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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue No. 49 - Evidence - May 9, 2019

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OTTAWA, Thursday, May 9, 2019

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of Statutory Instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

APPEARANCE OF WITNESSES FROM THE DEPARTMENT OF GLOBAL AFFAIRS CANADA

SOR/2005-306 — REGULATIONS AMENDING THE UNITED NATIONS DEMOCRATIC REPUBLIC OF THE CONGO REGULATIONS

SOR/2006-164 — REGULATIONS AMENDING THE UNITED NATIONS AFGHANISTAN REGULATIONS

SOR/2014-212 — REGULATIONS AMENDING THE UNITED NATIONS AL-QAÏDA AND TALIBAN REGULATIONS

SOR/2007-44 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON IRAN

SOR/2007-204 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LEBANON

SOR/2007-285 — SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

SOR/2012-85 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

SOR/2008-248 — SPECIAL ECONOMIC MEASURES (ZIMBABWE) REGULATIONS

SOR/2009-92 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

SOR/2012-121 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

SOR/2010-84 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON ERITREA

SOR/2011-114 — SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-220 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-330 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2014-163 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE CENTRAL AFRICAN REPUBLIC

SOR/2014-213 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON YEMEN

(For text of documents, see Appendix A, p.49A:1.)

The Joint Chair (Mr. Albrecht): I’d like to call the meeting of the Standing Joint Committee for the Scrutiny of Regulations to order. As committee members will see, we have a number of witnesses today from Global Affairs Canada who will walk us through a number of files that have been on our agenda for a number of years. It’s my hope and, I think, all of our committee members’ hope, that we can move expeditiously to deal finally with some of these items that have been outstanding for some time.

We will have opening statements from the witnesses. We have Marie-Josée Langlois, Director General, International Economic Policy; Mr. Colin Barker, Director of Softwood Lumber; Cheryl Urban, Director General, Latin America and Caribbean Bureau; and Roland Legault, Director, United Nations, Human Rights and Economic Law.

I see you have some others here with you. If you need to call on them, that is okay as well.

I believe, Ms. Langlois, you will start with your opening statement. Welcome to the committee.

Marie-Josée Langlois, Director General, International Economic Policy, Global Affairs Canada: Thank you very much. Good morning and thank you to the Standing Joint Committee for the Scrutiny of Regulations for welcoming me and my colleagues here today on behalf of Global Affairs Canada.

I’m the Director General for the International Economic Policy Bureau, which includes responsibility for the sanctions policy and operations division. My team is responsible for coordinating Canada’s sanction design and implementation under the responsibility of Elissa Golberg, the Assistant Deputy Minister for Strategic Policy, who appeared before this committee on December 13, 2018.

As you know, we work with a variety of partner departments, including Justice Canada, Finance Canada, the Canada Border Services Agency and Immigration, Refugees and Citizenship Canada, to name a few.

[Translation]

I am joined today by my colleagues from the Legal Affairs Bureau, the North American Trade Policy and Negotiations Bureau and the Venezuela Task Force. We are pleased to appear before the committee to discuss issues related to regulations made pursuant to the Special Economic Measures Act, the United Nations Act, and the Export and Import Permits Act, and in particular, in my case, to follow up on the issues outlined in correspondence on sanctions regulations between the committee and the department, with a view to providing additional policy clarity on certain provisions in Canada’s sanctions regulations.

Since Global Affairs Canada last appeared before the committee in December, there have been a number of concrete developments that I would like to draw to the committee’s attention before we begin the question and answer session.

On January 29, 2019, departmental officials, including legal counsel, met with the committee’s legal counsel to provide additional clarity on certain provisions found in Canada’s sanctions regulations. ln our view, this was a very productive and worthwhile discussion. ln particular, we built on the earlier discussion in this committee on the duty to disclose information to the RCMP and the protections against self-incrimination included in the regulations. We also provided additional clarity on the scope of prohibitions from the department’s perspective.

Subsequent to that meeting, Global Affairs Canada provided additional information to the committee in a letter dated February 18, 2019. That letter also noted that, with the new resources devoted to sanctions in Global Affairs Canada, there will be an ongoing review of existing sanctions enabling acts with a view to providing advice that may include recommendations regarding possible legislative amendments, while taking policy and legal considerations into account, including those raised by this committee.

ln April, the department responded to letters from the committee’s counsel related to concerns with the UN regulations for the DPRK and Iran, as well as the Justice for Victims of Corrupt Foreign Officials Regulations. Global Affairs will continue to work on improving our regulations and to take into account the issues raised in the committee’s letters and in the meeting with the committee’s counsel.

[English]

In addition, on February 28, 2019, the Governor-in-Council approved amendments that seek to harmonize terms, remove obsolete elements, correct errors and add clarity and consistency across 22 Special Economic Measures Act and United Nations Act regulations.

This horizontal regulations package also addressed a number of concerns raised by the Standing Joint Committee for the Scrutiny of Regulations in previous correspondence with the department. The regulations were registered and came into force on March 4, 2019, and the Minister of Foreign Affairs tabled these amendments in the House of Commons and Senate on March 18, 2019.

These amendments include modifications to replace references to “act or thing” with “activity” and in the French versions, replacing the word “act” with “activité”; modifications to the duty-to-determine provisions in certain Special Economic Measures Act and United Nations Act regulations to resolve inconsistencies and facilitate compliance by financial institutions that are required to determine whether they are in the possession or control of the property of a listed person; modifications to the duty-to-disclose provisions in certain Special Economic Measures Act and United Nations Act regulations to resolve inconsistencies and clarify the safeguards against self-incrimination for good faith disclosures by persons in Canada or Canadians abroad who believe they are in possession or control of the property of a listed person; finally, modifications to the mistaken identity provisions in certain United Nations Act regulations to harmonize the provisions, including by standardizing the time frame within which the Minister of Foreign Affairs must make a decision.

These changes represent the most ambitious package of regulatory amendments undertaken by the department and are part of Global Affairs Canada’s continuing commitment to improve Canada’s sanctions regime. I’m happy to provide additional details on these recent amendments, should you have questions.

[Translation]

The department will continue to identify and implement changes across regulations to improve the effectiveness of and add clarity to the drafting. We appreciate the committee’s serious and important review of the regulations, and welcome opportunities such as this to benefit from the committee’s insights.

We note that there have been ongoing questions on the association formed between Canada and the United States to respond to the situation in Venezuela. My colleague Cheryl Urban can provide some additional insight on the activities and purpose of the association.

[English]

The Joint Chair (Mr. Albrecht): It’s my understanding that Mr. Barker will go ahead?

Ms. Langlois: If you don’t mind, Ms. Urban will follow on and then Mr. Barker.

The Joint Chair (Mr. Albrecht): Just continuing on with statements here. I wanted to clarify. Please proceed.

Cheryl Urban, Director General, Latin America and Caribbean Bureau, Global Affairs Canada: Honourable chairs, thank you for the opportunity to address the committee regarding Canada’s role in responding to the crisis in Venezuela. Canada’s leadership role on this issue has included coordination —

The Joint Chair (Mr. Albrecht): Committee members, flip one section and go to the last section. There are no page numbers. It’s the last page on mine.

Ms. Urban: That’s fine.

The Joint Chair (Mr. Albrecht): We can start with “Canada’s leadership.”

Ms. Urban: Canada’s leadership role on this issue has included coordination of international efforts aimed at the restoration of constitutional democracy.

Canada’s engagement with the U.S., with members of the Lima Group and with partners outside the hemisphere, has demonstrated broad international consensus on the importance of applying pressure to the Maduro regime.

[Translation]

To this end, the Canada-United States association on Venezuela was established in September 2017, and meets regularly to engage on substantive issues. The association has met formally five times to date, with the most recent meeting held in March 2019. It meets at the senior officials level — usually either director general or assistant deputy minister on the Canadian side — and I have participated in three of these meetings.

[English]

The meetings are attended by Venezuelan experts from two countries and, on occasion, by sanctions experts to discuss the situation in Venezuela and recommend measures that the members can take in response. There are also regular informal discussions between members on these issues, given the quickly evolving nature of the situation in Venezuela.

The association has highlighted the value of measures to pressure the regime, as well as the importance of engaging with other partners. In this regard, members recently hosted a joint technical workshop for Lima Group countries in Washington, D.C., in April 2019 to share experiences and encourage Latin American countries to increase pressure on the Maduro regime by taking further coordinated actions regarding sanctions.

Since the association was formed, Canada has imposed four rounds of targeted sanctions, three under the Special Economic Measures Act and one under the Justice for Victims of Corrupt Foreign Officials Act against a total of 113 individuals responsible for the deteriorating situation in Venezuela.

The U.S., meanwhile, has imposed 17 rounds of sanctions since March 2015, including seven rounds in 2019 alone, on 91 Venezuelan officials, as well as sanctions on the oil and gold sectors of Venezuela’s economy.

Other international partners have followed the association’s lead. The European Union has imposed sanctions on 18 Venezuelan officials, all of whom are also sanctioned by Canada, and Switzerland has followed the EU’s model. Lima Group members including Panama, Argentina, Peru and Colombia have also imposed stricter financial scrutiny and/or travel bans or visa suspensions on regime officials.

In conclusion, Canada’s policy on Venezuela and the measures thus imposed are consistent with the positions of our allies in the Americas and beyond. We will continue to cooperate with them in pursuit of restoring constitutional democracy in Venezuela. Thank you.

Colin Barker, Director, Softwood Lumber, Global Affairs Canada: Good morning, Mr. Chair and members. I would like to thank the committee for the opportunity to appear before you today. My name is Colin Barker, and I am Director of Softwood Lumber at Global Affairs Canada.

We are responsible for the coordination of Canada’s legal challenges against U.S. duties on Canadian softwood lumber, the negotiation and implementation of softwood lumber agreements between Canada and the United States, and the administration of the softwood lumber monitoring program, which includes the issuance of permits for softwood lumber exports to the United States and all log exports.

As the committee is aware, Canadian exports of softwood lumber into the United States have been the source of a decades-long, cyclical dispute characterized by periods of managed trade when a softwood lumber agreement is in force, and periods of litigation when the U.S. imposes countervailing and anti-dumping duties on Canadian softwood lumber. Canada responds with legal challenges at the World Trade Organization and under NAFTA Chapter 19.

The softwood lumber file is presently in a period of active litigation. The Government of Canada is actively challenging U.S. findings in its anti-dumping and countervailing investigations with two WTO panels and three NAFTA Chapter 19 panels. A key component of Canada’s strategy related to softwood lumber is their use of a reliable and continuous source of data collected through the issuance of permits for exports of softwood lumber into the United States.

This is of particular importance for Canada’s future negotiations with the United States to resolve the current round of litigation. It is in Canada’s interests to use our own economic and trade data, instead of another data set that may not be as accurate, when formulating Canada’s positions in these negotiations on issues such as U.S. market share. Having an accurate and reliable data collection system based on continuous time periods makes it very difficult for the United States to ignore or discredit Canada’s data set, and maximizes our ability to provide sound, evidentiary-based arguments.

That is why, in 2015, in conjunction with the expiry of the 2006 Softwood Lumber Agreement, Global Affairs Canada amended the Export Control List for the purpose of continuing to monitor the exports of softwood lumber products into the United States.

We also sought to address the necessity of removing and relisting softwood lumber products to the Export Control List by amending subsection 3(1) of the Export and Import Permits Act, through Bill C-47, which received Royal Assent on December 13, 2018. This was done to facilitate the collection of information on the exportation of goods that were, are, or are likely to be the subject of trade investigations or trade disputes. Consultations with provinces and industry revealed broad support for these measures so that Canada could possess and rely on an uninterrupted and reliable data set in the current dispute.

In closing, I would like to reassure the committee that the order amending the Export Control List was made pursuant to an enumerated purpose set out in subsection 3(1) of the Export and Import Permits Act, and that any hesitation on our part to be more detailed in our responses was simply guided by our efforts to defend Canada’s interests in the softwood lumber dispute to the fullest extent possible.

With that, I would like to thank you for your time and I’m, of course, happy to answer any questions.

The Joint Chair (Mr. Albrecht): Thank you to all of our witnesses for your input. We have a number of files under this particular item, so I’m going to open it up to committee members.

[Translation]

Senator Mégie: I will ask only two questions. With regard to the point on victims of corrupt regimes, what can Canada do in practice? Does this apply to people who have left the country and come to Canada?

In managing the crisis in Venezuela, even if measures are taken against the country, in fact, are they really taken? Does the population suffer from these penalties? In the end, we still have to send humanitarian aid to respect our agreements.

What compensates and what does not? Are the measures really being taken and are people suffering as a result? Are they able to react and change the situation? So far, from what I hear in the media, not much has changed.

Ms. Langlois: Thank you for that question. With respect to the Justice for Victims of Corrupt Foreign Officials Act, Canadian sanctions apply to nationals of foreign countries who have property with which Canadians can deal. So Canadians are restricted from doing business with the people concerned. These are not protections that apply to Canadians themselves, but it is our way of moving the situation forward and holding people accountable for actions that violate human rights and corruption standards, particularly to protect the general public. With regard to Venezuela, my colleague Cheryl Urban can give you more information.

[English]

Ms. Urban: Thank you very much for the very good question regarding Venezuela.

One thing I would like to highlight is that Canada’s policy towards the Venezuelan crisis has a few different dimensions. One of them is political pressure, but another dimension of Canada’s engagement on the Venezuelan crisis is supporting Venezuelans and trying to alleviate the suffering of Venezuelans right now, which is quite profound.

Currently, there is a migration crisis and the migration out of Venezuela is the second-largest migration crisis in the world presently. Canada to date has provided $55 million to support the alleviation of suffering of Venezuelans and for Venezuelan migration.

The majority of that $55 million has been for outside of Venezuela to help Venezuelan migrants. A large portion of that has gone to Colombia because they’re absorbing possibly over 1.5 million Venezuelans right now.

The scale of migration is very large. To date, about 10 per cent of the Venezuelan population is living outside of the country and has left. That is for accommodation of humanitarian assistance, and it’s also to provide development assistance, things like access to the labour market and education for girls, et cetera, or sexual health and reproductive rights health.

With regard to the effect of the sanctions on the population, one of the key problems in assisting the population within Venezuela is that Maduro refuses to allow access to humanitarian organizations to provide humanitarian aid. Truly, the way to get humanitarian assistance into the country is to remove the barrier to getting that assistance in, which is the Maduro regime itself.

So in order to address the cause of the suffering, the pressure is there, and it is the view of Canada and its allies and the Lima Group that a sustained pressure, including punitive measures, is still required.

SOR/2018-114 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (VENEZUELA) REGULATIONS

(For text of documents, see Appendix D, p. 49A:1.)

The Joint Chair (Mr. Albrecht): If I could interrupt for a second as chair, because there are four sections to our agenda items, I think it’s going to be very confusing if we try to do all four together.

Since we started on the Venezuela one on the back end of our agenda, let’s focus on the 1.D. section of our agenda for this first part and try to move methodically through them. Unless the committee disagrees with that, I think it will be easier for us to focus.

Are you still comfortable going on these two questions?

Mr. Simms: Which one is 1.D.?

The Joint Chair (Mr. Albrecht): It’s in your package on Venezuela.

[Translation]

Mr. Dusseault: I have questions on other topics, but I could talk about Venezuela right now because it would be easier for everyone to follow. I will reserve my other questions for later. First, I would like to thank you for the progress made on two issues that the committee raised, SOR/2019-60 and SOR/2019-61.

With regard to Venezuela, we are not here to debate the merits of economic sanctions and all that. I think we’re here to check whether the regulations have complied with the law. The department’s rationale for the regulations was that an association had made the decision to impose economic measures, and that this association was composed of only two countries. The issue at stake is to verify the legislator’s intention in the legislation when he says this, and I quote:

an international organization of states or association of states. . .

Does the fact that the association has only two members align with the legislator’s intention? When parliamentary debates on this issue were reviewed, it was believed that the legislator and parliamentary secretary at the time were talking about a multilateral organization that reflected a broad international consensus. You have already mentioned consensus. The question of what constitutes a consensus or not could be debated forever, but the most important point is that the intention seemed to involve a multilateral organization, which would therefore have more than two states.

In your opinion, does the regulation respect the intent of the legislator in the case of a multilateral organization? Secondly, was the only purpose behind the creation of this bilateral association to meet what was set out in the law in order to allow special economic measures to be taken against Venezuela?

Ms. Langlois: Thank you for your question. I know this is an issue that has been studied in depth by the committee. I would like to reiterate that, from the department’s perspective, the association formed by Canada and the United States in response to the situation in Venezuela is an association within the meaning of the law. The law does not mention the number of countries covered. So, from our point of view, it’s a valid association.

In the context of foreign affairs, there are often alliances with variable geometry. Sometimes they are larger; other times they are smaller. In the case of the sanctions law, only some countries have national laws aimed at implementing autonomous sanctions, which creates a slightly different context. For example, in the context of the United Nations, there is a Security Council decision that is much more important. That is one of the considerations in this case, because there has been a lot of talk about autonomous sanctions with Venezuela.

It is an association that has met several times and deals with subjects that are not only related to sanctions. There have been several meetings, and my colleague could give you more details on the topics covered by the association and the meetings that have taken place in the past and will take place in the future.

Mr. Dusseault: The American sanctions date back to 2014, is that correct?

Ms. Langlois: Yes.

Mr. Dusseault: Why, since 2014, is there no multilateral organization that meets Canada’s legislative requirement on economic measures? This could have given you the authorization to take these measures with respect to this decision. For example, there are the United Nations, the Lima Group and other multilateral organizations larger than an association created in 2017 by two countries for the sole purpose, in my view, of meeting Canadian criteria for special economic measures.

Ms. Langlois: To give you a little more context, as I mentioned, in this case, these are autonomous measures taken by countries, and there are a limited number of them. For example, in the Lima Group, national laws are different. The use of sanctions has generally increased in recent years. Some sanctions have been in place for longer.

Thanks to the experience and increased collaboration in the field of sanctions, we realize that what is important is the coordination of sanctions in order to put more pressure on people to be accountable for their actions and to make a difference. There are a number of events that have encouraged a wider use of sanctions. In addition, there is more collaboration between the different countries over time, whereas before, it was considered more individually.

As far as the association itself is concerned, my colleague could give you more information.

[English]

Ms. Urban: Thank you very much for the good questions. Perhaps I’ll add a bit of context around this and what was happening at the time to help explain the creation of the association.

The association was created in September 2017, and it followed immediately after very important events in Venezuela in August 2017.

The summer of 2017 was, by many, considered to be a turning point in Venezuela. This is when the democracy was seriously degraded. The national assembly was stripped of its legislative powers, so that meant the only remaining democratic institution in Venezuela became powerless. This was seen by many in the hemisphere to be a game changer and unacceptable.

What you saw in the summer of 2017 was a change, an evolution in foreign policy within the hemisphere. And this was also when you saw the creation of the Lima Group, which I suppose you could call it a new form of multilateralism certainly in the hemisphere, which is more of an ad hoc temporary form of multilateralism that was created. The creation of the association was within that context.

It is true that the United States had sanctions previous to this period of time. The sanctions that are discussed within the association between Canada and the United States from the very beginning have focused on this new context within Venezuela. It has been a very dynamic and evolving situation since that period of time.

It has been a little over a year and a half, and the association has met five times. The reason is that the association has very substantive discussions about what has been evolving in the evolving situation. Some events have been rather unexpected. It has been an agreement that political pressure is required in order for the international community to make efforts to help with the restoration of constitutional democracy.

Canada and the association, I would describe that as one part of a new form of multilateralism within the hemisphere where Canada is a member of the Lima Group and the United States is not. Part of Canada’s role is that it is working with the United States and representing the view of Canada, as well as the view of the Lima Group in discussions more generally, including with regard to the issue of political pressure and the issue of sanctions.

One of the reasons that the association held a workshop on sanctions — it was just this past month — was because there was always the desire within the association to collaborate and coordinate with a larger group of people, including with Lima Group members. In earnest, we are reaching out. The workshop we held last month had, I believe, 46 participants from Lima Group countries, as well as others.

There is a strong desire for that coordination to continue and for that to go beyond just Canada and the United States.

[Translation]

Mr. Dusseault: I have one last question for the witness, before I turn it over to the others. The justification in SOR/2018-114 clearly indicates that it is an international association. You have already replied that, in your opinion, this is in accordance with the spirit of the law and that you are authorized to use the regulations. However, have you taken into account the legislator’s intention — which clearly targeted multilateral organizations — to justify such measures? Today, these regulations open the door to the fact that Canada can partner with only one country, any country in the world, and create a separate ad hoc group to impose special economic measures, whereas Parliament’s intention concerned multilateral organizations and a broad consensus, precisely to avoid imposing sanctions that are solely national. Do you believe that SOR/2018-114 respects the intent of the legislator, and not strictly the letter of the law?

Ms. Langlois: Thank you for your question. From our perspective —perhaps this has a terminological connotation — a multilateral organization is an organization with a formal secretariat. It’s different from an international association. We believe that what we do is in accordance with the law. In addition, as I said earlier, a limited number of countries have an autonomous sanctions regime. So, by definition, if we can benefit from collaboration, that’s what we try to do as much as possible. It will never be an organization like the United Nations, which is different and by definition much broader, since it includes all countries.

It is in this context that we are examining the issue and that the department has adopted this position and communicated it to the committee.

[English]

Ms. Urban: Maybe I’ll just add one point as evidence of the strong level of coordination that Canada has internationally with regard to its sanctions against Venezuelan individuals. If you do a cross-reference of Canadian sanctions with the sanctions of its like-minded partners — the United States has sanctions against 91 individuals, and 67 of those are individuals that Canada has also sanctioned. The punitive measures from Panama are 55 individuals, and 48 of them are the same as Canada. For Argentina, it’s 93; 67 are the same as Canada. For Peru, it’s 100 for travel bans; 79 are overlapping with Canada.

That’s just to show the level of coordination that exists.

Mr. Simms: I have some grave concerns about this. I appreciate the fact that the sanctions themselves — the situation in Venezuela is a horrible one for millions of people under the Maduro regime, but that’s not germane to this conversation. My grave concern is that you have the good solution, which you’ve just outlined. The problem is that we’ve reverse engineered a mechanism that I’m not sure exists.

The purpose of this committee is to look at regulations. We have to have a serious look at this and make serious recommendations as to how to do this.

You said earlier that this is a new form of multilateralism in this hemisphere. The way I see it, the new form of multilateralism is bilateralism, which doesn’t really make a lot of sense to me.

I think we’re trying to candy-coat a way that we did this by saying we’ve had many conversations with the Americans, this association is wonderful — it’s grand and doing its job — and that’s all fine. But if I look here, the origins of this legislation in Bill C-53, the debate around the time said quite explicitly that a decision by an international organization would be done “within the context of a very broad international consensus,” which was stated by a legal adviser for the Secretary of State for External Affairs. This goes back to 1992, when the bill came in.

To me, that explicitly says that you just can’t say, “I have a solution for this particular country. I’m going to choose an ally somewhere out there to team up with, and let’s get this done.” If that’s the intention of the government, great, but I don’t think this legislation was really intended to be that type of multilateralism, as you’ve stated.

Like Mr. Dusseault here, I have some grave concerns about that, because we’ve encroached upon new territory. But because we did it and the end result is that we’re making a difference in Venezuela, that’s how we justify it.

We should make a recommendation that the legislation should be looked at to say that we have the flexibility by which we can choose an ally and do what we want to do without going through this process.

I can’t direct my question to anybody. I’m more or less venting my spleen, sir. I apologize.

The Joint Chair (Mr. Albrecht): I understand. I think that’s the nub of the issue. We’ve discussed it many times at this committee. The authorization of the regulations is the primary role of this committee. Is what we’re doing authorized by legislation? You’re making the case, Mr. Simms, that it does not appear to be and that there should be a recommendation that new legislation be forthcoming or that we desist from the present practice.

Mr. Simms: That’s the problem, isn’t it? Desisting from the present practice is going to create a lot of problems, because we’ve gone pretty far into that practice.

The Joint Chair (Mr. Albrecht): Are you prepared to make a motion that we recommend back to Global Affairs Canada that they look at the possibility of crafting legislation about this issue? To me, that’s what we have to get at if we are serious about making a change.

I look to counsel as well. What are your thoughts on that?

Cynthia Kirkby, Acting General Counsel to the Committee: I have thought of two potential options, one of which is to seek an amendment to the legislation. If the new form of multilateralism is bilateralism, which is apparently different from 1992, then that amendment seems overdue.

The other suggestion is as follows: There was the mention of the game-changer in 2017. If that resulted in a group such as the Lima Group or the Organization of American States making a decision, then another possibility would be to remake the regulations on the basis of one of those associations, which would seem to comport with what Parliament intended.

Mr. Simms: Would that prove to be more cumbersome than the first one? It seems like the first one, the amendment, would allow us the flexibility to move very swiftly in a world that changes very quickly in light of things like that, another Arab Spring or that sort of situation.

Ms. Kirkby: The first one would be a more long-term solution. I don’t know how quickly Parliament would be able to make the amendment to that act. The other solution would be a regulatory solution.

The Joint Chair (Mr. Albrecht): Committee members, we have a discussion regarding regulatory change or recommending a legislative amendment. Do you want to speak to that issue, Mr. El-Khoury?

Mr. El-Khoury: Thank you. Thanks for coming, witnesses. I’m concerned with the situation in Venezuela. From a personal point of view, I have family who has lived there for 40 years. I’m in daily contact with them, and I could easily find people who are paying the price and suffering.

Looking at what we’re doing, trying to shift the problem instead of solving a problem in Venezuela, making things worse with this procedure and trying to shift it to Colombia when the infrastructure of such a country cannot meet the need of this influx of refugees. We have experienced that in Lebanon, Turkey and Jordan.

I don’t know if there’s any way that our government is studying or monitoring the situation on the ground and trying to modify the position of our government or the country with which we align in order to alleviate the suffering of those people.

Second, I believe it would be much better if Canada could play a role as a good member of the family of the United Nations and try to go to a United Nations resolution with unanimity. Then public opinion against Canada would be fair enough.

I believe by such things now with our law, we are losing a lot in international public opinion. I don’t know if you could comment on that and give me some explanation.

The Joint Chair (Mr. Albrecht): Again, Mr. El-Khoury, I want to make sure the comments related to your question are brief because we want to get back to the heart of the issue as to how this committee wants to deal with what appears to be a gap in the regulatory control over this. Do you want to comment briefly and then we’ll move ahead?

Ms. Urban: A good portion of Canada’s efforts is about working with the Government of Colombia. I was in Colombia on the border with Venezuela many weeks ago and saw for myself the Venezuelans coming into Colombia, and I think everybody recognized the potential destabilization and difficulties with that migration.

The Government of Canada has programming and will continue to focus on assisting with the impact of that. Canada, as a member of the Lima Group, indeed does reach out to other multilateral organizations, including the United Nations, and that will continue to happen.

Mr. Kmiec: Sorry, Mr. Chair. I’m no longer a regular member of the committee. I’m substituting for Mr. Martin Shields. I was on the Foreign Affairs Committee when the Special Economic Measures Act was statutorily reviewed in 2017, which I’m surprised you didn’t mention to the committee members here. I remember the debate at the time among all parliamentarians, and we specifically meant multilateral organizations, not bilateralism, like Mr. Simms says.

I’m assuming you’re substituting multilateral for international, so as long as it’s not a Canadian domestic organization, it fits the legal definition in SEMA right now.

Is the Lima Group a legal entity? Why is it not being used to list these sanctions? I support all the sanctions and I have tabled petitions on this. The timing around this is really important on this.

Legally speaking, in this regulatory tool, is the Lima Group a legal entity? Have they passed legal decisions, whether reached by consensus or a majority or some minority of members that would inform this? I know the Lima Group has declarations they have made that could have been referenced in the regulatory instrument, but you haven’t done so and I want to understand why.

Ms. Urban: No, the Lima Group is not a legal entity. For clarity, earlier, when I said a new form of multilateralism, I was indeed talking about the Lima Group as a new type of multilateralism. The Lima Group is an ad hoc group of foreign ministers who meet as needed — there’s no regular schedule — and they issue declarations. That’s the primary function of the Lima Group. It’s an ad hoc group of political leaders within the hemisphere.

Mr. Kmiec: Would those declarations of the Lima Group be sufficient in your eyes to meet the needs of this regulatory instrument?

Ms. Urban: I think that falls outside my area of expertise.

Ms. Langlois: That’s something on which I probably would have to consult with some of our colleagues, but we’d be happy to respond in writing after.

The Joint Chair (Mr. Albrecht): Okay. It appears to me that this association concerning the situation in Venezuela is in jeopardy in terms of its legality as it relates to the legislation. That’s what I want to bring us back to, if possible.

Is there consensus, or Mr. Simms, are you prepared to make a motion that this committee recommend an amendment to the SEMA?

[Translation]

Mr. Dusseault: On this issue, I do not think it is a good idea to ask for a change to the law, given what my colleague Mr. Kmiec just mentioned, namely that parliamentarians have already done a review of the Special Economic Measures Act, which has led to recent changes. They did not see fit to amend this particular section of the law that refers to multilateral organizations or, to use the exact expression, international organizations of states or associations of states. They did not see fit to change this provision or recommend changes. So I don’t see why today, in 2019, this committee would recommend changes to the law, when the review of the law was done by another committee that did not recommend this change.

I think the main focus should be on making regulations that comply with the law. Ultimately, in my opinion, the regulation does not comply with the law. Obviously, it was not the position of the department that adopted the regulations, but we will have to agree on the committee’s position as to the legitimacy of the regulations with respect to the enabling legislation.

[English]

The Joint Chair (Mr. Albrecht): So we have a number of tools at our disposal to deal with that. Do you have a suggestion that we use disallowance? What other mechanisms are you suggesting, Mr. Dusseault?

[Translation]

Mr. Dusseault: Ultimately, it is clear that disallowance is the way forward, because in my view, the regulations do not respect the enabling legislation, but I am open to other avenues before we decide to go that far. We can ask for clarifications on the Lima Group, which have already been promised to us, and see if there is an openness on the part of the department to use another international organization that would respect the legislator’s intention. The Lima Group, I believe, would respect the legislator’s intention if, legally speaking, it could be designated in the regulations as an international organization of states or an association of states.

[English]

The Joint Chair (Mr. Albrecht): I’m looking to counsel about the appropriateness of following a situation like that.

Ms. Kirkby: I think it’s a fair point that if Parliament had considered amendments to the act and rejected that, that suggests there would not be a willingness to receive that suggestion from this committee now.

The sense I’m getting is that the committee would like to convey to the department that this doesn’t appear to conform to parliamentary intent. With that in mind, perhaps there is some other organization that has made a decision that does conform with parliamentary intent under which these regulations could be made. That’s outside of our expertise. Perhaps that’s something the department could look into if there is such a decision where these regulations could be more properly made.

Ms. Langlois: Thank you. These are all very good questions and comments and we’ll reflect further on them. If you will allow us, we’d like to get back to you in writing after consulting with some of our colleagues.

The Joint Chair (Mr. Albrecht): Do I see general agreement that we proceed in that manner and assume we will get an answer quickly?

Mr. Simms: Just so that I’m clear, they’re going to report back as to the vehicle we can use to make sure that we fix this? You just said something about exploring other avenues regarding the outcome in Venezuela.

Ms. Kirkby: What the act requires is:

. . . an international organization of states or association of states, of which Canada is a member, has made a decision or a recommendation or adopted a resolution calling on its members to take economic measures against a foreign state . . .

That is, finding something else or some other organization or association of states that has made a decision or recommendation in the context of Venezuela that would allow them to remake the regulations on that basis, as opposed to a decision of the slightly dubious bilateral organization.

Mr. Simms: I wouldn’t call it “dubious.”

Ms. Kirkby: For the purposes of parliamentary intent.

Mr. Simms: I’m not here to say that what they did with the Americans was the wrong thing to do. It may prove to be quite effective and I think it will be by the sounds of it. I think we just have to provide clarity as to whether we can do that.

The Joint Chair (Mr. Albrecht): The regulatory approval. You’re suggesting possibly linking with something like the Lima Group or other groups that would make it a broader consensus?

Ms. Kirkby: Yes. I don’t know the answer to that.

The Joint Chair (Mr. Albrecht): I think our witnesses have indicated a willingness to go and explore that possibility; not making any commitments, but to explore the possibility and getting back to us.

Mr. El-Khoury: It’s a good idea.

[Translation]

Thank you, Ms. Langlois, but can we have a specific date? When will we receive the written response? Thank you. We would not want to exceed June 21.

Ms. Langlois: I understand why you are asking the question, and I apologize for the delays. If you have a specific date in mind or a deadline, it would help us. The challenge for us is to find the right experts at the right time and in the right place, but we know that we need to respond to you in a timely, reasonable manner.

Mr. El-Khoury: Could the committee specify a date?

[English]

The Joint Chair (Mr. Albrecht): We suggest June 1, is that even remotely reasonable?

Ms. Langlois: We will do our best. Seriously.

The Joint Chair (Mr. Albrecht): I do want to underline the fact that I don’t think any committee member disagrees with the sanctions that have been taken. That’s not the point of our discussion today. The plight of the Venezuelan people, we’re all moved by that. It’s more a matter of whether we are following the letter of the law in terms of what the legislation intended. Okay?

Mr. Simms: Finally, Ms. Urban, if you find yourself going back that way, I think I can speak on behalf of everybody, we wish you safe travels.

The Joint Chair (Mr. Albrecht): Do I see general agreement that we allow the witnesses to come back with a letter or response to us by June 1? So ordered.

Going back to 1.A., and let’s try to move through this as methodically as possible. I know there’s overlap, but I think for the ease of the committee, if we could focus on one area rather than all over the different areas it would be more appropriate.

Mr. Dusseault, you indicated you wanted to ask a question in relation to the first part?

Mr. Dusseault: No, I was just thanking them for the progress on this. No questions on 1.A.

The Joint Chair (Mr. Albrecht): Any committee members have questions on 1.A., on the different sections of the RCMP disclosure and the vague and overly broad prohibitions? Are we comfortable with where they are? It seems to me on page 8 of 1.A. there needs to be some clarification with regard to the confirmation to the effect that a person who unwittingly or inadvertently acts to benefit another person. Has that been clarified?

Is counsel comfortable with the clarification we’ve had to this point? I know we received another letter this morning.

Ms. Kirkby: It’s on 1.B.

The Joint Chair (Mr. Albrecht): It is on the letter front that we received this morning.

Ms. Kirkby: It’s in relation to 1.B.

The Joint Chair (Mr. Albrecht): In 1.A., the item on page 8, to me that’s the one that stuck out that I think we need to be assured has been dealt with. Counsel?

Shawn Abel, Counsel to the Committee: Based on the letter provided by the department this year and the minister’s letter of last year, I think the committee would benefit from just a few clarifications.

First, dealing with promised amendments, a number were made recently, DORS/2019-60 and DORS/2019-61. There were still, as you know, a number outstanding. Do you have an idea — I understand Parliament is coming to an end, so it may be difficult. But do you have an idea as to when those might be coming forward?

Ms. Langlois: Thank you very much. As you know, we’ve done a horizontal package where we’ve tried to capture a number of the changes. As you’re aware in the regulations, when we do so, it takes a lot of work because you’re not simply changing the language; you’re also making sure that the rest of the regulation is not affected and there are no unintended consequences to some of the changes to ensure the integrity of the document.

We are aware that there are a number of items that are still outstanding. We are looking at how we can take further steps to correct them at the next opportunity. Some of them are very — for example, the grammatical comments or the times where the French and English are not the same, of course, are quite straightforward. We’ll look to do what we can to change them as soon as we can.

Unfortunately, as you mentioned, with the end of the session coming, it’s hard for us to prejudge when that timing would be.

The Joint Chair (Mr. Albrecht): That leaves us basically where we were before in terms of commitment. We don’t have any time commitment as to when it could happen, but that’s the best we could hope for.

I would like to ask, if no one else has a question, under the section regarding unwittingly or inadvertently, can the department confirm that a person who falls short of the “knowingly” qualifier does not commit an offence and is not at risk of prosecution?

Ms. Langlois: Thank you. As you know, the department has reconfirmed its position in the letters we’ve sent.

In terms of how we see this, it’s important that the intention, the willingness is present for both the person who is causing or promoting but also the person who is committing. To be fair, it provides fair protection for people who are unwittingly involved in situations.

The difficulty, as you know, is in the regulations. We are trying to capture all kinds of circumstances that may happen with general language. It’s difficult to give black and white answers on every special situation because it has to be answered on a case-by-case basis. We do feel that the risk of unduly affecting the rights and liberties of Canadians is mitigated because of the approach that was taken.

Also, in terms of prosecution, as you know, in the act, it’s the Attorney General. So the government would collect the information in the act and the Attorney General would make those decisions.

The Joint Chair (Mr. Albrecht): So you’re basically saying there is no clarification possible to definitively say yes or no. It seems confusing to me. I’m not a lawyer. Unlikely, but that’s not a very reassuring phrase.

Roland Legault, Director, United Nations, Human Rights and Economic Law, Global Affairs Canada: If I may, I would like to go back to the conversation we had between counsel and repeat what we said at the time.

In our view, the knowingly and willingly words that are present in the SEMA and the UN regulations — I got them backwards though — are constituent elements of the offences created in those regulations, and must be proven by the prosecution in order for a conviction to stand.

The Joint Chair (Mr. Albrecht): That’s better, for me. I’m not sure if it’s acceptable to counsel, but for me it makes sense as a layperson.

Any further questions on the item under 1.A.? Are we comfortable, then? Waiting for further clarification as expeditiously as possible given the constraints under which you operate. All agreed? So ordered.

We’ll move to 1.B. There was a letter circulated as well this morning. I hope you all received that.

SOR/2014-44 — FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (UKRAINE) REGULATIONS

(For text of documents, see Appendix B, p. 49B:1.)

Ms. Kirkby: The May 1 letter we sent out by email. Does anyone have copies of the additional letter? It was sent by email. Does anyone need a copy of that letter?

The Joint Chair (Mr. Albrecht): We’ll look to our counsel to summarize the issue under 1.B.

Ms. Kirkby: In brief, there was some missing information in one of the items in the schedule. The department acknowledged this in 2014 and indicated it would be corrected when the regulations were next amended.

The committee accepted this undertaking because the regulations would cease to have effect in 2019, in any event. The committee made clear that if the regulations were extended past 2019, they expected the promised amendment to be made at that time. The regulations were extended. The promised amendment was not made.

[Translation]

Mr. Dusseault: This is one of the most frustrating situations we face. As you said, the 2014 regulations were to be extended, which was done in 2019. In addition to the extension, there has been a change in the schedule. Two names were removed from the schedule, whereas what the committee had been asking for in recent years was precisely an improvement, a change to the same schedule, because of a discrepancy between French and English.

What is most frustrating to the committee is that although the department is aware of the requests, it is extending the regulations and amending the schedule. It did not even bother to respond to our request. It would have been easy for the department to include what was requested in the recent change. However, this has not been done. The question is why. We received a letter today — I just read it — indicating that this is an unfortunate error, and that the department regrets that it did not include the requested change in the regulations. How many years from now will there be another opportunity to amend the regulations in question? That is the problem, when such an opportunity is missed. Will it be when they are renewed in 2024, or can we expect the improvement we are asking for to be made sooner? When can we expect the change to be made?

Ms. Langlois: Thank you for the question. Indeed, the department regrets the situation. As we indicated in the letter, this is a gap that has demonstrated a deficiency in our system. We will therefore put in place measures to ensure better monitoring to prevent such situations from recurring. We will continue to work with your committee to assess these situations.

If you will allow me, I will switch to English.

[English]

We are going to look at various options to update the FACFOA (Ukraine) Regulations. We can’t give you timing for the reasons we’ve mentioned before. There are upcoming elections, so it’s difficult for us to pre-judge what the timing would be, but we’re very aware of the situation.

On behalf of the department, I’d like to apologize for this oversight and thank the committee for its diligent review of our regulatory functions. We will improve our practices, and this helps to show us where the improvements are needed.

[Translation]

Mr. Fergus: I am not a permanent member of this committee. I am replacing a regular member. Canada is a bilingual country. Parliament is an institution. We are well aware that Global Affairs Canada works in both official languages. I accept your apology and thank you for it. However, why did you not come here today with amendments in French, as you should? This is a shortcoming that dates back five years.

Ms. Langlois: We acknowledge this unfortunate situation and we apologize for it. We will remedy this as soon as possible.

[English]

The Joint Chair (Mr. Albrecht): I just want to clarify. You indicated your apology, which we accept, but it is a frustration the committee has with many departments. It’s especially frustrating when it goes back five years and has been totally ignored. Can we have some assurance as to a date? I know there are elections coming up and I don’t expect it to be done before the elections, but can we have assurances that, at a certain point, we could be assured of a resolution to this?

Ms. Langlois: It’s very difficult for me to give you specific dates because we can’t pre-judge. It has to go through regulatory amendments, the cabinet committees that deal with them, and we can’t pre-judge those decisions, from our perspective, or the timing related to those decisions.

I recognize the frustration. I understand, but unfortunately, I’m limited in what I can say.

Mr. Fergus: Mr. Chair, would it be then recommended that the committee offer a date by which we would expect this to be corrected?

The Joint Chair (Mr. Albrecht): I think that’s up to the committee. Mr. Fergus, do you want to suggest a date?

Mr. Fergus: I have to admit, because I’m not certain what the process goes through, perhaps I could get advice from our legal counsel or those who know this file better than us, but I would like to set a date as soon as possible.

Ms. Kirkby: It’s difficult to know. If we could ask, has there been any work on this so far? Is it in progress?

Ms. Langlois: I’d have to consult with some of my colleagues, but we can get back to you on where we’re at. I think one of the issues, as I mentioned, would be the regulatory process itself in the coming months.

The Joint Chair (Mr. Albrecht): Mr. Fergus, are you comfortable saying even a year from now that it would be dealt with? Considering the length of time it has been, a year would be better than nothing.

Mr. Fergus: I would like to suggest that the committee would expect this be resolved before December 31 of this year.

The Joint Chair (Mr. Albrecht): I see general agreement.

Mr. Benzen: I would agree that December 31 is acceptable, but based on past promises and their lack of giving us any concrete time, I would actually have moved to disallowance. This will either get an answer one way or the other, but in our letter we should be saying strongly that by December 31, this should be answered or the next step is disallowance. We’re not going to take all these wishy-washy dates and times.

Saying we’re sorry is nice, but it’s not moving this forward. I think we need more concrete action. If the committee wants to accept December 31, that’s great. I think we should strongly suggest after that, it’s a disallowance notice.

Mr. Miller: I second that.

The Joint Chair (Mr. Albrecht): I think I see general agreement. Counsel, do you have any comments in the wisdom of that?

Ms. Kirkby: The discrepancy is just in one name in the schedule. We might want to consider, if it is not made by December 31, 2019, the scope of the disallowance.

The Joint Chair (Mr. Albrecht): All in agreement with moving in that direction, December 31? All in favour?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): So ordered.

SOR/2015-220 — ORDER AMENDING THE EXPORT CONTROL LIST

(For text of documents, see Appendix C, p. 49C:1.)

The Joint Chair (Mr. Albrecht): Are there any summary comments on this item, 1.C.?

Ms. Kirkby: The relevant enabling powers that have been used to add softwood lumber to the Export Control List have been paragraphs (c) and (d). In all previous instances, the precise enumerated purpose has been identified in the regulation. In this instance, no precise paragraph was identified. It was after the softwood lumber agreement had expired, so it could not be (d). The department has repeatedly declined to advise the committee what authority this has been made under.

The Joint Chair (Mr. Albrecht): I think retroactivity is a major concern here as well. Mr. Barker, do you want to respond to that? I want to go to our committee members first.

Mr. Simms: If I understand this correctly we found ourselves in a bit of a conundrum following the expiration of the deal that was done way back when. We’re still in flux right now, are we not, with the situation with Congress trying to decide what to do. We are adding something here that allows us to monitor the situation of goods back and forth, despite the fact there’s nothing concrete, because the data is necessary for us to proceed?

Mr. Barker: Yes, that’s correct. As I mentioned in my opening statement, this dispute unfortunately has gone into a cyclical pattern now where we have agreements for a period of time. Those agreements expire. That’s almost immediately followed by an investigation launched by the U.S. Department of Commerce, which leads to duties, which leads to us challenging those duties and then eventually back into an agreement.

So we need data for all of that, whether it’s under an agreement or whether we’re litigating. For our purposes, our producers understand that need and support that. Therefore, they understand the need to have that permitting requirement, whether or not we are under a managed trade agreement.

Mr. Simms: This is public data, correct? Would anything you get and measure be for the public or just particular clients?

Mr. Barker: The permitting data, that is in how many permits are made. It’s not too granular in what we put online to protect certain business interests. Our statistics for permitting for a year is all public. It’s a large permitting operation; it’s the largest by volume that the department operates.

Mr. Simms: In response, you talked about subsection 3(1) of the act, stating that providing any further explanation could constitute a waiver of solicitor-client and litigation privilege.

Could you explain to this committee how that came into play?

Mr. Barker: As I mentioned, unfortunately, there is really no period where the U.S. lumber industry is not intensely focused on the next dispute, litigation or investigation. Whether we’re in it or not, they’re always prepared or preparing. So it’s very important that we are also mindful of that in every decision we make as a department or as a government, because they are watching all of that and are not hesitant to use anything they think will help their case against us.

It’s important that we are mindful of protecting any advice we get from our legal counsel in terms of how we should proceed and not waiving that privilege and, therefore, endangering potentially our entire litigation effort.

Mr. Simms: This process, if unchecked, could put us at a competitive disadvantage, given the fact that the situation is in flux — the deal or whatever it may be?

Mr. Barker: That’s the advice I’m given, so yes.

Mr. Simms: Okay. But going ahead and saying that we are going to provide the information through this list is necessary. It won’t put us at a disadvantage with anybody that we’re trading with?

Mr. Barker: Sorry. Could you repeat that?

Mr. Simms: I’m not sure I understood myself. Don’t worry about it.

If we go ahead and provide — I think it’s under (g) — “to facilitate the collection of information in respect of the exportation of goods that were or are likely to be the subject of trade investigations or trade disputes.”

Mr. Barker: Right. Sorry. I understand. This is the amendment to the new amendment.

Mr. Simms: Right.

Mr. Barker: That, in fact, was done purposely to allow us to be able to do this going forward in a way that’s clearer for everyone, yes.

Mr. Simms: Right. And the department doesn’t fear that would put us in a disadvantage with —

Mr. Barker: No. In fact, it was done specifically for the purpose of —

Mr. Simms: That was my question. Thank you very much.

The Joint Chair (Mr. Albrecht): On the question of retroactivity, when (g) was put into force, there was a lag or gap period there. How do we deal with that potential gap?

Mr. Barker: Yes. I understand this is a prospective solution to this issue. My understanding is that, of the list that was there, we selected something for our purposes, but we are not obligated to indicate it. In the past, we had, but my understanding is that’s not an obligation; therefore, we were advised not to clarify that this time around, being mindful, again, of the very litigious nature of our “opponents” in the U.S.

[Translation]

Mr. Dusseault: Precisely; I wanted to come to this specific question. It seems we are back to the same problem as before.

The committee’s fundamental role is to ensure that regulations or orders are made under enabling legislation that allows it. There was obviously a gap, and that is why we added paragraph (g) to subsection 3(1) of the Export and Import Permits Act in Bill C-47. The witness just said that, prospectively, paragraph (g) will be useful to continue. The problem, however, is that this was already happening before paragraph (g) was added. So if paragraph (g) was not in force — it still is not in force — what paragraph did the department use to make this order?

[English]

Mr. Barker: Thank you for the question. Maybe I misspoke a bit. The 3(1)(g) is not only meant to be able to point to something, it’s also to absolve us of the need of having to relist, depending on where we are in that cycle. So it’s also to have a blanket reason under 3(1)(g) that we can use no matter where we are. Again, it’s a way to save that effort of having to relist depending on where we are in the cycle.

To the question of what we, in fact, did use, all I can do is refer to my statement that we used an enumerated purpose as set out in subsection 3(1) of the Export and Import Permits Act. Any hesitation on our part to be more detailed in our response, again, is guided by our interests in the softwood lumber dispute.

[Translation]

Mr. Dusseault: So you cannot say which of paragraphs (a), (b), (c), (d), (d), (e) or (f) was used, because it would jeopardize our negotiations in future litigation.

[English]

Mr. Barker: Yes, that’s correct.

The Joint Chair (Mr. Albrecht): Counsel?

Ms. Kirkby: One of the things that was conveyed to the department was that the committee can insist on an answer if it chooses. According to the authorities, it has the power to insist on that. Litigation privilege is not an answer. If the committee wishes to insist, to ensure this order was properly made, it has the authority to do that, although I would defer to my more procedural colleagues for elaboration on that point.

Presumably, the committee would do that by a motion, if they wish to insist.

Mr. Abel: You can also consider going in camera and thus keep this conversation private.

The Joint Chair (Mr. Albrecht): What authority does that give the committee, though, in ensuring progress is being made? If we go in camera to decide, we can’t say, “We’ve decided.” To me, we’re between a rock and a hard place.

Ms. Kirkby: If the committee is dissatisfied with the response they receive, though, there are procedural mechanisms such as a notice of disallowance or letters that could be sent that would indicate the committee’s dissatisfaction without indicating what was said during the in-camera portion of the meeting.

The Joint Chair (Mr. Albrecht): How do committee members want to proceed? We have a couple of options. We can give more time and hope for the best. We can move in camera and ask for a specific response.

Mr. Miller: I don’t think we need to go in camera, but I have a question. Can we do as we did in the last motion and set a date and add to it to move to a disallowance? Is that something we can do?

Ms. Kirkby: I’m not sure how that would work in this particular situation. The problem is that we don’t know what the authority for the 2015 order is. There has been an amendment that, presumably, would be used for future amendments. At some point, it’s assumed that the department will remake the order under the new power, at which point there will be no ongoing problem. That doesn’t address what happened from 2015 until now. The question is this: What was the authority for that?

One possible solution would be to have made paragraph (g) retroactive. That doesn’t appear to have happened. The other is for the department to identify which enumerated provision 2015 is made under.

Mr. Miller: Would that be your recommendation on how we proceed?

Ms. Kirkby: The committee’s mandate is to ensure that regulations are made pursuant to a power delegated by Parliament. None of the counsel who has worked on this has been able to identify the enumerated power, so I think that answer would be very helpful to the committee’s mandate.

[Translation]

Mr. Fergus: Unlike my colleague Mr. Miller, I think it would be better to have this discussion or to disclose this information in camera.

[English]

Mr. Simms: I would agree because I have some questions that may prove to be sensitive for both our officials and for our counsel as well. There are more points of clarification that I wouldn’t want to be confrontational. I think it would be advisable.

The Joint Chair (Mr. Albrecht): I think we need to make a formal motion. Mr. Dusseault, do you have a comment to make before we take the motion?

[Translation]

Mr. Dusseault: Yes. My main question, before we go in camera, is whether the witnesses are prepared to answer questions in camera. I have not received the justification, at this time, as to why we cannot be told which paragraph was used. For me, the real reason is not yet clear. Is it because there are really risks for the negotiation of future disputes, or is it simply because there is no authority and the witness is unable to say so? So, for me, the reason is not yet clear.

[English]

The Joint Chair (Mr. Albrecht): Mr. Barker, are you prepared to respond to that question?

Mr. Barker: Simply to say that we did select one of the enumerated reasons. Something was selected. I’m under instruction from my legal counsel that I cannot respond. In fact, I received instruction that even in an in camera session it would still be a waiver of privilege. Unfortunately, even in an in camera session, I cannot be more forthcoming.

Mr. Simms: I’m waiting to move a motion that we’re going to go in camera.

The Joint Chair (Mr. Albrecht): But we just got the answer that we’re not going to get any answers in camera. Do you still want to proceed?

Mr. Simms: I have questions too that may prove to be sensitive. I don’t know. Here’s the problem. We don’t know whether it’s going to be sensitive or not.

The Joint Chair (Mr. Albrecht): Mr. Kmiec?

Mr. Kmiec: I’m with Mr. Simms on this. I’m sorry, but this is a duly constituted committee of Parliament. This quite literally has senators and members of the House of Commons, which are the board of directors that approved the more than $300 billion in spending. We have a right to know what you are doing on behalf of Canadians.

I would like to know who instructed you specifically, because if it was your legal counsel, so the legal counsel of the department, you pay them for that advice. Therefore, you are, by law, required to provide an answer. In your role, it’s all four of you. I’ve seen this happen in other committees where you couldn’t provide an answer at committee. I’m asking you: Who is the person above you who makes that decision and directs you on whether you can answer a question or not?

Thereafter, I would recommend to the committee to have that person appear, bring them in camera, and have them answer the questions you wish to have answered. I’ve gone in camera and Mr. Fergus serves with me on the Finance Committee. It has been done before for FINTRAC, where we received an explanation on how FINTRAC works. We can’t talk about it but they provided us an in-depth dive as to how the program works. I’ve been on Foreign Affairs and we’ve done similar things.

I’m sharing with my colleagues here that we shouldn’t let civil servants bar us from obtaining information in the conduct of our duties, because we’re responsible for the spending and the application of the laws that we and our predecessors have passed. We should be able to know how those laws are being applied and how the regulations are being used.

The only way to do that seems to me in this case, and I have read the briefing, is to go in camera to obtain the answer to then decide whether to pursue disallowance or changes to the regulation. I’m a big believer in standing up for our responsibilities here.

The Joint Chair (Mr. Albrecht): I think Mr. Simms has a motion to make.

Mr. Simms: Some of my colleagues may feel this is a fruitless effort, but it is an effort worth pursuing nevertheless. That the committee now proceed to sit in camera; and that notwithstanding the 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.

The Joint Chair (Mr. Albrecht): The motion is basically to move in camera with all of the other legal requirements we have while we are in camera. All in favour of the motion to move in camera, please raise your hand. Opposed? That is carried. We will suspend for a few minutes while we move in camera. Anyone who doesn’t meet the criteria you’ve just heard read is asked to leave. Thank you.

(The committee continued in camera.)

(The committee resumed in public.)

The Joint Chair (Mr. Albrecht): We’re in open session.

Mr. Simms, you would like to make a motion?

Mr. Simms: Yes, I’d like to make the motion — and I’m looking to Mr. Fergus when I say this because maybe he could correct me as well, and Mr. Dusseault. I make a motion that we invite the appropriate officials within the Department of Global Affairs and/or the Department of Justice to clarify this situation.

Help me here, because maybe there’s some wording that I want to use that I cannot use. I think we know the intent here is to bring the right officials in, but we’re looking for suggestions as to how to word it because I don’t want to step on territory that I shouldn’t be on.

The Joint Chair (Senator Day): That has never held you back in the past.

Mr. Simms: I know. I’m as shocked as you are, senator. I don’t know what’s happening.

The Joint Chair (Mr. Albrecht): I think the issue is outlined publicly at the very bottom of page 3 of our notes. That’s the nub of what we’re trying to —

Mr. Simms: Page 3.

The Joint Chair (Mr. Albrecht): Under item 1.C., the enabling authority, very bottom of the page under Bill C-47. Mr. Abel may want to clarify or correct me.

Mr. Abel: I believe the committee wants to invite witnesses so they can identify the enabling authority relied upon for this instrument.

Mr. Simms: Yes, okay. That’s fine by me.

The Joint Chair (Mr. Albrecht): The motion is on the floor. Further discussion? All in favour of the motion please indicate by raising your hand? Opposed, same sign? That’s carried.

That meeting is scheduled for May 30.

Mr. Simms: Is that in the motion as well or is that necessary?

The Joint Chair (Mr. Albrecht): It doesn’t have to be in the motion. We already agreed that would be the date.

As far as I know, that concludes our agenda for today. Thank you for your patience and diligence, and thank you to our witnesses. I know you are in a difficult position. We are as well. We’re trying to deal with this in the best interests of all Canadians. Thank you.

(The committee adjourned.)