REGS Committee Meeting

THE STANDING JOINT COMMITTEE OF THE SENATE AND THE HOUSE OF COMMONS FOR THE SCRUTINY OF REGULATIONS

LE COMITÉ MIXTE PERMANENT D'EXAMEN DE LA RÉGLEMENTATION DU SÉNAT ET DE LA CHAMBRE DES COMMUNES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 26, 1998

• 0834

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments.

Mr. Derek Lee (Joint Chairman) in the Chair.

[English]

SOR/88-361 — ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988

The Joint Chairman (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): The first item on our agenda is the RCMP Regulations. This matter was discussed at great length at the last meeting. We have a draft report before us, a report to both houses, without a recommendation for disallowance. Colleagues have agreed to reconsider the matter of disallowance, if so advised, around April 1. Right now we are dealing with a report only, which contains reference to all aspects of the issue about which we are concerned.

Senator Moore: I do not know if other members of the committee received a communication yesterday from the RCMP, but I did; I believe Senator Lewis did as well. I will read to you the message because it may impact on what we may or may not do here this morning.

This e-mail is from Donald Padget. He writes:

...your Senator should know that in dealing with the RCMP regulation issue before the committee:

- the current regulations are now being defended by the government in court and the committee's expression of opinion may well affect the course of that litigation

- such a finding by the committee would be used by the opponents of these regulations (and the government) at a time when the regulations are being reviewed in any case

- new regulations are coming within about two months and the department's counsel will have written to the committee to state that work on the regulations will be finished soon

- the development of new regulations has taken some time because the Minister wants to get it right. The issues involve a complex and delicate balance of the freedom of expression with a need for the perception and reality of impartial and fair police.

I believe this is a caution flag as to what we may do.

Did you get that e-mail, Mr. Chairman?

The Joint Chairman (Mr. Lee): It is a reasonable sketch of the issues at play, with an added reference to the existing legislation, which is in the courts, not in the House. It articulates very clearly that Parliament differs with the position of the government. Thank you for making us aware of that.

[Translation]

Mr. Lebel: I read the draft report with a great deal of interest. In comparing it to the previous report, I see that it is watered down considerably, as it contains no recommendations. The committee no longer seems to be concerned about threatening disallowance.

In fact, the following question comes to mind: do we really want to pursue this matter, or, instead of making fools of ourselves, could we not simply withdraw this item from the agenda and forget about it? If we cannot achieve our objective through the legislative process, at least we will maintain our dignity. We will not lose everything. It would appear that the committee has no real intention of pursuing this matter any further. Therefore, if everyone is amenable to this, let us proceed to vote and at least we will save face.

[English]

The Joint Chairman (Mr. Lee): I was looking for a motion. Are you making a motion, Mr. Lebel?

Mr. Lebel: No.

The Joint Chairman (Mr. Lee): Do other members have comments on these preliminary matters?

Mr. Wappel: I will move the motion to adopt the report, and I would like to speak to the report if the motion is seconded.

The Joint Chairman (Mr. Lee): I am told that it is not necessary to second the motion.

Mr. DeVillers: I wish to speak to the report.

Mr. Wappel: I asked to speak to it. I moved it.

The Joint Chairman (Mr. Lee): I am being very technical. You did move this item, and you said that you wanted to speak to it. I thought that was a preliminary matter but, in fairness, you certainly did indicate on the record that you wanted to speak to it.

Having moved it, and a seconder not being necessary, please go ahead, Mr. Wappel.

Mr. Wappel: No. I will yield to my friend.

Mr. DeVillers: I do not see a reference in the draft report to the deadline that we discussed at the last meeting. Why does April not appear in it? I thought we had agreed upon that at the last meeting.

I have another point on the issues raised by Senator Moore, which I will address later.

The Joint Chairman (Mr. Lee): Counsel, could you indicate why there is not a reference to the date?

Mr. François-R. Bernier (General Counsel to the Committee): Rather than put a fixed date in the document that could work against the committee later on, the date will be put in the covering letter to the minister. He will be sent a copy of the report, and the date will be set out in that covering letter.

Mr. DeVillers: I am satisfied. I am just looking for an explanation about what happened to the April deadline.

My second point is about the issue being before the courts. I realize that this committee operates under the rules of the House and it is a different process, but I think some caution should be taken. If the matter goes before the courts, it can be used for evidentiary argument in that proceeding. We should take that into consideration.

The Joint Chairman (Mr. Lee): This comes under the rubric of sub judice. A court proceeding is under way, and this particular set of issues is covered in that proceeding. Perhaps counsel would like to speak to that.

Mr. Bernier: First, the scope of the convention of sub judice is perhaps not as wide as is sometimes argued by those who would stifle discussion in various parliamentary forums.

The convention was developed in criminal cases so as to not prejudice the position of a defendant in a criminal case. It has been extended to certain civil cases where discussion in Parliament might prejudice the interest of a party.

In this case, it is difficult to see how that would apply. The applicant before the court, arguing the invalidity, could hardly be prejudiced by this report. Apparently, the government claims that its position could. My question, then, is: What is the interest of the government? I suggest that the only interest of the government is in the proper application of the Constitution.

The government's position before the court is either right and correct, in which case the court will uphold it notwithstanding this report, or it is incorrect. If arguments brought forward in this report convince the government that it is incorrect, then the government should properly abandon its contestation of the action, and abide by the Charter of Rights and Freedoms.

If we look at the convention — and this is rather interesting — it states that matters before the court should not be discussed in Parliament. The matter before the court is the validity of sections 56 and 57 of the regulations. I wish to remind members that this matter has been discussed many times in this committee. If one wished to apply the sub judice convention, then those discussions should not have taken place. Furthermore, the Solicitor General himself urgently requested to appear before this committee precisely to discuss the constitutional validity of sections 56 and 57. If the convention applied, one would think that the Solicitor General would have refused to discuss the matter in this forum, it not being an appropriate forum.

Finally — and this only came to my attention yesterday — I wish to address the concern expressed by the gentleman who called Senator Moore. In an affidavit filed in support of the government's brief by an RCMP officer — and I received a copy of this yesterday — there is attached a transcript of the meeting of this committee at which the Solicitor General appeared. It seems that the Solicitor General himself is bringing Parliament into court. However, he is bringing in only one side of it.

Taking all these considerations into account, and for the reasons stated in the report on the sub judice convention, I suggest that this is not, and should not be, a concern in this case.

Mr. Wappel: Most of the matters that Mr. Padget raised have been dealt with by this committee. The interesting information that came out of it is that regulations may be forthcoming in two months. Well, maybe. We have heard that many times before from many different departments. I believe that there will be a letter forthcoming — I believe that is what the senator read — to this committee saying that things will be ready soon. Well, why is the letter not here now? They know that we have been dealing with this matter. They know how we feel about it. They know that 10 months have passed since the appearance of the Solicitor General. As far as I am aware, there has been notice to this committee as to what the Solicitor General has been doing. As far as the sub judice arguments are concerned, these have also been dealt with and discussed on numerous occasions by this committee.

I completely agree with the explanation that was put forward by our counsel, for the various reasons that he put forward. However, I have a question about the report that I have moved. This concerns the last paragraph. I also had the same question as Mr. DeVillers about the date, but I accept the explanation that it will be included in the letter. The letter states that "Your committee recommends that sections 56 and 57 of the Royal Canadian Mounted Police regulations 1988 be revoked without delay." That is in accordance with what we are talking about. It goes on to state that, as soon as it is in a position to do so — and this is what the committee is recommending —  the government present to the houses amendments to the Royal Canadian Mounted Police Act. This is not regulations, this is a statute.The amendments "would define the limits of permissible political participation by members of the force in a manner consistent with the rights and freedoms guaranteed to all citizens."

Why is the committee recommending that the government amend the act when we have been talking about regulations?

Mr. Bernier: This was also in the draft report that the committee had before it last week. The reasons are explained starting at page 11 under "The exercise of substantive legislative power that is properly the subject of direct parliamentary enactment." That is one of the committee's scrutiny criteria which was thought to apply.

In the past, the committee has made it clear that it considers that limitations on core civil rights and liberties, as a matter of legislative policy and propriety, should be imposed by the elected representatives and the Senate, and not devised in private offices by civil servants and imposed by means of delegated legislation. It is a matter of recognizing the importance of the interests that are being affected here.

In the same way that one would not support having substantive criminal provisions founded in regulations, these matters are considered to be more appropriate for direct legislative enactment. If you are creating a new criminal offence or altering its impact, this is done by legislation, not by regulation. I would hope that fundamental civil rights and liberties would be placed at least on the same level.

When the first draft was prepared, the committee agreed. That is why it was included. Again, this new draft was changed as little as possible. It was changed merely to remove the disallowance aspect, and to include a reference to the fact that the Solicitor General had appeared before us, what he said and why we were proceeding.

Mr. Wappel: I do not disagree. I just want to make it clear in the new Parliament, and in new discussions on the transcripts, exactly what the rationale is.

In closing, in view of this report, and in view of the answers to the questions of Mr. DeVillers, I do not agree at all with Mr. Lebel's assessment that this committee is either backtracking or somehow no longer interested in the issue. I certainly hope that we will pass this report and get on with the letter.

[Translation]

Senator Grimard: I would like to comment briefly on the issue of sub judice. I listened to my colleague, Senator Moore. You will recall that when we co-chaired the committee, we did an in-depth study of this matter in the famous Kemano case.

We even called in the experts to get their opinion on the question of sub judice. In this particular case, hundreds of millions of dollars were at stake in legal proceedings and the committee ruled that there was no question of our suspending the Kemano report because it was sub judice. I think that in the past, we have ruled very clearly on a problem that is much more important than this one. I just wanted you to remember the Kemano affair.

Mr. Lebel: I listened carefully to what my friend, Mr. Wappel, had to say. He was surprised that no date was given. However, since the draft report does nothing more than make a friendly recommendation, there is no real point in setting a firm date, otherwise it is not a recommendation, but rather an order. That is why no date was set.

However, what surprises me more this morning is the fact that we are recommending to the minister that he amend the law, rather than do what needs to be done to disallow the regulations. Are we saying that these regulations violate fundamental rights? We have been debating this issue for several years now. Now, we are backtracking and saying: yes, this affects fundamental rights and therefore, legislative authority is needed to address this issue. Basically, is that what we are saying in our report? In other words, if the regulations violate the law, then amend the legislation, but keep the regulations intact.

[English]

Mr. Wappel: What about revocation?

[Translation]

Mr. Lebel: The regulations have not yet been revoked or disallowed. This is merely a recommendation.

Mrs. Jennings: I was unable to be here when this matter was debated at previous meetings. I have read the report and as far as the points that my colleague raised, I have to say that in my view, we are not saying here that it is right, legal or constitutional to restrict fundamental rights. The courts have already decreed that in order to restrict the fundamental rights entrenched in the Charter of Rights and Freedoms, legislation must be duly adopted and as a rule, this authority cannot be delegated.

Therefore, in terms of restricting freedom of expression, this cannot be done through regulations since this type of authority cannot be delegated. The report gives a clear illustration of this when it refers to the Ontario Provincial Police and the Sûreté du Québec. Laws are in place to restrict the political activities of members of these two police forces. However, these restrictions that have been imposed are described in detail in the legislation, not in the regulations. This is an important distinction because as the chairman and counsel explained to us, when we seek to restrict fundamental rights, we must proceed by way of legislation, not regulations.

[English]

Senator Moore: Having heard all the remarks and the advice of counsel, I am prepared to support the motion of Mr. Wappel. However, I am not clear on what happened to our April deadline. It is not in here. What was the explanation on that point?

The Joint Chairman (Mr. Lee): It is our intention to put our consensually-arrived-at deadline into the letter which will accompany this report to the ministry, the minister and the RCMP. It will be clear on the record that we have given ourselves a deadline. Counsel felt that putting a date into the report would box in the committee and provide a false, unnecessary standard. If we are going to stick to the April deadline, then we will.

Mr. Wappel: To be crystal clear on this, the deadline in the letter will state that if the two offending regulations have not been revoked by April 2, the committee will consider a report of disallowance. Is that not correct?

The Joint Chairman (Mr. Lee): That is my understanding. Does Counsel understand that?

Mr. Bernier: That was my understanding at the last meeting.

The Joint Chairman (Mr. Lee): Your chair has three very brief comments.

First, in relation to sub judice, this Parliament, which operates, as it must, quite apart from the courts constitutionally, has been given a job to do. We have undertaken it, and this is what we are doing this morning. Any of the two other branches of government which care to recognize it may or may not, although I hope they will. It is our job to deal with issues like this. Our goal is the same as that of the two party litigants in the action which has been referred to: that is, the proper application of the Charter. I cannot help but think that what we are doing will be viewed as constructive by all parties in due course.

Should we not proceed, we will, in my view, not have done our job for Parliament or for the citizens who send us here.

Second, I have had an opportunity to review this matter informally with the Solicitor General and I am advised that there are quite reasonable undertakings to attempt to deal with these issues in the department. The previous Solicitor General told us that they were looking at various amendments to these regulations for various reasons, without clearly declaring why the amendments are coming forward. I wish to convey to members that the Solicitor General is proceeding and has done some work on this. He is simply not in a position at this point to provide a final product. There is no malice intended by any of the members of this committee. We are simply doing our job, and we hope that the Solicitor General and the Department of Justice will find our work helpful.

Third, I wish to congratulate counsel on providing a draft which could not have been done any better. It is a good recitation of the Charter issues before us. If the Department of Justice would read it, it might help in a number of different fora.

Having said that, I will put the question. Will all those in favour of Mr. Wappel's motion to adopt the report please raise your hands?

Will those opposed please raise your hands.

The motion is carried.

Mrs Jennings: I would like the record to show that I abstained.

The Joint Chairman (Mr. Lee): We have one member abstaining.

Mr. White: What is the time frame on conveying the final form of this report to the minister, along with the letter?

Mr. Bernier: The clerk has original copies ready to be signed by the Joint Chairmen. It could be early this morning. The report should be ready to be tabled this afternoon in the House of Commons.

The Joint Chairman (Mr. Lee): Routine Proceedings may or may not be available to us in the House, but if not, the second week of March would be the tabling date.

Mr. Wappel: And the letter?

The Joint Chairman (Mr. Lee): I do not think the report would be sent until tabled. Would members object if a courtesy copy were adopted and sent to the minister?

Mr. Wappel: The sooner the better.

THERMAL POWER GENERATION EMISSIONS — NATIONAL GUIDELINES FOR NEW STATIONARY SOURCES

SOR/90-453 — PCB WASTE EXPORT REGULATIONS

SOR/91-152 — CHLOROBIPHENYLS REGULATIONS

SOR/92-632 — SCHEDULE II TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, AMENDMENT

SOR/92-636 — LIST OF HAZARDOUS WASTE AUTHORITIES

SOR/93-433 — OCEAN DUMPING REGULATIONS, 1988, AMENDMENT

SOR/94-260 — NEW SUBSTANCES NOTIFICATION REGULATIONS

SOR/94-261 — MASKED NAME REGULATIONS

The Joint Chairman (Mr. Lee): The next item on our agenda is Thermal Power Generation Emissions.

Counsel, would you care to speak to that item?

Mr. Bernier: Members will recall that on December 4 of last year, Ms Moore appeared as a witness for Environment Canada in relation to a number of files in which there was a significant lack of progress, or failure to provide replies. She undertook at the time to provide a working plan indicating how her department intended to deal with these particular files.

This is what the committee has before it, Mr. Chairman. Attached to the letter from Ms Moore is a series of tables indicating how each regulation will be handled and what is forecast. I suppose it is satisfactory in that particular context.

In some instances, the issues were extremely simple. It is a bit puzzling to me as to why we are still waiting two weeks or a couple of months for a reply. That being said, obviously some organization of this work has taken place. There has been some movement forward.

If the committee is happy with what is outlined there, I suggest that we simply monitor progress. If need be, we will bring the files back to the committee individually.

Senator Lewis: I so move.

The Joint Chairman (Mr. Lee): Senator Lewis adopts that approach.

The next item on the agenda is Assessor's Rules of Procedure.

SOR/87-65 — ASSESSOR'S RULES OF PROCEDURE

(For text of documents, see Appendix p. 6A:1)

Mr. Peter Bernhardt (Counsel to the Committee): Concerns with respect to the assessor's rules were first raised a number of years ago. These involve drafting matters and provisions that require clarification. In some instances, there are discrepancies between the English and French versions.

Since these matters were first raised, there have been a number of complicating factors, including amendments to the present act that would provide for the replacement of federal court judges as assessors with judges from the provincial superior courts; that is, the superior courts of the provinces. However, this replacement has never been implemented. There has also been a transfer of responsibilities for administering the act, in part, from one department to another. These are all summarized in the Joint Chairmen's letter of May 3, 1996.

Suffice it to say that the committee's concerns remain unaddressed. In addition to these original concerns, intervening events have given rise to questions concerning the authority of the present assessor.

In their letter of May 3, 1996, the Joint Chairmen and the Vice-Chairman sought answers to a series of fairly specific questions, namely, what is the target date for completion of amendments to the legislation in question and the subsequent amendments to the assessor's rules; what is the nature of these amendments; when will the new assessors from the courts of the provinces be appointed; why has this taken so long; and does the federal judge who served as assessor immediately prior to the coming into force of the early amendments to the act continue in that capacity? The minister was also advised that the committee would consider whether to report the lack of progress on this file to the houses once it had received the minister's advice.

Despite his predecessor's assurance that a full reply to these questions would be forthcoming, the minister's reply of December 19, 1997 really answers none of the questions. He simply stated that the legislative review has commenced, and this review includes the question of the appointment of assessors. In short, that provides no new information whatsoever.

The committee could proceed with its report tracing the history of the file, noting the lack of progress and the unanswered questions, posing those questions again, and asking for the government's response. In the alternative, a further letter could go to the minister at this point, pointing out that the committee's questions are still unanswered and asking once again for precise answers to what are very straightforward questions.

Senator Lewis: We wrote in May 1996. Under the new regime, will it take another two years to receive a reply?

Senator Moore: I agree with the concern expressed by Senator Lewis. This is almost two years ago. Is that the way things happen on this committee?

The Joint Chairman (Mr. Lee): Yes.

Senator Moore: We cannot accept that. We have to tighten things up. Can we set deadlines on these people? How do we go about that? I want to see this run more efficiently in terms of responses, and people respecting the committee and what we are trying to do here. Whatever we have to do, Mr. Chairman, I am with you.

[Translation]

Mr. Lebel: Mr. Bernier, what can the committee do in a case like this? There is no disallowance procedure possible. Ultimately, we could not disallow either of the three laws. We cannot step in and argue that provincial courts, rather than federal court judges should have jurisdiction over such matters.

That is the kind of question I am asking myself. How should the committee deal with a problem like this? We do not have the power to make orders. We have the power to disallow regulations. If we do not proceed, then we are act somewhat of an impasse. I fully agree with senator Moore that we can call in someone, but from a strategic standpoint, what options are open to us?

[English]

The Joint Chairman (Mr. Lee): As counsel mentioned, we always report these matters to the House with the view that reporting to the House is usually helpful in moving matters along. I note that the minister has hitched this issue to a wagon, which is the review of the CFIA regulations as a whole. The minister has mentioned that.

I think we should ask the minister when that review will be completed. If it is a five-year review, we are not interested. If it is something that will happen this year, then we will have a better picture of the process the ministry is using to adapt procedures to the new CFIA. If we could get a crisp answer to that, we would have a better idea of the timelines. Then we could set our own deadlines based on that reference.

Right now, we are flying blind because we do not know when the review of the CFIA by the ministry will be completed.

Senator Moore: When you say "this year", do you mean before the summer recess? I hope that is what you mean.

The Joint Chairman (Mr. Lee): I hope that you will permit me the luxury of being vague between fiscal year, calendar year and program year.

Mr. Wappel: Mr. Chairman, Senator Moore has pointed out that this matter has been delayed for two years. If I am reading the letter correctly, the matter has been delayed for 10 years, not two. As I understand it, these matters were brought to the attention of the ministry in 1988, the year I was first elected.

The Joint Chairman (Mr. Lee): That is correct.

Mr. Wappel: Two years ago, eight years after the concerns were brought to the attention of the department, the department had no fixed time within which it would either amend or answer us. Two years later, it would appear that the ministry still has no fixed time in which to answer us or to propose new rules for the procedure for the assessor. That makes it even more frustrating than Senator Moore pointed out.

It seems to me that what we should do is point out this delay directly to the minister, ask the minister to specifically answer the questions that we have put forward, ask the question of when will this review occur, and say that if the committee does not receive a satisfactory response, it will consider reporting the delay to the houses. The minister will then know what it is we are talking about and what it is that could happen.

Reporting the delay to the Houses would simply be attempting to move things along by way of potential embarrassment. Nobody likes to be embarrassed, and nobody likes to load the bullets into the opposition's gun and stand there in front of them. Perhaps if we indicate what we are talking about, and that we are willing to ignore that if we get the answers. That might be the way to proceed and move things along, as Senator Moore has said.

Mr. White: Mr. Chairman, is there any option at all to request the minister to appear and talk with us about that situation? Do we have any option to request that? If it is premature, could we also not include that possibility in a letter to the minister?

The Joint Chairman (Mr. Lee): Usually the committee invites officials first, but there is no reason why we cannot invite the minister.

Mr. White: This has already moved to the ministerial level.

The Joint Chairman (Mr. Lee): Counsel might want to provide us with some advice here.

Mr. Bernier: If the objective is to obtain answers to your questions, I am not sure an appearance is really useful. Those are technical questions, and I would suggest that they are probably best dealt with in correspondence so that everyone has time to see, read and understand the situation. Some things lend themselves to oral presentations; other things do not. That being said, it is obviously open to the committee to go that way.

Mr. White: We may have to resign ourselves to a fairly long time frame.

The Joint Chairman (Mr. Lee): I suggest we take Mr. Wappel's approach, that the time invested in this set of issues is career in scope, and that the committee is of the view that we wish it disposed of promptly. Is that a reasonable prospect? The matter will be back with us in a few months.

Mr. Bernier: We may remind the minister of this consideration of a possible report to the Houses.

[Translation]

Senator Ferretti Barth: Correspondence was exchanged four years ago. We are still awaiting answers. During this four-year period, the problems have remain unresolved. We need to set a deadline. We expect answers within a year. If an answer is not forthcoming, we must take immediate action. I find this whole situation ridiculous. Why are we even here?

I am new to this committee, and I apologize to those who have been here longer than me. We devote our time and energy to resolving problems and to making recommendations. It is ridiculous to still be debating the same subject after four, or even six years. Have you not considered asking the minister to come before the committee and explain the situation? Perhaps I am naive, but I have never worked like this before. I'm sorry, but I have to say what was on my mind.

[English]

The Joint Chairman (Mr. Lee): Thank you for your intervention. The members of the House of Commons harbour great admiration for the activitist Senate. Your views, and Senator Moore's, will doubtless move us along more quickly on some of these files.

[Translation]

Senator Ferretti Barth: I would go to the minister and ask him: what are you doing about this? Where is your response? We are taking a passive approach, spending the taxpayers dollars while sitting back here in our chairs and waiting. It is very convenient for us to sit here and wait for someone else to make changes or resolutions or give advice.

[English]

The Joint Chairman (Mr. Lee): We have our own measuring sticks on this joint committee, and I take your point that you believe us to be exceptionally deferential to the public service as we go about our work.

[Translation]

Mr. Lebel: My colleague should know that patience is a virtue that is sorely tested in this committee. Some files have been outstanding for 20 years, not just eight years or six years. I am thinking about one particular issue that was debated when I was chairing this committee and which has yet to be resolved, that is the method employed for calculating RCMP pensions. I commend your attitude. If others would look beyond partisan politics and consider the interests of taxpayers, then I believe we could get the job done. That is why, Mr. Chairman, I agree with the others who spoke before me, including Mr. Bernier, that it is pointless to call in the minister right now, when we are discussing really technical matters. However, I do think that we should call in responsible officials as soon as possible and let them know that we now have colleague who insists on getting results faster. I support her on this. I would like us to send out a letter requesting that we call officials before the committee. Do I need a motion for this? If so, I am prepared to move one.

[English]

The Joint Chairman (Mr. Lee): The suggestion is, colleagues, that we call officials to deal with this particular matter.

Counsel, do we have other matters outstanding with the Department of Agriculture?

Mr. Bernier: Yes. At the last meeting, Mr. Chairman, the committee decided to request the appearance of the food inspection agency people on another file. I see in this letter that they are the ones in charge of this item.

The Joint Chairman (Mr. Lee): All roads lead to Rome. Mr. Lebel, your wish will be granted. We will be calling officials of the CFIA and counsel. Will we write to the minister in any event?

Mr. White: We might tell him what we are doing.

[Translation]

Mr. Lebel: As for writing to the minister immediately, I would hold off until we get some sort of explanation from the officials. It would be rather awkward to write to the minister. Perhaps we would be better off calling in officials, listening to their explanations or reasons and then calling the minister. This might mean a two-week delay, but we would have a clearer idea of where we stand.

[English]

The Joint Chairman (Mr. Lee): The suggestion is that we hold off on writing back to the minister until we have heard from the officials. Is that acceptable?

Mr. Lunn: When we do write to the minister, as Mr. Wappel has suggested, we should advise him that it is our intent to have this matter cleared up before the spring session ends. We do not want this matter to go into the fall, and then we will be into another year. We should make it very clear that time is of the essence.

The Joint Chairman (Mr. Lee): Yes, we should like to clear our desks.

We will hold off on writing to the minister. Mr. Lunn will no doubt be here when the officials are in attendance before our committee. I am sure he will want to communicate that timetable to them personally. Is it agreed?

Hon. Members: Agreed.

SI/97-38 — ORDER AUTHORIZING THE CANADIAN FOOD INSPECTION AGENCY TO PRESCRIBE FEES

(For text of documents, see appendix p. 6B:1)

The Joint Chairman (Mr. Lee): The next item deals with the Canadian Food Inspection Agency.

Mr. Bernier: Chairman sections 24 and 25 of the Canadian Food Inspection Agency Act authorizes the Minister of Agriculture to prescribe fees for services rendered by the agency.

Notwithstanding the availability of that particular legislative authority, on March 27, 1997, the Governor in Council prescribed fees payable for those services, but under the authority of the Financial Administration Act.

It is the position of counsel, and a position with which the agency does not agree, that once the specific authority granted by sections 24 and 25 of the CFIA Act came into force, reliance could no longer be placed on the general fee provisions of the Financial Administration Act. One statute is a general statute; the other statute is a particular statute, and the particular statute takes precedence over the more general statute. That is a fairly basic rule of interpretation.

While the agency has indicated an intent to repeal the fees made under the FAA and make new ones under the CFIA Act, it proposes to do so when "a suitable occasion presents itself."

Given that the legal authority for the current fees is, at best, questionable, counsel suggests that the committee request of the minister that the agency proceed with that course of action, namely, repealing the FAA fees and readopting them under their statute, the CFIA Act, immediately, rather than at some indeterminate, future date when a suitable occasion arises.

The Joint Chairman (Mr. Lee): I wish to put a question to counsel before I recognize members.

The last letter from the department states clearly that "this interpretation is in accordance with the case law on legal powers." Do I take it that your advice to us would differ with that assertion?

Mr. Bernier: Yes.

The Joint Chairman (Mr. Lee): That is to say that they are ill-advised in stating that their position is in accordance with the case law. Are you prepared to tell us that is dead wrong?

Mr. Bernier: I am prepared to disagree with that proposition, incomplete as it is. It is a statement, and no case law is referred to in that statement.

The Joint Chairman (Mr. Lee): Let us take that under advisement, then.

[Translation]

Mr. Lebel: Mr. Bernier, will the fact that fees are to be charged under one law rather than under the Financial Administration Act or the enabling legislation make any appreciable difference to the consumer or to those affected by these fees, or is this strictly a case of legal quibbling?

What impact will this have? We are discussing this matter, but we really do not know what impact it will have on consumers or on business. Can you enlighten us?

Mr. Bernier: The difference is quite clear, Mr. Lebel. In one instance, consumers are paying a fee illegally, while in the other case, the fees are legal. Once sections 24 and 25 were adopted, the Financial Administration Act no longer authorized the minister to prescribe fees. Nevertheless, fees were prescribed. Since there was no legal authority to do so, these fees were collected illegally.

Mr. Lebel: In point of fact, this will probably be amended and the fees will be prescribed by law. The same problem occurred with docking fees at the port of Montreal. Nothing was done, but when questioned about this in the House of Commons, the then minister, Douglas Young, indicated that he would bring in legislation and address the problem retroactively. That is how this issue will also be resolved. We have no other alternative.

[English]

Mr. DeVillers: I think somewhat along the same lines. In answer to Mr. Lebel's concern, the practical consequences here would be that someone might challenge the legal authority, and the fees would not be paid. They could be collected by Agriculture Canada, however. Is that correct, counsel?

Mr. Bernier: Yes.

Mr. DeVillers: In the general gist of what we have been discussing this morning and the activities of the committee, this is one issue that I would have much less concern over than some of the other issues with which we might be dealing.

In order to get the respect that the committee is seeking and the action, if we concentrate our more vigilant efforts into those areas where the consequences are more significant than Agriculture Canada not collecting a few fees, perhaps that is one way that the committee can operate generally to obtain the kind of reaction that we desire. They will be collecting the fees, but if this change is not made then someone who is asked to pay these fees could say, "I am not paying them because the regulation is enacted under the wrong statute."

Mr. Bernier: The issue is that, right now, people are paying moneys which they should not be paying. The government is acting illegally in requesting these payments. Surely, that is an issue of principle.

If the government accepts the fact that it has acted illegally, it may introduce legislation and ask Parliament to validate its actions. That would be a decision for Parliament to make. In theory, Parliament could refuse, and say to the executive, "You stew in your own juice. We will not pass a law validating your illegal actions." As we all know, as in the case of death and taxes, people will pay.

Senator Kelly: I do not quite accept the argument that people are necessarily paying a fee illegally. It is being illegally demanded of people that they pay.

What is our concern here? If it is our concern that it can be established that our counsel is correct and that the minister's counsel is wrong, do people have an action available to them for recovering fees that they were not obligated to pay because those fees were being collected illegally?

The Joint Chairman (Mr. Lee): There is always an action. It is expensive to get into the business, but one of the old administrative applications that is available to citizens — in this case probably in the Federal Court — deals with that kind of issue.

Senator Kelly: This echoes what my colleague said earlier, namely, that by pointing out the issue to the government, we can let it end there or we can have the other counsel who has an opposing view come here, and then the two counsel can argue these things ad nauseam. That is always interesting but I can never figure out who wins on these things. Beyond those two options, surely we have more important things to do.

The Joint Chairman (Mr. Lee): I think this is a fairly important item. The government is charging fees on a basis that we believe to be improper. It is simply a question of which track they will use to charge the fees. They have chosen to continue with the old track and not get into the new one that Parliament has provided.

Given that this is a CFIA matter and that they will be appearing before us in any event, we can certainly put discussion on this matter over until the witnesses appear here, and we can take it up at that time. In the meantime, I suggest that we ask their counsel to outline for us the case law on which they base their opinion that they are legally collecting these fees now. Would that be a good disposition?

Senator Kelly: Yes.

Senator Moore: We want that information before these people appear.

The Joint Chairman (Mr. Lee): Yes, let us see whether we cannot get their response before they appear.

Senator Lewis: Mr. Chairman, we are asking them to appear on another matter. Will they be advised that we will be asking them about this matter, too?

Mr. Bernier: There are two other matters on which they will be appearing. We will ask them for a written indication of what the case law is. If we get that in sufficient time, we will indicate to them that this might be added as a third matter.

SOR/97-11 CREDIT IFORMATION (INSURANCE COMPANIES) REGULATIONS

(For text of documents, see appendix p. 6C:1)

Mr. Bernier: That file can be closed.

The Joint Chairman (Mr. Lee): Thank you.

SOR/96-555 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG AND CHICK ORDERLY MARKETING REGULATIONS.

SOR/89-524 — CANADIAN BROILER HATCHING EGG AND CHICK ORDERLY MARKETING REGULATIONS.

(For text of documents, see appendix p 6D:1)

The Joint Chairman (Mr. Lee): Counsel, this file looked as though it was in good shape as well.

Mr. Bernier: Yes, with the explanation set out in the covering note, Mr. Chairman, this file can also be closed.

SOR/90-218 — FRESH FRUIT AND VEGETABLE REGULATIONS, AMENDMENT

The Joint Chairman (Mr. Lee): Can counsel comment on this item?

Mr. Bernhardt: All outstanding issues have been resolved, save one that was being discussed in the course of amendments, on which they were consulting with the industry in November. We will chase that up in the usual manner.

Senator Moore: Is this file closed like the previous ones?

Mr. Bernhardt: No. We will be writing to the department to ask at what stage the discussions are, and when we can expect the final amendments.

The Joint Chairman (Mr. Lee): The file will continue to live.

Senator Moore: This has been before us since July 1994. Will we be telling them that we want to hear from them by a certain date?

The Joint Chairman (Mr. Lee): It is possible that we could piggy-back this file on to the other matters. You will note, senator, in the last correspondence, that CFIA officials have initiated discussions with the industry, et cetera. This is an ongoing matter of consultation with the industry.

Counsel, could we add this matter on?

Mr. Bernier: They can provide the update orally before the committee, if the committee wants to do it that way.

Senator Lewis: As long as they know we will be asking them about this matter.

Mr. Wappel: The same person wrote in both cases.

SOR/82-925 — FORM OF PROXY REGULATIONS

Mr. Bernhardt: This file has been around since 1982. However, the major, substantive issues were addressed some time ago. What is left are a number of points of drafting. Having said that, the committee was advised in March of 1990 that new regulations were being drafted. Since that time, progress has been, to put it most kindly, sporadic.

In December of 1991, the committee was actually presented with a draft new regulation. One year later, however, the committee was told that the possibility of reducing the text of this new regulation by referentially incorporating certain relevant portions of the Canada Businesses Corporations regulations was being explored.

In March of 1993, the committee was updated. It was told that, in fact, it had been decided that this was the way to go.

In May of 1995, however, the Superintendent advised that things had proven to be more complicated than they had first appeared. In his November 21 letter, the Superintendent reveals that they have apparently again gone back to the drawing board. He says that consultations are ongoing with the Canadian Bankers Association about which one of three possible approaches should be followed.

Clearly, all this dithering is becoming a source of frustration. I do not know what the committee has by way of choices, except to be patient, I suppose, at this point.

The Joint Chairman (Mr. Lee): I think we could probably ask Canada Post to issue a commemorative stamp.

[Translation]

Senator Ferretti Barth: I have a suggestion. Our counsel said we needed to be patient, as did Senator Moore. We are responsible for addressing problems that affect Canadians. The committee has a responsibility to ensure that shortcomings in laws, regulations and so forth are rectified.

When we talk about things that happened in 1980, I say that each one of us should take one of these letters and undertake to provide answers to the committee, regardless of how we go about it. We have a responsibility to see to it that this committee functions.

How did this happen? One always hears that the wheels of government turn slowly, but this is really too much. I am not singling out anyone in particular. I am merely reflecting upon the situation. Perhaps Prime Minister Chrétien was wrong to appoint me to the Senate.

[English]

The Joint Chairman (Mr. Lee): I believe a good choice was made in your appointment, senator. However, I hope that we have not forgotten the original substantive issue, whatever it was. This file has been around so long that it is beginning to emulate the Halifax Disaster Commission, which went on for 75 years or so.

Could you indicate what the substantive issue is, and whether it is a matter of substance?

Mr. Bernhardt: The substantive issues, such as they existed in 1982, have been taken care of. Those portions of the regulations were amended. What was then left was a number of relatively minor points of drafting. Along the way, these got caught up in the course of a review of these portions of the regulations generally, which has been on-again, off-again and back to the drawing board ever since.

My sense of resignation comes from the perception that there are two ways in which the Superintendent must please people: first, he must satisfy the committee; second, he must satisfy the Canadian Bankers Association. Given the choice between satisfying one or the other of those, I suspect priority will go to the Canadian Bankers Association.

That is frustrating for me. However, I am not sure how we should proceed in these cases, especially given the minor nature of the amendments.

The Joint Chairman (Mr. Lee): Do we have a hammer that we could use?

Senator Lewis: As far as the public is concerned, is there any practical effect of all this?

Mr. Bernhardt: It will affect the people who run banks. For the purposes of these regulations, we are regarding the financial institutions as the public to be served.

Senator Lewis: It is mostly forms they are talking about. Business is still going on and the public is still being served.

Mr. Bernhardt: Exactly.

Mr. Wappel: Mr. Chairman, I think that, wherever possible, this committee should attempt to harness the exuberance of those who are outraged at the delays that we encounter on a daily basis.

I agree that the Prime Minister made an excellent choice in the senator.

I think that one of our hammers, certainly one that I enjoy using, is to have people come here. In his last line, the Superintendent says, "If you would like to discuss this matter further, we would be pleased to hear from you." We would like to discuss this matter further, and we would like to discuss it in person with him so that he can explain to us why it is that relatively minor, relatively insignificant drafting amendments have not occurred, year after year. It would be worthwhile for Mr. Palmer to hear the senator. I suggest that we ask the Superintendent to attend on this file.

Senator Moore: I, too, was looking at the last sentence in that letter of November 21, 1997, from Mr. Palmer. Was he looking for guidance from Mr. Bernier? Was he looking for input from us as to what we might think as the best option, or is he just dragging it out?

The Joint Chairman (Mr. Lee): Counsel will be in a position to clarify that.

Mr. Bernhardt: Given the nature of our concerns, I would be surprised if he would imagine it much mattered to us which way they went. How they structure the regulations is irrelevant. It is a matter of crossing the "Ts", dotting the "Is" and closing the file, as far as the committee is concerned.

[Translation]

Mr. Lebel: The first letter we have regarding this matter dates back to October 16. It is relatively recent. Could counsel give us an overview of the problem since 1982? When Mr. Palmer testifies before the committee, we could ask him questions about how quickly, or slowly, the matter is progressing. Before we hear from the witness, could we possibly get an overview of the problem?

[English]

The Joint Chairman (Mr. Lee): That is a good suggestion. Counsel usually provides us with that type of information when we have witnesses.

Mr. DeVillers: This issue goes to the points that I made on the last subject. The energy of the committee should be reserved for significant issues. As much as it would be satisfying to have the Superintendent attend here, does the issue merit the time and energy of the committee?

The Joint Chairman (Mr. Lee): We are looking for some direction about whether we are to invest a fair bit of time on a matter that has been agreed by all members to be minor.

Counsel, could you please give us a recommendation as to how to handle this particular file?

Mr. Bernier: In the interests of moving forward on the rest of the agenda, perhaps we could send a letter. The last letter from the Superintendent was dated November 21. We could ask him if any progress has been made. As soon as we have the reply, we will bring it back to the committee. If there is no progress, maybe we can get back to how best to pursue this matter. For all we know, two months after he wrote the Holy Ghost descended upon them all, and they have chosen option number two.

Senator Moore: When you write a letter like that, do you indicate that if the response does not indicate some positive action to conclude this matter, he can expect to be asked to appear before the committee? We must have some muscle.

Mr. Bernier: I can certainly indicate that the committee considered requesting his appearance, and is requesting a reply in the short term.

The Joint Chairman (Mr. Lee): Is everyone agreed on that?

Hon. Members: Agreed.

[Translation]

Mr. Lebel: I did not understand a great deal of what Mr. DeVillers said on the subject. He talked about important things.

Mr. DeVillers: Counsel has indicated to us that there is not very much at stake here. I wonder if we even need to bother calling the Superintendent before the committee.

[English]

SOR/92-650 — HEALTH OF ANIMALS REGULATIONS, AMENDMENT

(For text of documents, see appendix p. 6E:1)

The Joint Chairman (Mr. Lee): We turn to the next item, Health of Animals Regulations, under "Reply Satisfactory". Is it agreed?

Hon. Members: Agreed.

SOR/97-151 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF AGRICULTURE AND AGRI-FOOD REGULATIONS (MISCELLANEOUS PROGRAMS) 1996-1

(For text of documents, see appendix p. 6F:1)

The Joint Chairman (Mr. Lee): Next, under "Part Action Promised", are Regulations Amending certain Department of Agriculture and Agri-Food Regulations.

Mr. Bernier: The instrument affects nine amendments requested by the committee. In addition, two amendments are promised and an explanation is given on a third item. Progress of the promised amendments will be monitored in the usual way.

The Joint Chairman (Mr. Lee): Thank you. Is it agreed?

Hon. Members: Agreed.

SI/94-8 — ORDER DESIGNATING THE MINISTER FOR INTERNATIONAL TRADE AS MINISTER FOR PURPOSES OF SECTIONS 1 TO 9 AND PARTS I AND III OF THE ACT

(For text of documents, see appendix p. 6G:1)

The Joint Chairman (Mr. Lee): Next, we have two matters under "Reply Unsatisfactory". I will ask counsel to comment on the first one now.

Mr. Bernier: The issue on this file concerns the validity of an order appointing a secretary of the Canadian section of the secretariat, pursuant to section 15 of the NAFTA Implementation Act.

Section 15 provides for this appointment to be made by the Governor in Council, on the recommendation of the minister. The minister in this instance is the member of the Queen's Privy Council who is designated by the Governor in Council pursuant to section 11 of the same act.

An order appointing the secretary was made on December 31, 1993, on the recommendation of the Minister for International Trade. On that date, however, the Minister for International Trade had not been designated as minister for purposes of the NAFTA Implementation Act under section 11 and, in the opinion of counsel, he could not lawfully make an appointment recommendation under section 15 of that act. As a result, we believe that the appointment order is invalid.

To complicate matters somewhat, the appointment order was then amended on March 24, 1994 by the Governor in Council, acting this time on the recommendation of the Prime Minister. On March 24, 1994, there was a minister designated for the purposes of making these recommendations under section 15 and that was the Minister for International Trade, not the Prime Minister.

The department has argued that, given the pre-eminent role given by the Constitution to the Prime Minister, the Prime Minister could make the recommendation for amendment in lieu of the designated minister. First, the written Constitution does not even mention the Prime Minister. I believe that the department is confusing the political and legal aspects of this matter, and of the position of Prime Minister.

What we have here is a statute of Parliament stating that certain decisions are to be made on the recommendation of the minister designated by the Governor in Council. A decision made without that recommendation is not valid. The Prime Minister's position certainly does not entitle him to exercise any and all powers which Parliament has chosen to vest in various ministers by its statutes.

The main issue remains that of the validity of Order in Council 1993-2223, which appointed the secretary. This is the order that was made on the recommendation of the Minister for International Trade and it purports to be an order under section 15 of the act. The problem, again, is that on the day that order was made, no minister had been designated to exercise the power of recommendation set out in that section.

In this case, the department invokes section 7 of the Interpretation Act. It argues that for a nomination to be effective on the day of coming into force of the act, it was necessary that the Minister for International Trade make the recommendation so that we would have a secretary of the Canadian section there, ready to work on the day the NAFTA implementation act came into force.

The second argument is that the requirement for a recommendation of the designated minister is merely directory, and that the statutory requirement is satisfied so long as there is "compliance in substance" with that requirement. These arguments are dealt with in detail in the note before the committee.

The first of these arguments, we believe, is easily dismissed. Section 7 of the Interpretation Act is not a licence to ignore statutory provisions. In these circumstances, the proper procedure was for the Governor in Council to exercise his power to designate a minister for the purposes of section 15 before the coming into force of the act. With that minister's recommendation, he could then have exercised the authority to appoint a secretary prior to the coming into force of the act.

As for the second argument, we also suggest that it should be dismissed for the reasons set out in the note. It appears to rest on a misreading, to say the least, of the relevant case law.

In this instance we would suggest that a further letter go to the department, setting out the substance of what is in the note and asking for them to reconsider those issues.

The Joint Chairman (Mr. Lee): Would I be correct if I assumed that the appointment, which was amended to become a three-year appointment in March of 1994, would now have expired and that the issue here, while not moot in relation to the career of this particular secretary of the commission, is in fact history? The legal issues still remain.

Mr. Bernier: I suspect you are right, Mr. Chairman, certainly in terms of any practical impact on the individual, barring a consideration of any consequences a legal nomination may have on the actions she may have taken in her position, — although I think legal doctrines would preserve the validity of those acts — I do not think there would be an immediate impact. As you say, the only outstanding matter is strictly the legal issue, and the principle of whether when a statute states that an appointment is to be made with the recommendation of so and so, one can simply ignore that and proceed to make an appointment without the statutorily required recommendation.

Senator Lewis: Was there a reappointment after the first term ended?

Mr. Bernier: I assume so, senator. I would need to verify that.

Senator Lewis: How was that developed?

Mr. Bernier: That the same person should have continued in her position.

Senator Moore: Under what authority?

Mr. Bernier: We do have a designated minister now. The act came into force on January 1, 1994. Any appointment made after that would have been properly made. The problem is that they sought to make the appointment on December 31, 1993.

Senator Moore: In attempting to clean up this housekeeping matter, can something be done in a retroactive manner? What has to be done? What is your advice?

Mr. Bernier: The only given is that we are speaking of the appointment of a person occupying certain functions and exercising certain rights and powers under a statute of Parliament. I think the only question is an invalid nomination. The only consequence it would have is in raising a question as to the validity of any actions taken by that person. If you are not properly appointed as a secretary, what is the consequence on any action you may have taken? This is subject to further verification, but my suspicion is that existing legal doctrines are in place that in this situation would immunize or protect those decisions from legal challenge, mainly in order to protect third parties who have then acted in reliance on the apparent authority of the person.

The Joint Chairman (Mr. Lee): Your Chair would like to suggest that we ask the officials here to clarify the law on which they base their position. If they are right, there are new avenues available to the government and others in making appointments when the authority does not exist. I would like to see those clarified. I would like to nail them down. If we differ with the officials on this matter, we may wish to go on record in that regard.

In my view, there is not sufficient clarity or precision in the officials' position on record so far. I think counsel would probably agree that we should ask them to clarify after we pass our comment. Is that a fair way to proceed on this issue?

Mr. Bernier: Yes.

The Joint Chairman (Mr. Lee): Perhaps we will have an opportunity to look at this in greater detail the next time it comes up. Is it agreed?

Hon. Members: Agreed.

SOR/91-373 — CONFERENCE OF EUROPEAN MINISTERS OF JUSTICE PRIVILEGES AND IMMUNITIES ORDER, 1991

(For text of documents, see Appendix p. 6H:1)

The Joint Chairman (Mr. Lee): The next item on the agenda is also under the rubric "Reply Unsatisfactory", Conference of European Ministers. This matter looks like it just dropped right off the edge.

Mr. Bernhardt: The committee's original objection was that a meeting of the ministers of justice of various governments did not constitute an international organization in respect of which privileges and immunities could be granted under the legislation in place at the time.

While new legislation was introduced in 1991, the Department of Foreign Affairs has conceded that it did not remedy this defect. This is a bit ironic, given that when the new legislation was before the Senate back in 1991, Senator Grimard, who was then the co-chairman of this committee, sought to have this very flaw corrected. At that time, officials of the department rejected his proposals, claiming that the bill was fine just as it stood. Had the amendments as proposed by Senator Grimard been accepted back in 1991, this matter would have long been resolved.

The department eventually agreed to make the appropriate amendments to the act to cover the situation of privileges and immunities being granted for international conferences. However, after several delays the committee has been advised that, due to other priorities, this initiative has been postponed indefinitely.

I suggest at this stage that a letter go to the minister, seeking his cooperation in ensuring that these amendments proceed without delay, and perhaps indicating that it is particularly disappointing, given the efforts made in 1991 to resolve this very question.

The Joint Chairman (Mr. Lee): That is a good suggestion. I do not think colleagues are prepared to postpone anything indefinitely. Have I got that right?

Senator Moore: Right.

The Joint Chairman (Mr. Lee): Counsel, please communicate with the officials on our behalf, indicating what you have just outlined.

Mr. Wappel: Perhaps counsel could specifically include the amendments proposed by Senator Grimard and the specific answers of the departmental officials with their names. As well, the communication should indicate that, subsequent to those in question assuring the senator that the legislation was correct, they themselves eventually agreed that they were wrong. In the face of that, how can anything be postponed sine die?

The Joint Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

Mr. Wappel: I wish to raise a point of order. I have raised this issue a number of times, and now I am raising it as a point of order.

I would ask the steering committee of this committee to discuss rearranging the subject matter of our meetings. I have no problem with the first order of business being "Special Agenda Items". That makes sense because they are special agenda items. However, in my opinion, the second order of business should always be "Reply Unsatisfactory". In the case of items where our counsel believes the reply is unsatisfactory, we should not be discussing such matters at the very tail end of the meeting. If we are into a situation where our counsel believes that a reply is clearly unsatisfactory — with no question mark — it should take precedence to letters to and from ministers, progress that allows us to close a file, et cetera.

I believe the next item of business after that should be "Reply Unsatisfactory (?)". Then we would go into "Progress (?)" or something to that effect. I do not want to micro-manage here.

I find it very irritating, time and time again, to go through the agenda and find that "Reply Unsatisfactory" is put at the bottom of the agenda.

I hope you were listening, Mr. Chairman, and that the steering committee will address this matter.

The Joint Chairman (Mr. Lee): I always listen to you, Mr. Wappel.

Mr. Bernier: There is no need to wait for the steering committee. We can take the instruction directly from the committee, and just change the order of the agenda.

Senator Lewis: I have no problem with that.

Mr. Wappel: Could we do that, then?

The Joint Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Lee): We are now at the section entitled "Action Promised" on our agenda. We have a number of items where action had been promised by the ministries.

SOR/92-134 — REDPATH SPECIALTY PRODUCTS SUCRALOSE REMISSION ORDER

(For text of documents, see Appendix p. 6I:1)

SOR/94-73 — PROSPECTUS EXEMPTIONS (BANKS) REGULATIONS

SOR/94-74 — PROSPECTUS EXEMPTIONS (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/94-75 — PROSPECTUS EXEMPTIONS (INSURANCE COMPANIES) REGULATIONS

SOR/94-76 — PROSPECTUS EXEMPTIONS (TRUST AND LOAN COMPANIES) REGULATIONS

(For text of documents, see Appendix p. 6J:1)

SOR/96-227 — INCOME TAX REGULATIONS, AMENDMENT

(For text of documents, see Appendix p.6K:1)

SOR/96-430 — FERTILIZERS FEES ORDER

(For text of documents, see Appendix p. 6L:1)

SOR/97-371 — MINORITY INVESTMENT (BANKS) REGULATIONS

SOR/97-372 — MINORITY INVESTMENT (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS

SOR/97-373 — MINORITY INVESTMENT (INSURANCE COMPANIES) REGULATIONS

SOR/97-374 — MINORITY INVESTMENT (TRUST AND LOAN COMPANIES) REGULATIONS

(For text of documents, see Appendix p. 6M:1)

Mr. Bernier: Under that heading, seven amendments are promised to a number of instruments, along with the revocation of one ultra vires provision. In addition, there is an undertaking to amend the customs tariff so that it refers to a metric "tonne" as opposed to a "ton".

SOR/96-30 — CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS, AMENDMENT

(For text of documents, see Appendix p. 6N:1)

SOR/96-460 — TAX COLLECTION AGREEMENTS AND FEDERAL POST-SECONDARY EDUCATION AND HEALTH CONTRIBUTIONS REGULATION, 1987, AMENDMENT

(For text of documents, see Appendix p. 6O:1)

SOR/96-551 — REGULATIONS AMENDING THE FEDERAL SALES TAX NEW HOUSING REBATE REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix p. 6P:1)

Mr. Bernier: Under the heading "Action Taken", three amendments have been made at the request of the committee.

The Joint Chairman (Mr. Lee): For the benefit of Senator Ferretti Barth, who is relatively new to our committee, there is an another rubric entitled "Instruments without Comment" under which is shown the work of the committee. In this agenda, 50 or more matters are listed as having been reviewed by counsel without comment. They passed the test.

Having completed the agenda, we will ask Mr. Lebel for his comments.

[Translation]

Mr. Lebel: I want to broach a more delicate subject, namely the Joint Committee for the Scrutiny of Regulations, a committee which monitors government activity, somewhat like the public accounts committee.

Since these two committees were first created, and Mr. Wappel will recognize the importance of what I am about to say, the chair position has always been assigned to the official opposition, to avoid any appearance of partisanship or conflict of interest. That is how things have always been.

In fact, when the Conservatives were in power, you served as chair and co-chair of this committee. I held the same position when the Liberals were in power. The role of this committee is to scrutinize government activity.

There is an appearance of partisanship and this invites criticism. I do not doubt in the least that you are impartial, Mr. Chairman, and I respect you, but I think the Reform Party, the official opposition at this time, must assume its responsibilities and reconsider the possibility of holding elections so that the chairman is someone from the official opposition party. Otherwise, we leave ourselves open to criticism.

[English]

The Joint Chairman (Mr. Lee): Thank you, Mr. Lebel. I happen to agree with 99 per cent of your comments. When I assumed the Chair, I indicated that I would be stepping down when the Reform Party was ready to provide a chairman. I take your comments.

Mr. DeVillers: As a point of order, Mr. Chairman, perhaps this matter could be dealt with off the record. I think it is an internal issue for the committee to consider.

The Joint Chairman (Mr. Lee): If Mr. Lebel has completed his remarks, we can adjourn the meeting.

Do other members wish to continue to discuss this issue off the record? I would be prepared to speak to it at the next meeting. I maintain some linkage and discussion with the Reform member of Parliament, Mr. White, on this issue.

We will adjourn and discuss this matter amongst ourselves in due course.

The committee adjourned.