REGS Committee Meeting
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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 16 - Evidence of June 14, 2007
OTTAWA, Thursday, June 14, 2007
The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.
Senator J. Trevor Eyton and Mr.Paul Szabo (Joint Chairmen) in the chair.
The Joint Chairman (Mr.Szabo): We have a full agenda, so if we could move to the special agenda item, the Parks Canada master list of fees, committee members have received an excellent paper on some of the historic background, and particularly the criteria that the courts have used. The position of the committee, as you know, was that certain fees constitute a tax and are ultra vires. Having said that, I will ask counsel if he can lead us through the considerations for this committee to move forward with possible further proceedings to advance this item in Parliament.
PARKS CANADA MASTER LIST OF FEES 2003-2004
Peter Bernhardt, General Counsel to the Committee: As the chair mentioned, the committee has taken the view on these particular fees that they constitute a tax on the carrying on of business activity under a licence to sell alcohol in national parks. The issue has come before the courts. Both the Trial Division of the Federal Court of Canada and the Federal Court of Appeal, in the case of 620 Connaught Ltd. v. Canada(Attorney General), have upheld the fees in question as being valid regulatory fees that do not constitute a tax.
The ``Note on the Parks Canada Master List of Fees'' goes through the reasoning of the courts in this regard, but also points out the one aspect of the fees that the courts have not dealt with and what the committee has always considered to be the most important factor here: the prospective nature. The committee has always found it telling that the amount of the charge cannot be determined when the licence is issued.
Now, leave to appeal to the Supreme Court of Canada has been granted. A tentative hearing date is set for November15. One option for the committee is to wait for the judgment of the Supreme Court.
At the last meeting, when this file was before members, the question was raised as to whether there are other avenues by which the committee could make its views known in the meantime. Of course, Parks Canada is well aware of the committee's position, and I presume its legal advisers are as well. This situation does not prevent the committee from pursuing the concern through further correspondence.
In addition, the committee's proceedings and the relevant correspondence that forms part of the public record have been made available to the appellant's legal representatives. Of course, the primary means by which any parliamentary committee makes its views known is by reporting to the Houses. That is also an option.
The note concludes that any more direct intervention in the litigation process would not be appropriate, and that, in any event, it does not appear that a parliamentary committee is an entity that has legal personality in the sense that it could be a party to a court action or formally intervene in a court action.
The question for members this morning then is what approach it wishes to take.
The Joint Chairman (Mr.Szabo): Thank you very much. Some elements in the discussion are similar to the conversations we had with regard to the Broadcast Act: the fees and when a fee is a tax. On the simplistic assessment of that one, the determination was that the fees were clearly in excess of the costs, substantially in excess of the costs, and therefore could not be determined reasonably to be a fee.
The Parks Canada fee is a little more indeterminate. Legal questions are still being pursued; I suppose they will continue to be pursued by those paying the fees.
You have heard the introduction from counsel. Are there further considerations that members want to raise?
Mr.Epp: This item is before the courts this fall. Depending on the way it goes, either side could probably appeal that decision.
Mr.Bernhardt: This will be the final appeal because this is the appeal to the Supreme Court.
Mr.Epp: This item is at the Supreme Court now?
Mr.Bernhardt: We have gone through the trial stage, the Federal Court of Appeal and now it is tentatively set for November. It will be before the Supreme Court of Canada.
Mr.Epp: I suggest there is nothing much that we can do at this stage, in my view, to steer this decision one way or another. I think it would be wise of us to let the court rule; let them do the work. That is my suggestion, Mr.Chairman.
The Joint Chairman (Mr.Szabo): Mr.Lee?
Mr.Lee: We should be delighted to let the court have a kick at the cat here. The Supreme Court is pretty much the last word.
I am not satisfied, having read this document and our documents over the years, that we have a complete picture all on one page. I do not suggest that we produce one, because the parties will. My comments at the last meeting were intended to allow us and counsel to make sure that our previous deliberations corresponded in such a way that they were all available to the parties. Counsel points out that, for the most part, they are public record, if not all public record. Essentially, that they are available accomplishes one half the goal.
I had several questions for counsel. It is hard to believe I am asking these questions this late in the game, but is this particular licence only for the purpose of selling alcohol?
Mr.Lee: Is that licence additional to the requirement that the party or parties would have to lease premises on which they would sell alcohol?
Mr.Bernhardt: Presumably, yes, it would be. Whatever they have as a landlord-tenant situation would be entirely separate. This fee is strictly to carry on the business of selling alcohol in the park.
Mr.Lee: Presumably, the party selling alcohol has other commercial activities?
Mr.Bernhardt: If it was a restaurant or whatever, yes.
Mr.Lee: I cannot imagine they will set up a booze can in a national park, so we probably have a restaurant here or a food commissary of some part. Is that right?
Mr.Bernhardt: We are dealing with the town of Jasper so I suspect it is the entire range of businesses from bars to restaurants to —
Mr.Epp: It could be a plain liquor outlet as well.
Mr.Lee: Please answer that. Is this a plain liquor outlet where they sell liquor or is it a place where they serve liquor?
Mr.Bernhardt: No, we are dealing here with the hospitality industry. The plaintiffs in this case are restaurants, bars, taverns — those sorts of places.
Mr.Lee: In the end, the national park system has decided they will require a licence to be issued, and they will tax the activity that happens under that licence. That is what it looks like to me.
Mr.Bernhardt: That is the position the committee has taken. The other side is that, no, this is simply the fee for the licence. That is the dispute.
Mr.Lee: I am clarifying this for the public record, as you can see. Are there also one or more other contracts that exist between the hospitality proprietor and the park?
Mr.Bernhardt: That would depend on each particular case. It is the same as any municipal situation. They need a licence to carry on a variety of their activities. If they also had a hotel with rooms, then they would pay a fee for their hotel licence. If they had a restaurant in the hotel, then they would pay the fee to operate the restaurant. If they had a gift shop, presumably they would pay the fee to run the gift shop.
Mr.Lee: If the parks people decided they wanted to require a licence for the selling of bananas, they could do that and tax it, right?
Mr.Bernhardt: They could not tax it; they could charge a fee.
Mr.Lee: A fee related to gross revenues of selling bananas?
Mr.Bernhardt: On their interpretation, yes: On the committee's interpretation, that would not be a licence fee; that would be a business tax.
Mr.Lee: I thought I would put those comments on the record, for whatever they are worth, and wish the parties and the courts well in resolving this issue.
Senator Bryden: On page5 of the facts, at number 11, the annual minimum fee for a business licence for the sale of alcohol in Jasper was $75, and $50 for clubs selling alcohol only to their members and guests. In addition, licensees were required to pay, as part of the fee, 2percent of the gross value of the beer that they purchased in that year and 3percent of the purchase price of wines and spirits.
It seems to mix the issue of whether this is a licence fee because if you go on, they base this year's licence fee on what they sold that year. That is the same as those people who pay quarterly payments on their income tax; those payments are based on what they did not pay regularly in the year before, so it is not unusual.
In the case of charging apercent of the sale of a product such as liquor, would it be a commission or a tax? I think it is a tax.
Mr.Bernhardt: That is the position the committee has taken. The courts, to date, have had a different view. It has also been the position that the people paying these charges have taken, which is that this charge is a tax. I guess the Supreme Court will now decide once and for all.
Senator Bryden: If they had stayed with only the fee — the $75 or $50 as a licence fee — that probably would stick as a licence fee.
Mr.Bernhardt: Certainly; or if they wish to add a zero to that and make it all come out to the same thing and say it is $750, that sets the fee. I do not think anyone would dispute that was fine.
Senator Bryden: Here, a variable amount is paid, which is the tax.
Senator Nolin: My attendance at your meetings is a little irregular, but I heard counsel's introduction. I tend to support Mr.Epp's remarks when he says that legal authorities are now considering the question. I feel that it would be inappropriate on our part to get involved in the process publicly, given that our legal personality is almost non- existent. I am in agreement with legal counsel.
That said, I have one or two questions. Am I to understand that leave to appeal to the Supreme Court has been granted? What are the questions that have been, or will be, asked of the court? I am sorry that I did not familiarize myself with your document. I suppose that the question is covered there, but I have not read it.
Mr.Bernhardt: The question to be dealt with in the Supreme Court is exactly the question that the committee has been dealing with.
Senator Nolin: Only that?
Mr.Bernhardt: Yes; Are these charges a tax —
Senator Nolin: A cost?
Mr.Bernhardt: — or are they a fee? If they are a fee, there is no doubt that they are authorized. There is clear authority to impose a fee for the carrying on of business activity and the licence to do that. If they are a tax, they are unlawful. That is the question that is firmly before the court.
The Joint Chairman (Mr.Szabo): Some of the facts are fascinating. The amount collected by this process is a small proportion of the actual operating costs of the park, and there probably are alternatives. Should these be found to be a tax, I have no doubt that Parks Canada will amend the regulations to determine who pays the lowest amount on the full thing. That plus a little bit more becomes the new fee, and what it does is penalize smaller operators to the benefit of larger ones.
I will suggest something to colleagues. Parliament is poised to rise for three months and it may be likely that there would be a prorogation, which would mean that the restart of Parliament will be protracted for some time. It may be several months before this committee will meet again. It is unlikely, between now and when we rise, that we will be able to do much new work or entertain any new parliamentary activities. I think it is a decision probably to be made by the committee, whoever the committee is — it could be this one or it could be a new one — when we return and resume our activities.
Since the matter is before the courts, it will not be completed by the time we return, I would think. We probably have another opportunity, if we wish — or leave the opportunity for the committee when they resume after the parliamentary break — to make a final determination of whether there is any new information that would affect our decision; and make the final determination whether we should attempt to do work that may be relevant to a court proceeding.
It is an interesting discussion, but it is far more detailed than we will resolve at this point. I do not want to close the door for the committee when it returns. With that, maybe we will thank counsel for bringing us up to date and bring the item forward.
Mr.Lee: With a view to receiving some clarity, I know that counsel, in the back and forth writing, have suggested this is looking like a tax. It looks like a tax, smells like a tax, so it must be a tax.
The Supreme Court of Canada will not deal with this item for a while. We will have lots of time, I am sure, when we come back. I wonder whether members would like to reach a conclusion on it and report it to the House when we come back. I do not know whether members want to do that. I do not think we have ever reported a conclusion to the House; but if a strong consensus exists here to look upon this licence fee/tax as another Sheriff of Nottingham popping up and raising money because they want it — if members are of that view — I think we should bring it back and counsel can provide the facts in a memo.
However, the chair should seek whether there is a desire to do that when we come back in the fall. In other words, we should reach a conclusion, report it to the House and, subsequent to that, let the chips fall legally. Otherwise, we are only spectators, and we should be more than that.
Senator Nolin: It would be inappropriate for this committee to be seen intervening in a judicial process of the Supreme Court, which will consider the matter in November. Of course, the court can take its time to reflect but, in my humble opinion, it would be appropriate for this committee to let the court decide. We will take note of the decision and, if we do not agree, then we will change the law.
The Joint Chairman (Mr.Szabo): Mr.Lee has a good point in that we have not formally reported it. However, it is not black and white because the committee's position is on the public record and the reasons therefore at this time. In fact, it is known to all parties to the legal proceedings. We could formalize it, although I am not sure whether it would give them any more information about the committee's reasons for opinion.
Mr.Norlock: I suggest that because it is on the public record just prior to court proceedings, why not leave it instead of trying to stir up a hornet's nest where we should not be involved?
Mr.Lee: I acknowledge the remarks of Senator Nolin but there is only one place in the world where the issue of taxes is decided: the House of Commons; not in the Senate; and not in the court. It is absolutely constitutionally in every respect our job, as members of Parliament. However, I accept that members are not of a mind at this time to take any steps that might influence inordinately our brothers and sisters in judicial governance. I recall members of the current government railing against the judicial governance that seemed to be out there over the last few years, so I am curious as to why members of the government at this time would not want to see the House take steps to fulfil its constitutional and political role. I am not saying that they are weak-kneed and deferring to the courts but the House and the Senate have always recognized a caution when a matter was sub judice, which this item is. I have said my piece for the record.
There are implications in this case in the future for every other time that a federal, provincial or municipal government makes a putative tax grab when they do not have the authority to do so. I hope that the court does a good job, if we do not act on this matter.
Mr.Norlock: A parting shot is a parting shot, and I want the last word. The last part of Mr.Lee's comments is important. This is not an attempt to demean the Supreme Court but rather an attempt to respect the Supreme Court by suggesting that the court finish its job and if we do not agree with it, then we have the constitutional power to do something about it.
The Joint Chairman (Mr.Szabo): We definitely must bring this item back when the committee next meets, which I assume will be in the fall. That does not preclude us from taking any decision because the matter is still open and we now have additional comments for consideration by members, which is helpful. If members are agreed, we will bring forward the item and move on to the next agenda item.
Hon. Members: Agreed.
SOR/2005-241 —REGULATIONS AMENDING THE GUN SHOWS REGULATIONS
SOR/2005-242 —REGULATIONS AMENDING THE FIREARMS MARKING REGULATIONS
(For text of document, see Appendix A, p. 16A:1)
Mr.Bernhardt: Mr.Chairman, section118 of the Firearms Act requires the proposed regulations to be tabled in both Houses. They stand referred to the appropriate committee and may not be brought into force until after 30 sitting days or the committee's report to the Houses.
Section119 of the act sets out a number of exceptions. Two of these exceptions are where the minister is of the opinion that the changes are minor or that the situation is urgent. Even in such cases, a statement of the reasons for the minister's opinion must be laid before each House, although the act sets out no time period within which this must be done.
The two regulations were made on August30, 2005, and state that because they make only minor changes, they will not be tabled but that the minister will table the statement of the reasons for the opinion that they are minor, as the act requires. No such statements have ever been tabled. The RCMP has indicated that it has identified a number of amendments in respect of which nothing has been tabled, and is in the process of rectifying this situation.
As the committee noted in its 77th report tabled in October2006, these kinds of requirements are one means by which Parliament retains some control over the exercise of the powers it has delegated. They reflect a determination that the formal transmission of certain instruments is necessary for members of the Houses to discharge their responsibilities. Again, in this case there is no fixed time limit for tabling statements but clearly a delay of almost two years violates the spirit of the law at the least.
I suggest writing a letter to the RCMP to point this out, to request a firm time by which tabling will take place and to inquire as to what steps have been taken to ensure that such situations do not recur in the future.
The Joint Chairman (Mr.Szabo): Are there comments?
Mr.Lee: Members can accept that the Canadian Firearms Centre, CAFC, and the RCMP have been through a few transitions in this policy envelope. If they have made a mistake, they will have time to fix it. If I am back in opposition in the fall as I was in 1991-92, I will see it as a clear scenario of contempt. The Speaker has ruled that the failure to table documents is contempt of the House and I want the public record to show it now. I am always willing to listen to fair excuses for failure to comply with the law. However, if they cannot do this before Parliament returns in the fall, then some astute member of the opposition definitely will take this up in the House.
The Joint Chairman (Mr.Szabo): We will write a letter to reflect also the concern about the delay.
Mr.Bernhardt: We can point out that the Speaker has ruled that the failure to table documents is contempt of the House.
The Joint Chairman (Mr.Szabo): It could constitute contempt of Parliament. This is the time to discharge the responsibilities. Are members agreed?
Hon. Members: Agreed.
SOR/2005-380 — DECISION BODY TIME PERIODS AND CONSULTATION REGULATIONS
(For text of document, see Appendix B, p. 16B:1)
Jacques Rousseau (Legal Counsel): Mr.Chairman, counsel to the committee point out a discrepancy between the French and English versions of section176(1) of the Yukon Environmental and Socio-Economic Assessment Act. The department recognizes the discrepancy but sees no urgency in correcting it because, they say, ``the danger of this causing the act to be contested is low.'' The department gives reasons why the discrepancy should not cause any confusion and ends by pointing out that the correction will be one of the things to be considered when the evaluation process is scheduled for review under the Land Claims Agreement.
Mr.Chairman, this review, as the minister writes, must take place five years after the evaluation process is established. A good deal of time could pass before the act is corrected and it is appropriate to suggest to the department that the Miscellaneous Statute Law Amendment Program could be used as a vehicle to more quickly correct the discrepancy between the two versions of the act.
If the committee is in agreement, counsel could write to the department to make that suggestion.
The Joint Chairman (Mr.Szabo): Are members agreed?
Hon. Members: Agreed.
SOR/2006-60 — ORDER AMENDING SCHEDULES 1 TO 3 TO THE SPECIES AT RISK ACT
(For text of document, see Appendix C, p. 16C:1)
Mr.Rousseau: Counsel to the committee have pointed out to the department that, in the recommendation that precedes the regulations, no mention has been made that the regulations were passed, among others, pursuant to section131 of the Species at Risk Act. The department has confirmed, as requested, that section131 will be mentioned in future changes.
If the committee is in agreement, this file can be closed.
The Joint Chairman (Mr.Szabo): Are members agreed?
Hon. Members: Agreed.
SOR/97-6 — FEEDS REGULATIONS, 1983, AMENDMENT
SOR/97-9 — SEEDS REGULATIONS, AMENDMENT
SOR/2001-274 — REGULATIONS AMENDING THE SEEDS REGULATIONS
(For text of Document, see Appendix D, p. 16D:1)
Mr.Bernhardt: The note members have before them this morning deals specifically with the Feeds Regulations, 1983. Identical concerns have arisen in connection with similar provisions in the Seeds Regulations as enacted by the two other instruments so any objection related to feeds will also pertain to seeds. These amendments to the feeds regulations put in place a regime whereby new, or what is called ``novel feeds,'' may not be released into the environment unless an authorization has been obtained from the Minister of Agriculture and Agri-Food. The regulations go on to set out information that must accompany an application for a release. They authorize the minister to authorize terms and conditions as part of the approval. Persons obtaining approval are required to report any new information regarding risk to the environment that could result and the minister can vary or revoke authorization.
The problem is that the purpose of the Feeds Act is to control and regulate the sale of livestock feeds. This is done through prohibitions set out in section3 of the act on manufacturing, selling or importing feeds, unless they are registered, they conform to the standards in the regulations and they are packaged and labelled as required.
None of this has anything to do with release into the environment. The regulation- making powers are set out in the note, and illustrate this point with abundant clarity. Obviously, regulation-making powers must be exercised for the purpose of the enabling act. A regulation made for some other purpose would be ultra vires.
The Canadian Food Inspection Agency has sought to argue that these provisions are authorized as being regulations for carrying out the purposes and provisions of the act. They claim that this is because the main purpose of the act is the protection of animal and human health, so they can make any regulation relating to feeds if it is for the purpose of health. This view simply ignores the fact that Parliament has decided that the means it has chosen to further this purpose is prohibiting manufacture, sale or import of feeds contrary to the regulations.
Not only do the regulations purport to regulate release of novel feeds into the environment, they also extend to the release of a livestock product produced from a feed as well as the exposure of a feed or a livestock product produced from this feed into the environment. This encompasses eggs, meat, milk, other animal parts and even manure. The agency argues they have the power to do this because of the fact that these products may enter the animal or human feed chain. In other words, manure is a feed.
I suggest this view simply lacks credibility. Parliament has adopted a statute for the purpose of protecting the environment. It is called the Canadian Environmental Protection Act. As the regulatory impact analysis statement that accompanied these regulations explains, the Canadian Environmental Protection Act was not ``the preferred option'' because Environment Canada lacks expertise and experience in regulating agricultural products.
Unfortunately, this view is not relevant to the question of whether the provisions in question are lawful. If the Feeds Act does not provide authority for regulating release of feeds into the environment, this situation is not changed by the fact that the Canadian Food Inspection Agency happens to administer the act.
I suggest this issue needs to be pursued with the agency, both in connection with the feeds regulations and the identical regime in the seeds regulations.
Mr.Lee: Counsel, I have considerable sympathy for the departments involved in this issue. The difficulties appear to emanate from an administrative decision taken 15 years ago, I think it was 1992, where it was decided to leave the responsibility for regulation of activities that might in some way affect the broader environment in each regulatory silo where it existed, so we leave automobiles with automobiles, and we leave animal feed with the agriculture people or the food inspection people.
The time may well have come where the government should rethink that, but having chosen that route, there appears to be a well-founded need for the regulators in each of those silos — no pun intended here, given the area we are looking at, seeds and feeds — to manage that envelope so that the environment is protected as best they can with the powers they have.
I have asked myself the question, what does environment mean? Environment could include the mouth of a cow. They seem to be, in part, aimed at testing, a little research and development. There is lots of that going on now, potentially harmful, as harmful as it might be helpful to the seeds industry and the biotech, and the feeds industry and the biotech. We all recall the connection here, although they do not mention it, to the bovine spongiform encephalopathy, BSE, issue.
I think we, as a committee, should be aware of these imperatives. I would have thought that testing, a field test of a new feed, should be controlled under the Feeds Act, but the original statute does not talk about field tests. It talks about release to the environment. I could argue, on a good day, on a sunny day, that a field test is a release into the environment that is regulated, that is, the mouth of a cow and, actually, both ends of a cow.
I have come to the conclusion that we will come to a standoff, an intellectual and policy standoff. Counsel has rightly pointed out that some of this stuff they are trying to regulate here is way outside the sale and manufacture of feeds. Some of the body parts and some of the things that are mentioned here have formed parts of feeds and although it is not thought of as part of a feed, maybe it is a feed. It is part of a feed. It is added to the feed. When a cow is out in the field chowing down on whatever, that stuff becomes feed and that is part of the environment as well.
I will stop here.
Mr.Bernhardt: A cow could eat anything, in which case we would need only one statute in the country, which would be the Feeds Act. If a cow could swallow anything, then we could regulate anything under the Feeds Act. We could eliminate the Food and Drugs Act and everything else.
We need to be clear as well that the act does not talk about release into the environment. The regulations talk about release into the environment. The long title of the Feeds Act is, An Act to Regulate the Sale of Feeds, and it does that by prohibiting manufacture, sale and import, unless they comply with the regulations on labelling and manufacturing. It is a limited statute. I think you are right that the administrative arrangements may have been made for good reasons, but here we have a case of trying to pound a round peg into a square hole.
Senator Nolin: I have a question for our legal counsel. You quoted a passage of the act dealing with the regulatory authority of the Department of the Environment. Is this power limited to the Department of the Environment or does the authority extend to other federal administrative entities so that there can be coordination? Because that could be the solution to our problem.
Of necessity, jurisdiction in environmental matters is implicit in all our federal authority and the same reasoning could apply to administrative authority. Does each administration have a kind of environmental responsibility by implication?
I think that this was the administrative decision made federally at the beginning of the 1990s. That said, I think that the Department of the Environment must have the authority, at very least one of coordination, if only to systematically examine what has been done by each federal administrative entity. I do not know the answer, perhaps you do.
Mr.Bernhardt: In the narrow sense, the regulations are made by the Governor-in-Council. I suppose they could be administered by anyone.
As far as which department, I think that was the genesis of the issue; they have been upfront about that. The decision was made that because these regulations dealt more with agriculture than they did with the environment, even though we are dealing with release into the environment, that the Department of Agriculture should be the department on the ground looking after these things, which may have been a reasonable decision.
The problem was, they then looked around for an agriculture statute to stick it into, rather than putting it into an environment statute. We are left with this round peg in a square hole.
The Joint Chairman (Mr.Szabo): Do you want to repeat your recommendation, or maybe rephrase it? We are saying we need to take up these issues with the agency.
Mr.Bernhardt: We will write back to the agency.
The Joint Chairman (Mr.Szabo): I think there is still some concern here. Maybe we need a little more dialogue before we deal with it because I think Mr.Lee has raised some interesting points.
Mr.Epp: I think we have here the juxtaposition of two purposes. One is the actual production, sale and importation of feed; but having grown up on a farm, I know that animals eat a lot of stuff that is not purchased. We fed our pigs slop that came out of the house. That is what it was called, slop — I do not know if any of you know the term. It was potato peels and all that stuff. We put it into a pail and it was given to the pigs. Then we had pork out of that. It worked well. We had no trouble with BSE in those days.
That is one field — the sale, manufacture and importation. The other is the issue of safety. The Canadian Food Inspection Agency and the health regulators of the country are interested, I am sure, in making sure that farmers do not feed their cattle something that will be detrimental to the health of Canadians and other animals. That is outside the scope of only selling, manufacturing and importing.
I do not know exactly what the issue is here then. You say that the regulators did not have authority to make these regulations because they do not deal directly with the sale, importation or manufacture of this stuff. So what?
Mr.Bernhardt: It is illegal, if they do not have the authority to make a regulation. It is not for me to judge the policy merits or whether the administrative arrangements were or were not a good idea. I review it as counsel to the committee and I say, does this activity fall within the scope of the act? Clearly, it does not. I look no further, nor should I look any further. That is for others to do.
Mr.Epp: They did it under the wrong authority. Is that right?
Mr.Bernhardt: They have the Canadian Environmental Protection Act. If they are concerned with release into the environment, they have that power elsewhere. They have explained they did not go that route because that is Environment Canada's statute and they wanted this to be under a Department of Agriculture statute.
As I have said before, they made the decision that they will simply drive this round peg into this square hole. Now, we have an agriculture regulation and we can administer it and Environment Canada can step aside. It is a bit of putting the cart before the horse. We do not make the arrangement and then look around to see if we have the legal authority to do it; the two must go together. Here they took the one step without taking the other.
Mr.Lee: If a company or a farm tests a feed or a seed, that might well come within the ambit of the definition of manufacturing. It might, but then again, it might not.
However, if the seed or the feed falls off the back of the truck on the highway, that appears to be an illegal act. ``No person shall release ....'' I guess it happens as an accident.
Mr.Bernhardt: It is certainly a release into the environment.
Mr.Lee: I guess they are trying to protect the leakage of this stuff, because the stuff they had their eye on was the biotech, re-engineered seeds and feeds. I suppose if they added a section to the statute that tried to define the testing, the experimentation and the protection of the food chain, it might help them a lot; but when they drafted the statute 50 or 100 years ago, it was manufacture, sale and import of a stable product, and now the product is no longer stable.
I am sure you have a recommendation for us. The dialogue will continue on this item and you might want to recommend some statutory amendments here.
The Joint Chairman (Mr.Szabo): Counsel has recommended that we pursue these issues further with the department. We have had some input from members, at least to give an indication that there are matters that the committee believes need to be resolved — and they have potential significant consequences if we do not. We are within our purview and responsibilities and it sounds like a reasonable plan.
Senator Moore: Will we write a letter to both departments? Who are we writing to?
Mr.Bernhardt: We would write to the Canadian Food Inspection Agency and copy Environment Canada.
Senator Moore: Is the thrust of the letter that we expect the advice of counsel to be followed?
Mr.Bernhardt: We can suggest that if they wish to regulate this by statute, then they must make amendments to the statute to expand its scope.
The Joint Chairman (Mr.Szabo): There is more work to be done. Is that agreed?
Hon. Members: Agreed.
SOR/2006-188 — REGULATIONS AMENDING THE CANADA LANDS SURVEYORS REGULATIONS
(For text of document, see Appendix E, p. 16E:1)
Mr.Rousseau: The correspondence with the department deals with two sections of the regulations, sections 33 and 56.1. The file contains a note on the subject prepared for the committee. In section33, two aspects were discussed. The department provided a response, and counsel suggest that the response be considered satisfactory on the first aspect.
In brief, the concern is whether section33 of the regulations is compatible with section58 of the act. The department's position is satisfactory in the view of counsel to the committee. Section58 of the act enables the registrar to issue licenses if the request conforms to the regulations, and section33 requires the registrar to issue the license when regulatory conditions are met. The act delegates to the governor in council the authority to make regulations ``respecting the duties and powers of the Registrar'' and this sectionallows section33 of the regulations to go into effect.
The second aspect of the exchange of correspondence concerns subsection33(e) of the regulations which requires that a license application must meet the requirements of the act and the present regulations. This condition adds nothing to the provisions of section58 of the act regarding adherence to the regulatory conditions.
The department recognizes that subsection33(e) simply states the obvious, but it tries to justify this by stating that it provides a useful clarification for those to whom the regulations apply and that it adds an element of certainty in the application of the registrar's duties and powers.
This answer does not seem to be acceptable because the governor in council does not have to stipulate by regulation that requirements for the issuing of licences that Parliament has placed in the act must be followed.
The other point raised in the correspondence concerns subsection56.1 of the regulations. This provides a list, not intended to be exhaustive, of fees that can be reimbursable under section31 of the act. According to the department, subsection56.1 of the regulations is intended to specify a concept in the act, to make it easier to interpret and to clarify its meaning.
Unless Parliament clearly delegates authority to that effect, the role of the regulations is not to define concepts in the act, to make it easier to interpret or to clarify its meaning.
There is no regulatory power to do that in the Canada Lands Surveyors Act and it is not the governor in council's place to interpret Parliament's intentions in passing the act. The department's response is not satisfactory in the view of counsel to the committee, and if the committee is in agreement, counsel will write to the department about those parts of the answer that were considered unsatisfactory.
The Joint Chairman (Mr.Szabo): Are members agreed?
Mr.Lee: With apologies, I take a slightly different view from counsel with regard to section33(e). Counsel has pointed out that the new regulation changes the approach from a permissive ``may issue a licence'' to a more mandatory ``must issue a licence.'' The adopted regulation is an attempt to codify the issuance of a licence, but it says ``must issue a licence.'' Having said that the registrar must issue the licence if the person complies with A, B, C and D, they decided they had better ensure that the rest of the act is complied with too because there might be some other component of the act missing from the application. As a kind of catch-all before the licence is issued, they want to ensure that the other relevant provisions of the act are complied with.
I am willing to accept an argument that they need that because they have changed the approach from a permissive, ``may issue a licence'' to a more mandatory ``must issue a licence.'' There is a rationale but the legal technicality, as counsel properly points out, is that everyone must comply with the act. Seen in the context of the application and issuance of the licence only, it might be appropriate to ensure that the little codification contains the general requirement that the relevant provisions of the statute be complied with. If we are to continue discussions on this, that is fine.
The itemization of the costs is not exclusive but rather a listing of the kinds of costs associated with an application, an appeal or a hearing of the sort envisaged here. It does not restrict the cost but the section simply gives manifestation to the kinds of costs that may be reimbursed. They are not offside in doing that. It likely helps adjudicators and parties at the end of a long week of an appeal to itemize categories of costs. The list is not restrictive in that the statute does not attempt to define the kinds of costs with any sort of precision. It simply says, ``costs associated with the proceeding.'' The regulation does not restrict it and does not go beyond generic types of costs, so we should be more accepting of that listing. The regulation does not say that these costs are the only ones involved but it says that they may cite, claim and be awarded these items as costs. We should be more flexible.
Mr.Bernhardt: I will leave the first point maybe to Mr.Rousseau. On the second point, counsel raised the point that this list is non-exhaustive, and they have authority as to the costs. We looked at some of these items and questioned whether some could be said to be costs. If the committee is satisfied that each one, as set out, is legitimately characterized as a cost, that would resolve the concern.
For example, we referred to witness fees and questioned whether those fees could be said to be costs to the parties. If they are deemed costs and the committee is convinced they are costs, then that is fine.
Mr.Lee: In normal litigation they are often included as costs. Is the existence of this regulation itemizing the kinds of costs any different than an adjudicator keeping in a pocket a lists of these kinds of costs.
Mr.Bernhardt: It is no different provided they are indeed costs.
Mr.Lee: At the end of the day, the adjudicator pulls out the list and allows costs for the ten categories. It is almost the same kind of thing.
Mr.Bernhardt: Absolutely: As long as they are all costs and they can be assured that they are costs. The question raised in our correspondence was whether all these items could be said to be costs.
If they are costs, then that is fine.
Mr.Lee: Thank you.
The Joint Chairman (Mr.Szabo): Do you want to respond to the first point?
Mr.Rousseau: Nevertheless, I insist on the fact that we are witnessing an attempt to interpret the act in these regulations, and, in that context, if we have to continue our correspondence with the department, I think that we must insist on knowing the extent to which this is an attempt to interpret the act. From the outset, the principle underlying the correspondence is quite unacceptable.
The Joint Chairman (Mr.Szabo): Our communication should reflect some openness to continue the discussion. Let us pursue it further to bring us closer to a consensus on the best route forward.
Are members agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr.Szabo): Thank you.
SOR/2006-242 —REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS
(For text of document, see Appendix F, p. 16F:1)
Mr.Bernhardt: Under the Food and Drugs Act, a drug manufacturer must apply for a notice of compliance to market and sell a drug. Pursuant to these regulations, a generic manufacturer cannot obtain a notice of compliance if the non-generic drug it is compared to is the subject of one or more patents. The innovator of the patented drugs submits a patent list, and the minister is required to add the patents on that list to a patent registry. The patents are put on the registry provided they meet certain specified criteria.
The four points that counsel raised in connection with these amendments are addressed in the reply from Industry Canada of January29, 2007. It is discussed in the note prepared for members. Point one concerns section3(2) of the regulations, which provides that the minister may refuse to add or to delete a patent from the registry if it does not meet the criteria. The department claims that the minister needs this discretion because the determination of whether patents belong on the registry often involves studying a great deal of data and is rarely a black and white issue.
The reply also refers to a Federal Court decision, in which the court accepted that the minister had discretion. This has never been questioned. However, it was questioned why the minister has a discretion not to do anything even after the minister has determined that a patent on the registry does not meet the necessary criteria, and what the considerations are that will lead the minister to exercise this discretion. Even if it is not black and white, the minister still makes a determination. Why should the minister then turn around and ignore the minister's own determination? I suggest there is nothing in the reply that explains this. Therefore, that point should be followed up.
Point two concerns the use of certain terminology in the French version. The department's reply is that one should not refer to ordering a minister to do something as if the minister was a mere ordinary person. I do not know how to characterize that other than as nonsense.
Point three concerns the need for grandfathering provisions. I suggest the department's reply on this point is satisfactory.
Now the final point deals with the transitional provision in section7 of these amendments. It provides that any submission made by a generic manufacturer for a notice of compliance before the coming into force of the amendments is deemed to have been made on the date of their coming into force.
The department denies that this gives retroactive effect to the amendments. They claim it is actually prospective because it brings previously filed amendments forward under the new regime. No matter how one characterizes it, the effect is that submissions made prior to the coming into force of the amendments are treated as if they had been made under the new rules. There is no authority in the act for regulations having retroactive effect.
I therefore suggest that the three outstanding issues be pursued in a further letter.
The Joint Chairman (Mr.Szabo): Are members agreed?
Senator Nolin: I would like to get back to the question. I did not understand your argument on ``order.'' What exactly does the French text say?
Mr.Bernhardt: In English the word ``order'' is used throughout, whether they order a manufacturer or a minister. For example, the court will order the minister to do something.
Senator Nolin: In the sense of an injunction, of having to do something.
Mr.Bernhardt: Yes, in French, the distinction is to enjoin the department. That is a difference.
The department explains they did not use ``ordonner'' in talking of the minister as one would to an ordinary person. They need something more polite.
Senator Nolin: Just in French.
It is fine to order the minister in English.
We ``enjoin the minister to,'' there is no doubt that it is much more poetic to ``enjoin'' than to ``order.'' My colleague will surely agree with me on that.
Mr.Lee: We should put on the record here that the senator opened up this issue again. The marginally improved sophistication and subtlety of the French language in dealing with some of these things is manifest and it has been accepted by the department. What the heck, it may look like nonsense to technical regulators but I have no problem with it.
Senator Nolin: I have no problem with that. We must look at the result.
The Joint Chairman (Mr.Szabo): I think we are discussing more generic issues.
Senator Moore: I thought Mr.Rousseau wanted to say something. He indicated that he had something on his mind with regard to this issue.
Mr.Rousseau: The problem comes in the overall consistency of French versions, because we find that Parliament has used ``ordonner'' for ministers in other acts. If Parliament can ``order'' a minister, I see no reason why his designate, who has received part of his authority from Parliament, cannot designate others in his turn. Even in the vocabulary of regulations, we find ``ordonner.'' This seems to be new. If you can ``order'' in English, why can you not ``ordonner'' in French? It is a question of consistency that starts with the vocabulary used in French.
Senator Nolin: If you allow me, I think that it would be appropriate that the legal counsel's remarks be mentioned to the department so that they can finish making their case to persuade us why this time should be different from what is done elsewhere in regulatory texts. Then we may be able to clear up the mystery that seems to be looming on the horizon.
The Joint Chairman (Mr.Szabo): We have these three points and certainly some wonderful input from a number of honourable members, so they will be duly reflected in the correspondence. Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr.Szabo): May I interject here. Because of matters occurring in the House, I believe a number of members will leave for 10 a.m. when the House opens. That puts us a little tight for time on the business. We still need to do the job properly so to the extent that we might not address a couple of items, we will bring them forward at our next meeting. We will be sure to do at least the most important items. I want to ensure that members are aware that we will adjourn at 10.
SOR/91-570 — ENERGY MONITORING REGULATIONS, AMENDMENT
(For text of document, see Appendix G, p. 16G:1)
Mr.Bernhardt: Amendments to these regulations were promised in 1992. Later it was decided that the regulations would simply be revoked. Later still it was determined that they would be replaced by new regulations. The drafting of these new regulations has apparently been completed. They should therefore be promulgated shortly. Counsel will monitor this item. and if this proves not to be the case, we will ask for an update as to what is happening.
Mr.Lee: Can we ask them to put dates on the letters? Even the year will help.
Mr.Bernhardt: We received it on March16.
Mr.Lee: We date-stamped it of course, but it is a 15-year-old file and they do not put a date on it.
The Joint Chairman (Mr.Szabo): That is why they do not put the date on it. We expect them to date correspondence or at least stamp it at their office.
Thank you. Are members agreed?
Hon. Members: Agreed.
SOR/94-34 — AVIATION OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT
(For text of document, see Appendix H, p. 16H:1)
Mr.Bernhardt: The proposed amendments to these regulations were prepublished in September for notice and comment. At that time, it was noted some promised amendments were not included. These amendments that were not there are described in counsel's letter of November27, 2006. The department apologized for the inadvertent omission and gave an assurance that these amendments would be added to the final version. At this point then, it is simply a matter of asking as to progress.
The Joint Chairman (Mr.Szabo): Are members agreed?
Hon. Members: Agreed.
SOR/2003-319 — REGULATIONS AMENDING THE SULPHUR IN GASOLINE REGULATIONS
(For text of document, see Appendix I, p. 16I:1)
Mr.Rousseau: The promised change deals with the correction of a drafting problem. In its letter of January31, 2007, the department felt that the proposed change would be published in March2007. This seems not to be the case. Committee counsel should write to the department to ask where matters now stand.
The Joint Chairman (Mr.Szabo): Are members agreed?
Hon. Members: Agreed.
SOR/91-365 — PARI-MUTUAL BETTING SUPERVISION REGULATIONS
(For text of document, see Appendix J, p. 16J:1)
Mr.Rousseau: Mr.Chairman, in this file, I point out that passing SOR/91-365 has had the effect of solving two drafting problems noted by the committee when it reviewed the previous regulations. Thirteen points were raised in the correspondence about SOR/91-365. A note summarizing the situation was prepared for the committee.
Briefly, changes were promised to points 1, 5, 6, 10 and 13. The department indicates that changes may be made in points 2 and 8. It would be appropriate to ask for specifics in the next letter we send to the department. In point 9, the note suggests a change in the wording of the regulations as a result of the department's response. Finally, point 3 deals with paragraph7(1)(a) of the regulations that the director may, by written notice to the association, change the conditions of the association's licence. Nothing indicates under which circumstances and following which criteria the director can exercise this authority. In the light of the department's response, it would be appropriate to suggest a change to paragraph7(1)(a) to the effect that the director's authority can be used only when changes in circumstances make a modification to the licence necessary.
In the view of committee counsel, the responses to points 4, 7, 11 and 12 are unsatisfactory. If the committee is in agreement, we will continue to correspond on these points. Point 4 deals with a problem of which the committee is well aware: under paragraph7(1)(b) of the regulations, the director has the authority to suspend or cancel the license if an association contravenes the act or the regulations or does not observe the conditions of its license. Nothing allows a distinction to be made between cases where the director can suspend a license or can cancel it. As paragraph7(1)(b) is presently drafted, the director could, for example, either suspend or cancel a licence if the law is broken.
The committee has taken the same position on this matter for a long time. The regulations must make a distinction between the circumstances under which a license may be suspended and those under which it may be cancelled. The letter from the department lists a number of examples in which a distinction is made between circumstances leading to a suspension of a license and other circumstances leading to its cancellation. The regulations should be modified to reflect this distinction.
In point 7, committee counsel have noted that subsection64(3) of the regulations require that when the association determines that a pari-mutual employee's cash is short, the employee must immediately pay the association a sum equal to the amount of the shortage.
The question of what legal justification this subsection has is not answered by any enabling provision mentioned by the department. If the department cannot justify the provision legally, it must be rescinded.
Finally, points 11 and 12 deal with similar problems and the department's response is the same in both cases. We can therefore focus on point 11 to describe the problem that arises.
As regards theatre betting, paragraph204(8)(e) of the Criminal Code allows the Department of Agriculture and Agri-food to make regulations governing the conditions under which this betting may be conducted. Subsection87(1) of the regulations states that the director may place conditions on a betting theatre licence or change it. As you can see, with this provision, the minister has does made regulations governing the conditions under which this theatre betting may be conducted. It is done by the director through the license. If we go by the French version of the enabling provisions, this is illegal. However, the English version of paragraph204(8)(e) of the Criminal Code is probably wider in scope. It says that the minister makes the regulations, and I quote:
...governing the conditions for pari-mutuel betting ...that is conducted by an association in a betting theatre.
If we considered only the English version, section87(1) of the regulations would be permissible. There is a discrepancy between the French and English versions of paragraph204(8)(e) of the Criminal Code. Since the two versions are official and of equal status, we must choose an interpretation that makes the two versions compatible. In the case that we are now dealing with, this is the French version, which is more restrictive. So, first, the two versions of the Code should be harmonized, and second, for the moment, sections 87(1) and 87(2) of the regulations must be considered illegal.
If the committee is in agreement, counsel will write to the department to explain why some responses are not satisfactory, and to ask it to look at the question again.
The Joint Chairman (Mr.Szabo): Is it agreed?
Hon. Members: Agreed.
Mr.Lee: Excellent work, Mr.Chairman.
The Joint Chairman (Mr.Szabo): It is like trying to nail Jell-O to the wall. There are a lot of pieces there. Good for you.
SOR/2000-187 — AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
SOR/2002-183 — REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
SOR/2003-256 — REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
(For text of documents, see Appendix K, p. 16K:1)
Mr.Rousseau: Another quite complex file. If you count the subdivisions in the numbering, 50 points were raised by committee counsel in the letter sent on November25, 2007.
The first two paragraphs of the note prepared for the committee on this file list the points where changes were promised and satisfactory answers were provided in the view of committee counsel. For a number of other points, we must insist that the agency agree to changes, either because it has recognized that a problem exists and has decided that it is not necessary to correct it, or because the department has recognized the existence of the same problem in other provisions of the regulations. In these cases, it is appropriate to ask that the same solution be adopted wherever the same problem arises.
The note deals with these points in more detail. Finally, the committee must also decide if the agency's responses to points 17(d) and 18(c) of the correspondence are satisfactory. Point 17(d) deals with section13 of the regulations on animal health, which prohibits the import of a regulated animal if the certificate required by this part contains false or misleading information.
Counsel to the committee pointed out that the validity of this provision is in doubt because its effect is to prohibit the import of a healthy animal for no other reason than the fact that the accompanying certificate contains incorrect information that possibly has nothing to do with the animal's health. In that context, section13 of the regulations on animal health goes beyond the intent of the act and is therefore invalid.
In their letter of April10, 2006, counsel gave the example of a certificate containing an inadvertent error in an address. Do we prohibit the import of a healthy animal or do we correct the error? It seems fairer to assume that, if the animal has undergone the required tests and has the necessary permits and certificates, an importer should be able to bring it into Canada.
To conclude, point 18(c) deals with the penalties that can be imposed for not complying with the orders of an inspector using the discretionary authority granted in some provisions of an administrative document entitled ``Import Reference Document''. This document has no force of law. In order for non-compliance with an inspector's order to be punishable by a fine, as the agriculture and agri-food administrative monetary penalties regulations attempt to do, a person receiving such an order must be under a legal obligation to comply.
This would be the case if it could be shown that the relevant provisions of the reference document had been made part of the animal health regulations. In its letter of February3, 2006, the agency claims that this is clearly the case. This claim is based on the fact that, in the reference document, the provisions on orders are listed in the agriculture and agri-food administrative monetary penalties regulations. It is difficult to accept that the provisions of the reference document have been included in some places in the animal health regulations just because they have been listed in the regulations on health, I mean, in the agriculture and agri-food administrative monetary penalties regulations. In this context, we just have to point out that the governor in council has approved the former and the minister has approved the latter, and that each has acted under different regulatory powers granted by different acts.
Counsel to the committee recommend writing to the agency again on all these points except those for which a satisfactory response was received. In the case of the two last points, if the committee agrees that the answers are not satisfactory, counsel will ask the agency to review its position.
The Joint Chairman (Mr.Szabo): Any other questions? Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr.Szabo): Those items are the two detailed ones. It is a little easier from here.
SOR/2002-307 — MARINE LIABILITY REGULATIONS
(For text of document, see Appendix L, p. 16L:1)
Mr.Rousseau: Mr.Chairman, a change was promised in response to a concern expressed in point 1 of the letter sent by committee counsel on 20 June, 2006.
The other point raised in the letter deals with subsection3(2) of the regulations that requires that any person receiving oil must file with the minister an information return in respect of the oil. Section1 of the regulations defines ``person'' as follows: ``any individual or partnership or any public or private body, whether corporate or not.''
The question is whether we can require entities other than ``individuals or corporations'' given that subsection104(2) of the act, which establishes the fines, is applicable to ``quiconque'' — the English translation of which is ``any person'' — and does not provide the same definition. The department's response is that the relevant provisions of the act and the implementation of two international agreements do not apply just to ``individuals or corporations'' and that the act must be interpreted accordingly.
Parliament has been very clear on subsection104(2) of the act. Only ``individuals or corporations'' can be found guilty of an offence and sentenced to the designated monetary penalties. This leaves no room for interpretation.
Therefore, the department finds itself, at very least, with a problem of application because Parliament allows fines only for ``individuals or corporations.'' If the committee is in agreement, counsel will write to the department pointing out why the reply to point 2 cannot be considered satisfactory and asking the department to look at the matter again.
The Joint Chairman (Mr.Szabo): Are members agreed?
Hon. Members: Agreed.
SOR/2003-241 — REGULATIONS AMENDING THE CUSTOMS BONDED WAREHOUSES REGULATIONS
(For text of document, see Appendix M, p. 16M:1)
Mr.Bernhardt: An amendment has been promised to deal with the first point raised in the letter dated October30, 2006. The letter of March22, 2007 from the Canada Border Services Agency deals with the second point, a discretion given to the minister to cancel or suspend a licence even though a mandatory condition to the issuance of the licence is not met. The CBSA explained that this allows the minister to not suspend or cancel in cases where non-compliance is temporary or outside the control of the licensee.
This being the case, it would be easy to provide for these situations in the regulations. In that way, parameters would be placed on the minister's discretion. The suggestion could be made to the CBSA in another letter.
The Joint Chairman (Mr.Szabo): Are members agreed?
Hon. Members: Agreed.
SOR/2004-274 — REGULATIONS AMENDING THE FIREARMS LICENCES REGULATIONS
(For text of document, see Appendix N, p. 16N:1)
Mr.Bernhardt: Four points are raised, first with the Canadian Firearms Centre and then the RCMP when jurisdiction was transferred there. I suggest the explanation provided on point one is satisfactory.
Points 2 and 3 concern a discrepancy between the English and French versions on a point of drafting. The reply is to the effect that they will take these points into consideration when the opportunity arises to make amendments. If this reply is considered too vague, we could seek a firmer undertaking to make these amendments, and a time frame as to when the amendments will be made.
The fourth point concerns section21(c), which prescribes persons related to a business who must be eligible to hold a licence for a business to be eligible to hold a licence. Among these are people who have a relationship with an owner, partner, director or officer of the business, who have a direct influence on the business or who could have access to firearms that the business holds. It was suggested that this definition was broad, especially compared to the previous version of the regulations, which specifically referred to only spouse, child, parent, brother or sister of a person. The RCMP has replied that it was their intent to broaden this definition to anyone who maintains ties with the owner, director or officer of the business. This being the case, it is difficult to see how it could have been any more specifically drafted. If members concur, the explanation can be accepted.
The Joint Chairman (Mr.Szabo): Comments? On the matter of the discrepancy between the French and English versions, I assume they have commented that they will do it at a time when it might be convenient. Are we satisfied that there is no possibility that material impact could occur?
Mr.Bernhardt: In both cases, the discrepancies are fairly minor. The English version requires the name, current address and telephone number of certain people. The other version talks about the current telephone number. It was asked why there is a need to use the word ``current'' in one and not in the other? The other provision says that they must submit a photograph and it must be either in colour or in black and white. It was asked what other options are available for photographs? They are minor things but should be cleaned up.
The Joint Chairman (Mr.Szabo): They are administrative items, with no risk issues.
Mr.Lee: On this issue of ``relationship with the business,'' and the way in which the regulation of firearms has evolved, it is in the middle between an administrative piece and policing. The citizen knows that where there is always good faith on the part of the police, things will be fine. However, in a regulatory area where the police are acting, it is always better to have clarity from their point of view and from the citizen's point of view. I am reluctant to let this vague relationship issue remain unresolved. Essentially, it gives police, even though it is the Canadian Firearms Centre, the discretion to decide whether some kind of relationship exists. We should ask for more clarity. The police have a great deal of power and discretion, and their work deals directly with the rights and liberties of the citizen. In this regulation, they have even more power in an area that is, arguably, already highly regulated. A letter to the RCMP should ask whether they can further clarify the definition of the relationship.
Senator DeBané: I understand that the Minister of Public Safety, Stockwell Day, cannot give instructions to the RCMP about what kind of police investigation they should conduct but when we write to the minister about something that is wrong in the regulations, is it sufficient for the minister to say, ``I am forwarding to you the answer of the Commissioner of the RCMP about the regulation?'' Can the minister tell the RCMP that the legal adviser in the Department of Public Safety tells us that the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations has a valid point? Is the minister simply a conduit to the RCMP?
Mr.Bernhardt: In this case, we have an order. The regulations are made by the Governor-in-Council so at some point a minister must take those regulations formally to the Governor-in-Council. Ultimately, we must go through the minister.
Senator DeBané: You made your comments, and here is the letter from the minister. I trust that you would like the answer from the RCMP to be satisfactory. In other words, it is a case of the minister saying, ``Hands off, I am forwarding to you their answer.'' I wonder if the minister should not pass on a judgment also on the opinion of the committee as well.
Mr.Bernhardt: Frankly, I was a bit flattered that the minister would take it upon himself to reply to counsel personally. I am not sure that has ever happened before.
The Joint Chairman (Mr.Szabo): Those are helpful comments. We will follow up on them.
Mr.Bernhardt: We can ask whether they could be a little clearer on the point of the relationship.
Senator Moore: We could ask when those items will be cleared up.
The Joint Chairman (Mr.Szabo): Yes. Are members agreed?
Hon. Members: Agreed.
SOR/2005-373 — POLITICAL ACTIVITIES REGULATIONS
(For text of document, see Appendix O, p. 16O:1)
Mr.Bernhardt: The first point concerns the time within which the Public Service Commission must render a decision on an application by a public servant to seek nomination as a candidate. The regulation requires this decision to be made as expeditiously as possible. Given that the applicant must make a request within the fixed time of 30 days before the date on which a decision is required, the question was raised why the PSC should not be required to make a decision within a fixed time. Otherwise, the Public Service Commission could simply wait until the time for nominations was closed and then claim it was unable to make a decision sooner. The PSC states it is committed to rendering a decision on time ``in most cases'' but it cannot be bound by a fixed time because it might need more time in unusual situations. In a way, this reply misses the point, which is that taking more time will resolve the application because they will sit on the clock and run it out.
I suggest that the PSC should be asked again to provide a specific time frame. Some inconsistent terminology was also raised in the second paragraph of this point and action has been promised.
On point two, the commission indicates that the English version of section7(1) is correct. This being the case, the French version should be amended. We have a promised amendment to deal with point 3. Point 4 deals with the time frame for submitting an allegation of improper political activity. Other provisions in the regulations have set out a specific time frame for submitting something, and define when that thing would be considered submitted. This is not the case here and it was suggested that it should be the case.
The commission claims it is because, under section8, a decision does not have to be made within a set time. I suggest that at the least the provision could be clearer. If they have gone to the trouble to require something be submitted within a fixed period of time and everywhere else they have defined what submission means, then why not do the same thing here? Those points could be pursued.
The Joint Chairman (Mr.Szabo): Are members agreed to a letter?
Hon. Members: Agreed.
The Joint Chairman (Mr.Szabo): On the remaining items under Action Promised, Part Action Taken, Reply Satisfactory and Reply Satisfactory(?), counsel has assured me that none need to be dealt with before our next meeting. These follow-up items will be carried forward.
SOR/2005-267 — ADMINISTRATIVE MONETARY PENALTIES (OSFI) REGULATIONS
SOR/2005-367 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE (FISHING) REGULATIONS
SOR/2005-368 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2006-121 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
SOR/2006-126 — REGULATIONS REPEALING THE AIDS TO NAVIGATION PROTECTION REGULATIONS
SOR/2006-127 — RULE REPEALING THE SHIPPING INQUIRIES AND INVESTIGATIONS RULES
SOR/2006-128 — REGULATIONS REPEALING THE PUBLICATION OF STANDARDS REGULATIONS
SOR/2006-130 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS
SOR/2006-133 — REGULATIONS AMENDING THE PLEASURE CRAFT SEWAGE POLLUTION PREVENTION REGULATIONS
SOR/2006-137 — FRUIT REMISSION ORDER, 2006
SOR/2006-140 — ORDER 2006-66-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2006-145 — ORDER REPEALING THE ORDER DESIGNATING THE PROVINCE OF PRINCE EDWARD ISLAND FOR THE PURPOSES OF THE DEFINITION ``APPLICABLE GUIDELINES'' IN SUBSECTION 2(1) OF THE DIVORCE ACT
SOR/2006-149 — REGULATIONS AMENDING THE DESIGNATED PROVISIONS (CUSTOMS) REGULATIONS
SOR/2006-166 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2006-198 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE (FISHING) REGULATIONS
SOR/2006-212 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1330 — SIBUTRAMINE)
SOR/2006-213 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1405 — SCHEDULE F)
SOR/2006-214 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1448 — SCHEDULE F)
SOR/2006-215 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1451 — SCHEDULE F)
SOR/2006-243 — FIRST NATIONS TAX COMMISSIONER APPOINTMENT REGULATIONS
SOR/2006-335 — ORDER AMENDING THE SCHEDULE TO THE CANADA EVIDENCE ACT
SOR/2007-34 — REGULATIONS AMENDING THE PARI-MUTUEL BETTING SUPERVISION REGULATIONS
SOR/2007-36 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1439 — SCHEDULE F)
SOR/2007-37 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1445 — SCHEDULE F)
SOR/2007-38 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1449 — SCHEDULE F)
SOR/2007-39 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1452 — SCHEDULE F)
SOR/2007-40 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1463 — SCHEDULE F)
SOR/2007-41 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1481 — SCHEDULE F)
SOR/2007-55 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS
The Joint Chairman (Mr.Szabo): Under Statutory Instruments Without Comment, counsel is satisfied. If members have no comments on these matters, is it agreed that these files be closed?
Hon. Members: Agreed.
The Joint Chairman (Mr.Szabo): Our next meeting is scheduled for September20.
The committee adjourned.