REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Monday, May 2, 2022

The Standing Joint Committee for the Scrutiny of Regulations met with videoconference this day at 11 a.m. [ET] to review Statutory Instruments.

Mr. Blake Richards and Senator Yuen Pau Woo (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Richards): Welcome, everyone, to the first full business meeting that we’ve had for 2022. I understand we’ve got a fair bit of a backlog of work for this committee, so we’ll get right into it.

We’ll start with our agenda item under the heading of letters to and from ministers.

SI/2016-26 — ORDER APPROVING INTERIM ORDER NO. 4 RESPECTING FLIGHT DECK OCCUPANTS

(For text of documents, see Appendix A, p. 2A:1.)

Shawn Abel, Counsel to the Committee: This file concerns the making of a series of interim orders made by the Minister of Transport pursuant to the Aeronautics Act.

At the outset, I should note that significant developments in the use of interim orders have taken place during the COVID-19 pandemic. Some interim orders relating to the pandemic will be placed before the committee later this spring. For today, however, this is an older file concerning orders that predate the pandemic.

Let me begin with some background. Four interim orders in total were made on the subject of flight deck occupants, which is to say, the presence of persons in the cockpit of an airplane. When this series was first before the committee in 2016, the orders were still in the process of being made. This was not the first time the committee had examined a series of consecutive interim orders made under the Aeronautics Act, and the committee had already previously considered that the act did not appear to authorize the making of consecutive orders on the same subject; rather, the act provides for a clear process wherein an interim order may remain in force for up to 14 days, following which, if measures contained in that order are still needed, the order may be approved by the Governor-in-Council for up to a year.

Following that approval, the minister is required to recommend, as soon as possible, that the measures contained in the order be adopted in a regulation. The approved interim order may only be in effect for up to a year before either a regulation containing the same measures is made or the order expires.

While the committee had previously examined instances where consecutive interim orders had been made, this series concerning flight deck occupants presented something new. In this case, three consecutive interim orders had been made, and the third had been approved by the Governor-in-Council. However, as the approved order was about to expire nearly one year later, it was replaced by another interim order, the fourth, containing substantially the same provisions. Through a series of errors that is not necessary to recount in detail, an attempt to approve this fourth order for another year failed, after which a fifth interim order was enacted and finally approved for yet another year.

This sort of practice, where an interim order carrying on substantially the same measures is made following an approved order, seemed entirely backward and egregiously contrary to how the process set out in the act had been intended by Parliament to function. To the committee, these events represented a novel method by which it again appeared that the intent of Parliament had been contravened in the making of consecutive interim orders.

Furthermore, it raised the prospect that the minister could, apparently, choose to make approved order after approved order on the same subject, effectively avoiding a regulatory enactment for years on end or perhaps indefinitely.

As such, the joint chairs directed counsel to convey the committee’s displeasure to the minister. That letter is included in the materials today. I would particularly draw members’ attention to the passage in the second-last paragraph of page 2, where the chairs state:

Interim orders are meant to provide the means to address an unforeseen situation giving rise to a significant risk quickly and temporarily, not as a substitute for regulations or to avoid the rigours of the regulatory process.

The chairs’ letter asked, not for the first time, for the minister’s assurance that the practice of making consecutive interim orders would not be resorted to in the future. It also sought an assurance that interim Order No. 5 in this series, which was due to expire later that year, would be replaced by a regulatory enactment.

The events following the chairs’ letter were somewhat positive. While the minister responded on June 2, 2017, to indicate that the measures contained in Order No. 5 would not continue and that the order would be permitted to expire at the end of its approval year, the letter did not respond directly to the committee’s concerns regarding the making of consecutive interim orders.

However, following the letter, from June 2017 and up to the advent of the pandemic, the minister did not make any further consecutive interim orders under the act on any subject. However, in two other cases, interim orders were again made following an order that had been approved for up to one year.

So while this could be considered some progress toward respecting the act and Parliament’s intent, it has not been perfect.

With respect to this file, the final interim order, Order No. 5, was permitted to expire in June 2017, as the minister’s letter had promised. This gives rise to no further issues. I would therefore suggest that this file could be closed.

I think it would be best for the committee to review the more recent files regarding interim orders, which will be brought before members in the next few weeks. Those files will provide ample opportunity to examine new developments regarding the practice of making interim orders. At that point, the committee could consider its next step.

Would that be agreeable to members of the committee?

The Joint Chair (Mr. Richards): Do any committee members have a comment or question they would like to raise or ask? Seeing none, do we have consensus that we will accept the recommendation?

Hon. Members: Agreed.

SOR/2014-91 — REGULATIONS ESTABLISHING CONDITIONS FOR MAKING REGULATIONS UNDER SUBSECTION 36(5.2) OF THE FISHERIES ACT

(For text of documents, see Appendix B, p. 2B:1.)

Mr. Abel: This file concerns subsection 36(3) of the Fisheries Act, which sets out a general prohibition against depositing a deleterious substance in water frequented by fish. Exceptions to this prohibition may be established by a system of dual regulations made by the Governor-in-Council and the minister. First, the Governor-in-Council must enact regulations setting out conditions under which the minister may then act. These are the regulations before the committee today. Second, in accordance with these regulations, the minister may then enact other regulations, which authorize specific deposits of deleterious substances and establish further conditions under which those deposits may be made.

Two issues concerning the regulations were first raised with the Department of the Environment in June 2014. When this file was last before the committee on February 5, 2015, members directed counsel to pursue both issues again with the department. Counsel therefore wrote again and then carried out a teleconference with the relevant departmental officials in March 2015. Subsequently, the department provided further explanations in a letter of May 5, 2015.

In that letter, the department provided its final comments concerning the first issue. This issue relates to paragraph 4 of the regulations, which sets out conditions that must be met before the minister may exercise their subordinate power to authorize the deposit of a deleterious substance. The wording of paragraph 4 raised two concerns.

First, the wording purports to permit the minister to authorize the deposit of a substance that is already authorized under federal or provincial law. At its meeting of February 5, 2015, the committee accepted the department’s prior explanation that a deposit may be authorized under some other federal or provincial law while at the same time be prohibited under the Fisheries Act. However, members recommended that this distinction could be made clearer in the regulations.

The department’s reply states that it does not anticipate any changes will be made to the regulations to address this concern. Evidently, the department does not feel that this matter requires clarification. To be fair, paragraph 4(a) is directed at the minister, and if the minister and the department understand the wording of this provision, there is little chance of confusion that could give rise to some negative consequence. If the committee sees no further issues, I would suggest that this issue need not be pursued.

However, a second question was also raised regarding paragraph 4(a). This allows the minister to authorize a deleterious substance to be deposited, or to authorize its deposit or an activity that results in its deposit. It was unclear what the difference could be between authorizing a substance to be deposited or authorizing the deposit of that substance.

The department’s letter of May 5, 2015, states:

Different federal and provincial instruments may authorize the deposit of deleterious substances in different ways. The regulations are drafted such that they will encompass all of the potentially different federal or provincial approaches to authorizing deposits.

If the department, as the drafter, is of the opinion that a broad wording is necessary to describe the various means by which other laws may authorize the deposit of a substance, there appears to be little reason to question this approach. It seems highly unlikely that this wording would create some form of consequential ambiguity. Therefore, this response could be considered satisfactory. If members are satisfied, I can move on to the second point.

The Joint Chair (Mr. Richards): Does anyone have any questions or comments at this point?

It appears there are none, so you can move on to the next point.

Mr. Abel: Moving on to item 2, this second issue relates to subparagraph 4(b)(i) of the regulations, which sets out another condition to be met before the minister may authorize the deposit of a deleterious substance. This condition incorporates by reference the recommendations of the Canadian Water Quality Guidelines for the Protection of Aquatic Life. These were published in 1999 by the Canadian Council of Ministers of the Environment as amended from time to time. Also incorporated are the recommendations that were derived from those guidelines on their site-specific application — again, as amended from time to time.

Section 91 of the Fisheries Act requires the minister to ensure that any document that is incorporated by reference in a regulation is accessible. Identifying and locating these various guidelines and recommendations in this case has proved challenging. Prior correspondence from the department confirmed that these documents are available online.

In this case, there are two relevant websites. A web search is likely to bring a reader to the governmental website maintained by the department, which lists a vast array of guidelines and other documents that relate to the department’s work in a wide number of subject areas. While it is possible to identify the relevant documents relating to water quality within this extensive list, it is not straightforward. Furthermore, almost all of the links provided on this departmental web page in relation to water quality are now defunct. The only functioning link points to the website of the Canadian Council of Ministers of the Environment, or CCME, and specifically to a searchable index page — also called a summary table — that is maintained by the CCME. The department indicated in its letter of June 20, 2018, that the CCME website should now be considered the primary source of the relevant guidelines. In fact, it now seems to be the only source.

The CCME summary table can be used to bring up the currently applicable guidelines for determining the concentration parameters for the deposit of a substance. It is highly technical in its presentation, but this may be acceptable given the subject material. However, finding this indexed database simply from a web search or going to the CCME website is extremely difficult. Despite repeated attempts, two separate counsel were only able to arrive at the summary table by using the link provided on the department’s web page, which, as I explained previously, is itself difficult to find. So taken together, this seems to be a problem.

In its 2018 letter, the department indicated that it had consulted with the CCME to improve the accessibility of its website. However, in the intervening years, the CCME website has not changed and nothing further has been heard from the department.

Further problems lie with the departmental web page as it now exists. Almost all of the links related to CCME guidelines are defunct but are still present on the page, which only adds to potential confusion. As mentioned, it is not easy to find the one working and relevant link. Clearly, the departmental web page needs to be updated, but I would suggest that a clear indication should also be provided for links that relate to specific regulations so they are easier to find.

Thus, if members agree, I would suggest a further letter to the department could be drafted. That letter could seek an updated account of whether changes to the CCME website are under development as well as recommend to the department that its web page listing the guidelines be updated and improved.

The Joint Chair (Mr. Richards): I see a thumbs-up on the screen. Does anyone have any comments or questions on this item?

[Translation]

Mr. Garon: I would like some clarification for my own benefit and for that of the public. This file has been dragging on for several years now, and we realize that all the documents related to the regulations aren’t properly published or aren’t accessible. Can you tell me again how much correspondence we have with the department on this?

[English]

Mr. Abel: If you can give me one moment, I can give you an exact response to that. There has certainly been more than one exchange of correspondence. Bear with me just a moment, please.

It appears that our initial letter on this instrument went out in 2015. There was a reply a month later, in 2015, another reply in the same year, then another exchange of correspondence in 2018, and that has been the entirety.

The Joint Chair (Mr. Richards): Did you have a follow-up question?

[Translation]

Mr. Garon: I would suggest — given that this is a long-standing file — on the other hand, the committee hasn’t been able to follow up for a few years, given the circumstances. Perhaps we should emphasize in the correspondence the urgency of making these files accessible. It’s not enough to take stock of what’s been done, because it appears that there have been significant delays.

[English]

The Joint Chair (Mr. Richards): Are you making the suggestion that there be a letter drafted that indicates that?

[Translation]

Mr. Garon: Yes, absolutely. It would also emphasize the importance of taking action, in addition to taking stock of what’s been done, given the amount of time that’s passed since the file was created.

[English]

The Joint Chair (Mr. Richards): How do other committee members feel? Mr. McKinnon, is it on this particular suggestion or on something else?

Mr. McKinnon: Chair, I was just looking for some clarification on this process. I am a substitute here today so I don’t know if there’s any ongoing context I should be aware of. I understand this committee hasn’t met for quite some time. If we’re dragging up issues that are five or six years old, and we have this massive amount of technical information that we received about an hour beforehand, could the chairs clarify how this agenda came about, and what is it we’re going to be doing here, a little more clearly?

The Joint Chair (Mr. Richards): Sure. Perhaps we will deal with the point that was raised previously, and then we’ll come back to answer your question. I’ll probably have one of our clerks address that because they’re intimately involved in putting together the agenda, obviously.

Maybe we’ll first deal with the suggestion that a letter be sent. Are there any comments, or do we have agreement on that?

The Joint Chair (Senator Woo): My understanding, chair, is that the recommendation is for a letter to be drafted, and perhaps it can be strongly worded.

The Joint Chair (Mr. Richards): The suggestion was to point out that it’s unacceptable for things to carry on for some time, I think is what you’re trying to suggest. We’ll make sure that’s part of the letter, unless there’s disagreement on that.

That will certainly be taken in its direction. To deal with Mr. McKinnon’s question, who would like to take that?

The Joint Clerk (Marie-Hélène Sauvé): If I understood Mr. McKinnon’s question correctly, it’s about the sending of documents in the particular time frame. We have a new team here on the House of Commons side of the Joint Regulations Committee. Our apologies for sending the documents early this morning. We will endeavour to send them earlier next time. Thank you.

Mr. McKinnon: My concern is broader than that. There’s this massive amount of technical information about a number of issues, and we’re making recommendations for letters and so forth, but we haven’t had a chance to delve into this stuff. Some of this stuff is many years old. Why are we dredging up stuff from five or six years ago? I’m looking for clarification on how this whole process is working.

The Joint Chair (Mr. Richards): Probably the easiest way to respond to the last part would simply be that it’s an open file as far as the committee is concerned. Obviously, the committee does have to deal with it.

Your point was well taken about the agenda and the background information, and that will be something that will be considered going forward and ensuring committee members do have more time with the information. That was a point well taken, Mr. McKinnon, and hopefully that will be addressed in the future.

Mr. McKinnon: Thank you. I’ll forge ahead with you all.

The Joint Chair (Mr. Richards): Great. Thank you.

[Translation]

Ms. Brière: In fact, my suggestion would be that we be given a brief presentation on the rationale for this committee, how it works and what is reviewed at each meeting. I think it would be interesting for the members since there are a number of new faces on the committee.

[English]

The Joint Chair (Mr. Richards): I’ll turn it over to our counsel. Would you be okay to do a short briefing on the committee?

Tanya Dupuis, General Counsel to the Committee: Maybe not a briefing, but I can provide additional information.

The Joint Chair (Mr. Richards): Fine. Whatever you’re comfortable with providing now, and if committee members feel there’s need for more, certainly when we do the next agenda, that suggestion could be taken.

Maybe we’ll start with that, if you’re comfortable with that, and we’ll call it sufficient. If not, we can consider that for the future.

Ms. Dupuis: Thank you, Mr. Richards.

[Translation]

Ms. Brière, if you want a presentation, we could set up a meeting at another time to give members a briefing on the committee’s work.

Prior to the meeting, we sent out a briefing document summarizing the mandate of the committee and the work of legal counsel, which provides a lot of information on how to present files. In addition, a legal opinion is provided along with the materials that are attached to the meeting agenda, and it’s in the legal opinion that you’ll find the summary prepared by legal counsel and their recommendations. These are the questions we ask of the committee and the directives we want from you to move the file forward. It’s attached to the material.

We’d be happy to make a presentation at another time, with the approval of the vice-chairs, and we can certainly provide a briefing to the members.

[English]

The Joint Chair (Mr. Richards): That’s a good suggestion that has been made. For anyone who is new for the committee and would like to have such a briefing, let the clerk know. That can be arranged. Ideally, I would suspect it would be nice if it could be for a group, if there is more than one. If that’s not possible, I’m sure we could consider one-on-one briefings as well. Anyone who has an interest, please let the clerk know, and it can be addressed that way.

Mr. Gaheer: Can we have the presentation during committee time so everyone is on the same footing? I’m a new member. I’m a lawyer, actually, so I have legal training. It’s one thing to read dry documents, but it’s another to get a live presentation where you can learn about the mechanics of how to move forward.

The Joint Chair (Mr. Richards): Counsel’s suggestion makes more sense, frankly. There are members of the committee who have been here for some time and are quite aware. I don’t know that it’s really a valuable use of the committee’s time to have some members be briefed on something they’re fully aware of. Anyone who does want one can receive that, and if it’s felt it’s better to do that as a group for anyone who wants to have it, that could be done outside of committee time.

The suggestion that it could be individual, if needed, was only to make it convenient for people, but anyone who would like one should be able to receive one. I don’t think it’s a valuable use of committee time, considering that not all members would need the briefing.

Anything else at this point? Or can we move to the next item? It looks to me like we can probably move on. Mr. Abel, you’re up again for the next item.

SOR/2014-308 — REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS

(For text of documents, see Appendix C, p. 2C:1.)

Mr. Abel: These amending regulations are appearing before the committee for the first time. Three issues were raised with the Department of Transport.

The first issue concerns the use of the word “or” in subsection 31.1(3). This provision sets out the circumstances under which an authorization is valid to transport containers by truck in Port Metro Vancouver. The opening portion reads as follows:

An authorization is valid if the holder complies with, or ensures that the holder’s drivers comply with, any of the following requirements . . . .

It was pointed out that the use of “or” would indicate that only one of these two classes of persons would need to comply with the requirements despite the fact that the department likely intended for both the holder and the holder’s drivers to be required to comply.

The department’s response states that there are two types of possible holders, which explains the use of “or” from their perspective. There can be a sole owner-operator of a transport truck or a company under which multiple drivers operate. This explanation does not, however, do away with the grammatical problem when it comes to a company with multiple drivers.

The department seems preoccupied with avoiding the imposition of an illogical requirement, that being where a holder who does not have any subordinate drivers, such as an owner-operator, would be illogically required to ensure that non-existent drivers — the holder’s drivers — comply with the rules.

This is easily remedied in another fashion. The provision could be amended to add the words “if any” after the reference to the holder’s drivers. There are also other ways the provision could be reformulated to avoid this illogical impossibility, and the precise drafting can, in truth, be left to the department. What matters is that the incorrect usage of “or” should be still be addressed.

In addition — and this is not mentioned in the note prepared for today — a related provision, section 31.1(2)(a), also seems to be inconsistent with the explanation that the department provided on this point. The wording of that provision does not seem to permit or recognize that some drivers in the port may be owner-operators who hold their own authorizations. That provision only relates to the holder’s drivers. When the next letter is sent to the department, this could also be raised in conjunction with following up on this issue.

I will turn then to the second issue that was raised. This also relates to the same provision.

The English version of section 31.1(3) states that an authorization is valid if the holder or the holder’s drivers comply with “any of the following requirements . . . .” It then goes on to list several requirements.

It was pointed out to the department that the use of “any” suggests that meeting just one of the listed requirements would satisfy the duty. The department disagrees by noting that the French version is unambiguous in this regard and that the word “and” is used to connect the second and third items in the list of requirements.

As a starting principle, an ambiguity in the wording of a provision cannot be relieved simply by referring to another linguistic version. As both linguistic versions of the law are equally authoritative, the committee has always maintained that a citizen should not be expected to read both versions in order to understand their rights or obligations; each version must stand on its own.

The department is correct that the list of requirements employs the word “and” between the second and third items, which does suggest that all three are intended to be met. However, this now underscores that conflict exists between this wording and the usage of “any” in the opening portion of the provision.

Furthermore, reference to the department’s own drafting guide, Legistics, suggests that the word “any” does not have any one fixed meaning and generally should be avoided wherever possible. Indeed, in this case it would be entirely possible to simply delete the words “any of” and, in doing so, clarify the meaning of this provision. Thus the provision could, instead of requiring compliance with “any of the following requirements,” simply require compliance with “the following requirements.” That should suffice, and it is difficult to see what objection there could be to such a change.

Given that an amendment to this provision should be forthcoming to deal with the first issue that was discussed earlier, this should be a good opportunity to make other changes to the provision at the same time.

I will go to the third issue. Counsel raised a concern that the wording of section 31.1(3) implies that an authorization to operate a truck within the port would immediately cease in the event that any of the requirements are not met. This raises practical concerns about how this applies to drivers who are already in the port.

Upon counsel’s request, the department provided some details as to how this determination is made, how it is communicated to all the relevant parties and whether an invalid authorization can be renewed. The department indicates that the port authority is responsible for terminating an authorization. A terminated authorization cannot be renewed, but a new one can be sought through the same application process, which amounts to largely the same effect.

The department did not explain how it is expected the port authority will communicate its determination that an authorization has been terminated and engage in possible immediate enforcement. However, the enforcement of the regulations is carried out by enforcement officers who are designated under and act pursuant to the Canada Marine Act. The act itself sets out rules for enforcement, and therefore no further inquiry seems necessary. I would suggest that this third issue could therefore be considered satisfactory.

If members agree with the foregoing and what is set out in the note for members today, a further letter could be drafted to the department pursuing matters on the first two issues.

The Joint Chair (Mr. Richards): Thank you, Mr. Abel.

Are there any questions or comment on those items? I see one thumbs up on the screen and a couple in the room. You can consider that as agreement to proceed as you have recommended.

SOR/2017-78 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

(For text of documents, see Appendix D, p. 2D:1.)

Mr. Abel: This file concerns amendments to the Immigration and Refugee Protection Regulations, which removed the definition of the term “live-in caregiver” despite the fact that the term is still in use in several provisions in the regulations.

When this file was last before the committee in April 2019, it was clear that the removal of the definition had been premature, and the committee concluded that it should be reintroduced to the regulations until the Live-In Caregiver Program is entirely finished and all references to that term can be removed.

Counsel conveyed the committee’s views to the department in April 2019. It responded in July 2020, stating that it did not intend to reintroduce the definition. The department did state that the Live-In Caregiver Program was at an advanced stage of winding down. At present, the references are still in the regulations, and one may assume the program has still not been terminated.

Obviously, it would have been best for the department to re-enact the definition shortly after the committee recommended doing so, and it still remains unclear how many more years this program may continue, especially given that the continuance of the pandemic is likely to lead to further delays. However, it also seems clear that the department is not interested in re-enacting the definition while the program is considered to be winding down. To be fair, the lack of a legislative definition for this well-established program is unlikely to lead to actual confusion regarding its meaning or application.

As a matter of principle, it should not have been removed and should have been reintroduced within a reasonable time once concerns had been raised. However, there may not be much to be gained in continuing to pursue this matter.

If members wish, counsel could write again seeking updated information on the state of the Live-In Caregiver Program and an estimate as to how soon it may close up completely. If not, however, the file could be closed. I am in members’ hands as to which approach the committee would prefer.

The Joint Chair (Mr. Richards): Thank you, Mr. Abel. We have a decision point there. Is it the committee’s desire that a letter be sent to follow up or would — I’m getting one head nodding on that for sure. Or is there a preference that the file be closed? Is there any further comment?

[Translation]

Mr. Garon: As long as the live-in caregiver program is still in place — we’ve checked, and it’s still in place and is likely to be for quite some time — I think it would be appropriate for the committee to get satisfactory answers to its requests from the department.

[English]

The Joint Chair (Mr. Richards): Is there agreement amongst the committee on that? It looks like there is, so thank you. We will recommend that you do, in fact, follow up on that item. Now I think that concludes your part of the agenda, Mr. Abel, so thank you for your presentation.

Mr. Hilton has the next several items, so the floor is yours.

[Translation]

SOR/2015-84 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND VI — OFFSHORE OPERATIONS)

(For text of documents, see Appendix E, p. 2E:1.)

Geoff Hilton, Counsel to the committee: Before I begin, I should point out that this is the first time this file has come before the committee.

In February 2016, two issues were brought to the attention of the Department of Transport.

The first concerned a grammar mistake in the French version of a provision and was resolved by a regulatory amendment in 2019.

The second was the clarity of the air operator’s responsibilities described in another provision. Initially, the department wanted to resolve this issue as part of the 2019 regulatory amendment, but later indicated that this wasn’t possible. Subsequently, the department indicated that the remaining amendment would be made in spring 2021.

However, as of today, the change hasn’t yet been made, possibly due to the pandemic. So if the members agree, we can send a letter to the department asking when the amendment will be made.

[English]

The Joint Chair (Mr. Richards): Is there agreement on that? It looks to me there is, so you can consider that done and we will move to your next item.

SOR/2017-233 — JUSTICE FOR VICTIMS OF CORRUPT FOREIGN OFFICIALS REGULATIONS

(For text of documents, see Appendix F, p. 2F:1. )

Mr. Hilton: One issue was raised in this file concerning an incorrectly cited enabling authority. Global Affairs Canada acknowledged the error and promised it would be corrected. It was subsequently asked, though, how exactly the error would be corrected since the error was in the order-in-council preceding the regulations and not in the text of the regulations.

In response, Global Affairs Canada clarified that the error could not, in fact, be corrected but that it would ensure that the proper enabling authority was cited moving forward.

And I can confirm that in a subsequent 2018 regulation, the proper enabling authority was cited. So if members are satisfied, this file may be closed.

The Joint Chair (Mr. Richards): Do we have agreement or are there any questions or comments? It seems to me we have agreement there, so thank you for that.

SOR/2011-83 — REGULATIONS AMENDING THE LICENSED DEALERS FOR CONTROLLED DRUGS AND NARCOTICS FEES REGULATIONS (1056)

(For text of documents, see Appendix G, p. 2G:1.)

Mr. Hilton: On this file, the committee is awaiting amendments on two outstanding issues, one relating to a provision not operating the way the Department of Health intended and one relating to unnecessary administrative discretion.

At one point, the department thought it would replace the regulations with ministerial orders, but it was later determined that this was not possible. Nevertheless, the department remained of the opinion that the regulations needed to be reviewed and updated to address the two outstanding issues.

In July 2019, the committee was informed that an update on the status of the department’s review was promised by the end of 2019 and that the amendments could even be made sometime in 2020. The department encountered some delays and this timeline was not met, but it was eventually indicated in March 2020 that the department intended to propose its amendments in the spring of 2021. This timeline was subsequently not met, but the department explained in a June 2021 letter that further delays arose as a result of the pandemic and that the amendments were scheduled to be pre-published in the spring of 2022.

So if members are satisfied with the department’s latest letter, counsel could monitor the file until the end of spring, which would be June 21, and follow up with the department if, at that time, prepublication has not yet occurred.

The Joint Chair (Mr. Richards): Is that satisfactory to the committee? It appears as though it is, so consider that recommendation adopted.

We will move now to the next item.

SOR/2008-104 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix H, p. 2H:1.)

Mr. Abel: The two final outstanding concerns raised in respect of this instrument were resolved by amendments to the Motor Vehicle Safety Regulations which were made in 2017 and 2018. As a result, section 3 of those regulations has been amended to accurately reflect the process for authorizing the use of a national safety mark.

In addition, the committee had concluded that subsections 108(27) and (28) had failed to prescribe the vehicle standards as required by the Motor Vehicle Safety Act. The former approach, which required the unnamed standards or recommended practices issued by a third party to be obeyed, was found to constitute an unauthorized sub-delegation of legislative authority. As a result, section 108 of the regulations has been replaced in its entirety and new requirements now identify the specific standards that would apply.

If members are satisfied, the file could be closed. The more recent amending regulations will be placed before the committee in the future.

The Joint Chair (Mr. Richards): Is it agreed? It appears it is.

SOR/2015-181 — SECURE AIR TRAVEL REGULATIONS

(For text of documents, see Appendix I, p. 2I:1.)

Mr. Abel: Thank you. This is the first time these regulations are before the committee. Counsel wrote to the department in 2018 to note that the English version of subsection 7(1) contained a drafting error and to question the effect of paragraphs 7(1)(b) and (c). These latter provisions appeared to require air carriers to exclude passengers on the basis of their age or gender expression or identity where their appearance did not seem to sufficiently accord with their photo identification. It was suggested that this might amount to a discriminatory practice in contravention of the Canadian Human Rights Act.

Amendments were made in 2019, which will be placed before the committee in the future. I can confirm that paragraphs 7(1)(b) and (c) were repealed and that the English version of subsection 7(1) was corrected. This file could therefore be closed.

The Joint Chair (Mr. Richards): Is it agreed? Any questions or comments?

Mr. Garrison: Thank you. This is quite a serious issue for transgender and non-binary Canadians when it comes to travel. Despite the undercount in the recent census, this is about 1% of the Canadian population, and there is no indication that simply removing the section has actually solved the problem. So while it removes the explicit discrimination in the regulations, transgender and non-binary people still have trouble travelling and are subjected to extra scrutiny, which has nothing to do with security of air travel.

My suggestion would be that we ask Transport Canada what consultations were done with the transgender and non-binary community to come up with a solution to this ongoing problem, which affects not just their right to travel but their personal dignity and sometimes their safety, as transgender people are subject to physical and verbal harassment on a regular basis in our society.

So if we can ask about what consultation was done, because my checks indicate there was none, and if there is a possible solution under section 7 — which provides exemptions — by adding a section under the exemptions, that might clarify that being transgender and non-binary should not be a barrier to travel.

Therefore, I would ask that we take a proactive approach to solving the actual problem and not just a problem that was explicit in the regulations.

The Joint Chair (Mr. Richards): Mr. Abel, do you have comments on that? Is that within the purview of what we are trying to do?

Mr. Abel: My sense is that the suggestion might stray beyond the committee’s mandate by advocating for or working toward policy outcomes and suggesting the addition of regulatory provisions for policy purposes, which is beyond the committee’s mandate.

It would be possible to ask the department to account for the work that it did and the consultations it did in the enactment of these provisions or in their removal that would relate squarely to the work that has been done on this file. But I’m not sure the committee could go much further beyond that with the information it obtained.

Mr. McKinnon: I take Mr. Abel’s point. However, I would like to concur with Mr. Garrison’s concerns. I wonder if we couldn’t, within the bounds of our mandate, send a letter asking for better clarification of these kinds of constraints.

Mr. Garrison: I appreciate Mr. Abel’s concerns, and I share them.

However, having suggested that the regulation is a violation of the Canadian Human Rights Act, I’m suggesting that the existing regulation as written continues to violate the Canadian Human Rights Act. So I believe it is within the purview of this committee, because the section that allows denial of travel is the section we’re dealing with. If transgender and non-binary people are, in effect, being scrutinized under this regulation regarding possible denial of travel, it’s within the ambit of this committee to ask whether we have, by simply deleting the section, solved the human rights problem or not.

The Joint Chair (Mr. Richards): Mr. Abel, do you have any comments or thoughts on that, given Mr. Garrison’s additional comments?

Mr. Abel: At present, I can say that in our analysis, we didn’t identify any remaining overt concerns with contravening the Canadian Human Rights Act. However, it might be best if we took another look at it and engaged in further analysis ourselves. We could then perhaps bring this back to the committee.

Or, if the committee wishes, if we find any further concerns, we could simply convey them to the department and then bring the response back. But if we did not find a reason to write, we can bring the file back and advise the committee of our analysis at that point. Would that be agreeable?

The Joint Chair (Mr. Richards): I think you made a couple of different suggestions there. I know Mr. Garrison was indicating, non-verbally, that he felt it would be best — and I don’t know if other committee members agree — that you would take another analysis to determine whether there is more that can be suggested there.

I understand we have to be careful we don’t stray out of the mandate of the committee. I think all committee members understand that. Given that, maybe you could look at whether there is anything further that can and should be done within the mandate of the committee. Either way, whether you find that’s the case or that it isn’t, perhaps you can bring that back to the committee at a future meeting for the committee to make a decision upon.

That seemed to be the spirit of what I think I’m seeing from committee members. Would that be agreeable? It seems like it is for committee members, so Mr. Abel, please take that as your direction. Is that understood?

Mr. Abel: I think I can work with that, yes.

The Joint Chair (Mr. Richards): Perfect. Thank you for that. Is there anything further on this item, then?

Mr. Abel: No, nothing further.

[Translation]

SOR/2017-124 — REGULATIONS AMENDING THE VESSEL OPERATION RESTRICTION REGULATIONS

(For text of documents, see Appendix J, p. 2J:1.)

Mr. Hilton: Amendments that address 19 of the 21 issues reported to the Department of Transport were made through regulation SOR/2018-204. These issues involved incorrect geographic coordinates, grammatical errors and imprecise or outdated wording.

The two remaining amendments, which relate to incorrect geographic coordinates, continue in the committee file as part of SOR/2018-204.

Although amendments were made to these provisions in 2018, the promised amendments to one item were not made, and the amendments to the other item contained a drafting error.

However, if members are satisfied, the file can be closed.

[English]

The Joint Chair (Mr. Richards): Is that agreed? I don’t see any disagreement, so I will consider it agreed to.

Before we move to our next section, I will turn the remainder of the meeting over to Senator Woo — passing the gavel, so to speak.

The Joint Chair (Senator Woo): We are now moving to the section that is described as “Statutory Instruments Without Comment.”

SI/2011-12 — ORDER FIXING JUNE 20, 2011 AS THE DAY ON WHICH THE CANADA CONSUMER PRODUCT SAFETY ACT COMES INTO FORCE

SI/2011-13 — ORDER FIXING FEBRUARY 14, 2011 AS THE DAY ON WHICH SECTIONS 1874 AND 1875 OF THE JOBS AND ECONOMIC GROWTH ACT COME INTO FORCE

SI/2018-31 — ORDER AMENDING THE CANADIAN PASSPORT ORDER

SI/2018-69 — TRANSFER OF DUTIES ORDER

SI/2018-95 — ESTATE OF LAURA JANET BROPHY REMISSION ORDER

SI/2018-104 — ORDER DESIGNATING THE DEPARTMENT OF HEALTH AND THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION TO PROVIDE SUPPORT TO THE MINISTER OF BORDER SECURITY AND ORGANIZED CRIME REDUCTION

SI/2018-109 — ORDER FIXING DECEMBER 5, 2018 AS THE DAY ON WHICH SECTIONS 11 AND 12 OF THAT ACT COME INTO FORCE

SI/2018-111 — NORTHERN GATEWAY PIPELINES LIMITED PARTNERSHIP REMISSION ORDER

SI/2019-11 — ORDER FIXING MARCH 17, 2019 AS THE DAY ON WHICH SECTIONS 303 TO 307, AND 310 AND 311 OF THAT ACT COME INTO FORCE

SI/2019-18 — LAZARUS FAMILY TRUST REMISSION ORDER

SI/2019-19 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTIONS 237, 238 AND 240 TO 251 OF THAT ACT COME INTO FORCE

SI/2019-20 — ORDER FIXING MAY 1, 2019 AS THE DAY ON WHICH SECTION 22 OF THE SERVICE FEES ACT COMES INTO FORCE

SI/2019-25 — ORDER FIXING JANUARY 1, 2019 AS THE DAY ON WHICH SECTIONS 176 TO 178 OF THAT ACT ARE DEEMED TO HAVE COME INTO FORCE

SI/2019-35 ORDER AMENDING THE SETTLERS’ EFFECTS ACQUIRED WITH BLOCKED CURRENCIES REMISSION ORDER

SI/2019-39 — ORDER FIXING AUGUST 1, 2019 AS THE DAY ON WHICH THAT ACT COMES INTO FORCE

SI/2019-40 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH THAT ACT COMES INTO FORCE

SI/2019-43 — ORDER FIXING THE COMING INTO FORCE OF CERTAIN PROVISIONS OF (1) THE ECONOMIC ACTION PLAN 2014 ACT, NO. 1 ON JUNE 1, 2010; AND (2) THE BUDGET IMPLEMENTATION ACT, 2017, NO. 1 ON JUNE 1, 2021

SI/2019-44 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH THAT ACT COMES INTO FORCE

SI/2019-45 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH SECTION 659 OF THAT ACT COMES INTO FORCE

SI/2019-50 — ORDER FIXING JANUARY 1, 2020 AS THE DAY ON WHICH SECTION 24 OF THAT ACT COMES INTO FORCE

SI/2019-52 — ORDER RESPECTING THE REMISSION OF FISCAL STABILIZATION OVERPAYMENTS MADE TO CERTAIN PROVINCES UNDER THE FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS ACT

Ms. Dupuis: The final matter on agenda today under the heading “Statutory Instruments Without Comment” is a list of 21 statutory instruments that have been reviewed by committee counsel and found to comply with all the joint committee’s criteria. If a member would like to consult these statutory instruments, a copy could be made available upon request, but it is our recommendation that these files should be closed.

The Joint Chair (Senator Woo): Members, you have a list of these items in your package. I will give you a minute to look through them, but if there is no disagreement, we will close the files, as recommended by counsel.

Seeing no disagreement, the files will be closed accordingly.

That brings us to the end of our meeting. We will convene again in two weeks, on May 16. Have a good afternoon, everyone.

(The committee adjourned.)