REGS Committee Meeting

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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

EVIDENCE

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OTTAWA, Monday, May 29, 2023

The Standing Joint Committee for the Scrutiny of Regulations met with videoconference this day at 11:06 a.m. [ET] to conduct a review of Statutory Instruments.

Mr. Dan Albas and Senator Yuen Pau Woo (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Albas): Colleagues, I am happy to be with you today with my joint chair. I look forward to an excellent meeting.

Before we go formally into the agenda, we do have an update on a file we have been working on between the Minister of National Defence and her officials in regard to some regulations that I know members here have shown concerns regarding. So far, we have done everything out in the open, but some people might like to do it in camera. If someone would like to do that at any point, we can go through the following steps to get that, but that will cause us to have to suspend as we go through the process for going in camera.

I would like to welcome MP Naqvi. Thank you for being here. Online, we also have a few members of Parliament wearing headsets. Hopefully, they will feel confident that they can participate in today’s meeting.

Before proceeding, is there any sense that we want to go in camera, or would everyone prefer to stay open? Okay.

I’m going to ask for an update by the clerks in regard to what has transpired since our last meeting.

Sara Gajic, Joint Clerk of the Committee: Thank you very much. I would like to update committee members on the status of SOR/94-276, Canadian Forces Superannuation Regulations, amendment.

Members will recall that an invitation had been sent by the committee to the Minister of National Defence to appear before the committee on this file. Following no response by the minister to that invitation, committee members agreed at the committee meeting on May 1, 2023, to send a letter providing the minister with a notice of disallowance. That letter was sent on May 5, 2023.

Following receipt of the letter, the Department of National Defence offered to send departmental officials to appear before the committee and to continue to work with the minister’s office regarding the minister’s appearance. Today, prior to the start of this committee meeting, the joint chairs received a letter from the Minister of National Defence confirming that she is willing to send departmental officials to appear before this committee on this file.

At this point, I’m seeking direction on whether the committee would like to invite departmental officials to appear before the committee as per the offer. I note that according to the calendar of proposed meetings of the Scrutiny of Regulations Commmittee shared with committee members, the last proposed meeting before the summer would be June 12, 2023. Therefore, if the committee wishes to invite departmental officials to appear before the committee, the appearance may be scheduled for that last meeting or potentially in the fall.

Thank you.

The Joint Chair (Mr. Albas): Would anyone like to ask a question or discuss how best to take this request?

Mr. Garrison: My understanding is that the notice of disallowance that we gave provides a 30-day notice to the minister, and those 30 days would be up June 5. So, I can’t imagine that officials will have anything to add to our understanding of where we are at this point. Certainly, they could have appeared a long time ago during the year we have been asking if they had material things to add to help us understand the situation.

I’m not of a mood to accept officials appearing after a year of asking. I also wonder whether we want to consider meeting on Monday, June 5, since those 30 days will have expired at that point. The reason I ask is that the next step, if we choose to take it — in my understanding — is to send a notice of disallowance to the House. There are 15 sitting days for the government to respond. We are getting very close to pushing this over to the fall if we leave it to the June 12 meeting. Given how long this has gone on, whatever the resolution — everyone knows my position on it — I would hate to see it go to the fall.

My question is this: Is my understanding of the 30-day notice correct? Secondly, then, is it a possibility to meet on June 5 to make a decision on how we wish to proceed?

The Joint Chair (Mr. Albas): Okay. If I could just ask general counsel to talk about the logistics because MP Garrison has raised a few questions about timing as to any reporting to the House. Can you remind members, in this particular case, what would need to happen from us as a committee and from yourself to be able to make those reports?

Tanya Dupuis, General Counsel to the Committee: The committee has to provide the minister with at least 30 days before proceeding any further. It could meet any time after June 5 to consider a draft report to Parliament recommending disallowance. Therefore, we’re in the committee’s hands at this point as to whether or not the committee wants to meet after the 30 days have passed. But the committee is not required to do anything before the 30-day period is over, after which it can meet before the summer session or it can meet in the fall. It’s up to the committee.

The Joint Chair (Mr. Albas): Would you have a report to bring to the committee? What would be the timing if we decided to take that course of action?

Ms. Dupuis: We can have a draft report prepared for the committee’s consideration for the next committee meeting.

The Joint Chair (Mr. Albas): Thank you for answering that. Did you have a supplemental question?

Mr. Garrison: Would you have it for the next meeting if that meeting was June 5? Or are you saying it would only be ready for June 12?

Ms. Dupuis: It can be ready for June 5, at which point the committee could consider to table the report, or it could be ready for June 12. Our scheduled sitting day is June 12.

The Joint Chair (Mr. Albas): Okay. Thank you, MP Garrison.

Senator Dean: I think both things are possible. We have been waiting a year for somebody to come and talk to us about this, haven’t we? We now have an offer from officials to come. I think it’s important that we hear them out.

I’m suggesting it’s possible to do both: prepare the letter as well as hear officials on either June 5 or the following week. We can informally let them know that we have prepared a letter, and that might urge them to be a little more forthcoming, whether they are here on June 5 or June 12. Since officials have offered to come, I think we should give them the courtesy of coming and hearing them out and not send a letter before we have heard them out.

The Joint Chair (Mr. Albas): Thank you, senator. Would anyone else like to comment? We have two different ideas — not completely different, as in two different directions. One is to proceed with the report, and the question is whether we should meet earlier, on June 5, or just stay with our next meeting June 12. The other idea is that we should hear the officials and then decide. I guess we could prepare the report regardless of either one.

So there are really two paths here: hear from the officials or just continue with the disallowance.

The Joint Chair (Senator Woo): I would just like to share with you the comment from counsel that we could do both, as Senator Dean has suggested. We’d take the first hour on, say, June 12 to hear from the witness and the second hour to consider a draft report that staff will already have prepared for us to consider. That’s quite possible.

Can I just talk about the timing after the report has been issued? There is no way we can get this done before we rise — assuming we rise at the normal time — because the 15 days are sitting days. Therefore, even if we were to bring forward the meeting to June 5 and issue the report at that time, we would not be able to conclude it if the House and the Senate rise in the last week of June. Is that correct? So, this will almost certainly spill over into the fall.

Mr. Garrison: I’m happy to proceed with preparing a report and hearing the officials during the first hour. I think that’s a good compromise. However, about the 15 days, the 15 sitting days are provided for the minister or the government to respond, and there are 14 sitting days after June 5, I believe. So, if we wait until June 12, we definitely leave the government to respond in the fall, whereas if we did it on June 5 — we’re ready to go — then, yes, they could wait for that last day, which would be the first day of the sitting in the fall. I doubt any government or minister would want to do that first thing.

My point is that the minister doesn’t have to wait 15 days, but if we do it on June 12, we guarantee it won’t happen, I think, because it doesn’t give the minister enough time.

The Joint Chair (Mr. Albas): I’m going to ask the clerks to consider the logistics of an early meeting. I don’t want us to have a conversation about something that is not possible logistically. During that time, MP Davidson, you have the floor.

Mr. Davidson: I have two quick questions. If we move to June 5, does that remove the June 12 meeting — if we were to do all committee business on June 5 instead of June 12? Also, do we know what department official or officials they are offering up? Because we have asked for the minister, and then they said officials. I just want to know who that is.

The Joint Chair (Mr. Albas): General counsel has that information, so if it’s at her fingertips, maybe she could inform the committee.

Ms. Dupuis: I don’t know if the clerks have it at their fingertips, but I’m just finding in the emails that they are offering senior National Defence officials.

Mr. Davidson: I didn’t know if it was just going to be someone who came and said they didn’t get the email, and that’s the end of it. I don’t know. That’s all I was wondering.

The Joint Chair (Mr. Albas): Very good questions. I’m going to ask one of our clerks to weigh in on the logistics of a meeting on June 5, as MP Garrison has suggested.

Ms. Gajic: Thank you, chair. Certainly, there will likely be no issue with meeting on Monday, June 5. I will remind members that as we approach the summer, there is sometimes the possibility of last-minute changes to committee schedules as all the committees try to wrap up business, including government business. However, we can certainly put in that request to meet on June 5 and/or June 12.

[Translation]

Mr. Garon: I think National Defence is offering us the opportunity to hear witnesses. We should have the courtesy to listen to them.

That said, we mustn’t be naive. We saw it this morning: We received a letter on the very morning of the committee meeting. The deadlines have passed. The department does this because it has no choice. This is a long-standing file. The department should have contacted us earlier. In my opinion, this is not a clear indication of good faith. This file has been dragging on for so long. I cannot believe that National Defence has not developed strong expertise in this regard. They wait until the deadlines have passed. This must not be treated as a courtesy. In my opinion, the timing of the answers suggests that they are playing for time and hoping that we will not take the matter any further before the session ends in June.

In my view, we should meet the departmental representatives on June 5. June 12 is too late. It was up to the minister, her office and the department to take the initiative regarding the date. They did not take the initiative. So I think it should be on June 5.

We know how things turn out with public servants: In many cases, we do not get an answer. The public servants keep the communication going and in the end say that things will move forward. In this file, they no longer have the benefit of the doubt since it has been such a long time.

If we meet them on June 5, the bar has to be extremely high: There have to be deadlines, promises and clear commitments as to what action will be taken to correct the situation and when it will be taken.

Quite honestly, I am disappointed that the minister will not be coming to the committee. Once there is a threat of disallowance, it is up to the minister then.

I am afraid that some high-ranking public servants will try to stonewall us. I think we need to be ready and have the notice of disallowance ready to make sure they take us seriously.

In my view, we are showing more courtesy by welcoming them here than they do by coming here, given the time that has elapsed without a reply.

[English]

The Joint Chair (Mr. Albas): I get the sense there is a consensus forming of an earlier meeting on June 5, where we invite officials for the first hour and then decide how to proceed in the second hour. I also believe there is a consensus around writing the report so that if we are not satisfied with what we hear, we can begin by formally tabling those reports in the proper process. Are we feeling comfortable here? Does anyone else have a viewpoint or a detail they would like to add? Excellent. Thank you very much, colleagues. Is there anything general counsel or clerks need clarification on, or do we seem to have a good sense of what the committee is asking?

Ms. Dupuis: Could you repeat the instructions?

The Joint Chair (Mr. Albas): That a report is drafted for the committee’s consideration for June 5, that the clerks work with department officials to have their presence for the first hour on June 5, and I also think that we will then be prepared to discuss the report, the officials’ response and whether we want to proceed on June 5. Is everyone clear? Is everyone comfortable with that? Okay, thank you, colleagues, clerk and general counsel.

Moving on to “Part Action Taken.” This is number 1 on your agenda, item SOR/2002-35. Mr. Abel, I believe this is your file. Could you please start us off?

SOR/2002-35 — CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2006-180 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2007-251 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2015-228 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

SOR/2017-213 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER

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

Shawn Abel, Counsel to the Committee: There is only one outstanding matter on these files, where the committee has recommended an amendment to the Farm Products Agencies Act. Fifteen issues were originally raised in 2008 in connection with the Canadian Chicken Marketing Levies Order. Most of these concerns were addressed by amendments to the order made by SOR/2015-228, which gave rise to one new issue of inconsistent terminology, which was, in turn, resolved by SOR/2017-213.

This leaves three other issues. Two of those issues relate to provisions that establish when fees, levies and charges become debts payable to the Chicken Farmers of Canada marketing board. Those are now being pursued on a separate file in connection with SOR/2002-1.

That leaves only one issue. The committee identified a discrepancy between two provisions of the act. Paragraph (f) of the definition of marketing plan set out in section 2 of the act refers to, among other things, the growing of a product as falling within the scope of a marketing plan. Paragraph 22(1)(g) of the act, however, which empowers product agencies to make orders establishing a marketing plan, does not include growing within the scope of the plan. While this discrepancy should be resolved, it does not affect the validity of the proclamations or orders made pursuant to the act.

The Farm Products Council of Canada, which is the federal body that oversees marketing boards, agrees that there is no difference in meaning intended between these two statutory provisions. In 2014, the council stated that a clarifying amendment would be “added to a future list of recommended amendments” to the act. The committee has not received any more information as to whether the act might be amended any time soon.

Separately, the committee has suggested to the Department of Justice that this amendment might be suitable for its Miscellaneous Statute Law Amendment Program, or MSLA. However, Justice has not yet confirmed whether this matter would fall within the scope of that program.

Thus, if members wish, a dual approach could be taken. Counsel could write again to the Farm Products Council to ask whether a proposed amendment resolving this issue is expected to be introduced into Parliament in the foreseeable future. In addition, counsel could write to the Department of Justice to ask whether it has now determined if this matter can be addressed in the next Miscellaneous Statute Law Amendment bill. Would that approach be agreeable to the committee?

Mr. Webber: Just for clarification, Mr. Abel, you mentioned SOR/2002-1 being the establishment of fees, levies and charges. We’re not dealing with this right now, are we? This is being dealt with under SOR/2002-1. We’re working on the other remaining issue, is that correct? The marketing issue wording.

Mr. Abel: That is correct. There are two issues related to fees becoming debts payable. Those are issues relating to the wording in the proclamations and the orders made by the marketing boards. That’s being handled in another file. That will likely come to the committee in the fall.

The only issue remaining on this has to do with the act itself. There is a sort of bifurcated situation here between two files. The file before the committee today has only to do with proposed statutory amendment.

Mr. Webber: All right. I’ll come back to it.

The Joint Chair (Mr. Albas): Does anyone else have a question or would like to take up the recommendation as laid out by counsel?

The Joint Chair (Senator Woo): Mr. Abel, is there any risk of duplication by taking this parallel-track approach? Both approaches try to achieve the same outcome, is that correct?

Mr. Abel: That is correct, but there has not been any movement through either avenue for quite some time. I think the prospect of a bill or parallel bills being put before Parliament in the near future is less likely, so I think it would probably be more profitable for the committee to take both approaches at the same time.

The Joint Chair (Senator Woo): Thank you.

The Joint Chair (Mr. Albas): I would like to ask a question as well. Given that this is a matter of legislation, why would we be pursuing a non-governmental body for a bill that would change it? It stands out to me that going after a group that has no decision-making power and that actually gets delegated and told what it can do by Parliament seems a bit odd.

Mr. Webber: Absolutely, chair. If this requires legislative change, then why are we writing to the Farm Products Council when they cannot be responsible for legislative changes? If that’s the case, perhaps we should press the Minister of Agriculture.

The Joint Chair (Mr. Albas): Mr. Abel, can you tell us what that may offer and if that is a better line or if there is a rationale for continuing with the Farm Products Council?

Mr. Abel: I can clarify. The Farm Products Council is a federal agency established under agriculture-related statutes. While the Farm Products Council takes point in working with the committee on issues related to provincial marketing boards who were delegated federal power, the correspondence of the committee in long-standing agreement with the Department of Agriculture is all also copied to the Department of Agriculture. So, the department is made aware of the exchanges of correspondence between the Farm Products Council and the committee, and the Farm Products Council works under the umbrella of the Department of Agriculture.

The Joint Chair (Mr. Albas): Okay. I take Mr. Webber’s point about legislation really not being their thing; it’s our thing.

We have a recommendation. Mr. Abel, could you read it out again, and we’ll see if there is consensus around it or if people would like to consider another path?

Mr. Abel: Of course. I would propose that counsel write two letters: one to the Farm Products Council, asking if it is intending to see a statutory amendment to the specific act be put forward to Parliament in the foreseeable future, and one to the Department of Justice, asking whether it has now determined if that amendment could be put under the Miscellaneous Statute Law Amendment Program.

On that latter point, this has been raised with the Department of Justice before. The committee has simply not received an answer on Justice’s determination.

The Joint Chair (Mr. Albas): Okay, which way are we going, folks? Again, counsel is here to serve us, and then we decide which direction the committee wants to direct its joint chairs to follow.

The Joint Chair (Senator Woo): Well, he’s recommending both, isn’t he?

The Joint Chair (Mr. Albas): Yes, I know. I want to see the members actually say, “Let’s do that.” I see Senator Dean, MP Garrison and MP Atwin. Yes, okay. There, let’s move on.

Next is No. 2, SI/2015-33 and SI/2019-27, Order Amending the Canadian Passport Order.

Mr. Abel, you also have stewardship of this file as well. Could you please brief the committee?

SI/2015-33 — ORDER AMENDING THE CANADIAN PASSPORT ORDER

SI/2019-27 — ORDER AMENDING THE CANADIAN PASSPORT ORDER

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

Mr. Abel: Of course. We deal here with two orders amending the Canadian Passport Order. The older order, SI/2015-33, has previously been before the committee, while SI/2019-27 is before the committee for the first time.

SI/2019-27 resolved most concerns pursued by the committee in connection with the 2015 order. These amendments clarified that the cancellation of a passport is intended to be a temporary measure. They added provisions for the reissue or replacement of a cancelled passport. The amendments set out express circumstances where notice need not be given prior to a passport cancellation. Finally, the amendments added express requirements to provide notice prior to the revocation of a passport.

There are several more matters for the committee to consider today. There is an outstanding statutory amendment to be pursued, as well as two outstanding issues arising from the orders.

I’ll begin with the proposed statutory amendment. The committee is awaiting amendments that would properly align the wording of the Prevention of Terrorist Travel Act with the Canadian Passport Order. Wording in the act which references the order is currently inaccurate. While this does not affect the functioning of the order, it could be misleading and should be corrected.

The Department of Immigration, Refugees and Citizenship Canada agreed to pursue these statutory amendments. When this matter was last before the committee in 2017, members asked to see some progress on this issue by November 2018. Such progress did not materialize. However, in 2019, general correspondence was received from the Department of Justice on the developments in the Miscellaneous Statute Law Amendment Program. Justice indicated that it was analyzing whether the statutory amendments on this file could be included in the MSLA program. However, nothing more has been heard about that possibility.

The Department of Immigration, Refugees and Citizenship Canada also suggested that it may be more efficient to confer directly with the Department of Public Safety on this issue, since that is the responsible department for the Prevention of Terrorist Travel Act. Presumably, a letter could be sent to Public Safety Canada to seek out updated information on whether these amendments will be forthcoming, either independently or in the next MSLA bill.

Next, there is still one outstanding matter arising from SI/2015-33. The committee has for some time sought clarification of the legal effect of subsection 11.4(2). This provision requires the Minister of Citizenship and Immigration — as styled in the order — to support the Minister of Public Safety in carrying out their responsibilities under the order. In the past, several explanations for this obligation were provided by the Department of Immigration, Refugees and Citizenship and were found wanting by the committee. These explanations are detailed in the briefing note prepared for members.

The department’s more recent letters, however, provide a new and perhaps illuminating explanation. Specifically, section 4 of the Privacy Act prohibits the collection of personal information by government institutions “unless it relates directly to an operating program or activity.” In the department’s view, this restriction would prevent the Minister of Public Safety from receiving information from the Minister of Citizenship and Immigration that would be necessary to carry out their responsibilities under the Canadian Passport Order. Presumably, this refers to certain decisions that the Minister of Public Safety may make under the Passport Order in relation to terrorism offences or national security. It may not be possible to make those decisions without access to information about a passport or a passport holder. That information, of course, is collected and held by the Department of Immigration, Refugees and Citizenship.

This explanation seems to establish the need for a subsection 11.4(2) of the order. However, an issue still remains that the bald statement that one minister “shall support” the other is quite vague. As the history of this file demonstrates, the purpose of this obligation is so opaque that multiple explanations from the department were required for its proper elucidation.

Counsel also consulted with the Privacy Commissioner concerning this provision. The commissioner recommends that legislative provisions which provide authority to share information pursuant to the Privacy Act should use clear and specific language. The commissioner points to the Secure Air Travel Act as a positive example. For reference, section 10 of the Secure Air Travel Act provides that certain persons or entities:

. . . may assist the Minister in the administration and enforcement of this Act, including by collecting information from, and disclosing information to, the Minister and each other . . . .

A similar formulation is also found in subsection 16(1) of the Canadian Security Intelligence Service Act. An excerpt of that can also be found in the briefing note prepared for members.

At an August 2019 teleconference concerning these orders, officials from the Department of Immigration, Refugees and Citizenship indicated that subsection 11.2(4) is being examined for possible clarification. As well, the entire order may be subject to a general reformulation that would improve clarity around the revocation and cancellation processes. A further letter to the department could seek an update on that work.

I turn then to SI/2019-27, the latest order. There are three issues arising from this order. First, since the review of this instrument had been completed by counsel prior to the teleconference of August 2019, two questions arising from the order were simply asked directly at that teleconference. The first question concerns section 10.5 of the order. This provision was added at the committee’s recommendation in order to expressly require that the Minister of Public Safety provide notice when a passport is to be revoked. Counsel asked why this section only requires the minister to take “reasonable measures” to provide that notice. Officials explained that in rare cases it is not possible to locate the person in question, although all efforts are taken to do so. Passport holders are, of course, not obliged to maintain up-to-date contact information with the government. It therefore may not always be possible or feasible to provide notice. This explanation could be considered satisfactory.

Second, a question was asked about subsection 11.1(3). This provision was added at the committee’s recommendation in order to expressly set out circumstances in which notice need not be provided prior to a cancellation. Somewhat unexpectedly, the Passport Order still does not include an express obligation to provide notice in the first place. The situation is therefore somewhat odd in that the order expressly sets out when notice need not be sent but is silent about the duty to send a notice. This obligation remains an implied duty, although it is clear from the context of the order that the minister is required to provide notice. Departmental officials stated that this duty is considered to be the same as in the case of revocation, which is to say that the minister must take reasonable measures to provide the notice. This could also be considered satisfactory for the same reasons as discussed on the prior point.

Incidentally, the fact that certain ministerial obligations are expressly set out in some cases and implied in others, even though the implications may be clear, does underscore that the Passport Order could certainly benefit from an improvement to its clarity, as was mentioned by the department.

Finally, there is one new matter that was only identified by counsel after the teleconference. Subsection 11.1(3) sets out four reasons for which notice need not be provided prior to a cancellation. These reasons are where the cancellation could:

(a) adversely affect an ongoing investigation;

(b) adversely affect a child’s best interest;

(c) defeat the purpose of the cancellation; or

(d) adversely affect public safety or national security.

It is not clear what circumstances would fall only under (c), defeating the purpose of the cancellation, that would not also be included under (a), (b) or (d). In other words, it is not clear whether paragraph (c) serves a purpose. The department could therefore be asked to provide some examples that might only fall under paragraph (c).

In sum, that covers all new developments on these two amending orders. If members are satisfied with the developments so far, I would recommend the following: One, counsel could write to the Department of Public Safety concerning the proposed amendment to the Prevention of Terrorist Travel Act, as that department is responsible for that act; and, two, counsel could send a separate letter to the Department of Immigration, Refugees and Citizenship Canada to follow up on the two outstanding questions concerning the Passport Order itself. Would that approach be agreeable to members of the committee?

The Joint Chair (Mr. Albas): MP Allison is first. Again, nudge me or ask one of the clerks to nudge me if you’re trying to raise your hand and you’re not getting my attention.

Mr. Allison: I agree with both of those recommendations, but I would suggest that we need to send something to Public Safety. I’m not opposed to sending it to Immigration, but there is a litany of non-responses from them. Also, as has been discussed by the briefing note, some of these things would probably be better handled by Public Safety.

So I’m not opposed to two letters, but, like I said, I think it would make sense for sure to send one letter to Public Safety because that’s where most of these issues lie.

The Joint Chair (Mr. Albas): I see some heads nodding.

The Joint Chair (Senator Woo): Mr. Abel, on subsection 11.1(3), item (c) is the rationale that is in question, and you are requesting that the department provide examples of what they mean by “defeating the purpose of the cancellation.”

Mr. Abel: Yes. More specifically, it’s not clear that that could be a factor if (a), (b) and (d) were not factors. We cannot imagine something, currently, that would not also fall under one of those other reasons.

The Joint Chair (Senator Woo): So it’s possibly redundant, and we’d be asking for an explanation of why this has to be singled out in a way that isn’t already covered by (a), (b) and (d).

When I think about it, the explanation is that they want to prevent somebody from leaving the country before the passport has been cancelled. Now, you might say that’s already covered by (a), (b) or (d), but I can think of, say, mental health situations under a warrant where an individual needs to be detained involuntarily. I know it’s provincial jurisdiction and all of that, but that is a situation where the passport should be cancelled without notification to the individual so that the person doesn’t leave the country on the current passport. I’m not sure that’s covered under (a), (b) or (d).

I’m also not sure it’s my job to provide the example for the department, but is that not the kind of thing that seems intuitive?

Mr. Abel: That could, in fact, be a correct explanation. I propose asking the question simply because, even though I could not think of an example, it is likely there probably is one or even multiple examples.

From our perspective, if we are going to write to the department anyway, I see little harm in simply asking them to provide some examples. However, if members are satisfied, then we do not need to pursue this point.

The Joint Chair (Senator Woo): I have no objection to seeking more clarification. There is a matter of principle as to what the threshold is in general where we question the criteria that have been set and whether we need to —

Essentially, this has come up because staff were not able to think of an explanation or an example that corresponded to this example. If we can think of one, should we then continue to ask the question? I guess that is basically what I’m putting on the table here.

Mr. Garrison: I have a concern about paragraph 11.1(3)(c). My worry is that (a), (b) and (d) are common terminology used when making exceptions: “national security,” “interest of a child,” “public safety” and “ongoing investigation.” Maybe others have seen it, but I have never seen “defeat the purpose of the cancellation.” I worry that it is so broad and so vague that it actually does away with the requirement that you have to give notice. Almost anything might fit under that. So I’m worried that it’s too broad.

The others are quite good reasons why the government might wish not to give notice, but I don’t like giving a broad grant here that says, “Any time your purpose is being thwarted, you don’t have to give a notice.” That one bothers me. I think we should have a higher standard for doing away with the requirement of notice than simply it being inconvenient.

The Joint Chair (Mr. Albas): Just to sum up, we do have some concerns about (c). We want to pursue it, as MP Allison has suggested, through Public Safety; the committee would like us to pursue the questions that Mr. Abel has ably raised with Public Safety. Are we kosher on that? Okay. I see a thumbs-up. Thank you.

Mr. Abel: Mr. Chair, may I interject? I’m sorry, but just to respond to that suggestion, amendments and explanations regarding provisions in the order, except for a very limited subset, are the responsibility of Immigration, Refugees and Citizenship Canada. It’s only a small portion of the order that is under the responsibility of Public Safety.

The Joint Chair (Mr. Albas): Okay, but I think the committee had said we’re just going to pursue the concerns we have with Public Safety, unless I’m wrong.

Mr. Davidson: I think it is Public Safety. What’s the timeline? If it’s such a small window they have to deal with as Public Safety, they should be able to get back to us fairly quickly. Is there a timeline, just so we’re not into a year or a year and a half, like we see with most things?

The Joint Chair (Mr. Albas): We could write a firm letter saying that the committee would like an explanation within 60 days, and then we can bring this up in the fall. Is that fair?

Mr. Davidson: Yes.

The Joint Chair (Mr. Albas): Is 60 days appropriate? Would members prefer longer or shorter?

Mr. Garrison: What I heard people saying is that we’re accepting both of the proposed recommendations, so we will be asking Immigration about 11.1(3)(c). As for 60 days, we always have this discussion as to how many days, and given that we’re coming up to summer, 60 days might be a bit short. I’m feeling a little generous. Maybe we could say 90 days?

Ms. Atwin: I was going to say the recommendation for both departments should be pursued, and 90 days sounds good.

The Joint Chair (Mr. Albas): Thank you, members. This is very clarifying for me. I’m sure counsel appreciates that as well. So we’ll be pursuing both departments — 90 days. Okay.

SI/2019-62 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH DIVISION 19 OF THE BUDGET IMPLEMENTATION ACT. 2019, NO. 1 COMES INTO FORCE

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

Mr. Abel: This order states that it fixes the day on which Division 19 of the Budget Implementation Act, 2019, No. 1 comes into force. There is no stand-alone Division 19 of the act; rather, Division 19 belongs to Part 4 of the act and should have been cited as such. Fortunately, given that there is no other Division 19 in the act, there was no possibility of confusion in this case.

The Department of Employment and Social Development was informed of this error and was asked to provide a confirmation that such citations will be more carefully drafted in the future. Subsequently, committee counsel was informed by email that this order fell under the responsibility of the Minister of Families, Children and Social Development and the minister responsible for the Canada Mortgage and Housing Corporation, or CMHC. The counsel’s letter was forwarded to the relevant officials, and a response was received from the CMHC that acknowledged the concern raised.

The response from CMHC did not expressly commit to avoiding this error in the future as was requested; however, it could be considered to have been tacitly acknowledged. Given the lack of harm from this typographical error, this could perhaps be considered satisfactory. I’m in members’ hands as to whether they are satisfied; if so, the file could be closed.

Mr. Davidson: I have a question for Mr. Abel. Who signs this order in the first place?

Mr. Abel: I can check very quickly, but my expectation is it is the Governor-in-Council.

The Joint Chair (Mr. Albas): Cabinet.

Mr. Abel: Yes, exactly.

Mr. Davidson: So cabinet signed — it’s just incredible to me they signed an order that doesn’t even exist. I’m just throwing that out there. Do you know what I mean? You’re at a loss for words.

Mr. Abel: I can confirm it was the Governor-in-Council. All I can suggest on this is that it was likely simply a typographical error that was easily overlooked.

Mr. Davidson: Let’s hope. I would close the file.

The Joint Chair (Mr. Albas): Thank you. Do we have some thumbs-up, nods? Okay, perfect. Thank you, MP Davidson and Mr. Abel.

I’m going to now pass it over to the co-chair for his chairmanship of the rest of the meeting.

The Joint Chair (Senator Woo): Thank you. We will move to the next section. Mr. Hilton will take us through the first item, SOR/2003-363.

[Translation]

SOR/2003-363 — ANTARCTIC ENVIRONMENTAL PROTECTION REGULATIONS

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

Geoffrey Hilton, Counsel to the Committee: The committee is awaiting prepublication of the amendments that would resolve the two outstanding issues in this file. These issues pertain in general to the regulation of waste management in the Antarctic. The department first agreed to those amendments in December 2015. Since then, however, the prepublication of the amendments has been repeatedly delayed. The committee has not heard from the department since January 2019, but in its current forward regulatory plan for 2022 to 2024, the department has prepublication of the amendments slated for 2023.

Apart from the vagueness of this time frame, we must also remember that these forward regulatory plans are not binding and can be postponed from year to year. So we cannot assume with sufficient certainty that prepublication will occur in 2023.

As a result, if the members agree, a follow-up letter can be sent to the department, enquiring whether prepublication is still slated for 2023 and whether a more specific time frame can be provided.

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

Mr. Garon: You already know what I am about to say. Once again, we are parliamentarians and the committee should be respected. We are not respected. We get no reply. Those people are very important, very busy, with a lot to do. But we are still within the timelines.

More broadly, I wonder if it wouldn’t be more appropriate to work on a committee report listing all the deadlines, instances of no reply and lack of respect shown by the executive branch of the Canadian government in respect of the committee, and table it in the House of Commons to make sure it is clearly highlighted that we cannot do our work if the counterparts don’t do theirs.

Most of the time, it is in good faith. There is correspondence and amendments that can be made by statute fairly easily. Yet, we get no reply. This will come back to us, there is a section called “progress” with a question mark. One after the next will say: “Look, some progress can be made, it is not a national emergency,” but we never get a reply. We should obviously make a list of all the instances of no reply, keep statistics on it, and take that to the House of Commons in order to present a report to the government highlighting the importance of the issue. The government should be clear: If it doesn’t want a regulations committee, it should tell us. I am in favour; I think we should give serious consideration to this option.

[English]

The Joint Chair (Senator Woo): Thank you. Let’s come back to that suggestion. The joint chair and I have talked about having a meeting to talk about some macro issues and some more reflection on the work we’re doing, but that’s for another day.

Mr. Davidson: I thank my colleague for those comments. I tend to agree with him. The non-answers are very frustrating, and also the action. I’m sitting here seeing that we haven’t heard from anyone since 2019, and these have been sitting here since 2015. We have a Liberal government that increased the public sector by 30%, and we’re still getting nowhere on action, especially on an environmental plan.

This leads back to my private member’s bill, Bill C-204, on the export of plastic waste for final disposal. There was supposed to be action. I haven’t heard anything. There is no action. We have the Freshwater Action Plan — “action” is right in the name — and we’ve had no action. The non-action is really becoming concerning with a 30% increase in the public sector. I go back to my colleague — I don’t understand the non-action, no-answer. It’s very concerning.

The Joint Chair (Senator Woo): Thank you. To clarify, we have information from the department through their own forward regulatory plan that the intention is to come up with the pre‑notice of amendments in 2023. That is the intelligence we’re getting from a secondary source. They did not respond to us directly; you’re getting it from official documents.

Mr. Davidson: To counsel, you’re getting it from secondary sources. They didn’t even have the courtesy to respond to us. You have to get intel from a secondary source. I mean, seriously.

Mr. Hilton: If members wish, a sterner letter could be sent to the department within which it will be said that if prepublication or final publication does not occur by a certain date, the committee will consider other options available to it, including writing to the minister, bringing witnesses in or even pursuing disallowance, because the provisions in question here were deemed unauthorized by the committee. Those are options we can include in a subsequent letter to the department.

Mr. Davidson: To the comment from my colleague from the Bloc, we have to be tough. Either the government is going to take Scrutiny of Regulations seriously or it’s not. I think we have to write a stern letter to them that they haven’t responded and that if they don’t send the minister, we’re going to move for deregulation, disallowance.

The Joint Chair (Senator Woo): The next step that you mentioned was to call witnesses.

Mr. Hilton: It’s an option. The next step would be to write a letter to the department and explain the committee’s dissatisfaction with the time it has taken for these amendments to take place. Within that letter, we can include escalation options where if prepublication or final publication does not happen by a specific date, the committee will consider calling witnesses, writing to the minister or pursuing disallowance. Those are the typical options the committee moves toward in these situations.

The Joint Chair (Senator Woo): Is it agreed that we lay out the types of escalation measures that we will consider if they do not respond on this question? Okay, very good. Thank you.

Next item, Mr. Abel.

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

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

Mr. Abel: This is concerning SOR/2016-38. The committee is awaiting promised amendments that would clarify or correct the drafting of three provisions. While the deficiencies to be corrected are minor, the amendments should still be made. These amendments were originally expected to be completed in late 2020; however, they were delayed by the COVID-19 pandemic. In 2022, the Canada Border Services Agency indicated that the amendments were expected to be made by the end of spring 2023.

When this file was before the committee on April 17 of this year, members wished to obtain a confirmation from the agency that the amendments would, in fact, be completed by the end of this spring. If not, the file was to be brought back. An update was received from the agency on May 15. It states that the amendments are now expected to be made by the end of the year. The question is how the committee would like to deal with this information. If members wish, counsel could reply to the agency and express a firm expectation that these matters be resolved by the end of the year, failing which the committee may consider other options at its disposal.

Would that approach be agreeable to members?

Mr. Allison: I think we need a firm scale. I agree we should write the letter, but I guess it was nice of them to reach out to us and let us know that they will be taking care of it by the end of the year. We should still send that letter asking for clarification and that we will consider other options.

The Joint Chair (Senator Woo): Thank you for your support.

The specific recommendation says that the committee will consider all options at its disposal to expedite these matters. This is quite serious.

[Translation]

Mr. Garon: When they say the corrections will be made before the end of the year, do they mean 2023, 2024 or 2025? I don’t know, but they rarely move quickly. To be clear, are we talking about 2026 or 2027?

[English]

Mr. Abel: My reading of the agency’s correspondence is they do mean 2023. It remains to be seen if that happens.

The Joint Chair (Senator Woo): We will go on the assumption that it’s 2023 and we will write a letter along those lines. Is everyone okay with that? Thank you. The next section is “Action Taken.” Ms. Lévesque, please.

[Translation]

SOR/2011-294 — REGULATIONS AMENDING THE ENVIRONMENTAL EMERGENCY REGULATIONS

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

Geneviève Lévesque, Counsel to the Committee: This file was last presented to the joint committee on March 12, 2015. The Regulations Amending the Environmental Emergency Regulations, SOR/2011-294, were repealed and replaced by the Environmental Emergency Regulations (2019), SOR/2019-51, which will be reviewed and presented to the committee at a later date. So if the members are satisfied, file SOR/2011-294 can be closed.

The Joint Chair (Senator Woo): Thank you.

SOR/2010-261 — CRIBS, CRADLES, AND BASSINETS REGULATIONS

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

Ms. Lévesque: This file was last presented to the committee on June 11, 2005. A number of discrepancies were noted between the English and French versions of the Cribs, Cradles and Bassinets Regulations of 2010. Moreover, the enabling statute, the Hazardous Products Act, did not provide the necessary authorities to make a regulation regarding the keeping and provision of records.

The 2010 regulations have since been repealed and replaced by SOR/2016-152, which will be presented to the committee at a later date. It should also be noted that a section of the Canada Consumer Product Safety Act, under which the 2016 regulations were made, now includes the necessary powers to require the keeping and provision of documents. So if the members are satisfied, file SOR/2010-261 can be closed.

The Joint Chair (Senator Woo): Okay.

SOR/2017-195— REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 2007

Mr. Hilton: These amending regulations resolve four issues raised with respect to SOR/2007-237, the Ontario Fishery Regulations, 2007, specifically the discrepancies between the English and French versions and typographical errors. So if the members are satisfied, file SOR/2017-195 can be closed.

[English]

The Joint Chair (Senator Woo): Seeing no opposition, agreed. Please proceed, Mr. Hilton.

SOR/2016-174 — GLASS DOORS AND ENCLOSURES REGULATIONS

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

Mr. Hilton: The committee expressed concerns about the accessibility of certain standards that were incorporated by reference into these Glass Doors and Enclosures Regulations. Previously, it appeared the two standards were only available from a private company for $60 and $210. The Department of Health subsequently indicated, in an October 2019 letter, that, as of late 2017, copies of the standard could be, in fact, obtained free of charge by contacting the Canadian General Standards Board.

While the board’s website does include a catalogue of currently published standards available for download, the standards incorporated in these regulations are, in fact, withdrawn from circulation, so copies of them were not included in the board’s online catalogue.

Copies were eventually obtained for free and in both official languages by emailing the board, but it was only known that this could be done because of the information in the department’s October 2019 letter.

It was unclear at that point if those governed by the regulations would know that they could obtain copies of the standards for free by simply contacting the board. Now, though, there is a notice on the board’s website that states copies of withdrawn standards can be obtained by contacting the board. This would appear to resolve the committee’s concerns about the accessibility of these two standards. If members agree, this file may be closed.

The Joint Chair (Senator Woo): Thank you. As commentary, this is an issue that comes up from time to time. Because standards are incorporated by reference, the issue is that they have to be obtainable without cost, is that correct?

Mr. Hilton: Departments try to the greatest extent to provide materials incorporated by reference at a reasonable cost. Sometimes it’s unavoidable, but the committee has been working towards a resolution on that point, namely, to make them as low-cost as possible.

The Joint Chair (Senator Woo): This is a function of the Statutory Instruments Act which requires us to pay attention to the accessibility of such standards.

Mr. Hilton: Yes, the accessibility of documents incorporated by reference is mandated in the Statutory Instruments Act. The issue is that “accessible” is not defined, so it remains to be analyzed on a case-by-case basis.

The Joint Chair (Senator Woo): Thank you.

Let’s proceed as you recommend. We’re moving on to number 10.

[Translation]

SOR/2018-141 — REGULATIONS AMENDING THE USE OF PATENTED PRODUCTS FOR INTERNATIONAL HUMANITARIAN PURPOSES REGULATIONS

Ms. Lévesque: This is the first time this file has been presented to the joint committee. This instrument resolves six issues raised with respect to the Regulations Respecting the Use of Patented Products for International Humanitarian Purposes Regulations, SOR/2005-143, which the committee considered on February 26, 2015 and March 1, 2018. The amendments correct minor drafting issues, an assumption, and an unnecessary reference. So if the members are satisfied, files SOR/2005-143 and SOR/2018-141 can be closed.

SOR/2019-7 — REGULATIONS AMENDING THE CANADIAN EGG MARKETING AGENCY QUOTA REGULATIONS, 1986

(For text of documents, see Appendix H, p. 11H:3.)

Mr. Hilton: These amending regulations correct the second of the two spelling errors identified in SOR/2016-326. The committee’s file on SOR/2016-326 was therefore closed and, since no further issue with SOR/2019-7 was raised, this file can also be closed.

[English]

The Joint Chair (Senator Woo): Thank you. Ms. Lévesque?

[Translation]

SOR/2016-230 — ACCESS TO CANNABIS FOR MEDICAL PURPOSES REGULATIONS

Ms. Lévesque: This is the first time this file has been presented to the committee. The Access to Cannabis for Medical Purposes Regulations, SOR/2016-230, were repealed in 2018. They were repealed by the Regulations Amending and Repealing Certain Regulations Made Under the Controlled Drugs and Substances Act, SOR/2018-147, which will be presented to the joint committee at a later date. So if the members are satisfied, file SOR/2016-230 can be closed.

[English]

The Joint Chair (Senator Woo): Seeing no comment, we will proceed as you recommend. Please tell us if there is anything you would like to draw our attention to in the last section.

[Translation]

SOR/2019-132 — REGULATIONS AMENDING THE PACIFIC FISHERY REGULATIONS, 1993 (LIGHTS PROHIBITED)

SOR/2019-145 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2019-146 — ORDER CALLING IN CERTAIN NOTES

SOR/2019-172 — REGULATIONS AMENDING THE LICENSED DEALERS FOR CONTROLLED DRUGS AND NARCOTICS (VETERINARY USE) FEES REGULATIONS AND THE FEES IN RESPECT OF DRUGS AND MEDICAL DEVICES REGULATIONS

SOR/2019-178 — ISSUANCE OF TWO $1 CIRCULATION COINS WITH A DESIGN COMMEMORATING THE 75TH ANNIVERSARY OF THE UNITED NATIONS CHARTER

SOR/2019-180 — ISSUANCE OF TWO $2 CIRCULATION COINS WITH A DESIGN COMMEMORATING THE 100TH ANNIVERSARY OF THE BIRTH OF BILL REID

SOR/2019-231 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES

SOR/2019-255 — ORDER AMENDING SCHEDULE 5 TO THE CANADA NATIONAL PARKS ACT (SUNSHINE VILLAGE SKI AREA)

SOR/2019-256 — REGULATIONS AMENDING THE BANK OF CANADA NOTES REGULATIONS

SOR/2019-287— ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

Ms. Lévesque: These 10 statutory instruments have been reviewed by counsel to the committee and they have been deemed to meet all the joint committee’s criteria. If a member wishes to look at these statutory instruments, a copy will be provided on request, but we recommend that these 10 files be closed.

[English]

The Joint Chair (Senator Woo): Do members of the committee have any questions on this last section on instruments without comment? Seeing none, I call this meeting to a close. Thank you, everyone.

(The committee adjourned.)