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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 12 - Evidence

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OTTAWA, Thursday, February 21, 2002

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 give consideration to a draft budget for 2002-2003 and for the review of statutory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.

[English]

The Joint Chairman (Mr. Grewal): We have an agenda before us, but before we deal with it, let us deal with an item that is before the House of Commons. It is a point of privilege by a member of that House.

Mr.Cummins, do you wish to make a quick comment on this matter?

Mr. Cummins: In relation to the matter that I raised in the House of Commons, I wish to put this motion before committee. This is a simple motion and probably appropriate.

Therefore, I move:

That committee staff must seen to be neutral in matters of debate within committee and therefore should avoid public comment on such matters.

In making this motion, it is simply a reaffirmation of what I understood and what most members would understand to be normal procedure.

The Joint Chairman (Mr. Grewal): Are there any comments on the motion?

Mr. Wappel: I am somewhat confused because I am not exactly sure as to the purpose of this motion. It sounds as if this is a statement of the obvious or, perhaps, a motherhood statement. Perhaps the mover could enlighten us as to the purpose of the motion. Is it a stand-alone motion, or will there be something coming after it? We know that the member has raised an issue in the House, with which I do not happen to agree. If we were to enter a debate, then I would make a different suggestion or another suggestion.

Is the member proposing to move the motion and then move on to the agenda of the committee? Perhaps I could inquire through the joint chairmen the intention of the mover.

Mr. Cummins: The purpose of the motion is quite clear. Counsel for committee saw fit to respond to an article that was published in The Hill Times and took a position with which I disagreed. The position was a matter of discussion and debate in this committee at our last meeting. I took offence to that. I do not think it appropriate for staff to be doing so.

If the committee saw fit to put a clarification of the article in the paper, then it should have been a matter of the committee's function. It should have been discussed with committee members and it would have been appropriate for one of the committee joint chairmen to do that.

Having said that, I do not disagree with the article. I found the article to accurately reflect the position that I had taken and that I maintain. I also found the comments of counsel to be inaccurate in the article, so I took issue with that.

My motion today is a soft motion, but it is meant to reaffirm what I think is a tradition of the House that staff do not inject themselves into debate that may be ongoing in committee or in the House. It is not their place to do so. This motion is a simple reaffirmation of that tradition.

Mr. Wappel: The motion is a soft motion, as I see it, and does not refer in any specific way to any particular incident. It simply lays out a principle with which I think we could all agree.

I totally disagree with the motivation behind the motion. I do not wish to get into a debate on the merits of the article at this point, other than to say that I do not see that article as in any way injecting any sort of partisanship or in any way breaching the neutrality of our counsel.

I view the article as a factual response. I would commend our counsel for defending the facts about an obscure committee about which people are unaware, and then when journalists, once in a blue moon report about it, they report about it incorrectly.

Having said that, if Mr.Cummins wishes to move that soft motion and then proceed with the business of the day, I would have no objection.

Mr. Cummins: In light of my colleague's comments, I would suggest that I would add to the motion so that it is perfectly clear. I was trying to approach this matter in a soft way. I did not wish to get into a heated discussion. I thought that my concerns were well understood. Others shared the concerns that I raised in the House. I was trying to approach this issue in a conciliatory way and to simply have the committee reaffirm that very simple principle. However, if Mr.Wappel wishes to qualify his support for the motion, then I would have to say that the motion should be toughened up and perhaps should read this way:

That committee staff must be seen to be neutral in matters of debate within committee and therefore should avoid public comment in such matters, as was done by committee counsel in a recent edition of The Hill Times.

If my friend across the way wishes to qualify his support for that motion, then I would have to be clearer in the motion.

The Joint Chairman (Mr. Grewal): Mr.Cummins, since you moved the first motion, which was a soft one, perhaps we should deal with that. That meets the intent of your objective very clearly. Should we deal with the second motion, or are you comfortable with the first one?

Mr. Cummins: In light of comments, perhaps the first motion does not address the issue. The issue was to send a message to counsel that the action that was recently taken was inappropriate.

My friend is prepared to support the motion, but he wants to state quite clearly that he did not think that the action was inappropriate. Therefore, in my view, the action could be repeated. Therefore, I must amend my motion so that it is quite clear and amend it by adding the words:

...as was done by committee counsel in a recent edition of The Hill Times.

If we have to be tough about it, I guess we have to be tough about it.

The Joint Chairman (Mr. Grewal): In my opinion, according to the rules, if you wish to amend your own motion, then we will need consent of the members.

Are you prepared to stick with the first motion, or do to you wish to move the second motion so that we can obtain consent to amend your own motion?

Mr. Cummins: If one supports the motion, one must understand that the second part is there. That is the intent of the motion. If the motion passes, when I leave here, my assumption will be that the committee concurs that it was inappropriate for counsel to engage in public discussion of matters before committee. If members support the motion, that is what you are doing.

The Joint Chairman (Mr. Grewal): If we are dealing with the first motion, then we can vote on it and dispose of it and move on to the agenda. If we are dealing with the second motion, then we involve staff of the committee and will have to refer it to the Subcommittee on Agenda and Procedure. We will then have the explanation and deal with the details of the motion with the consent of the subcommittee.

If you still believe that we can deal with the first motion and dispose of it, then we will have a quick discussion and a vote and dispose of the motion.

Mr. Cummins: I worded the motion as I did because I thought that we should move on. I made my point in the House. I thought that a softly worded motion would send a message to staff that what occurred was inappropriate. I did not want to get into a great discussion about it here this morning. I thought that there would be some appreciation for the fact that we tried to word it softly.

Unfortunately, my colleague across the way has taken the position that he has. Therefore, I will have to go along with the motion as I would like it amended, that is, to direct the issue as clearly as possible so that there is no misunderstanding about the intention.

Mr. Wappel: When one moves a motion, the words of the motion are self-evident. The mover of the motion is out of order, I think, in suggesting that if a particularly worded motion is passed it means something other than its actual words.

Having said that, I would not give consent to an amendment of the motion. Mr. Cummins is concerned about this issue and I think the chairman has offered a fair and reasonable solution to it. Many members have not read the article or have not considered it carefully, and it is unfair to vote on underlying meanings of a motion when the issues have not been carefully examined.

If Mr. Cummins wants to pursue this matter, which is fine, then the chair's suggestion to refer it to the subcommittee for proper study and report back to the committee in full is the reasonable and fair way to proceed— and I emphasize the word ``fair''— so that the article can be carefully scrutinized and a proper report can be brought back at the appropriate time.

If this motion proceeds, I urge that it be defeated on the basis that there is supposed to be some underlying meaning to it. If the mover withdraws the motion, I would be in support of referring the matter to the subcommittee as the chair suggested, if Mr. Cummins would be amenable to that.

Mr. Pankiw: I do not know if Mr. Cummins would be amenable to that or not, but it is not reasonable to wish to defeat a motion on the grounds that there is some underlying motive behind. All motions have underlying reasons and motives behind them, but one has to take them at face value. At face value, the initial motion is a sound one. As Mr. Cummins described, it is a softly worded motion. I think it would be unreasonable for anyone not to support that.

I am much less comfortable with the suggested amendment than I am with the original motion because I in no way want to impugn the reputation, the ethics or the competence of legal counsel of this committee. In fact, I would like to state categorically that I think he is a huge asset to this committee.

However, I do agree with Mr.Cummins. If clarification is required of facts pertaining to the function or performance of this committee, then that ought to be discussed at committee and addressed through the joint chairmen. That would be a more appropriate route to take.

I do not know if Mr. Cummins wishes to refer this matter to the subcommittee. If he does not, I suggest that we not give consent for the amendment, that we pass the original motion and that we move on.

The Joint Chairman (Senator Hervieux-Payette): For those who have not been on this committee for years, I will tell you that in the past this committee has extensively studied, for example, the rights of RCMP officers to run for election, respecting their democratic rights.

We have a Charter of Rights that guarantees freedom of speech. In my opinion, at face value the motion appears to be a way of asking an official not to express himself in a democratic system. I have seen governments across this planet that have this practice, although it entails more than just a motion. I voted for the Charter of Rights in 1982 and I believe that the proposal of my joint chairman is the best one. Of course, I have not heard about the case in the House of Commons, as that is not where I sit, and I do not understand the motive behind the motion.

Having read the article, I see nothing that would motivate such a motion. I do not wish to vote even on a neutral or a softly worded motion, the purpose of which I do not understand. In this country, all people must be allowed to express themselves, regardless of who they are and what job they hold.

There is currently a bill before the Senate about whistle-blowing, a bill I support. It is important to respect the Charter of Rights, which guarantees the right to speak or to write.

I do not agree that our counsel went beyond his duty in his capacity. I would be willing to sit on the subcommittee to try to understand the motive and rationale of Mr. Cummins. However, I do not understand why we are even dealing with the motion right now.

There was also a communiqué sent from the Senate advising the newspaper of some errors, although they were not published. The senior communications adviser from Senate Communications sent some corrections to the newspaper. Therefore, it was done both ways; one was in the newspaper and the other one was not published.

It was important to me that the correction be made. I am not a PC. As I explained to my colleague Senator Nolin, that is a fact of life. I am a genetically programmed Liberal. When errors are made, it is important that we support the staff who have the courtesy to correct them.

Mr. Pankiw: Madam Chair, you say you do not understand the motive. With all due respect to freedom of speech, expression and so on, surely you appreciate the need for some government staff, such as deputy ministers or the Clerk of the House of Commons, to be politically neutral publicly and to curtail his or her expression of personal opinion. That is what Mr. Cummins is talking about, and I think it is reasonable. Let us just support the soft, fair-minded motion and move on.

[Translation]

Mr. Brien: I have trouble following the logic of this argument based on freedom of expression. I have been a member of the House since 1993 and it is my understanding that when working in committee or within departments, people enjoy complete freedom of expression. Clearly, however, this freedom of expression is limited in certain ways. We could debate the whole issue but to my mind, in some instances, restrictions on freedom of expression are warranted.

Admittedly, I was surprised by the clerk's answer and attempt to justify or explain the committee's role or to correct mistakes contained in another article. I do not think that we should be following this course of action.

To my way of thinking, it would have been more appropriate for the response to come from the joint chairs or for the situation to be rectified after the clerk had received instructed to do so. I am not questioning the work of counsel or of his associates who are extremely competent.

Should we adopt a motion to restrict freedom of expression in the future? I do not believe that this is the solution either because it is not a desirable outcome. I believe the right message has in fact been conveyed today and that this type of situation will be avoided in the future.

[English]

Senator Bryden: I should like to support that position. First, not everyone in this room scrutinizes with great detail everything that is written in The Hill Times. I am one of those. I did not know a significant issue had arisen. Therefore, before I can vote for a motion that is basically for censure— we can call it soft or not — but if there is no problem, we do not have to fix it with a motion. That is the way it will be interpreted. I will not support the motion unless we have an opportunity to learn about it and the subcommittee has an opportunity to look at it and inform this group.

If a member of the committee, or more than one, found something that displeased them, then can it not simply be raised here and the facts discussed? Why does everything have to result in a motion of some form or other? I have always found our committee staff to be very neutral and very capable. I think you indicated that. However, no matter how softly this motion is worded, it will be read as a motion of censure against some member of the staff or the staff. I think that is unfair. You can indicate you believe that some lines were crossed, perhaps. I do not know because I did not read the article, but the impression I have is that, whatever it was, it was not sufficiently significant to offend the majority of members on this committee.

It would be satisfactory to raise the matter as you have done and have it noted in the committee. If that is not satisfactory, I cannot vote for a motion unless I get some facts in front of me so that I can analyze them.

The Joint Chairman (Mr. Grewal): We have heard the members. Mr.Cummins, do you have a closing comment?

Mr. Cummins: Further to what the joint chairman was saying about our rights as individuals to comment, no one is taking exception to that. We all have rights as individuals. However, the letter in question was sent on committee letterhead and was signed by the general counsel as General Counsel, Standing Joint Committee for the Scrutiny of Regulations. That is the issue here.

In my view, counsel does not have the right to use committee letterhead and sign it off as general counsel for the committee and publicly comment on matters before the committee. It is just totally inappropriate.

I understand the senator's concern about the motion in saying it is a motion of censure. It is. However, I was trying to word it softly so that there was an understanding, a shot across the bow, if you will, to staff to say, ``Look, we do not want any more of this.'' My motion, which I think is a reasonable motion, has unfortunately been the subject of some discussion here for half an hour. If it would be helpful, I think it appropriate that the matter be referred to the subcommittee, if that is the way members wish to proceed.

My motion is that there is the understanding that it is a shot across the bow and that the action taken by general counsel is inappropriate. My friend across the way specifically asked me the intent of my motion, and then he came back and said he was questioning the intent. However, he asked me for the intent, so I had to be clear.

The Joint Chairman (Mr. Grewal): That is fine.

Mr. Cummins: I intend to be clear. If it would help matters, I am quite prepared to suggest that the motion be handled by the subcommittee, if that is what it will take.

The Joint Chairman (Mr. Grewal): Since we need to study the issue further and staff is involved, I think we should refer the matter to the Subcommittee on Agenda and Procedure. The subcommittee will study it and then report to the full joint committee.

We have another motion. There is a notice on February15 from Mr.Pankiw. We will deal with that motion and then return to the agenda.

Mr.Pankiw, do you want to read your motion?

Mr. Pankiw: The motion is as follows:

That when the Minister of Fisheries and Oceans is scheduled to appear before the Committee for the purposes of addressing the Committee's concerns regarding the Aboriginal Communal Fishing Licences Regulations (SOR/93-332, SOR/94-390, SOR/94-531, SOR/95-106), the proceedings of the committee be televised.

Mr. Chair, in the interests of openness and accountability, and in the public interest, this motion should be supported by all members.

As has been noted by the Speaker of the House of Commons, committees are masters of their own destiny. Therefore, it is completely within our own prerogative to do this.

In the words of Mr.Wappel, this committee is ``little understood.'' Clearly, this motion would offer an opportunity to have greater scrutiny of our own committee.

Finally, the fact that the subject matter that the minister will be appearing on deals with racist regulations that the government has delayed revoking for years is compelling reason to televise the meeting with the minister.

The Joint Chairman (Mr. Grewal): Before I ask for further comments, this issue was brought before the steering committee. There was a consensus with the steering committee and the decision was made that, yes, we can televise the Scrutiny of Regulations Committee from time to time.

We will not spend too much time on the motion. I will urge members to be brief.

Senator Bryden: I wish to draw to the attention of the committee that Senate committees, either standing, special or joint, cannot be televised without the explicit authorization of the Senate. We have no authorization from the Senate to televise the proceedings of this committee.

The Joint Chairman (Mr. Grewal): That consent can be obtained. I am sure that once the motion is moved, authorization can be obtained in the Senate.

Senator Bryden: We often get exactly the same amount of cooperation in our house as you get in yours. That cannot be assumed.

The Joint Chairman (Mr. Grewal): However, it can be initiated.

Mr. Pankiw: I might add, with all due respect,Senator Bryden, that not only can it be obtained, but I would think it highly unlikely that the Senate would defeat a motion to televise a committee meeting, as the message that would be sent from the Senate is that it wishes to keep the veil of secrecy and the backroommentality, whether deserved or not, that the Senate has been tainted with. I think the Senate could show honour and goodwill by passing that motion, saying, ``Yes, let us televise committees. We have nothing to hide.''

The Joint Chairman (Mr. Grewal): Let us not prejudge what will happen there. Let us leave it up to them. It can be dealt with there.

Mr. Wappel: For the benefit of members of the House, I would say that Mr.Pankiw's motion is in the spirit of the nineteenth and forty-first reports of the Procedure and House Affairs Committee. We have discussed this matter in the steering committee and agreed to it in principle. I had an opportunity to speak to our whip's office in terms of the history of televising committee meetings, as it pertains to the nineteenth and forty-first reports. The whip's office advises me that it has become the practice that a committee of the House is televised when a minister appears before it.

Mr. Cummins: I will raise a minor point of order when we finish this discussion, rather than interrupting the flow.

The Joint Chairman (Senator Hervieux-Payette): Having full televised deliberations of this committee is one thing. I am referring to the Senate Banking Committee, where we are sitting with televisions all the time, except when we are having an in camera meeting. In this case, the motion is to have one session televised. I do not remember the text of the motion, but it was tabled in the Senate. It has been there since before Christmas, but it has not passed. Although I tabled the motion, I cannot call it to a vote myself. It must be done with the agreement of the leadership in the Senate. I do not know if the motion refers to one session or televise the whole thing. Perhaps it would facilitate things because we have moved from the usual room where we meet. It is a small room and I have never seen any televisions in there. We must use a room such as the one we are in today if we want television coverage. Some technical aspects are involved. The committee usually meets in room 256-S.

There were also some constraints in terms of televising everything all the time and the availability of material. If it applies to one session, it will probably be easier. I will report on this at the Senate.

The Joint Chairman (Mr. Grewal): I see consensus among all members that it is a good idea, and we can look into having this committee televised.

Mr. Pankiw: Can we formalize it with a vote? We do not have need a recorded vote, just a vote to make clear the will of the committee.

The Joint Chairman (Mr. Grewal): All those in favour?

All those opposed?

Carried.

Mr. Cummins: The committee at its last meeting indicated that it wished to bring the Minister of Fisheries here within three weeks. This is two weeks after, and next week our friends in the other place are not sitting, as I understand it. What is the status of the motion? How will we get the minister in here?

The Joint Chairman (Mr. Grewal): I had a discussion with the minister. He is willing to appear before the committee, but there is the question of scheduling and timing. Yesterday, we received a letter from the minister indicating that it was not possible for him to appear before the committee today.

For the information of members who did not receive the letter, although the minister said that he had sent this letter to the members of the committee, I will read it. It is written to Mr.Wappel and reads:

Thank you for your invitation to appear of the Standing Joint Committee for the Scrutiny of Regulations regarding the Aboriginal Communal Fishing Licences Regulations.

I appreciate the interest of the committee members in the above noted regulations. I look forward to the opportunity to meet with you, however, I am unable to attend the February21, 2002 meeting. Consequently, I have asked my officials to work with the committee clerks to determine an appropriate date for my appearance.

A similar letter has been sent to your colleagues under separate cover. Once again, I thank you for your invitation.

The letter is signed by the minister.

The minister could not appear, and the clerks of the committee will follow up with the minister's staff so that it can be arranged as early as possible for the minister to appear here.

Mr. Cummins: The motion was that the committee would attempt to get the minister here within three weeks. The fact is that having a minister appear before a committee on a matter of disallowance has not been the practice of the committee. The only connection I can find between a minister appearing on a matter of disallowance is back in 1987, March 10, and the issue was fruit, vegetables and honey regulations. In fact, the disallowance was tabled in the House prior to the minister coming here. It was the minister of state for privatization, who was responsible for regulatory affairs. She appeared before the committee to discuss regulatory matters.

However, it is novel, if you will, to have a minister come before the committee on a matter of disallowance. The committee has found the regulations to be illegal, inappropriate and an abuse of the minister's power. What is hoped to be gained by having the minister before the committee is beyond me, but it seems to me that the matter should be dealt with. A disallowance report has been prepared. The committee concurs with the notion that these regulations are not appropriate, and it should simply move ahead with the disallowance report. To do otherwise is simply feet-dragging.

The Joint Chairman (Mr. Grewal): Your point of order is well understood. There is an interest from all the members of the committee that the minister appears before the committee as soon as possible.

Two weeks have passed since that motion was tabled, and we have still one more week. In the meantime, we are trying to get the minister to appear before the committee. There is a problem with scheduling due to a change in the calendar. The Senate is not sitting, and our schedule has also changed for one week. We have one week remaining for the minister to indicate when he can appear before the committee.

Mr. Cummins: With all due respect, the Senate is not sitting next week. There is a document entitled ``Background Notes on Parliamentary Scrutiny of Regulations.'' In that document, it explains the procedures the committee follows when reviewing regulations, including the use of the disallowance power. The document does not mention ministers appearing before the committee as part of the committee's normal procedure. It is not there.

The committee decided five years ago, in 1997, that these regulations were inappropriate. We have had about three or four ministers since that time, and it is high time that the committee moved on the matter. If the minister cannot appear before the committee in the time that the committee agreed, namely, within the three weeks, then we should simply move on this disallowance, vote on this matter and get it before the House. Enough of the feet-dragging. Let us get on with the job.

The Joint Chairman (Mr. Grewal): All members of the committee want this issue to be resolved as soon as possible. The staff of the committee, the joint chairmen, all of us are working with the ministry to have the minister appear, and we will deal with the issue. However, as dealing with this issue is not on the agenda today, we will deal with it as soon as possible. We will move on to the agenda.

Mr. Cummins: When will the report be considered, Mr. Chairman?

The Joint Chairman (Mr. Grewal): I do not have any specific time, Mr. Cummins. I do not know myself. Since negotiations are ongoing to find a suitable time as early as possible for the minister to appear before the committee, we will resolve to that.

Mr. Cummins: The motion was to table this matter for three weeks.

The Joint Chairman (Mr. Grewal): So far, two weeks have passed.

Mr. Cummins: The three-week time period will be up one week from now, and our friends from the Senate will not be here. When will you deal with it?

The Joint Chairman (Mr. Grewal): Two weeks have passed, and we still have one week. We will try to arrange that, Mr.Cummins. The intent of the committee was for the minister to appear within two weeks, which is today, instead of within three weeks, but the minister could not make it. We are trying our best to do have him appear before the committee as soon as possible.

Mr. Cummins: Bringing a new minister in on this issue is highly irregular. It is irregular to bring a minister here in any case. The motion was to table the matter for three weeks. Next week three weeks is up. The Senate is not here. What will you do with it? The agreement was not to table it forever. It was a three-week tabling. When will you bring it back?

Mr. Wappel: First, I do not know what the minister's schedule is, but he certainly cannot be blamed for the schedule of the Senate. The minister has indicated a willingness to attend. It is simply a matter of working out an appropriate time.

As to the irregularity of bringing a minister to the committee, I remind committee members that, notwithstanding that this committee found the RCMP regulations to be unconstitutional, we, in fact, brought the Solicitor General before our committee numerous times to deal with the regulations that we knew to be unconstitutional and that were subsequently confirmed by a court to be unconstitutional. Yet, we did give the ministers the time to deal with it through their own departments. In fact, we went through three separate Solicitors General, all of them appearing before this committee, all of them agreeing with us and working with us before we came to the appropriate solution that protected the constitutional rights of RCMP officers.

Mr.Cummins question is: When will we deal with this? The answer should be fairly clear. It would be easy for us to put this matter at the top of the agenda at the next meeting and see if the minister will be here. If the minister is not here, and Mr.Cummins wishes to move a motion, that will be dealt with.

I presume that our next meeting will be when next the Senate and House coincide in their sittings. The matter is not being put off forever. The matter is being put off until the next regularly scheduled meeting.

The Joint Chairman (Mr. Grewal): As the decision of committee members on this important issue does not hinge only on the appearance of the minister, we have other options. However, I will direct the staff of the committee to look into the issue. Either we put it on the agenda, since the minister is willing to appear before the committee, or the wisdom of committee members will prevail and we will deal with the matter in another way.

The next committee meeting is scheduled for March 14. That is the end of the discussion on this point of order. Let us move on.

Mr. Pankiw: I have a point of clarification. Perhaps the clerk can answer it. There was a motion at the last committee to table this matter for three weeks. If the three weeks expires, what happens procedurally?

The Joint Chairman (Senator Hervieux-Payette): The normal procedure is to schedule these items for the next regularly scheduled meeting.

On a point of clarification, the Senate is not sitting at the same time as the House. Both Houses are now working to ensure that we have the same agenda next year. This is an unusual situation. This has never happened before in my seven years. This is a coincidence.

Normally, we would have a meeting in two-weeks' time. The management of both Houses not being done with the same scheduling has caused the delay. In the Senate, there are probably fewer parents with children going to school, and there is a school break. I think it was to accommodate the House that the agenda was changed.

The Joint Chairman (Mr. Grewal): For the sake of information to the members, this committee has looked into meeting on other days this week, either Tuesday, Wednesday or Thursday, which is today, if the minister had been able to appear. We were flexible in trying to accommodate the schedule of the minister. Having said that, as the joint chair said, we will look into it at the next meeting.

Mr. Pankiw: I understand and appreciate, Madam Chair, that these scheduling issues are no one's fault.

As Mr.Wappel said, I am sure the minister has a busy schedule, and if he could not be here today, so be it.

However, at the same time, on a procedural matter, there was a motion to table the matter for three weeks. My question is, procedurally, if the three weeks expires, where are we? Are motions to table something for a specific period of time just feel-good motions that do not mean anything?

The Joint Chairman (Mr. Grewal): The short answer, Mr.Pankiw, could be that the motion would have a time limit of three weeks. The committee is sitting within two weeks. Naturally, if the motion expires and nothing happens, then committee members could deal with the matter at the next meeting.

At this moment, the three weeks are not over, and when the three weeks are over, at the first opportunity, the committee will deal with the issue. Nothing else can be done. If any member has any better solution, I should like to hear it.

Mr. Pankiw: Fair enough. However, I will state that time is very important to people who are discriminated against by these regulations. I do not think it would sit well with fishermen who are denied their rights.

The Joint Chairman (Mr. Grewal): We are not debating the repercussions. We are debating the procedure. Since the two weeks are now over and we still have one week left, this issue will be dealt with at the next meeting of the committee.

Mr. Pankiw: Fair enough. I just wish to make the point that that probably does not sit well with fishermen who are discriminated against on the basis of race.

Mr. Cummins: I wish to know what the committee hopes to accomplish by having the minister here? It is highly irregular. The committee dealt with the matter five years ago. I am still not sure why we are not moving on this issue.

The Joint Chairman (Mr. Grewal): We dealt with that issue at the last meeting. That is why the motion was tabled in the House and all of us agreed.

Why do we not continue the debate at the next meeting when the issue is on the agenda? The issue is not now on the agenda. Let us move on with the agenda.

Mr. Pankiw: Hold on. Mr.Cummins has a good point. Perhaps a way to resolve this would be for us to move and pass a motion to go ahead and refer the report to the House of Commons. The minister can still appear. He would not be precluded from doing so, but at least we are moving the issue along.

Perhaps Mr.Cummins can answer this question: What is the time line of the commercial salmon fishing season? We have a responsibility to fishermen here.

The Joint Chairman (Mr. Grewal): Mr.Cummins, quickly answer this comment and then we can to move on to the agenda.

Mr. Cummins: The matter is of some consequence. The next meeting is not until March 14. It so happens that on March14 the Fisheries Committee will be travelling.

I think that we should be dealing with this matter. It was tabled for three weeks. If we are not able to deal with it in an appropriate period of time, then at the least we must have a motion to deal with the tabling problem. My view is that we should simply send the matter to the House.

The Joint Chairman (Mr. Grewal): Thank you for your comments. We will direct the staff of the committee to look into this and we will deal with this issue as soon as possible.

Mr. Pankiw: I do not think you can just move on here.

Senator Wiebe: I am not a regular member of this committee in that I am here today as a substitute for someone else. I am not a lawyer; I happen it be a farmer. We are dealing with a tabled motion. It does not take a rocket scientist to understand that when a motion is tabled, it is not discussed, period, until that time frame is up. This motion will not come up for another week, which means that we are all out of order by even discussing it here this morning.

We have now spent 58 minutes and we have yet to deal with one regulation.

Mr. Dromisky: Hear, hear.

Senator Wiebe: The people of Canada deserve more from us than this. Let us move on.

Mr. Pankiw: I think fishermen who are discriminated against based on race deserve more than this as well.

The Joint Chairman (Mr. Grewal): We have had enough discussion on this matter. Nothing can be done on this issue at the moment.

C.R.C. c. 1325 — PUBLIC LANDS MINERAL REGULATIONS

Mr. François-R. Bernier, General Counsel to the Committee: Honourable members, in the fall of 1996, the joint chairmen tabled the third report of the joint committee, Report No. 59.

In that report, the committee reported the existence of regulations that were not enacted in both official languages as required by section 133 of the Constitution Act, 1867. Any regulation not enacted in both English and French is, of course, unconstitutional.

For the reasons stated in the chairmen's letter of December 1997, the committee considered the government's response to that report to be unsatisfactory and set out four specific questions for the Minister of Justice.

In her reply of December20, 1999, the minister did not provide a reply to those four questions but did indicate that she had instructed her officials to further study the issues raised by the committee and ``suggest ways to remove any uncertainties regarding the validity of federal regulations or other legislative instruments which are still in force today.''

Given this indication that some progress could be made in terms of a substantive solution, the committee decided to overlook the fact that no reply was made to its specific questions.

Subsequent letters to the minister seeking a progress report on those initiatives were not responded to. At its last meeting, the committee decided that in the absence of any progress report, the minister should be requested to appear before the committee in order to provide answers to the specific questions set out in the December1997 letter. That letter was sent on January2 and the new minister replied on February8.

In that letter, the minister indicates that his officials have in fact prepared a recommendation for him and that he is confident the matter can be resolved in the very near future. For that reason, he declines the invitation to appear before the committee as it would not, in his words, ``be a sensible use of the committee's time.''

I tend to the view that in all the circumstances this response is less than satisfactory. There is a complete lack of information in the minister's letter as to the nature of the solution envisaged by the minister and his department. I would think that after all these years, given the patience shown by the committee, the minister would at least provide a clear description of the solution envisaged. I would also expect that, at the very least, the minister would have given some sort of timetable to the committee instead of the ``in the near future'' reference.

Mr. Wappel: When I read this letter, I thought that perhaps this was one of the first letters of the new minister. I do not view it as particularly egregious. I suggest that we write back to the minister saying, in response to the request for a little more time, that we have decided when that time will expire and that we expect him either to appear at that time or to give us the resolution that he proposes in writing. He has requested ``a little more time.'' It is up to the committee to define what ``a little more time'' means. Presumably, we have only two meetings in March, and I gather that we would want to deal with the matter at one of those two meetings.

The Joint Chairman (Mr. Grewal): I agree with Mr.Wappel. I think we should write a letter to the minister.

Senator Moore: To provide some information in connection with the timing of what we do, the Senate will not be sitting the first two weeks of April. We will be sitting all of March, but not the first two weeks of April. If there is any thought of dealing with the matter at that time, the Senate will not be sitting.

Mr. Bernier: In relation to Senator Moore's comment, we had a regular meeting scheduled for April 11. Are you saying that this meeting will not take place?

Senator Moore: Yes.

The Joint Chairman (Mr. Grewal): We can look at the sitting schedules and adjust the meetings accordingly.

Senator Bryden: Just so this question of scheduling is understood, the Senate was scheduled to recess at the same time as the House of Commons, the last week of March and the first week of April. However, due to the fact that we will not likely get the budget implementation bill until the last week of March, we have to sit that week in order to meet the deadline. Therefore, we will be off two weeks in April rather than the last week of March and the first week of April.

Mr. Bernier: Would it be agreeable to the committee to fix the date of May9? That would give the minister three months, which is the normal chase-up period on a letter. I take it that Mr.Wappel's proposal is that a letter be sent to the minister asking him to provide details on what he proposes to do by May9, and that otherwise the committee would like to hear from him in person on that date.

The Joint Chairman (Senator Hervieux-Payette): We would like to hear in writing earlier or in person on that date, giving him the option.

Mr. Bernier: Essentially, the committee is seeking the appearance of the minister for May9, with an option to avoid the appearance by providing information at any time before May9.

The Joint Chairman (Mr. Grewal): Is that agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989

(For text of documents, see Appendix, p.12A:1)

Mr. Peter Bernhardt, Counsel to the Committee: Section 36(2) of the Ontario Fishery Regulations, 1989, provides that no holder of a commercial fishing licence shall violate any of the terms or conditions of the licence. In effect, this regulatory provision is intended to do indirectly what could not be done directly. It is an offence under the Fisheries Act to contravene the act or its regulations, but of course a term or condition of a licence is not a provision of the act or the regulations. The purpose of section36(2) is to make the contravention of the term or condition of a licence an offence under the Fisheries Act.

In its Report No. 66, the committee pointed out that regulations imposing sanctions or creating offences must be authorized either expressly or by necessary implication. In the view of the committee, such authority was lacking in the Fisheries Act, and it was therefore concluded that section 36(2) was unlawful.

In addition, the committee took the view that this provision trespasses unduly on rights and liberties, and makes an unexpected and unusual use of the regulation-making powers conferred by the Fisheries Act. The committee recommended that if such a provision is considered necessary for the proper management of the fisheries, Parliament should be asked to amend the act to establish the offence of contravening the terms or conditions of a licence.

The government's response to that report was found by members to be lacking in comprehensiveness. The minister was requested to furnish a more detailed reply. That reply was provided by the minister in his letter of September12, 2001.

Members have a fairly extensive note in the materials this morning. As that note suggests, much of the minister's September12 letter is a restatement of arguments that were previously put forward, that had been considered by the committee and that were rejected in Report No. 66. There is, however, one significant new aspect, and that is the reliance on the decisions of the Federal Court in the Barnett case.

Pages 2 to 5 of the note set out an analysis of Barnett, focusing on its value as a precedent and the ways in which the circumstances in Barnett could be seen to differ from those covered by section 36(2) of the Ontario Fishery Regulations.

The note does suggest, however, that even setting aside the question of legality, the general principle underlying the committee's position remains sound. One would generally expect that criminal sanctions attach only to contraventions of requirements that have been established by legislation. A licence is an administrative document, not legislation.

This then means that the terms and conditions attached to the licence will be imposed on an individual, case-by-case basis by the official who issues the licence. It is difficult to accept that the requirements a citizen must obey upon paying a fine or imprisonment should be determined by a single official who decides what will or will not be set out in the terms and conditions of a particular licence.

I suggest that if non-compliance with terms and conditions of licences is to give rise to punishments such as fines and imprisonment, then this should be provided for by Parliament itself. In fact, the note identifies a number of provisions in various statutes where Parliament has done exactly that.

In a sense, the government can be seen to have tacitly accepted the principle. In the response to the report, the committee was advised that although the government is still of the view that the provision was lawful, an amendment to the Fisheries Act would be put forward ``at the very next opportunity, pending the completion of the comprehensive policy reviews currently under way.''

The committee could write again to the minister indicating that it remains of the view that section 36(2) trespasses unduly on rights and liberties, and makes an unusual and unexpected use of the powers conferred by the act regardless of issues of legality. If the provision is necessary, Parliament should be asked to amend the act to provide for this offence itself.

The minister could then perhaps be asked to provide a more definitive forecast as to when this might be done. As an alternative, the committee could make its position known in a followup report in which it could seek the government's express recognition of the principle. I suppose there are at least those two options available.

Mr. Wappel: Are the two suggestions in the last paragraph mutually exclusive?

Mr. Bernhardt: No.

Mr. Wappel: Why do we not do both?

Mr. Bernier: That is a third possibility, then.

Mr. Wappel: We can then deal with the minister and also the principle at the same time.

Mr. Bernhardt: Sure.

The Joint Chairman (Senator Hervieux-Payette): Is it agreed?

Mr. Cummins: I am sorry that I have not had time to spend more time on this matter, but the whole issueof these communal licences is one that is under review in the courts now. There is one issue that is not addressed in this copy, namely the notion of the public right to fish and how that impacts these Aboriginal communal fishing licences. I know that is not an issue that this committee has addressed, but it is nevertheless one that the Supreme Court of Canada addressed in a 1996 decision. The court said:

...it has been unquestioned law since the Magna Carta, no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation.

That is exactly what these Aboriginal communal licences do. They infringe on the public right. That right has been recognized in this statement of the Supreme Court of Canada. It is at issue in many disputes in the courts of this country.

The Joint Chairman (Senator Hervieux-Payette): I understand. You discussed the substance. We had suggestions by counsel that we would make the point with the minister and ask him to appear. This will give you time to prepare for the next meeting to discuss it with him. I do not think that was the intention today. The intention is to deal with the suggestion of the counsel as to how we will go further with this question.

Mr. Cummins: One of the duties of the committee is to review regulations with respect to their effects on rights and freedoms. I am suggesting that before the matter is heard again by the committee, that counsel for the committee may want to look at these regulations with that notion in mind. You might consider the Supreme Court of Canada decision in R. v. Gladstone, R. v. N.T.C. Smokehouse, or R. v. Van der Peet. There are three of them.

You might also want to consider the Yarmirr decision of the Australian Supreme Court, issued October 2001, which again reflects on public right. I believe it is impacted here.

You might even want take a look at Justinian law because the matter of public right goes all the way back in history. When dealing with Aboriginal licences, these things should be considered.

The Joint Chairman (Senator Hervieux-Payette): The role of this committee is not just to look at how the regulations conform to the specific legislation but how it conforms to the whole legal framework in Canada.

Mr. Cummins: Exactly.

The Joint Chairman (Senator Hervieux-Payette): Do not worry. This question will be handled by our qualified counsel. We always look at these issues in the global perspective. If members agree, we will proceed as suggested.

Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.

The next item on our agenda is SOR/89-127.

SOR/89-127 — FOOD AND DRUG REGULATIONS, AMENDMENT

Mr. Bernhardt: The provision in question permits rum from Commonwealth Caribbean countries to be imported into Canada in bulk, blended and bottled with small percentages of Canadian rum under licence and then sold as Caribbean rum. The stated purpose of this provision was to promote international trade and economic development in the Caribbean.

The committee has concluded that as the regulation-making powers conferred by the Food and Drugs Act were not meant to be used for the purpose of promoting or regulating international trade or trade in economic development strategies, the provision in question is ultra vires. The government first accepted the doubtful legality of the provision in Januaryof 1991. In September of 1992, the committee was advised that the section would be revoked.

Since then, numerous delays have been encountered. These are described in the file summary that members have before them this morning. At one time the matter was to be addressed in the course of the review of the Excise Act, together with amendments to the Importation of Intoxicating Liquors Act. Most recently the committee has been asked to defer any action pending a possible free trade agreement between Canada and the Caribbean community. The Minister of International Trade has indicated that such an agreement could be negotiated in 2002.

The question for the committee, then, is where the file goes from here. If the committee wishes to continue to be patient, the minister could simply be asked where these free trade negotiations stand at the present time. On the other hand, members may wish to consider whether to report to both Houses on the failure to resolve a problem that was acknowledged more than a decade ago.

The Joint Chairman (Senator Hervieux-Payette): Do you have any recommendations?

Mr. Bernhardt: I am in members' hands on this issue. It comes down to a question of whether members are in a patient mood this morning or whether they wish to do something.

The Joint Chairman (Mr. Grewal): It is a regular problem with the committee that sometimes we have to be so patient our patience is already gone.

Since the committee agreed that in 1992 this issue could have been resolved, we are back to square one nine years later. Should we be patient or not? What should we do?

At future meetings, I think we need to deal with this kind of issue that, after nine or ten years we are back to square one. I do not know how to deal with it, but this is a chronic problem in the committee with many issues. Either at steering committee or somewhere else, we must deal with the speed with which these issues are dealt with.

The Joint Chairman (Senator Hervieux-Payette): Perhaps I should make a comment since I am very much involved with the Inter-Parliamentary Forum of the Americas and I do meet a lot with the parliamentarians of these countries. We are having a meeting next month.

I am tempted to say that we should be patient. The whole process of negotiations of the FTAA is moving along effectively.

We must understand that these jurisdictions do not necessarily have the resources that we have. When I say ``resources,'' I mean in terms of dealing with these matters and in terms of having seen, after September11, their economies shaken up dramatically by the drop in tourism, which hurt the local Caribbean population. They do not have many products to sell to the other members of the Americas.

As a parliamentarian dealing with parliamentarians in other countries and looking at the situation, I would be tempted to say let us be patient. I do not see why we should hammer a regulation in this case for the sake of being politically correct. I do not mind being a little politically incorrect and allowing regulations to be not strictly applied when the cause is much beyond the regulation. I should probably not say that, but since I have a big stake in helping these countries join the club of countries that have a good economic situation, and I intend to devote my time to that cause for many years, I plead with my colleagues to be tolerant with this delay.

Mr. Wappel: I wish to address what the other joint chair said. This file reveals a systemic problem in the bureaucracy, which is why it keeps coming back to us. Quite often regulations are used to implement policy by the bureaucracy that would be just too much of a hassle to get through the House of Commons and the Senate. The bureaucracy then gets around the hassle of dealing with public officials by trying to do in regulations what they would otherwise want to do in the public arena.

There cannot be any question that promoting international trade has absolutely nothing to do with food and drugs. Clearly, the bureaucracy was using an act that has nothing to do with international trade to promote a worthy objective. However, that is not the purpose of regulations.

I hear what the joint chair is saying, but I want to address what the other joint chair was saying because we have seen on many occasions where the bureaucracy uses regulations because it is too much trouble to go through the political process. For the past 12 years, the bureaucracy has come up with every excuse under the sun to this committee until the policy goes through. This is a brilliant strategy because the bureaucracy is always here, but we are not. Politicians come and go, senators live and die, but they are always here. Eventually, the bureaucrats get their way. I am willing to listen to what the joint chair pleaded, but I wanted to address Mr. Grewal's point.

Mr. Pankiw: I support in the strongest possible way what Mr.Wappel has said. He is right. The need for regulatory reform is past due. The need to reform the regulation-making process to make it more accountable cannot be understated. Mr.Wappel is right. Policy that should be brought through the front door is being brought through the back door.

I realize that perhaps we are overwhelmed by motions, so I will not make any motion on this respect. However, I hope that the spirit of what Mr.Wappel said is clearly understood and that action is taken to correct this problem.

The Joint Chairman (Senator Hervieux-Payette): Would you recommend that we write again to the minister and ask him when he will take action? The agenda for the summer is 2005. For me, it is not next week.

Mr. Pankiw: With respect to the specific item we are dealing with, yes, but with the understanding that this type of thing is clearly unacceptable.

The Joint Chairman (Senator Hervieux-Payette): Even with what I said previously regarding the disallowing or not disallowing regulations, I have no difficulty with the question of the committee using proper tools to deal with these matters in a proper way. Of course, it is not regulation. It is legislation. I agree with you.

We can write to the minister and ask him when he intends to modify the legislation to ensure that his regulation is in conformity with the law. I have no problem with that. That is the raison d'être of our existence. Nor do I have a problem asking for the time frame with regard to these irregular regulations.

If you agree, we have a capable person to draft a letter. The joint chair will consult with me in accordance with what I am outlining and your comments.

Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.

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

The Joint Chairman (Senator Hervieux-Payette): The next item is SOR/90-218, the Fresh Fruit and Vegetable Regulations.

Mr. Bernier: Madam Chair, this file gives rise to a rather important issue of parliamentary practice in relation to disallowance.

On May17, 2001, the Joint Chairman for the House of Commons tabled the second report of the committee in that house in accordance with Standing Order 123. That report included a resolution that section 58 of the fresh fruit and vegetable regulations be revoked.

The disallowance resolution of the joint committee was deemed adopted by the House of Commons on October3, 2001. As of that date, the resolution must be considered to be an order of the House of Commons directed to cabinet that section 58 be revoked.

As of February13, or some four and a half months after the issue of the order of the house, section 58 has not been revoked. The reason for this non-compliance with the House order is that the revocation and replacement of that section was then included, along with similar amendments to other regulations, in a package of proposed amendments that was pre-published in Part I of the Canada Gazette on November10. There was a 30-day comment period for those proposed amendments, and they are presumably now following the ordinary regulation-making process.

This is very much the problem here. The fact is that a disallowance order, in compliance with a disallowance order, should not be dealt with as part of the ordinary regulation-making process, but it ought to be a matter of priority.

Disallowance has nothing to do with the ordinary regulation-making process. Otherwise, one can envision a situation in which the House orders the disallowance of an instrument only to have the government state that the revocation will be included in some next revision of the regulations or following some policy review, for example, something with which this committee is very familiar. That would clearly be unacceptable. Regulation-making authority should not have the faculty of complying with an order of the House of Commons at its convenience. Compliance should be nearly immediate.

This point needs to be made so that the approach taken here for the first time is not repeated. There is probably more than one way to make the point. In a way, it involves the enforcement of the Standing Orders of the House of Commons so that a point of order could be the route to go or a question of privilege. Given that it is also a procedure that is initiated in this committee, presumably a report of the committee could be used to make the point.

Finally, there is also the possibility of simply writing a letter, which would presumably be addressed to the President of the Privy Council because it is a matter that concerns all ministries. In the letter, the committee would seek an assurance that its understanding of how an order of the House should be dealt with is shared by the government.

Those are the three possibilities if the committee agrees that, in this case, this is half a problem in the sense that the revocation is under way. However, the way in which it is being done gives rise to serious concerns in terms of the disallowance procedure.

Senator Bryden: I think that this procedure must be nipped in the bud and that action should be taken. It also is appropriate that action be taken in a manner in which an agency can inform all departments and their regulatory people that an order of this committee is not treated in the same matter as the clean up of regulations.

We tend to think of a letter as something that is less important than an order, but a letter to the Privy Council Office to be brought to the attention of all departments probably should do the trick.

Mr. Wappel: I agree with the senator.

By memorandum dated February4, 2002, counsel sent around to all members of the committee a memorandum dealing with the disallowance procedure. I found it very helpful but also very troubling, not because there are no page numbers, the result of which being that I cannot refer to a specific page so members can turn to it. I want to state specifically what the memorandum says about disallowance. It states that:

Should the appropriate authority neglect or refuse to comply with a disallowance order, it would be open to the House to treat the failure to comply with the order as involving a contempt of the House. While the House could deal with the matter as one of contempt, there are no other legal sanctions or consequences that arise from a failure to comply with a disallowance order. As a matter of law, an order of the House of Commons that a particular regulation be revoked is not binding on the author of the regulation and it cannot be enforced by a court of justice.

That is an extremely troubling statement of the current law. Following along with what Mr.Pankiw said, I think it should be the subject matter of regulatory reform. Perhaps we can discuss this at the steering committee, but there should be some way of bringing this issue to the attention of the Procedure and House Affairs Committee so that they can look at it with a view to amending the rules. If the statement that I have just read is accurate, then any disallowance report we issue can be ignored, provided that a motion for contempt can be defeated.

Mr. Bernier: That is correct.

Mr. Wappel: That is, in effect, double contempt of the House.

Mr. Bernier: The solution is simple, Mr.Wappel. This will be the case and this will remain an accurate statement of the law as long as the disallowance procedure does not have a statutory basis.

Mr. Wappel: Precisely.

Mr. Bernier: The way to correct this situation is for Parliament to provide a statutory basis for the current disallowance procedure.

The Joint Chairman (Mr. Grewal): I agree with the senator and with Mr.Wappel. This issue is extremely important. It brings attention to the important issue of the disallowance procedure to be put on a statutory footing. If we list the different elements of regulatory reform, the disallowance procedure is probably at the top of the list.

In this instance, the suggestion is that we write to the Privy Council in general. This involves a point of privilege in the House that should be raised on this contempt of Parliament, as counsel suggested.

Mr. Bernier: It is in the hands of the committee.

Mr. Pankiw: We could do that, but what we really want is to have this system changed and perhaps have a report.

Mr.Bernier, that was one of your suggestions. I am not sure if you are suggesting that the Procedure and House Affairs Committee receive that report or that it be tabled in the House. Clearly, we should take the most direct route toward pushing for having a statutory footing to the disallowance procedure implemented.

As an aside, Mr.Chair, you said that this should be at the top of the list for regulatory reform. I do not know about that. Regulations should come before the relevant committee before they are implemented so that they can be scrutinized before they ever become law. Regulations attached to a new piece of legislation should be attached as part of the legislative process. I do not know if a statutory disallowance procedure should be at the top of the list because there are other important matters.

Mr. Bernier, with respect to how we most effectively advance the cause of a statutory footing for disallowance, how would you suggest we ought to proceed?

Mr. Bernier: I am in the hands of the committee. I have given the committee three options. I have heard the senator suggest a letter; Mr.Wappel mentioned a report. Perhaps we can marry those two and draft a letter. The President of the Privy Council could reply in a way that is satisfactory to the committee. There is nothing to prevent the committee from then reporting its satisfaction to the House so that a public record is created beyond this committee. If the committee, however, is not satisfied with the reply from the President of the Privy Council, then it would report that to the House. In that report, it would be open to the committeeto suggest that some other committee of the House look into the matter at that stage, which would be the Procedure and House Affairs Committee. It is a two-step process. The committee can start with a letter to the President of the Privy Council, as the senator suggested, with the understanding that this will move into a report, either expressing agreement with the President of the Privy Council or disagreement.

Mr. Pankiw: I am prepared to go along with that. I do not know that we need to be as dramatic as making a point of privilege. At the same time— and I hope my colleagues agree— I do not think this committee should be in a mood for foot-dragging on this matter. If we are to go the route of a more subtle letter leading to a report, it should be with the clear understanding that we want a prompt response because we are moving quickly on this issue.

The Joint Chairman (Senator Hervieux-Payette): In the letter that we will send, we can tell them the next step so that they understand that unless they take it into consideration seriously and move on it, we have an alternative. We should state that alternative in the letter so that there will be no surprises. It is not a matter of saying that if they do not answer, we will do nothing. We are saying that if they do not answer satisfactorily, we will act upon it.

Mr. Pankiw: It should be made very clear in the letter that if we do not receive a response by this deadline, we will move forward. This should be a tersely worded letter because this is a serious problem that, quite frankly, the President of the Privy Council should be aware of and should have already acted upon.

The Joint Chairman (Senator Hervieux-Payette): Do not worry. Usually we are specific and are letters are not wishy- washy. We have good counsel who go to the point by stating the facts and arriving at a specific conclusion.

The Joint Chairman (Mr. Grewal): I am not clear on what we could do next. We have done the last step, which is a disallowance. If they are not complying with it, as Mr.Pankiw said, we will give them a specific date and then do the next step. What is the next step? There is no next step after the disallowance.

Mr. Pankiw: There are next steps. We could either decide it now or at the time of the passing of the deadline of our request for a response, which should be in no less than 30 days. Whether we decide now or later, our decision can involve a point of privilege or a report or a combination of the two.

I am expressing a sentiment that is unquestionably shared by members of the committee, namely, that this is a joke. They are making a mockery of this committee by ignoring it.

Senator Bryden: The fact is, however, that that is not happening. They will do what we asked, but they are doing it in the normal course of their revisions. They have said, ``We will do what you have said, but we will do it a month later.'' It is not a question of the request being ignored at this stage. The problem is that they are following the wrong procedure to accomplish what we have asked. We want to instruct them not to do that anymore and to use this procedure.

Mr. Bernier: The senator is right.

Mr. Pankiw: No, it is more than that. The procedure now allows them to ignore the order if they so choose.

Senator Bryden: Yes, but that is a bigger issue.

Mr. Pankiw: It is a big issue.

Mr. Bernier: It cannot be said that the order of the House for disallowance of section 58 of these regulations is being ignored. It is contained in these proposed amendments. I would imagine that as soon as a letter arrives from the committee to the President of Privy Council, it will be promptly adopted by the special committee of the council. The comment period is over. The revocation that the House of Commons ordered will take place. I presented it as a problem of parliamentary practice because I am looking to the future. If, in this case, it is considered to be acceptable as a procedure to include this revocation amongst the various other recommendations they are making, I can clearly envisage a situation in which the committee would receive a letter to the effect that, ``We are doing an overhaul of these regulations, and we will include that disallowance whenever we get to it.'' The senator put it quite well. He said that the committee must nip that practice in the bud right now. The concern is not so much with section 58. I expect that will be done within another month. It is with a view to the future and ensuring that there is no divergence from the disallowance. It should be treated with urgency. A disallowance order is to be obeyed. It is an order of the House, and it should not just be thrown in as part of some amendment package to be dealt with whenever there is time.

Mr. Pankiw: Well said.

Mr. Cummins: My understanding is that the disallowance does not have standing in law, but it has standing in the orders of the House. Is that correct?

Mr. Bernier: That is correct.

Mr. Cummins: The consequence, then, of violating the standing orders of the House is what?

The Joint Chairman (Mr. Grewal): Contempt of the House.

Mr. Bernier: If a disallowance order of the House is not obeyed, it is not so much a standing order; it is the order of the House. An order of the House is directedat other members of the House because the House cannot order people outside its jurisdiction. That is to say, it cannot order an ordinary citizen to do anything. It can order its own members, which is why this order is directed at cabinet, most of whom sit in the House of Commons. Disobedience to a legitimate order of the House of Commons is considered a contempt in parliamentary law and is treated as such. It must be raised and dealt with by the House as possible contempt of the House. I would assume that, since it is a disallowance order of the House, the House would assume that the disallowance order is a legitimate order because it is based on its own standing orders. It is dealt with as contempt and the sanction in a political matter, not a legal matter.

The Joint Chairman (Senator Hervieux-Payette): In this case, the order has almost been obeyed but not totally obeyed. The old regulations that we were not satisfied with are not there anymore and new ones are to be in place. It is a question of sending a letter to indicate that they must comply in the proper manner in the future. It is not new that we have to educate people within the technical apparatus about how to proceed with the parliamentary process.

Mr. Pankiw: It is a bit more than that, though. As Mr.Bernier says, currently it becomes a political matter, not a legal matter. The point of the committee members is that it ought to be a legal matter. We should try to push the right buttons to get that proper change made.

Mr. Wappel: To follow up on Mr.Cummins's point, Mr.Bernier already said that if there were a statutory basis for the disallowance procedure, then it would no longer be in the political realm. That is to say, it would be against the law to disobey an order of the House, and then it could extend to any citizen of Canada, not just, for example, one of the commissions that we cannot touch now because they are removed from us, for example, marketing boards. If it were on a statutory basis, then they would have to obey the House order. That is a further argument for trying to entrench the disallowance procedure in a statutory way.

Mr. Bernier: To add to that, there would not even be a need for the phrase ``obey an order.'' By statute, Parliament would provide directly that once the House orders disallowance, it is automatic. There would be no question of a regulation-making authority actually effecting the revocation pursuant to an order. If the House adopted a disallowance, the regulation would or could be deemed to be automatically revoked. That would solve this whole question of compliance.

Mr. Pankiw: Not only that, Mr.Bernier, but it would resolve the chronic problem that this committee faces: These issues can drag on for decades. This committee would be taken much more seriously. When we write a minister's office and say that a certain regulation is ultra vires the act, that should be taken seriously and better attention should be paid to us.

The Joint Chairman (Senator Hervieux-Payette): I agree with you, Mr.Pankiw. However, I want to remind you that last summer we were ready to attend an international conference where we would exchange a lot on this process and learn a lot from our colleagues. Your party refused permission to attend. We have very little time, given the agenda of this committee, to study the process and the procedures. My colleague Mr. Grewal and I have attended these meetings. That is where we have learned what we are doing best and what the others are doing better and how we can evolve with the process. This is a technical matter and it is good to exchange information. I hope that the next time we want to address this question a more in-depth manner that you will not oppose those members who have the knowledge and the interest to delve deeper and then report to our colleagues on the best process to have an efficient regulatory system.

Mr. Pankiw: Thank you for raising that point, Madam Chair. For the record, however, your comments are inaccurate. Not only did I not oppose that, I was the chair of this committee at the time. I facilitated our discussions and I supported members of the committee going to that convention. It was not my party that refused; it was the Canadian Alliance. Let's get that straight.

The Joint Chairman (Mr. Grewal): No, no! That is not accurate. It was not us.

The Joint Chairman (Senator Hervieux-Payette): Is it agreed that we send a letter to the Privy Council in this particular case?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.

Next is SOR/92-271, the Fertilizers Regulations, amendment.

SOR/92-271 — FERTILIZERS REGULATIONS, AMENDMENT

(For text of documents, see Appendix, p. 12B:1)

Mr. Bernier: The reply is entirely satisfactory to a file that was initiated in 1994. The minister agrees with the committee and will revoke the ultra vires provision. It will be followed up and monitored in the usual way.

The Joint Chairman (Senator Hervieux-Payette): It is agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.

[Translation]

SOR/97-302—REGULATIONS AMENDING THE MAPLE PRODUCTS REGULATIONS

(For text of documents, see appendix, p. 12C:1)

Mr. Rousseau: In the matter of the above-mentioned regulations, comments were made about two sections of the regulations. Regarding subsection 13(2), the Agency promised to amend the French version of this provision. The response provided by the Agency with respect to section 14 was deemed unsatisfactory on one particular point. Currently, this provision stipulates that the Director may grant an appeal inspection of certain products. Subsection 14(3) goes on to list three instances in which the Director may refuse to grant an appeal inspection.

Counsel for the committee suggested that subsection 14(1) be amended to read that ``except in the three cases listed, the appeal shall be granted,'' meaning that a person is entitled to an appeal. The Agency dismissed our suggestion on the grounds that an appeal can be refused in cases other than the ones listed. It wanted the Director to maintain his discretionary authority. In the opinion of counsel, all cases for which an appeal can be refused should be listed in the regulations. These should stipulate ``except in those cases listed, an appeal should be granted.'' Counsel recommends that the committee write again to the Agency and explain why its response is deemed unsatisfactory.

The Joint Chairman (Senator Hervieux-Payette): Are committee members agreed that the situation needs to be rectified and the items not in compliance specified.

[English]

Mr. Wappel: I notice it is already 10:20, and I have spoken a great deal, but on this agenda item I made a note to ask why the reply is unsatisfactory. I am sorry, but I cannot understand it. The director currently has the flexibility to permit a request for an appeal inspection, and three instances are identified specifically where he may do so. However, those are not the only circumstances under which he may do so. I thought the answer given was satisfactory. That is to say, there may be other reasons the request would be denied. To redraft, as suggested by our legal counsel, would be to redraft the entire regulation to put what is now discretionary into a mandatory fashion. I do not think that was envisaged by the drafters of the regulation. That is a policy matter. I can be convinced otherwise, but I had difficulty understanding why it was under the heading ``Reply Unsatisfactory.'' Could someone help me with that?

[Translation]

Mr. Rousseau: For starters, one question that springs to mind is why only three cases should be listed, whereas in point of fact, there is no limit to the number of reasons why the Director can refuse to grant an appeal. I find it a little strange to list three cases, and then claim to be completely open.

If we want to take things a little further, on looking at the type of cases listed, one has to wonder if the kind of discretionary power awarded here serves any real purpose. For example, an appeal may be refused if the products are not accessible for inspection. Here again in this case, the Director may grant an appeal inspection, even though he may not be able to do a new inspection.

In our opinion, the discretionary authority provided for in this instance is inadequate. Why list three cases when in essence, the matter is left to the Director's discretion? Why not list all reasons for refusing an appeal?

[English]

Mr. Wappel: To answer that, counsel, you cannot put down every single reason because no one can ever contemplate every possibility. Although the common law tries to do that in contracts, we know that it does not work. If your reasoning is correct, I would have thought you would have recommended the removal of subsection (3) because it arbitrarily delineated three of many potential items and, therefore, is unnecessary.

However, you are suggesting to make it mandatory that the director must grant unless it is listed in subsection (3). In effect, you are requiring a redraft for the regulatory-making authority to try to contemplate every possibility under which a refusal could be given. That is a little too onerous for the director to do. There should be some flexibility.

I understood your point. I thought you would suggest that we should remove subsection (3). You will still have the direction and be able to refuse, but what is the point of listing 3 of 30? I agree with that. However, to then say that you must list all 30 or the director must grant is an entirely different thing than saying that he may grant, but he may refuse.

[Translation]

Mr. Rousseau: The advantage to listing various cases would be to ensure that the appeal is based on something very concrete. It would serve to clarify matters. In its correspondence, the Agency alluded to the fact that there were many reasons for appealing.

If absolutely necessary, we could list all of the cases in which an appeal would be refused. If the appeal is refused for a particular reason, and the committee is satisfied, then the point would be accepted.

Since the regulations already contain an irregularity of sorts, namely the fact that three cases are listed whereas there are many other possibilities, I would like to know just how many examples can be listed. If we have reached the limit, then maybe your suggestion is sound and paragraph 3 should simply be deleted.

[English]

Mr. Wappel: Please consider adding those points to the letter that we have already agreed to send.

Mr. Rousseau: All right.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I would just like to make a comment, given them I am embroiled in an argument with the Standing Senate Committee on Banking, Trade and Commerce about directives versus regulations. The more specific the regulations, the happier I am. I am less satisfied when government uses directives instead of regulations. Directives should not be as forceful as regulations. However, as time goes by, I have observed that government officials seem to have a penchant for short regulations, and very lengthy directives. I am far more comfortable with our having a right of review over regulations. As parliamentarians, we have no such right over directives. This is in keeping with the spirit of legislation, and the rights afforded individuals who, if these rights are violated, have recourse before the courts. To my mind, this is a fundamental issue. Therefore, the clearer the regulations, the happier I am as a parliamentarian. We will go along with the recommendation in your letter.

SOR/97-521—REGULATIONS AMENDING THE HAZARDOUS PRODUCTS (ICE HOCKEY HELMETS) REGULATIONS

(For text of documents, see appendix p. 12D:1.)

[English]

Senator Bryden: I am sorry to interrupt, but I have another meeting to attend. Will we be adjourning soon?

The Joint Chairman (Senator Hervieux-Payette): I am in the hands of the committee. We have been sitting for two hours, so I think we could postpone the balance of our agenda to the next meeting. I do not think there would be any prejudice if we left the balance for the next agenda,that is, unless we finish this first.

Mr. Wappel: Perhaps we could deal with the other item under ``Reply Unsatisfactory'' and then we could adjourn.

The Joint Chairman (Senator Hervieux-Payette): You want to deal with the regulations pertaining to ice hockey helmets?

The Joint Chairman (Mr. Grewal): Yes. We will then be finished with the items under ``Reply Unsatisfactory.''

The Joint Chairman (Senator Hervieux-Payette): All right.

[Translation]

Mr. Rousseau: In the matter of this item, the regulations in question were adopted pursuant to the Hazardous Products Act. Under section 6(1) of the Act, the Governor Council may prohibit the sale, import and advertising of a restricted product. The provision in question reads as follows:

6.(1) ... is satisfied are or are likely to be a danger to the health, or safety of the public by reason of their design, construction or contents.

Under the Act, these products are classified as restricted products. As mentioned in the note prepared for the committee, the department interprets section 6(1) as allowing the Governor in Council to prohibit a class of restricted products if he is convinced, and I quote:

That a member of the public may be in danger as a result of a hazardous product, even though another product of the same class is not hazardous.

Counsel for the committee disagrees with the department. The opinion of the Governor in Council must be based on the design, construction or contents of the products, which is far more specific than the general level of a class of products.

Furthermore, going along with the department's position means that certain products are added to the list — products that the Governor in Council is not satisfied are or are likely to be danger to the health or safety of the public. Consider the specific matter under consideration.

Pursuant to section 6 of the Act, the Governor in Council added ice hockey helmets to the list of restricted products. However, as the department wrote in its letter of June 12, 2001, and I quote:

... it moreover also concluded that some ice hockey helmets could be considered safe ...

Clearly, the Governor in Council was not convinced that all ice hockey helmets were hazardous. Moreover, pursuant to section 5(a) of the Act, he authorized the sale, import and advertising of helmets that are in compliance with the standard set out in the regulations. This approach is not in compliance with the Act.

The Governor in Council should have added to the list of restricted products only those ice hockey helmets that are not in compliance with the standard set out in the regulations. Moreover, in its letter dated September 20, 1999, the department acknowledged that it could have proceeded in this manner. On this point, we agree with the department.

In conclusion, I want to stress that this should not be construed as an attempt of some kind to limit the authority of the Governor in Council pursuant to the Hazardous Products Act. The contentious issue here is the approach chosen by the Governor in Council. However, in coming around to our way of thinking, the Governor in Council could still prohibit the sale of hazardous ice hockey helmets.

Therefore, counsel for the committee recommends that the department should be contacted again and an explanation provided as to why its response is deemed unsatisfactory.

The Joint Chairman (Senator Hervieux-Payette): Is everyone agreed?

Some Hon. Members: Agreed.

[English]

The Joint Chairman (Mr. Grewal): The next meeting is on March14.

The committee adjourned.

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