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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 1 - Evidence, June 1, 2006

OTTAWA, Thursday, June 1, 2006

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:39 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Paul Szabo (Joint Chairmen) in the chair.


The Joint Chairman (Senator Eyton): I call the meeting to order and, as a rookie, I happily turn it over to the joint chairman.

The Joint Chairman (Mr. Szabo): Good morning, colleagues. I would like to divert a little bit from the agenda that was circulated to you. I wanted to read to you a letter that is very important to our committee, and we will have some action on this soon.

It says:

Dear Joint Chairmen,

This letter is to advise you that I have been offered a three-year assignment at Elections Canada on an interchange basis and I have decided to accept this new challenge. Accordingly, I will not be able to continue to serve the Joint Committee as its General Counsel after June 30, 2006.

As you may imagine, this was not an easy decision for me to make. As of last April, I have had the privilege of serving the Standing Joint Committee for the Scrutiny of Regulations and its members for twenty-four years. This has truly been my life's work and my belief in the importance of the parliamentary scrutiny function is as strong today as it was when I began working for the Committee. There is no question in my mind that the Committee and its members have made a significant contribution towards the better governance of Canadians since 1976, and I am grateful to have had an opportunity to participate in that effort. I am equally grateful for the professional and personal support I have received from so many fine parliamentarians who have served on the Joint Committee over the years.

I suggest that you consider calling a meeting of the Subcommittee on Agenda and Procedure as early as possible to discuss the re-arrangement of duties within the Committee's legal secretariat. The steering committee could then present its recommendations to the full Committee at their scheduled meeting of June 15th.


François-R. Bernier

General Counsel

Senator Harb: We do not have to accept it, right?

The Joint Chairman (Mr. Szabo): You had better speak to his wife.

What I am going to propose, gentlemen, is somewhat unusual, but we will deal with the business before us on the agenda. As the last item, I would like to request the approval of the members to go in camera with Mr. Bernier to have some preliminary discussions or information for the members' purposes. Then Mr. Bernier will be excused and the members will have an opportunity to add any further matters that they feel are appropriate leading up to our full process, whatever we decide that may be. I can tell you that within our authority, although we do not hire the person — the Library of Parliament does — we approve the person as our counsel, so we have a decision to take.

If that is acceptable to members, we will do that.

The Joint Chairman (Senator Eyton): Could I add that —

Mr. Lee: On a point of order?

The Joint Chairman (Senator Eyton): Sure.

Mr. Lee: Will we have another meeting before Mr. Bernier's departure? I see the need to put on the record some comments about his service here. If we have another opportunity with Mr. Bernier here prior to the summer break, then there is no need to burden the agenda today with that. We can do it at a later time.

The Joint Chairman (Mr. Szabo): We have a meeting scheduled for June 15. There are some matters on which we should, with the approval of the committee, start the process because we are dealing with a tight time frame — just in case something comes up.

However, I think we want to spend a brief time to identify those things that we have to do from Mr. Bernier's perspective, and then to set our action plan as to how we find a replacement for that position.

I would like some comments, certainly not to make a decision but to give all honourable members a chance. We will have a steering committee meeting to do a little bit of the work; we will need to have that next week. In the meantime, since all members will not be on the steering committee, I think it is important, particularly for those who have been with the committee for some time, to have an opportunity as well for input to the steering committee's consideration as they do their deliberations.

If that is acceptable, we will move on.

The Joint Chairman (Senator Eyton): We all have the agenda in front of us. I suppose we will follow the order that appears there. I would like anyone to correct, instruct or help me and my joint chairman as we go through the agenda, knowing that many of you have years of experience and are more familiar with the process.


François-R. Bernier, General Counsel to the Committee: Members will have had the opportunity to read the committee's Report No. 75, in which the committee moved the disallowance of section 39(2) of the Ontario Fishery Regulations, 1989, for reasons detailed in appendix C to that report.

The committee has taken the position that this provision is not authorized by Parliament under the Fisheries Act, as it purports to create an offence without express authority to do so having been granted by Parliament. The committee also found in its report that the provision trespasses unduly on rights and liberties and represents an unusual and unexpected use of the enabling authority.

Shortly before this disallowance report was made to the Houses, the Minister of Fisheries and Oceans at the time introduced Bill C-52, a copy of which also forms part of the material that was circulated. That bill would have enacted a provision similar to section 39(2) but as part of the Fisheries Act itself, so that section 36(2) of the regulations would have become unnecessary. Based on the expectation that this bill would be adopted, the government then moved that the disallowance report of this committee not be adopted by the House. I note here that the report was deemed to have been adopted in the Senate. On June 8, 2005, the House of Commons adopted the motion rejecting the committee's disallowance and referring the matter back to this committee.

However, Bill C-52 was not adopted, in part because the official opposition opposed the concept of making the contravention of an administrative document, such as a licence, punishable in the same manner as though it were a provision of the act or regulations. This is referred to in the discussion that took place in committee following those events on June 16, an excerpt of which has been attached to the material.

It is one year later and the illegal section 36(2) of the Ontario Fishery Regulations still stands unrevoked and no legislative correction has been brought forward. Presumably, this means that fishers continue, at least in the committee's perspective, to be unlawfully punished for breach of the terms and conditions of their licences. It is also important to note that this regulation is not isolated. The use of the regulatory technique detailed in the committee's report had already spread to a number of other regulations made under the Fisheries Act and is now making its way to regulations made under other statutes as well.

The purpose of these regulatory provisions is the same in all cases. It is to do indirectly what could not be done directly, namely, to impose criminal liability for the breach of a term or condition of a licence. This liability requires express statutory authority, which is lacking in all of those cases.

Given the failure of the government to secure the adoption of Bill C-52 in the previous Parliament, I suggest that the committee consider moving forward with the disallowance of the regulation. Under the provisions of the Statutory Instruments Act the committee cannot table the disallowance report without first giving 30 days notice of the intent to do so to the regulation-making authority. If notice were given today, the committee would then be in a position to table a report in the fall of 2006.

In that regard, I should emphasize, for the benefit of new members, that the committee is not bound by any notice that it gives, so that after giving notice, the committee retains the discretion not to proceed with disallowance.

The Joint Chairman (Mr. Szabo): Thank you, Mr. Bernier. This matter is extremely important.

Mr. Wappel: The rationale for the rejection of the committee's disallowance was more or less an assurance that the government would do everything it could to pass Bill C-52, which, in the government's opinion, would solve the problem. As I recall the history of the matter, at the last minute the official opposition decided that it did not want to support the quick passage of the bill and, therefore, we ran out of time, which was unfortunate.

However, it is curious that the person who led the charge in the official opposition not to support the bill is now the Minister of Fisheries and Oceans, the Honourable Loyola Hearn. It will be interesting to see how the new minister handles being on the other side of the issue in this Parliament. Mr. Bernier's suggestion to give 30 days' notice is excellent because it is unlikely, though not impossible, that the Houses would be sitting at that time, June 30. That notice would give the Minister of Fisheries and Oceans time during the summer recess to meet with his officials to cogitate on this matter before Parliament resumes and, hopefully, come to a resolution or bring forward a bill that we could study in committee. The approach will depend on the Minister of Fisheries and Oceans, given that he will likely write to the committee before it proceeds with the tabling of a disallowance report. The suggestion to give 30 days' notice is good, given the timeframe we are in. I would suggest that course of action for the committee.

Mr. Lee: I agree with Mr. Wappel and with counsel. There are a couple of contextual items. Ordinarily at the beginning of the session of Parliament, I would not have proceeded immediately to a disallowance. Normally, the committee would check with the new minister and the new government to ascertain their intentions. However, in this case, as has been pointed out, the new fisheries minister is not a stranger to the file. For reasons that escape me in terms of his logical thoughts on this at the time, he was the person who objected to quick passage of the bill that had been introduced by the then government.

As well, the government had already agreed with where this thing should go. The government had introduced a bill that rectified that one serious problem identified in the report of the committee. The government having reached that conclusion, there is no reason for the committee not to proceed post-haste to its previous position and to seek reasonably prompt passage of Bill C-52. If the current government has a problem with it, although I do not know why it would have, the committee could take note of it in due course.

If the committee were to give notice now, should members choose to do so and which I would support, it would take us to June 30, when the Houses would likely have risen for the summer recess. Therefore, the amount of time for the government to figure out what it wants to do stretches out to four months. It is important to note that one of the great risks the committee encountered in this file, as in so many other files when it approaches a disallowance, is that disallowing a particular regulation might undermine or remove a linchpin in a regulatory regime that has good public purpose. It is not the intention of the committee to undermine the regulatory regime but disallowing the regulation might have that effect if the government is not able to remediate quickly the removal of the regulation or the problem.

In this case, it was put to us by the then fisheries minister and by the minister responsible for fisheries in Ontario that disallowing the regulation would undermine the enforcement regime for 1,500 to 2,000 people licensed in the Ontario fishery. That is a big step to take if disallowing a regulation could create disorder on ``civvy street.''

As it stands, the Ontario fishery will not be affected this summer. If disallowance does occur, the fishers will have had their high season without changes. I see counsel making notes. Having said that, the committee should never be seen as acquiescing to a government regulation that it deems illegal, ultra vires. Even though the regulation might have good intent, we still have rule of law in this country.

Mr. Dewar: As a point of clarification for someone who is new, has the new minister been approached? Has there been communication with the new minister or the ministry? Could that communication be part of the action as well, to let him know the concerns — notwithstanding the past on this, but to officially inquire as to what the intent is?

Second, are there exemptions to the process that presently exists or does this situation apply to all fishers? This point is just for information, because there has been litigation in other areas in fisheries, and I am wondering if there are any exemptions in terms of the phenomenon we are dealing with presently.

Mr. Bernier: I honestly have not followed your question, Mr. Dewar.

Mr. Dewar: I apologize; I am new to this file. We are talking here about people who are presently in the fisheries who potentially could be in violation of regulations. Are there are any exemptions to that or does it apply to everyone?

Mr. Bernier: If I may, I will provide an answer and perhaps make a comment on Mr. Lee's point on enforcement. Traditionally, the Fisheries Act provides an enforcement mechanism to ensure observance of terms and conditions of licences. The mechanism is right in the act and Parliament has given the executive the authority to make regulations regarding the suspension and cancellation of licences, if a fisher disobeys or fails to obey.

Suspension and cancellation are traditionally referred to as administrative sanctions, as opposed to penal sanctions. Penal sanctions involve the imposition of a fine or imprisonment, which is traditionally reserved for breaches of the law. The terms and conditions of a licence are not law. They are an administrative document issued by a public servant when the public servant authorizes the activity.

For 121 years, the federal government — including all provinces — found it possible to administer the licensing regime using the administrative sanctions contemplated in the act, that is, suspension or cancellation of licences. In 1989, some smart person at Fisheries decided that it would be easier to enforce licences by using fines. Of course, we are all in the age here of ticket offences and so on.

The act states that the penal sanctions apply only for breaches of the act and regulations. In order to make the breach or contravention of a term condition of a licence punishable in the same manner, the department enacted section 36(2), which contains a rule that says everyone shall obey the terms and conditions of the licences. Therefore, if you breach the condition of the licence, you automatically breach this regulation and you can be charged with breaching the regulation.

That provision, in this case, applies to all fishing licences issued in Ontario. Similar provisions have been inserted, as I mentioned, in other fishery regulations — those from Quebec, Manitoba and so on. Unfortunately, this way of avoiding having to go to Parliament to ask authority to impose penal sanctions has spread in other areas, under other statutes.

The point in all cases is that it is established law that only Parliament can impose penal sanctions. It is up to Parliament to decide what conduct will warrant a fine or imprisonment. In this case, Parliament never gave that authorization. In fairness to the opposition, as I understood it in some of the speeches that were given at the time Bill C-52 was debated in the House, some members — at least of the official opposition at the time — had a problem with the concept itself. They found it objectionable to extend penal sanctions to a breach of an administrative document. They felt that authority should not be granted, in that the Department of Fisheries and Oceans should continue to rely on administrative sanctions, that is, suspension or cancellation.

The Joint Chairman (Mr. Szabo): Can I interrupt you there? Mr. Dewar, are we making progress on answering your question?

Mr. Dewar: Yes: The only question I had outstanding was whether the new minister had been approached.

Mr. Bernier: The file had to come back to the committee, Mr. Dewar. Of course, if notice of disallowance were to be given by the committee, it would be given to the minister. For purposes of the act, he is the regulation-making authority.

Mr. Wappel: To answer Mr. Dewar's question, informally, after the last meeting, I spoke directly with the Minister of Fisheries and Oceans and informed him that this file would be at this meeting. Again, this discussion was informal. He smiled knowingly and said, ``Yes, I will be discussing it tonight with my officials''; so I am sure he is well aware of the file.

Mr. Epp: I have a couple of questions for counsel. First, in his opinion, would the bill proposed by the then- government have solved the problem?

Senator Harb: Yes and no.

Mr. Epp: I did not say that.

Mr. Bernier: If Parliament had adopted the bill, then Parliament would have decided to impose criminal sanctions for breach of an administrative document. It is not for me to comment. I assume this decision represents the wisdom of Parliament. The bill would then be law, and this provision of the regulations would be revoked as no longer being necessary.

Mr. Epp: In other words, the bill as proposed would simply, in one sweep, bring all the regulations into a penal- sanction type of thing, right?

Mr. Bernier: Parliament is sovereign; Parliament can do as it wishes.

Mr. Epp: Is that what this bill would propose to do?

Mr. Bernier: That is correct.

Mr. Epp: I think we need to be cautious as we move forward in this particular file, because this bill is also precedent setting. We have the advantage in this country right now of having, among other things, this committee to come to if regulations are illegal — if I can use that word. If this bill becomes a precedent — that in every bill from now on the government simply says any regulations that the minister brings forward have the full strength and force of the law and all the sanctions — we may be entering into a new era in regulatory government that may not be positive.

Senator Bryden: I want to make a couple of comments. The bill to solve the immediate problem is now dead; it is not there.

I think many people, including myself — as an aside here — believe that it is not necessary to have criminal sanctions in order to enforce licensing administrative orders. Since the bill is gone, a disallowance order would simply make it the case that no criminal sanction regulation is enforceable.

Mostly, a regulation such as this is used as a stick to get people to do what the warden wants them to do because they are under threat of a criminal sanction. If it were to go to court, the court would say the rule is illegal. It is an ultra vires rule, and therefore the person would not be found guilty by virtually any court in the land because it is not a proper criminal citation to use. The point is to put DFO on notice that a disallowance order will be filed so that the government either reintroduces a bill like Bill C-52 to make it a Parliamentary statute law or, indeed, the regulation that has been used as though it were a properly enacted criminal law will be gone.

My other point is on timing and the required notice of disallowance. One of the biggest problems the committee has had with this regulation is the length of time it has been on the books — it almost has squatters' rights. The committee first looked at the regulation in 1998. On every occasion, its resolution is interrupted by something. If the committee were to serve notice of the disallowance, it would have some jump on bringing resolution to the problem perhaps within the next six months. The committee would not be unfair to anyone in doing that. I would be pleased to move that notice of disallowance proceeding be served on the Department of Fisheries and Oceans. That would give the minister and officials time over the summer recess to determine a course of action. We do not have to proceed if a better solution is put forward but at least it gives some reason for people to act expeditiously. In this business it is easy to get involved in a long chain of letters — some in this case are 15 or 20 years old — that are still under discussion. There is no excuse for taking this length of time to find a resolution to this regulation.

The Joint Chairman (Mr. Szabo): Senator Bryden would like to move a motion to give notice. Counsel is recommending that we give 30 days' notice as opposed to notice that we will do a 30 days' notice. Is that different?

Senator Bryden: I move the motion that the committee serves a 30 days' notice.


Mr. Asselin: I have a question for Mr. Bernier. You explained at the outset that the regulations, if adopted without amendment, would violate people's rights. When a government adopts an act, the latter provides for regulations associated with the license. The fisher who has a license must comply with the regulations. However, if the regulations are erroneous, the fisher who is charged with violating the regulations issued along with the license would still have some recourse available in order to argue that the regulations violate his rights. This is a catch-22 situation. If we adopt the act and establish regulations associated with a license, we must take care to ensure that the fisher has other options available other than complying with the regulations. Otherwise, that person will invoke his rights. Have I understood the situation correctly?

Mr. Bernier: It is important to be clear about this. All license holders must comply with the regulations because they have force of law. They are subordinate legislation. This is the focus of this committee. In this instance, we are talking about the terms and conditions associated with a license. These conditions do not have force of law. A license is an administrative document issued by a government employee listing various licensing conditions which the holder must abide by in order to avail himself of the right to fish.

The problem is not applying criminal sanctions for failure to comply with a regulation or law. The problem is claiming that such sanctions apply when a person fails to comply with the terms and conditions set out in a license, such as no fishing after 5 p.m. or before a particular hour in the morning. The license, I remind you, is an administrative document. Only Parliament can impose criminal sanctions on citizens or can authorize a regulatory authority to impose sanctions. No such authorization is provided for in the Fisheries Act. As explained in the report, the Fisheries Act only provides for the imposition of criminal sanctions in cases of non-compliance with the Fisheries Act or fisheries regulations. This is a case of talking about doing indirectly what the legislation does not allow us to do directly, namely apply criminal sanctions in cases of non-compliance with licensing terms and conditions.

Mr. Asselin: Thank you.


The Joint Chairman (Mr. Szabo): We have had a good discussion. When I first read the issue, it appeared that one of the criteria in the review of regulations that has not been met is that there is no enabling provision within the bill to justify the regulation. That is a violation of the fundamental criteria of the review of statutory regulations. Therefore, the matter seems to be one that the committee should proceed. Senator Bryden, is it your wish to move the motion that the committee proceed with a disallowance notice?

Senator Bryden: I so move.

The Joint Chairman (Mr. Szabo): Are members agreed?

Hon. Members: Agreed.




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

Peter Bernhardt, Counsel to the Committee: These regulations were made pursuant to the Food and Drugs Act, thus reflecting the conclusion that human semen processed for assisted conception constitutes a drug within the meaning of that act. The act defines ``drug'' to include a substance for use in diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state or its symptoms; or in restoring, correcting or modifying organic functions. It was questioned whether semen can be said to fall within this definition. In its reply, the Department of Health cites a number of dictionaries that define the term ``drug'' in terms of a substance that has an effect on the body or that modifies the body's organic functions. It argues that since pregnancy modifies a woman's organic functions, semen constitutes a drug.

It is difficult to take this line of reasoning seriously but, given the source, I suppose we must do so. This being the case, a few observations can be made. If semen is a drug when used in assisted conception, would it not follow that a human embryo is a drug when used for in vitro fertilization. As well, would not semen also be a drug in the case of unassisted conception? Characterizing the act of conception as the administering of a drug seems more than farfetched. Using the department's reasoning, even water would be a drug because drinking too much of it could affect the organic functioning of the body.

As well, the department attempts to make a comparison with contraceptives as another class of drug that modifies a woman's organic functions. The characterization of becoming pregnant through assisted conception as modifying a woman's organic functioning in the same way as contraceptives can best be characterized as flawed reasoning.

Since 2004, the Assisted Human Reproduction Act provides clear authority to regulate these matters. One might wonder, therefore, why the current regulation would not simply be revoked and re-enacted under this statute.

There are subsidiary matters as well. Point two of the correspondence deals with the requirement that certain persons provide additional information that may be required to establish that the regulations have been complied with. The department's reply admits that there is no express authority for this requirement but argues that it can be characterized as being respecting the sale of a drug.

I suggest that far from regulating sales, the purpose of such a provision is enforcement. To suggest it is merely incidental to the regulating of sales ignores the fact that this type of provision imposes a substantive legal duty.

Members who have been on the committee for some time know that this is not the first time that the committee has had to point out to a regulation-making authority that record-keeping and information-furnishing requirements are not simply incident to some general enabling power.

Points three and four are similar. They also deal mainly with information-gathering requirements. Here the department's arguments may have more of a foundation, but these requirements presumes that semen can be characterized as a drug in the first place. If one concludes that it cannot be, all these other points become moot. Given that, I suggest a further letter pursuing this basic issue with the department.

Mr. Lee: I agree with counsel. I think that we should be firm in our position here. The fact that the definition of ``drug'' in the statute is not exhaustive means that bureaucrats have an opportunity to try to expand the definition.

They have done a wonderful job here. I give them credit for reaching out to all the dictionaries that they could get their hands on to expand on what is a drug. However, I agree with counsel's analogies that if semen is a drug, if you try to hydrate a body with water, water would be a drug. If you gave the body a blood transfusion, blood would be a drug under the definition that the department urges.

I do not buy it. If the government wants to regulate semen for this purpose, the government should have legislation that allows that, rather than using the dictionary. This answer amounts to government bureaucracy by dictionary. I will stop there and say that I would support firming up our position and notifying the minister.

Mr. Wappel: Briefly, I agree with Mr. Lee and counsel. Over the years, we have had many fascinating regulations about things that one would never think the government would try to regulate. We have seen reindeer regulations, honeybee regulations and all kinds of other things. I simply could not believe the title of this regulation. It blew me away. Then, in reading the argument that semen is a drug, I just said, ``Oh, come on.''

I nominate this particular regulation as the most unique and fascinating one I have seen the government try to regulate in my 18 years on this committee.

Senator Moore: Are we writing to the minister?

The Joint Chairman (Senator Eyton): I was going to address that question. We have ``reply unsatisfactory''; what happens now?

Mr. Bernhardt: The next level depends on where the members wish to go. We could write back to their officials in the department. In this case, the suggestion is that we kick it up and have the chairmen write directly to the minister, and that a letter be drafted for that purpose.

The Joint Chairman (Mr. Szabo): I had substantial involvement in the reproductive technologies bill. We will see a lot of regulations coming out of that bill. In fact, it addresses the import and export of gametes, including semen — the purchase, sale and prohibition, subject to regulations. I think there are 24 clauses in that bill that require regulations.

The bill has received Royal Assent, but only portions of it are proclaimed. Those portions are the prohibitions, such as on cloning or mixing animal and human chimera. The largest part of the bill is the controlled activities, and that deals with some of these areas we were just talking about.

It is in process and has received Royal Assent, but it is waiting for regulations that still have to go, under the legislation, to the health committee for review and comment. That has not happened yet, although there have been draft regulations, and some of those clauses have been published for comment. This process will take some time.

It appears whatever happens here must be cognizant and compatible with what is being proposed and, in fact, has been passed by Parliament but is waiting for these regulations.

We could have fun here, going back to Ms. Caroline Weber, the Director General at Health Canada who wrote the response to us. However, I think the committee's reaction is such that we do not want to get into the debate here. We have to go to the minister. We have to make it clear that this reply is unacceptable; but we would also like to have their response incorporate commentary on the implications vis-à-vis the reproductive technologies act and the compatibility of their draft regulations and the timing.

This committee ought to know their intentions because we do not want to go back and forth debating whether semen is a drug. That is an issue we cannot accept. We should tell them we do not want to talk about that anymore; let us move on. I think we have to be assertive in our letter that we want to move forward on this matter expeditiously. This thing took an awfully long time.

Are there any further comments from members? We will write the letter to the minister.

Mr. Epp: My question deals with the issue as opposed to the process. It is obvious that the use of a human substance to induce a pregnancy is somewhat different because of the necessity of disease control and that type of thing.

Instead of classifying the control and licensing into the same area as broadly as regulated in the drugs, because this is not a drug, would they have to write parallel and similar regulations and rules in the legislation? Is that the issue? I am not sure I understand it.

Mr. Bernhardt: We are looking here at regulations that were first made in 1996, and the Human Assisted Reproductive Act was passed in 2004. What probably happened was that there was pressure on the department to do something in this area. It looked around and found the one thing it could hang on to, and proceeded to try and fit a round peg into a square hole.

We may now be seeing from the department a case of trying to buy some time — fight as a delaying tactic until the new act is up and running, then simply flip everything over into the new statute. When you see this tissue-paper-thin argument, you get the feeling this is a tactic to delay things until they have their new regime up and running, and ready to step into the place of this.

Mr. Epp: At the same time, it fills a necessary void — without control, we have HIV and all that other stuff.

Mr. Bernhardt: As my Hungarian grandmother used to say, ``The road to Hell is paved with good intentions.''

The Joint Chairman (Mr. Szabo): There is a recommendation from Mr. Lee that we write to the minister with a clear understanding that we reject the argument. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Eyton): We have dealt with ``reply unsatisfactory.'' Let us turn the page to ``progress.''


Mr. Bernier: The committee's examination of the Public Lands Mineral Regulations brought to light the fact that those regulations, as well as an undetermined number of additional federal regulations, which included the income tax regulations, were unconstitutional on the ground that they had not been enacted in both official languages, as required by section 133 of the Constitution Act, 1867.

The matter was eventually reported to the Houses by the committee in its Report 59 in 1996. The government response to that report was wholly unsatisfactory and the committee continued to press its case.

In the Senate on March 5, 2002, the government introduced Bill S-41, an act to re-enact legislative instruments enacted in only one official language. The then joint chairmen of the committee and I appeared before the Senate committee considering the bill, and amendments were subsequently obtained to address outstanding concerns of the committee.

I have included in the material a copy of Chapter 20 of the Statutes of Canada 2002. That act re-enacts in both official languages all regulations originally made in only one language, but published in both languages, and makes that re-enactment retroactive.

Section 4 of the act deals with regulations that were made in one official language only, and therefore unconstitutional, and that were published either in only one language or not published at all. Those regulations are maintained in force until June 2008 and will be repealed on that date unless re-enacted in both official languages before that time.

In section 9 of the act, the task is given to the Minister of Justice, who has until June 2007, to review the operation of section 4 and to report to the House within one year after completion of that review, which will be June 13, 2008.

For the information of the committee, I inquired as to the current status of the section 9 review. The reply provides that information. I understand from that reply that the department does not expect the section 9 review to be completed any sooner than the maximum five years allowed for in the act. If it is agreeable, counsel will continue to monitor the progress of this review and update the committee from time to time.

Hon. Members: Agreed.


Mr. Bernier: This issue concerns the revocation of section 26 of the Pest Control Products Regulations, a section that imposes record-keeping requirements without proper authority having been provided in the enabling statute. When this file was last before the committee on November 3, 2005, the decision was made to inform the DIO that unless the department's latest commitment to pre-publish the new regulations that fall was met, the committee would consider disallowing section 26. Draft regulations were published in November 2005.

In March 2006, I inquired as to why the proposed regulations had not been enacted. The explanation is before the committee in the March 28 letter from Mr. Frank Fedyk, Acting Director General, Policy, Planning and Priorities Directorate, Health Canada. With the agreement of members, we will continue to monitor progress and, in the event that the new regulations are not finalized as forecast, we will bring the file back to the committee.

Hon. Members: Agreed.


Mr. Bernier: The committee requested a minor drafting correction which will be made in the regulations that are designed to replace the current ones. In his letter of April 10, Mr. William McCullough, Director General, Executive Services, Transport Canada, states his expectation that the new regulations will be pre-published this summer. We propose to continue to monitor the file in the usual way.

Hon. Members: Agreed.


Mr. Bernhardt: As outlined in the last letter from the Canadian Nuclear Safety Commission, work on the promised amendments to these regulations seems to be moving along. At this time, it would simply be a matter of writing to ask what further progress has been made since fall 2005.

Hon. Members: Agreed.


Mr. Bernhardt: We suggest a letter to the CNSC requesting an update on progress.

Hon. Members: Agreed.


Mr. Bernhardt: This is a simple matter of following up on the progress of promised amendments.

Hon. Members: Agreed.

Mr. Lee: The previous three files pertain to the nuclear envelope. Are we receiving reasonable cooperation from them? When three items such as these arise together, one has to wonder whether the files are being moved forward expeditiously.

Mr. Bernhardt: Those three files are the only ones with the Canadian Nuclear Safety Commission. It is simply a case of pulling them out of the same filing cabinet and putting them on the agenda. We are dealing with drafting errors only, on which progress is being made. There are no matters of legality involved.


Mr. Bernier: I mention at the outset that this file concerns a drafting correction in the English version of section 72 of the standing order. In 2002, the committee was informed that the order would be updated within two years and a required correction made at that time. That did not take place. On March 24, 2005, the committee was told that the order was part of a review process that would likely be concluded before March 1, 2006. However, the latest letter from the RCMP indicates that this has changed and that it was recently decided to defer any amendments until 2008. Hence, there is the question mark to the heading ``Progress.''

On the one hand, previously made commitments are being ignored. On the other hand, we are talking about a single amendment that concerns only the drafting of one version. The drafting deficiency is not such as to mislead those subject to the Commission's Standing Order. The question is: Does the committee agree to wait until 2008 on the understanding, perhaps, that it then expects the amendment to proceed without further delay.

Senator Moore: Why would they not simply make the correction? It is such a nominal thing and does not hurt anyone. Why has it not been attended to? Why do we have to wait another couple of years? That is unsatisfactory.

Mr. Bernier: It is almost tradition in the case of minor drafting corrections — you get it coming and going. On the one hand, one could argue that they should be corrected quickly. On the other hand, one could argue that because they are minor, they can wait until more changes have to made and do them at one time. I cannot answer the specific question any better than that.

Senator Moore: What would members and counsel suggest? Should the committee simply wait another two years?

The Joint Chairman (Mr. Szabo): The committee could establish an appetite or a tolerance level for playing tag with correspondence. This matter dates back to 2002 when we were told it would be two years. Many people have been involved in this matter, and the file cabinets have been filling up. There comes a point, a threshold, that the committee might want to consider: at what point do we want to label an item, ``Unsatisfactory Progress, to be expedited under Code Red conditions'' — that we want it off our file one way or the another.

Senator Moore: So what do we do, sit here and wait again?

The Joint Chairman (Mr. Szabo): Senator Moore, do you have a recommendation?

Senator Moore: Perhaps the committee could write to the department telling them to fix it now.

Mr. Epp: The Commissioner of the RCMP made a statement in 2002 that it would be corrected in two years by 2004, and it is now 2006. It is my opinion that the committee would be in error to accept another two-year delay.

Senator Bryden: One of the devices we have used to hurry these things up a bit is that unless there is action within a reasonable period of time, the committee will invite whoever the person is to appear before us and explain why.

Hon. Members: Hear, hear!

The Joint Chairman (Mr. Szabo): Is it agreed?

Senator Bryden: I would include that in the letter.

The Joint Chairman (Mr. Szabo): We will write a letter expressing the committee's dismay that this matter has not been disposed of within a reasonable period of time despite our best efforts, and that should the matter not be resolved, et cetera. Is that agreed?

Hon. Members: Agreed.

Mr. Bernier: Perhaps I could draft a letter that if, in reply, a commitment cannot be given to proceed now, then the committee would wish to invite a representative of the RCMP to come and explain why.

Senator Moore: The commissioner.

Mr. Wappel: These are the commissioner's regulations, standing orders. It should be the commissioner himself.

Mr. Bernier: I suggest that the chairmen write to the commissioner as opposed to counsel to the DIO.

The Joint Chairman (Mr. Szabo): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Agreed and so ordered.

The Joint Chairman (Senator Eyton): It is getting to be fun now.

The Joint Chairman (Mr. Szabo): It should be; normally, this is like eating sand.



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

Mr. Bernier: This file is the first of two files in which the chairmen were required to write to the responsible minister to obtain the reply. The minister's reply of May 17 deals with both the crewing regulations and the marine certification regulations. I will deal with the crewing regulations first.

The issues raised in connection with those regulations are set out in Mr. Bernhardt's letter of August 25, 2003. The minister's replies on the issues dealt with in items number 1 to 12, the second paragraph of item 13, and items 14 to 19 are, in our view, either satisfactory or express an undertaking to amend the regulations to address the concerns that were raised.

On the first paragraph of item 13, item 20 and items 22 to 25, counsel believes the reply simply confirmed the need for amendments designed to clarify the operation of the relevant provisions. We propose, on those points, to write again to the department.

Taking section 73(1) as an example of this class of concerns, its English version refers to a situation in which a reviewing physician confirms or issues a medical certificate indicating the seafarer is unfit. The French version refers only to the situation in which a revised certificate is issued. The French version apparently does not account for the situation in which a reviewing physician simply confirms the existing certificate that the physician is reviewing.

The answer from the department was that they agreed that there is a slight discrepancy between the two versions, but they feel the meanings are equivalent and that, apparently, nothing should be done. Our view is that given that other amendments need to be made and have been promised, we do not see why the department should not also include amendments to remove this slight discrepancy and any others.

With regard to item 21, concerning section 63.1(1), a medical certificate issued to a seafarer can certify that the seafarer is fit for duty or it can certify that he is not. Section 63.1(1) requires a seafarer to meet the fitness requirements of that section to obtain the certificate.

Mr. Bernhardt pointed out that this would preclude the issue of a certificate stating the seafarer is not fit for duty, because a seafarer not being fit for duty does not meet the requirements of section 63.1; and as that section is drafted, no certificate could be issued to him.

The reply from the minister, which is item 21 at page 3 of his letter of May 17, indicates that this point was apparently not understood and it will need to be made again.

The Joint Chairman (Mr. Szabo): Do we have a recommendation for action?

Mr. Bernier: The recommendation is to write to the department in this case to clear up as many of those issues as possible.

The Joint Chairman (Mr. Szabo): Is it agreed?

Hon. Members: Agreed.



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

Mr. Bernhardt: Concerning the second set of regulations dealt with in the minister's letter, 14 points were raised.

Amendments have been promised to address points 1, 5, 6, 7, 10, 11, 12 and 13. It is suggested the department's reply on points 2 and 9 can be taken as satisfactory, such that no further action is required on those.

On points 4 and 8, the reply from the department seems to confirm that certain matters of drafting need to be addressed but there is no express statement that this will be done. Therefore, addressing these drafting matter should probably be confirmed through a further letter.

On point 3, which is a drafting matter, the committee is told that one of the relevant provisions could safely be deleted. Again, perhaps it should be asked whether this is what will be done or whether some other corrective action is proposed by the department.

The last point is 14. This point deals with the authority for certain fees for documents. The department's reply cites section 138 of the Canada Shipping Act as authority. This provision permits the minister to fix a fee for the replacement of documents lost by a master or seaman through their own fault. What we have here, however, are not fees fixed by the minister but a regulation made by the Governor-in-Council. The department seems to be confused as to exactly what it is doing here, so this point needs to be pursued through further correspondence as well.

In the last paragraph of the letter, it is proposed that amendments to these and other Canada Shipping Act regulations be deferred until a new regulatory regime is put in place; this change was to occur in 2006. The previous committee did not have the opportunity to deal with this request, but apparently it is now anticipated that the new regulations will be prepublished this summer. In view of this, at this time it would simply be a matter of writing again to the department and hopefully getting satisfactory undertakings on the points that remain.

The Joint Chairman (Mr. Szabo): Further correspondence — is it agreed?

Hon. Members: Agreed.


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

Mr. Bernhardt: In point 1 of counsel's letter of December 12, 2005, it was suggested that certain wording in the French version of section 1(4) should conform to that used in the act itself. The reply is to the effect that this suggestion will be borne in mind in the future. However, since other amendments are promised in any event, one wonders why this one should not also be made at the same time and I suggest this question be put to the department.

The department has indicated it was consulting with its drafters on the first part of point 4, as well as points 9 and 10, and the results of these consultations could be sought at the same time as well. Action has been promised on all the other points, so it is simply a case of monitoring the progress of those.

The Joint Chairman (Mr. Szabo): Is it agreed?

Hon. Members: Agreed.


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

Mr. Bernhardt: As indicated in the covering note, this instrument made 20 amendments that were promised to the committee. In turn, the amendments gave rise to three new questions.

An amendment was promised to resolve the first one. This has been made by SOR/2005-326. The second and third points concern possible discrepancies between the English and French versions of certain provisions.

The department advanced a reading of the French versions that is consistent with the English, but it results in a somewhat unusual situation. I will not go into that in detail. It is explained in the correspondence. This situation was pointed out to the department. The department has accepted that this inconsistency is the case and that it may make life more difficult, but it seems willing to live with that. This being the case, I suppose the committee could accept it as well.

One final point of drafting that was raised concerns the fact that different formulations are used in the French version of several provisions. Transport Canada advised that this is correct. This being the case, it should be suggested to the department that there will be a need to amend the English version of these provisions because the English version uses identical language in each case. If you need a different formulation in the French, presumably you would need a different formulation in the English as well. That point would be pursued in a further letter to the department.

The Joint Chairman (Mr. Szabo): Is it agreed?

Hon. Members: Agreed.


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

Mr. Bernhardt: At issue are certain ultra vires provisions that purport to grant blanket permissions to buy, sell or transport certain commodities, as the case may be. Authority to make these kinds of provisions was subsequently added to the Canadian Wheat Board Act. This authority does not have the effect of validating provisions that were unlawful at the time they were made. The solution proposed then was to revoke the provisions in question and remake them under the new enabling authorities. The CWB accepted to do this almost one year ago. Perhaps it is time to ask when the committee can expect this corrective action to be taken. I suggest that the committee pursue this with the CWB.

The Joint Chairman (Senator Eyton): Is it agreed?

Hon. Members: Agreed.





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

Mr. Bernier: Mr. Rousseau had expressed a concern about possible retroactivity of provisions authorizing additional payments for grains delivered to the Canadian Wheat Board. The explanation is that the language used is intended to identify a particular crop to which payments relate rather than to authorize retroactive payments. The general counsel to the CWB has agreed to make certain changes in the terminology used in those and future provisions to help anyone to avoid coming to that erroneous conclusion. A better explanation of that process will also be provided in the regulatory impact analysis statement. While these changes are not strictly speaking necessary, they are certainly helpful and will no doubt assist in preventing anyone from reaching the wrong conclusion as to what is done in this respect.

This is satisfactory in my view. If members agree, the file can be closed.

The Joint Chairman (Mr. Szabo): Is it agreed?

Hon. Members: Agreed.



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


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


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


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


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


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


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


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


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

Mr. Bernier: With the permission of the committee, and as has been the practice of the committee, I will deal with all items under the heading ``Action Promised'' and ``Action Taken'' as a group.

Under ``Action Promised,'' the listed files represent two undertakings to revoke ultra vires provisions. As well, some 14 amendments have been promised to the joint committee.

Under the heading ``Action Taken,'' two ultra vires provisions have been revoked. A series of illegal fees have been re-enacted under proper authority granted in the Canada Shipping Act, and three other promised amendments have been made.

Mr. Bernier: I note that the 81 instruments listed under ``No Comment'' have been reviewed and found to conform to all of the committee's scrutiny criteria and are submitted without comment.

The Joint Chairman (Mr. Szabo): Are there any comments or questions of counsel on these or other matters?

The Joint Chairman (Senator Eyton): Is anything additional required of the committee on items under ``Action Promised'' apart from monitoring?

Mr. Bernier: Those files will be monitored and no further action is required.

The Joint Chairman (Mr. Szabo): Is it agreed to proceed in that way?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): That completes the formal agenda.

The committee continued in camera.

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