[Recorded by Electronic Apparatus]

Thursday, March 4, 1999

• 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. Gurmant Grewal (Joint Chairmen) in the Chair.


The Joint Chairman (Mr. Gurman Grewal (Surrey Central, Ref.)): Good morning. I call the meeting to order.

I will ask Mr. Peter Bernhardt to speak to this item.

Mr. Peter Bernhardt (Counsel to the Committee): These amendments are intended to address the concerns raised by the joint committee in its sixty-first report, and to respond to the decision of the Quebec Superior Court striking down the previous section 57 of the regulations as a violation of the Canadian Charter of Rights and Freedoms.

Members have been provided with copies of a fairly detailed commentary on the amendments. Part I of the commentary deals with the amendments themselves.

Part II discusses the consultation process that preceded the making of the amendments.

Part III revisits the parallel issue of the desirability of ultimately including provisions restricting political activities in the RCMP Act itself rather than the regulations.

I am prepared to go through the document highlighting some of the issues, if members wish. If members are in agreement, I propose to deal briefly with Parts II and III of the commentary before moving on to the individual provisions of the amendments themselves.

Part II discusses deficiencies in the consultation process that led up to the amendments. Although the regulatoryimpactanalysis statement makes much of the consultations with the division staff relations representatives, the representatives themselves have a somewhat different view of things. They maintain that whatever consultations did take place took place in the early stages of the process. They involve proposals that long ago became outdated. There was no consultation with them involving the final draft of the proposed amendments prior to pre-publication.

It is also disputed that the representatives were regularly informed of progress through the internal affairs committee, which is another statement made in the RIAS.

Members are also reminded that the committee itself has previously expressed to the Solicitor General its regret that his advisors did not avail themselves of the committee's offer to discuss their proposals with committee counsel prior to finalizing the new draft regulations.

Of course, the pre-publication of the regulations on October 31 did provide an opportunity to comment on the final draft. In fact, as included in Part I, a number of submissions were received. At the same time, however, given that there was a court-imposed deadline of January 1, 1999 for enacting new provisions, it would have been virtually impossible to give serious consideration to any objection raised as a result of the pre-publication of the draft amendments in the 16 days between the end of the notice and comment period and the date of the actual making of the amendments, which was December 16.

It is also telling that the final version of the amendments was approved by the Department of Justice on December 3, only two days after the end of the notice and comment period. Clearly, there was a perceived need to move quickly so as to have amendments in place by January 1. At the same time, the consultation process would appear to have been somewhat lacking.

This does not affect the question of the validity, legality and constitutionality of the amendments. Nevertheless, it was considered to be an issue worth identifying for members.

That is the first issue that we have identified. As I say, there is not something specific the committee can act upon. Perhaps in any future correspondence it might be something that it wishes to draw to the attention of the minister. I do not know.

Mr. Lee: Mr. Chairman, in previous years, the committee has had the opportunity to look at the consultation process as a part of the regulatory process. I am recalling the committee's response in 1993-94 on the matter of the drug patent regulations. The committee looked fairly closely at the consultation process. I think most committee members believed that the consultation process was ineffective/non-existent in that instance. I believe the committee reported but did not take further action at that time. We reported to the house our collective view that the consultation process at that time was not sufficient.

In this case, we could probably come to a consensus that the consultation process was not what it should have been, given the number of interests among officers of the force and, perhaps, given that Parliament, through this committee, had involved itself in the issue.

On the assumption that we may have other more substantive issues involving the regulations themselves, I suggest that any action that we do take as a result of today's meeting include a reference to a consensus here that would make reference to these weaknesses in consultation.


Ms. Jennings: I agree with Mr. Lee's suggestion. When I consider the kind of consultations that were held, I find this deplorable. In actual fact, there were no consultations. People were advised at the very last minute. The Solicitor General and his bureaucrats may have had to work under the gun of a Superior Court ruling, but that is their problem. Two years before this ruling was handed down, the committee had identified a potential problem and this matter was allowed to drag on. In my view, there is no excuse for failing to deal with this problem in an expeditious manner. I fully agree that our report should reflect the fact that the consultation process was inadequate or nonexistent and that we expect more of our government.


Mr. MacKay: I had a specific question arising out of the brief. On page 3, it states:

The most senior members of the Force would be prohibited from participating in the activities in question entirely. I find that rather vague. Are we talking about a certain rank here? Are we talking about the commissioner down to a particular level?

Mr. Bernhardt: In doing the note, I was simply paraphrasing the effect by referring to the most senior members. Section 58 talks about the commissioner, a member at the deputy commissioner or assistant commissioner rank, or a commanding officer or director. Those are the people who come under that rubric of the most senior members of the force. As paragraphs (a) to (e) of section 58 go on to state, those things that other members can do if they take leave or if they get permission, these senior members are simply prohibited from doing outright, presumably on the assumption that the most senior members of the force are going to be held to a higher standard than the rank and file.

Mr. MacKay: I still think it is somewhat vague. If we are saying a commanding officer or director, that literally denotes anyone with any authority over other officers.

Mr. Bernhardt: I do not have the entire regulations before me. These are a finite number of provisions from the RCMP regulations, and I believe at least some of those terms are defined. If one went to section 2 of the regulations, you would see a definition of who is a commanding officer. I can certainly verify that, but that is my recollection simply off the top of my head. I do not have those provisions with me this morning, but we can certainly verify that.

Mr. MacKay: If you would, please.

Mr. Bailey: To continue with my colleague's point, over the years, a commanding officer would traditionally also mean the corporal in charge of a detachment, and we have hundreds of those, and traditionally they have not been involved. However, I go back to page 3 of the amendments. We have in the RCMP today many more people who are not police per se, and I noticed, at the top of the second paragraph, you have members who are not peace officers, and that number is growing. The paragraph goes on to say that, while they may become involved, you do not encourage it. I am wondering if, by putting that there, you are putting some kind of a fettering device on them not to become involved.

Mr. Bernhardt: I do not want to get too far ahead of myself because those issues will come out when we turn to Part I of the commentary and the provisions themselves. It is certainly the case now that the regulations make that distinction. There are members who are peace officers, and there are members who are not peace officers. There are restrictions on both. As a general statement, again as we will see, it looks as though there is at least one exception, that the restrictions on those members who are not peace officers are somewhat less. Generally they can do things, if they get permission, that members who are peace officers may have to take a leave of absence to do. That is the basis of the distinction.

It has been indicated to us that you are right, that increasingly there are a large number of non-peace officer members, some of whom are now occupying fairly senior positions. I suppose that, at the end of the day, a question that may be asked is whether that distinction is a legitimate one. As I say, that is something that perhaps we can come back to when the committee turns to specific provisions in the discussion in Part I.

Mr. Bailey: Thank you.


Ms. Venne: I thought we were discussing part 2, but in fact we were dealing with part one. Are we in fact continuing to look at part 2, because my comments pertain to part 1.


Mr. Bernhardt: With the committee's indulgence, perhaps I could turn to Part III next, which is at page 41.

In its report, the committee recommended that significant limits or restrictions on individual rights and freedoms ought to be established by an act of Parliament. It also recommended specifically that the government present to the houses amendments to the Royal Canadian Mounted Police Act that would define the limits of permissible political participation by members of the force in a manner consistent with the rights and freedoms guaranteed to all citizens by the Charter.

The argument here is that, in a situation where it is proposed to deprive citizens of fundamental rights or to curtail the exercise of those rights in any significant way, the legislation that does so should be adopted by the democratically elected representatives of the citizens whose rights are at stake, and should be adopted in an open forum after proper debate. These democratic safeguards that the parliamentary process carries with it for the passage of legislation simply do not exist in the making of regulations.

The justification given for not amending the act itself at this time, of course, was the need to have amendments in place by January 1, the date on which the judgment of the Quebec Superior Court was to take effect. In his letter of December 24, however, the Solicitor General did advise that he was prepared to assess the appropriateness of amending the act to address the issue of the political rights of members. Thus far, however, the committee has been unable to attain a firmer undertaking to amend the act in this fashion.

The issue that the committee has before it this morning, then, is how it wishes to follow up on its recommendation.

Mr. François-R. Bernier (General Counsel to the Committee): Mr. Chairman, if I may, before members address this, could I get a direction from the committee on Part II, that there is a consensus that the issue of consultation is one that will be raised, that the whole committee agrees that the consultations that took place were defective?

The Joint Chairman (Mr. Grewal): Any contrary comments?

Apparently there are none.

Mr. Bernier: All right.

Mr. Bernhardt: That brings us back to the question of the amendments to the act itself. We have a statement from the Solicitor General that he is willing to considerate the appropriateness of doing this. The committee has recommended in its report that this is something that should be done. I suppose in that sense the ball is back in the committee's court as to how it wishes to pursue the issue.

Mr. Lee: I have a sense that, no matter how the RCMP divide up the subject matter, if they try to squeeze all of these items into the statute itself inevitably there will be some loose ends that would have to be addressed by regulation. I hope all committee members would agree with the principle that restrictions on constitutional freedoms should be set out by statute and approved by Parliament. However, just what proportion of these rules should be in the statute and should be in the regulation is a matter for the people who administer them. I think we should continue with our exhortation that the bulk of these impairments of the constitutional freedoms show up or be recorded in the statute itself, but I think we have to recognize that some elements of them will always be in the regulations, some refinements to the rules. Just where the dividing line is, I do not personally know.

Mr. Bernier: I would suggest, Mr. Chairman, that the answer to that is that Parliament will determine where the line is. If you put a statute before Parliament that includes provisions providing that regulations may be made to deal with the loose ends, as you called them, Parliament, in voting on that statute, will either approve that division between statute and regulation or it will amend the statute. However, to do that, you must put a statute before Parliament.

Mr. Lee: So someone has to take leadership is what you are saying.


The Joint Chair (Senator Hervieux-Payette (Bedford, Lib.)): Our dilemma is perhaps due to the juxtaposition of common law and civil law in Canada. This has led us to apply the principles of civil law to common law — since the RCMP Act is more in the realm of common law — to include much more specific legislative provisions and to use regulations only to identify procedural requirements, not to define rights.

That is why it has taken so long to examine the regulations. If these rights are not defined in the law, how than can we restrict them? It may be impossible to resolve this dilemma, other than getting back to the basics, that is defining the rights that this group of individual enjoys and then deciding how these requirements should apply to this group.

From the moment the legislation requires us to restrict rights by way of regulations, as lawmakers, I think we may be going too far. If we are to bring in restrictive measures and not agree on the process, then we are going back to the legislative rather than to the regulatory model. I do not know your views on the subject, but since our attention has been focused on this issue for several months, I have given some thought to ways of resolving this impasse. Perhaps we could have a substantive discussion. The fundamentals of this issue should be dealt with in the legislation.


Mr. MacKay: I think you are right. Obviously, there must be parity between the act and the regulation. However, we have gone around and around this issue. The obvious question is: Where do we go from here? This may be a penetrating statement of the obvious, but we have a new Solicitor General. A commitment was made by a different individual. I therefore suggest that we go back to the Solicitor General's department. Let us go to the head. There is an old saying about the fish stinking from the head. We must get that same commitment from the current Solicitor General and his officials that this will happen.

Let us get on with it. This process has taken a great deal of time and effort — and that is not to belittle the effort that has been made by anyone. We must get to a point where we will put this in hard copy and put it before the House and put it to a vote. This is something where we are almost chasing our tail now.


Ms. Jennings: I agree with Senator Hervieux-Payette. Generally speaking, rights are set out in legislation, and if these rights are to the restricted, this should be clearly stated and the reasons given. Subsequently, the mechanics can be spelled out in the regulations. For example, who would have the authority to grant leave without pay?

The restriction itself should be set out in the legislation. Parliamentarians have a duty to determine the reasons and circumstances whereby a fundamental right will be limited.

I am not happy with these regulations. Setting aside these questions, should the limitations be spelled out in the legislation or in the regulations? Assuming that we agree that these should be contained in the regulations, so many questions have been raised and there is so much uncertainty as to whether the regulations apply to specific cases or not that in fact this entire situation is unacceptable.


Mr. Bailey: I agree with what I have heard. My learned colleagues will have to help me out on this, but we are dealing with a national police force, which is subject to the Charter. We have ten provinces, which also have Human Rights Commissions, and so on. There is also the situation in Quebec and some of its regulations. We also have a situation where some of the force members are First Nations, and there are some problems there as well. This is a huge thing to approach at the present time. We have a new Solicitor General, and that is where we should start. We should invite the Solicitor General here prior to drafting anything out. We must be consultative with the Attorneys Generals of the provinces as well; otherwise, you will get a whole document and then when you go through the legislation you could run into difficulties within the provinces. It is a huge effort to try to straighten this out for the new century. A lot of work must be done.


Mr. Saada: To respond to Mr. MacKay's concern, although there is a new Solicitor General in office, the official correspondence from the former Solicitor General's office amounts to an undertaking on the part of the government. There is no reason to assume, unless someone can prove otherwise, that there has been a change in policy because a new Solicitor General is on the job. The undertaking in the former Solicitor General's correspondence continues to be relevant to these proceedings.

In my view, it would be very premature to call the Solicitor General before this committee. As a committee, we have work to do. Quite clearly, there are some deficiencies in the proposals made thus far and there is still a considerable amount of work to be done. We should turn our attention to this task before we meet with anyone. To meet with the Solicitor General at this point in time would not be very productive.

Ms. Venne: Since the issue here is one of restricting the rights and freedoms guaranteed in the Charter, the committee should recommend that Parliament examine this issue and enact appropriate legislation and perhaps even amend existing legislation.

Mr. Belisle told me last week that he had advised counsel for the RCMP that the chiefs of certain Indian bands also happened to be RCMP officers. They were peace officers as well as band chiefs and they claimed to have aboriginal rights. I would like to know how Parliament plans to resolve this situation. It is a simple matter to draft regulations and to apply them. However, when this issue comes up for debate in Parliament, it will be an entirely different matter. I fail to see why we would draw a distinction between these band chiefs who are peace officers and members of the RCMP, and other taxpayers who are in a similar position. That is why it would be a good idea to table draft legislation to this effect in the House of Commons.


The Joint Chairman (Mr. Grewal): First, I think that we should write a normal report and ask for a comprehensive response from the Solicitor General and include a deadline for his response. In other words, we should give him a chance. If the committee is not satisfied, then we will go back to the House and have a debate. Further actions may be forthcoming, such as a vote, or whatever response we get from the House.

Mr. Lee: I tend to agree with what I think the chairman is suggesting. Everything that is old is new again. Actually, we have a kind of innovation here. We have a recently adopted government regulation. It is our committee's job to scrutinize, and we must do that.

Counsel, in their brief, have done an excellent job of setting out the substantive issues in relation to the Charter impairments. They have also made reference to the consultation process and the constitutional propriety issue of placing these restrictions in statute form.

While I am not suggesting we treat this as a new, new item of business, because we all know that we have had a handle on this for some time, we should treat it as a fresh look at a new regulation. We should ask counsel to bundle together each of the items that appear to be impaired by Charter tests. We have made reference to the minimum impairment test. We should bundle together, if not every single item, at least those that counsel believes show up on the “Richter scale” of the Charter. We can add to it the consultation issue and the constitutional propriety issue.

This time we would not send it to the department but actually to the minister, because we have been down that road before. We should ask for a quick and substantive reply to each of our questions, and be prepared to deal with it pretty much on the same basis that our colleague Mr. Wappel would urge upon us, if he were here. He is on the West Coast on parliamentary business today.

We need not bring it up at the next meeting, although that is the current state of the art. I do not mind if it shows up on the agenda, but let us get a reply from the Solicitor General as quickly as possible and then put on work boots and start working at it again.

Mr. Bernier: It is important, at this stage, given the history of this file, that the committee actually go through Part I of this document so that we have clear direction. The committee must clearly decide on which issues to take a stand; otherwise, we will be starting a process that will be quite as lengthy as the first one.

Perhaps if we do that now, we will find an answer regarding the earlier recommendation to proceed by way of statute. If the committee were to come to the conclusion that the current regulations are defective and must be changed, then part of our recommendation to the government would be not only that the regulations should be changed in this fashion but also that the change must be implemented by way of statute.

In other words, we do not have a court deadline here. If the government were, eventually, to agree to revisions, it would be quite feasible to simply revise what is here and push that up one level to the statutory level. We can then simply put the new package before Parliament by way of a statute. That would resolve the third issue.

The Joint Chairman (Mr. Grewal): Is that the consensus of the committee?

Hon. Senators: Agreed.

Mr. Bernier: Then perhaps we could move on to Part I, go through those issues and, as I have said, get a clear sense of direction from the committee.

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

The Joint Chairman (Mr. Grewal): Let us go over the time frame so that we do not leave it open-ended. What should be the time frame?

Mr. Lee: In the interests of time, the brief is well drawn. We should be looking for a consensus around the table that a particular item that is described should be included in our list. There may be questions. We could go all morning on this unless we try to constrain it. We are looking for approval of the list. The draft of the list is already in front of us in Part I of this brief. That is my view.


Ms. Jennings: I agree with all of the issues raised in the commentary. These are all fundamentally important questions. Are the limitations prescribed in the regulations justified and reasonable under the Charter? I think that each of these provisions is questionable. In my view, the regulations as they are currently drafted leave something to be desired. Each of the provisions begs a fundamental question, namely: is the stated limitation reasonable? Is the limitation curtailing the exercise of a fundamental constitutional right reasonable? In my view, most of the stated limitations are not reasonable. I fail to see the rationale behind these regulations.

The Joint Chair (Senator Hervieux-Payette): Nevertheless, there is no harm in our examining these regulations. If we find some provisions satisfactory, then we can let them stand. However, if all are found to be unsatisfactory, we can go back to the drawing board and ask that new regulations or new legislation be drafted. It is not such a bad idea to review these provisions. Perhaps we can take the time to do that. Who has to leave and at what time?


Maybe we should take half an hour to review each one and make some decisions. If we take more than half a hour, we will not have time to deal with anything else.

The Joint Chairman (Mr. Grewal): How do we proceed?

Mr. Bernhardt: If I might suggest, Madam Chair, one way to look at Part I is to group the various issues by category. We have come up with five. The first category is that there are a number of vague provisions. They use vague terms and vague references. The vagueness of the language results in the potential for an overly broad application.

The second category is specific aspects. We know exactly what they are intended to mean but they still give cause for concern.

There is a third area of concern and this involves certain restrictions that were added to the final version after it was pre-published. They did not appear in the final draft. It was pre-published. They did appear in the final version.

The fourth area is the application of the amendments to part-time municipal offices. The fifth area is a couple of questions arising from section 55. These do not give rise to Charter concerns, but we think there are some questions there that may be worth asking.

Perhaps going through each of those five groups one at a time might be a way to organize it for members.

Starting with the vagueness issue, there are four terms or references that appear repeatedly throughout the amendments in relation to prohibitions or restrictions on activities. Specifically, I am talking about the terms “political matters,” “campaign,” the reference to an issue that may be submitted to a direct vote by the population, and the reference to the council of the regional, municipal or local government.

By way of example, we can look at section 57(1)(a), which is reproduced on page 12 of the commentary. This provision prevents a member engaged in authorized political activities from representing or allowing his agent to represent the members' opinions or comments on political matters as being those of the Government of Canada, the force or the province, region or municipality to which the force provides policing services.

This gives rise to the question of what is and what is not a political matter. It could be argued that this term is so vague as to bring the validity of the section into question. That is the first possible concern on which it might be useful to have members' views.

Mr. Lee: Mr. Chairman, I simply accept it as an issue. It is an issue sufficient to flag and ask for a response.

Mr. Bernhardt: Perhaps we could then turn to page 19 and to section 58.2. There are good examples throughout section 58.2 of the other vague terms we have identified. For instance, paragraphs (c) and (d) of subsection 1 are two of but six provisions that place restrictions on campaigning. Under paragraph (c), a member who is a peace officer must obtain leave of absence to campaign for or against a candidate in an election or a candidate for the leadership of a political party. Under paragraph (d), leave must be obtained to campaign for or against an issue that may be submitted to a political voting process.

Presumably, campaigning involves something more than simply expressing an opinion publicly on an issue. This is not entirely clear, however, and we have turned to various dictionaries. In one dictionary, campaign is defined as to conduct or take part in an organized course of action for a particular purpose, especially to arouse public interest.

The commentary asks a number of rhetorical questions in an attempt to get a sense of what is intended here. For example, under this provision, would erecting a lawn sign be considered campaigning? Would expressing a view at a public meeting be considered campaigning, or does the term contemplate taking a more formal, active role?

These activities can be undertaken if you obtain a leave of absence. Of course, this would be leave without pay. The fact that a member must forego his salary to engage in these activities is itself a significant limitation.

Similarly, seven provisions, including paragraph (d) to which I have already referred, used the phrase may be submitted to a direct vote by the population. First, there need not even be any certainty that it will be submitted to a vote by the population, simply that this may be the case. One also wonders whether this reference includes elections or election issues considered to be only indirectly submitted to a vote. If election issues are included, then there are very few that could not be said to fall within this restriction. Who will determine whether a particular issue or question is one that is considered to be submitted to a voting process?

Again, there are examples of possible problems in the commentary. Churches take positions on political issues. Are members of the RCMP prohibited from raising funds for the Catholic Church on the ground that Catholic bishops take positions on questions that might be election issues? Would members of the RCMP be prohibited from raising funds on behalf of a member's association if that association were proposing to take a position on an issue affecting its members such as the renewal of a police services contract where the renewal might be the subject of a municipal referendum?

Whatever the reference encompasses, it is fairly clear that it does include referendums. Yet, even in the case of referendums, there may be instances where the prohibition is too broad. For example, municipalities hold referenda on things like proposals to incur new debt in order to finance a particular project. Should a member of the RCMP who is a ratepayer in that municipality be prohibited from campaigning for or against such a proposal unless he takes a leave of absence without pay?

Again, the question we put to members is how they view these references.

The Joint Chairman (Mr. Grewal): I am sure all members received the letter written to the Superintendent, James Newman, of Internal Affairs Branch by the Canadian Police Association. That letter is signed by H.D. Kinnear, Labour Analyst, Canadian Police Association. That letter also questions the meaning of political activity and where they draw the line.

Mr. Bernhardt: The $64,000 question is where to draw the line. The Charter tells us that you can put in place such reasonable limits as can be demonstrably justified in a free and democratic society. The courts in turn have said that this involves a test of minimum impairment. You impair those rights to the minimum extent possible to achieve your objective. That is precisely the question with which the committee must wrestle. Does it feel these represent the minimum impairment necessary?

Mr. Lee: It is my view that, if a line must be drawn that impairs, then Parliament must be the decision maker in drawing the line. However, we must go to the people on the street who are actually working day-to-day in these fields, and let management and the officers, collectively — however they arrive at it — propose a line. I am not so sure that we are all ready to draw the line here from this table or that the executive of government is ready to do it. It is up to the RCMP management and government and us as citizens here to justify the impairment and the drawing of the line.

When we raise this particular issue with them, the RCMP should be writing back and saying, We can justify setting the line here and the impairment that is involved, because (a), (b), and (c). We have not seen many (a), (b), (c)s in justification. There is an assumption, as was referred to in the letter that you just mentioned, that one could justify some kind of an impairment. No one has gone down into the nitty-gritty accounting articulating the justification for the impairment. That is what our letter should seek.


The Joint Chair (Senator Hervieux-Payette): I am not saying that we cannot make suggestions to the minister and his officials, but we must remember that some in-depth research needs to be done. In the United States, police chiefs are elected, therefore I assume they do some campaigning. Judges are also elected and first amendment provisions apply. Our legal systems are fairly similar, but we are poles apart from the United States in terms of the exercise of human rights. We have a Canadian way of doing things, which is a long way from the original concept of human rights and the exercise of democratic rights.

As far as I am concerned, the limitation should apply to the duty to be performed and not to the individual. A person should not campaign in uniform or take advantage of his position to win votes or popular support. However, to say that once a person leaves the office and is dressed in civilian clothing, he cannot exercise his rights as a citizen, well I think that is an issue we need to work on. Unless my colleagues have given this matter serious thought, my feeling is that these individuals enjoy broad rights and the proposed regulations are significantly off the mark, as far as human rights are concerned. Either they have not understood, or they do not want to understand.

One thing is certain. The regulations under consideration are a direct violation of individual rights and fail to establish the proper procedural requirements. Basically, they constitute an infringement of a person's rights.

I would prefer to see the department and its experts on these complex matters do their homework and try to resolve this dilemma by drafting regulations which are consistent with the principle of human rights. We are still waiting for this to happen. Therefore, as my co-chair suggested, perhaps we could give them a few weeks to think about this. However, I seriously doubt that their perception is the same as ours, as lawmakers. I agree that we should review these regulations and comment on them. Most likely, we will go back to our respective chambers to legislate on this matter. Together, we must take a look at the rights enjoyed by members of our police force. We must broach this issue from the standpoint that rights are not the exclusive domain of any one particular class of individuals. While I do not know if other committee members agree with me, that is my philosophy. It explains why we are having such a difficult time examining regulations that are way off base, as far as human rights go.

Ms. Venne: I would like to comment on the in-depth analysis of these regulations, which has proved quite useful to us. The following is noted in bold face on page 22 of the French version of the commentary:

Est-ce que les mots conseil d'une administration régionale, municipale ou locale [..] visent à inclure les conseils scolaires [...] Soon after this, there is a reference to the English version of the proposed amendments. I would just like to say that even if we consider the French version, a conseil d'une administration régionale could very well include a regional municipality. In my view, there is no need to make this distinction, either in English or in French.


Mr. Bernhardt: That is the other vague reference we have identified. When one looks at the English version, councils, regional, municipal or local government, you say what does that not include — it does not include school boards, does not include public utilities commissions.

The French version, Conseil d'une administration régionale, municipale ou locale, could conceivably be read as including those other bodies, which leaves one in some doubt as to exactly what is intended to be covered here. Is it just city councils, or are we also extending this to school boards, public utilities commissions, hydro commissions — anything that is elected is a town or municipality — and so on? You get a very different sense between the French and the English. Again, the result is a vagueness that needs to be clarified, if only because the two versions are discordant.

Mr. Bailey: Have we had counsel from RCMP appear as a witness in order to get their firsthand information? It would seem to me that, if we are going down this road, we may arrive at a corner in the road where we will say that perhaps we should be consulting with them.

There is a bigger thing in my mind, having worked with these people over the years, which is to understand what they mean by conflict of interest. And what is a conflict of interest to these people is not necessarily a conflict of interest to us. When they mention conflict of interest, they are talking about those activities that would and could impair the operation and the respect of the force. Therefore, it is imperative that we re-examine that issue before we go too far.


Ms. Jennings: Our colleague has put his finger on a major problem. Many expressions are used in the regulations, and explanations are never provided. There are many legal precedents in labour law involving members of police forces. What is meant by conflict of interest? What is meant by lack of impartiality or the appearance of impartiality? In my opinion, when regulations prescribe or limits rights, the terms used should be put in context. I say again, limitations should be set out in legislation which states clearly that all members have the right to exercise their fundamental rights, except in certain instances which are spelled out clearly. I do not understand why we need 5 or 10 clauses to accomplish this. It should be fairly clear. Subsequently, the regulations should set out the appropriate mechanisms.

If we look at the question arising from section 58.2(1)(a), we can see just how vague it is. What exactly is meant by council? For instance, are members of the RCMP prohibited from sitting on a regional board of health?

The Joint Chair (Senator Hervieux-Payette): The expression le conseil d'une administration régionale is all inclusive. This would mean a person no longer has any rights as a citizen.

Ms. Jennings: If we look at each prohibition separately, we see that members are being stripped of their right to freedom of political expression. In reality, there are no circumstances under which a member can exercise this right, with the possible exception, as our colleague Ms. Venne pointed out, of RCMP peace officers in western Canada who also happen to be aboriginals and hold two positions, namely RCMP member and band chief. If that is in fact the case and these members argue that they will be able to continue performing both jobs, even if these regulations are adopted and even if they withstand a constitutional challenge, they would be the only persons in this position, because of their aboriginal rights.

The legislation prohibits this. The regulations would be challenged if indeed it is found that members of the RCMP are in this position. I would imagine the RCMP can tell us if there are at present members of the RCMP who are peace officers as well as band chiefs or members of a regional government council. They should be able to provide us with that information. Are there any members currently in office whose rights would be restricted by virtue of these regulations? That is a question that needs to be answered.


The Joint Chairman (Mr. Grewal): I have a question that is probably beyond the jurisdiction of what we are discussing. What about defence forces, anyone in the army or air force? Can they run for office?

What is the situation with them? The military cannot run for office.

Mr. Bernier: We would need to look it up, and perhaps that is the next set of regulations this committee should be examining.

The Joint Chairman (Mr. Grewal): I am jumping a little ahead, but I was wondering, when talking about Charter of Rights and Canadian citizens, if we do this, who is next on the list coming up to committee?

Mr. Bernier: There are still two big issues that need to be touched on. In a partial reply to Mr. Bailey, you asked where do we get guidance.

You will recall that we had made a careful comparison with the situation of the Ontario OPP and the Sûreté du Québec in terms of participation in political activities. We saw there that many of the things that would be prohibited here or prohibited unless you took a leave of absence were allowed in those police forces. In that sense, we do have a guidance as to what is required to maintain an impartial police force. The police function is a police function, whether exercised provincially or nationally.

We do have a practical example on how far and where you can set the limits and preserve operational efficiency. Although we did not bring back this legislation, there are legislative models. The senator mentioned the United States, which has quite a different constitutional structure but which does offer some guidance of what can be done and still have a police body that functions well and in which people have confidence.

Mr. Bernhardt: If I could turn members' attention to page 12 of the commentary, the issue here is restrictions on freedom of speech by candidates in elections.

If one looks at 57(1)(b), we will see that this applies to members who are on a leave of absence and who are running as candidates for the leadership of a political party or under (a) who are running as candidates in an election.

The first question that arises is whether any attempt to limit the free speech of someone who is a candidate in an election is legitimate. Is it legitimate to turn around and put any limit on what they can or cannot say?

There are scope problems as well. Let us assume that a member is on a leave of absence and is a candidate for the party that currently forms the government. One would expect that candidate to say that his position is that of the government. This would prohibit him from doing that.

Suppose a candidate wished to say he was in agreement, or it was the view of a provincial government that they should have more money for health care. Presumably, that is a factual statement, the provincial government either agrees that that is what it needs or it does not. He would be prevented from saying that.

These are illustrations of the problems that arise when you attempt to legislate what can or cannot be said by a person running for office.

It goes a step further when you go over to page 14 and look at subsection (2). When this was pre-published, it required that the member take reasonable steps to prevent his opinion from being misrepresented. In the final version, the member is actually required to take reasonable corrective measures where his views have been misrepresented. Therefore, the member is under a positive obligation to take steps to correct what misinformation may appear in the press over which he has no control or with whom he has no connection. It is suggested that this is clearly an unreasonable requirement.

Mr. Lee: On this particular issue, then, there is perhaps vagueness or lack of precision in the ruling. One interpretation would be that you cannot hold yourself out as speaking for the government or the state when you are a candidate, which was likely the intention. The other interpretation, which you have kindly put before us, is that your opinions as a candidate may not even coincide with those of the government or the state. You can read this in such a fashion that that coincidence of political opinion would be prohibited. Do I have that right?

Mr. Bernhardt: I think so. Once you have given someone leave, once this person is running as a candidate, is it legitimate to put a limit on what he can or cannot say or to tell him what he must or must not do in reaction to something someone has said about him. That is something we have kicked around and there are somewhat divergent views. The notion leaves me uncomfortable.

Mr. Lee: Put it on the list.

Mr. Bernhardt: The last issue, which is concerned with 58.5 of the regulations — which is set out on page 32, as was the case in the pre-published version — is upon election where a member is required to resign or retire. This applies to both full-time and part-time positions. There was concern expressed when members looked at this provision in the earlier draft version that the application to part-time municipal offices was an overly broad provision.

There is now an exception here to some extent for members who are not peace officers who are elected to part-time municipal or band positions. They can remain a member while holding office if holding that office does not seriously interfere with the performance of their duties or cause a serious problem for the functioning of the member's unit.

The earlier concern, however, remains with respect to members who are peace officers. The interests that the restriction seeks to protect are the operational needs and the integrity of the force. The question is: Would these interests be compromised by a member sitting part-time, without remuneration, on a council in a municipality where he does not carry out police duties?

The Joint Chair (Senator Hervieux-Payette): There is remuneration.

Mr. Bernhardt: We have a provision earlier on that we have not touched on that does not allow the member to accept remuneration.

Put another way, if holding a part-time office does not seriously interfere with the member's duties or cause a serious problem for the functioning of the member's unit, why should the member not be permitted to hold the office regardless of whether or not he is a peace officer? We let non-peace officers do it.

Mr. Lee: Put it on the list.


Ms. Jennings: Even in the case of members who are not peace officers, the reasons stated in section 58.5(2) do not justify allowing them to assume these duties provided that holding that office does not seriously interfere with the performance of the member's duties on the force or cause a serious problem for the functioning of the member's unit.

No employer can prevent a person from holding two jobs. However, if I worked full-time as a secretary or salesclerk at Eaton's and held down a part-time job elsewhere and if holding two jobs meant that I failed to perform up to the minimum standard set by my employers, whether in my full-time or part-time job, then my employer can refer to a host of labour law regulations. He can issue a warning to me, or he can suspend me either with or without pay. A range of sanctions can be applied. I do not think this provision makes much sense for members who are not peace officers. As for members who are peace officers, I fail to see how they could be forced to resign.


This is a blanket prohibition. Any member who is elected under 58.2(1)(a) or 58.4(1)(a) must resign. I do not see that there is any justification. I have never seen anything in any of the documents that the bureaucrats have brought before us or that the Solicitor General himself has stated before us to justify such a blanket prohibition.

Mr. Lee: Put it on the list.

The Joint Chairman (Mr. Grewal): It being 10 o'clock, should we proceed to the next item on the agenda?

The Joint Chair (Senator Hervieux-Payette): Are there many more items with which we have to deal?

Mr. Bernhardt: Those are the substantive issues. There are some other questions posed in the commentary with the suggestion, perhaps, that these are questions that need to be asked or that an explanation should be sought.

Where there is something, for example, that did not appear in the pre-published version, I think it is legitimate to ask why it was put in. There are a couple of provisions about whose purpose we are not sure.

The Joint Chair (Senator Hervieux-Payette): Is it agreed that we write to the Solicitor General with all our remarks, including, of course, asking for clarification?

Mr. Lee: Agreed.

The Joint Chairman (Mr. Grewal): That should also include a tight deadline.

The Joint Chair (Senator Hervieux-Payette): The deadline should be one month because they do not go very fast.

The Joint Chairman (Mr. Grewal): Let us give them three weeks.

The Joint Chair (Senator Hervieux-Payette): Okay.

Ms. Jennings: If we give them 30 days, it means that the deadline will take place during the Easter break. That means that we should have the response for the first meeting of this committee after the Easter break.

The Joint Chairman (Mr. Grewal): Before we move to the next item, on behalf of the committee, let me thank counsel for a job well done on this issue.

Mr. Lee: Mr. Chairman, I should like to raise a point of order. It has to do with the balance of the agenda. We have spent a long time on the first agenda item — and appropriately so. However, there is an item involving the Hamilton Harbour Commission. I have to leave fairly soon; however, before I do, I wanted to bring this item to the attention of members because it has not been flagged yet. Would it be possible to take that up now?

The Joint Chairman (Mr. Grewal): I have no problem with that.


Mr. Lee: In a reply to a letter from this committee, the chair of the Hamilton Harbour Commission appeared to provide an undertaking in response to our request for one. However, upon reading the letter, it is not as precise as some of us would like. It appears to say, Oh yes, sure, we will give the undertaking, and we have never used the by-law for lands that should not have been covered under the by-law.

I want to point out that, as I see it, this formal undertaking by the chairman of the Hamilton Harbour Commission was not even signed by the chairman of the Hamilton Harbour Commission.

If you look at the letter dated February 9, someone has signed it for her. I do not think it is very businesslike to provide a formal undertaking to the Parliament of Canada and to have it signed by who knows who.

Because of the other vagueness items in the letter, counsel has reviewed them reasonably well. This is an agency that makes by-laws, give or take, on its own through the Transport Department. We recognize that the history of this Hamilton Harbour Commission matter goes back a number of years. It is my sense, from reading this letter and from dealing with them previously, that there have not been many sincere responses. I have some reason to have some concern about how harbour commissions generally are dealing with this regulatory power. I ask members to keep in mind that our power of disallowance on this committee is not applicable to harbour commission by-laws. Our current disallowance structure does not reach that far.

If committee members want to study it, this could be an excellent example of how a harbour commission deals with its regulation-making power, how it is or is not responsive to the public interest, and how we might wish to treat the subject matter of agencies not directly represented in Parliament making regulations on their own and not through a minister who sits in Parliament. It must also be kept in mind that these regulations are not made by the Governor in Council.

I suggest that the clerk and counsel scope out a short list of issues that we could take up, along with the items to which I have made reference, and that we call the Hamilton Harbour Commission. I have some questions I want to ask of a harbour commission. I think the Hamilton Harbour Commission would be a good commission to ask them of.

I realize that we may get busy. However, there is no reason that we cannot find an appropriate time slot. It may require an extra meeting.

I would like to propose that, because I do not think we will get any final answers today on some of the questions I have just raised in relation to the Hamilton Harbour Commission.

If members want to defer this matter, it is all right with me.

The Joint Chairman (Mr. Grewal): We can look into that matter.

Mr. Lee: I am prepared to move now that we set aside a meeting, call the Hamilton Harbour Commission and review issues that counsel and clerk can outline for us, making reference to my earlier comments and the issues that were earlier raised in the Hamilton Harbour Commission file, along with other harbour commission files, that could be considered generic to the harbour commission paradigm.

Mr. Bernier: Would this be an examination by the committee asking the commissioner or commissioners to appear in order to examine the process and manner in which by-law-making powers of the commission have been exercised?

Mr. Lee: Yes, including the issue of accountability and complaints.

Mr. Bernier: You are aware, I take it, that they are on the verge of disappearing.

Mr. Lee: Their successors will operate within the same structure.

The Joint Chairman (Mr. Grewal): There was a point mentioned by counsel that the correspondence from the Department of Transport was misleading. Do you doubt that?

Mr. Lee: We do not know who was misleading whom. We do not even know if it was advertent or inadvertent. Thus, we should call the party we want to deal with to find out who is on first and who is on second.

We should call the DIO from Transport and the chairman of the Hamilton Harbour Commission, and anyone else that he or she thinks would be appropriate to assist, to answer questions that will be outlined in our invitation. We do not have to order them.

The Joint Chair (Senator Hervieux-Payette): It is more than that. Mr. Lee and I have discussed it. As parliamentarians, we feel very uncomfortable that these people would adopt regulations that are not subject to review by anyone. After having been granted powers under legislation passed by parliamentarians, it is a very strange thing. They have to answer to someone.

We may have some questions as to why we should continue this process and how it would impede their activity if we were to review these regulations. Why should there be double standards? This is a strange process. Addressing this question in the larger context is quite appropriate.


Ms. Venne: Certainly we could invite the Commissioner to come before the committee, but we should not use this reply as a pretext. It is not uncommon in the case of organizations like this for correspondence not to be signed personally.

The following is noted in the last paragraph of the reply:


If there is anything that the Committee requires from us that will assist in this regard, we would be pleased to provide it.


This is worded broadly enough to suggest that the Commission is prepared to acquiesce to our particular request. If we want to question the Commission about other matters, then we should not contact them on the pretext that their reply was unsatisfactory. We should probably hear from the Commission because it appears to be acting outside the regulatory regime. However, let us come up with a reason other than that their reply was unsatisfactory.

The Joint Chair (Senator Hervieux-Payette: This is a preventive measure in anticipation of the regulations that will be drafted to accompany the new legislation. It is far better to start off on the right foot. This is simply a first step. We will be discussing more than just the regulations. Therefore, we will find time to schedule these witnesses.

The meeting is adjourned.