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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 14 - Evidence, November 3, 2005

OTTAWA, Thursday, November 3, 2005

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.

Senator John G. Bryden and Mr. Rob Anders (Joint Chairmen) in the chair.


The Joint Chairman (Senator Bryden): We have a quorum. Did members find an improvement in the distribution of materials for this week's meeting?

Mr. Macklin: I did not receive any.


Mr. Lemay: Further to the comments made, the documentation was in fact sent to my office on Monday morning. Thank you very much. I was able to familiarize myself with this material. I would especially like to thank Mr. Bernier who forwarded briefing notes on parliamentary control over the regulatory process to new members. These notes are highly informative and should be read, or re-read, by many of us, yours truly included. In future, I hope that the new members will take the opportunity to familiarize themselves with this material before our first meeting.


The Joint Chairman (Senator Bryden): Are there other comments?

Mr. Macklin: I have had excellent results in the past receiving material; however, this week neither Mr. Myers nor I received anything.

The Joint Chairman (Senator Bryden): I would ask the Joint Clerk from the House of Commons to comment.

Jean-François Lafleur, Joint Clerk of the Committee: Good morning, Mr. Macklin. I was in touch with your assistant early this morning, at which time I sent her an electronic copy of the agenda but not the attached letters. I told her that we would have copies at the meeting this morning. We verified that your office address was correct. The materials are likely in the mail, but I will look into the matter to ensure that this does not happen again.

Mr. Macklin: With all respect, receipt of material has been fine until now. This is my first complaint.

The Joint Clerk (Mr. Lafleur): We are sorry.

François Michaud, Joint Clerk of the Committee: I am responsible for the distribution of the agenda, which is prepared by counsel. Perhaps there is a curse hanging over me. Two weeks ago, I asked my assistant to call the offices of each House of Commons member of this committee to double-check their addresses, and our information is correct.

The usual routine is that we receive the copies on Friday around 2 p.m. or 3 p.m. At that time, my assistant puts the material in envelopes, which are sent out, when possible, that afternoon or Monday morning, depending on the schedule of the mail service.

I do not know why two members did not receive the agenda this week. I apologize for this because it is my responsibility to ensure that members receive the material in time for the meeting. I will make the necessary inquiries and report back in two weeks. I truly do not know what happened, especially given that we double-checked all the addresses.

The Joint Chairman (Senator Bryden): I would ask members whether they think the messenger service should be used to deliver the agenda, rather than the postal service, given that the committee meets only every second week. When I need to deliver material quickly to another office, I use the messenger service. Within one hour of handing it to a messenger, the material is in the office of the recipient. I do not know whether the service is paid out of my budget, however.

Are there comments?

François-R. Bernier, General Counsel to the Committee: Senator, this comes as a surprise this morning. Certainly, in years past I understood that the material from the committee was delivered by messenger. It is only now that I hear it is being delivered by the post office. I am not sure I understand the reason for that, because we are within the parliamentary precinct.

Senator Moore: I am starting my tenth year on this committee and I have never had a problem with receiving materials in time.

Mr. Lee: I have never had a problem that I can recall. However, from time to time problems can occur. What you refer to as the ``post office,'' senator, may be the internal postal service of the House of Commons and not Canada Post. There is another courier service that you can call to arrange for delivery. The service happens within a short time. The item is noted as an operational cost under office expenses.

The delivery of these agendas is not time sensitive if they are sent out two to four days in advance. I do not understand why we would consider using the more costly messenger service, but it is up to the joint chairs and the joint clerks. If there is a problem, let us fix it.

The Joint Chairman (Senator Bryden): Based on the comments, I would suggest that we give the system a chance to work. We seem to have corrected it for those who were missed the last time; perhaps it will be corrected for the other members. Let us give it another week. Are members agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Bryden): I have one additional business matter. During the week of the committee's next scheduled meeting, the Senate is not sitting. Ordinarily, when the Senate is in recess, committees do not meet. The Senate is not sitting that week because all of its work is in committee. Therefore, with the need to move committee work forward, committees have permission to sit even though the Senate is not sitting.

As a result of that, Senator Moore, the committee will have its next meeting on November 17, as per the schedule. That does not put additional pressure on other senators because, as long as one senator is in attendance, we can proceed. The House of Commons will have a normal sitting week, so there is no question for those members.

The Joint Chairman (Mr. Anders): Before proceeding with the agenda, allow me to add that my receipt of documents has always been fairly timely. If we could maintain that for all members of the committee, it could save 20 minutes at each meeting. Provided it can be done in a cost-effective manner, I agree with Mr. Lee that using a messenger service would be the best option.


(For text of document, see Appendix A, p. 14A:1)

Mr. Bernier: Section 74(1) of the Air Transportation Regulations prohibited air carriers engaged in international charter flights from carrying persons not in possession of a passport or other valid travel document. Irrespective of the possible policy merits of that provision, it was the view of the committee that it served a purpose that is collateral to the purposes of the National Transportation Act, 1987, and was, therefore, illegal.

The issue was raised by the committee in early 1989. The Canadian Transportation Agency, then the National Transportation Agency, agreed to repeal the section. However, faced with a lack of real significant progress in meeting that commitment, the chair of the committee wrote to the Minister of Transport in May, 2005, to inform him that, unless the provision were repealed within 30 days, the committee would give consideration to issuing a disallowance notice pursuant to section 19.1(1) of the Statutory Instruments Act.

Members have before them the reply from the minister dated June 29, 2005. By letter dated July 26, 2005, which follows the minister's letter, the CTA provided the Minister of Transport with a draft amendment to the regulations that would repeal the illegal section and requested an exemption from the obligation to pre-publish in order to accelerate the process. That was three months ago. The amendment has not been gazetted as of the last published issue of the Canada Gazette, Part II. We would need instructions on how to proceed.

Does the committee wish to give it a little more time or will the chair write to the minister to remind him that he has a draft order pending?

Mr. Lee: This file first came before the committee in 1989, when Mr. Wappel was the House of Commons joint chair of the committee. The life of this file has spanned his entire parliamentary career. All of the amenities attached to this file — speed, alacrity, due dispatch, expeditiousness — we could not disallow then but now we can do so. Someone need only add a paper clip to the edge of this file and it would fall off the desk into the Canada Gazette. Mr. Wappel might want to speak to this. I have no more patience with this item. We should ask counsel to check right away and, if it is not in motion, we should have counsel prepare a notice. Certainly, I would vote in favour of sending with due dispatch, depending on what Mr. Wappel has to say.

Mr. Wappel: I did not realize that it has been three months since that correspondence. Given that fact, I agree with Mr. Lee.

The Joint Chairman (Senator Bryden): We will have counsel follow up to determine whether it is in motion, and if it is, we will monitor it. We have not sent letters on this since May and June. Is that correct?

Mr. Bernier: No, Mr. Chairman, we know that this was in the minister's office in July, 2005. If there is to be a follow-up as to what the minister has done or is doing with it, I would prefer it to come from the chair rather than from counsel.

The Joint Chairman (Senator Bryden): I would like to give the minister's office an opportunity to respond to the question. If counsel is reluctant, I would ask the clerk to make that call. Perhaps I am too courteous this morning, but we could simply let the minister's office know that we are in the process of preparing a disallowance.

Senator Moore: How do you best impress upon the minister and his officials that we are serious about this? I do not think that would best be done by the clerk or legal counsel. I would suggest that the chair write a letter requesting information on the status by November 17, failing which the committee will disallow it. How can we get the attention of officials? There is no need for this matter to be sitting after three months. Why has it not gone forward?

The Joint Chairman (Senator Bryden): I have no problem with signing a letter, so we will proceed in that way.

Senator Moore: I agree.

The Joint Chairman (Senator Bryden): How long does it take to prepare a disallowance?

Mr. Bernier: There is no time required for a notice of disallowance, apart from the time to draft one paragraph. Mr. Chairman, in fairness to the Minister of Transport, the chair wrote the letter on May 6 and, clearly by the end of June, the minister had instructed the agency that he wanted the amendment finalized and received it the following month.

Senator Moore: What happened after that?

Mr. Wappel: Mr. Chairman, not to prolong this unduly, but I note that Marian L. Robson continually offers the telephone number of the agency's senior counsel. I have to presume that the agency's senior counsel would know where things stand in this matter, since she has been referenced at least twice. I would see no difficulty in our counsel contacting the agency's senior counsel directly by telephone today to ask what is going on. That would save everyone a letter, and our counsel could immediately advise the agency senior counsel that, if this thing does not move, it will move two weeks from today.

The Joint Chairman (Senator Bryden): As you might expect, that would be my preferred way. It has been since 1989, so another two weeks before we drop the guillotine would be acceptable to me, and probably you, Mr. Anders.

Mr. Tweed: I agree with the other members around the table — 1989 is a long time. I do not think that a phone call is the answer; I think a letter should be sent. It confirms our commitment to the issue; and if they want to address it, you give them a strict guideline.

To me, a phone call can be easily ignored.

The Joint Chairman (Senator Bryden): I do not know if we have any discretion in these matters. If this were my own business, at this stage I would at least make a phone call to say that, unless action is taken, such and such would happen two weeks from today.

Mr. Tweed: I would recommend we send a letter.

Senator Moore: I will send you a letter to that effect.

The Joint Chairman (Mr. Anders): If I can summarize, a phone call today and, if we get satisfaction with that, no further action; if not, a letter that shows that within two weeks we will go for disallowance. Is everybody agreed to that?

Hon. Members: Agreed.

The Joint Chairman (Mr. Anders): That was energizing.


(For text of document, see Appendix B, p. 14B:1)

Mr. Bernier: Mr. Chairman, in his reply, the minister agrees that the situation described in the chairman's letter of May 24, 2005, is unacceptable. The happy result of that letter is that officials of the Department of Natural Resources have finally contacted the Department of Justice to find out why they have not received the draft amendments that were supposedly completed well over two years ago.

The minister states that he is giving instructions that the amendments be enacted ``on a priority basis.''

If members turn to the letter dated October 12, 2005, from Associate Deputy Minister Graham Flack, whom members will recall was a guest of this committee in relation to another file, they will see that he expects the amendments to be approved for prepublication in late October or early November. While this represents a little bit of slippage in terms of the schedule set out in the minister's letter, where prepublication was to take place in the summer of 2005, it is still very definitely progress.

If members agree, I would propose that counsel monitor Part I of the Canada Gazette. If the amendments are not prepublished by the end of this month, counsel will write to the department to inquire why not, and the causes for the delay.

Hon. Members: Agreed.


(For text of document, see Appendix C, p. 14C:1)

Rob Billingsley, Counsel to the Committee: Mr. Chairman, at the direction of the committee, counsel pursued two points with the department. In our view, the response is satisfactory with respect to point 11 in counsel's letter of May 18, 2000. With regard to point 14, however, it is our view that the department has not established that sections 13 and 14 of the regulations are authorized under the act.

These provisions require dealers who import energy-using products to provide the minister with information relating to the products, as well as the dealer's address and the purposes for which the product is being imported. The act itself imposes a reporting requirement on dealers in section 5(1). In essence, the department is seeking to impose additional reporting obligations beyond what is provided for in the act.

In its latest letter, the department continues to attempt to justify the regulatory provisions on the basis of a general authority to make regulations to carry out the purposes and provisions of the act.

As Mr. Bernhardt points out in his letter, this authority will not support the creation of substantive obligations unless one or more provisions of the enabling statute indicate a clear intent that those obligations be imposed.

None of the three sections of the act cited by the department expresses such an intent. Neither is there anything to suggest that the operation of these sections would be frustrated without the information the department seeks to collect. This is the test for necessary implication and it is not met here.

We recommend that a further letter be sent to the department advising that the committee has not been persuaded that sections 13 and 14 are authorized by the act.

The Joint Chairman (Mr. Anders): Is there any discussion on that?

Mr. Lee: I wanted to note that these regulations appear to have been around for some 10 or 11 years. The information requested, given the objectives of the department and the statute, do not seem to be way out of line. However, I do accept counsel's position that the statute, as written, does not have sufficient enabling authority to allow regulations of this type.

Although I am in favour of energy efficiency and departmental initiatives to achieve that, I have to go along with counsel and accept that they have either got to get a new statute or a new regulation or a better way to do business.

The Joint Chairman (Senator Bryden): Agreed?

Hon. Members: Agreed.


(For text of document, see Appendix D, p. 14D:1)

Mr. Billingsley: Mr. Chairman, at the outset I would note that counsel has responded to a query raised by a member of the committee and has indicated that the department is satisfied with the accuracy of the French title of the regulation. This was an item for discussion the previous time. This was before the committee.

The committee also asked to be advised of the specific statutory authority for the requirement that a permit holder notify the Department of Transport of any change of permanent address within seven days of the change. The department claims that the authority is found in section 4.9(s) of the Aeronautics Act. That section provides authority for regulations respecting the keeping and preservation of certain records or documents.

I note that a requirement to keep and preserve records is distinct from a requirement to submit any such records to the department. Further, it would not appear that an address change falls within any of the categories of records and documents that are specified in the section.

It is our view that another letter should go to the department to advise them that the enabling sections cited would not appear to provide the necessary authority for the reporting requirement, and to ask that the requirement be revoked.

The Joint Chairman (Mr. Anders): Any discussion?

Mr. Lee: Mr. Billingsley, does the department have any authority, in your view, to collect the address of the permit applicant or permit holder in the first place?

Mr. Billingsley: It is likely that, as a condition of the permit, when an address change occurs, the permit holder or licence holder would be required to advise them. That would be distinct from a regulatory requirement to provide that information.

Mr. Lee: My question has to do with the initial request. In respect of a person applying for a permit, do we require a specific federal regulation to allow the government to demand the address of the applicant? In this case, the department has a name and address on record. When a person applies for a permit, a permit is issued and the department has the name and address. Under what authority did the department ask for the address upon application for the permit? Members can see where I am going with this. If the department had non-specific authority to obtain the address in the first place, it is quite arguable that it has non-specific authority to ensure that an accurate record is maintained. In that way, the department places the onus on the permit holder. Under what authority does the department require an applicant to submit his or her address when the application is made?

Mr. Billingsley: I do not know the answer to that. I would have to read the statute and relevant regulations. However, as a requirement in the regulation, it is enforceable such that, if someone were to not comply with the seven- day requirement, that individual could be subject to an offence under the act. Hence, there are real consequences.

The Joint Chairman (Mr. Anders): Does the answer to that question affect your sense of the course of action that you would like to see taken with the file?

Mr. Lee: I was trying to get to the bottom of government's ability to obtain and keep an address record. If the government has an address record, it is not unreasonable under that same authority to insist that the address record be kept up to date.

Our quarrel is that a specific regulation has been issued that explicitly imposes a seven-day time limit. We are trying to find the legal basis for that regulation. I am asking counsel whether the legal basis to require an accurate address record to be kept is contained in the original authority that allowed the government to seek the address record in the first place.

Mr. Wappel: With apologies, I am a little lost, although this seems fairly simple. There were two points. One was linguistic, which I thought was answered; the second, counsel asked which of the 23 lettered paragraphs of section 4.9 provided the authority for section 400.07. The answer was clear — paragraph 4.9(s). Are you saying that paragraph (s) is not the authority? Obviously, the department believes that it is the authority. I am a little surprised that the answer was not fleshed out. What does paragraph (s) say?

Mr. Bernier: If I may, the short answer, as Mr. Billingsley indicated, is that paragraph (s) is the authority to make regulation prescribing the keeping of records. Here, as he mentioned, we are not talking about the keeping of records and which information a licensee must keep; rather, we are talking about information a licensee is under a legal obligation to provide to the government. We have always made a distinction between record-keeping requirements and information-giving requirements.

Mr. Wappel: Mr. Bernier, none of that information is in these two pieces of correspondence so I did not know what to make of this. It would have been helpful if you had placed an addendum to this, a copy of section 4.9(s), so that we could see that it was a general catch-all, as you have pointed out. I accept that we could wait to hear what counsel has to say, but, sometimes, I like to try to come to my own conclusions in advance.

Mr. Bernier: The validity of the point is noted, Mr. Wappel.

Mr. Lee, if I may, Mr. Billingsley is correct to give you the precise answer that we have to go back to the statute. My guess is that, as with most statutes, there is authority to make regulations governing the form and manner of making applications for licences or governing the making of applications — some such authority that would be there. It is under that authority that, at the time of application, certain information must be provided by the applicant.

Second, is there a way for the government to obtain further information — for example, a change of address or other information in the application that was previously provided? Mr. Billingsley pointed out that, yes, there is authority. You can make it a condition of that licence but this is not being done in this case. This is done directly as a regulatory requirement that all licensees must provide this information.

Counsel would see no problem if one of the conditions of the licences granted was to be the provision of new information should the licensee change or move. That would be a condition of licence, which is not the same as a regulation. If you breach a regulation, you are open to criminal or penal sanctions provided for such a breach of the law. If you breach a condition of a licence, the legal consequences would be quite different.

Government can achieve its purpose but counsel is saying that the way they have chosen to do it is not provided for in the act. Nowhere in the act is authority given to the government to make regulations requiring licensees to provide information to the government.

Mr. Lee: Thank you, counsel. I agree with Mr. Billingsley's analysis that paragraph (s) does not provide authority. We should advise the department that we do not agree that section 4.9(s) provides the enabling authority and that they are required to seek other justification for the regulation, if they have it. I would suggest that we attach a copy of the transcript of counsel's remarks, which would be quite helpful. Understanding this might assist the department.

The Joint Chairman (Mr. Anders): I sense that members agree with the original course of action. We will write another letter indicating that it was not satisfactory, and we will include transcripts that focus on section 4.9(s). Are members agreed?

Hon. Members: Agreed.


(For text of document, see Appendix E, p. 14E:1)

Mr. Bernier: Mr. Chairman, as early as August 1985, the joint committee questioned the legality of the record- keeping requirements found in section 26 of the Pest Control Products Regulations. In March 1986, Agriculture Canada agreed that the act would be amended to provide the required authority. After many delays, that was done in 2002, when a new Pest Control Products Act was adopted. That act, however, has yet to come into force.

The committee had requested an assurance that section 26 would be re-enacted under the new statute to put its validity beyond question. The department, by that time, Health Canada, replied that, instead of re-enacting section 26, a new regulation would be developed in respect of information requirements under the new Pest Control Products Act once it came into force.

Those Pest Control Product Sales Information Reporting Regulations were drafted and published for comment in March 2004. The new act has not been proclaimed in force and so those draft regulations have not been enacted.

In February 2005, counsel conveyed the committee's concern that the illegal record-keeping requirements in section 26 continue to be relied upon. The department replied that the Pest Control Product Sales Information Reporting Regulations would be submitted for Part II gazetting by midsummer 2005. That did not happen. The October 7, 2005 letter before the committee this morning states that the Pest Management Regulatory Agency will not proceed with the regulations until it has finished a revision of the pest control products regulations prior to the coming into force of the 2002 statute. The department states that the agency will review section 26 in the context of that revision of the Pest Control Product Sales Information Reporting Regulations. Finally, it is anticipated that the revised regulations will be prepublished later this fall.

Now, and there is the question mark before I am asked, the committee may or may not consider this satisfactory progress. There is one indisputable fact in all of this, that is, that a record-keeping requirement considered by the committee to be without a proper legal foundation has now been in place for the last 20 years. An option the committee can consider is whether it will exercise further patience and try to reach the quarter of a century mark. Whenever revisions of this type are mentioned, I am always leery. They tend to drag on far beyond what departments have optimistically projected.

Does the committee want to go to something a little more muscled by way of a response, such as a notice of disallowance?

Senator Moore: I am for that.

Mr. Wappel: Before I get into my substantive comments, does anyone know why the act has not been proclaimed?

Mr. Bernier: I would hazard a guess that it is because the department is still dealing with the regulations. They want to have the revised regulations all tidied up before they bring the new act into force.

Mr. Wappel: I heard Senator Moore — and I know that he gets frustrated on occasion with the length of time of these things take. I join him in that. One of the ways we might push the department along is to do a disallowance report. We are talking 20 years here. We got all hot under the collar here for the first one, which was 17 and a half years. This is 20 years, so I think we should really get hot under the collar.

What was your phrase, Mr. Lee — check, lock, load, fire?

Mr. Lee: I think it was check, aim, load, fire.

Mr. Wappel: That would be my inclination, chairs.

The Joint Chairman (Mr. Anders): I certainly do not have a problem with that. Are there any other comments?

The Joint Chairman (Senator Bryden): I do not have a problem with doing that. The last one of these we did was related to the Fisheries Department. It went in and went through all of the procedure; then, in the House of Commons, it was referred back to this committee. If we do this, we can cause them to have a debate at one o'clock in the afternoon instead of the usual time, but that is open to be done — to send it back to us.

However, I have a concern about always reaching for the nuclear bomb at the first draw, because familiarity breeds contempt.

Senator Moore: First draw? It has been 20 years, Mr. Chair. That is a huge stretch.

The Joint Chairman (Senator Bryden): It is 20 years, but we are in a position that I understand is as close as we have ever been to having action.

I have no problem with doing what you suggest. However, if we constantly threaten disallowance if we do not hear back in 30 days, it becomes an ordinary remedy. Everyone knows how to handle it when it hits the House of Commons. You have the debate and it comes back. It is an aggravation to have the debate, so maybe we should be aggravating it.

I have a note here. I am reminded that it would be notice of disallowance that would be given. We do not need to proceed with it. We did proceed with the Fisheries one.


Ms. Guay: My question is for Mr. Bernier. The letter I have here says that they want to table something in the fall.

We can use that as a bargaining chip. We could tell them that we gave them a certain amount of time, that they promised to table something in the fall and that we have yet to receive anything. We could take a very firm stand before moving ahead with procedural matters. You are right in saying that this matter came before Parliament and that it is now up to the committee to act. When you receive a response, then we will take action.


Mr. Lee: I do not want to repeat this, but we really ought to check before we load. After all of these years, we are on the cusp of a fix, with a new statute, new regulations. All of the tough stuff has been done. I think we should try to determine why it is not going to proceed or it is stuck, and then decide whether we have to disallow.

If the reason it is not moving ahead is advertent disregard of the committee, members might want to proceed to a disallowance. If it is sitting in an in-out tray being worked on and very close to completion, in line with the fall 2005 time frame, then let us just encourage them to complete the task.

I think we should make an attempt to find out exactly where it is at, in other words, if it is really moving or if it is stuck. If it is stuck, I am in favour of a notice that may unstick it. There is no reason why this file and the update could not be brought back to us in the next meeting or the second next meeting.

The Joint Chairman (Mr. Anders): Given that, should there be a letter indicating that we may proceed with disallowance if they do not come through with some satisfactory stuff by the deadline stipulated in the fall? The other question is whether we want to have a phone call included with that, but maybe the letter suffices.

Mr. Kamp: I am curious why we think it is stuck. The letter says later in the fall of 2005. We are not late in the fall yet, by any normal definition. Is there a reason to think it is not forthcoming?

Mr. Bernier: What there has been, Mr. Kamp, is initially — if we go back to 1986 — we were simply going to have an amendment to the Pest Control Product Sales Information Reporting Regulations that would provide the required authority. That did not quite happen in that way because a whole new statute was adopted. Then the undertaking became, we are developing these product sales information reporting regulations and as soon as we have got those in place, we can remove 26, or amend it. Now we have abandoned that process, and we are saying, we are putting off that product sales information until we have revised these other regulations.

That is the question mark on the unsatisfactory or satisfactory. Yes, things appear to be moving; but we are constantly changing targets in terms of the commitments given to the committee.

This is a new commitment now, but earlier ones were not exactly followed up on.

The Joint Chairman (Mr. Anders): I sense we are still interested in writing a letter indicating we are thinking about pursuing disallowance. Do we want to stipulate a date of the end of November for results?

Mr. Tweed: If, after 15 attempts to obtain a response we think that they are not holding this committee in disdain, then we are misleading ourselves. Obviously, they either do not want to respond or do not have an action for response. Deadlines have to be imposed and respected.

The Joint Chairman (Senator Bryden): We are in the middle of their last deadline stated — fall 2005. Given the department's track record, it is legitimate for us to write a letter reminding that fall has arrived and that the committee will proceed with notice of disallowance if nothing satisfactory is forthcoming before the end of the season.

Mr. Tweed: This file will soon be older than some members of Parliament. That should indicate to the committee either a reluctance or an unwillingness by the department to respond.

The Joint Chairman (Mr. Anders): One would generally take that to be an indication. Are members agreed to the end of November as a deadline?

Hon. Members: Agreed.

Mr. Wappel: Mr. Chairman, before you proceed to the next item, Senator Bryden's comments jogged my memory in respect of the fishing regulations. I would make the following comment and ask the committee to act on this.

Bill C-52 was the government's response to the report of the committee. Initially, it was anticipated that Bill C-52 would pass the House of Commons relatively quickly. Subsequent events have resulted in that not happening. My current information is that the Conservative Party and the Bloc Québécois are still in opposition to the bill. I do not see any reasonable prospect of it passing before the next election. Therefore, I would ask that at the steering committee the chairs consider bringing this back to committee for further consideration as the House of Commons asked us to do. The committee can decide whether to pursue it with a further notice of disallowance or consider other options, rather than ignore the matter. This should be done, given that we did go to the wall on it by arguing in its favour. The only reason that it was referred back was the understanding that the bill would pass. That understanding has not come to fruition, and I am not sure the will of Parliament is such that it would be referred back again if we made a further disallowance report.

I ask the chairs to consider discussing this at steering committee and perhaps bringing it up at the next meeting or the one thereafter.

The Joint Chairman (Senator Bryden): As far as the chairs are concerned, it is time for the committee to have this back to see what happens. I spoke in passing to the Minister of Fisheries and Oceans last week and he said that it is on the Order Paper, or elsewhere. If the same result were to occur, then we would need to approach this in a different way.

My concern is that we use the available tools pointedly. Otherwise, what has happened in the past will continue to happen. We will be locked into inaction because of the partisan debates that naturally occur in the House of Commons. Items such as these can continue to move back and forth with no effective results. We may have to restart this at some time.

Mr. Lee: Mr. Chairman, if it is clear that the two opposition parties will not support the bill that fixes this regulatory problem, then I would ask members of those parties on this committee to arm themselves with the reasons so that they can be put on the record of the committee. That would help members to decide whether the committee would go back to the House with a procedure should committee members not be united on the matter. That could be helpful.

The Joint Chairman (Senator Bryden): That is extremely important. If we are to use a notice of disallowance in order to enforce the actions of the committee, then we need to have the support of all members of the committee. If we do not have that support, then there is no point, because it will not work. I would ask members to determine their positions on this for discussion at the next meeting in two weeks.

The Joint Chairman (Mr. Anders): Sometimes, the considerations we might take before us in this committee do not necessarily carry the same weight in our caucuses. Things can develop lives of their own and be opposed for other reasons.

Mr. Wappel: My memory is not 100 per cent on this, so I think Mr. Lee's suggestion is excellent. However, the disallowance was specific for specific reasons. As I understand it, the argument of those who oppose the bill is that the solution of Bill C-52 from a policy perspective gives the minister what the opposition parties believe is more authority, unregulated if I can put it that way, than is necessary to solve the problem that the committee found. I am not taking a position one way or the other on it; rather, I am simply saying that that is the status. Members of the committee might well agree with the report and the disallowance but, at the same time, have a reasonable argument on policy as to why they do not support Bill C-52.

The Joint Chairman (Mr. Anders): As so often happens, we might agree on the problem but disagree on the solution. Are members agreed to the writing of a letter?

Hon. Members: Agreed.

The Joint Chairman (Mr. Anders): We are at the ``progress'' part of the agenda.


Mr. Bernier: Mr. Chairman, as the note indicates, Bill C-28 was introduced by the government last November to amend the Food and Drugs Act to respond to concerns expressed by the committee. The committee had questioned the validity of regulatory provisions that purport to confer an administrative discretion on an assistant deputy minister in Health Canada to exempt foods from the requirements of the Food and Drug Regulations and to determine the conditions under which these exemptions are granted. The bill essentially proposes to move the regulatory provisions into the act and to confer the authority to make exemptions on the minister. If made law, the bill would fully address the committee's concerns.

The bill was passed by the House of Commons on October 18, 2005, and has now reached committee stage in the Senate. We propose to monitor the progress of the bill and to report back in due course.

The Joint Chairman (Mr. Anders): Are there any comments? Are members agreed?

Hon. Members: Agreed.


Mr. Lemay: By way of information, since Bill C-28 will be referred back to the Senate, how long will it take for the Senate to adopt the bill? This is a very important piece of legislation. As a sports expert, I know that some arrangements will have to be made. A number of coaches have asked questions. This bill affects many people. For that reason, we put pressure on the House of Commons to pass the legislation as quickly as possible. Do you know when the Senate might get around to studying this bill?


The Joint Chairman (Senator Bryden): Is the bill before the Senate?

Senator Moore: I believe it was referred to committee at yesterday's sitting.

The Joint Chairman (Senator Bryden): Which committee will study the bill?

Senator Moore: Either the Social Affairs, Science and Technology Committee or the Legal and Constitutional Affairs Committee. The committees will sit the week after next. They know the importance of it, I believe, and there does not seem to be any opposition in the Senate. Everyone seems to be of one mind to report the bill and get it through.


Ms. Guay: Is there any chance that the bill might be passed before the session wraps up?


The Joint Chairman (Senator Bryden): It is the intention. It is before the Standing Senate Committee on Social Affairs, Science and Technology. There is no logjam, which often happens with Legal and Constitutional Affairs Committee. I am on that committee, and we get so much stuff through the Criminal Code, et cetera. However, there is no reason to think that this will not move expeditiously. With this type of bill, the purpose of next week is to be able to clear the committee so that it gets reported in the Senate the week of November 21.

I see no reason why it will not get third reading in that week. That is the intention, but it is not a commitment.


Mr. Lemay: The eyes of the sporting world are focused on us.


The Joint Chairman (Mr. Anders): Agreed.



(For text of document, see Appendix F, p. 14F:1)

Mr. Billingsley: Mr. Chairman, amendments have been made which address or eliminate the concerns identified by Mr. Rousseau in points 1 and 6 of his letter of October 14, 2004. Amendments have also been made which eliminate some, but not all, of his concerns identified in each of points 2, 3 and 4.

The department has not yet specified how it intends to address the outstanding concerns in those items. It would appear to be reasonable to request a definitive response from them at this time.

Regarding point 5 of counsel's letter, amendments have been promised, and we will monitor progress.

Finally, regarding point 7, the department has amended the French version of section 189(4) but not the English, despite the fact that the concern raised by counsel applied to both versions. Not only has the department only half addressed Mr. Rousseau's concern, but it has also made the English and French versions inconsistent. One applies a subjective criterion and the other an objective one. The English version needs to be amended to bring it in line with the French, and we propose to advise the department accordingly.

The Joint Chairman (Mr. Anders): Are we agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix G, p. 14G:1)

Mr. Bernier: Mr. Chairman, an amendment has been promised to the French version of section 3(2)(b)(iv) of the regulations.


As for the other two points raised in counsel's letter, they both turn on the validity of the scheme established by the Canadian Food Inspection Agency, CFIA, purporting to create a licensing regime for establishments that process fish. While the Fish Inspection Act allows for the possibility that establishments that process fish may be required to register, it never contemplated that the right to process fish could be made dependent on that registration, which would be the hallmark of a licensing scheme.

The CFIA has essentially turned a simple registration scheme that is allowed by the act into a licensing scheme without parliamentary authority.

This is an issue that has been raised in connection with SOR/99-169, which the committee studied at its last meeting. I would suggest it would be best to pursue it under that file.

If that is agreeable, the only issue that will be pursued here is the small drafting issue.

Hon. Members: Agreed.


(For text of document, see Appendix H, p. 14H:!)

Mr. Billingsley: The Treasury Board has recognized that the order is defective and has undertaken to omit the superfluous wording from all future orders made under this particular section of the Financial Administration Act.

Notwithstanding that they are not proposing to amend or have not offered to amend this current order, it would be our view that it is unnecessary in the circumstances.

The Joint Chairman (Mr. Anders): Agreed?

Hon. Members: Agreed.


(For text of document, see Appendix I, p. 14I:1)



(For text of document, see Appendix J, p. 14J:1)


Mr. Bernier: The Transportation Safety Board of Canada has reacted to the committee's unhappiness with an undertaking to proceed with the promised amendments to the Transportation Safety Board Regulations by the end of fiscal year 2006-07.

If I may deal with all of the other items under these two headings at once, on SOR/95-190, amendments are promised in relation —

Senator Moore: Do it within 2006-07 — are we happy with that?

Mr. Bernier: These were — I hesitate to call them drafting issues because they were not insignificant, but they were not vires issues. They were issues of clarification and of conformity between the two versions.

Senator Moore: Your office will have to continue to monitor and make sure the file is still open.

Mr. Bernier: Of course.

The Joint Chairman (Mr. Anders): I appreciate Senator Moore's desire for expediency on this matter. It is good.

Mr. Bernier: On SOR/95-190, Mr. Chairman, amendments are promised in relation to three issues pursued on behalf of the committee.

As regards SOR/95-144 and the possible overlap between section 28 of the Nova Scotia Offshore Area Petroleum Geophysical Operations Regulations and section 170 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, the department states that the concern will be taken into account in the drafting of a new Part III.1 of the Accord Acts with the Maritime Atlantic provinces which is currently underway.

Finally, with regard to SOR/2005-2, the required correction will be made when the regulations are next amended.


(For text of document, see Appendix K, p. 14K:1)


(For text of document, see Appendix L, p. 14L:1)


(For text of document, see Appendix M, p. 14M:1)

Mr. Bernier: As regards the instruments listed under the heading ``Action Taken,'' they make some seven corrections requested by the joint committee.

Finally, 68 statutory instruments are submitted to the committee without comment.

Mr. Lee: If we are finished with that part of the agenda, I wish to ask counsel a question. This committee had taken an interest in the Part II broadcasting fees. At some point, that issue went to the Federal Court for the opinion of a judge. It was like an advance opinion, a pre-trial opinion, which is provided for in the Federal Court rules. It is my understanding that the process has been completed, and the opinion of the judge has been made known. Does counsel have any more information about that?

Mr. Bernier: I do. I was going to bring the file back to the committee at the next meeting, Mr. Lee. We do have one difficulty, which is with regard to the Federal Court decision you referred to. Those that are not reported are not translated, and I have always been very reluctant to translate judicial decisions. I am not quite sure how to handle this in terms of material circulated.

In the past, we have circulated any decision, whether it was a French or English decision, in the original language, if there was no court-authorized translation. I think that is extremely important, rather than create a risk here of an erroneous translation, giving the wrong information in one language.

On the decision itself, on the hypothesis that this was a tax, the court was asked if it would be authorized by the Broadcasting Act. The answer was no. I can tell you right now that that throws it back to the main application by the applicants. Now the issue of whether those charges constitute a fee or a tax will have to be decided by the Federal Court.

Senator Moore: With regard to the distribution of the decision in English only, we should ask French-speaking members if that would be acceptable in this instance. I do not know how you can put words in the judge's mouth, so to speak.

Mr. Bernier: That is my problem.

Mr. Wappel: I am not clear about Mr. Bernier's comment. Is he suggesting that he would translate it? We have all kinds of competent people in the House of Commons to do that. I do not care whether it is a judicial decision or a person making a submission to a committee. If the decision is in English, we have competent people in the House of Commons and the Senate who are able to provide the translations. It is obvious to all that, if the decision is written in English, then the definitive decision is English and, in the event of any discrepancy, it would be the English version that speaks in this particular instance.

I cannot believe that we would have a precedent such that, if a judicial decision is in one language, we would treat it differently than anything else that comes before the Senate or the House of Commons in one language and not in the other. There is no magic to a judicial decision. For the first time in my life, I saw the word ``jurilinguists'' in the materials today. Jurilinguists exist and their profession is to translate legal documents. One would presume that a legal document would include a legal decision.

If we wanted to distribute that decision, I would not ask our friends in the Bloc Québécois to consent to it in English only. I would simply ask our competent people to translate it.


Ms. Guay: I wish to comment. At all committee meetings, documents are distributed in both official languages. The House of Commons benefits from the services of translators. If there is an error in a French document because of a mistranslation, we are able to detect it and to make the appropriate corrections. The same goes for documents translated from French into English. I do not have a problem with that.

I ask that all documents be published in both official languages. That is the rule around Parliament and it is out of the question that documents be distributed to us in only one language.


Mr. Lee: The difficulty is procedural, if I may say. The decision of the judge was simply given to the parties in the language in which the judge spoke. I understand there will not be an official court translation.

Because the committee works in both languages, the solution is to translate the decision and to mark it clearly as an unofficial translation. We cannot do any better than that. Certainly, it would serve the purpose of the committee, provided the readers of that translation know it is not an official translation. I fully accept counsel's exhortation that it is extremely difficult to produce a 100 per cent accurate translation of someone else's legal decision.

We have to live with that and have it translated by our regular staff and mark it clearly as an unofficial translation. There are not too many issues in the judgment that we are concerned about except the main one, which was quite clear.


Mr. Lemay: I had an opportunity to plead a case before the Federal Court of Appeal. Oddly enough, when a judge hands down a ruling in French, it is automatically translated into English. However, when the decision is in English, it is not translated in French as a matter of course. The first step we need to take is to let the Federal Court know that we want this court decision translated. They have the resources to provide us with a translation and so they should. I want the committee to be informed, should they turn down our request. I think we could ask some questions, particularly since I am a member of the Justice Committee. It could get interesting.

I have pleaded employment insurance and immigration decisions in Federal Court and when these rulings are handed down in French, they are automatically translated into English. If the Supreme Court operates in both languages, so too must the Federal Court. I can understand it being different for each province at the Superior Court level. However, a translation should be provided as quickly as possible, particularly in the case of Federal Court or Federal Appeals Court rulings.


The Joint Chairman (Mr. Anders): I sense the course of action. I agree with the original suggestion that an unofficial translation be stipulated as such and that counsel make a phone call in respect of Mr. Lemay's inquiry.

The Joint Chairman (Senator Bryden): I would ask counsel to explain the copyright issue in such a matter.

Mr. Bernier: Mr. Chairman, the right to translate anything falls under copyright law, which is another angle to this. Even Parliament cannot take documents with a copyright belonging to someone else and simply translate them. The right to translate a copy is part and parcel of copyright.


Ms. Guay: Once a ruling is handed down, it is brought into the public domain. I fail to see why it cannot be translated.


The Joint Chairman (Mr. Anders): I do not want to ignore Mr. Lee.

Mr. Bernier: In response to Ms. Guay, whether a document is public, such as books, copyright applies. There is a copyright in court decisions, which is generally held to belong to the Crown. Parliament might take the approach, given this is a Crown copyright, that there is an implied permission for Parliament to do the translation. I will not go further than that, because I am not a copyright expert; I simply raise the point.

Senator Moore: I like Mr. Lemay's suggestion to approach the court and have them do the translation.

Mr. Bernier: I would be comfortable with that.

Mr. Lee: I appreciate that sentiment but I do not appreciate the delay that would cause. If the court were to take another month to do the translation, then it will be 2006 before we do this. It is easy to obtain expert translation that would suit the needs of the committee. If it is not suitable, then there is a defect that we would deal with. I should like the committee to have a look at this file at the next meeting, or when counsel had it scheduled for consideration. Let us have it translated for the purposes of the committee only. We do that with every other piece of information that comes before us.

The Joint Chairman (Senator Bryden): I would suggest that we proceed to ask the court to prepare a translation. In the meantime, there is nothing wrong with having counsel present this committee with a summary of the decisions that were made for our purposes, in both languages. We could use it as a working document while pursuing the official one.

Mr. Bernier: Members do not need the actual decision. I will paraphrase it for the committee.

Mr. Wappel: Not to prolong this unduly, there are a few other issues. I am having trouble believing Mr. Bernier's comments about copyright, but I am not a copyright lawyer. If what he says is even remotely true, that a judgment of a court of Canada is copyrighted, even against use by parliamentarians, then I would like him to determine that from the Federal Court. I think it should be referred to the Standing Committee on Procedure and House Affairs if that is the case, because we have to do something by way of legislation to get around that. It is ridiculous if we cannot even translate on our own a judgment of a Federal Court or the Supreme Court, that they must translate it. This is incredible to me.

The Joint Chairman (Senator Bryden): In defence of counsel, I want to indicate to Mr. Wappel that he did not use the words ``even in the face of Parliament.''


Mr. Lemay: Let us settle one thing right away. In accordance with the Judges Act, once a ruling is made, that decision becomes public. The judge is free to hand down the ruling in his or her preferred language. Subsequently, it is the responsibility of the court of law in question to arrange for a translation.

At the Supreme Court and Federal Court levels, the issue was resolved by applying the provisions of the Supreme Court Act and the Federal Court of Appeals Act. The only court under federal jurisdiction that is not required to translate decisions is the Superior Court. Quebec and Ontario superior court justices are not required to make rulings in both languages. However, pursuant to their respective enabling legislation, the Federal Court, the Federal Court of Appeal and the Supreme Court must make their rulings available in both languages.

We need to be clear about one thing: decisions often contain references to taxes and other very technical matters and it is best that the court see to having decisions translated. In conclusion, I would just like to say that while we can always use a document that conveys the essence of a ruling, I prefer to work with a decision that has been handed down and translated by the Federal Court.


The Joint Chairman (Senator Bryden): That is understood.

The Joint Chairman (Mr. Anders): Agreed?

Hon. Members: Agreed.

The committee adjourned.

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