

The department also tried to make a distinction between the expressions "fixed by'' and "fixed in'' an order, suggesting that given the order provided this mechanism, the day could be said to be fixed by the order, even though it wasn't fixed in the order. The committee rejected this distinction, basically with the rhetorical question: How can referring to a date that has not been fixed itself be said to fix a date?

The draft report also points out that if it was necessary to coordinate the coming into force date of the provisions in the act with the provisions of the convention and the protocol, there was no need to delegate the authority to fix the coming into force date as Parliament could have simply said exactly that in the act.

In addition, there was also a way by which the Governor-in-Council could have used the power that he did have under this act to achieve the desired result, which simply would have been to wait until the convention was ratified and then issue the coming into force order. The coming into force of the convention and the protocol took place three months after ratification, so there would have been plenty of time after ratification to name the three-month-later date as the date of coming into force.

That is the ground the draft report goes over, summarizing the committee's position that is already staked out in previous correspondence. Of course, the consequence of the committee's view would be that the relevant statutory provisions have never validly come into force.

As a final note I should mention that after the package was circulated, we identified two typos in the draft, which I will note for members. These have been corrected. Paragraph 19 of the French version, at the bottom of page 9, there is a reference to "33'' of the law, which should be "l' article 33.'' In the English version, paragraph 21 on page 11, there is a reference in the first sentence to the "Department of Transfer.'' Of course that should be "Department of Transport.'' We have made those corrections in the master version.

The Joint Chair (Ms. Charlton): Thank you.

Senator Tannas: With the two minor amendments, we should accept that.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.

Mr. Albas: Would it be possible through your office to communicate with the committee as to when you would like to table that report? I would like to be in the house to see it tabled.

The Joint Chair (Ms. Charlton): Absolutely.

Mr. Albas: Thank you.

The Joint Chair (Ms. Charlton): Do we need a formal motion to table a report?

Marcy Zlotnick, Clerk of the Committee: No.

The Joint Chair (Ms. Charlton): We will do that.

Mr. Albas: I appreciate it.

Mr. Bélanger: May I presume that it will be tabled at the same time in both houses?

The Joint Chair (Ms. Charlton): We'll strive to table it at the same time, but it is not always possible. We'll do our best.

SOR/2010-28 — ORDER EXEMPTING BANDS FROM THE OPERATION OF SECTION 32 OF THE INDIAN ACT

The Joint Chair (Ms. Charlton): Moving on to Item No. 2, it deals with the repeal of a section under the Indian Act. The ministry agrees that the order is improper and that the section should be repealed, but, at the moment, the ministry is waiting for a private member's bill that is currently before the house.

Cynthia Kirkby, Counsel to the Committee: This order exempts all Indian bands and their members in Manitoba, Saskatchewan and Alberta from the operation of section 32 of the Indian Act. Section 32 requires the written approval of the superintendent for any transaction involving the disposal of agricultural products by a band or band member from a reserve in those three provinces. Since the order exempts all bands and band members in the three provinces to which section 32 applies, the order effectively renders the section inoperative.

The committee concluded that this was an inappropriate use of ministerial power to exempt the band and its members from the operation of section 32 and wrote to the minister to suggest that that section of the act should be repealed instead. It should be noted that section 32 is considered obsolete and the department indicates there has been little if any enforcement of it in recent decades. A more thorough analysis is provided in the note prepared for the committee.

In the previous session, Mr. Clarke introduced a private member's bill, Bill C-428, which would appeal section 32 and the associated offence provisions amongst other amendments to the Indian Act. The committee asked that the progress of Bill C-428 be monitored. The bill failed to receive passage prior to prorogation but was reinstated at the same stage this session and is currently being debated at second reading in the Senate, most recently on February 25.

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

Mr. Clarke: My private member's bill is up for second reading in the Senate. Senator Dyck will speak to it, but I am not sure when. I believe she wants to sit down with me later this week, and we will look at a time frame.

I will sit down with senators to offer a debriefing on the content of my private member's bill. I hope the bill receives passage in the Senate. Then we can deal with this matter and with a lot of the other paternalistic matters under the Indian Act.

I would love to recite it here, but at this stage I will encourage senators to ask me if they have any questions on my PMB. I'll gladly fill them in on some of the details.

The Joint Chair (Ms. Charlton): Are members comfortable waiting for the PMB progress through the Senate and the house?

Hon. Members: Agreed.

The Joint Chair (Ms. Charlton): Thank you.

SOR/76-373 PRINCE EDWARD ISLAND POTATO MARKETING LEVIES ORDER

(For text of documents, see Appendix A, p. 5A:!.)

The Joint Chair (Ms. Charlton): Item No. 3 under "Letters to and from Ministers'' concerns the Prince Edward Island Potato Marketing Levies Order. Correspondence has been going back and forth for quite some time.

Mr. Bernhardt: As an introductory comment, I should explain that this file is not really 38 years old. The committee reviewed this order back in the 1970s; however, we had occasion to look at it again in 2011, when a couple of things jumped out. First, there seemed to be a number of obsolete provisions. The P.E.I. Potato Marketing Board has agreed to delete those provisions.

The other issue that was immediately apparent was that this order has not been amended since 1992; however, the levies being charged are not the 1992 rates.

On the first issue, the committee had asked when the anticipated amendments to the order would be made. The Farm Products Council of Canada indicates that it is currently working with the P.E.I. board on the amendments, but there is no indication as to when this work is expected to be completed.

As members will know, this is by no means the first time the committee has encountered the problem of provincial marketing boards charging increased federal levies without first amending the orders that legally impose the levies. As a result of the committee's concerns, the Farm Products Council of Canada was supposed to contact all marketing boards across Canada with a view to identifying orders that, in its words, "were at risk of legal exposure.'' The question was asked in this case whether these particular levies were among those that had been identified as problematic. In fact, the answer we received from the council was that they were not.

The reason for this, and I quote the FPCC letter, is:

The criteria for identifying legal exposure were restricted to situations where there was a federal delegation order, but that the delegated commodity board had not imposed any levies by order pursuant to the delegation order.

In other words, this order was not identified because there was a levies order in place. Apparently the council found nothing unusual in the fact that the order had not been amended in some 20 years. I question whether anyone would seriously expect that the levies being imposed in 2011-12 would still be the 1992 rates. Did the council really believe this would be the case?

A number of other orders are out there, as you can see in the index of instruments in the Canada Gazette, that have not been amended for a great number of years. It seems that the Farm Products Council of Canada assumed that none of these was problematic. I would have thought they would assume just the opposite.

In July, the Farm Products Council of Canada advised that revisions to the delegation orders — the orders that authorize the commodity board to make levies orders — are being developed to provide greater flexibility and to minimize the risk that boards will collect levies without proper authority. There is no indication as to exactly what form these revisions will take, but it can be expected that this will likely entail amending the delegation orders so that these boards no longer have to make a regulation to fix a levy as they will be able to do it on an administrative basis.

The committee also asked for an explanation of the actual amount of the levies being collected at present. The committee has been provided with a copy of the September 10 letter from the provincial board that sets out the current levies. We can now confirm that those are not the levies actually in the order.

The slow progress of this and the fact that some orders may have been overlooked led the committee to have some doubt as to whether there would be a resolution any time soon. It was therefore decided to bring this to the attention of the Minister of Agriculture and suggest that, given the time that has passed, perhaps consideration should be given to introducing retroactive legislation to validate the collection of these levies over the years.

The minister's response is before the committee this morning. He indicates that he will ensure that the FPCC keeps the committee apprised of developments. There is no response to the suggestion concerning validating legislation. That is where matters stand as of this morning.

The final comment I would make is that from the September letter from the provincial board, it seems as though the board considers the issue as being no more than an oversight — a failure to publish in the Canada Gazette. It regrets that it didn't publish the orders. However, the point is that pursuant to the Statutory Instruments Act, regulations, and the definition of "regulation'' would include these orders, only comes into force when they are registered. The board talks about the dates that these levies were in effect, but the fact of the matter is that these changes to the levies weren't registered and were never in effect. I am not sure even to this date that this matter is fully grasped by the provincial boards. It falls to the committee to decide where to go.

The Joint Chair (Ms. Charlton): Any comments on where we go next?

Mr. Albas: I appreciate the work that counsel has done on this because it points to a larger picture of some of these delegated authorities. Over time these boards have become more marketing agencies than boards to establish the orders under which they operate. I think they have focused a bit too much on the marketing side.

Our task is to figure out what we should do to force positive change. From speaking to counsel, my read of the file is that there could be a broader issue beyond the P.E.I. Potato Marketing Board. Perhaps it is an ideal situation for counsel to meet with the Farm Products Council of Canada because they are responsible for the overall movement of these individual boards to ensure they are compliant with federal statutes. First, counsel could meet with them to discuss the concerns we have had previously. Obviously, the review that they have done, while helpful, did not identify all of the issues that these marketing boards are having. In this case, obviously the order had not been updated with levies. It would be important to encourage them to seek out other issues to ensure that they are addressing them.

Second, once all these orders have been reviewed to determine whether these levies are at adequate levels to reflect what they have been charging, the committee could go back to the minister and give a full report asking for that. It seems that we would probably go further if we were able to address multiple groups that may require retroactive legislation to be put in place, rather than going with a one-off. We have to be part of the systemic change to modernize and bring these boards back into compliance.

Meet with the Farm Products Council of Canada and encourage them to take a leadership role in bringing these boards up-to-date.

Mr. Bélanger: I am relatively new at this committee and still learning about the tools at our disposal and how we have used them in the past.

When was the last time this committee asked someone to appear before it to explain their position perhaps as the matter is publicly under consideration — broadcast in a committee meeting? When was the last time that happened?

Mr. Bernhardt: It has been several years. Historically the committee has done that from time to time. In recent times, the option has been followed of asking counsel to convey that message. It is always in members' hands. There are precedents as it was the occasional practice of the committee.

Mr. Bélanger: I am not necessarily suggesting we do that on this situation, but we ought to consider it as one of the tools at our disposal. Something like this drags on because, as we have heard from counsel, it is obvious that there is a problem and neither the council nor the potato board will admit it. Perhaps having them here might encourage them to reconsider their views.

I might leave it at that at this point. I have no difficulties with the suggestion by Mr. Albas that counsel go to them again. Perhaps counsel should have that as a trump card or an arrow in his quiver.

Honestly, at some point I would love to have the committee call someone before it to have a discussion. That might be useful.

Senator D. Smith: I want to speak in support of Mr. Belanger's approach. There can be reasonable clarity in legislation, but some bureaucrats don't like it and want to put it on the back burner indefinitely. I am a believer in clarity. If you keep saying fix it and they don't, there has to be a point at which they have to come here and explain what the heck they are doing. We don't have to rush into it, but the message somehow needs to be conveyed: You can't just keep doing this indefinitely. We are entitled to clarity and so are the people who are affected by this.

Mr. Albas: That is a legitimate tool in the tool box. However, let us bear in mind that the Farm Products Council of Canada has a particular role. Again, they are becoming quite wise to the fact that they have not been able to keep these marketing boards in compliance. This is where our committee will be able to lend a lot of expertise and direction to help deal systematically with these issues. As my colleague Mr. Bélanger pointed out, the P.E.I. Potato Marketing Board is not the only one having these issues. I appreciate that some committee members would like to have them here but it seems they are responding with us. We need to encourage them to expand their review. That is why I would like to counsel to meet with them.

[Translation]

Ms. Ayala: I want to talk about those who have had to pay a contribution, which is illegal by its very nature. There is some prejudice here, and certain producers were really forced to pay. Something needs to be done about this. We are not talking about little children who should be encouraged to take the right path. We are talking about adults who must work within the spirit of the law.

I would like to ask the experts, the professionals, what needs to be done.

[English]

Mr. Bernhardt: As I indicated, the committee has encountered these issues from time to time. The illegal collection of money is something that the committee has drawn a very firm line in the sand on over for many years. There has been success in some cases in getting repayment; in other cases a remission order is possible; and in others validating legislation. There are precedents in the committee's work for all of that.

This is a systemic problem that has gone on for a number of years, so I don't think repayment is a practical possibility. I suppose at the end of the day it's a question of how much and how best the mess can be cleaned up.

[Translation]

Ms. Ayala: Would there be any other solutions?

[English]

Mr. Bernhardt: The first solution would be to get proper orders in place, at least going forward, so that everything is on a proper footing. As far as what has happened in the past, the committee has suggested retroactive legislation to validate the collection of money. One wonders if all the producers are aware that they are making voluntary payments on agricultural products that they market outside their province of residence. In effect, that is what is happening. I don't know if all these boards have taken steps to let the producers know the current state of affairs. That is something the committee could suggest as well. The producers might have an interest in pushing for a resolution.

Perhaps another aspect, which falls a bit outside the committee's mandate, is to find a way to encourage the Farm Products Council of Canada to take a more hands-on approach in its role as overseer of the regulatory process related to the various provincial boards.

Mr. Bélanger: I am fine with Mr. Albas' suggestion that we let counsel go back at it once more and perhaps report in the fall. If there is no closure, I may come back with the motion that we convene the appropriate parties to appear before the committee.

The Joint Chair (Ms. Charlton): If I understand correctly, Mr. Albas suggested that counsel go back to the Farm Products Council of Canada and not just limit the conversation to the P.E.I. Potato Marketing Board issue but rather to take a more comprehensive view of all the boards. Is that agreed?

Hon. Members: Agreed.

SOR/2013-92 — ORDER 2013-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2013-135 — ORDER 2013-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2013-136 — ORDER 2013-66-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST

(For text of documents, see Appendix B, p. 5B:5.)

The Joint Chair (Ms. Charlton): Item 4 on our agenda, under "New Instruments,'' concerns three orders that deal with amendments to the Domestic Substances List under the Canadian Environmental Protection Act. The issue, I believe, is that the amendments haven't been transmitted within the time required by the Statutory Instruments Act.

Ms. Kirkby: With respect to the timelines, 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 for registration within seven days of its making. The department was asked for an explanation of why the statutory requirement was not complied with, particularly in light of assurances on at least two prior occasions that the department had put procedures in place to avoid delays of this nature occurring again. For some reason there seems to be a problem particular to amendments to the Domestic Substances List.

The department's explanation refers to changes in staff that led to standard operating procedures not being followed in this case. The department then said it has taken steps to ensure those procedures are followed consistently when transmitting signed packages to the Privy Council for registration. The department did not comment on why these steps are expected to make a difference when the earlier procedures they put in place to address the same problem did not.

Ms. Ambler: First, I would like to say thank you to counsel for solving this problem. It seems like the new procedures will now prevent future delays from happening. I recommend that we accept the response and close the file.

The Joint Chair (Ms. Charlton): Is there agreement to close the file?

Hon. Members: Agreed.

SOR/2005-35 — CANADIAN TRANSPORTATION AGENCY GENERAL RULES

(For text of documents, see Appendix C, p. 5C:1.)

The Joint Chair (Ms. Charlton): Moving on to "Reply Unsatisfactory'' and Item No. 5, members will recall that we had a number of conversations with respect to the Canadian Transportation Agency General Rules. We asked for some information on 29 items that we raised as a committee. We are now being told that information is forthcoming, but it may not be coming before we actually see the amendments.

Mr. Bernhardt: That is basically it in a nutshell. The committee has been promised a number of amendments. They were to be made in 2013, although this has yet to happen.

There were four remaining points — these are explained in the note and are numbered 4, 5, 8 and 12, in which it wasn't clear that amendments had been promised. So the committee sought confirmation that when this package went forward and all the other amendments promised were made, these four would be included in the package. The response repeatedly from the agency is that it will let the committee know once amendments to the rules are nearly complete.

Of course, the concern is that by the time it's known whether or not these amendments are included in the package, the package will already have been made. It would be nice to sort out the fact that all of these things would be addressed and the file could be closed, rather than having to go back to the agency in this case and say, "Excuse us, you left two out.'' Why that confirmation or non-confirmation can't be given at this point is a bit of a mystery.

Mr. Vellacott: Would it be appropriate for us to write back to the transportation department and ask for a response and if they can provide that to us?

Mr. Bernhardt: We can certainly do that and indicate that the committee has considered their responses and would like to know sooner.

Mr. Albas: I wanted to see if counsel would comment on whether or not we should take this up higher, maybe to the chair of the CTA, because officials seem not to have responded to our request.

Mr. Bernhardt: We can certainly do so if that is the wish of members.

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

Mr. Albas: Maybe ask Mr. Vellacott. It is his proposal.

Mr. Vellacott: I am fine nuancing mine that way instead.

Senator Moore: Agreed.

Some Hon. Members: Agreed.

[Translation]

Mr. Bélanger: I think that is a very good suggestion. The chair of the Canadian Transportation Agency is at the management level. He is not even close to the minister's office. Transferring that file to the agency's chair is a very good suggestion.

[English]

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.

SOR/2012-135 — REGULATIONS AMENDING THE SULPHUR IN DIESEL FUEL REGULATIONS

(For text of documents, see Appendix D, p. 5D:1.)

The Joint Chair (Ms. Charlton): Item 6 deals with regulations amending the Sulphur in Diesel Fuel Regulations. We received departmental responses, but they were either noncommittal or incomplete.

Ms. Kirkby: A variety of issues were raised in connection with these regulations. First, it was noted that it would be preferable to omit from the recommendation the statement that the prepublished version of the regulations is substantially in the same form as the published version since there is no requirement in the act that they be substantially similar, and so this statement could give rise to unnecessary debate. The department indicated that it takes note of the suggestion.

With respect to the various drafting issues raised in points 2, 4 and 6 of the correspondence, the department in most instances acknowledged that the regulations could be worded more clearly and said the matter would be considered when the regulations are next amended. There was no indication of when this will be, however, so a projected timeline could be sought, as well as a firm commitment to address these matters.

With respect to the instances where information is being required for no clear environmental purpose, which are points 3 and 6 of the correspondence, the point could be made to the department that its authority to require the submission of information is limited to information relevant to the purposes of the regulations. In particular, the schedules should not be used to impose a requirement to submit information that is not mentioned in any of the substantive provisions and appears to be irrelevant to the objectives of the regulations. The department could again be asked for an explanation as to what use is made of this information and why it must be collected.

With respect to whether the amendments could result in an increase in air pollution and therefore be contrary to the Canadian Environmental Protection Act, the issue raised in point 1 of the correspondence was that the regulations formerly established the same sulphur concentration limit of 500 milligrams per kilogram for all vessels, regardless of size. But the amendments created a new category of vessel propelled by a large diesel engine, which is currently not subject to any sulphur concentration limit and will be subject to a concentration limit of 1,000 milligrams per kilogram after May 31. As a result, it would seem the amendments increase the allowable sulphur concentration for these vessels rather than making a significant contribution to the prevention of or reduction in air pollution as required by the act.

It appears that the department is saying that in the past vessels propelled by a large diesel engine have typically used fuels that do not meet the definition of diesel fuel and would not have been be subject to the 500 milligrams per kilogram limit for vessels established in the regulations. Since fuel that meets the definition of diesel fuel is becoming a more viable option for vessels propelled by large diesel engines, however, any such vessels using diesel fuel would be subject to the 1,000 milligram per kilogram concentration limit after May 31. According to the department, diesel fuel has a lower sulphur concentration than the types of fuels typically used by these vessels, so the amendments could prevent or reduce air pollution as required by the act.

Confirmation could be sought from the department that this is indeed the explanation, that is, that large vessels did not use diesel fuel and they were not subject to the lower sulphur concentration limit in the regulations, and so in practice the limit with respect to large vessels is not increasing. If this is correct, this explanation could be considered satisfactory.

Finally, the department seemed to miss the point with respect to the issues raised in connection with subsection 6(2) of the regulations, which is point 5 of the correspondence.

First, the reference to the date of dispatch was questioned since the sulphur concentration limits are established in relation to production, importation and sale, not dispatch. It is not clear that the department recognizes this disconnect, and the department's response even suggests it can be difficult to establish when fuel is actually produced. If this is the case, it would seem to call additional aspects of the regulations into question, particularly how the regulatory requirements with respect to production can be enforced.

The second issue in relation to subsection 6(2) is that producers and importers of diesel fuel are required to indicate in a record that diesel fuel with a sulphur concentration of more than 15 milligrams per kilogram is not suitable for use in locomotive engines, for example, even though diesel fuel with sulphur concentration of up to 500 milligrams per kilogram can be sold for use in locomotive engines. It is hard to term determine the rationale for this based on the department's response. A more satisfying explanation could be sought on both points.

Mr. Albas: I want to thank counsel for a very full briefing on this. I think it only cracks open the door to the complexity not just of how a refinery will produce product and even the definition of "dispatch'' and some of the issues relating to when something is actually produced, particularly if you are mixing several fuels together. Noting that most of counsel, if not all, are from a legal background versus technical, I think this has been an interesting report.

I do think we should seek clarification on those two points, but I will bear in mind that what this report exposes to me more than anything is, first, how complicated an environment the refinery process operates under, and obviously the related vessels or locomotive engines and the regulation of sulphur and how difficult it is to regulate that. Some good will probably come of asking for information on those two points.

Again, it is very technical and complex. I am glad that I have chosen to serve in this particular area rather than be regulated under such complicated rules.

The Joint Chair (Ms. Charlton): The suggestion on the floor is that we write back and ask for a clarification on both points. Is that agreed?

Hon. Members: Agreed.

Senator D. Smith: Say the previous response was not adequate.

The Joint Chair (Ms. Charlton): Okay. Thank you very much.

SOR/2003-323 — PRESENTATION OF PERSONS (2003) REGULATIONS

SOR/2005-385 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS (CUSTOMS) REGULATIONS AND THE PRESENTATION OF PERSONS (2003) REGULATIONS

SOR/2006-154 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS (2003) REGULATIONS

(For text of documents, see Appendix E, p. 5E:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 7 under "Part Action Promised,'' these amendments relate to the CBSA. Some of the amendments promised previously have been delayed to 2015 and one has been retracted.

Mr. Bernhardt: That is correct. The committee started with five concerns back in 2007 and amendments in 2008 resolved two of those. The remaining amendments, as you indicated, are now to be made in mid-2015. However, the CBSA is backing away from one of its commitments. The issue here concerned the need to distinguish between the reasons for which the minister may suspend and the reasons for which the minister may cancel an authorization that allows you to present yourself to customs by telephone or electronically.

It has always been the view of the committee that where regulations provide for suspension or cancellation of a licence or any kind of authorization, the regulation should make a distinction between the circumstances that will lead to one consequence and the circumstances that would lead to the other so that there is not the possibility of an arbitrary treatment from one individual to the other.

The agency previously indicated it would make this amendment. It now expresses a preference to set out the circumstances that will lead to suspension and cancellation on the website of the various programs that are affected, for example, the NEXUS program. As members know, information on a website is not law; it is not binding on anyone and can be changed at any time. The agency's suggestion to do it simply through information on a website will allow it to differentiate between the various programs and to provide for flexibility. That is always the word that is relied on. I would suggest that these sorts of specifics, however, should be in the regulations.

The agency also suggests that using the website as a means to do this will allow them to give examples, but of course you could do that on your website in any event.

When one looks at the websites in question, as explained in the note in the materials, there are detailed rules that set out exactly how a contravention of any of these programs will be addressed. There is significant detail concerning not only the circumstances but how long a suspension will last and periods of ineligibility for reapplication after cancellation. I should add that the ineligibility for reapplication is not even mentioned in the regulations. I would suggest that all these things should be in the regulations and we would recommend the committee not accept the change of heart from the agency.

There is also the possibility, given that the website seems to set out clear rules, of an unauthorized fettering of the minister's discretion. Under the act, the minister has the power to amend, suspend, renew, cancel or reinstate authorizations subject to the regulations. It would seem that if there are to be any restrictions on the minister's ability to do any of those things, those have to be in the regulations and not simply through the website. In fact, the website seems to be more than guidelines. It seems to set out very specific rules of the nature that should be in the regulations.

Senator Batters: I agree with counsel. It is helpful to have those types of examples on the website and the ability for the public to access information about programs that are becoming quite widely used, but at the same time it does not take away from the fact that these need to be dealt with in the appropriate fashion. I think we should press the department to go forward with this amendment.

The Joint Chair (Ms. Charlton): Agreed?

Mr. Bélanger: How are we going to press the department, if I may ask?

Senator Batters: Write back to them and indicate their explanation about how the website is the be-all and end-all is not satisfactory.

Mr. Bernhardt: The committee has considered the latest proposal and would like them to go back to their initial undertaking.

Senator Batters: Yes.

Mr. Bélanger: Who is the instrument officer in that department?

Mr. Bernhardt: For the Canada Border Services Agency we write to Mr. Rigby, the President of CBSA.

Mr. Bélanger: Is he the one we have been writing to in the past?

Mr. Bernhardt: Yes.

Mr. Bélanger: Are you sure you want to stick to him?

Senator Batters: Give it one more go.

Mr. Bernhardt: I will stick to whoever the committee tells me to stick to.

Mr. Bélanger: One more go? Agreed.

The Joint Chair (Ms. Charlton): One more letter to the president? Onward and upward. Agreed?

Hon. Members: Agreed.

SOR/2009-264 — VOLATILE ORGANIC COMPOUND (VOC) CONCENTRATION LIMITS FOR ARCHITECTURAL COATINGS REGULATIONS

(For text of documents, see Appendix F, p. 5F:1)

The Joint Chair (Ms. Charlton): Next is Item 8 on our agenda. In this instance, the Ministry of the Environment has promised two amendments. The third seems to be in abeyance pending the passage of legislation with respect to incorporation by reference.

Mr. Bernhardt: That is correct. Two amendments have been promised and we could, by now, seek a progress report on those. These regulations also incorporate by reference two U.S. standards. Of course, if Bill S-2 passes it will add a provision to the Statutory Instruments Act requiring that regulation-makers ensure that standards incorporated by reference are accessible, and that requirement will apply even if the standards were incorporated before that provision came into force.

In anticipation of this, we asked the department to explain the basis on which and what it had done to ensure that the standards in this case were accessible. Being American standards, of course, they exist in English only and there is also a charge for each. One is $36 and the other is $41.

The department explained it chose the American Society for Testing and Materials Standards because that organization has an international reputation. It uses an accessible approach, the cost is minimal and they are available on the Internet.

They do not address the language issue. As the note explains, there is jurisprudence on the question of when standards in only one official language can be constitutionally incorporated by reference. That is a somewhat different question than whether they would still be considered accessible should Bill S-2 pass. Accessibility and constitutionality may be different questions.

There is also the question of who the audience is, that is, to whom must it be accessible. If you incorporate a standard by reference, it becomes part of the regulation. The regulation is legislation, and it is usually considered that the law should be available to everybody. That raises the question, in the case of the potential new requirement, whether it would it be enough simply that it was accessible, for example, to an industry that was governed by a particular regulation or standard or if it would have to be available to everyone. All these factors will probably vary from case to case and should Bill S-2 pass, the committee will need to develop its own approach, in light of all these factors, as it sees relevant.

This, in a sense, was the first file on which these questions have been raised and the issues put on the table for consideration. As I say, that was done largely done in anticipation of Bill S-2. I suppose upon reflection it would be open to the committee to consider that the approach taken may have been a bit premature since that bill has not yet passed. It is the hands of the committee.

[Translation]

Mr. Bélanger: The Official Languages Act is a quasi-constitutional statute under which all government departments and agencies, without exception, must comply with that legislation, whose goal is to ensure that all Canadians have access to services in either of the two official languages.

There is no doubt in my mind that this is a constitutional obligation, and if the agency is not interested in respecting the Canadian Constitution, we have a serious problem.

[English]

The Joint Chair (Ms. Charlton): And you suggest we go forward?

Mr. Bélanger: I suggest we go full bore into making sure the people who have the responsibility to uphold the Constitution of Canada and the laws of this country, including the Official Languages Act, do so.

Mr. Albas: I have a few questions. This particular document was put together by former counsel Jacques Rousseau, is that correct?

Mr. Bernhardt: It was his file; yes. He was in charge of the file.

Mr. Albas: I have tremendous respect for him and he is retired, is that correct?

Mr. Bernhardt: Yes.

Mr. Albas: There are two questions I have to ask. First, I think there are two main issues. One is that there were three points raised; two of them were cases where the department has suggested they will rectify that. Is that correct?

Mr. Bernhardt: That is correct.

Mr. Albas: That is specific to this particular file.

Now the decision to apply the lens — I will call it the S-12 lens for simplicity — was made by Mr. Rousseau or yourself as lead counsel?

Mr. Bernhardt: I will take responsibility for that, yes.

Mr. Albas: The reason I am asking is that when we operate, we usually expect fairly broad criteria that is firmly entrenched in this committee's mandate to serve us in how we proceed toward each file. What was the purpose in applying a whole separate lens in addition to the regular criteria for examination of this file, and why would this file be chosen over any number of other regulations that we monitor?

Mr. Bernhardt: Those are fair questions. The file wasn't so much chosen; it was just the first file we encountered after the bill had been introduced that involved open incorporation by reference. The opportunity was taken to start to explore some of these issues in anticipation of the bill passing and being put into the committee's lap to deal with.

Upon reflection, I suppose it could be construed as jumping the gun.

Mr. Albas: Sure; okay.

That being said, I hope we would all agree that this committee works exceptionally well, and usually by consensus, because the dynamic is that both houses have their debate on a particular statute, the statute passes into law there, and then we become part of the cycle to ensure there is parliamentary oversight over the instruments that are born of the enabling statute. That is what we are here to do.

By introducing elements of Bill S-2 when it has not yet passed both houses, it may be significantly amended or perhaps, like some pieces of legislation, it just never gets its turn. I don't want us to start introducing polarizing debates into a committee that really does work quite well for Canadians, based on the fact that we all acknowledge that once a debate has happened and a democratic decision has been made in both houses, we move on. And now we are simply tasked with making sure that the enabled authorities are kosher with the Constitution, with our laws, whether they are language laws, drafting errors, all those wonderful things.

I would suggest that maybe we back away from looking through the Bill S-2 lens at this time until the committee can actually have, in its architecture, a final say from Parliament.

I appreciate that counsel says that it has jumped the gun and that Mr. Rousseau probably felt there was some value in asking this. However, since the horse is out of the barn, to use a metaphor, perhaps we can agree that we should have the discussion once an act is in place that has been given Royal Assent.

Mr. Bélanger: I didn't realize that respecting the Official Languages Act would be polarizing.

[Translation]

Ms. Minh-Thu Quach: If we wait for the introduction of the bill, would it not be too late to request amendments? If we were to ask for amendments or send a note to say that we want both official languages to be respected, that could be part of the preparatory work for the introduction and passing of the bill. It seems to me that this should be done before the bill is introduced and it becomes difficult to amend it.

I would send a letter saying that we want both official languages to be respected.

[English]

Mr. Bernhardt: Assuming the bill passes, the issue generally of accessibility and what that means in a particular case will be squarely before the committee, and at that time it becomes not a "potential future issue'' anymore. That would come back to committee. There is nothing stopping the committee from seeking amendments at that time. The bill would make the accessibility requirement applicable to everything, regardless of when it is incorporated.

I should perhaps clarify that at present, under the jurisprudence from the Supreme Court of Canada, certain documents, such as a technical standard, can be validly incorporated even if they exist in only one language if certain circumstances are met. The court referred to things like a specific expert audience, a particular industry, a standard that was very technical or if the body producing the standard had a particular unique expertise. The court said, in the Manitoba language references, that there are circumstances where you can do that.

The question could be somewhat different if the bill passes because it simply says material has to be accessible. That may be a different question than whether it is constitutional to incorporate it; I don't know. It is open to people to decide. The same test could apply; a different test could apply. Those are all things that need to be worked out.

As Mr. Albas indicated, all that being said, at this point in time the bill is simply a bill. I guess it is open to the committee to take the wait and see approach.

Mr. Vellacott: Is "accessible'' a word or term in law that means a cipher for both official languages, or that we have a lot of oriental population on the West Coast?

Mr. Bernhardt: No, it is a general term — it will remain to be seen.

When the committee made representations to the Minister of Justice on what potentially should be in a bill, one of the points was that accessibility was an issue and there should be some fairly clear accessibility requirements in any bill. This bill simply says it must be accessible. In some sense that requirement would be an empty vessel that would then need to be filled by regulation makers, this committee, everyone having to deal with the regulations to decide what "accessible'' meant in a particular case. Just like any new requirement, it would take some time and a number of examples to work out the principles and how that would be applied from case to case.

Mr. Vellacott: If we have not clearly defined what "accessible'' means, it probably means as a minimum both official languages. But maybe if it is pertaining to our Asian trade or whatever, it is Mandarin or something else on the West Coast. I don't really know. I'm wondering what "accessible'' means, especially if it's technical language that it is pretty hard to translate into some languages.

Mr. Bernhardt: That will become a question that will have to be asked in each case and probably be decided, as you said, on a case-by-case basis in terms of what's being incorporated, why it is being incorporated, how do you get it and, in each case, can that be seen to meet the accessibility test.

I think you can look at certain factors that will likely be considered — things like cost, language, availability on the Internet and all those things. However, it will probably be a situation of applying those factors on a case-by-case basis, if and when the time comes.

Mr. Vellacott: In view of that, it might also be presumptive of us if there is no body of law reference or anything like that to instruct or guide us in respect of this issue, and a decision is still being formulated.

The Joint Chair (Ms. Charlton): I am hearing one proposal on the floor for how we deal with this, and that is Mr. Albas', which is — I don't want to put words in your mouth, so correct me if I am wrong — that we recognize that the two amendments have been promised and that we not deal with the third item because we don't have legislation currently before us that would empower us to do that. Is that agreed to by the committee?

Some Hon. Members: Agreed.

Mr. Pilon: Abstention.

SOR/2011-197 — REGULATIONS AMENDING THE GOVERNMENT CONTRACTS REGULATIONS

(For text of documents, see Appendix G, p. 5G:1.)

The Joint Chair (Ms. Charlton): Moving on to Item 9, Regulations Amending the Government Contracts Regulations, we had asked a question of clarification as to whether an item actually represented the Governor-in- Council's intent. We are assured that it does. Treasury Board has committed to fixing two problems with respect to the French version of the regs.

Ms. Kirkby: That summarizes everything. The only additional point that I would raise is that, during preparation for this meeting, it was noticed that the regulations refer twice to "offence, other than an offence for which a pardon has been granted.'' After these references were added to the regulations, in 2011 the Safe Streets and Communities Act amended the Criminal Records Act so that now the terminology is a record suspension as opposed to a pardon.

In the process of writing back to the regulation maker for an estimated time frame for the promised amendments, it could be pointed out that the terminology could be updated in this instance as well to refer to "an offence for which a pardon has been granted or in respect of which a record suspension has been ordered,'' which is the language used in the Canadian Human Rights Act.

Senator Unger: Which number?

The Joint Chair (Ms. Charlton): This is Item No. 9.

Mr. Albas: I had SOR/2011-197 as number 9, and that is dealing with Treasury Board's government contracts regulations.

Ms. Kirkby: That's right, Regulations Amending Government Contracts Regulations. There are a couple of instances where they refer to the terms that will be deemed in every contract, two of which refer to offences for which the person has received a pardon.

Mr. Albas: Thank you. It was just that the language you were using and the language presented in the note doesn't give you that.

Mr. Bernhardt: To clarify, that was an issue we just picked up on while we were preparing for this meeting. Someone noticed that it talks about pardons and the terminology has been changed. The suggestion is that if we are going to write back and ask for an update, it might be worth mentioning that they should probably think about using the new terminology in place of the pardon as well.

Mr. Albas: I hate to impose, because, again, I thought you were on a completely different file, but please rephrase that again, short and sweet, so I know what is being discussed.

Ms. Kirkby: All right.

Mr. Bélanger: Slowly.

Ms. Kirkby: Regarding the Regulations Amending Government Contracts Regulations, the Treasury Board has agreed to make the amendments with respect to the two minor drafting and grammatical issues but they haven't provided a time line.

As a separate matter, while we were preparing for this meeting, we noticed that the regulations refer twice to "offences other than an offence for which a pardon has been granted.'' Since that terminology has been updated since these regulations were last amended, it was thought that while we were writing back to the regulation maker, we could also point out that the pardon process has been replaced by the record suspension process.

The suggested terminology was that which is used in the Canadian Human Rights Act, which is to refer to "an offence for which a pardon has been granted or in respect of which a record suspension has been ordered,'' because there does not appear to be a reason to distinguish between those two in this context.

Mr. Albas: Thank you.

Mr. Bélanger: Write back and ask for clarification?

Ms. Kirkby: Yes.

The Joint Chair (Ms. Charlton): Is it agreed?

Hon. Members: Agreed.

SOR/98-443 — ENVIRONMENTAL ASSESSMENT REVIEW PANEL SERVICE CHARGES ORDER

(For text of documents, see Appendix H, p. p. 5H:1.)

The Joint Chair (Senator Runciman): Item 10 falls under the heading "Reply Satisfactory (?)''. The Canadian Environmental Assessment Agency promised to address one of the committee's concerns and they are silent on the other.

Mr. Bernhardt: This order was adopted pursuant to the order authorizing the Minister of the Environment to prescribe charges. That order in turn was made under the Financial Administration Act.

In 2012, however, Parliament enacted a new Canadian Environmental Assessment Act, and that new act gives the Governor-in-Council the power to make regulations to recover costs in relation to the environmental assessment of projects. Under that power, the Governor-in-Council then made the Cost Recovery Regulations.

The Environmental Protection Agency indicated it would no longer be using the service charges order to recover costs. This being the case, rather than pursuing amendments to the order that the committee had asked for, the committee's suggestion is simply repealing this order as well as the order under which it was made.

The reply from the agency was that it had no objection to doing that, but before it did, it wanted to make sure there would be no negative consequences. Last September, it wrote that it had been advised by its advisers not to do anything until all outstanding debts under the order had been repaid. Apparently, there is only one outstanding debt and a repayment schedule has been agreed upon, although somewhat strangely the agency also states it does not know exactly when the debt will be repaid in full.

As well, the September letter from the agency only mentions repealing the service charges order. We should probably get confirmation that it still intends to repeal the authorizing order as well, just to complete the package.

I suppose the question mark here is simply whether the committee is satisfied to wait until the remaining debt is repaid before these orders are revoked. That would seem to be a reasonable approach.

Senator Nancy Ruth: Maybe we should find out when the debt is going to be repaid, and we should make them figure out whether they are going to revoke both of them before we accept any of it. That would be my suggestion.

Mr. Albas: I totally agree with Senator Nancy Ruth on checking to see if both orders will be revoked in that case.

However, as a former small businessperson, I often would have clients that would be on a set schedule for payment, but I will say that not all of them always pay on the set schedule. While I understand where counsel is coming from, that is the reality of any kind of enterprise where you are expecting both parties to have obligations.

Mr. Bélanger: Did any of them ever pay them back?

Mr. Albas: Yes, some did.

The Joint Chair (Senator Runciman): Are we agreed with Senator Nancy Ruth? Was there something else?

Senator Nancy Ruth: No, but I am just curious to know: Are there no penalties for late payment?

Mr. Albas: Those are subject to the terms and conditions of it, but it certainly hurts when you are a small business and one party doesn't pay.

The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.

SOR/2009-20 — REGULATIONS AMENDING THE WILD ANIMAL AND PLANT TRADE REGULATIONS

(For text of documents, see Appendix I, p. p. 5I:7.)

The Joint Chair (Senator Runciman): Next is Item 11. I think this boils down to the department suggesting it may be impossible to meet the requirements of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and also suggesting it may not be feasible to amend the act.

Mr. Bernhardt: That is correct. Under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, species added to the convention are to be added to domestic legislation within 90 days. That requirement, then, is reflected in the act.

The problem is that, in many instances, the 90-day requirement is not met. In one case, it took 465 days. As you indicated, chair, Environment Canada has told the committee that it is very difficult, and in some cases impossible, to meet the 90-day deadline; but, on the other hand, because of Canada's international obligations, it can't amend the act to get rid of or extend the 90-day deadline.

The committee, when it last considered this file, decided it would seek the views of Treasury Board and the Department of Foreign Affairs as to what might be done to comply with the 90-day requirement in the act or, in the alternative, what an appropriate time frame would be.

Treasury Board has stated that it is prepared to work with Environment Canada to consider options to expedite the process, including an exemption from the requirement to prepublish the proposed amendments. It is also prepared to work with the department and the Department of Justice to establish an amendment time frame that would allow work to begin on some elements of the process earlier than usual.

As for Foreign Affairs, their response makes reference to a provision in the convention that allows countries to make reservations from amendments to the convention. They haven't indicated whether a party could actually enter a reservation concerning the date of an amendment coming into force. If that is possible, entering reservations like that would be a way for Canada to avoid being in non-compliance with an international obligation.

There is again mention from Foreign Affairs of the policy on tabling of treaties in Parliament which requires that amendments have to be tabled for 21 sitting days before the government can implement them through legislation. Of course, as the committee has pointed out to Environment Canada before, in the case of the policy interfering with the requirement in a statute, it is the legal requirement in the statute that has to take precedence over the policy.

At the end of the day, Foreign Affairs has basically said it is not in a position to identify a time frame that would be needed to make these amendments because that is Environment Canada's responsibility.

The note in the materials concludes by suggesting that it might be beneficial to share the contents of the letters received from Treasury Board and Foreign Affairs with Environment Canada. I can advise that such was done in January at the request of Environment Canada; they were copied on the letters that the committee sent to Treasury Board and Foreign Affairs. They asked for those and were given them.

Perhaps at this time, Environment Canada could be asked if it has approached the other two departments, if they have had consultations and if there is any progress on finding a way around some of these difficulties.

Senator Batters: I certainly agree with that. I think these people need to talk. If we could write to Environment Canada and encourage them to indicate that, given we have provided them with both of these responses — both the Treasury Board and DFATD — engage with them and get this issue revolved.

The Joint Chair (Senator Runciman): Do you agree with that approach?

Mr. Albas: I am thrilled, by the way, that we got substantive responses from Treasury Board as well as from DFATD.

Where further do we go on the file? Are we looking at closing the file because we have tried to do as much as we can? What are the options?

Mr. Bernhardt: That is a good question. In a sense, the committee has finished with these particular regulations because they have questioned why the requirement wasn't met and have had the explanation. I suppose members could take the view that the next time amendments are made, we will see if they meet the 90-day requirement or not, and go from there.

I suppose the other way members could look at it is that this is an ongoing issue. Environment Canada admits it is practically impossible for them to meet the requirements. So it may be of interest to members to keep an eye on just what is being done to try to get around the issue in future.

Mr. Albas: Okay.

Mr. Bernhardt: But, yes, you are right: There is no further specific action in terms of amendments, a tabling or something that can be done with this file. The action is done.

Mr. Albas: But we will be monitoring if this issue comes up again, and we will draw on the experience of this file. Are we safe to close this file?

Mr. Bernhardt: Unless the committee would like to get a last update from the department on what has happened since.

Mr. Albas: I am happy either way. I am just asking the question.

[Translation]

Ms. Minh-Thu Quach: Since I was absent earlier, I am not sure I understand. Has Environment Canada been asked why the deadlines could not be met? Has that department held discussions with other countries to find out whether any of them were dealing with the same issues?

I would like to get an update, if possible.

[English]

Mr. Bernhardt: The reasons given by the department were basically that it was very difficult and in some cases impossible to go through all the steps in the regulatory process within the time frame. There was at one point an indication that other jurisdictions had encountered a similar problem under their domestic regimes.

I think the committee then suggested that maybe next time this convention meets to discuss amendments to the convention, this might be something Canada might wish to raise with a view to having the convention amended if it is a problem that other parties are experiencing as well.

There was a fairly noncommittal response to that, probably in a sense because it is always a fairly complicated process when a multilateral convention is opened up for amendment and amendments are being suggested by different parties. I think understandably the department didn't want to make too firm a commitment that it would take those to the table, but there seems to be some indication that it might be a subject that was discussed when future discussions on the convention were being considered.

The Joint Chair (Senator Runciman): We have a suggestion before us that we write to Environment Canada and inquire about the interaction with Environment Canada and DFATD with respect to attempts to resolve this issue, and we should ask them to advise the committee as well and keep us updated. We can go from there. Is it agreed?

Hon. Members: Agreed.

SOR/2009-197 — VOLATILE ORGANIC COMPOUND (VOC) CONCENTRATION LIMITS FOR AUTOMOTIVE REFINISHING PRODUCTS REGULATIONS

(For text of documents, see Appendix J, p. 5J:1.)

The Joint Chair (Senator Runciman): Moving on to Item 12, counsel in the past identified three problems with this, one involving a minor error in the French version and then discrepancies between the French and English versions. The third is imposing an obligation on the manufacturer and the seller of the product.

Ms. Kirkby: That is right. The department promised to make the corresponding amendments to the three relatively minor issues raised, and it also indicated that it intended to combine these regulations with others relating to volatile organic compounds.

At the meeting on June 6 of last year, the committee agreed to seek a timeline, suggesting that two years would be reasonable. The department responded that it is difficult to confirm that the amendments would be completed within two years, but its goal is to publish the regulations within a reasonable time frame.

Since eight months have passed since the last exchange of correspondence, the department may now be in a better position to confirm a projected time line.

The Joint Chair (Senator Runciman): You are suggesting that we might make an inquiry.

Mr. Brown: I think it's fair to write back and ask for a firm time line.

The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.

SOR/2008-197 — STORAGE TANK SYSTEMS FOR PETROLEUM PRODUCTS AND ALLIED PETROLEUM PRODUCTS REGULATIONS

(For text of documents, see Appendix K, p. 5K:1.)

The Joint Chair (Senator Runciman): Next is Item 12 under the heading "Progress.'' We have raised a number of matters in connection with these regulations and all but one have been resolved by amendments. We are advised that the remaining amendments are expected to be published in the Canada Gazette at some point this year.

Is there anything else? Committee, what is your wish? Continue to monitor the file? Agreed?

Hon. Members: Agreed.

SOR/2011-1 — RULES AMENDING THE RULES OF PROCEDURE FOR BOARDS OF REVIEW

(For text of documents, see Appendix L, p. 5L:1.)

The Joint Chair (Senator Runciman): Item 14 deals with drafting errors, but counsel has identified a new error.

Ms. Kirkby: By way of information, under the Canadian Environmental Protection Act, the minister can establish a board of review to inquire into matters raised in a notice of objection to a proposed regulation or a decision made under the act — the boards of review.

A discrepancy was identified between the English and French versions of one of the provisions of the rules of procedure for boards of review. The discrepancy is that the English version refers to the service of an application, while the French version refers to the service of both an application and a bill of costs. The department responded that the application necessarily includes the bill of costs, and so the redundancy is to be removed from the French version.

Since this file was last before the committee, the department has indicated that the promised amendments are expected to be published in Part I of the Canada Gazette at the beginning of 2014. Prepublication has not yet occurred.

Mr. Clarke: I think we should monitor it and see what happens in the spring.

The Joint Chair (Senator Runciman): Is the committee fine with that approach?

Mr. Bélanger: We would have a report in the fall?

Mr. Bernhardt: Yes.

The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.

SOR/2011-169 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS

(For text of documents, see Appendix M, p. p. 5M:1.)

The Joint Chair (Senator Runciman): Item 15 on our agenda falls under the heading "Progress (?)''. These amendments made 18 corrections to the regulations on matters raised by the committee, but counsel has discovered new problems with the amendments.

Mr. Bernhardt: That is correct. There are eight further amendments promised. They were to have been the subject of public consultations in the spring of 2013. However, in its October letter, the department states its intention was now to hold the consultations before the end of the current fiscal year. As we have pretty much arrived at the end of the current fiscal year, perhaps a further progress report would be in order.

The Joint Chair (Senator Runciman): Counsel is recommending requesting an update. Is it agreed?

Hon. Members: Agreed.

SOR/2012-144 — ORDER 2012-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST

(For text of documents, see Appendix N, p. 5N:1.)

SOR/2013-78 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

(For text of documents, see Appendix O, p. 5O:1.)

The Joint Chair (Senator Runciman): Next are Items 16 and 17 under "Action Promised.''

With regard to No. 16, again there are discrepancies between the French and English versions. We have been given assurances that changes will be made this spring.

In No. 17, we have had commitments to remove what has been described as "subjective language'' from the regulations. They have given an indication that will happen in 2015.

On Item No. 17, you may want to give a brief comment with respect to "subjective language.''

Mr. Bernhardt: Certainly, Mr. Chair. What the committee originally objected to here was an open incorporation by reference of the document that was prepared by the Canadian Food Inspection Agency. At the committee's request, that provision was replaced, but what replaced it was a very vague standard.

There was also some question as to whether the document that had previously been incorporated was still being used, because it did appear to be so from the agency website. It turned out in the end that the website was in need of updating. I confirmed that has been done.

It seems now rather than making a further amendment to the provision, what is being proposed is to wait until 2015, because when the new Safe Food for Canadians Act comes in, the entire regulations would disappear. Since it would probably take until 2015 to process the amendment anyway, I would suggestion that is a promise of action here.

The Joint Chair (Senator Runciman): So for both 16 and 17 you're suggesting we continue to monitor the files.

Mr. Bernhardt: Monitor the files.

SOR/2013-183 — REGULATIONS AMENDING THE TRAFFIC ON THE LAND SIDE OF AIRPORTS REGULATIONS

(For text of documents, see Appendix P, p. 5P:1.)

The Joint Chair (Senator Runciman): Under "Action Taken,'' are any comments required or is it self-explanatory?

Mr. Bernhardt: No, the note explains how these amendments addressed a concern the committee had with the offence provisions in the regulations.

SI/2013-93 — ORDER FIXING AUGUST 14, 2013 AS THE DAY ON WHICH SECTION 4 OF THE ACT COMES INTO FORCE

SI/2013-94 — ORDER AMENDING ORDER IN COUNCIL P.C. 2013-858

SI/2013-95 — ORDER DECLINING TO REFER BACK TO THE CRTC DECISION CRTC 2013-263

SI/2013-96 — TRANSFER OF DUTIES ORDER (INTERNATIONAL EXPERIENCE CANADA PROGRAM UNIT)

SI/2013-97 — PROCLAMATION PROROGUING PARLIAMENT TO OCTOBER 16, 2013

SI/2013-98 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON OCTOBER 16, 2013 (DISPATCH OF BUSINESS)

SI/2013-100 — PROCLAMATION DESIGNATING "FIRE PREVENTION WEEK''

SI/2013-103 — ORDER FIXING OCTOBER 1, 2013 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SOR/2009-201 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS AND THE CANADA STUDENT LOANS REGULATIONS

SOR/2009-271 — NATIONAL SECURITY REVIEW OF INVESTMENTS REGULATIONS

SOR/2009-323 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (ELECTRONIC STABILITY CONTROL SYSTEMS)

SOR/2010-137 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

SOR/2010-250 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS

SOR/2011-135 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS

SOR/2012-179 — CJFTA RULES OF ORIGIN REGULATIONS

SOR/2012-180 — CJFTA RULES OF ORIGIN FOR CASUAL GOODS REGULATIONS

SOR/2012-181 — CJFTA TARIFF PREFERENCE REGULATIONS

SOR/2013-54 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS

SOR/2013-76 — REGULATIONS AMENDING THE PROCESSED PRODUCTS REGULATIONS

SOR/2013-137 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2013-151 — REGULATIONS AMENDING THE RADIO REGULATIONS, 1986

SOR/2013-152 — ORDER 2013-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2013-153 — ORDER 2013-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2013-154 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2013-155 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS

SOR/2013-161 — GENERAL PREFERENTIAL TARIFF WITHDRAWAL ORDER (2013 GPT REVIEW)

SOR/2013-162 — LEAST DEVELOPED COUNTRY TARIFF WITHDRAWAL ORDER (2013 GPT REVIEW)

SOR/2013-163 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (RAW CANE SUGAR)

SOR/2013-164 — ORDER AMENDING THE OUTWARD PROCESSING REMISSION ORDER (TEXTILES AND APPAREL)

Mr. Bernhardt: If I may, there are 29 Statutory Instruments Without Comment listed.

The Joint Chair (Senator Runciman): That completes the regular agenda. I am told you all have copies of the budget in front of you.

Mr. Bélanger: So moved.

The Joint Chair (Senator Runciman): We are all in favour of the budget as presented, without questions?

Mr. Albas: If it's possible to have this sent with the package, it makes it easier, because I was having to read it and review it while going through files. If just makes it more difficult to track. If that's possible, I personally would value that.

Senator Moore: You have to multitask.

The Joint Chair (Senator Runciman): The meeting is adjourned.

(The committee adjourned.)

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