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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 30 - Evidence - February 15, 2018
OTTAWA, Thursday, February 15, 2018
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. to review statutory instruments.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
The Joint Chair (Mr. Albrecht): Welcome to this meeting of the Standing Joint Committee for the Scrutiny of Regulations. Welcome to our newest member, Mr. Shipley. You have all noticed that Evelyn is not with us this morning, so we will look to the capable leadership of Shawn as we move through our agenda, beginning with Item No. 1.
C.R.C. C. 1551 — TEXTILE LABELLING AND ADVERTISING REGULATIONS
(For text of documents, see Appendix A, p. 30A:1.)
Shawn Abel, Counsel to the Committee: Amendments for these regulations have been agreed to for more than a decade. Following numerous delays in making the amendments, the chairs wrote to the Minister of Innovation, Science and Economic Development in November 2016, seeking an assurance that the amendments would be made in short order.
No reply was received to that letter. The chairs wrote again to the minister in June 2017. Again, no reply has been received.
I would note that on one other file falling under the responsibility of that department, the minister has not responded to an October 2017 letter from the chairs. On that file, a follow-up letter was sent by the chairs recently.
At this point, I’m in the members’ hands as to how they wish to proceed. There are several options open to the committee, besides the chairs simply writing again. Communication could be reopened with the Competition Bureau. The committee could consider witnesses from either the bureau or by calling the minister. The committee could consider tabling a report requiring a government response, which would at least guarantee something was provided, but it may not move amendments forward in any fashion. The final option for the committee is to consider tabling a notice of disallowance concerning some of the provisions the committee has identified under this file.
As members will see in the note prepared for today’s meeting, the committee has identified some provisions that are not authorized by the enabling act, a redundant provision exempting labels from being required to be both official languages and a number of drafting issues. In particular, section 12, which is not authorized by the enabling act, and paragraph 5(2)(d), which is redundant, could likely be repealed without causing any ill effects toward people governed by the regulations or consumers.
As a reminder, if the committee would like to consider a notice of disallowance, once issued, the committee must wait at least 30 days before considering whether to adopt a disallowance report. This period allows the regulation-maker an opportunity to respond or to act. Once the notice time frame is spent, the committee, of course, does not need to adopt a disallowance report if it is satisfied with developments on the file.
That said, I’m open to what members would like to do.
The Joint Chair (Mr. Albrecht): Committee members, what are your preferences?
Mr. Di Iorio: We’ve seen this story time and time again — same old song and dance. I think we should disallow and wake some people up. Maybe word will get out to other departments that they can’t delay this committee indefinitely.
Mr. Dusseault: They held consultations in 2007 on the proposed amendments, but there was no follow-up after that. Is that correct?
Mr. Abel: We were in contact with the Competition Bureau at that point, and while they did have consultations, they did not go on to make the regulations. A number of different issues arose, leading to delays in the making.
That took us to 2016, which was the last time we received correspondence from the Competition Bureau. At that point, it still did in the seem likely that the regulations would be coming in a reasonable time. Therefore, the committee decided to communicate with the minister at that point. We have not heard from the bureau since.
The Joint Chair (Mr. Albrecht): I have a suggestion that we move to disallowance. I sense general agreement. Unless I sense other input, I suggest we move in that direction.
Is there any disagreement with moving to a disallowance notice, which gives a 30-day reply period in which they can correct course? If not, we can move to the next step. All in agreement? I see unanimous agreement.
Next is Item 2.
SOR/2015-241 — CRITICAL HABITAT OF THE WESTSLOPE CUTTHROAT TROUT (ONCORHYNCHUS CLARKII LEWISI) ALBERTA POPULATION ORDER
SOR/2016-81 — CRITICAL HABITAT OF THE NORTHERN MADTOM (NOTURUS STIGMOSUS) ORDER
SOR/2016-82 — CRITICAL HABITAT OF THE NOOKSACK DACE (RHINICHTHYS CATARACTAW SSP.) ORDER
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 B, p. 30B:1.)
Cynthia Kirkby, Counsel to the Committee: The main issue raised on each of these files was the failure to make the critical habitat order within the 180-day time frame required by the Species at Risk Act.
When these files were last considered, members decided to take a two-prong approach to addressing the issue. First, the joint chairs sent a letter to the Minister of Fisheries and Oceans, conveying the committee’s expectation that the statutory time frame would be met in the future. The minister’s response refers to new departmental measures and procedures that he anticipates will ensure the timeline is met for critical habitat orders where the clock starts to run from the date of his letter onward. He advises, however, that these new procedures will not address the committee’s concerns for those orders where the 180-day timeline has already passed.
Second, a letter was sent to the department, requesting additional details about these new measures and procedures. The department explains it has established a task team with a mandate to ensure compliance with legislated timelines. Specific actions include developing standardized language that can be used in multiple orders and beginning the process earlier in the cycle under the Species at Risk Act.
If members are satisfied with these responses, all of these files can be closed, with the exception of SOR/2016-82, which contains some incorrect coordinates. According to the department’s latest letter, those corrections are expected within the current fiscal year. A letter could be sent to the department, asking whether this is still expected to be the case.
The Joint Chair (Mr. Albrecht): There are two issues. One is, subject to the minister’s approval, the department is proceeding before the end of April of this year; is that correct?
Ms. Kirkby: The current fiscal year.
The Joint Chair (Mr. Albrecht): Which is the end of March. Is that the understanding?
Ms. Kirkby: For that one. If members are satisfied with the minister’s assurances, the others can be closed.
The Joint Chair (Mr. Albrecht): So are we satisfied that if we send a letter clarifying that it is their intent to have it closed by the end of March, then the committee could agree to close the files?
Are all in agreement?
Hon. Members: Agreed.
The Joint Chair (Mr. Albrecht): Item 3 also deals with critical habitat.
SOR/2017-262 — CRITICAL HABITAT OF THE NORTH ATLANTIC RIGHT WHALE (EUBALAENA GLACIALIS) ORDER
SOR/2017-263 — CRITICAL HABITAT OF THE BELUGA WHALE (DELPHINAPTERUS LEUCAS) ST. LAWRENCE ESTUARY POPULATION ORDER
SOR/2017-264 — CRITICAL HABITAT OF THE SPOTTED GAR (LEPISOSTEUS OCULATUS) ORDER
SOR/2017-265 — CRITICAL HABITAT OF THE EASTERN SAND DARTER (AMMOCRYPTA PELLUCIDA) ONTARIO POPULATIONS ORDER
SOR/2017-266 — CRITICAL HABITAT OF THE NORTHERN ABALONE (HALIOTIS KAMTSCHATKANA) ORDER
SOR/2017-267 — CRITICAL HABITAT OF THE ROCKY MOUNTAIN SCULPIN (COTTUS SP.) EASTSLOPE POPULATIONS ORDER
Ms. Kirkby: These files are being presented under the heading “New Instruments” in order to seek the committee’s guidance on how to handle them and similar orders in the future.
The same issue arises that was just discussed, specifically the failure to comply with the requirement under the Species at Risk Act that a critical habitat order be made within 180 days after the recovery strategy is included in the public registry.
For each of these instruments, the recovery strategy for the relevant aquatic species was included in the public registry in either 2009 or 2012, but the critical habitat orders were not made until 2017, several years later. They are therefore part of the backlog the Minister of Fisheries and Oceans referred to of orders that already exceeded the 180-day timeline before the new procedures were instituted and before the minister’s assurances were received.
It is up to members whether they wish to raise the issue of failure to comply with the legislative timeline on such files or whether, under the circumstances, these and other backlog files concerning aquatic species should simply be closed.
Mr. Dusseault: I would like some clarification regarding the time lag between inclusion in the public registry and publication of the orders. I would like to know the actual or potential consequences of that time lag. Can it undermine the protection of species?
Ms. Kirkby: I’m not certain what the consequences are. I know it’s a 180-day period to designate the critical habitat.
Penny Becklumb, Counsel to the Committee: You can’t protect the critical habitat until it’s identified. Once it is identified, then prohibitions come into effect for destroying that habitat.
Mr. Dusseault: So, at the end of the day, you don’t need the order that is given years later?
Ms. Kirkby: Are you asking if we would be repealing the order?
Mr. Abel: Perhaps I can clarify.
There is a 180-day timeline in which the order must be issued. Whenever the order is issued, even if it is nine years later, the protection doesn’t come into place until that point.
There is no legal consequence for breaching the 180-day timeline. As with most deadlines and other obligations placed upon the executive, it simply exists and no negative consequence arises from that upon the minister or anyone else who fails to do so within the required time. It’s a just legal obligation that has not been observed.
Mr. Benzen: I think this is like Issue No. 2; it’s the same issue. And the minister said on the issue that he has corrected it and there are new procedures in place, which I think follow for this one. So I think no action is needed on this one. It can be closed, just like the last one. There are new procedures in place.
The Joint Chair (Mr. Albrecht): I think the point raised by Mr. Dusseault in terms of whether or not there is protection in place until it’s filed is a good one, because what’s the point of putting these in place if they are not actually enforced until five years later when they should have been earlier?
I suggest that we at least write a letter indicating our displeasure at the fact they didn’t follow through and we will be monitoring these in the future to be sure that the 180-day period of time is observed. I don’t know the committee members are prone to go that route or not.
Ms. Kirkby: That is the letter we sent to the minister on the second file. He gave us assurances that for the orders that start to run, the 180-day period starts to run now, the new procedures will ensure that they comply with the statutory requirement there. The only issue is for ones like this where the period has already expired. If the committee sees any value to raising it in those cases, there is nothing to be done because the timeline expired before the new measures were put into place.
The Joint Chair (Mr. Albrecht): Are we in agreement to close the file? We are all in agreement with that.
Next is Item 4 under “Reply Unsatisfactory.”
SOR/2016-200 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
(For text of documents, see Appendix C, p. 30C:1.)
Mr. Abel: One unusual drafting issue was raised in July 2016. The department agreed in September 2016 to fix it as part of a larger package of amendments. At first, the department indicated that the amendments would be made in due course. A more specific time frame was requested, and the department offered that the earliest possible timeline would be winter 2017.
In fall 2017, an update was sought and the department now indicates only that this amendment will be made along with the larger package. It is not stated when that will be.
Nothing has yet been published in the Canada Gazette. Members may wish to consider a letter to the minister as a next step given the difficulty obtaining any sort of time frame from the department over the last two years. It may also be worthwhile to include a suggestion that this amendment could proceed independently if the larger package of amendments will not be completed within a reasonable time frame.
Mr. Badawey: I recommend a letter.
The Joint Chair (Mr. Albrecht): Do you want to suggest a time frame, perhaps end of June?
Mr. Badawey: June will be fine.
The Joint Chair (Mr. Albrecht): Make it something measurable. We expect it to be dealt with by the end of June 2018.
Are we all in agreement with that?
Hon. Members: Agreed.
The Joint Chair (Mr. Albrecht): Next is Item 5 under “Part Action Promised.”
SOR/2005-313— COMMERCIAL VEHICLE DRIVERS HOURS OF SERVICE REGULATIONS
(For text of documents, see Appendix D, p. 30D:1.)
Ms. Kirkby: There are now a total of 54 amendments promised in relation to these regulations, most of which concern matters of drafting.
In the course of preparing for this meeting, it was discovered that amendments to the regulations were indeed prepublished in Part I of the Canada Gazette in late 2017 as Transport Canada had projected. However, there are two outstanding issues on which agreement has not yet been reached.
The first is item 32,section 67(2) of the regulations, which makes failure to comply with the terms and conditions of a permit punishable as an offence. The committee has consistently taken the position, including in disallowance reports, that there is an important distinction between requirements that are established legislatively and requirements that are imposed administratively.
The committee’s view has been that the appropriate recourse for failure to comply with the terms and conditions of a licence is to suspend or cancel the licence, not to attempt to punish that failure as an offence in the absence of clear authority to do so.
Transport Canada has asserted that the committee’s reasoning does not apply in this case but has provided no explanation for this assertion. This point could therefore be pursued, perhaps with reference to a recent development that addresses the committee’s concerns through legislative amendments. Specifically, Bill C-68 would amend the Fisheries Act to state that a licence holder is required to comply with the terms and conditions of a licence and that failure to comply with that requirement is an offence. This new provision could be pointed to as a template for a solution that would resolve the committee’s concerns and Transport Canada’s as well.
The other contentious issue concerns the word “may” in section 91(1) of the regulations, which is point 48 of the correspondence. According to that subsection, a director or inspector “may” issue an out-of-service declaration to a driver under various circumstances, including where continuing to drive would be likely to jeopardize the safety or health of the public. The word “may” grants the discretion to the director or inspector to choose not to issue the declaration even where the identified circumstances exist.
In its latest letter, Transport Canada explained it wants to preserve the word “may” and the discretion that accompanies it because there may be security, safety, financial or practical considerations that would make an out-of-service declaration inappropriate in a particular situation. It therefore appears that Transport Canada already has a good sense of the types of factors that are relevant to the exercise of discretion, and it remains unclear why those factors should not be set out in the regulations themselves.
For example, the provision could indicate that declaration will issue, unless there is a relevant security safety, et cetera, reason for it not to. This would address the committee’s concerns about the unnecessary discretion inherent to the word “may,” while also preserving the ability of the director or inspector to weigh all the relevant factors in deciding whether the out-of-service declaration will issue. If members agree, these two points could be further pursued with the department.
The Joint Chair (Mr. Albrecht): Committee members, what’s your pleasure?
Mr. Scarpaleggia: I like that last point about specifying the factors that should be considered to grant an exemption.
Ms. Kirkby: It’s an out-of-service declaration, so they don’t want the driver to keep driving.
Mr. Scarpaleggia: If they don’t want the driver to keep driving, right now they have discretion to —
Ms. Kirkby: Under certain circumstances, they will issue the out-of-service declaration. The issue is that it says “may” issue, so even if there is jeopardy to health and safety of the public, they still might not do it.
Mr. Scarpaleggia: This may be what you call a naive question, but what kinds of vehicles are we talking about here?
Ms. Kirkby: Trucks.
Mr. Scarpaleggia: As a matter of interest, what percentage of trucks would it be? Wouldn’t permits be provincial? Obviously in this case it’s not, but I’m curious. Are we talking about trucks that travel across provinces?
Ms. Kirkby: I’m assuming this is interprovincial.
Mr. Scarpaleggia: Okay. I agree with your recommendation.
Senator Woo: Is the argument that if the department knows pretty much all of the exceptions for which “may” would apply, it might as well put down those exceptions so that it’s clear? Is that basically the gist of the argument?
Ms. Kirkby: Yes.
Senator Woo: I’m not sure I read that interpretation from the letter they provided. They talk about there being many reasons, one of which might be: How do you draw the conclusion that they, in fact, know all of the possibilities that might come up incline them to use “may” rather than “will?”
Ms. Kirkby: There were previous letters. This one has been going back and forth a little bit.
Senator Woo: I was looking at the letter. On page 5, Transport Canada talks about how there are many reasons, and they give one example but not more than that.
Perhaps there is a longer message, chair, that gives you your evidence.
Ms. Kirkby: Page 5 of the note?
Senator Woo: Yes. The bottom of page 5 states:
Transport Canada initially responded:
An inspector may choose not to issue an “out of service order” for many reasons, for example . . . .
I’m trying to get a sense of why you feel confident that they understand the whole range of inadvertent circumstances.
Ms. Kirkby: It was the second letter. Let me see if I can find it.
The Joint Chair (Mr. Albrecht): I think one of the concerns raised was that if we have a few identifiable “for instances,” it would preclude the likelihood of the supervisor simply saying, “Oh, he’s a good friend of mine, so I will let it go.” I think that’s what we want to get at. I think the perishable goods and the remote locations and the safety are understood, so I think we can include those as examples but not an exhaustive list.
Senator Woo: It would still be a “may,” but there would be — got it. Thank you.
The Joint Chair (Mr. Albrecht): At least that’s my understanding.
An Hon. Member: That’s correct.
Ms. Kirkby: There is a sentence in the second letter, which is where I got that from. It states:
There may be other security, safety, financial, practical considerations that would factor into why it may not be appropriate for an inspector to issue an [out-of-service] declaration.
They’ve sort of categorized the different types of considerations that would go into the factor.
Senator Woo: Got it. Okay.
The Joint Chair (Mr. Albrecht): Is there any further discussion on that?
Thank you again to our counsel for bringing these to our attention.
We will move on to Item 6 under “Reply Satisfactory.”
SOR/2017-68 — REGULATIONS AMENDING THE SCHEDULE TO THE CANADA MARINE ACT
(For text of documents, see Appendix E, p. 30E:1.)
Ms. Kirkby: The initial issue raised on this file was whether the regulations were transmitted to the Clerk of the Privy Council for registration within seven days of their making, as required by section 5(1) of the Statutory Instruments Act. The regulations were made on March 13, 2017, but not registered until April 20, more than a month later.
Transport Canada explained that they were, in fact, transmitted for registration the day after they were made but that formatting issues were subsequently identified that meant Transport Canada had to prepare a new package to send to the Privy Council Office. This response provided an explanation for the question about compliance with the Statutory Instruments Act, but it gave rise to the additional question of whether the regulations had been improperly amended by Transport Canada after they were made by the minister. As a result, additional detail was sought about the difference between the original regulation and the updated version.
Transport Canada explained that the formatting issues identified related to the lack of a blue stamp watermark from the Department of Justice and a security notation missing from the header of the document. Both of these issues relate to the internal workings of government rather than to substance of the regulations themselves. As a result, it does not appear that the regulations were improperly amended after the minister made them on March 13. So, if the committee is satisfied with this explanation, this the file can be closed.
The Joint Chair (Mr. Albrecht): Is there agreement with that? I see agreement.
Next is Item 7.
SOR/2017-73 — PROCLAMATION DESIGNATING THE REPUBLIC OF MONTENEGRO AS A DESIGNATED STATE FOR THE PURPOSES OF THE ACT
(For text of documents, see Appendix F, p. 30F:1.)
Ms. Kirkby: On this file as well, the issue raised was about compliance with the requirement in the Statutory Instruments Act that a regulation must be transmitted for registration within seven days of its making. The proclamation indicates that it was made on April 11, 2017, but it was not registered until April 24, nearly two weeks later. The explanation from the Department of National Defence is, in essence, that there is a difference between the date on which the proclamation was actually made and the date on which it was purportedly made. The proclamation was actually made on April 19 and registered on April 24, which is within the time frame required by the Statutory Instruments Act.
National Defence then points to section 18(3) of the Interpretation Act, which states that a proclamation issued under an order of the Governor-in-Council may purport to have been issued on the day of that order or on any subsequent day. National Defence also identifies the order directing the issuance of this proclamation, and the date of that order was March 24. So, because of section 18(3) of the Interpretation Act, the proclamation can purport to have been issued on or after March 24. The purported date of the proclamation is April 11, which is the date that appears in the published version.
To summarize, the proclamation was transmitted within seven days of its actual making, which satisfies the requirements of the Statutory Instruments Act, but the purported date of making is April 11, as permitted by the Interpretation Act. If the committee finds this explanation satisfactory, this file can also be closed.
The Joint Chair (Mr. Albrecht): Mr. Shipley, did you want to speak to this issue?
Mr. Shipley: Not really. I do agree with the close date. I am wondering how much it cost to get that explanation? Anyway, I would say that we close.
The Joint Chair (Mr. Albrecht): I think we’re in agreement with closing it.
I’m going to turn the chair over to Senator Day. Normally, at this point, we would declare a short recess, but we’re moving along so well that I’m going to suggest we continue moving through the agenda. I’m sure it’s because Mr. Shipley is new to the committee that we’re moving so well.
Senator Day, over to you.
The Joint Chair (Senator Day): Thank you for that intervention. We’ll go to Item No. 8 under the heading “Reply Satisfactory (?).”
SOR/2017-87 — ORDER DECLARING AN AMNESTY PERIOD (2017)
(For text of documents, see Appendix G, p. 30G:1.)
Ms. Kirkby: This is the latest in a series of amnesty orders for non-restricted firearms under the Criminal Code. As was the case for earlier amnesty orders, it indicates that “non-restricted firearm” means a firearm other than a prohibited firearm or a restricted firearm. In 2015, however, a definition of “non-restricted firearm” was added to the Criminal Code, and it additionally refers to firearms that are prescribed by regulation to be non-restricted.
The consequence is that the 2017 amnesty order had a narrower definition of non-restricted firearm than its enabling act did. Given the difference in scope, the Department of Justice was asked whether the amnesty order was also intended to apply to firearms that are prescribe to be non-restricted.
The department’s initial response indicated that the order was intended to apply to all non-restricted firearms, although its explanation for why it believes that the order accomplishes this goal does not seem persuasive.
In particular, the department’s explanation does not appear to take into account the equal status of the French language or the relationship between primary and delegated legislation or the principle of statutory interpretation that Parliament does not speak in vain. These points were all raised in a subsequent letter.
Justice Canada’s second letter does not engage with any of these arguments but states that:
. . . your correspondence does illustrate that the use, in an order, of a definition different from a definition used in its enabling legislation could cause legal confusion.
It is surprising that this is a point that needed to be illustrated to the Department of Justice. In any event, the department advises that the approach adopted in this order will be avoided in future orders, and this is likely the best outcome that can be expected in this case since the amnesty order has now expired.
The Joint Chair (Senator Day): That was an interesting bit of history. Can we agree to follow the recommendation to close that file?
Hon. Members: Agreed.
The Joint Chair (Senator Day): Thank you. Interesting correspondence with Justice.
We’ll go on to Item No. 9 under “Progress.” Progress is being shown.
SOR/96-254 — PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS.
SOR/2000-299 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1218 — ALTERNATIVE TESTS)
SOR/2000-410— REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1238 — SPECIAL ACCESS)
(For text of documents, see Appendix H, p. 30H:1.)
Mr. Abel: These regulations were made pursuant to the Food and Drugs Act, reflecting the view that human semen processed for assisted conception can be considered a drug with the meaning of that act. The joint committee disagreed with the interpretation and considered that the regulations were unauthorized and should be re-enacted under the Assisted Human Reproduction Act.
In 2006, the Minister of Health, while maintaining that the regulations were valid, confirmed that a review of the existing regulations was planned as part of a long-term project and that consideration was to be given to remaking them under the Assisted Human Reproduction Act.
Twelve years have passed since that time, during which a full policy review was interrupted by a lengthy but successful constitutional challenge to portions of the Assisted Human Reproduction Act. Obviously, this led to more delays. The department continued to develop the new regulations but now felt the need to update its regulatory policy as a result of new scientific developments which required, again, more time.
This takes us to the present, where it appears matters are finally moving towards an eventual conclusion.
A notice of intent was published for comment in the Canada Gazette in October of 2017. This is the first step in a complex process for transferring elements of these regulations to authority found under the Assisted Human Reproduction Act.
The timeline for future steps in this process is found in the department’s letter of April 6, 2017. Proposed regulations are expected to be prepublished this summer. The department notes that following pre-publication, the proposed amendments must be referred to the committees in both houses, which may result in some unpredictable time frames. However, final publication is currently expected to be in spring of 2019.
If members wish, a letter could be drafted to ask whether prepublication is still on track for the summer.
Mr. Badawey: So moved.
The Joint Chair (Senator Day): Are we all in agreement? Anyone else wish to discuss this issue? We’ll proceed in that manner.
We will move on to Item 10.
SOR/2005-151 — CANADA EDUCATION SAVINGS REGULATIONS
(For text of documents, see Appendix I, p. 30I:1.)
Mr. Abel: Two amendments were promised in connection with this instrument, one of which would remove subjective language from a ministerial decision whether to issue a grant or bond.
In fall 2017, the department indicated that these amendments were close to being completed and should be prepublished in Part I of the Canada Gazette in February. That has not yet been done, but there is, of course, still half a month left.
If members wish, counsel will keep an eye out for prepublication or, if nothing happens by March, follow up with the department.
Mr. Shipley: If not, then we need to follow up with a letter. And if it all gets closed, we close it.
The Joint Chair (Senator Day): Presumably if something doesn’t happen, it will be back before us again.
We’ll keep an eye on that one.
Item No. 11 is next.
SOR/2014-75 — REGULATIONS AMENDING THE PCB REGULATIONS AND REPEALING THE FEDERAL MOBILE PCB TREATMENT AND DESTRUCTION REGULATIONS
SOR/2006-347 — 2-BUTOXYETHANOL REGULATIONS
SOR/2008-218 — POLYBROMINATED DIPHENYL ETHERS REGULATIONS
(For text of documents, see Appendix J, p. 30J:1.)
Mr. Abel: Of two outstanding amendments here, one would clarify the wording describing how a Canadian accreditation body is actually accredited. These bodies carry out PCB and other toxic chemical testing for the purposes of all three regulations listed under Item 11 on the agenda, as well as a number of other regulations.
All the affected regulations will be updated with new wording, which is expected to be prepublished in Part I of the Canada Gazette in 2018. That prepublication hasn’t yet occurred, so a letter could be drafted seeking a progress report.
There is also an amendment promised that would clean up inconsistent language in the English version of the PCB Regulations only. This amendment wasn’t mentioned in recent correspondence from the department, so a confirmation could also be sought that this is forthcoming.
The Joint Chair (Senator Day): Could you do both of those in the same letter?
Mr. Abel: Yes.
The Joint Chair (Senator Day): Is everyone in agreement with that recommended course of action? We will go ahead, then, along those lines.
That takes us to Item No. 12 on our agenda under “Progress (?).”
SOR/2005-379 — ASSESSABLE ACTIVITIES, EXCEPTIONS AND EXECUTIVE COMMITTEE PROJECTS REGULATIONS
(For text of documents, see Appendix K, p. 30K:1.)
Mr. Abel: Twelve issues were raised with the department just over five years ago concerning this instrument. Eight remain outstanding, subject to promised amendments. All eight are issues of drafting or equivalency between the French and English versions.
In 2015, the department advised that it would be undertaking an overall review of the regulations during which these matters would be addressed. This was expected to be completed by fall of 2016.
However, in March 2017 the department advised that this review has been delayed as the Yukon First Nations refused to participate in a regulatory review until the Yukon Socio-economic Assessment Act was amended. That act has been amended by Bill C-17, which received Royal Assent on December 14, 2017. Presumably, the regulatory review can now begin.
However, a complete review of the regulations, in consultation with various Yukon First Nations, may yet take considerable time to complete.
Perhaps it could be suggested that these promised amendments, which are simple and should be non-controversial, be made independently, perhaps by a miscellaneous regulatory amendment. If members wish, a letter could be drafted putting that suggestion to the department.
The Joint Chair (Mr. Albrecht): Could we make it more than a suggestion? I would think this has been dragging on so long that we should make it a requirement.
The Joint Chair (Senator Day): It sounds like it got caught up in federal-territorial activities as well. It has been suggested we make it a requirement.
The Joint Chair (Mr. Albrecht): I look to counsel. I want their wisdom on this.
Mr. Abel: We’re in the committee’s hands. We can do that. We can draft a firmer letter and make it a requirement.
Mr. Diotte: I vote for that. I think that’s good common sense.
The Joint Chair (Senator Day): Make it stronger than asking, “Where are you?”
Mr. Di Iorio: When we review files that have been going on and on, they suggest this. It’s always these kinds of excuses.
The Joint Chair (Senator Day): There is always an excuse.
Mr. Di Iorio: Often, we will see, “We intended to make it part of something more global and more encompassing, but it didn’t happen.” Why let it go? We might as well do it now.
The Joint Chair (Senator Day): We will make this letter stronger.
Mr. Badawey: If I can make a comment — and it was mentioned earlier by one of the members — I think it’s high time that we send a message to our colleagues, whether it be staff or ministers, that we have to have a disciplined approach to a lot of these regulations. For the most part it would make life easier for you folks instead of having these files go on years or decades.
I think we have to send out a strong message, through some of the actions that were taken on these files, that this is a disciplined approach. We have to dot the “i”s, cross the “t”s and take care of these things in short order rather than having them linger.
The Joint Chair (Senator Day): There seems to be general consensus that we try to make these a little stronger. That’s the course of action we will take.
Moving on to Item 13 under the heading “Action Promised.”
SI/2017-24 — LIST OF WILDLIFE SPECIES AT RISK (DECISIONS NOT TO ADD CERTAIN SPECIES) ORDER
(For text of documents, see Appendix L, p. 30L:1.)
Ms. Kirkby: The only issue raised here is that there is a discrepancy between the French and English versions with respect to the 2015 total allowable catch of blue fin tuna. The English version refers to 2000 t, and the symbol “t” means 1,000 kilograms according to the Weights and Measures Act. The French version, however, refers to deux milles tonnes, and the full word “tonne,” according to the Weights and Measures Act, means 2,000 pounds. As a result, the amount of the 2015 total allowable catch is described differently between the two versions.
The response from Environment and Climate Change Canada indicates that it is the English version that is correct and that the French version will be corrected as part of an upcoming regulatory proposal that is expected to be ready for consideration by the Governor-in-Council in 2018. If members agree, an update on this timeline could be sought in the next few months.
The Joint Chair (Senator Day): Mr. Shipley?
Mr. Shipley: I’m glad that three years got it fixed. It could have taken a “t” instead of “tonne.”
I apologize; I’m new on the committee. We can send general letters and we can send strong letters, but at the end of the day there is no consequence other than someone will feel some pressure from this committee. I don’t know, co-chairs, where we go.
When I was reading through this, there is a level of frustration if you have been in business and you see how things move. This was a prime example. It took three years to get the one version of the French in order.
The Joint Chair (Senator Day): It’s not there yet.
Mr. Shipley: It is not there yet. We’re just assuming that the order-in-council in 2018 will happen.
It’s just a comment. I totally agree with what Mr. Badawey is saying.
I don’t know if this committee has any authority to make some recommendations of how we can put in some consequences. For example, what happens in Public Accounts? At one point there were no consequences; then there were. You meet the requirements of the recommendations, you give a very good explanation, or you come back in public and explain.
That is just a comment.
The Joint Chair (Senator Day): We appreciate your comment, and you’re reminding us of the same frustration each of us had when we first arrived on the committee. I don’t think we’re losing that feeling. You can see when we’re tightening up messages and giving more notices of disallowance that it’s an indication we all share the frustration that this is a colossal waste of time.
So you’ll keep an eye on that one for us?
Ms. Kirkby: The suggestion is that in a couple of months we’ll make sure they’re still on track for the end of the year.
Next is Item 14.
SOR/2017-12 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT
SOR/2017-13 — ORDER AMENDING SCHEDULES I, III AND IV TO THE CONTROLLED DRUGS AND SUBSTANCES ACT
(For text of documents, see Appendix M, p. 30M:1.)
Ms. Kirkby: These items are regarding amended schedules and the regulations in respect of various substances, including metheptazine. A change was made in the English version of the description of that substance from “ethyl” to “methyl,” but no corresponding change was made to the French version. Health Canada confirmed last May that the French version should also have been amended and advised that this oversight will be corrected in its next Miscellaneous Amendments Regulations submission.
The department could be asked whether it is still on track to make these amendments this spring.
Senator Day: I would consider this an important matter they should get on with.
Is everyone in agreement with that?
Mr. Oliver: I’m generally agreed, but is there a different vehicle? Is there not something that gets sent? I forget what it was called. It had about 40 to 50 minor changes. It moves through and fixes up a bunch of small things. Or is that what this will be — the miscellaneous? Okay.
The Joint Chair (Senator Day): Thank you.
SOR/2017-107 — DESIGNATION OF REGULATORY PROVISIONS FOR PURPOSES OF ENFORCEMENT (CANADA WILDLIFE ACT) REGULATIONS
(For text of documents, see Appendix N, p. 30N:1.)
Ms. Kirkby: The Canada Wildlife Act authorizes the Governor-in-Council to designate provisions of regulations made under that act, and then the contravention of the designated regulatory provisions is an offence. These regulations designate various provisions of subsection 3(1) of the Wildlife Area Regulations. For example, it is an offence to contravene the prohibition in paragraph 3(1)(a) against hunting or fishing in any wildlife area. However, the regulations also designate the portion of paragraph 3(1)(m), which simply identifies when a person is permitted to perform the actions otherwise prohibited under subsection 3(1). In other words, the portion of subsection 3(1) after paragraph (m) should not be designated, as it is not itself a provision that can be contravened.
Environment and Climate Change Canada agrees and advises that the regulations will be amended on an ongoing basis to designate new offences and update existing offences. The department states that the necessary change will be made at the next opportunity as a part of this process. A more precise timeline in this regard could be sought.
The Joint Chair (Senator Day): This is sort of like “due course,” is it? You’re recommending that we contact them and ask for something more specific.
Ms. Kirkby: Yes.
The Joint Chair (Senator Day): Do we agree with that? There is agreement. We will proceed in that manner.
Next is Item 16 on our agenda.
SOR/2017-209 — ORDER 2017-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST
(For text of documents, see Appendix O, p. 30O:1.)
Ms. Kirkby: The only issue raised on this file was that the description for a particular substance being added to the Domestic Substances List was provided twice in English rather than once in each official language.
As per the extra materials distributed this morning, the necessary correction has now been made by the instrument registered as SOR/2018-6, so both files can be closed. To give credit where it’s due, Environment and Climate Change Canada made the correction within about two months of the issue being raised, which seems worth noting.
The Joint Chair (Senator Day): You’re noting that just for us?
Mr. Badawey: Why not send them a letter thanking them for their expedient efforts?
The Joint Chair (Senator Day): Is there agreement on that?
Mr. Badawey: When we do get an expeditious conclusion, we ought to send a thank you letter for being so expeditious.
The Joint Chair (Senator Day): This is a standing method of operation that if there is a department that acts very expeditiously for us, we should thank them for it.
Mr. Di Iorio: However, they can’t be redeemed for further misbehaviour.
Ms. Kirkby: Do you want to do the same with Item No. 7 regarding the Department of National Defence? They provided a satisfactory response within less than a month of being asked the question.
The Joint Chair (Senator Day): We may have to use that department against another one, some sort of “Department of the Month” award.
Now we’re going to “Action Taken.” There are quite a few items under that heading.
SOR/2009-212 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS AND THE CANADA STUDENT LOANS REGULATIONS
(For text of documents, see Appendix P, p. 30P:1.)
SOR/2010-45 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT REGULATIONS
(For text of documents, see Appendix Q, p. 30Q:1.)
SOR/2017-54 — REGULATIONS REPEALING THE UNITED NATIONS CÔTE D’IVOIRE REGULATIONS
(For text of documents, see Appendix R, p. 30R:1.)
SOR/2017-55 — REGULATIONS REPEALING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON LIBERIA
(For text of documents, see Appendix S, p. 30S:1.)
SOR/2017-77 — REGULATIONS AMENDING THE ESTABLISHMENT LICENSING FEES (VETERINARY DRUGS) REGULATIONS
(For text of documents, see Appendix T, p. 30T:1.)
SOR/2017-91 — REGULATIONS AMENDING THE PEST CONTROL PRODUCTS REGULATIONS (STATEMENT, NOTICE AND CONDITIONAL REGISTRATION)
(For text of documents, see Appendix U, p. 30U:1.)
SOR/2017-122 — REGULATIONS REPEALING THE FISH HEALTH PROTECTION REGULATIONS
(For text of documents, see Appendix V, p. 30V:1.)
SOR/2017-126 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS
(For text of documents, see Appendix W, p. 30W:1.)
SOR/2017-131 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS
(For text of documents, see Appendix X, p. 30X:1.)
Mr. Abel: I will summarize these items. We have nine instruments here that collectively address 20 issues identified by the committee.
Of note, three instruments relating to student financial assistance and student loans remove four instances of unnecessary ministerial discretion. In addition, two instances of unnecessary discretion conferred upon administrative officers are also removed by the repeal of the Fish Health Protection Regulations. The repeal of two regulations under the United Nations Act removes two provisions that appeared to restrict the right to free expression and one provision that appeared to infringe the right against self-incrimination.
Finally, I would draw members’ attention to SOR/2017-91 under Item 22. The committee issued a notice of disallowance in respect to the Pest Control Products, following which this instrument was made. The amendments herein remove a requirement to include a guarantee statement on a product label when no actual guarantee is conferred, and a requirement to include a portion of a warning statement on a product label that appeared to pronounce on matters of civil liability.
In addition, although it was not subject to the notice of disallowance, a provision proposing a potentially unfulfillable obligation was amended.
SOR/2016-328 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (MUSKOWEKWAN)
SOR/2016-329 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (FISHING LAKE FIRST NATION)
SOR/2016-330 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (FISHING LAKE FIRST NATION)
SOR/2016-331 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (MISTAWASIS NEHIYAWAK)
SOR/2016-332 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (MISTAWASIS NEHIYAWAK)
SOR/2016-333 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (WAYWAYSEECAPPO FIRST NATION)
SOR/2016-334 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (WAYWAYSEECAPPO FIRST NATION)
SOR/2017-30 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (SONGHEES)
SOR/2017-31 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SONGHEES)
SOR/2017-32 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (PIC MOBERT)
SOR/2017-33 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (PIC MOBERT)
SOR/2017-34 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (GITWANGAK)
SOR/2017-35 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (GITWANGAK)
SOR/2017-63 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (AHTAHKAKOOP)
SOR/2017-64 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (AHTAHKAKOOP)
SOR/2017-65 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (GITSEGUKLA)
SOR/2017-66 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (GITSEGUKLA)
SOR/2017-96 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (MOOSE DEER POINT)
SOR/2017-97 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (MOOSE DEER POINT)
SOR/2017-98 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (BLACK RIVER)
SOR/2017-99 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (BLACK RIVER)
SOR/2017-101 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (OROMOCTO)
Mr. Abel: Finally, under the heading of “Statutory Instruments Without Comment,” 20 instruments have been reviewed, found to comply with all the committee’s criteria and raised no other objections. These instruments are not included in the agenda, but I have copies here today if any member wishes to review them.
The Joint Chair (Senator Day): I don’t see anyone asking.
The Joint Chair (Mr. Albrecht): So we see the results on Item 22 of a notice of disallowance that was actually dealt with expeditiously.
Mr. Shipley, for your benefit, please take note of all the items from Item No. 13 on where action was taken. I know how you’re feeling in terms of the slow process, but I can say from my perspective that we are getting better at it.
Mr. Shipley: Good. Thank you.
The Joint Chair (Mr. Albrecht): And you will help us get even better.
The Joint Chair (Senator Day): Excellent. That covers our agenda.
The next document is just for your information, Mr. Shipley. “Statutory Instruments Without Comments” are items that have been reviewed by counsel but no discrepancy was felt necessary to bring to our attention.
We appreciate all this other work going on behind the scenes, and we thank you for that. We hope you will take back to Evelyn our best wishes for a speedy recovery.
Thank you very much, Ms. Kirkby and Mr. Abel, for taking us through this so well today. We appreciate it. The next meeting date is March 1.
(The committee adjourned.)