Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 1 - Evidence, February 26, 2009

OTTAWA, Thursday, February 26, 2009

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:35 a.m., pursuant to rule 88 of the Rules of the Senate and standing order 106(1) of the House of Commons, to organize the activities of the committee.

[English]

Marcy Zlotnick, Joint Clerk of the Committee: Good morning, honourable senators and members of the House of Commons. I see quorum.

I am the joint clerk from the Senate, and in that role I have to preside over the election of the Senate joint chair. I am ready to receive a motion to that effect.

Senator Bryden: I nominate Senator Eyton as Senate joint chair.

Ms. Zlotnick: It is moved by the Honourable Senator Bryden that the Honourable Senator Eyton do assume the role of joint chair of this committee.

[Translation]

Is it the pleasure of honourable members to adopt the motion?

Hon. Members: Agreed.

Maxime Ricard, Joint Clerk of the Committee: We can now proceed with the election of the Joint Chair (House of Commons).

[English]

The joint chair acting on behalf of the House of Commons must be a member of the official opposition. I am now ready to receive motions to that effect.

Mr. Lee: I nominate Andrew Kania to be joint chair of the committee.

Mr. Ricard: It has been moved by Mr. Lee that Mr. Kania be elected as joint chair of the committee. Are there any further nominations?

Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Mr. Ricard: I declare the motion carried and Mr. Kania duly elected joint chair of the committee.

Before inviting Mr. Kania to take the chair, we will proceed to the election of the vice-chairs.

The first vice-chair must be a member of the government party.

[Translation]

I am now ready to receive motions for the election of the first vice-chair.

[English]

Mr. Lee: Mr. Clerk, I move that Royal Galipeau be elected vice-chair of the committee.

Mr. Ricard: It has been moved by Mr. Lee that Mr. Galipeau be elected as first vice-chair of the committee. Are there any further motions?

Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

Mr. Ricard: I declare the motion carried and Mr. Galipeau duly elected first vice-chair of the committee.

[Translation]

The second vice-chair must be a member of an opposition party other than the official opposition. I am now ready to receive motions for the election of the second vice-chair.

Ms. Gagnon: I nominate Mr. Brian Masse of the NDP.

Mr. Ricard: It is moved by Ms. Gagnon that Mr. Masse be elected second vice-chair of the committee. Are there any other nominations? Is it the pleasure of the committee to adopt the motion?

Hon. Members: Agreed.

[English]

Mr. Ricard: I declare the motion carried and Mr. Masse duly elected as second vice-chair of the committee, in absentia. I invite Mr. Kania to take the chair.

The Joint Chair (Senator Eyton): Now that democracy has had its way, and I am joined by Mr. Kania, I congratulate him.

I think the agenda will be brief, but I hope we will have some discussion at the end of our formal proceedings. Mr. Bernhardt will talk about his staff and the work program as he sees it going forward.

If I can refer you to our agenda, we are at item number 4. I wonder if I could have a motion in the terms set out in item 4.

Mr. Lee: So moved.

The Joint Chair (Senator Eyton): All agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): On to item 5. Could I have a motion as set out in item 5?

Senator Cordy: So moved.

The Joint Chair (Senator Eyton): All agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): Next is item number 6, unrevised transcripts. May I have a motion, please?

Mr. Lee: So moved.

The Joint Chair (Senator Eyton): All agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): May I have a motion for item 7, adoption of the first report?

Mr. Szabo: So moved.

The Joint Chair (Senator Eyton): Agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): Item 8 is authorization of expenditures. May I have a motion, please?

Mr. Lee: So moved.

The Joint Chair (Senator Eyton): All agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): May I have a motion for item 9, travel and living expenses?

An Hon. Member: So moved.

The Joint Chair (Senator Eyton): Agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): Next is item 10, electronic media coverage of public meetings.

Mr. Galipeau: So moved.

The Joint Chair (Senator Eyton): All agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): Next is item 11, travel by members. May I have a motion, please?

Mr. Lee: So moved.

The Joint Chair (Senator Eyton): All agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): Finally, with respect to the last resolution set out, the Subcommittee on Agenda and Procedure, may I have a motion, please?

Mr. Lee: I will move it, but I want to debate it. I want to ask the clerk to explain this motion that I have just moved, because it is rather fresh looking to me.

Ms. Zlotnick: This is something that the Senate side uses or has decided to use. It is up to the members of this committee, of course, whether they think it is appropriate for our committee as well, but it is a way of making members accountable, so that if they are attending something where they are actually functioning in their role as a committee member, for example giving a talk, attending a conference or something like that, they can be still considered to be present for the purposes of attendance.

Mr. Lee: I will try to withdraw the motion. I may need unanimous consent for that. This is something the House of Commons does not get into, and if members are concerned about it, I suggest we stand this particular item over to the steering committee, have them review it and see if we need it. This is a bit of Senate micromanagement that I do not think the House of Commons members would be comfortable with, and I do not think we should adopt it at this time.

May I withdraw my motion?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): Yes.

Mr. Lee: I withdraw it.

Senator Bryden: Some of the senators are not comfortable with it, either.

Mr. Szabo: You need to move a motion to stand the motion.

The Joint Chair (Senator Eyton): We will leave the item.

Next, item 13 is simply the time slot, which I think we are aware of.

Before we get on to any other business, Mr. Bernhardt, could you give us an update on you, your staff, the premises and the work as you see it unfolding before us?

Peter Bernhardt, General Counsel to the Committee: Certainly, Mr. Chairman. As you know, the committee last met in June, which is some eight months ago, so there has been a considerable accumulation of material waiting to come to the committee.

For new members, I should explain that because regulations are made by the government 365 days of the year, outside of the parliamentary calendar, counsel work on reviewing the regulations as published in the Canada Gazette, making preliminary approaches to departments and agencies with what we think might be concerns, and following up on files that have been opened in previous Parliaments. All that work goes on in the interim. Obviously, files get to a stage where they have to wait to come before the committee, so we do have a significant backlog at this point. I do not want to scare anyone, but there is a lot of stuff in the pipeline.

Traditionally, the committee has met every other week. I think members have before them this morning a proposed schedule of meetings. Of course, how it wishes to proceed is up to the committee. What is suggested here would involve a couple of additional meetings, starting next week, to try to clear up some of the things that have accumulated in the interim.

As far as highlights go and things coming back, a report on some issues under the Indian Act was tabled in the previous Parliament. The committee had asked for a comprehensive government response to be tabled in the Commons. Of course, dissolution absolved the government of the obligation to do that, so the question for the committee will be whether it wishes to retable that report.

We were also instructed to prepare a draft disallowance report on the letter mail regulations, the postal rates, so that will be coming back before the committee fairly quickly. A decision will need to be made there.

Another matter that has come up recently is an invitation from Australia and New Zealand for members to attend a conference there this summer. Periodically, the scrutiny committees federally and at the state level in Australia hold conferences. New Zealand is involved in that as well. They tend to be some of the world leaders — certainly Commonwealth leaders — in scrutiny of bills and regulations. I think the committee last traveled in 1999. That will come up probably at the first meeting, to see whether there is interest in pursuing that as a possibility.

As far as the staff goes, we have four counsel to the committee. Right now, we have one vacant position. One of our counsel left us this fall. She was stolen by the Department of Justice, so she will now be drafting some of the things the committee will be critiquing.

We are hoping to staff that position fairly quickly. If that does not happen, the committee might need to give a bit of a prod.

Senator Eyton alluded to the relocation of our space, which is an ongoing issue with the library. For members who may remember this from the last Parliament, we are still where we have always been. The plan, I think, is to relocate us probably this summer, which may give rise to some issues and complications down the road at a mundane and practical level.

The Joint Chair (Mr. Kania): I will add at this stage, in terms of the schedule, that I already met with Mr. Bernhardt to get an idea of the amount work, as it has been so long since the last meeting. There is a considerable amount of work, so I would strongly recommend the schedule with a few extra dates as has been proposed.

Mr. Lee: All Thursdays look the same to me, but we should kick this over to the steering committee. However, if you need a motion now, I will move that we add two more Thursday meetings before the summer recess.

The Joint Chair (Senator Eyton): Why do we not take it as a recommendation?

The Joint Chair (Mr. Kania): Does anyone have any objections to this schedule?

We will adopt it.

The Joint Chair (Senator Eyton): Any questions for Mr. Bernhardt?

Mr. Bernhardt: I should add that we try to get the package of materials for each meeting into the members' offices late the week before. On the assumption we would be meeting next week, the stuff has been printed and should be off to your offices today, so you can have your staff look for it. It is usually a two-inch thick package of materials.

Mr. Young: There is a big difference between Thursday and Friday. We do not have house duty Friday; we try to return to ridings.

Mr. Bernhardt: We definitely make an effort to get it out there on Thursday so members have the weekend to read it.

The Joint Chair (Senator Eyton): This is really for the new members. This committee over the years has done excellent work. It is a quiet committee; it does not have a lot of notoriety, but it is particularly well served by its staff from time to time, now led by Mr. Bernhardt, and his colleagues. The quality of their work is exceptional.

You will all have received the background notes that he circulated. I encourage particularly the new members to look at them and get a sense of what the committee does. Mr. Bernhardt, in his accompanying memorandum, suggested that if anyone had any questions or wanted to visit, to do so. I encourage you when you have time to visit his premises, to have a better understanding of the mechanics of the work they do. It is really very impressive. It is a small staff doing a lot of important work, and doing it quietly and efficiently. It makes our work here at the committee manageable and relatively easy compared to the task at hand.

I know Mr. Bernhardt would be pleased to host anyone who wants to go to the premises and see firsthand what is going on.

Mr. Lee: Is there other business?

The Joint Chair (Senator Eyton): Yes.

Mr. Lee: I wanted to alert colleagues to the fact that contained in government legislation in the house, Bill C-9, Bill C-10 and Bill C-11, are a number of provisions that state that the statutory instrument involved shall not be a statutory instrument, will not be seen as a statutory instrument. This has the effect of removing that governmental regulation exemption order from the review of the committee. As a general principle, that is objectionable. I accept that some regulations or statutory instruments do not have to be reviewed, depending on the nature of the instrument.

The government objective in putting these words into the statute is probably that they do not want to have to go through prepublication, consultation and the whole drill of passing a regulation, because on a public policy basis sometimes you have to pass these things quickly, for public health or safety or whatever. Sometimes they are so mundane and administrative as to be not worthy of prepublication and three months of waiting.

However, the wording used also has the impact of preventing this committee from reviewing that regulatory activity. That may be inadvertent in terms of their intention.

I have constructed some amendments to these bills that I intend to offer to the house. The problem is probably in relation to Bill C-10, which unfortunately has become a kind of omnibus bill. It contains the stimulus package, which is very important to the country, but it also contains amendments to the Competition Act and the Navigable Waters Protection Act, and some of those amendments contain the phrases that say this regulatory activity of the government is not a statutory instrument.

I intend to offer amendments in the house, at great risk to my career and my health, because the finance minister, I think, told the Finance Committee the other day that Bill C-10 was a matter of extreme confidence and that no amendments would be accepted. My amendments may be regarded as simply technical. The amendment will simply say that I will accept the existing wording but add the words, ``This instrument is not a statutory instrument except for the purposes of sections 19 and 19.1 of the Statutory Instruments Act.'' Those two sections are the sections that allow the committee to review. We review these things after the regulations are made so as not to interfere with the speed or method in which they adopt them, but it will ensure that whenever a minister exempts or orders or adopts a regulation that affects a citizen, we will review it, just to make sure it complies with the law.

I think it is a good amendment. I will offer it as a technical amendment. I could be blown out of the water or thrown out of my party, I am not too sure yet, but I will do that in the great traditions of this committee and we will see what happens. If it does not pass in the house, there may be some senators who feel the same way I do, that in our haste to pass a bill we should not be doing things that remove governmental regulatory activity from the review by this parliamentary function here.

That is just informational.

Senator Eyton: The general point came up in the Senate yesterday in discussion.

Mr. Lee: Do you people want to amend it? It is a lot easier to amend it in the Senate than it is in the house. I have to face 300 and some-odd snipers. In the Senate, you are so collegial you could probably do it. We can talk outside the meeting about that.

Senator Bryden: Go for it, Mr. Lee. We are sober second thought, not first.

Mr. Lee: Let the record show, après vous, mon cher Alphonse.

Mr. Szabo: I have a question for Mr. Bernhardt. The Fisheries Act disallowance has been with us for a very long time and the prospect of ever getting it resolved is small, but it is our responsibility and I would just ask that it be put on the chair's consideration for our future business to determine a responsible approach to discharging that activity.

Mr. Bernhardt: I can guarantee that this will be back on the agenda fairly quickly. As you alluded to, we had fisheries legislation die in the last Parliament, I think for the sixth time, so we have the same old question: Where do we go from here?

The Joint Chair (Senator Eyton): Is there anything else?

The Joint Chair (Mr. Kania): Is there a motion for adjournment?

Mr. Lee: So moved.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

(The committee adjourned.)