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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 1 - Evidence, December 12, 2002

OTTAWA, Thursday, December 12, 2002

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments, and for the consideration of a draft budget.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.


The Joint Chairman (Mr. Grewal): This will be our last meeting before the break. I wish all members of the committee and the staff a very Merry Christmas and a Happy New Year.

As you know, last week we held a working-group meeting. Since both Houses have now adopted the first report, this is no longer an issue. At that time, the committee agreed to publish the transcripts from the working group's meeting and to deem its business and decisions to be those of the committee.

Do members agree that we publish the transcript?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Let us now briefly consider the budget for fiscal year 2002-03, a copy of which was distributed as you arrived.

Is there a motion to adopt the budget, or would any members like to hear the explanation that the clerk provided last week?

Mr. Wappel: I move the adoption of budget.

Mr. Macklin: I second the motion.

The Joint Chairman (Mr. Grewal): Is there any discussion?

There being no discussion, is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): The motion is adopted.

Let us move to the agenda items.


Mr. François-R. Bernier, General Counsel to the Committee: Members have before them the government response to the sixth report of the joint committee concerning the legality of the Aboriginal Communal Fishing Licences Regulations. There is a covering note from counsel dealing with the response and as well with the amendments to the regulations that were made shortly after the committee tabled its sixth report.

The principal objection of the joint committee to the communal licence scheme was that it involves an unlawful sub- delegation and transformation of the Governor in Council's regulation-making authority under section 43(f) of the Fisheries Act. The amendments registered as SOR/2002-225 have altered slightly the original scheme dealt with in the report. While those amendments make it appear that the authority of Aboriginal organizations to license fishing activities is now conferred directly by regulation of the Governor in Council, a moment's reflection shows that, in fact, it is still the minister who decides, otherwise than by regulation, which Aboriginal organizations will have that authority.

As for the government response to the sixth report, I think it would be generous to characterize it as inadequate, and I will leave it at that. The quality of the arguments presented by the government is in keeping with what the committee has received before.

On a more positive note, section 6 of the regulations, a provision that provided that licence conditions override duly enacted regulations, has now been revoked. As for section 7, there is an undertaking to seek a legislative amendment to provide greater certainty. However, this will clearly not happen for some time. The technique used in that section has also been used in a number of other fisheries regulations and raises important issues of principle. The committee has previously reported a similar provision enacted as part of the Ontario fishery regulations, and we would suggest that the matter be pursued in relation to that file.

Mr. Wappel: That is a pretty short recommendation, Mr. Bernier. What alternatives does this committee have to the less-than-adequate response of the government?

Mr. Bernier: Mr. Wappel, the committee has all the options it always has.

Mr. Wappel: What are you recommending?

Mr. Bernier: I am not recommending a particular course of action. I am leaving it to members to indicate to me which course of action they wish to pursue. The committee could decide to write a letter to the minister, as has been done before, indicating that the government response is unsatisfactory, explaining why and seeking a response that can correctly be called a comprehensive government response. The committee could decide that it has fulfilled its mandate in drawing this matter to the attention of the Houses. The committee could decide on a further report. The committee could decide on a further report that includes a disallowance resolution.

Mr. Cummins: The substantive issue of sub-delegation has not been addressed by the government, has it?

Mr. Bernier: No. As I indicated in my presentation, there has been a slight change in the way the scheme operates, but, in effect, the decision as to whether an Aboriginal organization can licence fishing activities remains with the minister, and the minister will make that decision otherwise than by regulation.

The current scheme, following amendments of June 2002, provides that the minister, in the so-called communal licence, can actually authorize persons to fish, in which case there is no problem. That is a licence. The regulations provide that if the minister does not do that, then an Aboriginal organization can designate the persons who can fish.

As can you see, whether or not an Aboriginal organization is authorized to license fishing activities depends on the minister's decision to actually identify in the communal licence the persons authorized to fish or not. That decision is a discretionary decision of the minister. It is on the basis of that decision that you can then determine whether or not a given Aboriginal organization is itself authorized.

Of course, section 43(f) of the statute requires that, if persons other than the Minister of Fisheries are to issue licences, it is for the Governor in Council to decide in a regulation and designate and authorize this or that organization to issue licences.

Mr. White: It would seem that one of the challenges facing the committee is to decide whether the government has, in good faith, tried to correct the problem, whether it has tried to buy some time or whether there has been a political decision made but no real attempt to fix the problem. I think that is really the challenge we are facing. If we were to come to the conclusion, for example, that the government had tried in good faith to fix the problem, then we probably would have to give some leeway — that is not a pun, even though Mr. Lee is here — to make adjustments and go through the whole process all over again. If we come to the conclusion that the government has not done it in good faith, we probably should opt for something more serious.

Mr. Lee: I will be a bit more positive about the government's response than some of our colleagues here. Mr. Cummins earlier suggested that the government did not address an item in its reply. It did address it but perhaps in a way that was not satisfactory to some of us around the table.

It is odd to me that the government went back to cabinet and made a change. Going to cabinet to make a change in response to an SJC report is relatively high on the Richter scale, so I suggest that the government did try to address the problem.

In dealing with all of these issues, again, I think we have to deal with them one by one. It is not helpful just to look at the whole collection of issues.

On each of the three major ones that the government has either made a change or agreed to make a change, it has responded with some degree of substance. Whether or not it meets the test that we will ultimately decide for each item, I cannot predict. Colleagues may find it difficult to actually deal with each item again. We are probably getting a little tired of it. A real challenge for us here is to deal with each item and decide whether we want to wait for the government's further actions or actually go back with something crisper on a particular item.

I do not have a clear picture of what I think I would like to see happen, except to acknowledge that there has been a response of substance to the difficulties we have found with these regulations. More discussion or more analysis might help us find some direction here.

Mr. Cummins: I had made available to counsel a copy of a letter that I received from Christopher Harvey, a lawyer with Fasken Martineau. I distributed that to members this morning. I should like to ask your opinion on it, counsel. It seems to get to the nub of the issue of the sub-delegation. I am at the fourth paragraph, beginning the amendments.

It says:

The amendments to the Aboriginal Regulations provide that an aboriginal organization may designate persons who may fish and vessels that may be used. There are no limits to numbers of fishers or vessels that may be so designated, nor any guidelines to instruct or inform the aboriginal organization in making the designations. The only restriction to this power is that there has been no prior designation by the Minister. As a restriction this is meaningless. It contains no standards, definition or guidelines. The Joint Committee has made it clear that the power to issue a licence (which includes the power to designate) cannot be sub-delegated by the Minister absent statutory authority to do so. It is most unlikely that a regulation empowering the Minister to nominate a multitude of organizations, unnamed in the regulation, to issue designations would be held to avoid the rule against unauthorized sub-delegation. This is still a nomination of the licensing entities and a definition of the applicable rules by the Minister, not the Governor in Council. It is still, therefore, a sub-delegation by the Governor in Council of the authority to license and to regulate.

Is it not very clear, or do you concur with Mr. Harvey's findings here?

Mr. Bernier: I concur with Mr. Harvey's last sentence, that ``It is still, therefore, a sub-delegation by the Governor in Council of the authority to license and regulate.''

Mr. Cummins: So the key and the central issue of concern to the committee has not been addressed by these changes in regulations. Is that a fair statement?

Mr. Bernier: Not as I see it, Mr. Cummins.

Mr. Cummins: Was the sub-delegation not the key issue of concern of the committee?

Mr. Bernier: Yes.

Mr. Cummins: I am sorry. Perhaps I may have misunderstood.

Mr. Bernier: I said, not as I see it. In other words, I agree that the amendments of June 2002 did not address the sub- delegation.

Mr. Cummins: Thank you.

Mr. Wappel: Mr. Chairman, perhaps it is too early in the morning and we have not got juiced up yet. I do not know what is going on, but everyone seems to be pussy-footing around. Let us go through the options that our counsel gave us.

He suggested that we write to the minister. That, to me, is unnecessary at this point. We have been around the mulberry bush numerous times. The minister came here and was examined by this committee. All of his senior officials, including his very senior legal counsel, were examined, twice I believe. The second time, they backtracked on numerous issues.

I cannot see any purpose in writing to the minister because he will have to agree with his senior officials and they do not agree with us; it is that simple. I do not say that necessarily as a criticism of the minister. He has to take advice from his department and his department does not agree with us. I agree with Mr. Lee that they tried to do something but it appears, from more than one source, that the sub-delegation continues, which was our major concern.

Then we have three other options: report to the House, report to the House including a disallowance report, which is up to the ``collective,'' as the boards would say, or —

Mr. Bernier: If I may, Mr. Wappel, a third option would be for the committee, which believes it has dealt with the issues, to draw them to the attention of the Houses —

Mr. Wappel: Is not that a report?

Mr. Bernier: — in its sixth report.

Mr. Wappel: I am sorry, could you go over that again?

Mr. Bernier: The third option is —

Mr. Wappel: I see — abandon it because we have already brought everything to the attention of the House. At least we have some options. However, why spend one half hour on this? We should make a decision. If we are sick and tired of it, let us move ahead with the rest of the agenda. If we want to pursue it, let us make a decision.

Mr. White: In my earlier intervention, I said that the government had tried in good faith to fix this. The committee could not have been clearer about what was wrong with the old regulations, as mentioned by Mr. Wappel. We had plenty of people here who should and could understand the issue. It seems to me that, of the options I mentioned earlier, the government has, really tried to buy some time. The government knew what the problem was but did not effectively attempt to address it, but created new regulations that still have the same problem. The government must have known that those new regulations had the same problem.

I am ready to tell the government that the new regulations are disallowed and it must address the problem in substance.

The Joint Chairman (Mr. Grewal): Mr. Cummins, do you have a comment?

Mr. Cummins: Further to what Mr. White is saying, this is the last meeting of the year. We meet again in February. If counsel were instructed to take that next step, to prepare the disallowance, there is plenty of time for the government to respond to address the concerns the committee has expressed. We are a long way from fishing season. The impact would not be immediate. It is not as if it were being pushed through hurriedly in May or June. Take the first step now because it is a long way from the fishing season. That would seem to be a reasonable option.

If this is delayed, there would be a sense of waffling by the committee. However, there would be more pressure down the road to get it done if we wait until the next meeting in February to talk about it. Counsel would then be given time to prepare the appropriate report. Waiting until then would compress the whole matter. It may put too much pressure on the government and some members may not want to do that. There would probably be beneficial to deal with the issue today, in the appropriate way, by taking that next step.

The Joint Chairman (Mr. Grewal): Thank you, members. We have had the discussion on the issue. I have heard that the objections are now practically answered by the department. Despite that, the response to the sixth report is inadequate, so we know where the problem is. Writing a letter, as Mr. Wappel said, would not help because the department understood the problem but the response has been less than adequate. We have to make a decision. I am hearing, from members, that we should write a report to the House.

We have to decide what kind of report — whether to go with the suggestions put forward by Mr. Cummins, Mr. White and Mr. Wappel or to go with a stronger action and do what we can before the next fishing season arrives. We have time to do that. Am I hearing that we should prepare a report to the House?

Mr. Cummins: We should prepare a disallowance report. We have already done a basic report.

The Joint Chairman (Mr. Grewal): I want to narrow the options. Writing a letter is not an option, it would seem. We will prepare the report, but first we have to decide what kind it is to be.

Mr. Lee: If you are entertaining discussion on the kind of report to be considered, I am still curious about this concept of designation. They have expanded it and crystallized it. The government has decided that the administrative act of designation is so good that the minister will now be able to designate. Government has given it more credibility, if you will. I should like to canvass that a bit more, although not at this meeting. I should like to think through the implications of what that designation means.

If we are to report now, we should report in a way that will show clearly where we stand so that a citizen who may feel aggrieved about this and may wish to proceed further in court would have the benefit of our views and our deliberations. If we are to report, we should make that one of our objectives. In that report, I should like this issue of designation to be canvassed a more fully. It is a bigger item now that the government has altered the regulations to provide for a further volume of designations that will come actually from the minister, as well as from the Aboriginal groups.

Again, let me reiterate something that was expressed here in previous meetings: This is an attempt to emulate Aboriginal fishing rights that have been around here for a long time. There have been many arguments about how much was there and how much was not there. To simply revoke, or to cause revocation or disallow these, might create a vacuum in some parts of the country where chaos would be worse than the academic arguments that we are having right now.

I am in favour of a report to canvass some of the issues I mentioned, as well as other issues. Perhaps we could close the file for this committee but leave it open for others who wish to proceed further.

Mr. Cummins: To correct an error in Mr. Wappel's comment, the regulations are not in place to recognize a right. The Supreme Court has said that there is no right here. The regulations, in fact, are in place to create a right, not to recognize a right, and to create an opportunity. Certainly, they are not in place to recognize a right. Again, that is not why we are here — to address the legality of the issue, which is that the government has not responded appropriately. It would be appropriate to ask counsel to prepare a draft disallowance report for the next time. If there are outstanding questions, such as Mr. Lee has, perhaps counsel could address those in a side document so that we could have a full discussion the next time. However, we will be moving towards a conclusion.

Otherwise, putting it off at this time will create problems further down the line, in the spring. We will be facing deadlines again that make things a little more difficult. If we prepare that disallowance now, the department will be aware of the committee's displeasure and they will have sufficient time to respond.

The Joint Chairman (Mr. Grewal): Would you like to move a motion, Mr. Cummins, if that is the case? We can propose a motion that counsel prepare a draft disallowance report for consideration at the next meeting of the committee.

Mr. Cummins: I would move that, if that were appropriate. We could seek consensus.

The Joint Chairman (Mr. Grewal): Any seconder?

Mr. White: I second the motion.

The Joint Chairman (Mr. Grewal): We could have a brief discussion.

Mr. White: Mr. Chairman, I will comment. Obviously, the departments will become aware that this is being prepared and as such will put pressure on them to begin to deal with the issue before we even get to the crisis.

The Joint Chairman (Mr. Grewal): Let us do that, if members agree with this motion. While counsel is preparing the report for the next meeting, which will be sometime in February, we will write a courtesy letter to the minister to inform what this committee wants to do. Meanwhile, the committee could look at the draft report, and then we will proceed from there.

Is that agreeable?

Hon. Members: Yes.

Mr. Lee: I would appreciate having the motion read out.

The Joint Chairman (Mr. Grewal): The motion is that counsel prepare a draft disallowance report for consideration at the next meeting of the committee.

In the meantime, a letter will written to the minister informing him of what the committee wishes to do.

Mr. Lee: A draft disallowance report seems rational.

Mr. Cummins: I also suggested in the motion, Mr. Lee, that if counsel had a response to the concern that you raised it could be in a side document.

The Joint Chairman (Mr. Grewal): The motion is now on the floor.

All those in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): The motion is adopted.

Mr. Cummins: Could I ask that the letter that I received from Mr. Harvey of Fasken Martineau be translated and provided to all members as well? It is an important document.

The Joint Chairman (Mr. Grewal): You are tabling this document in the committee.

Mr. Bernier: Do you wish the letter to be appended to today's evidence of this meeting or simply distributed to all members?

Mr. Cummins: It would be helpful if it were appended to the evidence of this meeting. Counsel, if you had any comment on that letter, I would be delighted to hear your comments next time.

Mr. Bernier: You may not want to hear them.

The Joint Chairman (Mr. Grewal): Is it agreed, honourable members, that we append the letter from Fasken Martineau to today's evidence?

Hon. Members: Agreed.

(For text of the letter from Fasken Martineau, see Appendix R,p. 1R:1.)

The Joint Chairman (Mr. Grewal): Let us move to the next item,


(For text of documents, see Appendix S, p. 1S:1.)

Mr. Bernier: Mr. Chairman, in 1991, Senator Grimard, who was then the joint chairman of the committee, appeared before the Senate committee studying the bill that was to become the Foreign Missions and International Organizations Act, to point out that the definition of ``international organization'' proposed in that bill was not adequate to cover the range of organizations in relation to which privileges and immunities orders have traditionally issued. At the time, his testimony was dismissed by officials by the Department of Foreign Affairs who assured the Senate committee that based on their expertise they were satisfied that the proposed definition was entirely adequate.

The department, however, was eventually forced to concede that that was not so. In 2002, the act was amended and a definition of ``international organization'' was revised exactly in the manner suggested by the joint chairman 11 years earlier, as members can see from the copy of the statute.

With that being said, this file can now be closed.

Mr. White: That means that the Department of Fisheries and Oceans regulations will be amended in 2012.

Mr. Bernier: All things are possible.

The Joint Chairman (Mr. Grewal): We will move on to the next item.


(For text of documents, see Appendix T, p. 1T:1.)

Mr. Bernier: Mr. Chairman, in relation to the Indian Estates Regulations, members will recall section 14 of those regulations purports to give the Minister of Indian Affairs a discretion to deem certain persons to be the widow of a deceased Indian for purposes of distribution of the estate. The committee reported to the Houses in its report number 65 that there was no statutory authority for the section.

The government eventually undertook that the minister would not make any further orders under section 14. The committee also secured a commitment to enact legislation that would validate previously made orders or decisions under that section.

On this last point, the minister's reply fails to give any indication as to when a remedial bill might be introduced. This aspect of the reply is not satisfactory.

The committee also inquired as to when section 14 would be formally revoked. The reply is that this will only take place once new regulations under chapter 12 of the Statutes of Canada 2000 come into force, something that is apparently some time in the future.

The committee today must ask why the revocation of the illegal section 14 needs to be deferred, considering that a moratorium has been imposed by the government on the use of that section in any event.

Given that assurance, there seems to be no practical purpose served by having this section in place. Considering that the section is clearly ultra vires the Indian Act, this is a case where the committee could decide to give consideration to a disallowance of the section. Alternatively, the committee can simply monitor progress and write to the minister again in the spring of next year.

Mr. Wappel: Mr. Chairman, this one has been going around a long, long time. I will move that we instruct counsel to prepare a draft disallowance report.

The Joint Chairman (Mr. Grewal): It seems to be very clear. Any other comment?

Mr. Lee: Not to intervene in opposition to my colleague, Mr. Wappel, but this is almost a 20-year-old issue. I want the record of today's meeting to show that we were aware that there is a hugely significant undertaking within this ministry to restructure some of the Aboriginal affairs envelope. It is a huge legislative undertaking. It is not a surprise that the department would not want to be distracted by this particular subsidiary issue when they are going full steam ahead on this huge legislative initiative, which will then have presumably a large regulatory impact following.

I have some sympathy for the department not wanting to pay too much attention to the ultra vires section, particularly in light of the fact they have undertaken not to use it. A disallowance coming forward from this committee might appear to bushwhack them while they are distracted by this other issue. We move fairly slowly in what we do, so it will not be really a bushwhack.

I will support Mr. Wappel on this. However, I want the record to show our sensitivity to the macro-agenda of the department.

The Joint Chairman (Mr. Grewal): I am sure that we cannot move slower than 20 years.

Mr. White: Mr. Chairman, it took a year for the minister to reply to the December 4, 2001 letter, so he is not exactly in a hurry either. I agree with Mr. Wappel that we need to go ahead and do the draft disallowance and perhaps try to get them to do something within the next year.

Mr. Wappel: Part of my motion was to advise the minister that we are doing so.

The Joint Chairman (Mr. Grewal): You have heard the motion. All those in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

Mr. Bernier: I take it, Mr. Chairman, that the same letter will also request the minister to provide the indication as to when a validating bill might be introduced, to validate previously made decisions under the illegal section.


(For text of documents, see Appendix U, p. 1U:1.)

The Joint Chairman (Mr. Grewal): We are now dealing with SOR/95-223.

Mr. Bernier: Mr. Chairman, this appears to be satisfactory. If members agree, there will be a follow-up next spring if we have not heard back from the minister before then.

The Joint Chairman (Mr. Grewal): We can mark it for follow-up.

Mr. Bernier: The minister is having the matter looked into by officials and other interested parties, I presume Crown corporations, and should be in a position to provide a reply following those consultations. Follow-up in spring, I would think.

The Joint Chairman (Mr. Grewal): Are there any comments? It seems reasonable. Can we move forward?

Mr. White: I have one question, please. Counsel, will you automatically do a follow-up in the spring?

Mr. Bernier: Responses from ministers or anyone else are always brought to this committee.


Mr. Peter Bernhardt, Counsel to the Committee: Mr. Chairman, the authority for section 2 of the regulations, which deals with power of entry of customs officers, has been questioned. Last year, section 42.01 of the Customs Act was amended to provide that customs officers may enter prescribed premises at all reasonable times to conduct verification visits. In view of this, the Customs and Revenue Agency has advised that it will not repeal section 2 of the regulations, as it had previously promised to do, given the amendments to the act. That in and of itself would seem fair enough.

It does agree to amend the French version of section 2(2), to bring the terminology there into conformity with what is used in the act. Section 2(2) states that a verification visit should be conducted at a reasonable time. As of last year, this is now stated in the act itself. Upon reflection, perhaps the best course of action would be to write the agency back, pointing that out to them and suggesting that rather than fixing the terminology in the French version, they do not really need the provision at all and should delete it completely.

The Joint Chairman (Mr. Grewal): Are there any comments?


The Joint Chairman (Mr. Grewal): The next item SOR/98-249.

Mr. Bernhardt: Mr. Chairman, some of the correspondence on this item deals with several instruments. However, SOR/98-249 is the only one that is before the committee this morning.

That instrument amended the Import Control List in order to implement the Chemical Weapons Convention. Under the Export and Import Permits Act, where goods are included on the Import Control List in order to implement an intergovernmental arrangement or commitment, a statement of the effects or a summary of the arrangement or commitment has to be tabled in Parliament within 15 days after the Order in Council amending the list is published in the Canada Gazette.

When the Department of Foreign Affairs was questioned as to the apparent failure to comply with the tabling requirement — I would add as a sidebar that this has been a fairly chronic problem over the years with this act and this department — the department expressed the view that the introduction of Bill C-87, that is, the Chemical Weapons Convention Implementation Act, was sufficient to comply with the tabling requirement.

As Mr. Rousseau pointed out in his August 16, 2000 letter, the introduction of a bill and the tabling of a summary or statement are two rather different things. They are done for two different purposes. He writes:

The bill is neither a statement of the effect or a summary of the Agreement....The bill cannot replace the summary any more than the summary can replace the bill.

The department appears to have straightened itself out, at least for the time being. The required summary was tabled last April, not quite four years to the day after the amendment to the list was made.

Mr. Bernier: I am sure all legislators were anxiously awaiting the information.

The Joint Chairman (Mr. Grewal): Would it be a point of privilege?

Mr. Bernhardt: It has been tabled. They have made good, as best they can, at this late date. It took them four years to do something that was supposed to have been done within 15 days, but they have done it. They cannot turn back the clock any more. I suppose technically, yes, one could say that the four-year delay was a contravention of the privileges of the House. The problem here is that, by all accounts, they did act in good faith. They had this honest belief that they had complied with the requirement. They thought that if they introduced a bill to implement a convention that is as good as tabling a summary of the convention in the House.

The Joint Chairman (Mr. Grewal): They may have done it in good faith, but I think the government needs to be reminded of the requirement. It has happened more than once, so I believe a point of privilege should be raised in the House to remind the House that this requirement was neglected and that they should keep an eye on it.

Mr. Bernier: That is an individual member's decision, not a committee decision.

The Joint Chairman (Mr. Grewal): Are there any comments?

Mr. Lee: This was a statutory requirement.

Mr. Bernier: Fifteen days.

Mr. Lee: It has nothing directly to do with privilege, as I see it. An individual member may feel that it does. It may be a contempt issue. Has the department acknowledged their original obligation?

Mr. Bernhardt: I presume, having tabled the summary, we can take it that their position that they did not need to table anything has been abandoned.

Mr. Lee: They were very late in realizing their legal obligation. I do not want to waste too much time on this. If it were obvious that they did not want to do it and did not agree that they had to do it and were still complaining about being harassed by us, I would say we should report it and close the file; however, if they have done it and there is an acquiescence or a de facto acknowledgment, we can move on without reporting.

The Joint Chairman (Mr. Grewal): Are there any other comments?

Mr. Macklin: Move on.

The Joint Chairman (Mr. Grewal): We will digest the information and do nothing.


(For text of documents, see Appendix V, p. 1V:1.)

The Joint Chairman (Mr. Grewal): The next item is under ``Reply Unsatisfactory,'' SOR/97-313.

Mr. Bernhardt: Members have a fairly lengthy and detailed note before them this morning summarizing the issue and critiquing the government's latest reply. I will attempt to go through that as briefly as possible, although I rather suspect it will not be as brief as members would like.

The committee's objections here relate to section B.01.056(4) and B.15.002(4) of the Food and Drug Regulations. The effect of these provisions is to confer on the director, who is in fact defined to be the Assistant Deputy Minister of the Health Protection Branch of Health Canada, an administrative discretion to grant exemptions from the regulations as well as from the prohibition on the sale of adulterated food set out in section 4(d) of the Food and Drugs Act and to determine the conditions under which exemptions are granted.

The Food and Drugs Act authorizes the Governor in Council to make regulations exempting any food from any or all of the provisions of the act and setting out conditions for the exemption. However, first, it makes no reference to exemptions from regulations. Second, it is clearly required that any exemptions be granted by the regulations and that any conditions on exemptions also be prescribed by the regulations.

The impugned provisions could be said to allow for the granting of exemptions and the imposing of conditions, but the actual exemptions would be granted and the conditions imposed not in the regulations but by the director on an administrative basis.

Therefore, in this case, the legislative power conferred by Parliament on the Governor in Council has been transformed into an administrative discretion to be exercised by the director. For these reasons, the committee has taken the position that the provisions are ultra vires. The department argues that it was not necessary for Parliament to confer on the Governor in Council an express power to grant exemptions from regulations because this is implicit in every granted regulation-making power. If you give someone the power to make a regulation, in the department's view, that automatically carries with it the power to grant exemptions from the regulations. It also argues that the delegation of this authority is permissible, given the terms of the relevant enabling provisions and the restrictions placed on the exercise of the authority.

Now, the joint committee has always opposed the granting of individual exemptions from the application of subordinate laws, unless there is express authority granted by Parliament. As long ago as 1977, this practice was denounced by the committee as being both illegal and subversive of constitutional government. For a time, that position seemed to have been accepted by the government. In recent years, however, there has been a renewal of its claim to have the power to dispense with the application of regulations in favour of specific individuals or in specific circumstances, even in the absence of express authority.

In 1993, the committee reaffirmed its position in a report concerning the Kemano Completion Project Guidelines Order, which some members will recall well. In particular, the committee report took issue with certain obiter comments made by the Federal Court of Appeal in the Carrier-Sekani Tribal Council v. Minister of the Environment. Nevertheless, these obiter comments continue to be relied on by the government.

Of course, this is a significant issue to the committee. To accept the department's position would mean that regulation makers are free to grant individual exemptions any time they make a regulation. They would have discretion to decide on a case-by-case basis that a law applies or does not apply to this or that person or to this or that situation.

As the note suggests, and as the committee has noted in the past, this is completely different from defining the scope of an application. The difference with an individual exemption is that it allows for people in the same circumstances to be treated differently.

The committee has never accepted the obiter remarks in Carrier-Sekani, although it bears pointing out that, even if one were to accept those remarks as accurately stating the law, the court, in that case, was clearly dealing with exemptions from regulations that were granted by regulations. What we have here is the creation of exemptions based on an administrative action. So, the exemption power is not being exercised by regulation. The present situation is completely different from that in the Kemano project, in any event.

Turning to the second part of the department's argument, in the regulations, they are sub-delegating the authority to the director. It is claimed that this sort of sub-delegation is permissible on the principles laid down by the Ontario Court of Appeal in Re Peralta and The Queen in right of Ontario et al. Again, the note goes through the Peralta case in some detail and concludes that the department's invocation of this case is misguided. Peralta dealt with the delegation of administrative powers. Even if we assume that there is some authority for the granting of exemptions, it must involve the exercise of a legislative power because it will determine the very scope of the application of the regulations.

The director has an administrative discretion here only because of the way in which that power has been delegated. In effect, there is an unlawful transformation of a legislative power into an administrative discretion.

It follows from this that in seeking to rely on Peralta, the government is forced into a circular argument: The power to exempt is lawfully delegated because it is an administrative power; however, it is only an administrative power because of the way in which it has been delegated. Therefore, you just keep going in a circle.

In the department's words, the issue of transformation of legislative power into administrative discretion is not an issue that needs to be dealt with because it is not in harmony with the fundamental assumption that the power entrusted to the assistant deputy minister is accepted to be administrative in nature. Again, this conveniently ignores the fact it is administrative in nature because it has been transformed from a legislative power by the sub-delegation. Again, even accepting that there was an exemption power, which, of course, the committee does not, it would follow that this was a power that could not be sub-delegated.

The department's most recent reply concludes by reiterating that an amendment to clarify the intent of section B.01.056(4) of the Food and Drug Regulations will be considered, notwithstanding the department's view that the provision rests on a sound, legal foundation. This consideration was to take place in the course of what is described as a major, legislative renewal project. This project is in a formative stage, and the committee is advised that it is premature to provide a specific commitment as to how the provision might be modified. If members feel this undertaking is so vague as to be unsatisfactory, perhaps the committee's concerns should be communicated to the Minister of Health directly, together with the critique of the department's latest reply and a request for reconsideration.

A final note: There is also subsidiary drafting matter. This is discussed in paragraphs 23 to 25 of the note. That could be followed up at the same time.

The Joint Chairman (Mr. Grewal): We heard that explanation.

Mr. Lee: I want to congratulate Mr. Bernhardt for his review of that. I was on this committee back in the early 1990s when the issue of illegal dispensations was dealt with. I have to admit that no one will teach me any new tricks on this one. I am personally fixed in my view that I cannot accept anything that comes close to an illegal dispensation, as articulated by counsel. I want it on the record publicly that I dissociate myself from the obiter remarks of Mr. Justice Marceau in the Federal Court of Appeal case. I believe him to be totally wrong — misguided, misinformed. Whatever was going on in the court case at that time — perhaps he was poorly assisted by counsel on the case — his obiter remarks fly in the face of everything that we pursue here in terms of rule of law. I do not know whether he is still on the bench. I am sure he is a decent, hard-working judge, but from my point of view as a citizen and legislator he miscued completely on that one. As a parliamentarian, I reject it.

In the letter that we may write about this, I hope we will articulate that message. Perhaps the committee is not ready to dissociate itself from obiter remarks in a Federal Court decision, although I certainly am ready. A previous committee has done this before but I should like the current committee to firm up and, in some way, indirectly advise the department that we cannot hear them on this. We just do not hear them. They may have a major legislative initiative in the pipeline, which is great, but when it comes to illegal dispensations, from my point of view, it does not apply. The reasons that counsel articulates actually go back several hundred years; they are not new. I just cannot accept the department's view on this.

I am in favour of going full steam ahead. It is an old issue; we have been there, done that, bought the T-shirt and read the book. If the department is out of date, that is their problem. I would vote ``yea'' on this one.

Mr. White: Just before I vote with Mr. Lee for disallowance, I should like to ask counsel to expand on the form that the minister might take if we were to go that route. This is a complex issue, and I wonder whether trying to explain a complex issue to the minister might actually get us further forward.

Mr. Bernhardt: Obviously, the form anticipated of a letter to the minister would probably follow along the lines of the note. We could call it a legal opinion, for lack of a better expression. I assume that that will be passed on to the department's legal advisers for analysis.

Mr. White: That is what worries me. If we look at the records before us today, every time a department has said that they are passing our correspondence on to their legal advisers for an opinion and will get back to us as soon as possible we found ourselves in a one-year delay, sometimes even longer.

If we go down that road, we might be looking at this file sometime in 2004.

Mr. Bernhardt: That is always a possibility, especially if a lengthy detailed analysis is presented to them.

Mr. White: Perhaps I will throw it back to Mr. Lee as to whether he wants to wait until 2004.

Mr. Lee: We must give the department an opportunity to admit that they are wrong. Clearly, we have to correspond. We should be fairly crisp in how we move the paper around on this so that we can bring some closure to it. Other colleagues may wish to pursue this for a period of time.

If members are in any doubt, consider the Kemano matter. That is exactly where we are now.

I thank counsel for his explanation. Let us crisply firm up with the minister and then move forward if they do not respond.

Mr. White: Would it be appropriate to mention in the letter that disallowance has been discussed? If there is some way to incorporate that delicately, it ratchets it up.

Mr. Wappel: The letter should also say something to the effect that the committee's position is longstanding and firm, and that this matter will be on the agenda in the first meeting in June of 2003. Six months should be plenty of time for them to consider our critique and get back to us. We should give them a firm time frame and notify them that the matter will be back on the agenda, no matter whether they correspond with us at that point. The unveiled reference to disallowance should be included. We must to give them notice that we will not wait any longer.

The Joint Chairman (Senator Hervieux-Payette): You say that you would give them six months to reply?

Mr. Wappel: I was suggesting six months because counsel noted the complexity of the memo and the issues. Perhaps Madam Chair wishes to suggest another time frame.

The Joint Chairman (Senator Hervieux-Payette): We should say four months, if we want a reply within six months, because sometimes they drag their feet. Also, there is a problem with our agenda. We customarily leave by mid-June.

Let us not put ourselves in a corner that we will have to hold off until October with this question. If we want to deal with this matter, we should say that they must respond by April 30. I am very flexible on this.

Mr. Wappel: If the joint chairman is suggesting a shorter period of time than I suggested, I am in favour.

The Joint Chairman (Senator Hervieux-Payette): They have had four years. Four months gives ample time to hire the greatest expert in the country and send a reply to us. It will give us the possibility to pursue our agenda of assuring that legislation is respected. We must have regulations that are in line with the Constitution.

The Joint Chairman (Mr. Grewal): A deadline of March 31 should be sufficient. We will see what happens.

Mr. Wappel: I am confused. I suggested June. The joint chairman suggested April 30 or May 1. You said March 31. Which is it?

The Joint Chairman (Mr. Grewal): Do you want to do it for March or April? If we want to have it by the middle of June, then we set the date for late March or mid-April. A disallowance report would be prepared at that time. If we want to deal with it, let us deal with it by having March 31. Is that good enough?

Some Members: Agreed.

The Joint Chairman (Mr. Grewal): Thank you. Let us move to the next item.


Mr. Bernhardt: Mr. Chairman, we have been provided with a draft of the promised amendments. All that is required at this point is to follow the progress.

The Joint Chairman (Mr. Grewal): Any comments? All right, let us move on.


Mr. Bernier: Mr. Chairman, there is nothing to add to the information set out in the correspondence. I would suggest that an inquiry be made at this time as to the progress of the amendments.

The Joint Chairman (Mr. Grewal): Okay.



(For text of documents, see Appendix W, p. 1W:1.)

Mr. Bernier: The first item in this file concerns an error in the English version. The federal practice is that any definition in one language is followed by an indication of the defined term in the other language.

In this case, the definition of property in English was followed by bracketed reference to ``propriété'' when the defined term in the French version is ``bien.'' This was drawn to the attention of the department. They undertook to process an amendment. However, those indications that appear in brackets in italics do not form part of the regulation, so there is really nothing to amend, as I am sure they will have found out from Privy Council Office by now.

The second issue raised here was that the act of Parliament required these regulations to be tabled in both Houses forthwith, after they were made on February 22, 2001. The regulations were laid before the Houses nearly eight months later. This delay was queried, and the answer was that it was ``the regrettable result of a series of unfortunate circumstances, in particular changes in personnel.'' The committee is also informed that measures have been taken to prevent such delays from happening again.


(For text of documents, see Appendix X, p. 1X:1.)

Mr. Bernier: As noted, the instrument corrects an error drawn to the attention of the department in relation to SOR/ 2001-38. As for the instrument registered as SOR/2002-17, we have an undertaking to correct the defective drafting that is found in sections 2.2, 2.3, 2.4 and 2.5. Those amendments will be made in 2003.

The explanation that has been received in relation to section 12(3)(a) is thought to be satisfactory. As regards the two points raised in connection with section 2.4, under paragraph number 2 of Mr. Bernhardt 's letter, the reply is that these matters will be assessed during the modernization review of all regulations under the Canada Shipping Act, 2001. Members will recall correspondence in another file last week indicating that this project consists of two phases. All indications are that this review will take some years.

In light of this, I would suggest that the committee insist on receiving a specific reply on the two issues that have been raised now. Even if the committee is willing to accept actual amendments at a later date, they should at least have a reply before four or five years.

The Joint Chairman (Mr. Grewal): Good enough.


The Joint Chairman (Mr. Grewal): SOR/95-405.

Mr. Bernier: In this instance, Mr. Chairman, we have two replies to the same letter. Both indicate that the drafting correction will be effected when the regulations are reviewed as part of Canada Shipping Act, 2001 comprehensive review.

I have a feeling this is going to come back quite often in the next year or so, or several years. If that is acceptable to members, progress will be monitored on an ongoing basis. The issue here is one of drafting. It is not a terribly significant matter.

Mr. White: The wording of the letter seems vague. The promises are a little vague. The comments include, ``This project will review...and amend them as needed over the next few years;'' ``...will be scrutinized and any inconsistencies...will be resolved.'' There are no timelines. There is nothing here. Is it good enough?

Mr. Bernier: We are back to what will be become the famous Canada Shipping Act, 2001 review. In the first reply to this letter, we were told it would be six years before it is completed. You will note that by October of the same year, we are no longer even taking the risk of speaking of four to six years; we are simply talking of over the next few years, and we are keeping it nice and vague.

We have had this reply to objections to regulations made under the Canada Shipping Act now on a number of files. Apparently, not much will be done in terms of correcting the current regulations until such time as this overall review of the regulatory regime has been completed.

Mr. White: I understand that. I understand the need for us to push along these couple of issues, but maybe we should ask them for a timeline at the same time. Otherwise, we will get a similarly worded letter back again: ``It is being reviewed; it will be part of the other stuff; do not worry about it, everything is fine.''

Mr. Bernier: We would be asking if the department has defined a specific timetable for phases one and two of its comprehensive CSA2001 review; is that correct?

The Joint Chairman (Mr. Grewal): Okay. All right.


The Joint Chairman (Mr. Grewal): SOR/2001-340.

Mr. Bernhardt: A question was raised concerning the description of certain waters in one of the schedules to the regulations. The department's explanation, in particular the sketch of the area that they have provided, resolves the matter, and no action would appear to be required.

Mr. Lee: Agreed.


The Joint Chairman (Mr. Grewal): The next one is SOR/95-447.

Mr. Bernhardt: Counsel's letter of March 3, 2000, pursued three matters at the request of the committee. After some prodding, including a letter from the joint chairmen to the minister, the department replied last July 4. As the department's reply notes, amendments made by SOR/2002-129 resolved one of these matters. As an aside, SOR/2002- 129 also made a number of other amendments that have been promised to the committee.

The two points remaining concern the vagueness of certain provisions. The first deals with sections that state that the determination of value of materials is to be done in accordance with Schedule VIII to the NAFTA rules of origin regulations ``with such modification as the circumstances require.''

The department has given some indication of the sorts of modifications that are contemplated, and while the use of this mechanism is often condemned as a lazy way to draft regulations, it is a fairly common practice. Perhaps there may be little to gain by pushing the point any further.

The other matter concerns section 18 of Schedule II. This provision permits goods to be imported without marking the country of origin on them in certain circumstances if the cost of marking would be substantial in relation to the value of the duty of the goods. It was suggested that some indication should perhaps be given as to how it would be determined whether or not the cost is substantial. The department replied that this language appears in the NAFTA agreement itself and therefore it is mandated.

As my letter of July 22 points out, however, this is not entirely correct. The NAFTA agreement does not indicate what it means by ``substantial'' when used in the agreement, so it is still left to the parties to interpret that when implementing the agreement. Having said that, even if there were some guidelines in the regulations, customs officials would still have to make the determination on a case-by-case basis.

The department has also advised that the section in question has never been invoked by any importer, so while it might be thought to be preferable that some clarification of the term ``substantial'' be there, members may decide that pursuing the point is simply not justified. If that is the case, with both of these two points, the file can simply be closed.

The Joint Chairman (Mr. Grewal): Any comments? Seems okay? All right.


(For text of documents, see Appendix Y, p. 1Y:1.)


(For text of documents, see Appendix Z, p. 1Z:1.)


(For text of documents, see Appendix AA, p. AA:1.)

Mr. Bernier: Mr. Chairman, if I may deal with all of the three SORs listed under the heading ``Action Taken'' together, these instruments make nine corrections requested by the joint committee.

In addition, I note for the record that 47 instruments have been submitted to the committee without comment.

The Joint Chairman (Mr. Grewal): Very good. We will conclude this meeting.

The committee adjourned.

Scrutiny of Regulations, Issue 1, Evidence

Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 1 - Evidence, December 5, 2002 (Working Group)

OTTAWA, Thursday, December 5, 2002

A working group of members of 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: We do not have a quorum today, so this will be a working group meeting. The Senate has not yet adopted the committee's first report, whereby we asked for a reduced quorum. The Senate joint chairman has not had an opportunity to get that report adopted in the Senate. It has been adopted in House of Commons, but the Senate part is still pending.

Let us proceed to consideration of the agenda items.


(For text of documents, see Appendix A, p. 1A:1.)

The Joint Chairman: This item appears under "Letters To and From Ministers.''

Mr. François-R. Bernier, General Counsel to the Committee: The chronology of this file is explained in the chairmen's letter of February 11, 2002. In reply, the minister has undertaken to proceed with the amendments requested by the joint committee and has laid out a fairly precise timetable for the completion of that initiative. If members agree, perhaps counsel could follow up with the department to verify that they are still on schedule with regard to that timetable.

The Joint Chairman: If there are no questions, can we follow the recommendation?

Hon. Members: Agreed.


(For text of documents, see Appendix B, p. 1B:1.)

The Joint Chairman: Mr. Bernier, what is the status of this next item?

Mr. Bernier: Mr. Chairman, the chair wrote to the Minister of Finance after I was unable to obtain a reply from the designated instruments officer to my letter of October 16, 2000. In his reply of October 7, the minister indicates that the relevant amendment, a simple drafting correction, will be submitted to the special committee of council in the near future. I would suggest a follow-up in February.

The Joint Chairman: Are there any questions?



(For text of documents, see Appendix C, p. 1C:1.)

The Joint Chairman: What do we know about SOR/94-439 and SOR/94-512?

Mr. Bernier: The September 27 letter to the Minister of Canadian Heritage was sent in order to let the minister know that the committee's previous objection to the fixing of fees otherwise than by regulation under the authority of the Canada National Parks Act applies to the fixing of fees pursuant to the Parks Canada Agency Act.

Members may recall that the committee took the position that the effect of section 4 of the Canada National Parks Act is to preclude any limitation of the right to enter or use national parks otherwise than under regulations made in accordance with that act. This includes any fees that may fairly be said to limit the benefit of national parks by the people of Canada.

Section 4 of the Canada National Parks Act provides that "the national parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this act and the regulations.''

In reply, the minister's assistant seeks to dismiss the importance of section 4, pointing out that this section "is not an application or an interpretation section.''

I am not entirely certain I understand what importance the characterization of section 4 has. All I know is that it is an enactment and ought to be given effect like any other enactment of Parliament. The fact that the section is expressly stated to be subject to this act and the regulations certainly indicates that Parliament considered the preceding dedication to the people of Canada to have a legal effect of some sort. If it had none, there would be no need for that qualifying sentence, the "subject to'' clause.

As for the relationship between the Canada National Parks Act, CNPA, and the Parks Canada Agency Act, the PCAA, Mr. Boyer writes that "nothing in the CNPA limits the application of the PCAA.'' This overlooks the fact that, relative to one another, the Parks Canada Agency Act is a general statute while the Canada National Parks Act is a specific enactment. The usual rule of interpretation is that a specific statute overrides the general enactment.

From the beginning on this file, departmental officials have sought to diminish or deny any importance to section 4 of the CNPA. On that account, Mr. Boyer's letter is certainly in line with the previous position of the department.

As far as I can determine, the committee, has reached a point where it must consider the desirability of reporting to the Houses. If the committee goes in that direction, we could have a draft report ready for consideration by this committee when it resumes sitting in the New Year.

Mr. Lee: What, in counsel's view, would be the easiest rectification of this problem?

Mr. Bernier: The easiest rectification, counsel believes, is always the legal rectification, and that involves setting fees in regulations made under the Canada National Parks Act. The authority is there. There is just a determination on the part of the government not to use the authority to set fees Parliament gave it in the CNPA. Instead, it wishes to set fees administratively under the PCAA, where there is no regulation that is registered, examined, registered, published in the Canada Gazette.

The authority under the PCAA is simply administrative authority for the fixing of fees. There is no need of a formal instrument. They are published in Part I of the Canada Gazette, but the rest of the process is not followed. If fees are prescribed under the Canada National Parks Act, then that is done by means of a regulation that is subject to all the requirements of the regulatory process.

That is a choice. It is not a case here where the government does not have the ability to set those fees. It does not want to use the mechanism Parliament gave it to set fees in the CNPA but wants to use some other authority.

Mr. Wappel: It wants to use the authority Parliament gave it under the PCAA as opposed to the authority Parliament gave it under the CNPA?

Mr. Bernier: Exactly. The authority under the PCAA is, as I mentioned, a general authority. It is authority to set fees in regard generally to all things that fall within the mandate of that department. The Canada National Parks Act is a more specific statute, and this is where the dedication clause in section 4 comes into play. In section 4, Parliament specifically enacted that the only way the rights of the people of Canada to enjoy and have the benefit of national parks can be limited is under this act, the National Parks Act, and regulations made under the act. I do not believe that the general statute, the PCAA, is sufficient to displace this indication or intent Parliament expressed in section 4.

Mr. Wappel: You say there is a rule of interpretation that the specific overrides the general?

Mr. Bernier: Yes.

Mr. Lee: Which of those two statutes came last?

Mr. Bernier: The general statute came later.

Mr. Lee: We can only guess what the purpose of the statute was. Was it a consolidation, a cleaning up, a rationalization?

Mr. Bernier: The second one, the general statute, Mr. Lee, created the Canada Parks Agency Act, and general authority to set fees for services rendered by that agency was given for parks and anything else they administered. The Canada Parks Agency Act administers marine parks, certain historical sites and so on, so it is a lot broader than strictly national parks.

Mr. Lee: One could argue that the last statute passed, the general one, was intended to cover the whole field and consolidate that fee-making authority.

Mr. Bernier: Yes, but you cannot interpret a general enactment as displacing a specific enactment. If we say the authority is now given under the Parks Canada Agency Act, we then have to interpret that act as having implicitly revoked section 4 of the Canada National Parks Act. Absent very express language, that conclusion cannot be reached.

You can do what the department is proposing: "We read both statutes, and they both provide authority,'' so following that line of reasoning, you could, for the same thing, prescribe a fee under the Canada National Parks Act and prescribe a fee for the very same thing under the Parks Canada Agency Act. I do not think so. It is one or the other. Parliament is not so unreasonable as to contemplate that the same benefit, if you will, will be subject to a double fee under different statutes.

Mr. Lee: Therefore, with 20/20 hindsight, we might suggest that it was a legislative oversight in enacting the later general statute not to clean up the little problem we had in section 4 of the prior statute, so that the consolidated fee- setting mechanisms that were envisaged by the later statute could be applicable to the fee-setting requirements of the first statute.

Mr. Bernier: You would not assume an oversight of Parliament. The legislator, almost like the Creator, is assumed to be all-knowing and all-knowledgeable. The legislator, was aware of section 4 of the CNPA, aware of the rules of interpretation that I have referred to, but decided as follows: "We will give the general authority, but as regards fees for national parks, the authority will continue to have to be exercised under the Canada National Parks Act.''

Mr. Cummins: The intention of Parliament in bringing the general act was not to override —

Mr. Bernier: To displace its earlier statute.

Mr. Cummins: Was that the intent?

Mr. Bernier: I do not believe so. That is why I say that one cannot assume that a general statute displaces a specific enactment unless there is much clearer language.

Mr. Cummins: Unless it specifically says so — is that what you are saying?

Mr. Bernier: Yes. Otherwise, the specific statute becomes, if you will, an exception to the general statute.

Mr. Wappel: Just so I can be clear, your recommendation is that we report to Parliament. Would that be your usual report, or would it be a disallowance report?

Mr. Bernier: The usual report.

Mr. Wappel: I am not suggesting this, but why not a disallowance report? On page 2 of your letter, you say: "...the fees that have been imposed without statutory authority since 1994.'' If that statement is true, then these fees are illegal, and surely we should be disallowing them. If that statement is not true, then why is it not true?

Mr. Bernier: I suppose my off-the-top-of-my-head answer would be that I was not aware of the committee's desire to follow the rule that whenever something is ultra vires it is disallowance automatically.

Mr. Wappel: I am asking why you did not recommend that, because usually, where the pocketbooks of citizens are affected, historically in the past, the committee has taken a dim view of the government picking the pockets of citizens, apparently without statutory authority.

Mr. Bernier: In that perspective, then, let me say that there is authority to charge fees. In a way, the wrong method of imposing that fee has been chosen, instead of having a regulation. This is not a case of a citizen paying something for which there is no legal authority anywhere in the Statutes of Canada. There is authority, but the imposition of the fee has been effected using the wrong method.

Mr. Wappel: Was PCAA in effect in 1994?

Mr. Bernier: No. The dates are a little unclear. Earlier than that, they were using a general authority, again an administrative fee-fixing authority, under the Department of Canadian Heritage Act. That is where the issue started for the committee. Then the PCAA was enacted, which also provided further fee-fixing authority, and then they switched the fixing fees from the departmental statute to the Parks Canada Agency statute.

Mr. Lee: The government and the department had the authority to fix fees and charge fees but, in so doing, the way they are doing it now, it derogates from the dedication in section 4, which says that Canadians have these parks for their use and the only way we can derogate from that is to use that specific statute, which the department is not now using. Is that correct?

Mr. Bernier: Yes.

The Joint Chairman: Do members want counsel to prepare the report?

Hon. Members: Agreed.

The Joint Chairman: Counsel will prepare the draft report for the next meeting.

The next items are "Reconsideration'' items.



(For text of documents, see appendix D, p. 1D:1.)

The Joint Chairman: The next item of business is SOR/96-474.

Mr. Jacques Rousseau, Counsel: The committee felt that certain provisions in the regulations were illegal. As can be seen from the exchange of correspondence, the department proposed several enabling legislative provisions. Counsel for the committee is of the opinion that one of these provisions would in effect allow for the adoption of the regulations. Accordingly, the matter is once again before the committee today for review. The minister may be deemed to have finally responded in a satisfactory manner to the question as to which legislative provisions authorize the Governor in Council to make regulations. If the committee agrees, the matter can now be considered closed.

Hon. Members: Agreed.


The Joint Chairman: The next item of business is SOR/92-585.

Mr. Rousseau: In a letter dated 30 October 2002, the agency informed the committee that the promised amendments should be ready within six months. Counsel will continue to monitor the situation and will keep the committee informed of any developments.


The Joint Chairman: The next item is SOR/93-492.

Mr. Rousseau: The agency's letter confirms that a legislative amendment to clarify the act has been requested and could be included in the next amending bill, if accepted. This is yet another instance where counsel for the committee will continue to monitor the situation and to keep members informed of any developments in the customary manner.


The Joint Chairman: The next item of business is SOR/97-542.

Mr. Rousseau: With respect to this item of business, the department advises us that the promised amendment will be made in the spring of 2003. Again, counsel will monitor the situation and keep the committee apprised.


Mr. Wappel: Mr. Chairman, just to comment on this one, did they make a previous promise to us?

Mr. Rousseau: A previous promise?

Mr. Wappel: Did they give us a previous undertaking that then they did not meet because of other departmental priorities?

Mr. Bernier: Yes. I would think so. If you look at the letter of October 2, the amendment has not proceeded as planned.

Mr. Wappel: They have already promised us something, which did not happen. Now they are promising us something again. I would urge you to give them no rope whatsoever but the spring as defined in the 2002 calendar.

The Joint Chairman: Is it agreed?

Hon. Members: Agreed.


The Joint Chairman: The next items fall under the heading "Progress (?)'' — in other words, progress, questionable.

Mr. Bernier: Mr. Chairman, the committee's concern with sections 41, 43 and 45 of these regulations is that they are ultra vires the current legislation or the legislation in place at the time they were made. The new Canada Shipping Act, 2001, does provide authority for these regulations, but they will have to be re-enacted under the new statute.

Asked when this may occur, the reply from the department is that it will be done as part of phase one. Phase one, according to the reply, is a process that will take several years. In other words, I take it, it could be a very long time before the vires issue of sections 41, 43, and 44 is addressed.

The committee could decide to wait. It could write to the minister to ask him to move the re-enactment of these three sections ahead to phase one, on the understanding that that itself is a process that will bring us several years down the road. Alternatively, I suppose in this instance, given we are talking legality, the committee could decide to give a little push and move disallowance of these provisions.

Mr. Lee: This file is five years old. We are dealing with ultra vires provisions. The department is "phase two-ing'' us. Unless they can provide some clarity as to what "phase two-ing'' is, in terms of time, then let us just go ahead and do what we have to do, which probably means going to a disallowance if they are truly ultra vires, and not excessively technical, if there is support around the committee table.

I think we should write to the minister. I would not debate anything, if we are clear on this. I would recommend that we say we do not want to be "phase two-ed,'' because this is five years old. We should tell them that they cannot give us a firm date that is reasonably soon, then we will go ahead and do what we have to do. That is my view.

The Joint Chairman: Are there any other views?

Mr. Bernier: The committee will be asking, Mr. Lee, for a separate amendment or a firm date.

Mr. Lee: Firm date. I do not want it to be seven or eight years.

Mr. Bernier: Phase one itself, I think, will be five, six or seven years.

Mr. Lee: If they want to say that phase two will happen in 2004, then I am happy. Otherwise, let us manage this file crisply. If there are any danger signs that might accompany a disallowance, they will be brought to our attention.

The Joint Chairman: Is there any time frame we should wait for this?

Mr. Lee: It usually takes us six months to get a letter back on these things. Our clock is running, and we are not prepared to wait for three, three, four, five, six more years. The letter will drift on back to us in six months from now. I am not encouraging people to read this record and to deduce that it is okay to take six months to reply, but as our processes go, it might be six months before this matter comes back to us.

The Joint Chairman: Are there any other comments?

Mr. Cummins: What will you ask him, then?

Mr. Lee: We will write to the minister and tell him to fix it, with a crisp fixed date, and if not then we will do what we have to do. Members may not want to disallow; they may just want to report. However, we do not have to dance around on this one. I do not want to keep the file around for five or six years.

Mr. Cummins: I agree. I want to get clear in my own mind what it was you were intending to do or what it was you wished counsel to include in the letter.

Mr. Lee: One more chance to give us a clear date, an undertaking, and get it fixed.

Mr. Cummins: And an indication that what has been provided is not satisfactory, then.

Mr. Lee: Sure. We are always open to cold-hearted reasoning.

Mr. Wappel: I think we should not be cryptic in our letter. We should simply say that, if we do not receive a satisfactory response, the committee will consider its options, which include reporting to Parliament and disallowance, just so they know perfectly clearly what we would consider in the event we do not get an answer.

The Joint Chairman: Is it agreed?

Hon. Members: Agreed.


Mr. Bernier: A number of amendments to these regulations were promised by the department in 1995. After missing various announced deadlines for the completion of the amendments, the department announced that the promised amendments would be pre-published in the second quarter of 2001. That deadline was also missed, and the committee was then told that the proposed amendments would be sent to legal services in the fall of that year. Apparently, that did not occur either, because in February of this year we were informed that the amendments were expected to be sent to legal services as soon as possible.

The latest information before the committee indicates that the draft amendments had still not been submitted to legal services in March of this year. The amendments have not been made, obviously. I would suggest that the chairmen write the responsible minister and request her assurance that there will be no further delay.

Mr. Cummins: I have a question on jurisdictional issues here. This particular item — and I am not familiar with it — has to do, as you say, with marine occupational safety. Workers' Compensation in British Columbia gets involved in this issue as well. Where is the line drawn vis-à-vis responsibility with respect to occupational safety on vessels? Where is the jurisdictional line?

I am not sure I understand. I do understand that Workers' Compensation in British Columbia gets involved in matters vis-à-vis fish boats, and perhaps on other commercial vessels, and it is something I always assumed was a federal authority.

Mr. Bernier: This is really a constitutional question. I can give a general answer, but if you want a very specific answer as to a specific program, then I would have to look at it.

Generally, labour relations in relation to federal works or undertakings fall under federal jurisdiction, which is why you have a federal Department of Labour. It includes harbour, shipping, interprovincial modes of transportation — not to say that there may not be an applicable component of provincial jurisdiction. There could be. I would have to look at this in greater detail, because those are very complex constitutional questions.

Mr. Cummins: I ask because I wonder about the effect of these regulations. What if there is conflict with provincial initiatives by provincial Workers' Compensation boards? I am not sure I understand how this can operate. How can you have two levels of government operating in the same area, or are they?

Mr. Bernier: Would it be possible, Mr. Cummins, that you send me, from your office, a note giving me indication as to the specific provincial program you are referring to, and I will be pleased to look at it.

Mr. Cummins: I am referring to Workers' Compensation regulations that have effect, as I understand it, on commercial fishing vessels in British Columbia. I have always felt that that was a provincial intrusion into a federal area of responsibility. Now I see here that we have regulations dealing with marine occupational safety. I am wondering where the line is drawn here. It is as simple as that.

Mr. Bernier: It may appear simple, but it is complex. Any constitutional question in this country is complex. It is an issue of constitutional law, and I would feel more comfortable looking at it at the office and taking time to look at the case law and the doctrine before providing any sort of reply on an issue like that.

Mr. Cummins: I am interested in knowing this. I do not know whether other members would be, but I think it reflects on this issue for me.

The Joint Chairman: Are there any other comments?

What course of action should we take?

Mr. Bernier: I suggested a letter to the minister.

The Joint Chairman: Is that agreed, members?

Hon. Members: Agreed.



(For text of documents, see Appendix E, p. 1E:1.)

The Joint Chairman: Our next agenda items fall under the heading "Part Action Promised.''

Mr. Bernier: The first item, Mr. Chairman, concerns the progress of previously promised amendments. The reply is that they should be included in the next miscellaneous amendments initiative. This will be monitored.

In an effort to deter unacceptable conduct in the fresh fruit and vegetable trade, the Governor in Council had adopted a number of provisions that, in the committee's view, had a rather tenuous connection to the purposes of the Canada Agricultural Products Act. The scope of those provisions is described in my letter of November 29, 2000.

In their reply of July 3, 2002, the Canadian Food Inspection Agency agreed to make significant changes to section 7(1)(a) of the regulations, to reflect the concerns of the committee, and that is acceptable. Section 19 will also be amended to correct the inequality of treatment the section created.

I am not certain that the objection to section 19(1)(b) has been satisfactorily addressed, and this will need to be pursued.

As for the committee's comments on section 20 of the regulations, Ms. Stolarik states that CFIA intends to review the section to determine whether amendments are necessary. An inquiry should be made at this point as to the outcome of that review.

Hon. Members: Agreed.


(For text of documents, see Appendix F, p. 1F:1.)

Mr. Bernier: As mentioned in the covering note, Mr. Chairman, these regulations take care of several concerns raised in relation to the previous regulations. A small drafting correction has been promised to section 4(b) of the regulations. On the questions of guidelines, we will be advised when they are ready, and we will then review those guidelines to determine whether they in fact should be adopted as rules as opposed to administrative guidelines.

The Joint Chairman: Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix G, p. 1G:1.)

Mr. Bernier: An amendment to section 5(1) is promised. Mr. Chairman, the reply on other points is satisfactory.

The Joint Chairman: Any further comments?

Hon. Members: Agreed.

The Joint Chairman: The next group falls under "Part Action Taken.''




(For text of documents, see appendix H, p. 1H:1.)

Mr. Rousseau: As can be seen from the comments prepared by the committee, two promised amendments were made further to comments by counsel. The department's reply as to the third point raised is satisfactory. Accordingly, if the committee agrees, the case can be closed.

Hon. Members: Agreed.


The Joint Chairman: Agreed?

Hon. Members: Agreed. Close the file.

The Joint Chairman: The next group of items falls under "Reply Satisfactory.''




(For text of documents, see appendix I, p. 1I:1.)

Mr. Rousseau: Treasury Board's reply can be deemed satisfactory. The Board has announced that some amendments will be brought in to remove the provisions that pose a problem. Since Treasury Board's letter is dated January of last year, it would be appropriate for counsel to write to the Board for an update on any developments that have occurred since the letter was sent.


The Joint Chairman: Are there any comments?

We will now move to those items under "Reply Satisfactory (?)'' on the agenda.










Mr. Rousseau: With respect to this series of regulations, the question mark concerns the fact that the committee had asked Treasury Board to provide it with references to judicial decisions to validate the contested provision. The Board has failed to do so, but has indicated that the legislation will be amended to clarify the relevant regulatory authority.

If the committee is amenable, counsel recommends that a letter be sent to the department advising it of the committee's decision and asking for specifics as to when the legislation will be amended.

Hon. Members: Agreed.


The Joint Chairman: Agreed. A letter should be written asking when.

Mr. Lee: I agree.


(For text of documents, see Appendix J, p. 1J:1.)


(For text of documents, see Appendix K, p. 1K:1.)



(For text of documents, see Appendix L, p. 1L:1.)


(For text of documents, see Appendix M, p. 1M:1.)


(For text of documents, see Appendix N, p. 1N:1.)


(For text of documents, see Appendix O, p. 1O:1.)


(For text of documents, see Appendix P, p. 1P:1.)


(For text of documents, see Appendix Q, p. 1Q:1.)

The Joint Chairman: We are now dealing with those items under "Action Promised'' and "Action Taken.''

Mr. Bernier: Mr. Chairman, as we usually do, I will deal with all of the items under the headings of "Action Promised'' and "Action Taken'' together.

We have some nine amendments promised in relation to the instruments listed under action promised.

As for action taken, six provisions have been revoked and one instrument has been replaced, thereby resolving a number of objections. Section 39 of the Pest Control Products Regulations has been amended to provide for safety and health warnings to appear in both official languages. Another 12 amendments have been made at the request of the committee.

As for "Statutory Instruments Without Comment,'' there are 42 instruments submitted without comment.

Mr. Lee: In connection with the Thunder Bay Harbour Commission By-law, SOR/95-335, I gather we found a problem there in some respect and requested the harbour commission to make a change. Did they agree and make the change themselves, or was the change made by the federal government, the transport ministry? Does counsel recall? We have occasionally in the past had difficulties dealing with harbour commissions.

Mr. Bernier: I would have to go back into the file, Mr. Lee.

Mr. Lee: No need to burden the record. I am just curious. I would love to hear that they were fully cooperative and dealt with the issue themselves and that we were happy with that.

Mr. Bernier: I can verify the file, and I will let your office know.

Mr. Lee: That is fine.

The Joint Chairman: Are there any comments?

For the information of members, we had a draft budget.

Mr. Lee: I have a question, or maybe it is a point of order. Did counsel tell us how many files were processed?

Mr. Bernier: I certainly did; the number is 42.

Mr. Lee: Forty-two files were processed successfully without comment.

The Joint Chairman: The steering committee met and discussed the draft budget, which is the application for budget authorization for the fiscal year ending March 31, 2003. The total amount is $146,400 compared to the last year's total budget of $262,500. The only significant change is a reduction in subscriptions.

Mr. Till Heyde, Joint Clerk of the Committee: The committee could consider adopting the budget at the meeting next week. The budget for 2002-03 for the Second Session of the Thirty-seventh Parliament is the one with the yellow mark on the top right corner. The one on Senate letterhead is for comparison purposes, as the joint chairman has indicated.

If committee members go to the third page of the current budget application, you will see the breakdown of expenses. By and large, it is a continuation of the items from previous years. At the beginning of this fiscal year, the House of Commons transferred funds to the Library of Parliament. Therefore, the library is now paying for the 70 per cent of the staffing costs of the committee that was previously the responsibility of the House of Commons. The Senate still pays for its 30 per cent. Discussions are underway about a possible transfer to cover this 30 per cent.

As the chair mentioned, under the category of "Miscellaneous,'' Item No. 3 deals with the purchase of books and materials. Counsel has reviewed subscriptions that the committee has had and determined that two of them, while beneficial, are not absolutely essential. A decision was therefore made to cancel those subscriptions. The budget you have before you has been reduced to reflect the cancellations starting in the New Year. The budget that will come before you for 2003-04 will fully reflect the savings arising from the cancellations. The committee is, therefore, in a transitional phase in that regard.

Mr. Lee: We cannot do a motion? Thank you for that.

The Joint Chairman: Thank you very much.

Mr. Wappel: I wonder if you would be kind enough to do whatever you can to encourage honourable senators to pass the appropriate motion so that when we meet next week, I believe, we do not have to wait around and we can have a reduced quorum.

The Joint Chairman: We will do our best. We will discuss that in the steering committee and if possible that will be done.

One more piece of information for the members: The Aboriginal fishing licensing regulations will be before the committee on December 12.

Mr. Bernier: The government's response to the report.

The Joint Chairman: It will be before the committee on December 12.

The committee adjourned.

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