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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 9 - Evidence, November 4, 2010

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OTTAWA, Thursday, November 4, 2010

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of statutory instruments.

Senator Yonah Martin and Mr. Andrew Kania (Joint Chairs) in the chair.

The Joint Chair (Mr. Kania): Good morning, everyone. Let us begin.

[English]

Under "Special Agenda Items," counsel has passed around a letter to Mr. Bernhardt dated November 3, 2010, concerning the regulations amending the Consular Services Fees Regulations. This is a new letter which I understand was received yesterday and has been translated. No one has had an opportunity to read it yet, including myself because I have just seen it.

Mr. Bernhardt tells me that this letter deals with the first matter on our agenda, which is SOR/2001-536. We had discussed disallowance at the last meeting. Mr. Bernhardt sent a letter dated October 21, 2010, and this is the response.

Mr. Bernhardt has indicated that they have promised something for mid-December. We will pause for a moment so that members can read the letter and then we can discuss it.

SOR/2001-536 — REGULATIONS AMENDING THE CONSULAR SERVICES FEES REGULATIONS

(For text of documents, see Appendix A, p. 9A:1.)

Peter Bernhardt, General Counsel to the Committee: Mr. Chair, as you indicated, at the last meeting the committee decided that unless section 4 of the Consular Services Fees Regulations was amended by this morning or that a draft copy of amendments examined and blue-stamped by the Department of Justice Canada was provided, the committee would proceed with issuing a notice of disallowance.

Yesterday afternoon we received this letter promising to make the amendment by mid-December. This is the latest in a series of promised completion dates. It got to this point because the department promised in the spring that it would be done by the summer, which did not happen.

The question this morning is whether the committee wishes to proceed with issuing a notice of disallowance or whether it prefers to wait and see if the mid-December deadline is met.

One possible option that would preserve all of the committee's various options would be to issue the notice of disallowance and start the clock ticking. The committee could then wait to see what happens with the mid-December deadline. Realistically, in terms of the parliamentary calendar, that would put us into the first meeting of the New Year, by which time the file could come back to the committee, hopefully with a note that action has been taken. If not, the committee could at that point consider a draft disallowance report. That would simply save the committee starting from scratch all over again should it turn out in January that nothing has happened.

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

Mr. Lee: First, it is not a bad offer to come back and promise to do something by a certain date. I am searching for the magic words of the counter-offer. Has counsel described them with precision, or is there another way?

Counsel, if you could, please tell us exactly what the department's magic words are regarding the undertaking.

Second, I accept their letter. I am not speaking for the committee here, but I was not aware that the confidentiality described in their cover letter with respect to draft regulatory amendments existed. Regulatory amendments are almost always published for consultation and for the other usual purposes. Therefore, I am very confused about resorting to allegations of confidence in respect to something that everyone knows exactly what we are dealing with.

In any event, it might satisfy us if you could put the magic words on the record.

Mr. Bernhardt: I am reading from the English version:

. . . I want to let you know that the various individuals involved, both at the Treasury Board and at the Privy Council Office and Department of Finance, have assured us of their support, and we will, in very short order and by mid-December, be submitting a draft regulation to the Governor in Council . . . .

Mr. Lee: You do not submit a draft to the Governor-in-Council; you submit a final version, do you not?

Mr. Bernhardt: It is only a draft until the Governor-in-Council makes it.

Mr. Lee: I see. It is proposed.

Mr. Bernhardt: They are being very careful. There is also the caveat that "We do not make the regulations; the Governor-in-Council does." They are covering themselves off. Basically they are saying that this will go to Treasury Board by mid-December. It presumably will be made.

Mr. Lee: That is six weeks from now, followed by six weeks of a void in the parliamentary sense, followed by a rescheduling of our meetings.

That is fine. I will see what other colleagues have to say.

Mr. Saxton: Mr. Chair, I think the committee's main concern is that we wanted confirmation that this matter had progressed, and I believe that this letter is confirmation that it has. Therefore, I think we should allow it to continue as is, and hopefully we will have a concrete confirmation in mid-December.

Mr. Lee: When is our last meeting with reference to the December 15 date?

Mr. Bernhardt: I think it would be December 16.

Mr. Lee: Could we agree to send a note back stating that it appears we will be meeting on December 16 and we would be delighted to see confirmation of fulfillment of their undertaking on that date?

The Joint Chair (Mr. Kania): Are you suggesting that a letter be sent to them advising them this matter will be brought back before us on December 16 and we expect it to be resolved by then?

Senator Moore: Mr. Chair, if we do not have a resolution at that time, we should issue the notice of disallowance and get that process going. I think we should do it now, but if members wish to wait until then, we will wait until then.

The Joint Chair (Mr. Kania): We have that caveat, then.

[Translation]

Mr. Asselin: I agree to proceed, as legal counsel did with the notice of disallowance in the first place. If satisfactory progress has been made by our next meeting on December 16, we can always withdraw the notice. Otherwise we will have to wait until January. And if there is no progress by January, we will continue with the notice of disallowance. They have not actually met the deadline that was set. So we can proceed with the notice of disallowance.

[English]

Mr. Saxton: I still think we should take the first course of action, which was proposed by Mr. Lee.

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

I think there is consensus that we write back and confirm the undertaking. We would then review it and bring this matter back before us on December 16. If it is not concluded by that date, we would then proceed with disallowance. Does that sound acceptable?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Thank you.

We will move now to SOR/2010-192, Regulations Amending the Designated Public Office Holder Regulations. Counsel has included a new note.

SOR/2010-192 — REGULATIONS AMENDING THE DESIGNATED PUBLIC OFFICE HOLDER REGULATIONS

Mr. Bernhardt: As you indicated, Mr. Chair, the committee commenced discussion on this item at the last meeting, and it was decided that discussion would continue this morning. The focus at the last meeting was on members of the staff of the Leader of the Opposition in the two houses as "designated public office holders."

The additional note was provided simply to flesh out some of the comments made in the initial note in light of the discussion at the last meeting on that aspect of the regulations. Members may recall that the suggestion in regard to that point was that counsel follow the usual practice of drafting a letter to Treasury Board seeking their response to the argument.

The other aspect of this instrument is the designation of members of the Senate and the House of Commons. In the materials, there is also a discussion of that. I presume members will have something to say to that issue, as well.

The Joint Chair (Mr. Kania): At our previous meeting, committee members discussed whether a letter would be sent to Treasury Board — to the department but not to the minister at this stage — seeking clarification. Some members were in favour and some were against. We can continue the conversation if there is still opposition to that course of action.

Mr. Lee: We have to make some progress on this agenda item. On the question of employees of the opposition house leaders in the Senate and the House of Commons, I think we ought to ask the department to clarify the basis on which that class of individuals has been designated, given that counsel has pointed out that there does not appear to be a basis. That is their current view. A basis might be held out, and I am sure the department will take that view. However, there is an obvious weakness in that basis, if counsel's review is to be accepted.

I think we should ask the department to clarify. Again, I am missing the magic words, but we need them to clarify whether or not these people are employees of Her Majesty. Counsel has reached one tentative conclusion, but the final word could only be helped if the department would provide precise rationale for their belief that this position is good in law. We should write to the department and ask for that clarification, as we normally would.

Mr. Clarke: I would like some clarification in an effort to get some answers here. We deal with regulations that are three, four or ten years old. This was passed about three weeks ago. How was it brought forward and who brought it forward? Why is there no correspondence to members of the committee?

Mr. Bernhardt: It is very rare. In fact, I cannot think of another regulation that points expressly to members of the houses and their functions in carrying out their duties. Given that this is a parliamentary committee, in this case we made a decision that seemed appropriate, which was to make an exception to the usual practice and bring it to the committee first so members could decide what they wanted to do with it and where they wanted to go with it since it affects them expressly. We are dealing here with things that members have to do as members. That is very unusual. We do not see many regulations dealing with that. As I say, I cannot think of another one.

For that reason, it seemed logical to bring it here first rather than simply write to the department, which we would do in pretty much every other instance. It has rarely happened where we have followed this practice for one reason or another, but that was the rationale in this instance, for better or worse. That is what we decided to go with.

Mr. Clarke: It was your decision?

Mr. Bernhardt: Yes.

Senator Stratton: What is the normal process? I am trying to understand why counsel took this route instead of the normal process. Should we not follow the normal process in exploring this matter?

Mr. Bernhardt: To the first part of your question, the normal process would have been for counsel to review the regulations.

Senator Stratton: Right.

Mr. Bernhardt: If we had identified anything we thought was a problem or if we had any questions or wanted some explanation, we would have proceeded to write to the responsible department. Once that reply had been received, we would have analyzed the reply and brought all the correspondence before the committee with a recommendation as to what, if any, further action should be taken. In this case, it is because of the subjects of the regulations —

Senator Stratton: I understand that, but would having that information not help us through the normal process of dealing with this item?

Mr. Bernhardt: We could have followed the normal process. I made the decision not to do so. In hindsight, would I have done it differently? Perhaps.

Senator Stratton: There is unusual angst around this table given the route that you chose to take rather than the normal route. We could just back off a bit, go through the normal process and see where we stand. The last thing we want is to have a vote, if we can avoid it. We should try to explore this agenda item in the normal process, bring it back and see where we stand.

Mr. Bernhardt: The intent, misguided as it may have been, was to avoid the angst by bringing it here first rather than having it come back after counsel had written to the department, in a sense stirring things up by potentially telling them they have a problem and what they need to do about it. The hope was that we would avoid that by bringing it to committee members in the first instance.

Senator Stratton: Understood.

Senator Moore: Your explanation satisfies me. Without putting thoughts in your mind, you probably thought: "This issue affects members around the table, so I had better see if they have any questions rather than predetermine, in a letter that I would normally write, what they might be thinking. I will ask the members if they have any questions that they think we might reasonably put to the department in seeking clarification on some of these issues."

I think that is where counsel was probably headed. It sounds like it, from your comments today. Senator Stratton said that you created a little angst, and so you did, but that is okay. It is not a perfect world.

Senator Stratton: We are used to that.

Senator Moore: We move forward.

Mr. Masse: I think we are overdoing this a bit. Counsel basically gave us a heads up and made it more accountable by bringing it to the public sooner. At the end of the day, this issue was floating around. Instead of keeping it sheltered, it has surfaced in a public forum. Counsel is advising committee members as to what we should do next — the same as suggested in every other circumstance.

Last week we got into a debate about doing something different, which was odd. I see this only as a heads-up issue. Making it public creates greater accountability because these documents and the transcripts of the committee are public.

We have a little issue with the act and we want clarification from the department. I do not think any harm has been done here at all, and I do not mind the intent.

Mr. Saxton: Mr. Chair, I beg to differ with Mr. Masse when he says that this is the normal procedure. It has been eloquently described by Senator Stratton that this is not the normal procedure. Counsel also acknowledged that this is not the normal procedure. The normal procedure would have been for counsel to write to the department directly.

I have a question for clarification that goes back to Mr. Clarke's question on how this came on to your radar screen, Mr. Bernhardt. Can you describe that and let us know if any member of this committee brought it to your attention?

Mr. Bernhardt: We had inquiries from several members. I also had inquiries from various people in the Parliamentary and Information Research Service of the Library of Parliament because they were receiving inquiries as well. When it involves a regulation, they will sometimes come over to our shop to let us know about the inquiries and requests in connection with a particular regulation, although they cannot tell us who made the inquiries. They will sometimes come to us because we are the "regulation guys" and ask whether we are looking into the item in question or whether the committee has taken a view on it.

For all those reasons, plus the fact that it concerns senators and MPs, it made its way to the top of the pile.

Mr. Saxton: Specific members of this committee requested that you look into this matter.

Mr. Bernhardt: Yes; that is not unusual, from all parties. Any member with a question on a regulation, as we have always said, is free to call us and ask whether we have looked at it. If members are interested, we, as servants of the committee, will give it a certain priority.

Mr. Saxton: I see. Thank you.

Ms. Jennings: I wish to simply say that I am completely satisfied with counsel's explanation of the motives and reasons for departing from traditional practice and bringing this matter forward to the members of this committee.

I am also delighted that Conservative members are no longer suggesting placing a telephone call to the department, which would be a departure from the tradition of counsel writing to department officials and bringing the response before the committee for discussion and decision. They now support following traditional procedure. The only issue is an explanation as to why that traditional procedure was not followed in this case.

Mr. Saxton: I tried to understand what Ms. Jennings said, and I am still confused.

Ms. Jennings: Read the transcripts. You can read it over and over.

Mr. Saxton: The fact is you are talking Conservative versus non-Conservative, so you are turning this into a political football, so to speak.

Ms. Jennings: No, I am not.

Mr. Saxton: Yes, you are. I am not sure that I fully understand what she is saying. We do not agree that we should continue differently from any way that we have continued in the past. We believe that we should, at minimum, go back to the normal procedure, which is for counsel to contact the department directly.

I want to say that it is clear we do not have consensus on this issue. That is unusual for this committee, but on this particular issue we do not have consensus at this time.

The Joint Chair (Senator Martin): I have a question for clarification.

Mr. Saxton, are you saying that one of the suggestions from Senator Stratton is that counsel would contact the department?

Senator Stratton: Write a letter to the department.

The Joint Chair (Senator Martin): Is that what you are putting on the table for all of us to consider?

Mr. Saxton: I would say that that position would be acceptable. Having said that, I also want to point out that we do not have consensus that there is a problem here at all.

The Joint Chair (Senator Martin): I see.

Mr. Saxton: For us, it is extremely clear. The answer is that it is not necessary to take up the committee's time on this matter because we feel there is no ambiguity whatsoever surrounding the staff of the Office of the Leader of the Opposition as public office holders.

The Joint Chair (Mr. Kania): In an effort to avoid any form of partisanship, the simply question is this: Notwithstanding that any member of the committee may support or oppose the analysis, we have a recommendation. The recommendation of counsel is that he write to Treasury Board to seek certain clarification. We have an agreement that he will write that letter, which would have been the ordinary practice in any event. That much we agree on; is that correct?

Senator Moore: Agreed.

Mr. Saxton: With the understanding that we are taking a step back to the original position where counsel would write to the department prior to bringing it to committee.

The Joint Chair (Mr. Kania): That is fine.

Mr. Saxton: He is writing on his own behalf.

The Joint Chair (Mr. Kania): I meant that.

We have an agreement that one big step will be taken back and a letter will go out that would have gone out in any event.

Senator Moore: Right.

Mr. Saxton: Right, but I do want to put on record at this time that the lobbying commissioner also supports the position that OLO staff are public office holders.

The Joint Chair (Mr. Kania): That is fine. Other than you, perhaps, I do not think anyone else here has spoken with the lobbying commissioner, so we will take you at your word. However, that is not relevant to what we have agreed on, which is that counsel will write a letter following the ordinary procedure; correct?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Can we now move on?

Mr. Clarke: I still have questions for legal counsel with regard to how this was brought up. I would like further clarification.

When a member of this committee came to you, was there a verbal request or a written request to bring this forward? What I see possibly happening is I can bring forward a recommendation or a question on a regulation and it would supersede any of the other items we are reviewing. I would like some clarification on how it was done.

Mr. Bernhardt: I think that is perfectly legitimate. The committee sets its own agenda. If committee members have a particular interest in a regulation, then that is the regulation the committee should be dealing with. I do not think there is anything unusual about that.

As I said, we always make the offer. I make the offer at the start of every session. If members have an interest in something, if something catches their eye in their office, feel free to give us a call.

We discuss files all the time. Part of my job is to discuss files with members. I discuss files with members from all parties every week before every meeting — anyone who wishes to. That is the way the committee functions. There is nothing secret about that; there is nothing partisan about that. For example, a member's office may call me and say, "I saw this in the Gazette last week; have you guys looked at it? Could you look at it and let us know what you think about it?" I think that is perfectly legitimate. As I have done in the past, I would do that for any member at any time.

The Joint Chair (Mr. Kania): Are there any other comments before we move on?

Next on our agenda is "Letters To and From Ministers."

FEE SCHEDULE — FEES TO BE PAID FOR MARINE NAVIGATION SERVICES PROVIDED BY THE CANADIAN COAST GUARD

(For text of documents, see Appendix B, p. 9B:1.)

Mr. Bernhardt: The minister's October 19, 2010, letter advised that the delay in replying to the June 26, 2008, letter was due in part to an ongoing review of these fees, but the minister did promise that a reply would be provided as soon as possible. That reply was received late on October 29, which was last Friday. That letter was circulated to members earlier this morning. An amendment has been promised in connection with the first point dealt with in the June 2008 letter.

The second issue concerns whether certain of these fees constitute a tax. The fees in question vary for the same service, based on the size of the vessel. The committee wanted to know if it cost more to provide the services to large ships. If it does not, that is one indication that the fees may amount to a tax.

The department has given a detailed reply to the detailed arguments presented back in 2008. We have undertaken a preliminary examination of the reply, which seems to lead to the conclusion that it does not really respond to the question asked. However, given the detail and complexity of the issue, as well as the fact that we received this letter just a few days ago, it might be best for counsel to fully study the reply, prepare a more formal analysis and bring it back to the committee at a later time.

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

Mr. Lee: While I am in agreement with counsel's suggestion, I want to put on the record that we have been down this road several times before — in my personal view, enough times and with a batting average that shows — so the department should take this very seriously. In its history, the committee has moved past the punting process. When it comes to fees and taxes, the line has been drawn here; it has been drawn down the street at the Supreme Court; and it has been drawn in the Federal Court. We know pretty much where it is. I think counsel has it right.

I wanted that to be on the record for the benefit of the department, but I do support going back, recalibrating and reassessing the legal position.

The Joint Chair (Mr. Kania): One of the two documents passed around when we started this meeting was this October 29, 2010, letter from Fisheries and Oceans Canada. It is a five-and-a-half page legal analysis and response. I think it is responsible to adjourn this particular matter until a later meeting so we can all read it.

SOR/98-2 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/99-169 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

(For text of documents, see Appendix C, p. 9C:1.)

Mr. Bernhardt: The Minister of Agriculture previously advised that amendments to the Fish Inspection Act are to be introduced at the earliest possible opportunity to address the committee's concerns over the lack of authority for a number of aspects of the regulations. In his June 22 update, the minister advised that this project was expected to move forward this fall.

The minister's letter does refer to changes to the two regulations, although I have had a subsequent communication from the Canadian Food Inspection Agency. It seems this is meant to refer to amendments to the act to address the problems with the two regulations.

Perhaps at this time it is simply a matter of asking the agency if it still expects that legislation will be introduced this fall.

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

Mr. Masse: I note that the date is June 22, so I suggest an immediate follow-up because we are running out of time.

The Joint Chair (Mr. Kania): So an immediate follow-up?

Hon. Members: Agreed.

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

(For text of documents, see Appendix D, p. 9D:1.)

Mr. Bernhardt: Two unsatisfactory points were pursued in the joint chairs' letter of June 18, 2009. At that time, there was a concern that the department seemed to be backing away from a previous commitment to amend their regulations. As well, the question was asked when two other promised amendments that remain outstanding would be made.

The committee has the minister's July 28 reply, which assures the committee its concerns are seriously considered and, as evidence of this, mentions amendments that have previously been made.

As for the outstanding matters, it stated that further analysis and discussion with stakeholders is still needed because the matters are complex. No mention is made of the two amendments that were already promised, so it is not clear if this need for further study pertains to these as well or not.

I note that the outstanding matters are summarized in three paragraphs in the joint chairs' letter, so it may be a stretch to use complexity as a reason for lack of progress.

In any event, the department could now be asked whether it can assure the committee that the sought-after amendments will in fact be made, and if they will, when they will be made.

Mr. Lee: Could counsel refresh our collective memories as to which scrutiny criteria were allegedly infringed?

Mr. Bernhardt: The one issue here concerns a requirement that employers who lease premises ensure that heating, ventilation and air conditioning in the building meet the required standard. The committee pointed out that it would be very difficult, if you are leasing a small part of the building that you do not have entire control over, to dictate to the landlord what standard should be maintained on pain that you will be charged if it falls below standard.

The reply eventually was what we expect is that federal employers will include these aspects in their lease agreements, which is not really what the regulations say. They say the lessee can be charged for something that is out of his or her control.

Mr. Lee: Therefore it is a question of fairness or unusual use of power.

Mr. Bernhardt: That is the main concern. The other one is a more minor issue.

Senator Moore: In consideration of the fact it took 13 months to get a reply to the last letter from the joint chairs, in your letter, can you ask for a reply within 30 days?

The Joint Chair (Mr. Kania): Yes.

Senator Moore: Thank you.

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

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next matter under "New Instruments" is SOR/98-5, Licensed Dealers for Controlled Drug and Narcotics Fee Regulations. I think counsel was going to recommend that we close this file.

SOR/98-5 — LICENSED DEALERS FOR CONTROLLED DRUGS AND NARCOTICS FEES REGULATIONS (1056)

SOR/98-4 — ESTABLISHED LICENSING FEES REGULATIONS (1056)

SOR/98-432 — FEES IN RESPECT OF MEDICAL DEVICES REGULATIONS

(For text of documents, see Appendix E, p. 9E:1.)

Mr. Bernhardt: Two issues were raised initially. They were put aside in one case because the committee was dealing with the same issue on another file which was, as members might recall, the Letter Mail Regulations from Canada Post. The other issue concerned the fees and tax matter that was before the Supreme Court of Canada at the time in connection with liquor licence fees in national parks. These were held in abeyance on the view that once those others had been sorted out, the committee would know how to proceed here.

In view of what transpired on those other files, the conclusion is that the provisions here are non-objectionable. That being the case, we could simply close these files.

The Joint Chair (Mr. Kania): Does anyone object to closing these files?

Hon. Members: Agreed.

SOR/2009-12 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DIFFERENTIAL PREMIUMS BY-LAW

(For text of documents, see Appendix F, p. 9F:1.)

Sean Abel, Counsel to the Committee: This bylaw was made by the Canada Deposit Insurance Corporation on December 3, 2008, but not transmitted to the Clerk of the Privy Council and registered until January 5, 2009. The Statutory Instruments Act requires that a regulation be transmitted for registration within seven days of its making.

In this case, the Canada Deposit Insurance Corporation Act requires that these bylaws be approved by the Minister of Finance before they have effect. The CDIC indicates that it sent the bylaw to the minister on December 3, the day of its making, but it was not approved and returned until December 22. This was already well past the registration deadline. In addition, however, the CDIC was closed from December 24 until January 5 of the New Year. It was only on January 5 that the bylaw was finally transmitted to the clerk and registered.

The letter from the CDIC explains that the bylaw must first be approved by the minister before it can be registered by the Clerk of the Privy Council. This results in some practical difficulty in meeting the transmission and registration requirements of the Statutory Instruments Act.

The CDIC has apparently discussed this matter with the Department of Finance and will try to meet the requirement to the extent possible in the future. The question for members today would be whether this is a sufficient commitment. Counsel would, of course, keep an eye out to see if the registration deadline is met in the future.

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

Senator Moore: Counsel, you just said we would keep an eye on it to see if it has been properly registered in the future. When would that future be — next month or next week? What are we talking about?

Mr. Abel: The next time they make a similar bylaw under the same act, it will have to be approved by the Minister of Finance again. As we always do, we will keep an eye on whether it meets the registration deadlines.

The current bylaw is valid now. The only effect of it not being registered on time is that it did not come into force until it was registered.

Senator Moore: Even though it was not registered?

Mr. Abel: The effect is that it did not become effective until it was registered. Despite that, it is still supposed to be registered within the seven-day time frame. There is no other consequence for missing that deadline than it simply does not come into effect.

Senator Moore: So it is now applicable?

Mr. Abel: Yes.

Senator Moore: Is it enforceable? You will just wait?

Mr. Abel: We will see if they do it again.

Mr. Lee: It seems to me that this procedure is almost unfair or that there is a built-in Catch-22. In sequence, we have the date of making the regulation, the date of ministerial approval and then the date of registration. However, if the ministerial approval takes 30 days, the people who are supposed to register the regulation cannot do so, which forces them to be in breach of the seven-day registration requirement.

Mr. Bernhardt: You are exactly right.

Mr. Lee: It is like we are sitting out here with a mouse trap all the time, knowing some people will get caught because ministerial approval delays the registration. Why would we even chase those? Why would we not make note of it and look for prompt registration following ministerial approval?

I would not want to waste a lot of time on this. If the registration rule is stupid because it does not allow time for ministerial approval, then we ought to point that out to someone and ask them to please fix it because there are a lot of people who will be forced to break a rule.

Mr. Bernhardt: I know that the Department of Justice is well aware that there are practical difficulties in meeting that seven-day requirement when it comes to regulations made by one body which must then be approved by someone else. That is something of a flaw in the act.

Some members may recall that the committee studied a proposed new regulations act back in the 1990s. There were many things wrong with that bill, but one thing they did try to fix was this issue. In these cases, they would deem the regulation-maker to be the minister giving the approval and the seven days would not start until the approval had been given.

Nevertheless, the legal requirement is the legal requirement and from time to time it is not met. We traditionally write a fairly short letter saying: "We notice you did not make the seven-day deadline. Please tell us why and try not to do it again." They know someone is watching, but that is the end of it.

Mr. Lee: Thank you.

[Translation]

Senator Hervieux-Payette: If I understand correctly, a regulation is similar to royal assent in that it does not take effect until it has been registered. So it does not come into force until then.

But, in terms of your scrutiny of regulations and as legal counsel, do you only see the regulation once it has been registered? How do you have access to the regulation since it can only be found in the minister's office before it is released? How does your office work in these technical matters?

[English]

Mr. Bernhardt: On the first question, you are right, senator. The general rule is that a regulation does not come into force until it has been registered. The consequence here is simply that there was a delay in its coming into force.

In terms of when we see a regulation, practically speaking we work from the Canada Gazette. Once it has been registered, it is then published in the Canada Gazette. Again, it must be published within 23 days of registration.

We essentially tear apart the Canada Gazette and our files are created from the version published there. We also get a certified true copy of each order-in-council once it has gone through cabinet. Those come to us from the Privy Council Office as well so we can ensure there are no printing errors between what the Governor-in-Council actually passed and what is actually printed in the Canada Gazette. One sometimes finds discrepancies there as well.

[Translation]

Senator Hervieux-Payette: I take it that you see the regulation only at the end of the registration process. You see it just before the approval process is done. That is how you know about the delays.

[English]

Mr. Bernhardt: No, we know there are delays because the version printed in the Canada Gazette will give the date it was made, the date it was approved and the date of registration. It is a very simple thing to look at the various dates, do the arithmetic and determine that something took, say, 21 days or 14 days. That information is there on the face of it. Anyone can get those dates from the Canada Gazette.

Senator Hervieux-Payette: I was asking whether you could intervene earlier in the process when they do not process it. You tell me that the answer is no because you know after the fact.

Mr. Bernhardt: Yes.

Senator Hervieux-Payette: Therefore, you could not tell them that they are 10 days behind in their approval process.

Mr. Bernhardt: Something like that could come up in a completely different context given requirements for tabling in the house. Sometimes you will see that something has not been tabled yet. There may be enough time there to write a quick letter telling them that it looks like their time is running out fast and perhaps they should table it. With the other, there simply is no time.

Senator Hervieux-Payette: Thank you.

SOR/2010-17 — REGULATIONS AMENDING THE BRITISH COLUMBIA SEX OFFENDER INFORMATION REGISTRATION REGULATIONS

(For text of documents, see Appendix G, p. 9G:1.)

Mr. Abel: This instrument corrects a minor error noted by the committee in connection with SOR/2005-2. However, the recommendation preceding this instrument does not indicate the date on which it was first made. Counsel therefore sought a copy of the original order made by the Lieutenant Governor of British Columbia. A copy was received and it can be confirmed now that this instrument was registered and published within the time frame required by the Statutory Instruments Act. Presumably this file can be closed.

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

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): There is one item under "Reply Unsatisfactory."

C.R.C. c. 954 — INDIAN ESTATES REGULATIONS

(For text of document, see Appendix H, p. 9H:1.)

Mr. Bernhardt: Members may recall these regulations. The issue was section 14, a provision formerly included, that authorized the minister to deem certain persons to be the widow of a deceased Indian for intestate succession. Typically, this was done to allow common law spouses to inherit.

Following the report of the joint committee in 1999, the government conceded there was no authority for this, and section 14 was revoked. The government also accepted that any complete solution would have to involve introducing a bill to validate the 3,000 orders that had been made under section 14 in the past.

In November 2009, the minister indicated that consultations with the Department of Justice had been completed and that Indian and Northern Affairs Canada was looking for an appropriate opportunity to introduce the validating legislation.

More recently, the department advised that it does not anticipate that validating legislation will be introduced, but they will continue to look for appropriate opportunities to address the validation of these orders. Since that can only be achieved by introducing legislation, I am not sure what the department is trying to say, other than perhaps that it does not intend to do anything.

The committee could seek a concrete plan of action to resolve this, including a definite timetable. In the absence of the department providing that, the only other course of action would be to report the matter to the houses.

Mr. Lee: In one respect, our primary goal as a committee with reference to this matter was accomplished some 10 years ago. We reported; the government revoked. The invalid, illegal or unlawful regulation was removed, in part as a result of our work. What remains is to remediate or to fix the results of the government operating on an unlawful basis; and the fix is not there.

This might make an interesting law school study. Sometimes when you go back to fix something, you find that you create a basis for more litigation. From the current standpoint, there may not be any litigation at all with everyone in the previous pipeline not being aware of it and having accepted the illegal decisions by the minister or the department. That is why I have some sympathy for the department. If we go back to fix it, it could trigger millions of more dollars in litigation. Currently, they appear to be taking the position that they should let sleeping dogs lie.

I support counsel's view that this should be fixed. However, we do not have any idea of what these sleeping dogs are in terms of legal issues. There is the other problem of legislating in the area of the jurisdiction of First Nations. That is difficult.

My head is saying that we should fix it, but my heart is saying that from a practical point of view perhaps we should report it as unfinished business. We could report it as something that we see and then leave it. In that way, we have done our job and responded to our primary goal. This becomes cleanup. We report it and then say that we have done our job.

Other members may have views as well, but we could report the matter as a fix that should be made legally and then take it off our agenda.

Mr. Anders: I realize this file goes back quite some time and the minister not so far. Perhaps asking for an action plan is the way to go.

Mr. Brown: We have a new minister who might not be familiar with the file. It is a good idea that we ask the minister for an action plan.

Senator Moore: Counsel, you mentioned that there are 3,000 cases. Has this lack of process impacted negatively on any of those women?

Mr. Bernhardt: Presumably 3,000 estates have been settled whereby the estate has been distributed pursuant to an unlawful order. People received money that they were not entitled to in law, and people did not get money that they were entitled to in law, presumably.

I know that there was litigation 10 years ago. People challenged those orders in court. I do not know what happened or where that litigation stands or whether it proceeded after the provision was revoked. I do not know how many court cases there were or what has happened subsequently. The committee's concern at the time was that to resolve any doubts, uncertainty and to avoid reopening the matter, Parliament should simply pass legislation deeming all these things to have been done validly and close the books on it. What was done is then put on a legal footing and does not need to be reopened.

On the other hand, Mr. Lee identifies some of the concerns from a bureaucratic perspective in terms of opening up other cans of worms and drawing attention to sleeping dogs, as it were.

The Joint Chair (Senator Martin): Counsel, I heard you say at the end of your explanation on this file that there could be a request for the minister to respond with a plan of action, which is what I heard two members say as well. You then referred to perhaps reporting the matter, which Mr. Lee espoused. There are two potential courses of action.

Mr. Bernhardt: They are not necessarily mutually exclusive.

The Joint Chair (Senator Martin): I thought I heard both.

Mr. Bernhardt: The committee can write to advise that the last response received by the committee seemed very vague and unsatisfactory. We could ask for a more concrete plan of action and time frame. Depending on the response, the committee can decide whether it is happy to continue monitoring the situation or whether it wishes to report the matter. That is entirely the committee's decision.

Mr. Lee: My objective is not to keep prodding the minister. The department's polite response is that "it is not anticipated that the validating legislation will be introduced." They do not want to take a position publicly on stuff that is broken, so they provide a polite response. Obviously there is no plan; they just want to leave it. If it were anything other than that, they would have told us.

If members want to push the minister to go public on it, okay. I was simply proposing that we mop the thing up, do our job, report it and say good luck to everyone.

Mr. Saxton: I concur with Mr. Lee. He has the most experience on this committee, and I agree with what he recommends.

The Joint Chair (Mr. Kania): There is a divergence of views. At present, we could write and ask for an action plan and, subject to that response, report it back, or we could just go directly to reporting it back. Are there any further comments?

Senator Hervieux-Payette: Maybe the legislative route is not the one that will happen. This has been discussed for over 14 years, and I have been here as long as Mr. Lee.

This concerns women. You have to know that most of this problem deals with widows and whether or not they can inherit. In all fairness, both governments, Conservative and Liberal, tried to act in a fair manner so that the women would not lose their inheritances. The problem has not been solved with respect to native bands, and of course there are many. There is no consensus in the native community, which is why we are faced with this situation.

For those of you who have not heard about this on a regular basis, this file started in 1983 and we are in 2010. To be fair, when someone loses a spouse, the money has to go somewhere. I do not think there is a solution at the federal government level. I just wanted to share that with you.

Mr. Lee is right. What can we ask for at this point in time — that all the chiefs around the country make up their minds on this question? That is what is not happening, so that is why the government is in this situation — a Catch-22, as you say in English. They can hardly move legally until the native people come up with clear rules. You cannot have different rules for different tribes. That is the situation.

The Joint Chair (Mr. Kania): In circumstances where the offending regulation has long ago been removed and legislation is required to address the problem, there is nothing that we can do here. I suggest that we report to the house in some detail and leave it to the leadership of the house to determine whether something will be done there. Does anybody disagree with that course of action?

Senator Moore: It sounds good.

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): The next four items on the agenda are under the heading "Part Action Promised."

SOR/2001-316 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (HARMONIZED SYSTEM, 2002)

(For text of documents, see Appendix I, p. 9I:1.)

Mr. Abel: Nineteen points were raised concerning this order, and they all related to drafting issues or French- English equivalency of the description portions of entries to the tariff.

As the May 17 reply indicates, in some cases the language set out in the tariff must be provided without modification and cannot be changed. This is required by the International Convention on the Harmonized Commodity Description and Coding System.

For this reason, it is suggested that satisfactory replies are provided to points 1 and 3, 6 to 8, 10 to 13, and 18 and 19. On all these points, according to the department the language cannot be changed. On point 17, the explanation provided for keeping the wording as is also appears satisfactory.

That leaves seven remaining points, and amendments are promised on all of those. Counsel could follow up in the usual fashion.

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

Hon. Members: Agreed.

SOR/2002-182 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PART VI)

(For text of documents, see Appendix J, p. 9J:1.)

Mr. Abel: Five points were raised in respect of this instrument. On the first point, the department's September 11, 2009, reply seems to suggest that in the future a proper citation will be made in the introductory wording of similar instruments, but a clear confirmation could be sought in this regard.

Amendments are promised to address the remaining issues, points 2 and 3 concerning drafting issues and clarification.

On point 4, an amendment is promised to remove unnecessary discretion granted to the minister to refuse to authorize the use of a light source, notwithstanding that the use of a light source would not be hazardous. Apparently no discretion was intended to be conferred.

The removal of this discretion would also seem to address the question raised under point 5 as to whether the prohibition of bright light usage could unduly infringe the right of free commercial expression.

If members are satisfied, a progress report could be sought as to making those promised amendments.

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

Mr. Lee: Not to be picky, but the last letter from them says the department has taken the points raised into consideration and plans to make the suggested amendments, which is like saying any time in the future. In our correspondence back to them, could we seek some timing clarification?

Mr. Abel: Yes.

Mr. Lee: Thank you.

SOR/2008-124 — BOWIE SEAMOUNT MARINE PROTECTED AREA REGULATIONS

(For text of documents, see Appendix K, p. 9K:1.)

Mr. Bernhardt: Amendments have been promised in connection with all but the first point raised in counsel's July 2, 2008, letter. The remaining point concerns the manner in which internal management zones are established within this protected area.

To give a bit of background, the Oceans Act gives the Governor-in-Council authority to make regulations designating marine protected areas and prescribing measures that can include the zoning of these areas, prohibiting activities within them and any other matter consistent with the purpose of the designation.

Pursuant to this power, these regulations have been made. They designate an area of the Pacific Ocean as the Bowie Seamount Marine Protected Area; prohibit disturbance, damage, destruction or removal of any living marine organism or any part of its habitat or any part of the sea bed within the area; and list activities that can be carried out within the area.

There is also to be a management plan developed for this area, and it will create three internal management zones. The management plan will apparently prohibit activities that are permitted by the regulations in one or more of these zones.

In its July 9 letter, the department suggests that "while regulation is one of the measures that can be used to accomplish . . . conservation objectives, other options exist, including . . . Integrated Fisheries Management Plans (IFMP) pursuant to the Fisheries Act." There are a number of problems with that assertion. The Oceans Act sets out a clear framework for establishing and administering marine protected areas. Parliament clearly provided that the designation and zoning of these areas is to be done by regulation, as is prohibiting activities within the areas.

Second, the Fisheries Act makes no reference to management plans. In fact, these are no more than internal government documents that set out how the department will carry out its responsibilities. Plans like this cannot impose any system of prohibitions and restrictions on citizens. Absent the most express authority, administrative documents cannot be used to make exceptions to legislation.

If activities prohibited by the regulations will be allowed in one or more zones, or activities permitted within the area are to be prohibited in one or more zones, this must be set out in the regulations themselves. These zones would also have to be established by the regulations, and in fact that is the approach that has been taken in the establishment of every other marine protected area.

I would suggest a further letter making this clear be drafted and sent to the department.

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

Hon. Members: Agreed.

SOR/2008-242 — ORDER 2008-87-05-01 AMENDING THE DOMESTIC SUBSTANCES LIST

(For text of documents, see Appendix L, p. 9L:1.)

Mr. Abel: A previously promised amendment to correct a drafting error found in this instrument has now been made by SOR/2010-49.

As for the apparent failure to transmit this instrument for registration within the required time frame, the department advises that transmission to the Privy Council Office was done within three days of making. Apparently, however, it took another 13 days for the Privy Council Office to actually register the instrument. This is quite unusual. As a result, the coming into force of this instrument was delayed. It is up to members, however, if they wish to make a further inquiry to the Privy Council Office.

I would note that SOR/2010-49 was registered within the required time frame.

Mr. Lee: Close it up.

The Joint Chair (Mr. Kania): Closed.

We will now move to the two items on our agenda under the heading "Reply Satisfactory."

SOR/2007-29 — REGULATIONS AMENDING THE PUBLIC SERVICE SUPERANNUATION REGULATIONS

(For text of documents, see Appendix M, p. 9M:1.)

Mr. Abel: The issue here concerned the incorporation by reference, as amended from time to time, of a document issued by the Canadian Institute of Actuaries. The English version of the relevant enabling provision is broad enough to permit an open incorporation by reference, but the French version is not. It was therefore suggested that the French version of the act should be amended.

The department then advised that an amendment to the act passed in 2000 would resolve this problem, but that amendment has never been proclaimed into force.

Since the Statutes Repeal Act now provides for the repeal of legislation that has not come into force within 10 years of receiving Royal Assent, confirmation was sought that the amendment in question would be brought into force before this automatic repeal occurred.

The May 11 reply from the Treasury Board advises that the amendment will be brought into force by the end of this year. This has not yet taken place, so perhaps an assurance should be sought that this will still happen.

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): We will send a letter asking for their commitment, but as well advising them, I would suggest, that this matter will be brought up at the first meeting in 2011 so they know that we are watching.

Mr. Abel: We can do that.

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

Hon. Members: Agreed.

Senator Moore: Why would we let it go into another year; why would we not look for a response by our December 16 meeting?

The Joint Chair (Mr. Kania): We can certainly do that. I suggested holding off because they had promised "by the end of the year," and that seemed to be satisfactory. If you wish to do that, that is fine.

Senator Moore: Okay; all right.

Mr. Lee: Mr. Chair, I am actually on the flip side of the coin from Senator Moore. If they have said they will do it by the end of the year, why do we not just wait until the calendar passes and check in January? It seems redundant to write to them stating that they have said they will do this by the end of the year and would they please give us an assurance that they will do it by the end of the year. They said they would. If they do not, we can catch them in the New Year.

Mr. Bernhardt: I think the concern or perhaps the aim of sending something to them would be more as a gentle reminder because they are running out of time. The 10 years will soon be gone and they will not be able to bring it into force, and then we are back to square one.

Mr. Lee: I see. If that purpose is shown in the letter or reminder, that is great.

Ms. Jennings: In the letter, perhaps we could underline the actual date of the10-year deadline. We could simply mention that we are pleased that they intend to correct the situation by the end of the year and that we are looking forward to reviewing the instruments at the first meeting of the committee in 2011.

Mr. Masse: I think Senator Moore is right. It becomes a moot point in the New Year. We would then be back to square one. Either they will do it or they will not. I do not know whether we can move for disallowance. If we start all over again, it has to go through the house, which is quite a lot of time and money. It is a fairly significant issue.

I know that there a letter of assurance, but we receive a lot of letters assuring many things. It becomes fairly significant because it has to go to the house and through the Senate. It will then maybe sit on another desk for another nine years and ten months. Therefore, I think we need to be heavy on this.

Senator Moore: With regard to the 10-year limitation, what is the end date? Is it December 31, 2010?

Mr. Bernhardt: That is a good question. Do we have it here?

My understanding is that it was, but I would have to check and confirm that.

Senator Moore: If that is the date, then I would like to go back and have a response. You can word it however you wish to the authorities, but we should know by December 16. Otherwise, as other committee members have indicated, we will start the whole process all over again.

The Joint Chair (Mr. Kania): We do not have the exact date right now.

I suggest writing a letter to them requesting a confirmation of their promise, even attaching a copy of their letter, reminding them specifically of the date and underlining it, as Ms. Jennings suggested. I also suggest that we bring this item back at the next meeting so that counsel can advise us of the date and we can decide when we will follow up.

Mr. Masse: I think we should add in the letter that if they fail to do this, it will come at great expense for the House of Commons and the Senate; there is a cost to doing all this if they do not act.

The Joint Chair (Mr. Kania): Agreed. We can certainly add that.

Counsel will let us know what the date is at the next meeting so we can have a full appreciation of it.

Mr. Bernhardt: Yes.

SOR/2009-38 — DIRECTION AMENDING THE DIRECTION APPLYING THE AUDITOR GENERAL ACT SUSTAINABLE DEVELOPMENT STRATEGY REQUIREMENTS TO CERTAIN DEPARTMENTS

(For text of documents, see Appendix N, p. 9N:1.)

Mr. Abel: This direction cited for its enabling authority a statutory provision that had in fact been repealed. The transitional provisions relating to the repeal, however, do provide for the direction to now be amended pursuant to section 11(3) of the Federal Sustainable Development Act. All that was requested was an assurance that future amendments would recite the proper authority.

The final paragraph of the April 19 reply confirms that this will be so. The preceding portion of the reply appears to suggest, somewhat obliquely, that the source of the error lies in the Privy Council Office or the Department of Justice. In any event, since the requested assurance has been provided, this file can be closed.

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

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): We move now to agenda items under the heading "Reply Satisfactory (?)."

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

(For text of documents, see Appendix O, p. 9O:1.)

Mr. Bernhardt: Following the committee's last consideration of this file, clarification on three points was sought. I can go through and detail those points in my response. The bottom line would seem to counsel that the replies are satisfactory and can be accepted in the circumstances. If members concur, the files can be closed. I do not know if anyone wants further details.

The Joint Chair (Mr. Kania): Does someone not want to close the file? Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): It is closed.

SOR/2002-354 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY, 2002-1 (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix P, p. 9P:1.)

Mr. Bernhardt: An amendment to correct a minor discrepancy between the two versions of a definition in the Fish Inspection Regulations was promised. Eventually the Canadian Food Inspection Agency wrote to advise the committee that the amendments had been made. This turned out to not be the case.

A page of its April 7 letter is missing from the materials but was in the supplemental package that was forwarded to members earlier this week. The committee was told that because of concerns relating to incorporation by reference, the definition in question is to be revised completely as part of a broader set of amendments to the regulations. This does not explain why they earlier claimed the amendment had been made, nor is there any indication as to when the proposed amendment is to now be made. Perhaps the agency should be asked to provide an anticipated time frame.

The Joint Chair (Mr. Kania): Perhaps we should also ask them why they advised us that it was previously taken care of.

Mr. Bernhardt: We can ask again.

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

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

(For text of documents, see Appendix Q, p. 9Q:1.)

Mr. Abel: The two issues which were again returned to the department under this file relate to the incorporation by reference, as amended from time to time, of the NAFO measures, which are made by the North Atlantic Fisheries Organization. The measures have been renumbered more than once since the making of this instrument and as a result the references are now inaccurate.

In addition, the committee questioned whether the incorporation of these provisions is actually authorized under the act. The department did not respond directly to that latter issue, but it indicates it is considering avoiding the use of incorporation by reference where possible to avoid the problem of these inaccurate references. Perhaps this can be taken as implied agreement on the other issue. In any case, a letter could be drafted seeking confirmation and more details as to the removal of these references.

The Joint Chair (Mr. Kania): What do they mean by "where possible"?

Mr. Abel: That is what we mean by getting more details. We would like to follow up on what they intend to do in that respect.

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

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): We will now move to the agenda items under the heading "Progress."

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

(For text of documents, see Appendix R, p. 9R:1.)

Mr. Bernhardt: Amendments to the regulations to resolve the concerns raised were forecast to be made over the summer. In fact, the amendments were pre-published in Part I of the Canada Gazette on August 28 with a 45-day notice and comment period.

An amendment to a related provision of the Criminal Code itself has also been agreed to. It was included in Bill C- 31 in the last session. That bill died on the Order Paper. The department indicated it expected the bill to be reintroduced. As of yet, this has not happened.

At this point, I suppose the department could be asked if final publication of amendments to the regulations is imminent, as well as whether they still expect that Bill C-31 will be reintroduced.

Hon. Members: Agreed.

SOR/2000-416 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

SOR/2003-409 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

(For text of documents, see Appendix S, p. 9S:1.)

Mr. Abel: As per the department's last letter of April 7, amendments to address four outstanding issues were expected to be made this fall. At this point, I propose drafting a letter to see whether that schedule remains valid.

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

Hon. Members: Agreed.

SOR/2006-354 — MUSQUASH ESTUARY MARINE PROTECTED AREA REGULATIONS

(For text of documents, see Appendix T, p. 9T:1.)

Mr. Abel: The promised amendments were expected to be made last month, although as of yesterday they were still not published. We could draft a letter to the department to determine the current state of affairs.

The Joint Chair (Mr. Kania): They said it would be at the end of October 2010, so they have just missed the time frame.

Hon Members: Agreed.

SOR/2007-77 — PACIFIC FISHERY MANAGEMENT AREA REGULATIONS, 2007

(For text of documents, see Appendix U, p. 9U:1.)

Mr. Abel: As with the last file, amendments were expected to be made at the end of October and have not yet been published. We could follow up.

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

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Next on our agenda our items under the heading "Progress (?)."

C.R.C. c. 1551 — TEXTILE LABELLING AND ADVERTISING REGULATIONS

(For text of documents, see Appendix V, p. 9V:1.)

Mr. Bernhardt: A number of concerns, including several questions of vires, are to be addressed when amendments to the regulations are made. Public consultations on proposed amendments were carried out in 2007.

In April 2008, the Competition Bureau reported that it was reviewing the recommendations made following evaluation of the responses to the consultation. Later that September, the committee was told that a regulatory impact analysis statement had been prepared but that the process would be delayed until the new government was formed. In June 2009, the bureau again advised that the reassessment had been completed and that they had returned to their work to proceed with the amendments as soon as possible. The following November, the bureau restated that work had resumed. Last April, the committee was told that the bureau continues to develop proposed amendments to resolve the committee's concerns.

If things are moving ahead, they are not doing so very rapidly. Perhaps the Competition Bureau should be asked for the anticipated completion date. The committee could also ask the bureau to agree to proceed with the committee's amendments independently if these delays are due to the other amendments that are to be included in this bigger package.

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

Mr. Lee: The file is seven years old and counsel's observations are accurate. It would be nice if there were some way to firm this up a bit because it is really sliding around. We are used to this.

Senator Moore: We will draft a letter. What will we say in the letter?

Mr. Bernhardt: At this time, we could ask when they anticipate completing these amendments. As well, we could suggest that if these delays are being caused by other amendments to the bigger package, perhaps they could consider sifting out the committee's amendments and proceeding with them as a separate initiative.

Senator Moore: You could point out that this file has been open for seven years and that perhaps they could reply within 30 days. We should show some sense of timeliness or urgency if we are serious about it.

The Joint Chair (Mr. Kania): Why do we not advise them that this matter will be brought back before the committee whenever the next meeting is, past 30 days from now?

Senator Moore: There should be an end date on it.

Hon. Members: Agreed.

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

(For text of documents, see Appendix W, p. 9W:1.)

Mr. Abel: The one remaining matter on this file concerns section 7 of the regulations as explained in detail in the note included in today's materials. Correspondence received over the last two years has advised that the minister has been considering whether to proceed with an amendment to the act or to the regulations to resolve the committee's concern.

More recently after the note was prepared, Bill C-32 has been introduced. If passed, this bill would address the committee's concern, and new regulations would be made. If that happens, this file could then be closed.

In the meantime, it is up to members of the committee to decide whether they want to wait to see what happens with the bill.

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

Mr. Lee: The bill is before the house.

The Joint Chair (Mr. Kania): Why do we not bring this item back and diarize it for the mid-December meeting. We will know by then if there is progress.

Mr. Abel: The bill is at first reading.

Senator Moore: Is Bill C-32 a copyright bill?

Mr. Lee: Mr. Chair, the bill concerns amendments to the Copyright Act. It is before the House of Commons. I believe that it has had debate at second reading. Clearly, the house is engaged on that bill, so we will just have to wait.

Mr. Bernhardt: We will monitor the situation.

Mr. Lee: The fix is in the bill, apparently, which is great. I regard that as progress.

Senator Moore: Do we want counsel to bring it back at the first meeting in the New Year? Does that make sense? I am not clear on what we are doing.

The Joint Chair (Mr. Kania): I suggest a timeline so that it would come back before the committee.

Mr. Lee: Mr. Chair, if the repair work is contained in the proposed legislation that is before the house, all we have to do is monitor the Order Papers of the House of Commons and the Senate to track its progress. There is no point in bringing it back to committee.

Counsel might feel that an interim step would encourage the House of Commons and the Senate to deal with the bill. I would follow the Order Paper and bring it back in the ordinary course.

Mr. Saxton: I agree. Let us bring it back after the bill has been dealt with.

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

Hon. Members: Agreed.

SOR/2005-149 — EXPORT AND IMPORT OF HAZARDOUS WASTE AND HAZARDOUS RECYCLABLE MATERIAL REGULATIONS

(For text of documents, see Appendix X, p. 9X:1.)

Mr. Abel: Amendments to these regulations initially forecast to be made this year are now expected to only be pre- published in 2010, which has yet to take place. Perhaps the department should be asked if this time frame still stands.

An amendment to Part 7 of the Canadian Environmental Protection Act, 1999, has also been promised. There has been some indication in connection with another file that amendments to that act may be introduced in the near future. In any event, perhaps an inquiry as to when the promised amendment can be expected to be introduced is also in order.

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

Senator Moore: They write, "We anticipate that these amendments will be published . . . in 2010." You might point out that inasmuch as we are coming to the end of the year, further to their letter of December 30, will it be done?

The Joint Chair (Mr. Kania): Okay.

CANADIAN FOOD INSPECTION AGENCY FEES NOTICE

(For text of documents, see Appendix Y, p. 9Y:1.)

SOR/91-594 — PLANT BREEDERS' RIGHTS REGULATIONS

(For text of documents, see Appendix Z p. 9Z:1.)

SOR/2004-195 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (REAR IMPACT GUARDS)

(For text of documents, see Appendix AA, p. 9AA:1.)

Mr. Bernhardt: Under "Action Promised," four amendments are promised in connection with the three instruments listed. The progress of these will be followed up in the usual fashion after the meeting.

SOR/2010-78 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

(For text of documents, see Appendix AB, p. 9AB:1.)

SOR/2010-108 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE NUCLEAR SAFETY AND CONTROL ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix AC, p. 9AC:1.)

Mr. Bernhardt: These two instruments under "Action Taken" reflect the making of 18 amendments that were promised to the committee.

SOR/2010-37 — REGULATIONS AMENDING THE HAZARDOUS PRODUCTS (KETTLES) REGULATIONS

SOR/2010-44 — REGULATIONS AMENDING THE CANADIAN PAYMENTS ASSOCIATION ELECTION OF DIRECTORS REGULATIONS

SOR/2010-46 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2010-50 — ORDER 2010-105-03-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2010-51 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2010-52 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(b)) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2010-2

SOR/2010-53 — ORDER AMENDING SCHEDULE I TO THE HAZARDOUS PRODUCTS ACT (BISPHENOL A)

SOR/2010-58 — HAITI DEEMED DIRECT SHIPMENT (GENERAL PREFERENTIAL TARIFF AND LEAST DEVELOPED COUNTRY TARIFF) REGULATIONS

SOR/2010-61 — REGULATIONS AMENDING THE CANADA CORPORATIONS REGULATIONS

SOR/2010-62 — G20 SUMMIT PRIVILEGES AND IMMUNITIES ORDER, 2010

SOR/2010-63 — REGULATIONS AMENDING THE MARIHUANA MEDICAL ACCESS REGULATIONS

SOR/2010-64 — ORDER AMENDING THE ORDER APPROVING BLOOD SAMPLE CONTAINERS

SOR/2010-65 — TELECOMMUNICATIONS FEES REGULATIONS, 2010

SOR/2010-70 — REGULATIONS AMENDING THE BANK HOLDING COMPANY PROPOSAL REGULATIONS

SOR/2010-73 — REGULATIONS AMENDING THE TEXTILE LABELLING AND ADVERTISING REGULATIONS

SOR/2010-74 — REGULATIONS AMENDING THE REGULATIONS EXCLUDING CERTAIN INDICTABLE OFFENCES FROM THE DEFINITION OF "DESIGNATED OFFENCE"

SOR/2010-75 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

SOR/2010-77 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER

SOR/2010-80 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SODA CREEK)

SOR/2010-86 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS

SOR/2010-87 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS

SOR/2010-97 — RULES AMENDING THE BANKRUPTCY AND INSOLVENCY GENERAL RULES (MISCELLANEOUS PROGRAM)

SOR/2010-100 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2010-104 — ORDER AMENDING THE ORDER DECLARING AN AMNESTY PERIOD (2006)

SOR/2010-113 — REGULATIONS AMENDING THE BRITISH COLUMBIA SPORT FISHING REGULATIONS, 1996

SOR/2010-114 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1595 — SCHEDULE F)

SOR/2010-116 — RADIOCOMMUNICATION ACT (SUBSECTION 4(1) AND PARAGRAPH 9(1)(b)) EXEMPTION ORDER (SECURITY, SAFETY AND INTERNATIONAL RELATIONS), NO. 2010-4

Mr. Bernhardt: Under "Statutory Instruments Without Comment" are 27 instruments that have been reviewed by counsel and found to comply with all of the committee's criteria.

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

Is there anything else?

(The committee adjourned.)

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