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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 8 - Evidence, October 21, 2010

OTTAWA, Thursday, October 21, 2010

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:36 a.m. for the review of statutory instruments.

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



(For text of documents, see Appendix A, p. 8A:1.)

The Joint Chair (Mr. Kania): Good morning, everyone. This package of information is a compilation on a number of different regulations, counsel?

Peter Bernhardt, General Counsel to the Committee: Thank you, chair. Back in June, the committee asked that an overview of all the files concerning regulations administered by the Department of Fisheries and Oceans be prepared. At that time, the idea was that the joint chairs would provide the minister with a copy and offer to meet to see what could be done to expedite the resolution of the committee's various concerns.

Before the letter to the minister could be sent, however, the department provided updated responses on many of the files in question; obviously, someone was paying attention. A number of amendments are apparently imminent. Additionally, mention was made of a new process for dealing with issues raised by the committee. That information is all in the August 3 letter, which is in the materials.

Given these developments, it was considered preferable to update the overview of files that was prepared and to bring the matter back before the committee for its further consideration. Several instruments mentioned in the department's letter also appear individually in this morning's materials, where there is a report of new developments. Also, a reply from the minister dated October 2 was received in connection with item 8 in the note, which is the Basin Head Marine Protected Area Regulations. These are also on the agenda later.

Finally, a letter was received on Tuesday in connection with item 2 in the note. That letter has been circulated this morning to members. It indicates that a review of the Marine Navigation Services Fees is underway. Options to resolve concerns are being explored and there is a promise of a detailed response as soon as possible. I suggest this individual file can be placed on the agenda for the next meeting.

That leaves only the first and third items in the note as matters in respect of which replies from the minister have yet to be received. I suppose in the normal course of affairs, further requests for reply would be sent from the joint chairs following today's meeting. The question for this morning is how members wish to proceed in this particular instance in light of the developments that have occurred over the last few months.

The Joint Chair (Senator Martin): Are there any comments?

Mr. Lee: Madam Chair, two things will assist in strategic objectives and resolution here. One is a miscellaneous amendment package and the second is a new bill. In this bobbing and weaving of correspondence, has counsel picked up any signals of either of those legislative initiatives?

Mr. Bernhardt: In the letter dated August 3, the department indicated that a miscellaneous package of amendments was imminent. I think their forecast date was for the end of this month. If that package is not ready in the next week or two, then we will write back to ask about it. However, something seems to be imminent there.

The bill was in connection to the file talked about in item 1 of the note; that is, one of the two items on which reply is yet to be forthcoming from the minister. As you know, there have been numerous attempts to introduce a bill. There has not been much traction on those attempts. We are waiting to hear whether the department still intends to push ahead.

Mr. Lee: Is there a written commitment here to introduce a bill? If not, we do not have a solution to some of these issues.

Mr. Bernhardt: No, I think there is only a long-standing commitment to resolve those issues through legislation. I think there have been six attempts over the years to introduce legislation. All those bills have died on the Order Paper. Given that there has been a long time without a response from the department, one begins to suspect that they may wish to give up on the whole idea. However, they could at least tell the committee if that is the case.

The Joint Chair (Senator Martin): Are there any other comments?

Senator Moore: With regard to Mr. Lee's query about the miscellaneous statute process, do you think by the end of this month you will have an indication as to whether that process will happen?

Mr. Bernhardt: Those are miscellaneous regulations. We are not amending the statutes through that process; it is a package of miscellaneous amendments to various Fisheries regulations. In August, the forecast completion date was the end of October. We should see that virtually any day.

Senator Moore: Okay.

The Joint Chair (Mr. Kania): Are there other comments? Do members agree with counsel's suggestions to follow up with these two outstanding matters as well as to add this third one that was circulated for the next meeting?

Some Hon. Members: Agreed.

Senator Moore: Do we write back to the minister and say we have this issue and we want to resolve it? Do we want to express our expectation that we want this issue resolved in a timely way?

The Joint Chair (Mr. Kania): Yes, that makes sense to me. Agreed?


(For text of documents, see Appendix B, p. 8B:1.)

Mr. Bernhardt: The Department of Foreign Affairs and International Trade Act authorizes the Governor-in- Council to make regulations prescribing fees to be paid for documents issued by the minister. Section 4 of these regulations provides for a non-refundable fee payable at the time an application for a document is made. The committee concluded this provision is unlawful because it permits the collection of a fee even if no document is ever issued.

In May, the department reported that section 4 of the regulations was to be amended by the summer. In view of this response, the committee advised the department that the matter would be put before the committee at its first meeting in the fall and at that time, the committee expected that a valid fee would be in place. Reference was also made to the previous request that the unlawful fee not be collected, pending the making of the amendment.

Despite the promise that this process would be wrapped up by the summer, the amendment in question has not yet been made. In the September 29 letter, the department makes reference to delays caused by unspecified administrative problems. They say these problems are to be resolved shortly. There was also an undertaking to contact me to provide an interim update. I can advise I have not heard anything from the department since receiving that letter.

When members last considered this file, there was discussion of the possibility of issuing a notice of disallowance. I suppose that course of action might encourage more rapid activity here.

Mr. Lee: Can I ask counsel if the fix is an easy one? Is the department easily able to fix the problem with a new regulation?

Mr. Bernhardt: The fix is basically to change one section of the regulations. That regulation now provides for a non- refundable application fee. The fix is either to make that fee refundable if the application is denied, or simply not to collect the fee until the document is issued.

Mr. Lee: On the assumption the department does not need legislation to fix this problem, I think it is pretty easy. This fee is illegal; it is being charged against citizens who either are aware or not aware of its illegality. Our purpose here is clear, and I think we should issue a notice of disallowance.

We can be governed by whatever response comes back before the 30 days runs out. If it is easy for them, it is easy for us. I think we should issue the notice, and be governed accordingly. We will be prudent in what we do in 30 days, but I am prepared to move that we issue the notice of disallowance and then begin to prepare our report.

The Joint Chair (Mr. Kania): Coincidentally, a notice has been drafted on the off chance that people might want that done. Are there any further comments?

Mr. Clarke: Should we have counsel follow up and see what has happened — we contacted them back in September — and report back. Rather than moving to the next stage, can we find out what progress was made since September 29?

Senator Moore: We have been back and forth on this item. If they plan to report any progress, once they receive our notice, they will let us know.

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

Mr. Lee: I know the postman always rings twice. They are fully capable of advising us where this item is. After the comments made at the previous meeting when this item came up, the department should be fully aware of our position — the potential for disallowance.

That we have a draft available to us now is not a coincidence; this item has been discussed before. I would be all ears to have something from the department that will resolve this matter in short order without the committee having to take further steps. However, I do not see that we have another choice now. I do not see a reason to defer the notice of disallowance.

The Joint Chair (Senator Martin): I have a question for clarity. Before the letter of September 29, if we look back at our letter from May 28, the letter is firm in asking for clarification in that last sentence:

Unless the amendment in question is truly imminent, your assurance in this regard would be valued.

There was no mention of disallowance in that letter. Therefore, I wonder if, as suggested, there could be one letter articulating the matter of disallowance, and that we must have their response.

In this letter of September 29, there are clear assurances here. Again, I do not know the history of this particular file as well as some of you do, but because our last letter did not articulate that language, perhaps we want to impress upon them the absolute importance of their action on the item before the notice of disallowance. Perhaps one more check would be prudent.

Mr. Masse: My concern is that we receive no respect as we continue to send letters. They know the next step from us is disallowance. We have no other course of action. We have tried to move toward being more efficient in this committee because we continue to receive letters like this one that keep a file existing way too long. In my opinion, it makes us look foolish at a certain point in time.

I think that when we send the disallowance, they have time to correct the situation. That notice gives them the opportunity, and they know what they are doing. They know that we either walk away from this item and do not perform our job or we move to one of the last measures that we have available to us in this committee.

The Joint Chair (Mr. Kania): I point out that if we send this notice of disallowance, they then have 30 days in which to respond and deal with us. Nothing is automatic.

Mr. Saxton: Chair, I understand that this committee needs to assert its authority from time to time. However, I do not think that sending a disallowance notice at this time is the appropriate action. I agree with Senator Martin; I think that one more letter is the route to take at this stage informing the department that disallowance is a route that we are prepared to take if we do not receive a satisfactory reply.

The Joint Chair (Mr. Kania): Perhaps to build a compromise, we can send a strongly worded letter indicating we will meet in two weeks, which is our next meeting. If we do not have a satisfactory response by then, on that day we will issue a notice of disallowance.

Mr. Saxton: I think that suggestion is a fair compromise.

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Done.

Mr. Bernhardt: Perhaps by way of clarification in drafting that letter, chair, can I ask members for some sense of what a satisfactory response is considered to be?

At the last meeting, the committee was told this amendment will be completed by the summer. That reply was considered satisfactory. On September 29, there is a letter from the department that said they will move ahead with this amendment as quickly as humanly possible. Presumably, for the time being, that reply is considered satisfactory. If the committee receives a reply that says the department will make this amendment, and that they are on the verge of completing it, it is imminent —

Senator Stratton: And with the specific date of completion.

The Joint Chair (Mr. Kania): They must have a specific reasonable date.

Mr. Bernhardt: They specify a date such as the one they gave us in the spring when they told us the amendment would be completed by summer?

The only point I make to members is if one repeatedly draws lines in the sand that people cross over, there is a credibility danger. It is a bit like the boy who cried wolf at some point.

Mr. Lee: None of us wants to be seen as making excuses for laggards. What I suggest is, if we do not have, in two weeks, a draft regulation ready for blue stamping then, in my view, they are not there. They should have been working on this amendment all summer.

In the event they cannot meet the two-week deadline, then they will have another 30 days to meet the 30-day deadline. The committee can advise then what it wants to do. They have one and a half months to eliminate this illegal charge on our citizens.

Mr. Clarke: Summer was mentioned. It could mean the beginning or the end of summer. The context of summer is a broad range. Narrow it down to a date and let us move on.

Mr. Bernhardt: That is good guidance.


(For text of documents, see Appendix C, p. 8C:1.)

Shawn Abel, Counsel to the Committee: As set out in detail in the note prepared for today's meeting, the Identity Screening Regulations form part of the Passenger Protect Program, which serves to bar individuals identified by a government advisory group and the Minister of Transport from boarding an airplane when an air carrier matches that individual's name during screening in an airport to a ``specified persons list'' provided by the minister.

The program functions through a combination of screening rules set out in the regulations, ministerial powers set out under the Aeronautics Act, and administrative functions not set out in law.

At its last consideration, the committee determined that the regulations should be amended to provide more information to a person who is subject to an emergency direction by the minister barring that person from boarding an airplane, as well as to set out the time frame within which reconsideration will be made as to whether that person should be on the ``specified persons list.''

The department replied that the desired information is already provided as a matter of practice and that it would be extremely difficult to set out a time frame for reconsideration, given the case-by-case nature of that matter.

Administrative practices, of course, are not binding and may change over time. The joint committee has always held the view that procedural rights should be set out clearly and concisely in legislation where this practice can be followed. With regard to setting out a time frame for reconsideration, the fact that each case relates to particular facts does not seem, by itself, to prevent the fixing of a reasonable period of time in which to make a decision. A time frame is often fixed in relation to other administrative decisions that depend on a case-by-case assessment of the facts.

These matters, however, are subordinate to a larger concern raised by the department's response to the other two issues addressed by the committee. The committee recommended that the administrative aspects of the program and, in particular, the review process carried out by the Department of Transport's Office of Reconsideration should be set out in the regulations themselves. Further, the committee was unsatisfied with the inability of a person who receives an unfavourable review decision to seek further redress, since that person is not made aware of the substance or source of the information relied upon by the minister in making a decision, the reasons for that decision or which body or agency can possibly provide a reasonable remedy.

The department states that it essentially lacks the statutory authority to frame the review process in law. This statement seems to be correct. Nothing in the Aeronautics Act addresses the creation of, or maintenance of, the ``specified persons list'' or any possible review procedures related to it. This fact, as well as the department's suggestion that persons who receive a negative decision from the minister essentially should try their luck with the other suggested agencies, raises a serious concern as to whether the Passenger Protect Program as a whole strays outside what was intended by Parliament.

While the committee previously focused its consideration only on the regulations themselves, it seems evident now that the regulations form an essential and inseparable portion of the program as a whole. It does not seem possible now to consider the regulations outside of that broader context. The regulations relate solely to the screening aspect of the program, but the regulations cannot function without the existence of the ``specified persons list'' or the permanent and continuous request by the minister that air carriers provide information concerning air passengers.

The regulatory scheme is also dependent upon the use of emergency directions made under the act where those emergency directions must be exercised as a result of the regulatory scheme in a systematic and repetitive manner. As the note before members today explains in detail, the result is that statutory powers that appear to be intended to be used in particular ways, now take on a different character as part of the Passenger Protect Program. The result is that the program appears to require that these powers be exercised in a manner that goes beyond what Parliament intended.

The Office of Reconsideration review process as well suggests that the overall scheme may be objectionable. Notably, even the current process, which the committee has already considered to be insufficient, cannot be set out by way of regulation because no authority exists to do so. That Parliament did not provide for the means to carry out a legally enforceable method for reviewing the exercise of the relevant statutory powers further suggests that it was not intended that these powers be exercised in an ongoing systematic way.

It seems more likely that they were intended to be used to set out temporary rules, orders and measures of general application under unforeseen situations. Overall, it is questionable whether the Passenger Protect Program in its current form is authorized by the Aeronautics Act. It is troubling as well that significant portions of the program are not subject to any procedure or criteria set out in law, allowing unfettered discretion to the minister and to departmental officials.

Perhaps most importantly, these issues arise because the program is derived from a collection of statutory and regulatory powers and administrative procedures that appear to have been combined in an ad hoc manner. It seems evident that Parliament did not envision the creation of the entire program when it last debated and enacted amendments to the Aeronautics Act. At best, it could be said that only some of the various elements of the program were discussed in their separate and discreet functions, whereas other elements were never discussed at all. Accordingly, it seems preferable that the program as a whole be authorized clearly and expressly by way of direct Parliamentary enactment. If the committee wishes, counsel can draft another letter addressing these concerns, as detailed in the note.

Mr. Lee: Chairs, we could exchange correspondence, but the list of weaknesses in this regulatory framework is too long to accept that we can handle the weaknesses in a couple of pages. Counsel has identified huge legal weaknesses. This dog will not hunt. The real-life problem is that the dog must hunt because we cannot have anything but absolute security surrounding our civilian air transport.

That does not mean we cannot continue to try to fix it. At some point, this issue will hit a brick wall in a court of law; I am certain of that after reading this memo. By the way, it is a good memo. The last two pages are concise and nail the issue to the wall; the memo is good, and I congratulate counsel for that work.

My first thought was that the only way we can deal with this item responsively is to have witnessess appear before the committee to explain it. It strikes me that this item is something that one of the other parliamentary committees should have dealt with before now.

In some ways, this item is all a response to 9/11, and we are still working on infill and remediation in other statutory areas following 9/11. This item is another one we have to deal with. The list of infringements to our own criteria is at least five pieces. Four or five of our criteria are clearly breached in these regulations. I do not know whether we want to take on witnesses, or whether this committee is the appropriate one to look at how broken this situation is legally and then to try to fix it. I have not decided. Correspondence on this item is like deck chairs on the Titanic — it will not take us to where we need to be.

Maybe we can propose to the department that we are looking at the prospect of hearing witnesses, and ask whether they are prepared to collaborate in a constructive way, rather than dragging them kicking and screaming before the committee. If we drag them here, we might be met with responses such as, ``Sorry, we cannot discuss that because there are operational security implications.''

We can write to the department and say that we see huge problems and that we want to hear from witnesses but only if we can drill down and deal with the problems constructively. If witnesses are prepared to do that, then we will proceed; otherwise we bring the item back for another look.

Essentially I am saying, let us go with correspondence, but correspondence that is focused on a potential retrofit of the regulations.

Senator Harb: I see two major issues in this item. The first is the question of redress and how to appeal. I am stuck; I want to board a plane but I cannot. I am left to fend for myself; there is no mechanism whatsoever for me to figure out a way to seek redress.

The second issue is that of human rights. I do not know if this program is in compliance with the Canadian Human Rights Act. I agree with my colleague that it needs to be looked at seriously. At the same time, I am not sure if this committee is the right one to look at it. However, this committee is certainly the one to say, this program does not meet the test and, perhaps through consultation or meeting with the minister, we can have some sort of dialogue to suggest an action plan.

As a former member of Parliament, I spoke with individuals who were taking their families on holidays. It ruined their holidays. They were able to do nothing and the situation was absolutely devastating. I am sure many of my colleagues have seen, and have been through, some of those cases.

It is important to do something but, again, I think the key action to take is to consult with them and find out where, in their view, the best mechanism to handle this problem is.

Ms. Jennings: As someone who was part of the committee that dealt with the legislation that was put into place in 2001, I can assure you, as colleagues from other parties will, that it was not envisioned that there would be a need for an ongoing, permanent response. Clearly, we were wrong. I think everyone will agree that there is a need for this kind of program — the objective that is sought through this program.

However, as counsel has clearly explained and described in the briefing note to this committee, there are a myriad of problems: constitutional, legislative, regulatory and administrative. I think this committee could have a wonderful opportunity for the government, through its minister, to come here, perhaps in a closed hearing, to sit down and talk about how the program can be corrected through proper legislative amendments, first, and then regulatory amendments or the adoption of regulations that would flow from them.

That discussion could then inform our response. I do not want to be in a position where we say we will disallow, have everything fall apart, and then there is nothing in place to allow the government and its agents to deal properly with public safety and possible terrorist activity.

If colleagues are in agreement, I suggest we ask the minister to come here with some of his best advisors, perhaps meet in camera and explain the dilemma. I am sure there will be an openness on the part of the government to seek a way forward that will not be contentious but can be expeditious.

Once we have an idea of how to move forward, we will all engage in seeking the approval and support of our own party caucus members to ensure that, if a proper response is brought forward and if it is legislative, it is dealt with expeditiously to correct this situation as quickly as possible.

Mr. Saxton: I understand that the House of Commons Standing Committee on Public Safety and National Security has already reviewed this matter. Perhaps we can ask them to explain their conclusions to enlighten us on what they found.

Mr. Anders: This is my first time back to a full functional committee meeting. Mr. Lee referred to five different criteria, I think, that were affected. We used to have a magic list of 11. I wonder if he can humour me and run through the five or even the full 11 potentialities, so my memory is refreshed.

Mr. Lee: I am grateful to counsel; they are in the conclusion on page 10 of his memo. There are seven or eight, but I will bore you if I read them. The conclusion is extremely well written and the list is complete.

Mr. Anders: Awesome.

Mr. Clarke: I listened to some of the talk here and heard some of the lawyers speak. I come from a policing background; I go to nuts and bolts. We are looking at the regulations here; hopefully that is what Ms. Jennings was talking about. Would it be better from the committee's point of view to look at the legislation only in regard to the idea that maybe the no-fly list might be better suited to including right in the legislation, if that is possible?

Ms. Jennings: I do not want to pre-empt counsel. I am new this session to this committee. I was part of the committee many years ago when I first came on the Hill, and I was part of the standing committee of the House of Commons that dealt with the Anti-terrorism Act. The committee amended the RCMP Act, the Canadian Security Intelligence Service Act, the Canada Transportation Act and the Aeronautics Act — the whole gamut.

Yes, legislative amendments will be required to adopt regulations that will allow, and set into place, the proper process, et cetera. That is why I proposed that we consider having the minister come in, if there is willingness on the part of the representatives of all the parties here today to recognize that this issue is a serious one.

We do not want to leave a vacuum, and that is what will happen if we simply go ahead and disallow, if that is a possibility. It will leave a vacuum, literally. Therefore, let us try and work with the government through its minister to come up with a plan that will allow for those legislative amendments required to be able to put into place a scheme that protects people's fundamental Charter rights and freedoms but which, at the same time, ensures public safety in an effective and efficient manner. We could move forward in that way.

The Joint Chair (Mr. Kania): Before we go to Mr. Masse, I will point out, particularly for the people who are new, that the purpose of this committee is not to critique or set policy. Legislation comes from Parliament. This committee deals with the regulations. We determine if they are valid, and we have various criteria we use. Can they meet those tests? If they cannot, then in some reasonable manner we have to deal with that situation. If it means seeking amendments to legislation, once again, it is not the function of this committee to propose what the legislation should be. We deal with regulations. However, we deal with regulations that are not proper for one of the reasons we have.

Mr. Masse: You are absolutely correct: We have to follow our process here. That is our job. Otherwise, we will try to fix all kinds of other legislation and all kinds of other issues. There are interesting and broad-ranged opinions on this situation — that it has trampled civil liberties, the privacy commissioner and a series of things. That debate will happen somewhere else.

We need to do our part of the job, which is to provide the backstop to ensure, regardless of whether we agree with the law, that it must be within the Canadian Charter of Rights and Freedoms and that it must meet the tests and standards of our democracy. If it does not, we need to send it back to the shop to be fixed. If we try to work on it, we will change it and amend it at the committee.

We should look at the options we have available and move forward. The consequences are that of the next decision by the government in terms of how they want to deal with it. Once again, it is not to attack the government or this issue, which I have strong feelings about and always have. However, those feelings do not matter. The situation must be fixed.

Mr. Clarke: I think we should have more clarification around this whole regulation. Instead of having the minister appear, I wonder if the department can come in and clarify a few things for us. They may shed light on this whole subject.

I think one-on-one with the department is probably better than having the minister, who will be briefed in a short time. Having the department and their expertise here would be more beneficial.

The Joint Chair (Mr. Kania): What seems clear is that at some point in time, the statute will have to be amended and, in addition, the regulations will have to be changed. Something must happen here.

This conclusion is particularly strong, one of the strongest that I have read in two years. I do not think this item is something we can let go for a long period of time.

In terms of calling witnesses, we have that idea. Obviously we always have the option of sending a letter, but I think the wording must be a bit stronger. I hear that as well from around the table.

For calling witnesses, we have two different suggestions; we have a suggestion to call the minister and one to call someone from the department. Do people agree, as a compromise perhaps, calling someone from the department first for as early as the next meeting, if possible? We can always ask the minister to come thereafter, depending on what is said, but it is clear we have to push this item; we cannot sit on it.

Senator Moore: Are you talking in terms of staff? We want the deputy minister then because the deputy minister can answer questions.

Mr. Lee: Mr. Saxton indicated that it was his understanding that the public safety committee had looked at this issue. I do not know if the committee has reported, but can counsel draw into this item whatever findings that particular standing committee has made with reference to this issue? We might be able to make use of their work.

Mr. Bernhardt: We will take a look at that.

The Joint Chair (Mr. Kania): Mr. McColeman and I are both on that committee but, once again, in that committee, we deal with legislation and here we deal with regulations. We can look into that committee and obtain the report, but I do not want to become too muddied in terms of what our function is. We are not setting policy.

The Joint Chair (Senator Martin): I have one comment about what I have heard around the table because we have talked about calling in witnesses for other files. Being mindful of the role of this committee, the last correspondence was February 2009. From counsel's point of view, would it be a logical route to ask for clear progress on these regulations that you had pointed out as being problematic, and to ask for clear explanation about whether there are plans for legislative action — to obtain that information first before calling in witnesses?

For me anyway, this is the first time in a while looking at the background — and thank you for the clear information on this item. Counsel, we have not had correspondence with the department in a while.

Mr. Bernhardt: No, because initially when the committee looked at the file, the focus was simply on the regulations aspect of the program. In the course of receiving replies back from the department, one of which was even if we wanted to fix the regulations, we do not have the power to do that, it led to the whole other series of issues.

You make a good point, chair. Even for the purposes of allowing the officials to prepare, I think it probably would be a good idea to give them this material in some form and ask for their response to these concerns, whether work in this area is already being done or not. Perhaps then we can extend the offer, the wish or the possibility of having someone come in, once the department has had a chance to look at the concerns and formulate some response.

The Joint Chair (Mr. Kania): Can we write to the department asking for a detailed response but also inviting the deputy minister to come in, perhaps 30 days from now so the department has a chance to look at this item fairly? Does that suggestion sound reasonable to everyone?

Hon. Members: Agreed.

Mr. Clarke: Is that sufficient time for them to give a response to the letter and then come in and apprise the committee?

The Joint Chair (Mr. Kania): We are giving them 30 days for the deputy minister to appear. We will write to them within the next couple of days. If the deputy minister is asking for a slight extension, I am sure we can consider that request.

Mr. Clarke: Will we also ask that the deputy minister have legal counsel with the deputy minister to help with the clarification?

The Joint Chair (Mr. Kania): The deputy minister can bring —

Mr. Clarke: I think it is always better to have legal counsel.

Mr. Lee: Sometimes it is not.

Mr. Masse: I think out of courtesy we should consider inviting the minister also, if he wants. We do not have to demand his appearance, but at least it shows the intention that we might want the minister at some point.

If we put this item off too much, it will not help the minister. If he has a case that goes forward that rips this program apart, that will not help him either. Invite him, and if he does not want to, that is fine — the minister or officials. Then at least we are giving a heads up for the future, because it will help him plan his schedule accordingly.

Mr. Saxton: An invitation to a minister can be misconstrued as a demand for a minister. Often committees will request it, but it can sometimes be construed as a demand so I hesitate to ask the minister. If the minister knows that his deputy is being requested, he knows he has an option to come as well — he or she.

Mr. Lee: Give him a call.

The Joint Chair (Mr. Kania): I am sure somehow that information will be communicated.



(For text of document, see Appendix D, p. 8D:1.)

Mr. Bernhardt: Fees for national parks are, at this time, fixed by the minister under the Parks Canada Agency Act. The committee has taken the view and reported that view, however, that the imposition of fees for access to, and use of, national parks must be by regulations made by the Governor-in-Council under the Canada National Parks Act.

In June, the minister indicated that options were to be identified to resolve the committee's concerns, including possibly amending the relevant provisions of the Parks Canada Agency Act. The minister undertook to inform the committee of the results of that review.

As the joint chairs explained in their June 17 reply, the committee again determined that the file would be brought back in the fall. At that time, the hope was expressed that the review would be completed.

To date, no reply has been received from the minister, although Parks Canada officials have phoned me to say that the reply has been prepared for the minister's signature and that it will explain the work that has been ongoing on this item. At this time, I suppose perhaps a more formal follow-up from the joint chairs might be in order.

The Joint Chair (Mr. Kania): Does everyone agree with sending a request for an update?

Senator Moore: You will request what?

The Joint Chair (Mr. Kania): An update.

Senator Moore: Did we not request that on June 1?

The Joint Chair (Mr. Kania): There is the letter of June 17, so we would request a formal response, which I called an update, to that particular letter.

Senator Moore: That is four months. You have not had a reply in four months. What will you receive this time, do you think?

The Joint Chair (Mr. Kania): What are you suggesting?

Senator Moore: We have to be more firm than that. Someone has to come here and tell us why they are not answering. It is no good to go back and forth with letters. That does not close the file.

Mr. Lee: I think counsel had indicated that we have been informed that a reply is coming from the minister, only it has not been signed and forwarded yet. If that response is real, then something is coming to us.

Our request for an update is a reminder pro forma. On the assumption that something is coming to us that has substance, then I am happy to wait another week or two or three, and it will be here and we will all be happy.

Senator Moore: I think that is fine, Mr. Lee, but I think in your letter, counsel, you might say, pursuant to our telephone discussion of this date, wherein you indicated that this was coming, we would like to have it.

Mr. Lee: I agree.

The Joint Chair (Mr. Kania): Agreed?

Hon. Members: Agreed.




(For text of documents, see Appendix E, p. 8E:1.)

Mr. Bernhardt: These provisions regulate release into the environment of novel feeds and plants with novel traits under the Feeds Act and the Seeds Act; however, this regulation is outside the scope of these acts. The Minister of Agriculture and Agri-Food has advised that legislative options to resolve the problem are being explored. When the committee received that advice, the committee felt that it was too open-ended, especially considering there was reference to a five-year review of the Environmental Protection Act, which has not begun yet. The minister was advised that the committee would like a specific concrete course of action, otherwise officials would be asked to appear at the first meeting in the fall. That letter led to the August 15 letter from the minister in which he indicates that drafting instructions have been prepared for amendments to the Feeds Act and to the Seeds Act. That bill was expected to be tabled in the coming months. He also refers to possibly piggybacking those amendments onto amendments to the Environmental Protection Act, should those amendments enter the pipeline first. Pursuant to the committee's direction, the reply was reviewed by the joint chairs. They decided there was sufficient new information to place the item before members rather than have the witnesses here this morning.

Subsequent to the minister's August letter, I had an informal conversation with officials from the Canadian Food Inspection Agency. They have indicated that the two bills possibly could be tabled sometime this fall. Whichever bill comes through first will be used as the vehicle to make the amendments to resolve this concern.

At this time, perhaps the joint chairs can advise the minister that the committee will monitor the situation and hopes to see a bill by the end of the year.

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

Hon. Members: Agreed.


(For text of documents, see Appendix F, p. 8F:1.)

Mr. Bernhardt: The initial disagreement concerned the proper reading of section 40(2) of the Interpretation Act. The department had taken the view that the result of this provision was that every reference in federal legislation to other federal legislation had to be read as to that other legislation as amended from time to time.

It followed from this view that where they referred to provincial legislation they wished to incorporate ``as amended from time to time,'' they had to say it expressly. It was pointed out to the department that this was a misreading of the provision. Reference was made to a passage from Professor Côté's book, The Interpretation of Legislation in Canada, to that effect.

The result was an extended silence. The minister eventually was advised again that the regulations would be back at the first meeting in the fall and that, at that time, a satisfactory reply was expected.

The minister's letter dated October 5 seems to imply that the references in question must be read as being to the other federal laws referred to ``as amended from time to time'' because they refer to activities authorized under the other legislation. This necessarily implies that it must be authorized under that legislation as of a particular point in time as you go along.

That is probably true, in particular in this instance because we are not dealing with incorporation by reference, per se, but rather a mere cross-reference to other things. However, if that is the case, it necessarily follows that when you mention federal legislation you would mention the provincial legislation, which they mentioned. At the end of the day, it seems to boil down simply to inconsistent drafting. The suggestion should be made to the department that when they refer to the provincial legislation, they take out the words ``as amended from time to time'' to make it consistent with the approach they have used when they mention federal legislation. We have gone from legal argument to simply a question of inconsistent drafting, which can be pursued.

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

Senator Moore: Should we write back to them and make that point to put closure on the file?

Mr. Bernhardt: Exactly.


(For text of documents, see Appendix G, p. 8G:1.)

The Joint Chair (Mr. Kania): This next matter deals with SOR/89-93 Ontario Fisheries Regulations.

Mr. Bernhardt: Under the Miscellaneous Statute Law Amendment Program, routine uncontroversial and uncomplicated amendments to various statutes are collected into a draft bill. The draft is then tabled in Parliament and considered by the appropriate committees in each house. When those committees report back on the draft, the bill is tabled and can be fast-tracked through Parliament. This mechanism has been useful to make routine technical amendments, and has often included amendments to fulfill undertakings given to this committee. The last Miscellaneous Statutory Law Amendment bill was in 2001. Some members were curious to obtain an update from the Minister of Justice as to when the next set of proposals can be expected.

The minister's July 19 letter indicates that possible amendments are still being collected and that the department and he continue to recognize the usefulness of the program. Depending on other priorities, consideration will be given to proceeding with the next set of proposals.

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

Senator Moore: We received the letter from Minister Nicholson. What do we do? Do we write him back to say thank you? Will we continue to try to nudge this file along? I am sure he realized that that mechanism is a tidy way to clean up many uncontroversial issues.

Mr. Bernhardt: As you say, senator, the committee has been trying to make that point in the gentlest way possible.

Senator Moore: Such bills move through both houses quickly. The mechanism is there to clean up the books for the good of the country. Do we write him back or what do we do?

Mr. Bernhardt: We can write back to thank him and express the hope that there will be a bill soon.

Senator Moore: I think you should do that.

Mr. Bernhardt: Reading between the lines, and this is simply a supposition, I have the impression that it is deemed a great idea but not a priority.

Senator Moore: Maybe you should suggest that he take advantage of it, because it is an easy thing. It gives him a chance to clean up a lot of issues.

The Joint Chair (Mr. Kania): Should we diarize it for three months and then follow up.

Senator Moore: If that is the consensus of the committee, sure.

The Joint Chair (Mr. Kania): We can ask if they are prepared to do something at that time.

Mr. Lee: I agree.


(For text of document, see Appendix H, p. 8H:1.)

Mr. Bernhardt: This instrument designates members of the two houses as well as members of the staff of the leaders of the opposition in both houses as designated public office-holders for the purposes of the Lobbying Act. Given that this item directly concerns members in their capacity as parliamentarians, it was thought most appropriate in this case to place the regulations before the committee prior to communicating with the responsible department. This approach is an exception to the usual practice.

Designation as a designated public office-holder has two consequences under the Lobbying Act: First, the act prohibits designated public office holders from lobbying the government for five years after leaving office; and second, interactions between designated public office-holders and lobbyists are subject to reporting requirements. The relevant portion of subsection 2(1) of the Lobbying Act contains a definition of ``designated public office holder.'' It means that ``any individual who occupies a position that has been designated by regulation under paragraph 12(c.1), which ``authorizes the Governor in Council to make regulations designating, . . . any position occupied by a public office holder'' as a position occupied by a ``designated public office holder.''

Only public office holders can be designated. Of course, the act also contains a definition of ``public office holder'' and it expressly includes a member of the Senate, the House of Commons or any person on their staff.

On the face of it, then, these provisions of the act are clear. As a matter of statutory interpretation, there seems little question that this designation is authorized. As explained in the note prepared for members, there is also evidence in the parliamentary record that in enacting paragraph 12(c.1) of the act, the intent was to provide the Governor-in- Council with the power to make regulations designating members of the Senate and House of Commons.

The focus at that time was solely on the five-year lobbying ban. However, the power to make the designation is limited to designating for the purposes of the act as a whole. There is no power to pick and choose which provisions a particular designation applies to; one can designate simply for the act.

As for the provisions concerning communication with designated public office holders, the note explains that it can be seen to have a privilege implication in connection with the recognized common law evidentiary privilege that pertains to certain communications between members of Parliament and members of the public.

That being said, again, Parliament expressly chose to allow the Governor-in-Council to extend the provisions of the act to senators and members of Parliament. It is always possible for Parliament to take a different view, arguing that only one aspect of the designation was discussed when the legislation was before Parliament. That would be something for parliamentarians to decide.

The note also mentions that there was no consultation with members of the houses prior to making the regulation. It might be thought that propriety would have dictated that there would have been formal consultations. I should emphasize, however, that there is no requirement in the legislation for consultation.

The note concludes by suggesting that two aspects of the regulation may be cause for concern. The first relates to any attempt to apply the five-year prohibition to people who are former members — people who had ceased to be members within the past five years. It is suggested that those people have a vested right to engage in certain activities that cannot be taken away. I see no indication there is intent that the regulation be applied that way. The committee might wish to ask for clarification on that aspect.

The other problematic aspect from a legal point of view is the designation of ``staff of the Leader of the Opposition'' in the two houses. For the reasons explained in the note, it would seem that these people do not come within the definition of ``public office holder.'' If that is the case, they cannot be designated. Again, we have not solicited the views of Treasury Board of Canada Secretariat on that particular point, so that is something that should be done if members wish to explore that issue.

Mr. Lee: I think we should pursue the simple issue of employees of the Office of the Leader of the Opposition, OLO. That is done easily enough. Counsel sees a potential problem and Treasury Board should be asked for clarification or justification on that issue.

The Joint Chair (Mr. Kania): Let us divide the discussion. First, let us discuss the employees. Are there any further comments on that point?

Mr. Saxton: Mr. Chair, I think the definition of ``public office holder'' is clear. It includes members of Parliament, senators and their staff. I think it is also clear that the staff of the Office of the Leader of the Opposition is, in fact, the staff of a member of Parliament. I do not see why there is any need to pursue this matter further.

The Joint Chair (Mr. Kania): Mr. Saxton, you will appreciate that the legal opinion of counsel is contrary to that conclusion.

Mr. Saxton: I understand that. There are many different opinions, but it is my opinion that the issue is clear. Members of staff of the official Leader of the Opposition are members of Mr. Ignatieff's staff. Mr. Ignatieff is, by definition, a member of Parliament. I do not think anyone will dispute that point.

Mr. Bernhardt: Does the same thing apply to ministers' staffs? If a minister is a member of Parliament, a member of the minister's staff is on the staff of a member of Parliament.

Senator Moore: Be careful what you wish for.

Mr. Lee: All staff.

Mr. Bernhardt: Yet the Public Service Employment Act makes specific provisions for members of ministers' staffs because they are considered to be in a separate category. I would make the argument that if it is necessary to distinguish specifically a minister's staff from the staff of a member of Parliament, the same argument would apply to the staff of the Leader of the Opposition. Just as a minister has staff, the Leader of the Opposition has staff as a member and staff as the leader. That is the argument.

Ms. Jennings: In the past, we have had situations where the leader of a particular party is not yet a member of Parliament. Therefore, conceivably we could have a situation where the official Leader of the Opposition is not a member of Parliament, has to wait for either a general election or a by-election to take place, and then has to win the seat to take a seat in the House.

Did the government contemplate that situation where employees of the Leader of the Opposition, because that leader is not a sitting member of Parliament, do not come under the public office holder and therefore can be designated. However, in the case where the leader is a member of Parliament, they are then subjected to the provision.

I am in favour of writing to the minister or the department and seeking clarification on that particular issue.

The Joint Chair (Mr. Kania): Are there further comments on this aspect?

Mr. Saxton: Chair, I do not see where the opposition is going with this point. I caution that —

Mr. Lee: Chair, the person spoken of is a member of the committee; it is not an opposition issue. The person is a member of the committee.

Mr. Saxton: I am not sure where the members of the committee are going with this issue. With all due respect, we are talking about accountability. That anybody might try and wriggle out of accountability is something we should take seriously into consideration here.

The matter is one of accountability and one of transparency, and that is what we are talking about today.

Ms. Jennings: Mr. Chair, I find offensive the statement that was made by that member. Yes, we are talking about accountability but, as his own leader has said, we are a society of the rule of law. This committee was put into place by Parliament precisely to ensure that every action falls under the rule of law.

We have been given a solid argument that this particular aspect has no legislative foundation and is therefore beyond the scope of the law. If the government disagrees, then they should come with a reasoned argument — as was done for the previous issue we discussed before coming to this particular file — that makes the committee understand the department has a legislative basis; the aspect is more of an administrative problem; and it will be taken care of.

If the argument for providing a legislative justification and power for this piece is not sufficient, then it means the government needs to take the necessary measures to provide that legislative authority. That is all. No one is talking about diminishing accountability.

We are saying that the government can make its policy, but it must do so under the law. At this point, we believe we have not been given sufficient arguments that there is legislative authority to do what the government did with this particular regulation. That is all.

It is offensive to imply that anyone who believes we have not heard an argument to justify that regulation is therefore not interested in accountability.

The Joint Chair (Mr. Kania): Once again, the purpose of this committee is not to set policy. We are not discussing policy here. All we discuss is whether a regulation that has been analyzed by our counsel, in counsel's opinion, meets the various criteria that we have set out for this committee to make a decision.

The reason I divide the discussion is we have one recommendation for one part of it and one recommendation for another part, based on committee members' analysis. From my perspective, in circumstances where we have a legal opinion from our counsel in terms of one part, we have to deal with that part in some manner with reference to the specific regulations and their analysis. That is what I am asking for in terms of analysis of the regulations.

Are there any further comments?

Mr. Clarke: Maybe some clarification is needed here from the legal counsel. Minister's staff is designated, is that correct?

Mr. Bernhardt: Yes.

Mr. Clarke: The OLO minister's staff is appointed under the ministerial staff, under the Public Services Act, correct?

Mr. Bernhardt: Yes.

Mr. Clarke: Is there a definition of ``staff'' under the Lobbying Act? Is it defined?

Mr. Bernhardt: The definition is whether they are a public office holder. Page 9 of the note has the list of people who come within that definition — those are the categories of people who can be designated. The only question is, do these people fit into one of these categories? For the reasons discussed, I think that can be questioned. To this point, that view is only a preliminary one.

Mr. Clarke: That is your interpretation.

Mr. Bernhardt: That is our preliminary reading. In the usual course of action, we would have put that view to the department, received the department's reply and then brought the file to the committee with the recommendation and analysis for the committee to make a decision — whether there was a good response or a bad response. Here, because we are dealing with something that explicitly addresses members of Parliament, it seemed most appropriate to bring it here at first instance to gauge where members want to go with this item.

On this item, as I say, the recommendation on that particular aspect is to do what we usually do, which is to say that we have read the regulations, this is how this item looks to us, and what do they say to that? Then we bring the item back to the committee.

Mr. Clarke: I am looking under section 2(1) and it says: ``A member of the Senate or the House of Commons and any person on the staff of such member.''

Is that right?

Mr. Bernhardt: Yes.

The Joint Chair (Senator Martin): I want to echo what my co-chair, Mr. Kania, said about the role of this committee. I think, as Mr. Lee pointed out, that we should not speak of opposition as we are members in this committee jointly together, looking at the regulations.

When Ms. Jennings responded to Mr. Saxton about government, we created this divide when, as a committee, we are here to listen to advice of counsel, their analysis, and then look at the best step forward.

Having heard the discussion on this point, I think I heard counsel say that the most logical step is to require clarification, and counsel would write to the department or the officials.

Mr. Bernhardt: If that is the wish of the committee.

The Joint Chair (Senator Martin): Based on asking only for clarification, it seems like a way to proceed and that we can all agree on that without talking about opposition or government. We are all members of Parliament and this work affects all of us together. The committee is non-partisan, one where we can work together on these regulations.

I want to echo what my co-chair has talked about early on since we are a new group together in this session. I thank all members for keeping that point in mind as we proceed.

Senator Harb: I think it makes perfect sense to seek clarification without talking about the position of the committee. From what I can see, there is debate on the matter. Let us see what the department comes forward with, and that will allow us to have a look.

Senator Stratton: When we talk about regulation, which we are trying to limit ourselves to in this committee — which is a good approach — we always have to bear in mind that the policy is set by government, and that is really where we are. In looking at the regulation, we cannot forget that policy. It is hanging there.

When we look at a regulation, we have to determine whether that regulation follows that policy. It must be consistent. If the clear intent of the policy of the government is that all parliamentarians, senators and House of Commons fall under this legislation, is that policy clearly stated? That is the intent, and the regulations should follow along as a result. That is my view. We cannot forget that policy when we are dealing with regulation.

The Joint Chair (Mr. Kania): We must remember the policy, but the main focus of this committee is to ensure that the regulations are authorized and meet the various criteria that are enumerated specifically and set out for us to consider each regulation.

Are there any other comments?

Mr. Clarke: To review my interpretation here, I was pointed in regard to clarifying what I said earlier under the section when I quoted. The description is clear in the regulation. To send a letter would be futile. It is in the regulation. I think we should take this issue to a vote.

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

The Joint Chair (Senator Martin): If there is no consensus about the letter, then the item warrants further discussion. There must have been situations like this in the past if there is not that kind of agreement. Is there a vote?

We are trying to reach consensus on the best way forward. It is a consensus decision, is it not? There is not consensus in this case.

Ms. Jennings: I find it troubling that when we are trying to reach consensus, counsel explained that under normal circumstances this matter would not even have come before this committee. Counsel would have taken automatically their regular step of contacting department officials and seeking clarification. If that clarification, in their expert opinion, was not satisfactory, then they would have brought the item before the committee.

I cannot understand why there could not be consensus to ask counsel to undertake their regular trajectory, as Joint Chair Martin suggested. Depending on what comes back to them, then it may be appropriate for a member to submit it to a vote, if there is no consensus at that point.

However, at this point I think a vote is premature. I take heed of the words that the joint chair put before us, that this committee works on consensus and is not to be partisan. We are to see ourselves, when we are in committee, in hearing, as members of the committee, and not members of any particular party — opposition or government side. That is the view we should work toward.

Therefore, I think it is premature to ask for a vote. I support fully the suggestion that the joint chair made, that counsel proceed as it would normally.

Mr. Masse: Let us not create a problem that may not exist. That is what I think we are doing here at this point in time.

The department might have a satisfactory answer. I think we need to take a step back from what took place and follow our normal procedure, which is to inquire and find out.

Once again, we could be creating a problem that does not exist. Why would we stray from ordinary behaviour of the committee and hold a vote that clearly will set a precedent for other things. That precedent will lead to voting on routine practices, which we have not done in the years that I have been here. I hope that we can take a step back, find out more and avoid creating a problem that might not exist.

The Joint Chair (Mr. Kania): In the approximately two years that I have had the honour of being joint chair, we have never had a vote. This committee is non-partisan, and that is why we keep talking, why we do not have a list and why we do not go by parties. We attempt to reach consensus. If we must have a vote because we cannot reach consensus, that is different, but I hope we are able to reach consensus.

Mr. Saxton: It is clear that we do not have consensus on this matter. Unfortunately, it looks like the issue will become a partisan one; I hope it does not.

We will need a vote if we are to talk about sending a letter. Perhaps there is a compromise in another way to deal with this item without sending a letter.

The Joint Chair (Mr. Kania): Do you have an idea?

Mr. Saxton: Perhaps an inquiry is the answer. I leave it to the chair.

The Joint Chair (Mr. Kania): Thus far, we have the recommendations of legal counsel that they follow ordinary procedure and seek clarification on this point on which they have come to a strong conclusion. That is where we stand. As indicated, ordinarily they simply would have made that inquiry but because it affects members of Parliament and senators, they wanted to bring it before the committee first.

I ordinarily accept, as all members accept, the recommendations of counsel unless there is a particular reason not to do so. We are talking about simply sending a letter to seek clarification. Once we have a response, we will discuss it again, should anything further occur at that stage. I do not know what else to suggest; perhaps an informal phone call? Based on the nature of these regulations, I suggest that a respectful letter simply asking for clarification would be the most logical response at this stage.

Mr. Saxton: We need to take a step back. As I said, if there is an alternative to a letter, perhaps an inquiry, it should be considered by the committee. That is my recommendation.

The Joint Chair (Senator Martin): Mr. Saxton, are you suggesting that counsel make a phone call to make the inquiry? Then we do not have to create a file on this item.

Mr. Saxton: Leave it with counsel to make a further inquiry and to report back at a later date.

The Joint Chair (Senator Martin): That is one suggestion.

Mr. Masse: There might have been a misunderstanding of what was happening because writing to the department is having an inquiry. We are trying to obtain a response. We have an obligation, and legal counsel sees a problem that they want clarified. If, for some strange reason, we do not want that problem on the record, I do not understand. To have clarification is to have greater accountability. I ask why the committee would deviate from its normal practices especially when dealing with an issue relating to members of Parliament and the Senate, and our accountability. My first question is: Why would we not follow the normal practice that has always been followed before? It will leave a bad public impression if we treat ourselves differently in this process than in a process dealing with any other piece of material. We simply want the department to explain this aspect. There might not be a problem if the material comes back explained. If we need to have a vote later, it will be because of differences of opinion on the material that comes back to the committee and what to do with the issue.

Mr. Lee: Mr. Saxton said we should take a step back, but I thought we were proceeding normally. He mentioned that there should be some kind of inquiry. I assume that 99 per cent of the work of the committee is accomplished in writing. I am happy to do exactly what we want counsel to do: Inquire of the minister or the ministry to clarify this one aspect of the regulation. Perhaps Mr. Saxton can clarify what he means by an inquiry, what modalities he envisages as part of the inquiry, and what records he wants our counsel to keep, and the ministry to keep.

Mr. Saxton: The inquiry should be for the counsel to make an informal telephone call to have further clarification. That is my recommendation.

Mr. Lee: Should he speak to the minister?

Mr. Saxton: Counsel should speak to —

Mr. Lee: Should he speak to the receptionist?

Mr. Saxton: He should speak to someone in the department who is able to answer his questions.

Mr. Lee: Mr. Saxton, you are the parliamentary secretary to this department. Perhaps you can give us advice with respect to that role.

Mr. Saxton: I leave it to counsel's good judgment.

Mr. Lee: Can he ratchet up the inquiry to a fax? Perhaps an email suits your needs; there would not be anything on paper. I ask Mr. Saxton to clarify. Are we skulking around in our work such that we have to make informal phone calls instead of writing a letter? Perhaps it can be a parliamentary intervention. Perhaps Mr. Saxton can clarify to help counsel proceed with this item.

The Joint Chair (Mr. Kania): Mr. Saxton, does your suggestion remains as is, in terms of a telephone call?

Mr. Saxton: Yes.

Mr. Lee: Can the telephone call be recorded so that we can know that it happened?

Mr. Clarke: I am not a lobbyist like some people claim to be here. I want clarification from legal counsel. That is all I want.

The Joint Chair (Mr. Kania): Please address your comments to the chair.

Mr. Clarke: From the colour commentary over here, I think what is taking place right now is unparliamentary. As a chair, you should maybe watch the comments that are going on — the play-by-play analysis — and monitor that discussion. When a person has a hand up, they have the right to speak. As in First Nations meetings, when we hold a feather up, we have a chance to speak.

The Joint Chair (Mr. Kania): This is your chance now, Mr. Clarke.

Mr. Clarke: Our parliamentary secretary made a valid point, and on that consensus I will agree to a formal telephone conversation with the proper counsel for a legal opinion. If it is not satisfactory, then we should proceed with another course.

The Joint Chair (Mr. Kania): Do you suggest a telephone call?

Mr. Clarke: I suggest that for now. I concede to that.


Senator Hervieux-Payette: I thought I was the only one who failed to understand the meaning of the word ``inquiry.'' Mr. Lee and I have been members of this committee for 10 years and we have never before proceeded in this manner. The problem is that we do not know who we are going to contact by phone.

I trust our legal counsel. Until now, we have received some clarifications as a result of their recommendations. I have to wonder why we cannot seek further clarification in writing. I do not understand this situation. Before we vote on the matter, I would like to know why we could not simply ask for something in writing. That is what we have always done. Everyone here would have a text and a full answer.

I do not think that we should dismiss lightly Mr. Lee's suggestion to seek a written opinion. I have never seen a verbal legal opinion. I am a lawyer and I have never seen such a thing. It has no value because it does not commit anyone. Even though I trust it would be the best possible opinion for us, it is still a verbal exchange and as such, the committee is deprived of any information.

I favour our traditional approach, which involves asking for additional explanations. That is not so difficult to do. If a telephone conversation remains the preferred option, I would like to know why this would be better somehow than a written explanation. I do not understand this.

Ms. Gagnon: Another point of contention, as Senator Hervieux-Payette noted, is deciding who should be contacted.

Someone suggested a receptionist. I have nothing against receptionists, but if we want to get the opinion of persons in positions of authority, then we need to contact these very individuals. This approach affects our credibility. If we are not able to proceed as we have in the past, then there is a problem somewhere. At least, that is what I am sensing from this morning's conversation.

We cannot merely contact a receptionist if we want to be well informed. If we do not get an opinion in writing, then how will we have a full understanding of all the facts? It is ludicrous to contact someone over the phone.


Mr. Saxton: It has been asked who we should address. It is straightforward and simple: the same person we would address if a letter were written. There is no question who we should address. The legal counsel knows who to address; that is not the question here at all.

The Joint Chair (Mr. Kania): Who would you write to?

Mr. Bernhardt: I do not have the name, but there is a contact person in each department and that is who we deal with. In this case, as the inquiry would be if it was in writing, if that person was not in a position to provide the information, presumably that person would find out who was and make that connection. It is possible.

As I say, I can obtain the opinion orally from them, record that and present it to the committee second hand; this information is what I was told. The committee can take my word that it is an accurate reflection of the department's position. I have no problem doing that. If such is the wish of the committee, that is what will be done.

Senator Moore: I have a couple of issues. I have been on this committee since 1996. In the time I have been on the committee, we have had only one vote and that was with regard to a budgeting issue with respect to sending a delegation from this committee to a parliamentary conference. We have never had a vote otherwise. There has never been a need to vote, and there is no need today.

Legal counsel has given his opinion. Had he not brought the matter here, a letter would have gone forward anyway. I do not want us to be telling legal counsel not to be doing his job as he normally would. In the practice of law, if I did that, my clients would probably wonder what planet I was from; obtain something in writing here. That is what we are supposed to do. I do not want a verbal transcript to be given to me. I want our counsel to do his job, as he is supposed to do and authorized to do according to the mandate of this committee.

He should write a decent letter discussing clarification and report back to the committee. Then we will deal with the issues that might confront us. That is what we should do here. To do otherwise is shirking our duties, and we are not letting our counsel do what he is supposed to do and what he is paid to do.

The Joint Chair (Mr. Kania): I note that we are past ten o'clock, and people have various responsibilities. I suggest we continue this conversation at the next meeting. I do not want to have a vote in terms of whether we will extend the time.

Senator Harb: On the rest of the items on the agenda, I have gone through them and I suppose my colleagues have also gone through them. Would it be in the interests of the committee to pass the staff-suggested recommendations on those items?

The Joint Chair (Senator Martin): The items under Action Taken?

Senator Harb: Yes, all of the Action Taken items, that is, unless they feel there is something they need our directive on. I make this suggestion so we do not delay ourselves any further.

The Joint Chair (Mr. Kania): It is a good suggestion.

Mr. Bernhardt: If members wish, I can simply go through those items in 30 seconds. Those are agenda items 11, 12 and 13.


(For text of documents, see Appendix I, p. 8I:1.)


(For text of documents, see Appendix J, p. 8J:1.)

Mr. Bernhardt: Under Action Promised, an amendment is promised in connection with each of those two instruments and progress on that amendment will be followed up after the meeting. I also note that 10 amendments promised to the committee were made by those two instruments.



(For text of documents, see Appendix K, p. 8K:1.)


(For text of document, see Appendix L, p. 8L:1.)


(For text of document, see Appendix M, p. 8M:1.)


(For text of document, see Appendix N, p. 8N:1.)


(For text of documents, see Appendix O, p. 8O:1.)

Mr. Bernhardt: Under Action Taken, six instruments make six amendments, including an amendment to the Excise Act itself. In particular, the amendments to the Consular Fee (Specialized Services) Regulations remove two fees that the committee found to be unlawful.

The first two instruments fulfill long-standing undertakings to repeal orders formally. The committee had found these orders to be unlawful.






























Mr. Bernhardt: Finally, under Statutory Instruments Without Comment, 29 instruments are listed that have been reviewed by counsel and found to comply with all the committee's criteria. For the benefit of new members, I will explain that the text of these instruments is not printed in the materials but we always have copies at the meeting if a member has a question or wishes to see the text.

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

Hon. Members: Agreed.

The Joint Chair (Mr. Kania): Thank you.

The Joint Chair (Senator Martin): Meeting adjourned.

(The committee adjourned.)

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