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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 22 - Evidence - June 15, 2017
OTTAWA, Thursday, June 15, 2017
The Standing Joint Committee for the Scrutiny of Regulations met this day at 9 a.m. for the review of statutory instruments.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
The Joint Chair (Senator Day): Thank you all very much for being here, and staff, thank you for being here. We're pleased to have you here, but keep in mind that we speak about some delicate things from time to time.
We have quite a full agenda. We'll start with the item under letters to and from ministers. Item No. 1 relates to regulations prescribing certain firearms, et cetera, and we'll call on Evelyne, our general counsel, to explain what this item is about.
SOR/98-462 — REGULATIONS PRESCRIBING CERTAIN FIREARMS AND OTHER WEAPONS, COMPONENTS AND PARTS OF WEAPONS, ACCESSORIES, CARTRIDGE MAGAZINES, AMMUNITIONS AND PROJECTILES AS PROHIBITED OR RESTRICTED
(For text of documents, see Appendix A, p. 22A:1.)
Evelyne Borkowski-Parent, General Counsel to the Committee: Good morning.
First, with the amendment that was promised, there was a syntactic ambiguity raised in section 5 of the regulations for which an amendment was promised in 2011 and for which the department still has not provided a time frame.
There are two issues still being discussed on this file. By way of background, the Criminal Code defines prohibited firearms as including any firearms that are prescribed to be a prohibited firearm. Restricted firearm includes a firearm that is prescribed to be a restricted firearm. So the term "prescribed'' refers to the Governor-in-Council's power to make regulations to that effect. The regulations then prescribe each of those categories of firearms.
It bears noting that the power to prescribe is a narrow enabling power, which means that regulations should provide for the law with precision and certainty. The purpose of SOR/98-462 is to prescribe firearms, parts and accessories, et cetera, as restricted or prohibited under the Criminal Code definition. Upon examination, it was found that the description of a great many of the firearms or accessories listed in the schedule to the regulations includes phrases such as "commonly available in Canada,'' or "any variant or modified version of.'' For example, the word "variant'' is used on 82 occasions in the regulations.
So the question of how and on the basis of what criteria it will be determined whether a semi-automatic handgun is commonly available in Canada, or whether a weapon is a variant of a prescribed weapon was asked in 2005, and the file has not progressed much since. Originally the response the committee received was that there was no ambiguity in the wording of the schedule and that any uncertainty that remains would be resolved by consulting the Firearms Reference Table, which is an RCMP database available to law enforcement only.
The committee did not consider this to be a satisfactory response and has insisted, since 2008, that definitions of "commonly available in Canada'' and "variant'' be added to the regulations.
The Department of Justice indicated in 2008 being agreeable to consult stakeholders on these matters. It then became very hard to obtain any update whatsoever on the status of that file, such as the co-chairs have had to write to the Minister of Justice on four occasions in the past two years in order to get a progress report.
After consulting stakeholders on these issues for roughly eight years, the Department of Justice's last response now states that the government will not be moving forward with the committee's recommendations.
On the issue of "variant,'' after research, counsel found an affidavit related to a court case on firearm classification in which a manager of the Canadian Firearms Program lists seven criteria used to determine whether a firearm would be considered a variant for the purposes of the Firearms Reference Table. Where an ambiguity has been identified, the committee has repeatedly taken the view that individuals should not have to undertake the time and expense of court proceedings in order to determine their rights and responsibilities. It remains unclear why such criteria could not be set out in the regulations.
I'm in the committee's hands as to how it wants to proceed at this point.
The Joint Chair (Senator Day): There are two parts to this. The first one is that the department says they will not follow our recommendation.
Ms. Borkowski-Parent: The first part is the action promised. We can, at the very least, ask for a time frame for the making of that amendment.
As for the other two recommendations on which the government does not intend to follow through on — the definitions of "commonly available in Canada'' and "variant'' — I'm in the committee's hands as to what it wishes to do.
The Joint Chair (Senator Day): What have we done in the past in a situation like that, where the department says, "Well, thank you for your advice, but we don't agree''?
Ms. Borkowski-Parent: Witnesses or a report.
The Joint Chair (Senator Day): Comments?
The Joint Chair (Mr. Albrecht): Mr. Chair, on page 6 of the notes that our counsel has prepared for us I see the criteria used by the FRT. It seems reasonable that these could be a starting point of suggestions by our committee that we would recommend this very table of definitions or something similar be included to move the ambiguity on the issue of "variant,'' at least.
I would say that the committee would be wise in writing back to the minister, strongly encouraging them to incorporate these into the regulation: a) to g) on page 6.
Mr. Genuis: First of all, this is one of those rare issues we deal with that has a lot of resonance for the general public. I hear a lot from firearms owners who are concerned — and I share this concern — in general about the ambiguity around firearms legislation in basic fairness and rule of law situations where interpretations can change quite dramatically without clarity on what a variant is.
I would note as well that there is a private member's bill before the house that would seek to define in legislation what a variant is.
Regardless of where that goes, in the meantime, it's important for the committee to insist on its view and to explore next steps, such as disallowance or the tabling of a report. Again, we can give notice of disallowance, which is a way of further escalating this without going all the way immediately. Obviously, we can't do that.
We have a responsibility as an organ of the legislature to address this issue as a vital concern, and I think a legitimate one, at least for a certain segment of the public. That would be my view on this.
The Joint Chair (Senator Day): Are there any other comments?
Mr. Albrecht, your suggestion is a letter suggesting these criteria could be incorporated?
The Joint Chair (Mr. Albrecht): Strongly suggesting that those be incorporated.
On the point that Mr. Genuis raised in terms of the other private member's bill, I believe that private member's bill was defeated.
Mr. Genuis: Was it voted on already?
The Joint Chair (Mr. Albrecht): I believe it was defeated at second reading, but I would need to double check that.
Mr. Genuis: That may well be.
The Joint Chair (Mr. Albrecht): Regardless, this is a separate matter. As a committee, if we don't put this in, I'm okay with that. I'm just suggesting that as a committee we should get back to them and say we expect something like this to be incorporated into the regulation.
The Joint Chair (Senator Day): There have been four co-chair letters sent to the ministry already on this. Do you want to try one more letter, make it five?
Mr. Dusseault: I would just like a clarification. The seven criteria in the document are criteria that were used by the courts, if I understand correctly. Who uses the criteria?
Ms. Borkowski-Parent: The Canadian Firearms Program is the subdivision of the RCMP responsible for updating the Firearms Reference Table, the tool used by police in the field to determine whether a particular model is a prohibited or restricted firearm.
The information reflects administrative determinations made by employees of the Canadian Firearms Program, but it shows that criteria already exist to help determine what constitutes a variant. However, the criteria are used administratively; in other words, they cannot be used formally by the courts in their assessment.
Mr. Dusseault: Have the criteria undergone changes over time? If so, the risk of incorporating them into the regulations would be that law enforcement could make changes and use different criteria in the future.
Ms. Borkowski-Parent: It's actually only by chance that we came across this affidavit; we had to have it sent from British Columbia. That was our first indication that criteria were already in use to define variants.
As for whether these criteria have always been the ones used, I couldn't say, but that is a question that could be put to the Department of Justice. This is not information that has been provided voluntarily thus far, but it does give us a good indication that a definition or criteria describing the variants exist and should probably be included in the regulations.
Mr. Dusseault: The document is not necessarily public information?
Ms. Borkowski-Parent: It is publicly available because it is part of the documentation submitted to the courts, but it is an affidavit and so cannot be easily found.
Mr. Dusseault: Our request does not necessarily concern those criteria specifically, but we would like to ask the department to include at least some criteria in the regulations.
Mr. Oliver: I was quite struck by this. The committee's view that Canadians shouldn't have to undertake the expense and burden of court proceedings to establish rights and freedoms I think is a really important principle. I just don't know that we need to go all the way to disallowance at this point in time. If there have been four letters written, it sounds like there's disagreement between the department and the committee on this matter. Is this one where we need to have the department come and meet with us and hear their view more directly, versus just another letter that doesn't appear to be advancing the file?
We have done that periodically, where we have interviewed and met with the department. I'm wondering if that's the next step.
The Joint Chair (Senator Day): That's a good suggestion. Let's hear from other colleagues first.
Mr. El-Khoury: I believe that they should come and give some explanation.
I would like to understand from you what the word "variant'' stands for with regard to a prohibited firearm or a restricted firearm. How can we consolidate it in this way?
Ms. Borkowski-Parent: That's the crux of the issue. We don't know what a variant is. You have a list of prohibited or restricted firearms, and it will say "this model and any variant of.'' It's ambiguous in the sense that a citizen reading the regulations might not be able to determine where he or she stands.
Mr. El-Khoury: How can we clarify that for the citizens?
Ms. Borkowski-Parent: Either with a definition of what a variant is or with criteria so that the citizen has an idea of what will be used to make the determination on whether a specific firearm is a variant or whether it's commonly available in Canada.
Mr. El-Khoury: We do have some ambiguity on this, I believe.
Ms. Borkowski-Parent: Yes.
Mr. Genuis: First of all, just to quickly correct my earlier remarks, Mr. Albrecht was right: I checked quickly, and Bill C-230 was defeated. Quickly skimming the debate, it's interesting reading the parliamentary secretary's comments during the debate. He said:
. . . the RCMP determines what constitutes a variant by using long-standing, well-established criteria and a standardized process to assess whether there is a connection between the firearm in question and a firearm prescribed under the regulations.
There would be room for disagreeing about whether or not that wholly encompasses the situation. What the parliamentary secretary is saying is, basically, that there's an established process. The obvious implication seems to be that that process should be made explicit in regulation.
No one argued during the debate that it shouldn't be defined. There was some disagreement about the particulars of the definition of variant that were proposed in Bill C-230, so on that basis I suspect there might well be a multi-party consensus on the need for more clarity. I think Mr. Oliver's suggestion of calling witnesses, at least, is good.
I'm sensitive to the timeline on an issue like this, so I would like us to be able to bring in witnesses sooner rather than later and be able to make a call pretty quickly after that, as a committee, about whether we're satisfied and the next steps we want to take, rather than leave this too long again. This is one of the few times when we're dealing with something that certain elements of the public do seem to be seized with, so the sooner the better. Witnesses make sense to me.
Mr. Motz: I, too, find it disturbing that we've taken this long to try and find a definition for something that, from my experience, has created confusion. In my background of trying to find definitions and public safety issues and whether someone's going to be charged with an offence or not based on the ambiguity in the regs in the code, it is incumbent upon us to make sure that ambiguity is taken away. Any haste that we can offer to bring the officials here to make that happen sooner rather than later is certainly something that would benefit the public.
Mr. Ehsassi: I wanted to say that this is one of the oddest correspondences that I have seen so far, the reason being that on several occasions the government has admitted that there is ambiguity. So they appreciate the principle that they have to fill that gap and get rid of the ambiguity. The part I don't understand is why they concede that point but then go on to say that they will not proceed with it.
Given these sensitivities, I am very comfortable with Mr. Oliver's recommendation. We need an explanation.
Senator Day: I think there is a consensus developing that we should draft a letter explaining our concerns and invite them to come and talk to us.
Mr. Ehsassi: And explain themselves.
The Joint Chair (Senator Day): Counsel, do you have enough direction on that to draft a letter?
Ms. Borkowski-Parent: Yes, considering the need for haste that was expressed, we can ask that they appear at the first or the second meeting when the committee reconvenes in the fall.
The Joint Chair (Senator Day): Thank you.
The Joint Chair (Mr. Albrecht): I'm wondering, in terms of expediting this more quickly, if we would include these criteria in the letter, that these have been discovered, recommending that something like this happen, and in the absence of that, we would need to have them come to the committee. Could we do both, rather than necessarily say, "Well, you have to come to the committee''? If they agree that there are some possible definitions, maybe we could avoid a committee meeting.
Anyway, I think these points should be in the letter at least.
The Joint Chair (Senator Day): Are we in agreement?
Mr. Genuis: Just to throw an idea out there, is the committee at all interested in inviting a stakeholder group or stakeholder groups as well? It's not something we have done in the past, but given that the public servants may come in with one perspective, it might be useful to hear testimony about the impact of the ambiguity on people who are out there trying to understand the regulations. If we, as part of one meeting, heard from public servants as well as a stakeholder or panel of different stakeholders representing different perspectives, it might help to move the discussion along and further inform the department on what people are actually thinking on this.
Mr. Diotte: I think that's a good idea because, let's face it, we're not experts in this sort of thing. I hear from my constituents all the time, and sometimes what they're talking about just makes my head spin, because they know weapons and so forth. It would be useful to us, I think, to get it from people who deal in firearms.
The Joint Chair (Mr. Albrecht): I agree 100 per cent with both of you. My concern, however, is that this committee is not a policy committee. We're not a legislative committee, and I think those kinds of policy issues should come to the Public Safety Committee, for example. I'm concerned that if we go down this track, we're now meddling in legislative issues as opposed to regulatory issues. This committee's mandate is regulatory.
Mr. Genuis: It's just that we have to be really clear with the witnesses about our mandate. If we are going to go down this road, we have to be clear about our mandate and our expectations. This isn't an opportunity to tell us all of the legal changes you want with respect to firearms. This is an opportunity to talk about a specific regulatory issue and the issues therein.
Mr. Oliver: The co-chair made my point. I think that's exactly right. We're not a policy-setting body. We're not here to hear differing views. Bring somebody in to talk to us about what a variant means in law would be appropriate to help us understand the term, but I don't think we're here to hear from witness groups.
Ms. Borkowski-Parent: I want to echo Mr. Chair's comments on the need to make sure that we don't move into policy issues. On its face, what was raised was a purely legal ambiguity question. The comment would have been the same whether we were talking about "chickens.''
The Joint Chair (Senator Day): A variant of a chicken?
Ms. Borkowski-Parent: Yes, or whether a chicken is commonly available in Canada.
The ambiguity surrounding the term used and the fact that that leaves the determination to the sole discretion of the administration are issues that the committee encounters with frequency, with other departments as well. I just wanted to echo Mr. Chair's point.
The Joint Chair (Senator Day): Why don't we take the course of action we've already agreed upon and add the suggested criterion that appears in the letter here that is being used.
Counsel, you are okay with that? Thank you.
Mr. Di Iorio: My only comment is that I think it could be useful for the committee sometimes to have some background. I agree that it could be applicable equally to chicken, but if it was chicken, we would ask about chickens.
The only concern I have is that I don't know how to draw the line because we don't deal with substance. We only deal with process, and we could be drawn into substance. Then we'd have to call other witnesses to complement that, and, in the end, we might have just turned in circles. I'm not excluding that one day it might be useful.
The Joint Chair (Senator Day): Hopefully the department will take our suggested out and agree to take some action without having to come here for a hearing, in which event it's over. If they do come for a hearing and we find that we might need other information to rebut or understand what they have said to us, then we can do that at that time.
Thank you for that. We'll go on to Item 2 on our agenda.
SOR/2013-114 — REGULATIONS AMENDING THE ACCESS TO INFORMATION REGULATIONS
SOR/2013-115 — REGULATIONS AMENDING THE PRIVACY REGULATIONS
(For text of documents, see Appendix B, p.22A:1.)
Ms. Borkowski-Parent: These regulations amended the schedules to the Privacy Regulations and the Access to Information Regulations by deleting references to various investigative bodies that no longer exist and updating the names of other bodies. Some of the new names refer to wrong departments or to a former name of the right department.
There was some back and forth on this file, with the Department of Justice being less than forthcoming on its plan, but I can report that regulations intended to address these issues have now been published in Part 1 of the Canada Gazette. So, with the members' agreement, counsel could monitor for the final making of the amendments.
Hon. Members: Agreed.
The Joint Chair (Senator Day): Agreed on the course of action. Thank you.
The next item is one that everybody carries in his valise or his purse, Contravention Regulations.
SOR/2015-157 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
(For text of documents, see Appendix C, p. 22C:1.)
Ms. Borkowski-Parent: This is a bit technical. The regulatory formula in the French version of the amendment to Schedule III.02 to the Contraventions Regulations gave rise to questions because it seemed to replace both the description in column II and the fine in column III. In its reply, the department explained why the regulatory formula was different for that item but did not clearly address the potential impact of the removal of the fine from column III as a result of the approach used. It may be appropriate to seek further clarification on the matter.
The Joint Chair (Senator Day): Comments? Are we happy with that? Agreed? Thank you. We'll take that course of action. That's a fairly new one, in any event.
Item 4 is next, under "Reply Unsatisfactory.''
SOR/2008-135 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT
SOR/2008-136 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT
(For text of documents, see Appendix D, p. 22D:1.)
Cynthia Kirkby, Counsel to the Committee: These two orders from 2008 purported to strike out the Office of Indian Residential Schools Resolution of Canada from the schedules to the Access to Information Act and the Privacy Act. The enabling provisions only authorize entities to be added to the schedules, however, not removed from them.
As discussed in the note, the power to amend primary legislation through secondary legislation must be construed narrowly, and so the power to delete names cannot be read into the power to add names.
In 2009, the Clerk of the Privy Council indicated this issue would be clarified through the next Miscellaneous Statute Law Amendment Act. While the MSLA process has been used since then to remove other bodies from the schedules, the Clerk of the Privy Council advised, in 2014, that the MSLA process was no longer considered appropriate for addressing this matter and that other legislative options were being explored.
Since then, the committee has been attempting to get further information from the Privy Council Office about how it intends to proceed. General counsel sent a letter, at the committee's instruction, in June of 2015 to seek further details on these other legislative options, and the Privy Council responded that it was unable to make commitments on the government's upcoming legislative agenda.
In April of 2016, the joint committee again instructed counsel to seek further information, and the Privy Council replied simply that the matter will be reviewed with the goal of confirming a legislative opportunity for addressing this long-standing issue.
The most recent letter, sent to the Privy Council Office in November of 2016, has received no response at all. As a result, there is still no indication of how the issue raised in 2008 will be addressed or when.
Mr. Dusseault: There is currently an MSLA process going on. Is this something that they are considering, or is this something we have proposed to them to consider during the MSLA process that is going on at some committees?
Ms. Kirkby: This was not included in the current process. They have indicated that they no longer consider it appropriate for the MSLA process.
Mr. Dusseault: Okay.
The Joint Chair (Senator Day): We have had lots of letters on this one. Should we think about bringing somebody in to explain this? Any comments?
Counsel, you wouldn't be hopeful, I would think, that another letter will result in anything.
Ms. Borkowski-Parent: It's hard for me to say at this point.
The Joint Chair (Mr. Albrecht): The letters previously had not come over our signature as co-chairs. That may be another way to escalate it.
Mr. Dusseault had his hand up.
The Joint Chair (Senator Day): A second time?
Mr. Dusseault: Yes. Are they in the midst of taking out certain aspects without having the authorization? Has this been done frequently in the past? Are they under the impression that they do not need to obtain explicit authorization to remove organizations from the two regulatory instruments? What is their current position?
Ms. Borkowski-Parent: If I read between the lines, I would say that there may be some recognition now. This kind of regulatory authority is known as a Henry VIII clause, which grants the authority to amend the act by regulation.
The regulatory amendment is not subject to the usual parliamentary scrutiny that would apply to a bill. The enabling authority of a Henry VIII clause is interpreted as narrowly as possible. Some Commonwealth jurisdictions do not allow such a clause in their legislation.
In this case, I think there is some recognition of the fact that the authority granted under the Henry VIII clause may have been interpreted too broadly, such that other mechanisms to remove bodies from schedules were then used. A solution to remedy this particular situation is still being sought. Neither the Privy Council Office nor the Department of Justice has taken a firm stand on how to fix the problem.
Mr. Dusseault: This is a problem because, as things stand, they can do it.
Ms. Borkowski-Parent: Yes, by way of a legislative amendment to remove an element from the schedule or through language amending the Henry VIII clause so that it could be done going forward, but not in this case.
The Joint Chair (Senator Day): My concern is that we didn't even receive the courtesy of a reply to the last letter from our counsel, and the one before that was unsatisfactory. It's been around for eight years.
We have two ways to escalate this. One would be to send a letter from the co-chairs as opposed to counsel, and the other would be to bring someone in to explain this. What's your pleasure?
Mr. Oliver: Let's send a letter from the co-chairs so that they know the committee is watching it and expecting a response.
The Joint Chair (Senator Day): Are we all in agreement with that course of action?
The Joint Chair (Mr. Albrecht): Could we add to that the idea of an expected action by a certain the date?
Mr. Oliver: I have no idea what date is reasonable, but we usually give —
Mr. Genuis: Yesterday.
Mr. Oliver: We usually give a year on these things, don't we? Six months?
The Joint Chair (Senator Day): For each of the eight years they haven't done anything?
The Joint Chair (Mr. Albrecht): I would suggest six months to give a response; we expect this to be resolved within six months.
The Joint Chair (Senator Day): We will take that course of action, then. Thank you.
Now we're on to "Part Action Promised.'' We're going to skip Items 5 and 6; is that correct, counsel? We'll deal with those next time?
Ms. Borkowski-Parent: Yes, because the meeting's length was shortened after I sent the materials. We are going to skip Items 5 and 6 because they require lengthy discussions. We will bring those back for your consideration at the first meeting in the fall.
The Joint Chair (Senator Day): We look forward to having a lengthy discussion on those items in September.
The next item, then, is Item No. 7.
SOR/2016-82 — CRITICAL HABITAT OF THE NOOKSACK DACE (RHINICHTHYS CATARACTAE SSP.) ORDER
(For text of documents, see Appendix E, p. 22E:1.)
Ms. Kirkby: Three types of issues were raised in relation to this order. First was the failure to comply with statutory requirements. The Species at Risk Act required the order to be made within 180 days of the recovery strategy being included in the public registry, but the order was, in fact, not made until nearly eight years later. In addition, the Statutory Instruments Act required the order to be transmitted for registration within seven days of its making, but this time frame was not met either. The Department of Fisheries and Oceans acknowledges that it did not meet either requirement but provides no explanation for why this is the case. It does, however, indicate that new procedures have been instituted and that measures are being taken to ensure compliance with statutory requirements in the future.
The second type of issue concerns minor drafting issues, including incorrect geographic coordinates. The department indicates that these will be corrected during the upcoming fiscal year, subject to the minister's approval.
Finally, an item in one of the tables refers to "the widest zone of sensitivity (calculated using methods consistent with those used under the British Columbia Riparian Areas Regulation).'' This seemed to introduce some subjectivity in how it is determined whether a particular method is consistent with those used in the B.C. regulation.
The department's response explains that, in fact, the methods have already been calculated and that the results of those calculations are reflected in the order itself. In other words, this passage appears to describe what has already been done, rather than attempting to establish a rule for future calculations. This explanation would appear to provide a satisfactory response to the concern about subjectivity.
To summarize, the suggestion is that the third point is satisfactory. We could follow up on the action promised.
I'll just note that with respect to the failure to meet statutory requirements, there was a similar issue discussed recently in relation to a critical habitat order made by the Minister of the Environment and Climate Change, and the decision was to write to the minister in that instance, advising of the committee's disappointment that the statutory requirements had not been met and expecting it to do better in the future.
The Joint Chair (Senator Day): Do we agree with that course of action?
The Joint Chair (Mr. Albrecht): Mr. Chair, on Item 7, on the last point that our counsel pointed out in terms of failure to meet the statutory requirements, that exact same problem occurs in 12, 13 and 14, so I think it's pretty important that we make the point again very clearly that this is not acceptable and that we expect that it be resolved. But I agree that we would move in that direction.
The Joint Chair (Senator Day): Because this is a recurring problem, should we give them a shorter time frame to get this straightened out?
Ms. Borkowski-Parent: For the failure to meet statutory requirements, there is no further action, other than that the department did not meet its statutory obligations. The only thing the committee can do is to remind them that, in the future, they should abide by the letter of the law and that the committee will be watching.
Then there's the issue of time frame for the erroneous geographical coordinates where the committee might want to insert or suggest a timeline. As far as the statutory requirements, it's unfortunate, but there's nothing else to be done.
The Joint Chair (Senator Day): Ms. Goldsmith-Jones probably is aware of this, but for your information, the Nooksack Dace is a small fish found in the rivers and streams of southern British Columbia.
Ms. Goldsmith-Jones: We get very excited about these things in British Columbia.
The Joint Chair (Senator Day): That course of action is agreed upon, then, colleagues? Thank you.
The Joint Chair (Mr. Albrecht): I think it would be helpful, Mr. Chair, if you would pronounce the actual Latin name for Nooksack Dace.
The Joint Chair (Senator Day): If we have to bring them back, we'll have a lesson on that one. Thank you.
Item No. 8 is next, and it's under "Part Action Taken.'' This is a good news story, in part.
SOR/2011-31 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (ADVERSE DRUG REACTION REPORTING)
(For text of documents, see Appendix F, p. 22F:1.)
Ms. Borkowski-Parent: Yes, in part. Of the four issues raised in the initial letter, two have been addressed in regulations made in February. That leaves us with two issues of coherence to discuss.
Point 1 pertains to the requirement for a manufacturer to submit information within 15 days after receiving or becoming aware of the adverse drug reactions, whichever comes first. Since awareness would presumably follow from receiving the information, the question was put to the department as to what becoming aware would possibly add to the provision.
The department answered that the provision is formulated in this way to ensure an obligation of strict liability in the cases where there's a delay between the actual awareness and the receipt of the information. So this response could be taken as satisfactory.
As for point 4, the question was put to the department as to what records were envisioned by the requirement of section C.01.020(1). Nothing but the reports themselves are required, which makes the wording of the provision a bit puzzling, but I am in the committee's hands as to whether it wants to pursue a clarification or whether it considers the response of the department to be satisfactory on that point as well.
Mr. Di Iorio: I'm satisfied.
The Joint Chair (Senator Day): It looks like we're satisfied, that we'll let this one go. They have responded to us in part.
Ms. Borkowski-Parent: We can close the file?
The Joint Chair (Senator Day): We can close that file. Thank you.
Next is Item 9 under "Reply Satisfactory.''
SGM-7 — WEIGHTS AND MEASURES SPECIFICATIONS
(For text of documents, see Appendix G, p. 22G:1.)
Ms. Borkowski-Parent: This is a bit of an unusual case. SGM-7 specifications were reviewed by counsel some time ago, probably because they were not labelled as "draft'' when they were published on the Measurement Canada website, so there was a bit of a misunderstanding as to the status of that instrument.
Their status as a draft remains, and Measurement Canada indicated not having the intention of proceeding with officially making these specifications. That being the case, this file could be closed, and any specification or regulation pertaining to weights and measures will be reviewed by counsel if and when they are made.
Mr. Oliver: It's so seldom that we close a file, we should ring a bell. There should be a special indicator — file closed, ding.
The Joint Chair (Senator Day): We put off the long ones until September, too.
Could you tell us what an SGM-7 is?
Ms. Borkowski-Parent: Specifications for Multiple Dimension Measuring Devices. They are not registered as SOR, so that's why they have that special number attributed by Measurement Canada. It has to do with calibration of devices for weights and measures.
The Joint Chair (Senator Day): Okay. And we're closing out this file that has been around since 2003.
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): Excellent.
We'll go on to Item No. 10 under the heading "Reply Satisfactory (?).''
SOR/2011-261 — REGULATIONS AMENDING THE OFF-ROAD COMPRESSION-IGNITION ENGINE EMISSION REGULATIONS
(For text of documents, see Appendix H, p. 22H:1.)
Ms. Borkowski-Parent: The promised amendments would harmonize the English and French versions of the regulations and align the language used in the French version of the regulations with that used in the act. The department had indicated in 2014 that the regulations would be replaced and that the amendments expected by the committee would be made at the same time. The department's forward regulatory plan specified that the prepublication date of the new regulations would be 2015. The department then announced that it wanted to delay publication by one year, until 2016. The committee accepted this change while emphasizing that it expected the department to adhere to the new 2016 timetable. Further information now appears to suggest that publication in Part I of the Canada Gazette has been postponed until 2017.
Since the note included in this morning's documentation was written last September and further to consultation of the forward regulatory plan yesterday morning, I can tell you that prepublication is now expected in 2018. The numerous delays, coupled with the department's inability to adequately estimate how long it would need to make the amendments requested by the committee, were discussed when officials from Environment and Climate Change Canada appeared before the committee in June 2016. At the time, Mr. Moffet attributed the delays to the department's significant regulatory workload, as well as changes in regulatory priorities. It is up to the committee to decide whether that explanation is satisfactory.
The Joint Chair (Senator Day): Are there any comments? We'll take it as satisfactory, then, if there's no comment on that.
Mr. Dusseault: Monitor the situation. They said in 2018, so we'll monitor if it does happen.
The Joint Chair (Senator Day): So you can't close it out. Keep an eye on it. We won't do anything, and we'll wait and see what happens in 2018.
Ms. Borkowski-Parent: As per our usual practice, we would follow up with the department usually every four months to make sure that they are still on track, and if they are not, we would bring the correspondence to the committee for discussion.
The Joint Chair (Senator Day): Thank you.
Mr. Di Iorio: So we can close it and reopen it?
Mr. Dusseault: Keep it open.
Ms. Borkowski-Parent: At least for our own purposes, it remains open until the amendments have been done.
The Joint Chair (Senator Day): An active file.Thank you.
Item No. 11, firearms.
SOR/2015-213 — REGULATIONS AMENDING THE REGULATIONS PRESCRIBING CERTAIN FIREARMS AND OTHER WEAPONS, COMPONENTS AND PARTS OF WEAPONS, ACCESSORIES, CARTRIDGE MAGAZINES, AMMUNITION AND PROJECTILES AS PROHIBITED OR RESTRICTED
(For text of documents, see Appendix I, p. 22I:1.)
Ms. Borkowski-Parent: I will start by going back with a short explanation on firearms classification.
First, the Criminal Code provides for definitions of prohibited and restricted firearms, which includes various criteria. Those definitions also authorize the Governor-in-Council to prescribe firearms as either prohibited, restricted or non-restricted.
Lastly, as was discussed under Item No. 1, a firearm may fall into one of these categories because it is considered to be a variant of firearms included in those categories.
In sum, there are three tiers of designation: a firearm may be classified by virtue of the definition of the Criminal Code; because it has been prescribed by regulations; or because, in the opinion of the Canadian firearms program, it is similar enough to other prescribed firearms.
This file deals with the interplay between the definition of the Criminal Code and the operation of the regulations that prescribe different categories or classifications.
Section 3 of the regulations was amended to add to the definition of restricted firearm, the passage "except for those firearms that are prohibited firearms within the meaning of paragraph (b) or (c) of the definition of prohibited firearm'' in the Criminal Code.
Up to now, it was implicit that firearms prescribed by regulations as restricted did not include the ones that met the definition of prohibited firearm in the Criminal Code. This seemed to have changed when subsection 117.15(4) of the Criminal Code was added, which states that despite the definition of prohibited firearms in subsection 84(1) of the code, a firearm prescribed to be a restricted firearm is deemed not to be a prohibited firearm.
The department was asked whether the amendment to section 3 of the regulations was intended to be simply for greater certainty or whether there are firearms listed in Part 2 of the regulations that are prescribed to be restricted firearms that as a result of the amendment were to be the subject of the rules for prohibited firearms.
The department's response was that the amendment to section 3 was made in order to ensure that fully automatic versions of the M-16 rifle and its variants listed in Part 2 remain classified as prohibited because of the recent amendments to the Criminal Code. In short, those rifles were suddenly prescribed as to be deemed restricted firearms because of the amendment to the Criminal Code.
This would appear to be the unintended situation the department says the amendment to section 3 of the regulation is intended to address. Consequently, section 3 of the regulations was amended to state that firearms prescribed as restricted in Part 2 of the regulations specifically exclude those that meet the code's definition for prohibited firearm. So it is suggested that this explanation could be taken as satisfactory.
Should I stop here for a discussion before moving on to the next point?
The Joint Chair (Senator Day): Are we satisfied with that explanation?
I am seeing no contrary view being expressed. We are satisfied.
Ms. Borkowski-Parent: The next point deals with the new Part 2.1 of the regulations, which prescribes 15 models of rifle as either non-restricted, restricted, prohibited, depending on their characteristics. Those same 15 firearms were the subject of the 2014 order declaring an amnesty period. Since that order applies only to prohibited firearms, the department was asked the status of the amnesty with respect to the firearms that were reclassified as restricted rather than prohibited, since presumably the amnesty order wouldn't apply to them.
The department's response indicates that there were firearms that were prohibited on July 30 that as a result of the amendments to the regulations became restricted on July 31. The department further confirms that the amnesty order no longer applied to these firearms, as their legal classification had changed from prohibited to restricted, but is silent as to any potential consequences of this change.
Nonetheless, since the amnesty has now ended, there does not seem to be anything further to pursue with respect to this point.
The Joint Chair (Senator Day): Are we agreed?
Ms. Borkowski-Parent: That could be another closed file.
The Joint Chair (Senator Day): This is good.
Mr. Oliver, you heard that this is another file we're closing?
Mr. Oliver: Ding. Third in a meeting. It has got to be a record.
SOR/2015-241 — CRITICAL HABITAT OF THE WESTSLOPE CUTTHROAT TROUT (ONCORHYNCHUS CLARKII LEWISI) ALBERTA POPULATION ORDER
(For text of documents, see Appendix J, p. 22J:1.)
SOR/2016-81 — CRITICAL HABITAT OF THE NORTHERN MADTOM (NOTURUS STIGMOSUS) ORDER
(For text of documents, see Appendix K, p. 22K:1.)
SOR/2016-83 — CRITICAL HABITAT OF THE WHITE STURGEON (ACIPENSER TRANSMONTANUS) UPPER FRASER RIVER POPULATION ORDER
SOR/2016-84 — CRITICAL HABITAT OF THE WHITE STURGEON (ACIPENSER TRANSMONTANUS) NECHAKO RIVER POPULATION ORDER
SOR/2016-85 — CRITICAL HABITAT OF THE WHITE STURGEON (ACIPENSER TRANSMONTANUS) UPPER COLUMBIA RIVER POPULATION ORDER
SOR/2016-86 — CRITICAL HABITAT OF THE WHITE STURGEON (ACIPENSER TRANSMONTANUS) KOOTENAY RIVER POPULATION ORDER
(For text of documents, see Appendix L, p. 22L:1.)
The Joint Chair (Senator Day): Next is Item 12 under the heading "Reply Satisfactory (?).''
Ms. Kirkby: If members agree, I will actually address Items 12, 13 and 14 together.
The Joint Chair (Senator Day): Absolutely.
Ms. Kirkby: As was the case for Item 7, the Department of Fisheries and Oceans failed to comply with statutory requirements on these critical habitat orders as well. On Items 13 and 14, the five orders from 2016, this includes failing to transmit the orders for registration within seven days of their making, as required by the Statutory Instruments Act. In addition, the Species at Risk Act requires critical habitat orders be made within 180 days of the inclusion of the recovery strategy in the public registry. This requirement was not complied with on any of these orders, with the time frame instead ranging from 17 months to nearly four years.
Finally, the order registered as SOR/2016-84, which is Item 14, indicates it does not apply to the portion of the critical habitat in the Nechako River Migratory Bird Sanctuary. In such instances, the Species at Risk Act requires the minister to publish in the Gazette a description of the critical habitat that is in the sanctuary within 90 days after the recovery strategy is included in the public registry. This requirement was not complied with either.
For each of these orders, the Department of Fisheries and Oceans recognizes that it failed to meet its statutory requirements. While no explanation is provided for why this is the case, the department advises that it is taking measures and instituting procedures to prevent a recurrence.
If we're writing on Item 7, presumably we could just mention these as well.
The Joint Chair (Senator Day): Is that satisfactory? We'll take that course of action.
The Joint Chair (Mr. Albrecht): I would suggest that we ask them to articulate the measures they are taking, because those are empty promises, in my way of thinking. Yes, you're going to do better next time, but what protocol have you put in place?
The Joint Chair (Senator Day): Could you delve into a little bit more information on that for us?
Ms. Kirkby: To the minister or the department?
The Joint Chair (Senator Day): The department.
So that was Items 12, 13 and 14?
Ms. Kirkby: Yes.
The Joint Chair (Senator Day): Thank you.
We will go to Item 15 on our agenda, but before we do, colleagues, Senator Runciman, who is Chair of the Senate Committee on Legal and Constitutional Affairs, often has to sneak out before we're finished because that committee is getting ready and he chairs it.
I wanted to let you all know, so you can join with me in thanking him, that he's about to retire. We won't be seeing him in the fall, I expect. He is a senator from Thousand Islands and Rideau Lakes down near Brockville. He served in the provincial legislature in Ontario and has served well here in the Senate for a number of years.
Senator Runciman, thank you very much for your service to Canada.
Senator Runciman: Just one thing: I'm departing, not retiring.
Mr. Diotte: Departing doesn't sound good.
The Joint Chair (Senator Day): You see how hard it is for us to get rid of files here. Put your name on one of these.
Stay as long as you can, but I didn't want you to sneak out without paying respects to you.
Senator Runciman: Thank you.
The Joint Chair (Senator Day): We'll go on to Item 15 under "Progress.''
SOR/2016-200 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
(For text of documents, see Appendix M, p. 22M:1.)
Ms. Kirkby: SOR/2016-200 amended the French version of a section in the Contraventions Regulations, but the language in both versions of the amending regulations was not identical. The Department of Justice indicated that it would correct the error in a timely manner. The committee asked the department to provide a projected timeline for the correction by March 31. According to the department's January 11 response, the amendment will be made with other amendments to Schedule XV to the Contraventions Regulations and the amendments are projected to come into force in winter 2017 at the earliest.
The Joint Chair (Senator Day): Does this have any relationship to Item No. 3, the Contravention Regulations? Are you able to draw any parallels for us?
Ms. Kirkby: I think they are different schedules. They tend to do the schedules as items.
The Joint Chair (Senator Day): They are not related; okay.
Course of action? If anything, you've not been unhappy with progress here?
Ms. Kirkby: We could follow up in a few months and see if they are still on course.
The Joint Chair (Mr. Albrecht): Mr. Chair, they are definitely not on course because they said it would be by the winter of 2017. Are they talking about January 2018 or December 2017?
The Joint Chair (Senator Day): If they have changed their program, do they let you know, or do we have to keep asking them?
Ms. Kirkby: We will usually ask every few months, and then it will be in the note that we prepare for you if there has been a delay.
The Joint Chair (Senator Day): So as Mr. Albrecht has pointed out, there has been a delay.
Ms. Kirkby: That has to do with the vagueness of the term "winter 2017.'' We don't know what that means. I assume it means the end of this year.
Mr. Oliver: December.
Ms. Borkowski-Parent: We can ask for more clarity on their time frame when we follow up.
The Joint Chair (Senator Day): If you could follow up to make sure they are still on course, that would be helpful. Everybody is in agreement with that course of action? Thank you.
Next is Item 16 under "Progress (?).''
SOR/98-465 — REGULATIONS PRESCRIBING EXCLUSIONS FROM CERTAIN DEFINITIONS OF THE CRIMINAL CODE (INTERNATIONAL SPORTING COMPETITION HANDGUNS)
(For text of documents, see Appendix N, p. 22N:1.)
Ms. Borkowski-Parent: Members will remember this file being discussed at the last meeting in the context of the latest proposal for the miscellaneous statute law amendment.
In short, the regulations prescribe exclusions from certain definitions of the Criminal Code. Section 84(1) of the Criminal Code excludes certain handguns or barrels used in shooting competitions of the International Shooting Union. That organization changed its name to International Shooting Sport Federation in 1998. Furthermore, the list of excluded handguns provided in the regulations has not been updated since 2000. So it appears to be the case that some calibres listed are no longer used in competitions of the International Shooting Sport Federation and that others are not listed, despite being used in those competitions.
The last time this file was presented to the committee in February, members saw general disdain for the work of the parliamentary committee in the fact that many letters sent between 2012 and 2014 had remained unanswered.
The Deputy Minister of Justice provided his apologies in his last letter and recognizes the importance of responding to committee inquiries in a timely fashion. Without giving much detail, he also indicated that the Department of Justice will work collaboratively with the Department of Public Safety to resolve this issue before the end of 2017.
As there are both statutory and regulatory amendments required on this file, it remains unclear what "this'' refers to, but that is something we could follow up on.
The Joint Chair (Senator Day): Is that a satisfactory course of action here — keep an eye on this one? Okay. It's nice that we got an apology.
Next is Item 17.
SOR/2004-274 — REGULATIONS AMENDING THE FIREARMS LICENCES REGULATIONS
(For text of documents, see Appendix O, p. 22O:1.)
Ms. Kirkby: This matter involves a discrepancy between the English and French versions of the regulations. The English version requires the provision of a telephone number, while the French version stipulates that the telephone number must be current. In 2007, the RCMP confirmed that the regulations should be amended, but a decade later, the matter has yet to be resolved. The department's most recent letter indicates that the government intends to amend the Firearms Act and that the passage of the legislation will necessitate substantive amendments to the regulations. The promised amendments will be made in the context of these other more substantive regulatory amendments when they are made.
The Joint Chair (Senator Day): You have it listed as questionable progress.
Ms. Kirkby: We don't know much about what the amendments to the act will be, when the process will happen, when they will be amended and what elements will be necessary to the regulations after that, so there is some doubt about the progress on this file.
The Joint Chair (Senator Day): So you will keep monitoring this, then?
Ms. Kirkby: Sure.
The Joint Chair (Senator Day): If you have better information to bring to us, then we will know which steps should be taken next.
Is that satisfactory, colleagues?
Mr. Oliver: I'm wondering about the use of staff time tracking this one. "The telephone number has to be provided'' and "a current telephone number has to be provided'' is the difference, I think, between the translations. How much time and energy are we putting into this? Do we just let this one drop and hope the Department of Justice — I don't know which one is the right one, whether the French or the English is correct, but I'm not sure it results in any real difference. I'm sure working telephone numbers are posted for people to call in to the RCMP. I just don't know why we would waste our time on this or staff's time.
The Joint Chair (Senator Day): We have put in a lot of time, as you can see from the number of different dates that appear in here. Are we creating any sort of departmental precedent where they will say, "Oh, these guys, they will go away if you just wait them out''?
Ms. Borkowski-Parent: The committee's reputation as being persistent is well made at this point, so if the committee wants to drop this particular point —
The Joint Chair (Senator Day): Should we send a letter saying that we assume they will be doing this and that we will be taking no further steps?
Ms. Borkowski-Parent: That is also something we could do.
The Joint Chair (Senator Day): That way we're not just going away.
Ms. Kirkby: At the point that they do amend the regulations, after the entire process is complete, we will be reviewing those amendments as well. So if the same issue comes up again, we can make the same point.
The Joint Chair (Senator Day): You do that automatically?
Ms. Kirkby: Yes.
The Joint Chair (Senator Day): We don't want to waste your time when there are a lot of other important matters. You will be doing that anyway?
Ms. Kirkby: Yes.
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): Mr. Oliver, are you okay with that?
Ms. Borkowski-Parent: Close this file?
Mr. Genuis: I don't want to make a habit of this, but I find myself agreeing with Mr. Oliver again.
The Joint Chair (Senator Day): We should get you guys a little closer together.
You indicated that when they make the amendments, you'll be looking at it again. Do you open up a new file in that instance?
Ms. Borkowski-Parent: Yes, we have a file for each SOR number. Whenever a regulation is published in the Canada Gazette, we create a new file. We will definitely monitor it and examine it whenever it's made.
The Joint Chair (Senator Day): So if you close this file, when you do close it, do you send a letter to them saying, "We assume you will be doing this and we will be watching you''?
Ms. Borkowski-Parent: Correct.
The Joint Chair (Senator Day): And then you close it out.
Next is Item 18.
SOR/2011-236 — REGULATIONS AMENDING THE CRIMINAL RECORDS REGULATIONS
(For text of all documents, see Appendix P, p. 22P:1.)
Ms. Kirkby: On this file, various amendments have been promised, including updating terminology, addressing a French-English discrepancy and aligning the language of the regulations with that used in the Criminal Code.
The response from the Deputy Minister of Public Safety refers to the ongoing review of the criminal justice system and sentencing provisions, and advises that the promised amendments will be examined in the context of that review.
It is not clear whether it is still intended that the promised amendments will in fact be made or whether they will simply be examined. The timeline for the review and for any resulting amendments is not clear either.
The Joint Chair (Senator Day): Should we handle this the same way as the previous one and assume they will do it, write them a note to tell them we assume you're going to do it?
Ms. Kirkby: This one might be more complicated.
The Joint Chair (Senator Day): Something more specific.
Ms. Borkowski-Parent: This one has more elements to it, so I wouldn't recommend using the same course of action as point 17.
It is labelled as "Progress (?)'' because there is a tendency for departments to respond to the committee's request by saying, "We will do those amendments when we review our whole scheme,'' which might take a decade, for all we know. Sometimes the committee has insisted that amendments that have been requested by the committee be made independently of overarching reviews, unless the department intends to make those in the very near future, about which we don't have information.
The Joint Chair (Senator Day): So what you need is a timeline?
Ms. Borkowski-Parent: Yes, at the very least.
The Joint Chair (Mr. Albrecht): I would suggest that since no mention has been made of the amendments that were to have been made in 2015 and we're a couple years beyond that, we should request that they, first of all, confirm that they intend to proceed with the amendments and that we would expect those within a year at the latest.
The Joint Chair (Senator Day): A year? Is everybody okay with that course of action? Okay. Thank you.
I think I'm mindful of Mr. Oliver's point that we don't want to overload you with a lot of these smaller follow-ups. You must have quite a reminder system.
Item No. 19.
SOR/2013-181 — REGULATIONS AMENDING THE CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS
(For text of documents, see Appendix Q, p. 22Q:1.)
Ms. Kirkby: The outstanding issue on this file relates to the inconsistent use of the phrases "as soon as practicable'' and "as soon as feasible'' in the Corrections and Conditional Release Regulations. In addition to the issue of inconsistent usage, these phrases are also vague and subjective, as the committee recently noted in Report No. 89, and they do no more than state what would be the case in any event.
The Department of Public Safety has agreed to address the issue of inconsistent usage but does not appear to be willing to provide any guidance in the law itself about what time frames are actually required. Once again, the promised amendments will only be made in the context of the broader review of the criminal justice system.
The Joint Chair (Senator Day): Shall we pursue the same course of action as the previous one; namely, we have to find a timeline as to when they are going to do this?
Ms. Borkowski-Parent: I suggest that the committee should insist that the ambiguity be removed and ask for a time frame.
The Joint Chair (Senator Day): Agreed?
Agreed. So you will do that and let us know how you make out.
We will now move to Item 20 under "Progress (?).''
SOR/2014-304 — SAMPLES OF BODILY SUBSTANCES REGULATIONS
(For text of documents, see Appendix R, p. 22R:1.)
Ms. Kirkby: There are two outstanding issues on this file. The first relates to the French version of the definition of "qualified medical practitioner,'' which varies slightly from how that term is defined in related provisions in the Criminal Code. The French version in the regulations refers to a person qualified under the laws of "a province'' while the code refers to a person qualified under the laws of "the province.''
The department initially responded that in the context of the regulations it is proper to use the word "a'' because the intent is to reflect the standard that may be in place in any of the provinces and not that of a particular province. This seemed to suggest that the difference between the regulations and the code was both substantive and intentional.
The committee decided at its meeting on May 19, 2016, to seek further explanation on this point. A more fulsome response was provided in December and may be satisfactory to members. That response begins by advising that, as a matter of drafting, a definite article would not usually be used unless it was clear what was being referred to. In other words, the French version of the regulations does not refer to "the province'' because it would not be clear in context what "the province'' is. The letter goes on to note that the same could in fact be said of the definition in the code, which seemed to suggest that if there is a drafting error, it is in the code and not in the regulations.
Regardless of the difference between the definition in the code and in the regulations, however, the letter confirms that the scope of the regulations is correct. Specifically, the letter states:
. . . both the French and English definitions remain indefinite in their reference to provincial laws and, read in conjunction with the provision of the Regulations in which the defined term is used, have no limiting effect as to which province's laws are to apply.
Since there is therefore no error in the regulations, the committee may be satisfied that no further action is required on this point.
The other outstanding issue relates to an inconsistency in how various provisions in the regulations are drafted. Specifically, three provisions create limits on when a blood sample can be taken, but the French version of subsection 19(2) uses slightly different language than the other two provisions.
The department initially agreed that all three should use the same language and indicated it would rectify the error as soon as is practical in the circumstances. The department was subsequently asked when it expected to make this correction, and the latest response advises that a specific timeline cannot be provided, but that every effort will be made to bring necessary amendments forward as soon as is practicable.
We're in the committee's hands as to how to proceed on that point.
The Joint Chair (Senator Day): We asked for a timeline, and they said when "practicable.''
Ms. Kirkby: Yes.
Ms. Borkowski-Parent: That is a very good example on how "as soon as is practicable'' is ambiguous and vague, to relate to the previous point.
Mr. Di Iorio: The answer is not satisfactory. They know what they're doing, or they don't know what they're doing. If they know what they're doing, they're supposed to give an answer.
The Joint Chair (Senator Day): Do you want to try another letter to them, being a little more stern?
Mr. Di Iorio: Yes.
Mr. Dusseault: State that this is not a satisfactory response. We need a clear timeline.
The Joint Chair (Senator Day): Counsel, you are able to work on that?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): Thank you.
Next is Item 21 under "Action Promised (?).''
SOR/2014-198 — FIREARMS RECORDS REGULATIONS (CLASSIFICATION)
(For text of documents, see Appendix S, p. 22S:1.)
Ms. Kirkby: These regulations were made under paragraph 117(m) of the Firearms Act, which authorizes the Governor-in-Council to make regulations "regulating the keeping and destruction of records in relation to firearms.'' On their face, the regulations seem to impose a simple requirement on the Registrar of Firearms to keep a record of every determination made about whether a particular firearm is prohibited, restricted or non-restricted.
The Regulatory Impact Analysis Statement, however, suggests the regulations relate to firearms classfication redetermination decisions that have far-reaching legal implications for law-abiding firearms owners.
The issue raised with the department is how a simple recordkeeping requirement could possibly address the harms discussed in the RIAS. It is unclear how the regulations could address those harms unless the determination contained in the record kept by the registrar somehow binds everyone else, including the courts, even where that determination is later found to be wrong in law.
If it is the intent of the regulations that the determination kept in a record could somehow overrule the Criminal Code itself, then much stronger enabling authority is required than the power related to recordkeeping.
The department has not provided a clear response on this point but did indicate that the intention is now to repeal these regulations. Evidently, if the regulations are repealed, then there will be no ongoing concern about whether they are authorized.
As a final point, I will note that amendments to the Criminal Code in 2015 created clear authority for firearms to be classified as non-restricted and have that classification be legally binding, notwithstanding the definitions in the code. Specifically, the code now defines a non-restricted firearm as including a firearm that is prescribed to be non-restricted, and the Governor-in-Council may make regulations prescribing a firearm as a non-restricted firearm. This provides clear authority for delegated legislation to override primary legislation, unlike paragraph 117(m) of the Firearms Act.
We could ask for a time frame about when this repeal would occur.
The Joint Chair (Senator Day): That would seem to be the course of action, asking for a bit of a timeline. Thank you.
FEES OR CHARGES (AUTHORITY TO PRESCRIBE) ORDERS IN THE CONSOLIDATED INDEX
(For text of documents, see Appendix T, p. 22T:1.)
The Joint Chair (Senator Day): Next is Item 22 under "Action Promised.'' Is this item merely for information? What they promised is not satisfactory?
Ms. Kirkby: No, it's actually become "Action Taken.''
The issue was the legal status of various authorities to prescribe orders made under the Financial Administration Act. In broad strokes, those orders grant authority to various ministers to prescribe particular fees or charges. The authorizing orders at issue did not appear on the Department of Justice website, which suggested they were no longer law, but there was also no evidence they had been repealed, which suggested they were still law.
The department confirmed that they are still in effect and explained they were omitted from the website due to a consolidation error, but each of the orders discussed in the correspondence has now been added to the Justice laws website under the Financial Administration Act, so their legal status is now clear.
Ms. Borkowski-Parent: And we can close the file.
The Joint Chair (Senator Day): That's a nice one to end with. I'm glad you put that at the end.
SOR/2015-126 — ORDER AMENDING THE SCHEDULE TO THE TOBACCO ACT
SOR/2015-132 — REGULATIONS AMENDING THE NARCOTIC CONTROL REGULATIONS AND THE MARIHUANA FOR MEDICAL PURPOSES REGULATIONS (COMMUNICATION OF INFORMATION)
SOR/2015-191 — REGULATIONS AMENDING THE NARCOTIC CONTROL REGULATIONS (SYNTHETIC CANNABINOIDS)
SOR/2015-192 — ORDER AMENDING SCHEDULE II TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (SYNTHETIC CANNABINOIDS)
SOR/2016-72 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (PART J — 2C- PHENETHYLAMINES)
SOR/2016-73 — ORDER AMENDING SCHEDULE III TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (2C-PHENETHYLAMINES)
SOR/2016-138 — REGULATIONS AMENDING THE REGULATIONS DESIGNATING REGULATORY PROVISIONS FOR PURPOSES OF ENFORCEMENT (CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999)
SOR/2016-143 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (FOOD ADDITIVES)
SOR/2016-204 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
SOR/2016-231 — CANNABIS EXEMPTION (FOOD AND DRUGS ACT) REGULATIONS
SOR/2016-235 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (TSUUTINA)
SOR/2016-237 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (SKOWNAN)
SOR/2016-238 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SKOWNAN)
SOR/2016-239 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT (ACCESS TO DIACETYLMORPHINE FOR EMERGENCY TREATMENT)
SOR/2016-244 — GLOBAL FUND REPLENISHMENT CONFERENCE — PRIVILEGES AND IMMUNITIES ORDER
SOR/2016-245 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (TOBIQUE)
SOR/2016-246 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (TOBIQUE)
SOR/2016-247 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (CANOE LAKE CREE)
SOR/2016-248 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (CANOE LAKE CREE)
SOR/2016-249 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (BEAVER)
The Joint Chair (Senator Day): The next two pages on our agenda are other items you looked at and found to be satisfactory, without comment, which is excellent.
Mr. Di Iorio: Chair, prior to this meeting, I could not recall us having closed a file. Today we closed five. The only change I have seen is the presence of Ms. Pam Goldsmith-Jones, so I think we should commend her.
The Joint Chair (Senator Day): Colleagues, thank you all very much for participating today, but more importantly for participating regularly. Have a good summer break and we'll see you all in September.
(The committee adjourned.)