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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 23 - Evidence - September 28, 2017

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OTTAWA, Thursday, September 28, 2017

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:34 a.m. to discuss business of the committee and 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): Welcome back from your summer break, but it hasn’t been a break; different assignments. A special welcome to our three new members, Mr. Benzen, Mr. Tilson and Ms. Dhillon. We look forward to your input and participation in our committee.

With that, we will move right into Item 1, which is Committee Business. It is not on the agenda as such, but it is the approval of the budget, which has just been circulated to you. You have those in front of you. Senator Day and I have signed it, but we need your confirmation for the summary of expenditures.

Do we have a motion to adopt that? Moved by Mr. Oliver, seconded by Mr. Dusseault.

All in favour? Carried.

We now have a few items that we need to discuss in camera, so I’m going to ask for a motion to move in camera. Mr. Badaway.

All in favour?

We will move in camera and ask those who are not part of staff for an MP or senator, and those who are not part of the in camera group, to leave temporarily. Hopefully we won’t be long.

(The committee continued in camera.)

(The committee resumed in public.)

The Joint Chair (Mr. Albrecht): Next is Item 2 on our agenda, and we look to our general counsel for direction.

DORS/2005-383 — REGULATIONS AMENDING THE ACCOUNTING FOR IMPORTED GOODS AND PAYMENT OF DUTIES REGULATIONS

(For text of documents, see Appendix A, p. 24A:1.)

[Translation]

Evelyne Borkowski-Parent, General Counsel to the Committee: It should be noted that the first letter sent to the department on this matter dates back to 2007. In 2009, the department promised to clarify the meaning of the term “good character,” a vague and arbitrary term that is open to subjective interpretation. Since the department never met the timelines, the committee decided at the meeting of February 16, 2017, to write to the appropriate minister to request that the expected regulatory changes be made immediately.

The minister’s reply is among the documents distributed to you this morning. Although he confirms in his letter the department’s intention to modify the regulations, no timelines were given to the committee. The letter simply says that the department was in contact with the Department of Justice with regard to the changes in March 2017.

I would also point out that each department has to publish a prospective plan of regulations setting out the regulatory initiatives proposed for the period from 2017 to 2019. After consulting that plan, I noted that the amendments under discussion are not listed. We can therefore conclude that the amendments will be made after 2019, according to the plan published on the department’s website.

[English]

The Joint Chair (Mr. Albrecht): Committee members, this is a rather serious matter. It has been going on for some time. We have a choice to make in terms of the options before us. I am going to ask general counsel to outline the options in terms of moving forward to expedite action on this file.

Ms. Borkowski-Parent: The letter to the minister obviously has already been sent, and you have the response in front of you this morning. Depending on how members feel about the state of affairs on this file, the options are the same as usual: call witnesses, report or send a notice of disallowance. I should point out that sending a notice of disallowance does not mean that the committee will go through with a disallowance report, but it signals the intent of not maintaining a status quo.

The Joint Chair (Mr. Albrecht): For the benefit of new members, we have gone through the process of our counsel sending the letters to the department. That’s been heightened to the joint chairs sending a letter directly to the minister, which has been responded to. Now there is the option of making a report to the full Parliament or to bring the minister in as a witness, or as general counsel has indicated, we write a letter indicating that disallowance will be recommended if action is not forthcoming. Hopefully that’s relatively clear.

Does any committee member wish to speak to their preference?

Mr. Tilson: So the minister is saying, “We’ll get back to you sometime.” Well, that’s not very good. I’m not familiar with the procedure, Mr. Chair, but I don’t think we can just accept that. Either notice of disallowance, which I’m not sure I thoroughly understand, or have the minister come and explain himself. I’m not familiar with the notice of disallowance. I know you have explained it to me privately.

The Joint Chair (Mr. Albrecht): I should let general counsel explain it; we’ll get it correct.

Ms. Borkowski-Parent: Disallowance is the one special power that this committee has that other committees don’t have. It is to force the repeal of certain provisions or portions of provisions in regulations.

The first step of the process is to send a 30-day notice to a department, after which the committee may decide to table a report of disallowance. It puts them on notice to go ahead and move along with those amendments because they have been promised for eight years now.

Mr. Tilson: Eight years?

Ms. Borkowski-Parent: Eight years.

There are some criteria in the regulations in order to be part of a specific program. One of the criteria is that someone be of good character, which is incredibly vague, and then it’s left to the administration to determine what good character means. So the committee has asked that the department clarify what good character means, with criteria or some clarification. They agreed to do so in 2009 and nothing has happened since.

The Joint Chair (Mr. Albrecht): I have a procedural question. Assuming the committee would send a disallowance letter or warning — however you want to term it — is it possible that the minister or the department could come back to us and say, “We would like the privilege of appearing before the committee,” and that could be another possible intervention in the interim? We’re not closing the door to that, correct?

Ms. Borkowski-Parent: No. As I said, once the notice is sent, it does not force the outcome. In the past, we have sent notices of disallowance, and departments have come back and either amended it or promised amendments in a short time frame. It happened last year actually with Health Canada.

Mr. Tilson: I will wager the minister has no idea this has happened. I don’t know.

The Joint Chair (Mr. Albrecht): Except he did respond to our letter.

Mr. Tilson: He is a busy minister. Maybe we should draw it to his attention and bring him in here.

The Joint Chair (Mr. Albrecht): You’re suggesting the possibility of a witness being called prior to —

Mr. Tilson: It seems to me that a notice of disallowance — and again, I’m sorry, I’m new to all this procedure — is the final resort. Am I correct?

The Joint Chair (Mr. Albrecht): The notice is the second final resort. The final resort would be actually doing the disallowance, so we’re giving him notice.

Mr. Tilson: Well, eight years is a long time to say, “We’ll get back to you sometime.”

The Joint Chair (Mr. Albrecht): Mr. Tilson, I’m thrilled to hear you say that. As a member who has been here for all of 15 minutes, you’re already detecting some of the frustration this committee deals with on an ongoing basis.

Mr. Tilson: Does counsel have a recommendation?

Ms. Borkowski-Parent: That is really for members to decide. I have outlined the three options: a report, witnesses, or the notice of disallowance.

Mr. Tilson: I will step down, Mr. Chairman. It seems to me a motion needs to be made.

The Joint Chair (Mr. Albrecht): Let’s have a little more discussion.

Mr. El-Khoury: I propose a motion to bring the minister here.

The Joint Chair (Mr. Albrecht): We have a motion on the floor that we call witnesses.

Mr. Oliver, do you want to speak that motion?

Mr. Oliver: It does seem to me, in reading the letter, that the department is moving on this. They have developed a list of CSA program eligibility requirements to substitute “good character” with criteria that would be more specific. They have been working with the Department of Justice to make sure they are dealing with their agency’s concerns, and they have correspondence, I gather, as recently as March 3, 2017.

It looks like it’s a new minister, there are some changes and they are starting to work on it. So I would either support the motion of witnesses or a letter from the committee asking for a set timetable to come back with it. I don’t think we’re at the point of anything more dramatic than that.

The Joint Chair (Mr. Albrecht): We have a motion on the floor to call witnesses.

Mr. Di Iorio, do you want to speak that motion?

Mr. Di Iorio: What is striking is obviously the length of time. It’s not only the length of time but the issue.

With regard to these provisions, way back 50 years ago you would find them in a lot of legislation. I can give you a simple example. I was in a case where an individual applied for a liquor permit, and it required good character. It had been denied. Why? Because he didn’t have a driver’s permit. It just happened that the judge didn’t have a driver’s permit either, so that helped the case.

I just want to enlighten everyone to the fact that this is very old. Most legislatures and governments have updated their regulations or legislation to evict or get rid of these provisions because obviously they were too subjective. That’s why I gave you that example.

The Joint Chair (Mr. Albrecht): So you’re arguing in favour of having more objective criteria inserted?

Mr. Di Iorio: No, I’m saying that what is combined here are the length of time and the fact it is so evident what has to be done. Why does it take so long to do it?

I would tend to agree with Mr. Oliver. We should probably start with witnesses because they would enlighten us. Maybe there is something we are missing. They could provide us with information. Why is it so complicated to resolve this and what is it they are working on? And, viva voce, they would provide us the material.

We could call the minister as a witness. At least we would be better equipped if we have him here as a witness.

Mr. Tilson: Mr. Chairman, to the counsel — and again, I’m feeling my way as to what is going on here — do we name the witnesses, or are we just saying that somebody in the department has to come over here?

I honestly believe the minister is a good person. I will wager he has no idea this is going on. I’ll tell you, if we called him, he would sure know what is going on.

My question is: Do we name which witnesses we wish to see?

The Joint Chair (Mr. Albrecht): We may ask for the minister himself or herself to appear, absolutely. That’s our privilege.

We have a motion on the floor.

Mr. Tilson: Do we have an amendment?

The Joint Chair (Mr. Albrecht): I think the motion was to invite the minister.

Mr. El-Khoury: Absolutely.

Mr. Oliver: Was there an amendment to the motion? I couldn’t hear it.

The Joint Chair (Mr. Albrecht): I don’t think there is an amendment needed because the intent was to invite the minister to appear, but go ahead if you have an amendment to that.

Mr. Oliver: I would like to propose the minister or a delegate. It’s important to hear from the people who are responsible for the legislation. It’s the minister or a delegate. I also don’t want to take up a busy minister’s time at committee if it’s not necessary. I would sooner hear from the people who understand the file and the issues and can answer the detailed questions that we would have. I would like to amend it to “minister or delegate.”

The Joint Chair (Mr. Albrecht): I’m looking to counsel for a recommendation.

Ms. Borkowski-Parent: Committees, from my understanding, can’t compel ministers to appear. It’s always an invitation for which past ministers have usually sent representatives. What the committee might want to consider is the level of such representatives.

The Joint Chair (Mr. Albrecht): Mr. Oliver, would you be amenable to say “minister and/or officials”? I think it’s implicit in the recommendation, as our counsel has pointed out, that generally that’s the operating principle. If we’re comfortable with that, we’ll move ahead with the motion.

All in favour of that motion, raise your hand? Okay. That is carried.

So the minister and/or officials will be invited to appear before us to explain the need for more time to deal with this issue.

The Joint Chair (Senator Day): Since it’s on everyone’s mind right now, if we had decided to take another step and write the letter denying the particular regulation — the disallowance that we talked about — is that a notice that we would intend to start with the disallowance process, or do we have the authority to just disallow as a committee? I would assume that the two houses would be invited to get involved in that if we want to do disallowance.

Ms. Borkowski-Parent: Absolutely. The notice of disallowance, as Mr. Badawey just said, is a warning shot: Be aware that, in 30 days, the committee might decide to table a report asking for the disallowance of certain provisions. Those reports have to be tabled in both houses, and there is a significant process associated with it. But it is a notice that as of 30 days from now, the committee might table such a report. It’s the very first step. It doesn’t mean that a file has to go through any further steps after that. It’s a warning.

The Joint Chair (Senator Day): The point I was getting to is you say that we have the authority to start the process, but the ultimate authority is in the two houses.

Ms. Borkowski-Parent: Correct.

The Joint Chair (Senator Day): Thank you.

Mr. Oliver: In terms of the application of that authority, since the committee was formed in 1986, disallowance has been used 11 times. It is the final, last resort after extensive efforts to resolve issues through all of the other means available to us. It’s not an automatic default position for the committee.

The Joint Chair (Mr. Albrecht): Please clarify: Has it actually been implemented 11 times or is it that they have been warned 11 times that it could be implemented?

Ms. Borkowski-Parent: A dozen disallowance reports have been tabled.

The Joint Chair (Mr. Albrecht): So there have been 11 times that a disallowance report has been tabled, but there may have been more frequent usage of the notice of disallowance?

Ms. Borkowski-Parent: The committee sent two notices of disallowance this past year. One has resulted in the Department of Health making their amendments on pest control products over the summer.

The Joint Chair (Mr. Albrecht): That one worked.

Ms. Borkowski-Parent: That one worked.

And on wage earner protection regulations from the Department of Employment, the file is still ongoing, but there have definitely been more notices sent than there are reports tabled.

The Joint Chair (Mr. Albrecht): I think Mr. Oliver’s point is that if we can avoid using that, we will.

Mr. Oliver: Eleven times since inception.

The Joint Chair (Mr. Albrecht): There was general consensus around the table, so with your permission we’ll move on to Item 3.

SOR/2014-149 — REGULATIONS AMENDING THE COASTAL FISHERIES PROTECTION REGULATIONS

(For text of documents, see Appendix B, p. 24B:1.)

Ms. Borkowski-Parent: First, on this file, two technical amendments have already been made this year, which leaves us with the matter of the exact meaning of “arrangement that is consistent with the NAFO Measures.” In short, the regulations permit foreign vessels to fish in certain waters if the fishing is done under an arrangement consistent with NAFO measures. Without some factors or criteria in the regulations, how can a person operating a vessel know whether they are fishing activity is permitted by the regulations because it’s consistent with an international agreement?

Originally, the department indicated that it was left open-ended so as to capture chartering arrangements, which are already dealt with in the measures, as well as other types of arrangements that might be used in the future.

This response was not deemed satisfactory by the committee, and further correspondence with the department was exchanged. You will note that, as per the new procedures, a letter was sent to the minister in light of the lack of response from the department. This letter states a commitment to answer committee correspondence in a timely fashion in the future and that amendments to the Coastal Fisheries Protection Regulations would be made at the next available opportunity.

This does not constitute a particularly precise commitment, although, unlike the previous file, this one is quite a bit more recent, and amendments to the Coastal Fisheries Protection Regulations do appear on the department’s forward regulatory plan, with target prepublication for 2017.

There is no indication whether these amendments will also include the ones requested by the committee on this file, so perhaps as a first step, the committee could recommend including the amendments required on this file, with the regulatory package already in progress, and ask for an update.

The Joint Chair (Mr. Albrecht): I would add a specific timeline for a response.

Mr. Badawey: What is the standard time we look at with respect to getting a resolution for an issue? I believe it was three months.

Ms. Borkowski-Parent: It’s four months for a substantive response on letters. For the resolution of files, that varies with the number and complexity of issues. The committee has traditionally taken the view that two to three years to make regulatory amendments is an acceptable time frame to get through the regulatory process.

Mr. Badawey: This response is received on July 24. When was the letter originally sent?

The Joint Chair (Mr. Albrecht): March 9.

Mr. Badawey: I think a request for an update would be appropriate.

The Joint Chair (Mr. Albrecht): Requesting that they give us a timeline as to their respected implementation?

Mr. Badawey: Correct.

The Joint Chair (Mr. Albrecht): Are there any other questions or comments? Will all in favour of that give me a nod? Okay.

SOR/2008-185 — AMERICAN CONSUMPTION OF SOFTWOOD LUMBER PRODUCTS REGULATIONS

[Translation]

Ms. Borkowski-Parent: Matters for reconsideration do not come up very often. For one reason or the other, the items under this category require further review by the committee. In this case, there is an inconsistency in the drafting of the regulations, albeit a minor one.

The committee had decided in 2015 not to request a correction and to monitor this file, since a new softwood lumber agreement was expected to be imminent and the regulations would have been modified accordingly. As you surely know, the softwood lumber agreement expired on October 12, 2015, and the U.S. Department of Commerce is investigating countervailing duties and anti-dumping. Although they are still in effect, the regulations actually have little force at this time.

Given the specific circumstances in this matter, I recommend that it be closed. Should a new softwood lumber agreement come into effect, the file could be reopened and amendments to the regulations could be considered at that time.

[English]

Mr. Diotte: Close the file. Excellent.

The Joint Chair (Mr. Albrecht): It feels good to close one or two.

SOR/2015-169 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS

(For text of documents, see Appendix C, p. 24C:1.)

Shawn Abel, Counsel to the Committee: When the committee reviewed this instrument in April, it considered that section 3.2(2) of the regulations was poorly drafted and could lead to confusion, and that section 5 of the amending regulations, which was a transitional provision, appeared to be retrospective in nature and therefore not authorized by the Patent Act. Amendments that would repeal both of these provisions have been made and came into force on September 21, which was the day the CETA Implementation Act came into force. The drafting issue concerning section 3.2(2) may therefore be considered resolved.

However, although section 5 of this instrument has now been repealed, it was done so primarily because that its effect as a transitional provision is now spent. This does not mean, however, that the committee should consider this matter resolved.

Section 5 stated that a court shall consider ongoing applications or ongoing motions which were initiated in the roughly 1.5 months before this instrument came into force as having regard to sections 2 and 4 of the regulations as amended by this instrument. The applications and motions in question deal with the eligibility of patents to be on a patent list, and changes to sections 2 and 4 had a significant impact on eligibility.

Eligibility for the patent list goes to the core of the operation of these regulations and the ability of drug manufacturers to apply the procedures of the regulations and obtain the rights and benefits set out therein. It is a highly litigious area of law.

Upon initial review, this provision seemed unclear. What does it mean for a court to have regard to the amended provisions? This appears to suggest that a court should perhaps give them some weight, but might fall short of directly applying the amended provisions. If nothing else, this was peculiar wording for a transitional provision.

The committee previously dealt with a similar provision in connection with SOR/2006-242, which also amended these regulations. In that case, the transitional provision directly provided that certain judicial applications, which had been initiated prior to the making of the amended regulation, were deemed to have been initiated on the coming-into-force date. Effectively, it was as if those judicial proceedings had been initiated on the day the amended regulations came into force.

The committee considered this to be a retroactive effect in that it sought to change a legal event in the past. This was clearly ultra vires the Patent Act: Regulations may not have a retroactive or retrospective effect absent a clear enabling authority in the parent statute.

In light of the committee’s experience with SOR/2006-242, it appeared a similar approach was being attempted here, except that the transitional provision had been worded so that it might not appear to be retrospective. When the department’s August 2, 2016 letter was before the committee on April 6, 2017, it was then clear that the intention and effect of the transitional provision was indeed to apply the new regulations retrospectively. The department cited the case of Gilead Sciences, in which the Federal Court interpreted this transitional provision to mean that sections 2 and 4 of the new regulations were to be applied to ongoing proceedings. The department stated that this finding was as it expected.

The department’s letter, however, also described the court as finding that the transitional provision was not retrospective. Now, I must emphasize this is patently incorrect. The court explicitly stated at paragraph 107 that “the 2015 regulations are retrospective as they attach new consequences in respect of a past event.”

With respect to the enabling power under which these regulations were made, the Federal Court of Appeal stated the following in Merck v. Apotex:

The wording of subsection 55.2(4) is silent on the creation of regulations that have retroactive or retrospective effects or an interference with vested rights. Given its silence, subsection 55.2(4) must be interpreted as not authorizing such effects . . . Further, there is no basis for implying a power to make such regulations in subsection 55.2(4).

That case was decided in 2011, following which leave to appeal to the Supreme Court was dismissed with costs. There could be no question that prior to the making of SOR/2015-169, the department was aware of the committee’s views and the Federal Court of Appeal’s findings concerning the lack of authority under the Patent Act to make retroactive or retrospective regulations.

As this is the case, the peculiar wording of section 5 of the amending regulations and the department’s obvious mischaracterizations of the court’s findings in Gilead Sciences suggest something beyond poor drafting or mere innocent mistake.

Given the foregoing, members may wish to consider whether it was the department’s intention to willfully flout the rule of law in drafting section 5 of the amending regulations and, further, whether in its choice of wording in describing section 5, and in its August 2, 2016 reply to the committee, the department attempted to conceal this fact.

The Joint Chair (Mr. Albrecht): The next question is if they did, what are the committee’s options in terms of follow up?

Mr. Badawey: I’m not sure there is a conspiracy here. I’m not going down that road. However, we have identified some challenges here. My recommendation is to send them correspondence articulating exactly what our concerns are and see what their response is.

The Joint Chair (Mr. Albrecht): Mr. Abel, I think we have already done that, but is there some way we can heighten that?

Mr. Abel: We can draft another letter setting out the committee’s concerns. The thing that I will expect is the department has now repealed the provision, because in their eyes the provision is spent in terms of its effect, so they can wipe their hands of it and walk away. I would note that they didn’t repeal it until the effect is spent, even though the committee has been corresponding with them for some time.

Mr. Badawey: Again, we can articulate, and I’ll say boldly, exactly what our concerns are and if all else fails past that, we can bring them in and ask why they are actually trying to do this.

Mr. Diotte: I think we need to take stronger action than that. They have already indicated that they are really not listening, so what would be the next measure up the scale? It’s pretty serious.

The Joint Chair (Mr. Albrecht): It’s a serious breach, however, as Mr. Abel has pointed out, it no longer has any consequence in terms of the current regulation. That’s where the committee needs to decide whether it is something we want to draw attention to in order to avoid a similar pattern, or is it something we’re prepared to just write a letter on and hope for the best.

I’m going to our counsel and then Mr. Tilson.

Ms. Borkowski-Parent: This was the second instance of a transitional provision of dubious legality. So it seems that whatever the committee’s objections, whenever there are amendments, they keep making those transitional provisions.

Furthermore, I’m not sure how to characterize it, but after the committee shared its concerns about the legality, their response was misleading to the committee. It was patently wrong. It tried to paraphrase a court case in a way that it could not support their position. So there is that extra problem in this instance.

Mr. Tilson: Mr. Chairman, we have already written a letter. Why would we write another letter? They didn’t answer the first letter. In fact, they ignored the first letter. And they are sure as heck going to ignore the second letter. It is as if they don’t really care what this committee is doing. Again, I’m showing my ignorance of how the system works, but I think that’s unacceptable, quite frankly.

You’re asking me for an alternative for my first day on the committee, but my question is for advice from our counsel. Is this something where we should ask them to come to this committee and explain why they have complete disregard for what we’re doing here?

Ms. Borkowski-Parent: There has not been a letter to the minister sent on that file to date.

The Joint Chair (Mr. Albrecht): Letters have only gone to the department. So the next step that Mr. Badawey is suggesting is to write a letter to the minister from the joint chairs.

Mr. Tilson: Okay.

Mr. Badawey: Articulating exactly what you’re saying. If they were found to be wrong and incorrect, then we should articulate that in the correspondence with the minister.

The Joint Chair (Mr. Albrecht): Point well taken.

The Joint Chair (Senator Day): That is the same point Mr. Badawey just made. I think we have not locked horns on the issue of their misinterpretation or our perception of their misinterpretation.

The Joint Chair (Mr. Albrecht): I do like Mr. Tilson’s suggestion that, if necessary, we bring them in and have counsel clearly articulate the nub of the issue so that we’re not repeating this over and over again.

Mr. Tilson: Mr. Chairman, surely we are not just writing letters that never get answered. It doesn’t matter whether the minister has not been notified. The department has been notified, and they are completely disregarding that letter. So I think writing a letter is a waste of time. We should have them come in here and explain. Maybe this committee has misinterpreted what has been said, but perhaps they should come and tell us that. I don’t know whether that requires a motion.

The Joint Chair (Mr. Albrecht): We have a motion that we write a letter.

Mr. Oliver: If I understand correctly, this is the second time the same ministry has done this retroactively. So there is somewhat of that drafting sense. They have been ignoring the advice of the committee on previous occasions. I think the letter should include “three strikes and you’re out” language as well, so if this reoccurs again in future regulations that we will not go through our normal letter writing. We will require a minister to attend the committee to speak to the regulations, just so they know there is not going to be a slow or normal slow pace.

The Joint Chair (Mr. Albrecht): Okay.

Mr. Oliver: Along with the recitation of the issues that Mr. Tilson identified.

The Joint Chair (Mr. Albrecht): All right. We have a motion on the floor to write a letter from the joint chairs to the minister indicating, with fairly strong language, as Mr. Oliver has just articulated, that we expect much better in the future.

Are we agreed? Opposed? That is carried.

We will move on to Item 6. After this one, I’m going to let Senator Day take over as chair.

SOR/2002-227 — IMMIGRATION AND REFUGEE PROTECTION REGULATIONS AS AMENDED TO SOR/2005-61

SOR/2003-197 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2003-260 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2003-383 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2004-59 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2004-111 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2004-167 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2004-217 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

SOR/2005-61 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

(For text of documents, see Appendix D, p. 24D:1. )

The Joint Chair (Mr. Albrecht): There are a number of issues within this one.

Mr. Abel: I’m afraid it might be awhile until you hand over your position to Senator Day because this is a large file.

To begin with, responsibility for these regulations is split between the Department of Immigration, Refugees and Citizenship, and the Canada Border Services Agency. If members agree, I propose to deal with all matters belonging to the department first before moving on to the CBSA. This becomes a little complicated. I’ll try to categorize matters in a way that will make it easier to follow.

First, there are six matters for which the department previously agreed to make amendments. When this file was before the committee on December 1, 2016, members wished to know when these amendments would be made and particularly if they would be made before spring 2017. While the department’s letter of April 3, 2017 addresses other issues, it does not indicate when these amendments will be made and indeed they have not yet been made.

Second, the department was also asked to comment on six points where amendments have been promised quite some time ago but not mentioned recently in correspondence.

On points 54, 56 and 98, as described in the notes, amendments have been reconfirmed. Two of these amendments are to be made as part of a miscellaneous regulation amendment in 2017. No date is given for addressing point 54, so that could be followed up.

On the other three points where amendments were long ago promised, the department’s replies may be unsatisfactory. These are discussed in the analysis portion of the note for today’s meeting, starting on page 3.

On point 13, paragraph 11(1)(b) prescribes where an application for a permanent resident visa must be made, depending on the status of the applicant, but it does not seem to allow for the application to be made for a stateless person, who has no country of habitual residence other than the country in which they are residing without lawful admittance. This exclusion is not intentional. The department previously agreed to amend the provision in order to allow such persons to apply. However, that package has been put on hold according to the department, and no information has been given as to whether that hold is temporary and, if so, when the amendment will be forthcoming.

Incidentally, the department, in this case, notes that the stateless person described above may apply under section 25 of the act to be exempted from restrictions of the act or the regulations. This is generally referred to as a humanitarian and compassionate leave. General relief from statutory regulatory requirements may be granted under the act on a discretionary basis, where the minister is of the opinion that it is warranted. Discretionary relief is, of course, granted on a case-by-case basis and is not guaranteed. Therefore, this should only be considered at best a temporary solution until paragraph 11(1)(b) is amended, and confirmation should be sought from the department that this will be done.

On point 39, the committee noted that section 80(4) refers to a period of work that exceeds full-time work, whereas the definition of “full-time work” has no upper bound, making it impossible to exceed. The department notes that the definition was repealed in 2012. However, the repealing instrument added another definition of “full-time work” that, again, has no upper bound. Presumably, this should be pointed out to the department.

On point 93, a discrepancy was identified between the English and French versions of paragraph 186(m). A similar discrepancy was noted under point 94, which was resolved by an amendment made in 2011. The department seems to have mixed up these two points and believes that point 93 is already resolved. This also could be pointed out to the department in a further letter.

That concludes the six points where amendments had been promised quite some time ago.

Next, the committee sought the department’s reconsideration on two other matters. Under point 67, section 133(1)(e)(i) requires a sponsor to demonstrate that they have not been convicted under the Criminal Code of an offence of a sexual nature. The committee has raised concerns that this term is not defined, nor is it clear which criminal offences do and do not fall under its scope. The department previously indicated that it is intended to be an open-ended question, which is to be determined in a discretionary manner by an immigration officer.

The committee previously considered that it was not acceptable to leave the meaning of this term open to discretionary interpretation. Setting out clearly the offences to be intended would provide certainty and help to ensure that similar persons, in similar circumstances, are not treated differently for arbitrary reasons. This seems particularly important given the serious nature of these offences.

The department’s earlier letter of May 27, 2016, focused on the question of equivalency between the terms “offence of a sexual nature” and “infraction d’ordre sexuelle,” used in the English and French versions. The French term is also a heading in the Criminal Code, which covers a specific list of offences, while the English term is not found in the code, but the committee considered this focus on the linguistic discrepancy to be beside the point.

The department’s latest response again focuses only on the discrepancy between the French and English versions. The department wishes to avoid the possibility that the term used in the French version will give the mistaken impression that only those sexual offences found under that heading are intended to be included. Rather, the department also intends to include ancillary offences committed with the intent of committing another offence that is overtly sexual in nature. Suffice it to say that none of this is apparent in section 133(1)(e)(i) of the regulations.

Members may wish to take special note that the department’s letter goes on to object to the committee’s view that the intended offences should be expressly enumerated.

The department suggests that this would require constant updating to reflect the Criminal Code. The department believes that this could lead to some offences not being covered by the regulations if this provision were not updated in step with the relevant amendments to the code.

It might be asked whether the department expects offences of a sexual nature and related offences to be amended by Parliament so frequently and so rapidly that the regulations cannot possibly be kept up to date. Perhaps the department should be reminded that one of the core purposes underlying delegation of legislative powers is that legislation may be amended more efficiently and more responsibly than may be done by Parliament. The department seems to believe, on the other hand, that it cannot possibly maintain the regulations as rapidly as Parliament can or will amend the code. Given this belief, the committee may wish to inquire whether continuing to delegate the power to enact and amend these regulations serves any useful purpose, at least in respect of the subject matter dealt with under section 133(1)(e)(i).

Finally, under point 92, the committee identified a potential ambiguity in section 180. Although the committee accepted the department’s position that no conflict arises from this provision, members asked whether section 180 could be clarified for greater certainty, and the department agrees to do this. A time frame for doing so could be sought in a further letter.

In summary, for everything falling under the responsibility of the department, it is uncertain when six promised amendments will be made, and an update could be sought in that regard. Three other long-promised amendments have been reconfirmed, and a time frame needs to be clarified on one of those. If members consider the department’s replies on the other three long-promised matters unsatisfactory, those could be pursued in a further letter along the lines set out in the note.

Finally, point 67 concerning sexual offences could also be pursued along the lines set out in the note, and a time frame could be sought for amending section 180. I would like to ask for the committee’s consideration before moving on.

The Joint Chair (Mr. Albrecht): What I’m going to suggest is that, because of the number of issues dealt with under this one item, we move to the end of the notes, page 6, and move backwards, partly because the last two items seem to be satisfactory.

Ms. Borkowski-Parent: He’s going to go through CBSA in a moment.

The Joint Chair (Mr. Albrecht): We haven’t done that one yet?

Ms. Borkowski-Parent: No.

The Joint Chair (Mr. Albrecht): So we’ll move to the end of page 5, section 180, and then number 92. Counsel is suggesting that one is okay to leave as is. Is there general agreement with that?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Then move back to number 67, dealing with the items of a sexual nature. I think there has been a good description by our counsel as to the issues, or would we like those further clarified.

[Translation]

Mr. Dusseault: I think that is actually the most problematic part of the department’s response. I think the language you used bears repetition: what purpose do the drafters of regulations really serve if they cannot even keep them up to date as quickly as Parliament adopts laws that amend the Criminal Code?

So I do not consider this a satisfactory reply. It is left up to a public servant to determine whether it is an offence of a sexual nature. So I do not consider this a satisfactory reply. In my opinion, however, someone reading this passage in French will immediately think that this refers to the offences listed under the “Sexual Offences” heading. So this is even more problematic in the French version if offences can be found in the Criminal Code other than those under that heading.

I would like to be sure that we use very firm language in this regard because, while we might expect everyone to know the law, the interpretation of the regulations is not satisfactory.

[English]

The Joint Chair (Mr. Albrecht): Thank you, Mr. Dusseault. So to remove the subjectivity that is currently there and to ask for a more precise timeline as to when this would be dealt with.

Mr. Abel, your notes are excellent in terms of a starting point for your next communication with them.

Is there any further discussion on that item?

Mr. Tilson: I’m learning some great expressions here when they say that it’s going to be put on hold. Mr. Dusseault is quite right. What are we here for? I think he is absolutely right; we should be forceful on this.

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

Let’s move to 93, paragraph 186(m). Again, I think we are suggesting that we simply draw attention to this issue and have it dealt with.

Section 39: Again, a firm reminder. Section 13: Get confirmation that action will be forthcoming and a timeline.

Getting back to the IRC and CBSA matters, primarily there is a timeline needed on the IRC matters at the top.

Mr. Abel: That is correct. The rest are promised amendments, and the committee doesn’t have a good idea right now of when they will be forthcoming.

The Joint Chair (Mr. Albrecht): We will ask for a clearer projection as to when they expect these to be in our hands.

Do you want to finish with the last page before we go on, or should we deal with those and then come back to that one?

Mr. Abel: We correspond separately with the agency and the departments. We might as well deal with it separately. It’s quite short.

The Joint Chair (Mr. Albrecht): Let’s deal with the ones we have just done, pages 1 to 5.

Do we agree that we ask our counsel to proceed in clarifying getting rid of the subjectivity in the sections where it’s required and also asking for a precise timeline in terms of expected action? All agreed? I see no disagreement.

We’ll move to page 6 and the analysis of CBSA matters.

Mr. Abel: Amendments addressing discrepancies between the French and English versions of subsection 140(3) and section 148 of the act were included in a miscellaneous statute law amendment proposal that was before the houses this spring. As members may recall, the process for this sort of bill is that committees of both houses first review the proposals, and all agreed-upon amendments will be introduced later in a bill.Presumably, this bill will be presented to Parliament this fall, and that should resolve the discrepancies identified by the committee in the act.

There are a number of previously promised amendments, and the CBSA indicates that most of those should be made within the current fiscal year. The agency also reconfirms the committee’s request that an amendment will be forthcoming to subsection 42(2) as part of that package.

The committee is awaiting further substantive response on one provision, subsection 47(2), and the agency expects to provide that by January.

Finally, the agency indicates that it no longer wishes to amend subsection 271(1) as was previously promised. This is discussed on page 6 of the note. This provision requires a commercial transporter or a transporter who operates an airport or an international bridge or tunnel to provide and maintain facilities that are adequate for the proper holding and examination of persons being carried into Canada. These must be provided without cost to Her Majesty in right of Canada. It was noted that the act already seems to indicate that such facilities will not be provided at Her Majesty’s expense.

The agency suggests that this passage is included for greater clarity in order to maintain consistency with similar requirements set out in the Health of Animals Act and the Customs Act. Although it is still not strictly necessary to make such a statement in these regulations, it could be considered acceptable in this case in order to ensure that similar and coordinating legislative requirements are interpreted consistently.

If members are satisfied, a further letter could be drafted seeking an update on all of the promised amendments and on the outstanding substantive reply to subsection 47(2). Counsel will continue to monitor Parliament for the introduction of the Miscellaneous Statute Law Amendment Bill.

The Joint Chair (Mr. Albrecht): Any comments by committee members? Are you agreeing with the direction that counsel is recommending? I think there is general agreement that “without cost to Her Majesty” might not be something to worry about. If it’s there twice, it’s probably better than not having it there at all.

All in agreement? All right, we’ll move ahead with that.

Thank you, Mr. Abel.

The Joint Chair (Senator Day): Thank you Mr. Albrecht and colleagues. We are continuing under the heading “Part Action Promised.”

SOR/2007-137 — ASSISTED HUMAN REPRODUCTION (SECTION 8 CONSENT) REGULATIONS

(For text of documents, see Appendix E, p. 24E:1.)

Ms. Borkowski-Parent: This file has never been presented to the committee, so I will go through each point raised with the department.

The statutory basis for the regulations is section 8 of the Assisted Human Reproduction Act, which states: “No person shall make use of human reproductive material,” or HRM to save me seven syllables, “for the purpose of creating an embryo unless the donor of the [HRM] has given written consent, in accordance with the regulations, to its use for that purpose.”

Point 1 revolved around the meaning of the expression “has been designated for their reproductive use.” Terms like “designate” usually imply there is another part of the regulations that deals with the designation process; otherwise, the reader is invariably left with the question as to how to go about getting HRM designated. In some, it’s a matter of internal coherence of the regulations.

The department was asked by what mechanism HRM is designated for the reproductive use of a third party. In short, there is no formal process. Rather, it is left to be dealt with by intermediaries such as fertility clinics.

So while cognizant of the fact that rules regarding written consent may vary between provinces and territories, it doesn’t mean that the regulations could not be worded in such a way so as to avoid ambiguity, particularly since the Supreme Court of Canada has confirmed the federal jurisdictions over matters that fall within the purview of section 8 of the act.

Point 2 also deals with the practical application of section 9 of the regulations regarding the withdrawal of consent to remove HRM after a donor’s death. Subsection 9(2) states that the withdrawal of consent is only effective if the person removing the human reproductive material has been notified in writing of the withdrawal. The question asked was whether the identity of that person was always known to the donor prior to their passing.

The department’s response indicated that there is no formal mechanism in place to bring the withdrawal to the attention of the person removing the HRM and makes an inadequate parallel with the case where the medical professional removing HRM is not the one using the HRM to create an embryo.

In this case, however, it does not seem sufficient to simply hope that someone conveys to the person who intends to remove the HRM that the consent was withdrawn. This suggests that there is a gap in the regulatory scheme, and it should be fixed in order to give effect to donor’s wishes.

Point 3 also deals with practical implications of vague language. Subsection 10(2) states that if the donor is a couple, consent from each spouse must be compatible. Using the example stated in the materials, the department has provided some clarity with regard to what “compatible” means, although none of that explanation is provided for in the regulations.

It is therefore suggested that subsection 10(2) could be amended in the following manner: “If the donor is a couple, the embryo may only be used for those purposes to which each spouse or common-law partner has consented.” This formulation has the benefit of removing ambiguity while retaining some of the current wording.

Lastly, some inconsistent language was used in paragraph 12(c)(iii)(a), with the English version using a different term for the same French equivalent. It’s a well-established principle of statutory interpretation that different words have a different meaning; ergo, if the meaning is the same, the same terminology should be used consistently.

While the department recognizes the incongruity, it explains that it has to do with French syntax. That being said, as was discussed under point 1, the term “designated” is somewhat misleading and if removed would render point 4 moot.

The Joint Chair (Senator Day): You had six points since 2007. Two of them are satisfactorily dealt with. Four remain. You have proposed changes in wording that would clarify matters from your point of view. Have those wording changes been communicated to the department already?

Ms. Borkowski-Parent: No, we’re at a step where we have the first substantive response from the department. That’s their explanation to the questions that were asked.

I would suggest on point 1 that to say “material has been designated” when there is no formal process to do so is misleading, and it should be corrected.

On point 2, the withdrawal of consent, the department’s response seemed to indicate there is a gap there that should be addressed as well.

On point 3, to resolve the ambiguity, the language stated in the note could be suggested to the department, with point 4 depending on the resolution of point 1.

The Joint Chair (Senator Day): What is your pleasure, colleagues? Should we let counsel try another, more specific letter with suggestions and see the outcome?

Mr. Tilson: Have your recommendations already been sent, or haven’t they been sent?

Ms. Borkowski-Parent: As a matter of process, when counsel reviews a regulation, we’ll send an initial letter identifying deficiencies or highlighting questions we might have on the scheme. Sometimes responses come back from departments and they are satisfactory or they will agree that there is a deficiency and promise amendments. Once we have received the department’s response, we bring the file for the committee’s consideration to decide the way forward.That is the step we’re at.

In this instance, I would suggest that the response provided by the department does not address the deficiencies raised by counsel, and the next step would be to explain the position further and seek their approval to amend the regulations.

The Joint Chair (Senator Day): With a specific recommendation from your point of view.

Ms. Borkowski-Parent: There is a specific recommendation on point 3. It’s not always possible for us to provide a specific solution because there might be policy implications that we are not aware of. So we seek the department’s cooperation in finding a solution that will resolve the committee’s concerns.

Mr. Tilson: I move that we follow counsel’s recommendations.

The Joint Chair (Senator Day): Okay.

On that motion, Mr. Badawey?

Mr. Badawey: I just wanted to clarify the first point. Did you say that they are correcting?

Ms. Borkowski-Parent: No. Right now there is no formal process. On point 4, if they are correcting point 1, it would resolve.

Mr. Badawey: That’s what I’m getting at. It’s ambiguous. With that said, you’re going to highlight that correspondence back to them, but it’s dependent on point 1.

Ms. Borkowski-Parent: Correct.

Mr. Badawey: Point 2 has been identified and recognized by the department and they are going to correct that?

Ms. Borkowski-Parent: No, I don’t think there is any agreement to amend on this file.

Mr. Badawey: I’m assuming, Mr. Tilson, the motion is to take care of those three points, be specific on them, and expect a response from them on how to address that. That’s the motion? Okay.

The Joint Chair (Senator Day): Mr. Tilson, are you happy?

Mr. Tilson: I’m happy, Mr. Chairman.

The Joint Chair (Senator Day): Thank you.

All those in favour of the motion? Contrary-minded, if any?

Thank you. Motion carried.

SOR/2011-83 — REGULATIONS AMENDING THE LICENSED DEALERS FOR CONTROLLED DRUGS AND NARCOTICS FEES REGULATIONS (1056)

(For text of documents, see Appendix F, p. 24F:1.)

Ms. Borkowski-Parent: On point one, the Department of Health has agreed to amend the regulations so as to use terminology that is consistent with the definitions, and these amendments will be made through a miscellaneous amendment regulation, also known as MARs, expected for early 2018, so we’ll follow up on that.

The remaining two points are analyzed in detail in the documents prepared for you today. First, there is the question of the timing for the application of subsection 4(2) of the regulations, which states that if the applicant has not completed their first calendar year of conducting activities under a dealer’s licence, the applicant must provide a statement within 90 days after the date on which that year ends in order to be eligible for remission.

Under section 5, the fee for the dealer’s licence is generally payable on the day on which the licence is issued, except in the case of an applicant referred to in subsection 4(2). The fee is payable on the expiry of the 90-day period if the renewed dealer’s licence is issued. Therefore, the question asked was: If the dealer’s licence is not renewed or if the applicant does not seek remission for the first year, then the fee was, in fact, payable on the day the licence was issued.

On this point, Health Canada has responded that when an applicant does not renew or seek fee remission for the first year, the fee is due 90 days after the end of the first calendar year. It’s unclear what provision Health Canada is relying on for this statement and it goes against the scheme of section 5. The department could, therefore, be asked to explain the basis for its statement.

The note also spells out a more adequate wording for subsection 5(2) that would better reflect the reality that is described by the department. That suggestion could be made as well.

The other point for discussion pertains to subsection 6(1), which states:

If the Minister of Health determines, on the basis of any information available to the Minister, that the statement provided under subsection 4(1) is not adequate to determine the actual gross revenue referred to in that subsection, the Minister may require, for the purpose of determining the fee payable or the amount of the remission, the applicant to provide sales records that have been audited by a qualified independent auditor.

So the use of the word “may” suggests that the minister has the discretion to decide whether to require audited sales records for the purpose of the determining the fee. The department was therefore asked why the minister would choose not to require audited sales records when the information provided is inadequate and how the minister would proceed in those cases.

The department responded that it might request further information before requiring audited statements. Under section 4, applicants seeking remission are required to provide a statement, signed by the individual responsible for the applicant’s financial affairs, that sets out the actual gross revenue, and subsection 6(1) permits the minister to require the applicant to provide audited sales records if the information already provided is inadequate.

Subsection 6(2) then establishes clear consequences for the applicant’s failure to provide audited sales records within 90 days of the minister’s request. The scheme established in the regulation is pretty clear and does not provide for that interim step mentioned by the department. So further clarification or a regulatory amendment is required on this point as well.

The Joint Chair (Senator Day): On item number 1, you have been promised an amendment, so you just monitor that and presumably no action would be required until we hear back from you.

Ms. Borkowski-Parent: Correct.

The Joint Chair (Senator Day): It’s items 2 and 3 that have recommended courses of action. You are suggesting, for 2, to go back and ask for an explanation, and for both 2 and 3 you have suggested wording changes.

Ms. Borkowski-Parent: There is no wording change for point 3 other than to say that if you are going to add an extra step to the process before moving on to audited records, it should be reflected in the regulations.

The Joint Chair (Senator Day): Are there any comments?

It has been moved by Mr. Tilson that we accept counsel’s recommendation and proceed in that regard. Anything on the question? All those in favour? Contrary-minded?

Motion carried. Thank you.

SOR/2011-292 — INTERNET CHILD PORNOGRAPHY REPORTING REGULATIONS

(For text of documents, see Appendix G, p. 24G:1.)

Mr. Abel: By way of background here, the way that these regulations and the parent act work is that there is a private organization designated by the regulations. Currently, it is the Canadian Centre for Child Protection, and Internet service providers that detect child pornography or the possibility of child pornography forward this information to the centre, which acts as a clearing house for assessing it and then provides that information to law enforcement agencies across the country.

The committee identified four matters in January 2016 concerning these regulations. Amendments were promised on three points. These would correct discrepancies within the regulations or between the act and the regulations and also remove an unnecessary and subjective qualifier to requirements set out in section 6.

On the fourth point raised, with respect to paragraph 6(c), it was noted that personnel of a designated organization — in this case, the Canadian Centre for Child Protection — are required to have the necessary security clearance and was asked why employees of designated organizations would need to access government information in order to carry out the requirements of the act and the regulations.

The department explains that this reference to the necessary security clearance does not refer to government security policy or access to confidential or classified information. Instead, it is intended to mean that the personnel must pass a police records check or some other reliability check.

As the note prepared for today sets out in some detail, the term “security clearance” has varied meanings among federal statutes. In some cases, it refers to the level of access granted by the government to access confidential or classified information. In other cases, it simply has a contextual meaning where a person is authorized to do or access a restricted thing or place.

There is therefore little broader context that would indicate a precise and intended meaning for the term “necessary security clearance” found in paragraph 6(c). The regulations require the designated organizations to deal with sensitive matters; to communicate systematically and by secure means to Canadian law enforcement agencies; to report to the Minister of Public Safety and the Minister of Justice; and to guard its information from unauthorized access. It seems plausible that the term “necessary security clearance” could be taken to mean an authorization to access confidential or classified information.

All in all, it simply appears to be a confusing choice of words and a clarification seems warranted. In addition, perhaps the regulations should indicate what other type of reliability check, besides a police records check, would be appropriate to meet the requirements of section 6.

If members are in agreement with the foregoing, a further letter could be drafted putting this to the department and also seeking a time frame for the promised amendments.

Mr. Tilson: Mr. Abel, what do you think “security clearance” means?

Mr. Abel: We assumed it meant access to confidential information. That’s why the only question we asked was, “What confidential information would you need to access?” When we read that, the first thing that comes to mind is access to confidential or classified information.

Mr. Tilson: Who gives the clearance?

Mr. Abel: The designated private organization, the Canadian Centre for Child Protection. All they intend is that the organization must do a criminal records check — or some other reliability check, in the words of the department — on these personnel. It has nothing to do with classified information.

Mr. Tilson: It’s the same thing, really. It’s a police records check.

Mr. Abel: They refer to a police records check in the letter, and then they refer to “other reliability check.” We’re not sure what that would be.

Mr. Tilson: That’s what you’re asking. I see.

Mr. Abel: We would suggest that if they do amend this term to make it clearer as to what they are doing, that they also set out what they have in mind for some sort of background check if it’s not a police records check.

Mr. Tilson: I would put, Mr. Chairman, that that request be made as to the intent.

The Joint Chair (Senator Day): More clarification with respect to “necessary security clearance.” That was the recommendation for the fourth issue. There were three others where you had assurance that, in due course, they would make amendments. How long has due course been so far? Do we need clarification, do we need a timeline or do we wait and monitor?

Mr. Abel: The department replied in September 2016. They haven’t been made yet. Normally, as general counsel mentioned earlier, the committee usually takes a reasonable period to be one to two years. At this point, I would suggest asking the department what they think their time frame is and then that can be brought back to the committee.

The Joint Chair (Senator Day): Mr. Tilson, could we modify this to include the fact that for the first three items we would contact the department and see how their due course is coming?

Mr. Tilson: Yes.

The Joint Chair (Senator Day): Thank you. Then with the fourth, we will ask for more clarification.

Are there any further questions on the motion?

All those in favour? Contrary minded?

Motion carried unanimously.

Mr. Badawey: I’ve never really seen that before, where you get a piece of correspondence that has no date on it.

The Joint Chair (Senator Day): Which one are you looking at?

Mr. Badawey: The one that is stamped September 19, but I do not see a date on it, which is odd.

Mr. Abel: It happens from time to time with different agencies and departments. Most are consistent with stamping. It does also make it difficult for to us refer to.

Mr. Badawey: It’s not so much the stamping. It’s that the actual correspondence itself doesn’t have a day on it, which is odd.

The Joint Chair (Senator Day): If it had not been for us, there would be no date on it. An interesting point; maybe that gives them more time.

TERMS AND CONDITIONS OF EMPLOYMENT OF THE FEDERAL OMBUDSMAN FOR VICTIMS OF CRIME

(For text of documents, see Appendix H, p. 24H:1. )

Ms. Borkowski-Parent: The four items that had previously been flagged for consideration for future amendments were updating the definition of “victim,” using the defined term “victim” consistently through the order, replacing the term “recommendations” in paragraph 5(2)(a) with “assessments” and bring some uniformity in the language of the French version of paragraph 5(2)(c).

Furthermore, the Department of Justice has now agreed to flag for consideration subsection 5(1), so the ombudsman can seek consent to an historical or retrospective review of systemic issues rather than having to wait for a request of either ministers.

Another such issue is the misleading wording of subsection 6(5), which requires the ombudsman to inform the requester of the result of the review or any action taken to respond to the request, but at the time and in the manner chosen by the ombudsman. The department’s response states that it might be advisable to provide a specified period of time within which the ombudsman is required to inform the requester of the result of the review.

Lastly, the following question remains regarding paragraph 5(2)(c) of the order. This paragraph identifies certain specific decisions that the ombudsman is not permitted to review, including a decision of Correctional Service Canada as to whether or not to transfer an inmate to another penitentiary.

The issue raised was why this refers only to transfers to another penitentiary and not also to transfers to a provincial correctional facility since presumably neither decision is within the ombudsman’s mandate to review.

Regarding the discussion over the meaning of the expression of “such matters as,” there is the fact that if what is intended is to exclude from the mandate of the ombudsman disciplinary decision made by the Correctional Service, maybe it should say so more clearly, and should members wish, that request could be made.

Overall, there are now six issues that have been flagged for consideration, which is far from the firmest commitment.

Furthermore, the current ombudsman was appointed for a term of one year, effective August 16, 2016. This appointment has now been renewed for a term of three months, effective August 16, 2017, without any of the changes having been made.

A call for applications for the position closed last April, so given that the appointment of a new ombudsman seems imminent, the committee may wish to request to the minister that these matters be addressed prior.

The Joint Chair (Senator Day): Have you looked into the jurisdictional issue here? There’s a federal ombudsman and you’re talking about a provincial correctional institution.

Ms. Borkowski-Parent: With the intent of that provision, there are exclusions to the mandate of the ombudsman. The intent of that provision is to exclude disciplinary action from Correctional Services from the mandate of the ombudsman. Therefore, should Correctional Services decide to transfer an inmate, whichever the facility he or she may go to, it would not fall under the mandate of the ombudsman, except that the terms and conditions only state that it’s the review of a transfer to a penitentiary that falls outside the mandate of the ombudsman. There is a way to make that provision clearer by saying “any disciplinary action taken over an inmate.”

The Joint Chair (Senator Day): Are there any comments?

Ms. Dhillon: Could you please provide a letter to confirm the timeline?

The Joint Chair (Senator Day): Is that in the form of a motion that we ask counsel to send a letter on our behalf providing for a timeline?

Ms. Dhillon: Yes, please.

Ms. Borkowski-Parent: Is it to the department’s designated instruments officer or to the minister?

Ms. Dhillon: To the officer.

The Joint Chair (Senator Day): The person with whom we have had correspondence heretofore.

Ms. Dhillon: To the officer, yes.

The Joint Chair (Senator Day): Any further comment?

The motion is that we write a letter to the department asking for a timeline.

In that letter, do you want to point out that there is a new ombudsman pending and that it would be advisable to try to get that done before the new ombudsman is in place?

Ms. Dhillon: Yes, thank you.

The Joint Chair (Senator Day): All those in favour? Contrary minded?

Motion carried. Thank you.

SOR/2007-125 — VESSEL CLEARANCE REGULATIONS

(For text of documents, see Appendix I, p. 24I:1.)

Mr. Badawey: Is it because of the process that they’re looking at that time frame, or is it simply that they are lagging?

Mr. Abel: Are you talking about the last file specifically or just in general or this file?

Mr. Badawey: Item 11 on our agenda, the one we’re on right now.

I see here in the last paragraph on the first page, that they are speaking about: “The committee sought an indication of when regulations governing the certificates were expected to be made, if such a date were known.” Is a date now identified and/or the time being taken due to the process that they have to actually go through to do due diligence, or is it simply a lag?

Mr. Abel: In this particular case, the department says that they need to take two years to develop a new regulatory plan because they are planning to do a large amendment project for a number of regulations under the Shipping Act.

Mr. Badawey: So it’s process.

Mr. Abel: They say that within the three-to-five-year span is when they’ll actually be making the amendments. I assume it’s just the process relating to a large project.

Mr. Badawey: Okay.

Mr. Abel: I would add that this is something the committee encounters from time to time; departments like to roll promised amendments to the committee into other things they have going on. That often leads to greater delays because those bigger projects get more delays.

Mr. Badawey: Is there anything else attached to this file that the committee or counsel is concerned about that would ultimately be a part of that process? Are there any other outstanding issues with respect to this act?

Mr. Abel: I’m not sure, offhand. We have an awfully large number of Transport files that relate to the Canada Shipping Act. This is the first time I have seen the reference to this particular project. They are not very specific about what they are doing, so I don’t know.

Mr. Badawey: What I’m getting at is that ultimately we can wrap it up into one process of monitoring over the course of the next three to five years, instead of sending them one letter for this, one letter for that. We can actually wrap it all up and ask that they give us continued updates with respect to how they are making out in their process.

Mr. Abel: It’s possible if on the other files the only thing that would be outstanding is promised amendments and there are no other substantive points. Usually at that point we would end up tying files together and bringing them in a lump to the committee. We do that as a matter of course when it makes sense to do that.

Mr. Badawey: Ultimately I am just trying to expedite all of the files versus doing one-offs.

Mr. Abel: Yes, it is easier for us when we can do that as well.

Mr. Badawey: Exactly. Then getting updates back in terms of that process that they are going to embark on.

The Joint Chair (Senator Day): Mr. Badawey, the final sentence on page 2 is that it may not be necessary to monitor these matters further if we’re satisfied. I think they are trying to reduce the number of files they have to keep on their pending list.

Mr. Badawey: That’s fair. If that’s the case, then I would support that.

Mr. Abel: On this particular file, the committee identified a reference to a certificate that was not entirely clear. The department could clarify it, but there is probably no legal implications from it being left that way for awhile.

In the other case, they refer to two certificates for liquefied gases. They say that those aren’t being issued and won’t be issued until these new regulations are made. So there are no real outstanding legal problems. It’s possible that the committee doesn’t need to monitor this particular file. They will be eventually fixed, and there are no ongoing problems.

Mr. Badawey: Fair enough. Thank you.

The Joint Chair (Senator Day): Satisfied?

Mr. Oliver.

Mr. Oliver: Is a motion needed to close the file?

The Joint Chair (Senator Day): I think that, if there is consensus, no further action is necessary at this time. We’ll just record that.

[Translation]

Mr. Dusseault: I would like to mention something that comes up too often. Ultimately, we delegate powers to regulatory authorities through regulations in order to make things easier. This method is more flexible, and we assume that it is easier to amend regulations that legislation. Yet it seems at times that it is easier to amend legislation than to make changes to regulations.

In future correspondence, perhaps it could be mentioned that powers are delegated in our laws to enable departments to make regulations and to make it more flexible. In short, it seems that it is always more complicated than getting a bill through the House of Commons.

[English]

The Joint Chair (Senator Day): Nothing further on that?

Counsel?

[Translation]

Ms. Borkowski-Parent: You have actually put your finger on a trend in committee correspondence, namely, that we are increasingly receiving replies that indicate that the process will be lengthy and that they do not really want to make amendments because it is difficult. It is difficult, I mean, because it is part of the executive. It is also difficult for us to speculate as to the reasons it has become so difficult to make regulations.

As I said, in the past, the committee considered a period of two to three years was enough time to make amendments to regulations. I can tell you that this is increasingly becoming unrealistic. It is not clear why, but perhaps the committee could look into this. In its current form, the regulatory process is close to 40 years old. Things have been added to the steps, including the involvement of Treasury Board. To identify the source of the delays, however, perhaps the committee would like to look into this in the future.

Mr. Dusseault: Yes, indeed.

[English]

The Joint Chair (Mr. Albrecht): That reminds me of a great document that our counsel prepared for us a while back. I’m just wondering if our new members would have received a copy of this flow chart. I think it does outline the regulatory process in a pictorial way that is helpful for me.

I would agree, though, when I saw on page 2 that the regular policy change will take two years and, beyond that, another three to five years for legislation, it is a long time. While I’m not eager to have our counsel continue to monitor numbers and numbers of files, that one looks like a really long time.

The Joint Chair (Senator Day): There is the delay because they like to consolidate all of these.

That was a good discussion. We have a consensus, so I don’t think we need a vote on the last issue.

SOR/2017-82 — REGULATIONS AMENDING THE GOVERNMENT CONTRACTS REGULATIONS

(For text of documents, see Appendix J, p. 24J:1. )

The Joint Chair (Senator Day): Now we’re into “Action Taken.” Is that there just for information purposes, or is there anything you need to bring to our attention?

Ms. Borkowski-Parent: No, it is for your information. It may be in my amendments that had been raised in SOR/2011-197, so both files can now be closed.

Just for members’ information:

[Translation]

Under the heading of “Statutory Instruments without Comment,” you will find 23 texts that have been reviewed by counsel and deemed to comply with the committee’s 13 review criteria.

For the information of new members, the regulatory texts are not reproduced in the documents distributed to you, but we always bring a copy to the meeting with us should a member wish to look at them.

[English]

The Joint Chair (Senator Day): So it’s there to show you that we do succeed.

Mr. Oliver: I wanted to follow up on this. I wouldn’t mind getting a copy of that flow chart of how regulations are put forward.

The Joint Chair (Senator Day): Good point. Maybe we can send it out.

Mr. Oliver: I couldn’t find it in that orientation manual.

Ms. Borkowski-Parent: We have a new edition of the document, and it has now been included.

Mr. Oliver: Okay, if I can get an updated version, that would be all I need.

Is it worth asking the question about why it takes so long to get regulatory changes made? They should be far more flexible than legislation, yet it seems to be more burdensome.

The Joint Chair (Senator Day): It’s given less priority in the department would be my guess.

Does counsel wish to comment on that?

Ms. Borkowski-Parent: Not being part of the executive, as I said, I do hear comments from my informal discussions with departments, but that is anecdotal at best. Whether it’s a lack of resources, a process that has been made significantly more burdensome and complex for whatever reason, or a lack of resources on the drafting side, it’s not something I can state at this point. But should the committee want to examine that question, it could yield interesting or potential improvements.

The Joint Chair (Mr. Albrecht): As a follow-up to Mr. Oliver’s question — I think it’s a great one — to whom would we address the question? To the Privy Council? An all-of-government approach as to a concern that this committee has in a general sense? What are your thoughts on that?

Ms. Borkowski-Parent: The concern with the lack of progress was shared with the Privy Council Office last spring to encourage departments to be more proactive with the committee. How that information is gathered is something that needs to be given thought, but I can get back to you with suggestions.

The Joint Chair (Senator Day): When you say it was brought to Privy Council Office last spring, was that in the form of a letter?

Ms. Borkowski-Parent: Yes. It was from the joint chairs — after a particularly appalling file from the Department of Justice — to encourage all senior public servants to better address committee questions.

The Joint Chair (Senator Day): To finish up on this, could we make sure we have either a copy of the flow charts or the briefing book, if it’s in the flow chart, for those that wouldn’t have received it? It could be helpful.

Mr. Oliver: I have only been on the committee for a year, but a lot of our motions deal with “we want something done,” and then we seem to be very arbitrary. Sometimes it’s six months; sometimes it’s two years. We move all over the place on this.

I’m not too interested necessarily in the process. I think we should have set guidelines. If we’re not happy with the regulations, and someone says the change will be made and we want to set a timeline, we should have a standard, reasonable timeline to see regulatory changes made within a department.

We may need some basis for whether we’re going to say it’s six months or two years — whatever it is — but we should have something not as arbitrary as how we feel that morning, whether we’re happy or not happy with life.

To me the end result of the question is: What is a reasonable timeline for us as a committee to see the changes we expect to be made to be? We should have a standard rule versus the arbitrariness we have today.

Ms. Borkowski-Parent: Conversely, even if the committee sets a time frame of two years for regulatory amendments, if there is a bottleneck elsewhere, ultimately, regulation-making authorities have to go through the entire regulatory process in order for those amendments to be made. If there is a bottleneck elsewhere, such as two years not being feasible, it might be worth identifying.

The Joint Chair (Mr. Albrecht): I think we did have a similar process, where if a certain response was not satisfactory, we outlined criteria as to when we want it by. Our counsel did point out that there are some bottlenecks. I think Treasury Board was one of them.

I would agree, if the committee agrees, that it would be good to charge our counsel with a study of that and possibly recommendations that we could then follow up on with the Privy Council or others to expedite our work.

The Joint Chair (Senator Day): These are good comments. Steering will take a look to see what we can do. We’ll try to make sure that everybody has a copy of the document.

[Translation]

Mr. Dusseault: That goes back to what was said earlier. My idea today was not to launch a discussion on a broader, more generalized problem, but perhaps we should look into this in greater detail and try to get explanations from Treasury Board and the Privy Council Office in order to get background on how the process has changed over the years, including deadlines, and so forth.

I do not want to repeat what was said earlier, but indeed it does seem so complicated that one wonders whether it might almost be easier to amend the legislation.

The Joint Chair (Senator Day): Did we send a letter last year?

Ms. Borkowski-Parent: Yes.

The Joint Chair (Senator Day): Did we get a reply?

Ms. Borkowski-Parent: Yes, from the Clerk of the Privy Council, who assured the committee and its members that the departments have been advised that they have to cooperate with the committee’s work.

[English]

The Joint Chair (Senator Day): We’ll keep monitoring this. If further action is necessary, we will — we haven’t decided to bring the hammer down right yet.

SOR/93-334 — PACIFIC FISHERY REGULATIONS, 1993, AMENDMENT

SOR/94-56 — PACIFIC FISHERY REGULATIONS, 1993, AMENDMENT

SOR/94-57 — PACIFIC FISHERY REGULATIONS, 1993, AMENDMENT

SOR/94-391 — PACIFIC FISHERY REGULATIONS, 1993, AMENDMENT

SOR/95-245 — EXPORT AND IMPORT PERMITS AND CERTIFICATES FEES ORDER, 1995

SOR/2016-224 — ORDER REPEALING THE ESKASONI BAND COUNCIL ELECTIONS ORDER

SOR/2016-225 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (ESKASONI)

SOR/2016-270 — REGULATIONS AMENDING THE CANADA LANDS SURVEYORS REGULATIONS

SOR/2016-282 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SPLATSIN)

SOR/2016-285 — ORDER 2016-87-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2016-287 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (SEABIRD ISLAND)

SOR/2016-288 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (O’CHIESE)

SOR/2016-294 — REGULATIONS AMENDING THE PRECURSOR CONTROL REGULATIONS (FENTANYL PRECURSORS)

SOR/2016-295 — ORDER AMENDING SCHEDULE VI TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (FENTANYL PRECURSORS)

SOR/2016-296 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MOTOR VEHICLE EXPENSES AND BENEFITS 2016)

SOR/2016-301 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2016-3 (SQUIALA)

SOR/2016-303 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

SOR/2016-308 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

SOR/2016-310 — ORDER 2016-87-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2016-312 — REGULATIONS AMENDING THE PACIFIC PILOTAGE TARIFF REGULATIONS

SOR/2016-315 — REGULATIONS AMENDING THE DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT REGULATIONS

SOR/2016-320 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2017-45 — ORDER AMENDING THE SCHEDULE TO THE TOBACCO ACT (MENTHOL)

The Joint Chair (Senator Day): We’re almost finished. We have two pages of statutory instruments that you have looked at and there’s no reason to bring to this committee other than to let us know that this is what you’re doing when you’re not doing other things.

Ms. Borkowski-Parent: Correct. Therefore, we will close those files.

The Joint Chair (Senator Day): That’s excellent. Thank you very much.

The next meeting is October 19.

(The committee adjourned.)