---

Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 11 - Evidence - April 26, 2012

---

OTTAWA, Thursday, April 26, 2012

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments.

Senator Bob Runciman (Joint Chair) in the chair.

[English]

The Joint Chair (Senator Runciman): I call the meeting to order. The first item of business that I am sure some of you are aware of is that Ms. Boivin has moved on to other responsibilities. We are in the position of electing a new joint chair to represent the House of Commons. I will turn the floor over to Mr. Chaplin.

[Translation]

Andrew Bartholomew Chaplin, Acting Joint Clerk of the Committee: Honourable members of the committee, we can now proceed to the election of the Joint Chair (House of Commons).

Pursuant to Standing Order 106(2), the Joint Chair must be a member of the official opposition.

[English]

I am ready to receive motions to that effect.

[Translation]

Ms. Hassainia: I would like to nominate Ms. Chris Charlton.

Mr. Chaplin: It has been moved by Ms. Hassainia that Ms. Charlton be elected Joint Chair of the Committee.

Are there any further motions?

[English]

The committee has heard the terms of the motion. The joint clerk of the committee can only receive motions for the election of the joint chair. The joint clerk cannot receive other types of motions, entertain points of order or participate in debate.

The committee has heard the terms of the motion. Is it the pleasure of the committee to adopt the motion? All those in favour please say "yea."

Hon. Members: Agreed.

Mr. Chaplin: Are any members opposed? I declare the motion carried and Ms. Charlton duly elected joint chair of the committee.

Ms. Chris Charlton (Joint Chair) in the chair.

The Joint Chair (Senator Runciman): We will get under way, with congratulations to Ms. Charlton.

I want to mention before getting into the regular agenda that, prior to the break, we talked about a steering committee meeting to take a look at the process and providing members with a summary of the matters that we have to deal with on a regular basis. Unfortunately, we were not able to organize that meeting. We are still waiting for one nominee for that steering committee. Hopefully that will be cleared up this week and we can have that steering committee meeting — perhaps next week. That is certainly our intent.

SOR/2004-274 — REGULATIONS AMENDING THE FIREARMS LICENCES REGULATIONS

(For text of documents, see Appendix A, p. 11A:1.)

The Joint Chair (Senator Runciman): The first item on the agenda is Letters To and From Ministers. You might notice these are now numbered. This is the Regulations Amending the Firearms Licences Regulations. This has been before the committee since 2007, when the RCMP acknowledged the desirability of minor amendments to the regulations.

Peter Bernhardt, General Counsel to the Committee: As committee members know, there was an acknowledgment that some amendments should be made. The committee also asked for clarification of another provision: section 21(c) of the regulations. That provision prescribed persons related to a business who must also be eligible to hold a firearms licence in order for the business to have a firearms licence. Included in that provision are persons who have a relationship with an owner, partner, director or officer of the business who have a direct influence on the operation of a business, or could have access to the business' firearms. The committee thought this was somewhat vague and asked whether it was possible to indicate more precisely the types of relationships that were intended to be caught by this.

In response to the committee's request for an assurance that amendments would be made, the RCMP eventually replied that it was only in a position make recommendations and that ultimately the decision on whether or not to amend regulations fell to the minister and in the end, the Governor-in-Council. That being the case, the assurance was sought from the minister. Some four years later following a number of requests subsequent, the minister's reply was received on the eve of the last meeting, members may recall. It was therefore held over until this morning.

With regard to the first two minor amendments, the minister's reply indicates that the corrections will be made at such time as more substantive amendments to the regulations are made, but he is not in a position to say when that will be.

For the benefit of new members, in the past the committee has accepted an agreement to defer very minor amendments until such time as broader packages were made, always with the proviso that it be done within a reasonable period of time.

That could perhaps be a precedent. Typically the committee has considered about two years to be a reasonable period of time. If members wanted to follow that approach in this case, I suppose it would be a matter of advising the RCMP of that.

The third amendment was to a provision that required that an applicant provide a photograph and that the photograph must be in colour or black and white. It was initially suggested that if those are the only two possibilities for a photograph, what was intended was not to put a duty on the person but in fact to give them a choice and that the provision should be redrafted to reflect that.

The minister's reply advises there are other photographic possibilities besides black and white; there is sepia and grey-scale. To be blunt, I know nothing about photography. I am sure there are many people in this room who know far more than I do.

Taking the minister's advice at its face, I suggest that is probably an acceptable explanation. The only question one is left with is why the RCMP did not provide that explanation back in 2007 when they were asked.

On the final point, section 21(c), the minister expresses the view that the provision is not overly broad. The committee never questioned the breadth of the provision, simply that it seems somewhat vague.

That being said, the relationship requirement that the committee thought might be vague is modified by an additional requirement that the person in the relationship must have a direct influence on the operation of the business or could have access to firearms the business has. I suppose the question is whether every person who has a direct influence on the operation of the business is also, by definition, going to have a relationship with the people running the business.

If that is always going to be the case anyway, I suppose the committee could be satisfied with the explanation and not pursue the issue.

Mr. Albas: I would like to thank counsel for the work on this. I know it can be frustrating when you have a file that you work hard on and do not get a response. However, seeing that the minister substantively replied to all our concerns I want to tip the hat to counsel. I suggest we monitor the file and let the RCMP know we are okay with the two-year, as long as they go ahead with the amendments as the minister has identified.

The Joint Chair (Senator Runciman): Indicate to them a two-year time frame is one that the committee has accepted in the past.

Are we in agreement with that?

Hon. Members: Agreed.

SOR/2001-32 — CONTROLLED GOODS REGULATIONS

(For text of documents, see Appendix B, p. 11B:1.)

The Joint Chair (Senator Runciman): This matter has been before the committee since 2005. The Defence Production Act establishes a registration system to regulate access to certain goods and the committee has a concern with three points.

[Translation]

Jacques Rousseau, Legal Counsel to the Committee: Mr. Chair, as you pointed out, the program that regulates access to certain controlled goods is administered by the Controlled Goods Regulations, which require a person to be registered or exempt from registration.

At its meeting on November 3, 2011, the joint committee instructed its counsel to write to the department again about the three points numbered 5, 12 and 14 in the correspondence.

The letter of November 7, 2011 presents the reasons why the committee wishes the amendments to be made. In its letter of December 28, 2011, the department replied that it does not believe that the committee's proposed amendments are necessary at present, and briefly explained why. The note explains why the committee may decide that it is not satisfied with the department's reply.

It is important to point out that, when examining other regulations, similar issues to those raised in points 5 and 12 have previously been dealt with, from the committee's perspective, in Report No. 60 — Criminal Code, in 1997 and Report No. 67 — Disallowance, in 2001. A copy of those reports is attached to the note prepared for the committee. In both cases, amendments were made.

The problem raised in point 5 deals with four provisions of the regulations. Section 9, for example, provides that the applicant or registered person shall inform the minister of any change in any of the information in the application for registration without delay. In section 40 of the Defence Production Act, Parliament stipulated that this must be done in the manner and time prescribed by the regulations.

In its Report No. 60, after studying a quite comparable case, the committee concluded that it meant that Parliament has delegated the power to set a fixed deadline. It also observed that the requirement to comply with the regulations without delay means that the deadline may vary from case to case, meaning that the person cannot know with certainty the amount of time that is allowed. In an extreme case, it might be considered that the regulations do not stipulate any time at all.

It may then be considered that the four provisions in question are illegal. The department replied simply that the terms are used in other legislation and that their use in the Controlled Goods Program fully meets the administrative requirements of the registration program. The reply is silent on the question of legality that the committee raised.

Point 12 deals with section 27(1) of the regulations. The committee is well aware of the problem: that no difference is made between situations when the minister can suspend a registration or an exemption and those when he can revoke them. The department sees this as flexibility; the committee sees it as a risk of arbitrary use of the minister's discretionary power.

To eliminate this risk, the committee stands by its suggestion to specify the circumstances in which the minister will use the power to suspend and those under which he will use the power to revoke.

In 2001, the committee tabled its Report No. 67 — Disallowance, which concerned a regulatory provision posing a similar problem. This led to the provision in question being rescinded and replaced by provisions that clearly set out the differences in the circumstances under which the minister would exercise each of his powers. The same solution should be used in this case.

Finally, point 14 also deals with discretionary power. As an example, section 27(6) of the regulations stipulates that, if the registered person is able to show that the reason for the suspension or revocation is not well-founded, the minister may reinstate the registration. The note explains in detail why the committee wishes this provision to be amended.

First, if the suspension, to use that example, is not well-founded, why would the minister have the discretionary power not to reinstate the registration?

Second, if there are circumstances under which the suspension is to be maintained, even though it is not well- founded, those circumstances should be specified in the regulations.

Third, one way of making the distinction between suspending and revoking a registration is to provide the power to revoke the registration only in cases where the person has to begin the entire registration process again from the start. At the moment, it seems that the minister uses this provision to reinstate some registrations, even ones that have been revoked, without having to start the process all over again. But the regulation does not specify the cases in which that is so. Again, the department calls this flexibility. Clearly it is, but the result could be that people in comparable situations could be treated differently.

To avoid that, the regulation should be reconsidered with a view to clarifying the cases in which registration will be suspended and those in which it will be revoked, keeping the latter for cases in which the person has to start the procedure from the beginning. Finally, when a person complies with the requirements that allow a suspended registration to be reinstated, the regulation should not give the minister the discretionary power to reinstate or not reinstate the registration.

In that case, the regulation should say that the minister must reinstate the registration, rather than enjoying the discretionary power to do so, as is the case at present.

Given that the department has already refused to commit to amend the regulations in that way, the committee could consider the possibility that the joint chairs could write to the minister about the matter.

[English]

Mr. Breitkreuz: I thank counsel for doing extensive work on this file and analyzing it very well, in my opinion. I am not happy when we allow too wide an interpretation by officials in the department. I respect the analysis counsel has given us; maybe we as a committee can discuss this further.

I am not comfortable with not clarifying some of these things and with having too much leeway in their interpretation. We should continue to deal with the department to see if we cannot fix this situation. That is my recommendation to the committee.

The Joint Chair (Senator Runciman): We have been dealing with them since 2005.

Mr. Albas: Public Works does not put out a lot of regulations. Have we reached out to them, besides official channels through letters? Have we met with them? Maybe they are not familiar with the committee's role, functions and powers because potentially a regulation could be disallowed at some time, which would create a different tension from someone who does not know anything about the committee.

[Translation]

Mr. Rousseau: One meeting with the department has already been held, but there was some ambiguity. Before the meeting, the committee was under the impression that the department had promised to make the amendments in all cases. But, in some cases, the department went back on its commitment to amend the regulations. The meeting took place and the department said that the amendments would be made, while reserving the right to make other amendments first. That is to say that they would be made to an already amended act. Everything was in order; but the surprise came when the amended regulations arrived. At that point, it was realized that, on some points, the department had made neither the amendments the committee had been promised nor the ones that the committee was under the impression would be made.

So, yes, there was a meeting; unfortunately, the ambiguity was such that we did not get the results we were anticipating.

[English]

Mr. Albas: I appreciate that, but was that meeting in 2007 or 2008?

Mr. Rousseau: It was more recent than that.

[Translation]

I could not tell you the exact year, but it was still Ð

[English]

Mr. Albas: With turnover and whatnot, I would hope that we would reach out with a phone call to ask about the status of this. I like where Mr. Breitkreuz is coming from. We can deal with this on a departmental level. We can build that relationship so they understand better where we are coming from and what the committee is capable of. Certainly, we have seen some improvement in some other departments in how they deal with us. I suggest that we write a stern letter to say that this is what the committee firmly believes.

Do we have an education piece we can send? I say this because I do not think this person understands the committee's role and how much good work this committee has done on this file.

[Translation]

Mr. Rousseau: You may be right. Clearly, in the correspondence, we have already insisted that the committee previously presented reports on quite comparable points and that amendments were made as a result. That does not seem to have had the effect we were anticipating. Perhaps we could stress that particular aspect more in future correspondence. Then, if there is in fact a meeting, we could once again indicate that the committee has already presented reports on these matters that have resulted in amendments and that, unless we can be shown that there is a difference, other than a need for flexibility, amendments should be made in this case too.

As I said, with the letters, we can send them copies of the reports that we previously tabled in Parliament.

[English]

Senator Moore: I agree with Mr. Breitkreuz's approach. I do not mind one more proverbial college try, but let us put a time frame on when we want a response. It sounds like counsel has tried to impress upon the department the need for and wisdom of what they are suggesting. Counsel's position seems to be pretty clear to me, and I do not know why it is not happening. If we are to write, let us get an answer back in a timely way. It should be no longer than 30 days. It is not as if people do not know the topic or where the committee is coming from.

Mr. Breitkreuz: I do not know about the length of time but it is appropriate that we have some closure in this situation.

Mr. Albas: It is an ongoing situation but it sounds as though there may be potential for another meeting. I would suggest 90 to 120 days to allow counsel to meet with them and discuss it in length so that we do not have these kinds of issues again. Once we start to educate them as to what the committee does, if another case were to arise, they would be more understanding.

Senator Moore: I was not looking at 60 or 90 days in terms of a resolution. The letter or a phone call should at least include a willingness to meet to discuss this; and we could do that within a couple of weeks. I do not know why we have to wait for 60 or 90 days to sit down and discuss this.

The Joint Chair (Senator Runciman): You are talking about a letter to approach and discuss the issues.

Senator Moore: Perhaps that could be done with a phone call. It sounds like we should probably get something in writing, given that this has been drifting. I would like to have the committee set the time frame a bit; at least include something in the same letter. We could meet any time in the next month to discuss this and if not, then the committee will have to take appropriate action as it is authorized to do.

The Joint Chair (Senator Runciman): We are talking about alerting them to the fact that the committee continues to have concerns and is asking for a meeting within the next 30 days to discuss the situation and, hopefully, reach a resolution.

Mr. Albas: That is reasonable. Counsel could be given the flexibility to say that we would like to meet with them in the next 30 days to bring this file to bear. I like the idea of the meeting, and I appreciate the extra work that staff will have to do on that.

The Joint Chair (Senator Runciman): Are we in agreement with that approach?

Hon. Members: Agreed.

SOR/2009-20 — REGULATIONS AMENDING THE WILD ANIMAL AND PLANT TRADE REGULATIONS

(For text of documents, see Appendix C, p. 11C:1.)

The Joint Chair (Senator Runciman): As I understand it, this item has to do with the designation of endangered species and the fact that they are not being added to the Wild Animal and Plant Trade Regulations within the 90 days required.

[Translation]

Mr. Rousseau: Exactly, Mr. Chair. The department attributes the failure to comply with the 90-day time period stipulated in the act to internal delays in the federal regulatory process and to the application of the policy on tabling of treaties in Parliament recently adopted by the Department of Foreign Affairs and International Trade. It is really difficult to believe those factors could have resulted in such a long delay. In one case, the delay was 465 days, whereas the act requires regulations to be amended in 90 days.

Much more concerning, however, is the fact that the Department of the Environment has chosen to respect the terms of a simple policy developed by another department, even though the result is that the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act cannot thereby be respected. Giving priority to a departmental policy over an act of Parliament is completely backwards. It should be obvious that the act should take precedence over a policy of the Department of Foreign Affairs and International Trade.

The committee wanted to know what steps the department would be taking to comply with the act while waiting for it to be amended. In its letter of February 14, 2012, the department points to the increasing difficulty, the impossibility, in fact, to meet the 90-day deadline. So, if nothing can be done that will allow the requirement to be met, only one solution remains: to amend the act to extend the deadline by which amendments to the convention must be incorporated into the regulations. Since, as things stand, Canada is not in a position to comply with the convention, amending the act to extend the deadline would change nothing. But it would avoid a situation in which the government is contravening the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act whenever the regulations have to be amended.

If the committee is in agreement, counsel will write to the department explaining why the reply was not satisfactory and suggesting that the department take the steps necessary to amend the act.

[English]

Mr. Vellacott: I think that is a very good recommendation in terms of reading over the material and the summary statement. Giving priority to a departmental policy over an act of Parliament is backward. It should be obvious that the act takes precedence over the Department of Foreign Affairs and International Trade. I think we would all agree, from whatever party, regarding the precedence of acts of Parliament.

Counsel is quite right: I think the committee can press upon them that they should either take the steps to improve the process or the act must be amended, and that we should write them to that affect. It is not like they have a lot of choice here, so if the deadline cannot be respected, then there is only one solution and that is amending the act. Write them to that effect and see how they respond.

The Joint Chair (Senator Runciman): Further discussion? Agreed?

Hon. Members: Agreed.

SOR/2011-138 — REGULATIONS AMENDING THE WILD ANIMAL AND PLANT TRADE REGULATIONS

(For text of documents, see Appendix D, p. 11D:1.)

The Joint Chair (Senator Runciman): This instrument involves a regulatory impact analysis statement that lists the various species added, removed or moved in the schedules.

[Translation]

Mr. Rousseau: In the opinion of committee counsel, the department provided a satisfactory explanation as to why approximately fifteen species were added to the schedules in the regulations without being mentioned in the Regulatory Impact Analysis Statement. So, if the committee is satisfied, this part of the file can be closed.

However, as in the previous file, we also have delays that exceed the deadlines stipulated in the act. It is the same problem, so the same solution should apply.

[English]

Mr. Vellacott: Similarly on this one, Mr. Chair, they gave us half a loaf in respect to their response to the nomenclature change stuff. However, in terms of the information regarding alterations to the act as requested, there was no adequate response to address there. We need to write back and acknowledge and thank them for their adequate response on one side, but the other has to be addressed.

The Joint Chair (Senator Runciman): Agreed.

SOR/2009-232 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON THE DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA

(For text of documents, see Appendix E, p. 11E:1.)

The Joint Chair (Senator Runciman): This item falls under "Part Action Promised." The amendments addressed drafting concerns that the committee raised in the past, and Foreign Affairs has agreed to take a look at those concerns.

Mr. Bernhardt: The only other point I draw to members' attention is the matter addressed in point one of the correspondence. This concerned the fact that the French version of the regulations is worded somewhat differently than the French version of the UN resolution that the regulations implement. Specifically, the regulations used the word "obtenir" as the equivalent of "to procure" while the term found in the UN resolution is "acheter."

The department agrees that "acheter" or "buy" is narrower in meaning than "procure." Their explanation for changing the wording when they adopted the regulations was that it was necessary to faithfully transpose the intent of the resolution into Canadian law while respecting the need to ensure the equivalency of the two versions of the regulations. I would suggest that is perfectly reasonable.

It is also interesting, however, because the committee has often been told previously when it questions the wording in regulations that implement international agreements or resolutions that the wording in those international documents must be followed, even though the terminology may result in inconsistencies between the English and French versions of the regulations.

The committee has never accepted that argument, and here we have a rather nice example of the regulation maker itself doing precisely what the committee has elsewhere been told should never be done.

In this case, I think the committee would agree with what has been done here but I wish to flag that for members because I think this may prove a useful precedent down the road for the committee and it may come back to haunt the department.

The Joint Chair (Senator Runciman): So no action is required? Close that aspect of the file?

Hon. Members: Agreed.

INTERIM ORDER RESPECTING PROHIBITED ITEMS

(For text of documents, see Appendix F, p. 11F:1.)

The Joint Chair (Senator Runciman): Under "Reply Satisfactory (?)," this item involves amendments to the Aeronautics Act. Transport Canada has agreed to the amendments but they are reviewing other necessary amendments before proceeding. They have not given us a date as to when they might move on this.

Do you have anything else on this, counsel?

[Translation]

Mr. Rousseau: Perhaps we should just add that the committee could consider the reply satisfactory, but we should ask the department to commit to correcting the French version, independently of the other amendments that might eventually be made if the initiative mentioned in the letter is not ready within a reasonable time.

If the committee is in agreement with that, counsel will write to the department to suggest that approach.

[English]

Mr. Young: It is difficult for committee members to know the importance of the translation in this. I do not have any narrative note. At the last committee meeting, we had asked to get some kind of a narrative with these issues so we could look and comment intelligently on the importance of any changes.

If it is a minor translation, I do not think there is any need to ask them to send that through the whole legislative process to change a regulation when they might be amending the act anyway, which they appear to be considering. Therefore, I do not think there is any need to do anything unless this is a really substantive issue.

The Joint Chair (Senator Runciman): Do you wish to respond?

Mr. Bernhardt: I am not sure what is being suggested.

In reviewing the regulations, it was noted that there was an error in the act that the department acknowledged and agreed to correct whenever they are making amendments to that act. Traditionally, then, the committee has monitored that.

A promise has been made to the committee. Over the four decades of its existence, the committee has always taken the approach that if a promise has been made, it will continue to monitor that situation until that promise has been fulfilled. More than that, I do not think anything is being recommended here other than to simply ask if there is an anticipated date for making those amendments.

Mr. Young: Fine. Agreed.

SOR/97-555 — BROADCASTING DISTRIBUTION REGULATIONS

SOR/2003-29 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

SOR/2003-458 — REGULATIONS AMENDING THE BROADCASTING DISTRIBUTION REGULATIONS

(For text of documents, see Appendix G, p. 11G:1.)

The Joint Chair (Senator Runciman): This has been before the committee since 2005 as well; seven years. The first of these matters — and there is a number of them — started with 10 points now down to one, so we are making progress.

Mr. Bernhardt: The one issue left concerns the provision prohibiting licensees from distributing a programming service containing any obscene or profane language or pictorial representation.

The committee had asked the CRTC to provide a justification of the constitutionality of this restriction on freedom of expression. As well, since there is a Criminal Code prohibition on distributing an obscene picture or other thing or publishing what is still referred to as blasphemous libel — and because the regulations prohibit a licensee from distributing a program containing anything that contravenes any law — it was also questioned whether there was a need for the provision.

In its February letter, the CRTC explained its views on the constitutionality of the provision in question while conceding the matter is not free from doubt. They argued that any restriction on freedom of expression would be seen as a reasonable limit demonstrably justified in a free and democratic society under section 1 of the Charter.

As the note in the materials this morning briefly explains, the CRTC's arguments are not without their flaws. It seems to suggest that unconstitutional limitations can be constitutionalized if the person agrees to the limitations. I think it may also be questioned whether terms, such as "profanity," are not overly vague. That being said, there were similar questions before the committee a year ago under these regulations when the committee was looking at the prohibition against broadcasting false news. At that time, it was the conclusion of the committee that a distinction can be made between restrictions imposed on people under the Criminal Code and restrictions imposed on licensees under a regulatory regime who have chosen to engage in a particular commercial activity. What are or are not acceptable by way of restrictions in one context may be different than in the other context.

That being the case — I suppose if only for the sake of consistency — the committee could accept that the defence put forward by the CRTC is plausible. If that is the case, the matter would not be pursued and these files could all be closed.

Senator Braley: I am recommending we close the file; nine out of ten have been handled and the word "plausible" is a good explanation after reading the length of that lawyer's letter. Paid by the hour, that would be a lot of money. I move that we close the file.

The Joint Chair (Senator Runciman): Is there further discussion?

Hon. Members: Agreed.

[Translation]

SOR/2003-105 — SEAWAY PROPERTY REGULATIONS

(For text of documents, see Appendix H, p. 11H:1.)

Mr. Rousseau: In this file, the committee raised 19 points and was satisfied with two of the replies provided. Amendments were promised for 17 points. In its letter of December 2, 2011, the department indicated that it expected to complete the amendments by the end of 2013. If the committee is satisfied, counsel will monitor this file in the usual way and keep the committee advised of any progress.

[English]

The Joint Chair (Senator Runciman): Comments? Agreed?

Hon. Members: Agreed.

The Joint Chair (Senator Runciman): Thank you.

The next number of items under "Progress" should be straightforward.

SOR/87-58 — LAURENTIAN PILOTAGE AUTHORITY DISTRICT NO. 3 REGULATIONS

(For text of documents, see Appendix I, p. 11I:1.)

The Joint Chair (Senator Runciman): This matter has been before the committee since 1990. We are advised the regulations will be repealed and the regulations to repeal were pre-published in part one of the Canada Gazette in December 2011.

Mr. Bernhardt: That is correct. By way of partial explanation for the fact that these have been before the committee since 1990, the issue is that these regulations not only were no longer being used, but no longer capable of being used. They went hand in hand with another set of regulations made by the Atlantic Pilotage Authority and provided for a joint board of examiners to issue pilotage licences for areas where pilots were not compulsory. In other words, you did not need to have a pilot, but if you did that pilot had to be licensed jointly by the two bodies.

That whole scheme fell into disuse. The Atlantic Pilotage Authority revoked their regulations. The Laurentian regulations stayed on the books and the committee kept pursuing the suggestion that if they were a dead letter, they should be simply revoked. That was agreed to after considerable prodding. The proposed revocation was pre- published. As the committee has been advised, there were then three notices of objection filed to the revocation of the regulations. One of those notices of objection was copied to the committee and it is in the materials this morning.

That was the objection filed by the Canadian Marine Pilots' Association. Their objection is not so much with removing the regulation that is not being used but the fact that the whole scheme fell into disuse in the first place. They are arguing for a return to the pre-1990s situation. Rather than having no requirement for a pilot in these areas, they would like a requirement that the pilot is not compulsory, but you are required to use a licensed pilot if you choose to have any pilot. Their argument is not so much with the committee and it is recognized in their objection that all the committee was saying was if these things are not being used they should be removed.

When there is a notice of objection filed under the Pilotage Act, the minister is required to appoint someone to undertake an investigation and make a report to the minister on whether the proposed amendment to the regulations — or in this case the revocation — is in the public interest.

It is not really the committee's concern what scheme is or is not in place; it is simply that if the regulation is not being used it should not be there. There is little choice but to wait until this investigation and report to the minister is completed and see where it goes from there.

Mr. Breitkreuz: I agree. Just monitor the file.

The Joint Chair (Senator Runciman): Are we agreed with that approach?

Hon. Members: Agreed.

SOR/2002-307 — MARINE LIABILITY REGULATIONS

(For text of documents, see Appendix J, p. 11J:1.)

The Joint Chair (Senator Runciman): This item has been before the committee since 2007. Amendments to the regulations were to be made after passage of Bill C-7 in 2009 and Transport Canada says the amendments will be published in the Canada Gazette in the fall of this year.

Is there anything to add counsel?

[Translation]

Mr. Rousseau: As to the amendments you have mentioned, if the committee is in agreement, counsel once more will monitor this file in the usual way and keep the committee advised of any progress.

I would like to mention the other matter dealt with in the December 13, 2011 letter. This is the coming into force of the Act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other Acts. The matter is mentioned only to indicate to the department that the committee is examining it independently.

I remind committee members that the committee considered the file on SI/2009-102 at its meeting of March 29, 2012. As the committee asked, counsel contacted the department both in writing and by phone, proposing a meeting in order to discuss the matter. The department finally chose to reply in writing. So we are awaiting its response in the coming months.

[English]

The Joint Chair (Senator Runciman): In answer to a meeting?

Mr. Rousseau: They declined to meet us. They would rather answer by letter.

The Joint Chair (Senator Runciman): That is interesting.

Is there discussion? Do we simply wait to see what the response is? Is that the approach the committee wants to take?

Hon. Members: Agreed.

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

(For text of documents, see Appendix K, p. 11K:1.)

Mr. Bernhardt: When the committee reviewed this order, it came to light that the BC Vegetable Marketing Commission was collecting levies pursuant to its federal power with regard to vegetables marketed outside the province, even though there was no valid federal order in place. Eventually, following appearances from witnesses from the BC VMC, Agriculture and Agri-Food Canada and the Farm Products Council, that particular problem was solved, and a proper order was put in place in 2008.

At this committee's further prodding, the council undertook a broader review, and it came to light that there were 13 other unspecified boards across the country that potentially had the same problem, i.e., they were collecting monies illegally. Since then, the council has been working on rectifying the situation. Last month, it reported that there have been some delays but final approval of the regulatory impact analysis statement, which will accompany the remedial orders, is expected in the coming weeks.

By word of caution, at some time there may be a need for the committee to consider whether it would be necessary to ask Parliament to retroactively validate levies collected in the absence of federal orders, even after a proper order is in place going forward. I suppose that is a discussion for another day once the committee sees the actual solution. For now, it will be a matter of monitoring developments and writing back to the council if those remedial orders do not come forward this spring.

The Joint Chair (Senator Runciman): Are there comments? Are members agreed?

Hon. Members: Agreed.

SOR/2005-41 — PROHIBITION OF CERTAIN TOXIC SUBSTANCES REGULATIONS, 2005

(For text of documents, see Appendix L, p. 11L:1.)

The Joint Chair (Senator Runciman): The draft regulations were published in the Canada Gazette in July 2011, and the final version is expected by the end of this calendar year.

[Translation]

Mr. Rousseau: As you said, Mr. Chair, we are expecting the amendments to be passed this year. Counsel simply have to monitor the file and keep the committee advised of any progress.

[English]

The Joint Chair (Senator Runciman): Are members agreed?

Hon. Members: Agreed.

SOR/2007-176 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1433 — NEOTAME)

(For text of documents, see Appendix M, p. 11M:1.)

Mr. Bernhardt: The issue here is simply that the French version uses two different terms to render the English term "nut spread." An amendment to achieve consistency is to be part of a broader package. The original date for that was spring 2010. That timetable has been pushed back more than once. In December 2011, the department indicated that the amendment was expected by the end of fiscal year 2011-12. Fiscal year 2011-12 has come and gone, and the amendment has yet to be made.

By way of recommendation, we could ask the department when it expects this completion date to be. The suggestion could be made that if this small part of the broad package will be delayed further, then perhaps this amendment could be processed independently.

The Joint Chair (Senator Runciman): Counsel is recommending a letter with respect to updating the intentions of the department in terms of proceeding.

[Translation]

Senator Verner: As I read the various exchanges of correspondence, I see that the letters always end with the assurance that Health Canada acknowledges the importance of our work and appreciates our patience. In the same spirit, I feel that we could write to them again to ask if they have an update for us, given that they acknowledge our work and appreciate our patience.

Mr. Rousseau: That is the formula they always use in all their letters, in all their correspondence.

[English]

The Joint Chair (Senator Runciman): I wonder what the last paragraph will say.

[Translation]

Mr. Rousseau: It comes with the signature.

[English]

The Joint Chair (Senator Runciman): We will write that letter and remind them of the position they have taken in numerous letters.

[Translation]

SOR/2011-205 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY

(For text of documents, see Appendix N, p. 11N:1.)

Mr. Rousseau: Several amendments that the committee was promised were made when SOR/2011-205 was passed. I would just like to point out that one of the amendments to the Meat Inspection Regulations was the removal of a provision that the committee considered illegal.

The correspondence on SOR/2011-205 raises two new points. One is simply to correct some typographical errors. In its letter of February 27, 2012, the Canadian Food Inspection Agency wrote that the necessary amendment should be adopted this year.

As to the other point, the agency recognized that, because of the way in which the regulations are presently drafted, there could be cases in which the suspension of an operator's licence would remain in effect indefinitely. The agency indicated that this will be corrected. However, what it intends to do is not very clear and it would be appropriate to ask them to clarify their intentions before concluding that what they propose will actually resolve the problem.

The agency also indicates that the amendment will be made as part of what it calls its regulatory modernization initiative. This project should, in their view, take at least three years to be completed. At a previous meeting, the committee became aware of this project as it considered another matter. The time that could go by before the project is completed was met with some scepticism.

The joint chairs also wrote to the minister to indicate that the committee would not agree to put on hold all the matters affected by this regulatory modernization project. The minister's reply should therefore also be part of this file too.

That said, if the committee is in agreement, counsel could write back to the agency to ask for clarification on what it intends to do to avoid situations in which the suspensions of some operator's licenses would remain in effect indefinitely. In a word, to clarify which amendments it proposes to make before we go along with its promise.

[English]

Mr. Albas: I appreciate the work that counsel has done on this. Certainly, it is a broader issue than just a single file. We should write back to ask when the department will address the concerns of the committee specific to this file and go from there.

The Joint Chair (Senator Runciman): Are there additional comments? Are members agreed?

Hon. Members: Agreed.

[Translation]

SI/2011-92 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (DEHCHO REGION) ORDER

(For text of documents, see Appendix O, p. 11O:1.)

SI/2011-93 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (TS'UDE NILINE TU'EYETA (RAMPARTS RIVER AND WETLANDS)) ORDER

(For text of documents, see Appendix P, p. 11P:1.)

Mr. Rousseau: A total of five amendments were promised to the drafting of these two orders under the heading "Action Promised." The department has indicated that this should be done in the next version of these two orders; they should be passed by November 30, 2013.

[English]

Senator Moore: Will we simply monitor these to see what happens?

Mr. Bernhardt: Yes.

SOR/2008-150 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2008-1

SOR/2011-164 — REGULATIONS AMENDING THE LIST OF TARIFF PROVISIONS SET OUT IN THE SCHEDULE TO THE CUSTOMS TARIFF, 2011

(For text of documents, see Appendix Q, p. 11Q:1.)

The Joint Chair (Senator Runciman): The next items on the agenda are under "Action Taken." Does counsel want to deal with these three items together?

Mr. Bernhardt: I will do that very quickly, Mr. Chair.

Under item No. 17, SOR/2011-164 made two corrections requested in connection with the other file, SOR/2008-150. Those 2011 amendments in turn gave rise to a new point. That new point was resolved when the tariff item in question was repealed by Parliament. That being the case, these two files can be closed.

SOR/2012-10 — REGULATIONS AMENDING THE STAMPING AND MARKING OF TOBACCO PRODUCTS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix R, p. 11R:1.)

Mr. Bernhardt: Under item No. 18, SOR/2012-10 is there simply to note that it corrects a discrepancy between the two versions of the Stamping and Marking of Tobacco Products Regulations.

SOR/2012-13 — REGULATIONS AMENDING THE SEEDS REGULATIONS

(For text of documents, see Appendix S, p. 11S:1.)

Mr. Bernhardt: Last is item No. 19, SOR/2012-13. The committee had objected to section 14 of the Seeds Regulations on the grounds it imposed record-keeping requirements and a requirement to provide declarations, although there was no clear enabling authority in the Seeds Act for those provisions.

This amendment revokes section 14 and then re-enacts it in Part IV of the regulations, as subsection 98(4). Rather conveniently, Part IV of these regulations is made under the authority of the Canada Agricultural Products Act and not the Seeds Acts. That being the case, the Canada Agricultural Products Act fortunately does permit the requirements in question, so they are now valid.

Senator Moore: To sum up, items 17, 18 and 19 were satisfied and were closed.

Mr. Bernhardt: Yes.

SI/2011-89 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF MACEDONIA COMES INTO FORCE ON NOVEMBER 1, 2011

SI/2011-94 — ORDER TRANSFERRING FROM THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT TO THE MINISTER OF HEALTH THE CONTROL AND SUPERVISION OF THE CANADIAN NORTHERN ECONOMIC DEVELOPMENT AGENCY AND ORDERING THE MINISTER OF HEALTH TO PRESIDE OVER THE AGENCY

SI/2011-95 — ORDER TRANSFERRING TO SHARED SERVICES CANADA THE CONTROL AND SUPERVISION OF CERTAIN PORTIONS OF THE FEDERAL PUBLIC ADMINISTRATION IN EACH DEPARTMENT AND PORTION OF THE FEDERAL PUBLIC ADMINISTRATION KNOWN AS THE EMAIL, DATA CENTRE AND NETWORK SERVICES UNIT AND THE EMAIL, DATA CENTRE AND NETWORK SERVICES SUPPORT UNIT

SI/2011-96 — ORDER TRANSFERRING TO THE COMMUNICATIONS SECURITY ESTABLISHMENT THE CONTROL AND SUPERVISION OF CERTAIN PORTIONS OF THE FEDERAL PUBLIC ADMINISTRATION IN THE DEPARTMENT OF NATIONAL DEFENCE KNOWN AS THE COMMUNICATIONS SECURITY ESTABLISHMENT AND THE COMMUNICATIONS SECURITY ESTABLISHMENT INTERNAL SERVICES UNIT

SI/2011-97 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER

SI/2011-107 — ORDER FIXING DECEMBER 2, 2011 AS THE DAY ON WHICH THE ACT COMES INTO FORCE

SI/2011-108 — ORDER FIXING DECEMBER 2, 2011 AS THE DAY ON WHICH THE ACT COMES INTO FORCE

SI/2011-111 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (EDÉHZHÍE (HORN PLATEAU)) ORDER

SI/2011-112 — ORDER FIXING JANUARY 1, 2012 AS THE DAY ON WHICH SECTION 18 OF THE ACT COMES INTO FORCE

SI/2011-113 — DENISE GAGNON REMISSION ORDER

SI/2011-115 — ORDER FIXING DECEMBER 31, 2011 AS THE DAY ON WHICH SECTIONS 174 AND 175 OF THE ACT COME INTO FORCE

SI/2011-116 — ORDER FIXING DECEMBER 31, 2011 AS THE DAY ON WHICH SECTION 44 AND SUBSECTION 45(2) OF THE ECONOMIC RECOVERY ACT (STIMULUS) COME INTO FORCE

SI/2011-117 — ORDER FIXING DECEMBER 31, 2011 AS THE DAY ON WHICH SUBSECTION 262(2) OF THE ACT COMES INTO FORCE

SI/2011-118 — ORDER FIXING JANUARY 1, 2012 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE

SI/2011-119 — ORDER BRINGING INTO FORCE SECTIONS 86.1 AND 86.2 OF THE CANADA TRANSPORTATION ACT, AS ENACTED BY SECTION 27 OF THE ACT

SI/2011-120 — ORDER FIXING AUGUST 1, 2012 AS THE DAY ON WHICH PART 2 OF THE ACT COMES INTO FORCE

SOR/2005-179 — REGULATIONS AMENDING THE TOBACCO REPORTING REGULATIONS

SOR/2007-74 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (CHARITABLE DONATIONS)

SOR/2008-50 — CALCULATION OF CONTRIBUTION RATES REGULATIONS, 2007

SOR/2008-138 — OUTWARD PROCESSING REMISSION ORDER (TEXTILES AND APPAREL)

SOR/2008-240 — REGULATIONS AMENDING THE NORTHWEST TERRITORIES AND NUNAVUT MINING REGULATIONS

SOR/2010-41 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1604 — FOOD ADDITIVES)

SOR/2010-94 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1353 — CORRECTIVE AMENDMENTS, MISCELLANEOUS PROGRAM)

SOR/2010-166 — SPECIAL ECONOMIC MEASURES (IRAN) PERMIT AUTHORIZATION ORDER

SOR/2010-265 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (TAIWAN)

SOR/2011-61 — RULES AMENDING THE PATENT RULES

SOR/2011-115 — SPECIAL ECONOMIC MEASURES (SYRIA) PERMIT AUTHORIZATION ORDER

SOR/2011-168 — SPECIAL ECONOMIC MEASURES (DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA) PERMIT AUTHORIZATION ORDER

SOR/2011-199 — ORDER 2011-87-08-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2011-200 — REGULATIONS AMENDING THE TORONTO PORT AUTHORITY REGULATIONS

SOR/2011-211 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT

Mr. Bernhardt: Finally, under "Statutory Instruments Without Comment," I note for the record that 31 instruments are simply listed and have been reviewed by counsel and found to comply with all the committee's criteria.

For the benefit of new members, I would note that there are no materials for these items circulated to members. However, copies of the regulations are always brought to the meeting and are available if any member has questions or wants to have a copy or see one of those instruments.

Senator Runciman: Thank you.

That completes the agenda. Does anyone want to raise any additional issues?

Mr. Albas: I want to again welcome the joint chair, and I look forward to a very productive term under her watch.

The Joint Chair (Senator Runciman): The meeting is adjourned.

(The committee adjourned.)

---