REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Monday, May 16, 2022

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

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

[English]

The Joint Chair (Mr. Richards): Welcome, everyone. We have a fairly busy agenda today.

We’ll be starting with some in camera items. I know you all received an email on Friday afternoon with some documents related to the agenda items for this portion of the meeting. If members are comfortable with the amount of time they’ve had with those documents, we can proceed in camera. If not, the documents could certainly be set aside and the in camera portion postponed. Does anyone wish to see it postponed? I do not see any indication of that, so I think we’ll be safe to go ahead.

Before we go in camera, there is a motion that I’m told is a standard practice for this committee that I would need someone to move. I can read that motion:

That, unless otherwise ordered, each committee member be allowed to have one staff member at in camera meetings and that one additional staff member from each recognized party or parliamentary group be allowed to be present; and

That the committee allow the transcription of in camera meetings, and that one copy be kept in the office of general counsel for consultation by committee members.

The Joint Chair (Senator Woo): So moved.

The Joint Chair (Mr. Richards): Is anyone opposed? It is carried.

We will now go in camera.

(The committee continued in camera.)

(The committee resumed in public.)

The Joint Chair (Mr. Richards): We’re ready to recommence the meeting. We will move on to our second item of business under “Letters to and from Ministers.”

SOR/94-276 — CANADIAN FORCES SUPERANNUATION REGULATIONS, AMENDMENT

(For text of documents, see Appendix A, p. 3A:1.)

Shawn Abel, Counsel to the Committee: I will begin by taking members on a brief trip back in time to a quarter of a century ago. It was in 1997 that the Department of National Defence agreed to make amendments to address multiple instances of inconsistent terminology found in various provisions of the Canadian Forces Superannuation Regulations.

Many delays were encountered in seeing that promise met, and I regret to inform the committee that those amendments have still not been made.

The first few years of this long period of delay were due to the need to resolve inconsistencies in related portions of the act with the Canadian Charter of Rights and Freedoms. That was done. From 2007 onward, delays have continued, now due to the anticipation of a possible repeal of subsection 31(1) of the Canadian Forces Superannuation Act. This provision prevents the accrual of survivor benefits to the spouse of a Canadian Armed Forces member from a marriage taking place after 60 years of age. This is often referred to in the correspondence as the “marriage after 60” provision.

The department has indicated that should the statutory provision be repealed, then the regulatory provisions identified by the committee could also be repealed rather than needing to be corrected by amendment.

In 2015, some progress on this file almost occurred. At that time, the department indicated that the committee’s concerns would be addressed as part of a larger package of amendments that were expected to be made in 2016. However, when that package was enacted in 2016, the promised amendments were not among them. The committee was quite dismayed.

In 2017, the department promised to prepare amendments resolving the committee’s concerns if government direction regarding a bill to repeal subsection 31(1) of the act had not been announced by the end of June 2017. That time frame passed without any further information from the department, despite repeated requests from committee counsel throughout 2017 and 2018.

Thus in 2019, the joint chairs were directed to convey the committee’s displeasure at this state of affairs to the minister. They did so in a letter dated June 7, 2019. A reply was received from the department on the minister’s behalf in January 2020. That letter says little of consequence. In the main, it reiterates that a legislative change to the “marriage after 60” provision would resolve the situation. However, there is no indication whether such a change to the act might be forthcoming. Further, it is stated that work continues to develop a regulatory amendment package concerning optional survivor benefits, which is another regulatory package that could include the committee’s amendments. But again, there is no indication as to progress in these developments.

In short, this letter does not seem to provide any new information at all.

At present, the promised amendments have not been made, nor have they been pre-published in Part I of the Canada Gazette. There is no government bill before either house that would repeal the “marriage after 60” provision in the act, although that proposal is included in a private member’s bill, Bill C-221. That private member’s bill has not moved beyond first reading.

Despite past commitments to the contrary, it may fairly be said that the department does not seem willing to pursue amendments that would resolve the committee’s concerns unless and until the government makes a clear decision on the repeal of subsection 31(1) of the act.

It has been some 12 years since that policy proposal was first identified, and it is not clear if there is any hope of a final decision or a clear statement being made by the government on that matter within the foreseeable future. A renewed effort by the committee to persuade the department to make regulatory amendments independently from that potential repeal seems unlikely to bear fruit.

There are several options the committee could consider in order to advance matters. To date, despite the long history of this file, witnesses have never been called before the committee to provide precise answers as to when and how these amendments can be resolved in a reasonable time frame. In particular, department officials could be pressed once again to pursue the promised amendments independently of any other potential changes to the act or the regulations, and in doing so, tie off this matter for good.

In addition, given that the department appears to be stuck waiting for direction from the government, members may consider inviting the Minister of National Defence to speak on this issue.

Finally, as another alternative, the committee may wish to consider issuing a notice of disallowance concerning the provisions in question. As a brief reminder to members on the procedure for disallowance, the issuance of a notice only begins the process and does not oblige the committee to continue all the way to its final stage. It would, however, provide a means to strongly emphasize the need to resolve these matters without further delay, and it would perhaps prompt a swift and more satisfactory response.

However, I must also note that the committee has not objected to the existence of the provisions in question, as is usually the case when disallowance is pursued. Rather, the committee has long sought improvements and corrections. Thus, in this case, the intention of disallowance would be to prompt the regulation-maker to revoke and remake the provisions with improved drafting.

This file may be a candidate for disallowance, however, due to the exceptionally lengthy delays in obtaining a satisfactory resolution. With that said, if members wish to consider disallowance, a draft notice of intent could be prepared for a future meeting this spring.

I am in members’ hands as to how they would like to proceed on this file.

The Joint Chair (Mr. Richards): Thank you, Mr. Abel. You have presented a number of options to the committee. Does anyone have thoughts or comments?

Mr. Warkentin: I would be supportive of escalating this. It has been 12 years and it deals with people who are in their later years. I can imagine there are already people who have passed without this being resolved. So I would ask the committee to consider whatever would escalate this to the point of hopefully pressing a resolution in the coming months.

The Joint Chair (Mr. Richards): Are there other thoughts or comments?

[Translation]

Mr. Garon: When this file was opened, I did not have the right to vote. Now I have white hair. This has been going on for a long time. We have to recognize that a number of governments have been responsible for these delays and that it is not attributable to a single government in particular. Nonetheless, it affects people in their daily lives.

I listened to the four options presented. The first and second appear to be a repetition of what was done in the past that did not work. I suspect it would not work any better now.

I think it could be appropriate to invite the minister to hear her opinion and view of the situation, and to find out what she plans to do. I think we can assume that people are in good faith. This is a new defence minister and we could invite her and listen to what she says, but there have to very firm intentions.

[English]

The Joint Chair (Mr. Richards): We seem to have a suggestion that we invite the minister. It seems compatible with the comments Mr. Warkentin made, as well, so there seems to be a consensus developing there. Is that something the committee wishes to do?

It looks like I’m getting some thumbs up.

[Translation]

Ms. Brière: Before we invite the minister, could we start with her officials to follow up and ask them our questions?

[English]

The Joint Chair (Mr. Richards): We have a counter-suggestion of inviting the officials rather than the minister.

Mr. Fragiskatos: My comment was on the same point Ms. Brière made.

[Translation]

Mr. Garon: Ms. Brière’s idea is a good one, but I think we have to consider the length of time. Are we at a point where things are being blocked at the administrative level or is there a lack of political will to ask the House of Commons to repeal this section, or at least amend it? This seems to be a political issue. After all these years, it is up to the minister to do this.

Since people have been of this suffering from this for a very long time, I am in favour of inviting the minister, perhaps with some officials, because one does not exclude the other, but we need to move forward.

[English]

Mr. Warkentin: I understand the suggestion, but the problem is that this kind of activity has resulted in delays time and time again. We’re looking at 12 years of delay.

It isn’t because the bureaucrats aren’t interested in moving this forward. I think it’ll take political will, and if the minister comes, we know that the officials come with the minister. If we decide to have the officials for one hour before the ministers show up, that’s appropriate. I would find that acceptable. What I would find unacceptable is that we begin the discussion, hear from the officials in a week or two and then find out the minister can’t come until the fall.

We’re talking about elderly people, people whose lives are being impacted by this. We have a responsibility to begin to move this. I would suggest that if it is simply an oversight, if we call the minister, I suspect there will be announcement of a resolution even before the minister shows up. I would encourage us as a committee to actually do something.

This committee has a reputation of simply shuffling letters back and forth. We as parliamentarians, I believe, have a responsibility to stand up for the people we represent, and these are some of the most vulnerable people in our communities. We’re talking about people who have served our country well, so for them to be excluded from the right to care for their surviving widows or widowers — and for us not to have undertaken this in a diligent way — is reprehensible. The buck stops with us. We have a responsibility, and we’re being asked to step up. The only thing we can do is ask the minister to step up, so I would compel our committee not to delay this to the fall but to ask the minister, in the next number of weeks, to be here and get this resolved.

Mr. Garrison: I too believe this is something that’s manifestly unjust. Whether it’s about the narrow issue of the things set out in the regulations becomes irrelevant at this point, because we need a political decision to act on removing this section or not. I believe that once bureaucrats have direction, they would actually move, so what we’re really seeking to do here is getting the political will to move this issue one way or the other.

My only question is, “Which minister?” Traditionally, the Minister of Veterans Affairs has dealt with this, but I don’t care which minister does so now. I also believe there is a study going on at the Standing Committee on Veterans Affairs dealing with this question, so anything we can do to promote resolution would be helpful. Calling one of the ministers would be the right solution.

Mr. Fragiskatos: I’d like to follow up on the point initially raised by Ms. Brière. I say this as a substitute, as someone who follows the work of the committee as an associate member and has participated in meetings before. In the interests of setting the context for a meaningful understanding of the issue at hand, I think beginning with officials would be the way to go.

I’ve seen that — we all have — at other committees, and it works well, so I leave that for the committee to consider.

The Joint Chair (Mr. Richards): The first thing we need to  determine is the appropriate minister to invite to appear. Is it the Minister of Veterans Affairs or the Minister of National Defence?

Mr. Abel, do you have comments, from your perspective, on which would be the appropriate minister if that were the direction the committee chose to go?

Mr. Abel: While I can see the relevance of the Minister of Veterans Affairs, this regulation is under the care of National Defence, and the committee has been dealing with that department for the entire 25-year history of the file. I would think the Minister of National Defence would be the one to invite.

The Joint Chair (Mr. Richards): That was clear. I appreciate that.

The Joint Chair (Senator Woo): I wonder if Mr. Abel could paint a picture of the other scenario where we prepare a letter of disallowance, a draft letter that we would consider at the next meeting. Would a heads up be given to the department that a letter of disallowance was coming? Because that could have a similar effect in getting them off their backsides and doing something. Could you the paint a picture of that scenario and of how that would shift things in the department?

Mr. Abel: As part of the statutory process set out in the Statutory Instruments Act for the disallowance procedure, issuance of the notice is essentially the first warning given to a responsible department. Once that is sent out, the department has 30 days in which to respond. The committee has a minimum of 30 days in which to consider the response to the committee and, after that, could take as much time as it would like before continuing the procedure or taking a different course once it receives a response from the department. In the rare case it receives nothing — that is always possible — the committee can take that into account. The act requires that the committee give the responsible department at least 30 days.

The Joint Chair (Senator Woo): I wonder if we are there already and if it might be more expeditious and less bureaucratic than inviting officials, or even the minister, to come. It’s just a suggestion.

The Joint Chair (Mr. Richards): We do seem to have a suggestion on the floor. I would consider it a motion, although we do things a little more informally than that. We should dispose of that in whatever way we choose. However, this could be an alternative suggestion, and we could entertain that.

We should deal with what we had on the floor for discussion first. Is there anyone who wishes to speak to the motion inviting the Minister of National Defence and officials to appear? Seeing no other speakers, I think we can move to a vote on that. I’ll turn that to our clerks.

Do we have a point of order or —

Mr. Fragiskatos: I raise this point in good faith. Since the issue is being looked at by the Committee on Veterans Affairs, would the issue coming to this particular committee at all interfere with that work or duplicate efforts of the Committee of Veterans Affairs? Perhaps they are on a path to resolving this. I’m just putting that to members for consideration. If that’s not something that people will sympathize with, fine, but I’ve seen it before where one committee is looking at a matter, and it’s moving along, and another committee wishes to pursue the same matter, and it ends up not having a good outcome. I don’t know how colleagues feel about that, but it’s a thought that occurred to me.

Mr. Warkentin: I understand that is brought forward in good faith. However, for 16 years, I’ve sat in Parliament, and I know that rarely does anything happen unless there are multiple voices pushing for it — unless it’s a priority for the government.

The government has indicated it’s not a priority. They have done nothing about that. Successive governments have to take responsibility, because this government has been in power during the majority of the issue but not entirely. I believe that we have to do something as a committee.

These suggestions that we delay for another 30 days or that we wait to see if other committees deal with it — this has been brought up by other members of Parliament. The NDP brought forward private members’ business to try to resolve it and it gets swept under the carpet. I think if the minister is invited to two committees, ours is the second appearance and the minister makes a commitment to the first appearance that it’ll be resolved, we’ll go on our merry way and not do anything. This is a back-up, and we have a responsibility to not stand down because other measures are being undertaken. I think we have a responsibility to be the backstop for the people who are waiting for this to be resolved.

[Translation]

Ms. Michaud: I will repeat what my colleague just said. This file has been outstanding for over 10 years and, to my knowledge, no other committees are working on it right now. I do not think there is any interference, as Mr. Fragiskatos suggested. I think we could go ahead and invite a minister to appear before the committee.

[English]

The Joint Chair (Mr. Richards): Are there any further comments? I will turn it to our clerks to conduct the vote. This is a vote to invite the Minister of National Defence to appear here on this matter.

The Joint Clerk (Ms. Sauvé): The Honourable Senator Woo?

Senator Woo: No.

The Joint Clerk (Ms. Sauvé): The Honourable Senator Dalphond?

Senator Dalphond: Yes.

The Joint Clerk (Ms. Sauvé): The Honourable Senator Dean?

Senator Dean: Yes.

The Joint Clerk (Ms. Sauvé): Ms. Brière?

Ms. Brière: Yes.

The Joint Clerk (Ms. Sauvé): Mr. Chen?

Mr. Chen: Yes.

The Joint Clerk (Ms. Sauvé): Mr. Gaheer?

Mr. Gaheer: Yes.

The Joint Clerk (Ms. Sauvé): Mr. Noormohamed?

Mr. Noormohamed: Yes.

The Joint Clerk (Ms. Sauvé): Mr. Fragiskatos?

Mr. Fragiskatos: Yes.

The Joint Clerk (Ms. Sauvé): Mr. MacKenzie?

Mr. MacKenzie: Yes.

The Joint Clerk (Ms. Sauvé): Mr. Warkentin?

Mr. Warkentin: Yes.

The Joint Clerk (Ms. Sauvé): Mr. Webber?

Mr. Webber: Yes.

The Joint Clerk (Ms. Sauvé): Ms. Michaud?

Ms. Michaud: Yes.

The Joint Clerk (Ms. Sauvé): Mr. Garrison?

Mr. Garrison: Yes.

The Joint Clerk (Ms. Sauvé): Yeas, 12; nays, 1.

The Joint Chair (Mr. Richards): That motion is carried. We will endeavour to invite the Minister of Defence as quickly as possible. We will now move on to the next item.

SAFE FOOD FOR CANADIANS REGULATIONS

Geoffrey Hilton, Counsel to the Committee: In short, these regulations, registered as SOR/2018-108, have not undergone a substantive review but members may simply like to note that they repeal 13 other regulations, which closes 20 of the committee’s files, the full list of which can be found in the briefing note.

The committee raised a variety of issues in the 20 files ranging from the less substantive, like drafting errors, to the more substantive, like validity and discretion. When the new regulations do undergo a substantive review, they will be checked to see whether these same issues reappear. For now, if members agree, the 20 files can be closed and these new regulations can be presented at a later date.

The Joint Chair (Mr. Richards): We have a suggestion there. Any comments or questions?

Mr. Warkentin: I believe, Mr. Hilton, this is item 3 regarding the Safe Food for Canadians Regulations. The front-of-package labelling has become a major issue for many of the producers I represent — I’m certain others have heard about this — as well as the supermarkets and those that distribute food.

Perhaps Mr. Hilton can provide some assurance to me on this. My understanding is that the consultation that should have been done, or would have usually been done with regard to this specific provision, was not done or was not completed due to COVID. Is that correct? Mr. Hilton, do you have any update for us on that?

Mr. Hilton: I can’t speak to the nature of consultations that would have occurred. Any consultations that would have occurred would be discussed in the regulations’ regulatory impact analysis statement, which would follow the text of the regulations in the Canada Gazette and could be possibly posted on the department’s website to explain what consultations were held, with whom and to what extent.

Mr. Warkentin: That is exactly where I am getting the information that they were not conducted in a fulsome manner and the rationale was COVID. This would impact significant portions of the agricultural industry in Canada. More importantly, it would possibly create more strangleholds in terms of the supply chain. Currently, we have major issues with regard to food getting to market and into the hands of consumers, escalating price, and so on. This specific portion of the regulations that would be changed would have a significant impact in terms of the pricing, the availability and some of the challenges with the processes are already due to COVID and some of the supply chain issues. So I strongly oppose moving forward expeditiously, not having undertaken consultations that would fully expose those concerns.

Senator Dalphond: We are on item 3. What has been proposed to us is to close the old files relating to 13 regulations that no longer exist. The new, all-encompassing regulation that replaced these 13 regulations is in the process of being reviewed by the committee. I guess it’s not disappearing; it’s coming back. We’re just closing these old files. If I am wrong, maybe the legal counsel could correct me.

Mr. Hilton: That is correct. The issue right now before the committee is not so much the Safe Food for Canadians Regulations themselves, it’s just closing 20 old files. The Safe Food for Canadians Regulations are some 250 pages long and are in the process of being reviewed. They will be brought back to the committee at a later date when that review is concluded.

The Joint Chair (Mr. Richards): As further clarification, I also received correspondence from a number of agricultural producers and I’m sure other committee members did as well. I don’t know if that was in relation to the specific item on our agenda, but the timing would indicate to me that might be the case. Are you telling us that perhaps these folks are writing to us with commentary about something coming on our agenda in the future rather than something we see before us today? Is that what I’m hearing here today?

Mr. Hilton: The new regulations themselves have not been reviewed yet, so I can’t speak to what they contain, whether they contain the same problems originally raised in the 20 other files. As for discussing the consultations, I don’t think they would fall within the mandate of the committee unless there are some statutory requirement to hold consultations that was not, in fact, held.

Right now, for our purposes, all we’re doing is just closing these old files.

The Joint Chair (Mr. Richards): Mr. Abel, would you offer some advice here as well?

Mr. Abel: The Safe Food for Canadians Regulations were enacted in 2018. There is no possible way this issue that members have been hearing about could relate to this regulation.

If there was some consultation issue that had to do with the pandemic, it would have to relate to something that had been in development or would have been enacted in 2020 onward. I don’t know offhand what that would be referring to. It is likely some other agriculturally related regulation. The Safe Food for Canadians Regulations have not been amended since 2018.

Mr. Warkentin: I hate to admit it, but I don’t think I’m prepared to vote on this today simply because I have my own wires crossed. I do apologize to other committee members that may have come more prepared than I have, but I need to provide assurance to myself that I understand all 20 provisions that are being changed before I vote on this. I would ask committee members to consider delaying a vote on this as a favour to me, quite frankly.

Mr. Hilton: If I might clarify, Mr. Chair, it’s not 20 provisions that are being closed; it’s 20 different files of the committee that are being closed. Thirteen different regulations have been repealed, and the committee had 20 files on those 13 regulations. So what we’re doing now would be to close those 20 old files.

The Joint Chair (Mr. Richards): Mr. Warkentin has asked that we table it at this point. Are other committee members comfortable with allowing that? It seems as though that’s the case, so we will table it until we have the opportunity for all members to have the comfort level where they’re prepared to make a decision. Thank you for that, Mr. Hilton.

We will move on to item 4.

SOR/2017-110 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER SECTIONS 140, 209 AND 286.1 OF THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

(For text of documents, see Appendix B, p. 3B:1.)

Mr. Abel: I will begin by referring to the note prepared for members on this file. It sets out three issues on the first page. I have an update on the first issue, concerning outstanding amendments. Those have now been completed and registered as SOR/2020-235. While the amendments appear to resolve the outstanding concerns, this instrument will be reviewed and placed before the committee in the future.

I can turn, then, to the second outstanding matter regarding the incorporation by reference of documents into the regulations. Numerous provisions enacted by this instrument incorporate by reference documents setting out equipment and testing standards that are available for purchase. Subsection 18.3(1) of the Statutory Instruments Act requires the regulation-making authority to ensure that any document incorporated into a regulation is “accessible.”

The initial exchange of correspondence on this file established that, one, not all the standards are available in French; and two, most of the standards in question are available at a cost of between $52 and $336 as of 2019. Committee members expressed concerns that the incorporated documents may therefore not be sufficiently accessible and directed counsel to seek further information from the department.

Concerning those incorporated documents that are not available in French, the department responded in 2019 that it “continues to monitor the availability of French versions.” The committee has not been notified in the intervening time of any new French versions that have since been identified.

On this question, the Treasury Board’s Policy on Regulatory Development also applies. This policy states that when a unilingual document is incorporated, departments must provide administrative guidance in both official languages. The department’s 2019 letter states that it was in the process of reviewing its existing bilingual guidance to determine if any additional content should be added and that it has expert staff who are available to provide guidance, upon request, in both languages. However, the department did not identify or provide any specific guidance it may have already prepared regarding incorporated documents.

Members will need to decide if this response seems satisfactory. It may be possible that more specific information about the administrative guidance that is available could be obtained from the department, perhaps with some examples. The larger question also remains as to whether the existence of administrative guidance is an adequate substitute for the lack of a French version of certain documents setting out equipment and testing standards.

There is also the question of cost. Committee members wished to know how the department assesses the reasonableness of costs of incorporated documents. In reply, the department suggests that the price of the incorporated standards is reasonable, given that the cost to purchase a regulated storage tank system or to deal in the export of fuels is significant enough to outweigh the burden of the cost for these documents. In other words, persons governed by the regulations should be able to afford the incorporated standards.

While the cost to operate in the regulated industry may be a valid factor for consideration, reliance on this factor alone demonstrates a certain myopia that excludes the role of the public in examining, assessing and responding to delegated legislation. In short, if the law is to serve the public, the public must be able to read it. It is for this reason that the committee recommended in its Report no. 90 that materials incorporated by reference into delegated legislation should be made available for consultation, free of charge.

If members wish, the department could be asked to implement a process that would ensure that any interested person could examine documents incorporated by reference into regulations under its responsibility, at least by some limited or restricted means.

Finally, I turn to the last matter, which is numbered as item 8 in the analysis portion of the note and in the correspondence. This concerns the amendment of section 28 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. When this file was last before the committee, members were not satisfied that there is sufficient authority in the enabling act for this provision.

This new version of section 28 of the regulations requires the owner of a storage tank system to submit to the minister, in writing and before a product is transferred into the tank, contact information for the owner and detailed technical information about the storage tank. The minister will then, in turn, assign an identification number for the storage tank.

In its latest reply, the department relies on the citation of the same two enabling provisions that it cited in its previous correspondence, which was before the committee at the prior meeting. These provisions provide the power to make regulations concerning substances themselves and require persons to report to the minister regarding those substances. The department seems to contend, in essence, that the information that must be provided to the minister under the regulations is not fundamentally about storage tanks but, rather, about the substance that is to be stored in those tanks.

The committee previously considered that the act does not expressly state that the regulations may require the submission of information relating to the storage of a substance or a system for storing substances. However, with the department’s latest reply in mind, it may be the case that there is a sufficient overlap of authority in the act such that the power to require the submission of information relating to storage tank systems is necessarily implied in the powers to regulate substances that would then be stored in those tank systems.

The department has cited paragraph 209(1)(f) and 209(2)(r) of the Canadian Environmental Protection Act. These provisions authorize the making of regulations respecting “any substance” and providing for “the submission to the Minister . . . of information relating to the substance.” These authorities could be read in combination with paragraph 209(2)(o) of the act. Although not cited by the department, this provision authorizes regulations respecting the manner in which a substance may be stored, including ”the conditions under which” it may be stored. This suggests that further obligations may be imposed in connection with the storage of substances.

The act does not expressly allow for regulations to require a person to submit information to the minister regarding storage tanks. This is clear. Although instances are rare where a substantive power to make regulations can be established by necessary implication, members should consider whether this may be such a case.

Here, Parliament granted power to make regulations respecting substances; providing for the manner and the conditions under which substances may be stored; and providing for the requirement to submit information to the minister concerning a substance. I would suggest that there is, at least, a reasonable argument that Parliament intended for a regulation-maker to be able to impose on the owner of a storage tank system a requirement to provide information about not just a substance to be stored in that system but about the system itself.

If members find that view persuasive, then this matter could be considered satisfactory. If the committee is satisfied on that matter, there still remain some questions regarding incorporation by reference, as discussed earlier. A further letter to the department could be drafted pursuing those issues.

So the question for the committee is how they would like to proceed.

The Joint Chair (Mr. Richards): Is there anyone who wishes to make a comment or ask a question?

Mr. Warkentin: This seems to be very broad in its application, including all storage tanks without a definition as to who or even the type of container but simply the type of commodity that will be placed in it. It seems so broad that it seems almost ridiculous.

I wonder if Mr. Abel would be able to specify if there’s any limitation in terms of size or location included that would restrain government from demanding information that might be as small as a jerry can.

Mr. Abel: My understanding is that it is fairly broad, as you’ve stated. There don’t seem to be limitations in terms of size. The storage tank systems discussed in the regulations are limited to those that handle petroleum products. It is defined as a system containing pipes, vents, sumps, diking and other various accoutrements. I don’t think that is interpreted as to include something as simple as a portable container but rather any sort of substantial system of any size, if that makes sense.

Mr. Warkentin: I guess it elevates my concerns. A jerry can does have both a vent and a pipe, so at least two conditions would be met. The concern I have is if, in fact, they’re asking for broad powers to require notification to the federal minister, knowing a little bit about fuel stations and what the average person would consider reasonable regulations.

I do know that those systems are regulated at the provincial and municipal levels — and federal level in some cases — so I believe this could be significantly redundant and unnecessary. I would be reluctant to give additional jurisdictional power over what could be a significant challenge, especially when you consider where fuels are often held on a temporary basis. Think about the agricultural industry and if farmers were required to notify the federal minister every time they put forward a storage container. And think of fishermen in the same situation where they would be required to notify the federal minister whenever they constructed a temporary or any type of mechanism to refuel the boats.

There are already regulatory reporting requirements for large, institutional suppliers of fuel, but I’m very concerned about how far this might go. I’m concerned about the unintended consequences and the additional bureaucracy for folks who would be significantly hindered if, in fact, this was allowed to move forward.

Mr. Abel: If I may clarify, at a continued glance, I’ve also found a definition for “tank.” I was looking at the definitions for storage tank system in the regulations, which describe the various portions and parts of the system. There’s also a limiting definition of “tank,” and I apologize for not seeing it earlier. It is limited to closed containers with a capacity of more than 230 litres that are designed to be installed in a fixed location. So I think that would allay any concerns regarding portable containers of petroleum.

Mr. Warkentin: I appreciate that clarification. It only resolves one of my examples. Every farm and every logging operation would have a permanent tank that is over 230 litres. I can’t even imagine how significantly redundant this would be. These tanks are already inspected by those who deliver fuel to these locations. They are already regulated by the provincial and municipal governments. To now require anything over 230 litres to be reported to the federal government would, I think, be an egregious undertaking by the federal government and completely out of touch with the needs of Canadians. I would be very concerned about this. From my own perspective, I think of the logging industry, the forestry sector, the agricultural sector and a whole host of folks, but I’m sure if we went around the table, everybody would have their own reflection on their own communities.

I believe this is better regulated and undertaken by municipal and provincial governments that could better reflect the realities in their local communities. I think there would be concern about a permanent tank of over 230 litres in downtown Toronto, but that reality in a rural community is something significantly different. If there is a requirement that you have to report to the federal minister every time a fuel tank is set up on a farm, I can only imagine the bureaucracy, coming from a rural community. We’re talking about hundreds of thousands, if not millions, of reports that would have to be undertaken and then re-reported. All I can imagine is that the vast majority of those tanks would be in contravention of the regulations, and that would be unnecessary. There would just be no ability and no need for the federal government to undertake a responsibility that should be left to the local municipalities.

The Joint Chair (Senator Woo): Can I ask the legal counsel to comment on the extent to which the very legitimate concern raised by our colleague is a matter of policy and law-making as opposed to a policy of the scrutiny of regulations? It will help us ascertain the depth into which we want to get into the question of whether the law, as such, is appropriate for circumstances that he has described as opposed to fixing a problem that this committee has been tasked with doing.

Mr. Abel: As a starting position, I would say that the analysis of a concern such as that would require — and I could not do this off the top of my head — a detailed analysis. It would begin with an examination of the act and the regulations in concert. Off the top of my head, I cannot say how much of the regulation of a storage tank system is framed within the act itself and how much is within the regulations. That would first need to be determined.

After that point, our position review would be to determine whether the regulations are within the scope of regulatory authority provided in the enabling provisions, rather, largely, than considering the merit of the regulations. But, of course, we would consider constitutional probity and issues of that sort.

What I can say is that these regulations have been before the committee in the past. Not simply this file but the regulations as a whole have all, at some point, come before the committee and been examined by legal counsel and by the committee itself. That said, if there are future issues that the committee wishes to look at again, reconsider or address, counsel is available in whatever direction the committee wishes to take.

The Joint Chair (Mr. Richards): Are there others with comments or questions? I don’t see any. Obviously, Mr. Warkentin, you’ve expressed some concern. Do you have a suggestion for the committee? Is it to ask that some of this analysis be done, or do you have another suggestion for the committee to consider?

Mr. Warkentin: What’s being asked is if we’ll allow the bureaucrats and the civil service to undertake a reporting mechanism for any tank that’s over 230 litres — every tank. Quite frankly, I think our responsibility is, as we scrutinize this, to consider what the realities in our local communities are. I can already identify that this would be a major problem for a significant portion of my constituents and a significant portion of rural communities. I can’t speak to more urban realities, but I do see that there’s a difference.

I think this is a regulation that should better be imposed at the municipal level. I believe we should say that we do not believe that the bureaucracy should pursue a process to identify and require reporting every time a tank is set up — in any part of the country, for any purpose — to store fuel over 230 litres. I think we’ve done our job in simply saying no, we don’t believe it should be expanded to that. That’s a reasonable thing for us to do in our roles. If the bureaucrats, the civil service or the minister wants to come back with an alternative suggestion and address the concerns that we’ve identified, then that’s well within their prerogative if they believe that’s necessary. I just worry that we will allow for the creation of a system by which people will be encumbered by these new reporting mechanisms. I think they’re unreasonable reporting requirements and I think they’re redundant to the vast majority of communities, where municipal and provincial guidelines already exist.

The Joint Chair (Senator Woo): I again encourage all of us to think about the mandate of this committee. The concerns raised are legitimate. Perhaps a new law or an amendment to the current law is required. But if the law says that a certain thing needs to be done, is it appropriate for this committee to say that regulations should not be developed in order to implement the law? That would seem to be exactly opposite to what our job is. Again, I look for advice on what is the proper scope of our work and how we should be discharging it. This is in no way to discount the concerns that are raised by our colleagues, but is this the right forum to be taking that kind of action? Again I look to advice, particularly from legal counsel and other more experienced colleagues.

The Joint Chair (Mr. Richards): Did Mr. Abel have any comment on what the senator has just raised?

Mr. Abel: I can’t comment on the appropriateness of these regulations specifically without doing an analysis. The committee has done such analysis in the past. I say that simply because the original enactment of the regulations, which set out its scope and effect, have been before the committee. The committee can always revisit examinations that it has done before.

I would turn to the committee’s criteria, which may be helpful to members. The ones which seem most relevant to this question are not those of validity, since I don’t think that is in question at this point, but there are some potentially relevant criteria that members may wish to consider. I suppose members don’t have the criteria at hand right at the moment, but I can state them here:

. . . trespasses unduly on rights and liberties;

makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;

makes some unusual or unexpected use of the powers conferred by the enabling legislation;

amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment . . . .

Those criteria are considered in review of every instrument, but those may be relevant to the discussion that is before the committee at the moment.

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

Mr. Fragiskatos: In the vein of what Senator Woo was counselling the committee and what we just heard as well, I think it would make sense to engage officials on this, to engage the department responsible. Again, Senator Woo’s advice does resonate. I’ll just leave it there.

[Translation]

Senator Dalphond: I understand that the section refers to three points. The first involves the cost of accessing certain documents to which the regulations refer, costs which seem quite high for individuals who are not in business.

The second point is the difficulty of obtaining in French the documents to which the regulations refer. Personally, that is very important to me.

The third issue is the committee’s questions about the basis for the regulatory power authorizing the minister to require reports concerning the contents. The answers provided by the justice department suggest that the committee should conclude that the legal basis for adopting regulations concerning the contents is valid, specifically under the provisions of subsection 209(2) of the act. I did read the section carefully, and I think the department is correct.

That being said, I understand that one of our colleagues is concerned about the appropriateness of these regulations. As a new committee member, I do not know whether that is part of our mandate or not. So I agree with what Senator Woo said. Based on what our legal counsel said, however, I understand that certain elements of our mandate might allow us to question the fact that the provisions, while valid, represent an excessive regulatory burden.

To my mind, these are separate issues. I would however like us to at least go ahead and remind the department of the importance of making documents available to the public, in both official languages, and at a reasonable cost.

On the third point, I have to admit that I am learning a lot about this and that I am very open.

[English]

Mr. Warkentin: I’m thankful I was reminded that there are three elements of this. I’ve become preoccupied with the third provision. I agree with the senator with regard to the first two.

It’s clear that the civil service doesn’t know whether or not they have the right, or if it was intended that they have the right, to require a disclosure of every tank that’s being installed that’s over the size of 230 litres. I don’t believe there’s a minister who would reasonably believe that’s information the federal government should collect and that we should create an entire apparatus of the federal government to have people report that every time. I guess I should be clear; it’s not about the tank itself. It’s every time it’s filled. So if a farmer changes from diesel fuel to gasoline over the years, I suspect that would require another reporting to the federal government. When we’re talking about 230 litres, that would fill up the average pickup truck twice. We’re not talking about huge tanks. We’re talking about very modest tanks. I have no idea how many tanks have been sold that would fall under that, but I can imagine that it would be in the millions. These tanks would be distributed and they would be required to be reported to the municipal and provincial governments in the respective provinces and municipalities in the vast majority of locations.

I do understand Senator Woo’s concern. It’s not our job to make policy. But it is for us when we are asked whether or not we believe it was the minister’s intent that this be included because it is uncertain. They are uncertain, so they’re coming to us for some advice. I would believe there isn’t a minister across party lines that would believe this is a reasonable thing for the federal government to engage in.

I suggest that on that third provision we indicate to those who are asking that we believe it is unreasonable and that it’s unlikely that the minister ever intended for that to be the case. If the way this works now is if we say “no,” then the person in the department who believes this is important can then go to the current minister responsible and ask that legislation be passed specifically. That is, make this a regulation and make it specific so that there not be any misunderstanding.

I think we should send the message back that we don’t believe that it’s a reasonable thing and that it was reasonably expected that an entire bureaucracy would be set up to have farmers, fishermen and retired golfers indicate their tanks to the federal government in addition to whatever local and municipal requirements they have.

Then, if they believe that is in the public’s interest, they can go to the minister, the minister can make it abundantly clear to Canadians, and it can be debated before the House of Commons, but in the interim, those of us reasonable people around this table of different parties will indicate that we don’t think that was intended.

The Joint Chair (Mr. Richards): The suggestion is that we indicate we don’t feel this is reasonable and we don’t think this was the intention for this type of reporting structure.

Mr. Noormohamed: I want to begin by thanking everyone for the education regarding 230-plus-litre tanks, which I assure you, as somebody who comes from an urban centre, is not something we discuss often.

What Mr. Warkentin says makes sense. It’s important not to think of regulation as a blunt instrument that leaves lack of clarity on things that should be reasonably answered. I, like many others, don’t know what the intention is. We could make assumptions about that, but I think it may be worthwhile for us to find that middle ground and ensure we have some clarification at this table, to say to officials, “Give us clarity, so we understand what is being discussed and what we are being asked to look at.” Because as others have said, our job is not to set policy, but it is important for us to know exactly what question we are being asked to answer. That might be something an official could very simply give us an answer for to consider.

The Joint Chair (Mr. Richards): There might be a way to blend these two suggestions. It’s a similar suggestion to one that Mr. Fragiskatos made earlier. Perhaps we could indicate the committee has some concerns, we feel it may not be reasonable and may not be what was intended. I don’t know if we want to have the officials appear, but we could express that we think there might be an issue here and ask for that clarification, whether it be with an appearance or otherwise. Does that seem like a good blending of thoughts and a satisfactory resolution?

Mr. Warkentin: I would be satisfied with an exchange of correspondence on that third point. I don’t think we need the officials to appear, unless we get an answer I’m not satisfied with, and then we’ll ask for officials. There may have been a misunderstanding along the way. I am sure in review of the correspondence, they will review the transcript of this committee, as they often do, and they will either allay my concerns or they won’t.

The Joint Chair (Mr. Richards): I believe we have consensus on that, and we express —

[Translation]

Senator Dalphond: We have reached a consensus as long as the two other matters are addressed, that is, access to documents in French, and at a reasonable cost.

[English]

The Joint Chair (Mr. Richards): We’ve got a consensus then, and we will write the appropriate response and seek some clarification there. Thank you for that.

We move now to item 5 on our agenda.

SI/2018-97 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS REGISTERED AS THE DAY ON WHICH SUBSECTION 10(2) AND SECTION 15 OF THAT ACT COME INTO FORCE

(For text of documents, see Appendix C, p. 3C:1.)

Mr. Abel: This issue on this file is that this order purports to “fix” the day that it brings into force two statutory provisions as the day that the order is registered by the Clerk of the Privy Council. The committee has previously considered that where a statutory authority requires a coming into force to be “fixed,” this approach does not amount to “fixing” a day. The reason is that the registration of the order is done by the Clerk of the Privy Council a day after the instrument is made, and what that day will be is not known. The committee has taken the view that this does not amount to fixing but rather amounts to a form of sub-delegation to the Clerk of the Privy Council to determine the actual day of coming into force. In this case, the order was registered by the clerk nine days after its making. The order is now spent. It completed its effect in 2018, so if there were any remedial action, it would likely involve a government bill in Parliament enacting a remedy retroactively.

The committee engaged with the Department of Justice on this general issue only a few years ago. The Department of Justice does not agree with the committee’s view, and as such, a remedial government bill seems unlikely to ever appear. However, in its dealings on this issue the committee received, in 2016 from the Minister of Justice, a commitment that departments would be informed of the committee’s view in the course of examining coming into force orders. The department confirmed, in this case, that they were advised of the committee’s view and that this was done as a matter of course.

Counsel also asked the Department of National Defence whether it would have been possible to fix a specific date. The department responded only that it has no official record concerning this question. At best, this could be considered a very evasive response. Nonetheless, the department did provide a commitment to fix a specific date in future orders as long as it is practicable to do so. Counsel will, of course, examine future orders with this issue in mind.

In summary, there appears to be very little the committee could continue to pursue on this file. If members agree, a final letter to the department could be drafted indicating an acceptance of the department’s commitment and an indication that this file will be closed. I wonder if that approach would be agreeable to members.

The Joint Chair (Mr. Richards): Are there any comments or questions on that suggestion?

Mr. Warkentin: I hate to be the guy with the opinions today, but I get a bit fed up with departments saying that they disagree with the supremacy of Parliament and therefore they will proceed to do what they have done, never rectify the situation and, basically, go away. It is a precedent that will allow them to now resist. I don’t imagine that it was malicious, but I do believe that it is problematic to set this precedent. I believe that the coming-into-force date should be the one that has been approved by Parliament. We don’t delegate that authority to the clerk, and for whatever reason, it was undertaken.

I suspect that they are right that to resolve it, it would require a legislative change, but that speaks to how grave a concern this is and how much of a precedent it sets if we allow it to stand. I think we should write back and say, “You may not like the reality, but we don’t accept it.”

The Joint Chair (Mr. Richards): Mr. Warkentin made the suggestion that we express some serious concern about what has transpired. Any other thoughts or comments? Is there agreement that we should proceed in such a way?

I will consider that we have that consensus to do so.

Thank you for that one, Mr. Abel. We will move to item 6 now.

SI/2019-29 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN NUNAVUT (KIVALLIQ AREA) ORDER

The Joint Chair (Mr. Richards): It has been requested that item 6 be removed from today’s agenda. Counsel has looked at it and decided that there are some issues they would like to explore a little further. We’ll bring this back on a future day if that’s okay with committee members. I don’t see any disagreement.

We will move to item 7, and again, we have Mr. Abel. This is on regulations amending the Canadian Aviation Regulations.

SOR/2018-134 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (DESIGNATED PROVISIONS — PROJECTION OF DIRECTED BRIGHT LIGHT SOURCE AT AN AIRCRAFT)

(For text of documents, see Appendix D, p. 3D:1.)

Mr. Abel: I am mindful of the time. This is a lengthy file, so I will try to move as quickly as I can.

The amending regulation designates two provisions of the Canadian aviation regulations for the purposes of the administrative monetary penalty, or AMP, process set out in the Aeronautics Act. An AMP may be issued by the minister in respect of a contravention of a designated provision. This allows that contravention to be pursued by way of a fine rather than by prosecution and, in fact, a designated provision may not be enforced any longer by way of prosecution.

The process involves a written notice from the minister where the minister has reasonable grounds to believe that a contravention has occurred and the minister designates the amount of the fine within the bounds set out by legislation. A person subject to an AMP must pay that fine or apply for review before the Transportation Appeal Tribunal of Canada. At that tribunal, the minister bears the burden of proving the contravention. However, in contrast to a prosecution before a court, the tribunal is not bound by most rules of evidence, and the minister has a significantly reduced burden of proof.

In short, the AMP process circumvents certain procedural and evidentiary protections of a judicial trial, but that is part of its design; it is intended to provide a more efficient process by which to enforce the act and regulations. The benefit for the individual is that it avoids a criminal proceeding, a potential criminal conviction and any possibility of a penal sentence.

Counsel raised two issues regarding designations that were made by this instrument. The first issue concerns section 601.20 of the regulations. This provision prohibits any person from projecting a directed bright-light source into navigable airspace in such a manner as to create a hazard or cause damage or injury. In a letter to the department, the committee counsel noted that since the addition of the AMP process to the act in 2002, the statutory and regulatory provisions that had previously been designated relate to persons operating in the aviation industry in some capacity or to persons at an aerodrome or on an aircraft. Only a small number of provisions found in the regulations, including this one, apply to the public more at large outside of a localized setting of an airport or while on an airplane.

The exception to this trend were two provisions designated in 2011. Those both governed building structures or objects that pose a hazard to air navigation. At that point, the committee did not raise objections regarding the designation of those provisions. However, there may be some difference in the obvious application to the general public with regard to structures as opposed to the direction of bright-light substances. Bright-light substances and light sources can include things like a handheld laser pointer and, conceivably, any significant bright-light source used for personal or commercial purposes.

In addition, there are other recent provisions, including those imposed by way of interim orders under the same act, which apply to the conduct of the public at large, again, outside of airports or on an airplane. The issues raised here may presumably be before the committee once again in the future.

To be clear, the underlying designated provisions are not in question. There is no question as to their validity, and there is no question that the Governor-in-Council has express authority to designate these two provisions under these regulations. Nonetheless, even where a regulation may be authorized, it may be found to contravene the joint committee’s criteria, and that is the question for members today. Along these lines, counsel asked the department to identify any other designated provisions that have a similarly wide application to the general public and to explain how such designations are made and would align with the intended purpose of the AMP regime in the act.

The department reply states that:

. . . while most of the provisions found in the [Regulations] do generally apply to stakeholders involved in the aviation industry, advances in technology and recent trends in aviation-related activities support the need for provisions that more broadly apply to the general public as a matter of aviation safety.

This seems to confirm the novel nature of these recent designations.

The department’s letter also notes that the objective of the AMP process is to deter behaviour and to encourage regulatory compliance rather than punish the offending behaviour through criminal proceedings. Now, quite obviously, deterring laser attacks on aircraft serves the overall purpose of the act to maintain safety and security, and the incidence of such attacks has increased markedly in recent years; that is a matter of public record. As noted in the regulatory impact statement:

Enforcement of laser attack offences has proven to be challenging given the difficulty in obtaining evidence, i.e. locating and identifying a perpetrator, the burden of proof required for a summary conviction, and the lengthy court process for prosecution.

It follows that a designation for the AMP process may lead to a higher effective rate of enforcement. In other words, it is simpler and quicker to levy fines through the AMP process than to prosecute persons in court.

All the aspects of the AMP regime as enacted by Parliament make it simpler to do so, and those are deliberate choices. Yet Parliament did not automatically subject all offences under the act or the regulations to the AMP process, which suggests some reason for restraint. As the department’s letter confirms, the act is primarily concerned with the regulation of the aviation industry. The trade-offs inherent in the AMP process may be more easily justifiable in that context. A directed bright-light source, such as a laser pointer, is a commonly owned recreational item. It seems possible that reduced legal protections afforded under the AMP process could put individuals at significant risk of a fine, for the inadvertent contravention of the regulations or being wrongly identified.

It may be worth noting that the underlying provisions designated here have been in place since 2002 yet were not designated until 2018. Presumably, this indicates some reluctance or reason not to designate them earlier. Perhaps the department should be asked for the rationale it applies when determining whether a provision should be designated or not, particularly in connection with provisions such as these. That information may be helpful to the committee before arriving at a conclusion on this question.

If that seems agreeable to members, I could move on to address the second issue raised on this file.

The Joint Chair (Mr. Richards): I see a nodding of heads. Are there any comments or questions? Seeing none, please go ahead, Mr. Abel.

Mr. Abel: The second issue concerns the separate designation of subsection 601.21(1) of the regulations. At first examination, this subsection seemed to provide what is effectively an exemption process from the prohibition against projecting a bright-light substance. That prohibition was, of course, discussed under the earlier designated provision.

The designation of this provision raised the possibility that a person could be fined for the contravention of what is, in effect, an exemption provision rather than an obligation. In addition, it raised the possibility that if the true prohibition is only located in subsection 601.20, a person who contravened section 601.20 could effectively be fined twice for a single prohibited act.

In order to clarify the operation of these offences, counsel asked the department to provide an example where a person could be subject only to a penalty under the latter designated provision.

The department’s reply admits that it is possible for a person to receive a fine under both provisions, but it argues that these provisions are distinct because they are intended to apply to different situations: on one hand, persons who create a hazard to aviation safety or cause damage or injury, which is to say persons who do create a real danger or harm; and on the other hand, persons who plan to direct a bright light into navigable airspace and are therefore required to apply in advance to the minister in order to do so.

In essence, the department seems to be making a distinction based largely on timing.

This explanation has suggested that these provisions may be more understandable by thinking of them in reverse order rather than the order in which they come in the regulations. In the regulations, the first designated provision is a prohibition against projecting bright light; the second provision requires a person to seek permission from the minister before doing so. But the matter of timing really puts this in reverse order; that is to say that before the event happens, a person is required, under the regulations, to seek permission from the minister. If a person then shines a bright light into navigable airspace in a way that may or may not cause harm, they have contravened that second provision, whether or not harm is actually caused. If the projection of that bright light then causes a harm, they have contravened the other provision. That may be the case whether they have sought and received permission or not.

So what you have here is a situation where either one or both of the provisions could be contravened in different factual situations. A person could fail to seek permission and then shine a bright light into the sky in navigable airspace. In that case, they have certainly contravened the first provision, and if that bright light caused a danger, then they have contravened the second provision, but not necessarily, depending upon whether a danger was caused. If a person sought permission and received it, then they have done as the regulations required, but then if, in following the minister’s instructions, they nonetheless cause a danger to navigable airspace, they have contravened only the second provision.

This is set out in a bit of a flow chart in the note for members, which may be easier to follow on paper than it is orally.

But in short, it appears that these designations do carry out different effects and that it is not simply a case of allowing a person to be doubly fined for the contravention of a single provision.

If members are satisfied with that analysis, then only the first issue could be pursued with the department. A letter could be drafted asking the department to provide some more information cornering how it determines whether to designate a provision such as section 601.20.

I am, of course, ready to answer members’ questions on both of these issues before we proceed.

[Translation]

Senator Dalphond: You have commented on two provisions, but I note that no comment has been made regarding the date on which this order came into force, which was the date that it was registered. Am I to understand that the issue of the coming into force upon registration was raised with respect to the previous matter, but not this one?

[English]

Mr. Abel: That’s correct. In effect, these are different situations. It is standard — de rigueur — for a regulation to be brought into force on the date of its registration. The only restriction on the bringing into force of a regulation is that it not be done before it is enacted. That would be a retroactive application, and there are limited to no situations where this could occur in accordance with the Statutory Instruments Act.

The other file was a more peculiar situation in which the instrument was bringing into force a portion of an act. Again, it is often done where the bringing into force of an act or portion of an act is left to the executive to be done by way of a statutory instrument. But in that particular case, the enabling provision of the act required that day to be fixed rather than the enabling provision using some broader language that might allow more leeway.

The concern in that case was the alignment with the narrow statutory authority to fix the day. That sort of concern does not apply in this case.

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

Senator Dean: First, I can’t resist the opportunity to thank Mr. Abel for his laser-like analysis of the issues in front of us.

Second, though, I would support his recommendation that clarification be sought from the appropriate authorities.

The Joint Chair (Mr. Richards): I see other heads nodding. Are there any other comments? Are we agreeing to support the recommendation? It looks like that’s the case.

We are running near the end. We’ll look at the next item. Mr. Hilton, item 8 is for you. Can this be disposed of quickly?

SOR/2006-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I & IV)

(For text of documents, see Appendix E, p. 3E:1.)

Mr. Hilton: I believe we can dispose of this pretty quickly. In essence, all we would be doing is seeking a progress update on promised amendments.

The Joint Chair (Mr. Richards): Why don’t you do that, and that will be where we conclude the meeting. Mr. Hilton, go ahead.

Mr. Hilton: So, 10 points were raised with the Department of Transport in 2011, and amendments on all points were promised. Of those 10 amendments, 6 were made in 2015, but 4 remain to be made, which relate to ministerial discretion and inconsistent cross-references. There was some indication of progress on the remaining amendments in 2017, but nothing came to fruition. The department’s latest correspondence from November 2019 stated that it anticipated prepublication of the amendments in spring 2021, but that never occurred. If members agree, a letter could be sent to the department seeking an update as to progress.

The Joint Chair (Mr. Richards): Are there any comments or questions? Is there agreement? I think we have agreement there.

It appears to me we’re getting close to one o’clock. This is probably a good spot to conclude, so seeing nothing else from anyone, I will consider the meeting adjourned.

(The committee adjourned.)