---

Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 5 - Evidence, February 17, 2005

---

OTTAWA, Thursday, February 17, 2005

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.

Senator John G. Bryden (Joint Chairman) in the chair

[English]

The Joint Chairman (Senator Bryden): I call the meeting to order. After completing the agenda, I would like to speak to the progress on the smart regulations issue and the potential process for our involvement. Counsel, please proceed with the first item on the agenda.

2ND REPORT (REPORT NO. 72)

Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, Report No. 72 was tabled in the House of Commons and the Senate in April 2003. Following the tabling of that report, the joint chairmen wrote the letter that is before the committee this morning. There has been no response to the letter. To my knowledge, neither of these committees has produced a set of standardized rules for joint committees, although the clerks may have more information. I put the file on the agenda because we have carried it as active in our system for some time. I would like to know from the committee whether I should continue to do so or close the file and consider the matter as drawn to the attention of both Houses and the involvement of the committee is at an end.

The Joint Chairman (Senator Bryden): Does counsel have a recommendation?

Mr. Bernier: We are in the committee's hands.

Mr. Lee: We would have preferred if the House and the Senate had solved the problem. Ours is not the only committee with a potential problem. The difference between House and Senate rules produces the potential for what this committee might describe as lawlessness, so the conflicts are problematic. I cannot imagine any other committee of the House or the Senate being more concerned about this issue than this committee. In a sense, we are asking another committee to do the homework to fix the potential problem, and I do not think they are motivated to do so. Perhaps they do not care much about this committee in the ordinary course. Therefore, I would suggest that this committee resolve its problem and make the decision based on the differences that could arise, which would create difficulties, and adopt a solution. Perhaps that would provide a template for the House or the Senate. When a problem arises, we should try to resolve it in this committee. If either the House or the Senate does not like that approach, they can speak to it.

I would suggest that where a particular combination of rule conflicts arises and causes a problem, this committee should ask the two clerks and counsel to propose a solution and come back to the committee to try to close off those items of potential significance. If the committee agrees on the proposed solutions, then it would try to follow them.

The Joint Chairman (Senator Bryden): Are there other comments or suggestions?

Senator Moore: That is a good idea, chair.

The Joint Chairman (Senator Bryden): Counsel, do you have a comment?

Mr. Bernier: It is open and I want to be clear that this is Mr. Lee's proposal. This committee can adopt a report of the House. It would be far more precise than this and would lay out the rules that the committee intends to follow. That report would have to be adopted by both Houses and those rules would then apply. The committee could make the choice, when there is a conflict in rules, and seek the concurrence of both Houses that this constitutes the applicable rule as far as the joint committee is concerned.

Mr. Lee: It would be great if we could achieve concurrence, but neither House will be terribly motivated to give us concurrence. If they do not want to, the heck with them. We will go ahead and do it. We will fix it and proceed. If either House concurs upon our invitation, it can do so. If the Houses do not concur, or do not want to or cannot, we will simply proceed. I do not think anyone in either House will notice. However, let us propose our changes for concurrence in a report. That is a good suggestion by counsel. I would not make the adoption of our solutions contingent on one or two concurrences in the House. We should invite objections, and if there are none, we should proceed.

The Joint Chairman (Senator Bryden): Perhaps counsel could confirm that the issue is the divergent processes in the two chambers.

Mr. Bernier: That is correct. There is a brief summary for the clerks' benefit in the report. It includes points such as the processes for electing chairs, which are divergent; the conditions under which chairs may vote; the effect of a tied vote; and many more. Each house has a different approach to all of these processes. A joint committee creates a difficulty because it is composed of members from both Houses and so a decision has to be made each time as to which approach will be followed by the joint committee.

Mr. Wappel: Mr. Chairman, if I understand correctly, Mr. Lee is suggesting that this committee, obviously the master of its own fate, would review the divergent views and make an informed decision on which view, or some other choice, would be adopted by the committee. This committee would adopt those procedures, to be followed until another change were to be adopted by the joint committee. We would then ask both Houses to concur. If they do, wonderful; if they do not, too bad. We will still operate under the rules that we have agreed upon.

I believe that is what Mr. Lee suggested and I certainly support it.

The Joint Chairman (Senator Bryden): If I may add a caveat, while it is true that the committee is master of its own fate, it is also a creation of the assemblies that appointed its members. The reports that we provide go to our Houses. For example, in the first report that was tabled in the Senate, one specific item had to be included: That senators could sit as members of the joint committee when the Senate was not sitting. Otherwise, senators could not sit on this committee. While it is fine to say that the committee will go its own way, the Senate could deny permission for senators to sit, or vice versa. Mr. Michaud, do you have a comment?

Mr. François Michaud, Joint Clerk of the Committee: I am not certain that a report to both Houses at this time is required. I do not understand the problem because to date the committee accomplishes its mandate according to the rules. Yes, there are discrepancies between the Senate rules and those of the House of Commons but, in general, the committee works well.

Mr. Bernier mentioned that the procedure for the election of chairs is different in the two Houses. In the past, the joint chair from the Senate would vote, as he or she is entitled to according to the Rules of the Senate, and the joint chair from the House of Commons would not vote. I am uncertain as to the problem that is to be resolved.

Mr. Bernier: Mr. Chairman, this is not counsel's problem. The report was adopted largely at the behest of Mr. Michaud's predecessor as clerk. I did not see these problems; the members of the committee have seen these problems. The previous clerk apparently shared this view because he is the one who invited the committee to make this report. Today, I simply ask the committee what it would like me to do with this file that is still open in the committee's secretariat.

Mr. Wappel: I have two comments. On your point, perhaps that is exactly what this committee would like — one chamber to “yank the chain” and pay attention to the committee's message and give it due consideration. It is fundamentally unfair that one chair is eligible to vote and the other chair is not eligible in exactly the same circumstances. That is a fundamental discrepancy. I would think it would be reasonable for both chairs to have the same powers and limitations. That should be discussed.

I do not want to beat a dead horse, but I think you are right, Mr. Chair, in saying that someone may “pull our chain.” That would be great because then they might focus on the issue.

The Joint Chairman (Senator Bryden): I would propose that our counsel and our clerks recommend suggestions for a unified process for review at the committee's next meeting. There is nothing wrong with us then reporting back to our respective chambers to advise on how we would like to proceed. Hopefully, they will have the good sense to simply adopt our report. Otherwise, we will continue to do our job in whichever way is necessary.

Hon. Members: Agreed.

C.R.C. c. 1486 — SMALL FISHING VESSEL INSPECTION REGULATIONS

Mr. Bernier: Mr. Chairman, in early 2003 the Department of Transport informed the committee that the department had undertaken a review of all regulations under the Canada Shipping Act in anticipation of the coming into force of the Canada Shipping Act, 2001, which is expected to take place in 2006.

This regulatory reform project was divided into two phases. Phase one consisted of the new regulations required to implement the new legislation, as well as modifying existing regulations that are inconsistent with the Canada Shipping Act, 2001. In phase two of the project, regulations consistent with the new legislation but in need of modernization would be dealt with. As I said, this was all forecast to be completed in 2006.

Marine safety officials sought the committee's concurrence to allow them to deal with amendments or issues raised by the committee or amendments requested by the committee within the framework of that broad regulatory reform project. The committee considered that request and accepted it, subject to three provisos: first, that the committee would continue to receive substantive replies to any objections; second, that the regulatory reform project would, in fact, be completed on schedule; and third, that the committee reserved the option to press for immediate amendments in certain cases.

The department's reply states that the department agrees with this approach, although in respect of the first proviso, Mr. McCullough points out that on some issues a substantive reply may have to wait until policy decisions are made on a particular regulation.

Without wishing to be unreasonable, Mr. Chairman, I fail to see why the policy reflected in a particular regulation under review should preclude providing the committee with a reply to an objection. If the committee writes that an existing regulation is illegal or ultra vires or defective in drafting, surely it is still possible, whether or not that regulation is undergoing a policy review, for a department to state that it agrees with the committee or that it does not agree with the committee and provide reasons.

Having said that, Mr. Chairman, I do think the department understands the committee's position, which will be reiterated, if need be, on a case-by-case basis.

The Joint Chairman (Senator Bryden): What is your recommendation?

Mr. Bernier: This is for the information of the committee.

The Joint Chairman (Senator Bryden): Is it agreed?

Hon. Members: Agreed.

SOR/97-144 — BROADCASTING LICENCE FEE REGULATIONS, 1997

Mr. Bernier: Mr. Chairman, members have in their hands a copy of the October 23, 2003, report of the joint committee in relation to this file. The minister's response to that report is dated March 23, 2004. When that response was considered by the committee on May 6, 2004, the committee instructed that the October 13 letter be sent to ascertain how the review mentioned by the minister in her letter was progressing.

In her letter, the minister had said that the government, in an earlier response to the Standing Committee on Canadian Heritage, had indicated that the issue would be examined, and went on to state that this examination was underway and continuing in consultation with various departments and agencies. In light of those statements, I found it a little surprising to be informed by Mr. Boileau, on January 31, 2005, that all of those discussions were apparently aimed at defining the terms of reference for a study that will only now be undertaken by the private sector.

It was anticipated in January that a contract would be awarded in March for the conduct of a study, with a final report expected by June. Personally, I find it a little difficult to understand why a government program is being reviewed by a private sector organization when we have a number of civil servants who presumably have the expertise to develop government policy. Be that as it may, this is where this matter stands.

The Joint Chairman (Senator Bryden): I think you are right. It may be strange, but that is not part of our job to say that. Are you putting this item forward for further action or simply for information?

Mr. Bernier: I am putting this item forward to receive further direction from the committee. The making of this report and this file was of particular interest to the member for Scarborough—Rouge River, although his concerns were shared by the whole committee.

We made the report of October 23 and obtained a response from the minister. The committee then instructed me to ascertain how the review mentioned by the minister in her response of March 23, 2004, was progressing. I have obtained that progress report, and it is now before the committee.

The Joint Chairman (Senator Bryden): Mr. Lee, do you have a comment?

Mr. Lee: My take on this set of issues initially was based on my questioning of the legal validity of the Part II fees, which I perceived as being more like a tax than a set of fees. I based my interpretation on the adage that if it walks like a duck and quacks like a duck, it must a duck. These fees, in whatever fiscal year we were looking at, collected $81 million more than the costs of operating the program. The fees were generating revenue.

The reason the department gave us as why they were collecting all this money was that they were charging some kind of rent on the use of the broadcasting spectrum that was used by private broadcasters.

I accept that there is a legitimate legal issue there. However, coming back to my role as a member of Parliament, I do not feel the need to accept anything that looks like a tax, unless it has been properly authorized as a tax. This looks like a tax to me.

The department appears to be very protective of that ability to raise this money by means other than a tax. In other words, they can charge the heck out of the licence holders in a way that is unrestrained by any paradigm. There is no structure that allows one to come to a conclusion about the fairness of the fees.

Someone, somewhere has decided that they will charge $1 million or $2 million or $10 million. The issue of how much the broadcasting spectrum is worth to a broadcaster who has a licence is now the subject of a study because they actually do not know what it is worth.

Our initial position with the department was that we thought the fees might be invalid and that they might actually be a tax. The department now feels that it is not able to get back to us on that issue. They cannot respond because they are in litigation. The litigation commenced after we did our report. The litigation actually challenges the validity in the same way that we had asked the question originally.

We are now in a situation where we can do nothing and let the litigation proceed, or we can pursue the precise issue of the validity of the tax just as the courts are doing; we would be doing it in tandem. The department will say that, “My gosh, we cannot publicly debate this issue with the committee because it would prejudice our pleadings in the litigation.” Therefore, the committee will have to decide whether we continue to challenge the fees as a tax, and whether we do it in camera or in public. I am inclined to continue to challenge.

There is another way of looking at this matter, colleagues. Three to five million dollars will be spent on litigation fees. There are lawyers out there and the meter is now running. The matter will be in one court and then it will be appealed to another. In fact, it might be a $20-million legal bill.

We can solve everyone's problem by disallowing the tax. That will force the department to go back to the drawing board, re-regulate and be more careful about how they do it. I am sure that will please the broadcasters. It will not make the lawyers happy because a lot of meters are running at $300 an hour right now. That is another approach.

I do want to hear from counsel on this matter, but I suggest that we challenge the department to explain to us why they feel the fees are valid and that we get down to the nitty-gritty of the legal tax issues, in particular with respect to the Ontario Court of Appeal Eurig Estate decision. We should ask them to deal specifically with those legal issues with us. Let us do our work.

If they do not, as one committee member, I would be happy to consider a disallowance. We may want to ask the department to come here to testify now or later, but I would like to get on with this issue of assessing and analyzing the validity of the fees.

Mr. Wappel: For me, the issue is even clearer than Mr. Lee sees it. If we look at the letter of January 31, 2005, from the Department of Canadian Heritage, at the beginning of the first sentence of the second paragraph, it is crystal clear that the department considers the Part II fees legal. There is no dispute and no waffling. Their position is that the Part II fees are legal. That is the position the department is vigorously asserting in the litigation.

We have been told that our opinion that the fees might be a tax, which is our usual soft way of saying things, has been completely rejected in that sentence. As Mr. Lee pointed out, the committee must decide either to do nothing and let the litigation resolve the matter one way or another, or we proceed. However, I do not think we need to proceed to find out what their position is; we know what their position is. It may be a good idea to bring the department in here to explain the legal rationale as to why the fees should not be subject to or are not subject to or do not meet the criteria in the Supreme Court case. Certainly I am on record as always willing to use the disallowance mechanism where I think it is warranted, so we should pursue it. It is crystal clear that the department does not agree with our position, and we should find out from a legal perspective why that is.

Senator Moore: I agree with Mr. Wappel's comments. In the closing paragraph on page two of the letter of January 31, 2005, the writer states:

As you know, as our work continues we will be necessarily constrained in the degree to which we can comment on matters related to the Part II fees.

What is that supposed to mean? Does that mean they will not talk about it if the committee calls? Does that inhibit us from having Mr. Boileau or someone else come before the committee to answer our questions?

Mr. Bernier: I believe that it is an attempt to expand the scope of the sub judice rule beyond its traditional scope of application in Parliament. The committee has had occasion to say that the fact that the matter is before the court does not preclude its examination in the parliamentary forum. The Crown is not in the position of a private litigant. The Crown has one position. The Crown does not litigate against citizens, taking a position that is only a position for litigation purposes. If the Crown believes that this regulation is valid, then it must be prepared to give the same explanation of validity to Parliament as it would give to the courts. If the Crown does not believe that the regulation is valid, then it should not defend in front of the courts a regulation that it believes to be invalid. It should tell the courts that, as the Crown, it thinks the regulation is invalid and concede the point. On an issue of validity, the Crown does not litigate for the sake of litigation.

[Translation]

Mr. Ménard: If the people who are contesting these fees as being a tax win their case, what will happen to the surplus which has been paid? Should we not be acting quickly to do damage control, if need be?

Mr. Bernier: The question goes somewhat beyond my mandate as legal advisor to the committee. In general, the court's decision should only apply from the moment it is rendered. There is a presumption of validity at play here. Thus, fees which would have been paid even pursuant to an ultra vires or unconstitutional test, will not be affected by the decision. Once the decision has been rendered, the fees paid after that date will have to be reimbursed.

Mr. Ménard: After the date of the decision, or after the date of the beginning of the proceedings?

Mr. Bernier: That is a technical point, and I will defer to those who are in private practice.

Mr. Ménard: We are talking about $81 million a year?

Mr. Bernier: Yes.

Mr. Ménard: How long has this been going on and how much longer will it be going on?

[English]

The Joint Chairman (Senator Bryden): If the amount had been $8,000, would we be as concerned about the issue? Is it because revenues are being raised to significant amounts under the guise of a fee that is a tax in reality? If that is the issue and is something for Parliament to decide, should it be raised in Parliament rather than by this committee?

Having said that, could we take a position that clearly states the issue between this committee and the department, and then indicate to the department that we intend to pursue the matter under the jurisdiction of the joint committee? At that stage, the letter should be signed by the joint chairs. One of two things would result: either we would proceed on that ground or we would invite persons to appear before the joint committee to explain why we should not do that.

Senator Moore: We have already informed the department of our position and that we deem the fees to be an unauthorized form of taxation. We have made that point quite clear. The previous letters from the committee set that out and so we would be repeating what we have already said.

Mr. Bernier: Mr. Chairman, I hate to complicate matters for members but it is necessary that I point out that in Report No. 73, the committee did not take the position formally that those fees were an illegal tax. If members would please turn to page 4 of the report, the committee referred to the Eurig decision and stated:

The Joint Committee considers that many of these criteria appear to apply to the Part II licence fees imposed by the Broadcasting Licence Fee Regulations, 1997.

The report went on to state in conclusion that:

Generally, the Joint Committee believes that the use made of the authority given by Parliament...

Senator Moore: That is fine.

The Joint Chairman (Senator Bryden): Having said that, I go back to my point. We must deal with this issue as clearly as we can within the jurisdiction of the committee and what we are empowered to do. Let us specify our position and indicate to the department that the committee is prepared to proceed, if necessary, to Parliament for disallowance.

Mr. Lee: Mr. Chairman, I have not heard any member of the committee reject Mr. Wappel's suggestion that we give the department an opportunity to explain their position. I believe all committee members have accepted the suggestion that the Part II fees may be ultra vires, and so we should call departmental officials as witnesses. We have already been through the paperwork and have reported to the both Houses. The department thinks it is not in a position to deal with the nuts and bolts of the matter. I do not want to waste too much more time on letters. We can write them back, but the better suggestion would be to have the departmental officials come before the committee to justify their legal position. Following that testimony, the committee members can take a decision on whether or not we agree.

The Joint Chairman (Senator Bryden): I have no problem with that. However, if we are to do that, we need to be clear in our message that it is for the purpose of giving evidence before the committee. Is it necessary to state specifically in our call to the department what it is we expect them to give evidence on? Is everyone comfortable that the departmental officials are so familiar with this file that they will know what we are talking about? If I were summoned to come before a parliamentary committee, I would like to know what I would be questioned on. If I were a big bureaucracy, I would want to send my best people.

It is my understanding there is not unanimity as to whether this is a fee or a tax. We are not clear in our own minds, some of us. So, that would be the issue to be discussed. Is that correct, Mr. Lee?

Mr. Lee: Yes. I think counsel would be able to frame the question as to whether or not this is a valid fee/tax. The real question is whether this is a tax masquerading as a fee.

There are some criteria that are well known to tax lawyers, well known to counsel. I have read them; members around the table, I think, have read them. I would like the CRTC to come and explain their position with reference to those criteria — whether they meet them or they do not. They will have to send their lawyer. It is another meter running, but they will have to send their lawyer here. They may request that we meet in camera, simply because they are involved in litigation; I do not know. They would be highly unlikely to make admissions publicly that could be used against them later.

Let us leave that for now. My suggestion is to follow up. Let us call them, give them an opportunity to explain their position, and have a discussion.

Members can make a decision after that on how we want to proceed.

The Joint Chairman (Senator Bryden): Counsel, are you comfortable that you have enough instruction to proceed?

Mr. Bernier: If that is the wish of the committee, yes.

Ms. Wasylycia-Leis: I do not disagree with calling them as witnesses, but will we get much out of them? Can we, as a committee, require them to give testimony in camera, when it would appear, based on the January 31 letter, they are going to hide behind a study or hide behind the fact that it is before the courts? Is that not likely to be the outcome?

This issue of the study is a very interesting one. Mr. Bernier's side comment about the department not doing it — it being contracted out and going through a lengthy process of tendering — is interesting on its own, but it also seems to be part of a stalling tactic, an attempt to keep at it until you get the right answer.

I wondered if it is going to be that productive for us to have them as witnesses.

The Joint Chairman (Senator Bryden): My view is that we cannot judge that until we have a go at it. It is possible for us; there is a lot of cross-examining talent around this table. There are questions that can be asked that will be difficult, I would think, for the CTRC to either try to cover up or avoid — for them not to answer.

My view is that it is worth trying to do that. If it is the consensus of the committee, I would ask counsel to proceed to set that up? Agreed?

Hon. Members: Agreed.

SOR/97-555 — BROADCASTING DISTRIBUTION REGULATIONS

SOR/87-49 — TELEVISION BROADCASTING REGULATIONS, 1987

SOR/90-105 — PAY TELEVISION REGULATIONS, 1990

SOR/90-106 — SPECIALTY SERVICES REGULATIONS, 1990

SOR/92-609 — RADIO REGULATIONS, 1986, AMENDMENT

SOR/92-611 — TELEVISION BROADCASTING REGULATIONS, 1987, AMENDMENT

SOR/93-420 — BROADCASTING INFORMATION REGULATIONS, 1993

(For text of documents, see Appendix A, p. 5A:1)

Mr. Jacques Rousseau, Counsel to the Committee: Mr. Chairman, I will deal with all of these files at the same time.

[Translation]

Mr. Chairman, as can be seen from the correspondence, SOR/97-555 raises problems of the same nature as several other regulations which come under the responsibility of the Canadian Radio-television and Telecommunications Commission.

That is why all these regulations have been grouped together. I can summarize the status of all of these files by reviewing the correspondence on SOR/97-555. First, I want to point out that the adoption of SOR/87-49 corrected four drafting problems and deleted a provision which contained an illegal subdelegation of power. The adoption of SOR/90-105 eliminated a vague provision the contravention of which could lead to serious criminal consequences.

With regard to SOR/97-555, ten points were raised. I will begin with those which have been settled or are in the process of being settled. As the members of the committee will see when they examine SOR/2003-217, the problems raised in points 6, 7 and 9 of the letter dated August 29, 2001, have been corrected.

Point 1 of the letter refers to a problem which had also been raised when SOR/91-517 was examined. The committee had already deemed the reply of the commission at its May 1, 2003 meeting to be satisfactory.

Moreover, the commission provided a satisfactory response to the question raised in point 8. Point 5 will also be settled by repealing the regulatory provision at issue.

There remain points 2, 3, 4 and 10, concerning which the change of correspondence with the commission has not led to a conclusion, as you can see from the commission's letter dated November 22, 2004.

As for points 2 and 3, discussions centre on the validity of the provisions. The committee already studied point 2 when it examined SOR/90-106.

In both cases there is reason to think that the regulatory provisions are not in keeping with the Canadian Charter of Rights and Freedoms. The commission has not rejected our point of view, even though it maintains that the provisions are valid.

However it points to the fact that the Federal Court of Appeal agreed to hear an appeal in the Genex Communications Inc. v. The Solicitor General of Canada and the CRTC case, and has deferred a final response until later. The validity of provisions of this nature has been raised and the Court of Appeal may have to render a decision on the matter. The fact remains that the committee does not play the same role as the courts, as was discussed in relation to the previous file.

Moreover, this matter was raised incidentally in the Genex case. It is possible that our arguments may not even be discussed by the court. For these reasons, Mr. Chairman, it would be appropriate to insist that the commission provide us with a complete response.

As for point 4, this is a provision concerning which the committee had received an amendment promise when the previous regulations were examined. Counsel asked the commission to confirm that it had not changed its mind. The replies provided in the letters dated November 1, 2001 and November 22, 2004 are not satisfactory. In the first one, the commission concludes by saying that it is studying the issue; in the second letter, it seems to have forgotten to provide the expected reply.

Finally, there is point 10, for which the reply is not satisfactory either. As concerns section 47(3)(b) of the Broadcasting Distribution Regulations, it allows a licensee who operates a business in a region where there is competition to ask the commission to be exempt from the part of the regulations concerning the regulation of fees and basic service. The licensee who makes a proposal for this exemption must demonstrate to the commission that the conditions required in the regulations exist where the licensee is carrying on its activities.

Section 47(3)(b) of the regulation provides that

The Commission may disallow the licensee's proposal to be removed from the obligations of this Part.

The advisors wanted to obtain confirmation that the only reason that would lead the commission to disallow a proposal is that it does not meet the requirements under section 47 of the regulation.

The answers provided by the commission are not satisfactory. In the letter dated November 22, 2004, the commission explains that in the normal course of events, that would be the case.

It adds, however, that the interpretation of the regulations by the Federal Court of Appeal seems to suggest that the commission may have more leeway.

It was the commission which passed these regulations. On the one hand, it should be able to tell us clearly what, in so doing, its intentions were. On the other hand, if the interpretation of the regulations by the courts is not congruent with that intention, the commission should clarify its regulations forthwith.

Counsels' recommendation on points 4 and 10 is to write to the commission again to explain to it why the responses provided are not satisfactory.

Hon. Members: Agreed.

SOR/95-144 — NOVA SCOTIA OFFSHORE AREA PETROLEUM GEOPHYSICAL OPERATIONS REGULATIONS

(For text of documents, see Appendix B, p. 5B:1 )

Mr. Rousseau: The problem raised in this file concerns section 28 of the regulations which lists the circumstances under which an accident or incident that results in death or injury or pollution may be investigated, and appears to duplicate the powers of investigation which Parliament itself provided for in section 170 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act.

In the letter dated March 19, 2003, the department acknowledges that there does appear to be some kind of overlap. In the letter dated July 23, 2003, the department states that section 28 of the regulations and section 170 of the act serve different purposes.

In a letter dated August 5 of the same year, committee counsel explained that this viewpoint rests on an interpretation of the legislation which is not justified. They also asked the department to describe the powers that may be exercised in the course of an investigation conducted pursuant to section 28 of the regulations.

In these three letters, the department merely restates that section 28 is, in its opinion, necessary and that it is consulting the National Energy Board and the Offshore Petroleum Board.

The correspondence in this file dates back to March 2002. At this point, the department should be in a position to provide us with a complete response. All the more so since, as we are going to see a little later when we examine SOR/ 95-190, the department is proposing the elimination of a similar provision in other regulations, having come to the conclusion that it served no useful purpose.

With the committee's agreement, counsel could, in the next letter, insist that the commission provide a complete reply without delay.

[English]

Mr. Lee: Two things jump out on this one. One is that the person we are corresponding with appears to be under some kind of a disability in dealing with the issue. It is not clear to me why. I guess there is no way we can have the file moved to someone else who could deal more directly with it. That was the first thing that jumped out.

The other was that it was unclear to me precisely why an overlap was a problem. Could counsel explain that? I realize that the statute has a provision, and then the regulations themselves have an analogous but not identical provision that seems to cover a different ambit. Can counsel explain why that would be a problem?

Mr. Rousseau: There are powers of inquiry in the act. The regulations establish powers of the same nature, as far as I am concerned. As I said, when we look at the provisions of all those regulations, they are the same nature. In one file, the department has accepted that the regulations' powers were useless. There is an overlap in that sense. It has been recognized by the department in one file, and it has not been recognized in the other file — the file that we are considering right now.

In both cases, the reasons to set an inquiry are the same to a large extent, as far as I am concerned. As I said, the reasons put forward by the department to try to distinguish between the two are really not convincing.

Mr. Lee: I agree with you there. I have read it and you are being polite when you say they are not convincing.

My question was this, however: What is the problem with having an overlap? If the statute allows the creation of regulations, which trigger an inquiry and a process, and if the statute does the same thing, what is the problem of the overlap, unless it somehow prejudices a citizen's position?

Mr. Rousseau: If Parliament has established an inquiry power, you may think that it did not give regulatory powers to establish an inquiry. To that extent, we can see the regulations as being ultra vires. At the least, they are useless and should not be here; and it could create confusion.

Mr. Lee: That answers my question.

Mr. Rousseau: As a source of power.

Mr. Lee: I think that answers my question. The potential for confusion and the pre-eminence of the statutory procedure should preclude the need for anything else that could confuse or interfere with the statutory proscription. That is fine. Thank you.

Mr. Anders: I wonder if this confusion between section 28 and section 170 may have an impact on the following. I am going to give this for elucidation. There is a fellow in Calgary who operates a geophysical company, and he has operated for a number of years in areas of the St. Lawrence Seaway, Newfoundland, et cetera, and probably even in the jurisdiction we are dealing with here, Nova Scotia. What he does is, as his boat goes along, he uses ultrasonic methods to go ahead and draw a geophysical map of those sea beds to see where the oil deposits are, et cetera.

He has expressed to me incredible frustration over this whole aspect of pollution or danger to the environment. The ultrasonic methods he uses are basically the replication of whale-echo sounds — which are ultrasonic echoes that whales use to communicate with each other. It is hard to imagine that that constitutes pollution, compared to all the other ocean noises out there. Nevertheless, he has been frustrated to the tune of hundreds of thousands, if not millions, of dollars, by delays and obfuscation and various things that may be caused by this.

The gentleman I am referring to is a multimillionaire who employs 80 people; he is doing business in other countries now. He does most of his business outside of Canada, which is a real shame because we are losing out on Canadian jobs. It could be things like this that are causing this gentleman not to do business in Canada anymore.

The Joint Chairman (Senator Bryden): Do you have enough to proceed?

Thank you for your comments. One of the things that happens when you have this complication — just as a side comment — is that if you get proceedings against you under the regulations, and they do not work, you come back and you do the same thing under the statute, which is basically the same thing. You do it all over again, and that ends up being harassment if that occurs. Does everyone agree we rely on counsel?

Hon. Members: Agreed.

SOR/90-264 — MARINE MACHINERY REGULATIONS

Mr. Bernier: This file illustrates a point I made earlier in relation to the second item on today's agenda. After review of these regulations, Mr. Rousseau drew some 46 points to the attention of the department. All of these except one relate to matters of drafting and conformity between the two versions of enactment. In reply, the department refers to the regulatory reform project we discussed earlier, and states that the revision would benefit from the observations and suggestions made by my colleague. This is not what we consider a substantive reply, and Mr. Rousseau pursued this in further correspondence. This eventually elicited an undertaking that any new regulations that will be made to implement the new Canada Shipping Act, 2001, would take Mr. Rousseau's comments into account.

This still falls a little short of what we would normally expect. The fact that these regulations may be modified as a result of this regulatory reform project does not in any way prevent the department from indicating clearly whether it agrees with the comments made in relation to these regulations currently in force and to do so on each of the points that has been made.

When or how the provision is then amended, or whether it will even be need to be amended, is an entirely different issue. On that, the committee has already accepted that it would give time for this regulatory reform project to come to fruition before pursuing those issues.

These are points of drafting and, in that context, Mr. McCullough's last letter can probably be regarded as agreement with the issues raised. However, if a more substantive issue had been raised in this case, it certainly cannot be accepted as sufficient for the department to reply that the regulation in question is under review and that an answer will be given once the regulatory reform project is concluded. I thought I would mention this, as it illustrates the difficulties we meet in terms of having the same understanding of the first proviso that the committee put on its acceptance of the Department of Transport's proposal.

That being said, those points of drafting will be dealt with, presumably, as part of that regulatory reform project. Whatever new regulation results, if the same provisions appear or are to continue in force, they will be corrected.

The Joint Chairman (Senator Bryden): Will counsel take further action?

Mr. Bernier: Not at this time, because the committee did agree to wait until 2006 to give the Department of Transport time to complete its regulatory reform project.

The Joint Chairman (Senator Bryden): Are members agreed?

Hon. Members: Agreed.

SOR/2003-285 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

SOR/2002-286 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS

(For text of documents, see Appendix C, p. 5C:1)

Mr. Bernier: The instrument registered as SOR/2002-286 corrected some 22 drafting errors that had been drawn to the attention of the Canadian Grain Commission. The instrument registered as SOR/2003-285 corrected a discrepancy between the two versions of SOR/2002-286, as well as two other discrepancies previously drawn to the attention of the commission. In relation to SOR/2003-285, corrective action is promised on a small point of drafting.

The other issue that had been raised in relation to that instrument was the fact that it was not registered within seven days of its making, as required by the Statutory Instruments Act. The explanation for this failure to observe the statutory requirement is set out in Ms. Gilroy's letter of December 8, 2003. That explanation gave rise to questions that were put to Ms. Gilroy in Mr. Bernhardt's letter of December 15, 2003. Ms. Gilroy replied that the earlier explanation provided was incorrect and that the delay in registering SOR/2003-285 occurred on the basis of advice received from the Department of Justice that that instrument should be registered at the same time as SOR/2003-284, which was delayed. That delay resulted in the late registration of the companion SOR/2003-285.

While it is correct that the Department of Justice advised that both those instruments should be registered the same day, that advice could certainly not be construed as a suggestion by the Department of Justice that the statutory requirement be ignored by the Canadian Grain Commission. Be that as it may, the failure to observe the seven-day registration deadline under the SIA does not invalidate the regulation, so there is nothing to pursue in this case other than the promised correction to item 103 of Schedule 5, which will be followed up in the usual way.

The Joint Chairman (Senator Bryden): Are members agreed?

Hon. Members: Agreed.

SOR/2002-164 — NATIONAL CAPITAL COMMISSION ANIMAL REGULATIONS

SOR/2002-165 — REGULATIONS AMENDING THE NATIONAL CAPITAL COMMISSION TRAFFIC AND PROPERTY REGULATIONS

(For text of documents, see Appendix D, p. 5D:1)

Mr. Bernier: Mr. Chairman and members may remember the appearance before the committee of representatives of the National Capital Commission in respect of the NCC animal regulations. Following that appearance, NCC officials were asked to provide a report on three areas that remained of concern to the committee. The first area had to do with the vicarious liability that was imposed through the definition of “keeper.” The June 3, 2004, letter confirms that this liability will be removed from the regulations.

The second area of concern centred on the designation of so-called off-leash areas on NCC property, which was left entirely to the discretion of the NCC. There is now an undertaking given in the same letter to develop criteria that will govern the establishment of such areas by the NCC.

The third area of concern for the joint committee was that the definition of “domestic animal” was so broad as to bring into question the validity of the regulations under the National Capital Act. The commission has undertaken to better define this term and hence the scope of application of those regulations. Of course, any comments in that respect will have to wait until we see the actual definitions.

At this time, I would suggest that a progress report on these initiatives and earlier promised amendments be sought from the commission. This past fall, Mr. Chairman, counsel also examined an amendment to the NCC Traffic and Property Regulations, SOR/2002-165, which added some similar provisions to that set of regulations. The replies to those comments were satisfactory. There is a possible divergence between the two versions of the definition of “domestic animal” — and that will be addressed — and a correction in the French version of section 39(1) will be made. Progress of those amendments should be inquired into at this time

The Joint Chairman (Senator Bryden): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/91-570 — ENERGY MONITORING REGULATIONS, AMENDMENT

Mr. Rousseau: In this file, various amendments concerning the drafting of the regulations were promised. The committee accepted that these amendments would be made at the same time as other changes the department wished to make. The department afterwards announced that the regulations would simply be repealed. Various considerations led to the postponement of that revocation. The letter dated September 23, 2004 shows the extent to which the department found it difficult to prepare a final position on the text of the draft regulations which were to replace the current ones. The letter does not specify when the current regulations may be repealed. With the committee's agreement, counsel could ask the department to set a deadline.

Hon. Members: Agreed.

SOR/94-651 — ENERGY EFFICIENCY REGULATIONS, AS AMENDED TO SOR/2003-136

(For text of documents, see Appendix E, p. 5E:1)

Mr. Rousseau: As you can see from the letter dated November 27, 2003, 22 points were raised in this file. Amendments were promised in the vast majority of cases. Satisfactory responses were provided to point 2, to the first paragraph of point 3, as well as to points 5 and 15. Correspondence should continue to be exchanged in the matter of the other points if the committee agrees with counsel.

On point 11, the department undertakes to repeal certain provisions commented on by counsel. In light of the reason given to justify that revocation, we could ask the department if it would not be appropriate to repeal all similar provisions in the regulations.

The reply provided on point 14 is unsatisfactory. Counsel questioned the validity of sections 13 and 14 of the regulations which require that certain information be imparted to the minister. Authorization to adopt these regulatory provisions, according to the department, is given in section 25(c) of the act which provides for the following, and I quote:

...[the making of regulations ] for carrying out the purposes and provisions of this act.

According to the department, sections 13 and 14 of the regulations provide for the implementation of sections 4(1), 5(2) and 25(a) of the act.

One may question the need for sections 13 and 14 in this regard. Section 5(1) of the act provides that for the purposes of the application of section 4(1) of the act, the dealer must provide information respecting the energy efficiency of products to the department. The information that must be furnished pursuant to sections 13 and 14 cannot be said to be information respecting the energy efficiency of products.

As for section 5(2), it states that it is not necessary to provide that information if the minister is convinced, for instance, that the equipment has the same energy efficiency characteristics as a comparable product which was the subject of a report tabled by another dealer pursuant to section 5(1) of the act. In light of that fact, it is not clear that the information required under sections 13 and 14 of the regulations is necessarily related to the information the minister needs to decide whether that is the case. It is needed, for instance, when dealers are asked whether the products are imported to be integrated into other equipment destined for import.

Section 25(a) of the regulations authorizes the making of regulations to exempt any person, energy using product or transaction, or any class thereof, from the application of any or all of the provisions of this act toward regulations. The department states that the information gathered in this context serves to identify those who had benefited from the exemption granted by the regulation. At best, this is an implementation measure pertaining to the regulations and not to the act.

The department should explain how it came to the conclusion that this was an implementation measure that pertained to the act. Allow me to point out that this same enabling power defect was identified with respect to section 15(2)(c) of the regulations.

Point 16 concerns the nature of the regulatory provisions in question. The regulations exempt dealers from certain provisions of the act. This was authorized by section 25(1) of the act, as we just saw. However, the dealers must comply with the requirements mentioned in the regulations. Counsel interpreted these requirements as conditions which dealers must respect if they are to avail themselves of the exemption. They pointed out that there is no authority in the legislation to impose such conditions. The department recognizes the problem in the case of section 16(1) of the regulations which it has agreed to amend.

As for sections 15(2) and 16(2) of the regulations, the department maintains in its response that these are not conditions that must be met in order to benefit from the exemption. The department feels that these requirements set rules that must be followed after availing oneself of the exemption. According to the department, the dealer that does not comply with the requirements is still exempted. However, the supplier would be in breach of the regulations. The question is whether or not the Committee is willing to accept the distinction drawn by the department. It is not entirely without merit, but it certainly does rest, in certain cases, on the way in which the regulations are drafted.

In summary, if the committee accepts the department's opinion on point 16, only points 11 and 14 would still need to be resolved. Committee counsel could write to the department again to share with it the Committee's opinion and ask it to review the two points in question.

Hon. Members: Agreed.

SOR/95-190 — NOVA SCOTIA OFFSHORE AREA PETROLEUM PRODUCTION AND CONSERVATION REGULATIONS

(For text of documents, see Appendix F, p. 5F:1)

Mr. Rousseau: Mr. Chairman, 33 points were raised in this file. The department promised amendments in the vast majority of cases. The only points still requiring some clarification are points 1, 10 and 28 of the letter dated April 24, 2003.

With respect to point 1, although the department has suggested an amendment, the English version of its proposal contains an error which should be pointed out.

In point 10, the department suggests an amendment to the regulations but does not take into account the need to harmonize the wording of the act itself and that of the act and regulations.

In point 28, the department agrees with us and proposes repealing section 67(2) of the regulations which adds nothing to what is already provided for in the legislation. However, the provincial offshore petroleum boards are opposed to repealing this provision. The department has initiated discussions in that regard. It would be appropriate therefore to request a status report.

With the Committee's agreement, counsel will write to the department concerning these three points.

Hon. Members: Agreed.

[English]

SOR/2002-60 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

(For text of document, see Appendix G, p. 5G:1)

Mr. Bernier: The department has agreed to make amendments to deal with the issues raised by Mr. Billingsley concerning section 400.06 of the regulations.

As regards section 400.07, that section requires a permit holder to notify the department of any change of address within seven days of the change. This is a reporting requirement. Mr. Billingsley asked to be given the precise enabling authority for this reporting requirement. Mr. McCullough replied that the authority is section 4.9 of the Aeronautics Act.

I can assure the committee that Mr. Billingsley is quite aware of the existence of section 4.9. The fact is that that section consists of some 23 distinct paragraphs, each of which confers enabling authority to make certain regulations, in distinct regulation-making powers. Hence, when my colleague asks to be informed of the precise enabling authority, he is asking the department to identify the particular paragraph that it is relying upon to make the regulation. The very fact that the question is being asked would suggest that Mr. Billingsley could not find any paragraph that would justify or support the adoption of a reporting requirement.

Therefore, with the agreement of the committee, we will write again to the department, amplifying what is meant by “precise enabling authority” in this case, and bring the response to the committee when we receive it.

The Joint Chairman (Senator Bryden): Good plan.

[Translation]

Mr. Ménard: If in French the word “canadien” is in the masculin gender, it is because it qualifies the word “règlement” and not the word “aviation”? If that is the case, in my opinion, it would be better to say “règlement canadien sur l'aviation.”

Mr. Bernier: We can make that suggestion, if the committee agrees.

Mr. Ménard: In order to ensure a certain consistency in the text of regulations, the other terms must be qualified in this manner.

Mr. Bernier: With the committee's agreement, I would suggest that we ask the department to consult its legal drafters to explain to us why in this case this title layout was chosen rather than the one that you are suggesting.

Mr. Ménard: I thought you would know the answer. If the title of the regulations was more complicated, for instance, regulations to control lobster production, would we refer to them as the “Canadian regulations to control lobster production” or rather as the “regulations to control Canadian lobster production”?

Mr. Rousseau: With your permission, I will venture an explanation. We know that these are Canadian regulations that apply throughout the country.

It is not necessary to specify that these are Canadian regulations. I believe we said that these regulations pertain to aviation in Canada. There is no need to specify that the regulations are Canadian.

Mr. Ménard: Not necessarily because it is the same in English.

Mr. Bernier: In the English text, I think that “Canadian” qualifies “aviation.” Let us ask the English speaking members for their opinion.

Mr. Ménard: If it qualifies “aviation” in English, it should be the feminine form, “canadienne” in French.

Mr. Bernier: Let us put the question.

The Deputy Chairman (Senator Bryden): All right.

[English]

SOR/2004-53 — FEDERAL ELECTIONS FEES TARIFF

(For text of document, see Appendix H, p. 5H:1)

Mr. Bernier: Mr. Chairman, this amendment effects some seven corrections requested by the committee. Six questions were raised in respect of the new tariff. Amendments have been promised on the matters identified in points 2 to 6 of the correspondence. In respect of section 5 of the tariff, a full and satisfactory explanation has been provided by Mr. Kingsley, in his December 28 reply. Progress of promised amendments will be monitored in the usual way.

The Joint Chairman (Senator Bryden): Are members agreed?

Hon. Members: Agreed.

[Translation]

SOR/2004-80 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix I, p. 5I:1)

Mr. Rousseau: As you can see in detail in the notes prepared for the committee, the adoption of SOR/2004-80 corrected 10 problems identified by the committee. Moreover, two new points were raised in the letter of September 15, 2004. The Department promised amendments to point 1 and provided a satisfactory explanation concerning point 2 in terms of the way in which the regulations are applied. If the committee agrees, counsel will monitor the situation in so far as point 1 is concerned and keep the Committee apprised of developments.

The Deputy Chairman (Senator Bryden): Agreed.

SOR/89-123 — CANADIAN EXPLORATION INCENTIVE PROGRAM REGULATIONS

SOR/91-452 — CANADIAN EXPLORATION INCENTIVE PROGRAM REGULATIONS — AMENDMENT

The Joint Chairman (Senator Bryden): The next item of business is the Exploration Incentive Program Regulations.

Mr. Rousseau: Counsels' letter explained why the Canadian Exploration Incentive Program Regulations should be deemed to be repealed as of June 17, 1999, the actual day on which the enabling statute was repealed. The department recognized immediately that this was in fact the case. Since the regulations were repealed, this file can be closed.

The Joint Chairman (Senator Bryden): Agreed.

[English]

SOR/2001-211 — PLUM POX VIRUS COMPENSATION REGULATIONS

SOR/2001-338 — REGULATIONS AMENDING THE PLUM POX VIRUS COMPENSATION REGULATIONS

(For text of document, see Appendix J, p. 5J:1)

Mr. Bernier: With regard to the Plum Pox Virus Compensation Regulations, the agency has agreed to further amendments that will resolve the three outstanding concerns of the committee.

SOR/2003-349 —REGULATIONS AMENDING THE INCLUSION LIST REGULATIONS

(For text of document, see Appendix K, p. 5K:1)

SOR/2004-152 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING THE PERIOD FOR ROYALTY ENTITLEMENTS OF NON-MEMBERS OF COLLECTING BODIES (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix L, p. 5L:1)

SOR/2004-252 — REGULATIONS AMENDING THE BENZENE IN GASOLINE REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix M, p. 5M:1)

SOR/2004-253 — REGULATIONS AMENDING THE LIFE SAVING EQUIPMENT REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix N, p. 5N:1)

SOR/2004-254 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF TRANSPORT REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix O, p. 5O:1)

Mr. Bernier: If I may, under Action Taken, I will deal with the above instruments as a group. They effect a total of 35 amendments requested by the joint committee. A total of 94 instruments have been reviewed and are submitted to the committee without comment.

The Joint Chairman (Senator Bryden): Thank you. We have completed today's agenda.

We will now take a few minutes to speak to smart regulations. First, I have some information, thanks to the diligence of our clerks. I have a memo from Jean François Lafleur who has made a list of potential witnesses. For the smart regulations, the information came from Ms. Julia Hill, Executive Director, Office of the Secretary, Privy Council Office. A witness who would appear on smart regulations is Mr. Gaétan Lussier, Chair of the External Advisory Committee on Smart Regulation. Ms. Hill seemed to think he would be prepared to appear. As well, Mr. George Redling, Assistant Secretary, Privy Council Office, is prepared to appear. Mr. Redling can make a presentation in terms of an update as to what work has been done since the report has been released, which could be helpful to the committee. Mr. Redling can provide information on a study and report entitled “Government Capacity to Assure High-quality Regulation in Canada,” published by the Organization for Economic Cooperation and Development, OECD, in October 2004. That was the predecessor to the External Advisory Committee on Smart Regulation, so we would turn it around as far as the presentation is concerned.

The consensus is that the best time to meet with these witnesses, their availability, is during April. The government has an action plan. The report was made from the smart regulation committee, external to the government, and so that action plan has been presented to cabinet and would likely be made public after the budget on February 23. The action plan has been styled by someone as a reaction to the report of the external advisory committee rather than as a comprehensive response to each and every aspect of that report. The action plan will also be linked to the OECD study. That is the information the committee has preliminarily from the Privy Council Office.

In addition, I spoke with Minister Alcock, who is very concerned with the issue of smart regulations. He has indicated that, at an appropriate time he is prepared, if invited, to appear before the committee to provide information and answer questions.

I put forward to the committee as a suggestion that we will need to have a steering committee meeting prior to our next regular meeting of this committee on March 3 to prepare a schedule of dates and times. I put forward to committee this process: We would begin with testimony by Mr. Redling from the OECD, then testimony by Mr. Lussier from the external advisory committee, and then testimony from the minister, who seems to have the carriage of this issue for the government, in a separate session.

We have two ways of proceeding, which I would like to take to our steering committee at our next meeting to see where we go with this. One would be to have separate, distinct meetings of this committee to deal with the smart regulations solely. That has some benefit in that it gives a two-hour period when we can deal with that issue and that issue only.

The other approach, which may be as good — we were a little lengthy this morning because we got into some discussion that we often do not do — is that if we could contain our regular duties to one hour, from 8:30 until 9:30, then until we have exhausted our witnesses for the smart regulations area, we would use the second hour and invite, for example, the PCO witness and perhaps Mr. Lussier. Then, when it comes time to deal with Minister Alcock, we would devote the second hour of a meeting period to him.

I should like to get some comments from the members of the committee who are here. The benefit, of course, is that members have their calendars blocked out for these periods of time every second week. If we were to go the other route, we would be carving out the same period of time in the in-between week.

I should like to have your views on what I have indicated is possible. Then it would be my intention, with the concurrence of the co-chair and everyone else that is involved, to have a meeting with the steering committee the week after next, at the end of our regular meeting, to determine the procedure that we will take to the full committee. It sounds to me as though it is not likely to really get under way until the month of April.

Ms. Wasylycia-Leis: I think the schedule of presentations the way you have outlined it makes sense. Given our schedules — and it will only get worse probably into April — the best strategy, in my mind, would be to try to be precise about our meetings, get through our business quickly and have a good hour for discussion. Otherwise, I think you will have a hard time trying to juggle schedules.

I assume all of us now are booked 8:30 to 10:30 every second Thursday. We are getting used to it, and we should be able to do that. That would be my suggestion.

The Joint Chairman (Senator Bryden): Other comments?

Mr. Lee: I am not getting a clear picture of what we are looking at. There was a report of this external committee. I read through it, and I probably fell asleep 10 times reading it. I am what you might call a motivated reader in this field; yet, I had trouble digesting it conceptually. Much of the report simply proposed concepts and general approaches to doing things, which everyone would agree with.

For those members of the committee who have been through this before, the tension develops in regulatory reform when regulatory efficiency/expediency bumps up against rule of law. This particular report, I think, paid homage to that concept, but there were no nuts and bolts, no detail.

As we embark on what we should be doing, looking at this as a public interest issue, I just cannot sink my teeth into anything because the government has not yet responded. However, if you ask the minister, the Treasury Board President, he will say, “Yes, by all means, get into it; the more hands, the lighter the load.” I think everyone is looking for some leverage here, something to latch on to.

I am reluctant at this point to dedicate more of our precious time to conceptual cheerleading on regulatory reform. Everyone is in favour of regulatory reform until you start to deal with the nuts and bolts. We have been down this road at least two times before over the last 10 years.

I would be inclined to just put the whole thing back to the steering committee and look for some meat on the table before we start into a study where we will simply pull out all of the old mantras and say, “Yes, we agree with that principle, we agree with this principle.”

Perhaps I am going on too long, but if the purpose is to simply reiterate the perspective of this committee, that we must always address rule of law and subscribe to that, I suppose that is okay, but I would not want to invest more than one meeting just to restate the principle.

Many members will learn some of the issues from that process. However, I do not think that we, as a committee, or the government, are ready for prime-time study of where the thing is going, because it is still pretty conceptual. I am slightly undermotivated. I would put it back to the steering committee.

If you want to have a panel in here, as soon as we could conveniently arrange it, that is okay, too. I am sure the minister will want to show everyone that he is doing his thing, and the panel wants to show they did their work, and the departmental officials will want to show that they are ready to embark on this bold new agenda. That is great — everyone is doing their work and we are doing our work. However, I do not anticipate we will make substantial progress, and that is why I do not want to invest a whole ton of time. I am sorry if I have been too negative.

The Joint Chairman (Senator Bryden): You are not a great deal more negative than this chair is in relation to it generally.

Ms. Wasylycia-Leis: I am sorry, I have to leave to listen to the alternative federal budget release. I have never been through this, so I do not have the same cynicism as Mr. Lee, but I hear what he is saying about this being a show-and- tell opportunity for the minister and not much more. However, I think it is worth having a couple of sessions to see where we are at.

If you want to leave it for the steering committee next week or the week after, that is fine.

The Joint Chairman (Senator Bryden): I just want to say this: I thought this had gone away, in the sense that we were going to do what Mr. Lee is saying, wait until there is some action taken by government to allow us to do something. However, it is like certain diseases. You think you are rid of them but they keep coming back. This one does not go away.

Some of the members are not here, but at the end of every meeting I get asked by various people when we will hear something about the smart regulations. Some of them, in fairness, have not had the benefit of your long experience.

What I think we will do is call a steering committee meeting after our meeting two weeks from now, and one of the considerations will be that we will get information, that we are not launching a study. This is what I will put to the steering committee: I will put to them that we will invite certain individuals who have some familiarity with this to come before this committee at the end of the first hour — and attendance will be optional. Anything said there will not be on your final exams. Anyone who is already up to speed on all of this does not have to attend, but at least the opportunity will be made to try to familiarize people.

I know we could do as Mr. Lee suggested and read the report, and do what he probably did, which is nap through most of it. Nevertheless, it would be useful to at least read the executive summary. Then, once we have gone through the preliminary stages, we can make a decision. In the interim, maybe there will be an action position taken by the government after the budget, and we can have the minister come in and explain it. Or if people indicate that they would like to hear from the minister, he indicated to me that if we invite him, he will come. I thought I would pass that on to you.

Can we leave it at that? The steering committee will deal with it; we will set it up with a definite schedule, and attendance will be optional.

Mr. Lee: If we build it, he will come.

The committee adjourned.

---