Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 1 - Evidence

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:40 a.m. to organize the activities of the committee.

[English]

Mr. Till Heyde, Joint Clerk of the Committee: We have a quorum. It is my duty to preside over the election of the Senate joint chair of the committee.

[Translation]

May I entertain a motion to this effect?

[English]

Senator Finestone: I would be very happy to nominate Senator Hervieux-Payette.

[Translation]

The Joint Clerk (Mr. Heyde): Are there any other nominations? The Honourable Senator Finestone moves that the Honourable Senator Hervieux-Payette be appointed Joint Chair of the committee.

[English]

Is it your pleasure to adopt the motion?

Hon. Members: Agreed.

The Joint Clerk (Mr. Heyde): Carried.

In the absence of the Senate joint chair, it is my duty to preside over the election of an acting Senate joint chair.

[Translation]

I am ready to receive another motion.

Senator Gill: I move that Senator Finestone be appointed Acting Joint Chair.

The Joint Clerk (Mr. Heyde): Are there any other nominations? The Honourable Senator Gill moves that the Honourable Senator Finestone be appointed Acting Joint Chair of the committee.

[English]

Is it your pleasure to adopt the motion?

Hon. Members: Agreed.

The Joint Clerk (Mr. Heyde): Carried.

[Translation]

Mr. Jean-Michel Roy, Joint Clerk of the Committee (House of Commons): Honourable Senators and Members, in accordance with Standing Order 106(1) of the House of Commons, our next item of business is the selection of a Joint Chairman representing the House of Commons.

[English]

I am ready to receive motions to that effect.

Mr. Schmidt: I nominate Mr. Pankiw.

[Translation]

The Joint Clerk (Mr. Roy): Are there any other motions? Mr. Schmidt moves that Mr. Pankiw be appointed Joint Chairman of the committee.

[English]

Is it the pleasure of the committee members to adopt the said motion?

Hon. Members: Agreed.

[Translation]

The Joint Clerk (Mr. Roy): Motion carried. Mr. Pankiw is duly elected Joint Chairman of the committee for the House of Commons.

[English]

Senator Sheila Finestone (Acting Joint Chairman) and Mr. Jim Pankiw (Joint Chairman) in the Chair.

The Acting Joint Chairman (Senator Finestone): Colleagues, I would ask for nominations for a vice-chairman of the committee.

Mr. Lee: I nominate Tom Wappel, serving in his twelfth year on this committee.

The Acting Joint Chairman (Senator Finestone): Mr. Wappel is nominated as the vice-chairman.

Hon. Members: Agreed.

The Acting Joint Chairman (Senator Finestone): The Subcommittee on Agenda and Procedure is our next item of business. It is composed of the joint chairmen, the vice-chairman and one member from the other party in the Senate. We have a proposition for the other party in the Senate and one from each of the two other opposition parties in the House of Commons.

Could I please have some nominations? Sorry, first we need to adopt the motion.

Mr. Lee: So moved.

The Acting Joint Chairman (Senator Finestone): The next item is No. 5, a motion to print the committee's proceedings. Will someone move the adoption? Thank you very much, Mr. Myers. Is that adopted?

Hon. Members: Agreed.

The Acting Joint Chairman (Senator Finestone): The next motion is that the committee general counsel review the unrevised transcripts of the proceedings of the committee. Will someone move the adoption of that motion?

Mr. Schmidt: Yes.

The Acting Joint Chairman (Senator Finestone): Thank you very much, Mr. Schmidt.

The next motion is that the committee concur in the first report and the joint chairmen so report to their respective houses.

Hon. Members: Agreed.

The Acting Joint Chairman (Senator Finestone): Thank you very much. We have a new name. Mr. Guimond?

Mr. Guimond: Yes.

The Acting Joint Chairman (Senator Finestone): The next motion deals with committee staff and that the committee confirm the agreement to have two counsel from the Library of Parliament and two administrative assistants from the Senate assigned to the said committee on a continuing basis and that their salaries and other expenses be paid by the committee from funds provided for that purpose in the committee's budget.

Mr. Schmidt: I have a question. The reference in our briefing book was to four counsel from the Library of Parliament. Will two be adequate for the work of the committee?

The Acting Joint Chairman (Senator Finestone): I would be happy to say that I do not think so. I think we need four.

Mr. Lee: My understanding is that we do have four counsel. This particular motion only provides for the financial funding for two of them and two administrative assistants paid for by the Senate. The other two counsel are already provided for by the Library of Parliament and continue to serve the committee. This motion only buttresses what we all thought might be an interim financial arrangement that has been going on for many years, just to clarify who is paying on our behalf for two of the counsel and the two administrative assistants.

The Acting Joint Chairman (Senator Finestone): From experience, this did not last 12 years. It lasted exactly one and one-half years. I have noted that the financing of our two counsel is a serious problem. In light of the fact that financing has been provided by our wonderful government for increased staffing at the Library of Parliament, could we note a statutory need that these two counsel be permanent? I do not want this to be a consideration every time we open a new session of Parliament. Would any members of the committee care to speak to this issue? Mr. Lee has the longest corporate memory around this table.

Mr. Lee: I can speak to the history of this issue.

The current arrangement is proving to be dysfunctional. Because of resistance in the House of Commons Liaison Committee to turning over a relatively large amount of money for permanent staffing, the other committees of the House of Commons do not fund their permanent staffing from their committee budgets. That staffing comes from other budgets in the House of Commons. As a result, when the House part of this committee goes to the Liaison Committee in the House, over the last few years the Liaison Committee has responded with great surprise and some negativity. They are resisting that financial arrangement. Therefore, it is necessary to reconstruct how we fund our counsel. The preferred route is through the Library of Parliament. The library says, "We do not have quite enough money to do that." The House is not prepared to turn over money to the Library of Parliament for that purpose. There is bureaucratic resistance and a lot of ignorance about this issue.

I think there is an excellent chance that we will have an opportunity to readjust this financial arrangement in the coming fiscal year. It is just a matter of political will on the part of several members and the Speaker to make it happen.

I think the committee should note on the record its disappointment with how this matter was handled in the House Liaison Committee in the last Parliament and look to the House and to the Speaker of the House to correct it. My hope is that we can reconstruct this arrangement without "destructing" anything. If need be and this committee wants to get nasty, it is always in a position to do so. I am not suggesting civil disobedience, but I think we should firmly record the need for the House to make these adjustments.

I suggest that we ask the clerk and/or counsel to prepare a motion in this regard, and then we could come back on a future agenda. I prefer that the motion be properly worded and reflective of the issue.

Hon. Members: Agreed.

The Acting Joint Chairman (Senator Finestone): Should the proposal or proposition include a financial figure?

The budgets, which we will look at in a moment, indicate that the cost of legal counsel this year, which is a full year of service, is $147,000, and that the administrative assistants are $80,500, which totals $227,500. I am asking for some direction. Do members wish to include the financing amount in that motion?

Mr. Lee: Sure. Subject to whatever counsel or the clerks suggest, we could append this approved budget to whatever motion we adopt, and it would be reasonably instructive to those who take the time to read it. We hope they will read it.

The Acting Joint Chairman (Senator Finestone): The kind of work this committee does is an oversight of an executive undertaking, and I think it is very important that we have the means to understand what is going on and how laws are interpreted through regulations. I am very pleased to support that particular point of view. I hope the clerks will be able to draft the appropriate resolution.

Mr. Lee: Madam Chairman, if I could add to your remarks, the work that the committee does is imposed by statute. It is not even discretionary.

[Translation]

Senator Nolin: That is correct. There is no need for Parliament to ask the question. The decision to strike this committee and to fund it has already been made. In no way should any administrative authority be in a position to decide whether or not to allocate the resources needed for this committee to operate. They should be reminded of this.

The Acting Joint Chair (Senator Finestone): Yes. Thank you very much. I hope that you will support the motion.

Senator Nolin: Absolutely, I intend to.

Mr. Lanctôt: Are we on item 8 or item 7?

The Acting Joint Chair (Senator Finestone): Item 8.

Mr. Lanctôt: Have we dispensed with item 7?

The Acting Joint Chair (Senator Finestone): Yes.

Mr. Lanctôt: Regarding the adoption of the first report, I think it is important to read the text. At the bottom of page 3, where it is recommended that the quorum for meetings be fixed at four members and, when evidence is received, at three members, I would like the paragraph to be amended to read that when either four members are in attendance at meetings or when three members are present when evidence is received, at least one member shall be an opposition member.

The Acting Joint Chair (Senator Finestone): Is that a different way of proceeding for us?

Mr. Lanctôt: Given the way in which this paragraph is worded, the presence of an opposition member is not required in order for there to be a quorum.

The Acting Joint Chair (Senator Finestone): With your permission, I will ask the clerk because to my knowledge, the committee has always operated in this manner.

Mr. Lanctôt: I am reading the document and I do not see where this is a requirement.

Mr. François-R. Bernier, Senior Counsel: Mr. Lanctôt, this particular omission is deliberate. This committee has always operated in a non-partisan manner and by and large, the approach has been successful. When the committee was first struck in 1974, a decision was made to be non-traditional and not to require the presence of an opposition member to assure a quorum. The work of this committee is parliamentary in nature, not partisan and party membership is of no importance. Another consideration is that the Joint Chairman of the committee is a member of the official opposition.

Mr. Lanctôt: However, the Joint Chairman is not always present at committee meetings. Or am I wrong?

Mr. Bernier: He is almost always present. I can assure you -- and Mr. Lee can confirm it -- that our committee has always operated in this fashion. If an issue arises that is the least bit contentious or partisan, and we know in advance that opposition members will not be able to attend, then as a rule, the matter is not put on the agenda because the staff and leadership of the committee do their utmost to uphold the committee's tradition of non-partisanship.

Mr. Lanctôt: I do not see how this would take away from our non-partisanship. Besides, I understand the Joint Committee on Official Languages adopted a motion requiring that an opposition member be present on both occasions. Why then not make this a clear stipulation? What harm can it do? It would only clarify matters. If you say that this has always been the case, then why not state it clearly. It would not make any difference and everyone would be happy. The Joint Committee on Official Languages faced a similar situation. They agreed that for a quorum, one opposition member must be present for meetings and one opposition member when evidence is received. This is a very democratic approach. The Joint Chairman is aware of the situation and there is room for improvement. We do not have to accept the status quo. We can introduce some changes and make the situation more amenable to everyone. I move that we do and I hope my motion will receive the unanimous support of members.

[English]

The Acting Joint Chairman (Senator Finestone): Comments?

Mr. Lee: Mr. Lanctôt has made his motion. I will not support it. This committee has functioned for over 27 years on a basis that has been fairly well described by counsel. There has never been a problem of the type associated with the procedural item raised by Mr. Lanctôt. Mr. Lanctôt's motion would probably be appropriate in other committees of the House or perhaps of the Senate, but in this committee it flies in the face of the existing tradition here.

I believe Mr. Lanctôt is suggesting that because it is done by other committees, this committee should do it. I suggest that this committee has never done it and has never seen a need to do it. In its practice, this committee does not really emulate other committees in the House and perhaps in the Senate.

I will indicate my strong opposition to altering a format and a procedure that appears to have worked very well for the last 27 years.

The Acting Joint Chairman (Senator Finestone): Are there further comments or observations?

[Translation]

Senator Nolin: I am tempted to support Mr. Lanctôt's motion. This rule is in force for all Senate committees. I understand from what the senior counsel is saying that this is the way things have traditionally been done for the past quarter century. As Mr. Lanctôt said, this procedure can be improved upon. I do not see how his suggestion would introduce a measure of partisanship into our proceedings. Time will tell. I see that you do not specify which opposition party. Naturally, it would be the party to which the Joint Chairman belonged.

Mr. Lanctôt: Precisely.

Senator Nolin: That is normal. I do not see how specifying this would amount to breaking with tradition, particularly if this has been the approach customarily taken.

[English]

The Joint Chairman (Mr. Pankiw): I would like to support what Mr. Lee said. There has been no need for that type of motion in the past. My understanding is this committee operates on the basis of consensus and non-partisanship, and this motion is not consistent in that respect. I think we should maintain the traditional motion that does not specify the requirement of an opposition member. That does not preclude a motion like this ever coming forward in the future. We should defer to tradition, and I support Mr. Lee's opposition to the motion.

[Translation]

Senator Nolin: Are decisions announced in advance in the notices of meetings?

The Acting Joint Chair (Senator Finestone): I cannot answer that question.

Senator Nolin: Are meeting agendas sufficiently detailed that members receiving the notice of meeting understand that a decision will be made? The text of the report stipulates the following:

[...] quorum be fixed at 4 members, provided that both Houses are represented whenever a vote, resolution or other decision is taken [...]

Is mention made in advance of either a vote, resolution or decision in the notice of meeting?

Mr. Bernier: When the committee reviews statutory instruments, it makes decisions constantly. The committee operates with a quorum of three members who agree to write a letter to the minister or to ask counsel to write again to the department for clarification. The standard quorum is three members. A quorum of four members is required when the committee hears a motion to adopt a report, or considers a decision to disallow a standing order of the House of Commons or to adopt the budget, as is the case with today's meeting, for instance. In the 20 years that I have been attending meetings, I have never seen the committee adopt a motion with only four members representing a single party present.

Let me clarify something: by three members, I mean three opposition party members. In the past, there was a case of one meeting where statutory instruments were examined in the usual fashion and no government member was present.

Mr. Lanctôt: I do not see this as an improvement. The issue has nothing to do with partisanship. I see nothing wrong with trying to improve upon the status quo. Moreover, as Senator Nolin stated, there is no requirement for a Bloc, Alliance, NDP or Conservative member to be present, merely a stipulation that at least one opposition member be present when a regulatory instrument is being reviewed or when evidence is received. The opposition needs to hear this evidence. I realize that this has long been the approach taken, but I do not see why the presence of the opposition could not be a requirement.

[English]

Mr. Myers: I think we have exhausted this debate. Can we call the question?

Mr. Schmidt: I would like to lift this debate to another level. As Mr. Pankiw has just pointed out, this should be a non-partisan committee. We want to do the work of Parliament. Our job is to scrutinize the legislation that comes to us from the House and to ensure that it is fair and just. We ought to take the work of this committee seriously. If we do not, that is another question entirely.

The Acting Joint Chairman (Senator Finestone): Is it the committee's wish to adopt the motion of Mr. Lanctôt?

Some Hon. Members: No.

Some Hon. Members: Yes.

The Acting Joint Chairman (Senator Finestone): Will you call the vote please, Mr. Clerk.

The Joint Clerk (Mr. Heyde): Honourable Senator Finestone, P.C.?

The Acting Joint Chairman (Senator Finestone): No.

The Joint Clerk (Mr. Heyde): Honourable Senator Gill?

Senator Gill: No.

The Joint Clerk (Mr. Heyde): Honourable Senator Mahovlich?

Senator Mahovlich: Yes.

The Joint Clerk (Mr. Heyde): Honourable Senator Nolin?

Senator Nolin: Yes.

The Joint Clerk (Mr. Heyde): Honourable Senator Poulin?

Senator Poulin: No.

The Joint Clerk (Mr. Roy): Ms Barnes?

Ms Barnes: No.

The Joint Clerk (Mr. Roy): Mr. Carignan?

Mr. Carignan: Yes.

The Joint Clerk (Mr. Roy): Mr. Lee.

Mr. Lee: No.

The Joint Clerk (Mr. Roy): Mr. Macklin?

Mr. Macklin: No.

The Joint Clerk (Mr. Roy): Mr. Myers?

Mr. Myers: No.

The Joint Clerk (Mr. Roy): Mr. Pankiw?

The Joint Chairman (Mr. Pankiw): No.

The Joint Clerk (Mr. Roy): Mr. Schmidt?

Mr. Schmidt: No.

The Joint Clerk (Mr. Roy): Mr. Guimond?

Mr. Guimond: Yes.

The Joint Clerk (Mr. Roy): Mr. Lanctôt?

Mr. Lanctôt: Yes.

The Joint Clerk (Mr. Heyde): Yeas, five; nays, nine.

The Acting Joint Chairman (Senator Finestone): I declare the motion defeated. It was a good discussion, though.

[Translation]

Senator Nolin: I just listened to what our senior counsel had to say . When decisions are made with a quorum of three, it would appear that these decisions are of a purely administrative nature. Why not clarify matters? The paragraph that was just read stipulates clearly in English as well as French:

[...] or other decision [...]

In my opinion, the words "or other" includes decisions of a purely administrative nature. Perhaps the intentions of the committee should be clarified and a three-member quorum required when decisions of a purely administrative nature are taken.

[English]

Mr. Bernier: I refer to it as a decision because if the committee asks the staff to draft a letter, that is a decision. The difference is if it is the type of question that is moved on a motion. Those things are not moved on a motion. It is simply the committee members, by consensus, asking that a letter be written. That is not a decision in the parliamentary sense, if you will, of requiring a motion and putting the motion to members. Anything that requires a motion would be covered by the quorum of four.

The Acting Joint Chairman (Senator Finestone): On the other hand, there is nothing that would prevent us from being quite clear, if that is the will of the committee.

[Translation]

Senator Nolin: In light of the opinion of our senior counsel, if we wish to be clear and not question a decision made by a three-members quorum or its legitimacy, then we should specify this.

The Acting Joint Chair (Senator Finestone): In the manner that you were recommending?

Senator Nolin: I think you understand my position. We can come back to this matter later in the meeting.

The Acting Joint Chair (Senator Finestone): You might give this matter some more thought.

[English]

The Acting Joint Chairman (Senator Finestone): Have we finished item No. 8? Would someone so move?

Mr. Myers: I so move.

The Acting Joint Chairman (Senator Finestone): Thank you very much, Mr. Myers.

Is it agreed, honourable members?

Hon. Members: Agreed.

The Acting Joint Chairman (Senator Finestone): Carried.

Turning to item No. 9, a motion to authorize and approve payments of expenditures of the committee.

Senator Poulin: I so move.

The Acting Joint Chairman (Senator Finestone): Is it agreed, honourable members?

Hon. Members: Agreed.

The Acting Joint Chairman (Senator Finestone): Carried.

Item No. 10 is a motion relating to travelling and living expenses of witnesses. At the discretion of the joint chairmen, the committee may reimburse reasonable travelling and living expenses for one witness from any one organization, and payment will take place upon application, but the joint chairmen is authorized to approve expenses for a second witness should there be exceptional circumstances.

Will someone so move?

[Translation]

Mr. Guimond: I have a comment concerning the distribution of witness briefs. I would like to amend motion 10 or the one that I am about to introduce so that it follows the adoption of motion 10. Should I proceed at this time?

The Acting Joint Chair (Senator Finestone): What is your opinion, Mr. Clerk?

The Joint Clerk (Mr. Heyde): What is the gist of your motion?

Mr. Guimond: I have yet to draft the motion as such, but I have the wording in mind. It would ensure that all witnesses table their documents in Canada's two official languages.

The Joint Clerk (Mr. Heyde): Do you mean that witness could table documents in one language and subsequently have them translated?

Mr. Guimond: No, I am talking about documents prior to their being tabled to the committee for review and discussion.

The Joint Clerk (Mr. Heyde): You are saying that you would like the documents to be circulated to members only if they are in both official languages.

Mr. Guimond: That is correct. Often committees hear from witnesses who were convened on short notice. I do not know if that is true of this committee. Given the presence of interpreters, committee members end up with a document in only one official language and it is not the same for a member to follow along when the document is not in his or her first language.

In other committees, I became the censor of sorts, the person who either said yes or no to the tabling of documents. That needs to change. Clerks should be allowed to distribute to committee members only those documents that are in both official languages.

If the witness has been unable to get his document translated and was not able to submit it to the clerk for translation, then his document should not be tabled, merely discussed.

The Joint Clerk (Mr. Heyde): You were wondering if you could propose an amendment?

The Acting Joint Chair (Senator Finestone): Could he add another sentence?

Mr. Guimond: I suppose I could, since this is the only motion that deals with witnesses.

The Acting Joint Chair (Senator Finestone): What this means for committee members is that a witness could arrive to testify with a document written in his or her first language. Regardless of whether the document is in French or in English, the witness can make a presentation and members can ask questions. However, a witness cannot submit a document for distribution until such time as this document is translated into both official languages. I believe that is standard procedure.

Mr. Guimond: Counsel will tell us that the committee has always operated in this manner, but for the sake of clarity -- and clarity is very much a buzzword these days -- why not specify this in writing?

The Acting Joint Chair (Senator Finestone): So much the better if we ensure clarity.

Senator Nolin: Clarity must be sought, because it does not always exist.

[English]

Mr. Lee: In the interests of time, it has been a number of years since this committee has heard a witness from outside government, perhaps three or four years. It is relatively rare. Because we scrutinize government, our witnesses are usually government officials.

I understand this issue. We have not yet established a firm recurring protocol at all of our committees. If a witness comes with a document in one language, then that witness is free to deliver his or her testimony in the single language that they choose. With respect to committees on which I have sat, the clerks are not allowed to distribute a single-language document. In other words, the document would not be received by the committee and distributed. However, if the witness wanted to distribute it, he or she could. We did not want our clerks sanctioning a single-language written presentation. However that is articulated, I think all of us would agree with it. That has been my understanding in most of the committees on which I have sat.

Just as we will take another look at the wording of item No. 7, perhaps we could take another look at this item and generate wording that is satisfactory.

The Acting Joint Chairman (Senator Finestone): I think we need someone to move item No. 10. We need to adopt Mr. Guimond's motion, as amended, that documents only be distributed in both official languages. That is the end of what we need to add.

[Translation]

Mr. Lanctôt: Just to clarify further, I suggest that documents, when available, be distributed at the same time. I have seen cases where the translation was circulated a full three weeks later.

[English]

The Acting Joint Chairman (Senator Finestone): Where have you been, Mr. Lanctôt? It does not work that way. They are not distributed unless they are in both official languages. If the person arrives and wants to speak English, he will speak English.

[Translation]

If he wishes to speak French, he will do so and follow his text.

[English]

You do not need to embellish and gild the lily.

[Translation]

Mr. Lanctôt: I understand, but I was referring to the distribution process. Documents will be distributed only after they have been translated into both official languages.

[English]

The Acting Joint Chairman (Senator Finestone): I am of the view, Mr. Lanctôt, unless you want to word it otherwise, that this is quite clear. Everyone in this room understands what it means, and I hope you do, too.

Will someone move the motion, please?

Mr. Meyers: I so move.

The Acting Joint Chairman (Senator Finestone): Thank you very much, Mr. Myers.

It is adopted. Let us move on to the next item, which is No. 11. It deals with electronic media coverage of public meetings.

Mr. Lee: I so move, Madam Chairman.

The Acting Joint Chairman (Senator Finestone): Thank you, Mr. Lee.

Is there anything else? On page 12, there is the budget. Will someone move the budget with the notes that we have and the notification we have made about sending a letter and speaking to the Library of Parliament?

Mr. Meyers: I so move, Madam Chairman.

The Acting Joint Chairman (Senator Finestone): The next item has to do with meetings until June.

The Joint Chairman (Mr. Pankiw): I wish to suggest an amendment in that regard. With regard to the meeting of March 22, I wonder if it would suit everyone to change that to the following week, March 29. I will not be here next week.

The Acting Joint Chairman (Senator Finestone): That is fine with me. If there is no objection, we will change the date of the meeting from March 27 to March 29.

It is agreed.

We have to come back to item No. 10.

[Translation]

Senator Nolin: I have a suggestion.

The Acting Joint Chair (Senator Finestone): Go ahead.

Senator Nolin: It has to do with the last paragraph on page 3 of the First Report where mention is made of meetings where three members are present.

[...] and that the Joint Chairmen be authorized to hold meetings to receive evidence and authorize the printing thereof and to make all related administrative decisions.

The Acting Joint Chair (Senator Finestone): What exactly is the meaning of the word "related"?

Senator Nolin: Related to the printing of such evidence. I am prepared to delete the word, if that is what you want.

Mr. Bernier: Whenever a decision comes into play, as the clerks understand it, then a motion is required.

Senator Nolin: Would you like us to be more specific then?

Mr. Bernier: The aim here was to make it clear that when only three members are present, the committee will not receive any motions.

Senator Nolin: Then, why not add the words "by way of motion" earlier in the paragraph, following the words "or other decision is taken."

Mr. Bernier: The committee only takes decisions by way of motion. This is fundamental to the decision-making process in committee. Decisions are never taken when only three members are present.

Senator Nolin: Then I withdraw my suggestion and leave matters as is.

The committee adjourned.