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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 3 - Evidence, April 22, 2004

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OTTAWA, Thursday April 22, 2004

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. to consider statutory instruments.

The Honourable Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) presiding.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): The meeting will now come to order. I would like to welcome our guests and my colleagues, who arrived a little late this morning, but they will be forgiven for that.

This morning's meeting is being held further to a submission that we received from Mr. Quinn concerning the National Capital Commission Regulations made further to federal legislation. These regulations are now being challenged.

I wish to remind colleagues that in as much as the regulations are in compliance with the legislation, our committee cannot intervene. However, we do have a mandate to ensure that the regulations enacted are consistent with the legislation.

I assume Mr. Quinn will be arguing that the National Capital Commission Regulations are not in compliance with the act. I ask that the witnesses identify themselves and state their title.

[English]

SOR/2002-164 — NATIONAL CAPITAL COMMISSION ANIMAL REGULATIONS

Mr. Richard Fujarczuk, General Counsel, National Capital Commission: Ms. Karen McNeil, who is also legal counsel at the National Capital Commission, will make the opening presentation to you. We are both here to answer any questions that you may have.

Ms. Karen McNeil, Legal Counsel, National Capital Commission: Madam Chairman, Mr. Chairman, thank you for asking the National Capital Commission to appear before your committee.

In the fall of 2003, the NCC was made aware by means of a letter from Mr. Bernier that your committee had certain concerns and questions with respect to the National Capital Commission animal regulations. We responded to Mr. Bernier's letter in January of this year and in the past three weeks have received further specifics from Mr. Bernier. I should like to go through the matters raised by Mr. Bernier one by one and discuss the NCC's response to these matters.

First, in our January letter, the NCC indicated that it is in agreement with the following changes to the regulations proposed by your committee. In section 19, we would replace the word ``effective'' with the word ``reasonable.'' We would remove the words at the ``expense of the owner'' from sections 21, 22 and 23 and insert the words ``de l'animal'' into the French version of subsection 29(1) before the words ``la retinue et la maîtrise' in order to make the French and English versions consistent.

Mr. Bernier has indicated that your committee is satisfied with the response provided by the NCC with respect to two of the items and that, therefore, no further action by the NCC on these matters is required. Those items are subsection 4(3), which addresses wildlife on NCC lands, and the shoreline prohibitions contained in paragraph 6(1)(f) and in subsection 15(4).

I understand that your committee also agrees with the NCC that it would be wise to leave the discussion of the penalty provisions set out in section 30 until a planned amendment to that section has been effected.

Further to recent discussions with Mr. Bernier, the NCC has agreed to delete subsections 29(2) and (3) of the regulations. These provisions were included in the regulations because in the view of the NCC they were necessary to round out the scheme for the issuance of authorizations under the regulations. Mr. Bernier has indicated that in your committee's view these provisions are unnecessary as they merely restate existing law. For this reason, the NCC is prepared to remove these provisions from the regulations.

As an aside, I would note, in response to Mr. Bernier's comments, that there is no mention in the regulations that an authorization issued under section 28 may contain terms and conditions and that subsection 29(1) addresses those concerns.

This leaves then only three matters outstanding: the NCC's power to establish off-leash areas, the element of vicarious liability in the definition of keeper and the scope of the definition of domestic animal. Your committee has indicated that, in its view subsection 9(1), which permits animals to run free in off-leash areas, may be seen as affecting a sub-delegation of regulation-making authority from the Governor in Council to the NCC. Your committee suggests that sub-delegation in the context of regulations is permissible if there is some fettering of the discretion of the sub- delegate. As a result, your committee has recommended that the NCC add to the regulations a list of criteria that it would rely upon in establishing off-leash areas.

As mentioned in my letter to Mr. Bernier, the NCC already applies certain criteria in assessing the suitability of particular locations for use as off-leash areas. In light of your committee's comments on sub-delegation, the NCC is willing to consider introducing into the regulations criteria with respect to off-leash areas.

As for the question of vicarious liability, given the concerns expressed by your committee, the NCC is prepared to review the definition of keeper. We are not able at this point, however, to commit to any specific changes, as we simply have not had sufficient time to adequately consider the legal arguments against the imposition of vicarious liability that Mr. Bernier has made before your committee.

The last item to be discussed is the definition of domestic animal. In your committee's view, this definition is overly broad and outside the scope of the enabling provisions. The NCC does not agree that this definition is ultra vires but, having heard the committee's concerns, is amenable to reviewing how this definition is used in the regulations. It appears that your committee is mostly concerned with the application of this definition to leased properties; therefore, the NCC will look more closely at those provisions.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I have a short comment. If I understand correctly, you have focussed on the main points raised in Mr. Bernier's letter in your response to him. Since you touched on several sections in your presentation, I would like to know if you have brought any new issues to light in your presentation. Or have you merely emphasized the points mentioned in your letter.

Mr. Fujarczuk: There are several additional points mentioned.

[English]

Ms. McNeil: In my presentation, I pointed out that in the letter we had already agreed to make certain amendments. We have reviewed Mr. Bernier's comments regarding the three points that were the sticking points — definition of domestic animals, vicarious liability and off-leash areas. I would note that with the definition of vicarious liability, in the original letter there was no indication of what the committee's concerns were. It is only since I spoke to Mr. Bernier on March 31 that the actual legal aspect of the concerns was indicated to me.

We are willing to look at these areas, but we need to have time to discuss with the Department of Justice the appropriate steps to take, especially with respect to vicarious liability.

I am not an expert in vicarious liability. I need to look at the issue and see how such an element is used in other regulations. Mr. Bernier has made some comments about needing to have express legislative authority for such provision. I do not know, not being an expert. We would have to look into this in conjunction with the Department of Justice.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I note that Mr. Bernier's letter is dated August 23, 2003. Therefore, when you ask for more time to examine the matter, how much time are you talking about? Until the year 2005 or 2006? How much time do you plan to take? The issue was first raised over six months ago. I do think that is ample time to submit the matter to the Justice Minister for discussion.

Mr. Fujarczuk: Unfortunately, the letter was sent to the Department of Canadian Heritage. The NCC did not receive the correspondence until the fall. Therefore, they had not quite six months to respond. Over the past three months, we have been in touch with Mr. Bernier to verify comments or check out concerns more thoroughly. During the past three weeks, substantial progress has been made, in my view, toward resolving contentious issues. We have demonstrated our good faith and shown diligence in addressing the committee's concerns. And we are prepared to continue the process.

The Joint Chairman (Senator Hervieux-Payette): What I specifically asked was this: How much time do you need to undertake a substantive review of these matters? Should we expect a response from you before the end of this year's session, that is in June?

[English]

Mr. Fujarczuk: Part of the problem is that we do not entirely control this process. We have to work with the Department of Justice drafters. We have had some preliminary discussion with them about the points that remain at issue. I do not know whether I would feel comfortable committing to a particular date when I am speaking, in effect, for others.

From our perspective, we realize the concerns of the committee. We are prepared to move as quickly as we can, but I cannot commit for the efforts of others. That is the only reason I am reluctant to commit to a specific date.

Certainly, as I said, in the last several weeks, as we became aware in greater detail of the concerns, we have moved quite a long way in dealing with them. We are prepared to continue with that same level of intensity.

Certainly, we have communicated with the Department of Justice. They are aware that these matters are being raised by the committee, so they are I think sensitive to the issue, too. We will work as quickly as we can with them.

Mr. Epp: Of all of the issues you are facing here, I will use one as an example. You are asked to give a better definition of the term ``animal.'' Where do you go for your legal wording of this? Obviously, the one now is considered too broad. Will you narrow it? Do you make exceptions to the definition so that we can include parakeets and other animals that are acceptable? Do you have some other reference point? How do you go about that?

Ms. McNeil: When we draft these regulations, we first look at other regulations dealing with similar subject matter in the federal statute book. We also looked at bylaws of municipalities in the National Capital Region and other municipalities that deal with animal matters.

I note that there is a regulation that was in existence and had been in existence for four years by the time our regulations were enacted, entitled ``National Parks Domestic Animal Regulations 1998.'' The definition of ``domestic animal'' in our regulations is similar to that. We do not create these definitions out of the air; rather, we rely on existing material that addresses the same kinds of issues.

Mr. Epp: Would it not be better, rather than define which animals are permitted, to talk about what they could do? Would it not be better to consider whether the animal can deface property or has the capacity to injure or kill a person or an animal? Would that not encompass future challenges to this?

Ms. McNeil: I think we have indicated what animals can do. We deal with the fact that animals will defecate or urinate on property and attack other animals or people. The idea is that all animals can do these things. We are aware that people can have different kinds of animals as pets and may bring them onto NCC property. It is difficult to predict what kinds of animals people have as pets. Recently, the range of kinds of pets has increased dramatically.

[Translation]

Senator Nolin: Ms. McNeil, I have here a letter drafted by our legal counsel. I would like you to comment on what I see as the crux of the problem. I refer you to page 2 of our legal counsel's note, second paragraph, which states the following, and I quote:

Under the National Capital Act, it is not sufficient for a regulation to be a regulation for the control of domestic animals. It must also be shown that the regulation is required 1) for the protection of NCC property, 2) for the preservation of order, or 3) to prevent accidents on NCC property. There must exist a reasonable nexus or connection between prohibited or regulated conduct and one of these three legislative objectives. It is suggested that the scope of the regulations is so broad that this nexus does not exist.

I would like to hear your views on a validity test for your regulations. That seems like something very reasonable and judicious.

[English]

Ms. McNeil: It is difficult when you compare our regulations to an enabling section of another act because we make our regulations under our enabling section. We have to ensure, as you say, that our regulations fit within the powers provided in our enabling section. There are enabling sections in other acts for the control of animals. Under that act, regulations are created with respect to the control of animals or animal issues. I do not think that means we cannot achieve the same thing under our enabling authority. There are three arms to our enabling authority: the protection of the property of the commission, the preservation of order on the property of the commission and the prevention of accidents. If you are asking me whether we have demonstrated that every single kind of animal has caused damage or has an effect on the preservation of order, that is a difficult argument to make. In the same way, you could ask, for example with respect to dogs, whether I could demonstrate that each breed of dog could bite or attack. I could not do that. However, I can tell you that animals are unpredictable and that we have different kinds of animals brought onto NCC property.

Senator Nolin: The threshold of the test is a bit higher than simply assuming that all animals could be dangerous or harmful. I understand your concern because it is an objective test, and it is difficult to analyze and determine yes or no on each issue.

The important sentence is: There must exist a reasonable connection between prohibited or regulated conduct. ``Reasonable'' is the important word.

Ms. McNeil: I would argue that there is a reasonable connection. One of the arms of our enabling power is the preservation of order. One of the overarching themes of the regulations is preserving order by reducing the possibility of disputes or conflict between users of NCC property. This is a highly charged issue and people are rarely indifferent to it. They have strong views one way or the other and those views are extremely polarized. One of the purposes of this regulation is to recognize that the NCC is a victim of its own success, in a sense. Many people use our lands and, recognizing that these people have divergent views on the appropriateness of having animals on NCC land, we are seeking to reduce the possibility of conflict between these users by imposing the controls that we view are reasonable. In my view, that is an example of the preservation of order on NCC land.

[Translation]

Senator Nolin: With your permission, I have one last question concerning the validity of the regulations. Our legal counsel has directed our attention to section 17 of the regulations which provides for a limit of three animals, regardless of the type of animal. I understand that the definition of animal does not include fish. An aquarium containing more than three fish would be permitted in leased premises owned by the National Capital Commission. However, our legal counsel has brought the matter of birds to our attention. Is it reasonable to think that owning more than three birds poses a threat of some kind to NCC property or possibly disrupt order or cause accidents on NCC land? I am trying to find some justification for the three-animal limit. I could understand if it were three dogs, or even three cats, but why not be more specific, because being reasonable is the true test in terms of the validity of your regulations. Would you not agree?

[English]

Ms. McNeil: We understand that this committee has particular concerns about the provisions dealing with leased property. It is evident from recent cases, and I think it is reasonable, that where there is a menagerie of animals on leased property a great deal of damage can be caused.

Our job is to find a reasonable position between allowing any number of animals on leased NCC properties and allowing no animals on those properties. We were trying to find a happy medium. We looked at the relevant rules under municipal bylaws and that is the source of the number. We understand your point that four turtles or four birds may not cause as much damage as four large dogs, or even four cats, and so we are willing to look at those provisions. However, through the regulations, we try to make rules that are simple to understand and to enforce, as well as being reasonable in that they protect NCC property, prevent accidents and permit people to have animals on our land.

Senator Nolin: From this note, I raise a final point. Why not include that in your lease?

Ms. McNeil: We do include that, but the only penalty for someone who breaches a lease is to break the lease. This way, we can issue a ticket if someone breaches the regulations.

Senator Nolin: If I own a house and rent the house to you, the only law between us is the lease. Why should the NCC leases be different?

Ms. McNeil: A provision of the lease is that the lessee must obey the regulations. The lessee is given a copy of the regulations that apply to leases that come into being after the regulations have come into force. It is a term of the lease that the lessee must comply with the regulations. It seems an extreme measure if someone has four animals to break the lease.

Senator Nolin: If I may make a comment, I do not think that we will reconcile our positions. I think you want to use the penal tool to regulate domestic lives of people who rent houses and real estate on NCC property. That is my personal opinion — and I am not asking committee members to share that opinion. However, we must use prevention and responsibility as the tools to make lessees responsible on NCC property.

[Translation]

Perhaps I am being overly philosophical, but I think we should be trying to make people more responsible in terms of assuming certain obligations, instead of saying to them: ``Look, if you do that, you will be punished.'' That is my opinion.

[English]

Ms. McNeil: We wanted to ensure that people who rent our properties have the same protections as people on unleased lands have, for example.

[Translation]

Senator Nolin: I understand your approach. It is reasonable in some respects, but in others, it is completely unreasonable. You cannot draw a line and then say: Unfortunately, the line has been drawn, and it is illegal for you to own three songbirds. From now on, you will be paying a fine. I am sorry, but I cannot go along with that.

[English]

Mr. Fujarczuk: As I indicated to you, Madam Chairman, we are prepared to revisit this issue, particularly in the case of leased premises.

At this point, we have a process that took us many years to arrive where we are. It was very difficult. As Ms. McNeil mentioned, it is a highly charged issue. There are strongly articulated views on both sides of these issues. We are prepared to revisit them. We are reluctant to do so without proper reflection, because we spent many years getting to this point, but we are prepared to revisit. We recognize there may be a profound difference in dealing, for example, with the rented premises from recreational lands that are frequented by the public.

Those are things that we indicated to your legal counsel that we are prepared to consider, and we will look at them in good faith. I agree that we will not resolve them here this morning, but we are prepared to examine that issue.

Mr. Macklin: My concern is timing. If we do not put in some suggestion of timing, I think the urgency of this being resolved does dissipate somewhat. I would like to see a period of time for this reflection to occur, and then a report back to us as to progress. If it carries on, one could reflect on these ad nauseam. I should like to see a time period placed on this for a report on their reflections on the changes and reviews that they are bringing forward, or would suggest, and I would suggest that something in the order of 90 days might be appropriate to get a response.

The Joint Chairman (Senator Hervieux-Payette): Do I understand that the committee feels it is reasonable to get a report on where we are on progress?

[Translation]

Senator Nolin: Earlier, you mentioned the way things were once done. I think it all comes down a matter of good will. I always try to understand why the Justice Department does what it does.

You are the Justice Department client and you tell officials: we have a 60-day order. A 90-day order would bring us to the middle of summer. In actual fact, that would represent a period of six months. We are nearing the end of April. If you say to them: you have 45 days to respond, then I might go along with that. I would agree to 45 days, but not to 90 days.

The Joint Chairman (Senator Hervieux-Payette): Mr. Macklin mentioned a progress report. Senator Nolin, is it a solution you want in 45 days, or rather, a progress report?

Senator Nolin: I am suggesting a progress report in 45 days. Most definitely, that would be an acceptable option.

[English]

The Joint Chairman (Senator Hervieux-Payette): Mr. Macklin, do you agree with Senator Nolin that a progress report in 45 days, before we adjourn for the summer, is more appropriate?

Mr. Macklin: Certainly, I would agree with that.

The Joint Chairman (Senator Hervieux-Payette): Do other members of the committee agree with that? You will submit a report to inform us where you are at — and, of course, we hope this will help you with your work with the Department of Justice.

[Translation]

I did not know that the National Capital Commission owned and rented out residential units. Does it have many properties of this nature for rent? To my knowledge, the city of Montreal is not in the residential property business.

Mr. Fujarczuk: We own agricultural land. We own some 700 residential units, as well as some commercial properties.

The Joint Chairman (Senator Hervieux-Payette): And is all of this property owned by the NCC?

Mr. Fujarczuk: Yes.

The Joint Chairman (Senator Hervieux-Payette): Not by the city of Ottawa?

Mr. Fujarczuk: No.

The Joint Chairman (Senator Hervieux-Payette): Not by an independent corporation?

Mr. Fujarczuk: No. For example, some of the land owned by the NCC inside the Green Belt is leased. The same is true of land in the city of Gatineau.

The Joint Chairman (Senator Hervieux-Payette): And is the rent charged by the NCC on these properties affordable or do market prices apply?

Mr. Fujarczuk: The NCC would like to charge market prices, but occasionally, given the nature of these properties, it charges rent that is slightly below market.

The Joint Chairman (Senator Hervieux-Payette): I realize we are straying from the subject of animals, but I do not understand this whole business of rental property. I had no idea that the NCC rented out residential property.

Mr. Fujarczuk: We own approximately 700 residential units.

[English]

Mr. Wappel: I do not want to prolong this, but I was not quite clear on Ms. McNeil's answer to Senator Nolin when he quoted our legal opinion concerning our legal counsel's interpretation of the National Capital Act. Did I understand you to say, Ms. McNeil, that you were distinguishing these regulations from the National Capital Act, or that you were using some other act? I was not quite following what you said there.

Ms. McNeil: Your legal counsel had mentioned that it would have been better if our enabling authority had been to make regulations for the control of animals. I think that comes from another statute in which they make regulations — the regulation I was referring to earlier was the National Parks Domestic Animal Regulations 1998. That is made under the National Parks Act. I am saying you cannot compare regulations to enabling authority under another act. You have to fit them into our enabling authority in our act.

Mr. Wappel: That is what I am getting at. Maybe I do still not understand you. These regulations that we are considering were, in fact, made under the National Capital Act.

Ms. McNeil: Yes, and we are saying they fall within the three arms of the enabling authority in the National Capital Act.

Mr. Wappel: Okay, so that is the dispute. We are still talking about the same act, is that right?

Ms. McNeil: Yes.

Mr. Bernier: I have a quick question, Madam Chairman, which occurred to me after I last spoke to Ms. McNeil. Could either of the witnesses clarify this? In section 4.1 of the regulations, there is a prohibition that reads as follows: ``No person shall have an animal other than a domestic animal on unleased lands.''

What does ``have'' mean in this context? Is the reference to possession of wildlife?

Ms. McNeil: No, that is the difference, ``have'' does not mean ``possess.'' I would say ``have'' means to be accompanied by, cause to be on or permit to be on, or permit to remain on. When you were saying that nobody owns wildlife, ``have'' does not mean possess. That is why.

Mr. Bernier: How can one be accompanied by wildlife without being in control of that wildlife?

Ms. McNeil: I am saying ``have'' can have a number of meanings, and that includes to permit to be on, and that is the concern with section 4(3).

Mr. Bernier: I trust that that you understand my concern. Because ``have'' can have a number of meanings, my concern is the ambiguity and lack of clarity in a statutory prohibition. When I read this, I am not sure what it is I cannot do with wildlife.

Ms. McNeil: If it is anything you have to do with wildlife, it is referring to the commission.

Mr. Bernier: No, 4(1) — ``no person shall have'' — is addressed to me as a citizen, telling me I cannot have an animal.

Ms. McNeil: As I said, in my view ``have'' includes permit to be on, cause to be on, permit to remain on commission land. It can encompass all those things.

Mr. Bernier: Could we not spell that out in the prohibition so that the citizen can have the same understanding you do?

Ms. McNeil: We could, but whenever you go into specifics like that, there are things that you may leave out or there are things that you may put in that would cause more questions of interpretation. In my view, it is clear and understood, and in fact ``have'' has been used in regulations with respect to domestic animals for 40 years on commission property, so it seems to have worked for the last 40 years.

Senator Nolin: It is tantamount to the validity of a ban.

Ms. McNeil: Absolutely. However, there will always be questions with respect to interpretation. That is why your committee exists.

Mr. Bernier: If I go on leased lands of the commission and I feed squirrels, do I have a wild animal? Have I breached this prohibition?

Ms. McNeil: No, the commission has the wild animal in that sense.

Mr. Bernier: It reads that no person shall have an animal, other than a domestic animal. No person shall have wildlife on leased lands. If I go on commission lands that are not leased and feed squirrels by hand, would you consider me to ``have wild animal?''

Ms. McNeil: No, I would not.

Senator Nolin: That has to be clear. Many people are doing that daily.

Ms. McNeil: I think it would be difficult to find an exact word to address all your concerns. No matter what word you picked, you would find reasons why it did not work.

Mr. Bernier: Control and possession?

Ms. McNeil: I do not think ``control and possession'' encompasses all that we want. I think the word ``have'' is the best word. I think it is understood.

Mr. Bernier: By you, certainly.

Ms. McNeil: There will always be questions with respect to interpretation in regard to regulations. You will never find a regulation where everybody has the exact same understanding.

Mr. Bernier: That is the aim.

Ms. McNeil: That is the aim, certainly.

Mr. Epp: I would like to point out that section 4(3) addresses this question. It reads that the prohibition in section 1 shall not have the effect of preventing the commission from having on commission lands wildlife indigenous to those lands. That answers the questions of the squirrels. Somebody feeding them does not change possession. That is my interpretation of that.

I should like to ask a question about the capturing of undesirable animals. I do not know if you have much of a problem here, but where I live we have to put up skunk traps because they are not really good friends in areas frequented by humans. Is there a prohibition of trapping animals that are undesirable in order to remove them?

Ms. McNeil: There is not a prohibition in these regulations, but there may be other regulations or statutes that deal with that matter.

Mr. Epp: Can we trap a skunk or not?

Ms. McNeil: I do not know. I would have to look at other regulations that apply on the lands.

Mr. Fujarczuk: She is saying that there is no prohibition under these regulations. There may be other regulations by other federal or provincial entities that have application.

Mr. Epp: Why do you not simply harmonize your rules with those of the national parks, which seem to work reasonably well? There are many people occupying national park areas. I am not aware of the kind of conflicts that are before us today.

Ms. McNeil: As I said, we considered the National Parks Domestic Animal Regulations 1998 when we drafted ours, but our types of land differ. Our three major areas are urban lands, Gatineau Park and the green belt. We have to consider the needs of those areas, which are different from each other and also different from the national parks.

Mr. Fujarczuk: They were considered in terms of definitions and so on. They very much influenced the drafting of these regulations. It was not done without consideration of those.

Mr. Macklin: I want to pursue Mr. Epp's point. It is an interesting point. It does lead to us look at sections 4(1) and 4(3).

It would appear that I would be in violation if I trapped a skunk on leased land. The skunk would be not a domestic animal. It would appear that I would be in violation of these rules because no person shall ``have.'' If I trapped a skunk on my property, I would violate these rules. Is that what we want to do?

Mr. Fujarczuk: If you are on leased land, you are not captured by this section.

Mr. Macklin: On leased land. Very good.

Mr. Bernier: Along the same line of thought, and just out of curiosity, to my knowledge, most companies in Ottawa that rid you of things like raccoons and such other undesirable animals are in the habit of going to Gatineau Park and releasing animals. I have seen them doing that. Is that allowed? Is this wording intended to put an end to this practice?

Mr. Fujarczuk: I am not aware of the practice of which you speak. If you like, when we come back to give our progress report —

Mr. Bernier: Call pest control people. That is where they go.

Mr. Fujarczuk: I am not aware of it, but we can look into it.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I would now ask Mr. Quinn and his associate to introduce themselves. We have received your submission. You may make a short presentation, following which committee members will have some questions for you. You have the floor, Mr. Quinn.

[English]

Mr. Robin Quinn, as an individual: Madam Chairman, Mr. Chairman, members of the committee, thank you for this opportunity to contribute this statement to your review and scrutiny of the NCC Animal Regulations. I have asked Mr. Andrew Haydon to join me.

Mr. Haydon served 25 years on the regional municipal council of Ottawa-Carleton, 12 years of which he was chairman. Andy Haydon enjoys an excellent appreciation of the growth of the nation's capital over the last quarter century or more, including the NCC's substantial contribution. He also walked dogs off-leash on NCC parkland for many years without incident, until November 11, 2002.

My background includes a term on Ottawa and regional councils, a decade in the civil service and, perhaps of useful relevance to today's proceedings, experience in municipal and federal regulations.

Now to today's business. We seek the revocation of an arbitrarily conceived, deceptively sold, incompetently examined and demonstrably illegal regulatory regime.

[Translation]

Worse still, the vast majority of owners are suffering, through no fault of their own.

[English]

The brief sent to you in January 2003 explained why the NCC animal regulations are ultra vires. Both the Privy Council Office and the Department of Justice have refused to disclose an iota of their work. Their apologia is that its 1,550 pages or more are cabinet confidences or are prepared under solicitor-client privilege. However, their examination is done at the behest of Parliament through the Statutory Instruments Act. Cannot SIA-engendered reports on non-confidential matters be added to a cabinet submission without making that work secret for 20 years, or is there now a lack of confidence in its competence?

I will set out four matters for your consideration: the National Capital Act's three regulatory powers; the SIA's proscription of unexpected or unusual use of a regulatory power; also under the SIA, trespassing unduly on existing rights and freedoms; and final conclusions and an action request.

The Governor in Council can enact regulations under the National Capital Act for these purposes only — that is, preserving order, protection of NCC property and prevention of accidents on NCC property. The main question, therefore, is: Do the animal regulations come within the ambit of any of these powers? Research on preserving order shows that it applies to matters such as the conduct of meeting or of crowds. Cats and dogs, ponies and horses, parrots and even Vietnamese miniature pigs, all of which the regulations purportedly encompass, never, ever engage in riots, tumults, heckling or even endless points of order. Could we not conclude that preserving order is not a reason for the animal regulations but perhaps protection of property? The NCC has presented no empirical scientific proof that its properties need protection from the ravages of domestic animals. From the NCC's letter of January 20 to the committee's counsel comes this quotation:

When domestic animals have access to shorelines, they have an impact on these habitats due to the damage that they cause to shoreline vegetation and bank stability. Dogs, for example, will chase after anything that moves on the shoreline and will dig in an attempt to catch animals like turtles who live on the shoreline. The running...and the digging causes damage that is greater than that which humans typically cause...

Which banks of the Ottawa and Rideau rivers and the various lakes under NCC responsibility are unstable? Where is the solid evidence that unleashed two- or four-footed animals have been the primary cause of such instability and vegetation loss? Consider the following excerpt from the Web site Great Canadian Rivers: ``Raccoons will consume...plants and animals — [such as] turtles...'' et cetera. Is it not incredible that the NCC regards the temporary nest of mother painted turtle as NCC property and, moreover, wants to protect it from potential canine excavation? Will the NCC also seek a regulation that raccoons must be leashed, too? Let us not forget skunks, foxes, muskrats, wolves and inquiring two-footed youngsters. The real question bears repeating: Where was the proof that domesticated animals have caused ubiquitous, substantial permanent and costly damage to NCC lands, including riparian zones? Is it not obvious that the NCC animal regulations have nothing to do with the protection of its property?

How about accident prevention? When we looked at the October 1999 Delcan report entitled, ``Proposed Domestic Animal Regulations Strategic Environmental Assessment,'' a number of striking points come to the fore. NCC officials decided on regulations at least by 1999. In fact, Justice Canada had opened its file on their examination on August 23, 1999, two months before the NCC's October 25 notice of a public consultation. The Delcan report is circumspect in its conclusions. For example, it stated, in terms of biophysical environment, that the health of wildlife and flora might see minor positive benefits from the implementation of the regulation. The words to note are ``may'' and ``minor.'' Is this how consultants damn with faint praise? Another example from the report is that the NCC ``has kept statistics on the number of dog-related incidents,'' which in my view, in reality, were non-investigated complaints, ``for the past five years.'' I ask members of the committee to note that these statistics are not comprehensive, not complete and not validated.

The November 2002 brief's analysis of the NCC statistics stated these findings, which I will recall for the committee's benefit: For the five years, 1994-1998 inclusive, the average number of dog-related incidents per urban parkland annually was 1.7 in Ontario and 3.6 in Quebec. For Gatineau Park and the Greenbelt, the relatively low numbers indicate an equally weak case.

Surprisingly, the NCC makes little effort to monitor and acquire the details of accidents on its properties. For example, the commission e-mailed to me on October 30, 2002, the following: ``The NCC keeps statistics of only those accidents reported to the NCC. In the case of Recreational Pathways no accidents have been reported in the last five years. Reported accidents for mountain biking in Gatineau Park include: 14 accidents in 2001, 13 accidents in 2000 and 18 in 1999.'' Conclusion: It does not sound like accidents are a major NCC concern. It seems that accident prevention also fails, like property protection and preserving order, to justify the NCC regulations under the National Capital Act.

Two — unexpected or unusual use. You may be aware that the federal National Parks Act provides a long list of regulatory provisions. The twenty-first provision, subsection 16(1)(u) reads as follows: ``The Governor in Council may make regulations respecting...the control of domestic animals.'' Specific, is it not? Is it not a telling point that one act dealing with parks provides precisely for animal control regulations and that the National Capital Act simply does not. The Statutory Instruments Act prohibits regulations for an unexpected use. Does not the omission of an animal control regulatory power in the National Capital Act bar domestic animal regulations under its aegis? Is this committee privy to the written, unassailable justification for them. I am not.

Three — elimination of freedoms. NCC officials ignored fundamental differences in real park usage and history. The Statutory Instruments Act prohibits regulations that ``trespass unduly on existing rights and freedoms.'' I cannot speak knowledgably about all NCC parklands, but obviously, as in Patterson and Hampton Parks, walking dogs off- leash was a daily pleasure for generations. An existing freedom? Absolutely, yes.

Thus, in the absence of a proven, serious necessity is it not self-evident that the NCC animal regulations do ``trespass unduly on existing freedoms?''

Four — final conclusion and request for action. Is it not evident that the NCC animal regulations exceed the regulatory provisions of the National Capital Act? They certainly do not pass the other tests, namely, existing freedoms and unexpected use.

Hence, on behalf of more than 90 families in my neighbourhood and some 330 families across the city in the NCCPD, my request, please, is that the committee recommend to Parliament that the NCC animal regulations be revoked, and that in accordance with section 19(1) of the SIA the committee notify today the Canadian Heritage minister that the committee will consider 30 days hence a report containing a resolution that the NCC Animal Regulations be revoked.

Both Mr. Haydon and I would be pleased to receive and answer your questions. One good topic would be what the NCC should do in the short and long term to meet legitimate animal control requirements. Another topic would be the policy issue of the federal government passing animal control bylaws in well-populated urban areas.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Thank you, Mr. Quinn. I am curious, as my colleagues no doubt are as well, to learn of the incident that prompted Mr. Haydon to accompany you in September of either 2001 or 2002. Perhaps you can enlighten us.

I would assume the City of Ottawa has a bylaw on the books concerning domestic animals. Would it be appropriate for us to review the bylaw at this juncture? In other words, you oppose any regulations respecting domestic animals. If the NCC's regulations were similar to the City of Ottawa's bylaw, would that satisfy the dog owners who are mounting this challenge?

[English]

Mr. Quinn: That was a good question, Madam Chairman, and one I would like to about talk.

We now have pretty good animal control bylaws in Ottawa. I cannot speak for Gatineau; I am not an expert in that regard. The fact is we do have them for our urban parks. We have a system whereby we have a self-enforcing share-the- park system. Central Park Central has a specific bylaw, which is possible under municipal law. It says that between April 1 and October 31, between 12 p.m. and 4 p.m., an individual must have his or her dog on a leash. At other times, the dog may be let off his leash.

An individual is expected to ensure that his dog does not become a nuisance. It works. We never have a problem enforcing that time period. It has worked out very well. It went through a tortured process and one, which I did not mind not being involved in at all.

It works. Policemen are not required; enforcement is not needed. We, in the neighbourhood, enforce it. There are a number of these across the city.

The problem with the NCC, except for a couple in Rockcliffe and New Edinburgh, has concentrated off-leash parks at Bruce and Conroy pits. We now have visitors because we have a civil and civilized approach to being able to let a dog off the leash and play with another dog or dogs.

The NCC could apply for such bylaws. Of course, the NCC would have to go through the city process and might have to answer some tough questions. That is no bad thing.

The Joint Chairman (Senator Hervieux-Payette): Mr. Haydon, can we be informed of the incident that prompted you to accompany Mr. Quinn?

Mr. Andy Haydon, As an individual: I am an animal owner, but I have an objective perspective of animals. There is a place for animals and a place not for animals. There are certain breeds of dogs that I do not think should be bred. Pit bulls come to mind. That is a side issue.

My wife and I have lived on the canal for 20 years, as Senator Harb knows. We have walked our two dogs. We have always had two dogs. We have walked them for 20 years without an incident, without a problem.

The bylaws were passed while we were away — we had been away for five and a half months. However, attended an NCC meeting at the Congress Centre, where we asked for a copy of the bylaws and regulations. They did not have them. It was a public meeting, and they did not have them available.

The next afternoon, while my wife was walking our two dogs, a bylaw enforcement officer from the NCC in a three- quarter ton truck mounted the curb, drove across the grass, pinned her up against the metal railing on the canal, shoved her on to a seat and screamed at her, ``I am the law!''

I became a little interested after that point, as you can appreciate. I am not one of those people who is anti-National Capital Commission. I am a great supporter of the National Capital Commission. I irrevocably say that if it were not for the National Capital Commission this nation's capital would not be what it is today. The municipalities do not have the wherewithal to make happen what the NCC has. So do not misunderstand me. I am not one of those people who attacks the NCC, like the Ottawa Citizen, just for the fun of attacking. I have a great reverence for the NCC.

However, I also have a great reverence for the law. A law must be just. There must be a reason for a law to be sustained.

Before one seeks a solution to a problem, one must define the problem. I think my colleague, Mr. Quinn, has clearly shown the magnitude of the problem, whatever it is, has not been defined.

You cannot get information from the NCC. You cannot get it from the Privy Council. You cannot even read a report of the discussion. It is a bit of a violation of the democracy that we are reported to love.

I continue to walk my dogs without a leash. In this respect, the NCC and the RCMP have an arrangement. They just given me warnings because they do not want me in court.

It is the wrong way to deal with things. It is a violation of freedoms. You do not think of it being a freedom because you think that freedoms only relate to you. They do not understand that dogs are a more than just dogs. They are a little more than pets. They become part of the family. If your friends, or indeed yourselves, have a pet dog, you know that it is a different type of animal than a deer, or any other wild or domestic animal.

This is a letter written by my wife at the time she was arrested and harassed. I will not read the entire letter. I had asked her to put down her personal feelings. I will read a bit of it.

To give you a bit of history, many years ago my wife was walking across Pretoria Bridge and was hit by a car while she was crossing on a walk light. She broke her arm and leg. Mary writes. ``I have always known that a healthy diet and exercise is very important. I have always exercised.''

She must exercise because. Because of the broken arm and leg, she had to exercise to get herself back. Due to this accident, she exercised in a gym. She swam, walked 10 to 20 kilometres every day. She had a personal trainer who formulated her exercise program, to make sure she recovered. She wrote:

Walking two dogs every day was a healthy exercise in the first place, and my favourite part of the day. I did this once a day at 11 o'clock, two or three times, between 6 a.m. and 11 p.m.

We ran a bed and breakfast, but because of the accident, which immobilized her, we had to sell the bed and breakfast. She continued:

I now find walking dogs on leashes a chore. They are not trained to walk on a leash, so they hang around my feet and I am afraid of tripping, and I am no longer able to exercise my shoulder. As a result, I have shortened the length of my walks. I do not relax on the walk now, as I find I am forever looking over my shoulder for white cars and trucks.

White cars and trucks are the NCC trucks.

I now have dull tension headaches, my blood pressure has risen, my mind and body are not happy. Gone are the days of the peace and quiet and exercise that I so enjoyed for the 20 years we have lived downtown. No matter what happened in my life, I knew I had a special time to walk and to think and to enjoy two funny, furry companions. Children walking with their parents can no longer pat and play with two friendly dogs. I can no longer walk my neighbour's dogs when she is in hospital because I can only manage one on the leash.

Two off-leash, not three as was said earlier.

I now no longer am allowed by the NCC to walk three dogs, so much for being a good Samaritan. When people along the canal once stopped to chat and pat, they now glare at me. It is so easy to plant meanness in people by the continual suggestion that dogs are all vicious and their owners are uncaring. Over 99 per cent of dog owners are caring, understanding, warm and friendly. The law, if that is what it is, has been enacted for the miniscule few. Never has so much law been enacted to punish so many for the alleged commissions for so few, to paraphrase a Churchillian comment.

Mary, my wife, died prematurely, on September 16. She died sad, in that 20 years of freedom have been removed.

That is one side of the issue, but the other side of the issue, and those of you who are lawyers will understand this comment, is that you cannot do by the back door what you are prohibited from doing by the front door. The essence of that, as my colleague Mr. Quinn said, is that it is very important if you are going to enact legislation that you have the legislative authority. That does not exist in the NCC Act. It exists in the National Parks Act. However, more important, it is not needed in the first place. There never was a problem. It is a problem that has been created, by whom I do not know — because we do not have that information.

I think the committee would do itself a great favour as legislators — and I know the problems of legislation and I know the difficulty of getting to the facts. The facts have to be put out by the NCC. We have to go back to the table with the NCC. There are no hard feelings with the NCC, in my mind; it is just that they are down the wrong path. We have to get together and get something that works for everyone, and that is still doable.

I leave it in your competent hands to judge which is the more logical story that you are hearing today. Thank you for the opportunity. I have probably talked too much. I apologize for that.

The Joint Chairman (Senator Hervieux-Payette): We are here to look at the conformity of the regulations with the legislation. What is beyond that, of course, should be taken care of by the proper authority. However, the point is well made. You are talking to politicians, and I suppose you are addressing that to other people that should make these decisions.

I will ask my colleagues if they would like to ask questions of Mr. Quinn or you about this proposal.

Mr. Haydon: If I could interrupt, I agree with you that that is the function of this committee, but the reality is that the regulations, in our opinion, are ultra vires.

Mr. Barnes: I spent nine years as a councillor in Newfoundland and Labrador, in Grand Falls-Windsor. I know, Mr. Quinn, some of the things you may be talking about with regard to regulations.

One of the things I have noticed is that, as politicians and as regulatory bodies, we try to make things more complicated than they are. As a result of it, we confuse everyone.

I fought a campaign back in my hometown with regard to animals — and one of the things that became quite clear was that we, as individuals, do not take responsibility for our animals. I have had huskies. I have had three huskies, two at one time. I never walk my dog on a leash, because I believe that a dog does not have to be on a leash if the owner has control of the dog. If the owner does not have control of the dog, then of course the dog should be on a leash. The dog should be muzzled as well.

There are a lot of people out there who are really afraid of animals. The most innocent dog, at any time, because of fear of threat from, say, a pedestrian just petting the dog, could bite the pedestrian. Not all dogs are like that, and it does not happen very often, but it does happen from time to time.

If the emphasis were put on the fact that the owner has to be in complete control of the animal, regardless of whether it is on a leash, then the courts have to play a role. If I am walking my dog, and my dog leaves my side and attacks someone, it should be my responsibility. I am wondering what your feelings are with regard to responsibility of the owner, because we are the ones who have to be responsible for them?

Mr. Quinn: I think that makes perfectly good sense. You might like to know that I used to go to Newfoundland about once a month for two years, when I was with the Salt Fish Corporation. Therefore, I am not entirely an Upper Canadian. It is a good thing my background is Irish Catholic, otherwise I would have been totally lost there.

However, to address your point, sir, you just outlined exactly what the laws do provide. There is liability. If your dog bites someone, you have a problem. Whether or not you are also given a ticket by the NCC, or any other body, does not really matter. It is irrelevant.

It bothers me that the National Capital Commission, which is inside an urban group and has quite different duties — its duties are to maintain the capital as the capital. It also has in its act that it can host festivities and festivals for the enjoyment of all citizens. Suddenly, they are in the municipal bylaw business. We have good municipal bylaws in this city. They are not perfect, but their imperfections are probably too much restriction rather than too little.

The real question is the harm test. The dogs or the cats, or whatever we might have, do no harm — real harm. I am very nervous of cars sometimes, and cars will do a lot more harm. However, just because one comes close to me does not mean the driver is going to get a ticket, as well as get who knows what else.

We tend to single out that pet, and tend to give people who have perhaps unreasonable fears — they are real, but they are unreasonable. Somehow, we make the dog owner the guilty party. That was absolutely clear when they talked about the compromise.

It seems to me that the NCC should work with the municipalities and demonstrate that it needs specific bylaws for specific properties for specific reasons — utterly clear and obvious reasons, not just their wish.

The commission lawyer mentioned that the NCC had different kinds of parks. However, we have one set of regulations, and it does not matter if it is a park that has been part of a neighbourhood since before any of us were born. The one I am speaking of goes back to 1907, when I am sure people were walking their dogs off-leash. They were doing that until November 2002. That was the first ticket, by the way. It was not an urgent thing where there was a long phase-in period. That was the first thing that gave it away. What is going on? Is that a fair answer, sir?

Mr. Epp: In the interests of time, I would appreciate your giving fairly concise answers to my questions.

Mr. Quinn: Yes, sir.

Mr. Epp: First of all, I challenge your statement that none of the conditions are met. The first one, for preserving order, is a legitimate cause for having regulations, including animal regulations. I will give you an example. Two years ago, as I was getting into my brand new car I felt something slippery underfoot. I looked down and I realized that, once again, the old adage is true — that is, the neighbour's dog defecates on the neighbour's property. I had to return to my house to clean my feet. Now, I am a gentle person, which I inherited from my parents, and, except for that, I could see the potential of either the dog or the owner coming to some harm when such things happen. In that instance, of course, nothing did happen. I mentioned to the neighbour that I would like him to have his dog poop on his own yard instead of my yard. Preserving order is a good one.

I have another example. I know of some people who faced an actual issue between neighbours over dogs. One of the neighbours killed one of the dogs. That was not preserving order. I challenge when you say that the National Capital Commission cannot state and/or give regulations regarding the control of animals under that particular clause.

I should like a brief response from you on that.

Mr. Quinn: Quickly, we did some research because I did not know what ``preserving order'' meant. I had some ideas about it from other experiences. We discovered that it had a fairly narrow interpretation, as I outlined it, either for how meetings and tribunals are run or for how crowds behave. If crowds get out of hand or a riot occurs, preserving order applies.

I will address your two examples. I do not like to generalize from the particular — and I know are you not doing that. The fact of the matter is that we have a good record in this town for picking up after dogs, although it is not a perfect record because nothing is perfect. You could have faced a worse situation had the neighbour's child on a tricycle come around and run into that nice, shiny new car. It could have been scratched and you would have been just as irritated.

Mr. Epp: No, because I love children.

Mr. Quinn: You may not love dogs, but that's not the point. There are laws that cover your point and you cannot add another one on top of them because of an exception, and that is what bothers me. The good guys suffer because of the sins of the few; and there are always sins and always the few.

Mr. Epp: I have one more question. In conclusion, you said that you are requesting that these regulations be revoked.

Mr. Quinn: Yes.

Mr. Epp: Do you think they should be replaced with other regulations that are legal? Should the act be changed to contain a section similar to the section in the National Parks Act? In that way, there could be legal regulations. Or, are you proposing that from now on there be no animal regulations under the NCC act?

Mr. Quinn: My proposal is that they use municipal bylaws available to the NCC. They could be tailored — however, they have to bear in mind the location, whether City of Ottawa, City of Gatineau or Gatineau Park, which has more wilderness, although a great deal of heavy-duty recreation occurs there, to determine what is appropriate. I am talking about a peaceful, long-used park — what is the issue? If you want a shared system, we could probably compromise. Although it might not be necessary under the law, it would be the neighbourly way to handle it. Use the municipal bylaws and all the other laws will apply. For example, if a theft occurs in this building, the Ottawa police will do the investigation. Take advantage of all those taxes and grants in lieu and use the municipalities.

Mr. Epp: I am not finished with you, but I will defer.

Mr. Quinn: Do we not have to ask why the Government of Canada would get into the bylaw business?

Mr. Gallaway: Mr. Quinn, you have obviously done a great deal of work on this issue. How does the animal regulatory regime of the NCC in Ottawa compare with the existing regulatory regime in respect of our national parks? National parks are jammed with people and dogs all summer.

Mr. Quinn: Is your question how it compares with the national parks?

Mr. Gallaway: Yes.

Mr. Quinn: National parks are different kinds of parks. Some of them are similar and some are not similar. If we take Banff National Park, for example, the town area is specifically exempted. However, I do not expect a small town up the highway from Banff towards Jasper to provide a first-class animal control service. It is not feasible. In other words, necessity must be considered.

How they maintain the individual parks is not the issue. I am not in those parks but I am in this park. Does that answer the question?

Mr. Gallaway: One of the most overworked words in this town is ``consultation.'' It has become void of any certainty and is meaningless. Many committee members here do not live in Ottawa, but certainly read the newspaper. It is my opinion, and hardly scientific, that sparks occur regularly between the NCC and the public. I have read stories about kids playing hockey under a light bulb on a lake on NCC land and a bylaw enforcement officer appeared and spoiled their fun. This was in a city neighbourhood.

Could you advise us of the nature of a consultation conducted by the NCC and what it entails? Specifically, I want to know whether the NCC keeps a record of such consultations. Are the consultations well advertised? In your view, are they open consultations? You have had municipal experience, so you know well the exigencies of the public.

Mr. Quinn: I ran a few public consultations, sir, most of which were successful.

Mr. Gallaway: In your view, does the NCC meet that in its consultations?

Mr. Quinn: The NCC has a difficult time and has some problems with that. That is my short answer.

Mr. Gallaway: Do they keep a record or a transcript of the consultations?

Mr. Quinn: I do not know. I have tended to step back from some of that activity, because there is much to fill the breach.

The Joint Chairman (Senator Hervieux-Payette): I should like to say that Mr. Quinn's presence and the committee's willingness have served to make this an exceptional hearing on the issue. If we were to do this for each Crown corporation under the federal government we would find insufficient days in the year. We live here in the community as members of Parliament and that is why we have certainly stepped beyond the usual format of our work as we study hundreds of regulations each year.

We understand that it is more a community problem, but we hope to resolve the question of the legality of the regulations. With the expert advice of our general counsel, we will certainly continue the dialogue with NCC lawyers to try to resolve this issue reasonably, legally and amicably. That is our mandate.

I thank our witnesses for attending.

Mr. Quinn: There is one point I should like to make to the committee. I took some time to read the Statutory Instruments Act, as far back as 1968-69 when Mr. Mark MacGuigan was chairman of the committee. This was brought in under the Right Honourable John Turner, then Minister of Justice. You are the only political body between the citizens and the executive that can examine any regulation for any reason.

You are not stuck with minor or narrow legal points, on which I would say there is an over-concentration. When someone comes before the committee with a decent case, I think you have to recognize that a problem exists, that the executive reports to Parliament through you and that it has overdone its delegated legislation role. These regulations have been badly conceived, and this committee is the only bulwark available, save the courts, to change these regulations.

The Joint Chairman (Senator Hervieux-Payette): Our presence shows our interest in this matter.

The committee adjourned.

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