Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 1 - Evidence, March 11, 2004

OTTAWA, Thursday, March 11, 2004

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:37 a.m. for the review of Statutory Instruments.

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

[English]

The Joint Chairman (Mr. Grewal): Before we go to the agenda items, in the first meeting of this new session a motion was passed in respect of the procedural aspect of the committee — but one important motion was missed. Hence, I should like to move that either joint chair or, in accordance with the direction of the joint chairs, either joint clerk be authorized to approve payment of the expenditures of the committee.

Senator Moore: Do both joint chairs have to sign?

The Joint Chairman (Mr. Grewal): It could be either of the two joint chairs.

Senator Moore: Is that usual way to do it?

The Joint Chairman (Mr. Grewal): Yes. We had that for the last session, but we missed the motion at the first meeting of this session.

Is there a seconder for the motion?

Mr. Macklin: I second the motion.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

We will move to the first agenda items.

SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989

SOR/2002-225 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE FISHERIES ACT (MISCELLANEOUS PROGRAM)

SOR/93-332 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS

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

Counsel will brief the committee, please.

Mr. François-R. Bernier, General Counsel to the Committee: The issue concerns section 36(2) of the Ontario Fishery Regulations. The committee has objected to a similar provision in the Aboriginal Communal Fishing Licences Regulations. Similar provisions have been cropping up in other regulations made under the Fisheries Act.

On its face, section 36(2) enacts a prohibition against contravening the terms or the conditions of a fishing licence. The result of this provision is that the breach of a licence condition becomes punishable by fine or imprisonment in the same manner as a breach of a regulation would be. The objection to this kind of provision is simple but rather fundamental. Licence conditions are imposed in the exercise of an administrative power. They are not law. Traditionally, the use of penal sanctions, such as fines or imprisonment, has sanctioned non-observance of legislation enacted either by Parliament or by its delegates. These sanctions have not been applied to the non-observance of administrative requirements.

Of course, the committee has not said that the non-observance of administrative requirements can never be the subject of penal sanctions but that if they are, it must be expressly authorized by Parliament.

In the past, administrative sanctions such as licence suspension or licence cancellation were considered sufficient to ensure compliance with administrative requirements such as licence conditions. This raises the fundamental principle of whether a citizen should be deprived of his or her liberty, for example, not because he has failed to obey the law but because he or she has failed to obey a requirement formulated by a civil servant and inserted in the licence. Making the breach of a licence condition punishable with the same sanctions as a breach of law serves to blur the crucial distinction between the law and administrative requirements.

In relation to the Aboriginal Communal Fishing Licences Regulations, the Minister of Fisheries eventually undertook to provide express authority for these provisions in the Fisheries Act. An amendment to that effect was included in Bill C-43, a copy of which has been attached to the material members received. This bill was introduced in the last session of Parliament.

Earlier this year, counsel wrote to ask whether the bill would be reintroduced. Mr. Berthiaume of the Department of Fisheries and Oceans replied that he was not in a position to advise in this regard.

We have now received a letter, which came in —

Senator Moore: There is no date on the letter.

Mr. Bernier: Okay, in which the minister states that —

Senator Moore: When was it received? There is no date on it.

Mr. François Michaud, Joint Clerk of the Committee: We have two sets of copies.

Mr. Bernier: It was received in our office at 6 p.m. by fax last night. Obviously, someone saw our agenda.

In any case, the minister indicates that he would appreciate hearing from the committee as to whether the provisions of Bill C-43 would take care of this type of issue. I take it this reflects an intent to reintroduce the legislation, which solves one problem.

The committee must be careful. The committee should strictly limit itself to indicating that adoption of the bill with the provisions that were there would provide authority for the disputed regulations. However, the committee should not be seen to endorse what is in the bill.

From a legislative policy point of view, there can certainly be strong objection taken by parliamentarians to making penal sanctions applicable to license conditions. I do not think that the committee should be seen to pre-empt that debate or take a position.

Senator Moore: Agreed.

Mr. Macklin: Agreed.

Senator Harb: Do you need a motion?

Mr. Bernier: No. If the committee agrees, then a letter would be drafted for the signature of the chairmen along those lines.

The Joint Chairman (Mr. Grewal): Any comment?

Mr. Macklin: Point of clarification. Counsel then have reviewed Bill C-43 and are prepared to make that recommendation to this committee, and therefore, endorse the letter as in accordance with the request; is that correct?

Mr. Bernier: Yes.

Mr. Macklin: You are satisfied. Therefore, it is appropriate for this committee to send that letter?

Mr. Bernier: Yes.

Mr. Bailey: We are attempting to raise concerns. On the bottom of the list are the Ontario Fishery Regulations, as well. Were the Ontario Fishery Regulations, which is a provincial matter, contravening that which is in the federal legislation?

Mr. Bernier: The Ontario Fishery Regulations are made under the authority of the federal statute. They are the federal regulations that apply in the province of Ontario.

The Joint Chairman (Mr. Grewal): Is it agreed that counsel will draft the letter?

Hon. Members: Agreed.

SOR/93-56 MARINE MAMMAL REGULATIONS

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

Mr. Bernier: Mr. Chairman, the correspondence on this file involves a rather unexpected development. Under the Fisheries Act, the Governor in Council has the authority to prescribe close times for any fishery. A close time, as defined in the act, refers to any specified period of time during which fish to which it applies may not be fished.

Section 22 of the regulations prohibited fishing for bowhead whales in described waters from April 1 to March 31. To describe a close time in that way is tantamount to prohibiting fishing altogether. This prescription leaves no time during which it is legal to fish.

If the intent were simply to prohibit fishing, one wonders why this indirect approach would be used to achieve that result. The answer is that the purpose of this provision is not to prohibit fishing for bowhead whales but to affect the illegal subdelegation of the authority to prescribe close times to fishery officers.

The Fisheries Act, as I just mentioned, gives the Governor in Council the power to prescribe close times, but in section 43, it also authorizes the Governor in Council to delegate to fishery officers the authority to vary a prescribed close time.

The Governor in Council may not delegate the authority to prescribe a close time. He can delegate the authority to vary a close time that the Governor in Council has established.

Here lies the explanation for section 22. The close time set out in section 22 is not a bona fide exercise of his authority by the Governor in Council. There is no intention that fishing be prohibited all year round. The real intent is to prescribe a fictitious close time fisheries officers may then vary and, under guise of varying the close times, establish the actual close time.

Over the years, variants of this approach have been developed by the Department of Fisheries and Oceans and have been condemned by the joint committee as involving a ``persistent and deliberate misuse of the regulation-making powers conferred by Parliament.''

That quote is from the seventh report of the committee for the second session of the 33^rd Parliament. The report is included in the material that was distributed for this meeting.

The use of these illegal regulatory approaches became so entrenched and pervasive that the committee was reduced to the practice of simply noting instances as they occurred in regulations. That was done in this case. The letter sent to the department on November 23, 1995, noted, for the record, that section 22 represented yet another instance of the continued use of the subterfuge condemned by the committee in its October 1987 report.

In accord with the practice of the committee, having been noted, the issue was allowed to rest while the correction of other objections to the regulations was pursued — that is, until a July 5, 2001 reply indicated among other things that an amendment would be made to section 22. I immediately wrote back seeking clarification, as I could hardly believe that the department would have suddenly accepted the committee's objection to this kind of provision, after so many years of refusing to accept the committee's view.

It took nearly a year and a half to receive a reply, and that reply indicated that the DIO would be in a better position to reply after consulting unnamed third parties. This prompted my letter of March 14, 2003, which members have before them.

Following an interim reply of June 25, 2003, Mr. Berthiaume wrote again on January 19 of this year. That reply stated in part that ``on the issue of the close times set out in section 22 in Schedule II, items 1 to 6, my predecessor's July 5, 2001 letter meant that the Department was in the process of seeking an amendment to the regulations that would conform to the Joint Committee's 41st Report to Parliament.''

Mr. Chairman, that reply struck me as nothing short of miraculous. I still harbour some doubt that it means what it appears to mean. The Department of Fisheries, as I mentioned before, has steadfastly refused to accept the joint committee's position for nearly 20 years. It seems a little incredible that it would change its position just like this.

Be that as it may, the committee can take the department at its word, for now. We will see what happens in the myriad other regulations that also involve this kind of provision. As for the committee's concerns about the lack of criteria governing the issue of licences under these regulations, which was the issue concerning section 4(1), Mr. Berthiaume provides information that seems to indicate that the relevant criterion is whether the issue of the licence would be in accord with certain land claim agreements with native people.

The committee can take two approaches. One, it could decide that the scope of these regulations is narrow enough that the discretion conferred by section 4 in terms of the issue of licences can be allowed to remain as is. Alternatively, the committee could recommend to the department that section 4 be amended to state expressly that the discretion will be exercised in conformity with the land claim agreements in question.

When I refer to the narrow scope of the regulation, I refer to the fact that the regulations apply only to the issue of fishing licence to Inuk people. The scope of application is rather limited. This is a situation in which either approach would be acceptable.

The Joint Chairman (Mr. Grewal): Are there any comments on these recommendations?

Senator Harb: Obviously, there is something fishy here. I suspect that we may have to dig a little further, by sending a communication back to ask when their action would take place, to bring closure to it, and to express the feeling of the committee that it has taken far too long for them to come to this point. While we are pleasantly surprised, we are a bit perplexed. Why do we not tell them that we sense there is something fishy going on?

Senator Nolin: No, do not do that. I would recommend a letter, but do not say that we do not trust them; of course, we trust them.

Senator Harb: Then ask them for a specific date. I would ask whether they would be able to do that within a reasonable time frame. When do you think they would be able to do that?

Senator Nolin: It would be within the year.

Mr. Bernier: A letter could be sent asking when it is intended to complete those initiatives. As for bluff, senator, I hate to mention this but you will know that this is a recorded public session. The department officers are devoted readers of the proceedings.

Senator Harb: We are supposed to be on the same boat, but one would wonder. What is going on? It looks like we are fishing in the mud.

Mr. Bernier: I will write a letter asking for confirmation of a date or timeline for completion of these initiatives.

The Joint Chairman (Senator Hervieux-Payette): If it is done, it is almost perfection. Are members agreed?

Hon. Members: Agreed.

Mr. Wappel: I do not know the second point of your question. Counsel gave us two recommendations and refused to give us any guidance.

Mr. Bernier: Mr. Wappel, you do this to my great discomfort. Counsel is not refusing to give any guidance. There are two legitimate approaches. In this case, if you were asking my opinion, which is not quite the same as giving advice to the committee, I would let it ride. The explanation is reasonable and you have the agreement, which is what they use to decide how to issue licences. This provision does not apply to large numbers of people across the country. Rather, it is specific so the chances of arbitrary conduct in the granting of licences or practices that unfairly treat people in a different manner are far fewer than they would be if this provision were applied to great numbers of people.

The Joint Chairman (Mr. Grewal): We will go to the next item.

SOR/2002-356 — REGULATIONS AMENDING THE AIRPOT TRAFFIC REGULATIONS (MISCELLANEOUS PROGRAM)

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

Mr. Bernier: Mr. Chairman, I have nothing to add to the information that is set out in the note.

The Joint Chairman (Mr. Grewal): Are there comments by members?

Mr. Bernier: This was an action taken that had been overlooked in the first comment distributed to the committee.

The Joint Chairman (Mr. Grewal): We will move to the next item.

Mr. Wappel: One minute, I am sorry. We received a letter December 15, 2003, which states:

We are not currently considering other amendments, and therefore are unfortunately not in a position to set a time frame for a possible regulatory amendment.

Normally, we do not like that kind of a response. Why are we going over this so quickly? Am I in the wrong place on the agenda? My apologies.

Mr. Peter Bernhardt, Counsel to the Committee: You are ahead of us, Mr. Wappel.

The Joint Chairman (Mr. Grewal): We will move to the next item under ``Reply Unsatisfactory.''

SOR/95-25 — INVESTMENT CANADA REGULATIONS, AMENDMENT

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

Mr. Bernhardt: Mr. Chairman, Mr. Wappel has pretty much hit the nail on the head. The department has sought the committee's agreement to defer several amendments that would have deleted certain definitions from the regulations that are unnecessary because the same definitions already appear in the parent statute. Before agreeing to the deferral, the committee wanted to know when the amendments were expected. The advice received is that no amendments are being considered at this time. In effect, then, the department is asking for an indefinite deferral. That is, possibly, the unsatisfactory aspect we are dealing with. Perhaps the committee could suggest to the department that, given the relatively minor nature of the concerns, it would be willing to wait a reasonable period of time, possibly two years. However, if the amendments were not made by then, it would expect that they proceed regardless of any amendments being contemplated.

The Joint Chairman (Mr. Grewal): Are there comments?

Mr. Wappel: My only comment is that I do not recall the last time we gave anyone two years, but that is fine.

Mr. Bernhardt: It has been done from time to time in cases where there is drafting to be done.

Mr. Wappel: It is a minor thing.

Mr. Bernhardt: It is simply a case of removing repetition.

The Joint Chairman (Mr. Grewal): We will move on to the next item on the agenda.

SOR/95-74 — MARINE OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

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

Mr. Bernhardt: Mr. Chairman, amendments to resolve several drafting matters were first promised to the committee in 1996. Contrary to assurances provided by the department, these amendments were not made when the regulations were amended in 2000. Since then, the committee has been told that these outstanding matters would be addressed following a comprehensive review of the regulations. The deadline for this has been repeatedly extended. In the chairmen's letter to the minister of February 11, 2003, the situation was characterized as ``three years of misrepresentations as to the imminence of corrective action, followed by three years of unfulfilled undertakings.''

Most recently, the department reports that the amendments will not be pre-published early this year as had been indicated by the minister last March; that drafting has yet to begin; and that given the length of the amendments — and I quote — ``we do not anticipate being in a position to proceed to pre-publication this fiscal year.''

Perhaps at this time members might wish to consider writing to the minister to ask that the amendments promised proceed immediately and that they be severed from this comprehensive review process.

Senator Harb: Would that be amendments to legislation?

Mr. Bernhardt: It would be amendments to the regulation.

Senator Harb: Just to the regulation. I think it is a good idea.

Mr. Wappel: I am sorry; I was otherwise distracted. What was the recommendation?

Mr. Bernhardt: That the minister be asked to agree to proceeding with the committee's amendments separately from this review, so that they can be put in place quickly. Obviously, this comprehensive review is some time from seeing the light of day.

Mr. Wappel: I would simply recommend that, since there is a new minister, the letter quote verbatim that wonderful sentence about the three years of misrepresentations followed by three years of unfulfilled undertakings. Also indicate that the committee is most dissatisfied by being misled, and that we ask the new minister to take a new approach, or some words to that effect.

SOR/93-515 — CANADA DEPOSIT INSURANCE CORPORATION APPLICATION FOR DEPOSIT INSURANCE BY-LAW

Mr. Bernhardt: Mr. Chairman, some correspondence deals with two instruments here. There were several promised amendments made in 2002 and this allowed the file on SOR/93-516 to be closed. There is one outstanding matter that relates to SOR/93-515. There is defective wording in the French version of the definition.

The amendment has been delayed, but the necessary correction is now to be included in a package of amendments to be made by the end of the upcoming fiscal year. This would seem to be satisfactory, at least for the time being. It would simply be a matter of monitoring progress for now.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.

SOR/96-114 — CANADA OIL AND GAS CERTIFICATE OF FITNESS REGULATIONS

SOR/96-117 — CANADA OIL AND GAS GEOPHYSICAL OPERATIONS REGULATIONS

SOR/96-118 — CANADA OIL AND GAS INSTALLATIONS REGULATIONS

Mr. Bernhardt: The promised amendments are to resolve some 30 points of drafting. A draft of these amendments was to have been sent to Justice for review earlier this year. The department reports that it is expecting the amendments to be made by late June. While this timetable may perhaps be overly optimistic, only time will tell. For now, again, it would seem to be just a matter of keeping track of the progress.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.

SOR/96-470 — EMPLOYMENT EQUITY REGULATIONS

Mr. Bernier: Mr. Chairman, I have to indicate to members here that this correspondence was apparently attached by mistake to the preceding item. If you go to the end of the item Mr. Bernhardt just dealt with, the correspondence on employment equity is there.

The employment equity regulations concern the need for an amendment to section 19(2) of the regulations. The need for that amendment was made known to the department on April 24, 2001. In this case, inappropriate wording was to be removed from the section. On September 17, 2001, the department indicated this would be dealt with during the five-year review currently underway. This was accepted by the committee.

The latest letter from the DIO indicates that proposed amendments would shortly be sent to the Department of Justice for drafting. Progress appears to be made. We will continue to monitor the file.

The Joint Chairman (Mr. Grewal): Good enough.

SOR/97-270 — MARINE TRANSPORTATION SECURITY REGULATIONS (CRUISE SHIPS AND CRUISE SHIP FACILITIES)

Mr. Bernier: A number of concerns were raised, Mr. Chairman, following review of these regulations, most of which involved questions of drafting and clarity. It now appears that the regulations will be superseded by new regulations designed to implement the international ship and port facilities security code recently adopted by the International Maritime Organization.

These new regulations are scheduled to come into force on July 1, 2004. Upon that happening, these regulations will presumably be formally revoked. That will be monitored.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.

SOR/2001-293 — REGULATIONS AMENDING THE DANGEROUS GOODS SHIPPING REGULATIONS

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

Mr. Bernhardt: Mr. Chairman, an amendment has been promised in the next miscellaneous amendments regulations to address the matter discussed in point 1 of Mr. Rousseau's letter of November 7, 2001. At this time, perhaps the department could be asked when it expects these amendments to be made.

Point 2 of the correspondence deals primarily with the authority for section 22(1) of the regulations. This permits the discharge of pollutants in packaged form where necessary for the safety of the ship or saving life at sea. While the stated enabling authority for this provision is section 656(1) of the Canada Shipping Act, in its reply the department also sought to rely on section 658. For the reasons given in Mr. Rousseau's letter of October 17, 2002, counsel disagrees with the department's view of the section of the act initially recited but does accept that section 658 provides the requisite authority.

It was also suggested, more or less in passing, that since the regulations made under section 658 must be published in advance, while those made under section 656(1) do not, there might be a benefit to the department in splitting section 22(1) of the regulations into two separate provisions.

The department has indicated that it does not see the need for this. This is a choice for the regulation maker.

The replies received with respect to the other two points would seem to be satisfactory and would require no further action.

The Joint Chairman (Mr. Grewal): We do not mind submitting that?

Mr. Bernhardt: I would simply follow up on the amendment promised at point 1.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Let us move on to the next item.

SOR/98-287 — REGULATIONS AMENDING THE CANADA STUDENT LOANS REGULATIONS

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

[Translation]

Mr. Bernier: The aim of sections 28.13 and 28.14 of the regulations is to create the right for the Minister to make a claim and to provide him with a remedy, or means to recover an amount owed to him by withholding an amount payable to the lender.

In the opinion of the committee, the Canada Student Loans Act makes no explicit provision to this effect. In a letter dated November 26, Mr. Rousseau reviews the various arguments made by the department and explains why these are not satisfactory. In his response dated January 16, Ms. Flumian notes the following:

The points that you raise will therefore be dealt with during the next series of regulatory amendments.

Obviously, this response fails to give any clear indication as to when we can expect the next series of regulatory amendments to be adopted. I would suggest that counsel write again to the department to request a clarification of this point.

The Joint Chairman (Senator Hervieux-Payette): Could you also include in your letter a statement to the effect that since they have no authority to act, they refrain from doing anything? I think this point is worth mentioning, since it would make a considerable difference, from a financial standpoint.

Mr. Bernier: If the Minister were to refrain from taking any action?

The Joint Chairman (Senator Hervieux-Payette): That is correct.

Mr. Bernier: I will do that.

The Joint Chairman (Senator Hervieux-Payette): Agreed?

Hon. Members: Agreed.

[English]

SOR/85-686 — PEST CONTROL PRODUCTS REGULATIONS, AMENDMENT

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

SOR/95-189 — NOVA SCOTIA OFFSHORE AREA PETROLEUM DIVING REGULATIONS

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

SOR/2003-40 — REGULATIONS AMENDING THE SMALL VESSEL REGULATIONS

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

SOR/2001-51 — REGULATIONS AMENDING THE QUEBEC FISHERY REGULATIONS, 1990

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

SOR/2001-438 — REGULATIONS AMENDING THE QUEBEC FISHERY REGULATIONS, 1990

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

SOR/2002-117 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DEPOSIT INSURANCE POLICY BY-LAW

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

SOR/2002-235 — REGULATIONS AMENDING THE HAZARDOUS MATERIALS INFORMATION REVIEW REGULATIONS

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

SOR/2003-101 — REGULATIONS AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION NOTICE REGULATIONS (COMPENSATION IN RESPECT OF THE RESTRUCTURING OF FEDERAL MEMBER INSTITUTIONS)

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

SOR/2003-417 — REGULATIONS AMENDING THE ONTARIO FISHERY REGULATION, 1989

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

Mr. Bernier: With your permission, Mr. Chairman, I should like to deal with the instruments listed under action promised and action taken together. Under ``Action Promised,'' there are 19 undertakings to correct the problems drawn to the attention of the regulation-making authorities.

Under the title ``Action Taken,'' I am pleased to report that some 21 amendments have been made as a result of the work of the joint committee.

Finally, I should point out that 91 instruments have been reviewed and are submitted without comment.

The committee adjourned.