[Recorded by Electronic Apparatus]
Thursday, June 3, 1999
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.
Mr. Gurmant Grewal (Joint Chairman) in the Chair.
The Joint Chairman (Mr. Gurmant Grewal (Surrey Central, Ref.)): The first thing I wish to tell the members is that our travel plans have been approved by the liaison committee. We are still seeking the approval of the house leaders, and then the approval of the house.
Is it agreed that the steering committee be authorized to organize the plans for our travel to Australia?
Some Hon. Members: Agreed.
The Joint Chairman (Mr. Grewal): At the last meeting, we decided to invite Mr. Breitkreuz to give evidence pertaining to the gun control registry. He could not attend here today, but can be here some other time. Should the committee meet next week, he can probably be here.
Do we need a meeting before the house adjourns? If so, we could meet on June 10 to finalize the details for the Australia trip and to hear from Mr. Breitkreuz.
Mr. Saada: The only problem I can foresee — and it is a minor problem — is that if we have a full night of voting the night before, as is the rumour, we will not be very fresh to think about these problems.
The Joint Chairman (Mr. Grewal): We can have the meeting at 9:00 instead of 8:30.
Mr. Saada: Thank you. I knew you were a very flexible chairman.
Mr. François-R. Bernier (General Counsel to the Committee): If the only purpose of the meeting is to hear Mr. Breitkreuz, Mr. Chairman, we could even meet at 10:00. I do not think his presentation will be lengthy.
The Joint Chairman (Mr. Grewal): We would also want to deal with any outstanding business.
Mr. Bernier: Would that require an hour and a half? I doubt it.
If we were to meet at 10:00, that should be sufficient.
The Joint Chairman (Mr. Grewal): I have no problem with that.
Senator Moore: Nine o'clock is better for me because I have to attend a meeting of the Legal and Constitutional Affairs Committee.
Ms Venne: I would like to know when the steering committee is scheduled to meet? Will it be meeting before Thursday?
The Joint Chairman (Mr. Grewal): We do not know that yet but we can decide now. The steering committee members are here. We can meet after this meeting or we can meet on Tuesday.
Mr. Bernier: Do you have decisions to make now, or are you still waiting?
The Joint Chairman (Mr. Grewal): I think we can get the approval of the house before Tuesday.
Mr. Bernier: What about the Senate?
The Joint Chairman (Mr. Grewal): Do we have to wait for the Senate?
Mr. Bernier: Yes. It is a joint committee.
The Joint Chairman (Mr. Grewal): Do any of the senators plan to travel with the committee?
Senator Moore: I am not interested in going. I do not know about the others. We have not discussed this. I am not sure if your co-chair is interested. She may well be. I do not know whether Senators Kelly, Lewis or Grimard would like to go.
The Joint Chairman (Mr. Grewal): Has the Senate approved funding for the travel?
Senator Moore: I am not aware of that. I am not a member of the Internal Economy Committee so I do not know whether that has been considered.
The Joint Chairman (Mr. Grewal): I will ask the clerk to follow that up. If we get approval from the Senate for travel, we can probably proceed.
Senator Moore: Perhaps the clerk should speak to the joint chair.
Mr. Wappel: Mr. Chairman, do we need a meeting? How urgent is the appearance of Mr. Breitkreuz before the committee? If there is no time limit on these regulations, we could meet with him in September or October just as easily as next week.
Second, we have authorized the steering committee to make the decisions with respect to travel. The steering committee can notify the appropriate members when and if both houses approve travel. There is no need for us to come here to hear that news. It can be communicated by telephone or fax. If there is no other business, what is the point of having a meeting?
The Joint Chairman (Mr. Grewal): We still have one or two issues to look into. I do not know if we can do that today.
Mr. Bernier: That is the first item on the agenda, Mr. Chairman, so it will be looked at today.
The Joint Chairman (Mr. Grewal): At our last meeting, we decided that if we heard from Mr. Breitkreuz counsel could work on this matter during the summer.
Ms Venne: I agree with Mr. Wappel. We can certainly wait until September. I see no reason to get into this next week. In any event, I would not be able to be there and I would like to hear what this person has to say as well. Since there is no national emergency, I think we can wait until September.
The Joint Chairman (Mr. Grewal): The consensus I am getting at this moment is that we will have a steering committee meeting and communicate to the members of the committee the decision by e-mail or by letter. In this way, we can postpone this issue until September or October.
Mr. Wappel: Mr. Chairman, I do not want to prolong things. However, I understand that Mr. Breitkreuz is very passionate about this issue. I suggest that if Mr. Breitkreuz has any material that he has not already provided to counsel he could do that. Counsel has the summer to look at it and could have us ready and up to speed when Mr. Breitkreuz makes his presentation. I would not suggest to Mr. Breitkreuz, even obliquely, that the summer is lost, provided he submits the information, in which case counsel could, perhaps, review it over the course of the summer.
Mr. Lee: Mr. Chairman, Mr. Wappel asked if we need a meeting. Surely, the firearms matter is not the only item of business we have in the pipeline. Can counsel indicate whether we need a meeting to deal with any matters before we break for the summer?
Mr. Bernier: The committee could meet twice a week, Mr. Lee. So, yes, we can have a meeting. We certainly have enough material.
If you are asking whether there are items out of the ordinary that must be addressed before the summer, no, I do not think so.
Mr. Lee: Therefore, from the normal flow of business point of view, we do not absolutely need to have a meeting next week. Thank you.
The Joint Chairman (Mr. Grewal): Our next meeting will be in September or October when the house resumes.
Let us move to the agenda.
SOR/86-1078 — IMPORT OF ARMS PERMIT
Mr. Bernier: In this case, Mr. Chairman, the committee had requested an appearance from the Deputy Minister of National Revenue, first, to provide a reply to a letter that was sent to the Minister of National Revenue on September 4, 1996, which had remained unanswered despite numerous reminders.
The second reason for which the appearance was requested was for Mr. Wright to explain why a letter sent to the minister on September 4, 1996, and which the minister on September 17, 1996 stated had been referred to senior officials for response, has not yet been responded to.
On May 13, 1999, Mr. Wright was informed of the committee's request that he appear before the committee this morning. A reply was received on May 26, 1999. The last time the committee met, it decided that, even if a reply were received, they still wished Mr. Wright to appear to explain why a response was not received before this time.
Therefore, the clerk, in accordance with that instruction, pursued the committee's invitation with the department but, unfortunately, has been unable to secure the witness's appearance. I think Mr. Onu can probably explain further what he has done and what has transpired.
The Joint Clerk of the Committee (Mr. Tõnu Onu): After receiving the response from the department, I called the department, as counsel explained, since the decision of the committee was to invite the deputy minister, to ask if the deputy minister would attend before our committee. At the beginning of this week, the department telephoned to inquire whether, since the response had been sent, the committee would accept an appearance from the chief legal counsel as opposed to the deputy minister. At that time, I explained that the committee's position was that it wanted the deputy minister to appear and no one else.
Following that explanation, yesterday I received a letter from the department stating that the deputy minister could not appear but that he would be willing to appear, if the committee so desired, at another date. That is where the situation stands.
Mr. Wappel: The letter from Mr. Wright does nothing to explain the delay. In my opinion, it is a completely perfunctory letter in that respect.
I note that it is only in the last seven words of his letter that he apologizes for the delay in not responding to us for over three years. That is unacceptable. We knew that as soon as we requested an appearance by deputy minister we would get an answer and that he would try to weasel out of it. It has happened exactly as we expected.
On numerous occasions, we have indicated that we wish to reassert the authority of this committee and get the attention of senior level bureaucrats to this committee and its importance. It is completely unacceptable that Mr. Wright is too busy to attend. We should ask him again to attend.
I am unclear as to our powers. I would prefer not to ask him to attend' if possible, I would prefer to command him to attend. I prefer that we pick a date of our choosing and insist that he be here, or else.
My problem is that I do not know if we have that authority. I do not know what the or else is. However, if we have the authority and if there is an or else, I think we should use it. We want no one else but him.
I am also interested in counsel's opinion as to whether on the substantive issues Mr. Wright has answered the concerns of the committee. If he has, then the only reason for him to come, it seems to me, is to explain to us the delay and his perfunctory apology for that delay. If he has not answered substantively the concerns of the committee, then, presumably, over the course of the summer, further correspondence could be undertaken with respect to the substantive nature of the issue but not on the politeness issue. That is where I am coming from.
Mr. Lee: Perhaps it would be better if counsel first address the substantive issue posed by Mr. Wappel. That would either leave on the table a matter for disposition or take one off, which would simplify the ensuing discussion.
Mr. Bernier: Mr. Chairman, on the first matter, as I am sure our resident expert on sending for persons and papers will confirm, the committee has the power to summon witnesses. It is done through the issue of a certificate of attendance. The committee has done so before, in 1978, I believe.
As to the second question, the reply does address the question. The argument that is made is not one that convinces me. However, it is a possible legal argument.
I have not really thought out a recommendation on the substance for the committee. I suppose the recommendation would be that the argument here is that the Crown is not bound by certain parts of the customs tariff, even though it is mentioned in those parts, which would normally be seen as an indication that Parliament intended for them to be binding. The argument is that the mention of the Crown in the relevant portion was included for greater certainty.
In other words, what is done in those parts is that the Crown is given an exemption from tariff provisions that would apply or seem to apply. The implication, from the committee's point of view, is that if you specifically exempt the Crown, by name, this must reflect the position that, absent that exemption, the part of the tariff item would indeed apply to the Crown. The argument put forward by Mr. Wright is that, no, we are simply exempting the Crown for greater certainty. The tariff item in question does not apply to the Crown, and Parliament simply emphasized this fact.
It is cute. It is doable as an argument. It is not one I am convinced a court would follow, but it is a legitimate argument. The solution, perhaps, from the committee's point of view, may be in the future to say that, if it is so clear that these parts of the tariffs do not apply to the Crown, surely we do not need a for-greater-certainty element in there and they should be removed, thereby avoiding the suggestion, which exists now, that the parts of the tariff item do, indeed, bind the Crown.
Mr. Lee: Mr. Chairman, I would give Mr. Wright and the departmental officials here a fairly good mark on the letter because it addresses the core issue. I understand the logic presented by counsel here. However, the core question, as I see it, is whether the Crown is bound by a statute unless explicitly so in the statute.
I would point out that Parliament itself, as an institution, takes the same view, that Parliament, as an institution, is not bound by a statute unless the statute explicitly states that.
One could also argue the other position, that, were a statute to be obviously frustrated by the exclusion of Parliament from the operation of it, you would want to include Parliament. You might want to argue that as a corollary.
The real issue, as I see it, is whether or not that principle enunciated by Mr. Wright — that the Crown is not bound by a statute unless explicitly stated in the statute — is correct. That is an important thing to establish. If that is correct, then Mr. Wright would appear to be on good ground and the logic applied by counsel would appear to be unnecessary. We should try to establish that. It may mean more research. Perhaps counsel has the answer now. However, if that is viable and acceptable, now and forever, then we have our answer and all that is left is perhaps some housekeeping.
Could counsel comment on that?
Mr. Bernier: I have a couple of comments. The position at law is quite clear. The Crown is not bound by statute unless the statute expressly states that it is bound or by necessary implication, and we then look at what necessary implication requires. One element would be the purpose of the statute being frustrated and so on.
This is really the issue. If you have a statute, a provision of which, on its face, does not appear to apply to the Crown, but then a second provision is enacted in which Parliament says the first provision does not apply to the Crown, the normal deduction is that, absent this exception, Parliament did consider the issue. This is where the necessary implication would come in, that you do not have the verbiage in the statute. If the thing does not apply to the Crown, why mention it? Why say it does not apply when that is already the legal position? Why repeat an established legal position?
The other approach, which is the one we took, is that, since Parliament has done that, then this must reflect an intent and, therefore, we find the necessary implication that Parliament intended the first tariff provision to bind the Crown.
As you suggested, this bears further study before the file is brought back to the committee on substance.
The last comment I would make in reference to Mr. Wright's statement that all three departments are satisfied that the Crown is not bound by Part III of the former Customs tariff is to point out that initially the Department of External Affairs agreed with this committee. There was never a satisfactory explanation of how they came to change their position. It is not entirely correct to say that the committee alone has been holding this position. Its position was accepted by the Department of External Affairs.
Mr. Lee: There is a possibility that the House of Commons and the Senate have been somewhat inconsiderate of the Crown by including references to the Crown in some of these statutes. However, there have been times as well when the Crown or the executive of government has been inconsiderate of Parliament in the same way, so perhaps counsel will try to give us a firm view on that issue. That would help us out greatly.
To go to the issue of etiquette that Mr. Wappel has discussed, this is a fairly egregious circumstance, where these reminders and requests for response were spread out over a couple of years. I do not think Mr. Wright's response to us has been adequate. I would like to think that we might get a better recognition of the problem here, on the etiquette side. If Mr. Wright is too busy to attend here, we can always call his minister. As a matter of fact, he has indicated that there are two ministers who may be involved now. We could call both ministers and then all the deputy ministers could get direction from their ministers at this committee.
That might be a bit of overkill, but if we were to ask Mr. Wright to attend at this point, I would agree with Mr. Wappel that we should order him to attend on a specific date. The invitation route obviously was not successful, for whatever reason. Perhaps Mr. Wright is too busy but we are busy, too. If we were going to ask him to appear before the committee, I would support an order that he attend at a specific time.
The Joint Chairman (Mr. Grewal): Before I go to Mr. Wappel, in my opinion, even though I do not like the term certificate of attendance, I think we should send something like that and ask the deputy minister or the minister, whichever is appropriate, to appear before the committee at its next meeting, which will probably be sometime in September.
Mr. Wappel: Mr. Chairman, I do not agree with Mr. Lee, with respect, first, that we should involve any ministers at this point, because the minister will not have a clue as to why another minister made a request that a letter be answered and was not answered. The person who must answer for the department on matters like this is the deputy minister.
Second, I would not wish to order a certificate of attendance for a minister without thinking about it, even if we had the power.
I certainly think we should order a certificate of attendance for Mr. Wright, and he has plenty of notice, if he receives that certificate of attendance in the next week or so, for a late September or early October date. There can be no possible excuse that he cannot readjust his schedule now. That is absolutely critical. I am certain that that will send a ripple through the executive levels of the bureaucracy that this committee means business.
I would not wish to involve any of the ministers at this point. Mr. Wright is the man who must answer for his department.
Mr. Lee: To clarify, I was not proposing that we call the ministers. I threw it out as an alternative just to bracket the discussion.
I am not even certain that we absolutely need to call the deputy minister here. I think we have identified a problem. Perhaps we should, at this point, ask the deputy minister to address it — he will have the benefit of our transcript — and to address it before our first meeting after the summer break.
If he has managed somehow to adequately address the problem in correspondence, then the committee may wish to take that into consideration.
I do not know whether, by way of putting closure to this, we must go all the way and order his attendance. It may be that a properly crafted communication addressing those interstitial spaces of etiquette might suffice for members.
The Joint Chairman (Mr. Grewal): I am sure counsel has noted that and that our communication will be sharp.
Mr. Wappel: In his previous sentence, Mr Lee said that he supported a certificate of attendance for Mr. Wright, but now he is not supporting it. I move that this committee issue a certificate of attendance for Mr. Wright to attend at a time designated by this committee.
Mr. Bernier: I will quickly verify this. The issuance of a certificate of attendance requires that an actual date be fixed. One can understand why that is required. In order to comply with an order, you must be in a position to comply. Possibly, however, the committee could now adopt a motion that the Deputy Minister of National Revenue be ordered to appear before the joint committee at its first regular meeting when the session resumes. The motion would also authorize or instruct the chairmen, presumably at that time, to issue a certificate of attendance.
Mr. Wappel: At what time?
Senator Moore: As soon as the date is known for the first regular meeting. The chairmen would then be instructed to issue a certificate of attendance, which would include the date for that meeting.
Mr. Wappel: I move the motion.
Senator Moore: I second the motion.
Mr. Saada: We are dealing with a substantive issue as well as with a question of form. Regarding the substantive issue, I believe we are beginning to deal with it, but there are still some issues to be settled. On the question of form, the problem is the lack of a satisfactory answer and the length of time this has taken.
We have two choices: either we recognize that we are rather frustrated with the time this has taken and we attempt to reassert our authority, in which case we decide on an appearance date for the witness, or we demand in writing that a satisfactory response be provided regarding this matter. We could state in the letter that if the committee is not satisfied with the reasons given, then it would be obliged to order the witness to appear. This would amount to a sanction of sorts and I am not totally comfortable with that idea. Therefore, I am more inclined to go along with Mr. Lee's suggestion, and to temper it by sending off a letter stating that if ever the committee were not satisfied with the reasons given, then it reserves the right to formally order him to appear.
The Joint Chairman (Mr. Grewal): We have a motion on the table, but I will go to Senator Moore before we deal with it.
Senator Moore: My question is for counsel. Does a certificate of attendance need to be issued within a minimum period of time before an appearance date?
Mr. Bernier: I do not believe so. Subject to correction, that is entirely in the hands of the committee.
Senator Moore: With respect to what Mr. Saada was saying, I am very frustrated by this, as, I am sure, is everyone else here. It seems to go on and on. It does not comply with our YK2 clean up, does it, Mr. Lee?
Mr. Lee: Not at all.
Senator Moore: In addition to all that is going on here, can we write some kind of letter of reprimand that will go into this person's file? It is unbelievable that it takes three years to receive a letter back. There is no need for that. They do not care. They do not think there is any need or requirement for them to respond. If it takes commanding him to be here to get that message through to him and anyone else at that level of bureaucracy, then I am all for doing it.
Ms Venne: I also agree that having waited three years for a letter, the time has come to take action and a certificate of attendance might be just the thing, unless counsel is prepared to suggest some other equally effective means that we could employ? Quite frankly, a letter does not carry much weight, so why not opt for a certificate of attendance?
Mr. Saada: I am asking for information here. Why did it take three years before we became firm on this matter?
Mr. Bernier: The first letter was sent to the minister on September 4, 1996. The Minister acknowledged receipt on September 17 and advised the committee that she had asked her officials to respond to the letter. Naturally, when joint chairmen write to the minister, we expect that closer attention will be paid to the correspondence. The portfolio also changed hands subsequently, which explains why we were willing to be a little more accommodating. The committee sent another letter to Ms. Stewart on March 12, 1997 reminding her that it had still not received an answer to the first letter. On November 12, 1997, the joint chairmen wrote to Mr. Dhaliwal, pointing out that they had yet to get an answer. The same scenario was repeated on May 22, 1998 and on February 5, 1999. If we have sinned, it may be that we have been overly optimistic. Finally, weary of constantly reminding the minister's office of its failure to respond, the joint chairmen sent the following letter on February 5, 1999:
We refer you to the enclosed correspondence and note that the committee has yet to receive a reply to our predecessor's letter of September 4, 1996 and subsequent reminders. We trust you will agree this reply is overdue and should be finished without further delay. We look forward to hearing from you...
One might have thought that this would have given departmental employees an indication that something was not quite right, but unfortunately, that was not the case. That is when I decided to bring the matter back before the committee.
The Joint Chairman (Mr. Grewal): We have a motion before the committee. It was moved by Mr. Wappel and seconded by Senator Moore.
Mr. Bernier: I have a possible text here if Mr. Wappel agrees with it. It was moved:
appear before the Standing Joint Committee for the Scrutiny of Regulations at its first regular meeting in the fall; and
soon as the date of that meeting is ascertained. Would our clerks confirm that this motion would fit the bill?
The Joint Clerk (Ms Baldwin): It should say summoned to appear.
Mr. Bernier: All right.
The Joint Chairman (Mr. Grewal): If the House of Commons prorogues, as it is rumoured, then it will probably be sitting in October and not in September, as was indicated before. Therefore, the first committee meeting would be in October. Rather than indicating a meeting in September, we can say the first committee meeting.
Mr. Wappel: The motion does not even refer to a month. It refers to the first sitting in the fall. Technically, that would be after September 22, or whatever it is. That falls within our means.
I want to be assured that the deputy minister will receive the notification as soon as that date is available so that he has the longest period of time to adjust his schedule.
The Joint Clerk (Ms Baldwin): If there should be a prorogation, the committee will cease to exist and will need to be re-appointed. This order to summon will no longer be in force. The committee, when it comes back and is reconstituted, would need to pass another motion in order for the summons to be re-issued.
The Joint Chairman (Mr. Grewal): As far as this committee is concerned, I believe it will happen before the house prorogues. The motion is on the table. If the motion is approved, then we should stick to the motion.
Mr. Wappel: Mr. Bernier asked if the motion was to my satisfaction. Senator Moore made a point and I would like to attach something to it. That is, a letter should be sent to the deputy minister advising him of the decision that we took today. He will know what we did and he will have plenty of notice. If the House of Commons prorogues, it prorogues. There is nothing we can do about it. That is the motion and I so move it.
The Joint Chairman (Mr. Grewal): The motion is on the floor. All those in favour?
Some Hon. Members: Agreed.
Mr. Lee: Abstain.
The Joint Chairman (Mr. Grewal): Carried.
SOR/99-26 — REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988
Mr. Bernier: The committee has before it two letters from the Solicitor General, the second of which was received on Monday, May 31, 1999.
I would propose that the committee deal with the letters in the order received. In the material that was previously distributed, in addition to a copy of the regulations and relevant portion of the RCMP administrative manual, members will find the letter that the chairman sent on March 24, 1999 and, second, a reply to that letter dated April 30 from the Solicitor General.
My colleague Peter Bernhardt has also prepared a note discussing the reply of the Solicitor General. With the permission of the committee, Mr. Chairman, I would ask him to present this document to members.
Mr. Peter Bernhardt (Counsel to the Committee): Thank you, Mr. Chairman. In a letter dated March 24, the joint chairmen advised the Solicitor General of the committee's concerns with respect to the constitutionality of the new provisions governing participation in political activities by members of the RCMP.
That letter sets out in detail the committee's concerns over specific provisions, also in connection with the consultation process leading up to the making of the amendments, as well as the issue of the appropriateness of restricting constitutional protected rights and freedoms by regulation as opposed to an act of Parliament.
In addition, the chairman's letter posed a series of questions. The answers to these questions will determine whether certain provisions can withstand scrutiny under the Charter.
The Solicitor General's reply of April 30 deals with a number of these matters. In some instances, an explanation is provided that addresses the committee's concern. In some instances, there is an undertaking to make further amendments.
In the majority of cases, however, the reply cannot be seen to satisfactorily respond to the committee's objections. A number of questions raised in the chairmen's letters are simply not dealt with. In other cases, the reply seems to confirm the committee's concern that the amendments are still not consistent with the Charter.
The Solicitor General has previously indicated that he was prepared to assess the appropriateness of acting on the committee's recommendation to amend the act itself, to address the issue of political rights of members of the force. In his April 30 reply, the Solicitor General reiterates that he is prepared to look at dealing with this issue by amending the act but that this is, and I quote, not a priority in the short term.
The committee has again been unsuccessful in its attempt to obtain a firm undertaking that this recommendation will be acted on.
Regarding the prohibition against the holding of part-time political office by members of the force who are peace officers, the Solicitor General states:
neutrality and impartiality of our national police force, the RCMP. It was to uphold these values that the provision relating to part-time political office was placed in the regulations. It is the view of the RCMP that the holding of part-time political office by peace officers would prejudice the integrity and impartiality of the Force. There are a couple of comments in connection with that statement. Of course, for purposes of a Charter analysis, ensuring the neutrality, integrity, and impartiality of the force are to be viewed as government objectives, just like any other government objective.
Once it has been concluded that these objectives are legitimate, it remains to be determined whether the means chosen to achieve them bear a rational connection to the objectives and, if so, whether the means chosen impair the constitutionally protected rights and freedoms as little as possible.
In terms of the approach to be taken in determining whether the Charter has been contravened, the objectives in question are no different than any other government objectives. This is so regardless of whether one characterizes them as values or as anything else for that matter.
The Solicitor General also alludes to the fact that the RCMP is a national police force. The note takes some pains to illustrate that this has little if any relevance to the question of whether the restrictions on political activities of members of the force can withstand scrutiny for compliance with the Charter.
The government objective, which here, of course, is preservation of impartiality of the police, is the same with respect to every police force. Yet it is argued that a national force should be subject to a different constitutional yardstick. Surely, one would not suggest that the impartiality and integrity, for example, of the Ontario Provincial Police or the Sûreté du Québec is any less important than the RCMP.
It is undoubtedly the case the RCMP operates on a national basis. The OPP and the SQ operate on a provincial basis. What is relevant for Charter purposes is that members of all three forces exercise similar functions. The extent of the territory in which those functions are exercised cannot be the deciding factor.
By analogy, no one would seriously argue that the Supreme Court would permit greater restrictions on the political activities of federal civil servants than are imposed on provincial civil servants generally for the simple reason that the one operates on a national basis and the other operates on a provincial basis.
Similarly, we would not suggest that federal court judges should have greater restrictions on their ability to engage in political discourse than judges of the superior courts of the province.
For the most part, the functions that are engaged in on a day-to-day basis by most members of the RCMP are similar to the functions exercised by members of any other police force.
To the extent this is the case, the fact that restrictions on the members of the OPP and the SQ are significantly less onerous than those imposed on RCMP members is evidence that these restrictions are not likely to meet the minimum impairment test under the Charter.
Having said that, obviously there is a set of functions performed by the RCMP that are not performed by other police forces — for example, with respect to matters of national security. This might permit setting a broader circle of persons within the RCMP who are excluded from political activities, but we do not feel that it can justify the imposition of greater restrictions on all RCMP members without regard to the functions and duties they actually perform.
It is also worth noting in this regard that the laws governing political activities of members of the FBI, CIA and the National Security Council, all national U.S. organizations, do not contain the level of restriction we find here.
I do not propose to deal any further with each individual provision of the amendments. These are set out in the discussion in the note. The note reproduces each portion of the chairmen's March 24 letter, followed by the relevant excerpt from the Solicitor General's reply, which is then followed by counsel's comment.
I have also not dealt with the consultation process preceding the amendments. I believe that Mr. Bernier has some comments in that regard. There is also the letter that was circulated to members this morning from the Solicitor General.
The short conclusion is that the information provided in the Solicitor General's letter only serves to confirm the view that the provisions of the regulations dealing with political activities and members of the RCMP continue to contravene the Charter.
Mr. Bernier: Mr. Chairman, I would now like to direct the attention of members to the May 28, 1999 letter that was received from the Solicitor General on Monday. This letter was apparently sent following a meeting between a member of the committee and a representative of the RCMP. It is immediately apparent that the RCMP and the minister are mistaken in their assumption that this meeting was a committee initiative. This is something to which the committee may wish to return.
With one possible exception, this letter really adds nothing to the record. That one exception concerns a suggested amendment to section 57(1) of the regulations. If members wish, Mr. Bernhardt can elaborate on this point. However, it seems to us that the amendment on this aspect might resolve any concern of constitutionality, provided we have understood the suggestion correctly. It should be said here, however, that passage of that amendment would not alter our current view that the regulations as a whole are contrary to the Canadian Charter of Rights and Freedoms.
There is one topic, Mr. Chairman, that comes up again in the minister's letter and to which I wish to address some comments. It has to do with the matter of consultation prior to the making of these regulations.
In their letter of March 24, the chairmen had noted that, according to the parties concerned, that is, RCMP members, consultation on the regulations have been inadequate. This seems to have touched a sensitive chord because the Solicitor General has now come back to this aspect of the matter on two occasions and does so again in the annex to this letter of May 28.
Mr. Chairman, in spite of the protestations of RCMP management, the fact of the matter is that the chairman of the internal affairs committee, which represents the members of the RCMP, is the person who wrote to the officer in command of the internal affairs branch that - and I will paraphrase — although the impact analysis statements says there was consultation from the early stages, they failed to mention there was none with representatives of the members during the later stages.
Prior to a November 30 conference call with RCMP management, the same gentleman wrote — he was being asked to discuss a draft that had been changed without any consultation with us and of which he had not even received a copy — that it was his impression that what input he would have was totally irrelevant to the matter because this has to be done on their part ASAP.
On December 1, a divisional representative stated that the lack of consultation, resorting to conference calls, and now asking DSRRs — divisional staff representatives — to comment on yet more amendments that were not supplied is totally inappropriate and wrong. He said they cannot and should not be operating in such a fashion.
I am sorry to take so much time on this, Mr. Chairman, but I think it is important to make clear that the committee's criticism of the consultation process in this instance is supported by direct evidence from the people concerned.
RCMP senior management may repeat ad nauseum that members were properly consulted; the fact of the matter is that the members themselves clearly did not feel this to be the case.
In the final analysis, as the chairmen wrote in their letter:
...a process that leads those most immediately concerned to conclude that they were not consulted must clearly be labelled inadequate. I suggest that that was and still is an accurate assessment. It might be more profitable for RCMP management to simply accept the criticism and to work on ensuring that its consultation process is not only effective but seen to be effective by its own members instead of focusing on denying the existence of the problem.
At this point, Mr. Chairman, the committee must decide how it wishes to proceed on this file. As Mr. Bernhardt has mentioned, many of the questions raised in the March 24 letter have not been addressed or replied to in the Solicitor General's reply. Presumably the committee wants answers to those questions.
There is also an offer in the minister's letter of May 28 to carry on with some sort of informal process. The committee must address the question of whether this is appropriate or even necessary. If that informal process is to be pursued, how does the committee ensure that it is inclusive and reflects the collective will of the committee?
The Joint Chairman (Mr. Grewal): Before we deal with this, counsel, you mentioned section 57(1).
Mr. Bernhardt: Section 57(1) provides that a member who is on leave of absence and is running for nomination or running as a candidate in an election shall not represent and shall not allow an agent of the member to represent the member's opinions or comments on political matters as being opinions or comments of the Government of Canada, of the force, or of the province, region or municipality to which the force provides policing services.
The committee had raised three concerns with respect to that provision, and those are discussed on pages 7 to 9 of the note. The first and the most basic concern was whether, ab initio, it is permissible to have limits of this kind on people who are running as candidates in elections. Clearly, the Solicitor General and the RCMP think it is. They put the provisions in place. I think the onus falls on them to explain how they consider that to be appropriate.
Mr. Wappel: Mr. Chairman, on a point of order: I apologize to other committee members. If other committee members wish to continue to hear this legal briefing, that is fine, and I will leave. We have gone over this ground 1,000 times. The committee has said to Minister Grey, to Minister Scott, and to Minister MacAulay that the regulations are not satisfactory and not constitutional. We were prepared to disallow them. Minister Grey appealed to us to wait a bit. We waited a bit.
The Superior Court of Quebec took the issue out of our hands by confirming our view that the regulations were unconstitutional and disallowing them and giving the RCMP six months to get its act together.
Then Minister Scott came here and promised us that he would take our considerations into effect. We offered to have our counsel sit with their counsel to work on regulations that would be satisfactory to this committee.
Frankly, I do not want this to sound offhand, but I am not concerned about the consultations between the RCMP and its employees. That, to my mind, is not our business. Our business is that we offered to have our counsel consult with them, and they did not take us up on this offer, month after month, for well over a year, or pretty darn close to it.
We have already heard from our counsel that they have reviewed all this and that the proposed amendments are not acceptable. The regulations are still unconstitutional, in our counsel's view. That means that everything is exactly where it was when we were prepared to disallow before.
We now have in front of us this letter that says that Mr. Lee and the assistant commissioner have agreed that further meetings should be held to address this issue. I presume that that refers to Mr. Lee and Mr. Cleveland and has nothing whatsoever to do with this committee, unless this committee mandated Mr. Lee, on its behalf, to speak with Mr. Cleveland, which I do not believe occurred. Therefore, any meetings they want to have are just jim-dandy.
In my opinion, we are constantly riding a stationary bicycle. Unless it is for the purpose of losing weight, I say let us get on with the job and disallow these regulations. Let us look at the reality.
There is no way, in my opinion, even knowing the expertise of our counsel, that they could prepare a draft report by next Thursday. You were asking if there were any reason to have a meeting. There is no way we could deal with this substantive issue and have a draft report for disallowance for next Thursday. The earliest it could possibly be ready is September or October.
We will have a prorogation. This committee will be wiped out. Different people will be on the committee. Unless Mr. Lee and I and several other members are back again, no one will even remember the agony that this committee has gone through, unless the first meeting of the new committee has in front of it a draft report for disallowance approved by the previous committee. Perhaps, if this committee is lucky, it will have some corporate memory by a senator or an MP who is still on this committee. However, we cannot count on that.
My view is that we should just forget the legal briefings. We have been told they are unconstitutional. That is exactly what they have been ever since we started. We did not get any cooperation, just meetings and promises. Let us instruct our counsel to prepare a draft report of disallowance. We will not get it until the fall anyway. We will send this transcript to the Solicitor General. He and his officials can do whatever they wish over the summer. It gives them a significant amount of time to scramble and consult with our counsel, which they have not done before, and consult with Mr. Lee some more. Then maybe they will come up with something we like and we do not need to go with the draft. Let us get on with it, folks!
The Joint Chairman (Mr. Grewal): I would just like to correct Mr. Wappel, even though he made a good point. This was not a legal briefing; it was a reviewing of the situation after that.
Two points arise. The first has to do with Mr. Lee being mandated by the committee to proceed in an informal way. I do not recall that that ever occurred. Second, if the committee has been pursuing this issue for so long, then we should prepare the draft and leave it there until the next committee.
Are there any other opinions on the table?
Mr. Lee: I have a number of things to say. I am disappointed that Mr. Wappel omitted what I regard as a fairly important point; that is, that the regulations that we are dealing with in this case are six months old. This is not the same set of regulations that went in front of the Quebec courts. We, in essence, have a new file. There are some repeat provisions in here, but the regulations that we are reviewing now were put in place in December 1998. Our counsel reviewed them and in a very detailed fashion outlined the committee's concerns.
We have had more than one reply. We have had, certainly within the last two or three months, a back-and-forth dialogue on the continuing problem or the residual items that we have had difficulty with in these regulations. In the minister's May 28 letter to us, there are three separate items that the minister has agreed to amend or take care of. We have not addressed that here today.
If counsel were to prepare a report, would it include the items that the Solicitor General has agreed to change, or would we not include those?
I submit that this particular file is one where we have satisfactory question mark, the progress question mark. We are making progress with these. The chair has mentioned something about whether or not I, as a person, was mandated. Quite frankly, I do not need a mandate to meet with any minister, nor does any other member of Parliament around this table need a mandate to meet. I do not need to ask permission and I do not need to say thank you.
However, I have devoted some time to this. I had the benefit of some good advice and a briefing from Mr. Bernhardt so that I might be able to focus better on the deficiencies of the current RCMP regulations. With the short list that I was able to put together, I can only say that I was very pleased and I regard it as substantial progress in that each and every one of the items that I took up at the meeting are being addressed by the force.
I am not sure anyone has a point-by-point list, however, the list that we have is significant; it is 10 or 20 items. Counsel has indicated that some items have been agreed to be changed. However, I am still, as a member, looking for a short list. I will take the long list of items.
I wish to ensure that members know that the issues raised by counsel are very much at play. Sometimes it takes a targeted intervention of some different style in order to get some movement. It is my own personal view that there is a certain digging in on both sides here that needs a special tool to gain movement. It is obvious that the May 28 letter indicates movement. I thought we might go through that today. Apparently, counsel was not prepared to indicate those three areas.
On the matter of consultation, clearly the force takes one view and some of the members of the force take another. If the committee is to deal objectively with the issue of consultation, I can only hope that the position of the force on the consultation that they undertook be presented to the committee and that the force is prepared to do. If this committee wishes to go chapter and verse through the consultation that was had in rebuttal of the statements and positions taken that counsel has referred to, then in fairness we must listen and the force is prepared to do that.
While it might not have been premature for this committee to enter into a disallowance a year ago before the Quebec court decision, where there was no movement, in this case there is movement. I wish that it were a simpler file to deal with; I wish there were only one or two items. Counsel will confirm that there are 10 or 20 items. However, on the major ones that I took into an informal meeting last week, or the week before, there was movement on every one of them.
If one can make progress on the large items, surely we can make progress on the small items. We should look for a way to continue this, as the minister has offered. It would be best to try to do it as a committee. I am not happy to need to continually contribute my own personal time in resolving this file.
The Joint Chairman (Mr. Grewal): Thank you, Mr. Lee. Before I go to Mr. Maloney and then to Mr. Saada, I should say that the committee does appreciate the initiative of any member; on the other hand, there should not be a perception that the member is representing the committee.
Mr. Lee: Mr. Chairman, I never indicated to anyone that I represented the committee. In fact, it was to the contrary. Your suggestion that I did, or allowed that to happen, is incorrect, Mr. Chairman, and I resent the suggestion that anything like that existed.
If I read the letter on May 28, it does not say that; it simply refers to me using the title that I have in this Parliament. Please do not read anything else into that.
The Joint Chairman (Mr. Grewal): Mr. Lee, do not misunderstand me.
Mr. Lee: I did not misunderstand you.
The Joint Chairman (Mr. Grewal): My point is that we appreciate the initiative of any member in resolving anything, however, the perception that is indicated by Mr. Wappel, who is not here now, is that informal meetings should not be resolving something on behalf of the committee. He indicated that there is a perception,. Commenting on what was indicated, that it is appreciated. On the other hand, a decision should not be viewed as the perception of the representation of the committee. That is what I meant.
Mr. Maloney: I accept Mr. Lee's comments on his involvement. Sometimes going nose-to-nose on a file, which we have been doing on this issue, has not been getting us very far and Mr. Lee has taken an extraordinary effort. I do not read into it that he is representing the committee. Sometimes it takes a little bit of behind-the- scenes movement to move a matter forward. In fact, I compliment him and I encourage him to continue to try to work this matter out.
The Joint Chairman (Mr. Grewal): I join you in complimenting him. I thought that Mr. Wappel created an impression of an informal meeting, not a formal meeting. That is what I wanted to clarify.
Mr. Saada: I do not want to dwell on Mr. Lee's initiative, except to say that I fully support it.
If I go back to the note of April 30, the bottom of page 5 in the French version indicates clearly that the Solicitor General:
He indicated that the Commissioner of the RCMP would like to appear before the committee to present the RCMP's position on this matter.
Then we have a few sentences to say that it is found to be useless at this point because we already know the positions. Am I clear on the reference?
That is found on page 5 of the note. Basically, what the joint chairmen are saying is that they are not interested in having the Commissioner testify if all he is going to do is repeat facts that they already know. If I understand Mr. Lee correctly, there has been some unofficial, albeit significant movement. Perhaps the committee could be informed of this more openly and more officially. Should we not invite the Commissioner to appear so that we can proceed to the next stage? Now that there has been some movement, according to Mr. Lee's account, and a door has been opened, maybe it would be worth our while to take it a step further.
Mr. Bernhardt: It has been mentioned that we may or may not be prepared to go through the Solicitor General's May 28 letter. If members wish, we certainly can do that.
Looking at section 55, which is the issue of accepting other remuneration, it is not a Charter issue. It is a new issue. We have a statement that this section is being looked at. If we were presenting that to the committee, I do not know that it would fall under the rubric of Action Promised.
There appears to be some movement on section 57(1), as I started to mention.
Section 57(2) is the obligation to take reasonable and corrective measures, as the reply concludes by proposing that the section be amended to make it clear that, in addition to correcting his own personal statements, the member must also take reasonable measures to correct any misunderstanding arising from comments made by people working for him or comments broadcast or published by the media.
Frankly, that seems to suggest a clarification of the present amendment without changing the substance of it. It was, in fact, the substance that was objected to. On a reading of this, it is difficult to see how that would resolve the committee's concern.
With respect to subparagraphs 58.2(1) (c) and (d), we have a reiteration that it was thought to be unnecessary to define campaigning in these regulations. Clearly, there is no promise of any action there.
From our review, it appears that we do have one further amendment promised. However, there appears to be nothing of substance in the other areas to address the committee's concerns.
Mr. Wappel: I was not here for Mr. Lee's presentation, and I sincerely apologize for that. I always listen carefully to what he has to say.
In case he did not mention it, I want to remind members that the committee was very insistent that the act be amended. Not only is there no promise that the act will be amended, the minister's correspondence indicates quite clearly that it is not in the cards at the present time. It was clearly stated to Minister Scott that we wanted some commitment that the act be amended, not that we will be dealing constantly with regulations. We have regulations that counsel to the committee feels are unconstitutional, and we have seen zero movement on amending the act.
The Joint Chairman (Mr. Grewal): We have a promise, as I understand it, on only one amendment, but there is no promise to amend the act. Should the committee draft the disallowance?
Mr. Bernier: As well, a number of replies are missing to the joint chairmen's letter of March 24, 1999. Some of these questions were designed precisely for the committee to have the information required to form a view as to the constitutionality of this or that provision. Without answers to those questions, in some cases it is not possible to form that view.
With respect to the business of campaigning, for example, we did suggest the provision that prohibits a member from campaigning without taking a leave of absence may be unconstitutional if campaigning has a broad meaning. The broad meaning has in fact been confirmed by the minister as the intended meaning. That is on page 2 of his annex. With that broad meaning, if campaigning is to be so inclusive, we have no difficulty concluding that the provision breaches the Charter and goes beyond what is properly necessary to ensure the neutrality and impartiality of the RCMP. In that sense, we do have the confirmation that campaigning is intended to have as broad a meaning as possible as opposed to a narrow meaning that might make the provision constitutional and might bring it into that grey area where I suppose counsel would not be willing to be so categorical. Right now, it is in the black area, and we have no problem with making a statement that this is contrary to the Charter.
The Joint Chairman (Mr. Grewal): Having said that, what is the direction of the committee? Should a disallowance be drafted?
Mr. Lee: The commissioner of the RCMP has asked to appear before the committee. Through this letter from the minister, that is the proposal. I think that exercise should happen. We should put to the commissioner our list of deficiencies. It is reasonable to assume that the commissioner would be fully apprised and briefed of this before the appearance. After that meeting, we either see the way to a resolution or we see differences that can be bridged. We can then make up our minds if we should disallow.
I recommend that we not move to disallowance at this time but that we invite the commissioner to deal with these issues as proposed by the Solicitor General. After that, we will take whatever steps we feel we should, keeping in mind this file is only six months old.
Mr. Wappel: Mr. Chairman, the letter from the minister indicates that Commissioner Murray remains available to appear if we wish him to appear. It does not say that the commissioner wants to attend. Let us read the letter the way it is written.
This file is not six months old, with great respect to Mr. Lee. We have gone over the issue, and counsel has been categorical. I feel we should disallow. Let's make a decision and get going.
Ms Venne: What is the difference? Mr. Wappel noted that in his letter, the minister said that Mr. Murray remained available to appear before the committee. I fail to grasp the subtle difference.
Mr. Bernier: On the one hand, the minister is saying that the Commissioner remains available to appear, whereas Mr. Lee has said that the Commissioner would like to appear.
Mr. Saada: There is a difference. Is he actively or passively prepared to appear?
Mr. Bernier: I am not sure that I understand. If we had witnesses, one would have an idea in advance of what is expected out of this appearance.
There is certainly no lack of documents available to inform the commissioner of what concerns the committee. We have had three appearances by solicitors general before this committee, with a transcript being kept. We have a 16-page letter from the chair and vice-chair of this committee, dated March 24, that sets out the details. What is it that Commissioner Murray would not understand at this time in terms of the concerns of this committee?
Senator Moore: I agree with counsel. I believe that the commissioner would attend, if asked. I think the Solicitor General is trying to keep that moving forward to have his involvement. What would we gain from the appearance of the commissioner? I know what we want. We would like to have the recommendations of counsel and the committee adhered to.
Would he be in a position to have a discussion on the outstanding issues and to come to some agreement on those in keeping with the thinking of the committee, or will he just say that we must agree to disagree?
There is probably some use in having him attend before the committee. I think that the Solicitor General is trying to keep the lines of communication open, whether through the commissioner or through Mr. Lee's initiative. What can we, as a committee, get out of that? Can we get him to make commitments here or will he have to take our concerns back to the Solicitor General? As counsel has mentioned, are our concerns not already well documented? What can we expect to achieve from such a hearing?
Mr. Saada: To put it simply, we have minimum standards that we expect from these regulations before we can even consider them. Below this standard, they are simply not acceptable. We are talking here mainly about Charter compliance and so on.
From what I read in the correspondence, we have a position and the commissioner or the Solicitor General has a position. We have not explored finding common ground.
We always have the recourse of disallowing the regulations. Whether today or in three months, we still have the same recourse.
We are missing just one part of the exercise. Some might think that it would be unnecessary. I believe that this step could be helpful. I suggest that we accept the Solicitor General's offer of a meeting with the commissioner.
Mr. Lee: It would be helpful to address on the record the issue of consultation. The RCMP may wish to explain on the record the consultations they had. Then we can continue to assess whether those consultations were adequate.
Consultation is not the fundamental piece of this puzzle in any event; it is the alleged incursions on rights. I think we all agree that there are incursions on the rights in these regulations. Therefore, what is missing is a clear justification put forward by the force. In the written correspondence so far we have things like, We are a national force, and Canadians think this or that. I think we need the commissioner to put up or shut up on the issue of justification. We either have clear, cogent reasons for them being where they are on these regulations, or we do not. That will be up to the committee to decide, just as it would be for a court to decide later. On the issue of justification, that would be a very useful exercise.
Third, it will be possible to get up-front undertakings where there are amendments possible. The only thing we need in advance is a concise listing of the issues. I know that counsel has a pretty good brief now. It would be nice to see the 15 pages condensed to about three so that it is a manageable list. The list may be just as long, but we may not need so many words.
Ms Venne: I think Commissioner Murray should appear before the committee and that we should give him one last chance.
Mr. Bernier: On the issue of consultation, I should like to emphasize that this was not an issue with this committee. I think that we are diverting energies, as is the RCMP, by focusing on this. In their March 24 letter, the chairmen wrote that we wish to comment briefly on the consultation process.
Mr. Lee: Let us tell them that it is not a big issue and that they should take it off the list. It has no impact on the validity. It has never been on any list as far as we are concerned.
The Joint Chairman (Mr. Grewal): I believe that there is consensus that the commissioner should appear before us and, if we are not able to resolve anything, we will move to disallowance.
Is that the will of the committee?
Some Hon. Members: Agreed.
Senator Moore: I am in favour of inviting the commissioner to appear.
Mr. Wappel: Contrary.
Mr. Bernier: Mr. Chairman, it would reduce the time taken and would assist the commissioner if we could get answers to all of the questions asked in the joint chairmen's March letter. We have had replies to only roughly half of those questions. They need to be answered. They were asked for a purpose.
Mr. Lee: We had better insist on as complete answers as possible to each of the questions put by this committee.
Ms Venne: Prior to his appearance?
Mr. Bernier: Yes, answers to these questions.
Mr. Saada: So that we have something to work on before he puts in an appearance.
Ms Venne: Before we adjourn, I have a question concerning the steering committee. If you intend to convene a meeting of the steering committee before the House breaks for the summer, could you possibly arrange a meeting by conference call? It would make things easier for me, because last time around, I was unable to attend.
The Joint Chairman (Mr. Grewal): We will try to arrange a meeting of the steering committee on Tuesday.
Ms Venne: Then we meet on Tuesday if we get an answer from the House or from the Senate, otherwise we do not. Is that right?
The Joint Chairman (Mr. Grewal): We will see if we can speed it up so that we have done something by Tuesday. If nothing is done by Tuesday, then we would have the steering committee meeting over the phone. Is that acceptable?
Ms Venne: If I have understood correctly, we will meet if the House and the Senate have replied. Otherwise, the steering committee will meet over the phone.
Mr. Maloney: I found the remarks of the chairman rather interesting when we started the meeting this morning. He said that we could be meeting twice a week, which suggests that we have a significant backlog. Most of the matters with which we deal have a history of years and years. They often transcend governments, ministers, bureaucracy and, certainly, committee members.
I am wondering whether more resources should be requested so that this committee could meet on a more frequent basis. If we do not take ourselves seriously, then how can we expect the bureaucracy who refuses to respond to us for years and years take us seriously? It must be frustrating for the staff.
I am wondering if a representation should be made to the House leaders that they consider this committee more seriously and that we put a push on to get at this backlog, whether it takes a year, two years, or whatever. During the balance of this Parliament, I think seriousness would be the buzzword for this committee. Let us get rid of the backlog. It has become an embarrassment to us and to the government of the day.
I would have some difficulty justifying to my constituents the fact that we are dealing with matters that are decades old.
The Joint Chairman (Mr. Grewal): One reason that I am taking the trip is to see how other countries are dealing with these issues. How they handle the disallowance procedures is one thing we can learn from them.
Your point is a good one. The chair is concerned about the backlog. I appreciate that other members of the committee are also concerned. We will see how we can speed it up and how we can make it more efficient. Having more resources is one option. Deeming the committee to be more serious is another one. I believe there is the view in the House of Commons that the Standing Joint Committee for the Scrutiny of Regulations is not important. I think that is the wrong view. It is a very important committee. We need more resources. We should be treated as a serious committee
The committee adjourned.