REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Thursday, May 16, 2019

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

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

[English]

The Joint Chair (Mr. Albrecht): We’ll begin our agenda today. Hopefully we won’t be here quite as late as we were last meeting. We’ll begin by looking at Item No. 1. I’m going to look to counsel for an update because there are some updates in addition to the material you have in front of you.

SOR/97-109 — PCB WASTE EXPORT REGULATIONS, 1996

SOR/2002-301 — INTERPROVINCIAL MOVEMENT OF HAZARDOUS WASTE REGULATIONS

SOR/2009-162 — CHROMIUM ELECTROPLATING, CHROMIUM ANODIZING AND REVERSE ETCHING REGULATIONS

SOR/2010-138 — REGULATIONS PRESCRIBING CIRCUMSTANCES FOR GRANTING WAIVERS PURSUANT TO SECTION 147 OF THE ACT

SOR/2011-261 — REGULATIONS AMENDING THE OFF-ROAD COMPRESSION-IGNITION ENGINE EMISSION REGULATIONS

(For text of documents, see Appendix A, p.50A:1.)

Penny Becklumb, Counsel to the Committee: That’s right. I refer you to the table in your notes on page 3, which suggests the department is behind schedule on some promised amendments.

Previously, the committee resolved that, in these circumstances, it would present a report to Parliament. That said, last night we reached out informally to the department to find out what was going on with these files. We received an informal update that, in fact, on these first two items, where it says, “No information provided,” this is the schedule the minister had provided.

The committee had resolved that if the department missed any step or missed confirming that they had completed any step on time, the committee would present a report to Parliament.

Well, last night the department informally informed us that, in fact, on the second step of these first two items, it did complete the step on time, on February 13, 2019.

The Joint Chair (Mr. Albrecht): I want to make sure we’re all on the same page, literally and figuratively.

Ms. Becklumb: These first two are, in fact, on schedule. We don’t have a formal confirmation of this. Informally, we were also told they’re still on schedule for final publication in spring 2020.

For the third item, this one was late. The first step — that’s prepublication in Part I — was supposed to be completed in late fall 2018, and it was completed late on March 9. The next step was completed late, too: instead of midwinter 2019, we learned last night that it will be May 23.

With respect to all of these files, the department has informally told us that they are still on track for final publication in spring 2020. Of course, the last file has been completed on schedule. For these reasons, it’s suggested to send a letter to the department seeking formal confirmation that they are on track and on schedule.

The Joint Chair (Mr. Albrecht): Just to confirm with counsel, while you said informal, it’s in writing by email, as I understand, and not just a phone call?

Ms. Becklumb: Correct.

The Joint Chair (Mr. Albrecht): We do have some written confirmation that it’s on track, but it’s not in formal letter form.

[Translation]

Mr. Dusseault: My question has to do with the progress that was made because they were all published in Part I of the Canada Gazette. At the very least, what has been published thus far can be changed when it is published in Part II. Does that address the concerns raised by the committee? Are things moving in the right direction?

[English]

Ms. Becklumb: Before the committee started talking about the report, it had not been published in Part I, and now we have seen clear progress. It’s all published in Part I and we’re moving through the steps, so yes.

[Translation]

Mr. Dusseault: Does that address the concerns raised by the committee?

Ms. Becklumb: Yes.

Mr. Dusseault: Great.

[English]

The Joint Chair (Mr. Albrecht): Any further questions or comments? If there’s no disagreement, we’ll proceed in the manner we’ve agreed upon.

Thank you to counsel for working on that. I think this underlines, again, the importance of having counsel interact directly with the department on our behalf, because it can save them and us a lot of time, and in the end it serves the citizens far better.

[Translation]

SOR/92-620 — CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS

SOR/96-108 — CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS, AMENDMENT

(For text of documents, see Appendix B, p. 50B:1.)

Ms. Becklumb: Thirty-nine points are outstanding on this file, most since 2003. While many points are relatively minor, some are quite serious, including unauthorized provisions. Members can see the history of delay in making amendments from the timeline included in the note.

The committee wrote to the Minister of Public Safety twice on this file, in 2017 and in 2018. The second of these two letters, sent in June 2018, asked for the minister’s assistance in ensuring that the promised amendments would be made within two years, so by June of next year.

In his response, the minister does not promise that the amendments will be made within this time frame. Rather, he says that some amendments will be made as part of an update to the regulations following passage of Bill C-83, if passed. The bill is currently being studied by the Standing Senate Committee on Social Affairs, Science and Technology. The rest of the amendments are to be made as part of a separate technical amendment package. No time frame was provided for publication of this package.

The committee can decide how it would like to proceed on this file, perhaps by writing to the department again or by inviting witnesses. But, if any further letter is to be sent, it is proposed that the letter seek clarification of the department’s intentions for dealing with a number of specific issues, as outlined in the note.

[English]

The Joint Chair (Mr. Albrecht): Members, how do you wish to proceed? I think the other item that you mentioned, counsel, is the lack of a timeline in terms of a technical amendment package as proposed, so those are two issues that we need to address.

Do you want to speak to this? Are you comfortable proceeding with that letter to seek clarification on the amendments, and then to seek confirmation of an expected timeline for the miscellaneous technical amendment package?

[Translation]

Mr. Dusseault: The only outstanding issue concerns Bill C-83. Are the regulatory amendments conditional upon the bill’s approval, or can the Governor-in-Council proceed with the proposed amendments, no matter what happens with Bill C-83?

Ms. Becklumb: I didn’t understand that. Are you asking whether the bill has to be passed in order for the amendments to be made?

Mr. Dusseault: Basically, yes. Are the regulatory amendments conditional on the bill’s passage, or does one have nothing to do with the other? Can the government go ahead with the regulatory changes?

Ms. Becklumb: I can’t really see the connection between the two. All the promised amendments to the act were made in 2012. I’m not sure why it’s necessary to wait until Bill C-83 passes.

Mr. Dusseault: It was used as an excuse.

Ms. Becklumb: It’s the relevant statute, but the legislative changes aren’t necessary to make the regulatory amendments.

Mr. Dusseault: I see.

[English]

The Joint Chair (Mr. Albrecht): Are we comfortable having our counsel proceed in that manner to seek clarification and move this forward? All agreed? So ordered.

SOR/2017-10 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2017-59 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2017-112 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2017-229 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2018-10 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

(For text of documents, see Appendix C, p. 50C:1.)

Ms. Becklumb: Item No. 3 relates to the Species at Risk Act. As a reminder, there are two acronyms associated with this file. SARA means the Species at Risk Act, and COSEWIC is the Committee of the Status of Endangered Wildlife in Canada, which is an independent committee of scientific experts who assess the status of species.

There are two issues on this file relating to the SARA process.

The first is the time taken after COSEWIC assesses the status of a species for the minister to include in the public registry a report on how the minister intends to respond to the assessment. This report is commonly referred to as a response statement.

Under subsection 25(3) of SARA, the minister has 90 days to post a response statement, but it appears to be taking more in the order of 11 months for the response statements to be posted.

The committee pursued this question, first with Environment and Climate Change Canada and then with the Minister of the Environment. It was determined that, in almost all cases, the minister does actually post the response statement within 90 days of the minister receiving the assessments from COSEWIC.

The issue is when COSEWIC provides the assessments to the minister. Under SARA, COSEWIC is required to provide a copy of an assessment when COSEWIC completes the assessment. In practice, COSEWIC completes the assessments in two batches each year and provides all the assessments to the minister in one batch just once a year, in the annual report in the fall.

So it appears that COSEWIC is not providing assessments to the minister when COSEWIC completes the assessments, as required by law.

In light of this, it is suggested that the matter be pursued with COSEWIC. Specifically, a letter could be sent to COSEWIC, seeking its cooperation in providing the minister with assessments when it completes the assessments.

The Joint Chair (Mr. Albrecht): Okay. I think that item is covered well on page 4 of our notes.

Is there any disagreement with that? Rather than the one batch a year, COSEWIC would be basically ordered or asked by us to do it in two batches so that the material gets there in a more timely fashion.

Mr. El-Khoury: Good morning. I believe time is an important element in this case, when we see a species endangered and how long it takes to be listed. However, it should be protected before it is going to be listed and in danger. What options do we have in order to know that the time period would be a very short one when this species is listed endangered and when we are going to put it in a list?

Ms. Becklumb: What options does the committee have to speed up the listing process?

Mr. El-Khoury: Exactly. The duration between the species being listed as endangered and when it is put on the list to be protected.

Ms. Becklumb: Actually, this forms the subject of the next issue that arises on this file. The issue we just covered was the response statement; it’s the minister just responding on how she intends to deal with an assessment. That’s something distinct and doesn’t really provide protection for the species; rather, it just says the minister’s intentions.

May I proceed with the second issue, because this deals squarely with the concern you’ve raised?

The Joint Chair (Mr. Albrecht): Before we do that, let’s try to finish this first one. I think there was a consensus building that maybe we can move on with it, but maybe not.

Mr. Miller: Thank you, Mr. Chair. I can’t get my head around why they’re only reporting or listing — whatever the proper word is — twice a year. As they dealt with an issue, why wouldn’t they just finalize it? Did I miss something there?

Ms. Becklumb: In the letter from COSEWIC, they explain their process. Although you’re right, assessments are completed throughout the year, they have two annual meetings. It’s at that meeting when all the scientists come together that they review a batch of assessments and vote on them. At that point, it’s considered finalized once it’s been approved by the committee of the whole. So they’re completed in two batches.

Mr. Miller: It’s got to be formally approved at an AGM?

Ms. Becklumb: That type of thing, yes.

The Joint Chair (Mr. Albrecht): I think the issue is that it’s formally approved twice a year, but it only reported at the end of the year, which is another six-month delay. The heart of what we’re trying to get at is this: Do we want to compel them to report twice a year?

Mr. Miller: As a follow-up question: Why wouldn’t they?

Ms. Becklumb: There’s a bit of a hint of that in the letter from COSEWIC. It suggested it would be onerous on the department if they were to receive —

Mr. Miller: Onerous?

Ms. Becklumb: That’s my word. Let me find the letter from COSEWIC.

Mr. Miller: While Ms. Becklumb is looking that up, Mr. Chair, one of the frustrations with people, in general, regarding government and how slowly it works, we’ve got a chance here to simply speed up a process as they approve it, instead of waiting six months or whatever the case may be. Unless there’s a compelling reason why they can’t — and I don’t see that — they should be doing it.

Ms. Becklumb: We just found the statement in the COSEWIC letter:

I understand that the provision of two batches of reports per year would have significant resource implications for Environment and Climate Change Canada.

Mr. Miller: Am I supposed to buy that?

The Joint Chair (Mr. Albrecht): That’s the question we need to deal with. It’s like saying, “I’ve got all these things to deal with, and if I do them all in one batch, I’ll get them done better than if I deal with them as they come in.”

Mr. Scarpaleggia: I don’t understand why it would put more pressure on the resources. I just don’t understand. It’s the same amount of work, theoretically, to analyze these reports. Instead of actually having all this work done in a batch at Environment and Climate Change Canada, it could be done in two batches.

I don’t understand how it requires more resources to look at this once a year as opposed to twice a year.

Mr. Shields: Mr. Chair, I appreciate your explanation, and I think you did it very well. I just had a flashback of a Monty Python movie. The ridiculousness of what you’re suggesting in the sense of what we’re going through here is just bureaucratic nuts, and it’s nothing to do with the species at risk. It’s straight bureaucratic movement of paper.

It needs to be done. Just do it. I don’t care what the resources say. I agree with what you said once or twice: This is nonsense. Get it done.

The Joint Chair (Senator Day): It’s not entirely clear to me what leverage we have over COSEWIC, if that’s an independent non-government group of scientists.

Ms. Becklumb: That’s correct. However, we can write them a letter and point out what the law says in black and white.

The Joint Chair (Senator Day): What would an independent group be doing worrying about the government’s resources to handle their reports?

Ms. Becklumb: I can only speculate.

Mr. Miller: Procrastination.

The Joint Chair (Mr. Albrecht): I think that hits to the nub of it: Are they more concerned about government resources or following the law? Our job is for them to follow the law and not worry about government resources. That’s where I think we have to try to settle our conversation on that issue.

The Joint Chair (Senator Day): Yes.

Ms. Becklumb: An option is to copy the department on a letter we send to COSEWIC, so the department knows what we’re proposing to COSEWIC.

The Joint Chair (Mr. Albrecht): And I think the point has to be made very clearly that this is the Species at Risk Act demanding this. We’re asking them to follow the law. We’re not setting something new in motion to make their jobs more difficult.

The Joint Chair (Senator Day): I agree.

The Joint Chair (Mr. Albrecht): Are we all good with that general direction on the first part? Okay. All agreed? So ordered.

Ms. Becklumb: The second issue relates to another timeline imposed by SARA.

The Joint Chair (Senator Day): We’re still on Item No. 3?

The Joint Chair (Mr. Albrecht): Yes.

Ms. Becklumb: Under subsection 27(1.1), after the Governor-in-Council receives an assessment of a species, the Governor-in-Council has nine months to decide what to do with the assessment. It can decide to add the species to the list of Wildlife Species at Risk, which starts the SARA process to provide protection. It can decide not to add the species to the list — so no protection for the species under SARA. Or it can refer the matter back to COSEWIC for more protection.

But if the Governor-in-Council does not make a decision one way or another within nine months of receiving an assessment, then the scientific recommendation becomes law.

The issue is the gap in the legislation. SARA doesn’t require anyone to provide a copy of the assessment to the Governor-in-Council, which would start the clock for the nine-month period for the Governor-in-Council to make a decision. In practice, the minister recommends when the Governor-in-Council will officially receive the assessment, but because this is not covered by the law, the minister is not subject to any specific time limit.

For example, of 56 species added to the list in 2017 and 2018, an average time of more than five years elapsed after an assessment was completed and before the Governor-in-Council made a listing decision. In one case, a species waited over 12 years for a listing decision.

The minister admits in her June 1 letter that:

. . . the length of time that listing decisions have taken over the past number of years has not been consistent with SARA’s stated purposes . . .

So in the absence of a legislative fix for the gap in SARA, the minister has put in place a new policy. She has committed to seeking a listing decision within 24 months for terrestrial species and within 36 months for aquatic species requiring significant consultations. For any species for which these timelines cannot be met, the minister has committed to publishing a statement on the public registry describing the reasons for the delay as well as next steps.

When this issue was last before the committee in November 2018, members requested additional time to review a copy of the committee’s 2008 report on the issue before deciding how to proceed. A copy of that report is included in your materials.

Accordingly, the committee may now consider whether it would like to accept the minister’s policy or take some other course of action, such as seeking a statutory amendment to close the gap formally.

Mr. Miller: Even the two-year recommendation by the minister seems like a long time, although I can understand they probably want to do some studies on the particular species and make sure that whatever decision made is correct. But 12 years, as you point out in one example — I don’t know how rampant that is, whether that happens often. If this was a species that was severely at risk of extinction, can you imagine how much can happen in 12 years? It’s totally unacceptable.

I probably, regretfully, would support the recommendation to the minister for two years, but it’s got to be hard and fast. I see this kind of stuff with this committee so often. It just drives me crazy. There seems to be no respect for time frames put in. As long as that’s hard and fast, and if the committee would point that out in a letter back to the minister, as long as that time line is adhered to, then I can support that.

The Joint Chair (Mr. Albrecht): Just to point out, though, again, Mr. Miller and committee members, that SARA says nine months and the new policy says 24. So we’re basically telling them to ignore the law and create your own policy. If that’s what we want to do that’s what we can do.

Mr. Miller: I can tell you I have no problem if the balance of the committee wants to stick to nine months.

The Joint Chair (Mr. Albrecht): Or the alternative, as suggested in our notes, is to suggest that they amend the Species At Risk Act to make it achievable. There’s no point having a law on the books if it’s not achievable.

Mr. El-Khoury: Yes, my question is addressed to counsel. You said if a scientific recommendation is sent to the minister and he does not reply within a period of time, it becomes a law. That’s what you said. My question is, when it becomes a law, will the minister be liable in respecting this law or not?

Ms. Becklumb: Yes. It becomes law — that was sort of a short form: “It becomes law.” What would actually happen is if the Governor-in-Council failed to make a decision within nine months, the minister is required to issue an order following COSEWIC’s recommendation. I personally haven’t seen such an order being made because the Governor-in-Council is able to make its listing decision within nine months because the Governor-in-Council doesn’t receive the assessment until it’s ready to make a decision. So that part of the law — my impression is it’s not really implemented.

Mr. El-Khoury: Okay, thank you.

Senator Duncan: I appreciate the committee’s work in ensuring that the government follows the law. My question is: Is part of the problem with this the scientific data and that COSEWIC, perhaps, or the scientists not being able to reach an agreement in order to support the recommendation? Things change all the time and we’re seeing climate change all the time. I’m wondering if that might be part of the issue.

Ms. Becklumb: We’ve seen no evidence that the delays are caused by a lack of scientific data. Rather, when the committee studied this in 2008 and when the House of Commons Standing Committee on Environment and Sustainable Development studied this in 2009 and 2010, the testimony given was that the time was needed for the department to undertake consultations with provinces, with other governments, with Indigenous bodies and wildlife management boards. The testimony suggested that’s what caused all the delay.

Senator Duncan: Okay. Thank you.

Mr. Badawey: I think I have an answer to my question, but I’ll ask it just to validate it. Under subsection 27(3) of SARA, the Governor-in-Council fails to take one of the courses of action set out above within nine months of receiving the assessment of status of species by COSEWIC, which is outlined on page 5 in the third paragraph. When the minister is stating 24 months, is that happening? Is he actually receiving the assessment from COSEWIC?

Ms. Becklumb: The minister?

Mr. Badawey: Right.

Ms. Becklumb: Yes.

Mr. Badawey: He is.

Ms. Becklumb: That was the first issue. The minister, whether she gets them in one batch or two batches. Right now she’s getting them once a year in the fall. The minister definitely gets the assessments.

Mr. Badawey: That’s what I’m drawing down to. Is the first problem creating the second problem?

Ms. Becklumb: No. They’re related, certainly, because the question is, that nine-month period that’s given to the Governor-in-Council to make a listing decision, when is that supposed to start running? Is that supposed to start running when COSEWIC completes an assessment or when COSEWIC provides an assessment to the minister? Is it supposed to start running when the minister publishes a response statement? The law doesn’t say that. If the latter is the case, then the time taken for that first step will impact the second step. But the minister in her letter suggested that this is not the case. The law is unclear on this, but yes, the two could potentially be linked.

Mr. Badawey: In your assessment, how do we fix it? How do we clarify it? How do we tighten it up?

Ms. Becklumb: It needs a statutory change. To fix it properly would need a statutory amendment. That’s what the committee concluded in 2008 when it presented the report to Parliament. Nothing’s been done. A decade has gone by.

Mr. Badawey: What was the response to that?

Ms. Becklumb: At the time in 2008, the House of Commons Standing Committee on Environment and Sustainable Development was about to embark on its statutory review of SARA. The recommendation was that it be addressed as part of that review. However, after that committee completed its review, it never presented a report to Parliament. So it didn’t result in any statutory amendments and it wasn’t addressed.

Mr. Badawey: The concern I have is the fact that if we put a Band-Aid on it, it’s going to compound over time. If the fix is a statutory amendment, that’s the direction we should be taking.

The Joint Chair (Mr. Albrecht): All right. I don’t see any other hands. Mr. Miller indicated he’s willing to live with the 24 months, but if the committee agrees we ask for statutory amendments, he would support that. Any further comments or anyone want to make a motion as to what direction we should go?

Mr. Badawey: Mr. Chair, if I may, I think 24 months will suffice, but ultimately we will need that statutory amendment. If you want that in a motion, that’s fine.

The Joint Chair (Mr. Albrecht): Put it into motion form, we can discuss the motion and then vote on it. I think this is of sufficient seriousness that we need to deal with it.

Mr. Badawey: That’s fine.

The Joint Chair (Mr. Albrecht): Mr. Badawey, if you are prepared to make a motion that we ask the department to consider statutory amendment at the earliest possible —

Mr. Badawey: That’s fine.

The Joint Chair (Senator Day): Or maybe proceed with a statutory amendment?

The Joint Chair (Mr. Albrecht): I’ll look to our legal counsel to give the legal wording.

The Joint Chair (Senator Day): Rather than consider, I think we should tell them this has been going on long enough. They should proceed with a statutory amendment.

Ms. Becklumb: Of course, it’s only Parliament that can make a statutory amendment, but the minister could introduce a bill. So you could write to the minister suggesting that she introduce a bill or present another report in Parliament.

Mr. Badawey: That’s fine.

Ms. Becklumb: Either alternative.

The Joint Chair (Mr. Albrecht): So the point is we contact the minister requesting that she introduce amendments or table amendments and seek statutory amendments via Parliament.

Mr. Badawey: Very good.

The Joint Chair (Mr. Albrecht): Any further discussion on that motion? All in favour of that motion? Did you want to speak to it?

Senator Duncan: I was asking my colleague if a senator could introduce a private member’s bill.

The Joint Chair (Mr. Albrecht): I think this needs to be government driven.

Senator Duncan: Has to be government. I’m looking to my —

The Joint Chair (Senator Day): I would think in this instance we would want the minister to take the steps on this.

Senator Duncan: Okay.

The Joint Chair (Senator Day): No, no, good thinking.

The Joint Chair (Mr. Albrecht): All in favour of the motion? May I see your hands. Opposed? Same sign. Okay, that is carried unanimously.

Thank you to counsel for your patience in working through that one with us.

[Translation]

SOR/216-281 — CRITICAL HABITAT OF THE ROSEATE TERN (STERNA DOUGALLII) ORDER

(For text of documents, see Appendix D, p. 50D:1.)

Ms. Becklumb: Item No. 4 on the agenda presents another issue of excessive delay in meeting obligations under the Species at Risk Act, or SARA. This time, the issue is the time taken for the Minister of the Environment to make critical habitat protection orders under subsections 58(4) and 58(5) of SARA.

Briefly, SARA gives the minister 180 days, or about six months, to make a critical habitat protection order after the critical habitat has been identified and published.

The last time the committee considered this file, in November of last year, it noted a backlog of overdue critical habitat protection orders for 82 species. The extent to which these orders are overdue ranges from less than a year to more than 10 years. The committee also noted the department’s plan to address the backlog by March 2023, if not earlier.

At that meeting, last November, the committee instructed counsel to inquire further with the department as to its ability to issue critical habitat protection orders on time on an ongoing basis. That is, putting the backlog issue aside, will the department be able to issue critical habitat protection orders on time in the future to prevent a new backlog from forming?

The department’s response is dated March 8, 2019. Essentially, the answer is that, although the department expects to issue critical habitat protection orders more efficiently in the future, “It will remain challenging to meet the 180‑day timeline in some cases.” In other words, the department cannot commit to meeting the legal requirement in some cases. The department has not quantified how much more efficiently it will issue orders in the future. Nor has it suggested the proportion of cases in which the statutory timeline will not be met.

However, whether it will miss the deadline by a little bit, in a few cases, or a lot, in most cases, is not relevant, because the law does not set aspirational goals. The 180‑day statutory time limit is not a guideline; it is a binding legal requirement. If it is really impossible for the department to meet the 180‑day statutory time limit, then, the law should be changed.

[English]

The Joint Chair (Mr. Albrecht): The obvious question is: Can we subsume this under the previous motion and request that they submit amendments on both of these cases?

[Translation]

Mr. El-Khoury: If the department isn’t meeting the statutory time limit, I think we need to ask the department, first of all, to explain why it isn’t meeting the statutory requirement and, second of all, to develop a plan to address the issue and advise the committee as to whether it intends to seek a statutory amendment or meet the statutory requirement. We need to know what the department plans to do.

Ms. Becklumb: Very well.

[English]

Mr. Badawey: Although I appreciate the honesty, we have one of two choices: They follow or they don’t. And if they don’t there has to be —

The Joint Chair (Mr. Albrecht): So would you be in favour of including this in your previous amendment?

Mr. Badawey: Correct.

The Joint Chair (Mr. Albrecht): We’ll come to that later.

[Translation]

Mr. Dusseault: As with the last file, I don’t think it’s a good idea to go this route. The department needs to make a decision and say whether it plans to seek a statutory amendment since, it quite clearly isn’t able to meet the requirement set out in the act. This isn’t about not complying with the regulations; it’s about not complying with the act, so that’s a problem. I can appreciate that it takes longer than 180 days, but if that’s the case, the act needs to reflect that, and it doesn’t right now.

This is very frustrating for the committee, so I hope the department will bring forward a legislative proposal as soon as possible. I think that’s what needs to happen to, at least, make sure the timelines in the act are realistic, which they currently aren’t.

My only question on this file is this. Given that the timeline hasn’t been met, does that mean the decisions made thus far might not be valid, or are they still valid even though the 180-day time limit wasn’t met?

Ms. Becklumb: Yes, they are still valid. They are late, that’s all.

Mr. Dusseault: I see.

[English]

The Joint Chair (Mr. Albrecht): I’m feeling a general consensus that we want to simply include this item under the previous motion asking the department to table amendments to SARA, and I see no disagreement.

All in agreement with that, please raise your hand. Okay, that is carried.

[Translation]

SOR/2001-34 — REGULATIONS AMENDING THE EXPORT PERMIT REGULATIONS

SOR/2003-216 — REGULATIONS AMENDING THE EXPORT PERMIT REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix E, p. 50E:1.)

Ms. Becklumb: Two relatively simple amendments have been outstanding since 2004 and 2005.

The latest letter from Global Affairs Canada, received more than a year ago, states that the department will move forward with a different priority — that is, the Arms Trade Treaty implementation — before proceeding with the amendments to address the committee’s concerns.

In order to implement the Arms Trade Treaty, Parliament adopted Bill C-47 in December of last year, and a series of related regulations were pre-published in March of this year. According to the government’s website, the regulations are expected to be made this summer.

All this to say that it appears that the department will be in a position to move forward with amendments to address the committee’s concerns by this summer. Another letter could be sent to the department seeking its confirmation that the promised amendments will be moving ahead this summer. Or, alternatively, considering the length of time that the committee has already waited for the amendments, the committee may wish to direct the letter to the Minister of Foreign Affairs.

[English]

The Joint Chair (Mr. Albrecht): This is the same department that we heard from last week. I think there’s a certain level of frustration with lack of forward movement. How does the committee want to handle this one?

Mr. Badawey: I would simply ask for an update to confirm the timelines that they’ve established being the summer.

Ms. Becklumb: For the department?

The Joint Chair (Mr. Albrecht): Would you be comfortable, Mr. Badawey, including the minister on that?

Mr. Badawey: That’s fine. If you want to copy the minister, that’s fine.

The Joint Chair (Mr. Albrecht): Or vice versa. When you say end of summer, do we mean September 21? I think we need to put some clear guidelines. It’s always too fuzzy, but if the committee feels end of summer is adequate, I’m okay with that.

Mr. Badawey: Is that not what they said?

Ms. Becklumb: They didn’t say that at all. They said, “We’ll handle it.” First they’re prioritizing the implementation of this treaty and then we’ll move on to your regulations. So we looked on the website and this treaty should be handled by this summer. The regulations are supposed to be in place for this summer for the treaty implementation.

Mr. Badawey: So the fall of 2019, I would put that on there.

The Joint Chair (Mr. Albrecht): So end of September 2019.

Ms. Becklumb: That’s when they start work on it or —

The Joint Chair (Mr. Albrecht): No.

Ms. Becklumb: You want it published in final form.

The Joint Chair (Mr. Albrecht): Yes. Start work on it tomorrow if not sooner.

The Joint Chair (Senator Day): Give them something to do this summer.

Ms. Becklumb: Just to clarify, publish final form fall —

The Joint Chair (Mr. Albrecht): September 30. All in agreement with that? I see general agreement. So ordered.

I’m going to move to number 6, and Senator Day is going to take over as co-chair.

The Joint Chair (Senator Day): Thank you.

SOR/2015-195 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

SOR/2017-88 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

(For text of documents, see Appendix F, p. 50F:1)

Geoffrey Hilton, Counsel to the Committee: These instruments again delay the coming-into-force date of the Firearms Marking Regulations. While there is no ongoing concern regarding these two instruments, the issue that was raised has a lengthy history before the committee and speaks to the broader statutory responsibility of the minister to table certain documents.

Normally, under the Firearms Act, proposed regulations are required to be tabled in each House of Parliament unless the minister forms the opinion that the changes made by the proposed regulations to an existing regulation are so immaterial or insubstantial that the proposed regulations need not be tabled. In that case, the minister is required to table in each house a statement of the reasons why they formed that opinion.

Since the regulations were first made in 2004, the coming-into-force date has been amended eight times. In each of those times, the minister formed the opinion that the changes made were so immaterial and insubstantial that the proposed regulations need not be tabled. However, the minister’s requisite statement of reasons was tabled without prompting from the committee in only three of those instances.

This past November, the coming-into-force date was amended again and the minister’s statement was tabled unprompted and in a timelier fashion than previously. So it bodes well that the minister was on top of the tabling requirements this time around. However, in May 2018, the last time the 2017 instrument was before the committee, it was decided to ask Public Safety whether a time frame in which tabling must occur should be incorporated into the act. In response, the department states it will ensure that this proposal is brought to the minister’s attention.

Moving forward, two options are available to the committee. First, counsel could follow up with the department to get the minister’s thoughts on amending the act. Second, if the committee is satisfied with the department’s response and timelier tabling, these files can be closed. In either case, counsel will continue to monitor future orders that amend the coming-into-force date to ensure that the necessary tabling requirements are complied with.

The Joint Chair (Senator Day): Any comments?

Mr. Miller: Yes, just to be clear, this is the UN —

Mr. Hilton: Yes, the United Nations and the Organization of American States.

Mr. Miller: Okay. Somebody can correct me if I’m wrong, but there was a point, and I believe it was the Martin government but it could have been the Chrétien government, at which they agreed to do this. I think it’s obvious, based on the reaction by the next three governments under different parties, to basically defer this.

I wholeheartedly agree with that decision. In the history of it, the mistake was made by the representative who went to the UN in support of this on behalf of Canada. This is simply successive governments saying, “No, we’re not going to sign on to this.”

Somebody correct me if I’ve got some of the facts wrong here, but this is one issue that I follow very closely and this was a huge mistake for the Canadian government to agree to. I think that statement is backed up by the fact that at least three successive governments have delayed this because it’s their only option. They can’t go back and reverse the decision that they made at that time, but they can just not enact it.

The Joint Chair (Senator Day): We have started down a road where we have asked the department to bring this to the attention of the minister.

Mr. Hilton: That is correct, yes. Since the regulations first came into force in 2004, the coming-into-force date has been amended eight times. After a certain while, we thought it would be important to ask the minister whether they thought it would be a good idea to put a time frame in which the tabling must occur, because as it stands right now, there is no timeline. While the statement of reasons is tabled, it’s usually only done after months of delay or sometimes even years.

The Joint Chair (Senator Day): It’s been a year since the department said they would bring this to the attention of the minister and the minister would consider what steps, if any, should be taken.

Mr. Miller: Can I have a follow-up question on this? Was it this committee that decided that, or was it the department that made that decision?

Mr. Hilton: This instrument was last considered in May 2018. A letter was sent to the department from the committee on May 10, 2018, and the department responded in August 2018.

The Joint Chair (Senator Day): Just a year ago.

Mr. Hilton: Yes, almost.

The Joint Chair (Senator Day): But the department’s response was that they would bring this to the attention of the minister, yes?

Mr. Hilton: They said, “We’ll ensure that this proposal is brought to the minister’s attention.”

The Joint Chair (Senator Day): By now they should have brought this to the attention of the minister, and we’d like to know what their position is.

Mr. Miller: I’m going to take this a step further. I’m willing to move a motion that we put this off a year. Again, as I said, this is what successive governments have done. They know this is a wrong policy pushed by some of the dictators and the UN. I don’t think we should be putting any pressure on them, unless I’m missing something in here. I think the committee, with all due respect, made a mistake a year ago when it pursued this.

Mr. Badawey: Well, in some sense I agree with the member. I don’t think that’s our duty to actually debate the policy. I think our duty is to debate the regulation, and if the regulation isn’t being abided by, then what’s their future intent to abide by it? It very well may be for them to pull it off the table, but that’s not for us to say, debate or decide upon. It’s the regulation attached to it that we are, in fact, making a comment or opinion on.

What I would like to do is make a recommendation that we actually ask the minister for a follow-up and an update on what his intentions are to deal with the actual regulation attached to this policy.

The Joint Chair (Mr. Albrecht): Chair, I want to clarify. This is not a file I’m familiar with, Mr. Miller. You indicate this is a UN regulation, but to me —

Mr. Miller: That’s how it came about, Mr. Co-Chair.

The Joint Chair (Mr. Albrecht): To me, that is secondary to the fact that we currently have a Canadian law that either is or isn’t being followed, and I think that’s our duty around this table. I want to clarify with our counsel that we’re not talking about ignoring UN advice or regulations. We’re talking about Canadian law. Am I correct on that or not?

Mr. Hilton: The issue central to these regulations is just the tabling of the statement of reasons sworn by the minister. That’s the issue central to these regulations. It’s not so much the Firearms Marking Regulations. It’s the regulations amending them, which has just been about amending the coming-into-force date of the Firearms Marking Regulations.

[Translation]

Mr. Dusseault: We have to keep in mind the real issue, here, the tabling requirement, as counsel just pointed out. If I understood correctly, the coming into force of the regulations has been outstanding since 2004. The date has been postponed every time, so the issue before the committee isn’t necessarily the regulations, themselves. Rather, it’s the minister’s compliance with the requirement to table a statement of reasons in each house. We can’t lose sight of the central issue, which is the legal requirement to table a statement of reasons in each house, not the actual regulations.

[English]

Mr. Shields: Did you say the last time they made an amendment, they tabled it without us prompting them?

Mr. Hilton: That is correct, yes.

The Joint Chair (Senator Day): They may be following that.

Mr. Hilton: The most recent amendment that delayed the coming-into-force date was SOR/2018-39. They made it in December of 2018 and it was tabled in the house in January 2019, and the statement of reasons from the minister was tabled two months later.

Mr. Shields: So they did it without us asking?

Mr. Hilton: Correct.

Mr. Shields: Great.

The Joint Chair (Mr. Albrecht): Let’s close the file.

Mr. Miller: I must be misunderstanding this. I agree with Mr. Dusseault on the fact that if it was as simple as tabling something, I’m not suggesting that we break the law or anything like that. My understanding is — and if I’m wrong somebody needs to correct me — that this is about making a decision on the enacting of the Firearms Marking Regulations. Is it or not? If it is, I’m opposed to it.

Cynthia Kirkby, Acting General Counsel to the Committee: What has happened with this particular instrument is that since it was created in 2004, it has not been brought into force; it keeps getting pushed back and pushed back and pushed back. So the latest one pushes the coming into force back to December 2020. That’s fine. It might get pushed back again and again.

What has to happen is that the minister has to table the statement of reasons in the houses. That’s what’s not happening. That’s the concern, because it’s a statutory requirement.

Mr. Miller: It’s his reasons for deferring or whatever term?

Ms. Kirkby: Ordinarily, regulations under the Firearms Act would be tabled before they’re made. If the minister considers they’re so insubstantial or immaterial, they might not be tabled in advance. Then the minister tables a statement of reasons afterward, essentially explaining why it wasn’t tabled before.

Here, because it has been deferred nine times, I think now —

Mr. Hilton: Ninth time.

Ms. Kirkby: This is all this does: It just delays the coming into force further. So that’s seen as immaterial or insubstantial, because it’s deferring the coming-into-force date over and over again. That’s what the statement of reasons does; it just —

Mr. Miller: Could I ask you, Ms. Kirkby —

Ms. Kirkby: Yes.

Mr. Miller: — I believe earlier this year was the second time Minister Goodale has “deferred” — that’s what I call it. If there’s a better word, that’s fine. Let’s say the first time he deferred it — and I believe the previous government deferred this four times, but I’ll stand to be corrected on that. In each time that the previous government deferred it, and the first time that the minister of this government deferred it, did they pass on their reasons for it?

Ms. Kirkby: My recollection of the file is that we’re dealing with two particular instances where they had failed to table the statement of reasons. The first was in 2015. I believe we reached out and were told by the current minister that, as it had happened under the previous government, it wasn’t clear why that hadn’t happened.

The second instance was the 2017 deferral, where we reached out again.

Mr. Hilton: It was tabled, but after a delay of some five months, I believe the regulations in 2017 were made in May 2017. The statement of reasons from the minister was tabled but not before that summer adjournment; it was only tabled in October, I believe. It was tabled in the house in October and in the Senate in October, as well.

Mr. Miller: Did the minister not defer this last fall or something? Time does fly in this place, but I was thinking that, in the last six or eight months, this had happened again.

Mr. Hilton: Yes. After the 2017 instrument, the regulations were set to come into force on December 1, 2018, but this past November, the minister delayed it again for another two years. Now the Firearms Marking Regulations are set to come into force December 1, 2020. If they delay it again, we’ll probably know around October, November or December 2020.

Mr. Miller: So, again, the only thing we’re missing is him filing the reasons why he’s doing it?

Ms. Kirkby: Right. On the most recent one, that was done without the committee’s involvement. It was not necessary —

Mr. Miller: So what are we hashing this out for?

The Joint Chair (Senator Day): Mr. Maloney first. This has been a good discussion.

Mr. Maloney: That’s a conclusion I was trying to get to. If I understand what we’re doing here correctly, the minister has an obligation to file his reasons why they’re not going ahead with the regulation on an annual basis, and this is dictated by some statute. Last year, there was concern that this hadn’t been done in a timely manner over a number of years, but most recently, it has been done in a timely manner. Is that where we are?

Ms. Kirkby: Yes.

Mr. Maloney: Why are we talking about this at all? Let’s send him a letter of congratulations and move on.

The Joint Chair (Senator Day): It’s been one time out of six the minister followed what he was supposed to do; the other times, we had to remind him about it. But the last time he followed our prompting.

Is everyone content that we monitor this and see if he does it again? Because it’s coming up in six months or so.

Mr. Hilton: The regulations are now set to come into force December 1, 2020, so the next time this issue will come up will be in around October or November 2020.

The Joint Chair (Senator Day): 2020?

Mr. Hilton: Yes, 2020.

The Joint Chair (Senator Day): Sorry, I was thinking 2019.

Shall we leave the matter with counsel to monitor this file, or do you want to close it out? Are members content with one action by the minister that follows our prompting?

[Translation]

Mr. Dusseault: I think we can close out the file since it appears to have been postponed the last time. The issue will obviously be brought to the committee’s attention again, since the committee examines everything that is tabled, all the regulations. If there’s a problem, we’ll know about it.

[English]

The Joint Chair (Senator Day): Shall we close this file out? There seems to be consensus that we’ll close out the file.

SOR/2013-115 — REGULATIONS AMENDING THE PRIVACY REGULATIONS

(For text of documents, see Appendix G, p. 50G:1)

Mr. Hilton: This regulation amended the schedule to the Privacy Regulations by updating the names of investigative bodies and deleting references to those that no longer exist. However, some of the new names refer to wrong departments or to former names of the right departments.

The last time this file was at committee in June 2017, it was noted that amendments to address these issues had been prepublished. Those amendments were eventually published in March 2018. However, one issue that was not corrected as part of those amendments was the reference at item 15 of Schedule II to the “Security Bureau, Passport Canada, Department of Foreign Affairs and International Trade. ”

Passport Canada had been integrated into Citizenship and Immigration Canada, so its reference as part of the the Department of Foreign Affairs and International Trade was incorrect. As part of those 2018 amendments, references to the Department of Foreign Affairs and International Trade were also updated to the Department of Foreign Affairs, Trade and Development, but not at item 15. So item 15 is not only still incorrect, it is now also inconsistent with other investigative bodies.

In response to the committee’s concerns on the matter, the department indicated that Immigration, Refugees and Citizenship Canada made organizational changes, resulting in the need to assess that investigative body designation and that once that assessment was complete, it would make the necessary amendments as part of its 2018‑20 forward regulatory plan.

However, no timeline has been provided for the assessment, and its forward regulatory plan has already been rolled over to 2019‑21. So it is not certain this issue will be fixed by either 2020 or 2021. With the members’ agreement, counsel could follow up on the status of Immigration’s assessment and confirm the timeline for when the amendment will be made.

The Joint Chair (Senator Day): Are we content to follow counsel’s recommendation to look for a timeline?

The Joint Chair (Mr. Albrecht): Could we add to it an expected potential date, say, by the end of 2019? Is that reasonable?

Mr. Badawey: That’s fine.

The Joint Chair (Senator Day): The end of 2019? Okay. So we’ll leave that in your good hands. Thank you.

SOR/2017-196 — REGULATIONS AMENDING THE OFF-ROAD SMALL SPARK-IGNITION ENGINE EMISSION REGULATIONS AND MAKING A CONSEQUENTIAL AMENDMENT TO ANOTHER REGULATION

(For text of documents, please see Appendix H, p. 50H:1)

Ms. Becklumb: Fourteen issues were raised in December 2017. Amendments that would address 11 of these issues were prepublished recently on March 9, 2019. Environment and Climate Change Canada advises that these amendments are expected to be published in final form in spring 2020.

This leaves three issues for which the department has provided explanations that the committee may consider.

First, the regulations incorporate by reference numerous provisions of the U.S. Code of Federal Regulations, which are not available in French. The department suggests that this is acceptable, first, because the U.S. regulations are highly technical and continually changing, so incorporating them by reference ensures regulatory alignment.

Second, in an effort to mitigate the lack of availability of the U.S. regulatory provisions in French, the department is finalizing guidance material in both official languages that summarizes the requirements of the act, the regulations and the incorporated references to the U.S. regulations.

It is unclear why it is feasible for the department to prepare guidance material that summarizes the relevant U.S. regulations and then to translate that guidance material into French, but the department cannot simply translate the relevant U.S. regulations into French.

Will the guidance material be detailed enough for francophones to fully understand their obligations under the law? Will the guidance material be kept up to date each time the relevant U.S. regulations change? If so, then why not simply translate the relevant U.S. regulations and keep those translations up to date? This could be pursued with the department.

Mr. Miller: What’s the problem with translating it? It wasn’t you saying —

Ms. Becklumb: No, that was me questioning. They suggest that because these regulations are only available in English, they’re going to provide guidance material. They’ll summarize them and provide that in French. If you can provide a summary in French, why not just provide the regulations in French?

Mr. Miller: If I could, Mr. Chair, if I could ask Mr. Dusseault or some of my French colleagues. If both were translated here — we can’t expect the Americans to translate it — but if it was, would that be confusing to somebody who, say, only spoke French? It doesn’t seem logical, but if you could speak to that.

[Translation]

Mr. Dusseault: This is an issue that often comes up involving documents incorporated by reference. We’ve made our position quite clear. Regardless, the committee has repeatedly indicated that documents must be incorporated by reference in both official languages. The department stated that it met two of the criteria: The current and former versions are available at no cost and are accessible. The most important criterion has not been met: The incorporated documents are not available in both official languages. A unilingual French speaker won’t be able to understand the requirements they are subject to if the documents are available in English only. We need to follow up with department on this issue. We have jurilinguists who translate Canada’s statutes and regulations. Why can’t the department call on their services to have the U.S. provisions translated so they are available in both official languages to all Canadians?

Senator Mégie: Does translating the American provisions pose a copyright problem? Is that the reason? If so, couldn’t the department simply indicate that the translation was unofficial?

Ms. Becklumb: The committee could ask the department whether it’s a problem and why it doesn’t translate U.S. regulations. It may be appropriate to follow up.

Senator Mégie: Thank you.

[English]

The Joint Chair (Senator Day): Can we agree that we go back to the department and show our strong preference for translation of any document that is brought into Canadian law and regulations?

[Translation]

Mr. El-Khoury: The committee should suggest that the department translate the provisions to ensure they are available in both official languages and incorporate by reference the officially translated version. Is that clear?

The Joint Chair (Senator Day): Yes.

Mr. El-Khoury: Great.

[English]

The Joint Chair (Senator Day): Are we all in agreement?

Counsel, you’re okay with that?

Ms. Becklumb: Yes.

[Translation]

The Joint Chair (Senator Day): That’s what we’ll do, then. Thank you very much.

[English]

Ms. Becklumb: There are still two more issues on this file.

The Joint Chair (Senator Day): I was excited we were moving on to the next one.

Ms. Becklumb: There are three remaining issues. We just dealt with one. The next issue for the committee to consider relates to subparagraph 5(2)(a)(i), which provides an exemption for competition engines, which are engines with performance characteristics that are “substantially superior” to non-competition engines.

It was pointed out to the department that the term “substantially superior” is vague. The department responded that it used these words in order that the regulations align with the American requirements for exemption, which use the words “substantially superior.” However, the department has a clear understanding of what substantially superior means. They wrote:

An engine that has substantially superior performance is one that is capable of operating at speeds greater than normally capable of an engine that is a non-competition engine.

The committee can consider whether it is prepared to accept the vague wording, “substantially superior,” to ensure alignment with the U.S. requirements, or whether it would like to suggest that the term be defined in the regulations.

The Joint Chair (Senator Day): “Substantially superior,” we’re picking up that terminology from the United States.

Ms. Becklumb: Correct.

The Joint Chair (Senator Day): Incorporation by reference. Everybody who has an engine thinks his is substantially superior to the other one. It’s going to be an interesting definition. We’re stuck with that terminology because we’ve incorporated by reference.

Ms. Becklumb: Well, it’s not incorporated, it’s just harmonized. They just use the same words as the American regulation to ensure that it’s the same requirement. It has to be substantially superior, but would you like to suggest that term include a definition in the Canadian regulations?

Mr. Shields: Absolutely not.

[Translation]

Mr. Dusseault: Is the definition used by the department based solely on speed?

Ms. Becklumb: Yes.

Mr. Dusseault: I find it somewhat hard to believe that technology can make one engine substantially faster than another.

Ms. Becklumb: It’s true. No limit is indicated.

[English]

They don’t specify which speed, what the borderline is between competition and non-competition.

[Translation]

It’s faster than an engine that isn’t meant for competition, so it’s relative.

Mr. Dusseault: It may be preferable to leave it vague. I’m not sure. I don’t have an issue with it.

[English]

Mr. Maloney: I agree with what Mr. Shields just said. Unless there is a proposed definition and a very clear and compelling reason why it’s necessary. I haven’t heard that there is a definition being proposed.

The Joint Chair (Senator Day): So we leave this one alone?

Mr. Maloney: Yes.

The Joint Chair (Senator Day): Take a pass on that one then.

Ms. Becklumb: Okay.

The Joint Chair (Senator Day): For the time being, at least.

Ms. Becklumb: There’s one last issue. An issue was identified with paragraph 12.2(b) of the regulations. That provision states that an engine that is sold concurrently in Canada and the United States and that is covered by one or more EPA certificates must conform to the engine emission standards referred to in the EPA certificates.

EPA stands for the U.S. Environmental Protection Agency, and an EPA certificate is a certificate of conformity to U.S. federal standards.

The issue with this paragraph is that it includes a double incorporation by reference. The emission standards that apply are those that are referred to in the EPA certificate and the EPA certificate is incorporated by reference into the Canadian regulations. It’s kind of hard to figure out what the standards are. You have to kind of do two jumps to figure it out.

It’s unclear why these standards can’t be spelled out directly in the Canadian regulations. This question could be put to the department.

The Joint Chair (Senator Day): That would make it a lot easier for someone trying to follow the regulations.

Mr. Miller: I think that’s a good suggestion.

The Joint Chair (Senator Day): Are we in agreement with that? Why the double reference to EPA, when we could put our own standards in there? Thank you. We’ll find out about that from the minister.

Anything further with respect to this item?

Ms. Becklumb: That one’s finished. Thank you.

The Joint Chair (Senator Day): Thank you for that and for your guidance.

SOR/2018-47 — CANADA’S 2018 G7 PRESIDENCY PRIVILEGES AND IMMUNITIES ORDER

(For text of documents, see Appendix I, p. 50I:1)

Mr. Hilton: This order granted certain privileges and immunities to various representatives of foreign states and international organizations who attended the 2018 G7 meetings. Specifically, subsection 2(2) provided for various privileges and immunities for heads of an international organization as well as their alternates and senior officials of an international organization. Subsection 2(3) provided for various privileges and immunities for other officials of an international organization.

While the language of these provisions clearly reflected the language of the order’s enabling statute, it was unclear how it was determined and by whom, whether an official was considered to be a senior official or an other official. By way of contrast, a previous order that also accorded privileges and immunities to various officials of an international organization explicitly listed who qualified as a senior official and who qualified as an other official.

When asked if such clear designations could be set out in future orders, Global Affairs Canada responded that it would be pleased to consider this option and endeavour to do so to the extent feasible but cautioned on two points. First, with multiple organizations participating in any given meeting, it was not always possible to know in advance which officials would be considered senior officials; second, creating a standardized definition of senior officials would not be possible either, since those that are considered senior officials varies among organizations.

Accordingly, if members are satisfied with the department’s undertaking to endeavour to seek out additional information regarding who is considered a senior official, to the extent feasible in advance of drafting future orders of this type, this file may be closed.

The Joint Chair (Senator Day): Are we in agreement to close out this file? Agreed. You may proceed accordingly. Anything further under number 9?

Mr. Hilton: No, that is it.

The Joint Chair (Senator Day): Who’s going to help us with the next item?

Mr. Hilton: I will.

The Joint Chair (Senator Day): Okay, thank you.

[Translation]

SOR/2018-50 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

(For text of documents, see Appendix J, p. 50J:1)

Mr. Hilton: Only one issue was raised regarding the registration of the order. Crown-Indigenous Relations and Northern Affairs Canada made the order on March 19, 2018 but only registered it eight days later on March 27, 2018.

Therefore, counsel questioned whether the department met its statutory obligation to transmit the order to the Clerk of the Privy Council within seven days after making it, according to subsection 5(1) of the Statutory Instruments Act.

The department confirmed the order was transmitted for registration on March 23, 2018, four days after it was made. Since the act states that transmission for registration, not actual registration, must occur within seven days, the requirement was met. Accordingly, the file may be closed.

[English]

The Joint Chair (Senator Day): Do we agree with that? Thank you very much for closing that file.

[Translation]

SOR/2013-181 — REGULATIONS AMENDING THE CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS

(For text of documents, see Appendix K, p. 50K:1)

Ms. Becklumb: Item No. 11 deals with the same regulations that were dealt with in Item No. 2. The Department of Public Safety accepted the committee’s suggestion and anticipates that a miscellaneous amendments regulations package will be published this fiscal year. That’s it, then.

[English]

The Joint Chair (Senator Day): We can close that one out as well.

Ms. Becklumb: We’ll just monitor it.

The Joint Chair (Senator Day): Okay. We’re trying to clear your shelf off a bit here.

Ms. Becklumb: We’ll make sure they’re done.

The Joint Chair (Senator Day): Yes, exactly.

SOR/2010-107 — REGULATIONS AMENDING THE CLASS II NUCLEAR FACILITIES AND PRESCRIBED EQUIPMENT REGULATIONS

(For text of documents, see Appendix L, p. 50L:1 )

Mr. Hilton: Initially, four issues were raised with the Canadian Nuclear Safety Commission. Two concerned French-English discrepancies, and two concerned undue discretion in the certification and decertification of radiation safety officers.

Early in the communications, the commission agreed to address the French-English discrepancies, but saw no need to address the undue discretion issues. After the committee considered the file on November 2, 2017, members decided to ask the commission if, first, it could complete the French-English amendments by the end of 2017 through the Miscellaneous Amendments Regulations process, also known as the MARs process; and second, if it could reconsider its position on the undue discretion issues. Suggestions were provided to the commission in this regard.

The commission responded in April 2018 that it would make the French-English amendments either through the MARs process or following an upcoming review of the regulations and that after reconsideration, it would address the undue discretion issues based on the committee’s suggestions. When pressed for a timeline on the promised amendments, the commission responded that the review of the regulations had been scheduled for 2019 and that it anticipated a completion date of 2021.

With members’ approval, counsel can follow up with the commission on a firmer timeline and whether it’s still possible for the French-English amendments to go through the MARs process rather than awaiting the complete review.

The Joint Chair (Senator Day): Are we agreed on that course of action? Agreed.

Counsel, you’ll do as you have recommended. We agree.

[Translation]

SI/2019-8 — ORDER AMENDING THE BANFF NATIONAL PARK OF CANADA SIKSIKA NATION CASTLE MOUNTAIN LAND AND TIMBER CLAIM SETTLEMENT AGREEMENT RENT AND FEE REMISSION ORDER

SI/2016-32 — BANFF NATIONAL PARK OF CANADA SIKSIKA NATION CASTLE MOUNTAIN LAND AND TIMBER CLAIM SETTLEMENT AGREEMENT RENT AND FEE REMISSION ORDER

(For text of documents, see Appendix M, p. 50M:1)

Mr. Hilton: The order corrects the only concern raised by the committee in 2017 with respect to SI/2016-32. Specifically, the order corrects the definition of “entité siksika” in the French version so that it aligns with the English version of the definition. Therefore, the committee’s file on SI/2016-32 was closed, and this file may be closed as well.

[English]

The Joint Chair (Senator Day): We’re in agreement.

[Translation]

SOR/2017-165 — CERTIFICATE OF SUPPLEMENTARY PROTECTION REGULATIONS

(For text of documents, see Appendix N, p. 50N:1)

Mr. Hilton: The last time the committee examined the file, on November 1, 2018, it instructed counsel to seek an update on the status of the promised amendments to the Patent Act. By way of background, no issues were raised with the regulations, but a deficiency was found in an enabling provision of the act. Specifically, the English and French versions of paragraph 134(1)(f) were not the same and provided for two entirely different regulation-making powers. On November 21, 2018, the department informed the committee that the correction to the English version was included in Bill C-86.

Bill C-86 received Royal Assent on December 13, 2018. It should be noted that the clause of the bill that makes the amendment, clause 199, was deemed to have come into force retroactively on September 21, 2017, when original section 134 came into force. Although it was estimated that no regulatory provisions were made under that section, there is now no concern about those that were, if any. As a result, this file may be closed.

[English]

The Joint Chair (Senator Day): We’re content to close the file? Thank you. Counsel, if you would do that.

[Translation]

SOR/2019-16 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER

(For text of documents, see Appendix O, p. 50O:1)

Ms. Becklumb: In January, this order addressed the single issue that was raised in connection with file SOR/2018-48. The term “la province du Québec” was amended to read “la province de Québec,” which is consistent with the Guide fédéral de jurilinguistique législative française. Therefore, both files may now be closed.

The Joint Chair (Senator Day): It took a few years to do that.

[English]

Ms. Becklumb: They bundled them with other amendments. This file can be closed.

The Joint Chair (Senator Day): Number 15 we will close.

Number 16.

[Translation]

SOR/2019-57 — REGULATIONS AMENDING THE DESIGNATION OF REGULATORY PROVISIONS FOR PURPOSES OF ENFORCEMENT (CANADA WILDLIFE ACT) REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix P, p. 50P:1)

Ms. Becklumb: This instrument, made in February, resolved the sole issue in relation to file SOR/2017-107. Specifically, it repealed a reference to a provision of the Wildlife Area Regulations that was improperly designated. Therefore, both these files may now be closed.

[English]

The Joint Chair (Senator Day): For the record, Item No. 16 is closed. Everybody’s okay? Thank you.

SOR/2019-80 — REGULATIONS REPEALING THE ATLANTIC PILOTAGE AUTHORITY NON-COMPULSORY AREA REGULATIONS

(For text of documents, see Appendix Q, p. 50Q:1 )

Ms. Becklumb: This instrument repealed the Atlantic Pilotage Authority Non-compulsory Area Regulations.

At the time of the repeal, there were two files open in relation to these regulations with 13 outstanding issues, some dating back to the 1980s, and the repeal allows for these files to be closed.

The Joint Chair (Senator Day): Thank you. We’ll close out these files. We’re in agreement there?

SOR/2018-195 — ORDER AMENDING SCHEDULE I TO THE PUBLIC SERVICE SUPERANNUATION ACT

SOR/2018-212 — ORDER AMENDING PART 2 OF SCHEDULE 1 TO THE GREENHOUSE GAS POLLUTION PRICING ACT

SOR/2018-229 — REGULATIONS AMENDING THE MARINE MAMMAL REGULATIONS (MISCELLANEOUS PROGRAM)

SOR/2018-230 — ORDER AMENDING SCHEDULE III TO THE FINANCIAL ADMINISTRATION ACT (PPP CANADA INC.)

SOR/2018-239 — REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS

SOR/2018-242 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT

SOR/2018-259 — REGULATIONS AMENDING THE JUSTICE FOR VICTIMS OF CORRUPT FOREIGN OFFICIALS REGULATIONS

SOR/2019-27 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (KEESEEKOOWENIN FIRST NATION)

SOR/2019-28 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (KEESEEKOOWENIN FIRST NATION)

SOR/2019-29 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (FORT WILLIAM FIRST NATION)

SOR/2019-30 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS ELECTIONS ACT (FORT WILLIAM FIRST NATION)

SOR/2019-31 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL MANAGEMENT ACT

The Joint Chair (Senator Day): For those who are new to our committee, these items fall under “Statutory Instruments Without Comment,” which are instruments that have been reviewed by counsel and been found to be without issue. They’re just listed here to see that they have worked on them.

Ms. Becklumb: There are 12 instruments under this heading. They’ve been reviewed and comply with all the committee’s criteria. If members want to consult any, we’ve brought copies with us and they’re available.

The Joint Chair (Senator Day): Excellent. Our next meeting is on May 30.

Ms. Becklumb: Correct.

The Joint Chair (Senator Day): Anything further to be brought before this committee?

(The committee adjourned.)