---

Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue No. 48 - Evidence - April 11, 2019

---

OTTAWA, Thursday, April 11, 2019

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of Statutory Instruments; and for the consideration of a draft budget.

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

[English]

The Joint Chair (Mr. Albrecht): Welcome, committee members. We welcome, especially, our new senator, Senator Pat Duncan, from Yukon. It’s good to have you with us.

COMMITTEE BUSINESS

The Joint Chair (Mr. Albrecht): We’re going to start this morning with some committee business. It relates to the budget. I think you’ve all been given the sheet as you arrived this morning. It’s the budget for Senate and House of Commons. The total is there.

Is there any discussion or are there any concerns? Is someone prepared to move that we adopt this budget? Okay.

All in favour of adopting the budget as printed — $7,500 — please raise your hands? Carried.

We also want to look for a minute at the proposed schedule for the meetings that are remaining in this session. We will look to Ms. Kirkby for that.

Cynthia Kirkby, Acting General Counsel to the Committee: After today’s meeting, we have May 9 and 16, and June 13 scheduled. The question is whether the committee would like to add an additional meeting to balance out the meeting that was cancelled. The proposed dates are May 30 or June 6.

The Joint Chair (Mr. Albrecht): In light of the fact that we had the one committee meeting cancelled and our staff are working diligently on a huge backlog, I think we owe it to them to meet in order to clean up as much of the backlog as we can.

Is there agreement we will meet on May 30 and June 6, in addition to the previously scheduled meetings? We can send out a new schedule.

The Joint Chair (Senator Day): Is it one or the other?

The Joint Chair (Mr. Albrecht): It’s both.

Is there any dissent? All in agreement? So ordered.

Let’s move to agenda Item No. 2, Accessibility of Materials Incorporated by Reference. All of you have had these items in your possession for some time. I’m going to look to our general counsel for input on this item.

ACCESSIBILITY OF MATERIALS INCORPORATED BY REFERENCE (SF2015-1)

(For full text of documents, see Appendix A, p. )

Ms. Kirkby: At a recent meeting, members had asked about the status of this file, and it is being presented today by way of update.

As amended in 2015, the Statutory Instruments Act states that regulation-making authorities must ensure that materials incorporated by reference in regulations are accessible. The joint committee was particularly concerned about how materials can be considered accessible if they are only available in one official language and only at a cost.

As a result, in October 2017, the joint committee asked the Department of Justice to provide a list of all documents incorporated by reference in federal regulations, with the name of the regulations they are incorporated in, their cost, if any, and the official languages they are available in.

The chronology, in brief, on this aspect of the file is that the Department of Justice missed the committee’s deadline for providing the list, then provided a list that represented only about 1 per cent of all federal regulations, then missed another deadline for providing the list and then advised that it would not be providing the list at all. Members did not find this acceptable, as was conveyed in counsel’s letter to the department on December 4, 2018.

The former Minister of Justice then sent a letter to the joint chairs, advising of two initiatives that should result in the production of the information requested by the committee. The first project, as described in her letter of December 21, is led by the Canada School of Public Service and involves the use of artificial intelligence. Results are expected to be available in 2019. The second project uses traditional methods to identify the requested information about incorporated documents, and initial results are expected this spring.

No results have yet been provided to the joint committee, but this seems to represent progress. That is the update with respect to the list.

The second aspect of this file concerns government policy with respect to the use of incorporation by reference. The recently developed Cabinet Directive on Regulation contains a section about incorporation by reference, “departments and agencies must ensure that incorporated documents are accessible, as required by the Statutory Instruments Act . . . .”

Additional information is set out in the Policy on Regulatory Development, which is said to support the implementation of the cabinet directive. Of particular note, that policy states that “When a unilingual incorporation is used, departments must provide guidance in both official languages.” Counsel has begun to ask departments about the guidance they provide when unilingual incorporation by reference is used and will report back to the committee once that information arrives.

The Policy on Regulatory Development also states that “Regulators must monitor and review material that is incorporated by reference to ensure that the material . . . continues to remain accessible and relevant . . . .” This may relate to another of the issues the joint committee had raised about incorporations by reference that have become obsolete yet remain in law.

The letter from the former Minister of Justice indicates that in addition to the cabinet directive and its policies, Treasury Board and Justice are currently developing a guidance document for regulators that will establish best practices, including ways to promote the accessibility of documents. This guidance document is also expected to be completed this spring.

Again, no details have yet been provided to the joint committee, but this also seems to represent progress. If members are satisfied with this update, counsel could follow up with the Department of Justice in respect of both the list of incorporated documents and the new guidance document, and return the file to committee when that information is available.

The Joint Chair (Mr. Albrecht): It seems like significant progress. We’ve come from 1 per cent of material to a promise that it will all be there. The only question that remains is that it says “spring,” which is a rather amorphous timeline.

The Joint Chair (Senator Day): Especially in Ottawa.

The Joint Chair (Mr. Albrecht): That’s true.

Are you comfortable moving ahead as indicated, or do you want to be a little more precise in defining a date, perhaps June 15?

Mr. Simms: Yes, I think we should provide a date, as you pointed out. As Senator Day most eloquently pointed out, we should have a date.

The Joint Chair (Mr. Albrecht): Do you want to suggest one?

Mr. Simms: I was afraid you would say that. I would say let’s look at early June.

The Joint Chair (Mr. Albrecht): June 21 is technically the end of spring. Do we want to say June 15?

[Translation]

Senator Mégie: If our last meeting is on June 6 and we are proposing to them a June 15 deadline, we won’t have time to work on this file. So perhaps early June would be preferable?

[English]

The Joint Chair (Mr. Albrecht): I think it’s true that the committee itself will not be meeting, but it’s important that counsel has a chance to look at the material that comes back to them and prepare material for the committee for the fall, unless counsel feels it should be otherwise.

Do you feel it should be earlier than that? Are you comfortable with a June 15 date?

Ms. Kirkby: Yes.

The Joint Chair (Mr. Albrecht): Are all in favour of progressing as indicated by our general counsel, but adding to the letter to them that we appreciate the progress and we would expect a more complete report by June 15? So ordered.

Next is Item No. 3 on our agenda. There is some overlap with the previous item.

CABINET DIRECTIVE ON REGULATIONS (SF2017-2)

(For full text of documents, see Appendix B, p. )

Ms. Kirkby: The joint committee had submitted 11 suggestions to the Treasury Board during its consultations on the draft cabinet directive on regulation. The majority of those suggestions were not included in the final directive and members had attempted to obtain an explanation for why this was the case.

In December 2018, the joint chairs sent a letter to the then-President of the Treasury Board, indicating that if an explanation was not provided by January 31, 2019, witnesses would be invited to appear to provide those explanations in person. A letter from the then-President of the Treasury Board was received on February 19, addressing each of the joint committee’s 11 suggestions in turn.

This file is being presented to see if members still wish to hear from witnesses under these circumstances.

The Joint Chair (Mr. Albrecht): Each of you have had a chance to look through these recommendations — the ones that were accepted partially, the ones that were outright rejected and the ones that were incorporated. It gives us cause for some concern as to why this committee’s input seems to have been taken less seriously than others.

[Translation]

Mr. Dusseault: I think we should invite the Treasury Board Secretariat because, if memory serves, it has not testified over the past four years. Yet the Treasury Board is a key stakeholder in regulations in Canada. It would be appropriate for us to be able to hear from Treasury Board officials on the issues we are experiencing in terms of lengthy delays in the passing of new regulations and the correction of language errors or typos in regulations. It would be useful if we could hear them talk, in a broader context, about their vision of the future of regulations in Canada and the new directive.

[English]

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

Does anyone else want to have input on this?

When you look through all of them — and I’m on page 9 looking at the Joint Committee’s Suggestion 8 — the concept of “legal deficiency” is not mentioned at all. I’m not a lawyer so I’m not sure how serious this is, but I think for the average Canadian, it is important they’re assured that any of the regulations have the legal backing that they can be put into force. If they don’t, that’s a big concern for me as a member, but I think that’s also a concern for Canadians who are going to be using those regulations.

I tend to agree with Mr. Dusseault. Unless there’s further discussion on the other side, we’re going to move forward. Does anyone else want to comment?

So we’re going to ask Treasury Board officials to come to one of the next meetings, if we can slot them in, to give their rationale for the fact that many of these recommendations were omitted for whatever reason.

All in favour of that? So ordered.

[Translation]

SOR/2002-164 — NATIONAL CAPITAL COMMISSION ANIMAL REGULATIONS

SOR/2002-165 — REGULATIONS AMENDING THE NATIONAL CAPITAL COMMISSION TRAFFIC AND PROPERTY REGULATIONS

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

Ms. Kirkby: Once again, we are presenting these files to you today to see whether members still want to hear from witnesses. The committee has been waiting for a long time for amendments to these two regulations concerning the National Capital Commission, so the Minister of Canadian Heritage and his officials have been invited to appear.

It seems that the invitation has had the desired effect, as the committee just received letters suggesting that the amendments are finally under way. The letters indicate that online consultations ended in mid-November 2018, and that discussions with the Justice Department Drafting Services have begun. If members think that those measures represent progress, it may ultimately not be necessary to invite witnesses.

[English]

Mr. El-Khoury: Same thing. We would like to know where they stand. What did they achieve? Is it possible to have a date or to inform the committee on their progress in giving such answers to us?

The Joint Chair (Mr. Albrecht): I think there is progress, but you want a more definitive timeline; is that what you’re requesting?

Back to counsel, are you comfortable waiting or do you prefer to put a little more pressure on them to speed it up?

Ms. Kirkby: The impression I have is that they are definitely making more progress now than they had been previously.

The Joint Chair (Mr. Albrecht): I hope so, from 2003 until now.

Mr. El-Khoury: It says “2004 until now.”

Ms. Kirkby: The letter from the National Capital Commission does set out what they are doing and, at a certain point, how it goes beyond — the timelines are no longer in their hands, essentially.

We could certainly ask for more information on this. I’m not sure if you still want to hear the witnesses or if you’d rather do that through correspondence.

The Joint Chair (Senator Day): My inclination is that maybe there’s a whole new team of people at the National Capital Commission since 2004. If we’ve got them talking and focusing on things, I would think we could save bringing them before us until we have to move this thing a step further down the line. Could you keep monitoring and let us know how progress is proceeding?

Ms. Kirkby: Yes.

The Joint Chair (Mr. Albrecht): I think all of us share the frustration that the movement has been very slow. However, if they have shown more rapid movement and our counsel is happy with that, it’s a good signal.

The Joint Chair (Senator Day): “Happy” may be a bit strong.

The Joint Chair (Mr. Albrecht): Satisfied.

Can we agree to that progress report and ask them to respond accordingly? Those agreed? Those Opposed? Carried.

Next is Item No. 5.

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

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

Shawn Abel, Counsel to the Committee: For more than a year, the committee has attempted to draw the attention of the Minister of Innovation, Science and Economic Development to the serious and troubling actions of his department in connection with the Patented Medicines (Notice of Compliance) Regulations.

In brief, the committee determined that section 5 of this instrument, which is a transitional provision, was retrospective in nature and that it purported to apply new law to ongoing proceedings that were initiated before the instrument came into force.

The department ought to have been well aware that this was an unlawful approach given that both the committee and the Federal Court of Appeal had previously determined, in connection with previous amendments to these same regulations, that the making of retroactive or retrospective regulations is not authorized under the Patent Act. In addition, the transitional provision was worded quite oddly in what appeared to be an attempt to elide its retrospective nature.

Moreover, in correspondence, the department mischaracterized the relevant case, in which a court had considered this transitional provision, in a fairly incredible manner, by summarizing the court’s findings as the opposite of what the court had actually written in its reasons. All told, these facts suggested that the department had acted in bad faith or otherwise in an extraordinarily questionable manner both in respect of its legislative role as well as in responding to this committee.

As a result, the joint chairs wrote to the minister in October 2017 expressing the committee’s serious dismay with the department’s actions. The minister was asked to impress upon the department the gravity of the situation and to provide an assurance to the committee that this situation would not arise again. It was also suggested that an amendment to the Patent Act could be sought if the department continues to find it necessary to apply new regulatory provisions in a retrospective manner.

A follow-up letter was sent by the joint chairs in February 2018 as a reply had not yet been received. However, about two weeks later, a reply date-stamped from December 5 of the earlier year was received. It is not known why this letter had not been received earlier.

Nonetheless, the reply to the chairs’ letter was signed by a departmental official rather than by the minister. The letter did not acknowledge the invalidity of section 5 and merely sought to emphasize that the department takes its responsibilities very seriously. It was asserted without explanation that the department had acted in good faith. No assurance was provided that this situation would not arise again.

The committee did not find this satisfactory. The joint chairs, therefore, wrote again to the minister on November 2, 2018, and requested a response by the middle of that month. To date, however, no response has been received.

The Joint Chair (Mr. Albrecht): This is a troubling one on a number of fronts: the lack of response; the response bureaucrat-to-parliamentarian, as opposed to parliamentarian-to-parliamentarian. There are a number of reasons to be concerned about this file. What are your wishes, committee members?

Mr. Benzen: I think according to our schedule of how we do things, we’ve issued the letters a couple of times and there has been no response. So I think in the escalation, the next thing is to have the minister come in, talk to us and explain why he’s not responding to the letters in a timely manner and why there is no progress on this.

The Joint Chair (Mr. Albrecht): Just to clarify, this committee has dealt with the issue of correspondence a number of times and we have made it very clear that we would direct the letter to the minister and the bureaucratic team. I remember clearly hand-delivering this letter to the minister. So there’s no question that he has received it.

Mr. El-Khoury: In this case, we sent a letter in November 2018 and until now there is no answer. They are not taking our letter seriously. I propose that we have to ask some of the ministry or the minister himself to come to this committee and give an explanation about what’s going on.

The Joint Chair (Mr. Albrecht): I think we have arrived at a general consensus. All in agreement with inviting the minister to come? So ordered. Thank you.

We will move to Item 6 on our agenda.

SOR/2017-166 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS, 2017

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

The Joint Chair (Senator Day): Is that the same one?

Mr. Abel: This is another set of amendments to the same regulation.

The Joint Chair (Mr. Albrecht): Oh, it is.

Mr. Abel: We have a number of these in the agenda, so I hope not to confuse anyone.

This instrument makes amendments resolving some issues raised in connection with SOR/2006-242 and SOR/2015-169, which was the last item. These amendments removed an instance of unnecessary ministerial discretion, as well as a discrepancy between the French and English versions of one provision.

Four new concerns were raised with the department by counsel. These are covered in detail in the note prepared for members.

The first question concerns subsection 3(2.3), which empowers the minister to conduct a review of the patent register, during which the minister must delete any patent or certificate that does not meet the requirements to be on the register. While the Regulatory Impact Analysis Statement, or RIAS, accompanying this instrument states that a person will be given notice and an opportunity to respond before a deletion takes place, nothing to that effect is provided in the regulations.

On questioning, the department indicated that this was a deliberate choice.

The department also suggested that a particular administrative manual sets out this procedural practice. However, the document referenced by the department does not contain any relevant information. In any case, administrative documents are not binding and, of course, do not have the force of law.

In the second response on this question, the department wrote that the common law requirement to observe procedural fairness would apply in this case. Common law procedural requirements, however, remain unclear until a court determines what exactly those requirements should be. In this case, it appears that no court has considered this question.

At the end of the day, the department has already determined precisely which procedural rights it feels should apply, and these are described in the RIAS. For what reason then can they not be enshrined in the regulations? Doing so would only serve to ensure that all persons are treated similarly and without arbitrary distinction.

The second matter discussed in the note concerns three provisions that set out exceptions to certain requirements to provide or forward documents unless the intended recipient, who may not be in Canada, “attorns to the jurisdiction of the Federal Court.” “Attorn” is a term of legal art, meaning in this instance to formally acknowledge.

Counsel noted that neither the regulations nor the Federal Court Rules indicate how one should attorn to the court’s jurisdiction. The department replies that no method was specified in order to preserve flexibility for parties to manage their own affairs.

Given that this provision does not set out a requirement so much as simply describe a factual situation where a party has already attorned to the jurisdiction of the court, and that a judge or judicial officer will be responsible for determining whether that has occurred, I would suggest the committee could find this satisfactory in this case.

The third issue arises from several provisions which require persons to provide documents or to carry out actions either without delay or as soon as feasible.

The Joint Committee’s Report No. 89 examined the use of these frequently encountered terms, observing that they often add little or nothing to legislative requirements and are often interchangeable.

That report also recognized, however, that in some cases the use of a subjective qualifier such as these may be unavoidable if the circumstances justify its necessity. The relevant considerations in accordance with the committee’s report are quite simple: Whether it is impossible to avoid using these terms and whether the meaning is ascertainable to a person reading the regulations.

The department indicates that it was aware of the committee’s report, but chose to use these terms deliberately and with the intention of each carrying a specific meaning.

In this case, a careful but not onerous reading of the regulations does seem to reveal an intent to use “without delay” in instances where the person in question should be able to provide a document immediately. Conversely, the term “as soon as feasible” is used in cases where some delay is foreseeable, but where specific time frames may not be practical.

For example, section 6.13 requires a person to provide to the minister, as soon as feasible, a copy of certain listed documents relating to an ongoing judicial proceeding. Each document may or may not come into existence depending on how the proceedings progress, and would be generated at a different point in time.

It would be open to the committee to consider that precise time frames cannot be set out here and the drafting of these provisions is therefore acceptable. It should, of course, be emphasized that this would represent an exceptional circumstance and that in accordance with the committee’s report, precise time frames should generally still be employed wherever possible.

Finally, the fourth issue concerns subsection 7(7) which sets out a requirement to provide certain information without delay to the minister on request.

It was put to the department that it is not an offence under the Patent Act to contravene a provision of the regulations and the regulations do not allow an official or the minister to take the contravention of this provision into account when rendering any decision under the regulations.

In response, the department confirms that there are no legal consequences for failing to provide the requested information or failing to do so without delay. The department does suggest, however, that contravening this requirement would generally be contrary to a party’s self-interest.

It is permissible to set out a legal requirement for which there is no penalty or otherwise a loss of privilege following a contravention. Since the department confirms that it is comfortable with doing so in this case, there is no need to pursue this question any further.

In summary, if members are satisfied with the second to fourth points, a further letter could be drafted pursuing the first issue concerning procedural rights.

[Translation]

Senator Mégie: I was wondering about the expressions “without delay” and “as soon as possible”. I find them vague and, at the same time, when it says there are no consequences, I think that is strange. Is that why they don’t want to set a specific deadline? Because if there was a deadline, there would have to be consequences. I don’t understand this way of doing things because it is vague. If someone asks when they should submit documents and they are told as soon as possible, what does as soon as possible mean? That’s odd. I don’t know whether you are used to this, but is it acceptable in the legal world?

[English]

Mr. Abel: You’re absolutely correct and that’s the basis for the Committee’s Report No. 89 — that there is a looseness to how these terms can be interpreted. The courts have not had a consistent interpretation when someone has been prosecuted or fined for not doing something quickly enough. For that reason, the committee has taken the position that wherever it is possible to set out a precise time frame, it should be done.

The government has a different position. They see these terms as having specific meanings, and there is some purchase to that. The words “without delay” kind of suggest immediately, but “as soon as feasible” is much more vague. Normally, I would suggest that the committee would be stricter.

In referring to the example, it’s a peculiar case in that it may be difficult to set precise time frames because the regulations themselves aren’t exactly setting out requirements. For instance, in that example it’s referring to things that may or may not happen over the whole course of a judicial proceeding. It’s unclear how much time that may take. It may take weeks, months or years. There’s no way for the regulator to know.

In this case, I would suggest it’s not as objectionable, but that is a bit of an exceptional circumstance.

[Translation]

Mr. El-Khoury: It’s about knowing whether there are benefits to including procedural information for a specific request. Can we send a letter explaining why we feel that including this kind of procedural information would benefit all patent holders? We could also ask them to explain to us, if they don’t want to do so, what their advantage is.

[English]

Mr. Miller: I agree with the senator here. What I can’t get my head around, Mr. Abel, is you mentioned the courts and if your rules aren’t solid enough or clear enough, like “as soon as possible,” what is the problem? Will the courts not uphold the rules if the rules are clear enough and say you must do this in so many days, or whatever? The courts can’t play with that, surely. Can you respond to that?

Mr. Abel: You’re correct. If a timeline, for instance, is that something must be done within 30 days, it’s objective. There’s nothing to determine there. If something must be done “without delay,” then if it comes down to it, a court will have to decide, based on the circumstances, whether someone has met the underlying concept of “without delay,” and if there is room for interpretation there.

Mr. Miller: Okay. Then, having heard that, Mr. Chair, I think this committee has to send a strong message that we want the rules clear. Like, “without delay,” or, “as soon as possible,” come on, that’s going to get abused all the time. If we allow them to do that or accept that, we deserve what we get here, and we don’t deserve that.

Mr. Maloney: I’ve been practising law for 20 years. Qualifying language like, “without delay,” and, “as soon as feasible,” are common verbiage you’ll find in any rule, regulation or statute. If it’s not there, lawyers are going to argue it in anyway because there are always circumstances where there is delay or dictate that things can’t be done forthwith or immediately. The stricter the language, the more litigious people are going to get because there are always circumstances that arise that necessitate that discussion.

Leaving that in there gives judges flexibility. These terms will be defined by judges over the course of time. If you don’t put it in there, you’re going to have the same consequence anyway. This gives the courts more flexibility to do what they need to do and causes fewer problems, in my opinion.

Mr. Picard: Sorry to intervene at the end of the process in this political discussion, but, Mr. Abel, you said that the government had in mind some version of the indication of those terms. Have you provided those indications for everyone to be able to compare the weight of each expression, while still going in line with what my colleague, Mr. Maloney, has said?

The Joint Chair (Mr. Albrecht): Committee members, I think on issues 2, 3 and 4 we have somewhat agreed that we can let those go. I think Mr. Abel was indicating that, “without delay,” and some of these we might get, but it’s issue number 1 that we should be focusing on, which I think is a contentious issue we haven’t had an answer on. I think Senator Day had a suggestion.

The Joint Chair (Senator Day): Thank you, Mr. Chair. This Item No. 6 is the Patent Act, and has the same minister responsible as Item 5, and we all agreed we’d ask the minister to come on Item No. 5 on the same area of patent medicine. The strong letter that Mr. Miller suggested, I think, is defining the issue, but could also say we’d like, when the minister is here, to deal with this and tell us why. Because if we don’t, we’re going to be waiting months and months for a reply to the letter.

The Joint Chair (Mr. Albrecht): You’re suggesting we include this with the minister’s visit?

The Joint Chair (Senator Day): Yes.

Mr. Miller: I agree with Senator Day that when the minister is here, if you can get him to come, then, of course, discuss each and every one of these that are a problem under his portfolio.

Just to Mr. Maloney’s comments, I get that there are sometimes circumstances out there that cause delays. I’m not naive to that. I still think that you can have something in the act or the law that defines what extraordinary circumstances are. It’s pretty clear to define it.

The way that it is just invites abuse, as far as I’m concerned. I know lawyers are going to argue it, but it shouldn’t be up to lawyers or courts to basically define the rules over time, as my colleague said. It’s our job as legislators and it drives me nuts when courts start making the laws in this country. Courts are there to punish or enforce the laws, not make the laws. I have a problem with that.

The Joint Chair (Mr. Albrecht): Again, I want to draw us back to item No. 1. If you look at page 2 of the notes that our general counsel has prepared for us, the department suggests that procedural rights and regulations can be changed without notice.

To me, that was a big red flag. Do we care about the rights of Canadian citizens? If these can be changed without notice and not gazetted or pre-gazetted and all of these things, I think we’ve got a problem. I think we need to focus on one and, while we’re here, we can talk about the other ones. These are serious issues.

I don’t have a legal background, Mr. Maloney, but if these kinds of guidelines were in place in a surgical room in one of our hospitals and they were this sloppy, I’d be very concerned. We would not have a definite outcome expected. I think we have an obligation as a committee.

I want to suggest that Senator Day’s was the last suggestion and that we add this item to the agenda when the minister will appear before us to try to clarify, especially No. 1, and get his input on the other items.

Mr. Maloney: I agree with Mr. Miller that it’s the job of the legislature to draft laws that are clear and easily interpreted, but we’re not talking about substantive legislation here. We’re talking about a process. We have a system where the judiciary is responsible for interpreting process, so you need language like this, in my opinion. If we are going to call the minister back here, my question is: Are we going to ask him to attend without delay or as soon as feasible?

The Joint Chair (Mr. Albrecht): We’re going to give him a date.

Mr. Maloney: What if he’s not available on that date? That he’ll get back to us and tell us, “as soon as feasible,” and we’re going to accept that? I think we need to get that clear right now.

The Joint Chair (Mr. Albrecht): Based on the track record to this point, we may not get any response, so I’m worried about that, but we need to move expeditiously on this one.

The Joint Chair (Senator Day): We would want to define our position with respect to Item No. 6 so the minister would be ready to respond.

The Joint Chair (Mr. Albrecht): We’ll add the fact that we’re going to add this to his questions.

Any further discussion?

All in agreement that we will ask the minister to address this issue as well when he appears before the committee before the end of June?

Mr. Maloney is not in favour.

Mr. Maloney: No.

The Joint Chair (Mr. Albrecht): Okay. Do you want offer further input?

Mr. Maloney: No, I think I’ve made my case.

The Joint Chair (Mr. Albrecht): All in favour of adding this to the minister’s agenda? Opposed? That is carried.

Next is Item No. 7.

SOR/2014-44 — FREEZING ASSETS OF CORRUPT FOREIGN OFFICIALS (UKRAINE) REGULATIONS

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

Ms. Kirkby: These regulations were made on March 5, 2014.

As per section 6 of the enabling act, they would cease to have effect after five years unless extended by order of the Governor-in-Council.

An issue was raised with respect to a particular item of the schedule to the regulations, since certain identifying information that was included in the English version was omitted from the French version.

Global Affairs Canada acknowledged this oversight in 2014 and agreed to correct it as part of a larger regulatory initiative already under development.

By 2016, however, it had become uncertain when that larger initiative would progress, and so the department advised that the missing information would be added to the French version, “when it becomes otherwise necessary to amend the regulations in the normal course.”

The Joint Committee considered this information in February 2017. Members were satisfied with this approach, given the possibility that the regulations would cease to have effect in two years in any event.

It was conveyed to the department, however, that if the regulations were extended under section 6 of the act, “members expect that the missing information will be added at that point.”

In February 2019, the regulations were extended by order for a period of five years. In addition, the schedule to the regulations was amended to remove two listed individuals. The amendment promised to the committee in 2014 was not included.

The Joint Chair (Mr. Albrecht): Again, I think either intentional or otherwise, there is an omission of our request.

Mr. Shields: Over the time I’ve been on this committee we’ve dealt with a number of the challenges that go from French and English. Could you help me with the process? We continue to deal with these. How do they do it? When they’ve got the language, whether it comes to in English or French, they’ve got to work and make sure the final draft is good in both. Is it just because there’s so much of it that it’s just errors that they missed these things and the words are not quite right? I think if we eliminated this, that would be half our workload gone. Maybe there’s just such a volume that there’s so much back and forth and there’s just a small, small piece that gets missed in this kind of thing.

Ms. Kirkby: They did indicate in 2014 that this was an oversight by legislative drafters. They didn’t really provide any more explanation for it than that.

Mr. Shields: I guess I’m asking for your opinion, because you sit there, meeting after meeting, where these show up.

Ms. Kirkby: I think it’s fair to say that the drafters are overworked. Is that the right thing to say? We certainly hear a lot about how much competition there is for time with the drafters. So I think it was just an oversight.

Mr. Shields: Probably 99.99 per cent, and we end up dealing with that other one-tenth of a per cent here.

Ms. Kirkby: Most of the time, it’s fine. In this instance, it was information that was left out.

Mr. Shields: Okay. Thanks.

The Joint Chair (Mr. Albrecht): The broader question is this: Because it’s a small piece to be corrected, why can’t it be corrected? Let’s put the pressure on them to be dealt with as soon as possible or without delay, whichever Mr. Maloney prefers.

Mr. Maloney: Sounds reasonable.

The Joint Chair (Mr. Albrecht): What is your wish, committee members, do you want to have a letter written back to the department asking them to have it corrected within —

Mr. El-Khoury: A time frame acceptable to us.

The Joint Chair (Mr. Albrecht): What is the timeline?

Mr. El-Khoury: June is our deadline, always.

Ms. Kirkby: I would assume this is something they could expedite using the miscellaneous amendments regulations process. I would also note that they will be appearing on various other files.

The Joint Chair (Mr. Albrecht): At one of our meetings here?

Ms. Kirkby: Yes.

The Joint Chair (Mr. Albrecht): Do we want to add that to it, or do we want to have it cleared it up before they come so we don’t have a longer agenda when they come?

The Joint Chair (Senator Day): If they haven’t cleared it up, it’s incumbent on us to raise it — “Look, there are a lot of files here you’re wasting our time on.”

The Joint Chair (Mr. Albrecht): Should we ask them to have it cleared up by June 15?

The Joint Chair (Senator Day): When are they coming?

Mr. Miller: Having it cleared up before they come would be ideal.

The Joint Chair (Senator Day): Absolutely.

The Joint Chair (Mr. Albrecht): Are you comfortable writing a letter to the effect that, prior to their appearances as witnesses, we would expect this to be dealt with. If not, they will address it in their appearance.

Ms. Kirkby: I think the clerk suggested they might be appearing at the next meeting.

The Joint Chair (Mr. Albrecht): On May 9? That’s lots of time.

It looks like we’ll be dealing with it on May 9, but I think a letter in advance of their appearance would signal the fact that we expect this to be dealt with conclusively either before or at the May 9 meeting. Any disagreement with that? Okay. So ordered.

Moving on to Item 8.

SOR/2017-78 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

(For full text of documents, see Appendix G, p. )

Mr. Abel: This instrument removed from the regulations most references to the term “live-in caregiver,” as well as the definition for that term. However, some provisions still use the term “live-in caregiver” and are therefore now lacking a definition.

The live-in caregiver program no longer accepts new applicants; thus, the remaining provisions that refer to the live-in caregiver are only being applied in respect of those who were previously accepted and still remain in the program. Due to the way the regulations are formulated, it would be difficult to remove these remaining references while employers of caregivers are still governed by the rules of the program.

The department explains that it now applies a de facto definition that contains the same elements of what was once set out in the definition in the regulations. This seems to underscore that the definition should not have been removed.

In its latest reply, the department seems to have ignored counsel’s suggestion that a definition should be re-added to the regulations. Presumably, the department prefers not to make any interim amendments prior to the program coming to an end, at which point, of course, all remaining references would be removed. It is unclear, however, when the program will, in fact, end. The department could be asked for input in that regard.

Traditionally, the committee views a period of two years as a reasonable time frame at most in which to address deficiencies. The department could, therefore, be advised that a definition should be re-added if it is anticipated that the program will continue in excess of two more years.

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

Mr. El-Khoury: I think it’s very clear that if we ask them, they answer us in how long that program will come to an end, no matter what.

The Joint Chair (Mr. Albrecht): So to insert it? Okay.

Mr. Sangha: We should leave it in while the time the program is continually going on. So we have to —

The Joint Chair (Mr. Albrecht): Put it back in?

Mr. Sangha: We have to put it back.

The Joint Chair (Mr. Albrecht): General agreement asking them to put it back?

Mr. Simms: Just so I’m clear, did they provide sufficient reasoning as to why it would not be added or why they have any issues with that?

Mr. Abel: They didn’t give a reason as to why they did not want to re-add it. They simply ignored that suggestion in the response.

Mr. Simms: Of course.

The Joint Chair (Mr. Albrecht): We’re used to that.

Mr. Simms: Right.

The Joint Chair (Mr. Albrecht): But I think it begs the question, then, that we do want to address and ask them, as Mr. El-Khoury and Mr. Sangha have said, to reinsert it. Any disagreement with that?

Mr. Simms: No.

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

I will turn the chair over to our joint chair, Senator Day.

The Joint Chair (Senator Day): Thank you, Mr. Joint Chair. We’re okay to carry on? No one needs a break? Seeing no requests for a break, we’ll continue with Item 9 on our agenda.

SOR/96-194 — BASE METAL COINS REGULATIONS, 1996

(For full text of documents, see Appendix H, p. )

Ms. Kirkby: So the purpose of these regulations, according to their regulatory impact analysis statement, was to change the metal composition of pennies in order to generate savings for the government.

The Joint Chair (Mr. Albrecht): That makes no cents.

Ms. Kirkby: The regulations were made under paragraph 5.2(3)(a) of the Royal Canadian Mint Act, which was repealed in 1999, so the regulations are no longer authorized.

In 2012, Canada stopped producing pennies entirely, so the regulations are also obsolete. In 2016, the Department of Finance acknowledged the regulations no longer serve a purpose and stated it would seek to repeal them at the earliest opportunity.

Nonetheless, the regulations have not yet been repealed, and the department has provided no indication of when it expects the repeal to occur. The joint committee therefore decided last November to convey to the Department of Finance that it expected the regulations to be repealed before the end of January 2019. The department has not acknowledged that letter, and the regulations have not been repealed.

The Joint Chair (Senator Day): What do you recommend?

Mr. Simms: I would like to congratulation Mr. Albrecht. I’m sure he waited all day and all meeting to say “That makes no cents.”

The Joint Chair (Senator Day): A penny for your thoughts.

Mr. Simms: I add that both of you have been restrained all morning for that.

You said that there was no response whatsoever?

Ms. Kirkby: They have not acknowledged the letter.

Mr. Simms: This is a simple repeal; is that correct?

Ms. Kirkby: Yes.

Mr. Simms: Then it seems straightforward.

The Joint Chair (Senator Day): Are we aware of any movement to bring back the penny? What course is available to us — a reminder letter?

Ms. Kirkby: If that’s how the committee chooses to proceed.

The Joint Chair (Senator Day): What would you recommend?

Ms. Kirkby: I would suggest this is a strong candidate for a Notice of Disallowance.

The Joint Chair (Senator Day): Disallowance.

[Translation]

Mr. Dusseault: I was rather going to propose directly informing the minister of the situation, as officials have been told. Perhaps if the file was brought to his attention, it would make things happen. I don’t know whether it is necessary to send a notice of disallowance right now.

[English]

The Joint Chair (Senator Day): Would you agree to add at the end of the letter: “If we don’t hear from you within a reasonable period of time or a certain date, that the option available to us is a Notice of Disallowance”?

Mr. Dusseault: We will consider that if we don’t receive any answer, yes.

The Joint Chair (Senator Day): Are we all in agreement on that course of action? Mr. Sangha, nothing to add?

Mr. Sangha: No.

The Joint Chair (Senator Day): All right. That’s so ordered. That’s what we’ll do. Thank you.

Haven’t we seen the upcoming item previously?

SOR/2011-262 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

(For full text of documents, see Appendix I, p. )

Mr. Abel: We’ve seen this before, yes, in an earlier item, and we’ll see it again in the next item.

The Joint Chair (Senator Day): Thank you.

Mr. Abel: Yes, this is one of several instruments that amended the Immigration and Refugee Protection Regulations.

Concerns were first raised in 2008 regarding the vagueness of the term “dating” used in one provision enacted by this instrument.

In 2014, the department acknowledged that this term has no clear meaning and agreed to examine possible solutions. It has taken more than four years to develop a concrete approach. Nonetheless, the department’s November 2018 letter indicates that the term “dating” has now been used in at least one federal statute, although without definition. Furthermore, two bills are before Parliament which would make extensive use of “dating” and a related term “intimate partner.”

Immigration, Refugees and Citizenship Canada is in consultation with the Department of Justice to develop possible responses to the committee’s concern. Taking into account these legislative developments, it will remain to be seen what approach the department proposes to clarify this matter.

While a further reply was promised to arrive before the end of March, nothing has been received as of yet. If members wish, a letter to the department could be drafted seeking a progress report on this issue.

The Joint Chair (Senator Day): So they haven’t met their end of March, but they did provide a substantive response in November of last year. Would a reminder letter do it?

Mr. El-Khoury: A friendly reminder letter. We’re still waiting for your gentle answer.

The Joint Chair (Senator Day): Can you draft a friendly reminder letter?

Mr. Abel: I can, yes.

The Joint Chair (Senator Day): Is that satisfactory? Agreed? So ordered. We’ll move on that.

Next is Item 11.

SOR/2016-37 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

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

The Joint Chair (Senator Day): Here we are again. Maybe this letter is going to be less friendly as we go on.

Mr. Abel: This instrument also amends the same regulations. In doing so, it removed several improperly drafted definitions and resolved some inconsistencies as noted by the committee in connection with SOR/2002-227.

The Clerk of the Privy Council was informed of an oversight in the consolidated index of statutory instruments concerning section 270 of the regulations, which was re-added by this instrument. The index has now been corrected. Otherwise, five concerns were raised with the Canada Border Services Agency.

First, the use of the term “negligence” in paragraph 263(2)(a) was questioned. This is a legal term of art and evidently, based on the agency’s responses, it was not what they intended for this provision. An amendment to clarify this wording seems likely to be forthcoming but a clear commitment could be sought from the agency.

Second, an amendment is promised to correct a cross-reference in subsection 269(8).

Third, some clarifications were sought as to how passenger information may be retained, used or disclosed in relation to subsections 269(9) and (10). The details are set out in the note prepared for members, but I would simply say that the agency’s response demonstrates the provisions are properly drafted and raise no legal concerns.

Fourth, although section 277 was amended by this instrument, a clarification promised by the agency as far back as 2007 was not included.

This section provides that “despite sections 273 and 276,” a transporter is not obliged to carry certain persons from Canada. As part of its examination of SOR/2002-227,the committee had noted that other provisions besides sections 273 and 276 give rise or could give rise to obligations for transporters to carry persons from Canada. It seemed unclear whether section 277 is meant to provide an exception from all of those provisions or only from the two mentioned.

The agency’s reply explains that this provision is intended only to provide an exception to those two mentioned provisions, and now argues that this interpretation is clear from the fact that those are the only two listed.

I would suggest that while this provision could be clarified, it is somewhat unlikely that it would be read so as to create a conflict. While a clarification is always preferable wherever the possibility of misinterpretation arises, it could be accepted in this case that the agency does not want to make a further amendment. I would leave that in members’ hands. It would, of course, have been much more useful to have been informed of the agency’s change of heart prior to the making of these amendments.

Fifth and finally, amendments to subsections 269(5), (6) and (7) of the regulations appear to make no substantial changes. Essentially, the same provisions are simply reenacted by this instrument. The agency confirms that this is included for “readability” reasons only in this amending instrument.

This is very unusual, but it does not present a substantive problem. Provided that it’s a one-time approach, it could be considered satisfactory. Counsel would, of course, keep an eye out as to whether this becomes a trend, which may then present a larger problem.

In sum, if members are satisfied on those latter three points, a letter could be drafted following up on the amendments under the first two points.

The Joint Chair (Senator Day): This is the third or fourth Immigration and Refugee Protection Regulation concern. You deal with these all in individual files. Are you dealing with different people on each one of these as well?

Mr. Abel: Generally, as is the committee’s practice, we write to the designated instruments officer, who is chosen by the department, as insisted on by the committee. Sometimes if the committee receives witnesses or we communicate informally with departmental officials,we’ll contact different people in relation to different regulations.

The Joint Chair (Senator Day): What I’m getting to is this: Is there any psychological advantage to listing all of these? We could say, “Look, our committee is preoccupied with all of these items and we would like a satisfactory resolution by June 15 on all of them. Some of them have been around for several years, others haven’t.” What’s your feeling on that? Do we continue to deal with these separately or should we try to bunch them?

Mr. Abel: One thing I should mention, in particular on the Immigration and Refugee Protection Regulations, is that we do deal with two different bodies on these. In this case, we’ve corresponded with the Canada Border Services Agency. Immigration, Refugees and Citizenship Canada has responsibility with respect to other portions of these regulations. That’s particular just to this regulation.

The Joint Chair (Senator Day): “This” being the one we’re dealing with now, Item No. 11.

Mr. Abel: Yes.

The Joint Chair (Senator Day): It wouldn’t make sense to group that with another one unless we’re bringing the minister in. At this stage, you were suggesting a letter dealing with items 1 and 2 and, in effect, accepting their position with the other three items?

Mr. Abel: That is correct.

The Joint Chair (Senator Day): Should there be a timeline with respect to our expectations with items No. 1 and 2?

Ms. Sangha: My expectation would be that we should ask both of the departments to collaborate and work on this, both Canada Border Services Agency and Immigration.

The Joint Chair (Senator Day): So your thought is to —

Ms. Sangha: Let them know.

The Joint Chair (Senator Day): Let them know that we’re dealing with a lot of different files here, even though there may be two different departments, two different people.

Mr. Abel: Yes. On this particular file we’ve only been corresponding with the agency because it makes a limited number of amendments, so it’s only under their responsibility.

I mentioned the original issue on the fourth point came up with SOR/2002-227, for instance. That was the initial enactment of these regulations. It’s enormous and still open and we are dealing with both the department and the agency, sending separate correspondence to each body. So members may find that relevant information, but in this particular instrument, we’re only corresponding with the one agency because it’s a limited piece of work.

The Joint Chair (Senator Day): Okay.

Ms. Kirkby: We do, as a matter of practice,bundle some files together sometimes. One of the things that would be on the agenda for the Global Affairs Canada meeting is an enormous file that deals with all sorts of different regulations, including the original regulations and amendments to those regulations. So it is one of our practices, where the issues are the same, to bundle them together.

The Joint Chair (Senator Day): Okay. That’s good to hear because I think it’s easy to ignore one small little item, but when you see a whole list of them and we’ve been spending all this time dealing with these things, it suddenly becomes a serious problem.

Can we agree then that we will define our position with respect to item No. 1 and 2, and if you feel it appropriate to make reference to the other ones, the other files that we have, you can just cross-reference them? Is that okay? Seeing agreement, then we’ll proceed in that regard.

Item No. 12.

SOR/2016-38 — REGULATIONS AMENDING THE PROTECTION OF PASSENGER INFORMATION REGULATIONS

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

Mr. Abel: This instrument is also related to the Canada Border Services Agency. It amends these regulations to define the terms “serious transnational crime” and “terrorism offence,” also to remove or clarify unclear passages and to remove a discrepancy between the French and English versions. These matters were raised by the committee in connection with SOR/2005-346, which has now been closed.

Four new matters were raised in connection with this instrument. The first issue concerns a requirement in subsection 4(2) that officials of the Canada Border Services Agency who access the name of an airline passenger within 72 hours to two years after a flight departs confirm that the information is necessary. As the regulations do not provide details about this confirmation, several questions were put to the agency. The agency explains that a confirmation is provided and recorded within PAXIS, which is the agency’s passenger information record system. It includes a justification which must be selected from a drop-down menu and may be accessed in read-only format by a defined set of users for audit purposes. This explanation raises no legal issues and, therefore, if members wish could be considered satisfactory.

The agency also agrees to make amendments addressing three other matters raised by counsel, which would clarify or correct the wording in several provisions.

If members are satisfied with that, a letter following up on those promised amendments could be drafted.

The Joint Chair (Senator Day): Are we in agreement that that course of action be taken?

Mr. El-Khoury: If you would like to know when. They have promised to do so, but when?

Mr. Abel: If we write back, we would ask for a time frame.

Mr. El-Khoury: Stronger, friendly, or less friendly, what do you think they will say?

The Joint Chair (Senator Day): Counsel has been good at finding just the right tone on these matters and we will leave it to you to do so to find out when we can expect to hear from them.

The Joint Chair (Mr. Albrecht): I think Mr. El-Khoury raises a good question. Do we want to add a date to the expected response?

The Joint Chair (Senator Day): In our first letter, or do we ask them for a timeline?

The Joint Chair (Mr. Albrecht): I would suggest that we ask for a response to our current questions by June 15.

The Joint Chair (Senator Day): We’re going to be busy on June 15 reading all these replies.

Can we agree then? Mr. El-Khoury suggested we put a timeline in. Mr. Abel was just going to ask them for a timeline.

[Translation]

Which? Is a date provided?

[English]

There seems to be a consensus that we will follow Mr. El-Khoury’s suggestion that we put in 15 June. Can we hear from you?

Mr. Miller: I’m comfortable with that date, but unless I’m missing something, it says that they’re going to define the term “serious transnational crime and terrorism offence,” what are those definitions? Are they included? Am I missing them?

Mr. Abel: This instrument does provide definitions for those. That is something the committee has asked for in reference to a previous instrument, where they were not defined. Now they have been defined.

Mr. Miller: Are they in here? Because I missed them.

Mr. Abel: Yes, if you look to the back of the package starting on page 518, the second page of the actual instrument, you’ll see “serious transnational crime” and then “terrorism offence.”

Mr. Miller: If they’re in here, I will find them and read them. Sorry, I missed that. Thank you.

Mr. Abel: If concerns arise later you can bring them back to us.

Mr. Miller: I wanted to, basically, not give blanket approval without knowing what they are and if everyone else has seen it.

The Joint Chair (Senator Day): At the back of tab 12 in the fine print of the regulations themselves, page 518. These are amendments that were made as a result of our intervention and our request.

Mr. Abel: That’s correct.

The Joint Chair (Senator Day): That’s good. That course of action will be taken then.

Mr. Abel, you’re okay with what we would like to see there?

Mr. Abel: Yes.

The Joint Chair (Senator Day): Mr. Miller, you’re all right?

Mr. Miller: Yes, I am, sir.

SOR/2018-140 — REGULATIONS AMENDING THE PATENT RULES AND THE TRADE-MARKS REGULATIONS

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

Mr. Abel: This instrument amends sections 98 and 152 of the Patent Rules. In doing so it addresses the committee’s concern that these provisions were ultra vires. A Notice of Disallowance was issued in respect of sections 98 and 152 on February 1, 2018, owing to some nine years of delays in resolving this issue. Consequently, amendments resolving this matter were expedited and enacted on June 22.

This instrument also amends both the Patent Rules and the Trade-marks Regulations to prescribe certain days for the purposes of each of those acts respectively. Owing to a conspicuous difference between the enabling powers of the two acts, which are otherwise quite similar, the department was asked to identify the enabling authority for these amendments for the Trade-marks Regulations.

The department agrees that a direct power to prescribe things for the purposes of the Trade-marks Act is not provided in section 65, which is the general enabling provision in that statute.

While the note prepared for members today examines the department’s reply in considerable detail, I would draw members’ attention to the final three paragraphs in either English or French.

This portion covers where the department refers to section 2 of the act as well as the amended version of subsection 66(1). Subsection 66(1) refers to circumstances under which a time period fixed under the act “ends on a prescribed day.” Section 2, in turn, specifically defines the word “prescribed” as “prescribed by or under the regulations.”

Taken together, these references seem to demonstrate a clear intent by Parliament to authorize regulations that prescribe certain days for the purposes of the act, despite this not being mentioned in the general enabling provision, being section 65. I would suggest, therefore, that there are no concerns about the validity of this instrument.

If members are satisfied with that analysis, this file could then be closed.

The Joint Chair (Senator Day): Are you satisfied with that analysis? Seeing no one objecting, we are satisfied with your analysis and we thank you for that. We will close out this file.

[Translation]

SOR/93-382 — PRINCE EDWARD ISLAND CATTLE MARKETING LEVEES ORDER

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

Ms. Kirkby: This file goes back to the 1990s. The issues raised concern unauthorized items and, until 2010, the committee waited for the order to be amended to respond to those issues. In 2010, it was decided that, instead of being amended, the order would be repealed.

That brought us to November 2018, when the committee decided to wait no longer. The committee stated that it expected the order to be repealed before the end of January 2019, or else it would look into other options, such as having witnesses appear or sending a notice of disallowance.

Based on recent correspondence, the repeal process is finally under way, and publication in the Canada Gazette is planned before the end of the month. To be meticulous, I also checked with the Farm Products Council of Canada, which told me that the registration date was yesterday. So, 25 years after being opened, it seems that the file will be closed in the coming days.

[English]

The Joint Chair (Mr. Albrecht): I want to point out that the last item and this item both had the warning of a disallowance notice. I think we need to be prepared to use that more frequently when it’s appropriate. We finally got some action.

The Joint Chair (Senator Day): This may not necessarily be slow in Prince Edward Island. I’m looking to see if there are any members from the island here. I guess I’m closest.

The Joint Chair (Mr. Albrecht): You’re on the record, though.

The Joint Chair (Senator Day): That’s good news. So we can close that file out?

Ms. Kirkby: We’re just waiting for it to actually show up in the Gazette and we’ll check it and presumably close it.

The Joint Chair (Senator Day): You don’t need to bring it back to us to tell us that you’re doing it?

Ms. Kirkby: It will likely appear under action taken at that point.

The Joint Chair (Senator Day): That’s excellent.

Mr. Miller: I remember all of us being very frustrated by this one last fall, and it’s actually nice to see that being stern with them maybe works the odd time. I’ll leave it at that.

The Joint Chair (Senator Day): It deals with cattle marketing levies, so you probably looked at this very closely.

Mr. Miller: Yes, I did.

The Joint Chair (Senator Day): Thank you.

SOR/2001-281 — BY-LAW NO. 7 RESPECTING THE LARGE VALUE TRANSFER SYSTEM

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

Mr. Abel: For nearly a decade, the committee has pursued a concern regarding the discretionary power to decide not to suspend a financial institution from the Large Value Transfer System, despite that the suspension would otherwise be required. A promised amendment would set out criteria that the President of the Canadian Payments Association must consider when exercising that discretion.

The department agreed in January 2015 to amend section 63 of the bylaw, but wished to wait for certain developments and consultations regarding the Large Value Transfer System.

The committee accepted this approach in September 2015, while warning the department that it would consider calling witnesses if no progress was shown within 12 months. Now, while there have been some further delays in completing the amendment, the department has provided periodic updates and shown some progress.

As of November 2018, pre-publication of the proposed amendment in Part I of the Canada Gazette is now expected in the first half of 2019, although it has not taken place yet.

The Joint Chair (Senator Day): So it hasn’t taken place yet. When do you anticipate you would be able to tell us something has happened?

Mr. Abel: They gave themselves a six-month window. We are halfway through that. I would continue to monitor up until the end of June and see if it happens. We’re well aware that given that this Parliament is coming to an end, most departments and regulators are trying to get everything in before the end of June. I would expect, if it’s going to happen, that it will happen within that time frame.

The Joint Chair (Senator Day): Are we satisfied that we’ll have counsel continue to monitor this?

Mr. Miller: Well, I’m certainly happy with it being monitored, Mr. Chair, but since we’ve already laid out that we’re going to have a very busy June 15 or 16 meeting, I would suggest that we make a decision today that, in the event that staff hasn’t got confirmation that it’s been dealt with by June 1, we have a letter prepared in advance of the June 15 or 16 meeting that we could send to them or something along that line.

I think we all know if we haven’t gotten it here by that June meeting, then it’s not going to happen and we’re just dumping it on to the next committee that comes back in the fall.

The Joint Chair (Senator Day): June 1?

Mr. Miller: That would be —

The Joint Chair (Senator Day): Would that give us enough time for the June 13 meeting? If we send the letter for June 1 and we receive nothing from the department, then we’ll determine that the June 13 meeting will determine our action, depending on what has happened.

Mr. Abel: To be clear, is the committee proposing that we prepare a letter that would be sent on June 1?

Mr. Miller: That was my —

Mr. Abel: Not now?

Mr. Miller: No, not now, but in the event that you haven’t got confirmation that this has been dealt with, staff is preapproved to send that out with the chairs’ signatures, of course, and at least there can be possibly something happening on it between June 1 and when the meeting is. Does that sound reasonable?

Mr. Abel: I have a suggestion or a clarification. If you’d like to have the chairs’ signature on it, then it could be possible to send a letter with the committee’s pre-approval to the minister at that point. It’s up to the committee.

Mr. Miller: Well, I was only suggesting the chairs’ signatures because I thought that would be the normal process. If it can work just coming from staff to them, I’m fine with that. I don’t want to get hung up on it. I just figured the letter would be signed by the chairs. If that’s not required, I’m good with it.

Mr. Abel: Okay.

Mr. Miller: Okay.

The Joint Chair (Senator Day): So it’s suggested, then, that staff would send a letter, instead of co-chairs and the deputy chairs?

Mr. Abel: To the department.

The Joint Chair (Senator Day): To the department to the effect that you promised, the six months is almost up and we haven’t heard from you, so what’s happening?

Mr. Abel: Exactly.

Ms. Kirkby: I just need to clarify one thing administratively. Was the suggestion to bring that back? I’m not sure, just in terms of everything that has to happen to prepare the package, that would be enough time to bring it back at the June 13 meeting.

Mr. Miller: Hopefully it’s all dealt with, but in the event staff did have to send that letter on June 1 — which I hope doesn’t have to happen — all you have to do as staff is just report to us at that meeting that we had to send this letter. Does that sound reasonable?

Ms. Kirkby: Yes. Sorry, we just end up having to prepare it a couple of weeks in advance because of the printing and the translation and everything. If it’s just a matter of reporting back, we can certainly do that.

Mr. Miller: Thank you.

The Joint Chair (Senator Day): Are we okay with that course of action? Seeing no objection, then that’s the course of action we’ll take with respect to the Large Value Transfer System.

MARGINAL NOTES (SF2016-3)

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

The Joint Chair (Senator Day): Marginal notes; we’ve dealt with that before, haven’t we?

Ms. Kirkby: This file is being presented to the Joint Committee to see if members are satisfied with the action taken.

In brief, the layout of consolidated acts and regulations was changed in 2016, as a result of which material that formerly appeared as marginal notes to legislation was moved to the body of the text.

The question then was how to distinguish marginal notes from headings since the two elements have a different interpretive weight in law.

Officials from the Department of Justice appeared at the Joint Committee’s meeting on November 8, 2018, and explained why various options for visually identifying marginal notes, such as special formatting, were not considered feasible.

In addition, officials explained why the Department of Justice was not pursuing amendments to section 14 of the Interpretation Act, which continues to refer to marginal notes even though this term now makes little sense.

Officials did agree, however, that the website should convey more clearly to the public how to identify marginal notes.

As a result, the “New Layout for Legislation” page on the Department of Justice website and the PDF version of each consolidated act and regulation now states:

. . . the notes that appeared in the left or right margins are now in boldface text directly above the provisions to which they relate. They form no part of the enactment, but are inserted for convenience of reference only.

If members are satisfied that this sufficiently addresses the possibility that marginal notes will be misinterpreted as headings, then it would seem this file could be closed.

The Joint Chair (Senator Day): Are we in agreement on that? Counsel, you think that’s a reasonable approach?

Ms. Kirkby: I think it is helpful and I’m not sure how much more can be accomplished in this case.

The Joint Chair (Senator Day): Well, it’s helpful.

The Joint Chair (Mr. Albrecht): It’s a marginal issue at best.

The Joint Chair (Senator Day): It used to be. Are we in agreement we’ll close this file? Agreed, thank you.

SOR/2008-250 — REGULATIONS AMENDING THE IDENTITY SCREENING REGULATIONS.

SOR/2011-156 — REGULATIONS AMENDING THE DESIGNATED PROVISIONS REGULATIONS AND THE IDENTITY SCREENING REGULATIONS.

SOR/2015-182 — REGULATIONS AMENDING THE DESIGNATED PROVISIONS REGULATIONS AND REPEALING THE IDENTITY SCREENING REGULATIONS.

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

Mr. Abel: These instruments concern the identity screening regulations, as enacted by SOR/2007-82 and more commonly known as the No-Fly list. In connection with SOR-2007-82, the Joint Committee raised serious concerns as to the validity and procedural fairness of those regulations.

SOR/2015-182 revokes the Identity Screening Regulations, while SOR/2015-181, which is not included here, replaces these regulations with the Secure Air Travel Regulations. The Secure Air Travel Regulations were enacted under new authority provided under the Secure Air Travel Act. As a result, the validity and procedural concerns identified by the committee have been resolved. The Secure Air Travel Regulations have been examined by counsel and will be placed before the committee at a later date.

In addition, as a result of the revocation of the Identity Screening Regulations, SOR/2008-250 and SOR/2011-156, which made amendments to those regulations, are spent and may also be closed.

The Joint Chair (Senator Day): Is there anything outstanding on this, or do we just close out the entire file?

Mr. Abel: That’s correct.

The Joint Chair (Senator Day): You mentioned that SOR/2015-181 will be coming before us in due course.

Mr. Abel: It’s forthcoming.

The Joint Chair (Senator Day): But we can close this file out, and we still have another one going.

Are we in agreement that we close this one out?

Hon. Members: Agreed.

SI/2018-21 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2018-22 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2018-28 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2018-29 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH DIVISION 3 OF PART 5 OF THE ACT COMES INTO FORCE

SI/2018-32 — ORDER FIXING NOVEMBER 1, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2018-36 — ORDER FIXING SEPTEMBER 1, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2018-37 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2018-38 — ORDER FIXING THE DAY AFTER THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2018-83 — ORDER FIXING OCTOBER 1, 2018 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2018-84 — ORDER FIXING OCTOBER 1, 2018 AS THE DAY ON WHICH DIVISION 12 OF PART 6 OF THE ACT COMES INTO FORCE

SI/2018-87 — MITCHELL BOYD REMISSION ORDER

SOR/2017-43 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (PART G – METHYLPHENIDATE)

SOR/2017-44 — ORDER AMENDING SCHEDULE III TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (METHYLPHENIDATE)

SOR/2017-115 — REGULATIONS AMENDING THE REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING ACT, 2016 (TRANSITIONAL PROVISION)

SOR/2017-235 — ORDER 2017-87-09-01 AMENDING THE DOMESTIC SUBSTANCES LIST

SOR/2017-239 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (KINGSCLEAR)

SOR/2017-240 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (KINGSCLEAR)

SOR/2017-241 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (ELSIPOGTOG)

SOR/2017-242 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (ELSIPOGTOG)

SOR/2017-248 — ORDER AMENDING THE AUTOMATIC FIREARMS COUNTRY CONTROL LIST

SOR/2017-252 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS MADE UNDER THE PUBLIC SERVICE EMPLOYMENT ACT

SOR/2017-283 — REGULATIONS REPEALING THE CANADA CORPORATIONS REGULATIONS

The Joint Chair (Senator Day): These are “Statutory Instruments Without Comment.” These are instruments that have been reviewed by counsel and don’t require any further comment or action. In other words, they were found to be satisfactory.

Ms. Kirkby: I’ll just mention that there are 22 of them today, and we’ve brought copies, so if members wish to consult any of the instruments, we have them with us.

The Joint Chair (Senator Day): Are there any questions on that particular matter? That’s all I see for our agenda today.

(The committee adjourned.)