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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 8 - Evidence - May 15, 2014
OTTAWA, Thursday, May 15, 2014
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.
Senator Bob Runciman and Ms. Chris Charlton (Joint Chairs) in the chair.
The Joint Chair (Senator Runciman): As the first order of business, I'd like you all to help me in welcoming back our joint chair.
Hon. Members: Hear, hear!
The Joint Chair (Ms. Charlton): Thank you.
The Joint Chair (Senator Runciman): She's had a few challenges in the past few months, and it's great to see her back.
SOR/2002-145 — MANNER OF DISPOSAL OF DETAINED, SEIZED OR FORFEITED GOODS REGULATIONS (PRECLEARANCE ACT)
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 A, p. 8A:1.)
The Joint Chair (Senator Runciman): With regard to Item 1 under "Special Agenda Items," concerns were raised initially in 2004 involving regulations that appear not to bear any relationship to the act itself. The department has indicated they would make amendments with the conclusion of negotiations on a new preclearance agreement. We've talked about this; I'm sure you remember.
The response we received on April 28 acknowledged the problem and indicates they've been risk-managing the discrepancy and I think are optimistic — perhaps that's too strong of a word — that a preclearance agreement was likely to be finalized this summer.
Peter Bernhardt, General Counsel to the Committee: That's correct, Mr. Chair. As you indicated, the committee wanted this file brought back for an update at the May 1 meeting. The department indicated it wanted to provide additional written comments. Those comments were received April 30, so the decision made at the last meeting was to put the matter over until this morning.
The reply received before the last meeting is dated April 28 and dealt specifically with two matters concerning sections 3 and 5 of the Manner of Disposal of Detained, Seized or Forfeited Goods Regulations.
The first point deals with subsection 3(2) of those regulations, which provides that goods detained and not transferred to a Canadian officer are forfeited to the Government of the United States on the earlier of the abandonment of the goods and the expiry of an applicable period of detention.
The problem here, however, is that, under the act, only goods that have been seized are subject to forfeiture. The department had indicated they would delete the reference to "forfeiture" because the intent of the provision was simply to provide for transfer of responsibility to the United States for goods left in a preclearance area.
At that time, the department advised that only goods that had been seized were being made subject to forfeiture under subsection 3(2). The April letter, however, now advises that in practice no goods are forfeited to the United States under section 3(2); it seems the provision simply isn't being applied.
Section 5 is a provision in the regulations that requires a U.S. preclearance officer to transfer lawfully seized goods to a Canadian officer for disposal. The difficulty with that provision is that under section 28 of the act, goods that are lawfully seized are subject to forfeiture procedures under U.S. preclearance laws, not Canadian laws.
Back in 2007, the department wrote, "We agree the vires of section 5 is questionable and it should be repealed." Nevertheless, in the course of our December meeting with the departmental officials, they advised that all goods seized under the act are transferred to Canadian officers.
We reminded them of their previous statement and asked whether they would characterize this as acting in good faith. Their reply was that it was not acting in good faith. It was at that point they suggested that perhaps they should provide further comments in writing rather than continue the discussion in this vein.
There was reference at that time, because of the relative risks involved and given that negotiations on a new agreement were ongoing, that that justified basically ignoring any concerns there might be as to the legality of section 5.
The letter we received in April suggests that only goods that are minor contraventions are "disposed of" by U.S. officers. Everything else is turned over to Canadian officers in contravention of the Preclearance Act. This is justified again because changes cannot be made while negotiations are ongoing. It stated the government "has been risk managing this discrepancy in the regulations, and will continue to do so until such time as the Act can be amended." In other words, they're ignoring any question of the legality.
As for when amendments might be made, the letter states that Public Safety Canada is now the lead negotiator, and Public Safety Canada is aiming to finalize a new agreement by early summer. In the course of our December meeting, we were given to understand that that is considered a very optimistic time frame by everyone else involved in the process.
The Joint Chair (Senator Runciman): Comments?
Senator Batters: It seems like we're making progress, which is good, and their last reply was more positive than previous ones had been. With that in mind, I think we should monitor until they do have this new agreement. We could put it on our schedule for the first meeting back in the fall, because early summer would be June. Considering it would be an optimistic time frame, maybe we could put it on the agenda for our first meeting back in September and see where they are.
Mr. Bélanger: Are we to understand that the intent is to include in the negotiations where they would like the regulations to be so that once they've concluded the negotiations, the thing would flow? Is that the target?
Mr. Bernhardt: I think so. For example, in section 5, I think things will likely proceed such that the act will be amended to reflect what has been done in the regulations. With the experience of a few years, it has been decided there's another way these things should be dealt with, which is basically how they're being dealt with.
Mr. Bélanger: So the negotiations, then the regulations and then the act, as opposed to the act, the regulations and then negotiations.
Mr. Bernhardt: Basically, yes.
Mr. Bélanger: Thank you.
The Joint Chair (Senator Runciman): Senator Batters has suggested we bring this back for our first meeting in the fall to see if they were to accomplish the stated goal. Are we in agreement with that?
Hon. Members: Agreed.
SOR/2004-109 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS
The Joint Chair (Senator Runciman): Item 2 under "Special Agenda Items" concerns regulations that grant permission for and place conditions on the deposit of effluent from a mill into a waste water system.
SOR/2004-109 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS
Ms. Borkowski-Parent: This file concerns the absence of enabling powers in the Fisheries Act to allow certain provisions of the regulations to be made. More particularly, subsection 36(3) of the act prohibits the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance may enter any such water.
The regulations impose restrictions on the operator of a mill who places effluent into a water purification system. That definition is so broad as to include a municipal sewer treatment system, which is not meant to be included in the framework of the act. The department has always maintained the validity of its regulations, but if we accept that interpretation, the only possible logical consequence is that whenever a Canadian household deposits water into the municipal system, it may be in breach of the provisions of the Fisheries Act.
To give you some background, briefly, in 2009 the department had committed to making the necessary amendments as well as developing new regulations concerning deposits of effluent in wastewater systems. However, when the regulations were pre-published, the committee noted that they did not contain the promised amendments.
In the beginning of 2010, the department however confirmed that the expected amendments would be made. The new regulations were made in 2012, but no changes to the current regulatory framework were made. At its meeting of February 27, the committee reviewed the reply provided by the department in July 2013. The committee stated that it was not satisfied by the explanations provided by the department, and wanted it to justify the fact that it had not made the corrections although it had promised them on at least two occasions in the past.
The committee also indicated that it wished to be provided with a response within 60 days. You have the letter of the department dated April 24 before you this morning. The department indicates that despite its efforts, it requires an additional 60 days to finalize its response. I wish to point out that the absence of regulatory powers was raised for the first time in 2002, and that after all this time, the department remains unable to provide a valid legal argument to justify its position.
The Joint Chair (Senator Runciman): Comments?
Senator Unger: There does need to be further input from the department on this matter. If the Department of Fisheries and Oceans has to get involved, it will delay things a lot more. They've granted an additional 60 days as of April 24, so I suggest we monitor for now.
The Joint Chair (Senator Runciman): The suggestion is that we monitor. Are we in agreement with that course of action?
Senator Unger: Perhaps when we come back, but before year end, certainly.
The Joint Chair (Senator Runciman): A review before year end.
Mr. Bélanger: Is the director general the one responsible for the department? It's not the deputy?
Mr. Bernhardt: No. In this case, that's the contact point for the committee.
There is one thing to emphasize for members: The committee will grant the extension; it is not the department that will give itself the extension.
Mr. Bélanger: This committee?
Mr. Bernhardt: Precisely.
Senator Moore: Does the 60 days count from March 25?
Mr. Bernhardt: I believe that's right.
Senator Moore: That is the date of their letter.
Mr. Bernhardt: That was their reply to the letter of February 28, so I would presume the first 60 days would run from the February letter.
Senator Moore: So it has expired.
Mr. Bernhardt: That's right. Again, this is the first chance the committee has had to have the letter before it. We received it on April 30, at which point they were asking for another 60 days. In fairness, the letter was dated the 24th, so it was 56 days.
Senator Moore: At the end of 60 days, if we wait to see what will happen — they've had this since 2002. If they don't come through with the response we're looking for, do we have ideas of what we're going to do? We should think about that. I am prepared to wait, but I'd like to know we're going to make some plan of action and not keep drifting along.
The Joint Chair (Senator Runciman): Based on what you just said, I think the sense here is that we will respond appropriately, and we will decide what is appropriate at that time.
Mr. Albas, do you have something to add?
Mr. Albas: I don't disagree with your assessment that we can take a look at this and decide a future course of action. I just remind the committee that this is less and less about when the file opened in 2002; this is more about that the government had put in place waste water regulations in 2012 and that one of the outstanding issues is that these particular regulations were not taken out.
I can understand that counsel or some committee members might say it's up to the committee to decide what's appropriate. However, if you look at how many responses we received from Mr. John Moffet on a myriad of files, for us to be asking for a substantial reply, considering again that we have many open files with them on a regular basis, it's not unreasonable to acknowledge that if they need more time to respond fully, I would much rather have a full response in 60 or so days than to have no response like we do get from some departments.
While I can understand people might want to rattle the cage of a particular department, you will see Mr. Moffet's name several times in our packages. Again, this is more about following up and making sure these regulations are removed rather than that there has been a compromise of safety.
Ms. Quach: Since this concerns the protection of water and since we have been waiting for a legal opinion since 2002 which we have not received, would it be possible to ask the minister or his officials to appear to explain what has happened in the management of the file?
We have been waiting for a response for 12 years and we do not understand why no justification has been provided to the committee. Is there some way of obtaining these responses, or at least, a tighter time frame? Because although 60 days does not seem very long, stretching over 12 years it is beginning to be very long.
The Joint Chair (Senator Runciman): We have a proposal on the floor to bring it back and decide if we want to take more aggressive action at that time. Hopefully it will meet the committee's requirements then.
Mr. Bélanger: I agree with what Mr. Albas has said, in the sense that the department seems quite busy, but is asking for an additional period of 60 days. If the committee grants that additional 60 days, the department will have to give us a response since it is itself asking for that 60-day delay.
I would be willing to accept that time frame request, and we would then expect to receive a reply in the 60 days following the letter of April 24. This is close to what Senator Unger was suggesting, except for the fact that we would be granting the department the additional time it has requested.
The Joint Chair (Senator Runciman): I think that's certainly the majority sense around the room. Are we agreed with that approach?
Hon. Members: Agreed.
SOR/2013-117 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT
(For text of documents, see Appendix B, p. 8B:1.)
The Joint Chair (Senator Runciman): Moving on to Item 3 under "New Instruments." Four points were raised and an amendment has been promised to one of them. We've been provided with satisfactory explanations on points 2 and 3, and they are reviewing a fourth.
Counsel, do you want to expand on that?
Mr. Bernhardt: I think with your summary on this file, I don't have much to add. However, I would like to emphasize for the record that these amendments removed from the Motor Vehicle Safety Regulations and the Motor Vehicle Restraint Systems and Booster Seats Safety Regulations a number of requirements for seat belt systems that related to colour transferability, staining, fading and corrosion that could stain fabric. The committee was of the view that these requirements were outside the scope of the Motor Vehicle Safety Act. For example, whether components of a belt system retain their colour has nothing to do with the safety of the seat belt, per se. The seat belt will be just as functional, safe and protective whether the colour fades or does not fade.
The purpose of these provisions was really to encourage people to use seat belts. That's obviously a laudable intent, but it falls outside the scope of the Motor Vehicle Safety Act, which is to provide safety standards for equipment and parts of vehicles.
In this case, the committee was fortunate to have had the expertise of a former member who had considerable experience in the auto parts sector. I think that helped.
Eventually, the minister agreed to remove all of these requirements except for the corrosion requirement. This particular corrosion requirement was separate from the rust requirements that related to weakening of metal. That's obviously a safety standard. This was simply a provision that said there can be no rust that could get on somebody's clothing as opposed to rust that would weaken the metal. That was still a matter of contention.
These amendments were pre-published and addressed all of the concerns but the rust concerns. To our pleasant surprise, when the amendments were actually made, they removed all of these provisions the committee had objected to, including the rust requirement.
I go through that in some detail because I think it's important to note that the committee's persistence has paid off. It took a number of years of writing to three successive ministers, but the committee's concerns have now been fully addressed and I think that's important to note. Members should take some pleasure in that.
We also had a couple of relatively minor new concerns with the amendments. As you indicated, Mr. Chair, we have one promised amendment, which is just tidying up some of this stuff. There are some satisfactory responses on the others and they're still looking into the one point, but I think these amendments represent a success for the committee.
The Joint Chair (Senator Runciman): You've referenced the former member assisting us with the background, and I assume you're talking about Senator Braley?
Mr. Bernhardt: Exactly, yes.
The Joint Chair (Senator Runciman): We will want to put that on the record.
Are there any comments? We're happy?
Mr. Brown: I would write back seeking the results of the review and ask if they're ready to pursue and address point number 4.
The Joint Chair (Senator Runciman): Is there agreement?
Hon. Members: Agreed.
SI/2013-102 — PROCLAMATION DECLARING THE REPRESENTATION ORDER TO BE IN FORCE EFFECTIVE ON THE FIRST DISSOLUTION OF PARLIAMENT THAT OCCURS AFTER MAY 1, 2014
(For text of documents, see Appendix C, p. 8C:1.)
The Joint Chair (Senator Runciman): Item 4 deals with a drafting error in the representation order, but counsel has advised that it cannot be amended without reconvening the Electoral Boundaries Commission. I'm not sure what that involves, but I'm sure counsel can explain.
Mr. Bernhardt: That's correct, there's a drafting error in the order. I think it simply reflects the failure to transfer the language the Electoral Boundaries Commission for Newfoundland and Labrador had in its report that it was making recommendations to the legislative language that would be used in the proclamation, which is that "there shall be." The order implements the recommendations.
As members well know, the Electoral Boundaries Readjustment Act provides that after each census there is a boundaries commission established for each province, and then transmission of a report to the Chief Electoral Officer by each boundaries commission. At that point, the commissions basically cease to be; they're functus. There's then a report that goes through a parliamentary procedure. After that, the Chief Electoral Officer prepares a draft order and forwards it to the responsible minister.
Back in the late 1990s, in connection with a previous order that the Chief Electoral Officer tried to amend, the committee and the Chief Electoral Officer eventually agreed that making an amending order would require reconvening the Electoral Boundaries Commission, going back to the start and through this whole process all over again.
In this case, I don't think there's any doubt about the intent of the portion of the proclamation in question, which is to establish the seven electoral districts for Newfoundland and Labrador. In this case, probably no further action is necessary. Nevertheless, we simply pointed out the drafting error to the Chief Electoral Officer. I wouldn't suggest that it warrants going through the entire process a second time.
Senator Nancy Ruth: I suggest we close the file.
Mr. Bélanger: We have seen this type of situation twice now, where there is an error and the error cannot be corrected. What would have to be changed in the regulations or in the act so that an error can be corrected without having to start the whole process all over again? What would it take?
Mr. Bernhardt: I suppose the solution, if it was considered that some solution was necessary, would be to amend the act to provide a mechanism for correcting these sorts of typographical errors. Obviously, there would be some concern that substantive changes not be made in the course of the process, but the downside of not allowing changes to be made at all is that once in a while you'll get a minor typographical error you have to live with.
The Joint Chair (Senator Runciman): Counsel, could that be incorporated into a housekeeping bill? Would it fit into that?
Mr. Bernhardt: I suppose it could if Parliament wished to expressly correct it.
The Joint Chair (Senator Runciman): But it's not normal.
Mr. Bernhardt: No, I don't think that's ever been done.
The Joint Chair (Senator Runciman): We have a recommendation from Senator Nancy Ruth that the file be closed. Are we in agreement?
Hon. Members: Agreed.
SOR/2002-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, VI AND VIII)
(For text of documents, see Appendix D, p. 8D:1.)
The Joint Chair (Senator Runciman): Next is Item 5 under "Reply Unsatisfactory (?)." It involves a requirement to provide records and there is no explicit authorization in the act. The department has advised counsel that the act will be amended when it's next reviewed, but apparently there are no plans on the books for a review at this time.
Mr. Bernhardt: That's correct. The committee has generally been of the view that requirements to submit documents and provide information require express statutory authority.
In this case, the committee was willing to conclude, however, that the power to make regulations requiring people to provide records could be implicitly seen to follow from powers to enter and inspect that are conferred on the minister under the act, and the duty imposed on people who are in possession of places inspected or audited to provide information.
At the same time, the committee felt it would be preferable to clarify this either by putting a provision in the Aeronautics Act expressly giving the minister authority to require information or authorizing regulations to that effect.
In its last letter, the department said it will take the committee's views into consideration when it reviews the act but doesn't have any time frame for doing that. It asks the committee to consider placing the file on hold.
On the one hand, there may be some suggestion that what was previously an undertaking to amend the act has now devolved into an undertaking to consider amending the act. As well, in previous correspondence the committee expressed the wish that the amendment should be made within a reasonable period of time.
On the other hand, the committee has concluded the power to make the regulations in question is implicit in the act and is simply asking for clarification, an amendment to the act that would clarify that. It's really up to members to decide what they want to do with the file.
Mr. Albas: Thank you for counsel's work on this. Obviously, the committee has taken the view that while we'd like to see some clarifying amendments, the minister does have the authority, and the reasonable expression of that is the act to inspect right now and to compel those documents.
I would simply suggest we monitor the file. Again, I think the request to place the file on hold is their interpretation of how we would handle it. I think we would simply monitor the file, not hold anything, and wait for the forthcoming amendments.
The Joint Chair (Senator Runciman): Is there anyone who wishes to add to that or has concerns about that approach?
Senator Moore: Do we have any indication when these amendments might proceed?
Mr. Bernhardt: The last letter in February was basically to the effect that they have not established a date for review.
Senator Moore: Can you ask them to establish it?
Mr. Bernhardt: We can write back, at the committee's instruction, from time to time and ask whether or not they have yet established a date for their review.
Senator Moore: Can we ask them to do that? This is not that complicated, is it?
Mr. Bernhardt: No. That leads to the question of whether the committee wants to wait for an overall review. I don't see the need to request a complete review of the act to make a minor clarifying arrangement. On the other hand, the committee could use the same argument to conclude that perhaps the amendment could proceed separate of a complete review.
Senator Moore: Could it happen with a miscellaneous statute approach?
Mr. Bernhardt: I think the committee asked that at one point, and the view from the Department of Justice is that it wasn't on, for whatever reason.
The Joint Chair (Senator Runciman): Are you suggesting something specific, Senator Moore? I'm not clear.
Senator Moore: I'd like to know what the time frame is here, but they don't seem to be forthcoming about it.
The Joint Chair (Senator Runciman): We have a suggestion from Mr. Albas, and Ms. Quach would like to say something.
Ms. Quach: I agree with Senator Moore that we should propose a time frame. Basically, if a minor change is being requested, I think it would be reasonable to ask for a time frame.
I do not know at what point we can ask for one. When we ask for a date, they are the ones who decide on the timeframe, but it would be important to obtain at least a response date.
Senator Moore: Could we suggest asking whether or not they think they might be able to bring this to a conclusion by the end of this calendar year? I'd like to have some sense of when this is going to happen.
Mr. Albas: I can understand why members of the committee would want to see a further timeline. I would just make a few minor points.
First of all, we have already taken the position that they are acting within the spirit of the regulations as they are now placed. We've already approved that they have the capacity to do this. We would like to see further clarification. I think that's because we like to see the best in practices being used throughout the federal regulations and statutory laws.
We have many different files with this agency and I would hate for us to try and move something that we already inherently agree with — that they do have the power — and to take valuable resources away from other issues where we would like to see changes. There are only so many resources and we've already gotten the department to agree that changes should be forthcoming. To continue to go down and ask for timelines, et cetera, I would much rather do that for files where there is more value to the public in pursuing timelines and amendments.
Again, the committee is right to take concern about every regulation, but there's more to be gained by picking and choosing our battles a little more carefully.
Senator Hervieux-Payette: Is it complicated to do what we ask? I am asking our counsel whether this is something that requires a lot of work, or whether it can be done quickly. I can understand what you say, except that, if this is benign, if it requires an hour of work, it would be preferable for things to be in order. This committee is not one to let things go, even if, in summary, things are good without being in compliance.
So if there is some minor change to make, I do not see why we would postpone it. We can adopt the same approach for the rest of the book, and say that it is okay, that things still work, but we are not satisfied and it is not precise.
Mr. Bernhardt: The amendment the committee is seeking is simple, yes.
Senator Hervieux-Payette: It's very simple.
Mr. Bernhardt: On the other hand, the committee has recognized that that would be for the purposes of some clarification.
As a possible suggestion, we could write back to the department suggesting that the committee has considered their request and is willing to exercise some patience, but if it looks like there's not going to be a review for some considerable period of time, they might wish to reconsider the miscellaneous statute law amendment process, if that's acceptable.
The Joint Chair (Senator Runciman): It does sound good. Are we in agreement with that approach?
Hon. Members: Agreed.
SOR/2011-262 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
(For text of documents, see Appendix E, p. 8E:1.)
The Joint Chair (Senator Runciman): Item 6 involves criteria for which a person cannot be the sponsor in a sponsorship application. We raised a number of points initially. The outstanding matter involves a prohibition from sponsorship if a person has been convicted of an offence that results in bodily harm to someone the sponsor is dating or has dated. There's no legal definition of "dating." The term is vague and subjective, and it is no doubt going to pose difficulty for a judicial review. The department is indicating it hasn't been challenged in court.
I guess they are quite content. Is that the conclusion, counsel?
Ms. Borkowski-Parent: That sums it up nicely.
I would like to go back to the first two points, where we received replies that could be considered satisfactory.
Paragraph 133(1)(e), describes the conditions under which a person cannot be the sponsor in a sponsorship application. One such condition is that the person cannot have been convicted of "un acte criminel mettant en cause la violence" or, in English "involving the use of violence." The English version appears to be more direct and specific, but it seems that the phrase "involving the use of violence" is rendered in a variety of ways in French in the Criminal Code. In light of that, the department's explanation could be deemed satisfactory.
The next issue was which specific offences were covered by the phrase "involving the use of violence" and who is responsible for determining the nature of the offences in question. According to the department, the person must have committed an indictable offence punishable by a maximum term of imprisonment of at least 10 years. This response is also satisfactory.
However, the department's explanation of the matter of the romantic relationship is less clear.
According to this provision, individuals are prohibited from being a sponsor if they have been convicted of an offence that results in bodily harm to "someone the sponsor is dating or has dated, whether or not they have lived together, or a family member of that person." The problem is that the concept of dating, which has no legal definition like the term "conjugal partner," is vague and subjective. Thus, it is left up to a public servant to determine what does or does not constitute dating.
Counsel tried to determine whether there were criteria for exercising this administrative discretion. The department provided an operational bulletin which contains, according to the department, certain definable characteristics. After consulting said document, we are forced to conclude that the romantic relationship is defined as a "current or ex-boyfriend/girlfriend." This is still very vague.
As a remedy to this lack of precision, the department could adopt broader criteria in order to make to use of the term "dating" unnecessary, or it could develop a definition of "dating."
As an example, the following is a definition that is found in an American law and is used in a similar context to the one that concerns us: "Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context." This definition at least has the merit of demonstrating that it is possible to introduce objective criteria while maintaining a certain flexibility.
In its letter of December 23, 2013, the department emphasized that the government has the discretion to decide whether to communicate its policies by administrative or regulatory means and that the term has not been challenged in the courts since the sponsorship ban has come into force. While the executive branch has various means for communicating its policies, there is still a significant difference between communicating public policies and legislating. In this instance, paragraph 14(2)(e) of the act gives the governor in council sole authority to make regulations concerning sponsorship. This enabling provision leaves no room for discretion and arbitrariness. It is spurious to argue that the wording of a regulation must be valid because it has not been challenged in the courts. Furthermore, it puts the onus on the individual to pursue lengthy and costly legal proceedings to obtain clarification.
Ms. Ambler: I, too, looked up "dating" definitions when I read this. The one that you found is better than the ones I found. Clearly it's not just a translation issue. You make the point, rightly so, that the mere fact it hasn't been challenged is not a good enough reason to leave it alone.
I think that we do have to take some action on this, so I would suggest that counsel provide the committee with a draft response, perhaps including that definition as a suggestion and as a proposal, a way to fix the issue.
Ms. Quach: I agree with what has just been said.
The Joint Chair (Senator Runciman): You agree with that approach? So you're asking counsel to prepare a draft response that the committee can review at its next meeting?
Ms. Ambler: Yes, please.
Mr. Bélanger: I have another problem with this situation. The counsel, the committee's legal expert who replaced you, Madam Counsel, while you were on maternity leave, could not find the administrative bulletin the department referred to. If there is a situation where a person has to go and defend himself before the courts and cannot find documents such as an administrative bulletin, there is a problem. Furthermore, acts or regulations are documents that are easily accessible. When the department decides that legal interpretation has to be relegated to an administrative bulletin, I find this somewhat problematic.
There is indeed a legislative aspect which, if one depends on administrative bulletins, is neglected and should not be. If that argument could be taken into account in our counsel's reply, I would appreciate it.
Mr. Clarke: I guess I could offer another suggestion. We could sit down and form a special committee to study this. We could get some of our older statesmen and younger MPs, and they could come to agreement on what "dating" actually is in this day and age.
The Joint Chair (Senator Runciman): Thank you for that helpful suggestion.
Mr. Albas: I have to confess, Mr. Chair, that when I talked to my wife about the fact that we were studying this file, she asked the question: "What do you know about dating?" It's actually somewhat reassuring for me that she would say that.
Getting back to the cut and thrust of the issue, I do agree with what Ms. Ambler has proposed as a course of action. I want to point out that the administrative bulletin is exactly that, a bulletin meant to communicate to the officers who deal with these cases.
As I've brought up many times before, there are two schools on regulatory administrative law. You want to have discretion, and when you pay someone very well who knows their job inside out, you would hope that they would apply the discretion fairly and on a case-by-case basis. I'm very comfortable with the current situation because this is a particular incidence where I think the government rightly does need a lot of discretion because we can't even define, in a narrow fashion, what dating is.
I do think, though, that the current course of action would be helpful for the public to have a common language that could be explained to everyone. I think that's an important part, but we want to make sure that we are not hamstringing the ability to ban people who will abuse people coming to this country. I think that's important to point out. As long as we are working toward towards a common regime where everyone knows their responsibilities and understands the obligations, I think that this is a good course.
The Joint Chair (Senator Runciman): We have the suggestion that counsel prepare a draft response and we can consider amendments or changes when it is before us. Do we agree with that course of action?
Hon. Members: Agreed.
AMENDMENTS TO THE FEE SCHEDULE: FEES TO BE PAID FOR MARINE NAVIGATION SERVICES PROVIDED BY THE CANADIAN COAST GUARD
(For text of documents, see Appendix F, p. 8F:1.)
The Joint Chair (Ms. Charlton): Moving on to the items under "Part Action Promised," No. 7 relates to the fees to be paid for marine navigation services provided by the Canadian Coast Guard. The committee had asked for clarification about two definitions in particular. We've received one satisfactory response and one promise of action.
Mr. Bernhardt: I'd simply add that these amendments also addressed nine points that the committee had previously raised in connection with these fees.
Mr. Vellacott: I think we should write back asking for a timeline so we get this dealt with. They look like they're proceeding on this and they don't have any objective disagreement with that.
I found it rather interesting. I learned a new word, "portmanteau," which is not common but can be defined as a suitcase with two compartments. It also means "blended," so I think that's the use of it here. Take "radar" and "beacon" and blend them and you have "racon."
I looked it up in the dictionary. As the analysis says, there is that definition in the dictionaries, at least the online ones, in a number of places — a radio transponder and radar beacon. There are also some images for this, and three of them are to do with radar beacons. Three pictures are raccoons, so about 50 per cent of the images are correct here.
In view of that, it's simply a matter of taking their word, but do ask them for a timeline. That would be my suggestion in view of the analysis here.
The Joint Chair (Ms. Charlton): Is that agreed?
Hon. Members: Agreed.
SOR/93-246 — Citizenship Regulations, 1993 (As Amended by SOR/94-442, SOR/95-122, SOR/97-281, SOR/2009-108 and SOR/2010-209)
(For text of documents, see Appendix G, p. 8G:1.)
The Joint Chair (Ms. Charlton): Next is Item 8, Citizenship Regulations, 1993. On our behalf, counsel had raised 15 points. We've received a commitment to deal with 5 of them. The other 10 are essentially taken under advisement now.
Ms. Borkowski-Parent: The promised amendments concern points 2 to 5 and 11 of counsel's letter of August 23, 2012. Point 2 involves correcting an omission and making the provision in question consistent with the procedure set out in the rest of the regulations. Points 3 to 5 concern fixing drafting errors and point 11 pertains to rectifying a discrepancy between the English and French versions. Regarding the other 10 points, the department is studying points 1 and 6 to 10 and plans to consider the committee's comments at the appropriate time. Amendments were promised for points 12 to 14, but they remain under study. The department did not respond to the substance of point 15 and continues to analyze the issue. It should be asked where its efforts stand, when it expects to provide the outstanding responses and when it plans to make the required amendments.
In addition, the department could be asked to clarify some of its explanations. The first, the definition of foreign service officer, includes the expression "in a nearby country," a phrase that is inherently vague. For example, must a country be adjoining to be considered nearby? Judging by its letter of December 17, 2013, the department does not seem able to define what a nearby country is, so the question is what value this distinction adds in the first place. The department mentions that there is a clearly established list of nearby countries, and that the phrase does not require further clarification.
After consulting said list, it becomes apparent that an application cannot be made in any nearby country but only in the country expressly designated for that purpose on the list. Moreover, it is clear that the department has a rather flexible interpretation of the concept of nearness. It could therefore be suggested that the problematic phrase be replaced by "in another country."
The issue regarding section 11 is first and foremost a matter of procedural guarantee. First, counsel wanted to know why stateless persons who have one parent who is a citizen should not receive a second written notice, as provided for the other two categories of applicants. Second, counsel wondered why no procedure is provided for certain other categories of applicants. In both cases, the department responded that the lack of procedure is deliberate, again in the name of flexibility in processing applications, and that administrative procedures are in place to deal with these applications. Once again, the rule of law is being confused with the administrative process: the first is binding, while the second is not. There seems to be a formal procedure, with its procedural guarantees, that applies to most applicants, and a procedure for other applicants which is administrative. While it is true that the procedure is relaxed, it is just as true that applicants are subject to a serious risk of arbitrary treatment.
Finally, paragraph 12(a) of the regulations provides that an applicant appearing before a citizenship judge may be required to give evidence under oath, or not, as the judge may decide.
We asked the department whether there are guidelines governing the judge's discretion. The department replied in its letter of April 4, 2013, that this provision is practically never used, and that applicants are therefore never asked to give evidence under oath. If that is the case, that provision is unnecessary and should be repealed, especially since judges wishing to ask an applicant to give evidence under oath are enabled to do so by section 13 of the Canada Evidence Act. Nonetheless, the department expects to review the procedures set out in sections 11 and 12 of the regulations and has committed to taking the committee's comments on paragraph 12(a) of the regulations into account.
Finally, the recent introduction of Bill C-24 which would amend the Citizenship Act when it is passed could change the situation. Some of the governor in council's powers would be transferred to the minister, and therefore new departmental regulations are to be expected.
Mr. Albas: I appreciate the opportunity to speak to this. I think that counsel, quite rightly, has raised a number of issues. There is certainly value in making sure that there's a balanced approach to make sure that some of these things, such as neighbouring countries versus other countries, are clarified. Perhaps those could actually be included in regulations to make it easier. We want to have a good balance of administrative fairness coupled with very clear rules.
I would suggest that we write back seeking additional information and some timelines on items that have been agreed to. Also, write back on points 2 to 5 and 11, as well as 12 to 14, seeking those resolutions. And ask the department clearly where it stands on Item 15, as well as 1 and 6 to 10.
This is quite a large file, and I congratulate counsel on being very good at going through each point. Finding that balance is, I think, our job as parliamentarians.
Ms. Quach: Citizenship processes should not contain anything arbitrary. Consequently, I agree with the requests that have been made here.
Mr. Bélanger: According to the proposed wording, rather than the expression "in a nearby country," we would use the phrase "in another country." Perhaps if we specify "in another country than Canada," it would be even more clear and precise. But since I have no context, I will leave that up to you. I did not understand whether Mr. Albas would also prefer that we ask in our response what time frame the department is anticipating. If not, I think we should include that in our request.
The Joint Chair (Ms. Charlton): Is there agreement that we write a letter, as Mr. Albas suggested, including a request for deadline?
Mr. Albas: Just to clarify, Madam Chair, I was asking that we seek additional information on points 1, 6 to 10 and 15 and that we write back seeking deadlines on the points that they have agreed to with the committee.
Mr. Bélanger: Not only that, but I was hoping that we would also inquire as to their respective timelines with respect to the 10 remaining points. I'm not looking for deadlines; I'm looking for their timelines.
Mr. Albas: I think that's what we're talking about here. On the points where they have agreed to make changes, let's seek a timeline for them to be dealt with, absolutely.
The Joint Chair (Ms. Charlton): I don't want to speak for you, Mr. Bélanger, but I think he was suggesting that we should ask for a timeline on all matters, not a deadline but a timeline on all of the issues we're raising.
Mr. Bélanger: Mr. Albas was suggesting that we know what their deadline is for the points with which they've agreed. I agree with that. I'm asking that we also seek their intended timeline for the 10 remaining points, if they have one. If they don't, we'll know; if they do, then we'll find out.
Mr. Albas: The issue I have with that — and I think it's a very small one — is that we don't know what we don't know yet. By seeking further clarification on what the department believes on those things, we can see whether or not that's reasonable.
Sometimes they may come back on three or four points where we actually agree; therefore, no time line is necessary. However, at this point I think it's better for us to get the information and bring it back to the committee, and then we can seek deadlines on the following points or timelines, as the member has suggested.
Mr. Bélanger: So if they have timelines, they'll give them to us; if they don't, they won't. What's the problem with asking?
Mr. Albas: We don't know whether there are issues of substance that need to be resolved.
Ms. Quach: If corrections have already been promised for 5 points and not for the other 10 points, could we at least ask where they stand on those other 10 points? It is important that we know where the department's works stands in order to find out what we can ask for subsequently. There are after all 10 other points for which we have received no response. There are questions for which replies are outstanding. It would be important that we at least have a situation report on where they are at in their thought process on the 10 points that were raised and for which we still have no response.
The Joint Chair (Ms. Charlton): I think there's agreement that we need more information on the 10 outstanding items. I wonder if we can square the circle by adding a line in the correspondence asking them to provide us with a timeline where possible.
Hon. Members: Agreed.
SOR/2009-315 — CANADA OIL AND GAS DRILLING AND PRODUCTION REGULATIONS
(For text of documents, see Appendix H, p. 8H1.)
SOR/2009-316 — NEWFOUNDLAND OFFSHORE PETROLEUM DRILLING AND PRODUCTION REGULATIONS
SOR/2009-317 — NOVA SCOTIA OFFSHORE PETROLEUM DRILLING AND PRODUCTION REGULATIONS
(For text of documents, see Appendix I, p. 8I:1.)
The Joint Chair (Ms. Charlton): Moving on, I suggest, with the committee's indulgence, that we deal with these Items 9 and 10 together as they are all related to the Ministry of Natural Resources. The committee had raised 92 issues with the department and 75 of them have been agreed to. On the other items, counsel would suggest that the explanations may be deemed satisfactory.
Mr. Bernhardt: That's correct. I should also add that all of the regulations under these two items revoke and replace a number of earlier regulations. The committee had a number of comments in connection with those earlier regulations. In fact, this revocation and replacement resolves a total of 155 points that the committee had raised.
For the past couple of meetings, the committee has been hearing about and dealing with these framework regulations and this project from Natural Resources known as the Frontier and Offshore Regulatory Reform Initiative. It has also been mentioned in relation to Bill C-5, which proposes significant amendments to the acts under which these are made.
These regulations represent the first phase of that project. It was completed in 2009. All three of the regulations are substantially similar and basically mirror one another.
In 2012, the department had told the committee that it preferred to deal with the comments made on these new regulations first before addressing some of the committee's other issues because its response on these might impact what it does down the road. The committee now has before it these first-phase regulations.
As you indicated, Madam Chair, we have 92 points in total. Although it took some three years, we now have responses on all these matters. In addition to the promised amendments, there are a number of points on which it's suggested for the reasons explained in the note that the reply can be taken to be satisfactory.
Perhaps I might highlight one of the concerns: references in all these regulations to structures, facilities, equipment and systems that are "functioning appropriately." This had been identified as one of a number of provisions that were vague and subjective. Initially, the department agreed to make an amendment. It's now suggesting that in this context "functioning appropriately" does provide an objective test. It means whether something is functioning to the level established in the operating manual.
There could be some merit to this. At the same time, I suppose it would be open to the committee to conclude that the provisions would be clearer if "functioning appropriately" were replaced with "fully functioning" or "functioning normally." On the other hand, I suppose it would be open to conclude that it wouldn't really be that much of an improvement. I leave that to members to decide whether that's an issue they wish to pursue.
The rest of the points deal with the use of certain terms, which have been explained satisfactorily. A number of questions were also raised with respect to recordkeeping requirements that didn't provide a time for which people had to keep these records. The department has confirmed that was their intent, and they wish these records to be kept indefinitely.
To other points, there was some question over whether procedures the NEB approves, other than those in a well or a field data acquisition program, were subject to the consent of the Governor-in-Council under the act. If they form part of what is known as the "Development Plan," they are subject to Governor-in-Council approval. The department replied both that they don't form part of the plan and that they form Part II of the plan. Obviously, these replies are directly contradictory. Further research has led us to conclude, as far as we can determine, that they do form Part II of the plan. However, only amendments to Part I of the plan require Governor-in-Council approval. While the department's explanation contradicts itself, at the end of the day it really doesn't matter.
Finally, we had requested information on what is meant by "established production accounting procedures." The department has given an explanation and provided a couple of examples. I think that's satisfactory.
Looking at this package involving the three regulations, I suppose it first falls to the committee to decide whether it wants to pursue any issue vis-à-vis the reference to "functioning appropriately." Otherwise, it would simply be a matter of asking for a progress report.
Senator Tannas: Great work on this particular file by both counsel and the working group at NRC. I suggest that we focus on the amendments that have been committed to and that we write back and ask for a timeline. Once we've declared victory on those, we can consider what remains to do, if anything.
Hon. Members: Agreed.
Mr. Albas: On the point about "functioning appropriately," I think that even though the term is somewhat imprecise, it's better than "fully functional." For example, my car works just fine, and if the oil isn't perfectly filled up or fully functional, it still works. There is some benefit to clarifying.
Senator D. Smith: This is the kind of response I like to see. Is this just one incompatible thing we have to sort out? The rest of it looks pretty good.
Mr. Bernhardt: Perhaps I'm misunderstanding. I understood from Senator Tannas that his inclination was not to pursue that.
Senator Tannas: Let's press on what we've got, and then we can decide whether we're going to quit while we're ahead or deal with the others when we see them.
Senator D. Smith: You said to let them know.
The Joint Chair (Ms. Charlton): I sense agreement.
Hon. Members: Agreed.
SOR/2006-191 — REGULATIONS AMENDING THE NUCLEAR SECURITY REGULATIONS
(For text of document, see Appendix J, p. 8J:1.)
SOR/2008-119 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE NUCLEAR SAFETY AND CONTROL ACT
(For text of documents, see Appendix K, p. 8K:1.)
The Joint Chair (Ms. Charlton): Moving on to the Items 11 and 12 under "Progress," counsel, I think we can deal with those together as both are under the Canadian Nuclear Safety Commission.
We had been promised amendments both with respect to SOR/2006-191 and SOR/2008-119. Both were promised earlier, but we've been told that amendments will be made by the end of this current fiscal year.
Ms. Borkowski-Parent: I have nothing to add other than that from the last correspondence, the amendments seem imminent. Therefore, we could monitor the file.
Mr. Anders: It's just a translation issue between English and French for both, with 10 resolved and only 2 outstanding. They have promised those by the end of the current fiscal year. It makes sense to monitor until the end of the fiscal year to ensure that happens.
The Joint Chair (Ms. Charlton): Agreement?
Hon. Members: Agreed.
SOR/97-109 — PCB WASTE EXPORT REGULATIONS, 1996
(For text of documents, see Appendix L, p. 8L:1.)
The Joint Chair (Ms. Charlton): Next is Item 13 under "Progress (?)." We've been promised amendments by the Department of the Environment, but once again those amendments have been pushed back. The timeline is that amendments will be forthcoming by the end of the year.
Ms. Borkowski-Parent: I have nothing to add. It's up to members to decide what they would like to do.
Mr. Clarke: We should write to the department and ask for a follow-up to see what their position is and if they're going to complete it by 2014.
Ms. Quach: I would like to know, given that the time period is long — since 1997 — if we can in our follow-up ask that a timeframe be provided?
The Joint Chair (Ms. Charlton): Are committee members comfortable with that?
Mr. Albas: Can I ask the member to repeat that, because it seems to be somewhat different from what the other member had said?
Ms. Quach: I would simply like to suggest that since we have been waiting for a response since 1997, we add a request for a deadline or time frame in our follow-up.
Mr. Albas: I just don't understand. We are on Item 13; is that correct?
The Joint Chair (Ms. Charlton): That's right.
Mr. Albas: I don't understand because they said it's now anticipated that the proposed amendments will be pre-published in Part I of the Canada Gazette by the end of 2014. I think Mr. Clarke suggested that we write back and follow up to ensure that the stated timeline is still on track. I think we've gone past requiring a timeline. We should just clarify whether this will go forward in this calendar year.
The Joint Chair (Ms. Charlton): I see agreement.
Hon. Members: Agreed.
The Joint Chair (Ms. Charlton): We will proceed that way.
SOR/2002-1 — PROCLAMATION AMENDING THE CHICKEN FARMERS OF CANADA PROCLAMATION
(For text of documents, see Appendix M, p. 8M:1.)
The Joint Chair (Ms. Charlton): Next is Item 14 under "Action Promised." We are informed by the Farm Products Council that they have received a definition of "chicken" and can now proceed with the proposed amendment.
Ms. Borkowski-Parent: If I may add something, I would like to say that council committed in his letter of March 18, 2014, to amending the definition of "chicken" to take the committee's comments into account.
However, the suggestion that had been made to counsel was to eliminate the definition of "chicken," so as to avoid any risk of redundancy. It might be useful to ask counsel for the nature of the amendments he intends to make and to ask for a status report on the five other points.
The Joint Chair (Ms. Charlton): Agreed?
Hon. Members: Agreed.
SOR/2003-284 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
(For text of documents, see Appendix N, p. 8N:1.)
SOR/2013-157 — REGULATIONS AMENDING THE CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS
(For text of document, see Appendix O, p. 8O:1.)
SOR/2014-39 — REGULATIONS AMENDING THE FARM IMPROVEMENT AND MARKETING COOPERATIVES LOANS AND FEES REGULATIONS, 1998
(For text of document, see Appendix P, p. 8P:1.)
The Joint Chair (Ms. Charlton): Items 15, 16 and 17 fall under the heading "Action Taken."
Is there anything to add, counsel?
Mr. Bernhardt: I would note briefly that taken together, the three items under "Action Taken" reflect a resolution to 20 of the committee's concerns. One I might highlight is Item 16, SOR/2013-157. This amends the Canadian Forces Members and Veterans Reestablishment and Compensation Regulations to ensure that a person subject to a decision concerning rehabilitation services, vocational services and financial benefits must receive written notice of the decision as well as the reasons for the decision. That's a substantive amendment.
C.R.C. C. 1015 — FAIR WAGES AND HOURS OF LABOUR REGULATIONS
C.R.C. C. 1621 — FAIR WAGES POLICY ORDER
SI/2013-99 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTIONS 6 TO 8 OF THE ACT COME INTO FORCE
SOR/94-669 — MOTOR VEHICLE SAFETY REGULATIONS, AMENDMENT
SOR/2009-320 — ALLOCATION METHOD ORDER (2010) — SOFTWOOD LUMBER PRODUCTS
SOR/2012-197 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2012-1 AND A RELATED ORDER
SOR/2012-224 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)
SOR/2013-167 — REGULATIONS AMENDING THE ORGANIC PRODUCTS REGULATIONS, 2009
SOR/2013-168 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS
SOR/2013-170 — ORDER 2013-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2013-171 — ORDER 2013-112-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2013-174 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990
SOR/2013-176 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2013-177 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF TWO TWENTY-FIVE CENT CIRCULATION COINS
SOR/2013-185 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2013-188 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2013-189 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS (MISCELLANEOUS PROGRAM)
SOR/2013-190 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE (FISHING) REGULATIONS (MISCELLANEOUS PROGRAM)
SOR/2013-192 — ORDER AMENDING THE BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION LEVIES ORDER
SOR/2013-193 — ORDER 2013-87-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2013-194 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES
SOR/2013-195 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES
SOR/2013-199 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (LATE FILING PENALTY — PRESCRIBED INFORMATION RETURNS)
SOR/2013-204 — REGULATIONS REPEALING THE FAIR WAGES AND HOURS OF LABOUR REGULATIONS
SOR/2013-205 — ORDER REPEALING THE FAIR WAGES POLICY ORDER
SOR/2013-247 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A ONE DOLLAR CIRCULATION COIN
SOR/2013-257 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES
Mr. Bernhardt: For the record, I note that under "Statutory Instruments Without Comment" are listed 27 instruments that have been reviewed and found to comply with the committee's critique.
The Joint Chair (Ms. Charlton): Thank you very much.
(The committee adjourned.)