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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 11 - Evidence, May 29 2008

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OTTAWA, Thursday, May 29, 2008

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

Mr. Derek Lee (Joint Chair) in the chair.

[English]

The Joint Chair (Mr. Lee): Good morning. I ask counsel to proceed with the first item on today's agenda.

REPORT NO. 80 — INCORPORATION BY REFERENCE (GOVERNMENT RESPONSE)

(For text of documents, see Appendix A, p. 11A:1.)

Peter Bernhardt, General Counsel to the Committee: The Second Report of the Joint Committee was tabled on December 12, 2007. In it, the committee explained its long-standing position that, absent an express grant of authority or a clear indication to the contrary in the enabling act, incorporation by reference of external material in regulations is proper only where a fixed text is incorporated, as opposed to a text "as amended from time to time."

The committee's view is rooted in the principle that a person to whom a power to legislate has been delegated may not sub-delegate that power to someone else unless clearly authorized to do so.

The comprehensive government response to the report was tabled in the House of Commons on April 10, 2008. It is succinctly summarized in the covering letter signed by the Minister of Justice on behalf of the government:

The Government does not share the view of the Committee and is confident in its legal position on the issue of ambulatory incorporation by reference in regulations. However, the Government acknowledges that there is some level of uncertainty in the case law and indicates that it will consider whether legislation is an appropriate vehicle through which to bring certainty to this area.

There is little in the government response that adds to the arguments previously advanced by the Department of Justice Canada, and that were dealt with in the committee's report. The government's position is that ambulatory incorporation by reference of material generated independently of the regulation-making authority involves no element of sub-delegation. This conclusion is drawn in large part from court decisions concerning the inter-delegation of powers between the federal and provincial governments. The government's view is that the same reasoning can apply and be transferred to incorporation by reference of external materials in regulations. In its report, the committee described this line of reasoning as "inappropriate and misleading."

The committee also expressed concern in the report that incorporation by reference gives rise to concerns relating to accessibility to the law. It recommended that where opening incorporation by reference is permitted, a provision also should be in place to require that the regulation-maker ensure that a current version of the incorporated document is readily available to the public, as are all previous versions of that document.

In its response, the government downplays these concerns. The note prepared for the committee this morning suggests that the government's complacency on this point may not be justified. The government response concludes by acknowledging that recourse to incorporation by reference might benefit from further clarification. In short, it seems to be the government's position that it is confident of its view, although the case law is uncertain.

By way of follow-up, an inquiry could be made to the Minister of Justice as to the status of its consideration. I suggest that the committee continue to scrutinize provisions that incorporate external documents as amended from time to time in accordance with the principles and views set out in its report since there was nothing in the government response to cause the committee to change its view. Perhaps the minister can be advised to this effect as well.

The Joint Chair (Mr. Lee): We should be grateful for a comprehensive and reasoned response from the government in this case. It did not take too long to hear back. Are there comments from members that differ from those expressed by counsel?

Mr. Epp: If we let this slide, will it set a precedent for others?

Mr. Bernhardt: It will not set a precedent necessarily but it will be a case of walking away from a position that the committee has held for a number of years. The committee has always objected to these kinds of incorporations by reference, unless one can point to some clear authority in the enabling statute.

The government has always taken a different view and the argument has gone back and forth over the years. One purpose in tabling a report was to have a comprehensive analysis and statement of the committee's position on the record so that rather than making the same argument over and over again when we encounter these things, the committee can direct regulation-makers to the report as setting out the view of the committee.

Mr. Epp: The use of the word "always" implies a long time.

Mr. Bernhardt: Yes.

Mr. Epp: Can you give us a perspective? Has it been over the last 15 years or 20 years?

Mr. Bernhardt: It has been since the committee's inception. The first discussion by the committee on this item, as presented to the Houses, goes back to a report that was tabled in the 1970s. This position has been a long-standing one of the committee. At one time, the position was accepted generally by government departments and agencies but, over time, their position has moved away. The committee's position has remained constant.

Senator Bryden: Is it possible for us to scrutinize each one of these items as they arise? I suggest that we be scrupulous about this position, and each time it raises its head, it is knocked back down because we have our rationale for it. We should not take the pressure off in these cases.

As usual, we are right and they are wrong. It has been long-standing that they cannot use the kind of approach used here without being questionable and loose in their interpretation of the law, as I understand it, in this regard.

The Joint Chair (Mr. Lee): That is the "Whack-a-Mole game" approach, whereby each time it pops up, you hit it down. I understand, therefore, that no one differs.

I want to clear this item off, instead of going into a discussion. Over the years, it is always the first two or three items on the agenda that induce the most discussion. I am trying to package this item.

If no one here wishes to express a view different than the one articulated by counsel, and which the committee has subscribed to for so many years, we will then move to the question that Senator Bryden raises: What do we do now?

Ms. Barnes: I think this principle is important. Canadians must be able to access and understand their laws. These moving targets or this potential for movement makes it difficult for Canadians to do that. That is why I think the principle is an important one and we have to stick to our guns on it.

The Joint Chair (Mr. Lee): I believe there has been excessive reliance on inter-delegation as a basis for justifying the more general sub-delegation on the part of the Justice Department officials who prepare these things. I tend to agree with Senator Bryden that we should stick to the script; and from now on, when we see a sub-delegation that members feel is across the line, egregious and attractive enough, we should take steps to report it and disallow it.

We perhaps should advise the government or the Justice Department of this position, as a general indication of where we are headed. That course of action may encourage them to respond to us. When we notify, we should also ask them to apprise us of what they call "considering legislation." They are considering legislation to fix this or to regularize it, so we should invite them to keep us up to date on their considerations in this regard.

Mr. Wappel: I agree with you that we are talking about Justice Department officials here, not the government, because it has been the position of various governments.

I think the line is a brush-off line. I do not think it has any real substance. They are not considering legislation; they are considering whether legislation should be considered, which is as much as to say, brush off the flies and let us move on.

I also think it is almost a waste of time to make an inquiry as to the results of this consideration, particularly since it has only been a month since the response. After a comprehensive response that specifically says that we are right and you are wrong — reversing what Senator Bryden said — I do not think the consideration will be there.

I fully agree that the committee should continue with the second point that counsel has made, but the note I put here was: Is that all we can do? Is there nothing else that counsel can suggest we do to bring this matter to a head or have some definitive decision made by a court or something like that? Is there nothing we can do, as a committee, other than continue to apply our criteria?

Mr. Bernhardt: The committee always has the option of recommending disallowance of a particular provision if the committee feels it is appropriate in the circumstances. I suppose members can keep that in mind as we encounter these things down the road — disallowance can become an option. As with any regulation and any other issue, disallowance is always there on the table.

The committee has reported. We have received the government's response. I suppose we can respond to the response. As Mr. Lee mentions, at some point perhaps — in theory, at least — disallowance of one of these provisions is something that the committee can consider.

[Translation]

Mr. Asselin: Mr. Chairman, as you noted, this file dates back to the seventies. We have been on this for nearly 40 years. Regardless of which government has been in power, their position has remained the same. The department has stood firm, as has the committee. I am wondering if perhaps the committee should seek an independent opinion from another party, while making both the government's and the committee's position clearly known. The problem seems to be relegated to the back burner. The government disagrees with the committee, while the committee disagrees with the government's response. We seem to be at an impasse.

[English]

The Joint Chair (Mr. Lee): There is a suggestion. We have not taken this action in a while, but there have been occasions in the past when we have retained outside counsel to provide an opinion on matters of contention.

Mr. Bernhardt: Certainly, that option is always open to the committee. Obviously, these things come at a cost. I think in the past, we have tried to identify certain academics, certain experts who might be interested in providing outside counsel, gather some idea what the cost might be and then come back to the committee to see if the committee is interested in taking that option.

It is not a unique point of law. There are discussions of this principle in all textbooks on legislation, statutory interpretation. There is a certain amount of case law.

Frankly, having seen the committee go through a 45-page report canvassing all that material, I am of the view that the matter has been decided for everyone but the Department of Justice. Having said that, yes, that is something the committee could do if it had a mind to.

The Joint Chair (Mr. Lee): Four members now want to intervene on this point. We have five other tough items to go through, so try to keep it short.

Senator Harb: I want to go on the record that this issue is extremely important. If there is anything we should dig in our heels on, it is this particular issue.

We live in a system where we must have a balance of power, in a way, and by not defending our stand, I think we will let go of something that is fundamentally important — it is the ability of an oversight. I go along with what our counsel has said. I would not let go of this issue.

It will set up a series of precedents and it will be a slippery slope from here on — not necessarily with this government but also with future governments. It is important for us not to give up on this one.

[Translation]

Mr. Harvey: Nevertheless, it is a relatively simple matter. Has a study been done by an independent party to determine who had precedence in this instance? Has such a study been done? If so, what conclusions were reached? Was the answer yes, or no? If the answer was yes, then we should take appropriate action. The government may wish to counter with a study of its own to see if we are in the right, but it seems to me that after thirty years, we should have found a solution. We have been at this almost as long as I have been around. We should not even be discussing this matter today.

So then, has a study been conducted by an independent party, yes or no?

[English]

Mr. Bernhardt: Independent studies have been conducted to the extent that various authors and people who have written textbooks and articles in this area have expressed views. Those views are canvassed in the committee's report. We have Professor Côté, we have the administrative law texts and we have Professor Pearce from Australia — these are all referred to in the report. In that sense, the issue has been touched upon.

No one has undertaken a specific study, on behalf of the committee, to reach a conclusion on this point. However, it has been a matter of some discussion in the general textbooks.

[Translation]

Mr. Harvey: Since an independent study has never been done, we do not know where we stand after 30 years. What should we do then? We could decide to commission someone to find out how much it would cost to do a study, to come up with something concrete. I would not want to reach retirement age and not have progressed beyond this point. This problem is almost as old as I am.

[English]

Mr. Bernhardt: If that is the wish of the committee, the avenue is open.

The Joint Chair (Mr. Lee): As a strategic option with respect to this issue, we can put this item to the steering committee for a discussion on costs and options to see if we can bring more focus to a conclusion.

[Translation]

Mr. Harvey: In order to discuss the cost of a study, we would first need a cost assessment. Could we ask counsel to prepare an assessment for us? Subsequently, we could see if it makes sense to do a study. If it does, then we could discuss our options. However, without having an idea of the cost and the time and energy involved, I think we are putting the cart before the horse, so to speak.

[English]

The Joint Chair (Mr. Lee): Are you happy with this item going to the steering committee?

Mr. Harvey: Yes.

The Joint Chair (Mr. Lee): We will move on.

Mr. Epp: With all due respect to Mr. Asselin and the direction the committee seems to be taking, I am reminded of the fact that when playing chess, you never play for the current move only; you always look ahead to the next move. If we have an independent study, short of the Supreme Court giving a judgment, it is only yet another opinion. There are two scenarios: They rule for us or they rule for them; or the second opinion favours them or favours us.

If it favours them, we simply abandon the position, which we ought not to do. If the independent opinion favours us, it merely confirms that we have the authority to do what we have the authority to do. Thus, nothing is gained. I recommend to the steering committee that they drop the issue. With all due respect, it is not often that the Supreme Court refers a matter to a lower court.

Mr. Norlock: Before Mr. Epp's statement, I was in agreement with the chair's position and I continue to support the chair's position because the steering committee will give the item the time, effort and due diligence that perhaps we will not give it because there is so much work ahead of the committee.

Senator Bryden: My position is much closer to that of Mr. Epp such that we do not advance the situation at all but we simply have another opinion. Ten years from now, we will be able to read that opinion too, along with all the others that have been gathered over time. We need to follow this item, ensure that we strictly monitor it and, each time we have an opportunity, even to the point of disallowing, we need to proceed with doing that, because that is the position of the committee. I do not mind the steering committee considering this to bring something else back to the committee but I do not know that asking some "expert" to give us another opinion will advance what we are supposed to be doing.

The Joint Chair (Mr. Lee): I suggest that counsel bundle together two or three conspicuous sub-delegation cases that are in our inventory, work them up a little and pass them along to the steering committee for discussion. The steering committee will come back to the committee on the matter, and the determination can be made then as to whether we play hockey or rag the puck — send a disallowance report.

SOR/2000-221 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS

(For text of documents, see Appendix B, p. 11B:1.)

Mr. Bernhardt: On May 1, the committee heard from representatives of Canada Post and Transport Canada in connection with the mechanism in the letter mail regulations that provides for an automatic increase in the basic letter rate based on the increase in the Consumer Price Index. The committee has concluded that this mechanism cannot be said to prescribe the rate, as the Canada Post Corporation Act requires. At the May 1 meeting, the corporation explained why it thinks the power to prescribe rates of postage allows regulations to be made where the formula for calculating the rate includes a variable factor.

To justify its position, the corporation relied on three cases. These cases are analyzed in the note that is in the materials for this morning. Much of this analysis was presented to the committee at the last meeting in connection with the Laurentian Pilotage Authority Regulations, which contain a similar automatic fee increase mechanism.

The note distinguishes between two types of formulas. The first formula has no factors that vary after the regulations are made, for example, so much per pound. In that formula, a person wishing to know the fee in a particular case in the future can do the calculation and arrive at the amount. In the second type of formula, at least one factor will vary after the regulations are made, and we have this kind of thing here. In that case, it is impossible to know what the fee will be at any future time because the factor will change in the future.

The committee has never objected to the first type of formula, and even the second type of formula is permissible, depending on the breadth of the enabling authority. If an enabling authority is to prescribe the manner of calculating a fee to make a regulation respecting a fee, then you have authority for a variable formula.

The objection arises where, as here, the authority is to fix a fee or to prescribe a fee. All the formulas in all the cases cited by Canada Post involved the first type of formula, which the committee has never objected to and would not have objected to in those instances.

In connection with this concern, the committee also expressed that an automatic fee increase avoids the need for the approval of the Governor-in-Council for an increase in postal rates and, thus, the mechanism does an end run around the control that Parliament desired to impose. The committee has been referred to section 89(1) of the Financial Administration Act, which permits the Governor-in-Council to give directives to Crown corporations. On the analysis in the note, however, it is suggested that a general power to give administrative directives likely does not extend to the exercise of regulation-making powers so as to allow the Governor-in-Council, in effect, to order a particular regulation to be made or amended. The same analysis pertains also to the minister's power to give directives under the Canada Post Corporation Act.

Canada Post's position in a number of respects appears to confuse the legislative scheme set out in the act with the realities of government administration. They talk about the government exerting pressure on the corporation if it felt that a rate increase should not go ahead. They make reference to the policy considerations that led to the adoption of the formula, to the fact that a corporate plan must be submitted to Treasury Board and to the fact that a public announcement is made in advance of an automatic increase. These points are all well and good, but they are irrelevant to interpreting the statute. As well, it is not an answer to note, as the Corporation did, that members of the public can always go to court to challenge a rate increase that they feel is not fair and reasonable.

As the committee suggested previously, if the government considers that the policy that led Parliament to subject postal rate changes to control of cabinet is no longer valid, the Canada Post Corporation Act should be amended to authorize Canada Post to make a regulation prescribing rates or the method of determining those rates. At the May 1 meeting, departmental officials reported that no such amendment was required. Perhaps now the minister can be advised that, having heard from witnesses, the committee remains of the view that the act must be amended, and that his reconsideration of the department's position would be appreciated.

The Joint Chair (Mr. Lee): Do you have any comments, colleagues? I am way down the road past where counsel is on this one. I will let you have the benefit of my view. I will then recognize Senator Bryden.

The post office is a Crown corporation. They rely on rule of law to make their money, and rule of law turned them into a monopoly for letter mail. They rely on rule of law. Rule of law says they do not make their rules or set their rate on the run. In fact, it was Parliament's intention that the cabinet approve each postal rate increase. If you read the statute, you cannot come to any other conclusion.

These people, even though they have a monopoly that reaches into the house and business of every single Canadian, have taken steps that have effectively avoided the need to obtain cabinet approval on the letter rate increases. They are still pushing us back, trying to justify their non-rule of law approach.

I thought that witnesses for the corporation did their best. I was impressed how they could do so well with what I regarded as a losing case in front of the committee. However, in the end, a losing case is a losing case. I am totally unmoved.

Counsel has suggested "ragging the puck" a little bit and giving the post office an opportunity to fix this matter. However, I am not there. Therefore, I will ask colleagues for other comments and if anyone wants to move this issue into a fast track for the hammer.

Ms. Barnes: When we were there, it was like they were before a judge arguing the case instead of us being the judge on this issue. I am at the same place you are: I found it a useless exercise. I did not think they were listening and we need to make someone listen.

The Joint Chair (Mr. Lee): Are there other comments, colleagues?

Senator Bryden: I agree with what you have summarized: It is time for us to move on this item. I do not know about the rest of the members but I was offended by the attitude of counsel for the corporation. I had the impression their thoughts and approach was: What we have here is a parliamentary committee that is counselled by civil servants; we should not spend too much time on this matter but we need to make a case to justify the position we have already taken outside the law.

I was one of the people who spoke to the chair and to counsel and said I would like to see a rebuttal of the positions he took, to try to have precedent.

None of them are on four-square with what they are attempting to do. However, it was certainly put forward that way. There may well have been an intention to use smoke and mirrors and pull the wool over the committee's eyes: Once we have thrown enough of this stuff at them, they will go away.

We do not do that. That is not our job.

I want to go for disallowance. I was upset, and I think there were people on this committee besides me who were upset by the attitude and the approach that was taken.

The Joint Chair (Mr. Lee): I subscribe to all the memoranda put together by counsel. I was particularly attracted to paragraph 20, which describes Parliament's intention to have each postal rate increase approved by cabinet.

I do not think we should fault the general counsel for Canada Post Corporation for trying. I am sure none of you do. That is what he was trained to do. We, of course, will be the judge of the adequacy of the Canada Post position.

Senator Bryden has mentioned disallowance. Counsel, can you comment on that option? Is it viable at this time? Is it consistent with our previous procedures?

Mr. Bernhardt: This provision is subject to disallowance. The critical issue is disallowing the fee increase mechanism in and of itself without wiping out the actual fee. I think the committee would want to be careful not to wipe out the entire provision so that there is no fee for first-class letter rates in Canada.

The Joint Chair (Mr. Lee): We could end up with a 45-cent postal rate. Our electors might be happy with that rate for a while. It might cause other problems.

Mr. Bernhardt: It would depend on the structure of the provision. That is something I would want to look into. It is something I can deal with fairly easily.

The Joint Chair (Mr. Lee): There seems to be a move to draw a line in the sand and firm up. Can I suggest this then: Can we ask counsel to prepare the file for that option and to bring it back at an early date?

I do not know whether you want to draft a disallowance report. I suppose you could do that. We will not give the notice yet, though we could. Do you want to give the notice?

Mr. Bernhardt: We could write to the minister and advise him that the committee remains of its view, and will consider the possibility at the earliest opportunity.

The Joint Chair (Mr. Lee): We could start by giving notice and move to considering it later.

Ms. Barnes: I prefer that counsel is absolutely sure of the process so that we do not misstep here. If we do, then I think we look foolish. I would rather have it all come back as a proper package because I have no intention of trying to reduce the postage rates to where they were at the time of the regulation. I want this process of increase changed.

I do not think it should take long. I suggest this be ready for the next meeting of this committee.

The Joint Chair (Mr. Lee): We know how to go where we are going. The issue is that we have not walked through the implication of a disallowance on the postal rate and what the postal rate would be if the House disallowed the current regulation. That is what counsel wants to check.

Mr. Bernhardt: That is quickly and easily done.

Senator Moore: When would this committee meet again to look at the guidance of counsel? Would we meet next week or the week after?

The Joint Chair (Mr. Lee): It looks like June 12, if the Houses are still in session then. They should be. There is no indication that we will not be sitting normally then.

I do not think we are at the stage of preparing a disallowance report yet, or are we? We may not have sufficient time, as well. We must give 30 days notice. Therefore, now we have lots of members interested.

Counsel will do a workup on the file leading to a disallowance but we will go through the next steps on June 12, if that is okay.

[Translation]

Mr. Asselin: I believe we received Canada Post's versions recently as well as counsel's answer this morning. Would it be appropriate for us to hear from the Minister responsible for Canada Post?

[English]

The Joint Chair (Mr. Lee): Yes, but that is up to members. In my view, the minister could not possibly do any better than counsel for Canada Post did. We would end up with the same issue and we would be in the identical place. In fact, the minister would probably bring Mr. Power with him. If I were minister, I would.

[Translation]

Mr. Harvey: Regarding the disallowance motion, the June 12 date could be pushed back. Even though there is an 85 per cent likelihood that the House will still be sitting, there is still a 15 per cent chance that it will have recessed.

Could postponing the tabling of the motion to June 12 instead of next week compromise the scheduled timeframe? By initiating the process sooner, we could avoid the risk of having to push back the date to October.

[English]

The Joint Chair (Mr. Lee): I thought we were leaving the item in the hands of counsel. He had advanced it as much as he could. Preparing a disallowance is a meticulous procedure and counsel needs sufficient time to prepare a report and do the work on it. There is a notice provision.

There is nothing we could do now that would have us engage in the disallowance procedure before we broke for the summer. There is not enough time, practically speaking, because we need to give notice. I do not think we want to meet during the summer, do we: no.

We will do the workup on this file. We will advance it and it will be in our hands at the meeting of June 12 to push the button, with the timelines running after June 12; but I do not think we can advance it. Counsel needs some time to do the work-through on the impact, the legal impact of the disallowance if the House were to adopt it.

Mr. Epp: My intervention will be short. I remember way back when I was first elected, I was on a committee that prevented a postal increase. I do not know how we prevented that increase. I only remember that they announced a postal increase and we raised a whole bunch of questions, including Purolator and all that involvement there.

The increase was rolled back for a year. I think the reason they went to this mechanism is they wanted to take the government of the day out of the loop of imposing an increase in what was perceived by many to be a tax.

There is a political component here. For half of us on this committee, there are more serious political ramifications to being accused of increasing taxes. It was a different government then; it is a different government now. I do not know whether we want to consider that component at all.

I think this committee is more technical in nature and we probably want to stay away from politics, but we may want to keep that consideration in the back of our minds, too, and see where we go with that.

The Joint Chair (Mr. Lee): I think most of us can spot the politics in this issue.

Mr. Wappel: Again, briefly, from Canada Post's point of view, if I remember the memo and the evidence, this issue can be remedied by putting it into the statute. It is simple.

Therefore, I think we should advise Canada Post and the minister immediately that we do not accept the position of Canada Post, that we have instructed counsel to begin the process of examining a disallowance report and bringing it before the committee. We do not need to mention dates because we know it will be the fall; I fully accept that June 12 will be too tight a timeline. We can point out that it looks like Canada Post and the committee will butt heads unless something is done, such as a quick amendment to the statute, if this is what the government wants.

It is clear that policy has changed over the many years when postal rate increases were a huge thing on the front page of the paper. Now, so many other things are going up.

I suggest we immediately advise Canada Post and the minister what we have instructed counsel to do, and remind them — we often remind departments — that a statutory fix would deal with the problem. It is not our decision whether the policy is right or wrong. We only point out that the mechanism is incorrect, and if they want this mechanism, then this is the correct way to achieve it.

Perhaps then they would think about moving along from a statutory point of view, because we are giving them a heads-up that we are not about to change our opinion. Not only are we not changing our opinion, we are instructing counsel to begin work on a disallowance report.

The Joint Chair (Mr. Lee): Mr. Wappel, a much easier fix than the statutory fix is for Canada Post to revoke the existing rate formula regulation and replace it with a first-class mail letter rate.

Mr. Wappel: They do not want to make that change. Assuming they do not want to take that action, they can fix the problem by way of statute. I think that solution is pointed out in paragraph 11 of the note.

The Joint Chair (Mr. Lee): If they revoked the regulation and if the revocation and the new fix of the postal rate were approved by cabinet, they would solve every problem until the time that they arrive at the next postal rate increase. If they only followed the old protocol of fixing the letter rate and having it approved by cabinet, everything would be fine.

Mr. Wappel: Yes, but they do not want to do that. They want to have the automatic rate increase.

The Joint Chair (Mr. Lee): We will not let them do that.

Mr. Wappel: We could.

The Joint Chair (Mr. Lee): We could let them, yes, but we will not. I think the sense of members is that we will not let them have the automatic increase but it is up to them how they fix the problem, I guess. I think we know where we are headed on the issue.

Mr. Norlock: I will leave my prejudices about monopolies at the door. I think Mr. Lee and I are on the same track but I think Ms. Barnes is correct; we do not want to become involved in the rate setting and in Canada Post either making a profit or not. Whether they make a profit or not, eventually the taxpayer will pay.

The bottom line is that they do not have the statutory authority to do what they are doing and they need to clean up that situation. The minister will have a choice, and Mr. Wappel is right; let us give them a heads-up because the committee is all about communication and giving people time to clean up their act. If they choose not to, then we will take the action we must take.

The Joint Chair (Mr. Lee): Okay; is that enough direction for counsel — the communication piece added by Mr. Norlock?

Ms. Barnes: I hope we do not have a prorogation, and come back to this item in November, because that situation would be bad.

The Joint Chair (Mr. Lee): We will be determined through a prorogation, I am sure. I am not so sure about dissolution, but we will be fine with a prorogation.

SOR/2003-109 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

(For text of document, see Appendix C, p. 11C:1.)

Lindsay Armstrong, Counsel: Two points were raised in respect to these regulations. On the first point, section 90 of the Immigration and Refugee Protection Act states that the Minister of Citizenship and Immigration may direct the Canada Employment Insurance Commission to issue social insurance number cards to persons other than Canadian citizens or permanent residents, identifying them as persons who may be required to obtain authorization to work in Canada. The regulations then require that every application for the registration of a person who is not a Canadian citizen or a permanent resident, and in respect of whom the Minister of Citizenship and Immigration has directed the commission to issue a social insurance number card, must be accompanied by the grounds for the application.

Counsel questioned why grounds for the application were required. If the minister has directed the commission to issue social insurance number cards, is the commission not required to issue the cards in any event? Also, if the minister has directed that a card be issued, does that directive not always constitute the grounds for the application?

The department's reply suggests that persons referred to in section 90 are required to make an application for registration with the commission and that, at least in some cases, additional information about supporting grounds and other information necessary to consider the application may be required. The reply has given rise to additional questions that counsel suggests will be pursued in a further letter.

The department should be asked to clarify its interpretation of section 90, particularly whether section 90 empowers the minister to direct the commission to issue social insurance number cards to certain persons or whether, under section 90, the minister may authorize the commission to issue cards to persons who are not Canadian citizens or residents generally.

In addition, the department should be asked whether the persons referred to in section 90 are required to apply for registration with the commission in order to be issued a social insurance number card. Since the department also indicates that persons may be registered for non-employment reasons, it should be asked what other purposes or grounds for application will be accepted based on what criteria, as well as which provisions govern the registration of persons for non-employment purposes.

On the second point raised in counsel's letter, it is unclear from the reply whether the department fully understands or accepts counsel's position, and clarification should therefore be sought on this issue.

The Joint Chair (Mr. Lee): I see eyes glazing over on this item.

Senator Moore: Give us the Cole's Notes.

The Joint Chair (Mr. Lee): That was the Cole's Notes version. In reading this correspondence, we were hard on the department. One thing seemed to be overlooked in the correspondence. I ask counsel to consider the following: Two processes were involved in these regulations, one being the application for registration and the other being the issuance of a Social Insurance Number card. The department seemed to say that for the registration purpose, they were still entitled to ask for the grounds, whereas the minister's power was to direct the issuance of a SIN card, not to direct the registration.

We cannot reassemble this item into a neat package but I see that the department had justification for saying that yes, the minister can direct the issuance of the card, and will do that. However, the issuance of the card also requires registration of the applicant, and when there is a registration, it asks for the grounds. That is the way it is always done. The department can accommodate both the minister's directive and the procedures for registration.

I thought that response was reasonable, although they did not articulate it well. I ask counsel to keep that point in mind when corresponding with them to seek clarification.

Mr. Bernhardt: Mr. Chair, your point is well taken. At this stage, we are seeking clarification. A great deal seems to be happening beneath the surface and we are trying to prompt articulation in detail as to how this scheme operates.

Mr. Wappel: Mr. Chair, I agree with you completely. On the second point, the writer knows exactly the point that is being made. We have run across this issue in the last two or three items. In this file, we see either commissions or ministers possibly open to criminal liability with the use of the word "shall." They have simply not thought about it and they do not want to admit it. I do not have a problem with trying to smoke them out to say specifically that they understand. We will watch the file but I have no doubt that they understood the point. However, the point is an uncomfortable one.

Mr. Bernhardt: You are probably correct.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): Counsel has sufficient direction on this file; thank you.

[Translation]

SOR/2004-121 — REGULATIONS AMENDING THE CANADA STUDENT LOANS REGULATIONS

(For text of documents, see Appendix D, p. 11D:1.)

Ms. Armstrong: Pursuant to subsection 18(2.01) of the Regulations, the Minister may grant the borrower further special interest-free periods if the borrower is unable to make the instalment payments due. Therefore, the minister has the discretionary authority either to refuse or to grant further periods if the borrower cannot make the instalment payments due. The Regulations do not spell out the criteria used by the Minister to come to a decision in such instances.

Counsel wondered if there were situations in which the Minister would refuse to grant a further interest-free period, even though the borrower was unable to make the instalment payments due. If there are situations like this, counsel wondered what criteria the Minister used when exercising his discretionary authority and why these criteria were not included in the Regulations.

Given the wording of subsection 18(2.01), the Minister may make different decisions in comparable cases. There is a danger that his decisions may be viewed as arbitrary and hence the reason why criteria should be included in the Regulations. However, if all borrowers meeting the conditions set out in the Regulations are in fact granted further interest-free periods, then the Minister has no need of any discretionary power and it could be eliminated.

Counsel recommends writing back to the department to explain why the response is unsatisfactory.

[English]

The Joint Chair (Mr. Lee): That suggestion seems to be accepted. I was surprised by the last reply from the department. When asked to see the criteria used by the minister in either granting or not granting an extension, they wrote to say that the minister does not have discretion. I did not understand that point. We need clarification.

SOR/2007-13 — REGULATIONS AMENDING THE CANADA PENSION PLAN INVESTMENT BOARD REGULATIONS

(For text of document, see Appendix E, p. 11E:1.)

Mr. Bernhardt: Mr. Chair, this instrument repeals section 14 of the Canada Pension Plan Investment Board Regulations. In doing so, it removes certain limits on the use of derivative instruments, such as options and futures contracts by the Canada Pension Plan Investment Board, CPPIB. It was made pursuant to subsection 53(1) of the act. Subsection 53(2) then provides that:

A regulation made under subsection (1) has no force or effect until the appropriate provincial Minister of each of at least two thirds of the participating provinces having in total not less than two thirds of the population of all of the participating provinces has approved the regulation.

The reference in this provision to a regulation that has been made having no force or effect until it has received provincial approval indicates that the intent is that the approval take place after the regulation has been made. In this case, the provincial approval came before the regulation was made, meaning that the amendment never became legally effective. This conclusion is consistent with the position taken by the Department of Justice that where a statute provides that regulations are of no force or effect until approval has been given, this requires the approval to be obtained after the making of the regulation. The Department of Finance was referred to a 1996 letter to this effect from the then deputy minister of justice.

In reply, the Department of Finance argues that the present situation is different because when it provided that a regulation that has been made has no force or effect until provincial approval has been obtained, Parliament failed to be precise enough and was silent as to when approval is to be given. I suggest this response is nonsense. The provision could hardly be any clearer than it is. The department also cites policy considerations, which, of course, are not relevant. Finally, it asserts that it would be absurd to submit a draft for advance approval and then resubmit the identical text after making it. This assertion conveniently overlooks the fact that there is no requirement whatsoever in the act to circulate a draft for advance approval, and the decision to circulate a draft is entirely the department's choice and no one else's choice.

I suggest that the reply is clearly unsatisfactory and that the committee pursue this issue through further correspondence.

Mr. Wappel: I refer the committee to the citation in the letter dated January 24, 2008, which states:

Where one interpretation can be placed upon a statutory provision which would bring about a more workable and practical result, such an interpretation should be preferred if the words invoked by the Legislature can reasonably bear it; . . .

Mr. Bernhardt: I suggest that the words used by the legislature could not reasonably bear it, when you talk about a regulation that has been made must be approved.

Mr. Wappel: It does not say that, counsel. If it said, a regulation has been made, it would be clear.

Mr. Bernhardt: The Department of Finance seems to be a bit stuck on this point. As I read the letter from the then deputy minister of justice in 1996, when we contested a similar but somewhat different point, we heard back from the department, of course; it said that if it said "made," the situation would be different. In this case, we have it saying "made" and the Department of Finance is arguing that the situation is not different. At the end of the day, I would suggest informally to the Department of Finance that if it has a problem with the interpretation, the department should take it up with the Department of Justice, if they wish to quarrel about whether the then deputy minister of justice was wrong in 1996.

Mr. Wappel: In your correspondence, I recommend that you not use the phrase "the regulation has been made" but simply quote the wording directly.

Mr. Bernhardt: Fair enough.

Mr. Wappel: Other than that, I agree it is in the correct column.

The Joint Chair (Mr. Lee): Thank you, Mr. Wappel. You have opened the door.

I took a different view from that of counsel. I tried to put on the shoes of the other person here. I looked at this item and I looked for wording that absolutely forecloses the possibility of an approval occurring prior to the making of the regulation.

Intellectually, I could not find wording that foreclosed it. I see wording that tends to suggest that the regulation is made; that is, in the past, before the subsequent approval of the provinces. It suggests that it is made, but that is not the only reading I could give to this wording because I am not sure from what point in time the regulation is speaking. There is no attempt in the regulation to link the timing of making the regulation and obtaining the approvals.

I can read this wording another way. I differ with counsel here. There is a suggestion that some people are stuck. Maybe we are stuck here, too. It says:

A regulation made under subsection (1). . . .

I can interpret that wording as "a regulation to be made," "a regulation that will be made" or "a regulation that might be made." However, it says only, "a regulation which is made," without saying when.

That is the bare wording. There is the regulation made, and it does not have any validity until the provinces have approved. When? Is that before, simultaneous or after?

I cannot foreclose that intellectual or linguistic possibility that the interpretation is there. Therefore, I give the benefit of the doubt to the department here.

Counsel relies on the word "regulation made" as unequivocally placing this action in the past tense; that nothing is in existence, nothing happens, until the regulation is made. Everything that happens after it is made is subsequent, including the approvals, the letter and signatures sending it around.

However, I did not see anything in the wording such as "until they have approved" to place their approval at any particular point in the sequence.

I do not want to yank us backward.

Mr. Wappel: That is where I was on the point. That is why I asked counsel about that other issue.

I have two responses, if I may. If you look at section 53(1):

The Governor in Council may make regulations. . . .

Then it speaks of a regulation made. It is arguable that the regulation is in place. The word "until" could have said "unless." If the word "unless" was there, I could reasonably say that it could be at any time — previously, simultaneously or afterwards.

At the least, it is not clear. According to counsel, it is crystal clear that it is wrong; according to you and me, it is arguable that it is wrong or possibly right. Given that difference, it could be clarified, at the least.

I give kudos to Ms. Hughes for giving it a good shot. Counsel is right: The policy is irrelevant to us. Having said all that, I think we should have the regulation clarified because, indeed, chair, if your interpretation is correct, then it is not clear.

Regulations should be clear, not arguable. We are all about making them clear and understandable, not arguable one way or another. You have put forth good arguments as to different possible scenarios and different possible interpretations of the words that are static but words we are all looking at. If there are different possible interpretations of static words, then the regulation is not properly drafted.

Mr. Bernhardt: I pose one question, Mr. Chair: Under section 53(2), what is it that must be approved? What must be approved is a regulation made under subsection (1). At what point in time do you have a regulation? A regulation is a law. At what point in time do we have a law? It is a law when it is enacted and in force. It is not a law until that time.

That is why I say the regulation made under subsection (1) must be approved. I can say no more.

Senator Bryden: I am with counsel on this issue. You and Mr. Wappel are having great fun reading something more into this regulation that any ordinary person reading it would understand: "A regulation made under subsection (1) has no force or effect" until it has been approved by the proper number of participating provinces.

I do not know how you can be any clearer than that.

The Joint Chair (Mr. Lee): Shall we invite Mr. Power to come back?

This item is in counsel's hands. His reading of this wording is not unreasonable at all. As Senator Bryden pointed out: Reading the words strictly, counsel's interpretation is probable closer to being correct than the interpretation by others. For those who look for wiggle room on these matters, counsel has suggested this and some other matters need clarification here.

Do you want to run it up the flagpole one more time or are you finished with the departmental elements?

Mr. Bernhardt: As I say, I am in the committee's hands. If it is a question they wish to pursue, we will pursue it. At some point, if nothing else, I think the department must deal with the previous advice this committee was given from the Department of Justice, which they are now seeking to —

The Joint Chair (Mr. Lee): — disassociate themselves from.

Mr. Bernhardt: Yes.

Mr. Epp: As a unilingual Canadian, I want to ask: Is the same incoherence present in the French language?

The Joint Chair (Mr. Lee): That is a good question. Let us ask counsel.

Ms. Armstrong: It is the same.

Mr. Epp: Then fix it.

The Joint Chair (Mr. Lee): Your suggestions earlier are probably acceptable. The committee, on balance, will go with counsel on this.

SOR/2007-82 — IDENTITY SCREENING REGULATIONS

(For full text of documents, see Appendix F, p. 11F:1.)

Mr. Bernhardt: These regulations form part of the system involving a specified persons list that is commonly referred to as the no-fly list. The list is maintained administratively by Transport Canada in consultation with the Canadian Security Intelligence Service, CSIS, and the RCMP.

The list is not mentioned, as such, in the Public Safety Act or the Aeronautics Act. The note prepared for members sets out the statutory powers on which the list depends. The regulations themselves establish the system by which passengers are screened.

As members are aware, if a passenger appears to be a person on the list, the air carrier must inform the minister. Before concluding the screening of the passenger, the air carrier must wait to receive word from the minister as to whether an emergency direction has been made under the Aeronautics Act. If an emergency direction is made, the air carrier must provide the passenger with contact information for the Department of Transport's office of reconsideration.

This office is a purely administrative creature. A person subject to an emergency direction can contact the office. The office then conducts a review. This review is not an appeal, however. The office can only recommend to the minister whether the person should be retained on the list.

The Regulatory Impact Analysis Statement, RIAS, also states that, in addition to this process, a person has the option of complaining to the Security Intelligence Review Committee, the Commission for Public Complaints Against the RCMP or the Canadian Human Rights Commission. The person can also seek judicial review in the federal court.

On reviewing these regulations, three issues were raised that related expressly to the office of reconsideration.

First, it was noted that section 7 requires only that a person who has been the subject of an emergency direction be provided with the contact information of the office. The question was raised whether more information ought to be provided — for example, the mandate, the purpose of the office, the rights of review that the person is entitled to and so on.

The reply from the department is that a person who is denied boarding receives a copy of the emergency direction, the contact information and the reasons why they may wish to contact the office. A copy of the emergency directions is not required to be provided by the regulations.

If that is the current practice, I suggest it be set out in the regulations expressly. Similarly, if a person is provided with information concerning their right to seek such a review, there seems to be no reason not to require this in the regulations.

Second, there is considerable detail in the impact analysis statement concerning the review process. Again, it was suggested that this process, as well as certain basic procedural rights, should be set out in the regulations.

The department replied that the office is not an appeal tribunal, which is somewhat beside the point. I suggest it is always preferable these rights be guaranteed by law rather than left to administrative discretion. We are talking about such things as the right to know the case against them, the right to make representations and the right to obtain reasons for the decision of the office. This process is described in the RIAS, so there seems to be no reason why it cannot be enshrined in the regulations directly.

Finally, we asked what circumstances would arise where it would be possible for a person to complain to these various other bodies that were mentioned — what remedies these bodies can provide and how a person is to know which body to go to. The reply from the department is that a person can obtain information on the various websites.

I suggest it is obvious that if a person is subject to a negative decision affecting them, they should be provided with clear and detailed information as to what options they may have to seek recourse. Again, I suggest all these matters are provided for already administratively; however, they should be reflected and guaranteed in the regulations, and I suggest putting that view to the department.

[Translation]

Mr. Harvey: I also have the advantage of sitting on the ethics committee where human rights and access to information are constantly under scrutiny.

I am really not sure that it would be acceptable, even to the ethics committee, for an airport official or a private airline official to start advising a passenger of his rights because his name happens to be on a list.

It is somewhat the same as when one has a problem with a credit card. You phone the company and make your own arrangements. Certain officials are authorized to speak to persons whose name appears on the list. They follow very specific procedures. Giving them a contact number would, in my view, perhaps be the most diplomatic way of protecting information about persons whose names may have inadvertently ended up on this specified persons list. So then, it is a matter of determining who, how and when. I think these persons could be given a contact number and name, directed to a telephone booth, given 25 cents, if necessary, and advised to call someone, deal with the matter and come back when everything is settled. This should not be left in the hands of a private airline, or even of Air Canada. This is not the federal government's responsibility. We are not talking here about sharing information with public officials, but rather about providing personal information about persons whose name mistakenly might appear on a specified persons list.

I do not see how the contact number could be changed, given the ethical considerations.

Clearly, a protective mechanism is needed. Basically, there are fewer than 1,000 names on the watch list, and 30 million Canadians in need of protection. Certainly protecting these 30 million Canadians is important, but it is equally important to protect the 1,000 individuals whose name appears on the list because if in fact their name was mistakenly placed on the list, they need clear directions as to the steps to take to have their name removed from the list. Striking a balance is an important priority.

Given what is happening today, it is critically important to all governments and to all countries that this list be tightly controlled. To be honest, I really do not see how we could drastically amend the existing regulations.

[English]

The Joint Chair (Mr. Lee): Something that is not stated directly, at least I did not see it in the note, was that — I assume I am correct here — the reason why this item pops up as an issue is that we are dealing with the rights and freedoms of the individual. Or are we dealing only with the technicalities of regulation-making? I am confused.

I treat this issue as a rights and freedoms issue — that is one of our criteria. However, counsel seems to say that the issue is that it is not the right way to draft a regulation that deals with individuals — that the regulation could be clearer and more transparent. I was unsure of the focus. Can you clarify that matter, counsel?

Mr. Bernhardt: It goes to Mr. Harvey's second point. The issue here is seeking a balance that ensures that there are certain procedural safeguards, procedural rights in place, for people who pop up on the list.

We have been told, in large part, in the response that they do all these things on an administrative basis. The position then expressed in the note was: That is fine that these things are being done, but let us entrench them so you are required to do them, and you are not doing them in the exercise of an administrative discretion; you are required by the regulations to give someone a copy of the order. Rather than say, if you do not like it, there is an office you can call, and we do all these other things too, let us have those things in the regulations so you have to do those things — you are not doing them out of the goodness of your heart.

The Joint Chair (Mr. Lee): Is this like etiquette around the dinner table? Is that the perspective you are taking? Or are you saying that at root here, we have rights and freedoms that drive the whole thing? What lens are we using?

Mr. Bernhardt: By putting it in the regulations, we turn it into a right. Right now, they can go to court and challenge it on the grounds they were not treated fairly. However, if they take these administrative mechanisms that they claim are there now, and put them in the regulations, the mechanisms are elevated to a legal right, and the people administering them have a legal duty to provide certain information.

It is procedural, but I think it goes beyond procedure in the sense that they entrench the right to these procedural aspects.

The Joint Chair (Mr. Lee): The analysis might benefit it or make it too complex. It would be easier if it were clearer from time to time whether we are dealing with individuals in their relationship with the air carrier or individuals in their relationship with the state. There are likely greater obligations on the state in terms of rights and freedoms. I do not have a clear picture.

Ms. Barnes: This item troubles me. I was on the House of Commons Standing Committee on Public Safety last year when this item arose. Those in my office and I have never had any experience in dealing with this issue. An individual cannot go to the reconsideration panel in person, or see anyone, or have the names of anyone. It is not an immediate thing. Something happens to someone at the airport and they are out of luck. At minimum, it is 30 days later that the papers are filed. It is my understanding from the testimony heard at committee last year that no reason is given to an individual when their name appears on the no-fly list. There is no intention to ever tell why that person is on the list. The procedure is a document procedure to assist potentially those who are there by virtue of a wrong date of birth or other kind of misidentification.

We had grave concerns about this item last year but we have had no experience, to our knowledge, of someone having suffered in such a case. I am in favour of additional clarification. I agree that we not give this information to air carriers because often they are not even our air carriers. Perhaps we could strengthen something around the regulations of the person vis-à-vis our government's reconsideration. Frankly, I do not think there are many rights around that board. It seems to be secret information that someone is not taking a chance on.

Mr. Bernhardt: This is the only mention in any regulation or in any statute of the board. The board is purely administrative and functions as it functions. The only reference to it in the law is that if someone is denied, that person is given their phone number.

Ms. Barnes: That is about all. Anyone phoning them from an airport is out of luck because nothing will be fixed at that point. I do not think Canadians understand this provision well. We held a couple of hearings on it and we did not understand it well. It has been in effect for less than one year at this stage. I want some exploration of what we can add to strengthen this right but I do not think there is any willingness to make this a human right of the individual from that vantage point. I give that by way of background because so much concern was expressed about it.

[Translation]

Mr. Harvey: As a rule, I do not rely on the interpretation. However, since this is a more technical matter, I am listening to the interpretation. Occasionally, there may be some minor shifts in meaning. I am not in any way blaming the translators. They do a remarkable job.

You stated that there were three components to the Regulations, the first being the procedure followed when a person arrives at the airport and a problem arises when he discovers his name is on the list. I think that providing that person with a telephone number is the only option in order to respect his rights. Even though his name may appear on the list, he has rights as far as personal information is concerned. It is the proper thing to do.

Furthermore, should an error occur, certain options must be available to allow the situation to be rectified. It is preferable and faster to give someone three options, rather than 50 choices, like a restaurant menu.

If there are three options open to a person, then that individual may be able to speak to people who are experts. You have mentioned six or seven parties to whom a person can complain. Will that person place six separate phone calls? You have to know that a person in this situation will be panicking. The normal reaction would be to call six different places. That is what I would do if I found myself in a similar situation.

As a Member of Parliament, I believe that my constituents are my clients. We need to think like public officials in order to provide service to our clients. Are we helping our constituents by giving them six or seven different options? What about giving them a contact number and once the problem has been identified, then the person will have a file number. He can call and meet with someone who can help him to have his file reviewed. However, given people six or seven different options might be going a little too far.

[English]

Mr. Wappel: I do not want to prolong this discussion. We should not micromanage the information but in my view, this restriction does not occur necessarily as a person is boarding an aircraft because it could occur at any time up to that point. Obviously, there are lists of passengers well in advance of the departure of an aircraft. It could well be that the information is communicated at the last minute but I do not see that happening often.

It troubles me that it is pointed out in the memo that this decision is made by the Minister of Transport and there is no requirement presently to provide that decision to the person who is affected. Counsel is right: If that is the case, the requirement should be codified.

The way in which I read the memo, the implication is that by giving someone a phone number, they can call and have an administrative decision made quickly and perhaps board the aircraft. I am not talking about while the person is at the airport but perhaps a day or two before the travel occurs. I do not think that implication is realistic.

The memo points out that the Office of Reconsideration is not strictly a creation of the regulation; it is mentioned, I guess, to make it seem as if it is fair. Counsel is right: If we try to make things seem fair, then they should be fair and we should not pretend that they will be fair. Either they will be fair, in which case there will be proper rules and regulations set out in the regulation, or it is a smokescreen for an administrative decision by the Minister of Transport from time to time; in which case, let us call a spade a spade. That is what the memo suggests. Counsel does not suggest that we suggest that a copy of the decision be provided. Rather, the suggestion is that if they are not providing the decision, and that is the administrative way they will do it, then that situation should be set out expressly in the regulations.

All of which is to say, it is appropriate for us to write back to suggest that if the department proposes, as the memo says, a kind of non-judicial efficient mechanism to review a person's case, then there should be guidance in the regulation for that person that sets out the rules and regulations that are involved and the procedures that need to be followed. A telephone number or an email address is not sufficient because that gives the indication that someone might be able to obtain a quick decision. I do not buy that indication because, once someone is on this list, they will not change their minds in 24 hours.

The Joint Chair (Mr. Lee): Is there consensus to accept Mr. Wappel's direction on this file? There appears to be consensus.

Mr. Wappel: I do not know that I said anything.

The Joint Chair (Mr. Lee): Mr. Wappel, you helped counsel a great deal. We will continue this file.

[Translation]

Mr. Harvey: I have a very brief question. Does the person whose name appears on the list know that his name is on the list? Prior to arriving at the airport, does he know that his name is on the watch list? Yes or no?

[English]

Ms. Barnes: I can answer that question.

The Joint Chair (Mr. Lee): We can all answer it. We are delving into how the list works; we are delving into a whole range of policy issues. There are names on the list and maybe false positives. We are dealing with the procedures set out in regulations to deal with the people on the list and the false positives. Counsel says that regulations do not have enough meat and there is not enough detail. We agree.

Is that okay?

Mr. Bernhardt: It bears repeating that according to the impact analysis statement there are practices out there that reflect what should be in the regulations. It is only a matter of changing the regulations to something that is done administratively.

The Joint Chair (Mr. Lee): Give them the examples; they will love to see them.

Colleagues, we are not through the agenda yet and we may not finish it. We have had half a dozen thick and difficult files. Let us move on to the Processed Products Regulations, under the Reply Unsatisfactory (question mark).

SOR/95-548 — MISCELLANEOUS AMENDMENTS REGULATIONS (DEPARTMENT OF AGRICULTURE AND AGRI-FOOD) 1995-2

(For full text of documents, see Appendix G, p. 11G:1.)

Ms. Armstrong: Three outstanding amendments to the Processed Products Regulations were promised initially to the committee in 1998. Amendments were supposed to be incorporated into a complete revision of the regulations.

The committee was told in 2000 that drafting was almost complete. The agency's most recent letter from February 14 advises that the review has been delayed. The reason given is that the remaining proposed amendments are complex and lengthy, and a number of other priority regulatory packages are under development.

Given that nearly 10 years have passed since the agency first agreed to make the amendments requested by the committee, perhaps a letter should be sent to the Minister of Agriculture requesting his cooperation in ensuring that the amendments proceed without further delay.

The Joint Chair (Mr. Lee): Agreed?

Hon. Members: Agreed.

SOR/95-212 — PLANT PROTECTION REGULATIONS

(For full text of documents, see Appendix H, p. 11H:1.)

Mr. Bernhardt: Twenty-five points were raised in connection with these regulations. Amendments have already been made to resolve point 17 and the matter in the last paragraph of point 3. There are 15 other amendments promised. Those amendments are enumerated in the note.

That leaves the remainder of point 3 as well as points 4, 5, 13, 20 and 21 that are considered unsatisfactory. Again, each of these points is discussed in detail in the note members have.

I refer specifically to point 3 as well as point 13 and point 20, which give rise to a similar issue. Members are familiar with this issue. We have a provision that requires a person who obtains a written authorization to carry out certain activities to comply with the conditions of the authorization.

This is one more example of an attempt to make the failure to respect the requirements imposed by an administrative document punishable by a fine or imprisonment as if they were law. The committee has always objected to this approach.

In this particular instance — the question in point 3 — the provision seems unnecessary in any event, since a similar provision is in the act already.

A couple of other points remain. They deal with provisions intended to prevent fraud, which falls outside the scope of the act. There is also a concern with section 16(1) of the regulations which deals with powers of entry and investigation by inspectors. These powers already exist under the act. The effect of the regulations is to remove the requirement of the "reasonable grounds to believe" there is something to which the act and regulations apply on the premises. There seems to be no authority for that.

I suggest a further letter pursuing each of the outstanding matters, as explained in the note.

The Joint Chair (Mr. Lee): Are we agreed?

Hon. Members: Agreed.

SOR/97-85 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

(For full text of documents, see Appendix I, p. 11I:1.)

Ms. Armstrong: Fourteen points were raised in this file. The issue in point 2 was resolved by an amendment in 2006. Amendments are promised to address points 1, 3, 4, 6 and 14. That leaves unsatisfactory replies on points 5, 10, 12, 7 and 9. These points are detailed in the note.

Counsel suggests that another letter be sent to the agency proposing specific amendments, as suggested in the note, on points 5, 10 and 12, and asking for more information or clarification on point 7 and 9.

With respect to point 13, the committee suggested that the requirement that information contained on the label of a veterinary biologic be in either or both English or French should be changed to be required to be in both official languages. The agency has not commented on this point, and we should follow up for a specific response on this concern.

The Joint Chair (Mr. Lee): We are making progress.

Mr. Wappel: With all due respect, the agency has replied to the issue of bilingualism, and it is a nonsense reply. I ask that the correspondence ask the agency to explain what they mean by that paragraph. It means nothing. Either we have bilingualism or we do not. If so, the label must be in both official languages, period.

The Joint Chair (Mr. Lee): Agreed?

Hon. Members: Agreed.

SOR/2000-111 — CANADIAN AVIATION SECURITY REGULATIONS

SOR/2002-188 — REGULATIONS AMENDING THE CANADIAN AVIATION SECURITY REGULATIONS

SOR/2004-16 — REGULATIONS AMENDING THE CANADIAN AVIATION SECURITY REGULATIONS

SOR/2006-340 — REGULATIONS AMENDING THE CANADIAN AVIATION SECURITY REGULATIONS

(For full text of documents, see Appendix J, p. 11J:1.)

Mr. Bernhardt: As the note explains, a number of amendments are promised. There are other points on which the reply is considered satisfactory.

There are then 5 points, as detailed in the note, which are considered unsatisfactory. For the most part, these points involve questions of clarification of situations where the language used does not seem to reflect what must be happening on the ground.

In the interests of moving through the material this morning, I propose to rewrite on those points. I am perfectly willing to answer any questions or go into any one of them in detail if members wish.

The Joint Chair (Mr. Lee): Pursue it as suggested. Any comments from colleagues?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): Thank you, counsel, and thank you, colleagues, for your indulgence here.

SOR/2005-346 — PROTECTION OF PASSENGER INFORMATION REGULATIONS

(For full text of documents, see Appendix K, p. 11K:1.)

Ms. Armstrong: Counsel raised six points in these regulations. Subject to negotiations with the European Union, pursuant to treaty obligations, the agency has agreed to make amendments in relation to the second paragraph of point 1, and points 3 and 5.

Counsel suggests that the reply provided on point 1 can be considered satisfactory, and the replies provided to points 2, 4 and 6 unsatisfactory for the reasons as set out in the note.

Again, subject to any questions, our recommendation is to pursue the unsatisfactory replies and follow up on the promised amendments.

The Joint Chair (Mr. Lee): Are there any comments? Are we agreed with that?

Hon. Members: Agreed.

SI/2002-17 — ORDER FIXING THE DATES OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

(For full text of documents, see Appendix L, p. 11L:1.)

Ms. Armstrong: This file can be closed if the committee is satisfied. The committee had a concern with the drafting of coming into force orders that bring only a portion of the statute into force.

In response to the concern by the committee, the legislative services branch advised that it was in the process of reviewing its practices and that it would take the committee's concerns into account. As the department advises in their most recent letter, new rules have been adopted and included in the regulations manual that will address the concern of the committee. In which case, if the committee is satisfied the file can be closed.

The Joint Chair (Mr. Lee): Are we agreed with that?

Hon. Members: Agreed.

SI/2006-121 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF ESTONIA COMES INTO FORCE ON NOVEMBER 1, 2006

SI/2006-122 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF LATVIA COMES INTO FORCE ON NOVEMBER 1, 2006

SI/2006-123 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF LITHUANIA COMES INTO FORCE ON NOVEMBER 1, 2006

(For full text of documents, see Appendix M, p. 11M:1.)

Mr. Bernhardt: The issue here concerned whether these instruments needed to be re-tabled a second time in Parliament following dissolution. They were re-tabled a second time. Our view was that re-tabling was completely unnecessary.

The department then asked the committee to confirm which interpretation of the act should be applied in the future. The committee, in turn, instructed counsel to consult first with the law clerk of the House of Commons. As the correspondence shows, the law clerk has somewhat different reasons but there is agreement that these orders do not need to be re-tabled in a new session. The department has been advised of this matter.

The only additional point was a possible error in two of the instruments in the French version. The department has confirmed that this error was a printing error. This being the case, the file can be closed.

The Joint Chair (Mr. Lee): The department is pleased. Are we agreed?

Hon. Members: Agreed.

SOR/95-571 — ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS, AMENDMENT

SOR/98-531 — REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS

(For text of document, see Appendix N, p. 11N:1.)

Ms. Armstrong: On May 29, the joint chair wrote to the then acting commissioner of the RCMP seeking assurance that amendments previously promised to the committee in 1997 and 2000 would proceed without further delay.

In his letter of February 15, 2008, the commissioner states that he is confident that the RCMP will be in a position to address the file in fiscal year 2008-09. If the committee is satisfied with this undertaking, counsel will continue to follow up on progress and report to the committee.

The Joint Chair (Mr. Lee): It sounds reasonable.

Hon. Members: Agreed.

C.R.C. C. 1238 — NORTHWEST TERRITORIES REINDEER REGULATIONS

(For text of document, see Appendix O, p. 11O:1.)

Mr. Bernhardt: Quickly, on the Northwest Territories Reindeer Regulations, members remember that back in December 2006, when officials from the department appeared in connection with this file, they undertook to provide a work plan for the resolution of the committee's concerns, as well as regular updates. Those updates are before members this morning.

Initially, it was contemplated that the committee's amendments would be dealt with separately from the amendments dealing with boundary issues. Back in July, the committee was advised that the whole initiative had been rolled back into one. Moreover, the boundary issues were more complicated than expected so the time frame was pushed back. There is also reference to the need to revise certain land claims agreements once the boundary questions were worked out.

Most recently, on May 6, the department has updated the committee, saying the draft amendments have been approved, and the required survey work has been completed. They have given us a work plan, but the work plan is for the land claims issues, which are to be sorted out by May 2010.

I presume, given the state of the amendments to the regulations, they will go ahead in the meantime. However, perhaps we should seek confirmation, to make sure they will not be put off until after 2010.

The Joint Chair (Mr. Lee): Colleagues, a couple of months ago, this file entered the quarter-century club. We have a few of those files around. It is 25 years old and the reindeer are happier. Are colleagues okay with counsel's suggestion?

Hon. Members: Agreed.

S.C. 2002, c. 20 — LEGISLATIVE INSTRUMENTS RE-ENACTMENT ACT

C.R.C. C. 1325 — PUBLIC LAND MINERAL REGULATIONS

(For text of document, see Appendix P, p. 11P:1.)

Mr. Bernhardt: When the committee examined the Public Lands Mineral Regulations, it came to light that those regulations, as well as an unknown number of other regulations, were unconstitutional because they had not been enacted in both official languages, as required by the Constitution Act, 1867.

In 1996, the committee reported to the Houses. The government response was not satisfactory, and the committee continued to press its case.

In 2002, the government introduced Bill S-42. That bill re-enacts, in both official languages, all regulations originally made in only one language but published in both languages. The bill makes the re-enactment retroactive.

Section 4 of the act deals then with regulations that were made in only one official language, that were either published in only one language or never published at all. These regulations stay in force until this June. Then they will be repealed unless they are re-enacted in both official languages. The Minister of Justice had until last June to complete a review and to report to the Houses within one year after completing the review. That deadline date is June 13.

The department has explained the work that has gone on to date. I can advise that several orders have been made to re-enact many regulations. It is stated that the department expects to meet the deadlines in the act, so the whole matter should be wrapped up shortly. It goes without saying that this issue was a significant one and represents an important accomplishment by the committee.

The Joint Chair (Mr. Lee): Well done, to counsel and committee members over the past in bringing that issue forward, and to the governments who have been cooperating throughout on this file. Congratulations: That is a good news file.

[Translation]

SOR/2000-294 — CANADIAN FORCES GRIEVANCE BOARD RULES OF PROCEDURE (REVIEW OF A GRIEVANCE BY WAY OF HEARING)

(For text of documents, see Appendix Q, p. 11Q:1.)

Ms. Armstrong: Counsel wrote to the Canadian Forces Grievance Board on January 8, 2008 to get an update on the status of the four amendments to the rules of procedure recommended by the committee.

According to the e-mails received by the committee this morning, the proposed amendments were submitted to the Justice Department on February 1, 2008. Counsel will continue to monitor the situation and, as usual, to keep the committee apprised of any developments.

[English]

The Joint Chair (Mr. Lee): Agreed?

Hon. Members: Agreed.

SOR/2007-280 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VI) (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix R, p. 11R:1.)

SOR/2007-291 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996

(For text of document, see Appendix S, p. 11S:1.)

Mr. Bernhardt: Under the agenda item, Action Promised, there are two instruments. They reflect a total of three promised amendments. Progress on these items will be followed up as usual.

SOR/2007-226 — REGULATIONS AMENDING THE FRONTIER LANDS REGISTRATION REGULATIONS

(For text of document, see Appendix T, p. 11T:1.)

SOR/2007-227 — REGULATIONS AMENDING THE NEWFOUNDLAND OFFSHORE AREA REGISTRATION REGULATIONS

(For text of document, see Appendix U, p. 11U:1.)

SOR/2007-298 — REGULATIONS AMENDING THE PENSION BENEFITS DIVISION REGULATIONS

(For text of document, see Appendix V, p. 11V:1.)

SOR/2008-99 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF FISHERIES AND OCEANS REGULATIONS

(For text of document, see Appendix W, p. 11W:1.)

Mr. Bernhardt: Under the agenda item, Action Taken, there are four instruments. These make a total of 31 amendments that were previously promised to the committee.

SOR/2005-347 — PUBLIC SERVICE OFFICIAL LANGUAGES APPOINTMENT REGULATIONS

SOR/2007-45 — ORDER AMENDING THE EXPORT CONTROL LIST

SOR/2007-53 — ORDER 2007-87-01-01 AMENDING THE DOMESTIC SUBSTANCES LISTS

SOR/2007-65 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2007-1

SOR/2007-72 — REGULATIONS AMENDING THE INTRODUCED FOREST PEST COMPENSATION REGULATIONS

SOR/2007-75 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1082 — FOOD ADDITIVES)

SOR/2007-83 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1434 — SCHEDULE F)

SOR/2007-97 — ORDER 2007-87-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-102 — ORDER DECLINING TO AMEND PART 2 OF SCHEDULE 1 TO THE ACT

SOR/2007-107 — ORDER 2007-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-114 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS

SOR/2007-119 — REGULATIONS AMENDING THE MEDICAL DEVICES REGULATIONS

SOR/2007-120 — REGULATIONS AMENDING SCHEDULE D TO THE FOOD AND DRUGS ACT (BLOOD AND BLOOD DERIVATIVES)

SOR/2007-156 — ORDER 2007-87-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-174 — GENERAL PREFERENTIAL TARIFF WITHDRAWAL ORDER (REPUBLIC OF BELARUS)

SOR/2007-178 — ORDER AUTHORIZING THE ISSUE OF CIRCULATION COINS OF ONE DOLLAR AND SPECIFYING THEIR CHARACTERISTICS

SOR/2007-191 — ORDER 2007-87-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-194 — NORTH AMERICAN LEADERS' SUMMIT 2007 PRIVILEGES AND IMMUNITIES ORDER

SOR/2007-197 — ORDER AMENDING THE APPROVED BREATH ANALYSIS INSTRUMENTS ORDER

SOR/2007-210 — ORDER AMENDING GENERAL EXPORT PERMIT NO. 37 — TOXIC CHEMICALS AND PRECURSORS TO THE UNITED STATES

SOR/2007-211 — ORDER AMENDING GENERAL EXPORT PERMIT NO. 38 — CWC TOXIC CHEMICAL AND PRECURSOR MIXTURES

SOR/2007-213 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (2006 DROUGHT REGIONS)

SOR/2007-215 — ORDER AMENDING SCHEDULE 1 TO THE ACCESS TO INFORMATION ACT

SOR/2007-216 — ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT

SOR/2007-218 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)

SOR/2007-221 — ORDER 2007-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-224 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1478 AND 1491 — SCHEDULE F)

SOR/2007-234 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1476, 1502, 1511 AND 1512 — SCHEDULE F)

SOR/2007-238 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2007-268 — REGULATIONS AMENDING THE MOTOR VEHICLE RESTRAINT SYSTEMS AND BOOSTER CUSHIONS SAFETY REGULATIONS

SOR/2007-270 — ORDER 2007-87-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2007-276 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT

SOR/2007-289 — REGULATIONS AMENDING SCHEDULE A TO THE FOOD AND DRUGS ACT AND THE MEDICAL DEVICES REGULATIONS (PROJECT 1539)

SOR/2007-294 — OLYMPIC AND PARALYMPIC MARKS REGULATIONS

SOR/2007-304 — REGULATIONS AMENDING THE PUBLIC SECTOR PENSION INVESTMENT BOARD REGULATIONS

SOR/2007-307 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (IMPORTATION OF VEHICLES — SECTION 12)

SOR/2008-16 — ORDER 2007-87-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST

Mr. Bernhardt: Finally, under agenda item Statutory Instruments Without Comment, 37 instruments have been reviewed and found to comply with all the committee's criteria.

The Joint Chair (Mr. Lee): Thank you, counsel; that is a ton of work. Congratulations on all that work.

The committee adjourned.

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