---

Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 7 - Evidence, June 17, 2010

---

OTTAWA, Thursday, June 17, 2010

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

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

[English]

The Joint Chair (Mr. Kania): This is our last meeting before the summer. Let us begin.

SOR/2006-242 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

(For text of document, see Appendix A, p. 7A:1.)

Peter Bernhardt, General Counsel to the Committee: As explained in the note that members have before them this morning, the minister's April 16 reply deals with three outstanding matters. The first concerns subsection 3(2), pursuant to which the minister may refuse to add or to delete a patent from the register of patents whether or not it meets the criteria under section 4.

The minister's reply appears to reinforce the committee's conclusion that this discretion serves no purpose other than to shield the minister's decision from judicial review. The only justification that has been provided for this approach is that determining whether or not a patent should be on the register can be difficult and complicated. However, the effect of providing the minister with this discretion is that a decision that is wrong would generally not be subject to review by the courts.

The second point deals with paragraphs 6(7)(a) and (b). Under the English version of these provisions, the Federal Court may order a manufacturer or the minister to perform certain actions. The French version, however, uses the word ``ordonner'' with respect to a manufacturer and ``enjoindre'' with respect to the minister. I should note in passing that at one point in the note, ``enjoindre'' was misspelled; I think it was anglicized at some point.

Based on the presumption that different words in legislation carry different meanings, and also on the principle that everyone should be treated equally under the law, the committee determined that one word should be used consistently. It suggested ``enjoindre.''

The minister's letter suggests that everyone agrees that the words in question bear the same meaning, so it is not a problem. In earlier correspondence, however, the department expressly argued to the contrary in an attempt to justify the maintenance of this current distinction.

The final point concerns a transitional provision providing that a submission made by a generic drug manufacturer prior to the coming into force of these amendments is deemed to have been made on the date the amendments came into force. The idea is to apply the new provisions — which contain some provisions that relieve manufacturers from certain requirements — to pre-existing submissions that had not yet been completed. This has been done by reaching back into the past to replace the actual filing date of a submission with the date that these amendments came into force. It creates a legal fiction that the submissions did not exist until the coming-into-force date of the amendments.

The minister's reply suggests that in this case, the deeming clause means simply that you should treat the application as if it was made at a later date. This explanation, however, describes exactly what the unauthorized retroactive effect of this provision is.

For the purposes of the law, the real date of the submission no longer exists. If a manufacturer had not yet filed information, they were relieved of their requirement to do so that pre-existed. If you had already filed the required information, all of a sudden you were deemed to have done this for no good reason.

What should have been done was simply to specify that the new provisions applied to pre-existing submissions as of the date these new regulations came into force. An existing obligation that had not been satisfied would cease as of that date and there would be no new obligation. They went one step further by changing past facts, creating a fiction that the submissions had been filed on some other date than it actually was.

Whether this may or may not create legal consequences, either for manufacturers or for the minister, is difficult to say. The patent medicines industry is complex and very litigious. At the very least, it might be worth asking what the potential effect of this transitional provision being declared invalid would be. If there could be practical consequences, it might be advisable for Parliament to retroactively validate the relevant provision.

I suggest another letter to the minister pursuing each of these points.

The Joint Chair (Mr. Kania): Senator Wallace, there was a letter addressed to you here.

Senator Wallace: Yes. I was not as persuasive as you and I thought.

I think a further letter would be appropriate. Mr. Bernhardt, I would suggest that we be as specific as we possibly can be — and as you always are — in addressing the response that we received from the minister. For example, on the issue involving subsection 3(2), the discretionary matter, the minister says that ``the nature of this power is a policy matter.'' I guess his conclusion of that supports the discretion that is granted.

In our letter back in October, on the second page we referred to a response that we received from their general counsel where he spoke of this matter being ``judicial or quasi-judicial in nature'' and therefore supporting the discretion.

Perhaps we could address both of those issues specifically in the response. Rather than just saying generally, ``We do not agree,'' perhaps we could tie that in. If we have any research supporting our position on those, that would be helpful.

Similarly, I have thoughts regarding the response from the minister dealing with section 7, where he says ``the word deem in this provision means to treat as if'' and to treat as if ``for the purposes at hand.'' Again, it would help support our position if we had some research around ``deeming'' and what that actually means.

Once again, I think a letter would be the way to go. Let us button it down as tight as we can and, hopefully, make some ground.

Mr. Szabo: We have to carry on with this, but I have a serious problem with the contradiction between the minister's view and the review that has been done, as articulated in the note we have.

The legislation says ``may'' put it into the registry. If I read the letter correctly, it states that the minister may refuse to add a patent to or delete one from the registry, regardless of whether the patent actually meets the criteria. That is not right. That is the issue. There is no discretion; either you do or you do not meet the criteria. The criteria are part of the legislation or the regulations. Let us follow them. If they are not, then we have a problem of non-compliance with the regulations. I would stop there. I do not care whether one says it is not subject to judicial reviews, so it does not matter. No. Our job is with regard to the regulations.

I think the allegation here is serious. We have actually put down on paper here that the reason it is done like this is to deliberately shield from a judicial review, which may affect discretion, which may affect a third party, which may lead to a conflict of interest. It is very serious.

I hear what the senator is saying; we do have to deal with these. However, we have to decide whether we will discharge our responsibility with regard to the intent and the application of regulations, and they are not discretionary. If they are regulations, they must be applied.

The allegation that it has been done this way likely to shield the matter from judicial review should raise a red flag. If you allow it to go forward, it sets an indication that you get a lot more latitude in the regulations than we would care to support.

The Joint Chair (Mr. Kania): What I am hearing is that we write a strongly worded letter with analysis and reasons.

Senator Wallace: I agree with Mr. Szabo. It is a serious matter. It is not that we want to prolong this, but we have to go this next step. We have to put the ball back in their court. We will see what response we get. However, I completely agree with Mr. Szabo that it is to be taken seriously, and the letter should reflect that.

The Joint Chair (Mr. Kania): Are there any other comments? A strongly worded letter with much analysis will be written.

Is it agreed?

Hon. Members: Agreed.

[Translation]

SOR/2008-228 — REGULATIONS AMENDING THE SEEDS REGULATIONS

(For text of document, see Appendix B, p. 7B:1.)

Mr. Rousseau: Paragraph 3(1)(b) of the Seeds Act prohibits the import of varieties of seeds that are not registered in the prescribed manner. The Regulations state that a seed of any variety is exempt from the operation of this prohibition if it is imported into Canada for one of the purposes mentioned.

The Regulations, therefore, provide for an exemption to paragraph 3(1)(b) of the act. The correspondence deals with the validity of this exemption. In order for this exemption to apply, it must fulfill the condition described, namely that a seed be imported for research purposes. This is a conditional exemption.

Under paragraph 4(1)(f) of the Seeds Act, the Governor-in-Council may make regulations, and I quote the act:

Exempting any seed or any person from the operation of all or any of the provisions of this act.

As explained in the note, the position of the committee is that this enabling provision does not allow subsection 41(1) of the Regulations to be passed because the committee always distinguishes between an exemption and a conditional exemption.

Parliament remained silent on the matter of imposing conditions. We can therefore conclude that the power under paragraph 4(1)(f) allows exemptions to be made, but it does not allow conditional exemptions. However, the Agency emphasizes that the prohibition in paragraph 3(1)(b) of the act applies, except as provided by the regulations.

In the view of counsel for the committee, this provision must be seen as granting regulatory authority that is distinct from the regulatory power to exempt. This authority combines with paragraph 4(1)(l) of the act under which the Governor-in-Council may make regulations ``generally, for carrying out the purposes and provisions of this act.'' So, by passing section 41 of the Regulations, the Governor-in-Council carried out the purposes and provisions of this act. More specifically, it has activated the legislative provision under which, ``except as provided by the regulations,'' importing seeds of varieties that are not registered is prohibited. Section 41 of the regulations sets out the conditions under which these seeds may be imported. Seen in that light, the section is not illegal.

If the committee agrees, the file may be closed. However, before closing the file, we should write again to the agency to reinforce the committee's position on conditional exemptions and to suggest that the provision of the Regulations should not have been drafted in the form of a conditional exemption since no authority is granted to make such exemptions. The regulations should have been worded in such a way as to grant permission to import under specific conditions.

But, in the final analysis, drafting the regulations either way would not change anything from a practical standpoint. So, the committee could defer to the agency on whether or not the wording of the regulations should be amended.

[English]

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

Hon. Members: Agreed.

SOR/2010-28 — ORDER EXEMPTING BANDS FROM THE OPERATION OF SECTION 32 OF THE INDIAN ACT

(For text of document, see Appendix C, p. 7C:1.)

Mr. Bernhardt: Subsection 32(1) of the Indian Act requires any transaction whereby a band or a member of the band purports to sell, barter, exchange, give or otherwise dispose of cattle or other animals, grain or hay, root crops, plants or their products from a reserve in Manitoba, Saskatchewan or Alberta to a person who is not a member of that band to be approved by the superintendent. The minister also has a power to grant exemptions from this requirement.

Not surprisingly, this provision has not been enforced for some time, and it has been concluded that it no longer serves a purpose and would be open to legal challenge. The solution adopted was to make this order. It exempts all Indian bands and their members in the three provinces from subsection 32(1). The result is the same as if that provision had been repealed by Parliament.

The power to make regulations granting exemptions from a statute is a significant departure from fundamental principles because it allows Parliament's delegate to give dispensations from the law enacted by Parliament itself. This being so, provisions conferring this exceptional power have to be read narrowly and strictly interpreted. When Parliament enacted the section 32 exemption power, presumably it intended that this power would be for use in specific exceptional circumstances and not as a means to effectively amend the Indian Act by rendering a provision entirely inoperative.

If it has been determined that this requirement in section 32 is no longer appropriate, then Parliament should be asked to repeal the provision. The exemption power should not be used as a shortcut to removing section 32 from the act. Obviously, there are questions as to the legality of the approach taken.

The note prepared for members also suggests that the order contravenes two other scrutiny criteria of the committee: scrutiny criterion No. 12, in that it amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment; in addition, the use of an exemption power to nullify an entire provision in the statute could be seen to make an unusual or unexpected use of the powers so as to contravene scrutiny criterion No. 11. If the committee concurs, perhaps an undertaking should be sought from the Minister of Indian Affairs and Northern Development Canada to introduce legislation to repeal section 32 of the Indian Act as soon as possible.

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

Mr. Albrecht: I am curious as to why we do not have any record of correspondence with Indian and Northern Affairs Canada, INAC, on this issue. It would seem to me that our normal practice is to correspond with the department or bring it to the attention of the minister and then back here, rather than directly to the minister. That would be the logical approach, unless there is some legal reason why that should not be done.

Mr. Bernhardt: You are quite right. Typically, we would find a problem with a regulation; we would write to the department and go back and forth; and, eventually, the committee would contact the minister. In a case where the department said it would amend the act, it would be followed up with the minister because it is the minister who must table proposed legislation.

When we looked at this file, the only solution possible is to amend the act to revoke this provision. That being the case, it seemed that since the recommendation would be to write to the minister at first instance, that should come to the committee first because we do not write those letters; the joint chairs of the committee write those letters. That is why in this case we decided it would be best to bring it to the committee first before anything else had been done to see whether that was the approach the committee wished to take.

Mr. Albrecht: On that point, we have the entire summer for this. If this were written in the next week to the department and brought to the minister's attention by early fall, we should have an indication from the department as to their recommendations to the minister and possible potential future legislative changes proposed. We could go either way on this.

Senator Poirier: Could you tell me about the impact and how this will affect the First Nations communities? Have they been consulted or are they aware of this?

Mr. Bernhardt: I assume they would have been consulted, because in general First Nations would be consulted on anything that was relevant to them.

In this particular case, we were stunned to see that this provision was still in the Indian Act. If you were on a reserve out west and wanted to sell a bale of hay to someone who was not a band member, you had to get the government's approval to do so. Obviously, no one has been applying this provision for some time, and it is difficult to imagine anyone objecting to deleting it from the statute. The difficulty is that they tried to nullify the provision without amending the Indian Act.

Since the provision evidently was not being applied at all in any event, the practical significance for a band member in Saskatchewan, for example, would be nil.

Senator Poirier: I agree with you that there probably would not be any complications, but, out of respect for the First Nation community, I would like to follow up to ensure that they have been consulted and are aware that we are doing this out of respect for the First Nation people.

Mr. Bernhardt: Mr. Rousseau points out that the impact analysis statement accompanying the exemption order did mention consultations. Amending the Indian Act is always fraught with peril, as everyone knows. In this case, however, it is hard to imagine anyone voicing an objection, in particular if the bands and the individuals who might have been affected by this were consulted and were on side with the exemption order. It is difficult to imagine any problem.

Senator Poirier: You feel confident that they have been consulted.

Mr. Bernhardt: I assume that before any proposed legislation is tabled, they will be consulted again.

Mr. Szabo: Does this mean that if we find any such legislative provisions in any act, we would take the same position? If a provision is not used and does not seem to be relevant to the real world, we would get rid of it. I thought the important point on this file was that the existing provision might lead to or be subject to a Charter challenge. That is the more important point. The fact that it is not operative, that no one respects it or does anything is not a good reason to amend the legislation.

Mr. Bernhardt: You make a good point. We assume, for the sake of argument, that because of the way this was done, this exemption order is not lawful and you still have section 32 in place. Whether it is being enforced, presumably people are contravening it every day. That does not mean anyone will be charged, but technically there will be contraventions in that provision. The unusual aspect here is the exemption, which is not normally found, that wipes the whole provision out.

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

Hon. Members: Agreed.

SOR/94-785 — RETIREMENT COMPENSATION ARRANGEMENTS REGULATIONS, NO. 1

(For text of document, see Appendix D, p. 7D:1.)

Mr. Bernhardt: Two points were pursued following the committee's last consideration of these regulations. The reply received on the second point would seem to be satisfactory. That being the case, the only matter of contention remaining is the question of the validity of section 12(2) of the regulations. These regulations apply to deputy heads that leave the public service and then make an application to have a subsequent period considered as pensionable service.

In dealing with any unpaid contributions that pertain to these periods, section 12(2) states that if after 60 days an amount payable has not been paid, that amount should be deducted from any benefit that is or becomes payable in respect of that person. Treasury Board claims this provision is authorized by section 15 of the Special Retirement Arrangements Act. Section 15 provides that every person who is subject to an arrangement is required to contribute by reservation from the person's salary or otherwise, in the manner and under the circumstances prescribed by the regulations.

The committee rejected this, making a distinction between a regulation setting out how you make a contribution and a regulation setting out how unpaid amounts — that is, debts — are to be collected. This is reinforced by the fact that elsewhere in this act, when Parliament wanted to authorize deductions from benefits, it clearly stated so.

In its January 20 letter, Treasury Board seems to be claiming that since the Public Service Superannuation Act expressly authorizes this type of deduction, then regulations under the Special Retirement Arrangements Act must be able to do the same, even though the latter act is silent on the subject. It also seems to argue that the provision in question makes administration of the Income Tax Act easier. As legal arguments, both of these seem tenuous, to say the least.

Finally, they claim that because they see a gap in the recovery provisions pertaining to unpaid amounts generally, including in the Financial Administration Act, in effect it falls to the Governor-in-Council to bridge this gap by making regulations under the Special Retirement Arrangements Act. This is not much more than an assertion that there must be a power to make a regulation because Treasury Board thinks there should be such a regulation.

If members concur, perhaps it would be appropriate at this point to write to the minister directly, explaining the reasons for which section 12(2) is ultra vires and suggesting that if it is absolutely necessary for amounts payable to be deducted from benefits, as section 12(2) provides, then Parliament should be asked to amend the act itself.

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

Hon. Members: Agreed.

[Translation]

SOR/2007-44 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON IRAN

SOR/2006-287 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON THE DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA

(For text of document, see Appendix E, p. 7E:1.)

Mr. Rousseau: As you just said, Mr. Chair, we are going to look at both SOR/2007-44 and SOR/2006-287. To make things easier, we are going to start with SOR/2006-287.

On April 14, 2009, counsel, as per the committee's request, wrote another letter to the department in which four points were raised. Upon examination of SOR/2009-232, the committee will see that the problems raised with respect to two of those points were solved. As to the other two points, they are similar to points 2 and 3 of the note prepared by the committee on SOR/2007-44.

The committee's decision will apply in both cases, but I would like to look at this last file for now. When the committee last considered this file, counsel was asked to seek further advice from the department concerning five points. Counsel wrote back to the department on April 30, 2009, and received a response on October 26, 2009. I will summarize those points as presented in the note. Counsel's recommendation is to write back to the department about each of those points.

First, in point 2, a designated person for the purpose of these Regulations is ``a person designated by the Security Council of the United Nations or the Committee of the Security Council of the United Nations.'' Pursuant to section 9 of the regulations, such persons are subject to significant economic sanctions. Section 15(1) allows a designated person to petition the Minister of Foreign Affairs to no longer be so designated. The minister may then decide whether to submit that petition to the Security Council or the Committee of the Security Council.

The department's November 12, 2009 reply states that the decision whether to submit the petition is made on a case- by-case basis and that it would not be possible to expressly set out the factors that the Minister must consider.

The minister's role is limited to deciding whether a petition concerning a person's designated status should be put before the actual decision-maker. Given that a designated person is deprived of their rights and liberties, the decision as to whether the person's petition reaches the Security Council or its committee should not be dependent upon administrative discretion. Expressly setting out the factors to be considered by the minister would not impair his ability to exercise his authority.

Point 3 has to do with the timeframe within which the minister must make a decision, when, for example, a person claims that he/she is not a designated person and asks the minister to issue a certificate. The provisions require that the minister issue certain certificates within 15 days of receiving an application, but it does not require the minister to make a decision within that time frame. The department states that this requirement is implicit, but says nothing about the amendment proposed by the committee in the letter of April 30, 2009.

As to point 5, we see from the note that, based on a similar provision in other Regulations, the department already agreed in June 2009 to amend the provision in order to clarify the wording. The same solution should have obviously been adopted in this case too.

In point 7, the committee asked about the meaning of the term ``in-transit authorization.'' The department's reply merely repeats the definition provided in its earlier letter of April 9, 2008, and does not indicate whether the meaning of this term is well-known by persons governed by these regulations. If that is not the case, perhaps the definition should be set out in the regulations.

Finally, point 8 is really about the wording. The provision requires a person applying for a certificate under section 20(1) of the regulations to provide a declaration that the information provided is ``true, complete and correct.'' At the committee's suggestion, the department agrees to remove the word ``true'' on the basis that it is redundant, but its reply does not address the committee's concern that requiring such a declaration is not the same as actually requiring complete and correct information to be provided in an application.

Actually, the provision of false or incomplete information would not contravene any existing provision and may not therefore be subject to penal proceedings under the act, even if the applicant declared that the information is complete and correct. Perhaps, in addition to again seeking a reply on this issue, an assurance should be sought that no person has been subject to prosecution for failing to provide complete and correct information and no person will be subjected to such proceedings unless the regulations are amended to actually require that complete and correct information be provided on an application for a certificate.

If the committee is agreed, committee counsel will write to the department regarding these five points.

Mr. Asselin: Agreed.

[English]

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

Mr. Albrecht: I totally agree with that decision, but would it not make sense also to sit down with someone and explain? Our counsel knows this inside out; I am sure the people they are communicating with might not be as up to date on all those technicalities. Having a half-hour conversation with the person to whom you are writing might save a lot of time. It is just a suggestion.

Mr. Bernhardt: We can always make the offer.

Mr. Albrecht: I interpret that to mean the offer is not always accepted; is that right?

Mr. Bernhardt: Sometimes yes, sometimes no.

Mr. Szabo: My sense is that this is the starting point of a long exchange of letters — déjà vu all over again. It is starting at a fairly nice level, but the response was so, ``Of course, you understand.'' They are so certain about the position of the department, and so are we. This is a long way to go to bring them back together again.

I would encourage us to perhaps short circuit the process and say we have to deal with these things one at a time. Let us prioritize them a bit. There is at least one that it would be nice to get a resolution on. If you can get that domino tipped over, I think the other stuff will come a little easier.

The Joint Chair (Mr. Kania): So you will suggest a meeting as well?

An Hon. Member: Yes.

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

Hon. Members: Agreed.

[Translation]

SI/2008-85 — CERTAIN FEES RELATING TO EXPORT CERTIFICATES REMISSION ORDER

SI/2008-86 — CERTAIN FEES RELATING TO FEEDER CATTLE IMPORTED FROM THE UNITED STATES REMISSION ORDER

SI/2008-87 — CERTAIN FEES RELATING TO REGISTERED ESTABLISHMENTS REMISSION ORDER

(For text of documents, see appendix F, p. 7F:1.)

Mr. Rousseau: The Governor-in-Council used these three orders to grant fee remissions to the tune of over $5 million. Correspondence exchanged on this issue regards two points.

Concerning our request that it provide us with its reasons for granting these remissions, the agency's responses in the June 4, 2009, and April 14, 2010, letters are satisfactory in the opinion of committee counsel, and the committee could accept them.

In the case of the other point, the agency's responses are incomplete, and the committee could therefore deem them unsatisfactory. Each order remits fees required by the Canadian Food Inspection Agency Fees Notice. The notice was issued by the minister pursuant to the Canadian Food Inspection Agency Act.

Under this act, the minister can remit the payment of fees fixed pursuant to the act. Therefore, the minister has the power to remit fees referred to in the three orders the committee is currently examining. However, these three orders were passed by the Governor-in-Council by virtue of the general power to remit delegated to him under the Financial Administration Act.

Therefore, committee counsel asked the agency the following question: Since two acts of Parliament delegate to two different authorities a power to remit fees paid pursuant to the Notice, why was it decided that the Governor-in- Council and not the minister would grant this remission?

In its June 4, 2009, letter, the agency stated that it decided to go with the Financial Administration Act because this act, and I quote:

Outlines a clearly defined procedure for remitting fees.

Committee counsel wanted to know if this meant that the minister would never exercise the power delegated to him by Parliament. The agency's response sent on April 14, 2010, was not especially enlightening. It stated that the minister could eventually remit the fees he fixed under the Canadian Food Inspection Agency Act, but it did not say how the minister would decide to exercise the power vested in him by this act.

Perhaps it would be appropriate to insist that the agency explain under what circumstances the minister could exercise his power. It makes sense that the minister would be responsible for remitting fees paid under the Canadian Food Inspection Agency Act. This may enable us to avoid potential disputes and confusion when it comes to, for instance, remission amounts.

If the committee is agreed, counsel will write to the agency regarding this issue.

[English]

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

Hon. Members: Agreed.

SOR/2000-111 — CANADIAN AVIATION SECURITY REGULATIONS

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

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

(For text of documents, see Appendix G, p. 7G:1.)

Mr. Bernhardt: Twelve previously promised amendments have now been made to these regulations. Some others remain outstanding, and a progress report on those would be in order.

In addition, following the committee's consideration of this file, counsel wrote again to the department concerning five unresolved points. The reply from Transport Canada on December 29, 2009, promises amendments in relation to points 11, 14 and 16, as numbered in the correspondence. In connection with point 18, the department says it is considering the removal of paragraph 52.2(3)(b) of the regulations.

The remaining point, then, is No. 19. It concerns provisions under which an air carrier, operator of an aircraft, aerodrome operator or screening authority has to take different actions in response to a threat or a specific threat. The distinction between these two terms is not set out in the regulations but, rather, in confidential security measures that are circulated to the people subject to the regulations.

The department's reply explains that a ``threat'' is a declaration of intent to cause harm, and a ``specific threat'' is a threat that meets certain criteria respecting the type of information in the threat and the manner in which the threat is conveyed.

As to why the meaning of these terms is considered confidential, the department indicates that disclosure could lead to these criteria being exploited by individuals seeking to interfere with civil aviation. The department also notes in its letter that security measures setting out the criteria are generally protected from disclosure under section 4.79 of the Aeronautics Act. Section 4.79, however, does not apply where disclosure is otherwise required by law and it does not prevent disclosure by the person who actually made the measure.

A security measure may only relate to a matter that could be the subject of an aviation security regulation. A security measure applies in lieu of or in addition to an aviation security regulation, and it is an offence under the act to contravene a security measure.

It seems to follow, then, that a security measure is a statutory instrument as defined in the Statutory Instruments Act, in that it is an instrument made or established in the execution of a power conferred by or under an act of Parliament.

``Security measure'' also appears to meet the definition of a regulation because it is a statutory instrument made in the exercise of a legislative power conferred under an act of Parliament or for the contravention of which a penalty fine or imprisonment is prescribed. This view is buttressed by the fact that the Aeronautics Act expressly exempts security measures from examination by the Department of Justice Canada and from registration and publication under the Statutory Instruments Act.

If you are exempting something from certain parts of the act, it would seem to be necessarily implied that the rest of the act does, in fact, apply. This would include the referral under section 19 of the Statutory Instruments Act to this committee for scrutiny.

Being an instrument referred to the committee by statute, it would therefore follow that it is required by law to be disclosed if the committee is to fulfil its mandate. Therefore, disclosure to the committee would not be restricted under section 4.79 of the Aeronautics Act. I should add that the same arguments would apply with respect to emergency directions under the Aeronautics Act.

In addition to the concerns noted in relation to the regulations themselves, it would appear that all of these security measures and emergency directions stand referred to the joint committee. Obviously, if the committee were to fulfil its mandate, it would be necessary to obtain copies of these instruments.

At this point, I suppose if that is the route members wish to go, it would be a question of explaining this position to the department, asking for copies of these measures and seeing what the response to that is.

Mr. Albrecht: I take it that one of our bottom lines is that we do not want to compromise security; we all agree with that. I would argue against divulging these directly to the committee. However, if there is some way that counsel could sit down with the department and explain that the security component can be maintained at the same time as doing our work as a committee, I would be open to that.

My ultimate concern here — and I think they outlined it well — is that disclosing these criteria could compromise aviation security. I would be careful that we do not distribute these at will.

The Joint Chair (Mr. Kania): Are you agreeing or disagreeing with writing and making a request that they produce?

Mr. Albrecht: I think we should do more than just write a letter. Mr. Bernhardt has carefully explained how this does not apply to section 4.79. I am not a lawyer, so I do not pretend to understand everything he said. However, I get the intent that there are other parts of other acts that would say the way they have used their explanation here is not applicable. I will let counsel follow up on that.

Mr. Bernhardt: I would emphasize that this is not an argument or an explanation that has been put to the department as yet. Receiving their reply caused us to look at the nature of these things. A bit to our surprise as well, we thought when we asked about the difference between ``threat'' and ``specific threat'' that we would get an explanation rather than the answer, ``We cannot tell you; it is in this document.''

We looked at what the documents are, and it seems they do stand referred to this committee. The department may offer a contrary explanation; perhaps we overlooked something. Who knows?

I think the first step would be to put that to the department and say, ``This is what seems to be the case. Do you agree or do you not?'' I suspect it is not something they have considered, either.

Senator Hervieux-Payette: If there were no consequences, I would not go far with this. However, there are consequences for people who are joking about security when boarding a fight. I presume that we should make a distinction between the regulations and the directives. In the regulations, we can certainly have a broad definition and give more specifics to the employees.

I say that because, perhaps like all of you, I was prevented from bringing a plastic bag with some toothpaste. I had a bigger one at home, and they asked me to leave it there. I said, ``What a silly decision.'' The employee almost jumped to the ceiling and said, ``Are you saying that I am silly?'' I said, ``No, the rules are silly.''

They are very drilled, but, at the same time, it is certainly not specific. We read the directives before we enter the security zone. They would give them the nuance in the form of a directive, but there should be at least a regulation that covers all these circumstances. You can get arrested and be liable for a big fine or even imprisonment. We are not talking about a joke; we are talking about something serious. As far as I am concerned, I do not think we can exercise total latitude when it comes to security on the one side, but on the other side, the rights of people are important.

I would agree with the counsel to ask about this, while not necessarily wanting them to divulge all the specifics. At least they have relaxed the rules recently. I see it. All of us travel, and it is not as strict as it was one year ago. Where does it fit in when you want to interpret that? I would agree that we ask them to be more specific in giving us reassurance that the rights of people will be protected.

Mr. Szabo: This one caught my attention because it touches on the authority and rights of a parliamentary committee and also the right to call for persons, papers and records, which is topical in this Parliament. I cannot recall, in the years that I have been here, that someone has really touched on this. It should make for interesting discussions. It is not a matter of playing naive about this. We should do what we would normally do and ask them to please provide it. Let us get the proper starting point. There might be acquiescence or a more compelling explanation. Currently, we should begin by doing what we think is correct. It has been referred to our committee; we should ask for it.

The Joint Chair (Senator Martin): I do not have the experience on this committee to know whether on past files the committee has requested such disclosure of information and whether the relevant department explained that because of security issues, they could not do so. Has that happened in the past? In such a situation, would it make sense for counsel, as an intermediary, to have a look at these rather than the whole committee, or does the committee require the information to be disclosed at committee?

I understand what you are saying, Mr. Szabo, because as a parliamentary committee of MPs and senators, we have every right to look at such files. At the same time, I am being mindful of the integrity of a department to exercise its work. I heard what Mr. Albrecht said. Is there an option for an intermediate step before the committee requests the documents here and now? What has happened in the past in such cases? What might the most effective direction be on this file?

Mr. Szabo: If counsel can see the documents, then certainly we can see them. The issue is not to enforce and demand. We have this situation, and the recommendation is to have a look at the documents. Likely, that will spawn a more comprehensive explanation as to why there is reasonable argument. Security reasons could preclude, so let us develop a protocol on how we can review documents without releasing them to the public.

The position is that the matter was referred to this committee, so our course of action would be to look at them. That is part of the discussion and the knowledge that people need to know. However, there are and likely will be certain elements of information or communications, notwithstanding that an area may be referred to us and that all things within that area or department may not be accessible for valid security reasons. It is a starting point.

The Joint Chair (Senator Martin): Perhaps I can clarify that. I was not implying that the committee should not look at the information. Rather, I wanted to confirm what the committee's role is in such a situation. Is it to examine such information in that way, or is it to look at a way to work with departments to find an expedient and reasonable approach to resolving an issue?

To what extent do we get involved in these files? I am mindful of the volume of work. I am confident of the work of our counsel and our ability to correspond in the way that we have done thus far. I do not know what has happened on past files. Perhaps counsel can help.

Mr. Bernhardt: By way of context, it is important to keep in mind that this situation is quite different than what we might see with certain other committees and other issues that are taking place right now. The only real issue for the committee is whether these are statutory instruments within the definition of that term. If they are not, then the committee does not want to see them because they do not fall within the committee's mandate. If they are statutory instruments, they are permanently referred to this committee. As is any other regulation or statutory instrument, they are subject to a complete review by the committee. The committee can comment on their drafting, the English and French versions, their legality, and so on.

From our analysis, it looks like they are statutory instruments and, therefore, are subject to review and stand permanently referred to the committee. There may be arguments to the contrary that we have not thought of, and I suspect that if we make that case to the Department of Transport, they will assiduously explore whether there are contrary arguments. It is not a case of wanting to see the information or wanting the background or wanting to explore anything. Rather, it is a case of how to interpret that definition, because either they are referred to the committee or they are not. If they are referred to the committee, then the committee has not only a right but also an obligation to examine and review them. If they are not referred to the committee, then for the committee's purpose they cease to have any relevance whatsoever. I presume that members of the committee would not be interested in seeking disclosure of irrelevant documents.

Ms. Gallant: What would the process be to determine for certain whether these documents are statutory instruments?

Mr. Bernhardt: That is a question of legal interpretation, I suppose. Our preliminary opinion is that, yes, they seem to be statutory instruments. Likely, it behooves the committee to ask the other side if they have a good argument to the contrary. The committee can then decide in its wisdom which view it wishes to take.

Ms. Gallant: Our first step is to initiate that process to make the determination as to whether they are statutory instruments.

Mr. Bernhardt: Yes, I would make the case to the Department of Transport to advise the department of what seems to be the situation. If that is the situation, then the committee would like copies of these documents because they have been referred to the committee for examination. If that does not happen to be the case, they cease to be of interest to the committee.

Mr. Boughen: Before we tramp down too many roads into too many avenues that, perhaps, we do not need to go down, I would suggest that as a committee we ask ourselves why we want to do that. Is there something in the documents that we need to know to make a recommendation, to set direction for the folks we are dealing with? Is it just because we are curious to see what the document says? ``Why'' is an important question. Otherwise, we can spend a lot of time thrashing around and accomplishing nothing.

We need to have a reason to look at things other than to say, ``Let us look at them.'' We need to ask ourselves why we need this information. If we do not have a good reason, then I respectfully suggest that it is a waste of time. It may be interesting, but not of much use.

The Joint Chair (Mr. Kania): From the committee's perspective, the issue is whether or not it is a statutory instrument. If it is, then it must be referred to us; those are the requirements. If it is not, we do not care. That is where we are starting from — to determine whether or not it is a statutory instrument.

Senator Wallace: This raises a question in my mind. With our committee, do we have the ability to receive documents on a confidential basis, or is anything that we receive automatically part of a public record that is accessible?

Mr. Bernhardt: It is up to the committee to decide how it wishes to treat anything it receives.

Senator Wallace: Is it the case that everything before us is public?

Senator Hervieux-Payette: No. We can have any document in camera.

Senator Wallace: How can we determine whether it is a statutory instrument without seeing it?

Mr. Bernhardt: As I said, that definition —

Senator Wallace: I am not sure I want to see it, but how would you suggest we go about determining that without seeing it?

Mr. Bernhardt: One looks at the enabling powers — what the document is, how it is described in the Aeronautics Act and how that fits within the definitions of the relevant terms in the Statutory Instruments Act.

We have done that. Our analysis is in the note; and our conclusion at this point is, yes, they are, in which case they are permanently referred to this committee. The committee then, on some level, has an obligation to look at them.

As I say, we do not know what the government's view of our analysis is because it has not been put to the government. That would be the first step — to make the suggestion that our reading indicates that these are statutory instruments. This is the consequence, if they are. The committee then will require copies of them.

If there is a counter-argument, then I am sure the Department of Transport will make that counter-argument. That will be before the committee then to evaluate the various arguments and decide what, if anything, it wishes to do after that.

The Joint Chair (Mr. Kania): From my perspective, we have an obligation to do our jobs, and that is to review anything that is a statutory instrument. In my view, we have to find out whether it is a statutory instrument. I think we need to write, but I would like to hear any other comments that anyone has at this time.

Mr. Albrecht: After listening to all the conversation, we have a clear definition of what their concerns are. That is a practical concern. We have the legal implications that it is this committee's job to do its work — to go back to the department and ask them what their rationale is. We get their response, and if it is unsatisfactory, we follow up. If it is satisfactory, obviously the case is closed.

Even if we do ask for more information, I think it is important that we follow Senator Wallace's concerns about keeping that information confidential and that there are no risks, because this does concern me. If the Department of Transport's concern is valid, we need to have practical concerns as well. However, at the same time, we need to recognize our legal responsibilities.

Therefore, I would agree; let us carry on with the communication — written and verbal, if necessary — to try to resolve it.

The Joint Chair (Mr. Kania): What about the suggestion that when it comes back on the agenda with the response, we will have an agreement in advance that it will be in camera, at least initially? Then while we are in camera, we can make the determination as to whether it should go back to being in public before we make a decision.

I do not know what their response will be, but I do want to treat it with some respect while doing our jobs. Maybe we could start with an in camera meeting on this topic when it comes back, with the option of moving into public if we decide to do so. I am just throwing that out. Do you agree with that?

Mr. Albrecht: I think we need to go one step beyond having it in camera, and that is not to have any material sent in advance. This material is in how many different hands all over the place? We have to wait for the response in camera, also.

Mr. Szabo: We will wait for the chairs to decide.

The Joint Chair (Mr. Kania): We will look at it first and make a determination.

Mr. Galipeau: My understanding is that the two chairs would be the first eyes to see this; is that correct?

The Joint Chair (Mr. Kania): And counsel.

Mr. Bernhardt: Yes, with the clear understanding that anything that we receive on behalf of the committee is always privileged.

Mr. Galipeau: Thank you.

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

Hon. Members: Agreed.

[Translation]

SOR/2006-193 — REGULATIONS AMENDING THE EGG REGULATIONS

(For text of documents, see appendix H, p. 7H:1.)

Mr. Rousseau: As indicated in the note drafted for the committee, five points were originally raised concerning this matter.

Keeping in mind the December 22, 2009, letter, amendments were promised regarding three of these points, and the Canadian Food Inspection Agency is hoping to propose the necessary amendments this year.

The two other points are discussed in the remainder of this note. With regards to point 1, for the reason mentioned by counsel, the committee could decide that the way the regulations are currently worded is acceptable.

As far as point 2 goes, committee counsel feel that it would be appropriate to amend the regulations.

The egg regulations were adopted pursuant to the Canada Agricultural Products Act, whose primary purpose is to regulate the marketing of agricultural products.

Under the regulations' provision referred to in point 1, the director can suspend the registration of an egg station if the operator is not in compliance with any federal legislation on the operation of an egg station.

The issue at hand is determining whether the scope of the legislative provision with which the operator must comply limits the director's discretionary power to matters exclusively related to the marketing of eggs.

While the agency does not mention this, in the Canada Agricultural Product Act, Parliament used the wording ``operation of registered establishments'' to confer to the Governor-in-Council the power to manage this matter through regulations. Given the circumstances, the director's discretionary power should be interpreted in a way that mirrors Parliament's intention, the reason being that regulations must be adopted to achieve the aims of the act. In addition, we have to assume that if identical wording was used in the regulations and in the act, its meaning is also identical in both pieces of legislation. Therefore, we can consider ``any federal legislation applicable in respect of the operation of the egg station'' to be the limit of the director's discretionary power.

The committee could accept the agency's response for this reason.

The second point regards the length of time the files required under section 9(3) of the regulations must be retained. When applying for registration, the applicant must submit a certain number of programs related to the operation of an egg station, such as pest control or employee training. The regulations call for up-to-date files to be kept on these programs, but it does not prescribe a specific length of time for retaining the observations on file. Consequently, this information must be retained for an indeterminate period of time. The committee has noted a discrepancy between the regulations, which require the information to be retained for an indeterminate period of time, and the agency policy, under which standard retention periods appear to be prescribed.

The December 22, 2009, letter cites passages from the agency policy showing that the agency clearly prescribes retention periods for various documents related to the programs set up by the operators, and that it already imposes a rule to follow when it comes to food safety. Committee counsel are of the opinion that it would be appropriate to add this information to the file.

If the committee is agreed, counsel will write back to the agency regarding this issue.

[English]

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

Hon. Members: Agreed.

SOR/2007-99 — LOAD LINE REGULATIONS

(For text of document, see Appendix I, p. 7I:1.)

Mr. Bernhardt: Initially, 27 points were raised. A number of amendments have been promised, and 8 points were pursued further in a letter dated December 11, 2009. Additional amendments have been promised in connection with the points numbered 4 and 15. Supplementary explanations that would appear to be satisfactory are furnished on points 1 and 11. That leaves points 17, 23 and 25, which all concern the same question, and then point 26.

The common question on the three points is whether a definition that is stated to apply to Part 2 of the regulations also applies for the purposes of the schedules to the regulations. Transport Canada claims that it does, relying on two provisions of the Interpretation Act. Unfortunately, these provisions also state that they apply unless there is a contrary indication; basically, the provisions are to the effect that, where you define something in an enactment, it applies throughout the enactment unless there is a contrary indication.

If you state that something applies to Part 2, that is a contrary indication. I do not think the department's arguments are very convincing. All that being said, schedules are a distinct element of a regulation, but a review of various authorities seems to leave it open to conclude that a schedule can be seen simply as an extension of the relevant substantive provisions to which it relates.

If one takes that view, any term used in those provisions would bear the same meaning in the related schedules, whether they were defined or not. It might simply be a case of pointing out to the department that their conclusion can be accepted, although their reasoning is not acceptable. After that, the point can simply be dropped.

The final point, point No. 26, concerns references to small access openings in the freeboard deck of a vessel. The question is whether this is sufficiently clear. How big can an opening be and still be small? The department advices that the term ``small access openings'' is a well-understood term of art in the shipbuilding industry and means an opening big enough to permit access by a person.

I suppose you could ask whether the opening is still small if it could permit access by 20 persons. However, if this is indeed a well-understood term of art, and if members wish to accept the explanation that that is the case, we would simply follow up on the progress on what has already been promised.

The Joint Chair (Mr. Kania): Are there any comments? If none, is it agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Senator Martin will take over at this point.

[Translation]

SOR/2006-168 — CERTAIN RUMINANTS AND THEIR PRODUCTS IMPORTATION PROHIBITION REGULATIONS, NO. 2

(For text of documents, see Appendix J, p. 7J:1.)

Mr. Rousseau: The reasons for which the committee questioned the validity of these regulations are provided in the note. In short, the regulations were issued by the minister, but Parliament had delegated to the Governor-in-Council the regulatory authority exercised in this case. The agency had promised to take the necessary measures to remedy the situation. The regulations issued by the minister were repealed, and the Governor-in-Council exercised, as suggested by the committee, his regulatory authority to adopt SOR/2009-18, which the committee examined on March 25, 2010, in lieu of the former regulations.

If the committee is satisfied, this case can be closed as soon as the reference to the old regulations is removed from the Consolidated Index of Statutory Instruments.

[English]

The Joint Chair (Senator Martin): Is it agreed?

Hon. Members: Agreed.

SOR/2008-155 — REGULATIONS AMENDING THE REGULATIONS SPECIFYING INVESTIGATIVE BODIES

(For text of documents, see Appendix K, p. 7K:1.)

Mr. Bernhardt: The regulations list the Investment Dealers Association of Canada as an investigative body for purposes of the Personal Information Protection and Electronic Documents Act. Listed bodies are permitted to disclose and receive personal information without the knowledge or consent of the individual to whom the information relates.

However, the Investment Dealers Association of Canada has now merged with Market Regulation Services Inc. to create a new entity, the Investment Industry Regulatory Organization of Canada, which is not listed. Industry Canada indicated that the new organization had been advised that it must obtain designation as an investigative body for purposes of the act, but as yet no application has been received.

This being the case, we sought confirmation that the new organization was therefore not treated and not considered to be an investigative body. The February 4 reply furnishes that requested assurance. All that would remain, then, would be to simply remove from the regulations the obsolete reference to the defunct organization. Perhaps the department could be asked if and when it intends to do that.

Mr. Szabo: Did we ask the Office of the Privacy Commissioner of Canada their opinion?

Mr. Bernhardt: No. In this case, the department advises us that this new body is simply not considered a designated body.

Mr. Szabo: An investigative body. How does the organization discharge its responsibilities? It cannot get there from here.

Mr. Bernhardt: That is an interesting question.

Mr. Szabo: There is something more here. Either they will supervise the investment dealers or somehow they have responsibilities elsewhere. This is a ripple effect. I would not dismiss this one too easily. I think we should find out.

I do not know whether the Office of the Privacy Commissioner of Canada will have a view on this, but private and personal documentation and information is involved here. Does that now become the property of the combined organization? If they are not authorized in their current configuration to have it, then we have a problem already.

Mr. Bernhardt: We could ask for more particulars. Frankly, their reply seemed a bit odd to us. On the other hand, one must take the department at its word. That is why we asked for the confirmation.

Mr. Szabo: I think it is worth pursuing one more round.

The Joint Chair (Senator Martin): We will write a follow-up letter. Is it agreed?

Hon. Members: Agreed.

[Translation]

SOR/2010-5 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

SOR/2010-6 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

(For text of documents, see Appendix L, p. 7L:1.)

Mr. Rousseau: These regulations were both made and registered on December 18, 2009, and both came into force on that date. Both stipulate the number of dozens of eggs that producers may market beginning on December 18, 2009. Clearly, the Canadian Egg Marketing Agency meant that SOR/2010-5 should replace SOR/2009-140, which had been made previously, and that SOR/2010-6 should replace SOR/2010-5.

For this to have happened, SOR/2010-6 would have had to stipulate that it came into force on December 27, 2009. Therefore, the manner in which both amendments were drafted was not consistent with the agency's intention. Since the period for which SOR/2010-5 was supposed to be applicable has already expired, committee counsel are of the opinion that there may in fact be no point in revisiting this matter. As for the future, the drafting suggestion put forward by counsel was subsequently applied during the making of SOR/2010-30 and SOR/2010-31, which the committee reviewed on May 31, 2010.

If the committee is satisfied, this file can be closed.

[English]

The Joint Chair (Senator Martin): Is it agreed?

Hon. Members: Agreed.

SOR/2000-108 — EXPORT CONTROL LIST NOTIFICATION REGULATIONS

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

(For text of documents, see Appendix M, p. 7M:1.)

Mr. Bernhardt: Several drafting amendments have been promised, as well as the removal of the requirement that has the effect of making it an offence not to comply with the terms and conditions of a permit, for which the committee considers there to be no authority. These were supposed to be made when the two regulations in question were merged. In fact, new draft regulations were posted on the department's website in late 2006.

Further consultations with stakeholders became necessary, and the forecast time for making the new regulations was pushed back several times. Most recently, the department advises that the proposed regulations will need to be further revised as the result of recent changes to the Stockholm Convention on Persistent Organic Pollutants. The hope now is that prepublication for further notice and comment will take place before the end of the current fiscal year.

One approach that might be taken would be to advise the department that if these new regulations are delayed again and if, as a result, it appears that the two existing regulations will continue in force for the foreseeable future, then the committee expects the amendments addressing its concerns to proceed in the interim regardless.

Hon. Members: Agreed.

[Translation]

SOR/2006-75 — REGULATIONS AMENDING THE CANADA BUSINESS CORPORATIONS REGULATIONS, 2001

(For text of documents, see Appendix N, p. 7N:1.)

Mr. Rousseau: In this file, the department recognized that the French version of section 263 of the Canada Business Corporations Act needed to be amended. It was requested that the department confirm it would do everything in its power to make the promised correction during the current parliamentary session and, in particular, that if a miscellaneous statute law amendment bill was introduced, it would include this correction. In response, the department indicated that no opportunity for amending section 263 by way of a miscellaneous statute law amendment bill or otherwise had yet presented itself.

The department assured us that it still intended to make the necessary amendments as soon as there was an opportunity to do so. If the committee is satisfied with that commitment, counsel will follow up on the file regularly and will keep the committee informed of any progress.

SOR/2008-306 — 2010 OLYMPIC AND PARALYMPIC WINTER GAMES REMISSION ORDER

(For text of documents, see Appendix O, p. 7O:1.)

Mr. Rousseau: In September 2009, committee counsel noted that there were discrepancies between the French and English versions of section 3 of the 2010 Olympic and Paralympic Winter Games Remission Order.

The department's response was as follows, and I quote:

Although the general consensus of the legal counsel consulted was that the provision had the same meaning in both languages, they recognized that the French version was perhaps not quite as clear as the English version, which could lead to differing interpretations of the two provisions.

Given that the department considered it highly unlikely that it would be able to make the necessary changes by March 21, 2010, at which time the goods covered by section 3 would cease to be imported, and that applications for remission were usually made within a very short time period, even though the order provides for a two-year period, the department was of the opinion that the changes could not be implemented in time and would serve no practical purpose.

The department proposed, however, implementing the changes in subsequent orders, and included two possible draft provisions that could be used. If the committee finds that proposal satisfactory, the file can be closed.

[English]

The Joint Chair (Senator Martin): Are there comments? Is it agreed?

Hon. Members: Agreed.

SOR/2002-309 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE ORDER

(For text of document, see Appendix P, p. 7P:1.)

Mr. Bernhardt: Some members will recall this file. The original issue for the committee was that the British Columbia Vegetable Marketing Commission, BCVMC, had no valid order in place fixing and imposing levies on persons engaged in the production and marketing of vegetables in the interprovincial or export trade even though levies were being collected in respect of vegetables marketed outside the province. Following an appearance by witnesses from the BCVMC, the Farm Products Council of Canada and Agriculture and Agri-Food Canada, a proper order was put in place in 2008. In the course of this, it came to light that there were 13 other provincial boards across Canada that might potentially have similar problems. In March, the Farm Products Council reported that steps had been taken to notify the provincial boards in question, confirm their situation and ask them to take the necessary steps to put proper orders in place. They advised that some responses have been received and that a follow-up on the others was under way. It seems that the council is trying to pursue this matter actively. Perhaps at this time the only requirement is to request a further update.

The Joint Chair (Senator Martin): Is it agreed?

Hon. Members: Agreed.

SOR/2004-255 — REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix Q, p. 7Q:1.)

Mr. Bernhardt: Amendments were to be made as part of amendments to these regulations consequential to changes to the Canada Marine Act that came into force August 1, 2008. The latest letter from the Department of Transport advises that no consequential amendments are required or planned in the near future. They have decided to go ahead and deal with the committee's concerns as a separate initiative. They indicate that they will try to complete the amendments by the end of the fiscal year. If that is acceptable to members, we will monitor progress in the usual fashion.

The Joint Chair (Senator Martin): Is it agreed?

Hon. Members: Agreed.

[Translation]

SOR/2007-196 — PROCLAMATION AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING AGENCY PROCLAMATION

(For text of documents, see Appendix R, p. 7R:1.)

Mr. Rousseau: In this file, an amendment to the French version of the proclamation was promised in response to the committee's comments. The amendment must be made once the federal-provincial agreement on broiler hatching egg marketing is signed.

In its letter of February 3, 2010, the Farm Products Council of Canada indicated that a draft of the federal- provincial agreement had been sent to the signatories. The counsel expressed its hope that the promised amendment would be made by the end of 2010. It would be advisable for committee counsel to write to the council for an update.

Some hon. senators: Agreed.

SOR/2003-30 — CONSULAR FEES (SPECIALIZED SERVICES) REGULATIONS

(For text of documents, see Appendix S, p. 7S:1.)

Mr. Rousseau: As is clear from the correspondence in this file, the promised amendments were supposed to be made in 2008, but were postponed. In its letter of February 26, 2010, the department did not provide any date to indicate when the regulations would be made, which explains the question mark after the word ``progress''.

However, in preparing the file for today's meeting, we noted that the amendments in question were made on June 3, and are supposed to be published in the Canada Gazette next week. Therefore, this file can be closed.

[English]

The Joint Chair (Senator Martin): Is it agreed?

Hon. Members: Agreed.

SI/2010-18 — WITHDRAWAL FROM DISPOSAL, SETTING APART AND APPROPRIATION OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (REINDEER GRAZING RESERVE) ORDER

(For text of document, see Appendix T, p. 7T:1.)

SOR/2005-148 — REGULATIONS AMENDING THE DEFINITION OF ``SMALL CABLE TRANSMISSION SYSTEM'' REGULATIONS

(For text of document, see Appendix U, p. 7U:1.)

Mr. Bernhardt: Under Action Promised, four amendments are promised in connection with these two instruments. Progress of these initiatives will be monitored as per usual.

SOR/2010-47 — GUIDELINES AMENDING THE GUIDELINES RESPECTING CONTROL IN FACT FOR THE PURPOSE OF SUBSECTION 377(1) OF THE BANK ACT

SOR/2010-48 — GUIDELINES AMENDING THE GUIDELINES RESPECTING CONTROL IN FACT FOR THE PURPOSE OF SUBSECTION 407.2(1) OF THE INSURANCE COMPANIES ACT

(For text of document, see Appendix V, p. 7V:1.)

Mr. Bernhardt: The two instruments under Action Taken make identical amendments to clarify certain terminology used in the two guidelines.

SI/2010-8 — ORDER FIXING FEBRUARY 1, 2010 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2010-9 — ORDER FIXING FEBRUARY 22, 2010 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SI/2010-10 —VANCOUVER ORGANIZING COMMITTEE FOR THE 2010 OLYMPIC AND PARALYMPIC WINTER GAMES (GST/HST) REMISSION ORDER

SI/2010-13 — PROCLAMATION GIVING NOTICE THAT THE CONVENTION ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF MOROCCO COMES INTO FORCE ON MARCH 1, 2010

SOR/2008-293 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION DEPOSIT INSURANCE POLICY BY-LAW

SOR/2008-294 — BY-LAW AMENDING THE CANADA DEPOSIT INSURANCE CORPORATION PRESCRIBED PRACTICES PREMIUM SURCHARGE BY-LAW

SOR/2009-132 — REGULATIONS AMENDING THE INFRASTRUCTURE PROJECTS ENVIRONMENTAL ASSESSMENT ADAPTATION REGULATIONS

SOR/2009-136 — ORDER 2009-87-03-02 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-139 — ORDER AMENDING THE ORDER DECLARING AN AMNESTY PERIOD (2006)

SOR/2009-181 — GUIDELINES AMENDING THE FEDERAL CHILD SUPPORT GUIDELINES

SOR/2009-253 — ORDER 2009-87-07-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-276 — ORDER 2009-87-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2009-310 — ORDER 2009-66-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2010-11 — REGULATIONS AMENDING THE INSURABLE EARNINGS AND COLLECTION OF PREMIUMS REGULATIONS

SOR/2010-13 — G8 SUMMIT PRIVILEGES AND IMMUNITIES ORDER, NO. 2010-2

SOR/2010-16 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS

SOR/2010-18 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2010-19 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS

SOR/2010-21 — ORDER DESIGNATING ALBERTA FOR THE PURPOSES OF THE CRIMINAL INTEREST RATE PROVISIONS OF THE CRIMINAL CODE

SOR/2010-24 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL REGULATIONS

Mr. Bernhardt: Under Statutory Instruments without Comment, 20 instruments have been reviewed by counsel and have been found to comply with all of the committee's criteria.

The Joint Chair (Senator Martin): Thank you, Mr. Bernhardt and members.

The Joint Chair (Mr. Kania): We are done. This is the last meeting.

Mr. Szabo: Yes, it looks like this is our last meeting before we come back.

Every year, we reconsider how we do our business, and productivity and efficiency are important. In this committee, I see people walking around with thick files of paper trying to scramble their notes. Given that Parliament is moving forward quickly in terms of its reconfiguration of committee rooms and other services, I would like to hear proposals on how this committee might lead the way technologically, such as adopting the use of electronic notebooks with memory sticks to replace the reams of paper. In that way, we could have access to other documents related to our work. Members could carry a memory stick and the committee could own electronic notebooks. Members could bring their notes and comments to committee on a memory stick and work on files here or wherever they might be without carting around reams of paper.

The Joint Chair (Mr. Kania): The request is for a proposal in September for future electronics. We had a similar proposal from Mr. Boughen a number of weeks ago.

Everyone, have a good summer. Thank you for all of your hard work.

The Joint Chair (Senator Martin): Thank you, counsel, for your great work.

(The committee adjourned.)

---