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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 2 - Evidence

OTTAWA, Thursday, February 6, 2003

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:38 a.m. for the review of statutory instruments.

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


The Joint Chairman (Mr. Grewal): I would ask for a motion that the committee adopt the following meeting schedule to the summer of 2003, subject to changes necessitated by the sitting schedule of the two Houses. The proposed dates are as follows: Thursday, February 20, 2003, March 20, April 3, April 10, May 1, May 15, May 29 and June 12.

Mr. Lee: I so move.

The Joint Chairman (Mr. Grewal): All those in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): There was an amendment to one agenda item; I am sure all members received the amended copy.

Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, I suppose that the inclusion of punctuation marks represents an amendment. The problem was that the copy sent to the printers had periods in the text. When the copies came back, those had all disappeared. There was not a single period found in the whole report. We had new copies printed and members received the punctuated version the second time.

The Joint Chairman (Mr. Grewal): One quick note before we move on: There was debate in the House on Bill C-205, which is the proposed disallowance procedure for statutory instruments. I am sure members watched; however, I will ask general counsel to prepare a review, to assist members in knowing the pertinent points in the debate. Is that possible?

Mr. Bernier: Yes.

The Joint Chairman (Mr. Grewal): Let us deal with the business at hand.


The Joint Chairman (Mr. Grewal): I believe members have received the latest copy of a letter from the minister, dated February 5. I am a little concerned about the minister telling this committee to follow certain procedure. I am sure members of this committee are aware of the procedure they need to follow. Many of us have been members of this committee for a long time and, as such, know the procedure. It is not up to the minister to tell us the procedure we need to follow.

Having said that, I will ask for comments from the general counsel.

Mr. Bernier: I am not sure there is much for me to say here. I think members might like to take a moment to look at the correspondence received from the minister yesterday, addressed to the joint chairs and to the vice-chair. We only received that material around two o'clock yesterday, so it could only be produced this morning. To send it around to offices would have been ineffective.

The Joint Chairman (Mr. Grewal): Could you mention the key points?

Mr. Bernier: I did take the time to prepare a short note on that letter from the minister that refers to what he calls ``the normal procedure of the Standing Joint Committee.'' The letter states that this procedure has not been followed in the case of the amendments registered as SOR/2002-225. Those are the amendments that were made to the Aboriginal Communal Fishing Licences Regulations last June, prior to the tabling of the government response to the sixth report of the committee.

The letter simply makes the point that the chairman has alluded to, that the procedure to be followed by the committee in the examination of statutory instruments is entirely at the discretion of the committee. Committee members are the masters of the committee's procedure. Regulation-making authorities should not assume that, because a particular procedure has been followed in the past, that procedure binds the committee in any way or that the committee may not proceed in some other way that the members consider appropriate.

The second point relates to the substantive request of the minister, which is that his officials be given an opportunity to discuss those June 2002 amendments. I have to say that, given that those amendments do nothing to resolve the sub- delegation issue, which is the main issue of concern to this committee, I am not quite sure what there is to discuss. That being said, in the event that the committee, being the good-hearted committee it is, decides, as a courtesy, to accommodate the minister, I suggest that that opportunity be afforded in the form of an invitation for his officials to appear in fairly short order. We have a couple of openings — February 20 or February 27 — where the officials could attend to simply explain whether it is their view that those June 2002 amendments address the sub-delegation issue and to explain how they do that. If those amendments do not address the sub-delegation issue, as I think they do not, then they should say so and the committee can move on with its agenda.

We seem to be in this circle, and I am not sure if it is the tenth or the fifteenth circle of hell. The proceedings today are strangely reminiscent of the proceedings in January 2002. In December 2001, a proposal was made to propose disallowance to the House. In January 2002, a letter was received at the last minute from the minister pleading for discussions. Now, here we are and we have exactly the same scenario one year later.

To be blunt about it, I am not sure how often that scenario can be allowed to repeat itself without some damage to the credibility of the committee.

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

Mr. Lee: Well, Mr. Chairman, I may have to admit to a certain sense of déjà vu each time I come to a meeting of this committee. However, on the issue of whether we should allow some time for the minister or a staffer to explain the rationale behind the amendments, which they did make two or three months ago, I accept the remarks of our counsel that confirms that we do not really have a normal procedure for dealing with disallowances. I know the chairman has said the same thing. The resort to disallowance procedure is an extraordinary procedure. We do not have a protocol on that, but we do use common sense. If courtesy is requested, there is every reason to extend it. In this particular case, I wish to make two points.

It would be of help to me if, first, I could hear from the department straight up, at a meeting, without having to read between the lines, their rationale for believing that they had overcome the difficulty described by our committee in our report to the House and that they had overcome this problem in the amendments that I suppose they have urged the government to adopt.

Second, I do not feel that I have had an opportunity to canvas the issue of just how much of a legal entity, or quasi- legal entity, an Aboriginal group, organization or an Indian band is in Canadian law. I know that counsel has thoroughly vetted that issue as far as we have come to date. One cannot help but agree that, on the basis of current Canadian law, he is close to the final word on it.

However, there are three bills before the House right now that introduce new concepts in relation to Aboriginal groups. I know these bills are not law yet, but I mention it because, in our Constitution, we have created an envelope for the Aboriginal circumstance that exists in our country. Perhaps, in that envelope in our Constitution, there are ways or reasons for recognizing the quasi-legal existence of Indian bands — at other times known as Aboriginal organizations and at other times known as First Nations organizations. One would hope that, through these remarks, the department would try to put some effort into that and be prepared to address the issue.

I should like to ask some questions about that particular aspect of this file when they come to us, at the earliest possible date. Our counsel has suggested the possible dates of February 20 or 27. I do not know whether we can pick one of those days, but at the earliest possible date, such as one of those dates, I should like to have department officials come with the minister to explain these things.

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

Mr. Burton: Even though this is my first meeting, because I am a new member, after reading the file last night it does appear to be déjà vu. Reading the transcripts from last year's first meeting in February, it was apparent to me that you had a similar situation in that it was still being considered in June. The big concern is that we need to deal with this issue sooner rather than later if we are to deal with it in time for this year's fishing season. Obviously, there are difficulties, because it appears to be illegal. This committee needs to deal with this because it has been an issue for six years.

Mr. Wappel: Mr. Chairman, I have a couple of points, for the information of the committee. Mr. Lee referred to some bills that are before the House. One of the issues that were discussed here at length was the legal capacity of Indian bands. Just for the information of the committee, Bill C-7 is currently before the House, and Part 2 of that bill is entitled ``Powers of Band Councils.'' Clause 15 of that bill provides that a ``band has the legal capacity, rights, powers and privileges of a natural person, including the capacity to'' et cetera. I am assuming that, if there has been a debate as to the capacity of the band council, the government has decided to end that debate by defining ``band council.'' It is almost the same language one would use for a corporation. Assuming this bill is passed, it will resolve that. Even if it is not passed, it is certainly clear that at least the bureaucracy has recognized that there is a problem, and it should be clarified in statute.

Having said that, I listened carefully to what counsel said about the minister's impression of what the committee does, and I am not all that concerned about the minister's impression because he is not necessarily familiar with our committee's work. If we are going to extend the courtesy that the minister requests, we should make the point that counsel has suggested, which is that we decide from case to case what it is that we will do. There is no precedent. No department should simply presume that because they do something we would naturally give them another opportunity.

We have been specifically requested by the minister to have his departmental officials here. There would not be a great delay if we have the officials on February 20, which is the next meeting. There is no need to have the minister. We would be dependent on his schedule and, as such, most probably matters would be delayed. He would simply defer to his officials in any event on this complicated issue.

With the wording that Mr. Lee has proposed as a heads-up to the departmental officials, we could get them focused and ask the pointed question. We would still have part of that meeting left, if necessary, to deal with this issue.

In effect, we would lose two weeks. Given that it has been a while and given that the minister has requested politely an opportunity to have his officials explain why they have done what they thought we wanted, it would be courteous to have the officials. However, we should give a short leash as Mr. Burton points out — 14 days.

The Joint Chairman (Mr. Grewal): This issue has dragged on far too long, as we all know. Committee members have been frustrated; general counsel has been asked to prepare a draft disallowance report, which is before us. Having the views of the members, it is the consensus that we give the minister one last chance, by appearing before the committee with his staff as soon as possible with a short leash of time? We would ask pointed questions, to be answered ``yes'' or ``no.''

If the minister shows his worth to meet his promise to the committee, we will look at that. Otherwise, we will go over the disallowance report. Is that the consensus?

Mr. Wappel: My suggestion was to not involve the minister. His letter does not ask that he appear. His letters asks that his departmental officials appear. There should be no excuse for the departmental officials not to appear when we tell them to appear.

The Joint Chairman (Mr. Grewal): We can deal with the departmental officials, but we ask for the minister. If the minister cannot appear, we will have the officials. Perhaps the minister is free, and he will come. If he does not come, then at least the staff will be here.

Mr. Bernier: This committee would not turn the minister away if he showed up on February 20.

The Joint Chairman (Mr. Grewal): The date is February 20. We will not be flexible on the date. We will ask the minister and the departmental officials to appear. We will need to get a confirmation as soon as possible. I am not prepared to give the minister a few more weeks.

Mr. Epp: It is my understanding now that the changes that they have made do not address the issue. That is the situation here. If this committee then proceeds with a disallowance report to the house, what then is the status of that? Are those regulations immediately suspended on tabling in the House? Does the House have to deal with it? Is there any way that that can be expedited?

The Joint Chairman (Mr. Grewal): The House has to deal with it since we do not have the disallowance procedure on statutory footing. After 30 days, I hope, we will see how it goes. There have been nine disallowances so far and no debate on that procedure in the past.

Mr. Lee: Counsel is very familiar with the procedure.

Mr. Bernier: The procedure is as follows: The committee tables its reports; after 15 sitting days of the motion for concurrence of that report being put on the Order Paper, the disallowance resolution of the committee becomes an order of the House of Commons to cabinet to revoke the regulation. Cabinet must still act, and retains its legal discretion to act or not to act in compliance with the order of the House. Within that 15-day sitting period, the minister may request a debate on the committee report, at which time there would be on the next Wednesday a special debate, limited to one hour, from one o'clock to two o'clock, and then a vote is taken at the conclusion.

If the vote of the House does not support the report, it is the end of the matter. If it supports the report, the resolution immediately becomes an order of the House to cabinet to revoke.

This should be clear: this committee making a report to the House does not result automatically in the revocation of the regulations. The House making an order does not result automatically in the repeal of the regulations either. The Governor in Council must effect the repeal.

Mr. Epp: Given the best scenario — a meeting within two weeks, report to the House and everything — we will still be pressed for time to have this enacted in time for this year's fishing season. It is still a crowded timeline.

The Joint Chairman (Mr. Grewal): Is it the consensus that we ask the minister and staff to appear on February 20?

Mr. Bernier: I need one more direction. The committee has before it now a draft disallowance report. That report is confidential. Does the committee wish the confidentially of this draft to be maintained, or can it be made available?

The Joint Chairman (Mr. Grewal): To the minister?

Mr. Bernier: Or other people — generally. This report has been given to so many people that the question must be asked.

Mr. Lee: It would be better to dispense with the normal confidentiality surrounding draft reports in this case. It would facilitate open discussion with departmental officials. The practicalities of keeping it confidential get out of hand here.

Mr. Wappel: Mr. Chairman, I agree, but this draft report would have to be changed in any event. As the committee will hear from the departmental officials, we would want to add to any draft report that we again engaged the departmental officials and that they were unable to convince the committee. It would be an argument to buttress our committee report, should it be debated in the House.

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

Hon. Members: Agreed.

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


(For text of documents, see Appendix A, p. 2A:1 )

The Joint Chairman (Mr. Grewal): We have received correspondence on this matter.


Mr. Jacques Rousseau, Counsel: Regarding this file, amendments have been promised, but before they can be adopted, a general review of the regulations will take place. The joint chairs have asked the minister to let them know when the review is scheduled to happen. Most likely it will be during the summer of 2003.

I would like to note that the points raised by the joint committee in this matter have nothing to do with the validity of the provisions in question. If the committee has no objections, we will monitor developments and keep the committee apprised of the situation.


The Joint Chairman (Mr. Grewal): Are there any comments? I have one quick comment. Some new regulations have been printed in the Canada Gazette. They are the same regulations, related to another bill. Do you have any comment or observations about that? It was the day before yesterday.

Mr. Lee: Mr. Chairman, if I could, for the record, I recognize that Transport Canada had a truckload of challenging regulatory work to undertake since 9/11. They refer to it in their correspondence further down in today's agenda. If they tell us that they are busy, it is because they are busy on the regulatory side, given the air, water and rail security and the taxation and economic challenges facing some of the players in those envelopes. I wanted to put that on the record.


Mr. Bernier: There is agreement on the part of the department to amend section 40 of the Canada Pension Plan so that it clearly allows the making of a regulation seeking to confer on deemed employers a right of recovery for premium payments against actual employers. That amendment would provide authority that is lacking in the current regulatory scheme; it was agreed to by the government in December 1999.

The chairmen had written to the minister to ask whether the amendment could be added to Bill C-58 at third reading, given that amendments to the Canada Pension Plan are relatively infrequent. That was on September 16, 2002. The minister replied that ``it is no longer practical to make a change of this nature as the Bill was re-tabled on October 3, 2002, and renumbered C-3.''

The reply is, frankly, a bit baffling. If, as stated by the same minister, ``Bill C-58 might have been a vehicle to carry this amendment,'' one has to wonder how it happens that it is no longer the case simply because Bill C-58 has been reintroduced as Bill C-3. Unless the reintroduction and renumbering of a bill has some consequences of which I am not aware, I would suggest that if Bill C-58 was appropriate for the amendment, the same can be said of Bill C-3, which could also be amended at third reading to include that change to validate the regulation. On that basis, I would suggest a further letter to the minister.

Mr. Lee: We will probably have to do some thinking for the ministry in this instance. If it were too late for the House, it may not be too late for the Senate. It may be that the scope of the bill has already been nailed down and that as such it is not such a good vehicle, given that the scope of the bill would not include it. In any event, perhaps we should aggressively promote the inclusion of this in the current Bill C-3.

Mr. Wappel: I suggest that, once the bill goes to a committee, we write to the chair and members of the committee considering that bill and bring our correspondence and suggestions to the attention of that committee. In that way, we are not only trying to educate the department but also are bringing to the attention of the members of the committee studying the bill that there is an opportunity for one of them to introduce an amendment that would satisfy the committee. We should be proactive.

Mr. Lee: Agreed.

The Joint Chairman (Mr. Grewal): Are there any other comments? General counsel will write a letter to the chair of the standing committee.



(For text of documents, see appendix B, p. 2B:1 )

The Joint Chairman (Senator Hervieux-Payette): I apologize for being late. The next item of business is SOR/2000- 327

Mr. Rousseau: As indicated in the comments prepared for the committee, the amendments requested have been made, including two in particular that replace a subjective discretion with a standard couched in more objective terms.

Two new matters arose from these regulations. As noted in the correspondence, one was the focus of an amendment. Regarding the second point raised, the joint chairs wrote to the minister asking him to clarify the date on which certain regulatory provisions came into force. The minister complied with the request and hinted that the problem was unlikely to occur again. Therefore, the file can be closed.


(For text of documents, see appendix C, p. 2C:1 )

The Joint Chairman (Senator Hervieux-Payette): The next item of business in TR/97-95, Certain Taxpayers Remission Order.

Mr. Rousseau: At issue is whether the order is defective given that the order does not include any provisions granting a remission to the persons whose names are listed in the schedule. It was not possible to obtain a copy of the original version of the order as this is a confidential cabinet document. We were given assurances that the signed document contained provisions granting a remission and that an error was made at the time the order was published in the Canada Gazette. The matter may be considered closed.


Mr. Rousseau: The Agency informs us that the 2001 Excise Tax Act is scheduled to come into force on July 1, 2003. The tobacco remission order could then be repealed, a move that would solve the problem identified by the committee. Counsel will keep the committee informed of any developments.

The Joint Chairman (Senator Hervieux-Payette): Are there any questions?


The Joint Chairman (Mr. Grewal): Mr. Rob Wright has written that ``the amendments...will occur after the passage of a new excise act.''

Mr. Rousseau: Once the proposed new excise act is implemented, they will be in a position to revoke the order.

The Joint Chairman (Mr. Grewal): It cannot be corrected before the proposed legislation passes. Is that correct? I assume that the new excise act has not passed.

Mr. Rousseau: The understanding that we have with the department is that the act will be implemented and then they will revoke the order. The committee has already accepted that.



Mr. Rousseau: The Agency informs us that rather than await a general regulatory review to carry out the promised amendment, it will begin work on the amendment proposal immediately. The letter from the Agency is dated September 23, 2002. The amendment has not yet been made and counsel for the committee should request from the Agency an update on the progress achieved since September 2002. Counsel should write to the Agency and request a status report.


Mr. Lee: Can I confirm that it will not be the agency itself that makes the regulation involved? It will be the Finance Minister that makes the regulation; correct?

I ask because the CCRA is now an agency of government as opposed to being a ministry. It is getting confusing in some of the correspondence as to who will make the regulation. Could I have clarification?

Mr. Rousseau: The regulation-making power is not with the agency.

Mr. Bernier: I would hazard a guess that it rests with the Governor in Council. That is subject to amendment, and the Department of Finance would indeed be involved in any of these matters, at some administrative level as the proposed amendment makes it way up.

Mr. Lee: I am curious because there seems to be blurring as to the who the DIO is. Mr. Wright has said that he has forwarded the correspondence to an official in the ministry responsible, whereas in another case he takes responsibility for the forthcoming amendments.

Mr. Bernier: Statutory changes to any of the legislation having a financial incidence are the Department of Finance's responsibility. You saw that even with respect to the Customs Act. You would think that it is a National Revenue matter; however, the Customs Act has to do with the raising of custom revenue. For that reason, any change to the Customs Act goes through the Minister of Finance.


The Joint Chairman (Senator Hervieux-Payette): Would it be possible to have a more definitive response by the next meeting?

Mr. Bernier: Yes.


Mr. Lee: In this particular correspondence, dated September 23, 2002, the last full paragraph reads, in part, as follows: ``Canada Customs and Revenue Agency officials will begin work on this proposal immediately.'' In this file, they are working on it. They are developing the language.

Mr. Bernier: It is there. In the previous file with which we were dealing, the reference to Finance came in when we are dealing with legislative amendments.

Mr. Lee: I accept that. We should keep our eye on it in case it starts to slide around to determine the role of Canada Customs and Revenue Agency in the development of delegated legislation.

Mr. Wappel: I do not want to belabour anything, but in view of counsel's earlier points about the record, I just find something interesting. This letter appears to be a direct photocopy of a letter from Mr. Wright, and yet there are no periods in it.

Mr. Bernier: The same happened to these as happened to the report. We had the report reprinted because the periods disappeared.

Mr. Wappel: A photocopy of a letter?

Mr. Bernier: Yes.

Mr. Rousseau: Note that in the letter of August 28, the period is there at the end of sentence. It is really bizarre. None of the periods was in the previous draft report.

Mr. Wappel: If you are preparing a draft report, and something goes wrong, that is fine. However, to simply have a photocopy of a letter from someone and to have the period disappear is bizarre.

Mr. Epp: They are using digital photocopiers. The machine cleans the copy. If there is a speck on the paper, the machine takes it out. You can adjust the sensitivity of the photocopier; clearly, the one in question was not set right.

The Joint Chairman (Mr. Grewal): I am pleased to see that members are so observant.

Mr. Bernier: The commas remain because they are bigger.


The Joint Chairman (Senator Hervieux-Payette): It is quite clear to us that the legislation remains the minister's domain, but the Agency can draft some regulatory proposals.

Mr. Bernier: These proposals may have financial implications. Pursuant to these acts, regulations are made by the Governor in Council on the advice of the Minister of National Revenue. In other instances, the regulations may be made on the advice of the Minister of Finance. If you wish, we can ask the department to spell out clearly the internal rules that allow us to determine whether or not the financial implications are sufficiently weighty for the matter to be handled by the Finance Department, rather than by the other department.

The Joint Chairman (Senator Hervieux-Payette): In any event, even though the regulations may be drafted by the Agency, the department is responsible for getting them adopted.

Mr. Bernier: I could not tell you how the internal process works.

The Joint Chairman (Senator Hervieux-Payette): That is what we would like to know.

Mr. Bernier: We look at which department made the recommendation to the Governor in Council. Generally speaking, this should give us an indication of which department oversaw the regulatory process internally.

The Joint Chairman (Senator Hervieux-Payette): We all want this point clarified for the future. We are curious as to the nature of the Agency's responsibilities.




Mr. Bernier: Madam Chairman, there has been progress on this file. Section 18 of an act to amend the statute law in relation to veterans' benefits has come into force. The purpose of section 18 is to retroactively validate an Order in Council identified in Mr. Murray's letter of December 9, 2002.

As for the other amendments that were promised to the committee, they were to be made as part of a long-awaited consolidation of the veterans' burial regulations and the last post fund regulations into new veterans' burial regulations. As of December 9 last, those new regulations were being examined in accordance with section 3 of the Statutory Instruments Act.


Mr. Bernier: This file goes back to 1988 when the department was informed that the regulations applied to persons other than dealers and manufacturers of special denatured alcohol without proper legislative authority. The department accepted this was the case and promised amendments.

On April 3, 1991, the chairmen informed the Minister of National Revenue that the joint committee was not disposed to wait until 1992 for a correction of these matters and asked the minister to request his department to proceed immediately with the revocation of the ultra vires regulatory provisions. On May 16, 1991, the minister undertook to amend section 2 of the existing regulations to exclude persons other than manufacturers and dealers until such time as the enabling power was amended. Those promised amendments were never made.

In 2000, the enabling power was amended so as to authorize the making of a regulation applying to persons other than manufacturers and dealers; however, this change in the enabling authority was not retroactive so that the current regulation must be re-enacted under the amended authority if it is to be valid. As members can see from the letter from Mr. Wright, it may be years again before this regulation is replaced by a properly authorized regulation.

Notwithstanding the 2000 amendments to the Excise Act, there is no question that the current regulation is ultra vires to the extent that it purports to apply to persons other than manufacturers or dealers. This has been known to the government for 14 years, and the issue is yet to be revolved.

I would think that, given the circumstances, the committee may wish to consider writing again to the minister responsible and request a formal assurance that the problem will be resolved within a fairly short period of time — perhaps one year. The committee may wish to inform the minister that if this commitment cannot be given or respected, the committee will consider other options, including disallowance.

Mr. Wappel: Have the departmental officials ever been asked to appear before the committee on this issue?

Mr. Bernier: No.

Mr. Wappel: Why do we not bring them in and remind them of the length of time that has passed? We could ask them why they continue to delay revoking the ultra vires regulations. Let us get them on the record admitting that the regulations are ultra vires.

Mr. Bernier: That has been on the record since 1988.

Mr. Wappel: Let us get them to admit it now, because these people were not there at the time.

I suggest that we call the officials and get them to admit here that these regulations are ultra vires. We should have them indicate that they will give us a specific timeline, or we will consider disallowance.

They have gotten away with this since 1988. They should be told to get here early one day and meet with the committee.

Mr. Lee: I was thinking about being a little crisper. Is there any argument, counsel that, because the legislation has been amended to allow for application of regulations in the way in which this one is structured even though the legislation does not retroactively validate the ultra vires elements of the existing regulation, the department would see itself as getting rid of a regulation that would be valid now, if it were enacted now? They could be revoking a regulation and immediately re-enacting it. Is that not what they would do?

Mr. Bernier: That is what must be done. The new regulation in the same terms would be valid. There is no question.

As a matter of law, the current regulation is illegal and being illegally applied to persons other than manufacturers and dealers. At the time it was made, the enabling authority was not present.

Mr. Lee: It is a no-brainer. All they have to do is revoke and re-enact. Mr. Wappel is being too kind. This is a 14- year-old file. All that is necessary is a photocopier that copies periods, and we run it through the system again. All the officials need do is say that they are working on it and that it will be ready within 60 days.

Mr. Wappel wanted to run this thing out for as much as a year. We should have a drop-dead date on this. It is a no- brainer for us, and it is a no-brainer for them. I do not know what the drop-dead date is, but if it is not repealed by June, we should go to work in September.

Mr. Wappel: I wanted to get the officials here just so they would admit that it is a no-brainer and that, notwithstanding that it is a no-brainer, they have not done anything about it. We could at that time insist that they use their brains by June, or whatever date, to get this thing done. We should keep them sharp.

CCRA is getting worse on the ground. It is quite separated from government now. The minister is responsible to the House, but the officials just run their own little fortress. Once in a while, it would not hurt to have officials in front of a parliamentary committee, particularly where it is a no-brainer from our point of view. We cannot loss the argument. It is like shooting fish in a barrel.


The Joint Chairman (Senator Hervieux-Payette): From an efficiency standpoint, I believe they plan to pass the amendment even before they appear, but convening them to a meeting cannot hurt. I agree with you that for the sake of the committee's reputation, maybe we should order them to appear before us to find out if there is some valid reason why they have taken so long to get this done. What do you think?


The Joint Chairman (Mr. Grewal): This is a no-brainer, but they cannot use a brain if they do not have one. Let us prepare a disallowance report. We have allowed it to go on for 14 years. If we have the minister or a departmental official, where do we go from there?

Mr. Lee: Are there any other issues of significance outstanding with CCRA on which we might want to bring them forward? I can see that Mr. Wright has a bit of attitude in some of the correspondence. Some of the issues are fairly tedious; however, it is such a no-brainer that, respectfully, it is not worth a lot of committee time arguing. If there are no other issues with CCRA, I prefer to give them a drop-dead date.

Mr. Bernier: The minister could be sent a letter. She could decide if she wants to appear or send someone. For the reasons Mr. Lee has just mentioned, I would think that, for such a simple matter, a letter to the minister coupled with one or two interventions by members of Parliament might be enough to get this thing rolling without taking more of the committee's time. We have already had it coming back for 14 years.


The Joint Chairman (Senator Hervieux-Payette): You are proposing that a letter be sent to the minister asking her to explain why this process has taken so long. If they amend the regulations, we will be extremely pleased. Are we requesting any further action?

Mr. Bernier: The committee is expecting an amendment. I think June 6 would be a reasonable deadline. If the amendment is not made by then, the committee will be notified.



(For text of documents, see Appendix D, p. 2D:1 )

Mr. Bernier: This file gives rise to a number of fairly complex technical issues with regard to the legal status of various instruments made under the authority of the Farm Products Marketing Agency Act. This discussion arose out of the assertion by the relevant department that the order, C.R.C. chapter 231, the Prince Edward Island Marketing Levies Order had been revoked. The department was then asked to provide evidence of revocation.

This gave rise to the assertion that the revocation was implied arising from the enactment of the new Prince Edward Island Milk Order in 1983 by SOR/83-733 and the making of a new levies order under the 1983 milk order.

That new order, however, was never registered under the Statutory Instruments Act, despite the fact that the enabling milk order provided for the imposition of levies by order, meaning that any levies order is subject to all of the requirements of the Statutory Instruments Act.

The department, at that time, was asked to explain how a new levies order had been made and not registered. The department returned with the astounding proposition that the Governor in Council had acted illegally when he authorized the local marketing board to impose levies by order.

That prompted another round of letters, and the department has now acknowledged, albeit reluctantly, that the Governor in Council is empowered to impose on local marketing boards a requirement that they act by order when exercising federal powers under the Farm Products Marketing Agencies Act.

The other equally astounding explanation that was given was that the local marketing board thought that the federal regulatory process is ``overly cumbersome and time consuming.'' This particular assertion was dealt with in the second paragraph of my letter of September 8, 1999.

The levies order that was made in 1985 and never registered was titled the ``Interprovincial Levies Order.'' That order, from the point of view of this jurisdiction, never came into force, inasmuch as the requirements of the Statutory Instruments Act were not followed. The registration condition under that act is a condition of the coming into force of that order. The provincial marketing board has formally revoked this order, as well. As for the original levies order, C.R.C. chapter 231, as I mentioned earlier, the department is taking the position that it was repealed by implication as a result of the adoption of the 1983 Prince Edward Island Milk Order. It is the position of the department that, because the 1983 enabling order designated a newly named local marketing board to exercise the power to impose levies, this change in the identity of the delegate was sufficient to preclude the application of section 44(g) of the Interpretation Act.

I do not agree with that argument; however, I believe the committee could accept the argument but it should take good note of it. I suspect that that may not be the position that the Government of Canada may wish to take in another case, or in some other file, at which time, of course, the committee will be free to invoke this particular precedent, or the taking of this position, in this case. Subject to this last comment, the file could either be closed or a further letter could be sent with a view to ascertaining whether all the consequences of the position taken here have been fully aired and considered, particularly by the Department of Justice.

Mr. Lee: We are stuck with this dilemma: Do we close the file and get rid of the flotsam and jetsam after years of provincial regulatory action? Would the Department of Justice appreciate us bringing to their attention the possibility that they are taking a position that may come back to haunt them, or would they regard that as overreaching and impertinent on our part to suggest that to them? I am not too sure of the answers.

Mr. Bernier: The department has been concerned lately, with the centralization of legal opinions, that diverse and opposing opinions are not being issued from various areas of the government. From that perspective, they may appreciate the opportunity to adopt, if you will, a central, final view on the scope of section 44(g).

Mr. Lee: Is the department's current position arguably consistent with our own position on this?

Mr. Bernier: It can be taken. This is a curious case because, quite frankly, it is a stricter reading of the statute than even I would take, and I am sort of known for taking a rather strict view of statutes and of the authority that they confer. I certainly would not go as far as they have gone on this. I think they unduly limit the application of section 44(g) in doing so. I also suspect that it may cause, if that were to be the opinion, some unforeseen problems in the future. You will frequently have a change in an entity in a statute.

For example, the Canadian Transportation Agency, if that is its current name, must have gone through, just in my time in Ottawa, four or five incarnations under various names. It would periodically introduce a new statute and create a new board. Does all the legislation made by that board automatically disappear each time there is the new delegate identified by Parliament? Do you take a broader view of section 44(g), which provides that where a statute is replaced by a new statute, any regulations made under the existing statute continue in force under the new statute to the extent that they are not inconsistent in substance? Here, the argument is that the mere change in delegate creates a inconsistency to the point that the levies order made by the previous board disappears. I am not convinced that that is the position I would have taken. It is to their advantage, in this case, because they think that by saying that they get rid of me. However, I think they may find that in other cases —

Mr. Lee: My suggestion is that we put our view on paper and close our file. In that way, everyone wins and they have the benefit of our advice. I agree with counsel on this. Let us put that on paper and then close our own file because we do not wish to fight them any longer on this particular issue. Is that agreed?

Hon. Members: Agreed.



Mr. Rousseau: With respect to this file, the department is proposing to wait until additional amendments are needed before proceeding with the promised amendments which, let me emphasize, would address some drafting problems. The committee may deem this suggestion unsatisfactory because no indication is given as to the date on which the regulations could eventually be amended. The question is whether the committee would like a specific commitment from the department as to the time frame for carrying out the promised amendments.

The Joint Chairman (Senator Hervieux-Payette): Any comments?


Mr. Lee: If we do not put some finality on this, and they do not appear to want to do that, I think we better seek a time commitment from them. We are unable to close our file if we do not put a time limit on this file; it will be 14 years old before we know it.

The Joint Chairman (Senator Hervieux-Payette): How long does your clock run on this?

Mr. Lee: Let us seek a time commitment from them. If they come back to zero, then we will put our own time limit on it.

The Joint Chairman (Senator Hervieux-Payette): That is fine.


(For text of documents, see Appendix E, p. 2E:1 )

Mr. Bernier: Replies on points 1 and 21 can be accepted as satisfactory. Amendments have been promised with respect to the issues dealt with in points 8 and 25. Progress of those will be monitored as usual.


(For text of documents, see Appendix F, p. 2F:1 )

Mr. Bernier: As indicated in the letter, when this file was first before the committee, it was thought that the problem in section 6.1 had to do with the failure of the provision to require the minister to acknowledge receipt of an application that was filed electronically. However, following further consideration of the provision, counsel was led to the view that section 6.1 is simply ultra vires the enabling act, for the reasons that Mr. Bernhardt explained in his letter of September 30, 2002. The department has accepted this position and informs the committee that section 6.1 will be revoked.

Mr. Lee: I read Mr. Wright's letter dated October 29, in which he said that they agree that there is an ultra vires provision. He then said that they would take the necessary steps to recommend that the GIC repeal the section. That does not have finality, in my opinion.

Mr. Wright will write a letter that states that they recommend that this be revoked, and he will close his file. Our file will remain open. We will write Mr. Wright one year from now to ask what has happened to this ultra vires section. He will likely say that he has given his advice to the government and thank you.

I am reading between the lines of this; I do not find that it has a crisp enough disposition. We do not have an undertaking on anyone's part to revoke or deal with it. We only have a commitment from the commissioner of CCRA to take the necessary steps to recommend that the GIC repeal.

Mr. Bernier: Strictly speaking, Mr. Wright, as commissioner, cannot give an undertaking on behalf of the minister or he cannot anticipate the action of the Privy Council. He cannot say that the government will do that; the Prime Minister could perhaps say that. Within the limits of his authority, I think Mr. Wright has given as full a commitment as he is able to. He will advise his minister that this should be repealed. It will then be in the hands of the minister, I would think.

Mr. Lee: We are, in a sense, back to the issue identified earlier in the meeting, such that we are dealing with an agency that is not as close to the minister as we would like it to be. What would an ordinary DIO do in a situation such as this? Would he or she wait for the minister to make a decision?

Mr. Bernier: In practical terms, any DIO, including Mr. Wright, may indicate that they would revoke that. When they write that, in a way they are going beyond what they are really authorized to do, unless they have an Order in Council that promises they will do that. The DIO cannot speak for the special committee of council or for the ministers. The DIO, as a civil servant, is only able to recommend to ministers.

Mr. Lee: I appreciate that Mr. Wright is correct in articulating this position, but I find, in our opinion, that there is not much finality in it.

Mr. Bernier: In that case, I would suggest that the chair of the committee write to the minister to ask her to confirm that she intends to accept the advice offered by the Commissioner of Canada Customs and Revenue Agency.

Mr. Lee: I do not want to come back two years from now and re-invent the wheel, so to speak. Thank you, I agree with counsel's suggestion.

Mr. Bernier: Madam Chairman, I will deal with the files under the heading, ``Action Taken as a Group,'' which constitutes some 19 amendments requested by the Joint Committee, including the revocation of one ultra vires provision.


(For text of documents, see Appendix G, p. 2G:1 )


(For text of documents, see Appendix H, p. 2H:1 )

Mr. Bernier: In addition, I would note that, in the case of SI/2002-149, an order I referred to earlier, we have a statute retroactively validating the illegal Order in Council.


(For text of documents, see Appendix I, p. 2I:1)

Mr. Bernier: In respect of SOR/94-758, another legislative amendment was made to correct a significant flaw in the enactment process for regulations made under the Yukon Placer Mining Act. We have some 55 instruments that have been submitted without comment.

Mr. Lee: Very good.



(For text of documents, see Appendix J, p. 2J:1 )


(For text of documents, see Appendix K, p. 2K:1 )


(For text of documents, see Appendix L, p. 2L:1)


(For text of documents, see Appendix M, p. 2M:1)


(For text of documents, see Appendix N, p. 2N:1)

The Joint Chairman (Senator Hervieux-Payette): Action has been taken on the next seven items on the agenda. That concludes our business.

The committee is adjourned.

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