[Recorded by Electronic Apparatus]
Thursday, December 4, 1997
The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.
Mr. Derek Lee (Joint Chairman) in the Chair.
The Joint Chairman (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, we have this morning a small departure from the normal routine of reviewing specific regulations. We have with us Mr. John McBride from the Treasury Board. We will be looking at the handling of regulatory impact analysis statements by various departments.
Before we do that, I would like to ask members to adopt a motion, if someone will move it, that the evidence and minutes of our meetings of November 6 and November 20 be deemed part of the records of committee.
Mr. Wappel: I so move.
The Joint Chairman (Mr. Lee): That is to address any potential difficulty caused by the lack of concurrence in both houses in the adoption of our first report which covers, in essence, our rules of procedure here and our quorum rules.
Is it agreed, honourable members?
Hon. Members: Agreed.
The Joint Chairman (Mr. Lee): Carried.
Mr. McBride, I understand you have a presentation. Please proceed.
Mr. John McBride (Executive Director, Regulatory Affairs, Treasury Board): Thank you for inviting me to speak today. As committee members know, regulatory issues can be wide-ranging and complex — wide-ranging because they affect the entire spectrum of government activities; complex because they require the integration of perspectives ranging from law and policy to government organization and machinery, to compliance and client service. These are issues that require attention because regulations are laws and laws are fundamental instruments of governance.
My position is executive director of the Regulatory Affairs Division of the Treasury Board secretariat. My department is commonly known as RAD. Before I address the specific issues raised in the Fraser Institute report, I will tell you about my role as executive director at RAD in order to give you a sense of the perspectives I bring to this issue.
RAD is a small group in the Treasury Board secretariat. It shares responsibility for regulatory processes and decision-making with many other players in the federal system including individual line departments, the Department of Justice, and the Privy Council Office. RAD's focus is on horizontal issues that affect more than one department. Our value-added comes from bringing together diverse interests within the federal system to focus on common problems or frameworks.
In general, RAD's role does not include second-guessing the hundreds of individual regulatory decisions because, first, this would be impractical and, as history has shown, it would likely be ineffective.
I will turn now to the specific questions addressed to me regarding the Fraser Institute study, Federal Regulatory Reform: Rhetoric or Reality?
The work done by the Fraser Institute is very useful. It helps draw attention to the important role played by regulatory policy in encouraging sound decision-making. There are, however, three points that I would like to make about the report.
First, it is an aggregate study of decision-making based on a number of simplifying assumptions. One needs to interpret the specific results in the study with a clear understanding of the oversimplifications on which it is based.
Second, the report suggests that centralized challenge and control is the best solution to better decision-making. This has been tried and has been shown, not only in Canada but elsewhere in the world, not to work.
Third, in my view, there are more effective ways of addressing the issues that the Fraser Institute has identified, but there are no quick solutions to the problems.
I will expand on those points. As with any broad study of government decision-making, the Fraser Institute had to make a number of simplifying assumptions to facilitate its analysis. Most notably, the study assumes that the regulatory policy applies in the same way to all statutory instruments and this is frankly not the case.
There are three specific ways in which that assumption does not work. First, not all statutory instruments are regulations — you are well aware of that fact — but the Fraser Institute included all statutory instruments in its base for doing its statistical analysis. For example, the awarding of peacekeeping medals requires a statutory instrument, but that is clearly not a regulation that is subject to the regulatory policy. So there were some quantitative flaws to their analysis.
Second, not all regulations are subject to the regulatory policy. Some agencies, such as the CRTC and agricultural marketing boards, have direct regulatory authority established in their enabling legislation and they are not subject to regulatory policy.
Third, not all aspects of the regulatory policy apply in all circumstances. For example, the miscellaneous amendments do not require the application of the policy. The point there is that analysis should be proportional to the impact of the regulation. Minor, technical regulations do not require full-blown analysis.
There are some quantitative flaws and you need to interpret the specific results of the analysis with those in mind.
In raising these points, it is not my intent to detract from the importance of the issues raised in the study but more to highlight the fact that we need to be cautious in interpreting the specific results.
Frankly, the study does raise some valid points. It highlights the importance of implementing systems and support mechanisms for promoting adherence to the regulatory policy. My question to you is: How do we do that? We at RAD take that question seriously and we have been working hard to accomplish it.
The Fraser Institute report implies that the Regulatory Affairs Division at Treasury Board should adopt a more "command and control" type of approach to ensuring that departments comply with the regulatory policy. This approach has been tried in the past with limited success.
In the period 1986 to 1991, there was an organization called the Office of Privatization and Regulatory Affairs, and it very much employed the command-and-control approach. They challenged all regulatory proposals. Arguably, at that time, that was necessary to bring some discipline to the system and drive home the fact there was a new regulatory policy and that departments would be expected to comply with it.
However, over time it became evident that such a strict command-and-control approach could only achieve so much. First, the approach fails to appropriately structure accountability with the federal system by giving departments the impression that they were not fully accountable for the decisions they were making. Furthermore, central agencies are quickly overwhelmed by the volume of transactions and cannot hope to effectively challenge every regulatory proposal. This is not surprising given that, in the early 1990s, regulators in departments outnumbered central agency officers by about 2,000 to 1. This led to an evolution in thinking about the regulatory policy, an evolution that led to departments being more fully accountable for the implementation of the policy.
In 1992, the Treasury Board formalized this change with the intent of clearly setting out what is expected of regulatory departments and agencies. Departments were required to show that benefits of regulations outweighed their costs and were required to be open and consultative when developing regulatory proposals. It was also clear at that time that they were responsible — and, frankly, they are — for meeting the requirements of the regulatory policy.
To help regulators in the departments do a better job in meeting the policy, it was important to make sure they had the knowledge, skills and training to do the job that was expected of them. As a result, RAD focused on, in conjunction with regulatory departments, investing significant time and energy to develop tools, publications, guides, best-practices seminars, workshops and courses to assist regulators in thinking through the day-to-day problems they faced.
The underlying premise was that if a department was more familiar with the system in place, a cultural change would gradually take place, and we would get greater compliance with the regulatory policy.
To further assist the departments, RAD, in conjunction with major regulatory departments, developed what we call the Regulatory Process Management Standards. These standards, inspired by the system of ISO-9000, represent a quality assurance approach to the management of the departmental regulatory process and are designed to improve adherence to the regulatory policy. Once implemented, departments will be subject to a third-party review to ensure that they are complying with the standards, greatly reducing the need for central agency review at the later stages in the process. The aim would be to focus central agency efforts on key issues, not on a detailed transaction-by-transaction review, and to move accountability back to departments.
We have also taken some steps to change the accountability structure. For example, we have recently taken steps to integrate the federal regulatory plan into departmental spring reports on plans and priorities and fall performance reports that are tabled in Parliament. Our aim is to improve the internal management of the regulatory process by better linking regulatory activities to the core business lines, results and accountability schemes of departments and agencies. The ultimate goal is to provide you, the parliamentarians and ministers, with a better basis for judging regulatory initiatives. It will also provide the public with early notice and information required to permit follow-up on entries of particular interest.
Our system is by no means perfect, and we need to continue our efforts to improve it, but we also need to accept that there are no easy, quick-fix solutions and that improvement will take time. We are making progress, perhaps not as much as we would like, but I think we are going in the right direction. There are some key strengths on which we need to build. We have a good regulatory policy and a sound analytical basis.
Another strength is the transparency of a process to provide stakeholders the opportunity to make early interventions. Different departments are adopting effective, albeit different, approaches in assessing their regulatory impacts. Departments also need the flexibility to focus analytical resources on the most important regulatory processes instead of applying the same analytical discipline to the whole range of regulatory initiatives.
We are now on our way to implementing better management systems within departments. Analytical tools, training, programs and guidelines have been developed to improve the quality of analysis at the working level. Nevertheless, there is more to do.
I welcome your suggestions and comments.
Senator Kelly: Mr. McBride, your presentation — and this is not meant to be critical — is characteristic of the responses we often get. You have given us a long dissertation and taken us down a long, winding path, all seemingly to suggest that there is no simple minimum required to accompany a new regulation.
Each of us in our other lives deal with government from time to time. We know that when a citizen goes to a government office, certain things must accompany whatever application is being put forth. Without fail, if a person leaves out one comma or one line, the response is: Sorry, this is not acceptable.
In new regulations against a background of rules, why is there not a simple process whereby, when the regulation is drafted, if it is not accompanied by documents that meet the rules, it just falls by the wayside until it does? Why can it not be that simple, because it is that simple when you are dealing with the public at large?
Nobody suggests that this is an easy matter. I raise it here because I would like your view on the role of a joint committee in this scenario. I have been on this committee for some time and we are accustomed to carry out our responsibilities by raising questions. Sometimes we get the answer four years later, and that is considered a quick response. More often it is 12 years later. It is a matter of generations. It is hard to find a person on the committee today who was present when the question was asked. That is a great way to blur the whole issue.
We mentioned the Regulatory Impact Analysis Statement. You said it is not relevant in certain of the cases discussed in the Fraser report. That is fine, but in some of them it is. If the RIAS is significant and relevant, why is it not required in a percentage of the cases? We will not argue that percentage; it may be 10 per cent or 30 per cent or 5 per cent. To go back to my original point, though, when a member of the public approaches the government, their applications must be 100 per cent complete or the application will be not be accepted. If the RIAS has relevance, why is it not all followed up 100 per cent of the time?
Mr. McBride: You have raised a couple of good points. Regarding the simple minimum, I stated in my presentation that it depends on the nature of the regulation. That is fair.
Is a RIAS required in those cases where it would be justified by the nature of the regulation or the application of the instrument? I would suggest that it is. With very few exceptions, and we could go through some of those in detail, the RIAS is required.
My concern would be more in the quality of the RIAS. If the argument is being made that no RIAS is accompanying significant regulations, then I would argue that a RIAS must accompany all regulations. Regulations are published in the Canada Gazette and the RIAS must accompany that publication.
The Fraser report relates more to the quality of the RIAS. The actual analysis in the RIAS is perhaps less than what the Fraser Institute would deem adequate. That is a much more subjective evaluation. The Fraser Institute brings its own values to what would be deemed to be an acceptable valuation, an acceptable quantification of benefits and costs.
In terms of a minimum standard, a RIAS is required. If the Fraser Institute report says a RIAS is not being done when regulations are being passed, I would argue that this is not the case. There are some flaws in their analysis. They bunched into their denominator many things for which a RIAS is not required. Once we separate them out, the question is whether there is a RIAS for each regulation. The answer is yes.
Senator Kelly: Is that so even though a number of them are not up to standard?
Mr. McBride: The question then becomes not so much whether all the boxes are filled, but whether they are properly filled. Is there sufficient analysis? Is there an acceptable level of analysis on costs and benefits? That is a more subjective evaluation.
You asked about the role of this committee. That is an interesting question. In many other countries, committees of this nature have a more detailed role in reviewing the RIAS of different regulations. That is an overwhelming job. If you have read many RIAS, you know that some of them are intensely detailed and quite complex. To go through hundreds and analyze whether the issues are covered properly would involve much detailed information on the background of the regulations. Regulations go from A to Z; they cover everything from food inspection to medical devices, from environment to tax.
Is there administrative, technical compliance? I think the answer is yes. On that point, the Fraser Institute study is wrong.
Is there substantive compliance? That is the more fundamental question raised by the Fraser Institute. I would not argue that all RIASes are as complete and analytical as they should be, but that is another question.
Mr. White: Mr. McBride, you mentioned that this analysis is a subjective thing. If you are not prepared to accept the Fraser Institute standards in relation to these, who does accept the standards? What percentage are rejected and then how is enforcement carried out?
Mr. McBride: The Fraser Institute does not suggest any standards. It says that cost-and-benefit analyses should be done. That is a good example; the evaluation of costs and benefits is inherently subjective. The deemed benefits of an environmental regulation could be vastly different, depending on the particular issues involved.
The biggest discipline required in the process is the absolute requirement for consultation with affected stakeholders. RIASes are required to be issued to the stakeholders that are affected by the regulation. We have publication periods. Things must be publicized in the Canada Gazette. In fact, the gazetting is usually at the end of a long process. The stakeholders themselves are most affected and are most aware of the issues, so they bring the biggest discipline to the system.
Mr. White: What percentage are rejected the first time around?
Mr. McBride: If you are asking where the consultation process leads in terms of changes, I would say, from the initial proposals to the final changes, you would see large degrees of change. That change depends on the issues and on the consultations and on what the stakeholders bring to the table.
Mr. White: What about enforcement powers? What can you do to force someone to comply or to develop a standard which is acceptable?
Mr. McBride: The regulatory policy is an ideal set of analytical requirements. If stakeholders come to the table and say that insufficient analysis has been done, then that is the discipline which is brought to bear on the department and on the minister. When cabinet collectively reviews those issues, one of their key concerns is the degree of consultation. Are the stakeholders happy with what has been brought to bear?
If enforcement means making every stakeholder happy with every regulatory change, that will never happen. The biggest discipline for which I can argue is the early involvement of affected individuals.
Mr. White: On the same theme, the Fraser Institute specifically mentions in their report that RAD does not measure the costs and benefits of proposed new regulations in a majority of instances. Is that a true statement, in your opinion?
Mr. McBride: In those cases where a cost-benefit is useful, RAD does not do a detailed independent study of the cost and benefit study done by the department. You ask whether studies are done. Yes, studies are done. The Fraser Institute report argues that the studies are not done in as wide a range of regulations as they should be. They did not get into an assessment of the kind of regulations. They just looked at the top level and stated the total number of regulations and stated the number of regulations without any RIAS. If there was no RIAS, then there was no cost-benefit study; therefore, in the majority of cases, cost-benefit studies were not done. That is a huge over-simplification.
I think cost-benefit studies are done where they are required. The debate becomes how one goes about doing that. How does one go about evaluating benefits from environmental regulations, for example? I would argue that the Fraser Institute would like a detailed qualification of all costs and benefits but, in many cases, that is simply not possible, at least not with any kind of scientific or analytical rigour. That is a challenge.
Mr. Wappel: I have a few technical questions. We are told that the federal regulatory policy requires that all departments and some agencies prepare a RIAS for their regulatory proposals. Is that correct?
Mr. McBride: Yes.
Mr. Wappel: What policy is this?
Mr. McBride: I am not sure I understand your question.
Mr. Wappel: Where do departments find this requirement to prepare their RIAS?
Mr. McBride: A Treasury Board policy is issued. It was most recently updated in 1995 and it is currently issued under the authority of the Treasury Board.
Mr. Wappel: The Treasury Board has instituted guidelines that they expect to be followed by all departments. What happens if a department does not follow a guideline?
Mr. McBride: The question is: What are the guidelines? We should talk a bit about the regulatory policy and the guide on benefits and costs. If it is not followed, that is a question for ministers to consider when they are reviewing the regulation for approval.
Mr. Wappel: What does your section do?
Mr. McBride: The committee that reviews the regulations is generally not the Treasury Board. We do not do a detailed analytical review of individual transactions on those things. We help educate and give cultural change within departments. For example, we produce a guide on benefit costs.
Mr. Wappel: We have the guide here. Suppose someone ignores it?
Mr. McBride: Accountability is a difficult question.
Mr. Wappel: That is why I am asking it. You said in your remarks that you found the command-and-control approach to be ineffective and, as a result of various things that you and your colleagues did, you decided that the department would be more fully accountable and responsible. To whom are they accountable and to whom are they responsible if they choose to ignore the policy guidelines of the Treasury Board?
Mr. McBride: In the final analysis, they are accountable to parliamentarians. They are to give that information to parliamentarians on whether or not the department is accounting properly. In the end, deputy ministers and individual ministers are responsible for following this policy.
The question is: In what way are they brought to account for their degree of compliance with the policy? One way could be found in what we talked about, namely, the implementation of the ISO-9000 standards and giving third-party audit to create the information about whether there is such compliance. That information could be then provided to parliamentarians in the fall reports that are planned.
Starting in the fall of 1998, regulatory information will be included in fall performance reports that are tabled with parliamentary committees. Included in those fall performance reports, departments will be asked to report on the degree of their compliance with the regulatory policy.
Mr. Wappel: What if they do not?
Mr. McBride: That is a question of how individual parliamentary committees, including this committee, will deal with information of that nature. I cannot speak for the degree of compliance of an individual minister with this policy. I can try to provide information to parliamentarians on the degree to which they are complying.
Mr. Wappel: You said that you feel the Fraser Institute is calling for you to have a "command and control" mentality. I have read this report. Perhaps it is a matter of semantics but, to my reading, they view you as having a "gatekeeper" function. I do not think a gatekeeper function is a command-and-control function. Do you?
Mr. McBride: I interpret "gatekeeper" as: If you do not follow my rules, I will not let you through my gate. I am the traffic cop and I will let you through this gate if you follow my rules. I command these rules and I will control the processing of regulations by accessing through this gate.
I interpret "gatekeeper" to mean "command and control." I set the rules and I will let you through the gate if and when the rules are followed. That is not the accountability structure that we are proposing. We are proposing that we set guidelines on what is supposed to be done, that individual ministers are accountable for following that policy, and that the key to making them accountable is twofold.
First, they are accountable to their stakeholders by being requiring to consult them. That requirement is well entrenched in the system now. In fact, there is requirement for RIASes to be published in Part I. Stakeholders have opportunity to respond.
Second is the production of information to Parliament regarding the degree of regulatory status. That refers to the fall performance reports.
What do we do with the fall performance reports when they are tabled in the house and what kind of accountability follows that tabling? Those are interesting questions.
Mr. Wappel: We are told that the Regulatory Affairs Division — which is you — is also responsible for reviewing the quality of the RIAS and ensuring that it complies with the regulatory policy. Is that not correct?
Mr. McBride: Our mandate is much more cooperative than that would imply. We can provide departments with advice on how to deal with cost-benefit studies and on guidelines. We can provide them with tools on cost-benefits and on how to write a RIAS. We are a small group of 10 people and do not have the ability to help everyone; nor do we have the ability to evaluate each and every one of those RIAS at the end of the day.
Mr. Wappel: Where does the Regulatory Affairs Division get its authority?
Mr. McBride: Our authority is influence only.
Mr. Wappel: I am not asking what kind of authority you have but from where it comes. Is there some statute?
Mr. McBride: No.
Mr. Wappel: Is there a piece of paper somewhere that describes your role? To whom are you personally, directly accountable?
Mr. McBride: I am personally accountable to the Secretary of the Treasury Board.
Mr. Wappel: Do you have some guidelines that tell you what is expected of you as the executive director?
Mr. McBride: No.
Mr. Wappel: How do you figure out what you are supposed to do?
Mr. McBride: "No" is probably an oversimplification. My job is to help people deal with regulatory —
Mr. Wappel: But who says that? Do you say that or does your boss, the Secretary of the Treasury Board, say that? If he says that, does he say it in writing somewhere?
Mr. McBride: It is the nature of the mandate of the division.
Mr. Wappel: What does that mean? Does that mean that there are no written instructions anywhere in Canada that describe to you your responsibilities?
Mr. McBride: There is a job description for my position.
Mr. Wappel: Okay, that is something. What does that job description say?
Mr. McBride: Let us go back to the history of the Regulatory Affairs Division. You are inquiring into RAD's mandate, where it came from, how it evolved and what role we should play. Those are good questions.
Mr. Wappel: Did I say all that?
Mr. McBride: In 1986, we created the Office of Privatization of Regulatory Affairs. That was established as a unit with its own deputy head which created the regulatory policy and was, as I mentioned in my presentation, required to play that gatekeeper function.
In 1991, that group was disbanded. Some functions went to the Treasury Board, namely the function of providing tools and training to departments and those functions to help support a system. Some functions went to the Privy Council Office to deal with the actual transitional decision-making role.
Was there any detailed definition of that split of responsibilities and is it as clear as I would like? Not always. I determine my mandate more to be helping departments with tools and, more important, to help departments come to grips with issues that cut across more than one department.
Mr. Wappel: Would you provide this committee with a copy of your written job description?
Mr. McBride: It is a very old one. It pre-dates my tenure in the job.
Mr. Wappel: As long as we can read it, that is fine. We may want to suggest some updates.
Mr. McBride: It is public information.
Mr. Wappel: I want to be clear on who your direct commander-in-chief is. Is there a name?
Mr. McBride: I report to an assistant secretary within the Treasury Board.
Mr. Wappel: Who is that?
Mr. McBride: Her name is Carole Swan.
Mr. Wappel: To whom does she report?
Mr. McBride: She reports to Peter Harder, the Secretary of the Treasury Board.
Mr. Lunn: Mr. McBride, you are somewhat defensive, and that is understandable. You have said that there are some valid suggestions by the Fraser Institute. To pursue this in a constructive way, what, in your opinion, is the most valid and constructive criticism in this report? How would it improve your department? What can you specifically do to implement changes in an expeditious way to ensure that that is done?
Mr. McBride: The most important point raised by the Fraser Institute study is the need to pay attention and provide some analytical discipline to regulatory decision-making. As I mentioned, regulations are laws and we should not be creating regulations without some analytical discipline. The regulatory policy is an attempt to articulate the nature of that analytical discipline.
The Fraser Institute highlights the need for ongoing attention to ensure that better analytical discipline is applied. I have argued that analytical discipline needs to be applied in proportion to the regulation that is being considered. Given the wide-ranging nature of regulations, there are no cookie-cutter approaches to applying analytical discipline to regulations.
Ensuring that decisions are made on regulations with forethought, thinking through the implications, consulting stakeholders, considering alternatives, cost-benefit analyses where appropriate and in an appropriate level of detail, all these are valid points of the Fraser Institute.
How can I best help the implementation of the regulatory policy? RAD continues to give tools to the people who need to apply that analytical discipline. That is why we have prepared cost-benefit studies and RIAS writing guides. We have run best-practices seminars. The Department of Industry has put together a business impact test to help departments go through, in a systematic way, how individual regulations might apply to businesses.
The second value that I think a regulatory affairs group can bring is this: While individual departments are struggling with issues, the impact of individual regulations often affect more than one department. While they are struggling with issues in their areas, there are implications for other departments in other sectors. RAD tries to bring those departments together to consider those issues in a more collective and collegial way. Where there are issues that cut across their departmental boundaries, RAD tries, to be the horizontal integrator of issues.
Again, that is a huge challenge for a small group. That is where I think I can add the best value.
Ms Jennings: Your presentation was quite interesting, particularly when you talked about the simplifications of the assumptions underlying the Fraser Institute analysis. You highlighted three. I have been involved in some analysis of studies. Normally, when we draw conclusions that the assumptions of an initial study are inaccurate or inadequate, we are able to point to specific examples.
In the actual tables produced by the Fraser Institute, the question is asked whether the RIAS identifies the objectives of the regulations. Then the respondent is asked to answer "yes," "no," or "not applicable." Does the "not applicable" category cover those assumptions?
Mr. McBride: No, it does not, not in our reading of the study. The Fraser Institute went through the registry of statutory instruments and included them all. No, the "not applicable" does not cover those.
Ms Jennings: Have you actually undertaken an analysis of the statutory instruments with the proper information and the proper assumptions? Have you analyzed, on a quantitative and a qualitative basis, whether the line departments are, in fact, adhering to the regulatory policy as they should, knowing that, one, the policy does not apply to all statutory instruments; two, that not all agencies are subject to the regulatory policy; and, three, that not all aspects of the regulatory policy apply to all statutory instruments?
Obviously, because of your oversight role, you have the capability, each time a regulatory instrument comes out, of determining whether the regulatory policy actually applies to that particular statutory instrument. Has RAD undertaken that kind of analysis?
Mr. McBride: Based on the information of the Fraser study, we took a look at it and, on a cursory basis, we have done something like that. That is why I make the point that the compliance rate was 98 per cent once we have taken out those three assumptions.
I do not want to overstate that 98 per cent because the Fraser Institute also makes the point that, even though there was technically something there, quality is a second issue. Does a RIAS exist in those circumstances where a RIAS is required? In our estimate, in those time periods, they do exist in 98 per cent of the circumstances.
Ms Jennings: Can you make that study available to the committee?
Mr. McBride: We can provide that information. It would go through the assumptions and set out the numbers that would not have been taken out of the denominator.
Mr. Casey: I would like to know how the system works. Does the RIAS start before the regulations are implemented? Is the RIAS prepared during or after? Is there an ongoing report? Is there a follow-up at the end? Is there a conclusion report?
Please help me with this. The firearms control regulations are very controversial. They are coming in now. At what point does the RIAS kick in? Is there a RIAS now for firearms regulations? Will there be an ongoing one? The cost-benefits one will be most interesting to follow. Give me a parallel between the regulations and the RIAS.
Mr. McBride: The RIAS is a mechanism for consultation. It happens before the regulations are approved. It is an attempt to analyze the point of the regulation, its impact and whom it may affect. It is an analysis done before the regulation comes into effect of its potential effects.
Primarily, RIAS is a consultation tool. It helps give to stakeholders and other parties involved in assessing regulations, some sense of what the regulation is all about and what its impact might be. Therefore, it happens before the regulation is ever passed. It is published in the Canada Gazette. It happens at some point during the consultation period.
When a problem is identified, we should begin to think about how to solve that problem and whether a regulation is the right solution. Then we begin to put in place the ideas that eventually come together in the RIAS. The RIAS is the final documentation of all the thinking that goes on in determining whether a regulation should be put in place.
At the beginning, you would start with some of the basic questions, such as: What is the problem we are trying to solve? At the end of the day, all of that thinking is supposed to be documented in what is called a Regulatory Impact Analysis Statement, a RIAS. That is published with the regulation before it comes into effect. It is not an ongoing tool. It is a before-the-fact tool, not an after-the-fact tool.
Mr. Casey: Is there a RIAS on the firearms regulations?
Mr. McBride: I expect that there is.
Mr. Casey: It is my understanding that, yesterday, the Justice Committee finished its hearings on the firearms regulations. How does that impact the timing of the RIAS?
Mr. McBride: You are picking a specific one on which I do not have detailed knowledge. That is the kind of information that the committee should be examining in terms of assessing the regulation.
Mr. Casey: Are you saying there should be a RIAS for all those regulations now?
Mr. McBride: It would set out the objective and the purpose. It is a mechanism for consultation. It is an attempt to document the issues that people have found important.
The Joint Chairman (Mr. Lee): For the record, in terms of the firearms legislation, Parliament itself specifically required that the regulations be studied by Parliament before they were enacted. That is an exception to the normal rule. Parliament would not normally pre-study a set of regulations.
Mr. Casey: Would that exclude or replace a RIAS?
The Joint Chairman (Mr. Lee): The provisions do not exclude a RIAS. There is likely a RIAS in place which was published when the regulations themselves were pre-published prior to them being submitted to Parliament in this particular exceptional case.
Mr. Mark: As a new member of Parliament and also as a former mayor, I am happy to see that we have a body on the hill which scrutinizes implementation of regulations.
I echo some of the sentiments of Senator Kelly. At the grassroots level, this is a big concern. I do not need to tell this committee that most people in this country feel that we have too many regulations, and we feel helpless, certainly at the grassroots level, with the federal government and provincial governments down-loading to the grassroots governments. The governments make all these regulations. At the bottom, we know it impacts us.
Has anybody thought through how we are impacted at the bottom, socially and culturally? I am glad to see we have a body on the hill to share this concern, and this is why we are here today.
In terms of consultation, I question the meat of the matter. We have had a great deal of consultation on many regulations, certainly with environmental issues, and they have impacted municipalities with millions of dollars of work which they cannot afford to do.
Do you think that full RIASes should be completed before new regulations are implemented, regardless of the department involved?
Mr. McBride: I believe that people should be considering the impacts of their regulations. That should be documented, and that should be the basis for consultation. RIASes should be completed. I do not want to make any absolute rules on regulations because they come in so many forms and address so many issues.
One must be realistic about the nature of the regulation that is being passed and whether RIASes are required. Regulations are sometimes changing "and" to "the" or dealing with a technical issue where a detailed analysis would be nonsensical. The involvement of those who are impacted by the regulations and the provision of information about the purposes of the regulation are fundamental tenets in improving regulatory decision-making.
Mr. Mark: Is there a required manner of doing consultations? Everyone does consultations, but who do they consult and how do they do it?
Mr. McBride: Again, it is hard to prescribe one consultation mechanism that would apply across the whole range of regulations. Regulations in the nuclear industry affect a small subset of people, and they have their own kinds of consultation mechanisms. Things that affect a broad range of stakeholders require a different kind of mechanism.
Departments do many different things. They know their stakeholders; they engage their stakeholders; they write to their stakeholders. At the end of that process, there is a formal requirement for consultation, and that is pre-publication in Part I of the Canada Gazette. That is usually the culmination of a long consultation period that has happened more informally and more directly.
The Gazette is a more formal and final consultation mechanism. It is the catch-all consultation mechanism. If you only publish in Part I of the Gazette, I would argue you have not done a good job of consulting. That is only one tool among many, but it is a catch-all tool to ensure that, at a minimum, at least some consultation is done before the regulation comes into effect.
Mr. Mark: In 1994, when the municipalities were consulted on the Young Offenders Act, we never received a response from government, even though they said they spent, over the course of a year, a fair amount of time consulting municipalities on the Young Offenders Act.
Senator Kelly: Mr. Chairman, this has been a useful gathering. The questions convince me that this committee is apprised of the situation. We must acknowledge that some further thinking must go into this whole question of what must accompany regulations before they become relevant and are applied, because we are a heavily regulated country.
At some later time, I am hoping that I can persuade this large committee to perhaps have a subcommittee to proceed further in examining this issue and arriving at some better solutions, because better solutions must be sought.
I thank the witness. He lived up to my expectations and experience with senior bureaucrats by doing a marvellous job and making it difficult to reach in and get at what we are trying to get at because they are so articulate.
The Joint Chairman (Mr. Lee): Mr. McBride will take that as a compliment.
Mr. White: I return to my earlier issue, which was continued by Mr. Wappel, and which I started calling enforcement but it is really accountability. In listening to all of the answers to the questions here, if a department had made a decision to go through the process of producing a regulation and had the agreement or direction of the minister to do so, it is quite possible that, no matter how much consultation took place, no matter how devastating the cost-and-benefit analysis, in the end, because there is no gatekeeper, a political decision could be made to implement that regulation, no matter what appeared in those analyses. Would you agree?
Mr. McBride: If the question is whether ministers can decide to do things, then, yes, ministers can decide to do things.
Mr. White: You criticized the gatekeeper approach earlier in your presentation. The gatekeeper approach, where the regulations had to meet certain standards before they went back to the minister, would that not overcome part of that problem?
Mr. McBride: Who is the gatekeeper? To put this division in the position of second-guessing a ministerial responsibility has its own flaws in terms of accountability.
Mr. White: That is most enlightening. My final question deals with another statement you made, not entirely on the subject here but relating to something which happened in the previous Parliament when a bill was introduced to supposedly streamline the regulatory process. Part of the provisions in that bill were to eliminate the requirement to publish in the Canada Gazette. You just made a statement that publication in the Gazette is a catch-all tool, and yet you also said that one of the difficult parts of your job is trying to get departments to understand how regulations impact other departments. Would you agree that the contents of that bill would have made your job more difficult and perhaps impossible?
Mr. McBride: My understanding of that bill is that it allowed exemptions from pre-publication where it could be demonstrated that other consultation mechanisms had been well entrenched. I said that publication in the Gazette is a catch-all, but I would argue that Part I of the Gazette is fairly formal and not many citizens read Part I of the Gazette on a regular basis. Many other consultation tools can be shown to be much more effective than publication in Part I of the Gazette.
If no other consultation had taken place, then also giving exemption from Part I of the Gazette would be very troubling. There would be no consultation at all.
Perhaps publishing in Part I of the Gazette is necessary where there has been no previous consultation. Is it necessary where there has been a long and effective consultation process? I think you could argue that, in some circumstances, it is not adding any extra value and it is increasing costs.
Mr. White: Is there not some value in having a Central Registry where everyone can cross-reference and know that a particular regulation exists which may affect their department?
Mr. McBride: I do not think there were any proposed changes in that regard. That bill was proposed by the Department of Justice, and they could speak more directly to it. However, the registering of statutory instruments would not be effected by that. There are a variety of provisions in there about pre-publication, and one also must allow flexibility about the mode of pre-publication, including electronic pre-publication. People can use web sites and the Internet to bring the act up to date. It dealt with changes in the communications technology as much as exempting from pre-publication. It was more the means rather than the end.
Mr. White: Thank you, Mr. McBride. If that bill comes back in a new form, you can expect me to request that you be a witness at the hearings on it.
The Joint Chairman (Mr. Lee): Thank you, Mr. McBride, for appearing today.
Members may want to think about the concept of this committee's role in reviewing regulations and whether or not RIAS compliance has a role to play in our criteria for review. We need not take the issue up today, but we may wish to ask counsel to have a closer look at whether we should be, ex post facto, pretending to be gatekeepers. I think that is what we do in any event.
We will now move to our second item of business today.
Our next witness is Ms Jennifer Moore from the Department of the Environment. Just to get things started, I think it is fair to say that we are dealing here with a phenomenon that lies somewhere between, on the one hand, the absence of speed and, on the other, delinquency. We are somewhere in that spectrum. Ms Moore is here to receive members' questions on the subject.
Mr. Wappel: Mr. Chairman, on a point or order, it was my understanding that the committee specifically requested the appearance of the designated instruments officer.
The Joint Chairman (Mr. Lee): I was just about to ask. Ms Moore, are you the designated instruments officer for the department?
Ms Jennifer Moore (Director General, Regulatory and Economic Issues, Department of the Environment): That is an interesting question. Am I the designated instruments officer?
Mr. Peter Bernhardt (Counsel to the Committee): Ms Moore is the designated contact person whom we refer to as the DIO. That is not an official designation in the departmental hierarchy. That is a title we adopt in this committee to refer to the person we contact.
The Joint Chairman (Mr. Lee): Normally we would allow a witness to make an opening statement. Ms Moore, have you prepared anything?
Ms Moore: I do not have a formal opening statement. I am here at the request of the committee to respond to the delay. There have been some very helpful concerns raised by the committee over the last number of years. Basically, I would like to say there have been delays on the administrative side. There are some legitimate concerns that we need to clean up as soon as possible. I would like to address any questions that the committee wants to raise this morning.
The Joint Chairman (Mr. Lee): The only question is the process that we will use. I think we will first go to members, and then counsel, in addressing the items that are on our checklists. It is fair to say the whole brief is one of significant concern to the committee. You would not be here today, and we would not have set time aside if it was not. The tone of the meeting will take its own shape after we begin the questioning.
Senator Kelly: Was the witness supplied with the brief that sets out in detail the time of requests and the current situation?
The Joint Clerk of the Committee (Mr. Tõnu Onu): A list of the specific regulations was sent. In other words, there is a list of regulations, which has been mentioned, to which the committee is awaiting replies.
The Joint Chairman (Mr. Lee): Thank you. Ms Moore, did you receive a copy of that list?
Ms Moore: I have the letter dated November 27 which asked me to appear this morning to provide an explanation for the delays. Attached to that was a list of special agenda items which identified, item by item, the particular regulations or guidelines over which there were concerns. I received nothing beyond that, though, in terms of a brief.
The Joint Chairman (Mr. Lee): Thank you. That is the list.
Mr. Wappel: You have answered my first question. You received a letter from this committee asking you to appear?
Ms Moore: I did. Unfortunately, I was on annual leave until Tuesday of this week, so it was not brought to my attention until Tuesday.
Mr. Wappel: But you are here.
Ms Moore: I am here, indeed.
Mr. Wappel: What is the date of that letter?
Ms Moore: The date of the letter is November 27, 1997.
Mr. Wappel: We wrote your predecessor, Gisèle Jacob, on September 13, 1994, and got no answer. We wrote to Edward Norrena on March 21, 1995, and got no answer. We wrote on February 13, 1996, and got no answer. We wrote to you on July 4, 1996, and got no answer. We wrote to you on March 4, 1997, and got no answer.
How is that when you get a letter from us asking you to show up, you show up, but when you get a letter asking you to respond to our letter, you ignore it?
Ms Moore: I am not exactly clear as to what regulation you are referring.
Mr. Wappel: Thermal Power Generation Emissions.
Ms Moore: There is correspondence which has come in to our administrative side which asked for responses. That usually involves going back to the program areas and so forth. There have been administrative delays.
I am here to apologize to the committee. When I looked through the dates of some of the letters that have come in, I realized the time has been long. I would say there is no excuse for such a long delay. In that sense, I do apologize because I feel there are some helpful concerns that have been raised here and that we are taking seriously. It is just taking time to respond.
This morning I would like to provide to you a commitment that we will get back to you in a more timely way, in terms of addressing the concerns. I have some information on each of these regulations in terms of where we are at and what the issues are around them, but the bottom line is that it has taken too long to get back to you and I am here to recognize that.
Mr. Wappel: To what do you attribute that lengthy delay in responding to the numerous files? You indicated something about administrative problems. What kind of administrative problems were you referencing? A letter comes into your office and is addressed to you. Do you not see it?
Ms Moore: I see it and I then pass it on to people to follow up and get back to me. There are delays in getting back for a whole host of reasons.
Mr. Wappel: We do not often ask people to come here. It is only in the most flagrant, incredible cases that we ask people to take time out of their day to come to visit us.
My concern with this particular set of files is, generally speaking, the very simple nature of the request. You could come here and you could say, "Well, we got a request that took five years to research." Whether we believe you or not is another matter. However, what concerns me is the extremely simple nature of the requests which have been ignored, not for months but for years.
Let us take the example of the Thermal Power Generation Emissions, National Guidelines for New Stationary Sources. We were told that there has been no answer to simple inquiries which were made on September 13, 1994. Do you take issue with the statement that the inquiries on that file were simple?
Ms Moore: The issue around that particular file is the matter of registration, which requires another submission to council. It requires the work and the effort to put that through the system. It is straightforward; it is clear. We have just not followed up.
Mr. Wappel: So it is a simple request. The request was for a registration number and as to whether or not the process mentioned in your letter is complete. "Here is the registration number. No, it is not complete." So you did not follow up?
This irritates at least certain members of this committee, certainly me. I appreciate the apology, by the way. However, it would have been nice if you had made it before our first question.
What will you do to make sure this does not happen again? What policies have you implemented in your division?
Ms Moore: What would I like to do in terms of moving forward from here? This does date back and I have apologized. I have been involved for a period of time, as well as other people. I would like to develop a clear work plan on each of these items which identifies where we are at in terms of our own system and when we expect to deal it up, so we can finally write you the letter that says, "This is what has been done, and we now consider the file closed."
Work has been going on internally, but we have not reached the point of being able to write back to say where we are at.
In terms of completely addressing the issue, what I would like to do now — and the policy that I will directly implement and for which I will be directly accountable — is to say that eight concerns have been raised in this case. We need a work plan in terms of how we will move forward and where we are. I would like to be able to send that to the committee or to the appropriate person soon.
Mr. Wappel: I do not want to beat a dead horse here. You do realize that this is a joint committee of the Senate and the House of Commons. When we write letters or when our counsel write letters on our behalf, we do expect an answer from departments. We do expect it in a timely fashion. You do understand that?
Ms Moore: I understand, yes.
Mr. Wappel: I take it that you will endeavour to ensure we get a timely response, insofar as you can do so?
Ms Moore: At this point, I cannot endeavour to say it is a timely response in terms of backdating. I have apologized for that on behalf of myself and my predecessors. I will be responsible for what I am committing to do here today.
The Joint Chairman (Mr. Lee): To put forth a foundation for protocol, you also realize that an outright refusal to comply could constitute a contempt of Parliament. Do you realize that?
Ms Moore: Frankly, I had not thought of it in that way, but, yes, I do. Thank you for bringing it to my attention. This is a very serious matter.
Senator Kelly: Mr. Wappel is quite formidable.
Let us deal with this particular letter of September 13, 1994, not to argue that there is not a better way, but perhaps there is. When a simple thing such as a registration number is required, if you wanted to go this instant to get that registration number, where would you go? It must be recorded somewhere. It is probably in someone's computer. You would punch in something and get the number, would you not?
The point I am making is that sometimes we make our work too complicated. If it is a registration number we want, I would ask staff if we cannot walk down the hall and get it? Perhaps we have gotten ourselves into a situation where we write unnecessary letters. There are situations where we must write letters because detailed answers have to be available and there must be a record. However, in this specific case, could you have shortened the route to that information in some way?
The Joint Chairman (Mr. Lee): Senator, would you like an answer from counsel or from the witness?
Senator Kelly: The next question for the witness is this: What do you really think of this committee? Do you think it makes sense?
Ms Moore: Do you want me to answer the question about the registration number?
Senator Kelly: I think it makes a lot of sense, but I cannot believe that you think so, or other people who wait that long to answer. If you really think it is a crock, say so, and tell us why you think so.
Perhaps that is not a fair question. Perhaps I will ask staff. Could we have gone down the hall to get that registration number?
Mr. Bernhardt: It is not apparent from the information here. Perhaps more background would have been helpful.
The problem in this case is that these things were not registered. There is no registration number. They should have been registered and they were not.
Senator Kelly: It was a trick question.
The Joint Chairman (Mr. Lee): It was a "Mr. Wappel" question.
Mr. Bernhardt: The reason we want to see a registration number is to know that these things have been registered. I take it that they have not, as yet.
Ms Moore: Registration should have happened at the time the guideline went through the process, went to the special committee and so forth. It did not happen. For us, it means going through the process again in terms of preparing documentation for our minister to sign off and then to send it forward.
Senator Kelly: That suggests that you really did see it quickly, or at least someone did, and to cover it up, you just did not answer. You could have quickly said, "Sorry, there is no number but we will get one."
Ms Moore: In hindsight, yes. It was a long time before I was around, but it could have been done and was not.
Senator Lewis: Sometimes that sort of letter is written and we know the matter has at least come to their attention.
Ms Moore: Looking through the files on these various issues shows that we waited to reply back until something is actually done. I suspect that we could be more attentive to saying exactly where we are in terms of work in progress, and we have not done that to the extent that we should.
Mr. Shepherd: I am still unclear on this process. I am here as a new member of the committee. The result of Mr. Wappel's cross-examination was that you will get back to us. Is that not what you said? What are the timelines? When do you respond? There has to be a framework with respect to when you will respond.
Ms Moore: That is a very fair question and a legitimate question. I propose that we be given a month. I would then like to come back with information on exactly where we are with respect to each of these areas. We will not have everything finished by then. In some of these cases, we will have to do some omnibus regulations, which will take time. However, I could present a work plan in terms of where we are and when we expect to be able to address these issues. That plan could then serve as an accountability document.
Mr. Shepherd: You are giving us a commitment that by January 1 you will present a document telling us where you are in this process. Is that what you said?
Ms Moore: Yes, that is a reasonable time.
Mr. Wappel: Mr. Chairman, can we make it January 5, because that is a Monday. We do not want to ruin the holidays.
The Joint Chairman (Mr. Lee): I want to point out to the witness that, in all practicality, the House of Commons will be adjourned from the middle of December to the end of January, but the staff is hard at work. Your time commitments are certainly manageable in terms of their point of view. We will stick to that, but the committee will not get back into the file until after the first week of February.
Ms Moore: Understood.
Ms Jennings: I am also a new member to this committee, but taking cognizance of the correspondence and from the response of our counsel, it would appear that the inquiry related to the fact that there were no registration numbers back in 1994.
Ms Moore: This is concerning the thermal power guidelines, yes.
Ms Jennings: How long does it take to get a registration number? You said that once that had been realized, your agency needed to go back and redo the paperwork and submit it to the minister to get him to sign off on it. How long does that take?
Ms Moore: I am told by the expert that it is about three months.
Ms Jennings: Have you started that process?
Ms Moore: In terms of registration?
Ms Jennings: Yes.
There was a letter to you back on July 4, 1996, when you were acting director general — and I congratulate you on your promotion — which specifically refers to the letter of September 13, 1994. It was specifically regarding the lack of registration of the thermal power generation policy. Can you explain to me why you did not initiate that process, which only takes three months?
Ms Moore: I cannot. It just was not done.
Mr. DeVillers: Where would the Thermal Power Generation Emissions Guidelines be registered?
Ms Moore: I understand that they are registered with the Privy Council.
The Joint Chairman (Mr. Lee): I want to ask counsel to walk the witness through the registration process. I believe she said, on the advice from officials with her, that it would take about three months. That is not in keeping with my understanding of the registration process. I will ask counsel to review that with the witness.
Mr. Bernhardt: I do not know that my understanding of the internal process would be any better than yours, but perhaps Ms Moore could take us through the various steps that are involved within her department, starting now, to get this to the point where it can be put in a taxi and sent over to the registrar at the Privy Council Office?
Ms Moore: The steps would be, first, to go to the program area. These are all guidelines and regulations that are pursuant to the Canadian Environmental Protection Act. It would be a matter internally, through our administration — that is, how we work within the department — of going to the people who are responsible for this particular guideline and indicating that when it was first approved, we did not register it and we now need the documentation to do that. It would then involve preparing that documentation, in both languages, and then having that go through our internal department to the minister's office.
As I understand it, this requires a ministerial sign-off. For most of these types of transactions, that is what takes the time, namely, actually getting it through our system.
Mr. Bernhardt: You are talking about preparing the documentation. We already have the French and English text of the guidelines. They were published some years ago in the Gazette. What other documentation would be required to be prepared?
Ms Moore: It would be something that says that this is what the guideline is all about. This is the history of it. Registration was not done. It would then be brought back forward.
Mr. Bernhardt: Basically, it is a covering note for the minister.
Ms Moore: Yes.
The Joint Chairman (Mr. Lee): We are talking about registration of guidelines which are already enacted. Is this not the case? That is to say, this refers to registration of a guideline or statutory instrument that is already adopted in law?
Ms Moore: I am told that an actual order is required for it.
The Joint Chairman (Mr. Lee): For what?
Ms Moore: For the registration, because it was not done at the time the guideline was put in place.
The Joint Chairman (Mr. Lee): Thank you. The item is already law and enacted by the time we get around to registering it. Is that true?
Ms Moore: Yes.
The Joint Chairman (Mr. Lee): It exists in hard copy, in both official languages, signed, sealed and delivered by the cabinet, or the minister, or the Governor in Council, as the case may be?
Ms Moore: Yes.
The Joint Chairman (Mr. Lee): You say that you have to prepare the document. Surely, the document already exists because it is an enacted law?
Ms Moore: Yes.
The Joint Chairman (Mr. Lee): The collating of the document is really just photocopying, is that not the case?
Ms Moore: Yes. It would be a matter of finding it and collating it. It does not exist in electronic form.
The Joint Chairman (Mr. Lee): Surely, the Department of the Environment does not have difficulty finding a regulation that governs an environmental envelope?
Ms Moore: We do have it in our files.
The Joint Chairman (Mr. Lee): If you did not, I am sure the Governor in Council would. Regarding registration, is it not just a matter of forwarding it to the Privy Council Office for registration?
Ms Moore: It is a matter of forwarding it from our minister's office to the Privy Council. It has to go through our system.
The Joint Chairman (Mr. Lee): You are saying that getting it through the minister's office and over to Privy Council takes three months?
Ms Moore: I am told that it is more than a photocopy. Original documentation is required in terms receiving Order in Council approval for it.
The Joint Chairman (Mr. Lee): It will take one day have a typist prepare the original or the computer can spit it out. Whatever it is, surely your three-month estimate is a wildly gross exaggeration of how much time it takes to do your part in registration. If it took the Privy Council three months to register regulations, we would be in serious trouble here as a country. Regulations are meant to be put in place promptly and quickly.
The Privy Council Office registration process can take five minutes, if there is urgency. Are you sure about the three-month estimate?
Ms Moore: Clearly, this is something that is happening four years after the fact. As a result, we must say that this is four years later and this is what has happened. We must give that explanation and that rationale. That is why I thought it would take three months.
I hear your concern. I would commit to the committee to try to speed it up to the extent that we can.
The Joint Chairman (Mr. Lee): All we are really asking is for the Department of the Environment to comply with the law.
Ms Moore: I understand.
Senator Moore: I was thinking about counsel's comment, but you never addressed it. You were talking about the three-month time period, but I was wondering when you thought it was. The chairman has answered that question. You think it is a matter of a week at the most, or it could be one day.
Mr. Chairman, do you think that something like this could be done within one week or within days?
The Joint Chairman (Mr. Lee): Yes.
Mr. Wappel: I did not hear an answer from counsel.
The Joint Chairman (Mr. Lee): Senator Moore was asking counsel how long it might take to register a statutory instrument.
Senator Moore: Concerning, this four-year-old item, how long does it take to clear it up properly?
Mr. Bernhardt: In theory, it can be done in a matter of days. It is a matter of how high a priority the department and the minister are willing to give it. We have seen things done in days when they give it the highest priority. It is hard for me to speak about the internal processes of a department in which I am not involved. In theory, yes, we have seen regulations processed in a matter of days. The committee has seen examples of that in the past. It is possible.
Mr. DeVillers: The registration of this guideline is a requirement of CEPA, is that correct?
Ms Moore: Yes.
Mr. DeVillers: I am getting mixed messages here. It is a requirement of CEPA, the Canadian Environmental Protection Act, that this regulation be registered?
Ms Moore: No. The fact that we have a guideline flows from the Canadian Environmental Protection Act, which provides for guidelines of this sort. The fact that it has to be registered comes from Statutory Regulations Act, but I am not an expert in this. I would defer to counsel on that.
Mr. Bernhardt: Because it is a statutory instrument, the requirement is that if it is published, it must be registered.
Mr. DeVillers: Under the Statutory Instruments Act, is there any penalty for not registering?
Mr. Bernhardt: It is a directory requirement in the sense that it does not render it invalid or inoperative. The department has simply failed to comply with the law.
Mr. DeVillers: There is no provision in the act for failing to register?
Mr. Bernhardt: No.
Ms Moore: I think lack of registration has something to do with enforcement aspects of it. This is a guideline, however, which is a different matter.
Mr. Bernhardt: If it was a regulation, it could not come into force until registered. In this case it is not a regulation, it is a statutory instrument. Therefore, it falls into the other category.
The Joint Chairman (Mr. Lee): Is Mr. DeVillers clear on that? The failure to register would impact on its enforceability but not its validity.
Ms Moore: But this is a guideline.
Mr. DeVillers: Yes. Since it is a guideline, it is not enforceable anyway. I am getting lost in the debate over the requirement to register it.
The Joint Chairman (Mr. Lee): It is mandatory in the Statutory Instruments Act. Every statutory instrument must be registered.
Senator Moore: Could you repeat what you said, Mr. Chairman?
The Joint Chairman (Mr. Lee): The fact that it is not registered would render the instrument or law unenforceable policy. That is my view.
Senator Moore: So non-registration could be raised as a defence?
Mr. Bernhardt: In this case, the consequence would not be that the registration or the guideline was struck down or that it could not be used. In theory, a court could make a declaration that the department was in contravention of the law and order the department to comply. Registration is there for a reason. The regulation is entered on the registry and that helps people to know that these things exist. You can consult the registry to learn what kinds of things you should be aware of under the Environmental Protection Act. The regulation has a number, it is indexed, and so on. Registration is really a reference tool, and it is a legal requirement.
The committee is insisting on the department complying with that legal requirement, aside from the fact that the guideline still stands for what it is, and its validity as such is not affected.
Mr. Wappel: Mr. Chairman, all this talk of regulation is very interesting. I thought the focus of the exercise was to find out why we were not getting answers.
I will turn to something which may be a little simpler than registration; that is, Schedule II to the CEPA amendment.
In November of 1994, Ms Jacob received what I can only characterize as the simplest possible request from Mr. Rousseau. It was simply a request for concurrence between the French and English versions of two chemical terms. It asked two very simple questions about whether the English and French versions corresponded. There was no answer from Mr. Norrena.
Then we wrote to you directly and brought to your attention that no answer was received, and we received no answer from you. I want to draw your attention to two phrases. The first is a phrase in the letter of July 4, 1996, addressed directly to you Mr. Rousseau says:
I take the liberty of emphasizing that I first wrote to your Department concerning this amendment in November of 1994, and have still received no response.
Eight months later, he still has not received a response and he writes to you again. He says:
I would appreciate your cooperation in ensuring that the requested replies are received without delay.
Requested replies to what? To the letter of two and a half years earlier about two simple French-English questions. He says this:
I intend to submit these files to the Standing Joint Committee in early April and would prefer to submit them with a reply from the responsible Designated Instruments Officer. If replies are not available, it will be for the committee to decide how best to secure the requested information.
Obviously, we have had to go to the extent of bringing you here. Do you have an explanation for why you ignored that letter?
Ms Moore: No, I do not. I apologize.
The Joint Chairman (Mr. Lee): Ms Moore, when did you assume your responsibilities in this capacity for the department?
Ms Moore: I assumed the responsibility I have now a year ago. Prior to that, I had some involvement with regulations, but not in the capacity I am in now.
The Joint Chairman (Mr. Lee): Can you tell us who your predecessor was in that same capacity?
Ms Moore: Ed Norrena and, before that, Gisèle Jacob.
The Joint Chairman (Mr. Lee): Our correspondence accurately shows the chain of command over the years.
Ms Moore: Yes, it does.
The Joint Chairman (Mr. Lee): You have been there for a year. Our files in this case go back three and four years. You should be up to speed. We have your undertaking, which I assume is given on behalf of your ministry and your minister, to provide our staff with a work plan to deal with the outstanding matters.
Ms Moore: Yes.
The Joint Chairman (Mr. Lee): You will provide the work plan early in the new year. I think we talked about the first week of January, give or take.
I thank you for coming.
The committee adjourned.