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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 21 - Evidence - June 1, 2017

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OTTAWA, Thursday, June 1, 2017

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Albrecht): For our first agenda item this morning, all committee members have received the updated package on the Miscellaneous Statute Law Amendment Program, or MSLA. I'm going to ask counsel to walk us through that first.

Evelyne Borkowski-Parent, General Counsel to the Committee: Good morning. The MSLA, or the Miscellaneous Statute Law Amendment Program, is a form of housekeeping bill that is used to correct inconsistencies and errors in federal statutes. It's worth noting that the program does not have a formal statutory basis. Rather, it was created by the Department of Justice with the approval of cabinet in 1975.

According to the Department of Justice's website, in order to qualify for the MSLA Program, a proposed amendment cannot be controversial, involve spending of public funds, affect negatively the rights of persons, or create new offences.

The legislative process for such a bill is also quite different. First, the Department of Justice will prepare a document containing the proposed amendments. That document is then tabled in Parliament for review by a committee of each house. After the committee's report, a bill containing only the amendments that have been approved by both committees will be prepared by the Department of Justice. The bill is then introduced in Parliament and usually receives three readings without debate, since the amendments have already been considered.

Since its inception in 1975, the MSLA Program has been used on 11 occasions. Fourteen years have lapsed between the last MSLA in 2015 and in the previous exercise in 2001.

It was brought to our attention at the May 11 meeting that a new set of proposals had been tabled earlier that week. It remains the case that there are a number of committee files for which a statutory amendment is required in order to be closed. Consequently, counsel examined the proposal to see if it would address any of the committee's concerns, particularly in light of some of the correspondence that the committee has addressed directly to the Department of Justice on the very issue of the MSLA.

After examination, only two of the proposals would resolve issues raised in connection with committee files.

The co-chairs then sent a letter to the Chairs of the Senate Legal and Constitutional Affairs Committee and of the House of Commons' Justice and Human Rights Committee, which were reviewing the proposals.

You will find among your documents the letter and a list of the 20 files for which the committee is awaiting a statutory amendment. There's a table as well and a description of each file.

Some of these files would probably not meet the requirements of the MSLA. In fact, items such as 4 and 5 have been flagged as requiring a statutory amendment, but the department has not given any indication as to what those amendments would entail.

Certain amendments, however, could fall within the parameters of the MSLA. I would like to bring to your attention Items 7 and 8 in the chart. Item 7 pertains to subsection 84(1) of the Criminal Code, which provides for an exemption to the definition of prohibited firearm, prohibited device for firearms and devices used in competitions of the International Shooting Union.

That organization changed its name to International Shooting Sport Federation in 1998, and the matter was brought to the attention of both the Department of Public Safety and the Department of Justice in 2012. You can find a chronology on this file at the end of the documents.

In fact, Item 64 of the proposals for the MSLA changes the name of another organization, so it remains unclear why this one had not been included.

Item 8 deals with a discrepancy between the English and the French version of section 53 of the Canada Lands Surveyors Act where the English version would be more restrictive than the French. That discrepancy was raised in 2004 with the Department of Natural Resources and was the subject of considerable back and forth with the department over the years. You can read all about it in the chronology that we provided for you.

In the more recent past, however, because the amendment had not been included in the last MSLA Program and because the department indicated it was not intending to amend the act unless it was through the MSLA, the question of whether the amendment to section 53 of the act was a suitable candidate for the MSLA Program was put directly to the Minister of Justice in a letter from the co-chairs sent last June.

The minister's response dated October 27 does not directly answer the question, but it nevertheless states that the Department of Justice official would follow up with Natural Resources Canada at the earliest opportunity in the MSLA process.

Further to that letter, members elected to have the co-chairs write back to the minister underlining the importance of the MSLA Program, suggesting that the exercise be undertaken yearly and offering the secretariat's assistance in providing a list of outstanding committee amendments.

The Department of Justice never reached out to the secretariat to obtain that list, and unfortunately the amendment was not included in the latest MSLA proposal.

The committee received a response to the co-chairs' letter from the Justice and Human Rights Committee's chair late last week, which is, again, in the additional materials. Mr. Chair indicates having asked the Department of Justice for explanations on the exclusion of the two amendments mentioned earlier. I will quote the letter:

So from a preliminary analysis, it appears that neither potential amendment indicated in your letter, namely subsection 84(1) of the Criminal Code and section 53 of the Canada Lands Surveyors Act, were requested by the responsible departments. More precisely, neither the Department of Justice nor the Department of Natural Resources had asked further to the MSLA call letters sent in the summer of 2015.

In short, the Department of Justice seems to have forgotten to ask itself to have a 19-year-old outstanding amendment included in the MSLA.

As for the amendment to the Canada Land Surveyor's Act, despite the committee's insistence both with the Department of Natural Resources and the assurance from the Department of Justice that it would work with Natural Resources at the earliest opportunity in the MSLA process, it seems to have fallen through the cracks as well.

This summarizes the current MSLA. It would appear that the committee's hopes to see some of its outstanding files resolved were in vain.

The Joint Chair (Mr. Albrecht): For clarification, Items No. 1 to 4 on the addendum are already enacted?

Ms. Borkowski-Parent: That's the second chart. Those are bills that are currently tabled that would address four other files.

The Joint Chair (Mr. Albrecht): What is the committee's wish in terms of following up with the Department of Justice and other departments to have this MSLA issue clarified?

Mr. Genuis: Can you just clarify in terms of the legislative process? You were talking about it in terms of the back and forth, but at the end of the day there will be a bill proposed by the Minister of Justice and it will go through the same process.

If we have outstanding issues, and I think the points you made are good ones, we should notify the department and the minister of those concerns, and hopefully they are added in when the bill is proposed.

Ms. Borkowski-Parent: Actually, the legislative process after the proposals have been studied in committee is an accelerated, no-debate one. If an amendment has not been agreed to by both committees of the Senate and the House of Commons, it cannot be added afterwards because the MSLA bill will just go through three readings without debate.

Mr. Genuis: So it has the same votes but no debate? Is there a subsequent committee study between second and third reading, or do we just all vote once and then it's passed?

Ms. Borkowski-Parent: I don't think there's any further committee study.

Mr. Genuis: I see.

Ms. Borkowski-Parent: It's sort of a pre-study and then the bill goes through without debate or any further study.

Mr. Genuis: Is there a realistic prospect for us to make these changes at this point? Are we just kind of finding out that this is what it is?

Ms. Borkowski-Parent: I think the House of Commons Justice Committee has already studied the proposals, so at this point it would seem unlikely that something could be added. It all happened very quickly. It remains the case, though, that no matter what the reason is, a lot of committee files could have been resolved and they have not been.

The Joint Chair (Mr. Albrecht): If I recall correctly in your presentation, general counsel, the idea was to have the MSLA process be an annual thing instead of every 15 years. Would that help to solve the problem if we were, as a committee, to insist on that kind of a cycle?

Senator Runciman: The Senate Legal and Constitutional Affairs Committee has not dealt with this yet. Maybe the House of Commons has, but the Senate hasn't. We have received a letter.

Is it a comprehensive letter — I can't recall — dealing with all the issues you raised here today?

Ms. Borkowski-Parent: Yes.

Senator Runciman: I would be optimistic that the Senate committee would be supportive of the committee's concerns.

Jean-Marie David, Joint Clerk of the Committee: I just want to clarify the legislative process. It would be a normal legislative process with all the readings. It's just that usually there would be unanimous consent to do all three at the same time, so there would probably be an opportunity for members to intervene at the beginning of the process.

Normally, the process would be that you do all the readings at the same time and it's not referred to a committee.

Mr. Genuis: That would be the process that often happens because of unanimous consent, but in the absence of unanimous consent, the bill is still debatable, would go to a second reading vote, be referred to committee, go through the report stage and, finally, third reading?

Mr. David: That's correct.

Mr. Genuis: Well, then, I guess we do have the opportunity of inserting these things.

I would propose that we write to the Justice Committee and the same committee in the Senate identifying our concerns, expressing the fact that going forward we would like to be actively engaged in advance in terms of this process so that we can provide input, and make them aware that there are issues we want to work with them on. Hopefully those issues are addressed in the Senate, and then they can come back to the House of Commons committee and we can have unanimous consent in the house and move it through quickly.

Ms. Borkowski-Parent: I would say, looking at how things have happened on this particular exercise of the MSLA, the problem is not when it reaches committees of both houses; it's when the proposals are developed.

There was correspondence directly with the Department of Justice on the inclusion of some of these amendments in the next MSLA at the request of the committee. The answer we seemed to hear back was that those departments have not asked that this proposal be included in the MSLA, one of which is the Department of Justice.

Once the proposals have been tabled and have reached both committees, it's pretty much already too late.

Mr. Genuis: It seems that the problem, then, is both. Obviously it would be better if these proposals were included by the departments in the first place, but also if the committees are aware that there's another committee that's following this issue and has concerns, then it creates an opportunity for members of the Justice Committee to ask the department, "Well, have you engaged with the Joint Committee for the Scrutiny of Regulations and have their proposals been included?'' Then they should ask us, and then they can come back and pose those questions. It creates an accountability for what has happened before at that committee stage.

Perhaps the logical course is to write to both the Justice Department and to the committees. I think certainly we want to let the committees be aware of these issues so that they can provide the appropriate pushback and make the right changes.

Senator Runciman: We went through this a couple of years ago, and I wonder if anyone recalls what the experience was. I know that Mr. Bernhardt had submitted a letter to the Legal Committee, and I think we were receptive to the recommendations made by this committee. Did that have any impact at the time? I can't recall.

Ms. Borkowski-Parent: I don't think it did.

The last MSLA in 2015 resolved more committee files than it did in this instance. There were 10 or 12 as opposed to 2. I don't recall if the intervention of this committee yielded any result.

To go back to Mr. Genuis's point, both committees — the Senate Legal and Constitutional Affairs Committee, and the House of Commons Justice and Human Rights Committee — received a letter from the co-chairs with that table and explanation on each file prior to this meeting. They were alerted to the committee's concerns.

The Joint Chair (Mr. Albrecht): I may be misunderstanding this, so I stand to be corrected, but the last paragraph of the letter from Mr. Housefather says: "On that note, both potential amendments have been flagged to the relevant people for consideration for next MSLA cycle.''

I think that's appropriate, provided the next cycle isn't years and years away. Could we as a committee demand or request that the next MSLA cycle be speeded up? I don't know if that's an appropriate request.

Ms. Borkowski-Parent: That request that it be undertaken on a yearly basis was made to the Minister of Justice in the letter of December that is in your package.

That being said, if, as was the case in this instance, committee amendments are not included again —

The Joint Chair (Mr. Albrecht): We're left with no action.

Senator Runciman: I have another question on the process. These are consultation papers that are an indication of pre-study, as you called it, but has the legislation been tabled in the house?

Ms. Borkowski-Parent: No.

Senator Runciman: Well, then to me, if it hasn't been tabled, we shouldn't be encouraging action at some point in the future. We should be encouraging action now. If the legislation hasn't been tabled, I don't think these are complicated amendments or changes that we're suggesting.

I think we should put the pedal to the metal here and say, "Look, let's see these when the legislation is tabled; they should reflect the concerns and suggestions of this committee.''

The Joint Chair (Mr. Albrecht): I see general agreement with that idea. Do you want to make that a motion, Senator Runciman?

Senator Runciman: So moved.

The Joint Chair (Mr. Albrecht): Any further discussion on that?

I think we're all agreed. So ordered.

Ms. Borkowski-Parent: So a letter from the co-chairs to the Minister of Justice?

The Joint Chair (Mr. Albrecht): We expect it to be included when the legislation is tabled.

Thank you very much to our general counsel for guiding us through that very complicated maze.

GLOBAL AFFAIRS CANADA FILES

(For text of documents, see Appendix A, p. 21A:1. )

The Joint Chair (Mr. Albrecht): We will now move on to Item 1 on our agenda. There's a summary of the communication with Global Affairs Canada and a number of files that need to be dealt with, so I will ask our general counsel to walk us through Item No. 1.

As you have noted, committee members, many of the items in No. 1 are repeated in more detail through the rest of the package, so we will try to get as many of the common areas dealt with at once, and then we'll go through the areas that have unique circumstances within them.

Ms. Borkowski-Parent: You will have noticed by now that the rest of this morning's agenda is constituted of files emanating from Global Affairs Canada, which implement either UN resolutions or impose special economic measures. These files are similar in many regards. Furthermore, it had become impossible to obtain any response from the department on these files, which resulted in many letters sent to the minister over several years.

As of last fall, however, it seems like we have had a breakthrough with the department, and the replies have been coming more regularly. It remains the fact, however, that these particular files had been outstanding for a number of years and the committee had never received any response on the substance of the issues raised.

That makes for a very lengthy letter which covers many points that intersect on many files. In an attempt to avoid repetition, I suggest that we go through Item 1, that is, issues that are common to several files as they are identified in the department's letter of October 4, and summarized in the table prepared for you.

The Joint Chair (Mr. Albrecht): It's the table that looks like this. I think you all have it in front of you. It's dated May 19, 2017, with the number 1 on it, and then immediately behind that, you'll find the tables.

Ms. Borkowski-Parent: Whatever decision the committee makes on each point will then be carried out on the individual files that are stated in the third column. Please bear with us. The brunt of the substantive matters is in the common issues, and going through the individual files afterwards should be relatively quick.

On to the first common issue, which is the prohibition on doing something or anything that causes, assists or promotes a prohibited action. The essence of the discussion was around the word "promote.''

First, the French version used only one equivalent for assist and promote, which was "favoriser.''

Second, it was unclear which actions would not fall under the meaning of "assist,'' and that would be covered by the meaning of "promote.''

Furthermore, "promote'' could encompass activities which would seemingly be protected by the Charter. On that particular point, the department has agreed to amend the various provisions to ensure that Charter rights, notably the right to free speech, would be protected. In fact, one such provision, section 7 of the regulations implementing the UN Resolutions on Iran, has been amended to replace "promote'' by "facilitate,'' and it is expected that that provision will serve as a template for the other regulations as well. So a follow-up on the promised amendments could be made on this point.

The Joint Chair (Mr. Albrecht): Is there general agreement on that change? As you went through the files, you can see that this issue raised itself almost on every file. If we deal with it as a general principle, it's clear that it will be applied across all files.

Mr. Genuis: Do you mind walking out for us practically, with one example, what the prohibition on free speech would look like in this case? How does this walk itself out practically?

Shawn Abel, Counsel to the Committee: The exact nature of the prohibitions differ a little bit in each of these files, but generally there are prohibitions, and they are very broadly worded, on doing anything that assists or facilitates providing support services to designated persons or to certain designated states or providing material or equipment; sometimes military equipment, sometimes any equipment, financial services and any of this sort of thing.

Because they are so broadly worded, it's sometimes difficult to understand exactly what the drafters had in mind, and that's something we see in some of the later common issues. But the word "promote,'' by its inherent nature, seems to encapsulate speech. What's the word I'm looking for? It is any sort of encouragement or communication that might be seen as encouragement or directing people to do things, and so we raised as an issue the fact that it might include that.

The response that we got back didn't provide examples that would illuminate what that might be. The department simply agreed that, yes, it could be problematic and so they will change the language. That's what we have.

Mr. Genuis: To simplify it, if someone posts on their Facebook page, "We should be selling arms to Iran,'' the question is whether that violates the provisions of the regulations by promoting or —

Mr. Abel: On the face of it, that kind of example would seem to violate the prohibition, yes.

Mr. Genuis: So that's the need for clarification, then?

Mr. Abel: Yes.

Mr. Genuis: Okay, thanks.

The Joint Chair (Mr. Albrecht): I think there's a fairly good explanation on page 2 of the second item, where it talks about section 13 and action promised.

Mr. Dusseault: On the prohibition, I understood that there were similar regulations that used different words. Is that correct? And is this the way the department is looking at going forward, to take the words on other regulations that do not include the word "promote,'' the kind of language that is problematic here?

Mr. Abel: What the department has done is the regulations concerning Iran have been amended. They have replaced "promote'' with "facilitate,'' which in our view would not include forms of expression. From what we understand, that's the approach they're going to take with all the files at this point, and that seems acceptable.

Ms. Borkowski-Parent: If I may add, in the department's response there is often a reference to the fact that those amendments will be made at the next available opportunity, or language to that effect. It's worth noting that there are a number of UN resolutions that have been made since January of this year that might trickle into amendments to the Canadian regulations. So it might be in the near future, depending on what those UN resolutions entail — there are a number of them and I have them here — and if they require amendments to the regulations, but that could be happening as things develop on the UN side.

The Joint Chair (Mr. Albrecht): Is there any further discussion? If not, are we in general agreement to suggest that substitution of "facilitates'' for "promotes'' in all instances?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): We will move on to the next item.

Mr. Abel: Addressing item (B), this issue arises from the requirement found in a number of regulations to disclose to the Commissioner of the RCMP, and in some cases to the Director of CSIS, the existence of property in one's possession or control that that person has reason to believe is owned or controlled by a designated person. There is also a related requirement to disclose information about a transaction or proposed transaction in respect of that property.

Two issues were identified in connection with this provision: whether it could cause persons to incriminate themselves and whether it is ultra vires of the enabling act.

Concerning the potential for self-incrimination, the department in all cases has agreed to make amendments in order to add a statement to the effect that no proceedings under the act and no civil proceedings lie against a person for disclosure made in good faith. This would seem to be sufficient to protect an individual against the risk of self- incrimination.

With respect to the question of whether the provision is authorized under the enabling act, the answer differs, depending on whether the regulations are made under the United Nations Act or under the Special Economic Measures Act.

If members consult the common issues table under item (B) in Item 1 of the agenda, the three regulations made under the Special Economic Measures Act are indicated with an asterisk. Those are dealing with Burma, Zimbabwe and Syria. All others were made under the United Nations Act.

For those regulations made under the United Nations Act, the enabling authority found in section 2 of the act is extraordinarily broad, permitting the Governor-in-Council to make such orders and regulations as appear to him to be necessary or expedient for enabling a measure decided upon by the Security Council of the United Nations. This expansive power would suffice to authorize any provision that could be shown to be rationally connected to a relevant Security Council resolution.

The department suggests that the requirement to disclose property to the RCMP or CSIS is necessary to be able to enforce the sanctions or prohibitions established by the Security Council, in particular, in order to determine the existence of property and who controls it so that the property may be seized or forfeited or detained.

While it may be arguable whether the disclosure is actually necessary, it is within the Governor-in-Council's authority to determine that this requirement is necessary or expedient for enabling the measures imposed by the Security Council to be enforced. Therefore, this requirement would seem to be authorized under section 2 of the United Nations Act.

If members are in agreement, the question of validity under the United Nations Act could be considered satisfactory. The promised amendment to address the issue of self-incrimination could be followed up by a further letter seeking a time frame.

The Joint Chair (Mr. Albrecht): For clarification on the validity part, you're suggesting that we are probably okay to leave it as is, and on the self-incrimination aspect, that we ask for a timeline as to when that will be included?

Mr. Abel: That's correct. Then I'll go on to discuss the other three points.

The Joint Chair (Mr. Albrecht): Do we want to stop and consider those first?

Mr. Abel: That might be a good idea.

The Joint Chair (Mr. Albrecht): Is there general agreement to that summary from Mr. Abel?

Hon. Members: Agreed.

Mr. Abel: Turning to the three regulations made under the Special Economic Measures Act, which are still under this agenda item (B), the enabling authority is quite different here and considerably narrower. The Governor-in-Council is only empowered to make regulations with respect to the restriction and prohibition of dealing in property.

There are two apparent shortcomings with this. First, dealing in property concerns transactions related to property but does not include the mere possession or control of it. The disclosure requirement, however, includes reporting on property under the possession or control of a designated person.

Second, even concerning dealing in property, the requirement to furnish information to government officials imposes a substantive obligation. The power to prescribe such a requirement must be conferred either expressly or by necessary implication in the enabling act; it is not simply ancillary or incidental to some other regulation-making power.

The department contends that the disclosure requirement is authorized by necessary implication; in this case, that it's necessary in order to be able to issue seizure orders under the act.

While requiring financial institutions to disclose designated property is doubtless very useful in enforcing a system of economic sanctions, it does not necessarily follow that it is necessary. It may be that Parliament intended for the executive to rely upon normal methods of investigation in order to identify such property.

Imposing a disclosure requirement to assist in the seizure of property amounts to a serious exercise of legislative power, with significant implications for the rights and liberties of individuals. If Parliament intended to authorize regulations compelling that kind of disclosure, presumably it may have said so in the act itself.

In summary, it appears that the requirement to disclose information to the RCMP or CSIS may not be authorized under the Special Economic Measures Act. If the department feels the requirement is necessary, perhaps an amendment to the act should be sought.

If members wish, this could be put to the department for further response.

The Joint Chair (Mr. Albrecht): Just to clarify, you said "If the department feels,'' but I think you meant if the committee wishes to ask for that clarification.

Mr. Abel: What I meant to suggest is that it's the department's view that this is a necessary feature for them to be able to enforce the sanctions regime. If that holds, then presumably they would want to see that clarified in the act.

The Joint Chair (Mr. Albrecht): And this same principle would apply to Burma, Zimbabwe and Syria?

Mr. Abel: Yes, that's correct.

The Joint Chair (Mr. Albrecht): For clarification, under Burma, Item No. 2, page 5, just above the heading "Self- incrimination,'' there's a recommendation from counsel that may be helpful to make sure that we are on top of what is being requested here:

. . . it would seem that Parliament should be asked to provide clear authorization in the Special Economic Measures Act. Absent clear authority, it would seem that subsection 15(1) of the Regulations is ultra vires.

Is that the essence of what we are asking for?

Mr. Abel: Yes.

The Joint Chair (Mr. Albrecht): Is there agreement that we would ask the department to clarify these issues either in the Special Economic Measures Act or some fashion that is acceptable to the committee?

Hon. Members: Agreed.

SOR/2008-248 - SPECIAL ECONOMIC MEASURES (ZIMBABWE) REGULATIONS

(For text of documents, see Appendix C, p. 21C:1.)

Mr. Abel: Item (C) relates to a number of regulations implementing resolutions of the UN Security Council. Persons are listed by the Security Council to whom the regulations then apply. Different questions were raised under these various files as to precisely how the process to be delisted by the Security Council was meant to function. These questions revolved around the minister's role as an intermediary in conveying an application to be delisted to the Security Council.

The department indicates now that the Security Council has implemented a procedure for applications to be made directly to it. The regulations will, therefore, be amended to remove the minister's role from the process in all of these regulations.

The Joint Chair (Mr. Albrecht): So under (A), (B) and (C), we also have now agreed that we agree with the proposed recommendations for an amendment. Are we thinking about the possibility of inserting a timeline to have those amendments put into place? That's something we could begin to think about in terms of realistic timelines. Maybe counsel has recommendations as to an appropriate timeline.

Mr. Dusseault: As I understand, it's mostly an amendment to the act? Or to regulations? In the last instance, I think it was to amend an act, which is more difficult.

The Joint Chair (Mr. Albrecht): Good point.

Counsel, do you have any thoughts? Do we want to deal with them all and then discuss timelines?

Mr. Abel: As the committee wishes, we could do that now or later.

There are a large number of promised regulatory amendments, some of which we have discussed and more we will get to. I think the chair was talking about the timeline the committee might expect for the regulatory amendments. Statutory amendments are, of course, an entirely different ball game, as it were.

The Joint Chair (Mr. Albrecht): Let's confine our discussion to the regulatory amendments. Is six months reasonable, or is that way too early or way too late? I need input from people who are working with this every day.

Mr. Abel: As the general counsel mentioned, there may be some forthcoming this year that the committee can expect. Traditionally, the committee has considered a reasonable amount of time to be, at the maximum, two years.

The Joint Chair (Mr. Albrecht): Two years?

Mr. Abel: That does not mean that members necessarily want to take that approach today, but that is traditionally what has been stated.

The Joint Chair (Mr. Albrecht): We're a pretty non-traditional committee. What do you think, members?

Mr. El-Khoury: That's too long.

The Joint Chair (Mr. Albrecht): One year? I hear one year being suggested. I see nodding of heads. Let's ask for one year on the regulatory amendments, and then as we go through, we'll assume that's implied for all of the rest.

[Translation]

Ms. Borkowski-Parent: In terms of item (D), the provisions in question require the designated entities to determine on a continuing basis whether they are in possession or control of property owned by a designated person. Since there is also a general prohibition on dealing in such property, the department was also asked to add a duty to continuously examine.

The department suggests that this is an additional exercise that requires more diligence and care from the designated entities. Moreover, the Criminal Code also includes such a requirement, and the department would be entitled to rely on a similar wording for a regime with similar purposes.

Therefore, if it pleases the committee members, the explanation concerning item (D), in the context of common issues, could be deemed satisfactory.

[English]

The Joint Chair (Mr. Albrecht): Any concerns? Seeing none, we'll all agree that it's satisfactory.

Next is item (E).

[Translation]

Ms. Borkowski-Parent: The next section involves a drafting problem. The provisions in question set out that if it is established that the applicant is not a designated person, the minister shall issue a certificate to the applicant within 15 days after the day on which the application is received.

Syntactically, the 15-day period is related to the receipt of the application and not to when the determination that a person is not designated is made. Therefore, it may be that the determination can be made more than 15 days after the receipt of the application and that the minister would therefore be in breach of this provision of the regulations. The provision at issue in the Regulations Implementing the United Nations Resolutions on Iran has already been revised to resolve the ambiguity.

Similar amendments are expected for the regulations on Eritrea.

[English]

The Joint Chair (Mr. Albrecht): So the ones dealt with, the ones promised and we'll go again with the one-year expectation in terms of follow-through.

Next is item (F).

SOR/2011-114 — SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-220 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-330 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

(For text of documents, see Appendix F, p. 21F:1.)

Ms. Borkowski-Parent: The respective provisions explain the reason why the persons listed in the schedule to the regulations — so the designated persons — have been so listed. There's no legal effect to these provisions, and they seem to have been included for informational purposes only.

The purpose of legislation, however, is to define obligations, duties and rights. In short, they are to set out rules of conduct. Providing background information regarding the making of the regulations would be more appropriately provided for in the RIAS or by administrative means. This information could also be provided in the future in the recommendation portion that precedes the instrument that is made by the Governor-in-Council.

The department suggests that this provision is more than merely informational, as it declares that the Governor-in- Council was satisfied that there are reasonable grounds to believe the designated persons fall into one of the classes of persons described. This is said to inform the designated persons as to what issues they would need to address in an application to be delisted from the schedule and what factors the Governor-in-Council should consider.

This seems, at best, to be a remarkably indirect way to set out factors for consideration in a delisting application. If this is the actual intention, these factors ought to be more clearly expressed as such and ought to be located near the provision that actually deals with delisting applications. This point could be further pursued with the department.

Mr. Genuis: On this specific point, I actually am inclined more to the department's perspective. With something like economic sanctions, it's very important to link the listing of a person or entity with the specific reasons why. The purpose of sanctions is to induce a change in behaviour. Including specifically with that listing the reasons for the listing makes sense.

In any event, I don't think it's a priority for the committee to pursue the resolution of that particular item, given that the way it's done now doesn't cause any problems. Perhaps, arguably, it has unnecessary information in certain places. I see the information as important and necessary. At worst, it's harmless.

The Joint Chair (Mr. Albrecht): Any further input by committee members?

So we have the recommendation from counsel. In the Burma case, it's on page 2, the last paragraph under section 1. It is simply asking that they reorder the positioning of the delisting and then the persons listed.

Or we can leave it. That's up to the committee. We have one suggestion to just close this file and leave it as it is. Or we can follow the counsel's direction or suggestion in terms of follow-through.

Mr. Spengemann: Is the fact that this information historically hasn't been included in the RIAS or in other "chapeau'' documentation? Is that why this step was taken to include it in the regulation itself?

I agree with Mr. Genuis: There's an expediency there. If it's not anywhere else and it's here, it's probably valuable to have it.

Mr. Abel: In the specific case of the special economic measures sanctions regulations are sort of a new vehicle. There is no precedent.

In general terms, the law tends to presume that nothing is superfluous and, therefore, the committee tends to take a view that unnecessary provisions or statements shouldn't be there where they could be provided outside the law.

However, in this case, if members are inclined to find a special reason to think it should be there, we're in the committee's hands.

The Joint Chair (Mr. Albrecht): Any further input?

I'm sensing that we're prepared to leave this one alone and not make further issue of it. I see general agreement on that. One less letter for you to write.

We will move on to item (G).

[Translation]

Ms. Borkowski-Parent: So, the point is similar to the item (E) common issue, regarding the timeframe for issuing a certificate indicating that a person is not a designated person is related to the receipt of the application and not to when the minister's determination is made. In addition, the minister does not seem to be required to make a decision within the required timeframe.

Once again, the minister would therefore be in breach of this provision of the regulations. The department is committed to making the amendments in order to indicate more clearly that the minister must render a decision within the required timeframe and issue a certificate.

Follow-up could be done to determine when the amendments will be made.

[English]

The Joint Chair (Mr. Albrecht): Again, if there's agreement, we'll proceed in the manner of a one-year implementation.

Seeing agreement, we'll proceed to Item (H).

SOR/2014-163 - REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE CENTRAL AFRICAN REPUBLIC

(For text of documents, see Appendix H, p. 21H:1.)

Mr. Abel: There are two issues raised under this item. Starting with the first issue, the English version of one provision found in the listed regulations prohibits knowingly making any property or financial service available to a designated person. Then a second provision prohibits making property or financial services available for the benefit of that person. It was unclear what kind of activity would fall under one of those provisions and not the other, or whether these were redundant provisions.

The department believes that it may be possible to describe some activities as being for the benefit of a person but not as being available to that person. The example given is where a person in Toronto allows their home to act as security for a loan issued to a designated person by a bank in Cairo. The property in that case is not being made available to that person, but it is being made for their financial benefit.

The department suggests that the broadest possible wording is necessary to ensure all intended activities are captured by these prohibitions.

There does appear to be some room for nuance between these terms, and the example given seems to highlight that difference. The explanation could be considered satisfactory.

A second issue was also raised as to whether the wording in the French version of these regulations effectively creates a duty to intervene in the making of property or services available to a designated person. The department acknowledges this concern, but it does wish to undertake consultations before providing a reply.

If members wish, counsel could monitor and follow up on obtaining that substantive reply.

The Joint Chair (Mr. Albrecht): I see agreement with that.

Mr. Genuis: The example of the home used as security for a loan is a clear example of someone doing something that we wouldn't want to see happen.

But it strikes me that "benefit'' is still over-broad, that "benefit'' could be further defined as pertaining specifically to willfully doing something that provided a financial benefit to somebody as opposed to leaving the word more ambiguous. What do you think about that?

Mr. Abel: In the context of these provisions, that wasn't raised, but we will be coming to a common issue further on that deals more generally with the broadness of the prohibitions, their scope and reach. I might suggest we wait until we get to that common issue because it's more encompassing to all the language used in provisions and how they connect together.

Mr. Genuis: Can we reserve final decision on this item then until we get to that, Mr. Chair? Is that okay?

The Joint Chair (Mr. Albrecht): We will come back to item (H) after we have dealt with common items under other situations.

Mr. Abel: It's the next item.

SOR/2014-212 - REGULATIONS AMENDING THE UNITED NATIONS AL-QAIDA AND TALIBAN REGULATIONS

(For text of documents, see Appendix I, p. 21I:1.)

Mr. Abel: Item (I) deals with the prohibition on knowingly doing anything that causes, assists or promotes or is intended to cause, assist or promote any act or thing prohibited by a number of other provisions listed in the regulations. This prohibition applies whether these things were done directly or indirectly.

It was noted that this provision is quite broadly worded and might be seen to infringe section 7 of the Canadian Charter of Rights and Freedoms in the sense that it may be vague or over-broad. I will give an example here. It is complicated, but please bear with me.

The regulations relating to the Central African Republic prohibit, among other things, knowingly doing anything that is intended to assist in indirectly facilitating any financial transaction related to dealing indirectly in property in Canada that is controlled indirectly by a designated person. The department states that this provision is left intentionally broad because property ownership and financial transactions are inherently complex and may include activities, such as brokering or promotional services, or instances where money is raised in Canada and indirectly provided to designated persons or entities abroad.

The question is whether, in the effort to comprehensively prohibit activities that may benefit designated persons, the drafting of this provision is over-broad or its boundaries are too vague to be clearly understood. An over-broad law is one that goes too far by interfering with conduct that bears no connection to the objective. An impermissibly vague law contravenes the principle that no one may be convicted or punished for an act or an omission that is not clearly prohibited.

Is it possible that this prohibition may capture persons, perhaps many persons, fulfilling routine functions or administrative services related to financial transactions or dealings in property or providing support functions for shipping services? More importantly, is the committee capable of determining what actions are or are not prohibited by reading the relevant provisions? Would people governed by the regulations be capable of doing so?

It may not be possible at the moment for these questions to be answered satisfactorily. I would suggest that members could benefit from asking the department for a more detailed explanation concerning the limits of this prohibition, along with specific demonstrative examples of activities that do and do not fall under this provision. At that point, the committee may be much better armed to evaluate the issue.

Members may wish to connect that to the previous issue and the provisions mentioned under there. We can broaden the scope of the question a little bit.

The Joint Chair (Mr. Albrecht): Just to clarify, on page 3, the idea that this resolution is connected to Iran rather than Central African Republic, I think we could clarify that as well in that they are using arguments that really don't fit.

Mr. Genuis: Some members may know that committee on foreign affairs did a very good report recently on the whole issue of economic sanctions under the different statutes. They talked about some of the real challenges around information and enforcement, as well as compliance, and that people can be caught up in non-compliance without knowing it, given the complexity here.

I get the impression from what you say that some of the issues you raised are not fully solvable through regulatory change, that some of them speak to broader legislative and other challenges when it comes to economic sanctions. Am I understanding that correctly?

Mr. Abel: The issues we raised are purely in a legal sense, and in a sense reactionary, and the department has a goal. We read, and the committee reads, what the legislation says. The concern we take to it when we first review it is: Does it make sense and is it understandable? The view we have raised is, reading the provisions, it's not clear where the ends of them are, what activities are and aren't included, because they connect and they interconnect and there's direct and indirect facilitation and indirect assistance.

Mr. Genuis: You're talking about the legislative provisions, though, as well as the regulatory provisions?

Mr. Abel: No, in this case just the legislative provisions.

The legislative enabling provisions for all these regulations are extremely broad. Essentially, there's a lot of choice available to departments on what they want to do.

Mr. Genuis: The challenge with economic sanctions is there are a lot of different kinds of activity that you might want to be included, but at the same time you can't be too open-ended with what you're saying. You do need to define what you're talking about.

I think we obviously need to raise this issue and continue to highlight it. It's the kind of thing where probably rethinking the legislative framework for economic sanctions — this is maybe outside the scope of this, but in light of what the foreign affairs committee said as well, it is probably going to be the direction that Parliament should go. We should raise these issues and contribute to the discussion.

The Joint Chair (Mr. Albrecht): I think under items (H) and (I), our counsel is suggesting that we ask for clarification and rationale or change to the regulatory system to clarify the vagueness and the over-broadness of the legislation or the regulations.

Is there general agreement that we ask for that clarification? We're not really demanding anything.

Mr. Oliver: I had a quick question on this one. It's under item (I), where the regulation says "prohibit knowingly.'' With a lot of the examples you gave, where somebody could be caught in this because of the over-broad nature of it, would that not be narrowed down by "knowingly?''

Mr. Abel: It does provide, to some extent, a narrowing effect. It's still unclear where the limits of those are. It is a commonly used word in legislation, and the courts do deal with it, generally in the criminal courts. The example that comes to mind for me is if an administrative assistant is faxing documents for some company that assists other financial companies, and they know that that company deals with, say, Burma, is that enough? I don't know. It's really hard to say.

That's why I think what would maybe be the most beneficial is getting concrete examples from the department that can illustrate where the line is, what sort of things fall inside, what sort of things fall outside.

But yes, "knowingly'' does have a narrowing effect. Without that word, it would be extraordinarily broad.

The Joint Chair (Mr. Albrecht): Is there any further discussion or input on this issue?

Mr. Genuis: Surely that wouldn't be enough, though, right? We are talking about dealing with a country where certain entities are sanctioned. You couldn't expect someone at a junior level to presume that sanctions are being violated just because you're dealing with a country in which people are sanctioned. Or is it so vague that you think someone could actually get dragged into a prosecution over that?

Mr. Abel: The answer is I don't know, which is my problem.

Mr. Genuis: Right.

Mr. Abel: To some extent, I expect that the government relies on the ability to use prosecutorial discretion to define the lines of broadly worded prohibitions, but from my view, as counsel of the committee and reviewing regulations, what I'm concerned with is what exactly does the law say and where is the line within the law itself?

I would expect that the risk of people being prosecuted in junior positions for support services, infrastructure organizations, is less. I don't know if it's zero. That's a very difficult thing to determine with such broad systems like this and broad prohibitions, but I would like more answers from the department.

I think the committee could benefit from more answers and demonstrative examples, and maybe that would give the committee enough information.

Mr. Genuis: I would say that in light of what you just said, we should write to the Ministers of Global Affairs and Justice to highlight these issues and make sure that they have that level of attention. If you're telling me that it's a matter of prosecutorial discretion whether or not an administrative assistant could be charged under the Special Economic Measures Act for something that they weren't knowingly involved in, then there needs to be clarification of this as quickly as possible.

Mr. Abel: To be clear, I'm more saying that I'm not sure if it follows that or not.

Mr. Genuis: Right, but that's enough to raise a pretty big red flag.

The Joint Chair (Mr. Albrecht): For committee members, page 4, Central Africa Republic, the third paragraph down gets to the heart of what our counsel is trying to clarify. It's not sufficiently clear for us as committee members, so will it be for someone else who will be reading these regulations?

I see general agreement that we will proceed with a letter requesting clarification on items (H) and (I).

Mr. Genuis: To the ministers.

The Joint Chair (Mr. Albrecht): That's taken care of then.

We will move on to item (J).

SOR/2014-213 - REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON YEMEN

(For text of documents, see Appendix J, p. 21J:1.)

Ms. Borkowski-Parent: The provisions use the wording "any act or thing prohibited.'' The relevance of the word "thing'' was asked to the department.

In its response, the department mentions that "thing'' could refer to an omission without really supporting that statement. In fact, omissions in federal legislation are usually indicated with the noun "omission,'' the verb "omit'' or phrases such as "failure to.''

In any event, the department indicates that the doublet "any act or thing'' is frequently used in legislation and, as such, members could consider that response satisfactory.

The Joint Chair (Mr. Albrecht): We'll go on tradition and precedent here, using this doublet as an authorization to continue in that form, unless there's disagreement by committee members.

I see general agreement. We'll let this one go.

We will move on to item (K).

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

(For text of documents, see Appendix K, p. 21K:1)

Ms. Borkowski-Parent: Pursuant to the relevant provisions, before issuing a certificate, the minister must notify the Security Council Committee of a request to have property exempted, and with respect to basic or extraordinary expenses, also obtain the approval of that committee.

Under paragraphs A, B or C, the minister also must issue the certificate within 15, 30 or 90 days respectively after receiving an application.

So for the purposes of clarity, it was suggested that these paragraphs could be amended to expressly require the minister to notify the Security Council Committee within a specified time frame after receiving the application and to issue the certificate within an established time frame after the committee of the Security Council has been notified. Otherwise, the failure of the Security Council Committee to render a decision in a timely fashion could frustrate the minister's duty to issue a certificate within the specified time frame after receiving the application.

The department believes that the provisions are sufficiently well drafted in that they implement the Security Council Resolutions as required, and they set out appropriate time frames that balance the level of urgency on the applicant's behalf, and the amount of work and communication generally required to issue the certificates.

While this may be so, it should be asked whether it is possible that the committee of the Security Council may not render a judgment quickly enough for the minister to meet the time frame to issue a certificate. If so, those sections could be reformulated to avoid that possibility.

The Joint Chair (Mr. Albrecht): I think that's quite clear. It's on page 9 of Central Africa Republic, just for a quick reference.

Any discussion on the recommendation by counsel asking for the reformulation to avoid this confusion? I think I see general agreement.

Moving on to item (L).

SOR/2012-107 - REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

(For text of documents, see Appendix L, p. 21L:1.)

Mr. Abel: The issue under item (L) deals with a provision that states that no person contravenes the regulations by doing a prohibited act or thing if, beforehand, the minister issues a certificate to the person stating that the Security Council did not intend for that thing to be prohibited or the thing has been approved in advance by the Security Council.

The department was asked to identify which portion of the relevant Security Council Resolutions this provision implements. The department indicates that this provision does not implement any provision of a Security Council Resolution, but rather it is enacted under the Governor-in-Council's general authority to make orders and regulations that appear to be necessary or expedient for enabling measures to be effectively applied.

The department suggests that this provision allows the minister to respond to unforeseen circumstances in order to clarify the application of the regulations or to implement exceptions to sanctioned regimes decided upon by the Security Council.

The power to issue binding interpretive rulings concerning regulations, or to exempt an act or thing from prohibitions set out in a regulation, is effectively the power to amend legislation. The joint committee has often objected to the subdelegation to other officials of the authority to amend or make regulations on the principle that a delegate of legislative powers may not then subdelegate that power.

This principle is a presumption of statutory interpretation. It may be rebutted by — clear enabling authority.

In this case, granting the minister the power to clarify the regulations or implement exemptions issued by the Security Council could be seen to be a necessary or expedient measure in order to implement the sanctioned regime required by the Security Council Resolutions and to keep that regime current.

It was also noted that as this section is currently drafted, it appears that a person would have to obtain a certificate from the minister, even if the act or thing in question had already been approved by the Security Council. The department confirms that this is, in fact, intentional. This is because the prohibitions set out in a piece of Canadian legislation continues to apply until an exemption is provided under a mechanism authorized by Canadian legislation. In effect, a statement by the Security Council does not have effect in Canadian law until it's put into Canadian law.

If members agree with the department's responses, this issue could be considered satisfactory.

The Joint Chair (Mr. Albrecht): I see general agreement from committee members.

Moving on to item (M).

SOR/2006-164 - REGULATIONS AMENDING THE UNITED NATIONS AFGHANISTAN REGULATIONS

(For text of documents, see Appendix M, p. 21M:1.)

Ms. Borkowski-Parent: The relevant provisions allow a person whose property has been affected by the prohibition against dealing in certain property to apply to the minister for a certificate exempting that property if the property is necessary for basic or extraordinary expenses, or if it is the subject of a judicial, administrative or arbitral lien or judgment, hypothec, prior claim, mortgage, charge or security interest.

Although the wording seems to be based on the various concordant sections of the Security Council Resolutions, these resolutions only refer to property that is the subject of judicial, administrative or arbitral lien or judgment. So it was asked to the department where the authority lies to include the hypothec, mortgage, charge or security interest, or prior claim.

The department suggests that it is in appropriate domestic implementations of the terms found in the Security Council Resolution. Given that this provision seeks to provide some relief to persons affected by the sanctions regime, this attempt to ensure that section 12 is sufficiently broad would appear to be satisfactory.

The Joint Chair (Mr. Albrecht): Any concerns? Seeing none, so ordered.

Ms. Borkowski-Parent: We are done the common issues.

SOR/2007-285 — SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

(For text of documents, see Appendix B, p. 21B:1.)

The Joint Chair (Mr. Albrecht): We'll turn to our general counsel for the unique situations.

Ms. Borkowski-Parent: We can move on to the files as numbered in the agenda, starting with No. 2. It should go fairly quickly from there.

Mr. Abel: Almost all of these files, as we go through them, will have issues that were dealt with under common issues. We won't mention them again. We'll just take the committee's direction under Item 1 to deal with those issues and we'll only discuss unique issues.

Item 2, Special Economic Measures Burma Regulations, SOR/2012-85, made amendments to these regulations resolving four issues, which leaves seven outstanding points on this file. Of these seven matters, six were already dealt with as common issues. The remaining issue is under point 9 of the correspondence and is discussed at pages 6 and 7 of the note prepared on this file.

Point 9 deals with subsection 16(5). This provision allows a person to submit a new application to be delisted from the schedule to the regulations if there has been a material change in circumstances since the last petition was submitted. A concern arose from the operation of subsection 3, which deems the minister to have refused an application to be delisted if the minister does not make a decision on that application within 60 days.

The committee considered that a person should be allowed to submit a new application if the application was deemed to be refused by the failure of the minister to render a timely decision, notwithstanding whether a change in material circumstances had occurred.

In 2011, the department had indicated that its practice was to allow persons to reapply under this provision, if their application had been deemed to be refused. The department now states, however, that until the provision dealing with the deemed refusals is amended, persons will not be allowed to reapply under subsection (5) following a deemed refusal.

This response was quite unexpected, so counsel contacted departmental officials by telephone on January 11, 2017, to ask whether applicants who had been deemed to be refused could in some other way still reapply.

It was surprisingly difficult to obtain a clear answer from departmental officials. It seemed to be unknown whether applicants who had been deemed to be refused could still reapply. Counsel expressed considerable surprise that there did not appear to be any policy in place, particularly given the potential for severe financial deprivation that would result from being listed, and implicitly wrongly listed, in the schedule.

Departmental officials promised to provide a written reply on this matter as soon as possible and indicate when the deeming provision will be amended. That written reply still has not been received some five months later, however, and that is where things stand now.

The Joint Chair (Mr. Albrecht): It sounds like further action is needed here and possibly a shorter timeline on this one.

Committee members, what are your suggestions in asking for a timeline for this written reply dealing with this inconsistency? Does a three-month timeline, by September, seem reasonable, or is that too long?

Mr. Oliver: Sorry, I'm still struggling a bit with what the committee's mandate is on some of these. On this one, is it that they are outside of the statutory provisions, or we just don't like what they did in the regulation, which I don't think is our purview? Could you explain to me which of those 13 things we can — I'm just trying to figure out what our authority is as a committee to get involved in this one.

Mr. Abel: We can consult the specific ones, but, in general, the committee's mandate includes commenting on provisions that will unduly affect the rights and liberties of individuals, that trespass unduly on rights and liberties.

In this case, part of the problem seems to arise from the way the regulations have been drafted as well, the way they operate together. You have one provision that deems an application to be removed from the sanctions to have been refused if the minister does not make a decision within a certain amount of time. The department has already agreed that they will amend that — that arises on a number of regulations — because that is problematic. Why should someone's application be refused because the minister did not make a decision within a certain amount of time?

The problem is that the only way to reapply, if someone has been refused, is under subsection (5), and the only ground for reapplying is if there's been a material change in someone's circumstances. So there seems to be a gap in the operation of the regulations. If someone has been deemed to be refused for no fault of their own and that's not a material change in circumstances, how do they reapply?

Initially, it was a question that simply arose. This was examined. How does this work? The department responded, saying, "Well, people can reapply.'' Then, seven years later —

Mr. Oliver: It's really unduly trampling on rights and freedoms?

Mr. Abel: Yes. It does seem to be a fairly serious issue.

Mr. Oliver: You answered my question. Thank you very much.

The Joint Chair (Mr. Albrecht): I think the key is that the department has agreed that the change will be made. The problem is that we're five months in and nothing has been done. I think that's the heart of what we're trying to get at.

Are we agreed that we will ask the department to have this implemented by September?

Hon. Members: Agreed.

SOR/2008-248 — SPECIAL ECONOMIC MEASURES (ZIMBABWE) REGULATIONS

(For text of documents, see Appendix C, p. 21C:1.)

The Joint Chair (Mr. Albrecht): Next is Item 3 on our agenda, Zimbabwe.

Mr. Abel: Of the 10 matters raised in connection with these regulations, four were not dealt with under common issues.

Points 2, 9 and 10 of the correspondence identify drafting errors to which the department has promised to make amendments. A time frame could be sought in line with what the committee already decided.

Point 7 deals with the same issue as under the last item, concerning the ability of a person to reapply to be delisted following a deemed refusal of their application. If members wish, the same approach could be followed as with the last file.

The Joint Chair (Mr. Albrecht): I see general agreement on that. We'll move forward, asking for those to be implemented by September. Item 4, Somalia?

[Translation]

SOR/2009-92 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

SOR/2012-121 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

(For text of documents, see Appendix D, p. 21D:1.)

Ms. Borkowski-Parent: Aside from the common issue earlier, there are seven points regarding these regulations. As for point 1, the regulations make a distinction between a designated person under paragraph 3 and a designated person under paragraph 8.

Since this distinction leads to various consequences in terms of the regulations, the department was asked how it was possible to determine the provision under which a person had been designated. The department indicated where to find this information on the United Nations Security Council website.

This response could therefore be deemed satisfactory.

Points 2 to 4 relate to the various definitions of Security Council resolutions. Contrary to what the department is suggesting, the objections raised are not so much about the manner in which resolutions are cited, but about the fact that some resolutions are defined, but not others. Certain defined terms are not used and some definitions refer to inoperative resolutions.

Further clarification is needed on these points, and follow-up can be carried out regarding when the amendments will be made.

Points 5 and 10 relate to grammatical errors. The department indicated its intention to make the amendments when possible.

With regard to point 11, the fact that the regulation seemed broader than the exception set out in the United Nations Resolution was raised. Paragraph 6(b) of Resolution 1744 and paragraph 11(b) of Resolution 1772 set out an exception to the prohibited activities regarding supplies and technical assistance provided by states intended solely for the purpose of helping develop security sector institutions.

The regulation implementing the Security Council Resolutions in domestic law does not specify that supplies and technical assistance must be provided by a state. The department recognizes that there is a difference in the scope but explains that, since the practice of states in procuring supplies and technical assistance through contracts with private companies, the provision needs to be broad enough to allow for that possibility.

We might question the power to broaden an exemption beyond what is set out in the instrument that a regulation implements. The enabling power under the United Nations Act authorizes the Governor-in-Council to make such orders and regulations as he considers appropriate for the purpose of applying a measure.

As we mentioned earlier, this is a very broad power that does not seem to limit the scope of the regulations to what is provided for in the resolution itself. Therefore, the department's explanation could be deemed satisfactory on this point.

[English]

The Joint Chair (Mr. Albrecht): So that deals with all of the unique ones for Somalia. There were two on which you suggested follow-up.

Ms. Borkowski-Parent: Yes. There were two "Reply Satisfactory'' and follow-up on further comment on the definition portion, that is, points 2 to 4, and follow-up on the grammatical amendments on points 5 and 10.

The Joint Chair (Mr. Albrecht): And in all cases a timeline should be inserted?

Ms. Borkowski-Parent: Correct.

The Joint Chair (Mr. Albrecht): Is there general agreement by committee members?

Hon. Members: Agreed.

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

Moving on to Eritrea, No. 5.

[Translation]

SOR/2010-84 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON ERITREA

(For text of documents, see Appendix E, p. 21E:1.)

Ms. Borkowski-Parent: We have dealt with all the points in this file, in the common issues portion under items (A) to (E). As a result, follow-up will be conducted accordingly in this file.

[English]

SOR/2011-114 — SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-220 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

SOR/2011-330 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

(For text of documents, see Appendix F, p. 21F:1.)

The Joint Chair (Mr. Albrecht): Next is Item 6 on our agenda.

Mr. Abel: Nine issues were originally raised in connection with these instruments. Two drafting matters have been resolved now by SOR/2004-11. Two other issues were not dealt with under the common issues rubric. These both involve discrepancies between the French and English versions of the regulations, and the department has promised to make amendments on both points.

If members wish, a time frame could be sought in line with the other regulations.

The Joint Chair (Mr. Albrecht): Those two points are 3 and 4?

Mr. Abel: No, points 2 and 3.

The Joint Chair (Mr. Albrecht): All right. Point No. 4 was dealt with under common issues.

Mr. Abel: Yes.

The Joint Chair (Mr. Albrecht): All right, all in agreement with that? I see general agreement.

SOR/2012-85 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS

(For text of documents, see Appendix G, p. 21G:1.)

The Joint Chair (Mr. Albrecht): Moving on to Item 7, Burma.

Mr. Abel: Three matters were raised concerning this instrument. All of these issues are unique to this file. Point 1 deals with paragraph 18(c), which sets out an exception to the prohibitions in the regulations where goods are made available or services are provided to or by certain international organizations for the purposes of democratization or stabilization.

These terms seemed rather vague and open to wide interpretation. The department was asked to provide some clarification. It was also asked how the specified organization would be able to know with certainty what actions would fall under the exception as contravention of the regulations amounts to an offence under the act that is potentially subject to serious penal sanctions.

The department's response unhelpfully cites the dictionary definitions of the terms in question and refers to the Regulatory Impact Analysis Statement accompanying the instrument. The RIAS provides no explanations as to what these terms are to be taken to mean.

The department also notes that these terms are not infrequently used in regulations of the Security Council, but without some specificity, this is also not very helpful.

The department also states that it expects that the specified international organizations would be familiar with the meaning of these terms. This does not seem to allow for the possibility that an international organization and the department may disagree on the precise meaning of the terms in a given case.

Perhaps the department could be asked to provide some concrete examples of where goods or financial services have been provided for the purposes of democratization and stabilization. In addition, it could also be asked to identify some specific resolutions of the Security Council that do not simply mention these terms but provide some explanation as to their intended meaning.

Under point 2, clarification was sought concerning one provision that sets out another exception for international organizations that have entered into an agreement with the department. The wording of the exception seemed broad enough to apply in any kind of an agreement between the organization and the department, not necessarily one related to Burma. The department confirms that this is intentional in order to cover organizations that may have permissible dealings with designated persons who are operating outside of Burma. If this provision accurately reflects the department's intention, that could be considered satisfactory.

Finally, under point 3, an amendment is promised to correct the grammatical error in the French version of the regulations.

If members are in agreement, a letter could be drafted seeking a further response on point 1 and a time frame for the amendment under point 3.

The Joint Chair (Mr. Albrecht): Is there agreement?

Mr. Genuis: I am in agreement with that direction.

I want to make a point about the first issue that may be something to reflect specifically in the letter. Democratization and stabilization are, of course, concepts that are, theoretically, potentially in some tension with each other. Stabilization is precisely the argument often used by those who are undertaking atrocities against their own people: "Well, this is to stabilize the situation. This is to create a more stable environment for the country to operate.'' It is outrageous to not clarify that exception, and the lack of that clarification has the potential to completely undercut the purpose of sanctions.

I would suggest making that particular point quite strongly. Given what's happening on the ground in Burma, they should understand the importance of that point.

Mr. Spengemann: I would tend to agree with that, especially since it says democratization "or'' stabilization. If it was conjunctive, it might be a much more narrow filter. If they have to meet both tests, then we might know what they're talking about, but in this case we certainly don't.

Mr. Genuis: Even that's not sufficient because there are major issues of minority rights in Burma. So you can say, "Well, this is democratization,'' but democratization doesn't necessarily imply that protection as well. So I agree that that would be helpful, but not fully sufficient.

The Joint Chair (Mr. Albrecht): It's not either/or. It's both.

Mr. Genuis: Both, plus more.

The Joint Chair (Mr. Albrecht): Is counsel okay with the direction we're asking for there?

Mr. Abel: Yes.

SOR/2014-163 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE CENTRAL AFRICAN REPUBLIC

(For text of documents, see Appendix H, p. 21H:1.)

The Joint Chair (Mr. Albrecht): Moving on to Item 8, Central African Republic.

Ms. Borkowski-Parent: There are three points to discuss that have not been covered under common issues.

First, there was an ambiguous comma in section 10. The current grammatical formulation may not be the most preferable, but it would appear not to cause any ambiguity, so the current formulation could be retained.

On point 6, it was noted that there's no procedure set out in the regulations for submitting an application to the minister to be forwarded to the UN Security Council in order to be delisted by the UN Security Council as a designated person.

As was discussed under the common issues, the Security Council has moved towards a direct application process for delisting, and therefore these regulations made more recently omitted the old procedure found in many of the other files before the committee.

Lastly, a drafting error was raised in connection with section 15, and the department agrees to make that amendment when the opportunity arises.

The Joint Chair (Mr. Albrecht): Again, I think that, as a committee, we can suggest that we include our expectation that the opportunity should arise before September. All in agreement?

Hon. Members: Agreed.

Ms. Borkowski-Parent: I thought it was one year.

The Joint Chair (Mr. Albrecht): Oh, one year for this one. You're correct. We're back to a different rubric there. One year.

SOR/2014-212 — REGULATIONS AMENDING THE UNITED NATIONS AL-QAIDA AND TALIBAN REGULATIONS

(For text of documents, see Appendix I, p. 21I:1.)

The Joint Chair (Mr. Albrecht): Next is Item No. 9, the Al Qaeda and Taliban regulations.

Ms. Borkowski-Parent: There is only one issue to mention on this file, that there was a grammatical error raised in connection with section 4.4, and the department intends to correct the error when the opportunity to do so arises. A follow-up could be made on this point as well.

The Joint Chair (Mr. Albrecht): All in agreement? So ordered.

SOR/2014-213 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON YEMEN

(For text of documents, see Appendix J, p. 21J:1.)

The Joint Chair (Mr. Albrecht): Item 10, Yemen.

Mr. Abel: There are two issues to address here. The first outstanding point was also discussed under Item 8. It was noted that there's no delisting procedure involving the minister, but as that procedure is now direct to the Security Council, that is just an apparent omission that is not of import.

Second, under point 8, it was suggested that the word "any'' be removed from the English version of section 11 as it reads poorly. An amendment is promised by the department. If members wish, a time frame will be followed up on in line with what's been decided on other regulations.

The Joint Chair (Mr. Albrecht): I see general agreement there.

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

(For text of documents, see Appendix K, p. 21K:1.)

The Joint Chair (Mr. Albrecht): That takes us to Item No. 11, Iran.

Mr. Abel: Eight concerns were raised in connection with this instrument in 2007 and then another three matters were raised in 2012.

Amendments to the regulations made by SOR/2016-14 resolved five of these issues. I should point out that the note incorrectly says that four issues were resolved. It was actually five. All remaining issues were already discussed under common issues, and the file can therefore be followed up on according to decisions under Item 1.

The Joint Chair (Mr. Albrecht): I see general agreement there.

SOR/2012-107 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS

(For text of documents, see Appendix L, p. 21L:1.)

The Joint Chair (Mr. Albrecht): Item No. 12. I think 12 and following are all under the "Satisfactory'' section?

Mr. Abel: Under Item 12, Special Economic Measures (Syria) Regulations, it was suggested that there is a discrepancy between the French and English versions of the definition of "luxury goods'' in section 1 of the regulations.

Before listing examples of what constitutes luxury goods, the French version uses the passage, "s'entend notamment,'' which is generally taken to mean that the list that follows is exemplary rather than exhaustive. Things that are not listed but similar to the listed items would, therefore, fall under the definition.

In English, the word "including'' is usually used in this approach, and it's not found here.

The department suggests that the English version carries the same meaning as the French because it states that the term "luxury goods'' means goods "such as'' the items listed following. It's suggested that this amounts to the same meaning as using the word "including'' and is equivalent to the French version. This does seem to be correct. If members are also in agreement, the file can be closed.

The Joint Chair (Mr. Albrecht): I see that all members are in agreement.

Moving on to item No. 13.

[Translation]

SOR/2006-164 — REGULATIONS AMENDING THE UNITED NATIONS AFGHANISTAN REGULATIONS

(For text of documents, see Appendix M, p. 21M:1.)

Ms. Borkowski-Parent: All of the points in this file have been addressed in the common issues portion related to items (B) and (C). As a result, follow-up will be conducted in this file.

SOR/2007-204 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LEBANON

(For text of documents, see Appendix N, p. 21N:1.)

Ms. Borkowski-Parent: The same is true for section 14, and the only problem was discussed in item (A) of the common issues.

[English]

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

(For text of documents, see Appendix O, p. 21O:1.)

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 P, p. 21P:1.)

The Joint Chair (Mr. Albrecht): We have two more to go. Items 15 and 16 I think were both satisfactory.

Mr. Abel: If members wish, and if the chairs approve, I can deal with these two files as a group, under the heading "Action Taken.''

The Joint Chair (Mr. Albrecht): Please do.

Mr. Abel: Taken together, three issues were resolved.

I would draw members' attention to Item 15, SOR/2006-287. Here, on one of the issues, the committee objected to what appeared to be a wide discretion granted to the minister to decide whether to forward a person's delisting application to the UN Security Council, with no indications as to what reason the minister might not. The minister was removed from this process by amendments made by SOR/2016-278, rendering the issue moot. If members are satisfied, these files could now be closed.

The Joint Chair (Mr. Albrecht): Seeing no concerns, we'll proceed in that fashion. Thank you.

SOR/86-193 — RADIO (A.M.) BROADCASTING REGULATIONS, AMENDMENT

SOR/86-194 — RADIO (F.M.) BROADCASTING REGULATIONS, AMENDMENT

SOR/91-559 — RAILWAY LINES ABANDONMENT REGULATIONS, AMENDMENT

SOR/92-600 — TRANSPORTATION OF DANGEROUS GOODS REGULATIONS, AMENDMENT

SOR/92-613 — RADIO REGULATIONS, 1986, AMENDMENT

SOR/95-424 — DRUG EVALUATION FEES REGULATIONS

SOR/2008-211 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

SOR/2010-305 — REGULATIONS AMENDING THE CANADA BUSINESS CORPORATIONS REGULATIONS, 2001

SOR/2011-89 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

SOR/2012-80 — REGULATIONS AMENDING THE GENERAL PILOTAGE REGULATIONS

SOR/2012-196 — REGULATIONS AMENDING THE PACIFIC PILOTAGE TARIFF REGULATIONS

SOR/2012-288 — REGULATIONS AMENDING THE CLASS I NUCLEAR FACILITIES REGULATIONS AND THE URANIUM MINES AND MILLS REGULATIONS

SOR/2013-119 — MARIHUANA FOR MEDICAL PURPOSES REGULATIONS

SOR/2013-172 — REGULATIONS AMENDING CERTAIN REGULATIONS RELATING TO ACCESS TO RESTRICTED DRUGS

Ms. Borkowski-Parent: Lastly, I would note that, under "Statutory Instruments Without Comment,'' there are 14 instruments that have been examined by counsel and found to meet the committee's 13 criteria, so those files can be closed.

The Joint Chair (Mr. Albrecht): Thank you very much, committee members, and a special thanks to our general counsel and our counsel. Incredibly complex files to keep them all together; I admire your ability to do so. Thank you so much on behalf of all committee members.

The next meeting is June 15, in two weeks.

The Joint Chair (Senator Day): If needed.

(The committee adjourned.)