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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 36 - Evidence - May 10, 2018
OTTAWA, Thursday, May 10, 2018
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for review of Statutory Instruments; and, in camera, to consider the government response to the second report of the Standing Joint Committee for the Scrutiny of Regulations, entitled Accessibility of Documents Incorporated by Reference in Federal Regulations.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
The Joint Chair (Mr. Albrecht): I call the meeting for the Scrutiny of Regulations to order. We have some committee business that we need to care for at the first of our meeting today, so I would like someone to move that the committee now proceed to sit in camera and that notwithstanding usual practice, committee members’ assistants be allowed to remain; that the committee allow the transcription of today’s in camera meeting; and that one copy be kept in the office of general counsel for consultation by committee members.
Is anyone prepared to move that motion? Mr. Benzen? All in favour, raise your hand. Opposed, same sign. Okay, we will go camera.
(The committee continued in camera.)
(The committee resumed in public.)
The Joint Chair (Mr. Albrecht): Item 2 on today’s agenda is under the heading “Reply Unsatisfactory.”
SOR/2010-140 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA NATIONAL PARKS ACT (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix A, p. 36A:1. )
Evelyne Borkowski-Parent, General Counsel to the Committee: This is the first of two files where there seems to be a reversal of positions by Parks Canada. Issues on these files generally pertain to unnecessary administrative discretion and one instance of subjective language which purports to limit individual Charter rights. Although this file has a 2010 SOR number, it is the continuation of issues raised for the first time in 1980 in SOR/78-213.
Amendments were promised to the committee in 2011 and were postponed three times. From 2014 on, six requests for an update were then left unanswered, which led to the appearance of Daniel Watson, CEO of Parks Canada, before the committee in November 2016 to explain why his agency had not responded to any of the committee’s correspondence in over a year. According to the testimony provided and subsequent correspondence, the committee’s letters were received but not tracked within the agency.
The agency advised that as some of the questions raised by the committee were more substantive in nature, it required more time to analyze some questions before it could provide frames.
The last update from the agency indicates it does not intend to make the amendments after all, without providing any explanation other than “a degree of discretion in the exercise of certain responsibilities by the Superintendent provides for the effective management of a park and a flexible approach may be required.”
So let’s analyze some of the points in question.
It is prohibited under section 10 of the National Parks General Regulations to remove flora or natural objects from a national park unless it is done in accordance with a permit issued under section 11.
Section 11, in turn, states that the superintendent of a park may — and that’s where the problem lies — issue a permit if the applicant demonstrates in writing that the activity will not have an adverse effect on the park, jeopardize cultural, historical or archaeological resources, or pose a danger to public health or safety.
The question remains: If an applicant meets all these criteria, under what circumstances would a permit not be issued? Those circumstances are clearly enumerated in the regulation. The unbounded discretion is unnecessary.
On the issue of subsection 33.1(1), that provision actually states that:
The superintendent shall —
— so that’s better right there —
— on application, issue a permit authorizing the permit holder to display or distribute any promotional or informational material in a park if it
(a) is not of a violent or otherwise offensive nature;
That language has the very serious potential to infringe on individual Charter rights, specifically the freedom of expression, because it leaves it to administrative officials to determine what is offensive.
It bears noting that there are statutory provisions in the Criminal Code and elsewhere that deal with libel, hate speech and propaganda that would prevent the distribution of illegal materials in any event.
So what section 33.1 is left to cover is materials that are not illegal but are, for one reason for another, considered undesirable by administrative officials.
The agency has not engaged in the substance of any of those issues, and I would suggest it’s clearly inadequate if Parks Canada no longer intends to honour the commitments it made to the committee in 2011.
To sum up, the agency made its mea culpa to the committee, walked out, consulted itself and does not intend to make the amendments requested by the committee on the basis that the agency is satisfied with its scheme.
The Joint Chair (Mr. Albrecht): Comments?
Mr. Dusseault: It’s a great case of over-discretion. In the case of having them go back on the word, it’s a good case to have witnesses and let them explain the reason why they agreed and then changed their mind in the process.
My other point is that we should have a standard when a problem dates back before my date of birth — it should be a big problem.
The Joint Chair (Mr. Albrecht): You are suggesting bringing them back in as witnesses.
Mr. Dusseault: Yes.
Mr. Badawey: I would agree, but I wouldn’t limit the invitation to just Parks Canada. I would actually invite a witness from the department responsible for Parks Canada, which is the minister’s office. I would include them as well.
The Joint Chair (Mr. Albrecht): The Minister of Environment?
Mr. Badawey: Right.
The Joint Chair (Mr. Albrecht): Further discussion?
I will remind committee members we had the original papers and letters were exchanged. We had the witnesses here, agreeing to handle it, and then they backtrack. Are you comfortable bringing them in again or is other action necessary? It sounds like we are ready.
Mr. Shipley: This is a quandary we get put in as a committee. We don’t have the authority — we have the persuasion — to get ministries to address the issues brought forward. As you know, many of them are decades old, as we’ve heard, and some are not.
If we don’t bring them back in, Ms. Borkowski-Parent, could you tell us what we are going to do to get action?
Ms. Borkowski-Parent: As far as options: table a report, disallow the provisions, witnesses, or a letter to the minister. Those are the four options available to the committee.
Mr. Shipley: We have done most of those. We sent a letter to the minister, and she guaranteed there would be changes. Basically, the bureaucracy told us they are not.
The Joint Chair (Mr. Albrecht): We have the two other options. We haven’t considered disallowance or tabling a report in the house. Those are the ones we need to be aware of.
Mr. Shipley: The trouble is that it doesn’t get the resolution of the issues, and that’s my concern. Disallowance doesn’t necessarily mean there will be a resolution to all the issues, does it?
The Joint Chair (Mr. Albrecht): They are either forced to change the regulation, or the regulation is wiped off the books after a certain time if they don’t respond. That’s my understanding. I should ask counsel.
Mr. Shipley: If it’s wiped off, and you look at the issues here, it fixes it, but it doesn’t remedy it.
Ms. Borkowski-Parent: The whole regulations would not be repealed, just the objectionable provisions. Then the department is free to reenact provisions that don’t contain the same issues, if it leaves a gap. Normally, a regulation-making authority would have 30 days to revoke the provisions after a disallowance report goes through.
Mr. Shipley: Okay. Thank you.
The Joint Chair (Mr. Albrecht): I think I hear general agreement. If there are no further comments, there is a motion on the floor to invite Parks Canada and Environment Canada officials back, and possibly the minister, to explain their lack of follow-through on their previous commitment.
All in favour of that motion? Opposed? So ordered.
Next is Item 3 on our agenda.
SOR/2011-217 — REGULATIONS AMENDING THE NATIONAL HISTORIC PARKS GENERAL REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix B, p. 36B:1.)
Ms. Borkowski-Parent: The circumstances on this file are practically identical to the previous one. Amendments to correct two instances of undue administrative discretion were promised in 2012. In the general update provided by the agency in 2017, there was no mention made of this file. Amendments were published in February 2017, but they did not address the issues on this file.
The agency was then asked what its plan was, and the response was that this file was not currently part of the agency’s forward regulatory plan.
So we could address that file with the previous motion, if members agree.
Mr. Badawey: Same recommendation as the previous motion.
The Joint Chair (Mr. Albrecht): That we discuss both of these files when we have the department in.
All in favour of that action, raise your hand? All opposed, same sign? Carried.
Next is Item 4 under “Part Action Promised.”
SOR/93-54 — PACIFIC FISHERY REGULATIONS, 1993
(For text of documents, see Appendix C, p. 36C:1.)
Ms. Borkowski-Parent: Over the years, the committee has reviewed several amendments made to the Pacific Fishery Regulations. It was discovered recently that the original regulations — the 1993 ones — had not been reviewed by the committee. As regulations stand permanently referred to the committee, here they are, better late than never.
On the 50 issues raised, 38 will be addressed through Miscellaneous Amendments Regulations to be made this fiscal year. The other 12 require further analysis before a time frame could be provided to the committee. An update both on the MARs and on the 12 remaining issues could be asked for from the department.
Mr. Di Iorio: How can regulations from 1993 have escaped the committee’s attention? I do not want to know about the explanations in 1993 because that would not be particularly useful. But can this situation occur again these days, or do we now have a mechanism in place to prevent a recurrence of this kind of situation?
Ms. Borkowski-Parent: I can tell you that the chances of it happening are practically nil. In this case, there are a number of fishing regulations for provinces and, as we will see later in the agenda with the Newfoundland and Labrador Fishery Regulations, there was a problem in all the regulations that dealt with the fishing season. I think that it was put in the pile of regulations that were to be handled by the project at Fisheries and Oceans, but it was not submitted to the committee in anticipation of the project closing. In the meantime, the committee has reviewed all the amendments made from 1993 to the present. Given that there were a lot of regulations on the fisheries, the first was put on the shelf with the others, but I can tell you that it is not a situation —
Mr. Di Iorio: Are you telling us that the risks of it happening again are nil?
Ms. Borkowski-Parent: Yes.
Mr. Di Iorio: Because of the procedure in place?
Ms. Borkowski-Parent: Yes.
Senator Stewart Olsen: I note in the response, which is dated 2017, that they are going to address and look at the regulations further to our recommendations from before, and we haven’t received a response yet. Is that two years?
Ms. Borkowski-Parent: That was last November. The Miscellaneous Amendments Regulations would be taken over the course of this fiscal year. On those 38, we could ask for an update as to —
Senator Stewart Olsen: That’s what I was thinking, just give them some time, because it looks like they did try. They looked at them. They were trying to look through them. I’m wondering if just an update might be appropriate.
The Joint Chair (Mr. Albrecht): That’s what we’re suggesting. We are awaiting the finished ones of this year, 2018-19, and I think counsel indicated that we will ask them to clarify their expected timeline for the others. Is that correct?
Ms. Borkowski-Parent: Yes, the timeline on both to see if they are on the track for the Miscellaneous Amendments Regulations.
The Joint Chair (Mr. Albrecht): All agreement with that action? I’m seeing heads nodding.
We will move to Item 5 under the heading “Part Action Promised.”
SOR/2011-280 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1614 — FOOD ADDITIVES)
(For text of document, see Appendix D, p. 36D:1.)
Penny Becklumb, Counsel to the Committee: In 2012, some discrepancies in terminology were noted between the English and French versions. The department corrected most of these discrepancies in 2017. The other discrepancies are found in a series of tables in section B.16.100 of the regulations. The tables show the approved uses of various food additives. The department explained that it intended to remove these tables as part of a regulatory project that is to happen in 2018-19. With the committee’s permission, we could follow up with the department to make sure that they still intend to remove those tables this year.
The Joint Chair (Mr. Albrecht): Is there any objection to proceeding in that direction? All in agreement.
Next is Item No. 6.
SOR/2014-112 — REGULATIONS AMENDING THE WEIGHTS AND MEASURES REGULATIONS (ADMINISTRATIVE MONETARY PENALTIES)
SOR/2017-17 — REGULATIONS AMENDING THE WEIGHTS AND MEASURES REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix E, p. 36E:1. )
Ms. Becklumb: The Weights and Measures Act sets out units of measurement to be used in Canada, but it also regulates the use of measuring devices in trade, as well as marketing packaging to show the quantity of a commodity being sold. There is an administrative monetary penalty system, which is set up in the Weights and Measures Regulations for enforcing the act.
Three issues were raised in 2015. Two of those issues, which related to the mechanics of the administrative monetary penalty scheme, were addressed by amendments made in 2017. But those amendments raised two new issues — a grammatical issue and some inconsistent language. The department stated that it would initiate the process to address these concerns immediately, so we propose to follow up with them on those amendments.
That just leaves the one issue from 2015. It relates to the authority for enacting the former subsection 352(2) of the regulations. I say “former subsection,” because it was merged with the preceding subsection, 352(1,) in 2017, by the amendments made that year.
Despite the amendment, the issue still remains, and that is: What is the authority for this provision? It prescribes what information must be included in a request made under subsection 22.12(2) of the act. There is no authority to make regulations prescribing information to be included in a request. Rather, paragraph 10(1)(v) and subsection 22.12(2) of the act together provide authority to prescribe the “manner” of submitting a request under that subsection.
So the question is: Is the power to prescribe the manner of submitting a request broad enough to authorize prescribing what information should be included in that request? That question is debatable. The committee could suggest a statutory amendment to address any possible doubt, or it could consider whether, in this instance, the existing authority is broad enough because listing what information must be included in a request is necessarily incidental to prescribing the manner of making the request.
We’re in your hands.
The Joint Chair (Mr. Albrecht): You’re not recommending either of those options, but I think I read between the lines that it would be nice to clean it up and clarify, not prescribing the manner but what is actually being prescribed.
Ms. Becklumb: It could go either way. It’s not clear cut.
The Joint Chair (Mr. Albrecht): Committee members, what are your thoughts?
Mr. Badawey: I think we should proceed and request an update from the committee to see what direction they want to take.
Ms. Becklumb: Their opinion is that they do have the authority and that prescribing the manner includes what information should be included. So they’re good. We are saying: Is that good enough, or would you like a legislative amendment so that the law actually says they can prescribe the information that needs to be included?
Mr. Badawey: What is your opinion on that? That’s where I’m going with this.
Ms. Borkowski-Parent: This is a grey area.
Mr. Badawey: Good answer.
Ms. Borkowski-Parent: I think suggesting that they could clarify it in the act would resolve any doubt, and then we are all good for the future. Requesting that they change the act and seeing if they would accept that proposition is my suggestion on this point.
Mr. Badawey: That’s fine.
Mr. Sidhu: To me, if those amendments are working and we don’t have any complaints, why bother going to the legislation then? To me, if it’s not broken, why fix it?
The Joint Chair (Mr. Albrecht): It possibly goes back to what we dealt with earlier. We don’t want to wait until we get complaints. Our idea is to keep the end user in mind at all times and make the regulations readily accessible, readily understandable and not wait until there are complaints. That’s the ethos of our committee, but you raise a good point.
We can ask them to clarify, without threatening disallowance, or we can leave it as it is. Committee members, I know it’s early in the morning, but we need to make a decision.
Mr. Badawey: I want to say a couple of things.
First of all, I think the message is out there loud and clear that we’re here to do our job. We are not here to wait 10, 15 years or tolerate anything that has been here for 10 or 15 years. We want these things cleaned up.
With that understanding, there is also a new respect and/or a new motivation and, therefore, momentum to actually deal with these. I don’t think necessarily that it’s going to be a threat, a warning, and then let’s push everybody into the corner and see what they’re going to come back with. I think, right now, we have opportunity to ensure that if there are some concerns with respect to regulations — I commend this report coming up because it is being proactive versus reactive. If there is something that has to be cleaned up and a few I’s that have to be dotted or T’s that have to be crossed, we should ask the question to clarify. We may want to go a step further and clarify for them. Both can, in fact, happen. Then, of course, we can have a meeting of the minds, come back and have the regulation dealt with and move on from there.
Mr. Oliver: I’m conscious of picking the fights that matter. You said it was grey. One side of it sounded like it wasn’t grey. What makes it grey?
Ms. Borkowski-Parent: It’s the meaning of prescribing the manner. Traditionally, courts have considered that information requirements are considered substantive requirements that have to be spelled out in the act. In this instance, the act refers to “prescribing the manner.” Under that, we’ve included a bunch of information requirements.
I don’t have court cases or precedents to argue against or for. There is just the traditional committee position that if you are going to have an information requirement, it should be in the act. That has also been provided for in the courts. It has the benefit of being very clear as to where the authority for that provision is.
Right now, the information requested is very basic, but what if more was added to it later? That’s why it’s grey.
Mr. Oliver: So the concern is not what there is today; it’s that they are using a vehicle as to what might be added in the future.
I’m just worried that if we write to them and they say that, no, they don’t want to change the legislation, we are sitting here with a grey issue. Is it one whereby we wait until they clearly exceed the authorities of the act? We seem to be doing something defensive against what might happen versus what is.
Ms. Borkowski-Parent: If the regulations were to be changed, of course, the committee would review, and it could be pursued at that point if it’s not a point that the committee wants to pursue right now.
That being said, to about back to Mr. Sidu’s points, sometimes those arguments are more on the principle of following your enabling authority than it is on the practical effect. On that basis, yes, statutory amendments should be made.
Mr. Di Iorio: So on page 2 of the initial document that was provided, at tab 6, at (d) and (e), I understand what we are dealing with is a proposal detailing the corrective action. That’s some of the information requested. The other information requested is the person’s reason for requesting the review. The department’s opinion is that this comes under the umbrella of (d).
We do have to consider this as a proposal detailing the corrective action to ensure that the person complies with the provision. At some point that information has to be provided. It’s a request you’re making, and if you’re making a request you certainly have to say what it is you intend to do.
I mention this because they are not, for example, saying they want the social insurance numbers of your kids and your back door neighbour. There is a very tight connection with what they are doing here. They want to understand why you are asking something.
When you look at the other one — the person’s reason for requesting the review — well, why is it you want a review?
I consider the tightness of the connection important here. So to your point when you said it’s in a grey area, I think it would turn it into a darker grey than a lighter grey. It is denser; there is substance here to what they are asserting.
The Joint Chair (Mr. Albrecht): Are you suggesting that their explanation is satisfactory and we should close the file?
Mr. Di Iorio: If they don’t go further than this, I would accept it. Obviously the regulation is set; this is the regulation. I mean, they can change it, but they are not going to do it tonight. If they do it, we will review it. However, for the time being, given what we have here and considering the important connection with the request that is made, simply indicating what I’m going to do to comply and the reasons why I’m making my request, at some point the individual would have to provide it, so there it could be part of the battle.
The Joint Chair (Mr. Albrecht): What is the committee’s wish? Do you want our counsel to follow up and suggest strongly that they change it to “prescribed manner” and also add that the information required needs to be dealt with separately? Or do we want to leave it as it is? Either way, we are not insisting that it happen; we are suggesting.
The Joint Chair (Senator Day): Or do we close the file?
The Joint Chair (Mr. Albrecht): Leave it as it is?
Mr. Di Iorio: We have other battles.
The Joint Chair (Mr. Albrecht): Committee members, are you in agreement with that? All in favour of leaving it as it is and letting this one pass? I think I see agreement.
We will move on to Item No. 7 under the heading “Reply Satisfactory.”
SI/2017-15 — PROCLAMATION GIVING NOTICE OF THE CONVENTION ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF PERU AND THE ADMINISTRATIVE AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF PERU FOR THE IMPLEMENTATION OF THE CONVENTION ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF PERU COME INTO FORCE ON MARCH 1, 2017
(For text of documents, see Appendix F, p. 36F:1.)
Ms. Becklumb: This proclamation gives notice that the Convention on Social Security between Canada and the Republic of Peru and the administrative agreement that implements the convention both came into force on March 1, 2017.
The issues stem from the fact that the coming-into-force provisions in the convention and in the administrative agreement are different, yet the proclamation states that the convention and the agreement came into force on the same date.
Also, the proclamation was issued and February 16, 2017, before either the convention or agreement came into force on March 1, 2017.
In response to questions from counsel, the Privy Council Office assures the committee that both the convention and the agreement did indeed come into force on March 1, 2017, and they provide an explanation for how this occurred. Essentially, Canada was in control of the timing of sending the diplomatic notes which determined the date of entry into force of each of the convention and the administrative agreement. If that’s an explanation, there is more information provided in the letter they sent.
The Joint Chair (Mr. Albrecht): Are all in agreement that is acceptable? I see general agreement.
Let’s turn the chair over to my Senate colleague.
The Joint Chair (Senator Day): Thank you very much.
Mr. Badawey: Mr. Chair, looking at the agenda and most of the remaining items, they seem to be satisfactory, progress and action being taken. Unless members have a question or concern with one of those reports, I would move the remainder of the agenda.
Ms. Borkowski-Parent: The question marks are those where we need the committee’s input. The two items under “Reply Satisfactory (?)” are not clear. In addition, one item under “Progress?” is an understatement for absence of progress. We need the committee’s direction on Items 8, 9 and 11 at least.
Mr. Badawey: If we can, in the future, Mr. Chairman, have that outlined on the agenda that there is action to be taken rather than outlining it as satisfactory or progress, that would be helpful.
The Joint Chair (Senator Day): Counsel, you have made note of that request?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): In that case, Mr. Badawey, we will hold your motion in abeyance pending clarification on points where counsel needs clarification. We will go to with Item No. 8 on the agenda.
SOR/88-397 — ROYAL CANADIAN MOUNTED POLICE EXTERNAL REVIEW COMMITTEE SECURITY AND CONFIDENTIALITY REGULATIONS
(For text of documents, see Appendix G, p. 36G:1.)
Ms. Becklumb: This file dates back to 1988, when the regulations were first made. Counsel raised just one issue, and letters were exchanged over a period of two years. The joint committee considered the file in 1990, but for reasons unknown, there has been no further consideration of this file since 1990.
Even though 28 years have elapsed since that time, the regulations are still in force. They relate to the RCMP External Review Committee, which is an independent administrative tribunal that hears appeals in RCMP labour relations matters.
The regulations include only one substantive provision requiring members and employees of the RCMP External Review Committee to comply with security and confidentiality requirements and to take an oath of secrecy.
Note that members of the External Review Committee are not members of the RCMP. They are not under the same confidentiality requirements as RCMP members, but members and staff of the External Review Committee exchange confidential information with the RCMP, including personal information about individuals who are going through the grievance process.
The issue raised by counsel is whether the security and confidentiality requirements imposed by the regulations should more appropriately have been imposed as administrative rules that the External Review Committee makes for its own operations under section 29 of the act.
The Chairman of the External Review Committee responded that although the External Review Committee could establish its own rules imposing security and confidentiality requirements, those rules would not have the desired effect because the External Review Committee would be able to change them unilaterally at any time, and this would undermine trust in the confidentiality of the system.
But imposing the security and confidentiality requirements through regulations made by the Governor-in-Council ensures confidence in the overall integrity of the system.
If it is indeed more appropriate to impose these requirements through Governor-in-Council regulations rather than through administrative rules, the next question is whether the RCMP Act actually authorizes such regulations. The relevant provision of that act is paragraph 21(1)(c), which authorizes the Governor-in-Council to make regulations “. . . generally, for carrying the purposes and provisions of this Act into effect.”
The External Review Committee seems to have suggested that the External Review Committee review system carries out purposes and provisions of the act and, since the regulations are required to ensure trust in the confidentiality of that system, that they too carry out the purposes and provisions of the act.
This argument is not entirely persuasive, but it’s not clearly wrong, either. Considering the circumstances, the committee might consider giving them the benefit of the doubt and closing the file, or would you like to pursue it?
Mr. Oliver: We should close the file on this one.
The Joint Chair (Senator Day): Is there general agreement that we should close the file on this?
Mr. Dusseault: I have a question about the difference between making regulations and internal rules. Certainly the legal force is less if we are simply talking about internal rules. I feel that the argument is quite convincing. These rules can be amended at the discretion of the leaders of the committee. I agree with closing the file, but was it standard to have internal rules of that kind, dealing with confidentiality and security, in similar committees?
The Joint Chair (Senator Day): Are there any other comments?
Ms. Borkowski-Parent: I would say so, yes. For example, the code of ethics imposed on Library of Parliament employees is an administrative guideline, not something included in a regulation. That happens quite often.
Mr. Dusseault: It is an exception for the Governor-in-Council to —
Ms. Borkowski-Parent: It is, but the argument for ensuring trust in the confidentiality of the system for handling grievances must be transparent and included in the regulations. It is a convincing argument.
Mr. Dusseault: Thank you.
The Joint Chair (Senator Day): Is there a general consensus that we will close the file on this? Yes, there is; we will close the file.
We will move to Item No. 9.
SOR/2017-88 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS
(For text of documents, see Appendix H, p. 36H:1. )
Ms. Borkowski-Parent: Section 118 of the Firearms Act requires proposed regulations to be laid before each House of Parliament. Section 119 contains certain exceptions to this tabling requirement, notably if the federal minister is of the opinion that the changes made by the regulation to an existing regulation are so immaterial or insubstantial that section 118 should not be applicable in the circumstances.
Where the federal minister forms this opinion, however, subsection 119(4) indicates that he or she shall have a statement of reasons why he or she formed that opinion laid before each House of Parliament. There is no timeline identified within which the statement of reasons must be tabled.
So the executive portion of the regulations indicates that the minister is of the opinion that the change made by the regulations is so immaterial and insubstantial that the requirement to table proposed regulations should not be applicable.
Further, it indicates that the minister will, in accordance with subsection 119(4) of that act, have a statement of the reasons why he formed that opinion laid before each house.
This particular instrument was made and registered on May 12, 2017, and published in the Canada Gazette on May 31. Parliament adjourned for the summer on June 21 and resumed in September, but the opinion of the minister was not tabled for a further month. The letter from the department advising that tabling had occurred provides no explanation for the delay.
Since the regulations were first made in 2004, the date of coming into force, which was the object of that regulation, was amended nine times. The minister’s statement was tabled, without prompting from this committee, in only three of those instances. So the committee has reminded the department and/or the minister of this obligation in 2005, 2010, 2011, 2012, 2015 and now, 2017. The current minister even responded to that very concern raised SOR/2015-195 in August 2016, so it is surprising that the same issue arose for regulations made shortly thereafter.
I’m in the committee’s hands as to whether it considers the department’s response, which does not address the tardiness of the statement tabled in the house, to be indeed satisfactory.
Mr. Dusseault: I am going to try to get a satisfactory answer. Have they been asked so far whether it is their intention to amend the Firearms Act in order to include a deadline for the tabling of the statement of reasons? Has that question been asked? If so, what was the answer?
Ms. Borkowski-Parent: That is a very good question. No, the question has not been asked as to whether they wanted to add a timeframe for tabling the minister’s reasons.
Mr. Dusseault: Perhaps we could do that from our end, to see whether they think it is important to set a certain limit within which the document is to be tabled. You are saying that they have made the same mistake a number of times.
Ms. Borkowski-Parent: Yes.
Mr. Dusseault: We should look at that. I know that this is an act, and that our committee has less power over acts, but we could still ask for an opinion on the possibility of adding a timeframe into the act.
The Joint Chair (Senator Day): Is there any further comment in that regard? It has been suggested that we ask the department: Why not have a deadline in there so that there wouldn’t be this period of delay in the minister giving us his opinion?
Would that be a reasonable approach, counsel?
Ms. Borkowski-Parent: Of course.
The Joint Chair (Senator Day): The alternative is to say what has happened has happened and close the file?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): What is your pleasure? Do we pursue this one further and try to get a deadline, or at least ask them why not, or do we close the file?
Senator Stewart Olsen: I would like to ask why not. This file is quite sensitive. I think we should pay attention to all of this, so I would like to know why not. I don’t see the harm in asking that question.
The Joint Chair (Senator Day): Is there consensus on that?
In the form of a motion, Mr. Dusseault, do you propose that correspondence go to the department asking why they should not incorporate a deadline in the legislation?
Mr. Dusseault: Yes.
The Joint Chair (Senator Day): All those in favour? Contrary minded? Motion carried. That’s the action we will take on Item No. 9.
Counsel, that was clear?
Ms. Borkowski-Parent: Yes.
Next is Item 10 under “Progress.”
SOR/2006-50 — CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS
(For text of documents, see Appendix I, p. 36I:1.)
The Joint Chair (Senator Day): For this item, is there something you need to bring to our attention here?
Ms. Borkowski-Parent: No, we’ll follow up the progress of Bill C-42.
The Joint Chair (Senator Day): Thank you.
Item 11 on our agenda falls under the heading “Progress (?).”
SOR/2010-173 — REGULATIONS AMENDING THE NEWFOUNDLAND AND LABRADOR FISHERY REGULATIONS
SOR/2011-194 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE FISHERIES ACT (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix J, p. 36J:1.)
Ms. Borkowski-Parent: The Fisheries Act authorizes the Governor-in-Council to prescribe “close time” for the purpose of managing and conserving fisheries. Under paragraph 43(1)(m) of the act, a fishery officer can then vary those close times or the quotas under the regulations.
The practice in many of the Fisheries Regulations was to establish year-round close times, so fishing prohibited for the whole year, or token close times, which is fishing prohibited for only one day, and leave the discretion to establish close times to fisheries officers. This practice amounts to an unusual exercise of the authority delegated by Parliament because it delegates to the fisheries officer what is otherwise a Governor-in-Council power. The committee reported on this practice in 1987 in its forty-first report.
The department indicated back in the early 2000s that token or year-long close times would be addressed through a close time project that would target the various fisheries regulations. The committee waited patiently for the results of this project and followed up regularly. As recently as 2015, the department indicated the project was still on the books.
The most recent update, however, from October 2017 made no mention of that project, so a follow-up letter was sent. It appears that the second phase of the project didn’t go through because of a change of approach in dealing with these regulations. There is no indication of time lines in that letter of January 23, 2018.
First, this is the second instance in the recent past where the committee has been led to believe issues were going to be addressed through some kind of large project that did not materialize in the end. That’s a word of caution. The other case was the Canadian Aviation Regulations.
On the other hand, as I mentioned earlier, the committee waited patiently for the completion of the project. It’s not clear when between 2015 and January of this year the project was dropped, but as a matter of courtesy, it should have been brought to the attention of the committee without counsel having to decipher the subtext of letters.
Lastly, a time frame on the regulations and all other outstanding regulations that were related to the close time project needs to be provided by the department at this point.
Senator Stewart Olsen: Thank you. This whole issue is of particular interest to me, but I need some clarification. Are you saying it’s really left with the officials or the minister to decide the close times? And why is that a problem? It has to be a flexible approach to the fisheries. They are on the ground; they know when fisheries should be closed.
I’m not certain what we want to do here. Are we asking for them to say that they need the flexibility? I’m not sure what we’re asking.
Ms. Borkowski-Parent: Yes, it is left to administrative officials to determine. Parliament decided that the Governor-in-Council should be making the determination. That’s what the act says. By adopting a token close time, sometimes those close times involve fishing being prohibited for one hour over the year. Just leaving it to administrative officials is not in the spirit of the enabling act.
If the intent is to have administrative officials determine on the ground what close times should be, then the act needs to be changed.
Senator Stewart Olsen: Okay. Thank you.
Ms. Borkowski-Parent: At this point, they have agreed they will resolve the close times issues. They have started on other files. It was supposed to be an all-encompassing project. Now, it’s unclear as to how this one will progress. The others have not been addressed.
Senator Stewart Olsen: Do you have a suggestion for proceeding?
Ms. Borkowski-Parent: Specific time frames on all. All the Fisheries Regulations were bundled in that close time project, and that was supposed to address all of them. If that’s no longer the case, they should have told the committee and provided time frames for each of the regulations as to when the amendments are going to happen.
The Joint Chair (Senator Day): Counsel is proposing correspondence with the department to ask for specific timelines. Senator Stewart Olsen, are you okay with that?
Senator Stewart Olsen: Yes, I’m fine. I understand what we’re trying to get to.
The Joint Chair (Senator Day): We have consensus on that, so we will proceed in that manner. Thank you.
Next is Item No. 12.
SOR/2013-181 — REGULATIONS AMENDING THE CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS
(For text of documents, see Appendix K, p. 36K:1.)
Ms. Becklumb: This is a long-standing problem of inconsistency between the English and French versions. To cut to the chase, the department has now said they are going to bundle it with a bigger project of regulatory review: “We might change the act and then we’ll need to change the regulations, so we’ll make these amendments at that time.”The question is whether the committee is prepared to wait for some time in the future to have these inconsistencies addressed, or would you like us to ask the question that perhaps they could fix it immediately in a MARs or standalone regulatory amendment?
Mr. Dusseault: I saw that they promised — because they referred to a complete review of the criminal justice system. If memory serves, it is either Bill C-75 or C-73 that makes major amendments to the Criminal Code. Is there anything related to that in the bill? They seem to suggest that there is, and the review of the Criminal Code is now before Parliament. Does that address the issue in part, or not at all?
Ms. Borkowski-Parent: Currently, a number of bills are making amendments to the enabling legislation. At first glance, nothing in those bills directly addresses the committee’s concerns in this regard. The question can be asked. At first glance, I do not think so. From the way this is explained, I understand that the intent is simply to reform the criminal justice system in its entirety and that will ipso facto address the committee’s concerns. However, in terms of what is going on, I have no further details.
Mr. Dusseault: We could point out to them, for example, that they have made us wait for the complete review of the criminal justice system and, now that we have seen the bill, we see that nothing addresses the committee’s concerns. So, why is that?
The Joint Chair (Senator Day): Any further comments? Mr. Dusseault is suggesting a letter to the department asking for clarification.
Mr. Shipley: My concern is that they will come back talking about the legislative changes that will allow them to implement it. That may not happen for a long time, whereas the regulatory changes can actually be done. That’s what was suggested.
We need to boil this down and talk about the regulatory change. They can then come back.
When you read through the history, it’s “as soon as possible,” “under way” and “part of a greater review.” All those terms are used as excuses for why they haven’t done anything. If we are going to continue to talk about the legislative review, that’s what we will continue to get. Regulatory changes are a lot similar to make, particularly when they are focused on an issue.
I would suggest that the committee consider sending a letter asking them to give us clarity on the regulatory changes, with a timeline of how long it would take them to review it.
That’s a motion.
The Joint Chair (Senator Day): Is there any discussion on that motion?
The Joint Chair (Mr. Albrecht): Would Mr. Shipley agree that it be done by the end of the current calendar year?
Mr. Shipley: I wasn’t sure of the timeline. You would have some thoughts on it.
The Joint Chair (Senator Day): It’s entirely up to us.
Mr. Shipley: In terms of timelines, I’m not familiar enough with the complexity of that regulatory change.
Ms. Borkowski-Parent: If it can be made through a MARs, then it’s a much simpler process where you don’t have to go through consultation, prepublication in the Canada Gazette, Part I. At Penny’s recommendation, we can deal with this in a MARs so that it can be dealt with relatively fast — maybe before the end of fiscal year, to be generous. Then whatever else boils down from the review of the criminal justice system can be addressed at a later time.
Mr. Shipley: I would suggest we put that in, then. If that’s an issue, they should respond back to us. That would be the motion.
The Joint Chair (Senator Day): In the fiscal years.
The Joint Chair (Mr. Albrecht): At the end of March 2019.
The Joint Chair (Senator Day): Let’s get this clarified. Calendar year or fiscal year?
Mr. Shipley: Calendar year.
The Joint Chair (Senator Day): The end of December.
Senator Stewart Olsen: As part of a letter on these issues of language inconsistency, I’d like to see wording such that it’s not acceptable in a bilingual country to not move expeditiously on these issues — something like that.
The Joint Chair (Senator Day): Mr. Shipley, are you happy to have that suggestion incorporated?
Mr. Shipley: Yes.
The Joint Chair (Senator Day): All those in favour of the motion raise your right hand? Contrary minded? Thank you. Motion carried.
SOR/2017-21 — REGULATIONS AMENDING CERTAIN PARKS CANADA AGENCY REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix L, p. 36:L1. )
SOR/2017-124 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS
(For text of documents, see Appendix M, p. 36M:1.)
SOR/2014-52 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS
(For text of documents, see Appendix N, p. 36:N1.)
SOR/2015-72 — REGULATIONS REPEALING CERTAIN REGULATIONS MADE UNDER THE FARM INCOME PROTECTION ACT (MISCELLANEOUS PROGRAM)
SOR/2017-84 — REGULATIONS REPEALING CERTAIN REGULATIONS UNDER THE FARM INCOME PROTECTION ACT (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix O, p. 36O:1.)
SOR/2017-18 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF HEALTH REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix P, p. 36P:1.)
SOR/2017-20 — REGULATIONS AMENDING THE BALLAST WATER CONTROL AND MANAGEMENT REGULATIONS
(For text of documents, see Appendix Q, p. 36Q:1.)
SOR/2017-49 — ORDER 2017-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2017-157 — ORDER 2017-66-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST
(For text of documents, see Appendix R, p. 36R:1.)
SOR/2017-75 — ORDER 2017-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
(For text of documents, see Appendix S, p. 36T:1.)
SOR/2017-163 — ORDER 2017-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2017-234 — ORDER 2017-66-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST
(For text of documents, see Appendix T, p. 36T:1.)
SOR/2017-182 — REGULATIONS AMENDING THE EXPORT PERMITS REGULATIONS
(For text of documents, see Appendix U, p. 36U:1.)
The Joint Chair (Senator Day): Mr. Badawey has a motion to have counsel continue to monitor Items 13 through to 22. Is there anything in those items that you should bring to our attention?
Ms. Borkowski-Parent: We would monitor Items 13 and 14, and 15 onwards would be closed.
The Joint Chair (Senator Day): Okay.
SOR/2017-6 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2017-27 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2017-36 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER
SOR/2017-50 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986
SOR/2017-89 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER
SOR/2017-108 — DESIGNATION OF REGULATORY PROVISIONS FOR PURPOSES OF ENFORCEMENT (MIGRATORY BIRDS CONVENTION ACT, 1994) REGULATIONS
SOR/2017-114 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF FINANCE REGULATIONS (MISCELLANEOUS PROGRAM)
SOR/2017-186 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT
SOR/2017-187 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (FORT FOLLY)
SOR/2017-188 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (FORT FOLLY)
SOR/2017-189 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (DAY STAR)
SOR/2017-190 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (DAY STAR)
SOR/2017-193 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (BLUEBERRY RIVER)
SOR/2017-197 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS
SOR/2017-198 — REGULATIONS AMENDING THE WEIGHTS AND MEASURES REGULATIONS
SOR/2017-206 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986
SOR/2017-207 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2017-210 — ORDER 2017-66-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2017-218 — REGULATIONS AMENDING THE NATIONAL PARKS OF CANADA WILDERNESS AREA DECLARATION REGULATIONS
SOR/2017-221 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (NAICATCHEWENIN)
Ms. Borkowski-Parent: There are 21 “Statutory Instruments Without Comment.” They have been reviewed by counsel and found to be in compliance with the committee’s 13 criteria. They are not reproduced in your materials, but we always have copies here at the meeting should you want to consult them.
The Joint Chair (Senator Day): That’s excellent. We will continue to monitor 13 and 14, and we’ll close out 15 to 22. All those in favour? Contrary minded? The motion is carried.
Thank you, Mr. Badawey.
The next meeting is May 24.
Mr. Oliver: Is that the meeting that we are having witnesses from Environment?
Ms. Borkowski-Parent: Innovation, on the two notices of disallowance.
The Joint Chair (Senator Day): Thank you.
(The committee adjourned.)