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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 22 - Evidence - April 25, 2013

OTTAWA, Thursday, April 25, 2013

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for the review of statutory instruments.

Senator Bob Runciman and Ms. Chris Charlton (Joint Chairs) in the chair.


The Joint Chair (Ms. Charlton): Let us just get into it with ``Letters To and From Ministers.''


(For text of documents, see Appendix A, p. 22A:1. )

The Joint Chair (Ms. Charlton): Under threat of disallowance, the Chicken Farmers of Canada will now finally make the deletions we requested. Counsel?

Peter Bernhardt, General Counsel to the Committee: I do not have much more to say. It seems in this case, at least, that applying additional pressure has borne results. It now becomes a matter of monitoring the progress of these promised amendments.

Mr. Strahl: I see that the last letter was in February. Is it common that we provide them with a few more weeks than this to give us a timeline, or would we monitor? Is it appropriate to write back and ask for a timeline?

Mr. Bernhardt: In this case, we would typically put the file on a ``bring forward in four months'' status. That would take us to September, at which point we would write and ask for a progress report. Once that is received, we would bring the file back to the committee.

Mr. Strahl: Sounds great.

Hon. Members: Agreed.


(For text of documents, see Appendix B, p. 22B:1.)

The Joint Chair (Ms. Charlton): This item pertains to amendments to the Canada Grain Regulations. It suggests that those were included in Bill C-45 and that they will come into force ``in a timely manner.''

Mr. Bernhardt: That is correct. The coming into force of those amendments to the Canada Grain Regulations is the final step in addressing the committee's concern. Once those amendments come into force, the file can be closed. As noted, on January 30 the minister said he expected it to happen in a timely manner.

Mr. Vellacott: As suggested, we need to watch that they come into effect — we should monitor that — so that they are in place and go from there. We would close the file after that.

The Joint Chair (Ms. Charlton): Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix C, p. 22C:1.)

The Joint Chair (Ms. Charlton): The issue in Item 3 under ``New Instruments'' is whether the Firearms Information Regulations are lawful.

Mr. Bernhardt: As members will have seen, the intent of these regulations is to prevent a chief firearms officer from requiring, as a condition of a firearms licence, the keeping of records containing information formerly found in the long-gun registry. As the regulatory impact analysis statement for the regulations explains, requiring that businesses collect and keep point-of-sale data with respect to long guns is considered to conflict with the intent of the amendments in the Firearms Act that eliminated the long-gun registry and required the destruction of all existing records.

Paragraphs 117(a) and (m) of the Firearms Act authorize the Governor-in-Council to make regulations regulating the issuing of licences and the keeping and destruction of records in relation to firearms. It is also the case, however, that subsection 58(1) of the act provides that a chief firearms officer who issues a licence ``. . . may attach any reasonable condition to it that the chief firearms officer considers desirable in the particular circumstances and in the interests of the safety of the holder or any other person.''

It is clear from the subordinate nature of regulations that a regulation that conflicts with its enabling statute will be ultra vires. From that, it follows that express authority is required for a regulation to alter the scope and effect of the enabling act. Here there is no express authority to make regulations altering the scope of the chief firearms officer's discretion. It would therefore flow from that that the regulation-making powers in the act cannot be exercised in a manner that would have this effect.

If it is conceivable that in a particular instance the chief firearms officer would consider a condition desirable in the particular circumstances in the interests of safety of the holder or any other person, then the regulations may not prevent the imposition of that condition because any attempt to do so would be an unlawful fettering of the chief firearms officer's discretion. The notes that have been prepared in the materials make reference to several authorities to illustrate this principle.

From its point of view, as the January 18 letter from the department explains, it views the regulations as consistent with the intent of act and that they are necessary to ensure that the intent of the amendments to the act is achieved. In its view, without these regulations, it might be possible for chief firearms officers to use their power to attach conditions to business licences to effectually re-establish the long-gun registry — in its words — ``through the back door.'' As this would be contrary to the intent to the amendments to the act, the department concludes that the act must be read as permitting the regulations.

The difficulty with this argument is that simply because a regulation is consistent with the purpose of the act or carries out a purpose of the act, it does not follow that such a regulation has to be authorized; that depends entirely on the terms of the act. Nor is it for regulations to fix perceived flaws or omissions in the parent statute. If the authority given to the chief firearms officer is to be limited, this must be done either by amending the act to directly do that or to expressly permit the making of regulations having this effect.

The department argues that the power to limit the scope of the chief firearms officer's discretion must be necessarily implied from the removal of the provisions that created the long-gun registry and the requirement for the destruction of existing records. On the other hand, Parliament chose not to limit subsection 58(1) as part of those amendments. Therefore, even if this is viewed as simply being an oversight, regulations cannot be used to remedy an oversight by enlarging the scope of provisions in the act. Again, this is because regulations are subordinate legislation. Simply put, the Governor-in-Council has no power to correct the act.

Finally, the department's reply suggests that the regulations simply clarify an ambiguity. To the extent a regulation serves to state what is already the effect of the enabling act, that regulation serves no purpose. Again, it follows from the fact that regulations are subordinate and that, absent express authority, the regulation cannot dictate the meaning of the parent act. A regulation that purports to put a specific interpretation on its parent act will preclude a court from taking some other view of the matter. For that reason, it would be ultra vires. Regulations cannot be used to clarify a parent statute.

It would also seem that the authority of the chief firearms officer to attach a condition to a licence would have to be exercised on a case-by-case basis after considering the particular circumstances in each case. The importance of that, then, is that a policy of systematically requiring the keeping of records containing information formerly found in the registry as a condition of every licence would also appear to be contrary to the intent of the act.

In short, as the note suggests, our conclusion at this point is that the regulations appear to be an ultra vires attempt to prevent the doing of something that itself would be unlawful in the first place.

The Joint Chair (Ms. Charlton): I imagine there will not be any discussion.

Mr. Albas: I appreciate a good report by counsel. I have not been on the committee for a while, so the new format is excellent for labelling the issue.

I would suggest that counsel has a meritorious argument here. We should bring up these concerns directly with the officials at Public Safety and hear their response to our arguments. That would be the next course of action.

The Joint Chair (Ms. Charlton): Is there agreement?

Hon. Members: Agreed.

Senator Hervieux-Payette: Could we ask to have forwarded to us the testimony of the minister when he appeared before the committee? I am not on that committee. I am sure all of us would like to have that clarification, because the minister was testifying on these regulations. Obviously, he seemed to be comfortable with his own regulations.

Before we hear from officials — and I agree with you that I want to hear from them — he was the one who appeared before the Senate committee. Our colleagues in the house do not have this testimony. Maybe we would have that at least.

Mr. Bernhardt: We could certainly attach the proceedings when the file comes back to the committee.

Senator Hervieux-Payette: It is important so we know where we start.

Hon. Members: Agreed.


(For text of documents, see Appendix D, p. 22D:1.)

The Joint Chair (Ms. Charlton): Under ``Reply Unsatisfactory'' on our agenda, Item 4 concerns the Vinyl Chloride Release Regulations. We had been asking the department to give us a firm date.

Mr. Bernhardt: That is correct, Madam Chair. Back in 2011, the committee was told that the department hoped the amendments would be made by the summer of 2012. In light of that, the committee advised the department that it expected the deadline to be met and that if any further delays were due to other amendments in the same package, the committee would wish to see the amendments that resolved its concerns proceed independently.

The summer of 2012 came and went. The department then reported that the amendments were currently on hold until a review in light of regulatory reform measures was completed, and no new forecast date was given. That reply was considered by the committee back in February. At that time, the committee wished from the department a firm date by which the amendments would be made. The department was also advised that should that firm date not be met, the committee anticipated requesting the appearance of departmental witnesses.

The department's reply is that it has completed the review, a proposal is pending approvals, and it will communicate further once confirmation is received. Therefore, no firm date is given.

Mr. Anders: It seems to me that we asked for a reply within 30 days and we got one. However, because they stated it is pending approval, I would suggest that we ask for a firm timeline. If you go ahead and ask for 30 days, you will get the same response. I would suggest we just ask for a firm timeline with regard to the pending approval.

Mr. Albas: From my experience, it seems that whenever we establish arbitrary timelines, particularly around something as technical as regulations such as these, the officials we write to and the people who actually submit the technical report are often quite a distance away. The workflow management of that may cause issues. If we set down a hard, pressed date, it does not surprise me that they try to honour it as best as they can by responding as quickly as they can but without a substantive response.

I support my colleague's point. However, when you ask for an answer to a technical question, it does not surprise me that they send something that is less substantive than the committee would want.

Senator Moore: This has been going on for a while. Who is setting the agenda here, the committee or these officials? Their proposal is to rag the puck. What are we doing? Are we asking that they come in here and explain themselves, or are we saying we should give them another letter and ask, ``When are you going to do this''? They have not responded satisfactorily for how many years now? I cannot think of any reason to possibly justify that kind of delay in doing what the committee has been insisting has to be done.

The Joint Chair (Ms. Charlton): Are you suggesting an approach?

Senator Moore: Why not bring them in here? If we have to keep writing letters we will keep going around and around, and we are not getting any closer to the solution that the committee has been asking for. It is very frustrating.

Mr. Masse: I agree. We can send a letter stipulating 30 or 60 days, and we will probably get the same response. If we do it indefinitely, they will probably not even respond because we have asked them to meet deadlines and they have not done it. They will interpret that as us allowing them to go away. We have to react to that.

Mr. Albas: At the end of day, the goal of the committee is to ensure there is proper scrutiny of the regulations and to ensure these things are in compliance with their enabling legislation.

These are highly technical, so even if we were to have someone come forward and speak to the legislation, will we have the scientists who draft them? I have no understanding of this particular topic.

If we want to see a substantive response at the end of the day, it is fair to give someone a timeline. Mr. Anders has said to write back and ask them. Perseverance is how you achieve results in this committee.

What happens if someone with high technical expertise is away? Again, the goal is ultimately to see these things done. I suggest we put forward a reasonable course of action. If we had someone coming here to discuss the Vinyl Chloride Release Regulations, I am not sure what I would ask.

The Joint Chair (Ms. Charlton): I am not sure if it was Senator Moore's suggestion that we talk about the details of the regulations, but I will let him speak to that, if necessary.

Mr. Vellacott: I think we have seen significant movement, contrary to what Senator Moore has said. We are now at the point where a review has been done, and they had promised earlier, based on that, that amendments would be forthcoming. I think we have made great strides and that we should keep pressing them for a timeline. I think that is the movement we would like to see.

Senator Moore: Mr. Anders, what are you suggesting we do?

Mr. Anders: I want them to give us a firm timeline. They have completed the review and say the approval is pending. I want a firm timeline on the go-ahead of the approval — on the final check-off, if you will. However, I think the idea of inviting them in here to discuss vinyl chloride is —

Senator Moore: I am not suggesting discussing vinyl chloride. My intention is to ask, ``Why you have not done what the committee has asked you to do for the last 13 years?''

I will go along with one more letter, but we have to put some definite markers in that letter as to what we want done and when. If it is at all open-ended, it will just continue.

Mr. Albas: I understand what the senator is saying, and that is why Mr. Anders is suggesting a time. However, when you put arbitrary numbers down and it goes to an official, they need clearance from another official, who will need to go to a technical department or another agency, by the sounds of it. That is where these arbitrary deadlines actually put egg on all of our faces because it looks like we are not getting things done.

I agree with Mr. Vellacott that we have made substantive progress. Now we need to know the final timelines for us to have success. I see counsel nodding, so I will just leave it at that.


Ms. Ayala: What is happening seems to me to be problematic. They have been dragging their heels for years. We are doing our work as lawmakers; people are waiting for us to pass clear legislation so that it can be enforced. It is not up to the department to make the laws and the regulations. Basically, the legislation is not clear to people. It seems to me that we are going to give them one more chance; they are paid to do their work properly.

So I see this as a problem; not only that, it shows a lack of respect for the work we are doing here at committee. We are talking about years here, not a few months or one year. It has taken years, so it is a problem.

That is what I wanted to add.


Mr. Masse: I am hearing concern about setting arbitrary numbers. However, at the same time I hear that we are asking for deadlines and final timelines, so there is an inconsistency there.

If we were to bring them in, we would want to talk about what they have been doing and not abiding by the committee's direction; we will not talk about the substance of the matter in terms of details. We will talk about why they are not actually complying with the law.

If we want to set some course of action, then let us state some deadlines. It has been 13 years. Is 15 years okay or 17 years? At some point in time we have to tell them they have to comply. If they are not willing to do that, we have to do our job.

If you want to send one more letter out to them, that is fine. However, we have to give them direction. If we tell them right now that they have unlimited time to do that, then the message to them will be that we are not interested in resolving this matter because, after 13 years, they have not acted on the suggestions of the committee.

I hear people asking for deadlines and final timelines and at the same time saying that arbitrary numbers do not lead to results. We have to reconcile that difference there. In my opinion, we have to give them direction. I am comfortable if we want to send one more letter to them, but it has to be under specific circumstances and specific direction. Otherwise we will basically be indicating that it is okay to comply in 15 or 20 years, or never.

The Joint Chair (Ms. Charlton): I will try and read a consensus where there may not be one. How about we send a letter, as Mr. Anders suggested, asking for firm timelines and suggest also in the letter that if they are unable to provide such this time, we will ask them to appear before the committee?


Senator Hervieux-Payette: In the letter of February 15, we wrote:

In any event, the committee would seek from you a firm date by which the amendments addressing the committee's concerns will be made.

We are sending another letter in which we are writing exactly the same thing, asking them to give us the date that they are going to give us.

But I go a little further. I wonder which regulation is in force at the moment, because they say:

. . . is pending approvals.

Are other regulations in effect at the moment; are future regulations that the department has not yet passed, and from which we are extrapolating, basically not in effect? I would like our experts to tell us which regulations we are talking about: the upcoming ones or the ones that are in effect at the moment?

As for the technical question, when legislation is passed, we can certainly ask for experts to come to shed light on things for our committee. I have no problem with that. But the question is knowing — and I am talking for the people working in the sector. They have to work with clear regulations. This is not a product that is in common use.

We have asked for the date. In the light of the comments that have been made, you are suggesting that we ask for the date again. As my colleague said, are we going to put regulations in place in the knowledge that we are now going to give each department 15 years to conform to them? That makes no sense.

First, can someone tell me which regulations we are talking about, the old ones or the new ones? Second, I would like to know how we are going to deal with the question of dates. Because we should give them the date; we should not be asking them to give us a date that suits them. We have to tell them the date when we want to see them here if they still do not have the answer we have been asking them for.

We cannot be kept ``pending,'' like the regulations are, actually. We are pending too, waiting to see where they are going with the amendments.

Which regulations are we talking about? The regulations that are in force today or the regulations that will come into force in the future?

Jacques Rousseau, Counsel to the Committee: As I understand matters, the regulations in force are those from 1992. The committee asked for amendments 13 years ago. The amendments are mostly about drafting matters. There is one problem of vicarious liability, one provision in the regulations that the committee did not feel was very fair for those on whom the burden rests.

So the department is preparing the amendments that the committee asked for and has been waiting for for 13 years. But the 1992 regulations are still in place at the moment.

Senator Hervieux-Payette: That have been deemed —

Mr. Rousseau: About which the committee had a number of comments on the drafting and, as I said, one provision on vicarious liability.

Senator Hervieux-Payette: That can basically affect Canadians' rights. If the section you are talking about is put into effect, should we be asking if it can mess with peoples' rights?

Mr. Rousseau: It is in effect at the moment. As I said, the committee felt that, under certain circumstances, the effect of the provision was to put the responsibility for any given incident on, I think, the plant owners, whereas the plant itself is actually operated by someone else. So the regulations were holding the owner responsible for things that might have been done by the operator.

The committee said that, in some cases, that can turn out to be not very fair for the owner. So that is the promised amendment we have been waiting for for 13 years.

For the moment, the regulations in effect and in operation are those from 1992 without the amendments the committee asked for, that have been promised for all this time and that we are still waiting for. Those are the regulations you are debating.

Senator Hervieux-Payette: I would be all in favour of a letter as long as it provides a date. I have no problem telling them to come here to explain why this has not been done and the new regulations have not been sent. Whichever we choose, it seems to me that we have to do it before the end of the session.


Mr. Breitkreuz: With all due respect, Madam Chair put something before us in terms of reaching consensus and now we are going off on rabbit trails. I think we do have consensus amongst most committee members that we write a letter. You had a second part for which you might not have consensus, but I think if you were to seek it, you would have consensus on the first part you proposed.

I think we should move on.

The Joint Chair (Ms. Charlton): Let me test the floor as to whether we have that consensus. Is it agreed that we send a letter, as Mr. Anders suggested, asking for a firm timeline?

Some Hon. Members: Yes.

Senator Moore: Asking for a reply by a certain date. Are we waiting for a letter that might arrive in 30, 60 or 90 days, or are we waiting for a reply within 30 days?

The Joint Chair (Ms. Charlton): We have a proposal before the floor. There is consensus around some kind of letter.

I had three people on the speakers list: Mr. Vellacott, Mr. Albas and Mr. Anders. Do any of you want to respond to the question on the floor as to whether we put a timeline on that letter?

Mr. Vellacott: I have a question for legal counsel. When the department informed us that the amendments were put on hold until a review was completed, is that legal-speak or an inference that the amendments were partly there or in a draft stage and that the only thing in the way was the review? The review is out of the way now. I am optimistic and hopeful they were done.

Mr. Bernhardt: That is what I would like to think as well. I point out they published a draft set of amendments in 2004, so what became of that? Obviously there were problems with the draft. Someone noted that they had to go back to the drawing board and that is where it has been. I presume there are amendments here that are set to see the light of day.

Mr. Vellacott: They were going to set them by summer 2012 and informed us that the review is the problem. I think we are as good as there.

Mr. Bernhardt: If the committee wishes, we will certainly write back, seek a firm time frame and point out that this is what the committee asked for back in February, did not get and would still like to get.

The Joint Chair (Ms. Charlton): Is there agreement?

Hon. Members: Agreed.




(For text of documents, see Appendix E, p. 22E:1.)

The Joint Chair (Ms. Charlton): Under ``Reply Unsatisfactory (?),'' Item 5 on our agenda deals with three remission orders that relate to remittance of fees under the CFIA act. Counsel?


Mr. Rousseau: These three orders refer to remissions of fees imposed under the Canadian Food Inspection Agency Fees Notice. That notice was made by the minister pursuant to the Canadian Food Inspection Agency Act.

That same Act provides that the minister may remit fees fixed under the Act. The minister therefore has the authority to approve the remission of fees under the three orders.

However, these orders were made by the Governor in Council under the general remission authority delegated pursuant to section 23(2.1) of the Financial Administration Act, which states that remissions may be made on the recommendation of the Governor in Council.

The committee wondered under which circumstances the minister should exercise the authority to approve the remission of fees that Parliament has given him under the Canadian Food Inspection Agency Act. The committee suggested using a principle of legislative interpretation whereby a more specific, more recent Act has precedence over a more general and older Act. Using that principle, it would be up to the Minister to approve the remissions in question because the Canadian Food Inspection Agency Act is more specific and more recent than the Financial Administration Act.

The Canadian Food Inspection Agency, however, is of the opinion that both the minister and the Governor in Council can approve the remission of fees under the Canadian Food Inspection Agency Fees Notice.

According to the agency, remissions have been granted by the Governor in Council because, unlike the Canadian Food Inspection Agency Act, the Financial Administration Act describes the remission process.

In fact, no process is described in that Act. And if that were the real reason, one might wonder whether there are circumstances under which the minister would exercise his authority to remit.

In its letter of May 23, 2012, the agency writes that it is currently developing a systematic approach that may be followed by the minister when exercising his authority. It also writes that it has happened in the past. However, as has been the case since the correspondence began, the agency gives no details. It suggested a meeting with committee counsel and its own representatives in order to discuss its position and provide more detailed explanations. However, the agency has cancelled all the meetings. In fact, it has cancelled three meetings on dates that the agency itself chose.

As you can see from the emails dated October 11, 2012, the agency once more cancelled the meeting that was to have happened the next day and, despite its commitment to suggest other dates, never did so.

Without the details on the systematic approach that the agency has developed, it is difficult to assess whether its position on the matter conforms to the intention of Parliament and is therefore satisfactory.

The agency's most recent letter is dated almost a year ago. Perhaps the task of developing the approach is progressing. If the committee is in agreement, counsel could write back to the agency to inquire about the progress that has been made.


Senator Batters: Yes, I would agree with writing to the agency again and finding out, simply because of the request for the meeting. As well, I do not think there was any follow-up after the October 2012 emails. Who knows? They could have been misplaced and there is a lot going on. I think writing to the agency again would be a good way to go.

The Joint Chair (Ms. Charlton): Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix F, p. 22F:1.)

The Joint Chair (Ms. Charlton): If you thought vinyl chloride had been around for a long time, matters with respect to the Prince Edward Island Potato Marketing Levies Order have been around since the 1970s.

Mr. Bernhardt: I could describe this as a zombie file. It was dead and buried, but unfortunately we recently had occasion to revisit it and two things were noticed at that time. There seemed to be some provisions that were obsolete and the P.E.I. Potato Marketing Board indicated they would remove those provisions. The other issue was that the order had apparently not been amended since 1992, but the levies being charged were not the 1992 rates.

As members will know, this is by no means the first time the committee has encountered this problem. The Farm Products Council was to contact all marketing boards across Canada with a view to identifying levies that it described as being ``at risk'' of legal exposure and arranging for corrective measures. The latest reply on this file from the council indicates the work is under way to initiate required changes. There is no indication as to when it expects this work to be completed nor does it answer the committee's questions concerning the actual amount of levies that are being collected in respect of P.E.I. potatoes marketed outside the province and whether this order had already been identified by the Farm Products Council in the course of its review.

Mr. Albas: There are two issues here. There are the particulars with this agency, and we should write back asking for a timeline as to when they will be moving forward with requests and ask for clarification to make sure all the points are substantively dealt with.

The second point, from my prior experience on the committee, is that this does seem to affect more than one body. We should always be concerned when levies are given without proper authorization.

I would suggest that we write, in general, just to outline the concerns of the committee in relation to some of these delegated authorities, and also to the Minister of Agriculture. It would bring to his attention that there is a general concern about this particular practice — not specific to this agency but just in a general way — that has come up in the committee's work, that some agencies have apparently overstepped and we would like to raise that awareness with the minister.

The Joint Chair (Ms. Charlton): You are suggesting two separate letters, one general and one specific? Is it agreed?


Senator Hervieux-Payette: I have a question. Do the Prince Edward Island Marketing Council and the Prince Edward Island Potato Board absolutely have to go through the Department of Agriculture in order to get access to the people who have to make the amendment? Because it makes things a little complicated if they have to alert an official from the Department of Agriculture who must then get in contact with organizations that are not so-called governmental organizations and that may not even understand what is going on here anyway.

To establish effective communication with those people and to get some reaction from them, should we not send them a copy of our letter so that at least they, and the official from the department, know that we want some explanation of what is happening with this? That might perhaps speed up the progress on this file.


Mr. Bernhardt: Generally, the Farm Products Council is the federal agency responsible for overseeing the exercise of federal powers by these various boards. You are right that the boards themselves are provincial bodies and created provincially. The arrangement comes from the fact constitutionally that the province has jurisdiction over marketing agricultural products inside the province and that the federal government has jurisdiction over those products outside the province if they go to another province or are exported.

There is a series of delegations where Parliament has given the Governor-in-Council the power to in turn give power to the provincial boards to exercise federal powers and impose federal levies. The Farm Products Council is supposed to oversee all of this. For that reason, the committee generally deals with the Farm Products Council.

You are right in that the Farm Products Council sometimes has trouble dealing with the provincial boards because they view themselves as provincial creatures not necessarily beholden to Ottawa.

Nothing prevents the committee from copying letters to, or dealing with, a given board if that is what the committee wishes. That arrangement is sometimes a source of the problem. The provincial board says, ``We have levy-making powers,'' and they make a levy and impose it against everybody without realizing they are in fact imposing two separate levies — one under provincial legislation and one under federal legislation — and that it needs two actions. Even if the levy is the same amount, they are creating two levies, and I think the federal one sometimes falls by the wayside.

Mr. Albas: I agree that it can sometimes be confusing, at least with delegated authorities, as to whom we are having the conversation with. However, given the chain of correspondence, I suggest that a letter go out, but copying it to the Farm Products Council and the actual P.E.I. potato agency would be fine.

The Joint Chair (Ms. Charlton): Agreed?

Senator Hervieux-Payette: With regard to the content of the letter, perhaps we could give a little course as to who can do what because I think it is important they understand what we are looking for and who has responsibility for it. We need an explanation of what we want to accomplish and what is our role is, because they will ask, ``Who are these guys in Ottawa who want to mingle with our business''? A little introduction would be fine with me because if I am at the other end, I do my best. However, if they do not know what this is all about, it makes communication difficult and we may accelerate the decision-making process so that everybody knows what we want to accomplish.

Mr. Albas: In this case, I agree with the senator about a little history of what we are intending to do. I believe that we get better results when this committee clarifies its role and continues to work with these agencies in good faith.

The Joint Chair (Ms. Charlton): Is there agreement?

Hon. Members: Agreed.



(For text of documents, see Appendix G, p. 22G:1.)

The Joint Chair (Ms. Charlton): We are moving onto yet another item that has been around longer than some of my caucus colleagues. It concerns regulations with respect to licensing and arbitration. This time it is licences for the marketing of various agricultural products.

Mr. Bernhardt: Some 35 concerns were originally raised in connection with these regulations way back in 1989. Over the years, all but three have been resolved. Out of those 35, the committee is left with three that linger. Those are explained in the summary in the materials.

The agency informed the committee in January 2012 that it would deal with these issues as part of its regulatory modernization initiative. In the particular stage of that initiative, they had a projected time of three years for completion. The committee did not find this satisfactory and wrote to the minister — not only on this file but on a number of other files — seeking his cooperation to ensure that the amendments would proceed without further delay and independent of this modernization initiative. The relevant paragraph of that letter is quoted in the note. It expressed members' frustration with the agency's record of failing to meet projected timelines.

In his reply, the minister said the agency was exploring options to resolve this as soon as possible. Following that response, the committee wrote back to the agency asking for further particulars. The agency then indicated it would be streamlining all its regulations to fall under the new Safe Food for Canadians Act and that these issues would be resolved under the regulatory streamlining and modernization initiative.

At this point, the situation is that amendments promised in some cases 20 years ago have been repeatedly delayed and remain some years away.

Ms. Young: Obviously they are undergoing a big streamlining process under the modernization act. Do we know what is going on there? They are trying to blend the two and resolve the issue. Have we written to ask about that?

Mr. Bernhardt: Not since the committee asked in its last letter. After the file was last before the committee, we wrote on October 22 asking for further particulars on what the agency was doing by way of options to address this matter as soon as possible. That led to the January reply that said they will be in the course of this initiative as soon as possible, which I presume is still on track for 2015.

Ms. Young: Given that they are streamlining the two systems together, do you think it is a good option for us to write back asking about that and requesting more particulars?

Mr. Bernhardt: I suppose that depends on whether members are satisfied with that response ab initio. One option would be to write back and ask if the initiative is still on track and if the three-year time frame still holds. If members back in 2012 were not happy with that time frame, it is open to members to take a different view of it now. Three years has supposedly now become two because we are one year further down the road.

Ms. Young: Some of the 35 concerns over the course of 20 years have been reviewed and resolved, but three are still outstanding. That is what you are saying. However, we are being told by the department that those three are being blended or modernized with the new act, and we all know that new acts take some degree of time to develop and implement. If that is the case, we might as well wait for the new act instead of trying to chase down a 20-year-old set of regulations that we know will probably be modernized anyway. I would suggest writing to ask about the new act and when it will be in place, which will presumably resolve these issues.

The Joint Chair (Ms. Charlton): Is there agreement with that approach? Not seeing any dissent, we will move on to the next item.


(For text of documents, see Appendix H, p. 22H:1.)

The Joint Chair (Ms. Charlton): This item relates to regulations amending the Wild Animal and Plant Trade Regulations. The act required action within 90 days, but so far there has not been any.


Mr. Rousseau: As you say, the Act requires that species added to the Convention on International Trade in Endangered Species of Wild Fauna and Flora be added to the Wild Animal and Plant Trade Regulations within 90 days.

In many instances, the requirement to add species to the regulations within 90 days has not been met. In one case, it took 465 days. In previous correspondence, the Department has stated that it is increasingly difficult, even impossible, to respect the deadline set by Parliament.

Since it is not possible to meet the deadline that is currently required, the committee's preference was for the department to ask Parliament to take the necessary steps to amend the Act.

In its letter of December 21, 2012, the department replied that the option of amending the act to remove the 90-day deadline is not feasible at this time, given Canada's international commitments.

The department is therefore committed to making all necessary efforts to meet the deadline, but it added that it cannot guarantee that the Governor-in-Council would accept amendments to implement the convention within 90 days.

I would like to emphasize that the act requires the Governor-in-Council to add the species concerned to the regulations within 90 days. The Governor-in-Council has no discretionary authority to accept or reject the addition of species to the regulations.

The act is breached each time the deadline is not met. It is therefore pointless for the department to argue that the Governor-in-Council can accept or reject the amendments.

A new conference of the parties took place in Bangkok from March 3 to 24, 2013. If it is all right with the committee members, counsel could find out what the department did to meet the deadline set out by Parliament in the evaluation of the amendments from that conference. Obviously, counsel will be vigilant in seeing whether amendments to the convention will be added to the regulations by the deadline set out by Parliament, which in this case is June 12, 2013.

Senator Hervieux-Payette: Let us say we do not add some bird or animal within the 90 days. How long does that infraction stay on the record? One year? Two years? Three years?

What matters here, right, is that if they do not meet the 90-day deadline, eventually the endangered species will be added and we know, following this conference, for example, which ones will be added, perhaps 120 days later, but action will be taken by the government, even if that action is not taken within the statutory deadline.

There is the technical issue of the 90-day deadline, but there is also the issue of the animals that must be added to the list. That is the real objective.

Mr. Rousseau: As far as we know, additions have always been made. As I said, in some cases, delays may be up to 465 days. But as far as we know, these amendments have always been made.

Senator Hervieux-Payette: Have some been made recently?

Mr. Rousseau: I could not answer that question.

Senator Hervieux-Payette: I think it would be important to know the procedure; if the 90-day period is too tight for them, it would be important to know whether they are applying the legislation.

Mr. Rousseau: The problem the committee is discussing is meeting the deadline. Parliament has set a deadline, the deadline is not being met, we are being told that it is difficult, if not impossible, to meet the deadline. Therefore, in one sense, we are contravening Canada's international obligations.

We are being told that we cannot repeal that deadline, even if it is never met, or has never been met to date, because we would be contravening Canada's international obligations. One way or another, we are in trouble, and we are contravening Canada's international obligations.

The most recent conference took place in March. Amendments were no doubt proposed. Those amendments should be added to the regulations by June 12, if we meet the deadline. The department is committed to doing everything it needs to in order to meet the deadline. We can see if it will meet the deadline and then, depending on what happens in the file between now and the end of June, we could refer the file to committee and come back to it in September.

Senator Hervieux-Payette: That is fine then.


Senator Braley: There are times when you cannot do things in the time frame that you have to do them. At the same time, an obligation made in an international treaty is another problem. Is there anything outstanding from past treaties that at this time have not been met?

Mr. Bernhardt: As far as we know, no.

Senator Braley: It is a clean slate. They said they are going to do their best and are going to try. ``You are caught between a rock and hard place'' are the words you used, but people are human beings and can only do so much. My recommendation is to follow what you have said and the advice you have given, but is there another way to handle these things?

Mr. Bernhardt: The department has indicated that Canada is not the only country having trouble with the 90 days, so I suppose the ideal solution would be for all the parties to the treaty to sit down and negotiate a longer period. If it is a problem that is being experienced by a number of parties, you would hope it would result in a change to the treaty which could then result in a change to the act to implement the longer period and everyone would be happier.

The Joint Chair (Ms. Charlton): That may be a little outside of our mandate.

Mr. Albas: Your last comments are probably true. The current system and how it is set up is not achieving results. I am very happy to hear the senator say there is a great deal of value for us participating on the international stage to set these requirements and get better results at the end of the day.

I suggest we write a letter to DFAIT to advise them that in future conventions they choose to sign, we believe they should, at a minimum, choose a reasonable time frame based on a regulatory system. From my understanding, it takes about a year for the average regulation to go through the gazetting process all the way to PCO. Is that correct, counsel?

Mr. Bernhardt: It varies widely from case to case. If something is on an urgent basis it could be done quickly, but as we have seen it can take decades.

Mr. Albas: We have to give it a timeline. Why not suggest that they consult with the governing agency to find out the average timeline for regulations and recommend that it become the suggested time frame in future negotiations of conventions? At least for future conventions, we will have that going forward.

In cases like this, where we are part of an international convention — because this is not the first convention we have signed and have had this problem — my second suggestion is that we consider creating a secondary stream to give special consideration to conventions such as this. I somewhat agree with counsel. This is a case where obviously there is inherent value by joining these conventions. The current system is not capable of achieving the 90 days.

After writing the letters expressing our concerns and suggestions, I suggest we close the file.

The Joint Chair (Ms. Charlton): Close the file or monitor the file?

Mr. Albas: Close the file. In this case, counsel has brought us as far as we can go. By making the suggestion to Treasury Board and DFAIT, I think what we are doing is proper. However, as parliamentarians I think we see the value in being part of the convention. I do not think we can do anything further on this committee other than to point out that changes can be made to the system to allow more flexibility to achieve the conventions. However, I do not see value in continuing to have this file open.


Ms. Ayala: We are talking about the trade of endangered wild animal and vegetable species. We also need to think about biodiversity. We are talking about deadlines that are too tight. But considering that some regulations can take a year to be adopted, the species may have disappeared in that time. We need to take charge of things. We need to think about our children. Signing international agreements is for their future, as well.

I do not think we can close the file. I think it is important to see whether a new deadline is given, but we cannot give them a one-year deadline, either, because these are endangered species we are talking about.

Are there some economic interests underlying all this? Some might say they do not care about these little animals, we will still sell them. I do not think we should take this lightly.


Senator Moore: Others might not be interested, but I would like to hear from counsel as to what the response is to these two letters, even if you want to close it. I want to know what they say. I think we should keep it open at least until we learn what they say.

Senator Braley: I have no problem with what Senator Moore said, but we are all concerned about endangered species. The problem is that there is nothing outstanding at the present time. I have just been told everything is done. If they do not meet the 90-day deadline, that is a different story and you can open the file again. However, in response to the letter we have asked for, by all means we can bring that back.

Why are you keeping a file open that may be in arrears?

Mr. Bernhardt: As far as future amendments go, those will be made by a regulation that will be reviewed and will come back to the committee. Should more species be added in 2015, an SOR will come to the committee in some form at that point.

The Joint Chair (Ms. Charlton): I am reading a consensus with respect to the particular amendment before the committee. Are members agreed to close the file, although we want to see a response to the two letters that were suggested by Mr. Albas. Is there agreement?

Senator Hervieux-Payette: Why not keep the file until we receive a reply? I need to know what they have to say. Should we make the decision before we get the information? Let us wait until we have the reply.

The Joint Chair (Ms. Charlton): Done. Thank you.


(For text of documents, see Appendix I, p. 22I:1.)

The Joint Chair (Senator Runciman): Under ``Part Action Promised,'' Item 9 on our agenda has been around for a few years. Some matters have been dealt with while others remain outstanding.

Mr. Bernhardt: Five matters and part of a sixth were addressed recently. One of the issues to be addressed was amending a number of provisions to render the use of certain terminology consistent. In doing that, however, one provision was overlooked so a further amendment will be required. Following several other exchanges of correspondence, amendments to deal with a drafting matter and the need to clarify two issues remain outstanding. All could be followed up by way of a request for a progress report.

That leaves two points on which it is suggested that replies provided by the agency could be taken as satisfactory. The first concerns the requirement that animals be destroyed in a humane manner. The agency's January 24 reply explains how hatchery operators can go about ascertaining what methods will meet this requirement.

The agency has accepted that an administrative policy stating that certain labels should be in both official languages cannot be legally binding on anybody, but it is merely an interim approach pending the making of amendments to the regulations that would require bilingual labeling. It is suggested that this could be taken as satisfactory.


Senator Bellemare: I think you should write and ask for a respectable deadline.


The Joint Chair (Senator Runciman): Is there anything else? Are we in agreement?

Hon. Members: Agreed.


(For text of documents, see Appendix J. p. 22J:1)

The Joint Chair (Senator Runciman): With regard to Item 10, four matters were raised and amendments were promised on two. One deals with a superfluous definition and the other an added definition. I believe that one remains outstanding.


Mr. Rousseau: Before I start explaining the file, perhaps I could say that the members have surely noticed that several of the letters mentioned in the note have not been reproduced in the file as they should have been.

This file has to do with an order adopted by Chicken Farmers of Canada. It is not the first file involving this organization that the committee is looking at. In fact, today's agenda indicates that files 1 and 19 also concern Chicken Farmers of Canada.

Most of the correspondence sent by Chicken Farmers of Canada and the Farm Products Council of Canada is in file number 19. The main missing piece is the first letter sent by committee counsel to the Farm Products Council of Canada.

Having said that, the committee has two options in this file. First, we could not study it today, in which case, it would be added to the agenda for a future meeting, accompanied by all the correspondence. Second, given that the note prepared for the committee contains a summary, the context and an analysis of the file, if the committee wishes, I could present the file, after which the members could decide whether they want to review it today.

I would add, as the chair noted, this is a fairly simple file since, in response to the four points originally raised, two amendments have been promised, one reply is satisfactory according to committee counsel, and we are still waiting for a reply on the fourth point.

Would the committee allow me to present the file? Okay.

Hon. members: Okay.

Mr. Rousseau: The first point is one the committee knows well. It involves superfluous definitions in the order adopted by Chicken Farmers of Canada already presented in the proclamation under which the order was adopted. This point is identical to one that was presented in file number 1 this morning and about which the joint chairs wrote to the minister.

In the letter of February 21, 2003, the council told us that the superfluous provisions would be repealed.

The second point concerns the use of the term ``primary processor'' in the order. Once again, the term is not defined, and the council recognized that it needs to be.

As for point 3, counsel is of the opinion that the explanation provided, which is described in detail in the note, constitutes a satisfactory reply as to what a quota bank is.

And finally, once again as the chair mentioned, we are waiting for a reply on the fourth point.

If the committee agrees, counsel will write to the Farm Products Council of Canada again to obtain the missing reply.


Mr. Strahl: I am glad that you also said that those letters were not there, but you have explained it well. I agree that we should ask for clarification on point 4. In the last letter you received in February it was indicated that you could contact two individuals. Has that been done or is that not the way it should work? Do we have to formally request a reply? It seems that a suggestion was offered to get this done by contacting these two officials, but maybe it is not that easy.

Mr. Bernhardt: In this case, our concern was that the correspondence had been going back and forth for some time, in part because we received an extensive letter from the counsel to the chicken farmers concerning all their regulations, which I believe is published in item 19 and runs to some 30 pages. We are pursuing files in one context and another. This particular file had never gone to the committee. At some point we needed to bring the file before the committee but rather than continue with another round of correspondence and delay it until the fall, we thought that we would bring the file to the members of the committee. If members agree, we certainly could pursue that point in any manner that is preferred by the committee.

Mr. Strahl: We need to write to the Farm Products Council and ask for an answer on point 4.

The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix K, p. 22K:1.)

The Joint Chair (Senator Runciman): Next is Item No. 11. I gather Health Canada has been responsive, but a number of new matters have been raised. The department has indicated its willingness to rectify two but wants additional time to consider the third matter.


Mr. Rousseau: Exactly. You have summarized the file nicely.

I would add that the outcome of adopting SOR/2010-221 was, at the committee's suggestion, to correct 18 provisions of the Narcotic Control Regulations and to revoke section 56, which the committee considered imposed a reverse onus on practitioners governed by the regulations, and thereby violated the presumption of innocence guaranteed under the Canadian Charter of Rights and Freedoms.

If the committee agrees, with respect to the reply we are still awaiting, counsel will monitor the file in the usual manner and, when we have a reply, we will send it to the committee.


Mr. Anders: The way I take it, they have agreed to make the first amendment and have agreed on the suggested second amendment, point 2. With regard to the third, I guess they just want to consider potential amendments. I would suggest that we write back and ask if they have potential amendments or suggestions.

The Joint Chair (Senator Runciman): Are there additional comments? Is it agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix L, p. 22L:1.)

The Joint Chair (Senator Runciman): Under ``Reply Satisfactory (?)'' on our agenda, Item 12 concerns the use of leaded gasoline in competition vehicles without regulatory authority between January 1 and June 17, 2010.


Mr. Rousseau: The regulations applied to competition vehicles as of January 1, 2010. On June 17, 2010, an amendment was made to the regulations that exempted those vehicles. In the meantime, the regulations were not applied to competition vehicles.

The committee wanted to know on what legal basis the department made the decision. The department responded that priorities for the branch's enforcement activities are established based on risk in order to maximize the allocation of resources dedicated to enforcement of high-risk issues.

In this specific case, the branch took into consideration the fact that the Governor-in-Council intended to authorize the use of leaded gas. The department therefore decided to adopt a reactive approach; in other words, measures to enforce the regulations could have been taken if complaints had been made to the department.

The department's response does not provide a solid legal basis. Does the department's solution amount to an abuse of discretion in the sense that it is the same as refusing to apply the existing legislation? One can imagine that it is normal, based on the circumstances of a specific case, to exercise discretion in initiating proceedings for contravening the existing legislation. However, deciding a priori that the existing legislation will no longer apply in any case that arises is another matter altogether.

The fact is that the department was unable to plan to adopt the exemption prior to January 1, 2010. However, legally, it was the only solution.

Having said that, it is difficult for the committee to take its study further. In the final analysis, the issue is clearly a matter of applying the existing legislation. If the committee decides to close the file, would the committee like counsel to write to the department again to inform it of the concerns arising from its decision not to apply the regulations to competition vehicles?


Senator Batters: Given what you have said, it is difficult to take this study further. I do not think we should write back again. We should close the file at this time.


Ms. Ayala: I live in Montreal. In Montreal, we have the Formula One race. We are not even applying the legislation and it is no big deal? What am I doing here, in Parliament?

I do not know what to say. What do you suggest? What can we do? If this legislation is there to protect people, we have to apply it. This department that is giving itself powers. . . Good. Are we a parliamentary system or not? What is happening? I think we have to do something.

I am asking you, based on your experience, what should we do?

Mr. Rousseau: First, I asked about this, and for Formula One and Canadian Grand Prix vehicles in Montreal, Formula One vehicles no longer use leaded gas.

Having said that, the committee's role in this file is a little — we have done everything we can. We tried to find out exactly what had happened. It is no longer a matter of making the regulations consistent with the act or something like that, which is the committee's core mandate. Rather, it is a matter of applying the regulations. We realized in studying the file that it was strictly, finally, a question of applying the regulations, which right now is a matter for another committee. Not ours.


The Joint Chair (Senator Runciman): We have advice from counsel. Do we have a consensus to close the file?

Hon. Members: Agreed.


(For text of documents, see Appendix M, p. 22M:1.)

The Joint Chair (Senator Runciman): This file, Item No. 13 under ``Progress'' on our agenda, has been before the committee for 17 years. The requested change has been published in the Canada Gazette, Part I, and we are happy with that.


(For text of documents, see Appendix N, p. 22N:1.)

The Joint Chair (Senator Runciman): This file, No. 14 on our agenda, has been before the committee for eight years with 17 points raised initially, 15 of which were addressed through amendments. For another, we were provided with a satisfactory explanation. There remains one outstanding point. Counsel, do you wish to speak to that?


Mr. Rousseau: As you said, the correspondence the committee is looking at today has to do with an amendment aimed at harmonizing the French and English versions of section 53 of the Canada Lands Surveyors Act.

The committee had understood that a promise to amend was made in 2005. In the letter of November 6, 2012, the department said that, according to it, that was not the case. However, in the letter of January 18, 2013, the department acknowledged that it would be preferable to amend the English version of the act to clearly state the requirements to be met to obtain a permit to carry out cadastral surveying Canada's lands in a territory. The department said that the point would be brought to the minister's attention.

At this stage, counsel will monitor the file and keep the committee informed of developments in the usual manner.


The Joint Chair (Senator Runciman): Are members agreed with that approach?

Hon. Members: Agreed.


(For text of documents, see Appendix O, p. 22O:1.)

The Joint Chair (Senator Runciman): With respect to Item 15, concern was raised a decade ago that the provisions of the seed regulations are vague and need to be amended.


Mr. Rousseau: I would add that six of the nine points raised were resolved between 2006 and 2011. On January 18, 2012, the agency indicated that the outstanding issues were now being considered as part of the agency's regulatory modernization initiative, the relevant stage of which had a projected timeframe for completion of three years. The committee did not find this satisfactory. The joint chairs wrote to the minister to ask that these amendments be made without further delays.

In August 2012, the minister indicated that the agency was exploring options to resolve them as soon as possible.

In the letter of January 14, 2013, the agency indicated that the promised amendments that had not yet been made would be added through a miscellaneous regulatory amendment, which would come into force in 2014.

Once again, committee counsel will monitor the file and keep the committee abreast of any progress in the usual manner.

Senator Bellemare: Based on your experience, do you think this will be completed in the planned timeframe?

It is hard to say.

Mr. Rousseau: You know. . . In addition, we did the math. By using the regulations that should be passed in 2014, we would gain almost one month on the deadline. That depends on whether everything works.

Clearly, the experience with the agency has been that, sometimes, delays drag on and on.


The Joint Chair (Senator Runciman): Counsel will continue to monitor the file.


(For text of documents, see Appendix P, p. 22P:1.)

The Joint Chair (Senator Runciman): Item 16 concerns a discrepancy between the French and English versions of the act that renders a section of the regulations illegal. There has been agreement to repeal that section rather than try to fix the act. Is there anything else on this, counsel?

Senator Braley: It is the interpretation of the English and French. Is anyone being hurt?

Mr. Bernhardt: The issue potentially, because it is a problem in the act, is that it has the effect of rendering that provision of the regulations illegal. Someone charged with contravening that provision of the regulations might have an argument in court whereby they would be charged under an illegal regulation. That would be the potential. I presume the regulation is being applied.


Mr. Rousseau: The problem is actually that section 25(b) of the act states that the Governor in Council must specify the documents for applications or registered designs filed in an electronic format.

The regulations do not address those issues. It is up to the Commissioner of Patents to specify those details in the Office Record. The problem is that, although those things should have been specified by the Governor in Council in the regulations, they are specified by the Commissioner of Patents in the Canadian Patent Office Record. The risk of anyone being prosecuted because of this is very low — that is not the issue. It is a case of unlawful delegation, but there is no major risk of someone being prosecuted for not complying with illegal regulations.


Senator Braley: After you make the adjustments, then it has to go to the Department of Justice to approve the new wording, then to Treasury Board and then to the Privy Council.

Mr. Bernhardt: At some point it will have to form part of a bill.

Senator Braley: This will take some time. The statement has reached Treasury Board and is awaiting an answer. I just say monitor the file.

The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.


(For text of document, see Appendix Q, p. 22Q:1.)

The Joint Chair (Senator Runciman): With regard to Item 17 under ``Progress(?),'' this file has been before the committee for 30 years.

Mr. Bernhardt: The only thing left on this file is the removal of references to the Board of Steamship Inspection from the Ship's Electrical Standards. Members may recall that the standards are a departmental document incorporated by reference in the regulations. That particular board has not existed for over a decade. The standards are to be revised but only after the regulations are to be revised. Prepublication for those new regulations was supposed to be in early 2013. Apparently there have been delays and prepublication is expected early to mid-2014. After that, we will see the new standard, which will no longer refer to this non-existent board.

I suppose the committee could question why deleting references to a board that does not exist should be put off. It is a relatively minor revision, and it would be nice to close the file. Other than that, I do not have much to add.

Mr. Vellacott: It should be monitored and in the fall we can see if they are on track to keep their promise by 2014.

I have a side question for our legal experts. Do we not have any steamships retrofitted for tourism anywhere in the country?

Mr. Bernhardt: Yes, we must have. I believe that everything is simply done by the minister. All the functions that used to be carried out by this Board of Steamship Inspection are done by the department in terms of approving, inspecting and registering ships. When the new Canada Shipping Act was enacted in 2001, the board was eliminated and simply rolled into the department. The department still has a standard that talks about all the things the board does, which are done by the department these days.

Mr. Vellacott: If that is clear, we could just monitor the file and ask in the fall if they will meet the timeline for early 2014.

Mr. Masse: Such a small amount of housekeeping needs to be done on this file, but it will cost us money to monitor it. This is ridiculous. I am tempted to give them a choice to either finish it or come in and explain why they cannot finish this. We will have to monitor it and that will cost money and time. It is so ridiculous. At some point, we have to get action. The file is 30 years old, and yet we are going to monitor it again.

Mr. Albas: This file is quite extensive and technical. Certainly, I can understand the member's frustration. We have this committee as an ongoing expense because we believe there should be scrutiny of these things. Monitoring and seeing the file through to satisfaction is the job of counsel and this committee. I understand the frustration, but these are technical matters. Again, that is the purpose of this committee.

Mr. Masse: We are supposed to resolve things.

Mr. Albas: Excuse me, I have the floor. The purpose of this committee is to provide oversight and to provide direction when legislation has been presented and approved by Parliament and it has not been followed through by regulation. I understand where you are coming from, but that is the purpose of the committee. As a reminder, we have to keep focused on what we are supposed to do, and this is exactly it.

Mr. Vellacott: I would offer, if this concerns expense and time, to provide the sticky note for counsel's daytimer. If it is an issue of time, I will key it into his BlackBerry. Would that resolve it?

Mr. Masse: That would be more expense. You guys are good at that.

It is a minor piece of housekeeping that the department needs to do, and we will monitor.

The Joint Chair (Senator Runciman): I believe there is a majority view to continue to monitor.


Ms. Ayala: The last comments bothered me. One of our colleagues here is talking and keeps making jokes. Let us be serious. He made comments about the money. Fine. The bottom line is that we need to be efficient in our work too. But to have the BlackBerrys and everything. . . This is not the place to be sarcastic unless people are too tired to work here. However, I think we take our work seriously.




(For text of documents, see Appendix R, p. 22R:1.)

The Joint Chair (Senator Runciman): Moving on to number 18, it deals with the Special Import Measures Regulations. This file has been before the committee for eight years.

Mr. Bernhardt: Amendments to resolve the committee's concerns were pre-published in October 2010. In January 2011 the department wrote that final publication was expected in the coming weeks. In late 2011 the committee was told the amendments were being reviewed and the timing had become uncertain. On April 2, 2012, the department again reported that the amendments were to be combined with other amendments but timing was still uncertain.

Most recently the department indicates that work is expected to progress in 2013. An expected completion date might be sought and it might be suggested that the amendments to resolve the committee's issues could be separated out and proceeded with independently if further delays were expected beyond the end of this year.

Senator Moore: You are suggesting that you write to that effect.

The Joint Chair (Senator Runciman): Do we have agreement?

Hon. Members: Agreed.


(For text of documents, see Appendix S, p. 22S:1.)

The Joint Chair (Senator Runciman): Next on our agenda is Item No. 19 under ``Action Promised.'' Some promises have been made with respect to amendments.


Mr. Rousseau: Six points were addressed in this matter. At its meeting of May 31, 2007, the committee indicated that it was satisfied with the response provided on one point and noted the promise to make amendments on two others.

In the letter of March 22, 2013, the Council announced that amendments will be made to address the committee's comments on the three other points (1, 2 and 6) in that letter.

Point 1 was reviewed in the note prepared by the committee in relation to the provision in question and the definition of the term ``chicken'' in the proclamation; this definition is important because the proclamation is the source of the regulatory powers granted to the Chicken Farmers of Canada for the marketing of chicken.

The proclamation itself was passed by the Governor in Council under the Canada Agricultural Products Act. The committee considers that the term ``chicken'' in the proclamation has a broader meaning than intended by Parliament when it passed the Canada Agricultural Products Act.

The letter sent to the Farm Products Council of Canada on June 13, 2007, describes the problem and the suggestion for amendment stemming from the committee's comments at the meeting of May 31, 2007.

Although this suggestion reflects the opinion of the farmers and the Council, as well as the case law referenced on the issue, the farmers rejected the proposed amendment right from the outset. A meeting with the farmers and the Council took place on December 8, 2009. On that occasion, committee counsel suggested an alternative that was also described in detail in the note.

This alternative simply consists of deleting the definition of the term ``chicken'' from the proclamation. The farmers promised to review the issue and to share their comments with us, but they never did.

In the letter of March 22, 2013, the Council announced the amendment of the definition in question to match Parliament's intent as described in the act, but did not provide any details as to the nature of the amendment.

If the committee agrees, it would be appropriate for counsel to write to the Farm Products Council of Canada to remind them of the two suggestions made and see which course of action the farmers and the Council wish to take.

Point 2 concerns the open incorporation by reference that is not authorized by the legislation, in the committee's view. Passing Bill S-12 would solve the problem and, as a result, an amendment to the proclamation would not be necessary.

As for point 6, the wording of the amendment proposed in the letter from the Council concurs with what has been suggested.

At this point, counsel's suggestion is to write again to the Farm Products Council of Canada and remind them about the proposed solutions, for point 1 essentially.


The Joint Chair (Senator Runciman): Is there discussion? Are we in agreement?

Hon. Members: Agreed.


(For text of documents, see Appendix T, p. 22T:1)

The Joint Chair (Senator Runciman): Several matters were raised initially concerning Item 20. Amendments have been promised on all the points to these regulations and are expected to be made shortly.


Mr. Rousseau: I will just point out that the amendments had to be made after the amendments made by Parliament itself to the Status of the Artist Act. In that act, the responsibilities of the tribunal have been transferred to the Canada Industrial Relations Board.

As I said, those legislative amendments had to be in effect prior to proceeding with the regulatory amendments. The amendments to the act have been in force since April 1, 2013. In the letter of December 20, 2012, the tribunal indicated that it was working with the Canadian Industrial Relations Board to amend the regulations as promised and hoped that they would come into force within a reasonable time frame.

It would be appropriate to write to the Canadian Industrial Relations Board to find out about the progress made since last December and obtain a time frame as to when the amendments will come into force.


The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.


SOR/2010-222 — Regulations amending the Food and Drug Regulations (Miscellaneous program)

(For text of documents, see Appendix U, p. 22U:1.)

Mr. Rousseau: On this matter, the department promised to make the amendments required to correct the two problems raised in the correspondence. First, it is a matter of harmonizing the French and English versions of the regulations; second, it is a matter of clearly specifying in the regulations the time period that the minister must comply with before revoking a permit that has been previously suspended.

Let me point out that, when SOR/2010-222 was passed, some provisions in the regulations were corrected, clarified and repealed in response to the 21 comments made by the committee.


The Joint Chair (Senator Runciman): Is counsel recommending further action?


Mr. Rousseau: We will monitor the file in the usual manner.


The Joint Chair (Senator Runciman): Is it agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix V, p. 22V:1.)


(For text of documents, see Appendix W, p. 22W:1.)


(For text of documents, see Appendix X, p. 22X:1.)


(For text of documents, see Appendix Y, p. 22Y:1.)

The Joint Chair (Senator Runciman): The four agenda items under ``Action Taken'' should be self-explanatory. Are there comments or questions?

Mr. Bernhardt: I would just note for the record by way of good news that taken together these four items make 88 amendments that were requested by the committee. Following that are 37 instruments listed without comment.






































The Joint Chair (Senator Runciman): Good. The meeting is adjourned.

(The committee adjourned.)

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