---

Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 8 - Evidence, June 11, 2009

---

OTTAWA, Thursday, June 11, 2009

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Andrew Kania (Joint Chairs) in the chair.

[English]

The Joint Chair (Senator Eyton): We have a few items to start with with the agenda. First, our counsel, the joint chair, Mr. Kania, and I met with the Library of Parliament staff yesterday. You will remember that there was a running discussion about premises, hiring, titles and a variety of other things.

The meeting yesterday was cordial and they were accommodating. Peter Bernhardt had given us a good memorandum, which outlined five points. At the end of the meeting, we came out with complete satisfaction on all five points.

The first was related to relocation, and the requirements that Mr. Bernhardt and his staff have for separate and secure premises. Second was the timing of the move: They agreed it would be only when Parliament was not in session, so there would be no interruption in the work of the staff. The third was the vacant counsel position, which has been posted. They expect to be able to report positively. I think they said they have 44 candidates, which is remarkable. They expect they will be able to make a choice in the next few weeks. The competition is close.

The fourth was the job description of Mr. Bernhardt as the committee general counsel. They, for their purposes, and in looking at their structure, want to call him the Senior Legal Adviser; therefore, I think he is blessed with two titles but only one salary. We told the library staff we preferred the title that is traditional — General Counsel to the Committee. Can we have a resolution in which we confirm that Mr. Bernhardt's title is General Counsel to the Committee, and that he be given that role?

Are all in favour?

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): The last point was an idea that came from Mr. Bernhardt that we should re-state the arrangements between the committee and the library. The basis of working now is a 1982 memorandum developed in response to a particular need. We have lumbered along with that document, but I think it is fair to say that it is something we should bring up to date and ensure it works properly.

The library was agreeable to that idea. There is no special urgency, but the thought was that, by this fall, we should have a new memorandum of understanding, which sets out the arrangements among the Commons, our committee, the counsel and the Senate.

As you can see, there was satisfaction all around at the end of the meeting and we seem to be moving forward well.

The Joint Chair (Mr. Kania): In terms of this job description, we will need to approve it. Does anyone have any questions with respect to the job description? Mr. Bernhardt and I are fine with it, as is Senator Eyton.

Can we have a motion approving this job description?

Mr. Lee: I so move.

Mr. Galipeau: Seconded.

The Joint Chair (Mr. Kania): Any opposed? Are all agreed?

It is approved.

The Joint Chair (Mr. Kania): A letter has been passed around. Mr. Bernhardt will go through it. It is in terms of the Auditor General.

Peter Bernhardt, General Counsel to the Committee: Members will recall from the last meeting that the issue here is a fee increase collected during January 2007. Due to the failure to obtain the Governor-in-Council's approval of the increase, the committee has concluded it was collected without proper authority.

Transport Canada agreed with the committee and, initially, the committee was told there would be a reimbursement. In the end, the Laurentian Pilotage Authority advised that it decided not to reimburse.

At the last meeting, the committee learned this decision was due to the Auditor General issuing an opinion that the publication in the Canada Gazette in December 2006 validly fixed the increase.

What members now have before them is a copy of that letter from the Auditor General. Unfortunately, it simply states a conclusion without any rationale. Therefore, we still do not know the basis for the conclusion.

We have been in contact with the Office of the Auditor General. The author of the letter has referred us to the lawyer who advised on the matter. We have not yet been able to talk to her, so we will continue to pursue the matter, and will report back to the committee.

The Joint Chair (Mr. Kania): If there are no comments or questions, we will proceed to the agenda for today.

Mr. Szabo: On this matter, given the nature of the response that was given — and I am sure due consideration was given, and the Auditor General is aware of the response — it appears that we are a long way from their understanding what our role, responsibilities and authority are.

I suggest that we ensure we do not just write another letter back. I think an appropriate meeting should be held. This has the signs of something that could drag on simply because the rebuttal or the interaction could not take place.

Mr. Bernhardt: We have talked to the Auditor General's office. The basic response we received from the person who signed the letter was, yes, he remembers the issue. He is not a lawyer; he is an auditor.

If we want to talk about the legal ramifications and the legal arguments on which their conclusion was based, we should deal with their lawyer. We sought to make contact with her; our paths have not met up yet. However, the idea is to arrange some sort of a meeting to find out exactly the basis on which this conclusion was made.

Mr. Szabo: Do we need a letter from the chairs?

Mr. Lee: In my view, the end game here is likely that the fees will go back to those who paid them, or that the payers will decline to take the reimbursement. That is okay with us.

There have been offers by the pilotage authority to come here. I am trying to avoid the $5,000 or $10,000 down- stroke just to walk through the issue a couple of times.

I think counsel is able to move this item forward. I think we can disconnect the Auditor General from the legal issue here and, once that is successfully done, the artificial leg that the pilotage authority is using to stand on will not be there. We will pursue our objective then of obtaining either the reimbursement or offer to reimburse.

I think there is still a bit of back and forth here, and I think the public record discussion with Mr. Szabo and others will reflect that to the pilotage authority.

It looks like the item extends to the fall, in my view.

The Joint Chair (Mr. Kania): Are there any other comments on this point?

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

Mr. Bernhardt: When these regulations were considered by the committee on March 26, the decision was made to have counsel prepare a draft report. Before going any further, I point out that this report will be the third report — report number 84 — not the fourth report, as the copy indicates that members have in the materials. The necessary correction has been made to the originals of the draft report.

The issue here is, of course, the Part II licence fees. These fees are calculated as a percentage of licensees' gross revenue from their broadcasting activities. About $680 million in fees have been collected over the period that is being contested. At the end of the day, after the costs of managing the broadcasting spectrum are deducted, about $603 million went into the Consolidated Revenue Fund.

Back in 2003, the committee first reported that these fees might be open to legal challenge because they seemed to possess many of the characteristics of a tax. Of course, that is exactly what happened.

At trial, the Federal Court declared the Part II fees invalid. That decision was reversed on appeal and the Supreme Court of Canada granted leave to appeal. A tentative hearing date is set for October, although with various preliminary motions and interventions, et cetera, that date could well be moved back.

The applicable legal principles concerning the distinction between a fee and a tax, the relevant jurisprudence and an analysis of the particular trial and Court of Appeal decisions are all set out in the draft report. The report concludes by highlighting potential flaws in the Court of Appeal's reasoning.

Hopefully, the Supreme Court will add some clarity to this area. However, I think back on March 26, the feeling of members was that it would be desirable for the committee to put its views and concerns on the record again in the interim.

Mr. Saxton: This matter is before the Supreme Court of Canada. As our counsel said, in October it is expected to come to trial.

What is the purpose of the committee tabling this document now? Why do we not wait until the Supreme Court of Canada has decided on this matter? What are we trying to accomplish?

Mr. Bernhardt: As I said, I think the feeling in March seemed to be that, rather than simply ``wait and react'' to what the Supreme Court said, it might be helpful, potentially, to the court, as well as to make a statement of Parliament's independence, that the committee put its views forth again.

The committee has reported on this issue before. It could be helpful to put its views on the record again, and to identify areas of concern it sees in this instance.

Mr. Saxton: You think the court will take into consideration the committee's opinion on this matter? Are we a witness to this case?

Mr. Bernhardt: It is not for me to say, Mr. Saxton, what the Supreme Court of Canada, in its wisdom, will consider.

Mr. Saxton: You mentioned it, that is your intention.

Mr. Bernhardt: It is the committee's intention. I was asked to draft a report by the committee, and the committee has the draft report.

The Joint Chair (Mr. Kania): The Supreme Court can do what it wishes but one of its options is to read and consider this report. The conclusions are not particularly strong in terms of asking the Supreme Court to do something other than to clarify and to reiterate the statement of principle in terms of the taxing authority of Parliament. I do not think it would be offensive to the Supreme Court to read this report. I think it could be helpful, in my view.

Mr. Saxton: We have already expressed our opinion; is that correct?

The Joint Chair (Mr. Kania): In terms of wanting such a report?

Mr. Saxton: Have we tabled this opinion previously?

Mr. Bernhardt: There have been a couple of previous reports. The last report was after the trial decision, at which time the fees were struck down. There has not been a report since that decision was reversed by the Court of Appeal.

Mr. Saxton: However, the committee's position has not changed, is that correct?

Mr. Bernhardt: No; the previous report was there to say, see, we told you we were right. The court struck them down. In the interim, that decision has been reversed and now the case is going to the Supreme Court.

Mr. Saxton: Do you feel that previous report from the committee will not suffice in this case?

Mr. Bernhardt: I think the committee's view, in asking for the report to be drafted — given that the Court of Appeal's decision was different from the trial decision, and given that there seemed to be some areas that might give cause for concern in terms of the way the committee viewed the issue — was that a further statement on the record would be of some value.

The Joint Chair (Senator Eyton): That is fair enough. That was the context. I think the Court of Appeal's decision is simply wrong. If, in fact, that decision applied, there is almost no limit on what someone can do with what amounts to a tax that does not have parliamentary authority.

I think there is no downside and there is an upside. The committee has had a view — and it probably still has that view — that the trial judge was right and the Court of Appeal was wrong. The report is cogent, intelligent and easy to understand, so I do not see why we would not make this report and put it on the record again, to remind the Supreme Court that this is our view.

Mr. Lee: I have three or four small points. I wanted to point out to Mr. Saxton that the previous report was in a prior Parliament. We would love to have Mr. Saxton join in, along with some of the other members, in putting a thumbprint on this parliamentary position.

Second, to Mr. Young, there has been discussion about the utility of the committee traveling and meeting with other scrutiny committees around the world, and also whether this travel affects the courts. Counsel has, in the report, referred to work of this committee at a conference 20 years ago in London, England. That work was taken into account, and it is on the record in the court judgment in the first instance. You will find that on page 7 of the English version.

My recollection, from other court proceedings, is that occasionally the work of the committee is useful to the court. I think this Parliament should renew our view on this matter.

With that in mind, I go to the final page, and the final paragraph of the report. In the English version, it says ``We also wish to stress the fundamental importance of recognizing Parliament's traditional control over the imposition of charges . . .''

With a view to making that statement slightly stronger, I urge that we amend it by adding words that refer to our constitutional role in that regard. It would read: ``Parliament's traditional and constitutional role controlling the imposition of charges on citizens. . . .''

This function of Parliament is not a hobby; it is a constitutional role. It is not a convention of Parliament or something we do; it is our constitutional role. I think the record shows the words, so I move that we amend the statement by adding those words.

Can I leave that unaddressed, or at least not confirmed, and go back one page — the elaboration of questions and arguments, the third bullet on page 16 of the English version? That paragraph talks about the concept of voluntary payments.

Can counsel give an example of voluntary payments? I found it hard to bend my brain around that paragraph in the context of the rest of the report.

Mr. Bernhardt: An example of a voluntary service?

Mr. Lee: A voluntary service, yes. Can you give an example of what we have in mind in referring to this particular question?

Mr. Bernhardt: I suppose if someone looks for information in a government database, if they are searching a corporate registry, that service is voluntary. The government is providing a service. If someone wants to take advantage of that service, the government presumably will charge them some sort of rate.

Mr. Lee: I do not know what you mean by ``voluntary.''

Mr. Bernhardt: They are not obliged by law. For example, with meat inspection, if they are a meat processing establishment, a meat inspector will come into their establishment and conduct inspections. They will then receive a bill for the services of the meat inspector.

That is a service; they have no choice. If they want to conduct their business, they are required to have inspectors come in; they are required to submit to the inspection; and they are required to pay those fees. Those are still described as a fee for a service. It is a compulsory service, if you will, but the courts have decided that it is a service nonetheless, as opposed to something that is purely voluntary and they can take advantage of it if they wish.

Mr. Lee: If members are okay with the current wording, I suppose I am okay. I thought it would have helped to build an example into the paragraph. You are referring to something that is a free service or an optional service or a service of government for which a fee is not charged. I leave the wording with you and I will not move any amendment.

Can we deal with the wording amendment that I proposed earlier, chair?

The Joint Chair (Senator Eyton): Did you want to say something, Mr. Szabo?

Mr. Szabo: I support the second point. I want to indicate to Mr. Lee that when I read the voluntary paragraph, the third bullet, it looks like everything we pay is voluntary. There are mandatory payments and there is fuzziness here that does not strike the target squarely. The example that counsel gave demonstrates the concept, but I am not sure the words do.

My reason for having put my hand up for the intervention was with regard to tabling the report. This particular matter is fundamentally and potentially a precedent, which can affect the operations and the activities of a broad range of those who can levy fees for services or charges for rights.

Within the parliamentary system, the way that we are charged to protect is to ensure that there is an enabling provision within the legislation and that the regulation is clear for all to understand. However, if a regulation says that it shall be something, but the courts say they have a right to charge something else, this decision is a fundamental challenge to the way in which our system has been structured.

Making our views known, reiterating them, sharing them with Parliament and having them on the record may well also engage others who are not in this meeting or will not hear of this issue any other way. The story here is extremely clear. It provides a great deal of information and it is for the benefit not only of this committee, but for all. That is one reason it is important to table the report.

I support tabling the report. If we do not table it, the Supreme Court may refer to the fact that we seem to have dropped off the list as interested parties. Even when the court makes its ruling, there is still recourse for Parliament, so we have to stay in the game.

I support that this report is important and I want to see it go in with the one change. However, I also support clarification in the wording, or maybe clearer wording on that ``voluntary'' question.

Mr. Bernhardt: Perhaps we can add an example at the end of that sentence. It could read something like: ``The use of such services may also be voluntary, for example where a grower seeks certification that their products are organic.'' Does that clarify the issue?

Mr. Lee: Yes.

The Joint Chair (Senator Eyton): Mr. Lee, you suggested adding the word ``constitutional.'' You said ``traditional and constitutional.'' Would it not read properly if it said ``traditional constitutional?''

Mr. Lee: That is fine.

The Joint Chair (Senator Eyton): It is built into the Constitution.

Mr. Lee: I agree. I am happy to accept that change as a friendly amendment. I see the traditional piece and the constitutional piece in different envelopes at times. The issue is both, so I am happy to marry the two adjectives.

Senator Hervieux-Payette: You can use both words.

The Joint Chair (Senator Eyton): Yes.

The Joint Chair (Mr. Kania): What about using the word ``conventional;'' ``constitutional and conventional?'' There is the constitutional mandate and the practice that has arisen or the case law that is interpreted.

Mr. Lee: I wanted to ensure the inclusion of the word ``constitutional,'' and the senator has managed to eliminate the conjunction ``and.'' I am happy with either, although we might end up with three adjectives if we are not careful: ``traditional, conventional and constitutional.''

The Joint Chair (Mr. Kania): For clarity, I meant instead of ``traditional.''

Mr. Lee: Tradition goes back a few hundred years, whereas the conventions might be more limited. I like the use of ``traditional.''

The Joint Chair (Mr. Kania): Should it read ``traditional and constitutional control?''

Mr. Lee: The senator is urging that we drop ``and.''

Mr. Szabo: In that way, tradition does not empower the right, whereas the Constitution does in that the authority comes from the Constitution, not from our customary activity. I would be careful not to soften the constitutional authority of Parliament.

The Joint Chair (Mr. Kania): What wording do you suggest?

Mr. Szabo: It should say, ``recognizing Parliament's constitutional authority.'' Period.

The Joint Chair (Mr. Kania): Any there other comments on the wording?

The Joint Chair (Senator Eyton): The suggestion is, ``constitutional authority.''

Mr. Lee: As long as ``constitutional'' is included, I am happy.

The Joint Chair (Mr. Kania): We will substitute ``traditional'' for ``constitutional.''

Mr. Lee: It should read, ``constitutional authority.''

The Joint Chair (Mr. Kania): As opposed to ``traditional control.''

The Joint Chair (Senator Eyton): The word should be ``authority'' not ``control.''

The Joint Chair (Mr. Kania): The example that counsel gave is great. Do I have a motion on the report, as amended?

Mr. Lee: I move the adoption of the report as amended by those two changes.

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

Hon. Members: Agreed.

SOR/96-254 — PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS

SOR/2000-299 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1218 — ALTERNATIVE TESTS)

SOR/2000-410 — REGULATIONS AMENDING THE PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS (1238 — SPECIAL ACCESS)

(For text of documents, see Appendix A, p. 8A:1.)

Mr. Bernhardt: The validity of these regulations turns on whether semen used for assisted conception can be considered a drug under the Food and Drugs Act. The FDA defines a drug to mean a substance for use in ``diagnosis, treatment, mitigation or prevention of a disease, disorder, or abnormal physical state, or its symptoms'' or any substance that restores, corrects or modifies organic functions. According to Health Canada, because pregnancy affects the functions of a woman's body, semen is a drug. The committee has rejected this argument. Since 2004, provisions granting authority to regulate this area of activity can be found in the Assisted Human Reproduction Act, AHRA. In view of this authority, the committee has taken the position that the regulations should be repealed and remade under the AHRA. In 2007, the department replied that work was underway on new regulations, that it would take two or three years to complete and that, in the interim, it would continue to enforce the existing regulations.

The issue became more complicated in June 2008 when the Quebec Court of Appeal found that the provisions of the Assisted Human Reproduction Act regulating semen were unconstitutional. The court distinguished between prohibited services, for example, human cloning, that fall under the criminal law power, and controlled activities that fall under provincial jurisdiction over health. The court concluded that ``assisted reproduction is not an `evil' but a desirable activity'' and can be circumscribed only by ``statutes or more general laws dealing with health or the practice of medicine,'' all of which fall under provincial jurisdiction.

The Quebec Court of Appeal decision was appealed to the Supreme Court of Canada. It heard the matter last April and reserved judgment. The department is advised that no new regulations will be made until the Supreme Court has released its decision on whether this act is constitutional.

A second issue has arisen that concerns the effect of the coming into force of the Assisted Human Reproduction Act on the current regulations. This issue is explained in the note prepared for members but, in short, even if the Food and Drugs Act did apply at one time to semen used for assisted conception, it no longer applies today because a new act takes precedence. The regulations made under the Food and Drugs Act would have been impliedly repealed, although there are no new regulations under the new act. Therefore, either the regulations were never valid or if they were valid, they have ceased to be in effect, all of which assumes that the new act is constitutional.

That being said, there will not be any movement on the file until the Supreme Court renders its decision. If it concludes that the provisions in question are constitutional, then the new regulations can proceed. If those provisions are struck down by the Supreme Court, then the issue reverts to square one with the committee contesting the validity of the current regulations and the federal government having to decide what to do next. At this time, I suggest that there is not much to do except to wait and bring the file back to committee once the Supreme Court renders its verdict.

[Translation]

Mr. Galipeau: I have already remarked to this committee, with some indignation, that this is a parliamentary committee. I am aware that it has absolute power. Yet, in spite of that, I think the comments of our general counsel are entirely in order. I think the more prudent approach would be to wait for the Supreme Court decision that is expected any day now.

[English]

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

Hon. Members: Agreed.

SOR/99-325 — EXCEPTIONS FOR EDUCATIONAL INSTITUTIONS, LIBRARIES, ARCHIVES AND MUSEUMS REGULATIONS

(For text of documents, see Appendix B, p. 8B:1.)

Mr. Bernhardt: As the minister's last letter indicates, one final amendment to these regulations is still outstanding. It concerns the methods used to verify that a copy provided to someone at one of these institutions will not violate copyright law. In July 2008, discussions on how best to address the issue were ongoing. Some time has passed so perhaps the department should be asked for a progress report.

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

Hon. Members: Agreed.

[Translation]

SOR/98-247 — REGULATIONS AMENDING THE MANITOBA FISHERY REGULATIONS, 1987

(For text of document, see Appendix C, p. 8C:1.)

Mr. Rousseau: Regarding this file, five points were raised by committee counsel. The third point should be addressed by an amendment to the Fisheries Act.

The problem identified in point 5 has been rectified, as noted by the committee when it examined SOR/2003-107. The note drafted for the committee addressed points 1, 2 and 4.

I would mention that point 4 is now point 3 in the English version of the note.

I will start with point 2 which concerns section 12.(1) of the Regulations, pursuant to which the provincial minister may specify in a licence ``any condition that is not inconsistent with these Regulations''.

In the opinion of counsel, this is a legally useless provision that logically would have an undesirable effect. If the minister can specify conditions that are not inconsistent with the Regulations, that also means that he could authorize the imposition of conditions that run counter to the Regulations. The department says it has no intention of removing this provision because this section ``clarified the provision by referring to conditions that might apply''.

In the opinion of committee counsel, this response is not satisfactory. First of all, the Regulations are not an information bulletin; secondly, it is surprising that something so obvious needs to be brought to the attention of the minister, whether federal or provincial.

Points 1 and 4 concern the issuance of permits and variations to close times. Counsel asked a number of questions in an attempt to clarify these provisions and understand how they apply. The department noted in its letter of July 18, 2008, that it systematically reviews the regulations and cannot provide a detailed response to the last letter sent by counsel.

With respect to point 4, the note explains in detail that if the department were to confirm that this provision is at best a pre-condition to the exercise of powers by the minister to vary closing times, then getting a detailed response would not be as important as it is in the case of point 1.

If the committee agrees, counsel recommends that the committee write back to the department. The last letter from the department is dated July 2008.

[English]

Mr. Lee: I agree with Mr. Rousseau on that course of action. The translators are occasionally using the English word ``disavowal,'' as opposed to ``disallowance''; that shows up on page 1 of the English translation. We should have them return to using the word, ``disallowance.''

Mr. Saxton: Will a letter be written to the minister?

[Translation]

Mr. Rousseau: No, we will write back to the department.

[English]

I will write back to the department.

Mr. Saxton: Will the wording of the letter be different from the last one?

[Translation]

Mr. Rousseau: What we would like to know is how the department can be certain that the conditions set out in the regulations are present before making a decision. The regulations impose the obligation to ensure that these conditions exist. That seems quite complex and we would like to know how this would work and how the regulations would be applied. However, the department is in the process of reviewing the regulations and since no correspondence has been exchanged for almost a year, most likely some progress has been made. Therefore, we will ask them to update us on the status of this file.

[English]

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

SOR/2000-374 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of document, see Appendix D, p. 8D:1.)

Mr. Bernhardt: Five amendments were agreed to following review of this item. To update the note, I can advise that three of these five were made on March 28. Two amendments remain to be followed up.

In addition, as explained in the note, there were two points in respect of which the committee was not satisfied with the responses received from the department. At one time, the committee was given to understand that amendments to address these points were being considered. However, the department later advised that these amendments were never considered, and any appearance to the contrary was an error.

The first of these two amendments concerns a provision that provides that requirements applicable to heat, ventilation and air conditioning systems apply to a building in which the federal employer is the principal tenant, even though the employer does not have control over the systems.

The apparent intent, as explained by the department, is to require employers to negotiate leases that provide for these standards and requirements to be met by the landlord. The problem is, if the landlord fails to comply, it is not the landlord who is liable for contravening the regulations, it is the employer.

The committee questioned this. It suggested that if it is intended that employers who lease building space must negotiate leases that contain certain things, then that is what the regulation should state, rather than having an employer liable to conviction for contravening the regulations when the employer has no control over it in the first place. I am still not sure if the department grasps that point.

The second issue concerns a provision that states that instructions prepared on behalf of an employer must take into account a particular Canadian Standards Association guideline. When this point was questioned, it became clear than an employer is required to do more than take the guideline into account. The department says the guideline must be followed, where applicable. If the intent is that the employer must follow this guideline where that guideline applies, that is what the regulation should say.

I suggest that these two matters be pursued. Given the point we have reached with the department, perhaps it is time to write to the minister directly on this item.

Mr. Young: I support that approach as well. First, I think we should notify the minister that there is a problem with reports from his own ministry and give the department a chance to address it.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

[Translation]

SOR/2003-323 — PRESENTATION OF PERSONS (2003) REGULATIONS

SOR/2005-385 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS (CUSTOMS) REGULATIONS AND THE PRESENTATION OF PERSONS (2003) REGULATIONS

SOR/2006-154 — REGULATIONS AMENDING THE PRESENTATION OF PERSONS REGULATIONS

(For text of document, see Appendix E, p. 8E:1.)

Mr. Rousseau: Mr. Chair, counsel raised 7 points regarding these regulations that have to do with the obligations of persons required to present themselves to customs upon their arrival in Canada. Action was promised in the case of point 1 and the second paragraph of point 2. As the committee already noted when it examined SOR/2008-27, some changes were made further to the comments in points 4 and 6. In the opinion of committee counsel, the Agency has provided satisfactory responses to the first paragraph of point 2, and to point 5.

Counsel feels, however, that the responses provided to points 3 and 7 are not satisfactory. The problem noted in point 3 concerns the fact that the minister may issue an authorization to a person if he or she ``is of good character.'' This term is not defined and counsel wondered which factors, aside from a criminal record, do influence the assessment of character. It also asked if it was possible to expressly set out these factors in the regulations. In its letter dated January 17, 2008, the Agency listed the factors on which an assessment of good character is made and pointed out that these factors are included in its guidelines. The Agency claims that it prefers to have these factors included in the guidelines because, if the concept of what constitutes ``good character'' changes, it would be able to adjust the guidelines more easily that if the factors were listed in the regulations.

This response is not satisfactory in that by adopting this approach, the Agency reserves the right to amend the regulations by way of an administrative order. It should also be noted that the department is not obligated to apply criteria set out in a simple administrative order.

Point 7 concerns the drafting of a particular provision. Counsel noted that there were redundancies with respect to the categories of persons who can present themselves electronically. In its letter of January 17, 2008, the Agency explained that the different categories of persons mentioned in the regulations corresponded to its different programs. On reading the department's response, it is not obvious that the regulations correspond to the programs described by the Agency. If the committee has no objections, counsel will write back to the Agency to request an update on the status of the promised amendments and explain why the responses to points 3 and 7 are not satisfactory.

[English]

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

[Translation]

SOR/2004-110 — REGULATIONS AMENDING THE COASTAL FISHERIES PROTECTION REGULATIONS

(For text of document, see Appendix F, p. 8F:1.)

Mr. Rousseau: Two points were raised about the regulations in the letter dated May 11, 2007. The first had to do with the drafting of the regulations and the promised action. The second concerned the incorporation by reference of the changes that will be made following the adoption of the regulations, that is the incorporation of the so-called NAFO measures.

In this case, there is no express authority for this type of incorporation, which happened to be the subject of Report No. 80 tabled by the committee in 2007. The department observed in its letter of August 11, 2008 that it would be premature at this time to amend the regulations. In light of the report and the government's response, the department noted that the prudent approach would be to discuss the matter with the Department of Justice.

The letter was sent on August 11, 2008. It would be a good idea to inquire as to the outcome of these discussions. If the committee has no objections, counsel will write back to the departments to inquire about the promised action and the discussions with the Department of Justice.

Summing up, I would point out that in its letter of August 11, 2008, the Department appears to have been mistaken about a study allegedly undertaken by the steering committee into a few cases of incorporation by reference. The committee's position on this matter is set out in its report. There was never any question of the committee doing another study on incorporation by reference. The only thing the steering committee was contemplating was making a recommendation about the disallowance of certain regulations.

[English]

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

Hon. Members: Agreed.

SOR/2004-237 — REGULATIONS AMENDING THE NARCOTIC CONTROL REGULATIONS AND OTHER RELATED REGULATIONS

(For text of documents, see Appendix G, p. 8G:1.)

Mr. Bernhardt: This instrument resolved a concern first raised by the committee in 1985. It also gave rise to 22 new points, as set out in counsel's August 2007 letter. The note prepared for members lists the points on which corrective action has been promised. In addition, there are several points on which the department's reply seems to be satisfactory.

The note continues in detail on the remaining six points. For the most part, these points concern possible discrepancies between the English and French versions and relatively straightforward points of drafting.

Point 21 deals with the more substantive issue that section 56 of the regulations imposes on a practitioner who is charged with contravening the act or the regulations, the burden of proving that the practitioner has complied with the regulations. A reverse-onus provision such as this is a substantial exception to established principles of fundamental justice and, as such, requires explicit, enabling authority in the statute. The department's reply does not address this aspect and the department should be asked to identify the precise enabling authority that authorizes section 56. As well, by imposing a legal burden of proof on a person charged with an offence, section 56 seems to violate the presumption of innocence guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms.

The department's letter asserts:

. . . even if a court came to the conclusion that section 56 of the Narcotic Control Regulations infringes section 11(d) of the Charter, such an infringement would be justified under section 1 of the Charter.

Apart from this assertion, the letter contains little analysis with respect to section 1. The department also claims that section 56 simply sets out a basic requirement that applies to any defence. An accused bears the evidentiary burden pertaining to any defence raised by them. If this is the case, then what purpose does this provision serve in the first place?

I suggest that these questions as well as the other five more mundane matters dealt with in the note be pursued with the department in a further letter.

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

Mr. Lee: I do not think that we should allow a public official to use a throw-away line about justification under section 1 of the Charter. If she were to provide particulars, including legal references, it might be interesting.

However, in correspondence to the department, I suggest that the committee indicate surprise that, on behalf of the department, she would lob out that line to the committee without specific references. I agree with counsel's advice that the committee pursue the matter.

Senator Moore: Will we request a timely response? It has been one year since we received the department's letters. I do not want the committee to write to ask if the department is ready to reply. I want to see constructive advancement of the file. In the practice of law, one eats only what one kills. I want to ensure that these people know the committee is serious about moving these files along in a timely fashion.

Mr. Bernhardt: I assume that this meeting will be the last committee meeting before the summer recess. We can indicate that the committee expects a reply at the earliest opportunity in the fall.

Senator Hervieux-Payette: Rather than mention the fall, I think that earliest opportunity is better. The fall seems far off.

The Joint Chair (Mr. Kania): I agree with the comments on section 1. It is quite something that they would say that. Are there further comments? Are members agreed?

Hon. Members: Agreed.

SOR/2004-238 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS

(For text of documents, see Appendix H, p. 8H:1.)

Mr. Bernhardt: The provisions enacted by this instrument mirror those made by the amendments to the Narcotic Control Regulations dealt with above. Twenty-seven points were raised. The note sets out those for which amendments have been promised and in respect of which the department's reply seems to be satisfactory.

The six remaining issues are absolutely identical to those discussed in the note on the previous file and, therefore, the same approach can be followed.

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

Hon. Members: Agreed.

SOR/2006-338 — ORGANIC PRODUCTS REGULATIONS

(For text of documents, see Appendix I, p. 8I:1.)

Mr. Bernhardt: Action has been promised on all points, except for the last paragraph of point 8 and point 9. I can advise the committee that these promised amendments were published recently for comment in Part I of the Canada Gazette.

On the last part of point 8, the department's reply advised that certain provisions dealing with the suspension of the certificate referred to an agricultural product rather than to an organic product because if certification is suspended, the product will no longer be an organic product. The flaw is that these provisions set out circumstances that might result in suspension but, at the time they occur and apply, there will not have been a suspension yet, so the product will still be an organic product, and it should be described as such. The issue is a drafting matter.

Point 9 concerns a requirement in section 14 that organic products meet labelling and advertising requirements under the Food and Drugs Act and under the Consumer Packaging and Labelling Act. If these requirements apply to organic products in any case, then section 14 serves no purpose.

If the intent is to make the requirements apply to organic products where they would not otherwise, then section 14 is not sufficient to achieve this intent because on its face, section 14 does not extend an obligation to meet requirements to things that are not covered in the first place.

The department has agreed to remove the reference to the Consumer Packaging and Labelling Act, but it wishes to retain the reference to the Food and Drugs Act. This response seems to confirm that they intend to make the requirements in the act applicable to organic products. If this is the intent, they need to state that intent more clearly. I suggest a further letter on these two points.

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

Hon. Members: Agreed.

[Translation]

SOR/2008-12 — REGULATIONS AMENDING THE CANADIAN BROILER HATCHING EGG AND CHICK LICENSING REGULATIONS

(For text of document, see Appendix J, p. 8J:1.)

Mr. Rousseau: Two points were raised concerning these regulations. The first had to do with a regulatory provision exempting the purchase of chicken for on-farm consumption. Counsel wondered what the intended meaning of ``on- farm consumption'' was and why the maximum allowed amounts varied so considerably among the provinces. The department replied that this program takes into account the regulations of each province. Counsel deems that this answer is satisfactory.

The second point addresses a drafting problem and action has been promised.

If the committee agrees, counsel will write back to the Council requesting a status report on the action promised.

Hon. Senators: Agreed.

SOR/2008-104 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix K, p. 8K:1.)

Mr. Rousseau: As you can see from the note attached to this file, as a result of the adoption of SOR/2008-104, a number of corrections were made further to the committee's observations about the three regulations in question. In the case of SOR/2008-104, action was promised to address all of the points raised, with the possible exception of certain parts of point 1. SOR/2009-32 has already corrected the problem identified in point 3, as can be seen from the instruments listed under the heading ``action taken'' in the agenda.

The first two paragraphs in point 1 have to do with the premises at which a company may apply the national safety mark. It would appear that there is nothing in the act to authorize the regulating of this business activity. Yet, the authorization given by the minister on the authorization form to apply the mark effectively regulates this activity, in that the company must specify on the form the premises at which the mark will be applied.

The department explained in its response that the purpose of this information is to facilitate the enforcement of safety standards. Even if that were the case, the fact remains that this requirement also restricts the application of the safety mark to certain premises. The department noted in closing that it is waiting for the act to be reviewed to propose to Parliament that it adopt regulations requiring companies to provide this information. However, the department does not indicate whether the review of the legislation is under way or even if a decision has been made to proceed with a review. One thing we do know is that no such bill is now before Parliament. Therefore, it would be appropriate for committee counsel to write to the department asking it to clarify its intentions with regard to the review of the act.

It would also be a good idea to ask the department to confirm that no one will be prosecuted for applying the mark at a premise other than the one listed in the authorization. Finally, counsel could request an update on the status of the action promised.

Hon. Senators: Agreed.

[English]

SOR/94-165 — OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

SOR/2000-328 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

SOR/2001-284 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of documents, see Appendix L, p. 8L:1)

Mr. Bernhardt: Several discrepancies between the two versions of these regulations were noted. Amendments to deal with all three of these files have been with the Department of Justice for drafting for some time. However, the forecast date for completion of fall 2009 has remained constant.

At one point, that time seemed a long ways off; it is not so far away now. At this point, it is simply a case of writing to ask if things are still on track for this fall.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.

[Translation]

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

(For text of document, see Appendix M, p. 8M:1.)

Mr. Rousseau: Subsection 18(2.01) gives the minister discretionary authority to grant further interest-free periods to a borrower meeting the described conditions. After examining this provision, the committee concluded that an amendment was in order, either to define the minister's discretionary authority by listing the criteria on which a decision may be based, or to eliminate this power.

In its letter of September 15, 2008, the department admitted that there were no criteria in place to guide the minister outside the context of the regulations.

As for eliminating the minister's discretionary power, the department noted that this proposed change would impact other regulations and that it was not in a position at this time to consider the impact of this change. The department closed by stating that it would ``bear in mind'' the committee's concerns when it undertook to amend the regulations. These revisions should have taken place last fall or winter. The regulations were in fact recently amended, but no change was made to this particular provision.

Therefore, it would be appropriate for committee counsel to ask the department if it has decided not to amend the provision and if so, to explain why it arrived at this decision.

[English]

Mr. Lee: I am happy with where we are except for one little thing: the reply from the department addressed to Mr. Rousseau. The last sentence of that reply says: ``In our revisions we will bear in mind your concerns . . .''

That response is a little too light. I want the record to show that. What we do here is more than ``bear in mind'' what they are doing out there so they should do more than ``bear in mind'' what we are doing in here.

I will not say more than that. Counsel can find a way to firm that point up a bit.

Mr. Bernhardt: We will reflect that point.

Mr. Lee: Thank you.

Hon. Members: Agreed.

[Translation]

SOR/92-12 — REGULATIONS AMENDING THE EGG REGULATIONS

(For text of document, see Appendix N, p. 8N:1.)

Mr. Rousseau: Following the meeting of May 3, 2007, committee counsel wrote to the CFIA asking it to consider a suggestion regarding the drafting of the regulations. The aim of the suggestion was to ensure that the wording of the regulations reflected the objective sought, as outlined in previous correspondence. The committee recommended that the wording of sections 9(28) and 9(29) be changed to make it clear that these provisions apply only to the operator of a registered egg station, and not to the person transporting the eggs.

The CFIA responded by referring to section 9(1) of the regulations pursuant to which the operator is responsible for the operation of a registered egg station.

An ``operator'' is defined in the regulations as ``the person who is responsible for the operation of a registered egg station''.

In light of these provisions, one can conclude that sections 9(28) and 9(29) do not apply to the person transporting the eggs and that consequently, there is no need to amend the regulations. If the committee agrees, this file can be closed.

Hon. Senators: Agreed.

SOR/2006-244 — DEBT RESERVE FUND REPLENISHMENT REGULATIONS

(For text of document, see Appendix O, p. 8O:1.)

Mr. Rousseau: Counsel sought assurances from the department that in future, when regulations of this nature are made, the fact that the First Nations Finance Authority was consulted in advance, as per the requirements of the act, will be stated in the recommendation. The department confirmed that this condition precedent will be mentioned. If the committee is satisfied with this response, this file can also be closed.

Hon. Senators: Agreed.

SI/2007-101 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES (EAST ARM OF GREAT SLAVE LAKE, N.W.T.)

(For text of document, see Appendix P, p. 8P:1.)

SI/2007-102 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES (TS'UDE NILINE TU'EYETA (RAMPARTS RIVER AND WETLANDS))

(For text of document, see Appendix Q, p. 8Q:1.)

SI/2007-103 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES (AKAITCHO DENE FIRST NATIONS, N.W.T.)

(For text of document, see Appendix R, p. 8R:1.)

Mr. Rousseau: With your permission, Mr. Chair, I will group the three files listed under the heading ``reply satisfactory'' together, since each one presents a similar problem.

All of the comments pertain to the drafting of the French version of these three orders. At issue in two of the three cases is ensuring consistency between the wording of the order and the terminology used in the Territorial Lands Act.

The department acknowledged the relevance of the comments made and indicated it would consult with the Justice Department with a view to proposing new terminology that takes into consideration the comments made. The department emphasized however that the terminology errors have no effect on the provisions and recommended that no change be made to the three orders.

However, the department assured us that it would use the new terminology when drafting future orders. Upon verification, we discovered that since making this promise, the department did in fact use the new model for orders drafted. Counsel therefore recommends that if the committee is satisfied with the department's undertaking, the three files can be closed.

Hon. Senators: Agreed.

[English]

Mr. Lee: Chair, today's agenda was thick but I wanted to commend the staff. The work of our general counsel is always excellent. However, there are different files here. These three that Mr. Rousseau has managed were particularly well handled. I want to commend Mr. Rousseau and Mr. Abel for excellent work here, both in terms of the legal positioning and writing, as well as the file management — bringing the files through to conclusion.

I thought that was excellent work. I want to recognize our staff for that work.

Mr. Galipeau: I concur with the comments made by our esteemed colleague, Mr. Lee.

[Translation]

Mr. Galipeau: I could repeat everything that has just been said in French and then some, but I do not think I could praise the work done by Mr. Rousseau and his colleague more eloquently.

Senator Hervieux-Payette: I concur.

[English]

Mr. Lee: This should not be taken as a performance review.

Mr. Bernhardt: Thank you very much. I am particularly pleased now to move on to the good news portion of the program.

SOR/98-176 — HAZARDOUS PRODUCTS (GLAZED CERAMICS AND GLASSWARE) REGULATIONS

(For text of documents, see Appendix S, p. 8S:1.)

SOR/2003-314 — REGULATIONS AMENDING THE ATLANTIC FISHERY REGULATIONS, 1985

(For text of documents, see Appendix T, p. 8T:1.)

SOR/2008-170 — REGULATIONS REPEALING AND AMENDING CERTAIN REGULATIONS MADE UNDER THE DOMINION WATER POWER ACT (MISCELLANEOUS PROGRAM

(For text of documents, see Appendix U, p. 8U:1.)

SOR/2008-181 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1369 — INTERIM MARKETING AUTHORIZATIONS)

(For text of documents, see Appendix V, p. 8V:1.)

Mr. Bernhardt: Under ``Action Promised'' on the agenda, a total of six amendments are promised in connection with these four instruments. In addition, SOR/2008-170 made eight corrections that had been promised previously to the committee in connection with the Kananaskis Falls and Horseshoe Falls Water Power Regulations.

I also draw the attention of members to the note that is in the materials concerning amendments to the Food and Drug Regulations made by SOR/2008-181. The committee objected to provisions in these regulations that conferred an administrative discretion to grant exemptions from the regulations and from certain aspects of the act, and to determine the conditions on which the exemptions were granted. This discretion was conferred through a mechanism known as Interim Marketing Authorizations.

Amendments to the Food and Drugs Act to authorize the minister to issue Interim Marketing Authorizations came into force in June 2008. At the behest of the committee, the amendments to the regulations, registered as SOR/2008- 181, revoked the unlawful provisions and made new provisions under the act, as amended. That accomplishment is significant.

SOR/96-252 — SEEDS REGULATIONS, AMENDMENT

(For text of documents, see Appendix W, p. 8W:1.)

SOR/2008-140 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART IV)

(For text of documents, see Appendix X, p. 8X:1.)

SOR/2009-32 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE MOTOR VEHICLE SAFETY ACT (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix Y, p. 8Y:1.)

SOR/2008-244 — BRITISH COLUMBIA VEGETABLE MARKETING LEVIES ORDER

SOR/2009-71 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE MARKETING LEVIES ORDER

(For text of documents, see Appendix Z, p. 8Z:1.)

Mr. Bernhardt: Under ``Action Taken'' are five instruments that make 29 amendments requested by the committee. Here I note, in particular, the B.C. Vegetable Marketing Order.

Some members may recall that in the last Parliament, the committee heard witnesses from the British Columbia Vegetable Marketing Commission, the National Farm Products Council and the Department of Agriculture and Agri- Food in connection with the absence of any valid order fixing and imposing levies on persons producing and marketing vegetables in interprovincial and export trade, even though levies were being collected.

The commission agreed to prepare and put in place a proper federal levies order, and the order registered as SOR/ 2008-244 fulfils this undertaking.

SI/2009-4 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON JANUARY 26, 2009 (DISPATCH OF BUSINESS)

SOR/91-38 — DISCLOSURE OF GOODS AND SERVICES TAX REGULATIONS

SOR/91-99 — STATUTORY INSTRUMENTS REGULATIONS, AMENDMENT

SOR/91-705 — PROTECTION OF SECURITIES (COOPERATIVE CREDIT ASSOCIATIONS) REGULATIONS, AMENDMENT

SOR/91-706 — PROTECTION OF SECURITIES (TRUST COMPANIES) REGULATIONS, AMENDMENT

SOR/91-707 — PROTECTION OF SECURITIES (LOAN COMPANIES) REGULATIONS, AMENDMENT

SOR/91-708 — PROTECTION OF SECURITIES (INSURANCE COMPANIES) REGULATIONS, AMENDMENT

SOR/92-514 — CUSTOMS DUTIES ACCELERATED REDUCTION ORDER, NO. 6

SOR/92-515 — ACCELERATED ELIMINATION OF CUSTOMS DUTIES REMISSION ORDER, NO. 2

SOR/92-617 — CANADIAN WHEAT BOARD REGULATIONS, AMENDMENT

SOR/93-113 — INTERFERENCE-CAUSING EQUIPMENT REGULATIONS

SOR/93-141 — ORDER RESCINDING VARIOUS ORDERS OF THE NATIONAL TRANSPORTATION AGENCY

SOR/93-391 — ADMINISTRATIVE AND TECHNICAL STAFF OF THE EMBASSY OF THE UNITED STATES AND FAMILIES DUTY AND TAX RELIEF PRIVILEGES ORDER

SOR/93-393 — ALBERTA FISHERY REGULATIONS, AMENDMENT

SOR/93-495 — CSCE FORESTRY SEMINAR PRIVILEGES AND IMMUNITIES ORDER

SOR/94-493 — MEDICAL DEVICES REGULATIONS, AMENDMENT

SOR/95-432 — MIGRATORY BIRDS REGULATIONS, AMENDMENT

SOR/96-319 — EXPORT PERMITS REGULATIONS (SOFTWOOD LUMBER PRODUCTS)

SOR/97-480 — ORDER RESPECTING THE REMISSION OF ANTI-DUMPING DUTIES ON CERTAIN HOT-DIPPED GALVANNEALED STEEL SHEET FOR USE IN THE MANUFACTURE OF NON-EXPOSED MOTOR VEHICLE PARTS

SOR/98-528 — CES GRANT REGULATIONS

SOR/99-175 — SPECIFIED CROWN AGENTS (GST) REGULATIONS

SOR/2002-112 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I AND V TO VII)

SOR/2002-135 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VII)

SOR/2002-226 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART III)

SOR/2002-447 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VI)

SOR/2003-58 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART III)

SOR/2003-121 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VII)

SOR/2003-122 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART V)

SOR/2003-154 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, IV AND V)

SOR/2003-249 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VII)

SOR/2003-271 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS, I II AND VI)

SOR/2003-361 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VII)

SOR/2004-131 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART I)

SOR/2005-129 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART I)

SOR/2005-193 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VII)

SOR/2005-319 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS IV AND VI)

SOR/2005-357 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, IV, V AND VII)

Mr. Bernhardt: Under ``Statutory Instruments Without Comment,'' 37 instruments are listed that have been reviewed and found to comply with all the committee's criteria.

If members will indulge me for a few more seconds, I know that the committee had extra meetings over the last few months and members have been working hard to clear up a backlog that had accumulated due to prorogation, dissolution and elections. I took out my calculator this morning before coming over, and I will put on the record that so far in 2009, the committee has dealt with 240 items on which there was some comment. In addition, we have cleared 269 instruments that were submitted without comment. That is a significant number of regulations.

Senator Hervieux-Payette: How many are left?

Mr. Bernhardt: By September, we can start all over again.

The Joint Chair (Mr. Kania): There are two other matters. First, in terms of Australia, we have approval to go. We have a person from each party now; myself for the Liberal Party, Serge Ménard for the Bloc and David Christopherson for the NDP. I will let Senator Eyton address the subject of the Conservative member.

The Joint Chair (Senator Eyton): I am sad to be leaving the committee. It has grown on me. When I first arrived here, I wondered where I was and what I was doing. As one understands better what the committee does and what counsel do on behalf of the committee, it becomes more and more intriguing.

In the last six months, eight months or a year, I enjoyed it. I will miss the committee and the excellent work that all of you perform here.

All of that is a preface to say that I will be succeeded by John Wallace. He will be the co-chair, along with Andrew. He also agreed that, as part of his responsibility, he will go on the Australian trip as well. John Wallace will be there.

John has good qualifications; he has a legal background and is a good solid individual. He could not be here today, but he is prepared to do the job. He is an excellent choice.

Mr. Galipeau: I want to say a few words about an outstanding Canadian business leader and a selfless philanthropist. Before I go any further, it is already clear that I am talking about our senator, Trevor Eyton, an Officer of the Order of Canada, a distinguished jurist, a Queen's Counsel and an esteemed senator for nearly two decades.

He has been a mentor to this joint committee of senators and commoners in the Thirty-ninth and the Fortieth Parliament. He has been a mentor to me, as well, so it is pretty sad that I have the sense that this is probably the last meeting where we will have the wisdom of his leadership.

With the indulgence of the committee, and the support and seconding of our friend, Mr. Lee, I move that this committee recognize and commend the service to Parliament and to this joint committee of our co-chair, Senator Trevor Eyton, Officer of the Order of Canada and Queen's Counsel. His career skills, good judgment and leadership have enhanced our work here, and we extend our gratitude to him as he approaches the Senate mandatory term.

Mr. Lee: I second the motion.

The Joint Chair (Mr. Kania): I assume that is unanimous.

Hon. Members: Agreed.

The Joint Chair (Senator Eyton): The only one who might disagree is me. Thank you very much, it was very kind.

As I said last night at a reception hosted by Senator Grafstein, it makes me a trifle wondering, because there has been a lot of celebration that I am leaving. Obviously, there are strong feelings there, saying yeah, he is out of here; let us have another party. Thank you very much for those kind words; they are very much appreciated.

Hon. Members: Hear, hear!

The Joint Chair (Mr. Kania): Perhaps you can have an honorary committee membership so you can still come on Thursday mornings.

The Joint Chair (Senator Eyton): I will sit in the second row over there.

Mr. Szabo: If the committee agrees, I will take one last picture of the co-chair so we can have a little memory of him.

Now that I have that picture, chair, another historic event is that this committee has authorization to travel and will go to this important conference: That happens once a decade. I think we should consider taking this event as a point of departure, at least as a starting point, of having discussion among the members — and as an order of reference for the committee — to talk about the way in which we discharge our responsibilities here, and the tools that we have available to us.

I think that this discussion would give us a focus for the members who are going on that trip to engage with others who are involved in discharging similar responsibilities to see how they do their work: what kind of changes they have made; how they manage all the paper; some of the conventions or rules that they may adopt with regard to the timelines for clearing files, et cetera. I think the discussion would be useful. Maybe we could even have a report that we might present to the liaison committee to give them an indication of the importance of such interactions with other Commonwealth colleagues.

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

(The committee adjourned.)

---