REGS Committee Meeting
Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.
For an advanced search, use Publication Search tool.
If you have any questions or comments regarding the accessibility of this publication, please contact us at firstname.lastname@example.org.
Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 5 - Evidence of November 2, 2006
OTTAWA, Thursday, November 2, 2006
The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:34 a.m. for the review of statutory instruments.
Mr. Paul Szabo (Joint Chairman) in the chair.
The Joint Chairman (Mr. Szabo): Good morning, ladies and gentlemen. At our last meeting we had a free-flow discussion about how our business operates, the timeliness of responses and the efficiency with which we operate. It was indicated that we would have a short discussion to share ideas on this subject today. Let us deal with the regular agenda items crisply so that we might take the remaining time to deal with that discussion.
SOR/2004-263 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE FISHERIES ACT (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix A, p. 5A:1)
Mr. Peter Bernhardt, General counsel to the Committee: As the note explains, the committee has long taken issue with the fixing of what it has come to call ``token close times'' in fisheries regulations as well as the fixing of year-round close times. The only purpose of these mechanisms is to give fisheries officers the authority to establish close times under the guise of varying the close times set out in the regulations.
The use of those approaches became so pervasive that the committee was reduced simply to the practice of noting instances as they occurred from regulation to regulation. In 2001, however, the Department of Fisheries and Oceans indicated that the provisions in the Marine Mammal Regulations embodying the approaches that had been objected to would be amended. This unexpected development was met with a certain amount of incredulity, and prompted a request to the department for further information and confirmation as to exactly what it intended to do. Eventually, the committee was advised that on the issue of close times, DFO sought an amendment that would conform to the joint committee's report to Parliament. The amendments made by SOR/2004-263 removed some year-round close times and the token close times from the Marine Mammal Regulations. The accompanying regulatory impact analysis statement explains that these amendments will make the regulations ``more clearly reflective of those periods when fishing for marine mammals does not take place.'' It also stated that they were being made at the behest of the committee.
Notwithstanding this, it is difficult to believe that the Department of Fisheries and Oceans suddenly accepted the committee's objection to this kind of provision after steadfastly refusing to do so for more than 20 years. To date, there seems to be no movement toward amending the many other regulations that contain the same mechanisms. Perhaps at this time, the committee might consider writing to the Department of Fisheries and Oceans to ask whether the department plans to proceed now to take these things out of all its regulations.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed that the committee write to the minister as recommended by counsel?
Hon. Members: Agreed.
SOR/99-294 — ONSHORE PIPELINE REGULATIONS, 1999
(For text of document, see Appendix B, p. 5B:1 )
Mr. Jacques Rousseau, Counsel to the Committee: The letter touches on two drafting points. The first point concerns the wording of section 21 of the regulations and is the reason why this file has been submitted to the committee under the heading ``Reconsideration.'' Initially, committee counsel had requested that the meaning of section 21 be clarified, and had asked for confirmation that the application of this provision was not problematic. The Board initially responded that section 21 had been the focus of some internal discussions. The Board indicated that it was planning on recommending a change to the wording, but that it would also be consulting with stakeholders.
In its letter of April 20, 2006, the Board informed us that consultations had taken place with these stakeholders as well as with the Department of Justice. It also supplied an explanation as to why the Department of Justice considers the wording of section 21 to be satisfactory and noted that the stakeholders consulted did not identify any problems with the interpretation or application of section 21. The Board is now of the view that there is no need to amend section 21. Counsel recommends that this be deemed a satisfactory reply.
The second point pertains to the wording of section 81(3) of the National Energy Board Act. The Board indicated that it had consulted with the Department of Justice on the French and English versions of this provision and had received confirmation that there was no discrepancy between two versions. Again, committee counsel recommends that the explanation supplied by the Board in its letter of April 20, 2006 be deemed satisfactory.
Mr. Chairman, if the committee is satisfied with the answers supplied by the Board on the two points in question examined today, counsel will monitor as usual the progress made in terms of carrying out the promised amendments in the case of the other 12 points raised by the committee.
The Joint Chairman (Mr. Szabo): Are there questions or comments?
Mr. Lee: I thought the response was good; this business of dealing with the French-English translation was about as good as we will get to resolving the irresolvable. I thought the response was good, giving credit where credit is due.
The Joint Chairman (Mr. Szabo): Is there anything further? Is it agreed that we will continue to monitor the remaining items?
Hon. Members: Agreed.
SOR/2004-70 — REGULATIONS AMENDING THE MEMBERS OF COMMITTEES AND SPECIAL COMMITTEES (NAFTA) REGULATIONS
(For text of documents, see Appendix C, p. 5C:1)
Mr. Bernhardt: Mr. Chairman, this instrument named two persons to the roster of candidates for selection to serve on an Extraordinary Challenge Committee, established pursuant to the North American Free Trade Agreement. Under NAFTA, however, each party is to name five persons to the roster. The obvious question is, why two and not five?
Since the regulations are to be made for carrying out and giving effect to the relevant provisions of NAFTA, it is also open to question whether a regulation that seems contrary to the agreement's provisions could be authorized as one that carries out or gives effect to it.
Finally, the department was also asked to confirm that from February 26, 1996, until March 31, 2004, no persons were named to the roster on behalf of Canada.
The Department of Foreign Affairs and International Trade has advised that when an extraordinary challenge was unexpectedly received from the United States, two of the initial members named by Canada had died and the other three were unavailable. Since there was then an immediate need to appoint two members from the roster to the Extraordinary Challenge Committee, two persons were found who could then be put on the committee. In the department's words, a partial roster was preferable to no roster at all.
This answer ignores the question of whether naming a partial roster was permitted in the first place. It also overlooks the fact that none of the five initial appointees could have been named to the panel anyway since their appointments had expired.
All the department says about this eight-year gap when no one was available was that extraordinary challenges are rare. Mr. Chairman, I suppose that is why they are called extraordinary.
While the department's reply can in no way be seen to be satisfactory, it is the case, as noted in counsel's January 18, 2005, letter, that a full roster of five persons is now in place so the situation has been corrected. This being the case, I suggest there is not much point in pursuing the matter any further.
Mr. Dewar: Are we confident this situation will not happen again? I am curious. I do not know anything about this process and how people are appointed. Clearly, others are not aware of how they are appointed either.
If we have the persons in place, obviously, we are happy with that. To avoid any confusion in the future, what is the process? Is it up to the department to appoint committee members? Do they do it through an in-house process?
Mr. Bernhardt: Under NAFTA, each country who is party appoints five people to a roster. I believe, generally, these people are retired judges. When an extraordinary challenge comes up, each party can pick two people off the roster to sit on the panel. You need five people in the bullpen so you can call on two of them when you need to.
There are five names on the roster now. I have not checked to see whether they are currently living or dead. Presumably, that is something the government will now keep track of and make sure they have five warm bodies available should they need them.
Mr. Dewar: Our job here was to make sure they followed through on what the expectations are. That has been done now and cleaned up, is that correct?
Mr. Bernhardt: Yes.
Mr. Dewar: Is this process akin to arbitration in labour negotiations, where the government can call upon someone and there is a pool of people who can fulfill the roles?
Mr. Bernhardt: It is a similar situation, yes. You have those people to choose from.
The Joint Chairman (Mr. Szabo): Is there anything further, or any interventions? Effectively, we will only monitor this.
Mr. Bernhardt: I suppose if they reappoint people, we will see another statutory instrument we can look at. For now, things seem to be in order. The past is the past.
The Joint Chairman (Mr. Szabo): Will we close the file?
Mr. Bernhardt: We can close the file.
The Joint Chairman (Mr. Szabo): Agreed?
Hon. Members: Agreed.
SOR/2001-536 — REGULATIONS AMENDING THE CONSULAR SERVICES FEES REGULATIONS
(For text of document, see Appendix D, p. 5D1)
The Joint Chairman (Mr. Szabo): The next item for our consideration is SOR/2001-536 under the heading ``Reply Unsatisfactory.''
Mr. Rousseau: At issue here is the validity of section 4 of the regulations, the relevant regulatory authority and section 10.1(1) of the Department of Foreign Affairs and International Trade Act. Pursuant to this provision, the Governor in Council may make regulations setting the fees to be paid for travel documents issued by the minister.
Pursuant to the regulations, the fees must be paid when the application for the documents is filed. Since the authority of the Governor in Council extends only to documents issued by the minister, committee counsel wanted to know if, should the minister refuse to issue these documents, the fees paid by the applicant would be refunded.
The department responded that fees could not be refunded, arguing that processing costs must be recovered and that there are costs associated with refunding fees paid for a document not issued by the minister. These administrative considerations do not change the fact that the Act only authorizes the charging of fees for documents issued by the minister.
The department also argued that this fee should remain harmonized with the passport services fee. Aside from the fact that once again, this is an administrative argument, it should be noted that the Passport Services Fees Regulations were adopted pursuant to the Financial Administration Act, which does not limit the Governor in Council's regulatory authority to set the fees to be paid for a document duly issued by the minister, as is the case in the Department of Foreign Affairs and International Trade Act. For these reasons, committee counsel is of the opinion that the reply is unsatisfactory.
At the end of the letter, the department alluded to the possibility that the act could be clarified retroactively. In the opinion of committee counsel, the department should undertake to make the necessary clarification. If the committee agrees, counsel will recommend that another letter be sent to the department explaining why its reply is deemed unsatisfactory.
The Joint Chairman (Mr. Szabo): Before we go on, can you clarify for the committee whether we have had other similar situations where the regulations are specific but the application is broader in practice? How do we handle these things?
Mr. Bernhardt: Mr. Chairman, if we are dealing with the application, generally that is something the committee does not see. We look at the regulation as it exists in the books, and we review it as to whether it meets the committee's criteria.
What happens in the field is something that usually does not come on our radar screen.
Mr. Lee: From our point of view, a department is charging a fee illegally for applications for travel documents when they do not issue the documents. A failed application will result in the fee being ``illegal or unlawful.'' That problem is not fixed yet.
Can we give the department a hint as to where they might go with this? I know we do not usually do that: it is not our job. Presumably, under the second statute, as opposed to the first statute, they could fix an application fee — not a document issue fee, but an application fee.
If the department were to do that under the second statute, it would clarify the situation. The department would have a legal application fee in place. The fee would be harmonized with their passport application fees and they could move on.
The only problem remaining is the need to validate the fees the department took unlawfully. Have I got it right?
Mr. Bernhardt: Yes: Alternatively, they could go back to what they were doing before they made the amendment, which was collect a fee only when the department actually issued the document. The department does not want to do that because it moved away from that to what it does now.
Mr. Lee: It is more of a fee-for-service approach now.
Mr. Bernhardt: It also saves the department the bureaucratic hassle of a refund: the department takes the money and keeps it.
Mr. Lee: In the past, we have insisted on refund of fees — not a lot but I recall occasions where we have — and we have had some compliance in some instances. In this case, the department indicates the cost of refunding the fee is $23 and the fee to issue a document is $25. We have a serious throwing-money-away scenario here if we insist on strict legal compliance of refund of fees.
The validation of the unlawfully taken fees is important here. It may not put any money back in the citizen's pocket but it will make lawful what was unlawful.
Mr. Bernhardt: Exactly.
Mr. Del Mastro: I suggest, first of all, what we have here is a recognition of cost incurred. As Mr. Lee said, we need to encourage the department to change its understanding of what the fee is for. It is a processing fee. It has nothing to do with whether you receive the document. It is a recognition of cost incurred. I think it falls to the person applying to pay those costs for somebody to do the administrative work, whether the document is granted or not.
I think the committee should encourage the department to make the withholding of those fees or keeping of those fees legitimate within its mandate.
Mr. Epp: First, the department is charging a fee for a purpose other than stated. There is another little problem. It seems to me the department is attempting to charge GST and that is where it comes up with this cost of $23.32. This is four cents out. Four cents is not a big deal, but it should be accurate if they publish this number as their fee.
If they collect $25 and they say the fee is $23.32, they are overcharging and that number should be accurate. Furthermore, the GST rate has changed now, so their number is out of date in any case. I do not know whether to bring that issue forward or not.
The Joint Chairman (Mr. Szabo): You already have.
Mr. Rousseau: In my opinion, this is not a problem that concerns the committee. The committee is concerned about the $25 fee for obtaining a document. We are not asking for a breakdown in the fee charged for obtaining a document.
Perhaps the general counsel would like to elaborate on this.
Mr. Epp: I would like to know. If the department states that their fee is $25 including GST, so be it. If the department says it is this amount plus GST, they are not accurate if they collect $25. In a sense, even though it is only four cents, they are collecting a fee that is not legitimate.
Mr. Rousseau: We can put the question to the department.
Mr. Bernhardt: It is $25, GST included.
Mr. Epp: Is that what it says?
Mr. Bernhardt: It says the fee is $25. That is what one pays and how the department chooses to break that down, in a sense, is their business. They are telling us that this is how they break it down.
Mr. Epp: If they need math advice, they should call me.
Mr. Bernhardt: They seem to have rounded things in their own direction.
Mr. Dewar: Looking back on the correspondence we sent, it was clear in your correspondence, Mr. Bernhardt: you underline documents issued by the minister. The issue is, we are asking people to pay for services that have not been rendered, so to speak. I liked your idea of suggesting, as Mr. Lee did, to give them advice as to how to right this wrong by going back to the practice they previously had been engaged in. Maybe we should do that in a letter form.
If they decline our suggestion, then we can talk about other ways of dealing with these kinds of concerns.
I go back to the fact that someone pays an amount for something and does not receive the product. This practice clearly must be changed. Your correspondence is concise in saying that people are paying for things that are not issued.
Mr. Bernhardt: I agree. It is a straight-forward issue. You can charge a fee for a document the minister issues. If the minister does not issue a document, you cannot charge a fee.
Senator Bryden: To help them do the job, if you look at section 4 of the regulations, as I read it, ``The fee to be paid by a person of at least 16 years of age who requests the issuance of a travel document is $25.00 and must be paid at the time the application for the travel document is made.''
Does the injection of the words ``non-refundable fee'' in that section cover it?
Mr. Bernhardt: No, because in the end, if your application is refused, you have not been issued a permit.
Senator Bryden: Help me here. Where does it say in this section that it is for ``the issue of ''?
Mr. Bernhardt: The statute says you can charge a fee for a document the minister issues. That was why the question was phrased initially as it was.
I do not think there is anything wrong with the regulation if you refund the fee to unsuccessful applicants. That is why the question was asked. The department collects the fee from everybody but should only keep the fee a document is issued. I asked for confirmation that they refunded the fee for an unsuccessful application. The answer was, basically, we used to, but we do not want to anymore.
Senator Bryden: The other solution would be to amend the statute?
Mr. Bernhardt: Exactly. If they want to make it an application fee, the solution is there. They can go through Parliament or through the Financial Administration Act.
Senator Bryden: We may want to include that in one of our suggestions. The department may, on a regular basis, update the statute itself. The amendment needed is not very big.
Mr. Bernhardt: No: It would require changing one word.
The Joint Chairman (Mr. Szabo): We talked at a previous meeting about the difference between a fee and a tax with respect to the Broadcasting Act. It involved substantial money, millions of dollars. In this regard, we are talking about fees on an individual basis; the fee does not involve companies. The amounts involved are somewhat less material.
Is materiality a sufficient reason not to push a change as much, particularly when you consider that the cost of changing the operational administration to monitor and trigger a refund may cost more than the fee. It involves doing the right thing, but with an unacceptable result.
I think we need words of wisdom on whether we do it because it is right or do we look for the simple solution, which might be the statutory one that there is a fee and be non-specific. It is only a fee. It is an application fee.
Then, it is somewhat universal. The regulations, theoretically, in many organizations are set from time to time by the board or the responsible agency, and can avoid confusion when subsequent changes are made. Do members have any input, now that we have the context?
Mr. Wappel: I make this point only because I listened to what you said. It would appear clear that the department can charge only for documents issued. There cannot be an argument about that. That is what the statute says. If the department does not like what the statute says, the department should change the statute. It is that simple. The department has recognized that, in an offhand way, in the last sentence of their letter.
When writing back to the department, I suggest that we say there is no legal authority whatsoever to keep money if the department has not issued a document. However, we can add that the committee is comfortable with amending the act retroactively to indicate that a fee of $25 is charged upon application, whether the application is successful or not. I suggest we forget the refund part. It is not too much trouble for this committee to recognize that there is some cost to making an application and having it reviewed, whether the application is successful or not.
I do not have a problem with charging a fee of $25 for making an application. If the application is not successful, the fee of $25 is lost. However, the fee must be charged legally and that must be seen as set out in the last sentence of the correspondence without the department acknowledging that it is what they should do. This committee knows what the department means when it says it will consider it. Members of the joint committee 15 years from now will read that correspondence again unless this committee takes strong action in terms of writing to the department to tell officials that the solution is, as suggested, to do it and this committee will monitor the file. Perhaps a letter should be written to the minister accordingly.
The issue is not how much of the fee of $25 is GST or whether the charge is $30 at this point. Rather, the issue is that the money cannot be kept unless the department has issued a document, period. Yes, it would be expensive to return all monies collected, so it could be dealt with retroactively.
The Joint Chairman (Mr. Szabo): I have one question for those who are more experienced in these matters. Is it more common that the statute would prescribe a number that will clearly change over time? This problem is waiting to happen in almost every piece of legislation that does this.
Mr. Wappel: Mr. Chairman, nothing in the quoted portion of the section indicates a fee specified. It simply says that the Governor-in-Council ``may charge a fee,'' but unfortunately, it also says ``for documents issued.''
Normally for the reasons you stated, a fixed amount would not be added but rather it would be left to the Governor-in-Council to do it in the regulations.
Mr. Dewar: I am trying to keep it simple to stay within our scope of understanding of what we are asking for — clarification. The scenario is: I pay my money, I get a document and if I do not get a document, then I should not pay the money. Beyond that, it is not up to this committee to decide. I might take issue but I need to know more about it: If I were to pay $25 and not receive a document, I might have an issue with that as a member of Parliament.
Mr. Lee: If it were decided that a rejection letter constituted a document issued, that might solve their problem.
The Joint Chairman (Mr. Szabo): Wow.
Senator Bryden: I do not know whether I can top that. Two things can happen. If they amend the statute to say there will be a fee on application, there is nothing to prevent them from also amending section 4 of the regulation to say ``for the time being, the fee is $25.'' Then the statute does not have to be amended each time the fee amount is changed, whether it be 10 years from now. Bring that in line with the statute.
The Joint Chairman (Mr. Szabo): The recommendation stands that the committee respond to the department and advise them of the difficulty in doing our job. Is it also part of the practice of the committee to address possibilities for them, or do we leave it to their own determination?
Mr. Rousseau: At this time, Mr. Chairman, the minister has already suggested that it might be possible to seek retroactive clarification of the act. Undoubtedly, that would be the preferred course of action to resolve the problem. If the committee has any other suggestions, we can mention them, but we believe this would fully resolve the problem, once and for all.
The Joint Chairman (Mr. Szabo): Where the committee has raised valid points, we do not say they must do this or should do that. Rather, only to be helpful, we advise them of the matters raised and that the points can be discussed with counsel for further details.
Mr. Bernhardt: We can lay out the various options for them. At the end of the day, they have a choice as to what they do.
The Joint Chairman (Mr. Szabo): The safe thing to do is tell them to fix it. Therefore, the committee will write to them and, hopefully, they will respond in announcing their resolution of this matter. Is it agreed?
Hon. Members: Agreed.
SOR/2005-405 — REGULATIONS AMENDING THE BOATING RESTRICTION REGULATIONS
(For text of document, see Appendix E, p. 5E:1 )
Mr. Bernhardt: Mr. Chairman, these amendments deal with anchoring and mooring vessels in False Creek, Vancouver. Two points were raised in connection with the instrument. First, section 7.3(2) confers discretion on the Minister of Transport to refuse to issue a permit to anchor a vessel, even though the applicant meets the prescribed conditions.
An explanation was sought as to the considerations leading to such a refusal. The department's reply was that they intend that the minister shall issue a permit to a qualified applicant unless the applicant has already exceeded the maximum allowable cumulative period or in cases where issuing that new permit would cause the applicant to exceed the maximum allowable limit. I suggest that if this is what is intended, then this is what the regulation should provide. At present, the minister's discretion to refuse a permit is completely unrestricted.
The second point was a suggestion that since the regulations already provide that no person may anchor a vessel during prescribed times unless the person holds a permit, and since this permit can only mean a valid permit, there is no need to provide in section 7.3(3) that no person shall anchor a vessel beyond the period set out in the permit. The department replied that it is not clear that a person whose permit has expired would contravene the prohibition against anchoring without a permit.
This is nonsense. It is like saying that the requirement to have a driver's licence is met if you drive with someone else's driver's licence. In any event, I suggest that these points be pursued with a further letter to the Department of Transport Canada.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed?
Hon. Members: Agreed.
SOR/89/127 — FOOD AND DRUG REGULATIONS, AMENDMENT
(For text of document, see Appendix F, p. 5F:1 )
Mr. Rousseau: The note prepared for the committee contains information on the progress made to have section B.02.332 of the regulations, which is illegal, replaced by a legislative measure adopted by Parliament. The Spirit Drinks Trade Act came into force on June 1, 2006, as per section 17; all that remains to be done in order for the committee to close the file is to formally repeal the contested regulatory provision. It is recommended that committee counsel write to the department for information as to when it plans to repeal this provision.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed?
Hon. Members: Agreed.
Mr. Lee: This file is another one that received an excellent result involving introduction and passage of a statute, which is ten out of ten in terms of the kind of response that the committee seeks.
The Joint Chairman (Mr. Szabo): Is it agreed?
Hon. Members: Agreed.
C.R.C. c. 961 — INDIAN TIMBER REGULATIONS
(For text of document, see Appendix G, p. 5G:1)
Mr. Bernhardt: As the letter from the Department of Indian and Northern Affairs indicated, concerns first raised by the committee back in 1982 have been addressed, although a number of concerns remain unaddressed.
In most cases, these outstanding issues were to be resolved by the Indian Act itself to clarify the authority for certain provisions in the regulations.
As the department observes, there have been a number of unsuccessful attempts to amend the relevant provisions in the act. I think there is a definite note of resignation, if not despair, in Mr. Sinclair's last letter.
He notes that the move toward self-government removes First Nations from the regulatory concerns, but that ``too many First Nations remain under the Indian Act for us to take comfort from this.'' He also suggests the committee might consider dealing directly with the First Nations ``since that is where the solution lies.''
It is also reported that there are no further plans to amend the regulations or the related portions of the act. Clearly, no solution is in sight. Frankly, I am not sure where the committee can go on this.
Revising the Indian Act is a process fraught with pitfalls. Reading between the lines, the department views the process with little optimism.
The committee can continue to chase patiently after the promised amendments. On the other hand, the amendments to the act suggested by the committee were for the purpose of clarification. Members could take the view that the amendments were merely suggestions, that the merits of these suggestions have been accepted but that, as mere suggestions, there is no need to further pursue them.
If so, that still leaves two outstanding amendments to the regulations. One is a drafting matter; the other involves the revocation of a penalty provision that fails to limit the amount of a monetary penalty to the maximum that is allowed under the act. The department has advised, however, that it is not enforcing this provision presently.
The committee could ask that these two amendments be made now while indicating, perhaps, that while the committee remains of the view that the act should be amended, the committee does not intend to pursue those statutory amendments actively. As I say, I am betwixt and between on this one.
Mr. Lee: Mr. Chairman, this file is about to become a charter member of the quarter century club. I think we should have a party next year recognizing any file that is in the quarter century club.
The history is all understandable. When I make my recommendation here, which simply will push us into the future indefinitely, I operate under the assumption that the offending regulations do not conspicuously infringe on the rights and liberties of citizens, whether they are First Nation citizens or not.
We all understand why the government is not moving forward to regulate further without appropriate and full consultation with our Aboriginal peoples. In a lot of cases, they do not like being regulated. Therefore, I do not think there is much we can do.
There is always a disallowance if members feel the impugned regulations offend rights and liberties to an extent that causes them to act. I am prepared to disallow, depending on the context and realizing that a disallowance can actually push the department to remediate. We have seen that before. Once the minister and the government become aware that a disallowance is in place, that gives them sufficient traction to bring forward remediation on their own.
I want to hear counsel's reply to that.
Mr. Bernhardt: As far as the one provision goes — which is section 30, which has an unlawful penalty — that provision is certainly open to disallowance. Since the department has told us they have not applied it for years, I doubt there would be much opposition to that.
The other amendment to the regulations is a minor one. I think it changes the title of an official. Even disallowing that one provision, the committee is still left with the issue of the amendments to the statute.
I went back yesterday to 1982, when I was still in school, to see what those initial comments were. They were phrased in the manner of, this provision of the regulations is probably authorized by section X of the act, but it would be better if section X was amended to say that. They are not the strongest objections the committee has ever made, let us put it that way.
The Joint Chairman (Mr. Szabo): Having heard this dialogue, would you like to state succinctly now what we do? I want the members and myself to be clear whether we are having this party.
Mr. Bernhardt: The committee has a couple of options. It can continue to stay the course and write regularly to the department, saying the committee continues to wish these amendments to be made, and what progress is being made? Alternatively, the committee can decide that it no longer will follow up on the amendments to the statute. I think that still leaves the two amendments to the regulations that must be dealt with.
If the committee was to go that way, we could write to the department and ask them to make those two amendments. Depending on their reply, there would be consideration, as Mr. Lee suggests, whether to move to the next level and possibly disallow one of them.
The Joint Chairman (Mr. Szabo): This issue will not be resolved here. I think we probably need another round of communications. Let us write the letter outlining the latter. That alternative is closer to our job.
Mr. Wappel: Mr. Chairman, I want to understand. We are talking about two parts of the regulation that should be changed and suggestions to make the statute clearer, is that right?
Mr. Bernhardt: Exactly.
Mr. Wappel: One of the two parts of the regulation is so insignificant, I suggest we not worry about it — that is, the title of an official.
I am not clear on the second issue; what does the regulation say?
Mr. Bernhardt: The provision imposes a monetary penalty, based on the value, I think, of timber harvested under the licence. The provision allows for a penalty of four or six times the value of the harvested timber. The problem is, under the Indian Act, there is a maximum penalty that can be imposed. When you use that formula under the regulations, you could have a situation where you end up with a penalty that exceeds the maximum allowed.
Mr. Wappel: The regulation could be changed to say, ``not to exceed'' X dollars?
Mr. Bernhardt: Yes.
Mr. Wappel: Why is that difficult to do? We suggest an amendment to the regulation. It does not require extensive consultation with 1,000 First Nations.
Mr. Bernhardt: No: In this case, the department told us some years ago that they did not enforce this provision anyway. As far as they are concerned, the provision is something of a dead letter. I think they would be amenable to excising it.
Mr. Wappel: That is not my question. If they do not enforce it, why not simply revoke it? Again, revoking a penalty section of a regulation does not require years of consultation.
Mr. Bernhardt: I would have to go back. A number of amendments made in the mid-1990s took care of a number of the concerns raised. That amendment may have been left out inadvertently and now there is a reluctance to go back.
Be that as it may, the issue remains outstanding. I think the committee is left with pursuing it one way or another, regardless of what the committee does with the statutory amendments. Depending on the reply, it may be a candidate for disallowance.
Mr. Wappel: This is where I am coming from. We have encountered the Indian Act many times over the years. One concern I have here is lack of corporate memory.
Every time the Indian Act or another act comes up, there are shifts in departments, and deputy heads change. This has gone on for 25 years. People retire and change jobs.
One of the few institutions that have a corporate memory is this committee. I do not suggest that we keep this file open for that purpose but I like to think there is some file that we call ``suggested amendments'' or ``betterments'' to the Indian Act and it just sits there. Then, sooner or later, when a government brings in an act to amend or replace the Indian Act, I am hoping someone with some corporate memory — namely us — will pull that file, examine the draft statute, see if all the things we have said over the years are covered in there and bring it to somebody's attention if they are not covered. I do not think we need to keep this file open to do that, in which case I suggest that the file not be kept open vis-à-vis suggested changes to the act. As far as the two regulations are concerned, my preference is to write back to suggest revoking them if they have not been enforced for years. Revoking them does not require years of consultation. No one could reasonably argue that revoking a penalty section takes years of consultation.
If the department wants to keep it as a potential club in case someone decides to cut down timber, so be it but then they need to add the words ``not to exceed'' and the specific reference. That amendment does not require extensive consultation because the regulation and the penalties exist. We would limit the penalties, not increase them.
Anyone that argues they cannot change this regulation because it requires 20 years of consultation with 1,500 First Nations is simply bamboozling this committee, plain and simple.
I recommend the committee should write to the Department of Indian and Northern Affairs suggesting it should either revoke this regulation immediately in the usual way or add the words ``not to exceed'' and the specific reference. Failure to do either and the committee will consider a disallowance report.
The Joint Chairman (Mr. Szabo): Are members agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): Again, this item is one of those for which it is helpful to hear members speak to the senselessness of the points. There seems to be consensus that it is time to bring this matter to a close because we do not want to plan the 50th anniversary.
SOR/2002-222 — METAL MINING EFFLUENT REGULATIONS
(For text of document, see Appendix H, p. 5H:1)
Mr. Rousseau: In their letter dated April 20, 2006, committee counsel commented on seven provisions in the regulations. The department responded in a letter dated September 15, 2006 that amendments would be made to correct the problems identified in points 1, 2, 3 and 5.
I am happy to inform the committee that these amendments have already been made, as the committee will note upon examination of SOR/2006-239 published in the Canada Gazette on October 18 last.
Changes were also made with respect to points 6 and 7. The department had not planned to make these changes because they involved regulatory provisions granting transitional authorizations which will expire in June 2007.
The department also noted that section 38 of the regulations, as mentioned in point 4, involved these transitional authorizations, citing this as a reason for not providing a complete response. Section 38 gives the authorization officer the discretionary authority not to revoke the transitional authorization that permits the deposit of an effluent, even if the owner or operator has failed to comply with one of the requirements prescribed in sections 36 and 37 of the regulations.
This discretionary authority does not seem to be in line with the regime instituted by Parliament, whereby regulatory requirements must be met in order to deposit an effluent. If Parliament demands compliance with regulatory requirements, why would the authorization officer have discretionary power not to revoke the authorization of the owner or operator who fails to meet these conditions?
The department replied that it was not suggesting section 38 of the regulations be amended, because the stakeholders would need to be consulted and there would not be enough time between now and June 2007 to make the proposed amendment to this provision. It said its decision was mainly based on the fact that only three mines have transitional authorizations which are set to expire in June 2007.
Mr. Chairman, the fact remains that committee counsel raised a concern about how justified the discretionary authority provided for in section 38 of the regulations actually was. There was no suggestion that this provision be amended. However, given the response provided, there is reason to believe that the department realizes the potential problem with section 38. That being said, the question is whether we need to follow up on this matter with a letter. Assuming that section 38 will not be amended between now and June 2007, it might seem pointless to pursue the matter since the point will be moot in eight months.
Under the circumstances, the committee could decide to accept the department's explanation. If that were the case, the file could be closed.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed?
Hon. Members: Agreed.
C.R.C. c. 1551 — TEXTILE LABELLING AND ADVERTISING REGULATIONS
(For text of document, see Appendix I, p. 5I:1 )
Mr. Bernhardt: Mr. Chairman, Industry Canada previously indicated it would undertake internal consultations on possible amendments to five provisions of the regulations. The validity of these provisions was questioned.
The department then reported that a public consultation paper on amendments to the regulations recommended revoking four of these provisions but no mention was made of the fifth, section 9.1. This simply may have been an oversight but should be confirmed when the department is asked for an update. I suggest a further letter to the department.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed?
Mr. Lee: I was wondering if Mr. Wappel was at all curious about whether the labelling requirements should include information on carbohydrates or proteins, in case someone wants to eat their shirt.
Mr. Wappel: I find it passing strange that we label textiles but there is reluctance among some members to provide proper information with respect to the food we ingest.
The Joint Chairman (Mr. Szabo): That is not a point of order. Is it agreed?
Hon. Members: Agreed.
SOR/94-668 — CANADA LABOUR STANDARDS REGULATIONS, AMENDMENT
(For text of document, see Appendix J, p. 5J:1 )
Mr. Rousseau: Mr. Chairman, the committee commented on seven regulatory provisions and amendments were promised in each case. Two amendments have already been adopted, as the committee noted when it examined SOR/ 2002-113.
As for the other amendments, the department advised us that a review of Part III of the Canada Labour Code was under way. A report and recommendations were slated to be presented to the minister in June 2006. The department informed us that the promised amendments would be made once the review was completed. All of the promised amendments, with one exception, involve the wording of the regulations. The one exception is the promised amendment to repeal section 24.5 of the regulations pursuant to which employers are required to keep confidential all employee medical records.
The 344-page report was finally tabled last Monday. If the committee is satisfied with the department's undertaking, committee counsel recommends sending a letter asking the department if it now has a clear idea of when the promised amendments will be made.
The Joint Chairman (Mr. Szabo): Are members agreed?
Hon. Members: Agreed.
SOR/2003-289 — FEDERAL HALOCARBON REGULATIONS, 2003
(For text of document, see Appendix K, p. 5K:1)
Mr. Rousseau: Mr. Chairman, amendments were promised to the wording of the regulations. The file was reviewed by the committee at its meeting of September 28 last. At the time, the committee was hopeful that the department would respond in 30 days and let it know when in fact the promised amendments would be made.
In a letter dated October 18, 2006, the department informed the committee that it could expect to receive an answer toward the end of December 2006. The question is whether the committee is satisfied with this undertaking. If it is, committee counsel will monitor progress, as usual, and keep the committee apprised of any developments.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Are members agreed?
Hon. Members: Agreed.
SOR/2005-38 — REGULATIONS AMENDING THE CANADA PENSION PLAN REGULATIONS
(For text of documents, see Appendix L, p. 5L:1 )
SOR/2005-293 — BASIN HEAD MARINE PROTECTED AREA REGULATIONS
(For text of documents, see Appendix M, p. 5M:1 )
SOR/2005-294 — EASTPORT MARINE PROTECTED AREAS REGULATIONS
(For text of documents, see Appendix N. p. 5N:1 )
SOR/2005-295 — GILBERT BAY MARINE PROTECTED REGULATIONS
(For text of documents, see Appendix O, p. 5O:1 )
SOR/2005-382 — TARIFF AMENDING THE FEDERAL ELECTIONS FEES TARIFF
(For text of documents, see Appendix P, p. 5P:1 )
Mr. Bernhardt: Under ``Action Promised'' this morning, there are five instruments in respect of which 14 amendments have been promised. The progress of these promised amendments will be followed up in the usual manner.
SI/2005-113 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES (SAHOYÚÉ-EDACHO (GRIZZLY BEAR MOUNTAIN AND SCENTED GRASS HILLS), NATIONAL HISTORIC SITE, N.W.T.)
SI/2001-26 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN THE NORTHWEST TERRITORIES (SAHOYÚÉ-EDACHO (GRIZZLY BEAR MOUNTAIN AND SCENTED GRASS HILLS, N.W.T.)
(For text of documents, see Appendix Q, p. 5Q:1 )
SOR/2006-87 — REGULATIONS AMENDING THE FRONTIER LANDS PETROLEUM ROYALTY REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix S, p. 5S:1)
SOR/2006-93 — REGULATIONS AMENDING THE PUBLIC LANDS MINERAL REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix T, p. 5T:1 )
SOR/2006-120 — REGULATIONS AMENDING THE EMPLOYMENT EQUITY REGULATIONS
(For text of documents, see Appendix U, p. 5U:1 )
As for ``Action Taken,'' including SOR/2004-263, which was the first item on the agenda this morning, we have five instruments that make another 14 promised amendments.
SOR/2005-1 — NORTHWEST TERRITORIES SEX OFFENDER INFORMATION REGISTRATION REGULATIONS
SOR/2005-3 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2005-4 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER
SOR/2005-5 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER
SOR/2005-6 — QUEBEC SEX OFFENDER INFORMATION REGISTRATION REGULATIONS
SOR/2005-7 — ORDER 2004-87-10-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-9 — ORDER AMENDING CERTAIN TEXTILE AND APPAREL REMISSION ORDERS, 2004
SOR/2005-11 — ORDER AMENDING THE ALLOCATION METHOD ORDER (BEEF AND VEAL)
SOR/2005-12 — ORDER AMENDING THE ALLOCATION METHODS ORDER — HATCHING EGGS, LIVE BROILERS, EGGS AND EGG PRODUCTS
SOR/2005-16 — NEW BRUNSWICK SEX OFFENDER INFORMATION REGISTRATION REGULATIONS
SOR/2005-17 — ORDER 2004-66-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-18 — ORDER 2004-87-11-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-20 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER
SOR/2005-21 — REGULATIONS AMENDING THE CANADIAN WHEAT BOARD REGULATIONS
SOR/2005-24 — REGULATIONS AMENDING THE INVESTMENT LIMITS (BANKS) REGULATIONS
SOR/2005-25 — REGULATIONS AMENDING THE INVESTMENT LIMITS (BANK HOLDING COMPANIES) REGULATIONS
SOR/2005-27 — REGULATIONS AMENDING THE MANITOBA FISHERY REGULATIONS, 1987
SOR/2005-28 — REGULATIONS REPEALING THE WEIGHTS AND MEASURES FEES REGULATIONS
SOR/2005-31 — REGULATIONS REPEALING CERTAIN REGULATIONS MADE UNDER THE HEALTH OF ANIMALS ACT (MISCELLANEOUS PROGRAM)
SOR/2005-34 — REGULATIONS AMENDING THE REGULATIONS SPECIFYING INVESTIGATIVE BODIES
SOR/2005-37 — ORDER APPROVING BLOOD SAMPLE CONTAINERS
SOR/2005-40 — ORDER ADDING A TOXIC SUBSTANCE TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2005-43 — YUKON SEX OFFENDER INFORMATION REGISTRATION REGULATIONS
SOR/2005-44 — ORDER 2004-87-12-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-45 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (LOCKING AND IMMOBILIZATION SYSTEMS)
SOR/2005-47 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS
SOR/2005-49 — ORDER CANCELLING GENERAL IMPORT PERMIT NO. 102 — YARN OR FABRIC
SOR/2005-50 — ORDER CANCELLING GENERAL IMPORT PERMIT NO. 106 — APPAREL GOODS OR OTHER TEXTILE ARTICLES
SOR/2005-52 — ORDER AMENDING THE AUTOMATIC FIREARMS COUNTRY CONTROL LIST
SOR/2005-53 — REGULATIONS AMENDING THE GARNISHMENT AND ATTACHMENT REGULATIONS
SOR/2005-54 — REGULATIONS AMENDING THE FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS REGULATIONS, 1999
SOR/2005-55 — ORDER 2005-66-01-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-56 — ORDER 2005-87-01-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-57 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2005-58 — ORDER AMENDING SCHEDULE IV TO THE FINANCIAL ADMINISTRATION ACT
SOR/2005-59 — PUBLIC SERVICE LABOUR RELATIONS ACT SEPARATE AGENCY DESIGNATION ORDER
SOR/2005-60 — DIRECTION TO THE CRTC (RESERVATION OF CHANNELS FOR THE DISTRIBUTION OF CPAC)
SOR/2005-63 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
SOR/2005-64 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
SOR/2005-65 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1383 — CLOTHIANIDIN)
SOR/2005-66 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1422 — IPROVALICARB)
SOR/2005-67 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1386 — KAOLIN)
SOR/2005-68 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1392 — ISOXADIFEN-ETHYL)
SOR/2005-69 — ORDER AMENDING THE SCHEDULE II TO THE YUKON FIRST NATIONS SELF- GOVERNMENT ACT
SOR/2005-70 — ORDER AMENDING SCHEDULE I TO THE YUKON SURFACE RIGHTS BOARD ACT
SOR/2005-74 — REGULATIONS AMENDING THE PUBLIC PORTS AND PUBLIC PORT FACILITIES REGULATIONS
SOR/2005-75 — REGULATIONS AMENDING THE CANADIAN FORCES SUPERANNUATION REGULATIONS
SOR/2005-76 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2005-77 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER
SOR/2005-80 — REGULATIONS AMENDING THE P.E.S.R.A. REGULATIONS AND RULES OF PROCEDURE
SOR/2005-81 — REGULATIONS AMENDING THE LAURENTIAN PILOTAGE TARIFF REGULATIONS
SOR/2005-82 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1367 — IMIDACLOPRID)
SOR/2005-83 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1381 — IODOSULFURON-METHYL-SODIUM)
SOR/2005-84 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1384 — CHLORIMURON-ETHYL)
SOR/2005-85 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1393 — FENAMIDONE)
SOR/2005-86 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1394 — FAMOXADONE)
SOR/2005-87 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1400 — PICLORAM)
SOR/2005-88 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1412 — DIFENOCONAZOLE)
SOR/2005-89 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1413 — DIMETHOMORPH)
SOR/2005-90 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1420 — MESOTRIONE)
SOR/2005-91 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1424 — FENBUCONAZOLE)
SOR/2005-92 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1430 — DIMETHENAMID)
SOR/2005-93 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1395 — TRIFLUMIZOLE)
SOR/2005-94 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1404 — DAMINOZIDE)
SOR/2005-95 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1398 — ADDITION OF FERRIC FERROCYANIDE TO PARAGRAPH C.01.040.2(4)(A))
SOR/2005-96 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1425 — CLOPYRALID)
SOR/2005-98 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1205 — CORRECTIVE AMENDMENTS, MISCELLANEOUS PROGRAM)
SOR/2005-100 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-1
Finally, under ``Statutory Instruments Without Comment,'' 68 instruments have been found to conform with all the committee's scrutiny criteria, and are therefore simply submitted without comment this morning.
The Joint Chairman (Mr. Szabo): Thank you. Are there any questions or comments? Is it agreed to accept that report?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): At the last meeting, we thought we would receive input from members with regard to dealing with modernization or improvements of our procedures or practices. We might be able to come to some consensus at least in preparation for the next meeting.
One of the reasons I raised this issue, almost from the outset when I discovered concerns after talking with Mr. Bernier and others, is that if we have a high volume of paper and files that go on for 25 years and no corporate memory and a lot of the things mentioned in this meeting — without even reference to what we are dealing with right now, it would appear that modernization and improvement of our procedures and practices is probably worth consideration.
I have heard from a couple of members and I will ask members if they have any comments. What I will suggest, so members can also comment on it, is that we could make changes in a vacuum and do it the way we would like to do it, with our own experience, or we could reach out, consult and maybe exchange views with another commonwealth partner.
The members will know that one thing I raised early here is that this committee should consider a travel matter for that consultation. I think we may well want to deal with this issue, potentially in January.
Having said that, I will not give any more biased points of view on this matter. I will open it up to members who have thoughts on our approach and to making whatever reasonable improvements we think we can make in the overall operation of scrutiny of regulations.
Senator Bryden: I think one thing at least worth asking is, are systems available to streamline the practice we follow? It is my understanding that it is not easy to find good people to do the jobs that our experts do for us. Our experts must have a certain bent in relation to their law practice. Some would say they cannot have another life or whatever, I do not know.
That is a long way around saying that if any of us have seen — and many of us have — the ancient method of tracking files that exists in the offices in which we work, is it worthwhile, as part of what we are discussing here, to inquire whether there is technology now available to streamline the information load to allow things to be electronically brought up with a ``bring forward, BF'' on it, enabling the files to have priorities?
I think it would cost a lot of money. Obviously, it can be done. I should not say obviously — I assume it can be done at some price. I wonder if it is time — and I expect the chairs to discuss this issue with our counsel and our clerks — whether we should have an examination by an appropriate investigator, if there are people who do this sort of efficiency consulting. We can ask the consultants if something can be done that would be helpful. There is no point in doing something that will make your job worse. If there is a solution, it would be good to find it and know the cost, so we can move files more quickly and ensure nothing falls through the cracks.
I do not think this committee has had any capital costs of any sort attached to it, if ever, but certainly not since I have been involved with the committee. Some travel took place once in a while. Somebody went to Australia two or three years ago.
I think if we say, is there a more efficient and effective way this committee can act, maybe we start with the nuts and bolts first and ask, can we manage things that we need to deal with more efficiently? Can technology and maybe some non-lawyers, but skilled people, play a part? That is only a suggestion.
Mr. Lee: I am all in favour of making the committee work more effective and efficient. Perhaps I have been on this committee too long, but I do not see a whole lot that is broken here when you stop to think that we have to deal with two realities.
First, there is an element of politics attached to the law that we look at. Our colleagues in both houses always have to deal with that reality. Politics does not often mix well with the law, but we must accept that.
The other part is, we are dealing with law and we cannot turn everything into electronics. We have not found a way yet to reduce law to an electronic format. We continue to be stuck with the printed word. There is simply no other way to do it, or I have not seen another way to do it.
If we were just a chat room talking about issues, that is one thing. However, we are dealing with actual hard law, whether it is statute or regulation.
We have paper that goes back 25 years. I think we are effective. We manage to do most of this work within a one- hour time frame every two weeks, minus the summer break. I think that is remarkable, given the volume of work that our staff deals with.
There is a low level of litigation surrounding federal regulations in our courts; the quality of those regulations is generally high. I am as frustrated as anybody else over issues that kick around for five and 10 years, but in every case there is a reason. It is not because our staff are not doing the job or the members are not responding appropriately. The kind of work we do here is not high profile and number one on everybody's list around the country. It is sometimes arcane.
I would not mind having an outsider look at how we do our business to see if suggestions can be made. My experience with the committee has not permitted me that kind of perspective. I think the committee does well. To compare us internationally to other countries, each country has a different set of rules, but I think we have a robust, active regulatory scrutiny project here in Canada that compares well with our colleagues around the world.
I am not a revolutionary, let-us-have-a-big-change-here kind of person. I think we might look for improvements, and I would not mind, as Senator Bryden suggests, investing in a potential makeover.
Mr. Wappel: I think such an investigation would begin — and there are two sides to it — with an analysis by Mr. Bernhardt and his staff respecting things such as: Is the workplace that we are in big enough; do we have the staff that we need?
Senator Bryden suggested, for example, a legal assistant. It makes sense to me to have initial reviews possibly by legal assistants, as opposed to the lawyers, and have those reviews filtered so the lawyers deal with what they consider to be the top issues. I do not know how Mr. Bernier set things up and ran them for 20 years or so; now Mr. Bernhardt has stepped into that role. I do not know if Mr. Bernhardt has made changes, is contemplating making changes or loves the system because he got used to it.
I am afraid, frankly, to even ask about the filing system. I cannot contemplate what the filing system must be like. It works, but suppose somebody retires? Suppose their assistants decide they do not want to work there anymore? Can someone new step in and understand a filing system that must have started 20 years ago or more at a time when possibly the volume, type of work and the nature of this committee had not evolved to what it is today because the committee was only starting?
It may not be a bad idea to have Mr. Bernhardt and his team introspectively examine things or bring somebody in to help them examine how this department should run. Recommendations could be made to us in terms of: filing systems; archiving documents, in particular, how they should be archived, computerized, photocopied or whatever the terminology is; what are the expenses of doing so; how should the files be categorized; and should they be kept in the office or sent to the library for archiving purposes because some files go on for a quarter century. That is one aspect.
I suggest the chair discuss with Mr. Bernhardt and his staff an examination of the office as it currently exists and how they see it moving into the next 25 years. Let us put it that way.
On the other hand, other jurisdictions around the world have an interest in monitoring regulations. For example, this committee, in one of its few travels, went to Australia in July 1999. What impressed me about Australia was the seriousness with which the Australians and the Asians of those nations viewed delegated and legislated regulations. They have professors at law schools who make studies of this subject. One professor gave a lecture but in such a heavy Australian accent that Senator Hervieux-Payette thought she needed a translator, and I agreed.
Certainly, from my personal observation, jurisdictions around the world treat this subject matter with great seriousness and they have ways of comparing best practices. Not only is there a regulatory framework federally, but they have them in each state, they talk to each other and there are law professors, et cetera.
In my view, it would not be a bad idea to attempt to consult. I do not suggest Australia, but it so happens that area of the world pays attention to this subject. I doubt we can consult in anything but a common law jurisdiction so that limits where we can visit. I am not sure of the Westminster model, whether it would apply and whether it would be worth our while to consider. I know the Australian model, and other islands around there have done a lot of work on this subject. They could give us a good heads-up of what they are doing, where they are, how they work with their state compadres and the federal states of Australia and New Zealand.
I can make a case for getting information from them, but I prefer to know how we operate and how we think we want to operate before we have those consultations.
The Joint Chairman (Mr. Szabo): I think there is probably a consensus with that.
Senator Bryden has raised an interesting point in terms of the administrative efficiencies and modernization. That is a good point. We ought to have your opinion, counsel, with regard to that point and a recommendation whether or not we should seek, at some point after you have had a chance to make an assessment, whether outside professional advice may be helpful.
Second, with regard to matters other than administrative ones, the concern is also about whether or not we, as parliamentarians, do a good job. As Mr. Lee indicated, the staff do a good job, but do the MPs do a good job? I think we should think about that question a little more. Should we be more engaged and focused? Should we be concerned that we are so bombarded with an enormous list of outstanding matters that go back so far, that the greater the fog out there, the greater the risk we will miss something. There is an accountability that we have seconded to the staff. We meet once every two weeks. It is not much. We are not high profile. There is a reason, because we have allowed it to be that way over history.
We do a good job simply based on the incidence of problems, of which there have been relatively few. Therefore, that conclusion is easy to make. That does not mean we are not in a risk scenario.
I do not suggest that any one jurisdiction will give us all the answers, but I think we probably need some idea of what other jurisdictions do that may be a different from us: their emphasis and priorities. That does not require a trip.
A trip may be required to not only deal with talking with our mirror images in another situation, but also to talk to departmental people in that jurisdiction — and some of the people who are mirrors of our counsel — for an idea of their evolution and the risk elements they dealt with. That is something that is difficult to do in written communication. It is better to schedule meetings.
I think we should not move too quickly on that aspect, but we should take initial steps.
If it is acceptable to the committee, why not have counsel consider the input the members have given so far and provide us in advance of the next meeting with preliminary thoughts rather than waiting until the meeting?
Mr. Bernhardt: I can give you preliminary thoughts right now.
The Joint Chairman (Mr. Szabo): I imagine you could, but some members probably need to go to committees at ten o'clock and the House is starting.
Let us take the time to do this properly and comprehensively. I think it would be helpful to have some communication in the hands of members in advance of our next meeting so when members sit we can take this one step further rather than have too many meetings.
Having said that, are there further comments?
Mr. Epp: I was thinking while Mr. Wappel was speaking that we should not make this thing too complicated. First, I want to be on record as saying I think that for us to travel would be rather redundant. Others might do things differently but in my view, the committee should focus on the work of the committee. Surely, there is the capacity mentally and otherwise to compute any changes that need to be made for the committee to do an effective job for Canadians.
Second, I do not want to give our otherwise overworked staff too big a task in trying to identify numerous things that should be changed. From time to time I ask my staff: If you could change three things in how we operate in this office, what would they be? It is interesting how we then focus on the one thing that is most in the way of our being effective and the staff agrees. I asked that same question when I was an instructor at the Northern Alberta Institute of Technology.
If counsel can make a few observations about things that they want to see changed to make the work of the committee more effective and to help them in their tasks, that would be useful. I want to keep it relatively simple. The staff of all committees is vitally important but in this committee, it is doubly, triply, or quadruply so. We should listen carefully to the words of counsel.
Senator Bryden: If there is no objection, I would like to hear the comments of Mr. Bernhardt.
Mr. Bernhardt: I have four points and I will go through the ones that occurred to me during the course of the discussion.
First, without beating our own drum or trying to sound defensive, our filing system is the envy of most departments. We talk to various departments, such as Justice Canada, and they shake their heads and say, ``If we told you we would have something by October 1 and we do not have it, we know we will get a letter October 2 from you asking us to please advise as to progress.'' They can set their calendars by that.
The committee does not see that correspondence, as a rule. Usually, we submit a substantive letter and a substantive reply, so there might be a ten-month gap. For the sake of saving paper, the committee does not see the arm-twisting in the interim asking where the reply is.
Having said that, while it is a good system, it is a bit Byzantine and it is paper-based. It was created by Mr. Bernier's predecessor in the early 1970s. When new lawyers begin their work with us, we always tell them that one of the hardest things apart from learning the specific law and how the committee works, is that it can take six months to figure out how the paper makes its way around the office.
We have two new lawyers that will start soon, one in the new year and one shortly. We have gone through the competition process and I will putt the names forward to the committee at the next committee meeting, along with some information and CVs. There might be efficiencies with that hiring because, obviously, we will be four instead of only two. However, the time and effort that it takes to train staff can impact the short term.
To Mr. Wappel's comments on filing systems and archives, we also serve as the archive for the committee. We have 30 four-drawer filing cabinets full of correspondence going back to 1972, as well as the current correspondence. I do not know the total but we are looking at about 45 filing cabinets crammed full of paper. I am told that we are seriously overweight for the building and if it were ever inspected, we would be out on the street because we are precariously close to having everything end up in the basement.
There are capabilities to scan the paperwork on a photocopier and create electronic files. We talk about that in the office from time to time. I understand it is a fairly simple procedure and is done in offices on the Hill. The Library of Parliament used that procedure with their human resource and finance files. If we had the technology, our assistants could do it during their down time and make it a long-term project. That would allow us to move the paperwork off site.
The Joint Chairman (Mr. Szabo): Thank you, Mr. Bernhardt. I suggested that we hear your comments on the record so that members not here today can have the benefit of the discussion in the transcripts. This information has been helpful. We will seek consensus and take the appropriate steps.
Mr. Bernhardt: Perhaps we could organize a field trip to the secretariat.
The Joint Chairman (Mr. Szabo): That is a possibility. Let us bring the item forward at the next meeting. We will not take 25 years to make this decision. Are there further matters?
Mr. Wappel: On new business, a few meetings ago we agreed to correspondence requesting responses from witnesses: otherwise we would simply expect them to show up. We were talking about appearances by witnesses for November and it is November. Can someone jog my memory as to the progress? Are we expecting witnesses in the near future?
Mr. Bernhardt: The Minister of Fisheries and Oceans will appear at the next meeting at his own request to discuss the terms and conditions of licences and whether that will be addressed in forthcoming proposed legislation.
The other witness was the Minister of Indian Affairs and Northern Development, who will appear on December 7, although that is not confirmed. It is my understanding that if the minister does not appear, his deputy will be here December 7.
The committee adjourned.