[Recorded by Electronic Apparatus]
Thursday, November 26, 1998
The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:40 a.m. for the review of statutory instruments.
Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.
The Joint Chair (Senator Céline Hervieux-Payette (Bedford, Lib.)): We will now proceed with the agenda. I am happy to join my fellow joint chairman, Mr. Grewal. I wish to thank his predecessor who did a good job while I was away with the Banking Committee.
The Joint Chairman (Mr. Gurmant Grewal (Surrey Central, Ref.)): It seems we have a delicious agenda today dealing with chickens, eggs and wheat. The first item, though, deals with the Royal Canadian Mounted Police Regulations.
SOR/88-361 — ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988
The Joint Chair (Senator Hervieux-Payette): This is probably the most delicate SOR topic. I do not think there will be a long discussion on other subject matters. Perhaps my co-chairman would like to hear reactions from the other members since this is one of the major topics upon which this committee was reflecting and which has been discussed with the minister. What do our colleagues think of the new RCMP regulations? The committee will wish to convey this to the new minister.
Mr. Lee: The committee's previous efforts recognized the unconstitutionality of some provisions, and we focused on getting the Solicitor General, the Royal Canadian Mounted Police and the government to change the regulations. We are now in the middle of that process. I had the benefit of reading the memorandum prepared by counsel for today's meeting. I thought it was a useful listing of issues that arise from a scrutiny of the new draft regulations. Perhaps others would benefit from reading it as well. This committee may not need to take a specific stand at this point, subject to colleagues' input.
However, having read the new regulations and the memorandum of counsel and recognizing that we are in a pre-publication phase, this is an excellent time to communicate concerns like those contained in counsel's memorandum, to the RCMP lawyers. Depending on how discussions go this morning, we may consider just sending on the memorandum in its current form because I think it is quite good. It would be useful to anyone who has this file on his or her desk.
Ms. Jennings: I have some serious reservations about the regulations as presently worded. I am very pleased with counsel's letter and I agree with the questions raised. It confirms my reaction when I read the proposed regulations. The issue of the constitutionality of these regulations has not been resolved. When the minister testified before the committee in May, as I recall, two possible solutions to the problem were considered: on the one hand, the regulations could be amended in the short-term, while on the other hand, a legislative amendment process could also be undertaken at the same time. I have seen no indication from the minister that the second course of action is being pursued. These fundamental rights are protected by the Charter and to my knowledge, the minister is not recommending any legislative amendments. That is my first concern, namely that both courses of action are not being considered.
The proposed regulations continue to be an unwarranted violation of fundamental rights. Like the former regulations, these are open to being challenged before the courts and there is a strong likelihood that they would be found unconstitutional and an unreasonable infringement on fundamental rights.
Consider, for example, the restrictions placed on a member of the RCMP who wishes to run for office in the municipality in which he resides, a municipality that is outside his geographical area of jurisdiction. According to these regulations, that RCMP member must take an unpaid leave of absence to run for office and in the event he is elected, he must resign from his position with the force. That is extreme.
It has been noted that OPP and QPP regulations contain no such restrictions. In the case of one of these two provincial police forces, a person cannot be compelled to resign if elected to office.
I have a number of questions that I would like to address. We have reached the pre-publication stage at which all of our concerns can be conveyed to the Solicitor General. It remains to be seen how the Solicitor General chooses to respond to our concerns. Other parties interested in this matter will be making representations.
If the proposed regulations are allowed to stand, in my view, they would be unconstitutional. The committee would then have to discuss the process of disallowance.
Ms. Venne: I would like to ask our counsel, Mr. Bernier, if he has had an opportunity to familiarize himself with the opinion he received yesterday from Mr. Julius Grey. If so, would he care to share his views on the subject with us?
Mr. François-R. Bernier (Senior Counsel): As you pointed out, we only received this opinion yesterday and we have therefore not had the time to review it. Briefly though, we have noted that it concurs with some of the suggestions in our note to the committee. However, I cannot be more specific at this time.
Ms. Venne: You are not prepared to give us your opinion of these recommendations which state that in many cases, there is no conflict of interest, that no restrictions should be imposed, etc. and that some provisions may even violate individual freedom of expression.
Mr. Bernier: To a certain extent, there is a some similarity between these opinions and what we proposed. For example, one overly vague provision in the proposed regulations could create some problems.
The very fact that this provision is vaguely worded could in itself be grounds for finding it unconstitutional. Mr. Grey also raises a concern that is also shared by the committee, namely the question of an officer holding municipal office on a part-time basis in a jurisdiction other than that in which the officer works. Would this really amount to a conflict-of-interest situation? It would appear that as far as the Ontario and Quebec provincial police forces are concerned, such a situation would not really pose a problem. The officer would be granted leave without pay, or in some instances, the officer would be allowed to hold office without having to take leave without pay or having to resign.
When a person is told that in order to exercise a charter right, he must resign and give up his salary, this condition has to be viewed as imposing some limitations on the free exercise of that charter right. Is this condition on the exercise of rights guaranteed under section 1 of the charter reasonable and justified, in the eyes of the courts?
Mr. Wappel: I should like to ask counsel about something that Mr. Lee said. We encouraged the lawyers for the Solicitor General to work with our counsel in drafting regulations that would meet not only the test that the court laid down subsequently but all our criteria.
I should like to know if that occurred.
Mr. Peter Bernhardt (Counsel to the Committee): I do not believe there was any exchange with legal counsel for the Solicitor General. I gather they took the committee's comments home with them following the Solicitor General's appearance and worked up these new proposed regulations and forwarded them to the committee shortly before they were pre-published in Part I of The Gazette.
What we got was then the minister's letter to the joint chairmen together with a copy of the proposed amendments. I believe we received that a few days before they were pre-published in the The Canada Gazette.
Mr. Wappel: That is precisely the point. That is what we encouraged. We offered the expertise of the counsel of this committee to the Solicitor General to help the Solicitor General's lawyers draft regulations that would meet our approval. The Solicitor General's counsel, it would appear, chose not to accept our invitation. We are now left with regulations that other members have problems with and which, charitably, we could say, are arguably unconstitutional.
The court in Quebec gave the Solicitor General until January 1 to replace these regulations because the other ones are unconstitutional. Presumably, this is the time frame that the Solicitor General is operating under. We will find that these regulations will be the regulations as of January 1, 1999. I am not sure of the exact timing because of when it was published. They will then be back in front of us again with their memo. We will then have to start all over again with a new solicitor general and all the delays that are associated with that. We will be back to square one. That is exactly what will happen.
To some degree we must lay the responsibility on the shoulders of the Solicitor General's lawyers who failed, based on what I have heard, to take the opportunity to sit down with our counsel so that we would not have to receive a memo like this. There was enough time because we allowed them enough time.
Having said all that, what do we do?
The Joint Chair (Senator Hervieux-Payette): Do you wish to make a recommendation? Let us say that we have a fresh start and we start with a new solicitor general. Perhaps we could send a memorandum conveying our recommendations, our interest in working with them and the offer of the services of our team. This way, we will avoid difficulties when the regulations with amendments are published.
Would you like to go in that direction? It is up to the committee to decide. Sending a piece of paper giving our comments, like any one else, may not be effective. We will be the ones receiving the regulations. From what you say, I think we should try to make that offer again.
The Joint Chairman (Mr. Grewal): I do not know how we extend such offers normally. Are they verbal offers or do we do it in writing so that we have a legal right should the Solicitor General not wish to cooperate?
Mr. Wappel: My memory is not perfect, but my recollection is that the Solicitor General was sitting there and his counsel was sitting beside him. Someone on this committee suggested that we make use of our counsel and they said, Thank you, we will, or something to that effect. I suppose the transcript will speak for itself. That is how I recall it.
There was ample opportunity and it was my belief that they would do just that, namely, draft regulations, call up Bernier and company, sit down with them and say, Here is what we have come up with. Could we have your comments on it?
That is not to say that they would have to accept the comments, but from what I gather, even that much was not accomplished. They are continuing to work in their own area without the benefit of the expertise that we have developed in this committee over a period of time struggling with this issue.
I do not know what to do with this situation. The court has already declared the two sections unconstitutional, which was our position before the court came to that conclusion. However, now we will be in the same position in our first meeting whenever we return.
I am at a loss other than what, perhaps, the co-chairman says; namely, that we suggest that the Solicitor General's lawyers sit down with our counsel and review this memorandum and either make some response to it or come back with some suggestions. Otherwise, we will be back in the same position at the first meeting in February as we are today, recommending disallowance.
I am so frustrated now, it is difficult to know what the proper answer is. Perhaps what the joint chairman suggested is the proper route.
Mr. Bailey: I am new to the committee but not to this issue. I am going back more years than I care to remember in my various occupations, particularly in working with the Royal Canadian Mounted Police.
I know of the limitation vis-à-vis school boards, provincial boards and so on. A sergeant I was speaking to the other day said that this is contravening what you have here, and so on.
Mr. Wappel is saying that what we have here has been declared unconstitutional. What are we supposed to do now, rubber-stamp it? Something has been declared unconstitutional. Then it shows up again and we must back the vehicle up and start all over again. If we must do that, let us do it right the second time.
To me, this thing, with the limitations it imposes upon people, belongs in the 19th century. I think it is entirely unfair to the Royal Canadian Mounted Police to put them back in this position. This is incomprehensible. This is not right at all. I suggest that we start over again. I agree with Mr. Wappel.
Mr. Saada: I would like to remind the committee that as Parliamentary Secretary to the Solicitor General, I am here to listen, not to intervene. However, I do have two comments that I would like to make.
Firstly, following up on Ms. Jennings' comments about possibly bringing in legislation to cover this matter, as I recall, in the Solicitor General's letter to this committee, the possibility of bringing in legislation was not discounted. No actual legislation has been tabled, but this remains an option. I simply wanted to point that out for the sake of clarity. I am talking about the process, rather than the substance of this matter.
Speaking of process, with all due respect, Mr. Wappel, I would like to clarify something. The process calls for some consultation, which means that there is always the possibility of making some arrangements if consultation leads to some tangible results. Let me simply say that I hope that the committee can come up with some useful recommendations that could possibly be implemented.
Ms. Jennings: In May, we discussed the possibility of disallowing the regulations. The Solicitor General came before the committee, took note of all of our concerns and questions regarding each regulatory provision and argued that the best course of action would be to amend the legislation, given that the current process is much too unwieldy. We could start with the regulations and eventually, move on to amend the legislation.
I contend that the proposed regulations address virtually none of the concerns that we brought to the Solicitor General's attention. I understand that this is the pre-publication phase of our consultations, but as far as consultations at the committee level are concerned, I feel these should have taken place prior to the publication of the proposed regulations. The Solicitor General did not reveal his plans when we suggested that his legal advisers and ours worked together to arrive at a consensus on this matter.
This is not to say that a consensus would have been reached on each of the issues in question and that once we received the final version of the regulations that the Solicitor General intended to publish to initiate the public consultation process — pre-publication entails a number of legal proceedings.
The committee might then have had an understanding of some of the provisions in the proposed regulations as they pertain to the issues in dispute. We would have heard the Solicitor General's arguments and reasons for bringing in these regulations and discovered why, despite the views of our counsel, specific provisions were worded this way. As things stand, we have been presented with a series of proposed regulations and it is clear that in many respects, they completely fail to address our concerns. In some instances, they raise new concerns and the rationale behind the Solicitor General's action is unclear.
When I say the Solicitor General, I am referring to his legal advisers who might be able to explain to us to why these regulations are drafted this way and why this is considered a reasonable constitutional limitation in a democratic society, in accordance with section 1 of the Charter. Had we known their reasons for drafting these regulations this way, and had the necessary legal precedents been supplied, we could have countered with our own legal opinion. However, they did not explain their reasons to us.
Given the January 1, 1999 deadline imposed by the Quebec Superior Court, the Solicitor General is, I suspect, in somewhat of a bind.
The Joint Chair (Senator Hervieux-Payette): Are there any further comments? A consensus seems to be emerging.
I can see that my colleagues want to be part of the process. It would be important to know if all of you are in agreement with the memorandum prepared by our staff. If you are, it could be a working document for them. It would convey to the minister the message that our people are willing to work with the Solicitor General's legal advisors so that our point of view will be conveyed before he returns with his final regulations.
We can expect that sort of treatment for our committee, since we have worked quite closely with the Solicitor General in the past. We can also convey our concerns to the new Solicitor General.
Is it agreed?
Mr. Lee: I am certainly in agreement with what you propose, Madam Chair, but I want the record to be fairly crisp for anyone who might read it. In the past, these regulations have had to meet a constitutional test measured by both this committee — that is, Parliament — and the courts, which is reflected in the consultation document which refers to both. Similarly, whatever they are proposing now will continue to have to meet whatever tests Parliament puts to it or what the courts may put to it.
Those with whom we are consulting now, if I may use that term, and to whom we will probably be forwarding the memorandum prepared by our counsel, should be aware that to the extent that their accommodation of the Charter will not be sufficient in our view, they may well be looking at another rerun of a report and/or disallowance. I do not want to pre-judge that; but I note that nowhere have I been able to read the department's view or justification of the encroachments on the Charter rights that are noted in the memorandum. I should like to have an opportunity to do that. Undoubtedly, either sooner or later, we will have that opportunity.
The Joint Chair (Senator Hervieux-Payette): Let me clarify something. I do not expect the clerk to convey in our letter that we are prepared to bargain and conduct a give-and-take session. We are entering into the process to convey the preoccupation of this committee. We will not lose one single right if we do not agree with the final decisions.
We are not asking for a meeting with the Solicitor General and his assistants, but merely offering to share our expertise and pass along the committee's views to the experts. We simply wish to discuss the legal merit of this document.
There would not be any courts at all if everyone were in agreement from a legal standpoint. Is that not right? That is why we have courts because two interpretations are always possible. I believe we can help the minister move forward on this matter by offering to participate in the process. In any event, Mr. Saada will surely be conveying our concerns an offer of assistance to the Solicitor General. We will see what transpires.
I realize that Mr. Saada cannot accept our offer on behalf of the minister, but the offer does stand. We will pass along the brief drafted by counsel. I am assuming that those present here this morning concur with the general content of this working document.
A letter will be prepared for the signatures of Mr. Grewal and myself that will convey that message to the minister.
Is everyone agreed then? Are there any abstentions?
Mr. Bailey: I have a question, Madam Chairman, regarding the process. I want to be clear on this. On January 1, 1999, the regulations will become law. If we do not take action before then, it could go to Parliament before it gets back to this committee. Is that correct?
Mr. Bernier: If a new regulation or new legislation is not in place on January 1, 1999, the current regulation 57 falls. It becomes illegal. That decision of illegality will operate as of January 1, 1999.
I might add some background information. It is always open to the Solicitor General to go back to the superior court and ask for an extension of time, if that is needed. That was done in the Manitoba reference where they had to translate their legislation, and the Supreme Court extended that deadline on, I believe, at least two occasions. That option is available. The date is in the judgment, but it is not cast in concrete. It is not reinforced concrete, at any rate.
Mr. Bailey: Will that then be the recommendation of this committee? I would think so.
Mr. Bernier: It would be up to the Solicitor General to say that.
The Joint Chair (Senator Hervieux-Payette): I think it would be premature to say that because I am hoping that it will be replaced by suitable regulations prior to that date. I do not want to presume what will happen over the next couple of weeks. I merely want to give an opportunity to the minister to finalize the new regulation. If we disagree, we can start all over again, but I believe there is good will and I hope that our exchange will produce a fruitful discussion and a conclusion.
Mr. Wappel: I want confirmation that this matter will be the No. one special agenda item at the next meeting, as per usual, so that we can monitor progress, and that it will be right in front of our faces at all times?
The Joint Chair (Senator Hervieux-Payette): Yes.
Mr. Saada: I am happy that my colleague mentioned that, for a number of very practical and concrete reasons. I will be happy to act as a kind of go-between for the committee and my minister.
Coincidentally, this committee always meets at the same time as the justice committee. I need to clone myself. In order to do my job properly, it would be helpful if those matters relating to the Solicitor General were addressed first, provided this ties in with your priorities. I greatly appreciate this recommendation because it would help me out.
The Joint Chair (Senator Hervieux-Payette): Mr. Lee, since you are the senior member of this committee, I will ask you. We received two pieces of correspondence on this particular item regarding the Royal Canadian Mounted Police. We received one brief and one letter. Normally, the committee distributes that to the members. I have not had a lot of correspondence since I have been here. Should we acknowledge receipt of it?
Mr. Lee: What happens this morning should be regarded as like the mail room. The letter is here and it is in the possession of our clerk. He can date-stamp it and deal with it appropriately. All of us, of course, have had the benefit of reading it.
The Joint Chair (Senator Hervieux-Payette): The dates are both November 24. They were not distributed because they are not in French. One is in French and must be distributed in English and the other is in English and must be distributed in French.
Once they are translated, I will forward everything to members of the committee so that it will be part of our documentation to study the whole matter. Is it agreed?
Hon. Members: Agreed.
The Joint Chair (Senator Hervieux-Payette): Carried.
SOR/83-654 — PUBLIC HARBOURS REGULATIONS
The Joint Chair (Senator Hervieux-Payette): Are there any comments regarding the Public Harbors Regulations?
Mr. Bernier: The minister's letter of March 31 gives an update on the progress made in identifying harbours that have not been properly declared to be public harbours, and to which the relevant regulations are being applied unlawfully. Application of these regulations, of course, involves the collection of fees.
Since some time has elapsed since the minister's letter was sent, I would suggest that counsel inquire of the department what progress has been made since that time.
The Joint Chair (Senator Hervieux-Payette): Are there any comments regarding the matter of public harbours and the somewhat unorthodox way that user fees are collected? No? In that case, the clerk suggests that we send a reminder to the department and update this file. Is everyone fine with that? Thank you.
Mr. Wappel: Excuse me, but Mr. Lee and I were engaged in a conversation. I have a technical question on the first file, public harbours. I noticed that the minister's letter was dated March 31, and it is date-stamped October 19. Could I have an explanation for that?
Mr. Bernier: All I can say is that this is when we received those letters. In fact, we did not receive them from the chairmen's offices. We received it by fax from the minister's office after sending a follow-up letter asking for a reply to the original letter.
Mr. Wappel: I find this curious because, as we will see in the other files, this repeats itself. I presume this is ministerial style. They have so many letters that when they actually sign the letter they put the date on it themselves. There is a handwritten date 31/3/98, which I presume is when the minister signed the letter. I am at a loss to understand why we do not get it until months afterwards.
Mr. Bernier: I am not sure we have to put this on the record, Mr. Wappel. Clearly, correspondence remained in the chairmen's offices over the summer.
Mr. Wappel: This is March.
Mr. Bernier: It stayed since March. A series of letters were sent. Once the minister has signed letters, the departments will date-stamp them. They do not make a copy of the date-stamped copy. That is the original. The originals were sent, I do not know to which offices, but they were never received at the secretariat. In around September or October, we started drafting chase-up letters for the chairmen to sign, and those were signed and sent. When, in particular, the Minister of Transport received a series of chase-up letters asking him where the answer to our letter was, his departmental officials went to their file and pulled a copy of the letter he had sent some months earlier. They indicated, by hand, when it was sent and then faxed them to us.
Mr. Wappel: I will have to pursue this matter, I am sorry. It is addressed care of the Senate. When the letter comes care of the Senate, what happens?
The Joint Clerk of the Committee (Mr. Tõnu Onu): It depends on to whom it is addressed. For example, if it is addressed to the co-chairmen, it will go to the offices of the chairmen.
Mr. Wappel: It will not go to you for date-stamping first?
The Joint Clerk (Mr. Onu): No, unless it comes to my office. There are cases where people will phone me and ask for my fax number and then fax it to me, but, otherwise, it goes directly to the office of the person whose name appears on the letter.
Mr. Lee: We are back to the mail room analogy. I received a letter in my office within the last few days which was directed to the committee.
In many cases, the staff of the co-chairmen will not be aware when that letter arrives, that it is not a copy of the letter that has been sent to the committee secretariat. It is simply dealt with as incoming correspondence.
On at least one occasion, and probably on a few others, it has come to the attention of the staff of the co-chairmen that a letter has come in which is, in fact, the original reply intended for the committee. I have on my desk in my office a letter received this morning. I was not sure whether it was the original reply or a copy. I will turn it over to the clerk or to counsel later today.
This reflects, perhaps, the same problem that existed over this past summer, when for about six weeks my office was not operational. In one case, an original reply letter arrived and was not passed on to our secretariat until September.
Mr. Wappel: This is inefficient and it is causing extra work for our counsel who are chasing up letters which have already been answered. Perhaps we should deal with this now by deciding how to avoid this in future. For example, is it possible to provide counsel's address within the letter so that any letter of response goes directly to counsel's office and is date stamped. Counsel then has an answer and can distribute the copies to the joint chairmen.
I am not sure we need to stand on protocol when we are waiting for answers to correspondence. We waited six and a half months before counsel became aware of a letter signed and sent by the minister. There must be a more efficient method. Our chairmen change from time to time and this will happen again. Correspondence will be sent to the chairman who signed the letter. Meanwhile, we are waiting for correspondence and counsel is trying to chase up the responses. The minister's office does not know what our problem is because they answered the letter six months ago.
This is totally inefficient. Unless someone has a different suggestion, perhaps when we say care of the Senate we can add the clerk's correct address so that the letter can be opened, stamped and distributed.
Mr. Bernier: The mailing address of the secretariat would be to one of our names, general counsel or some indication of title, standing joint committee, et cetera, care of the Senate of Canada, Ottawa, Ontario, Canada.
Ministers' practices, I have noticed over the years, will vary. When they receive a letter co-signed by three people, sometimes the minister will simply sign and send one reply letter. If protocol is followed, it would be sent to the senator co-chairman and that person is left to make the copies for the other two.
Mr. Wappel: It is sent to the senator at the address shown on the letter?
Mr. Bernier: The address is shown on the letterhead. The letter is signed, for example, by Senator Hervieux-Payette, Co-chairman of the Standing Joint Committee for the Scrutiny of Regulations, care of the Senate.
Mr. Wappel: If our letterhead refers to the Standing Joint Committee for the Scrutiny of Regulations, Room 382, Victoria Building, then that is where it will be sent.
Mr. Bernier: The post does not work that way. This is one problem here. It should not be blown out of proportion — and I am not suggesting you are doing that — but we have had one problem and we have operated this way for 23 years. Staff in the co-chairman's offices need to be well aware that if anything comes in where the member is identified as chairman of the committee, that piece of paper is immediately forwarded to the secretariat.
We have no problem. It usually works. Quite frankly, this is the first time in my experience that we have come across a problem on the scale of five or six letters together which sat somewhere unattended.
Mr. Wappel: Are you saying the status quo is fine?
Mr. Bernier: I am saying that it works well provided the staff in the chairmen's offices and in the vice-chairman's office are well informed, that whatever comes in with the name of the scrutiny committee on it should be forwarded to me so that it does not sit ignored in the correspondence book.
Quite frankly, the joint chairmen likely do not have the letter which was sent out, so the reply may not make much sense. They will then see the reply when it is submitted to the committee, along with their own letter. If they want a copy, a copy should be made for them and the original should be sent to us.
Mr. Wappel: I just find it curious that we waited six and a half months, and yet you say it has never happened before. I bet now that it has been mentioned, we will see it again.
The Joint Chairman (Mr. Grewal): It would be appropriate to have a centralized place to receive all mail. What is the harm in doing that? It would be appropriate to give one address and to standardize it. We can easily circulate the letters within the committee. We can look into that, can we not?
Mr. Bernier: The problem is that the secretariat is not located, strictly speaking, in the parliamentary precinct. We are at 222 Queen Street. All mail addressed to the Hill has the same postal code and goes to one place. We have a choice. If we put the specific address of our commercial building — 222 Queen Street, Room 1401 — then it will not have the same postal code. The mail will not be delivered through the parliamentary post office then.
I am not saying it is impossible but I would have to look into it. There may be some problems with that process.
The Joint Chair (Senator Hervieux-Payette): Let us say that we will find the solution. If we have received 99 per cent of the mail at the right place, then that is not too bad.
I do not think that we should be splitting hairs. Postal rates are not that high. Certainly we will be more vigilant.
However, as far as I am concerned, if 99 percent of the letters we receive are copies, if occasionally I do receive an original letter, I think I am entitled to be somewhat confused about the formula.
If there are no other comments, we will proceed with truck regulations.
SOR/90-364 — EXTRA PROVINCIAL TRUCK UNDERTAKING LICENCING REGULATIONS, AMENDMENT
Mr. Bernier: The committee's objection in this case was to section 4(1.1) of the regulations which unlawfully sub-delegates to provincial transport boards the power to determine what is low-value cargo for the purposes of insurance.
The previous minister had informed the committee that upcoming amendments to the legislation would make the provision redundant and had undertaken to revoke section 4. He had also committed that should these legislative amendments not go forward within a reasonable time, he would proceed with the revocation of section 4(1.1). That commitment was given in the fall of 1996.
In their letter of February 5, the chairman reminded the current minister of this undertaking. The minister then replied in March that he anticipated amendments to be submitted to Parliament within the next 12 months and that, in the circumstances, he did not propose to amend the regulations.
No amendments to the Motor Vehicle Transport Act have been introduced at this time. It is now two years since Mr. Anderson said he would amend the regulations if the legislative amendments were not received within a reasonable period of time. The new minister, apparently, has reneged on this undertaking and the question is where the committee wants to go from here.
Mr. Bailey: I sit on the Transport Committee. One of the items up for discussion is how to come up with the same type of blanket coverage as we do for airports and train travel. We are looking at what we must do in the trucking industry on a national basis.
With all due respect to the minister, it is being withheld because there is something bigger coming forward in the way of legislation.
The Joint Chair (Senator Hervieux-Payette): If I understand you correctly, you would suggest that we be more patient and put that on the agenda for the beginning of next year?
Mr. Bailey: I would suggest that, yes.
Ms. Jennings: I suggest that we write a letter. The minister informed us last March that he intended to bring in legislative amendments sometime during the next twelve months. Six months have passed and I think it would be appropriate to get back to him and ask for a status report on the amending process, given that half of the twelve months he allotted himself have already elapsed.
The Joint Chair (Senator Hervieux-Payette): Then a brief reminder to the minister will suffice. Is everyone agreed?
Some members: Agreed.
SOR/91-373 — CONFERENCE OF EUROPEAN MINISTERS OF JUSTICE PRIVILEGES AND IMMUNITIES ORDER, 1991
(For text of document, see Appendix, p. 16A:1)
The Joint Chair (Senator Hervieux-Payette): The next item of business is the Conference of European Ministers of Justice Privileges and Immunities Order, 1991.
Mr. Bernier: The minister has promised to bring in legislative amendments in 1999. The question is whether the committee is satisfied with this undertaking on his part.
The Joint Chair (Senator Hervieux-Payette): Would anyone care to comment on the ministers undertaking to bring in amendments in 1999? No?
Mr. Wappel: It is a shame that the minister did not respond to the comment that his department rejected proposals put forward by a former chairman of this committee which, if accepted, would have dealt with this problem six years ago. He totally sloughed that off in his letter. It would be nice if we knew that the officials who gave that evidence to the Senate committee were aware that they gave the wrong advice. I do not know how we can find that out or do anything about it, or if we even care to do so. I find it irritating when bureaucrats come before committees and assure them, Do not worry, it is all covered, and it turns out to be absolutely false information.
If someone does not call those people to account once in a while, they will continue to come to committees and continue to assure people who are not lawyers that because they are, they know everything and, Do not worry, be happy.
Once in a while we should bring this to the attention not of the minister as the minister may not be the minister next month, but of the people who actually gave the evidence. I am not saying that we do that in this case, but I would hope that the minister would have done something or at least read the letter. Perhaps he never read that part of the letter.
The Joint Chair (Senator Hervieux-Payette): Do you feel that we should remind the minister that in the coming months he is supposed to produce an amendment and we wish these things to be taken into account? We might do that as a friendly reminder.
Mr. Lee: I wish to state for the record that I take a somewhat firmer, more aggressive view on this particular file.
The Joint Chair (Senator Hervieux-Payette): Is it agreed?
Hon. Members: Agreed.
SOR/93-43 — ORDER VARYING A LETTER DECISIONT (CHANDLER SUBDIVISION) ISSUED BY THE NATIONAL TRANSPORTATION AGENCY
(For text of document, see Appendix, p. 16B:1)
The Joint Chair (Senator Hervieux-Payette): The next item of business is an Order Varying a Letter Decision by the National Transportation Agency.
Mr. Bernhardt: Going back to February 1991, what was then the National Transportation Agency ordered CN to abandon a segment of line in the Chandler subdivision, in the Gaspé. The Governor in Council subsequently rescinded this order pursuant to section 4 of the National Transportation Act 1987. Afterwards, CN applied to the agency for branch line subsidies with respect to the track in question. The agency's refusal is the letter decision referred to in the order.
It was the view of the agency that once the abandonment order was rescinded, there was no claim period as that term is defined in section 178(1) of the act. As there was no claim period, there would be no entitlement to subsidies. The committee has taken the view in this case that the agency was entirely correct in its assessment.
Nevertheless, the Governor in Council then proceeded according to SOR/93-43. This purports to authorize payment of branch line subsidies until such time as the line in question is actually abandoned. It has been the position of the committee that the Governor in Council lacked the authority to do this. The chairmen's letter of February 5 reiterates the reasons for this position in some detail.
Successive ministers of transport have maintained that the variation order is valid. At the same time, they haven been completely unable to point to any specific wording in the act to support this claim. Matters have therefore reached somewhat of an impasse.
The National Transportation Act 1987 has now been repealed. As a result, subsidy payments for the operation of branch lines pending their abandonment are no longer made. The subsidy has been terminated. The remaining concern, however, is these payments that were made without lawful authority before the time the act was repealed.
I draw members' attention to the final paragraph of the chairmen's letter of February 25, which advises the minister that when the committee last discussed the file, members were inclined toward drafting a report drawing the attention of the Houses to the absence of authority for the order and recommending the introduction of legislation validating the payment of the branch line subsidies made pursuant to the order. The minister was again asked for a precise statement of exactly how the wording of section 178(1)(b) supports the department's position, despite the fact that the department has previously acknowledged that the situation of an abandonment order by the Governor in Council is not contemplated by this provision. In addition, the minister was asked to indicate the total amount of subsidies that were paid pursuant to the decision as varied.
In his reply, which I might describe as somewhat testy, if I may editorialize, the minister repeats the view that section 178(1) of the act entitles a railway company to subsidies from the time it submits an application for abandonment. Once again, however, there is no reference to the actual wording of section 178(1). It is claimed that sections 166 and 169 of the act imply that a subsidy can be paid before a date for abandonment has been fixed.
Mr. Wappel: They clearly imply, whatever that means.
Mr. Bernhardt: Frankly, I find that more than a little baffling.
Section 166 requires the agency to order abandonment even though a branch line is or may become economical, unless it would not be in the public interest to do so. Section 178(1)(b)(i) then expressly refers to a claim period ending on the date fixed for abandonment under section 166(1). Clearly, once the date has been fixed, you have a claim period that is a proper claim period. That is what is contemplated. Until a date is fixed, there is no claim period. There is nothing in section 166 that implies otherwise.
Similarly, section 169 sets out possible determinations the agency can make once it decides the continued operation of a branch line is in the public interest. One of the things it can do is send the application back for reconsideration.
There is a number of results of this reconsideration that may lead to the establishment of a claim period. These are also referred to in section 167. That is not the problem here. The problem is that there has never been a claim period established.
The only other argument advanced in the minister's letter is that the act provides for the adjustment of overpayments and underpayments. Again, I am not sure what this is intended to mean. That provides for a situation where payments are made. If it turns out at the end of the day that the actual loss suffered by the railway company is different from the payment that was made, then there is a provision to settle that up. Clearly, that does not authorize payments in the first place where there is no claim period under which those payments can be paid.
Finally, the minister's letter does not provide the requested information concerning the amount of the subsidies that were paid. That is where matters stand.
Mr. Lee: Can I take it from the brief description counsel has given that our request for the information about the amount of money paid was clear and explicit, not simply clearly implied?
If members would like to see this issue qualified in dollars, I am prepared to move a motion calling upon the Minister of Transport and his ministry to provide the information in relation to the dollar amount, and to do that within 15 days of the date of our order.
The Joint Chair (Senator Hervieux-Payette): Would the same apply to the adjustment?
Mr. Lee: Yes, and whether or not there has been any adjustment.
I am assuming that we would then have all the information we need to take any further steps we think appropriate.
The minister's final letter to us appears to be closing the file from their point of view.
I assume other members will want to comment on where we go from here. I have not moved my motion; but I would be prepared to do so if other members wish to proceed that way.
Ms. Jennings: I am somewhat surprised by the minister's response, particularly in light of counsel's explanation of sections 166 and 169. The minister seems to be waiting to justify the interpretation given by his legal advisers and his department.
I do not think that it is enough for us to simply ask the minister to tell us exactly how much was paid out further to the interpretation of the legal advisers. I believe the minister noted the following in his response.
However, it should be borne in mind that the relevant legislation makes provision for adjustments concerning overpayment or underpayment, if any.
That was how he responded to our request. He appears to be telling us that even if our interpretation is not justified, quite possibly, we may have overpaid and we could be reimbursed.
He is thumbing his nose at us.
However, our committee should respond to the minister's letter and, if members are agreed, we should convey in our response our doubts as to the interpretation of the provisions mentioned in the letter.
Mr. Wappel: If we look at our letter of February 5, on page 4 of the English version we are reminded that this committee considered this issue on November 20, 1997. The committee was inclined at that time to prepare a report. The only reason we did not prepare a report at that time was because we wanted to give the minister one last chance, as we usually do. We asked that the minister give a precise statement of exactly how the wording of section 178(1)(b), et cetera.
The minister has not given us a precise statement of that wording. That was the condition that we were waiting for before we issued a report. The minister has failed to meet the condition which was pre-empting us from doing a report.
I agree with Mr. Lee that, in this letter, he has closed the file from the ministry's standpoint.
Indeed, there are two issues, and I do not think they are necessarily related. I do not think we need to know how much money was paid before we issue a report. It is interesting, but we do not need to know it because we did not know it at the time we decided to issue a report, subject to giving the minister one last chance.
The second issue is that we specifically asked for the amount, and the request was ignored. We were not told, We are working on it. In this case, it was simply ignored.
To use Mr. Lee's words on the previous file, I take a different view. I think we should proceed with the report, which is what we decided to do in November 1997, pending the minister answering our specific question, which he failed to do.
At the same time we should request, in the strongest possible language, a proper response to our request for the amount paid out. That is what I recommend.
Ms. Venne: I would simply like to say that if I received a letter worded in this manner, a third letter concerning the same subject, I would find is rather annoying. Perhaps we too could respond in a somewhat sarcastic manner and make them understand that just because we write three times on the same subject does not mean that the matter is closed.
Mr. Bernier: Particularly when we have put the same question four times and have yet to get an answer.
The Joint Chair (Senator Hervieux-Payette): That is the tone that you would like us to employ and it is somewhat similar to the tone Mr. Wappel and Ms. Jennings wanted us to take. Without going so far as to use unparliamentary language, we could nevertheless be quite firm. This would be in keeping with the approach of one of the joint chairmen, not to mention names.
Mr. Bernier: We could mention the number of letters sent and attempts made to get an answer.
The Joint Chair (Senator Hervieux-Payette): We have yet to receive a legal explanation for their position. This is somewhat of a fruitless dialogue. We could point out that we would like an intelligent exchange between competent individuals on legal matters. People are entitled to have a different opinion, but they should be able to justify their position. Our purpose is not to give them any grief. We are here to help them manage their department properly with the proper tools.
How can the government issue cheques when there is no legal basis for doing so? My sense is that the Auditor General will be advising the transport minister that these payments are illegal.
We are raising these issues in the public interest. We have the duty and mandate to point out that these payments made by the Crown, without any legal justification, are illegal and cannot be tolerated.
I think we can rely on the writing skills of our counsel. I have no complaints about their writing abilities. If everyone agrees then, we will send of a rather firm and direct letter regarding this manner, drafted in a tone that everyone wants to see.
Mr. Bernier: Have I understood correctly that counsel will start drafting a report at the same time?
Ms. Jennings: I agree with Mr. Wappel.
Mr. Lee: I want to appear to be a bulldog on this one. If we are to report, I would like the report to have the appropriate financial information about the payments. We need that data.
Reconsidering what I said earlier, I am not in a position to move a precise motion because I will be missing some details about dates and the railroad involved. All I know is that we have called it the Chandler subdivision file. If I were in possession of those, I would move a motion directed to the Deputy Minister of Transport.
Counsel's letter can be appropriately firm in that regard and make it clear that the committee is requesting that information, and if the information is not forthcoming, then perhaps he could put us in possession of details. Then I would move the motion the next time the file comes up.
Senator Moore: Perhaps we should request a reply within two weeks.
The Joint Chair (Senator Hervieux-Payette): Yes, for the next meeting.
Mr. Bernier: If it is of assistance, it seems that any detail you may need is fully set out in your own letter. Everyone knows what the information is, namely, the total amount of branch line subsidies paid pursuant to the agency's decision as varied by SOR/93-43. That only refers to one set of circumstances, one branch line, one railway company. That is all that is needed. I am sure that the minister understood this, or his department did at any rate.
The Joint Chair (Senator Hervieux-Payette): No one said that we must start the same argument all over again. We are saying that it is more or less our feeling about the way they responded that they do not reply to the letter. We do not have to repeat ourselves. At the end, we will indicate that we must have this figure by the end of two weeks or we will act accordingly at the next meeting.
Mr. Lee: That is fine with me.
Mr. Wappel: Counsel still wants to know if they should proceed to prepare a report mentioned in the letter of February 5.
Mr. Bernier: This is where it is going anyway, figure or no figure.
Mr. Wappel: I gather there is a consensus here.
The Joint Chair (Senator Hervieux-Payette): I am willing to wait until the next meeting to make that request so that if, in the meantime, they provide us with the information, we can decide what we want to do at that time.
Mr. Lee: I will leave the motion, then, and hope that the correspondence to be sent now will yield the appropriate information, and counsel can begin to prepare a report.
Mr. Wappel: Counsel does not need that information in order to prepare the report. That is my point. It is additional information. You could leave a paragraph blank in case we get it, and you could state we asked for it and did not get it, but that, in my respectful submission, should not hold up the preparation of the report.
Mr. Lee: I agree.
The Joint Chair (Senator Hervieux-Payette): Therefore, you are drafting a report, minus one paragraph. A considerable number of regulations appear to be in order. Our counsel are working hard on all of this. Our next meeting is scheduled for December 10.
The meeting is adjourned.