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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 13 - Evidence,  December 3, 2009

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OTTAWA, Thursday, December 3, 2009

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

Mr.Andrew Kania (Joint Chair) in the chair.

[English]

The Joint Chair (Mr.Kania): Welcome to the committee.

Two additional matters are not on the schedule. A letter has been distributed from the Minister of Justice. It is dated November19, 2009, and is in response to our request with respect to incorporation by reference. This letter is simply to let us know that they have agreed to extend the time to hear our submissions.

The second one has been distributed already. This item is with respect to the new lawyer and the selection process for that individual, with a recommendation that has been made with respect to Evelyne Barkowski-Parent.

Mr.Bernhardt has advised us that, to designate this person formally as counsel to our committee, we will need a formal motion and vote to ensure that everything is in order.

Mr.Hoback: I will make the motion.

The Joint Chair (Mr.Kania): Mr.Hoback has made a motion.

Senator Hervieux-Payette: I want to make the motion. I think it is the first time in maybe 100 years we have had a woman, so it is my pleasure.

Have we seen some before? In the last 15 years, I have only missed one and a half years sitting on the committee.

Mr.Lee: She replaces a female.

Senator Hervieux-Payette: They never come here. You do not bring them here, do you?

Peter Bernhardt, General Counsel to the Committee: Yes; this will be our third woman.

Mr.Lee: We had one 10 years ago.

The Joint Chair (Mr.Kania): Is there any discussion before we vote?

Mr.Lee: I would like to say one thing, Chair. If I was so meticulous in the hiring in my office, I probably would never be able to hire anybody.

I am in favour of the motion.

The Joint Chair (Mr.Kania): All those in favour? Those opposed? The motion is carried. Ms.Borowski-Parent is so designated as counsel to the committee.

Let us move to the agenda.

SOR/2007-206 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE HAZARDOUS PRODUCTS ACT (FLAME RESISTANCE TEST METHOD)

(For text of documents, see Appendix A, p. 13A:1)

Mr.Bernhardt: Thank you, chair. The issue here again is incorporation by reference, this time of a Canadian General Standards Board test method as amended from time to time.

In the absence of clear authority and enabling legislation, the committee considers such open incorporations to be unlawful. Here, there is an additional factor, which is that there are other enabling provisions in the same act that expressly permit regulations incorporating standards as amended from time to time.

Therefore, this is a further indication that by not so providing, Parliament did not intend to confer that power in this instance.

In the first letter to the department, reference was made to the committee's report as well as to the government response to that report, and the department was advised that the committee had found nothing in the response to cause it to alter its view.

Nevertheless, the reply from the department simply refers the committee to the government response, even though the department had already been told that the committee did not find the response convincing.

As members know, legislation is being considered to deal with this issue, generally. At this time, there is no way to know whether this particular file will be resolved by that legislation.

Perhaps, the department can be asked in the interim to agree that, if the legislation does not resolve this particular concern, then either the regulations will be amended to remove the open incorporation, or the Hazardous Products Act itself will be amended to permit it expressly.

Mr.Lee: I am not challenging counsel on the incorporation by reference, IBR, issue directly on this particular item. However, as a devil's advocate, from the departmental point of view, it seems to me they are not letting someone else set the standard they wish to legislate by regulation. The standard is set out clearly; it is seven seconds. Seven seconds is a flame test of some sort.

The department has not sub-delegated or imported the seven-second standard. It has imported the process by which it measures the standard. I would argue that is not IBR, but simply referencing the process the department wishes to use. By analogy, I can say that no automobile manufactured on an assembly line in Canada shall be capable of speed greater than 150kilometres per hour measured by a chronometer. As you know, a chronometer is a device whose standard is set somewhere in a little village in Switzerland or somewhere. We are importing a standard. If the department said such and such shall not exceed a temperature of 50 degrees Celsius, we are importing a Celsius standard. We did not set the Celsius standard or any other standard. They are simply being helpful in referring to the process by which they will measure compliance with the standard set in the regulation.

I do not think this reference is mainstream IBR. This reference is something else. It may occur all over the place, and we simply do not see it. In this case, the process they reference happens to be ultra-scientific, known only in the industry, referenced by digits, letters and acronyms, and not a standard used on the street. I appreciate that, if someone needs to find the process, they will have to look it up outside of the regulation.

What does counsel think of that argument?

Mr.Bernhardt: Personally, I think it is a good argument. It is probably a distinction that has been made in the past. In the absence of any other indication in the act, that may have been the conclusion we reached. The other factor here is that there are other enabling authorities in the act. They say, when you are doing it for this purpose, you can incorporate things as amended from time to time.

We do not find that in the enabling provision for this incorporation. The question is whether there is an inference as to what Parliament intended by expressly saying, you can do that in these cases, but saying nothing in these other cases.

In the absence of those other provisions, I would be in agreement with you. The question is whether there is a difference in this case because of those other provisions creating a contrary indication.

Mr.Dreeshen: I am not sure whether I can give the full seven seconds of devil's advocacy. I think we should perhaps wait until the Minister of Justice has the legislation. We will have an opportunity to look at it and move forward from there. However, the arguments that we have heard from time to time are interesting.

The Joint Chair (Mr.Kania): Other comments?

Senator Hervieux-Payette: Is there a date for the law? They can take 10 years to prepare the law.

The Joint Chair (Mr.Kania): The Minister of Justice indicated that he hoped to have legislation this fall. The committee wrote and asked for a little more time to make its submissions. The minister agreed and those submissions were approved at the last meeting. We had everything signed, sealed and delivered this week to send to the minister. He should have received those submissions by now.

Senator Hervieux-Payette: Okay.

The Joint Chair (Mr.Kania): We sent them this week.

Any other comments?

Mr.Lee: Unless counsel has a suggestion, I do not think we want to be seen to be acquiescing in open season on IBR, pending the potential legislative fix. We have to go back to the agency or department to indicate the committee has not seen sufficient reason to deviate from our non-acceptance of open incorporation by reference.

Mr.Bernhardt: And we will wait and see the legislation.

The Joint Chair (Mr.Kania): Send a further letter and we will make reference to the fact that we are waiting to see.

All agreed?

Hon. Members: Agreed.

SOR/2008-230 — ORDER AMENDING PART II OF SCHEDULE I TO THE HAZARDOUS PRODUCTS ACT (LIGHTERS).

(For text of document, see Appendix B, p. 13B:1)

Mr.Bernhardt: Subsection6(1) of the Hazardous Products Act requires that an order amending Schedule I to the act be tabled in both houses within 15 sitting days. In this instance, the order was tabled on time in the Senate, but not in the House of Commons until the twentieth sitting day. The explanation from the department is that the fall 2008 election call and the December2008 prorogation created confusion calculating the deadline. The department apologizes and undertakes to ensure this situation is not repeated.

The committee has reported on failure to comply with tabling requirements in the past. The Speaker in the House of Commons has ruled that such a failure may constitute contempt. At the same time, the lateness here was five days. It was not particularly egregious. As for the undertaking not to repeat it, I can advise the committee that there have been two subsequent amendments to Schedule I. Both of those amendments were tabled on time. That being the case, the committee could accept the explanation and simply close the file.

The Joint Chair (Mr.Kania): As a preliminary comment, there are a few of these items. We will discuss the item, obviously, but my suggestion is that we write back and thank them. We can tell them we may have to report in the future if it happens again, but we are okay for now.

I think that approach can apply as a general policy for the next few items.

Mr.Bernhardt: Yes, we have more coming up.

The Joint Chair (Mr.Kania): Does anyone have a problem with that approach?

Let us take them one by one.

Is everybody agreeable to that approach for this item?

Mr.Lee: Chair, this is a point with broader implication.

I do not want to be seen as overly picky in regard to this particular translation of the March5, 2009 letter. However, at our last meeting, I found weaknesses in the translation from French to English. I find similar issues in today's agenda. There may have been staffing changes or other things.

For example, the last sentence of that March5 letter says: "Could you explain why the House of Commons did not respect the deadline set by Parliament?'' That is not what happened. The House of Commons did not disrespect the deadline; it was the department. The deadline was set by statute.

That is one example. Another example is in a previous letter. Can I ask counsel and the clerk to keep an eye on this issue to ensure that we keep the extremely high standards we have always had for English to French translation or from French to English?

Mr.Bernhardt: We do not provide the translation in-house for most correspondence. We try to check, but I will not pretend that we go through every piece of translation.

Mr.Lee: I made my point. I agree with the chair on the disposition of the main matter.

The Joint Chair (Mr.Kania): We will write, as discussed.

SOR/2008-282 — ORDER AMENDING THE IMPORT CONTROL LIST

(For text of document, see Appendix C, p. 13C:1)

Mr.Bernhardt: The issue is the same on this item. It looks like they overlooked the requirement. I will add that, even after they were reminded, it still took three months to table the document in the houses.

Senator Hervieux-Payette: It is slow on the other side.

The Joint Chair (Mr.Kania): We will send them a letter.

Hon. Members: Agreed.

SOR/2003-343 — CANADIAN ARTISTS AND PRODUCERS PROFESSIONAL RELATIONS TRIBUNAL PROCEDURAL REGULATIONS

(For text of document, see Appendix D, p. 13D:1)

Shawn Abel, Counsel to the Committee: As the note before members indicates, 10 points were pursued following the committee's last consideration of these regulations. Confirmation was sought that amendments would be made in respect of points 6 to 9, and 11, but the tribunal states only that the committee's concerns will be given due consideration when the regulations are amended and that there are no plans to pursue regulatory reform. Perhaps in this case, the tribunal should be reminded that, where deficiencies are identified in a regulation, an undertaking to address such matters within a reasonable time frame is usually expected.

Several points are dealt with in detail in the note. Points 1 and 4 involve the codification in the regulations of procedure that the tribunal apparently already follows in the normal course of practice. Points 2 and 9 deal with clarification of the wording of several provisions.

I draw members' attention particularly to point 5, where the committee has sought the addition of criteria that must be considered when exercising discretion granted under subsection11(5). Such criteria are contained in the Tribunal Procedures, which are an administrative guideline, as well as in the tribunal's case law.

Guidelines are not law and, therefore, not binding. To ensure that persons are not unduly subject to administrative discretion or arbitrary treatment and to provide clarity to the parties before the tribunal, the applicable criteria should be set out by regulation. It is noted that criteria are set out in other provisions, such as in section11(1).

In addition, the tribunal objects to the suggestion that subjective language found in subsection20(4), section21 and subsection30(1) be removed. Such language transforms the nature of the decision to be made from an objective determination of the facts to an opinion of the tribunal, which serves only to exclude the jurisdiction of the courts in reviewing such decisions.

The tribunal does not appear to appreciate the effect of such wording but points to its use elsewhere in federal regulations. Included in the note today is an excerpt from the committee's second report of the Thirtieth Parliament setting out in detail the reasons that such language is to be avoided. Perhaps this excerpt can be conveyed to the tribunal. The removal of subjective language, of course, will not impair the tribunal's power to make the decisions in question.

Moving on, point 6 deals with the need to set out clearly the effective date of service of documents on another person for the purpose of the regulations. The tribunal's reply seems to reflect the mistaken impression that several deadlines set out in the regulations do not turn on the date of service, which they clearly appear to do.

Point 10, like point 5, concerns the need to set out express criteria in relation to a discretionary power granted by the regulations. An example of how these criteria can be set out is provided in the note. Perhaps this information can be conveyed to the tribunal. In summary, if the committee finds this approach satisfactory, a further letter can be drafted.

The Joint Chair (Mr.Kania): Are there comments?

Mr.Shory: Chair, I agree with counsel that we should seek further clarification in a letter to the tribunal or perhaps the chair of the tribunal to straighten things out.

Mr.Lee: I put on the record that much of what we recommend to the tribunal comes out of administrative law 101. The fact that they do not understand it, or do not want to understand it, is a little disturbing. We might be the gold standard in administrative law 101 here but they should understand the message by now. The letter should be firm and, if it comes back again, I will take a firmer view.

Senator Hervieux-Payette: I have a point for clarification by counsel. Once the tribunal has written the regulations, is there a review process within the mechanics of the government, or does the regulation go out directly following publication in the Canada Gazette? It follows that we then discover things are not moving in the right direction. Is there an administrative review at the department level? There seems to be no standardization when it is reviewed by the Department of Justice.

Mr.Bernhardt: I presume it was reviewed and sent through the blue-stamping process at the Department of Justice, like any other regulation. Whether this being a quasi-judicial tribunal caused the department to take a more hands-off approach, I cannot say. It would have gone through the same process, at least formally, as any other regulation.

Senator Hervieux-Payette: Perhaps the department should take a course from you.

The Joint Chair (Mr.Kania): Are there other comments? We will send an appropriate letter.

Hon. Members: Agreed.

SOR/98-166 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

(For text of document, see Appendix E, p. 13E:1)

Mr.Bernhardt: The joint committee accepted that amendments to address its concerns will be delayed until other planned amendments to the same regulations are adopted. The committee gave the department a proviso that the promised amendments be made within a reasonable period of time. As well, the department was told that if the amendments are not made within two years, the committee expected they would proceed independently. This time passed, and the department was asked whether it would proceed to make the promised amendments as a separate package. The reply from the department states that the amendments in question will be made whenever other amendments are made, and that other amendments are being contemplated, but they cannot give a specific time frame. If members think this reply is too vague, perhaps the minister's cooperation can be sought to ensure that the committee's concerns are resolved without further delay.

The Joint Chair (Mr.Kania): Are there comments?

Mr.Lee: I enjoyed reading the September18 reply from Industry Canada over the signature of Colette Downie. I will put on the record the last full sentence of her letter, other than the closing line. Of course, it covers off everything bureaucratic. Everything is in this sentence to try to pacify this committee. The letter states:

...while it is not possible to delineate a specific date for their pre-publication at this time given that they would move forward at the same time as other potential changes to the regime, rest assured that such amendments are being considered.

I felt good that she was asking us to "rest assured,'' but I cannot let it end there. I congratulate her for saying almost everything backstopping the work of the committee. However, she did not hit the nail on the head because the department has agreed to make these changes while her letter simply says to rest assured that they are considering our submissions. Counsel will know how to deal with this item. We have to firm up and take the department back to its original commitment and informally thank Colette Downie for the entertainment.

Mr.Masse: At some time, we have to ratchet up the item. This correspondence is close to condescending. We need to go beyond that and call them as a witness on that response. We have too many files where we receive this kind of response. We have to set an example at some time. If it is not with this file, it will be soon with another file. It is a waste of time and energy, and is disrespectful of this committee and the legislation. This item is a good time to exert our full authority to set an example to other departments. This response is clearly a waste of money and time.

Mr.Hoback: Mr.Lee, I enjoyed your speech. Probably the best way to handle this item is to go back to the department to ensure they understand that we take this matter seriously and do not appreciate being taken for granted. I suggest that we write to the department to say that this response is inappropriate and action is required.

[Translation]

Mr.Galipeau: This is not an isolated case. I realize that this public servant is not blaming us specifically, but probably she does not really understand Parliament's authority over the Public Service.

To their minds, this neo-gothic structure on the Hill is a necessary evil preventing them from doing their job. However, that is not an accurate portrayal of who we are. We direct the work of the Public Service. Parliament's authority rests in the hands of parliamentarians. Some parliamentarians are permanent, some are temporary, but we all have the authority to govern and that is what we do. They need to understand that.

[English]

Mr.Hoback: Perhaps in the letter we can quietly suggest that if the item is not addressed properly, she will be called in front of the committee. Put it in writing; let us not bring her in front of the committee at this time, but make her aware that we are serious and she should take us seriously. If she is not willing to, then we will bring her here.

The Joint Chair (Mr.Kania): We can ask the department when the commitment will be made; if they cannot provide us with an answer, we will ask them to attend before the committee to explain the delay.

Mr.Bernhardt: In the absence of a firm deadline.

The Joint Chair (Mr.Kania): Right.

Mr.Galipeau: It should be noted the directive at this meeting came from parliamentarians from the government side, from the official opposition and also from a third party.

Mr.Masse: I will leave it at that. My comments probably should not go on the record.

Senator Hervieux-Payette: I suggest giving them 60 days. That timeline will take us to the next session after Christmas. That means February; I think it is long enough.

Mr.Galipeau: And from both houses.

Mr.Bernhardt: If members wish, I can attach the excerpt from this morning's proceedings to the letter, to underscore that fact.

The Joint Chair (Mr.Kania): Only if he makes his comments. Let us stick with the letter.

Mr.Masse: In all seriousness, I have been sitting on this committee and there comes a point when due respect must be paid. I think we have to consider how we run our committee to engage the different bureaucracies in that type of relationship. That is something to think about over the break time.

I think it includes having witnesses come before this committee on a more regular basis, and structuring ourselves in such a way. Looking at the length and duration of some of the files we deal with, and the types of issues, there is a lot of low-hanging fruit that should be taken care of quicker. Then, there are other issues where there are legitimate debates between the department and the Standing Joint Committee for the Scrutiny of Regulations that deserve longer time. However, there are other issues that should be taken more seriously, and we are not getting that respect.

The Joint Chair (Mr.Kania): We will send a strong letter with deadlines, as discussed.

SOR/91-365 — PARI-MUTUAL BETTING SUPERVISION REGULATIONS

(For text of document, see Appendix F, p. 13F:1)

Mr.Abel: Following the committee's last consideration of this file, confirmation was sought and received that the regulations would be amended in relation to points 2, 7, 8, 9, 11 and 12.

The department indicates that these amendments, as well as previously promised amendments, are moving toward completion. Perhaps at this time, we can seek a report on current progress.

Hon. Members: Agreed.

SOR/2000-208 — PACKAGING AND TRANSPORT OF NUCLEAR SUBSTANCES REGULATIONS

SOR/2003-405 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE NUCLEAR SAFETY AND CONTROL ACT

(For text of document, see Appendix G, p. 13G:1)

Mr.Bernhardt: Amendments have been promised to correct the discrepancies between the English and French versions that were noted in points 1 and 3 of counsel's letter. On point 2, it was suggested that subsection7(1) perhaps be re-drafted.

It states that the commission or a designated officer can conduct certifications if certain information is contained in the application. The commission already has authority to certify under the relevant provisions of the act itself, so the purpose of subsection7(1) of the regulations is to set out what information is required, not to designate who can certify. This point could have been clearer.

The commission prefers the present wording. It says that repeating who can certify saves the reader from having to go back and forth between the act and the regulations.

The committee often views this repetition as itself being a possible source of confusion, but here that may not be a problem since the provision definitely accomplishes more than stating who has the authority to certify. If members agree, their reply can be accepted.

The final point, point 4, concerned what appeared to be a defect in the Transportation of Dangerous Goods Act. The department's reply missed the point. However, in the meantime, BillC-9 was introduced and it resolved the problem — I think probably coincidentally.

That bill is now in force. One minor consequential amendment needs to be made as a result of BillC-9, so it will be simply a case of confirming with the department that they will make that amendment.

The Joint Chair (Mr.Kania): Are there any comments? All agreed?

Hon. Members: Agreed.

Mr.Galipeau: Let it be known that we are not always mean.

SOR/2003-2 — ON-ROAD VEHICLE AND ENGINE EMISSION REGULATIONS

SOR/2006-268 — REGULATIONS AMENDING THE ON-ROAD VEHICLE AND ENGINE EMISSION REGULATIONS

(For text of document, see Appendix H, p. 13H:1)

Mr.Abel: Eleven points were raised in relation to these regulations. Amendments are promised in relation to points 3, 5 and 7 and the first part of point 9. It is suggested that satisfactory replies were received in relation to points 2, 6, 8 and the second part of point 9, as well as point 11, all of which dealt with questions of clarification.

The note prepared for today addresses three outstanding points in detail. Point 1 concerns the definition of "curb weight,'' which is defined as the "actual or manufacturer's estimated weight.'' It is unclear which weight is intended to apply in the event that the two weights differ; therefore, clarification seems necessary. The department's comments seem to indicate that the definition may no longer be necessary at all, and confirmation should be sought in this regard.

In what may seem like a familiar refrain on various files of late, the department also expresses reluctance to amend the definition because it wishes to maintain harmony with U.S. emissions regulations. It should be remembered again that a policy of harmony with foreign laws or with international conventions requires that the legal effect be the same, not the exact wording.

In connection with point 4, the department promises to amend a number of specified provisions, but confirmation should also be sought that the French version of section6(4) will be amended, which was not mentioned. The discrepancies noted under this point are also the product of an underlying ambiguity in the English version of the enabling act, and the department intends to address this ambiguity also as part of an ongoing review of that statute.

In relation to point 10, the concern was raised that section45(1)(c) may be ultra vires. It appears that the necessary authorities are found under section157(5) of the act. It is noted, however, that section, 45(1)(d) to (f) of the regulations simply repeat requirements already found under the act, and should therefore be removed.

If the committee agrees with all these points, a letter can be drafted pursuing these points and seeking a progress report on the already promised amendments.

The Joint Chair (Mr.Kania): Are there comments?

Mr.Lee: I wanted to make a comment on counsel's reference to the harmonization issue. I appreciate where he is coming from, and he is correct in law, of course. However, I take a view that when it comes to trade with our American neighbours and cousins, if we have achieved any kind of harmonization there, this is a good thing. People like us who are disconnected from that trade should not monkey with terminology for which we may not have the full sense, or an understanding, of the implications.

I notice in the first item in the last file we worked on, we had them insert a comma. Whoopee. Technically, that comma was important, but when we monkey with regulatory things in the auto industry and other industries where there has been a degree of harmonization — thank God — we do not always have a sense of what trouble we can cause.

I urge counsel to keep that point in mind and treat harmonization as a good thing. Even if the term "curb weight'' does not mean the weight of the curb, which on plain reading is what it should be, these words are terms of art in the industry. I urge counsel to keep that point in mind. If it is not broken, let us not try to fix it.

Mr.Masse: Mr.Lee is partially right. I think that approach is good. However, I point out something interesting: The department is pursuing this item in such a vein because there is a double standard. Last week, there was a recall notice in the United States where 4 million U.S. consumers of Toyota products received a letter related to mats that affected the accelerator pedal, and this problem caused deaths in the United States.

Meanwhile, in Canada, all we received was a press release and a posting on the Internet. Industry Canada has now pursued the issue and, with pressure, letters will be issued. However, I find there is harmonization for the industry when it is to industry's advantage but not necessarily so for consumers.

I want to note that double standard. It is something that is often the case in the auto industry.

Mr.Galipeau: This was not only about the auto industry. This is also about, what is fair for the U.S. Postal Service should also be fair for Canada Post.

The Joint Chair (Mr.Kania): Are there other comments? Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr.Kania): The next item is SOR/2007-135.

Mr.Bernhardt: Did we skip SOR/2006-191?

The Joint Chair (Mr.Kania): This item is the next one on my copy of the agenda. Whatever you want to do is fine. I am missing something, perhaps.

Mr.Bernhardt: Do you want to defer the item? It is the Nuclear Security Regulations.

The Joint Chair (Mr.Kania): Does everyone have 2006-191?

If I am not prepared, you will understand why: I have not seen this item.

SOR/2006-191 — REGULATIONS AMENDING THE NUCLEAR SECURITY REGULATIONS

(For text of documents, see Appendix I, p. 13I:1)

Mr.Bernhardt: In the letter dated October9, 2008, 12 points were raised. We have had eight promises of amendments, as listed in the note, and it is also suggested that the reply on point 4 is satisfactory.

The note goes on to focus on three points on which the reply does not appear to be satisfactory. Point 1 concerns the use of different terms in the French version as equivalents for "likely'' in the English version. The initial reply from the commission was that this difference is fine because they are used in different contexts.

When asked for clarification as to how the different contexts differed, the commission simply replied it did not see the point in standardizing the way in which the word "likely'' is rendered in the French version since there is no error, and no consequences flow from the use of different words.

It should go without saying, however, that it is always preferable, at the least, to have uniformity of language in a legal text. I suggest putting to the commission again the need to do so in this case.

Point 10 deals with section21(1) under which a licensee "may,'' on listed grounds, revoke certain authorizations, for example, an authorization to enter a protected area. For example, one of the grounds is if it is reasonable to believe that the person poses a risk to the security of the facility, the licensee then has the discretion whether to revoke the person's authorization.

The question was asked whether licensees really need this kind of discretion and what criteria exist for its exercise. The reply from the commission is that the discretionary power allows licencees to take action other than revocation, if it is appropriate. The example is given of a licensee removing a person from the premises in the event the security of the facility is at risk.

It seems questionable whether there is any real difference between "removing'' a person from the premises and "revoking'' their authorization to be on the premises. I think it pretty much comes down to the same thing.

This point aside, the commission's reply does not address the suggestion that criteria should be incorporated into the regulations to guide licensees if they will have this sort of discretionary power, and the reply also does not deal with the question of whether a person whose authorization has been revoked should have the right to a hearing.

Finally, point 12 concerns a requirement that, before a person is given a facility access security clearance, if the licensee cannot establish the person's history for at least the past five years, the licensee must verify information relating to the person's trustworthiness.

This provision seems vague. Apparently, this verification is conducted under agreements with the Canadian Security Intelligence Service, CSIS. I suggest the regulation should at least give an indication of the criteria that will go into deciding whether a person is trustworthy, especially given that the person's personal history is apparently not available.

In short, I suggest writing back on these three points.

Senator Ogilvie: I obviously do not have all the extensive background in what has happened in this particular file. However, I read the response under point 10, and have been involved with various facilities. If I read the response correctly, the situation relates to a sudden need to remove individuals. The situation is separate from any issue as to their competence.

Frankly, I agree entirely with the response; that is, if they are in a situation of emergency, they should have the authority to remove those persons from the situation that will be adversely affected by their presence. If I read the response correctly, the idea that they would compose some sort of an order revoking authorization to be there seems to be unnecessary bureaucratese. I apologize if I have missed some critical point here.

Mr.Bernhardt: I am not sure a lot is required formally to revoke someone's authorization. If someone has a document saying that person has authority to be there, and suddenly the person should not be there, I think —

Senator Ogilvie: Presumably the person who will make that decision has a higher authority. If they are in a situation of emergency, they take action. They do not run around looking for a piece of paper to revoke something.

That is my point. They take action.

Mr.Lee: I tend to agree with the senator. In this case, in a facility for which access is protected, if the controller of that real estate wants to remove someone, they presumably initially rely only on trespass; in other words, that person is out of here. Someone executes that order or whatever.

However, they cannot rely on trespass if the person has a licence to have access. In the end, they cannot legally remove that person, or at least that person would have colour of right to be there if the person had an authorization to be there. If the guard comes up and says, I am sorry the boss wants you out of here now, that person can say, I have the authorization to be here. The only way to remove that person legally is to take away the authorization to be there. They need to take it quickly and summarily. This provision will allow the controller of that protected space to remove the authorization, declare the person persona non grata and tell that person to leave immediately. Whether it is for an emergency or disciplinary measure is hard to tell.

However, it is necessary for the control of the real estate to be absolutely in control of the place. Any legal impediment to removing someone has to be removed. In my view, the authorization to be on the premises has to be removed quickly. Otherwise, they cannot remove the person.

Mr.Bernhardt: In this case, we are not removing the authorization. They have the discretion not to remove the authorization.

Mr.Lee: Yes, it is discretionary.

Mr.Bernhardt: They have decided the person should not be there. Now they have the discretion whether to remove that person's authorization. You said that they decided the person should not be there, so why would they not remove the authorization? The reply was that they want to be able to throw the person off the premises although the person is still authorized to be there.

Mr.Lee: I am saying, therefore, they must remove the person.

Mr.Bernhardt: That, of course, underlies the regulation that simply says if they do not want to remove that person's authorization, they do not have to, although that person is a danger.

Mr.Lee: We may end up with a scenario where they remove someone that had an existing continuing authorization to be there.

Mr.Bernhardt: In effect, they are suspending that person's authorization.

Mr.Lee: It might be a bad legal place to be. However, that was my comment on that point.

Senator Ogilvie: I understand what Mr.Lee has said. I realize there can be additional complications. A situation in a nuclear facility or any other potentially hazardous environment requires orders of authority that have the ability to deal quickly with any emerging situation.

The point I was reading was similar to how Mr.Lee stated it. A situation may arise suddenly where people are authorized to be in this particular area. However, they want them out of the area immediately and they have an authority to be able to order them out. It does not mean that they revoke their authorization to be in that area in all normal circumstances. That was my point.

I understand the immediate situation, but I also understand there is an ongoing operation. The circumstance may mean they do not want X or Y to have their authorization to be present on that premise or facility removed forever — this circumstance is an emergency. They simply rely on their vested authority to control the emergency situation.

I understand the other aspects Mr.Lee has added, but I will not make any further point. I think that if one does anything to imply an individual must take extra action in an emergency situation, one compounds the potential for problems. Revoking an authorization implies more than simply standing up and saying: I, the majesty, hereby revoke your authorization.

I presume there is a written trail.

Mr.Bernhardt: Presumably: As I said, the difficulty is that none of that authority is reflected in the regulations. The regulation says only that if someone is a hazard to the facility, the licensee does not have to revoke their authorization.

Senator Ogilvie: To remove that individual.

Mr.Bernhardt: No, not to remove: There is no reference to remove. The regulation says only that if someone is a hazard, that individual may or may not have their authorization revoked. We simply asked, Why would you not revoke it? We were given the explanation we have been discussing.

At the end of the day, perhaps the only criticism I would make is that if this is the regime they will have in place, it is probably a good idea to have the regulations reflect that regime. Give them the power that, notwithstanding that a person has authorization, in these kinds of circumstances, the licensee can immediately remove the person without revoking the authorization.

If that is what they want to do, why not say it?

[Translation]

Senator Hervieux-Payette: Rather it is our counsel that I would like to understand. Section21(1) lists grounds (a), (b), (c) and (d) for revoking someone's authorization. I am thinking, for example, of an employee who does not have the proper safety footwear to enter the work premises. The employee receives a warning, and then another warning — not necessarily pursuant to regulations — and is told two or three times that he is wearing the wrong footwear and that he should be wearing rubber-soled shoes to prevent sparks and so forth. It comes down to a safety issue.

What I would like to know first of all is how you draft this provision to ensure compliance with the legislation. It is not merely a question of listing grounds, but rather of listing grounds that are reasonably likely to compromise the facility's security: for example, smoking. What would these grounds be and how would you deal with the issue? How would you address the situation?

It is more a matter of understanding your reasoning than of trying to know what to say to the organization in question. After all, they are not about to go to the Nuclear Energy Commission and ask it to resolve this matter.

In essence, what are you suggesting by way of an amendment?

[English]

Mr.Bernhardt: The suggestion from Senator Ogilvie was that some mechanism was required on a practical level to respond quickly to a situation on the ground when it arose where they might not have time to go through the necessary steps for a formal revocation. This assumes certain forms and approvals must be completed. That was reflected in the explanation we received.

What is required is a provision that says in these kinds of situations, a person can be removed by the licensee notwithstanding the authorization. It will not be an exact list of situations, but will include description of certain things such as an unforeseen emergency. This provision will give them the power, for lack of a better word, to "suspend'' the authorization. It will not lead to a full-blown revocation and all that might entail. However, it will allow them to act quickly.

Such a regulation would reflect what they want to achieve, as opposed to having to read all this meaning into the use of the word "may'' when referring to revoking an authorization. That sort of approach would provide clarity and a workable regime to reflect what they actually propose to do on the ground. Currently, as I say, this intent is unclear with language that talks about them not having to revoke authorization if they do not want to.

[Translation]

Senator Hervieux-Payette: You are telling me that you would like to list the grounds reasons for temporarily or immediately suspending this authorization, whereas in my opinion, there should be a list of grounds that are likely to compromise the facility's security and that these should be adapted to the specific facility. I do not see how such a list could be drawn up, since it is the workers at a given facility who know what actions are likely to compromise their safety. To suspend someone's authorization immediately or to revoke it permanently would be the second step in this two-stage process.

[English]

Mr.Bernhardt: We can perhaps ask of the commission whether it is possible to distinguish those kinds of circumstances.

[Translation]

Senator Hervieux-Payette: Perhaps we should have a word with them about how they operate.

[English]

Mr.Bernhardt: Rather than insisting changes need to be made and telling them this is what they should do, we could go back and ask if it is possible to go in that direction. They may come back and say yes, or they may say they have circumstances that go to revocation, and they can phrase something differently.

You are correct. They do not simply repeat the grounds for revocation in a suspension provision. It will only muddy the waters more.

Mr.Galipeau: Notwithstanding the discussion that has occurred, I want to seek advice of counsel on an issue that is recurring when dealing with translation of legal texts.

We are not talking about interpretation, which provides us with an instant interpretation in the other official language of what is being said. We are talking about translation whereby two texts, one in each official language, are put down, with reflection, side by side on paper and intended to have the same meaning. We are not talking about news releases that are a dime a dozen. We are talking about legal documents that, at some time, can be used in legal disputes. Jurists will look at both the English and the French and, if they are not the same, will use the one that best suits their purposes.

I am concerned that we receive a ho-hum response to this item when we ask that both versions have the same meaning. We might expect a ho-hum response to such a request for a news release or if we were talking about instant interpretation. This translation is prepared by professionals who are paid professional rates. Am I off base?

Mr.Bernhardt: No; English-French discrepancies and inconsistencies encountered by the committee are part of its routine work. We see many of these inconsistencies. There is much delegated legislation produced and, generally, the standards are high. Nevertheless, there is a huge volume produced and so we see inconsistencies. It is central to the mandate of the committee to deal with those inconsistencies and discrepancies.

Perhaps some departments do not take it as seriously as they ought to. It is speculation but I think there is a natural reflex. The people administering these regulations in the department know what they are supposed to say. Often, even in terms of more substantial concerns, when we write, we receive an explanation and realize that the explanation is what they wanted the provision to say, do and mean. We have trouble breaking through the door and saying, yes, I realize that, but please read it because that is not what the provision says. Their problem is not what they are doing but that the regulation says something different.

This is part of the same package. They are administering the provision and enforcing it in a certain way. In their mind, that is what the provision means and that is what it says. At times it is difficult to have them think outside the box, read the passage and realize that what they are enforcing and what they want the regulation to mean are not what the regulation says.

Mr.Galipeau: The problem does not occur when we all agree but rather, when we have to anticipate a moment of litigation.

Mr.Bernhardt: The lawyer who drafts the regulation will often send a reply that says, If you read both versions together and understand the principles and statutes —

Mr.Galipeau: That is not what happens.

Mr.Bernhardt: — and we are comfortable that a court will come to this particular meaning. However, that is hardly an answer.

Mr.Galipeau: Courts do not do that. Generally, when the courts have two versions that do not mean the same thing, they take the one that is the most generous. If we intend to be generous, let us do it in both languages. If we do not intend to be generous, then let us not be generous in both languages.

The Joint Chair (Mr.Kania): I do not know if anyone else did not have this item included in their package of material, but I suggest that given the nature of the relatively technical discussion we have had, counsel prepare a draft letter for discussion at the next meeting. We can then read the draft letter and discuss proposals to amend the letter further as required.

Mr.Galipeau: I endorse the chair.

Mr.Masse: This comment goes back to my earlier point. We have to look at this committee and how it operates. If we have a space in the morning, we can notify people to appear before the committee at 8:30 a.m. I think that approach will rectify some of our trouble. We can move to that type of a tactic.

We spend a lot of time and energy on these files and send people backtracking on items that should not be a second consideration. Over the break, we need to think about the structure and how this committee works, to be more effective. If people come here at 8:30 in the morning so we can ask these questions in person and if they know that this appearance will be the consequence if they submit documents like some of the ones we received to us, some of these things will cease to persist.

The Joint Chair (Mr.Kania): Does everyone agree that this item will be brought back at the next meeting with a draft letter attached to it?

Senator Hervieux-Payette: Yes.

Hon. Members: Agreed.

Mr.Lee: Chair, I do not agree. I am happy to agree with colleagues but I thought we could deal with this item today. We have not discussed point 12, which jumps off the page as being significant. That does not mean I am not accepting the view of the agency. It has to do with obtaining security clearances and the inclusion of the phrase "trustworthiness of the person.'' We cannot resolve this issue and the department cannot resolve it. In my experience, it has never been resolved across the entire spectrum of government.

A security clearance in the government means they are checking someone out. While the agencies might have a checklist of things they look at, we have never had a phrase used across government to describe what they are looking for in that security clearance. At the end of the day, the department head decides whether someone will receive a security clearance. It is based on the advice, usually, of other agencies, including CSIS.

To solve this problem, 25 years ago the government created the Security Intelligence Review Committee, SIRC, to whom an individual can appeal if they are denied a security clearance. That is where a citizen goes if they feel they have been unjustifiably denied a security clearance. I do not see how we or the agency can drill down into this concept of who receives a security clearance. The appeal through SIRC will undertake that responsibility on a practical basis for the citizen. I would not pursue the issue of what is meant by "trustworthiness of the person'' because they will not be able to give you an answer. You could have a six-day conference on this and still not come up with a codification. Counsel is looking at a codification in the regulations so that a citizen knows what security clearance officials are looking for. You will never obtain a list of items that will hit all the nails on the head. It is naive of the committee to ask government to nail down what they are looking for when determining a security clearance. It is beyond anyone's ability to go any further than a first draft, in my view.

Senator Hervieux-Payette: I thought we were writing a letter for the other paragraph, which we discussed. I agree with you — I would not touch that phrase.

Mr.Lee: Okay, that is my point.

Senator Hervieux-Payette: If everyone agrees, I was addressing point 10.

Mr.Lee: I am okay with that.

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

Hon. Members: Agreed.

SOR/2007-135 — PHYTOPHTHORA RAMORUM COMPENSATION REGULATIONS

(For text of document, see Appendix J, p. 13J:1)

Mr.Abel: Three concerns were raised concerning these regulations, and amendments were promised in relation to the first point. On the second point, an explanation was sought as to how a condition subsequent to an award of compensation can be enforced.

The agency suggested that failure to heed the condition will render the award a debt due to Her Majesty, which can be obtained by way of setoff or by a court order. Regardless of how the award may be recouped, there appears to be no statutory authority to impose a condition subsequent in the first place, which is a substantive requirement that normally requires clear statutory authorization.

It is unclear, in any case, whether the condition to keep records serves any purpose since the minister will already possess such records as part of the application process. In addition, the condition to make the records available for inspection seems redundant, given the inspection power already provided by the act. In short, it appears that section5 is ultra vires and, in any case, serves no purpose.

Point 3 deals with gaps between the ranges of pot sizes set out in the schedule for compensation purposes. It seems that the ranges should be made fully inclusive in the event that a non-standard pot between the specified ranges is encountered.

If the committee agrees, a further letter pursuing these points can be drafted.

The Joint Chair (Mr.Kania): Is it agreed?

Some Hon. Members: Agreed.

Mr.Lee: No.

The Joint Chair (Mr.Kania): Mr.Lee?

Mr.Lee: I am sorry but on this particular one, I have reason to disagree with counsel on every single point.

Mr.Galipeau: That is why you are in opposition.

Mr.Lee: I respect the work of Mr.Abel. He is painstaking and meticulous, but I do not think members want to go through this item point by point here today. I can do it, but we can bring it back. I can speak to counsel directly or I can put it on the record now.

I do not know what colleagues want to do, but it is one of these files where each point is problematic; I will list them. In relation to the first point, I do not understand why a condition subsequent, as we have referenced it, would not be acceptable. A condition is a condition, and the regulations refer to conditions.

On the second point, a set-off, as we discussed at a previous meeting, is a common law right. Counsel is of the view that there has to be a statutory justification for the Crown to claim a set-off, and I do not believe that is the case. A common law right of set-off is a common law right of set-off, and I think it exists out there. If the Crown chooses to use it, the Crown is entitled to use it.

On the third point, I do not agree that the section5(a) and section4(1) references are identical. In one case, records are submitted as part of the application because the application says that they have to submit those records. In the other envelope, books and records underlie the application. It is clear to me, as I read this provision, the retention of books and records that lie behind the application, not the ones that were sent with the application, which are different.

Therefore, I do not agree that section5(b) is redundant either for that same reason. I think the sections are referring to two different classes of documents: The ones sent with the application and the ones that back up what they have put in the application.

That is like saying, send me the receipts for what you spent, but keep all your other books and records on hand in case we have to match the receipts with your cash flow and your other business workings.

They do not send the whole accounting department in when they make an application, but they send in the receipts. That is how I view those provisions.

As well, on point 3, the schedule, if we look at the regulation itself — although I am not sure whether they planned it this way or not — I agree that on the face of it that the one-gallon container is a one-gallon container and the two- gallon container is a two-gallon container. A one-and-a-half-gallon container does not appear to be on the list.

However, if we go to item 7 in the Schedule, it says a "Container greater than or equal to a 20 gallons in size or a tree less than or equal to 10 cm calliper size that is not in a container referred to in'' the above. Therefore, the containers that are not referred to above are referred to in item 7.

The one thing I am a little confused about is that I am not too sure about the difference between a plant and a tree; and I do not even know what this plant is — I cannot even pronounce it.

Counsel has picked up on some things, but I have made my points. Maybe it is best if counsel goes back and rereads it with reference to my comments. I am prepared to stand down on every one of the points if counsel comes back and says, Mr.Lee, you are wrong, I am right. I have made the points and I want the matter to come back.

Mr.Bernhardt: Starting with the Schedule, if I have a tree that is less than 10 centimetres in a six-gallon pot, what is the charge? It is not there.

Mr.Lee: Sorry, I have to go to the Schedule.

Mr.Bernhardt: Let us start with that point.

It is greater than a "10 cm calliper'' tree and it is in a ix-gallon pot.

Mr.Lee: It is less or equal to 10 centimetres?

Mr.Bernhardt: No, it is greater than 10 centimetres and in a six-gallon pot.

Mr.Lee: It is greater than 10 —

Mr.Bernhardt: It is not there. There is no provision in this schedule for that situation. We are told it is unlikely, and it will rarely happen. That does not mean it will never happen; and why not deal with it?

Mr.Lee: You found a tree that might not be on the list. I was looking for containers.

Mr.Bernhardt: I did; it is a six-gallon pot.

Mr.Lee: The six-gallon containers are clearly, but only for trees that are under 10 centimetres.

Mr.Galipeau: I do not want to be facetious, but we are dealing in metric here. I do not mind gallons, but since we have an integrated economy with free trade and all, what gallons — a real gallon or half a gallon? I mean, my father would call it a half a gallon; it is a U.S. gallon. It only goes to show; but what is a gallon?

Mr.Bernhardt: That is governed by the Weights and Measures Act.

Mr.Galipeau: And what gallon is it?

Mr.Bernhardt: It is the imperial gallon.

Mr.Ouellet: 160-ounce.

Mr.Abel: On the third point, the reply already indicates that certain pot sizes are not covered, and would not be covered, by the Schedule. The agency has already stated that. The issue is whether we need to deal with the fact that someone could come up with a pot size for which there is no fitting on the scale.

I do not think we need to figure out ourselves whether there are pots that are not covered. The agency has already said there are pots that are not covered.

Mr.Lee: Okay.

Mr.Abel: I do not know if we want to address this item completely, but in respect to your other comments, for section5(a), we could ask whether they consider the information identical to the application information. We made the assumption, but we can ask them whether they mean the same thing, instead of jumping to the conclusion.

The Joint Chair (Mr.Kania): Mr.Lee, I do not want to rush this. Will you agree to the same suggestion as the last matter, which is, counsel will bring a draft letter back and then you can see if you are satisfied, and we can discuss it next time?

Mr.Lee: Sure, no problem.

The Joint Chair (Mr.Kania): Bring a draft letter back.

Senator Hervieux-Payette: I think there should be a discussion between Mr.Abel and Mr.Lee before the letter is transferred to us so that at least we do not start arguing on that draft.

The Joint Chair (Mr.Kania): I agree. That will also take place.

Mr.Lee: We will have a talk before the session.

The Joint Chair (Mr.Kania): Then we will all discuss it again.

Senator Hervieux-Payette: Okay.

SOR/2002-145 — MANNER OF DISPOSAL OF DETAINED, SEIZED OR FORFEITED GOODS REGULATIONS (PRECLEARANCE ACT)

(For text of document, see Appendix K, p. 13K:1)

Mr.Abel: At its last consideration of these regulations, the committee noted there appears to be no reason for the Preclearance Act to authorize the making of regulations providing for the manner of disposing of seized or forfeited goods, since the act already fully provides a procedure for doing so. The department agrees that this seems to be the case and indicates the department will look at the act again possibly to amend it to address this issue.

At this point, the only other thing to follow up on is previously promised amendments, to see where they are in that regard.

The Joint Chair (Mr.Kania): We will send a letter of follow-up. All agreed?

Hon. Members: Agreed.

SI/2008-20 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (NÀNH' GEENJIT GWITR'IT TIGWAA'IN/ WORKING FOR THE LAND: GWICH'IN LAND USE PLAN), N.W.T.

(For text of documents, see Appendix L, p. 13L:1)

Mr.Bernhardt: Chair, the situation with respect to this file and the next one is basically identical. Minor errors were noted. The department has acknowledged them but proposes not to make the amendments, given that the errors do not affect the application of the order and there is a limited period during which the orders will be in force. The one order expires January31, 2011. The other one expires September20, 2011.

Additionally, apparently a new template has been adopted for these types of orders. This template means the errors in question do not occur anymore. Given this new template and the minor nature, I suppose the committee can accept this response and perhaps advise the department that, if these orders are extended past the deadline dates now, the corrections should be made.

Hon. Members: Agreed.

The Joint Chair (Mr.Kania): The recommendation is identical for the next matter, SI/2008-104.

SI/2008-104 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN NUNAVUT (EEYOU MARINE REGION) ORDER

(For text of documents, see Appendix M, p. 13M:1).

The Joint Chair (Mr.Kania): Are members agreed, based on counsel's earlier recommendation?

Hon. Members: Agreed.

SOR/92-636 — LIST OF HAZARDOUS WASTE AUTHORITIES

(For text of documents, see Appendix N, p. 13N:1)

Mr.Abel: The issue on this file was a name change from Czechoslovakia to Czech Republic that had for over 10 years been promised by the department. We followed up to see why they had not done that.

It seems the List of Hazardous Waste Authorities is no longer required by the new Canadian Environmental Protection Act, and the department is looking at repealing it. The end of this year was their last expected date for that. Counsel can follow up in the new year if necessary, if the list has not been repealed.

Hon. Members: Agreed.

Senator Hervieux-Payette: Therefore, we win by default.

Mr.Abel: In a way, yes.

SOR/94-34 — AVIATION OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

(For text of documents, see Appendix O, p. 13O:1)

Mr.Bernhardt: As the department promised, chair, prepublication in Part 1 of the Canada Gazette occurred on September19. There is a 75-day notice and comment period, so hopefully these amendments will be made sometime early next year. We will monitor that item.

Hon. Members: Agreed.

SOR/95-105 — ON BOARD TRAINS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

(For text of documents, see Appendix P, p. 13P:1)

Mr.Bernhardt: With this item, matters are not so advanced. The last advice was that the promised amendments would be pre-published in the spring of 2010. It might be worthwhile at this time asking the department if that pre- publication date is still its expectation.

The Joint Chair (Mr.Kania): Do members agree?

Hon. Members: Agreed.

SOR/2003-317 — REGULATIONS AMENDING THE CANADA BUSINESS CORPORATIONS REGULATIONS, 2001

(For text of documents, see Appendix Q, p. 13Q:1)

Mr.Abel: The last advice on this file was that one promised amendment would be made by the end of this year. Counsel can monitor and, if it is not done early in the new year, follow up.

Senator Harb: In a couple of their communications, they promised the amendment in the first part of 2009. Did you receive any communication from them in 2009, or has there been nothing yet?

Mr.Abel: No; when the latter date came back, as often happens, we go with that date. If they do not meet that date, we will see where the item stands.

Senator Harb: One would presume they have already made that amendment, it being over three years now.

Mr.Abel: Looking at this file, we wrote in August2008. Their last communication was February2009. Normally, we would have followed up four months after that, but given that it was in the near term — the end of the year — I think the plan probably would have been to follow up around now.

However, we might as well follow up in January, if they have not met that timeline.

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

Hon. Members: Agreed.

SOR/2004-263 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE FISHERIES ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix R, p. 13R:1)

Mr.Bernhardt: The Fisheries Act provides that where a close time, quota or catch limit is fixed in the regulations, the Governor-in-Council could then make regulations authorizing fisheries officers to vary the close times, quotas or limits. Therefore, many of the times prescribed in various fisheries regulations extend from January1 to December31, or for a token period, such as from 11 p.m. to midnight on New Year's Eve. Fisheries officers have been authorized to vary them in any way they see fit. It has been the view of the committee for well over 20years that this approach is illegal and makes a sham of the law.

Back in 2001, the department stated that the provisions embodying the approaches that had long been objected to would be amended over time to conform to the committee's position. The April19 letter gives a report on the progress of this initiative. This process is ongoing and, perhaps, a request for a new updated progress report should be made.

Hon. Members: Agreed.

SOR/2000-108 — EXPORT CONTROL LIST NOTIFICATION REGULATIONS

SOR/2002-317 — EXPORT OF SUBSTANCES UNDER THE ROTTERDAM CONVENTION REGULATIONS

(For text of documents, see Appendix S, p. 13S:1)

Mr.Abel: In this case, the department has been planning to produce new export control list regulations that will merge these two instruments and resolve the concerns raised by the committee.

These regulations have been delayed several times for over four years now. The latest expected date for making the new regulations is sometime this year. They have not been made. At this point, the department can be asked whether it expects that the regulations will still be made soon.

Hon. Members: Agreed.

Mr.Bernhardt: If members wish, we can deal with the next three headings as groups, as usual.

SOR/96-423 — PATENT RULES

SOR/2003-208 — RULES AMENDING THE PATENT RULES

(For text of documents, see Appendix T, p. 13T:1)

SOR/2005-175 — REGULATIONS AMENDING THE REPORTING OF IMPORTED GOODS REGULATIONS

(For text of documents, see Appendix U, p. 13U:1)

SOR/2007-235 — REGULATIONS AMENDING THE PEST CONTROL PRODUCTS SALES INFORMATION REPORTING REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix V, p. 13V:1)

Mr.Bernhardt: Five amendments are promised in connection with the instruments listed under Action Promised. These items will be followed up on. As well, three amendments were made by SOR/2007-235 that had been promised previously to the committee.

SOR/2009-147 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

(For text of documents, see Appendix W, p. 13W:1)

SOR/2009-149 — REGULATIONS AMENDING THE NUNAVUT ARCHAEOLOGICAL AND PALAEONTOLOGICAL SITES REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix X, p. 13X:1)

SOR/2009-150 — REGULATIONS AMENDING THE FIRST NATIONS OIL AND GAS AND MONEYS MANAGEMENT VOTING REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix Y, p. 13Y:1)

SOR/2009-187 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

(For text of documents, see Appendix Z, p. 13Z:1)

SOR/2009-267 — REGULATIONS AMENDING THE DESIGNATED PROVISIONS (CUSTOMS) REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix AA, p. 13AA:1)

Mr.Bernhardt: There are five instruments under Action Taken. In total, they make 21 promised amendments.

SOR/2009-21 — ORDER AMENDING THE FISHING ZONES OF CANADA (ZONES 4 AND 5) ORDER

SOR/2009-22 — ORDER AMENDING THE FISHING ZONES OF CANADA (ZONE 6) ORDER

SOR/2009-26 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2009-30 — REGULATIONS REPEALING THE IMPORTATION OF PERIODICALS REGULATIONS

SOR/2009-31 — ORDER REPEALING THE TEMPORARY IMPORTATION REMISSION ORDER, NO. 1 (CUSTOMS TARIFF)

SOR/2009-34 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (DOOR LOCKS AND DOOR RETENTION COMPONENTS)

SOR/2009-35 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2009-36 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT

SOR/2009-37 — ORDER AMENDING PART II OF SCHEDULE VI TO THE FINANCIAL ADMINISTRATION ACT

SOR/2009-65 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2009-67 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(B)) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2009-1

SOR/2009-68 — CRITICAL HABITATS OF THE NORTHEAST PACIFIC NORTHERN AND SOUTHERN RESIDENT POPULATIONS OF THE KILLER WHALE (ORCINUS ORCA) ORDER

SOR/2009-69 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2009-70 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990

SOR/2009-72 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2009-73 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2009-74 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2009-75 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS

SOR/2009-77 — REGULATIONS AMENDING THE MOOSE JAW AIRPORT ZONING REGULATIONS (MISCELLANEOUS PROGRAM)

SOR/2009-78 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE AUTHORITY REGULATIONS

SOR/2009-80 — ORDER AMENDING SCHEDULE IV TO THE WEIGHTS AND MEASURES ACT

SOR/2009-81 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

SOR/2009-82 — ORDER 2009-87-01-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-83 — REGULATIONS AMENDING THE NORTHWEST TERRITORIES FISHERY REGULATIONS

SOR/2009-85 — T.C.I. MANUFACTURING INC. REMISSION ORDER

SOR/2009-87 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE (FISHING) REGULATIONS

SOR/2009-91 — REGULATIONS AMENDING THE FERTILIZERS REGULATIONS

SOR/2009-99 — REGULATIONS AMENDING THE NATIONAL PARKS WILDERNESS AREA DECLARATION REGULATIONS

SOR/2009-100 — REGULATIONS AMENDING THE PENSION BENEFITS STANDARDS REGULATIONS, 1985

SOR/2009-104 — ORDER AMENDING THE MERCHANT SEAMEN COMPENSATION ORDER, 1992

SOR/2009-105 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (TEMPORARY RESIDENT VISA EXEMPTION FOR NATIONALS OF CROATIA)

SOR/2009-106 — ORDER 2009-87-01-02 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-107 — ORDER AMENDING THE SCHEDULE TO THE EXPORT AND IMPORT OF ROUGH DIAMONDS ACT

SOR/2009-113 — REGULATIONS AMENDING THE FEES FOR DOCUMENTS REGULATIONS

SOR/2009-114 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2009-116 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1540 — SCHEDULEF)

SOR/2009-117 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1578 — SCHEDULEF)

SOR/2009-118 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1583 — SCHEDULEF)

SOR/2009-119 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1584 — SCHEDULEF)

SOR/2009-120 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1590 — SCHEDULEF)

Mr.Bernhardt: Finally, under Statutory Instruments Without Comment, 40 instruments have been found to comply with the committee's criteria.

The Joint Chair (Mr.Kania): Is that it?

Mr.Bernhardt: Yes.

The Joint Chair (Mr.Kania): Does anyone have any comments about anything before we adjourn?

Mr.Hoback: Yes, Mr.Chair. I want to say to my colleagues, friends, the clerk and others that I wish them a happy holiday season. I do not think we will meet before then, so I hope you all have a good season and come back rested and refreshed for Scrutiny of Regulations Committee in Januaryor February of next year.

One thing I want to say to my colleagues around the table here is that I appreciate the high emotional intelligence that you have. The fact that we can sit down as colleagues with no partisan politics at all, compared to some of the other committees, is a breath of fresh air and I appreciate it and each and every one of you.

Have a good holiday season and we will see you next year.

The Joint Chair (Mr.Kania): Before we say that, I will address next Thursday.

Mr.Shory: Too late.

The Joint Chair (Mr.Kania): It might be a little premature. We have a tentative meeting scheduled, if necessary. I have spoken with counsel in terms of what that meeting might entail. He said it would be relatively light and he has no difficulty waiting until February for the next meeting.

Unless anyone has any objections, we will agree to meet in February and Mr.Hoback can give his speech again.

Senator Hervieux-Payette: Can I say the same thing in French?

[Translation]

Senator Hervieux-Payette: May I also take this opportunity to echo these words in my own language, to respect the tradition of bilingualism and the spirit of the holidays. I would like to award three stars to my colleague Derek Lee who always does an outstanding job and who is a pillar of this committee. As a rule, we do not award high marks but in his case, I think we can make an exception. Thank you, enjoy your time off and happy holidays to all!

[English]

The Joint Chair (Mr.Kania): Are there any other comments? Happy holidays to all. Thank you very much.

(The committee adjourned.)

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