[Recorded by Electronic Apparatus]

Thursday, April 2, 1998

• 0830

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Senator Céline Hervieux-Payette and Mr. Derek Lee (Joint Chairmen) in the Chair.


The Joint Chairman (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, I see a quorum. We have a special item on the agenda, which is the budget. You should have as a supplemental item in your package: the proposed budget for this year.

Far from suggesting that this is a simple, routine matter, it is worth noting that the budget we have is a reiteration, with very modest modifications in the numbers, of previous budgets. Our budget is shared 70 per cent by the Commons, 30 per cent by the Senate, and the overall change between this year's and last year's budget is $5,800. It is in front of you. Are there any questions or comments at this time?

Senator Lewis: Where is that figure of $5,800 shown?

The Joint Chairman (Mr. Lee): That is the difference between last year's total budget of $206,500 and this year's proposed budget of $212,000.

Senator Lewis: Where is the increase? In what item?

The Joint Chairman (Mr. Lee): You will not find it on the materials you have unless it has been distributed. It was provided to me by the clerk as a point of information. You do not have last year's budget in front of you. I have just indicated the difference between the total figure proposed for this year and the total figure for the prior year, which is $5,800.

Senator Lewis: What is the increase? Where does it come in?

The Joint Chair (Senator Hervieux-Payette (Bedford, Lib.)): I will answer that. It is 3 per cent on the salary of employees to match with the rest of the Public Service employees.

Mr. Wappel: Mr. Chairman, when we have a budget, we should have stated and shown on the sheet that we get the previous year's budget as well so that we have some mode of comparison.

The Joint Chairman (Mr. Lee): Good suggestion. Are there any other questions or comments?

Senator Moore: I move we accept the budget.

The Joint Chairman (Mr. Lee): It is moved by Senator Moore that we accept the budget. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Lee): Carried.


The Joint Chairman (Mr. Lee): We will now move to the first item on our agenda, and that is the Royal Canadian Mounted Police Regulations. I should introduce this.

You will all recall that we had, by a resolution adopted at this committee, determined that we would report to the house without a motion for disallowance and that if the offending regulations were not revoked by April 1, 1998, then this committee would consider disallowance. In the intervening period, the Solicitor General had an opportunity to read the report of this committee, he asked to meet with me, we reviewed it, and I had an opportunity to look at the proposals both for, if you will, revocation and change. The proposal that he has involves a revocation and change. The change he has proposed is set out in the letter to the committee from Mr. Scott, the Solicitor General, which has been circulated, and he has put in place everything that he could do. He is in the process of forwarding the written description that I reviewed with him, and which is described in this letter, to the officials for approval and that would then follow the normal regulatory process.

The substance of what he has proposed is shown in the letter here. You will recall that our counsel has advised that legislative items that deal with rights and liberties should not be dealt with by regulation, but rather by statute. That issue is addressed in the second-to-last paragraph of the Solicitor General's letter and we may get into discussion of that later, if you will let me intervene.

Having said that, we will take comments from members.

Senator Lewis: I have not received a copy of the letter.

The Joint Chairman (Mr. Lee): We have a problem. I will just take care of this. The letter that I have referred to is in the process of being circulated unofficially, I suppose, because it is only in existence in one language, and we normally do not officially distribute documents here that are only in one language. The only solution here is to read the letter into the record. The letter is dated March 30 and is addressed to the committee. It was received April 1, too late for translation by our staff for this morning. Can I leave that issue and read it into the record?

Thank you for your letter of February 26, 1998, and the Committee's report concerning sections 56 and 57 of the Royal Canadian Mounted Police Regulations 1988.

First, I would like to acknowledge the considerable amount of thought which is reflected in your Second Report. After reviewing it, I met with Mr. Lee to discuss the Ministry's progress on the development of proposals to replace the existing regulations governing political activity. I am encouraged to note that Mr. Lee was pleased with the substance and direction of my proposals.

At this juncture, I wish to indicate to all Committee members that I am committed to modernizing substantially the regulations governing the political rights of RCMP members. At the same time, we must be mindful of the overriding objective of the regulations which is to ensure the impartiality and neutrality of RCMP members who are invested with broad powers as a consequence of their peace officer status. I intend to revise the existing regime to permit members to seek public office and to provide for the granting of leave for this purpose. The rules governing secondary political activities would also be broadened to permit members to engage in certain other political activities provided they do not publicize their involvement. These secondary political activities would remain subject to the requirement that members be impartial and neutral in the performance of police functions and duties.

In the short term, I believe the regulations should be amended to meet our shared objective of modernization. Certainly in the longer term, amendments to the RCMP Act itself could be considered in the context of a review of the Act.

Shortly, I will be sending a set of proposals I discussed with Mr. Lee to the Department of Justice to be drafted as regulations. Once draft regulations are prepared in both official languages, I plan to proceed in accordance with the normal federal regulatory process.

I trust this will be satisfactory. Yours truly,

Senator Moore: Who signed it?

The Joint Chairman (Mr. Lee): This is a letter from the Solicitor General. He signed it "Andy Scott".

Senator Kelly: This reference to "certain other political activities provided they do not publicize their involvement" seems strange. I guess we must to wait until we see what the amendment specifically says, if indeed he will draft an amendment dealing with that particular part of the issue.

With respect to the question of guaranteeing impartiality, I suppose that raises some kind of monitoring system. I do not know how you safeguard that.

In the top paragraph on page 2, when the minister says, Certainly in the longer term, amendments to the RCMP Act itself could be considered in the context of a review of the Act,T does that suggest that any change in these particular amendments would be delayed pending a total review of the act? What does it mean?

The Joint Chairman (Mr. Lee): I do not want to spend too much of my time talking about this because it is the members who will decide, but on your last point, having seen what was proposed, it was remarkably light and free of impairment of liberties. It was striking in that regard, and I was quite surprised at that. I suspected that there might be a long list of proscribed activities. In fact, there was not.

If we ever got around to making a rule that impaired a political right, there is hardly anything to it. In fact, as I read the rights, they are more in the sense of an allowance of what police officers may do. I even questioned whether there would be a need to go to a statute to regulate the rights, the new rights being as thin on impairment of rights as they appear to be. One would simply have to wait until we saw the red meat here.

Could you repeat your first concern?

Senator Kelly: I would like a clear understanding of what is meant by secondary political activitiesT.

The Joint Chairman (Mr. Lee): The primary political activity was putting oneself forward as a candidate. The secondary was the sign, the badge, the rally and the fundraising.

Senator Kelly: The fundraising comes to mind.

The Joint Chairman (Mr. Lee): I believe that was a secondary activity.

Senator Kelly: You can envisage a policeman in full uniform coming up and tagging you for money.

The Joint Chairman (Mr. Lee): I do not think they envisage police in uniform participating, but if they are not in uniform, there seems to be no restriction. It is quite a change from the previous regulation.

Our legal colleagues in the Department of Justice are having a go at it now, and we do not know what they will add to the issue.

Mr. Wappel: Mr. Chairman, it is very nice that you have had a chance to see what the Solicitor General is talking about; it is unfortunate that none of us have had the same opportunity.

Last week under the rubric of Motions during Routine Proceedings in the House of Commons, Mr. White stood up and moved that our committee's report be adopted. There was debate and he quoted extensively from the report into the record. He did it without notice, so no one knew what was coming. By fluke, I happened to be there because we were scheduled to talk about the Budget Implementation Act. I stood up and suggested to the House that his motion was premature in view of the fact that we had given the Solicitor General until today to respond. As a result, the Parliamentary Secretary to the House Leader moved that the debate be adjourned and that was accepted unanimously. In any event, this issue has been raised in the House of Commons and has been raised extensively with the legal arguments. That is my first point.

Second, we wrote to the Solicitor General on February 26. I think it is an insult for the Solicitor General to write us a letter that arrives after the close of business on the day before the meeting at which we set the deadline. I think that is totally disrespectful of this committee and inexcusable.

Third, if we harken back to what happened approximately a year ago when it became obvious to the then Solicitor General that we were concerned about these regulations — at the 11th hour, admittedly — the then Solicitor General asked to appear before this committee. He appeared before this committee, made his points, and he allowed us to ask questions. The kinds of questions that Senator Kelly just asked could have been addressed by the Solicitor General if he were here, and he is not here. As far as I know, he made no request to appear.

Fourth, the then Solicitor General, Herb Gray, indicated that changes were coming. He indicated that he understood the concerns of the committee and that he undertook that changes were coming. That was almost one year ago. Today we find that the Solicitor General is just now, almost a year later and after our letter of February 26, putting together proposals which have not, as far as I can tell from this letter, been sent to the Department of Justice, but are going to be in the short term, I presume, sent to justice.

As they say, there is many a slip between cup and lip. Well, there is many a slip between department and the Department of Justice. My concern is that even after the Solicitor General's proposals eventually arrive at the Department of Justice, I have no confidence whatsoever that justice officials will agree with what the Solicitor General has to say. In fact, they may attempt to talk him out of it or explain why it should not be the way it has been suggested. The phrase proceed in accordance with the normal federal regulatory processT can be taken as meaning that we will be talking about this file in three years.

We are talking about the fundamental rights and freedoms of people under the Charter. This letter is unacceptable and we should proceed to move disallowance of the regulations.

Ms Jennings: Did the Solicitor General give any indication that a review of the act will occur in the near future?

The Joint Chairman (Mr. Lee): No; he did not.

Ms Jennings: Did he give any statement of opinion regarding our legal opinion that the matter of infringing on Charter rights is properly a matter for Parliament rather than a matter for the minister?

The Joint Chairman (Mr. Lee): Yes, he does accept that principle.

Ms Jennings: In the last paragraph of the letter, he says that shortly he will be sending the proposals to the Department of Justice. Did he give any indication of the time line that it would take to actually send it to the Department of Justice?

The Joint Chairman (Mr. Lee): The sending for blue stamping was assumed to be almost immediate. The return of those proposals from what we call the blue stamping process is what I think he refers to as the normal regulatory process. After blue stamping there is pre-publication and then the regulation goes to cabinet.

Ms Jennings: As everyone around the table knows, this is my first mandate. I am not necessarily familiar with the normal federal regulatory process and the average amount of time one can expect for sending something to the Department of Justice so that they actually approve it, work on it and then it is adopted. Can you give had me an idea of what that would be?

Mr. Bernier: The average time that the Department of Justice uses to review regulations is approximately two months. At times, regulations have been under review for a considerably longer period. However, it can be a shorter period of time if there is enough pressure put on the department for a quick review.

The second part of the normal regulatory process is pre-publication of the regulation as a draft in Part I of the Canada Gazette, followed by a 30 or 60-day consultation period. The department that sponsors the regulation then examines whatever comments have been received as a result of that consultation process. If there is to be a delay, that is where it can occur. At that time, the regulation is back at the department. You will then have a regulation that is ready to be approved but the comments that were received are now being considered.

Concerning how long they will take, if they start amending the regulations as a result of those comments, then they must go back to the Department of Justice for a review. It is hard to give an answer to that question. It varies very much.

Ms Jennings: Is there any possibility that we can actually see the proposals that the Solicitor General submitted to you before we take a decision as to whether or not we want to move on disallowance?

The Joint Chairman (Mr. Lee): I wanted to reply to matters raised by Mr. Wappel. I wish to go off the record at this time so that we can acknowledge the circumstances that I find myself in, namely, where there is a meeting with someone and the information is made known to me. There was no request that I not talk about the contents of our meeting — in fact, there was probably an expectation that I might do so — but, in terms of the actual contents of the regulations, I would prefer that we proceeded in camera at this moment. I would then feel much freer to discuss this matter. Is that possible at this point?

Hon. Members: Agreed.

The committee proceeded in camera.

The committee resumed in public.


The Joint Chair (Senator Hervieux-Payette): I suggest that we postpone further debate on the substance of the matter and call in the minister. We have two options: we can move to disallow the regulations or we can call the minister before the committee at the earliest opportunity to explain his promise to amend the legislation so that we can clear up any misunderstanding. We could invite him to our next scheduled meeting or earlier, if we can find a date that is suitable to colleagues. We are coming up on a two-week recess, therefore we could bring in the minister at the next meeting. That is my suggestion.

Mr. Lebel: I would like the comment on your suggestion. We have seen several ministers parade before the committee. Mr. Gray appeared last year, even though he was seriously ill. This year, we have a new solicitor general or justice minister and we will not know who will be coming and on whose behalf he will be speaking. If representatives of the government party no longer wish to be bothered with this, then they should say so, but there are some fundamental rights at issue here. All kinds of reasons are being found to postpone consideration of this matter. I can understand that it is possible to embarrass one's friends on occasion and that this is not a very pleasant experience. That is one of the reasons why I complained about the joint chairman of the committee representing the government party. Now someone is suggesting that we call in the minister again. We have heard the minister's explanations. Mr. Gray explained the situation to us last year.

Regarding the letter that we received at the very last minute in which the Solicitor General talks about repealing or amending the regulations, which is it to be? If the regulations are repealed, then logically, they cannot be amended. Would you not agree? Or will the regulations be amended first and then repealed? In that case, any amendments are pointless. Someone is attempting to coerce us with this letter, but clearly, there does not seem to be much interest in this matter. We have been discussing this in committee for several years now. We have to make a decision and I see no reason why we cannot do that this morning.

The Joint Chair (Senator Hervieux-Payette): I can understand your frustrations somewhat. Mr. Wappel, who is also a member of the government party, is as upset as you are over how this incident has unfolded. Our Counsel's legal opinion on this matter was expressed so clearly that I even spoke about it outside this forum. On the substance of the matter, there is not a great deal of dissention within the committee.

Far be it for me to criticize my colleague, Mr. Lee, who agreed to chair the meeting to speed up our proceedings. He had no way of knowing that he would be receiving this letter last night, as you said, at the very last minute. He acted in good faith. That is why I am merely suggesting that we call in the minister because most of us would have preferred to speak to him in person instead of getting this letter, a letter which, in my view, has not been received at all. It has not been translated, therefore it does not exist. I would prefer to have the minister attend the next meeting and we could make a decision at that time, if his answers are not satisfactory. As far as this matter is concerned, it makes no difference whether a person is a member of the government party or not. What matters is that we resolve this issue and consider the legislation when amendments are tabled. Everyone agrees that this matter should be dealt with by way of legislation, not regulations. We know that the legislative process can be lengthy. For practical reasons, new regulations would temporarily clarify the situation, since the existing regulations are flawed. If Mr. Scott were invited to attend our next meeting, perhaps we could then make an enlightened decision. That is what I had in mind.


Mr. DeVillers: I agree that the letter is not satisfactory. Given the history of this file, I do not think that a letter saying that they are still working on it is satisfactory. However, I would not favour disallowance at this time because of some of the procedural situations we are into. I say that without criticizing the co- chair.

I read between the lines of this letter almost an expectation that the arrangements and discussions were going to be satisfactory.

I move that we request the presence of the Solicitor General at the next regularly scheduled meeting of this committee in order that we can review this.

Mr. Wappel: I was not aware that the Solicitor General had indicated his willingness to come. Now that you have made me aware of that, I second the motion.

Ms Jennings: I am in favour of the motion, primarily because our legal opinion and our report was very clear.

Any infringement, however slight, of a charter right, is the proper authority of the Parliament and, therefore, this whole issue of that, certainly in the longer term amendments to the RCMP Act itself, could be considered in the context of a review of the act. I would like to hear the Solicitor General as to why he has chosen to continue with a regulatory process which is discretionary. An act delegates power to a minister and in some cases the minister can then delegate again, but very rarely. In this case, the minister is using the power of delegation in order to infringe on charter rights. I wish to hear the Solicitor General as to why, given our legal stance that any infringement, however slight, of Charter rights is the proper domain of the Parliament and, therefore, should be dealt with in the act itself rather than through delegation and regulation, he has chosen to continue using his delegated power in order to move through regulation rather than bring an amendment to the act itself.

That is the crux of the whole matter. I appreciate the chair's opinion that, given what he saw, which turns out to be substantially what is in the third paragraph, that the infringement is so slight as to be virtually non-existent, any infringement is the authority of the Parliament. I would support the motion that we ask the Solicitor General to appear before us.


The Joint Chair (Senator Hervieux-Payette): Let me clarify something. Often, people are temporarily granted the right to associate, therefore the right to form a union. We have the Labor Code and the regulations arising from the Labor Code. When rights conflict and when two laws overlap, one law can be clarified temporarily until the other can be amended. That is the approach I prefer. I do not know if my colleagues agree with me. It is preferable to clarify a provision temporarily rather than to be faced with a legal void that can be even more damaging. It is better to at least have a reference framework.

If my colleagues agree, we can ask the minister to bring along a copy of his draft regulations that have yet to be approved by the Justice Department. This will help us understand the nature of the regulations that he wishes to bring in and it will make his job easier. Legal scholars love to take a roundabout way to arrive at something simple. We can support his efforts. Our committee is the first to demand satisfactory answers on the substance of the question and to seek assurances of legislative changes. This is not something that the minister controls. He can control regulatory matters far easier than legislative ones. We could have the best of both worlds. The minister could bring his draft regulations before the committee, we could give him our opinion of these provisions and our support and let him know if we feel the regulations are consistent with the aims set out in our report.


The Joint Chairman (Mr. Lee): I gather there is a desire on the part of members, or I think there would be at least on the part of staff, to have a look at the draft regulations, if they are coming with the minister, to see them before the minister comes.

Senator Moore: That was my question. When are we going to meet again? If that will be April 23, when we return, if that is the case we should have them earlier that week, not on our desk when we show up here. It is difficult to read and listen.

The Joint Chairman (Mr. Lee): We will ask for that.

Mr. Lunn: I am opposed to the motion for two reasons. I appreciate the position you are put in, but I cannot ignore the fact that it is my understanding that the regulations are one page. I have not had the privilege of seeing them but, more importantly, the Solicitor General has chosen not to deal with this until Monday of this week when we as a committee had written to him on February 26. In that letter we were very clear that if he did not act, that we would consider moving disallowance. If you wish to put any credibility behind those words at all, then you must act.

It is not this committee's problem or your problem, for that matter, that he has chosen to wait until Monday, which means I do not buy at all the argument that there is a problem in the department, that there is a problem in moving the letter. When he wrote that letter on Monday, whatever time on Monday, he knows the time-frame of what he is dealing with and he should have personally walked it over to you, or something of this nature. He has had time.

I do not accept any of those arguments at all. I feel there is a bit of a snow job going on here trying to gloss it over. I appreciate that you are in a difficult position, but it is absolutely not acceptable. You might as well not write a letter like this any more, it has no teeth in it at all. If you will not act, then why say it? The argument that there is a problem in the department getting a letter over here has absolute zero credibility. He wrote this on Monday. Today is only Thursday. Did he write it Monday afternoon? What happened? Clearly, he did not act and he has made that choice and we should either respond or just wash our hands and let him do what he wants, because that is what you are telling him to do. He did not act and that was his choice. I am absolutely opposed and we should be considering disallowance.

It is not your fault, it is his. He had a lot of time to act and he did not. He should have delivered that letter to you. We are just being walked over.

Senator Lewis: Our letter of February 26 said that we would reconsider the possibility of adopting the resolution disallowing these sections. The letter to the minister indicated that the Joint Committee was scheduled to meet on April 2, 1998 and if sections 56 and 57 are still in place, consideration would be given to the need to adopt a disallowance report.

Just for clarification, I am looking at it from a practical point of view, what would be the effect if we file a disallowance report? What we are saying there, I take it, is that we would disallow the regulations and, therefore, there would be a vacuum and there would still be a delay.

Are we not in a situation where if we go along with the resolution that is now being made in the next week, it would appear that there are regulations still in effect but in that three-week period there would be time to get things done?

What did we expect the minister to do as a result of our letter? After he received our letter of February 26, did we expect him to pass new regulations in that time, or did we expect him to repeal the regulations that are in effect? It seems to me that it is much better from a practical point of view to have the minister come here with these proposed regulations which we can then discuss to see if they fit in with our view of the situation, that that would be the better procedure.

Senator Moore: I am quite amazed that it took a year to get this far. There is someone in that department — and I do not think it was Mr. Gray or Mr. Scott — who does not want this to proceed. Mr. Scott's letter is stamped March 30. I do not know when he wrote it. He might have had that sitting around since February 27, I do not know. He stamped it on March 30 and got it to you on April 1.

He had better get a handle on it because this is extremely frustrating. I do not understand why we are putting up with this. It took a year to come up with one page.


Senator Grimard: I am looking at the letter that we sent on February 26. The final lines on page 1 read as follows and I quote:

We were instructed to state to you that the Joint Committee is scheduled to meet on April 2, 1998 and if sections 56 and 57 are still in place at the time, consideration will be given to the need to adopt a disallowance report.

Initially, I was prepared to blame Mr. Lee earlier for not agreeing to call the Solicitor General before the committee today. I think Mr. Lee was correct. If we want to be logical as far as our letter of February 26 is concerned, we did not ask the Solicitor General to appear before the committee on April 2, but rather we informed him that if by April 2, sections 56 and 57 were still in place, then we would consider adopting a disallowance report. The issue today is not whether the Solicitor General will be meeting with us today, since we never made such a request of him in our letter of February 26. Our actions must be consistent with our words. We wrote that if the two provisions were still in place, we would consider disallowance. I am opposed to the motion made earlier. It is contrary to the contents of our letter of February 26.

We have been debating this issue long enough. We must be logical in our actions or we will not be taken seriously by various other government agencies.


The Joint Chairman (Mr. Lee): As your chair, I would do a small rebuttal to Mr. Lunn's comments. Mr. Lunn suggested the Solicitor General did nothing until March 30. However, Mr. Lunn has failed to take into account that the Solicitor General has done everything he could to revoke and replace the regulations. That process is ongoing. In addition, the Solicitor General asked to meet with the co- chairs to review what he was doing so they could be aware of exactly what he was doing. He showed and made available the draft of the regulations and then said he would write to the committee to explain it. The letter is admittedly weak on what the committee would like to have benchmarked as progress. However, it is not correct to say the Solicitor General did nothing until March 30. In fact, he did everything he could and met with the two co-chairs to review the progress.

Having said that, we have a motion on the floor to ask the Solicitor General to attend. Although it is not part of the motion, we would consider a friendly amendment here to provide an advance copy of the draft regulations to counsel prior to the meeting.

Hon. Members: Agreed.

The Joint Chairman (Mr. Lee): All in favour? Opposed? The motion is carried on division.

Mr. Wappel: We want to nail down exactly when the Solicitor General is coming.

The Joint Chair (Senator Hervieux-Payette): We have other witnesses at the next meeting. If you agree, I do not mind if the meeting is a little longer and we spend an hour each with the agriculture group and with the Solicitor General. Or we have two separate meetings. It is up to the committee members.

Mr. Bernier: There is a possibility of adding a meeting on April 23. The Canadian food inspection people are scheduled for April 30. There are a number of files with them and I am afraid it may run substantially more than one hour. April 23 is available if the committee wishes to see only the minister on April 23.

Senator Lewis: It might be better to have two meetings.

Mr. Wappel: The next question is whether he is available. You recall when we tried to get the Minister of Justice here; he was never available.

I should like this item brought up at every single meeting that we have, as the first item of business, until we resolve it.

The Joint Chairman (Mr. Lee): That is easily arranged. We will attempt to get the Solicitor General here on April 23. If that fails, we will continue to raise this item at each meeting until we get a date, although I am fairly confident.

Mr. Wappel: If we raise it at each meeting, we may decide not to have a date because we may be frustrated.

Senator Moore: What about the matter of disallowance? What shall we do with that? Whether the minister is here or not, we do not like what we have in front of us now. Why are we not disallowing that? He can come and explain the new deal, whatever it is. I do not understand what we are doing here. They are two separate things. If we are going to keep doing that, I will stay home.

The Joint Chairman (Mr. Lee): Do you have a proposal, Senator Moore, as to what you think we should do to further this?

Senator Moore: Yes. We should disallow. That is what we said we would do in the letter. This has been going on and on.

Mr. Lunn: May I make a motion?

Senator Moore: There is no credibility. It is just going out the window here. There is no reason why something should not have been done before this, Mr. Chairman, no reason at all.

The Joint Chairman (Mr. Lee): I have indicated to members that the Solicitor General has done everything that he could have done up to now to change these regulations.

Mr. Wappel: That is your opinion. That is not my opinion.

Senator Moore: I am not commenting on this particular Solicitor General. I am saying the process is absolutely unacceptable. If you were doing this in your law office, your client would have you before the Law Society.

The Joint Chairman (Mr. Lee): Excuse me?

Senator Moore: If you were doing this in a law office and it was being dragged out constantly, your client would probably have you reported to the bar, wondering what you were doing with the file.

The Joint Chairman (Mr. Lee): If the Solicitor General were here today, what would we ask him to do that he is not already doing?

Senator Moore: What would we ask him to do?

The Joint Chairman (Mr. Lee): What would you tell the Solicitor General that he should do? What new course of action would you urge upon the Solicitor General?

Senator Moore: I do not think the course of action is anything new. It is to get it done. It has not happened. Why has it not happened? Take charge of his department and get it done; that is what I would instruct him to do. I will do that when I see him next.

Mr. Wappel: I would suggest we ask the Solicitor General to walk out that door and revoke those two regulations and put new regulations in place as soon as possible. We do not even know if he agrees with our letter.

Mr. DeVillers: That is why he is coming.

Mr. Wappel: That is exactly why he is coming and that is what we will ask him.

The Joint Chairman (Mr. Lee): Let us seek that assurance because I understand that is exactly what he is doing now.

Mr. Wappel: There is nothing in the letter which says that the committee's opinion is correct and that he is moving on it.

Mr. Lunn: I would like to make a motion. We have a motion to have the Solicitor General come before the committee. That is all well and good. However, I also think there is nothing precluding us from making a motion at this point in time to disallow, as we stated, and that will make someone take notice. We can still move forward. There is absolutely nothing preventing us from doing both. I would move then that we disallow as we stated in our letter dated February 26 and that we also ask Mr. Scott to come forward and tell us what he will do to get this matter going.

Mr. Bernier: The motion to disallow must be in a report. There would have to be an instruction for us to draft a disallowance report. You cannot just move disallowance. We need the text in front of the committee.

The Joint Chair (Senator Hervieux-Payette): It was my suggestion to call the minister before we disallowed it. Even if we have the minister appear, he will proceed with the new regulation, it will go through, and we can disallow the second regulation at a later date. They are two separate things. If we were satisfied that the new regulation is there, we would save the disallowance procedure. He is not in a very good negotiating position on the date, and I feel that if I were convincing enough to ask him to come at the next meeting on April 23 or April 30, I would say that I would prefer that. If he does not show up by the end of April, then we can still do the disallowance and have the vacuum and he can proceed. Why should we meet with the minister and spend time with him if we have just scrapped the two regulations? The rest of it is in his hands. We do not ask every minister who drafts new regulations to appear for regulations because we would be sitting here all week long. We are trying to ensure that there will be something in place on the day that the other regulations disappear, instead of having a vacuum. I just wish to clarify that for the members. The motion to ask the minister to appear was to ensure that there would be regulations with which we agree, and we would proceed with that. Then the disallowance process would not have to take place because we would be satisfied that the regulation replacing the other one would be fine. I have the same concern that you have on the time-frame. He does not have a lot of time in his pocket. I regret that I had not attended my colleague's meeting. I would have preferred that the minister appear, especially after reading the letter. I trust that Mr. Lee was in good faith and telling us the truth when he says that it is a clear-cut regulation. I wish to clarify that. I understand we can vote on the motion.

Mr. Lunn: I will withdraw the motion, but I would like our displeasure and frustration made clear in your letter to the minister with regard to what is going on and the timing of what has happened. On April 23 or April 30, if there is no regulation, there will be a motion to disallow.

Senator Lewis: If I may make an observation: I notice that this matter actually was before the committee in October 1990, which is when it started, apparently. That is not correct on the agenda.

Mr. Bernier: Senator, it is correct on the agenda. You must go back in time. When the regulation was first looked at by counsel, we quite honestly thought it was fine. We did not have at the time the benefit of some of the case law which later occurred. We reviewed this for the purposes of the Constitution in light of the Osbourne decision and later case law in the Supreme Court in late 1996. The constitutional issue goes back to 1996, we should say.

Senator Lewis: So it is not really as long as we might have the impression.

The Joint Chairman (Mr. Lee): Let us move on from there. Suffice it to say that if I had had the letter before I dealt with the minister's offer to attend, I might have reconsidered, but the letter came in after that offer was made.

The Joint Chair (Senator Hervieux-Payette): Will you please explain the next item?


Mr. Bernier: Regarding Form of Proxy Regulations, Madam Chair. The correspondence flows from the February 26 meeting of the joint committee at which time members expressed a degree of concern with the progress of this file. In his letter of March 13, Mr. Palmer indicates that his office has now decided how it will revise these regulations. They have been looking at three possible options, and they have now selected one. That will be a referential incorporation of the similar provisions found in the Canada Business Regulations. Mr. Palmer states that the new regulations will be in place in the fall of 1998.

The question is now whether the committee is satisfied that there is sufficient progress here.

Mr. Wappel: I think we could perhaps just bring it forward in the fall and see how things are going. This is a commitment to have regulations by the fall, so that is pretty good.






(For text of documents see appendix, page .)

The Joint Chair (Senator Hervieux-Payette): The next item on our agenda is New Instruments.

Mr. Jacques Rousseau (Counsel): Madame Chair, regarding SOR/96-209, SOR/91-179, SOR/94-204 and SOR/95-310, as explained in the comments, a number of problems were raised in correspondence exchanged over three amendment to these regulations. The regulations in question have now been repealed and therefore the problems raised have been resolved. There is no need for the committee to follow up any further on this matter.


(For text of documents, see appendix, page .)

The Joint Chair (Senator Hervieux-Payette): Are there any questions? The next item on the agenda is General Enterprises Limited Placer Mining Regulations, SOR/94-758.

Mr. Rousseau: Regarding SOR/94-758, the department has acknowledged that the current wording of the enabling clause pursuant to which these regulations were adopted leaves something to be desired. It has promised to request an amendment to the legislation. Counsel will continue to monitor this file and to keep the committee apprised of any progress made.



The Joint Chair (Senator Hervieux-Payette): Are there any further questions? Next item.

Mr. Rousseau: Regarding SOR/95-423, the department acknowledges that there are some drafting errors in these two instruments, but points out at the same time that the program came to an end in March of 1998. Therefore, there is no point in correcting these errors. In fact, the committee can close the file on these regulations once they have been repealed, but for the time being, Counsel will continue to monitor this file.


Mr. Wappel: Are we talking about the retirement compensation arrangements? Yes. I am not happy, Madam Chair, with Mr. Harder's observations about regulations. If you look at his letter of October 21, you see his attitude: amending the regulations is pretty expensive and drawn out and, since we do not have too much money, I guess we will not be too concerned about that sort of thing.

That is a rather cavalier attitude from a very senior bureaucrat. I do not know how much we can do about that except follow up with a letter. Am I reading the letter wrong?

Mr. Bernier: I think you are reading the letter correctly, Mr. Wappel. If what you read is all that we had, it would quite likely have appeared under the rubric Unsatisfactory for the very reasons you mentioned. In this case, we are also dealing with a program that ended at the end of March 1998. There is really nothing to pursue unless the committee wishes to offer comment on those.

Mr. Wappel: Perhaps counsel could keep Mr. Harder's name in mind and watch for the next letter.

Mr. Bernier: Our files are constantly on our minds.


Mr. Bernier: The committee's objections to these regulations were made known to the responsible department in 1983. At issue are sections which grant overly broad discretionary powers, as well as a provision that seeks to impose a statutory liability for damages without proper statutory authority. As early as May 1983, the committee was told that it was the intention of the department to revise the regulations in the near future — in the very near future.

If I can jump forward to the 1990s, the department advised that they were considering simply revoking the regulations. That revocation, in turn, was delayed because it was decided that, before revoking the regulations, reindeer had to be included in regulations made under the Wild Animal and Plant Protection Regulation of International and Interprovincial Trade Act. As of last December, Environment Canada had been unable to accommodate the request of the Department of Indian Affairs for this inclusion of reindeer in their regulations, and this is where the matter stands.

Mr. Wappel: I have two comments, Madam Chair. I thought it was rather amusing that a Mr. Stagg is writing about reindeer regulations.

Second, I thought perhaps we in this committee might wish to act as facilitators, if I can put it that way, because it would appear as if the two departments are not communicating. I was thinking that if we perhaps invited the appropriate officials from both departments to attend before our committee at the same time, that might just jog them to talk a little faster before they get here. Indeed, they may not want to get here and it may cause them to come to an accommodation.

I am not thinking about April 23 or April 30. However, if we suggested that if the two departments cannot resolve this matter by the end of May, we would ask the appropriate officials from both departments to attend and explain their positions, that might facilitate discussions between the two departments.

The Joint Chairman (Mr. Lee): Are we aware of why the reindeer are having difficulty finding their way into this other regulation? Noting Mr. Wappel's comment on Mr. Stagg, I thought of Rudolph the red-nosed reindeer to lead them out of the darkness, and my comment is, Rudolph, come back, all is forgiven.T However, we do not know why they are unable to get the reindeer into the package.

Mr. Bernier: No. Perhaps, tying in with Mr. Wappel, would the committee feel it useful to have the chairmen write the Minister of Environment given that is where the problem seems to be right now, with a copy to the Minister of Indian Affairs, asking the minister to do what the minister can to move her bureaucrats, and also informing the minister that should this not have progressed in three or four months' time, then the committee would invite the appropriate civil servants?

Mr. Wappel: From both departments.

The Joint Chair (Senator Hervieux-Payette): I accept that.


Mr. Bernier: Section 55.1(b) and (c) of the Canada Pension Plan now provides regulatory authority for section 44(2) of these regulations following passage of Bill C-2, and the next step will simply be a re-enactment of section 44(2) of the regulations, which is promised for this year. With the committee's agreement we will follow up on this in a month or so.

Hon. Members: Agreed.


Mr. Bernier: The department had referentially incorporated a standard that contained a number of errors and other objectionable provisions.

Once those were drawn to the attention of the department, it adopted a revision of the standard which corrected those various matters, but that revision was not available in the French language at the time, and it is still not available in the French language. Due to the absence of a French version, the standard cannot be enforced for constitutional reasons. While on their face the current regulations purport to provide for enforceability of that revised standard, the department has provided an assurance that it will not enforce the revised standard but will continue to rely on the 1978 version which was published in both French and English.

By way of background, this revised standard itself was scheduled to be replaced with an entirely new standard for recreational vessels early in 1998. I suppose at this point a letter should go to the department asking whether that has occurred and, if not, then the committee can advise on what it wants to do as the next step.

The Joint Chairman (Mr. Lee): Agreed?


The Joint Chair (Senator Hervieux-Payette): Agreed?

Some Members: Agreed.



(For text of documents, see appendix, page .)

Mr. Bernier: As the comment indicates, this instrument makes nine requested corrections to the Public Service Superannuation Regulations. As for SOR/97-490, the correspondence reveals that a new amendment has been promised to section 18 of the French version to correct an error. An explanation has been provided about the operation of section 33. Counsel will monitor any progress in terms of amending this provision.

Regarding SOR/96-18, this instrument had not yet been submitted to the committee. It is one of the instruments corrected by SOR/97-490.






(For text of documents, see appendix, page .)

The Joint Chair (Senator Hervieux-Payette): Is everyone agreed? Under Action Promised, we have SOR/96-404.


Mr. Rousseau: With regard to the instruments under Action Promised,T a total of six amendments have been promised to these regulations.


Mr. Rousseau: If we look at Action Taken,T there is one instrument, and one amendment has been received.


The Joint Chair (Senator Hervieux-Payette): Agreed?

Some Members: Agreed.


The Joint Chairman (Mr. Lee): I want the record to show that there were some roughly 50 statutory instruments disposed of without comment.

The committee adjourned.