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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 14 - Evidence, February 17, 2011

OTTAWA, Thursday, February 17, 2011

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

Senator Yonah Martin and Mr. Andrew Kania (Joint Chairs) in the chair.


The Joint Chair (Mr. Kania): Let us begin, please. I understand there has been a mix-up in terms of breakfast. We are looking into it for those who were relying on it. We will fix that for next time. It is being brought in now.


The Joint Chair (Mr. Kania): The first item is for the information of members of the Joint Committee. A member had raised a question about whether counsel was permitted to ask questions of witnesses at committee hearings. Mr. Bernhardt prepared an answer in terms of the past practice of the committee. We do not need to review it unless there are questions. You will see from the first item that it has happened on numerous occasions, as you will read from the detailed analysis. In past practice, with consent of the committee, it happens all the time. Are there questions?

We will move to the first item on the agenda.


The Joint Chair (Mr. Kania): We heard from a witness on this matter last fall. The proposed draft letter before committee today is the result of counsel's analysis of that evidence heard. The proposed draft letter would be sent to the director general based on the testimony. Counsel, please explain.

Peter Bernhardt, General Counsel to the Committee: As you indicated, Mr. Chair, we have the draft letter this morning as per the instructions of the committee. The committee also wanted Transport Canada to provide further details concerning the structure of the Office of Reconsideration, independent advisers to the office and the process by which they are appointed, and the number of individuals who have missed flights as a result of the verification process. The information was provided along with the January 17 letter from the department. They are in the package for members this morning.

The draft letter suggests that there continue to be issues relating to the adequacy of the review process run by the Office of Reconsideration and the fact that significant elements of the program, such as the creation of the specified persons list and the review process, have no legislative foundation.

The draft letter addresses those concerns in some detail and concludes by asking whether consideration will be given to placing this program on a statutory basis. Details of the review of the regulations that is apparently underway are also requested.

In connection with the last sentence of the draft, we have copies of the interim orders that were referred to in the course of the December 2 committee meeting. The request for those at the end of the letter can be deleted.

I would draw the attention of members to an excerpt from the Marine Transportation Security Regulations that we have included in the materials. The Office of Reconsideration also provides recommendations to the minister concerning reconsideration of a refusal to issue a security clearance under the Marine Transportation Security Regulations. This is a similar process to that employed as part of the Passenger Protect Program. However, in this case it is set out expressly in the regulations. It is suggested that this is the same approach that should be taken for the Passenger Protect Program.

The letter has been prepared from counsel to the department. It is open to the committee to decide whether the letter should be sent to the minister from the joint chairs.

The Joint Chair (Mr. Kania): Are there comments on the contents of the draft letter?

Mr. Lee: I congratulate counsel for a very good letter. It does not use real hard language in connection with statutory basis. It uses our customary dance whereby we are a little concerned and we do not quite understand; and I would not expect the letter to state otherwise. If we were to conclude or come close to concluding that there is no statutory basis for this, it might potentially undermine significantly the Passenger Protect Program. I accept the language and I speak to it now so the record shows that I am pretty close to 99 per cent sure that there is not a statutory basis and that they have a serious problem here. I speak for that purpose only, and I do not quarrel with counsel's wording.

The last sentence of the letter says: ``Your advice as to the details of this review and where there is an expected completion date . . .'' Maybe ``where'' was intended to be ``whether.''

Mr. Bernhardt: Yes, absolutely; thank you.

The Joint Chair (Mr. Kania): I note that the food will arrive in 15 minutes.

Mr. Saxton: I agree with my colleague. This letter is well written, and it should be sent to the department. I also have a minor correction to make at page 2 in the second-to-last line of the first complete paragraph. It says ``. . . would only by furthered by . . . `` I think it should be `` . . . only be furthered by. . . . `` I did not see any other problem with the letter.

Mr. Bernhardt: Absolutely.

The Joint Chair (Mr. Kania): Are there other comments on the letter? Are members agreed that the letter be sent as is, subject to those changes?

Hon. Senators: Agreed.


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

Mr. Bernhardt: A number of amendments to these regulations have been agreed to. The forecast completion date of October 2010 has come and gone. I suppose the department should be asked exactly where things stand at this time.

The committee had also taken the view that the Forestry Act itself should be amended to provide express authority for the making of regulations establishing fees. As explained in the joint chair's June 17 letter to the minister, it is well established that regulations enacting fees require express authority. Here it can be said that such a power is implicit in the act in that the act deals with the granting of licences to harvest timber. Presumably, Parliament did not intend that those rights simply be given away. Nevertheless, it would be preferable if the act expressly provided for charging fees. In his reply, the minister seems to accept the point in principle but argues that, even if an amendment did not reflect a change in policy and even if it were to proceed by way of a miscellaneous statute law amendment bill, it could raise questions in the mind of the U.S. in the context of the Softwood Lumber Agreement. The minister therefore concludes by indicating that an amendment would be considered, should a comprehensive review of the act take place, but at this time it would be unwise to proceed.

I suppose the committee could ask whether such a review is contemplated for the foreseeable future, although I expect the answer to that would be, no. However, given the committee has accepted that the authority to collect the fees can be implied in the act in this case, other courses of action appear to be limited.

Mr. Anders: My father used to deal with softwood lumber a great deal in the area of forest products for Canadian National Railways. We are in a tough spot. The Americans view this very differently than we do in terms of our stumpage fees and how our forest companies are charged with regard to the royalties that apply to lumber. For us to give greater discretion right now and make changes to the act would not be viewed well by the Americans. It would be seen, in a sense, as opening wider the existing chasm with which they take umbrage in terms of trade disputes. This is bad timing.

The Joint Chair (Mr. Kania): Are there other comments?

Mr. Lee: I want to confirm that counsel would agree that there is sufficient statutory basis to allow for the legal collection of fees, even though the statutory basis might be a little wobbly or incomplete. Is that correct?

Mr. Bernhardt: That is the conclusion the committee has reached. The general principle is that express authority is required. In this case, there is no express authority, but it is difficult to imagine that Parliament would pass a statute governing the granting of leases and licences for timber and not contemplate that someone might be charged for that.

Mr. Lee: Okay.

Mr. Bernhardt: The exception proves the rule in this instance.

Mr. Lee: I understand that and the point made by Mr. Anders.

The Joint Chair (Mr. Kania): What does counsel propose?

Mr. Bernhardt: The committee has two options. One option is to write the minister to ask whether they contemplate a review of the act any time soon, which would keep the file alive, as it were. The other option is to accept that the committee has made its point and the point has been accepted in principle. It could be left at that.

The Joint Chair (Mr. Kania): Should we close the file and monitor it?

Mr. Bernhardt: Do that or write to the minister one last time to ask whether they expect to rewrite the act in the near future. I expect the answer to that would be, no.

The Joint Chair (Mr. Kania): If that were the response, would we close the file? Is it agreed to write?

Hon. Members: Agreed.




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

The Joint Chair (Mr. Kania): Since the last election, the committee has never considered substantively the issue. The file goes back years, and I understand previous incarnations of the committee made a decision that there might be some problems in terms of the regulations because of the decision of the Supreme Court of Canada in R. v. Zundel. Since that time, the CRTC, Canadian Radio-television Telecommunications Commission, was asked to address it in terms of their opinion. For approximately 10 years, they have done nothing. Since the last election when most of us were new to this committee, we have sent one or maybe two reminder letters asking them to write back to provide their position on the request of the committee from approximately 10 years ago.

That response has not been provided, and they have proposed changes to the regulations. There is a lot of documentation on the file. I asked counsel to prepare on one piece of paper, which was sent around this morning, the current regulatory provision and the proposed amendments, which are 8(1)(d) and 8(2). The text of the amendments is seen in bold for ease of seeing what we are discussing — the existing law and the proposed amendments. We need to discuss how the committee will respond to the CRTC with respect to these proposed amendments.

All of the substantive documentation has been provided to members of the committee who have had an opportunity to review it. This is the first time that any of us have seen it and the first time that we are discussing this issue. In terms of whether we agree, I will start off with whether we even agree with the analysis of previous committees. It is for this committee to decide anew.

I will end there and ask counsel to take over.

Mr. Bernhardt: That is a good summary of the history of this file.

A number of amendments were promised to the committee. Some of those are included in the 32 pages of overall proposals and some were not included. Those that were not included were noted to give the CRTC a heads-up in a December 23 letter from counsel. Subsequently, we were advised that the amendment removing the provision in point 4 had been dealt with, and that point 3 having been left out inadvertently in part would be addressed in the final amendments. Unfortunately, the CRTC declined our request to put that in writing, so I have only the oral report to give the committee.

There are two other matters relating to the Canadian Charter of Rights and Freedoms. The first is section 8(1)(c) dealing with the use of profane language. The other is section 8(1)(d) dealing with the broadcasting of false news. This originally came up because of the Zundel decision. When the file was initially reviewed, it seemed that the provisions in question were close to what the Supreme Court struck down in Zundel. Given that, the CRTC was asked for its views and an explanation of the grounds on which it considered its regulation was different.

A rather sketchy reply was provided. That was responded to back in 2002. Since then, the committee has been unable to pry a substantive reply from the CRTC. In 2004, it was suggested that a case before the courts might provide some guidance and that they preferred to wait until that had finished. Eventually, that went to the Supreme Court. The Supreme Court decided it without any reference whatsoever to freedom of expression.

The CRTC then suggested that its regulations were not really regulations within the meaning of the Statutory Instruments Act and, therefore, were not subject to review by the committee in the first place. It took a certain amount of time to counter that suggestion. In the end, it was suggested to them that the position had no merit and, apparently, that was accepted.

I understand that the CRTC is describing the history as its resisting making an amendment. I suggest the CRTC has resisted replying to the committee. It has had 10 years to provide a detailed rationale that justifies the provisions under section 1 of the Charter. For whatever reason, it has chosen not to do so.

However, in February 2009, the CRTC advised that the committee's concerns had been reviewed recently, some eight years after they had been raised, and that they would proceed with amendments. We asked for details of the amendments. None were forthcoming until we were advised on December 10 that, as of that date, proposed amendments had been posted on the Internet for consultation.

Those amendments are before the committee this morning. They seem similar, in fact more similar in some respects, to what the court struck down in Zundel. In our view, it is not readily apparent that they comply with the Charter. Presumably the CRTC has considered that issue in great detail since they have come up with the proposed amendments. One would think there would be no problem in providing that detailed rationale to the committee. That is where we stand.

The Joint Chair (Mr. Kania): I will make a suggestion, which counsel may comment upon. The notice of consultation indicates that their proposals become effective September 1, 2011. Given that sort of deadline, I suggest that we need to respond by saying we like the old regulations and we do not know why they need to be changed; or we like the proposed amendments, so please feel free to proceed and we are okay with them; or we do not like the proposed amendments and this is how we think they should be changed. We must take one of those substantive fulsome positions in such a situation as this because if we say nothing, when September 1 comes, these amendments will go through. I will open up the discussion to comments from the floor.

Mr. Lee: I have several.

The Joint Chair (Mr. Kania): I am sorry, Senator Harb is first.

Senator Harb: I defer to Mr. Lee.

Mr. Lee: Our exercise should not be seen as a necessary part of the public consultation process. It is quite rare that we get a consultation process that would allow this much input over this much time. Our work on this should be seen as separate and going back quite a ways. I, too, regret that the CRTC has not given this as much attention as I think they should have given earlier. As a result, we do not have a workup on this that is sufficiently adequate. Two things happened in the past: First, this committee was able to expand the power of disallowance to this type of agency. Prior to about 10 years ago, our power of disallowance would not have been usable with respect to the CRTC, but now it is usable.

Second, the Zundel decision, the sections and words of the Criminal Code were quite similar to the kinds of words used in the impugned regulations. Everyone was seduced, even I, upon first reading. I thought that given the Supreme Court struck it down in Zundel, they sure would strike it down here.

However, as I thought about it more, I began to see differences. If the CRTC had engaged in this earlier, we would have dealt with these kinds of issues. However, this restriction on expression exists within the umbrella of a licence. This restriction in the regulation does not apply to the whole country; it is a restriction put on a licensee. People who have licences do not have unrestricted freedom. In fact, that is why we license it. At some time around one o'clock this morning, I decided I would check the statute before I arrived here this morning. I found that section 10 of the Broadcasting Act sets out the kinds of restrictions that they are able to enact by regulation. For example, they can make regulations respecting standards of programs and the allocation of broadcasting time, et cetera. A whole list of statutory restrictions can be enacted by regulation by the CRTC.

There are all kinds of impairment of freedom of expression when you have a licence from the CRTC. In my view, the CRTC should have addressed this a long time ago and dealt with the ambit of a licence situation. It should have determined the kind of restrictions that it can put in place statutorily. We have to go back to square one on this file. We could suggest the reference to Zundel and ask how this provision could be saved given that the wording is so similar. We have to allow the CRTC to make the case that this is a licence. Parliament has asked them to manage the licence, and put terms and conditions and fees and several types of restrictions on licences. There is a reference to restrictions on political broadcasts, time allocation, advertising, and perhaps advertising standards. I would ask the CRTC please to do a workup on this and describe the limits of the restrictions on freedom of expression under a licence. What are the limits for the licensee? We do not have that information today. We are flying blind.

Personally, I have not reached any kind of a conclusion on this because I do not think they have done the work up on it; and they should not expect our counsel to be their counsel. We have challenged them on the issue, and they should be responding to us in good faith. We should write back a letter that induces them to make the case.

The Joint Chair (Mr. Kania): I will add that the Zundel decision dealt with prosecution under the Criminal Code. That was what was challenged under the Canadian Charter of Rights and Freedoms.

This is dealing with, as you indicate, a licence. Under the law, there is the general concept that a licence, generally speaking, is a privilege, not a right; there is a distinction in those circumstances.

I did not know the answer myself, but I asked counsel this morning whether there have been any challenges to these regulations in the courts. He is not aware of any and I am not aware of any.

Mr. Bernhardt: I am not aware of any. I do note that the CRTC, at one point, advised that these were ``seldom used.'' I am guessing they may have never been used.

Senator Harb: Obviously, the Supreme Court decision was not unanimous; it was quite a split and that really speaks to the complexity of the issue.

On the proposed amendment, I am not sure what they have in mind, whether they thought by proposing this amendment they would be able to make it a little clearer for future cases before the court, or whether they were doing it because they thought this is what we want to do, tighten the regulation in a way.

I have a specific problem with the proposed amendment, in particular section 8(1)(d). In (d), it says that:

. . . news that the licensee knows is false or misleading and that endangers or is likely to endanger the lives, health or safety of the public;

I would have rather liked to see them, after the words ``or misleading,'' rather than using the word ``and,'' to replace it by ``or.''

The reason for that is section 8(1)(d) could be challenged if you do not meet the more complex test that it is ``false or misleading'' and by putting ``and'' instead of ``or,'' you are making the test that much more difficult to meet and someone could sneak in through the loophole.

Counsel may be able to advise us whether it would be advisable to suggest an ``or'' instead of an ``and.''

Mr. Comartin: I got involved in this issue before I knew it had arisen from this committee. When I found out it had arisen from this committee, I had an extensive conversation with Mr. Masse and came to the same conclusion that Mr. Lee came to — that the analogy to Zundel is not the right analogy. It is not the case that is applicable. It is not the law that is applicable; it is not the Charter principles that are applicable, so the fundamental approach that was taken, questioning this based on the Zundel decision, is erroneous.

That is not to say this language could not be cleaned up. We have voluntary standards within the broadcasting industry that require you double-check your facts, you try to get two sources — all those standards. Some of those additional things could be put in to clarify, but to suggest that this section is invalid because of Zundel is not the right legal approach at all, as far as I know.

Based on what was in the letter, that section 8(1)(d) has not been challenged, I think is a good indication that Zundel does not apply. It is the point you made, Mr. Kania, about the privilege versus the right, because the licence is a privilege accorded by government, the Broadcasting Act has every right to impose criteria.

Senator Fraser: Thank you, colleagues, for allowing a visitor to join you for this. I would agree that the Zundel case is absolutely irrelevant and indeed damaging in this context. There is a world of difference between a Criminal Code offence and complying with conditions of licence or CRTC regulations.

In my 30 years as a journalist, when I followed these matters quite closely, I never heard a single complaint about the regulation as it stood. I did hear endless complaints about many elements of CRTC regulation, but not this one.

Of the three options that you outlined, chair, I would suggest that the first would be the preferable one. If the committee wishes to hear witnesses and whatnot and continue correspondence, that is for the committee to decide, but my preference as a visitor would be that you end up with option one.

The problem with the proposed new regulation is not that it reflects the old language of the Criminal Code. The problem with it is that, every time you put something into a list, then by definition, you exclude everything else. When you start specifying that the false and misleading news you are talking about is only news that endangers or is likely to endanger the lives, health or safety of the public, you leave wide open the door to all other forms of false and misleading news.

The Broadcasting Act says, among other things, that the Canadian broadcasting system should serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada. The free and wilful circulation of false and misleading news will not do any of those things, I would suggest.

The Joint Chair (Mr. Kania): Even looking at this proposed amendment in terms of the options, when you look at (d), ``news that the licensee knows,'' what does ``knows'' means? How can we rely on that and say that is sufficient by way of our criteria?

I do not think we have the option of simply saying yes, the amendments are good. We have the first suggestion by Senator Fraser to say that the current regulations are acceptable, and this committee does not agree with previous committees in terms of the legal analysis, in terms of Zundel; we have that option, or we can suggest changes, but I do not think we have the third option of simply saying these are adequate, in my opinion.

Mr. Anders: I think that, for example, when Mr. Harb was wishing to take out ``and'' and put in ``or,'' it would further restrict freedom of speech. I will use several different examples because sometimes people get emotionally caught up on the Zundel issue.

My guess, to address that for a second, is that what was probably going on is that his program was probably alleging that the holocaust did not take place. Therefore, the argument was made that by alleging the holocaust did not take place, he was misleading the public and therefore inciting hatred against Jews. That is my guess.

In a political speech context, I remember many years ago in one of my previous iterations — probably the first or second election that I faced — I had a Natural Law Party candidate; many of us did.

I do not happen to be such an ardent believer in transcendental meditation that I believe having yogic flyers in Ottawa will solve health care or a number of other issues; but those people who believe in transcendental meditation do believe — some of them maybe — that having yogic flyers in Ottawa would solve those issues. If they go ahead and broadcast, either politically or for other purposes, that yogic flyers will solve the nation's problems, that is where this test comes in, right?

First, do they know they are spreading mistruths? I would argue that some of their adherents probably do not know they are spreading mistruths. Second, is spreading those mistruths endangering the public?

It is valuable to have that ``and'' test because if they believe the yogic flyers will solve the problems of the country, I do not have a problem with them putting that out because I do not think it endangers anyone. There are those who would argue that maybe that does, but I think that when we are drafting law, you do not use a hammer to go after a flea.

If yogic flyers are not a problem, you do not go ahead and draft it so you can crush them legally and with the power of the state to restrict their freedom of speech, because really, what is the harm?

I would say that by tossing in the word ``or'' instead of ``and,'' you make it that much more onerous, and are restricting freedom of speech that much more. It comes down to the issue of do they know what they are saying is false. Even if it is, is it really detrimental?

If you have the Flat Earth Society out there saying that they believe the earth is flat and not round, how detrimental is that? I offer that.

Senator Moore: I, too, like you, have focused on the word ``knows,'' and I guess this touches on the comments others have made here this morning. Broadcasters can say something that is false — so-and-so is a pedophile. How do you know? I heard from this person; that person is a rock of society so it must be true.

The broadcaster can be excused from publishing or circulating that false news because they say, well, the other person said it was true. All of a sudden, the broadcaster is removed from the threat of legal action because that is what this would do, but that standard of good investigative research and reporting, which Canada has, would be removed. I am concerned about that.

They used to have the fair comment doctrine in the U.S. and Ronald Reagan removed that. That has led to the extreme things, such as Fox News and so on, where people can say what they want about individuals.

When false statements are made, how does the victim get his or her reputation back? How do you put that person back where he or she was in the community at large? I am very concerned about that. I think we are lessening our standard of journalism and good reporting — television, print and all the other types of media.

I know we are here to do the regulations. In this case, I think we have a little broader duty to put this to the people at the CRTC. This is a huge step and I think it is wrong; it is backward in the policy of Canadian broadcasting.

The Joint Chair (Mr. Kania): Other comments?

Mr. Lee: In a way, the good news is that the old regulation that we thought might have had some legal difficulty is now proposed to be replaced. It is the proposal of the CRTC.

What we would normally do is review any regulation they would make after they make it. We are way out in front on this one for different reasons. We should probably let them do their job.

If they choose to speak with our counsel for some particular reason, that is great, but they have to design a regulation to replace the old one — or at least that is the kind of proposal — and we wish them well on that because it will not be easy.

There seems to be an appetite out there in the public — I am sort of going sideways here — for some kind of regulation of what is being broadcast. There seems to be an appetite for that. However, the basis on which the CRTC would do it will have to be reflected in what they will draft as a regulation.

We all have views on this and we can write to the CRTC. I do not think the committee has a firm view on what they should do, but we should flip this over until after they put a regulation in place and then we will review it the way we normally do.

Mr. Anders: One of the comments I think actually speaks to it. For example, on the 8(2) at the very bottom, I think that the proposed amendment is more reasonable. When it comes to section 8(1)(d), I think that change there probably does remove a bit of onus, as the senator points out over the issue of ``knows'' — and he gave a great example.

He may not be a fan of Fox News. I was the only member of Parliament to write asking the CRTC to allow Fox News into Canada. While he may not enjoy what Fox News puts out, I and many of my constituents do.

There, if we give that extra power to the state and we ratchet it up to give them more and more of that hammer to hit the flea, his version of ``knows'' may not allow for my version of ``knows'' and therefore restrict my access to freedom of speech.

I would certainly not go as far as Senator Harb is suggesting with regard to removing the ``and'' and putting in the ``or'' because that tightens it that much further. I think the way it is structured is somewhere between those two aspects of the pendulum where it stands now.

The Joint Chair (Mr. Kania): I hope you included Fox Sports.

Ms. Jennings: My understanding from reading the correspondence of our counsel with CRTC and the previous communications between this committee in the past is that this committee, in the past, reviewed the regulations, which exist to this day, under the light of the Zundel Supreme Court decision, and deemed the regulations to have a problem. It asked the CRTC to respond to that and 10 years has passed.

The CRTC has now proposed amendments to the existing regulations but this committee, if I am not mistaken, is in agreement that the original incarnation of Scrutiny of Regulations that deemed there was a problem with the existing regulations based on the Zundel decision was wrong — that the Zundel decision and ruling did not apply to the regulations at that time.

If the decision — and I agree with that — did not apply, was not an appropriate test for examining the regulation at the time, it is clearly not appropriate today. Therefore, my position would be I do not even want to look at the CRTC's proposed amendments. I would like us to look at the existing regulations, determine whether we believe, under the appropriate test, whether those regulations were adopted in accordance with the legislation governing the CRTC, according to its authorities and powers.

We may decide that the existing regulation is sufficient and does not require any amendment, in which case we would so inform the CRTC. On the other hand, if our committee decides that, yes, the current regulations, under an appropriate review by us and test by us, deem that there are insufficiencies in the current existing regulations, then we would look at what the CRTC is proposing.

We all seem to agree that the Zundel test was not the appropriate test for reviewing the regulations. Then we need to go back and determine whether or not the regulations are sufficient, are legal, are appropriate and were properly adopted within the scope of ``la loi habilitante.''

I have looked at the existing regulations. I personally think there is no problem with them, but I think that it needs a decision of the majority of the committee.

My proposal is that we inform, very formally, the CRTC, if we have not already done so, that we believe that this committee, when it applied the Zundel test, was incorrect; that Zundel was not the appropriate test for X and Y reasons. As such, this committee is now going to review anew the existing regulations with the appropriate test in order to determine whether or not those regulations are sufficient, are legal, et cetera, and we will inform the CRTC of our decision. It could be unanimous, a majority or whatever. That is what I would propose to this committee.


Senator Hervieux-Payette: My first question is for counsel. A Canadian citizen contacted me to say that the committee's secretariat would not provide him with the information related to this contentious issue.

I would like to know exactly what is available on the website. Are all of the committee's proceedings posted on the website? Once our meeting minutes are finalized, does the public have access to our comments and decisions? I think we need to know that. I could not quite answer the question, because I was waiting to bring it up at our meeting. But the last time I checked, the deliberations of our committee were not confidential. Certain parts of our meetings may take place in camera, but most of the time, they are available to the public.

I would like to know exactly how people find the minutes of the committee's proceedings because ours is one of the most prolific committees on Parliament Hill when it comes to documentation.


Mr. Bernhardt: Every piece of correspondence to and from the committee, as it appears in the materials, is printed as a series of appendices in the paper version of the proceedings that the Senate, until this January, was doing. As of January, the Senate is adopting a policy that the House of Commons has had for some time and is only going to post those electronically. There will no longer be a paper copy.

Therefore, we are now arranging to have those posted as attachments on the website as well. They have always been publicly available, however, after they have been submitted to the committee. Correspondence that has yet to be seen by members is not circulated to the public.

For example, if someone was looking for the December 23 letter from counsel and asked us for it, our response would be that after the committee has seen it and dealt with it, we will be pleased to provide you with a copy; and, in fact, it will be posted on the website from now on so that is all publicly available.

The only caveat is that we have always taken the position that it is to be dealt with and seen by the committee and its members first. Any of the correspondence, once it has been to committee, is publicly available. We do provide it on request and it is there in the libraries.


Senator Hervieux-Payette: My colleagues may not agree, but I think the voluminous correspondence we receive from Canadians is probably the reason why our committee has become famous. I have been on the Standing Joint Committee on Scrutiny of Regulations for 10 years, and I have never received so many letters. So at least something positive has come from this, and that is people now know we exist.

Second, I wanted to say that there is a code of ethics that applies to all parts of the media: newspapers, radio, television and even advertisements that are posted. In the past, I filed a complaint about a violation of that code of ethics and was successful.

I think the code of ethics that journalists follow, that people in the media must observe, is certainly a good foundation because when you have the profession itself accepting those standards, it stands to reason that it should be regulated.

That is all the more true when it comes to television because it is virtually happening in real time, so people really need to respect that. We could always suggest the same model to our friends at the CRTC because, practically speaking, the least that members of this profession can agree to is to be subject to such a code of ethics.

I think it is important not to have a dichotomy and to have the profession consent to regulating itself.


Senator Moore: Mr. Anders' ``knows'' and my ``knows'' may be the exact same thing so long as it is the truth; that means that behind that is the traditional standard of the pursuit of truth by licensees.


Senator Fraser: I would like to make a slight clarification. The code of ethics Senator Hervieux-Payette was referring to does indeed exist in Quebec, but nowhere else.


Elsewhere in Canada, there is a far wider range of opinions on whether an overarching code of ethics would be appropriate.

Some media have their own internal codes. CBC has an exhaustive list of standards. Others do not. Anywhere that I am aware of in journalism, the provision of false news is a firing offence. There is no debate at all about whether you should be allowed to transmit, over the air or by whatever means, false news.

I would steer clear of the word ``knowing.'' In court, if you get to court, honest belief is a defence at law. However, the ideal would be to keep things as simple and unobtrusive as possible.

With respect, I would not wish us to be drawn into a debate on the merits or otherwise of Fox News. The Canadian broadcasting system is supposed to produce a wide range of opinions. The only issue here is news — which is to say, information, fact, to the extent that truth can be known, and that is a philosophical discussion we do not have time for.

Mr. Kamp: We do not have time for that philosophical discussion. I think the matter before us, put most simply, is that in past years this committee, through its counsel, advised the CRTC that they felt that this regulation was not justified under section 1 of the Charter. To me, it is not so much a matter of whether this meets the Zundel test; it is whether it meets the test of the Charter at its core.

Based on that advice to the CRTC, they have gone on this process of now proposing these new regulations, gone through some consultation sessions. Now this committee is questioning whether the advice it provided to the CRTC was actually right. We need to figure that one out because this thing is now in the public and becoming a focus.

The Joint Chair (Mr. Kania): I will comment on that. There is no reason why anyone should not know this, but counsel has advised me that what occurred in the past was not so much that the committee said there was a problem, but they raised it as an issue for the consideration of the CRTC in light of the Zundel decision for them to consider whether something should be changed.

From everything I have heard, what I am taking from this is that all of us agree that the analysis that Zundel might be a problem for these regulations is suspect.

I would suggest perhaps as an option that we write back to the CRTC; we thank them for the proposed amendments but we also let them know that this version of the committee does not see the Zundel decision as an impediment to the continued operations of the current regulations, and invite them to consider whether they still wish to make changes in light of that comment.

If they say yes, and they still intend to proceed with these, we can still analyze these, provide them with a further opinion, discuss this and go through that entire process. However, the discussion would be ended if they say, ``No thank you. Based on that analysis with respect to Zundel, we are content with the current regulations — we do not need to change them.'' That ends the discussion.

What do members think of that as a proposal?

Ms. Jennings: I so move that we instruct our legal counsel through the chairs to do that. You all followed that, right?

The Joint Chair (Mr. Kania): Good. Shall we move on?

Mr. Anders: I have one final comment. I am not sure it is an issue worth plumbing the depths of, I will go along with that. To Ms. Jennings' point, whether or not she thinks it is an appropriate test, it is the ``hot potato'' that has arisen with regard to this. I will leave it be.

The Joint Chair (Mr. Kania): Good. We are agreed that is what we will do, and we will move on. We will write to the CRTC and advise them of that. Counsel, provide a draft letter for the chairs to consider.

Mr. Bernhardt: That is fair enough. However, if I were the CRTC, I would simply write back and say ``fine,'' then close the file.

Mr. Lee: What are we advising the CRTC?

The Joint Chair (Mr. Kania): We are advising the CRTC that this version of the committee does not see Zundel as an impediment to the continuation of the current regulations. If they wish to make changes to the regulations for other reasons, we are not here to set a policy. However, if they are making changes to the regulation simply because we have advised them that Zundel might be an impediment to existing regulations, we are removing that because we do not believe that Zundel is an impediment to their current regulations.

If they want to change it for other reasons, they have the right; that is not for us to decide. We can consider that separately if they still decide they wish to make changes.

Mr. Kamp: To be clear, in 2002 we said to them: ``I find it hard to see how it could be justified under section 1 of the Charter.''

Mr. Bernhardt: We never got an answer.

Mr. Kamp: We got an answer. They said they reviewed the contributions of the committee and now we are proceeding with these.

Mr. Bernhardt: Presumably, they agreed with the committee that the present regulations were unjustifiable under the Constitution or they would not have proceeded with the amendment. Why are they proceeding with the amendment if they do not think there should be a change?

Mr. Kamp: We need to be clear in this letter that the advice we gave that we thought it could not be justified is no longer our advice?

Senator Moore: What Mr. Kamp said is right on point and it ties in with what Mr. Lee said at the beginning. We are dealing with the privileges set out in a licence, whereas Zundel was a matter of the Criminal Code and rights.

Mr. Lee: We have to be careful here. We never gave advice. We have raised issues and questions, and that is how it was put to the CRTC. They failed to engage on this until just recently, and now they say they will change that regulation. Changing that regulation in part we think accommodates some of the issues we raised earlier. However, there still might remain freedom-of-expression issues here.

I do not think we should go back and change what we wrote before. I think the record shows the current views of the committee members. The CRTC has embarked on a course it has chosen. It would be difficult for counsel to write back and say, ``Remember that letter we wrote 10 years ago? We are rethinking it now.''

We might not be rethinking it now — I do not know.

I spoke to this earlier today. There is nothing we can do to stop the CRTC from doing what it is legally empowered to do, and that is what it is doing now. I am cautious about the contents of the letter that has just been proposed.

The Joint Chair (Senator Martin): In the event of the CRTC ignoring our letter, whatever the content may be, and proceeding with these amendments, should we be commenting on the proposed amendments as well through counsel? They could very well ignore whatever issues we raise because they have done that up to this point.

This will come into effect in September 2011. This is much more complex. It has been very interesting for me to understand the history of it. However, I know Mr. Lee was part of that process, as were others around this table, including counsel. Therefore, I think the content of the letter that we create as a committee in response now is very important, as you said.

The Joint Chair (Mr. Kania): It is not counsel's fault if he writes back and clarifies, withdraws or modifies previous opinions of the committee. We are allowed as a committee to provide different opinions from previous committees. This all started because a previous committee indicated that, because of the Zundel decision, clause 8 here may not be allowed to stand.

From what I take from this discussion, and I believe this personally, we do not believe that the Zundel decision means that regulation 8 cannot stand. That is a clear distinction from what the previous committee said because the previous committee raised it as an issue. If this committee had considered it at that time, based on how we are currently constituted, we would not have raised it as an issue; we would have let it go and this never would have happened in the first place.

I think we are all saying is that we need to take a step back and say, ``This committee does not think that Zundel means regulation 8 needs to be changed.'' Then you decide if you still want to make changes. They do not need our permission to make changes. We review the changes they make.

We do not set policy. However, we do have an obligation to say that, on sober second thought many years later with a new committee, we do not think Zundel means that regulation 8 cannot be in force. Leave it at that and let them make the decision as to whether they wish to make changes, because they can do that without our permission anyway.

Mr. Anders: I think we are skirting the issue. I think you really are dodging something that was started 10 years ago, and you are trying to bury it.

Regardless of Zundel, the proposed amendment is better than the previous 8(2). You can have some debate over subsection 8(1)(d). It removes some of the onus with regard to whether they know what they are saying is false or misleading. However, generally, the amendment is better than the original and, regardless of Zundel, if you apply the case of natural law, yogic fliers or flat earth societies, it is better wording.

The Joint Chair (Mr. Kania): I want you to understand I am not saying you are right or wrong. I am saying that is stage 2. Stage 2 is to comment upon proposed amendments if they still wish to make those amendments in circumstances where we have advised them that Zundel is no longer an impediment to the continuation of regulation 8.

If they write back to us and say, ``We still want to make these changes. We think that they are better than current regulation 8,'' then we have that discussion. I think that is fair. However, we have an obligation to go back and tell them that they do not have to make changes if they do not want to, because this incarnation of the committee does not believe that regulation 8 will fail the test in Zundel under the Canadian Charter of Rights and Freedoms. That is the issue.

Mr. Anders: I think you are still skirting the issue.

The Joint Chair (Mr. Kania): I am not trying to skirt it. I am trying to say that you might be right in what you are saying in terms of the analysis of whether these are better or not. I am not saying I disagree with you in terms of whether these are better or worse in terms of the proposed amendments.

I am saying that my current opinion is that they have offered these amendments because the previous committee said to do something because of Zundel. We have to let them know that they ``do not need to'' do something unless they want to. It is their choice. We do not set policy at this committee.

Mr. Anders: It is weak. Even if you apply it just to the Zundel case, I think it is weak.

The Joint Chair (Mr. Kania): Does anyone else at this table believe that the Zundel case requires the CRTC to amend current regulation 8?

Mr. Lee: At no time did the committee reach a conclusion on this and it is unfair to suggest that happened. We raised the issue. The CRTC did not engage. The issue remains unresolved today and it has not been litigated anywhere.

In we are to come to a conclusion that there is no linkage between the Zundel decision and existing or past regulations, we can do a workup on that, debate it and we will get some legal opinion. However, we are not there yet. In fact, it is quickly becoming moot.

If members want to write back and say that we have decided we do not want to pursue the issues raised in the letter 10 years ago or whenever, that is okay — we do not want to pursue it.

However, I am just thinking about the words that the chair just used. I do not want to use those words like ``we have concluded that Zundel has nothing to do with anything'' or ``we have concluded there is no linkage.'' I do not want to reach a legal conclusion until we have done a workup on it, but doing a workup on it now looks awfully moot to me.

If members want to write back and say that members do not want to pursue the item or whatever wording we raised 10 years ago, and that we will close our file on it, we can do that. However, I do not want the committee to be saying ``we have reached a conclusion'' that there are no legal issues or no freedom-of-expression issues, et cetera.

I am happy to close the file on it. I simply do not think the committee has firmed up on the legal issues, because no one has done a workup on it.

Senator Moore: Maybe our letter could say that it might be that their commission deems that the Zundel case is not applicable in matters of licence conditions, or licensing, we do not think they addressed that element in the past, and we want to hear from them on that. Is that not really what is at the heart of this thing?

The Joint Chair (Mr. Kania): Mr. Lee's point was correct. The previous committees before the last election have never offered a firm opinion as to whether Zundel required the regulation to be amended or deleted. They raised it as an issue. Mr. Lee is right in terms of offering a legal opinion. We are really discussing the withdrawal of the issue from this committee to the CRTC, and they can then decide how they wish to proceed if they still wish to make any amendments.

All we need to say is that we are taking this off their agenda from our perspective; this is not a concern or issue for us. They still decide whether they wish to make changes in light of that.

Do members agree with that?

Some Hon. Members: Yes.


Senator Hervieux-Payette: I agree with the last comment, and not just in this case, but in all of them. We are not here to give a legal opinion. I agree with Mr. Lee in terms of saying we raised the issue. I was here ten years ago when we said that it may apply. It was up to them to do the work, not us. We simply raised the point.

Now, we are realizing that we do not have a legal opinion, aside from the Supreme Court ruling. We should say what you just said. I would support a note to that effect, stating that if they still want to pursue the matter, given that we are not obliged to make a decision regarding Zundel, we would reconsider amendments to the regulations or not. At least, we would be following up by saying that one does not necessarily go with the other.

That is my understanding. If my colleagues agree, I think that is how we should proceed, along those lines.


Senator Harb: We have to be extremely careful in whatever we write to the CRTC because there is a track record. There were a number of communications that went back and forth between the CRTC and the committee. Whatever counsel is to write to them has to continue to be consistent at least with the principle of what has taken place.

I do not think we need to do it now. We should allow our counsel to reflect on a proposed response and communication from the committee. Perhaps at the next meeting, he can come back with a suggested action plan. At this point, I would not do anything any further. I would put it aside, allow counsel to come back with a suggested response, and then move on from there.

Ms. Jennings: I believe I was part of this committee 10 years ago when this issue was first dealt with. I have not checked my files, so I cannot definitively state that I was. However, I believe I sat on this committee from the time of my election for quite a few years following that, so it is quite conceivable that I was part of this committee at that time.

When this committee thought that the Zundel case created an issue for the then- and still-existing CRTC regulations, it did so in good faith. Looking back over it 10 years later, I think the committee now thinks it is possibly not an issue or it should not have been an issue, whatever.

I have no interest in trying to cover my backside on this. I like the proposal that the chair has made. I think Mr. Lee or someone suggested how we should deal with this in terms of basically closing up the file, letting the CRTC spread its wings and doing what it wants. If it does make some changes, then we will look at whatever those proposed changes are. It might be what is before us now or it might be something else.

If everyone is in agreement, can we just instruct the chairs to have letter drafted, as was just recently expressed, and let us move on to another file?

Some Hon. Members: Agreed.



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

Jacques Rousseau, Counsel of the Committee: This file pertains to the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The convention seeks to protect wild populations of species at risk. In Canada, the mechanism for implementing the convention is set out in the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. When a species is added, the act, in accordance with the convention, requires that the Wild Animal and Plant Trade Regulations be amended accordingly to ensure that the species receives protection under the act. To comply with the convention, the act specifies that the change must be made no later than 90 days after the convention is amended.

Upon examination of the regulations during its meeting of April 29, 2010, the committee noted that none of the 13 species were added to the regulations, when SOR/2009-20 were being adopted, within the 90-day deadline set out by the act. In its response, the department stated that other signatory countries to the convention were having similar problems and indicated that the matter could be addressed at the next meeting of member countries. The committee expressed its wish to be kept apprised of the outcome of those discussions and inquired about how the department intended to comply with the act until such time as possible amendments to the act and to the convention were adopted.

The department responded in a letter dated September 20, 2010. It indicated that no amendments to the convention were being considered. The department explained that it would be unable to respect the time frame for the species covered by the new changes to the convention agreed upon at the meeting in March 2010.

The department indicated that the other parties would be informed, but made no mention of what it could do in the future to respect the time frame set out by Parliament in the act, nor did it mention why it was unable to respect the time frame. The act expressly states that it is binding on Her Majesty. It also sets out fines and prison terms for those in contravention of the act.

The department's failure to respect the prescribed time frame suggests that the department does not realize or does not see the importance of making every possible effort to ensure that the act is respected.

Counsel recommends sending another letter to the department to underscore the importance of complying with the act and to inquire how it intends to do so. At the very least, the department should provide an explanation as to why it cannot respect the act. The department could also explain the procedure of tabling the amendments in Parliament, which it refers to in its letter, when the act does not require it to do so.


Mr. Lee: Did I hear that all of these regulations have now been adopted — that things are in order now, even though they missed a deadline?


Mr. Rousseau: Yes, some regulations have been adopted. They missed the deadline, and they informed the committee that they will always miss the deadline.


Mr. Lee: Okay. We will have to tell them, ``Houston, we have a problem.''


Mr. Rousseau: Until the convention and the act are changed, they seem to be under the impression that they will never be able to meet the deadline. They do not provide an explanation as to why that is or how they plan to address the matter. The committee has no clear idea of how the department can resolve this. Nevertheless, as I said, the act is binding on Her Majesty, and it specifically says so.


Mr. Lee: I know how tough it is to be a public servant and get these regulations passed and everything. I think we should write them back and say, ``It is our job to ensure the law is respected. You have 90 days. Give us a game plan or something.''

I do not think we should close the file. We cannot let them continue to not respect the law.

The Joint Chair (Mr. Kania): Are there any comments?

Mr. Saxton: I just have a question. In the letter, they mention 21 sitting days. I do not understand what the relevance of those 21 sitting days is.

Mr. Bernhardt: We did not, either. When we looked at that, we thought there must be a tabling requirement in the act we have missed. We went running through the act trying to find where it says you have to table these for 21 sitting days.

It seems they pulled it completely out of the hat. It is something the department has taken upon themselves that they want to do. There is no requirement anywhere that they have to do that. Then they are saying they cannot do it within 90 days because they do all these other things. However, the fact is they are the ones who decided to do these other things and that has caused them to miss the deadline. It is not imposed upon them from outside.

We can write back and ask them about the 21 days. We are quite befuddled by that, as well.

Mr. Kamp: My understanding is that 21 sitting days is a current government policy that, when there are changes to international agreements and so on, we table them in Parliament for 21 sitting days.

Mr. Bernhardt: The problem is the policy cannot trump the statute. They are still stuck with the act saying you have 90 days to do it. It is up to them to find a way to do it.

The Joint Chair (Mr. Kania): We will write back and ask them how they will follow the law.



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

Mr. Rousseau: The correspondence in this file addresses four points. The first pertains to a regulatory provision stating that permit holders must act in accordance with the conditions specified in the permit. As the committee knows, a provision of this nature means that a person who fails to respect the conditions of the permit is, in so doing, violating the regulations and is therefore liable to the penalties set out in the act, fines and prison terms, in this case.

The committee is of the opinion that such a provision is not legal without a clear enabling authority. The committee explained its reasoning in Report No. 75 regarding a similar provision in the Ontario Fisheries Regulations, 1989.

With respect to the regulation currently before the committee, the department promised to delete the provision in question. It is therefore clear that the committee's work has yielded results concerning this very important point.

As for the second point, the department promised to make amendments that would make both the wording of the regulations and the list consistent with respect to the fees to be paid for certain services. This point also raises the issue of whether it is the minister or the Governor-in-Council who has the power to determine those fees. A similar issue was addressed in correspondence exchanged between the minister and the joint chairs in another file. The department confirmed that the same response would apply to this file as well.

On the third point, the department promised to repeal a regulatory provision authorizing the exercise of an inspection power with regard to any vessel allowed to operate under a permit. The committee noted that there was no enabling authority for the regulations to extend such a power.

The fourth and final point pertains to a promised amendment to harmonize the English and French versions of the act. The department confirmed its intention to do so through the miscellaneous statute law amendment program. The promised amendments have not yet been made. It is recommended that committee counsel write to the department for a progress update.


The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.



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

Mr. Rousseau: The committee noted a discrepancy between the English and French versions of one of the enabling provisions through which Treasury Board adopted SOR/2007-29, specifically section 42.1(1) of the Public Service Superannuation Act. An amendment that would have resolved this issue was adopted by Parliament in 2000, but it has yet to come into force.

The committee wanted to ensure that the amendment would come into force before its automatic repeal under the Statutes Repeal Act. Treasury Board had initially promised to ensure that the amendment would come into force by the end of 2010. In its December 7, 2010 letter, Treasury Board indicated that it was aware of the need to obtain a Governor-in-Council order setting a coming into force date prior to December 31, 2011. Pursuant to the Statutes Repeal Act, a report was tabled in Parliament by the minister, and the amendment must come into force by December 31, 2011, otherwise it will be repealed unless one of the Houses of Parliament objects.

Given that Treasury Board does not foresee any obstacle to the timely coming into force of the amendment, the committee can expect the matter to be resolved this year. If the committee finds that satisfactory, counsel will continue to monitor this file and keep the committee apprised of any progress.


The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.


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

Mr. Bernhardt: Mr. Chair, there have been some delays in getting the promised amendments made. However, last July Parks Canada reported that a second draft had been exchanged with Justice Canada and that Treasury Board had agreed the amendment could go through the miscellaneous amendment regulation process.

A progress report would seem to be in order.

Members may recall that one of the reasons previously cited for delay was that Treasury Board had insisted that these amendments be taken out of the miscellaneous order. The committee then wrote to the minister and had witnesses in from Treasury Board on the point, given that it had always been government policy that any amendment requested by this committee could be included in a miscellaneous order.

The committee received confirmation that remained the policy and it seems that this amendment is now back in that track.

The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.




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

Mr. Rousseau: In this file, the department promised to obtain a number of amendments to the rules, as well as an amendment to two provisions of the Patent Act. As the members of the committee will see upon examination of SOR/ 2007-90 and SOR/2009-139, all the amendments to the rules have been made, except for two.

With respect to those two amendments, the department indicated, in its March 1, 2010 letter, that it was running slightly behind schedule and promised to send the amendments to the minister later in 2010. The amendments have not yet been made. The committee should inquire about the progress that has been made since that letter.

As for the amendments to the Patent Act, the department indicated, in its March 4, 2010 letter, that in one case, the problem was more serious than initially thought. Therefore, the amendment in question would be included in the next review of the Patent Act. The department promised to do everything it could to push this project through quickly.

The other amendment to the act was expected to be made through the miscellaneous statute law amendment act program. The department could not, however, say when the next miscellaneous bill would be introduced in Parliament.

If that process were to take too long, the department suggested adding the amendment to the list of topics to be considered during the next review of the Patent Act. If the committee is in agreement, counsel will write the department to inquire about the status of the amendments to the rules and to the act.


The Joint Chair (Mr. Kania): Are members agreed?

Hon. Members: Agreed.

Mr. Bernhardt: Mr. Chair, I propose we bring the remaining items under 7 and 8 back at the next meeting and jump quickly ahead to numbers 9, 10 and 11, which are Action Promised, Action Taken, and Statutory Instruments Without Comment. I can just deal with those as three groups.





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


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


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

Mr. Bernhardt: Under Action Promised, two identical amendments are promised in connection with each of the four instruments there that are in a group. There is an amendment promised in connection with each of the other two under that heading. We will follow up on progress on those in the usual fashion.


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


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


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

Mr. Bernhardt: Under Action Taken are three instruments. In combination, they make 17 corrections that were requested by the committee.




















Mr. Bernhardt: Finally, the Statutory Instruments Without Comment header lists 19 instruments that have been reviewed by counsel and found to comply with all of the committee's criteria.

For the benefit of any new members, the text of these are not included in the materials. However, we always have copies on hand at the meeting should members have questions or wish to consult them.

The Joint Chair (Mr. Kania): Are there any questions or comments on anything? We will bring those few other items back. We wish everyone a great Constituency Week and adjourn the meeting.

(The committee adjourned.)

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