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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 3 - Evidence - February 6, 2014

OTTAWA, Thursday, February 6, 2014

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): Good morning, everyone, and happy New Year.

You've just been handed a proposed schedule of meetings for this committee. It is not very magical and is as we always proceed; once the first meeting is set, we meet every two weeks. Regardless, we wanted to circulate that for your information. Unless there are any questions or concerns, I'll just take that as an item for information.

Hon. Members: Agreed.





The Joint Chair (Ms. Charlton): Let's jump right in, starting with the Special Agenda Item. You'll recall that we'd had many discussions about who has the authority to set fees and by what instrument. We had asked counsel to draft a report for us, which they've now done. It's before us for our consideration; it is in your package. I will turn the floor over to counsel.

Peter Bernhardt, General Counsel to the Committee: At the last meeting, the committee had before it examples of fees in relation to national parks and certain fees imposed for services provided by the Canadian Food Inspection Agency. In the course of preparing the draft, we also identified another file in relation to fees for permits under the Saguenay-St. Lawrence Marine Park Act that gave rise to the identical issues, so the liberty was taken to include that one in the draft report as well. These are all the files the committee has dealing with these issues.

Specifically, with regard to fees for national parks, I would again point out that the main aspect of the committee's concern, and the issue that started the whole affair, as it were, has been addressed by recent amendments to the National Parks Act that now make it clear that fees can be imposed for the use of national parks under other legislation.

This concern, as I say, was unique to the national parks situation. It arose specifically from section 4 of the National Parks Act, which was a dedication clause and provided that the national parks of Canada are ". . . dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations. . . ." The committee took that to mean that Parliament intended to confer on Canadians the right to use parks and that the right could only be limited in accordance with the National Parks Act.

Of course, charging a fee to go into the park or to do something in a park limits the use of the park, in a sense, so the committee took the view that any fee imposed in relation to those parks had to be imposed through the National Parks Act. As I said, that has now been addressed through amendments to the National Parks Act.

That leaves the other issues the committee had raised and that are dealt with in the report. The first one is that if you have more than one way to impose a fee for the same thing, in theory, at least, you have the possibility that multiple fees could be imposed for the same thing. Practically, that may be a remote possibility, but the committee has always taken the view that the situation could be clarified easily and so that should be done.

Another question that arises is, given that ministers have power in these cases to fix the fees on an administrative basis and that's what they have done, are the regulation-making powers to fix fees even necessary? They're not being used at present. It seems doubtful they would ever be used. It is much easier for the minister to fix the fee administratively than to go through the regulation-making process. For that reason, the report also contains a recommendation that these regulation-making powers should perhaps be reviewed to see if they're even necessary anymore. If not, they could be deleted.

The last thing I would mention is that there is a typographical error in the English version of the report that was circulated to members. I wanted to point out that on page 14, in Recommendation 1, in the third line, the word "pursuant" appears twice. The first "pursuant" should be deleted.

I will conclude by saying that the committee has been unable to convince the ministers concerned of the need for further amendments. Therefore, as I understand it, the committee's intent in having the report would be to formally identify the potential issue to the houses and make suggestions in order that the committee can then move on.

The Joint Chair (Ms. Charlton): Are there any comments?

Mr. Albas: I want to thank counsel for putting together the draft report.

As you know, Ms. Ambler is no longer on this committee, and she had made the suggestion that the draft report be done. It was a very good suggestion. It was right and proper for the committee to have pursued this matter over the past 10 years.

That being said, going through the draft report, I have both a few points to make on the substance but also some suggestions for a future draft, because I do think that this should go through another round. I'll give my reasons why.

First, getting to the heart of the issue, the committee discovered more than one instance — we have Parks Canada, CFIA — of multiple entities being given the regulation-making authority to fix fees for the same service. This could give rise to operational conflicts and is not an optimal practice. So raising this concern with both houses is important.

Again, the recommendations that have been laid out by counsel are almost ultra vires, because what we are doing is giving recommendations to the government rather than actually raising the issue of a possible conflict with it. We already have a government response for it.

I would suggest that we encourage that the duplicative fee-setting structure or authorities be considered in the context of any miscellaneous statutes amendment bill for these things to be addressed.

It's perfectly legitimate for us to point out that this issue exists. I would also like to see the section on the fees for permits under the Saguenay-St. Lawrence Marine Park Act removed because the original draft report made no mention of it. My statement is that we would like to advise Parliament that there is a potential conflict and that this should be dealt with in any future cases.

I want to return to the substance. We have had acts of Parliament debated and passed, in this case twice. Parliament was very clear that on both of these power settings, giving the ability to set fees to these two different entities was the will of Parliament. So for us to be suggesting that the government may be operating outside of its mandate, I don't think is correct.

It's good to point out that there could be potential conflicts and that these things should be kept in mind. However, we always have to remind ourselves there are 18 criteria that this committee does work on when we're dealing with regulations. We are an oversight committee over delegated legislation, i.e. regulation, and not necessarily there to make suggestions directly to government. But I do think as parliamentarians we have a duty to report our findings to Parliament and raise this issue so that the next time that Parliament does consider a similar set of circumstances, it deals with it then and hopefully in a way where there will be complete clarity and these issues won't arise.

Last, I do think that the suggestion to look at possible changes found in the recommendations could be directed to a possibility future miscellaneous statute amendment process.

Madam Chair, Mr. Chair, counsel has certainly raised a correct issue. I think this committee has done its due diligence. We've sought clarification from the government. We've received government responses, so I would like to see the report changed slightly and come back, and then we can look at tabling it in both houses.

The Joint Chair (Ms. Charlton): Any further comments?

Mr. Bélanger: Could you or counsel tell me if there is any law, regulation or mandate of the committee that prohibits the committee from making suggestions of solutions?

Mr. Bernhardt: I think it's always open to the committee to, having raised an issue —

Mr. Bélanger: Come on, I want to know. Is there anything that prohibits this committee from doing that?

Mr. Bernhardt: No.

Mr. Bélanger: Thank you.

The Joint Chair (Ms. Charlton): We have a suggestion on the floor from Mr. Albas. Do I take it there's agreement with that suggestion?

Mr. Bélanger: No. I won't support that, but I suspect it will pass nonetheless. I think this committee has the ability, as has been confirmed. Nothing prohibits it from making recommendations on suggestions of solutions. I think these are quite legitimate and it's up to the government to take note of them or not, but for us to do so, there's nothing that prohibits it and it's perfectly legitimate to do so.

It's not a matter of ultra vires. It has been hinted that it might be close to it, but it's not. It's perfectly legitimate, and therefore I would support us including possible solutions. I will not support the motion that we exclude them from the report.

Mr. Albas: I don't think that on making suggestions outside as well, but I believe the whole intention of the draft report, Madam Chair, was to advise both houses of Parliament that a potential conflict could exist. We've already raised these issues and recommendations with the government directly in our correspondence.

Again, I have no problem with what the member is saying, but we have already tried those methods through our interactions with the agencies and with the government directly. They have provided their views that they are fully within what Parliament intended, and Parliament has reigned in on this twice.

My suggestion is that we simply focus on the future and make suggestions to Parliament that if its will is not to set two different authorities or entities with this ability to set fees, that it consider doing so through either a miscellaneous statute amendment or perhaps that it look at this in the future if any government legislation comes in along the same vein.

I appreciate the member asking the question, but this is an oversight committee of delegated regulation. We are not in the business of necessarily directing government. The whole point of the exercise was to advise Parliament of a potential conflict, and Parliament voted.

I believe your party also supported the recent changes to the National Parks Act. We were all very clear that we supported that change.

I understand that the member may have questions about it, but the whole intention of the report was to raise awareness of this issue in Parliament.

Mr. Bélanger: Again, the moment this report is tabled in both houses, it's a public document. The exchanges that this committee has had with the various departments may not be very well known among the public. So if this committee indeed has the responsibility to oversee regulation and it goes to Parliament and tables a report highlighting difficulties or problems and is not prepared to even put forward possible solutions, which we seem to be in the draft report, then I think we're harming the reputation of the committee by doing that.

We're not demanding a particular solution be accepted, but we're saying we've been at this, we think there is a problem, we highlighted it, and here are some possible solutions. There is absolutely nothing wrong with that. It's part and parcel of the mandate of this group to do so. It's a comprehensive approach, respectful, and it's parliamentary in saying to the government there's a problem and here are some possible solutions. The government might come up with something different, but I think it would be shortchanging this committee to remove those.

Senator Moore: Mr. Albas, you were talking about deleting something. What was that?

Mr. Albas: There's a section that counsel had mentioned. With the permission of the chair, page 8 identified two fees for permits under the Saguenay-St. Lawrence Marine Park Act. That wasn't in the original motion that asked for a draft report to be made.

Senator Moore: Counsel pointed it out. He said he took the liberty of including that in case we wanted to consider it.

Can we table this in both houses and send a copy to each minister as well? We could say, "For your information, here it is; we tabled it today and we think you should be aware of it"?

Mr. Albas: I have no opposition to that, if they would receive it.

The Joint Chair (Ms. Charlton): By way of clarification, I don't want there to be any confusion about the terms of reference of our committee. I think our terms of reference, if you review them, go beyond just alerting the house. If you want counsel to elaborate on that, I'm sure he could. Nonetheless, I sense there are two very different ways of approaching this issue.

As a committee, every time that we draft a report we have the ability to submit a dissenting or minority report if that's helpful. I throw those things out for your consideration. I'm in your hands as to how you want to proceed.

Mr. Albas: First of all, it's my understanding that our committee really focuses on delegated regulation, whether it be drafting technical issues, French, English, constitutional as in Charter rights, et cetera. There are a number of things we do to make sure that subordinate legislation actually enacts what Parliament's will is through the statutory process.

To me, when you are commenting on "operational" matters as in this is what the government should do to fix the actual legislation, the enabling legislation, the statutes, that is ultra vires. I want to point out that it's in the operational tone. That is not, I believe, within the mandate of the committee. It's useful information, but we have already raised those points directly with the government, have we not?

Mr. Bernhardt: I would make two comments. First, I don't think there is anything in the draft that suggests any of the fees currently imposed are unlawful. As far as I'm aware, there is no suggestion that any of these fees are ultra vires.

Second, I remind members that a general order of reference was sought in the committee's first report. That same order of reference has been given in each session for as long as I can remember. That report was concurred in by both houses; and in addition to reviewing statutory instruments, it empowers the committee to study, and I quote:

. . . the means by which Parliament can better oversee the government regulatory process and in particular to enquire into and report upon:

1. the appropriate principles and practices to be observed

(a) in the drafting of powers enabling delegates of Parliament to make subordinate laws;

(b) in the enactment of statutory instruments;

(c) in the use of executive regulation;
and the manner in which parliamentary control should be effected in respect of the same;

In that sense, if the committee so chooses — and it's up to the committee as to how it wishes to interpret that mandate — it can look at broader issues such as are dealt with in this report, the idea of how the federal administration should approach situations where there may be different, multiple ways of doing the same thing.

I don't know if that necessarily responds to the question, but I want to emphasize that in terms of vires, the report suggests there could be problems. The recommendations simply contain some suggestions — perhaps as much as recommendations they are suggestions — as to what might be done to avoid those problems going forward.

The Joint Chair (Ms. Charlton): Members, I'm in your hands. How do you want to proceed?

Mr. Bélanger: If we did call them suggestions as opposed to recommendations, would my colleague accept their inclusion? If they were called suggestions instead of recommendations, would that help my colleague accept that they be included in the report?

Mr. Albas: I have no issue with coming to a conclusion, but the fact is that the suggestion is that this go without asking for a government response. If you're not asking for a government response, why are you making recommendations? These things have been raised with the government already. From my understanding of our previous correspondence with the affected ministries, we have raised these points. It raises the greater question of Parliament's will, so we should make a conclusion that says Parliament may want to consider in its future deliberations the long-held concerns of the committee in this practice of enabling legislation that gives authority to two separate entities.

A conclusion that includes some of that would be fine, but to make specific recommendations when we've already made those recommendations to government is not a productive use of time.

Senator Moore: What about the suggestion of sending a copy specifically to each of the two ministers involved?

The Joint Chair (Ms. Charlton): Okay.

Mr. Albas: I would like to see a further draft report striking out that one section. Perhaps the conclusion can point out again, as the whole point of this exercise, that we've made suggestions or recommendations, whatever you want to call them, directly to the government. The government has given us their viewpoint. Now, let's alert Parliament so that it makes our concerns part of its thinking and deliberations if this issue comes up again.

The Joint Chair (Ms. Charlton): Before us is a suggestion that we bring another draft report forward. Can we get agreement that we bring forward another draft as amended, as suggested by Mr. Albas, with two copies later going to the ministers?

Mr. Bélanger: You might want to call a vote on that.

The Joint Chair (Ms. Charlton): All those in favour of that proposal?

Can you keep your hands up for a second? Thank you.

All those opposed?

I think the motion carries.

Mr. Bélanger: Of course, there will be opportunity to attach a minority report to that. Thank you.

The Joint Chair (Ms. Charlton): Thank you very much.


The Joint Chair (Ms. Charlton): With respect to the second Special Agenda Item, members will recall that we had asked counsel to meet with the Department of Transport. There were 183 issues that had been raised originally. That meeting has now taken place, and counsel is going to report back on that meeting.

Mr. Bernhardt: As you have alluded to Madam Chair, the purpose of this meeting was to convey the committee's dissatisfaction with the current state of affairs in connection with the 18 instruments forming part of the Canadian Aviation Regulations. We've simply referred to them as the Canadian Aviation Regulations in the materials rather than listing all 18 of them. We hoped to facilitate the provision of outstanding replies and ascertain projected timelines.

At the meeting with departmental officials, we were told again that they had formed a steering committee, the purpose of which was to develop and monitor a strategy for addressing the committee's comments. They proposed meeting with committee counsel every six months to provide updates, and that would be one means to keep the committee informed of projected timelines and abreast of progress. Of course, this would have to be subject to the need to deal with any issues on which there is no agreement, individually and in writing, so that they can come to the committee formally. I also gave the caveat that we would require instruction from the committee to do that before agreeing to that procedure. That was one approach put on offer.

More generally, it was indicated that the committee is one of the main drivers of amendments to the regulations and that addressing the committee's concerns is a priority. At the same time, they also advised that the aviation sector in Transport Canada, for various reasons, is only able to process about four regulatory packages a year. There are a number of demands and at present there are apparently 900 amendments to the Canadian Aviation Regulations under consideration from various sources. I presume that includes the 183 that the committee is looking for.

They claim that considerable progress has been made over the past six months. Also, reference was made to a fast-track process being instituted that may help to take care of some of the committee's concerns. As I understand it, this process would fall somewhere in between the standard regulatory procedures and the miscellaneous amendments process. I'm not sure exactly where it falls, but there would be no need for prepublication, for example, so that would speed things up.

More specifically, we asked why it had taken so long to respond to some of the matters raised by the committee. It was suggested that some of these points went to the core of the regulations and revealed fundamental issues that required considerable study. In some cases, that led to a fairly intense debate within the department. The one specific issue we discussed in this connection was the various provisions in the regulations require compliance with manuals. As members know, it has always been the view of the committee that these provisions indirectly create an offence for contravening an administrative document, which is not law, and therefore you need express authority to do this.

The committee first raised this issue in connection with the Canadian Aviation Regulations in 2009. No reply has been forthcoming. We were told that this was one issue that led to considerable internal debate

In the end, they've recognized there are serious concerns that need to be addressed. In fact, there is something called the "certification project" that has been established in large part because of the committee's concern in this regard. This project is going to deal with a number of issues, although they're apparently not really sure yet how this issue will be dealt with; that is still a matter of debate within the department. For that reason, no reply had been given to the committee.

I suggested that perhaps the better course of action would have been to advise the committee of exactly that; that there had been discussion, that the problem was recognized and that they were exploring various ways to deal with it and that, although they hadn't reached a settled option yet, it would have been a better thing to do than simply not replying at all.

The department did provide a table, and it's included in the materials. It sets out the status of each of the 183 points. That table has been very useful, certainly for us in clarifying precisely which amendments are to be included in an upcoming miscellaneous amendments package. In total, from the table that package would address 44 points raised by the committee. Apparently that package is to be made this summer.

Six other promised amendments have been prepared and are awaiting ministerial approval. They hope to pre-publish those this spring. In addition, another five concerns would be addressed by amendments that have already been pre-published in December 2013.

I think we now have 70 points on which a reply is yet to be provided. Apparently 41 will be addressed in two responses that can be expected — one in April and one in June. I was told that in some cases, however, the response at this point may simply be that the issue is under study.

As well, some of the other understanding matters — I guess that would leave 29 — will apparently be addressed through this certification project.

That's where matters stood. The one issue for the committee to consider this morning is what it thinks of the suggestion for regular meetings between counsel and the department, as well as to how the committee feels about the progress that has been presented by the Department of Transport.

Mr. Breitkreuz: In response to your last point, we should take them up on this. We need to have an ongoing relationship with them. It looks like they're trying to comply with amended regulations. I don't know what more we can do. Maybe counsel can write back to them and take up these issues with them.

You've indicated that this committee has had quite an influence on them and that one of their priorities is to try to comply with what we're requesting. I think you should continue to meet with that special committee. I don't know that we have any alternative other than that. That would be my suggestion.

It depends on the committee, I guess, but in studying all this, it seems an overwhelming task that they have before them. I think we should just continue to work with them.


Senator Hervieux-Payette: We dealt with people at a lower level, who report to a deputy minister, an assistant deputy minister and the minister. We spoke to those who are at the operational level. I do not know if these people said that they had the necessary staff to enable them to do that kind of work. As far as I know, 900 plus 180 is 1,080. So we are good until 2025, certainly.

Firstly, did these people complain that they did not have the necessary resources? Secondly, is security impacted by the fact that things are not being done, even if we see the numbers — does this apply, for instance, to the manufacture of airplanes, and to air traffic? A lot of things are involved. Is there an impact on security? And what were the 900 others about, and who prepared them? Did they make their own list of 900 amendments? Where did these things come from?

The influence of the industry must also be taken into account. I think that looking at this piecemeal, small regulation by small regulation — I would like to have a holistic vision, to see where we are going with this, because basically we are going to work on this for years to come, and we may well be up to 670 in three years, but we will not have solved the relevancy problem, and especially the issue of regulations that arrive in a timely manner and comply with technical and scientific reality.

We are not dealing with apples and oranges here, we are talking about aircraft, air traffic, and technology, and I find it very worrisome that these people are left without the necessary resources, indicating that the people who are above them have no interest in this. After the Lac-Mégantic incident, and how the Department of Transport has been working — perhaps we could put a little more effort into this.

My comment is that in future, what shall we do? Are you going to see them every six months and write "project being accredited, suspended or being drafted"? We will never see the end of it. You go and see them every six months. I do not think that this will resolve the overall problem. We have a way of communicating, of saying: Listen, give them more resources. Organize yourself so that these things are dealt with adequately. Have there been any cuts to the number of employees who work in this sector?

My question is about the long term and how they intend to resolve this. As far as I am concerned six months is woefully inadequate, and we cannot support this type of exercise which will, in my opinion, be a waste of time for you, while they will not do the work that needs to be done.


Mr. Albas: While I appreciate some of the concerns raised by the senator, I want to again ask a few questions of counsel.

Counsel, with regard to the amendments that are outstanding — and there are a lot; this is a huge file. Again, I think we've rolled 18 files into this one project, and I think that's good because it gives us an idea — if we start making progress, you'll see that this will change.

First of all, are our amendments more of a legal and technical nature? From my understanding, the other main element is the Transportation Safety Board. The main drivers they explain on page 3 of the document are that:

Other examples of "main drivers" are responding to recommendations from the Transportation Safety Board and changes to international agreements.

Are the outstanding issues of a legal and technical nature?

Mr. Bernhardt: They run the gamut from the smallest of drafting matters to some fairly substantive legal concerns. Certainly the notion of requirement that you comply with the manual — if that's creating an offence for which there is no authority — is a serious, substantive issue. You are potentially fining or imprisoning people without authority to do so.

As I said, on the other hand, with 183, there is — I hate to use the word "smorgasbord" — everything from the sublime to the ridiculous.

Mr. Albas: I think it's always important for parliamentarians to view safety as being of the utmost importance, but most of these have more to do with the legal nature of the regulations, drafting errors, or French to English translation.

Mr. Bernhardt: What we have now is a very complex system. We have the Aeronautics Act and we have the regulations. A lot of what is referred to in the regulations is technical standards and documents produced by the Department of Transport that are incorporated into the regulations. In some cases, it's a question of whether those documents are consistent with the regulations and how this works together. As you say, it's hugely complicated. Printing off a master copy of the regulations ran to some 600 pages I believe.

Mr. Albas: Would some of these issues be dealt with through the incorporation by reference legislation?

Mr. Bernhardt: It's possible. For a lot of these, there is now authority to incorporate those standards. The problem is, when you read the regulation and there may be a reference to a standard. For a lot of it, as I say, we ask questions. We ask, "How does this work with this?" because they are very technical. That was in 2009 and we still do not have an answer. Apparently the answer was because in asking that question, it revealed something to the people dealing with the regulations that they had not thought of before, and now they're back trying to figure it out themselves.

Mr. Albas: There is obvious benefit for both our legal counsel as well as Transport Canada, it sounds like, to have these interactions; is that correct?

Mr. Bernhardt: Yes. I think there are two aspects here. The first is that the committee would like its concerns taken care of. The second, more mundane issue, which I suppose is more of a concern for staff than the members, is the actual managing of the file. That's why it came to the committee with all 18 of them at the last meeting. Things were getting to the point of having responses on this part, responses on that part, and it was becoming impossible to manage the dossier day-to-day.

Using this table as a basis for an example, if it was the case where we would meet and get regular updates based on this table for what had been done, what the timetable was for this, it would probably be a helpful way of consolidating it all. That, of course, is always subject to the caveat that simply meeting and having tables can't be a substitute for moving ahead with these things. That's why I say the proof will be whether this does lead to things being accomplished.

Mr. Albas: In the absence of a magic wand to make this all disappear and go away, I'm going to agree with my colleague, the vice-chair, simply because we have taken 18 files and condensed them into one. We've tried a new approach meeting with them, and they have responded with at least outlining they are aware of our concerns and have proposed joint meetings. The senator has a good point; there should not just be meetings but follow-up to make sure there is real progress, and I think that we charge counsel to do so, and to then follow up and report back, but follow up after the meetings, documenting what was agreed to, and then seeing if these points get taken off bit by bit.

Unfortunately, in the regulatory road warrior approach of getting into the trenches and dealing with these things, you get muddy. I feel bad for counsel in that this is the approach they have to use, but by the same token, if we can be effective in dealing with this very large file, then I'm satisfied with that and agree with the vice-chair.


Mr. Bélanger: Thank you, Madam Chair. Two things: the first is that I would like to know if the counsel has replies to the questions Madam Senator raised, and in the affirmative, I would like to hear them.

Secondly, I support the suggestion made by the other deputy chair of the committee to ask that our staff meet with the people at the Department of Transport so that we get regular updates, and see whether this way of proceeding could be adopted in other situations.


The Joint Chair (Ms. Charlton): Senator, would you like counsel to answer your questions before you ask your next one?

Senator Hervieux-Payette: I would like to have a report before we adjourn in June. The six months would fall in the middle of the summer, and I would maybe say end of May so that we at least have an idea of where we're going with that. That's not a big change, but rather than coming back at the end of September and having gone on for more than eight months, I think it would be more practical.

Senator Moore: I'm pleased that counsel has been able to get all these issues between two bookends.

In the table that the department presented to you, have you gone through it as to what they say the status is on the various items? Are you satisfied with those points?

Mr. Bernhardt: Yes, I'm satisfied that it reflects the state of affairs. In some cases it says "explanation pending," which is no reply.

Senator Moore: For the first item, "Action taken," "Departmental approval being sought" since September 2009, when you meet again, what do you do with that item?

Mr. Bernhardt: I think the question would be exactly what stage of the approval process is that at and when is it expected to be completed.

Senator Moore: So when you met with them and got this document, was there any indication as to what they had to do to complete it? It's nice to have a list and at least now we're all looking at the same page, but . . .

Mr. Bernhardt: I'm assuming from that that it will not be included in the miscellaneous packages because there are other items that suggest it will be in those packages. This is somewhere else in the process, presumably going through the regular "unexpedited" process.

I am not sure about the reference to Lasers/83. I suspect that's an internal document identification number from their point of view.

Senator Moore: I want to know that we will be moving the ball forward and we're not just going in and getting a list from them. The listing is nice, but now we've got to start ticking things off and meeting the committee's demands.

Mr. Bernhardt: Perhaps the suggestion of another column to the table stating "projected completion date" might be helpful.

Senator Moore: Something to give us a target. Thank you.

Mr. Breitkreuz: I want to respond to the suggestion that maybe we should have a report earlier than, originally, six months from now.

By pushing too hard here it may be counterproductive. It will create a lot of work to put out this report and may prevent them from actually doing what the committee is requesting, so I have misgivings about that. If they meet in six months with our counsel, that, to me, is moving forward.

Mr. Albas: This might surprise some members of the committee. I'm actually not a big believer that there is only one way to skin a cat. I would suggest some sort of moderation between the two, because I understand what Mr. Breitkreuz is saying. We need to have the agreement of two parties just to say we want a meeting. Again, if you meet with someone and they have nothing to show because it has been called too early, that's not a productive situation either.

What I would suggest, along the lines of what Senator Hervieux-Payette has suggested, is perhaps we charge counsel to engage with Transport Canada in this meeting process and try and develop a schedule for that while highlighting the committee's interest in seeing some progress, perhaps along the lines of what Mr. Bernhardt has suggested in adding an extra column with expected timelines, which I think is fair.

We could ask for a follow-up of any progress to date, and if they send something back saying they've got five or six items that could show the senator that they are taking our concerns seriously, we should meet but also follow up those meetings by asking for more information and free counsel's hand to be able to deal practically on this issue. Like I said, Mr. Breitkreuz suggests we try to work with them to start chopping this down.

Going back to Senator Hervieux-Payette's point, some of the work may already have been done and we just don't know about it. Asking for that and following up with continuous letters after these meetings would be important.

The Joint Chair (Ms. Charlton): Can I try to read a consensus where there may not be one? I think the suggestion from Mr. Breitkreuz that we continue meetings by definition suggests that there be some flexibility for counsel as opposed to writing things down, that these things can happen in a conversation.

I think Senator Hervieux-Payette's suggestion that we get a report back before the summer probably makes some sense. It is happening as a result of conversations.

Senator Hervieux-Payette: I was thinking that we could have not just two or three clauses but a full picture of what gets done between now and June 12.

The Joint Chair (Ms. Charlton): If counsel reports back from the conversations that not enough time has elapsed for any serious progress to have been made, at least we can take that into account as we decide how to proceed.

Can we agree that counsel will continue to meet and we will have a report back at the June 12 meeting?

Hon. Members: Agreed.



The Joint Chair (Ms. Charlton): Moving on to Item No. 3, the Department of Foreign Affairs had actually offered to meet with counsel on some of the outstanding amendments to the regulations that we had asked for.

Counsel, do you want to report back on those meetings?

Mr. Bernhardt: Certainly, Madam Chair.

By way of a brief background, on SOR/2002-145, amendments to the regulations and to the Preclearance Act were to be made after the Government of Canada and the United States finalize the new pre-clearance agreement. In February 2013, the department indicated that because negotiations were just beginning, they would explore other options to address the committee's concerns in order that the regulations be consistent with the act. The committee asked for an update on that and was told that it did not propose to do anything until the negotiations were completed.

On SOR/2002-148, one year ago the department indicated that the promised amendments weren't tied to the negotiations and that they would be completed no later than June 2013. In an August 30 letter, however, the department indicated that it was still of the view — I emphasize "still" — that it would be imprudent to proceed until negotiations had been completed.

The offer to meet was taken up and the meeting took place by conference call. I explained that the committee was concerned that after nearly 10 years things seemed no further along than they were at the outset and, therefore, that we were looking for information on the state of negotiations and why things seemed be moving so slowly. What had apparently changed between February 2013 and June 2013, particularly in connection with the amendments the committee had always been told were not related to the negotiations, or at least not tied to negotiations, and what might be done to speed things up.

Apparently serious negotiations began some 18 months ago. In December 2011, the Beyond the Border initiative was announced, and Privy Council stepped in and became involved in the process. I was told by Foreign Affairs that Privy Council was strongly of the view that nothing should be done until the negotiations were completed.

I was also told that it was initially anticipated that any amendments required as a result of the new agreement would be done simply through changes to the Preclearance Act, that the scope of the negotiations had expanded considerably, and that there would now be a need for an entirely new Preclearance Act as well as amendments to a number of other acts. There was a fleeting reference to some party even proposing or requesting changes to the Charter of Rights.

Senator D. Smith: Dream on! I was involved in it the last time, 30 years ago.

Mr. Bernhardt: As for a possible timeline, negotiations could be completed by early summer according to negotiators, while everyone else seems to think this is very optimistic. Even if there is a draft agreement, there will be a need for considerable changes to legislation, which of course would take time.

With all that by way of background, we then moved on to seeking information on some of the specifics on the files, particularly SOR/2002-145, where there questions of validity. First, we asked about whether goods seized otherwise than under section 27 of the act were being made subject to forfeiture. Section 3(2) of the regulations provides that any goods detained and not transferred to a Canadian officer are forfeited to the Government of the United States once the relevant periods have expired. However, under the act only goods seized under section 27 are subject to forfeiture procedures. To provide that any goods seized are subject to forfeiture, whether under section 27, goes beyond the act.

We were told in 2007 that the department would remove the reference to forfeiture from that provision in the regulations because they didn't intend it to refer to forfeiture. They meant only that responsibility for goods left in the pre-clearance area would fall to the United States. We were advised that no goods other than those seized pursuant to section 27 of the act are currently subject to forfeiture, so it would seem that the unlawful aspect of subsection 3(2) is simply not being enforced.

Second, another significant issue concerns section 5 of the regulations. We asked whether that provision was being applied. It requires a U.S. pre-clearance officer to transfer seized goods to a Canadian officer for disposal. Section 28 of the act says that goods lawfully seized are subject to forfeiture procedures under U.S. pre-clearance laws. How then can they be transferred to Canadian officers for disposal?

In 2007, the department wrote, "We agree the vires of section 5 is questionable and should be repealed." That notwithstanding, we were told that all goods seized under the act are still transferred to Canadian officers. It was also agreed that enforcing a provision that was recognized as being unlawful was not acting in good faith. It was then suggested that the need to deal with the bigger matter of completing negotiations on the pre-clearance agreement justified ignoring the illegality of section 5 based on their analysis of the relative risks involved.

On SOR/2002-148, we pointed out that the committee had been told for a number of years that the amendment to resolve its concern didn't hinge on completing negotiations on a new pre-clearance agreement, but apparently things changed between February and August. The explanation was that the lead role in the negotiations was taken over by the Department of Public Safety and there was now a different view, namely, that no changes should be made to any legislation until everything could be done at once after the new agreement.

Officials from the department also suggested it might be best if they provided written information on some of these concerns. We told them that a report back to the committee would take place in February, and, of course, it fell to the department to decide whether they wished to have anything additional to present to the committee at that meeting, which is this morning.

I can add that earlier this week I was told by email that the department still intends to provide written comments, but it's awaiting a response from Canada Border Services Agency and, until it gets that response, would not be able to provide any supplementary information.

The Joint Chair (Ms. Charlton): Let me check: We have a consensus that we want to reopen the Constitution and refer it back to Parliament; right?

Senator Batters: Absolutely no consensus on that. It seems that we're clearly at a regulatory impasse, so I would say that we should write back and ask that they let our committee know when these negotiations are done. It seems like they are to be done in the very near future because the meeting took place on December 10 and they said they expected to have this draft agreement for discussion by the end of 2013, which was just a few weeks later. If committee members think it's helpful, we could set a date for an update to this committee, perhaps at the May 1 meeting. We could ask for an update on how things are progressing.

The Joint Chair (Ms. Charlton): Is there agreement to that approach? Are there any other comments? Agreed?

Hon. Members: Agreed.






The Joint Chair (Ms. Charlton): The next agenda item is "Letters to and from Ministers." This is another instance where the act says that one minister has the authority to recommend regulations but someone else actually has it. In this case, the Minister of National Revenue has the authority to recommend the regulations, but in these instances they were recommended by the Solicitor General and the Minister of Public Safety.

Mr. Bernhardt: Members may recall that these instruments were on the committee's agenda at the last meeting. At that time, some correspondence was not included in the materials so consideration was deferred to this morning.

Under the Public Service Rearrangement and Transfer of Duties Act, the Governor-in-Council can transfer powers, duties or functions or the control or supervision of any portion of the federal public administration from one minister to another or from one department or portion of the public administration to another.

The orders here resulted from a series of Orders-in-Council made in 2003 that transferred control and supervision over certain portions of the Customs and Revenue Agency to the Canada Border Services Agency. Those orders did not make any reference to the transfer of powers, duties or functions. The question that then arises is whether the transfer of supervision and control also transferred the authority to recommend regulations.

The Canada Border Services Agency argued that the power to recommend regulations was transferred by implication. The joint committee disagreed with this view on the ground that it ignores the distinction in the Public Service Rearrangement and Transfer of Duties Act between transferring of powers, duties and functions and transferring control and supervision.

The committee never claimed that this transfer that was claimed to be done implicitly here could not be done, but simply that if it is to be done, it must be done expressly. That is why the act makes a distinction.

There are numerous examples of that approach being taken, both before and after the orders in question. The agency has been referred to a number of those. For the committee, it has always seemed unlikely, given that it's very unusual to have the power to amend a statute through regulation, that that power could be given implicitly. It's always seemed to the committee that if there is going to be that kind of a power given, you have to have it explicitly and you have to exercise it explicitly.

In the minister's last letter, he provides an overview of the act. He summarizes his previous position, but there is really nothing new. There is no discussion of the critique of the government's position presented by the committee, and no response to the request for confirmation that, in the future, if the powers and duties of the minister under an act are intended to be transferred, this will be expressly stated.

In the case of the statute under which these orders were made, that act has itself now been amended, so this narrow situation won't arise in the future. Of course, that doesn't resolve any questions related to the validity of these, because they were made before the act was amended. To address the narrow situation here would require retroactive legislation. At this point, it can safely be said that that's not a likely possibility.

Therefore, I would suggest that if there is a concern remaining for the committee, the focus of that concern would seem to be to make sure that similar situations don't arise in the future and that this argument doesn't come back.

Given that these orders are drafted by the Department of Justice, and that any portion of the federal government could be subject to an order — so it's not a case of dealing with one particular department or minister — I wonder if it would be worth writing to the justice minister to ask for his agreement that, in the future, if powers and duties of a minister are to be transferred, such will be expressly stated in the transferring order rather than being left to any implication. At least that will guarantee the committee doesn't have to deal with the situation and go through these same arguments again down the road.

I suppose another option might be to report to the houses and simply set that out. But I note the Minister of Justice was copied on the response from the Minister of Public Safety, so it might be worth considering approaching the Minister of Justice to ask for that undertaking.

Mr. Albas: I've gone through the file. It's actually on page 11 of the overall document but doesn't say the number. It says number 2 in the government response. I do find that I lean towards some of their arguments.

Counsel was also kind enough to send copies of the orders to my office. From reading them, I think there would be some merit in reaffirming the committee's previous position. We should just write back.

Did this last letter come from department officials?

Mr. Bernhardt: No, it was from the Minister of Public Safety.

Mr. Albas: In that case, I would suggest that we write back to the minister and point out that we still hold the opinion but to take note for future orders that this be looked at. I think closed copying the minister is fine, but taking a forward-looking approach. Obviously we acknowledge that, wherever possible, we should be proactive and try to make sure things are handled in a totally correct way. Then I would say we that close the file.

The Joint Chair (Ms. Charlton): Counsel has suggested we may want to write to the Minister of Justice. Are you suggesting the Minister of Justice or the Minister of Public Safety?

Mr. Albas: I said the Minister of Public Safety, with a cc to the Minister of Justice, because they started it.

Mr. Bélanger: I would be more inclined to do the opposite, namely, to write to the Minister of Justice and cc the Minister of Public Safety, before we go the route of reporting to Parliament. Eventually, if we don't get a satisfactory response, a report to Parliament might be in order. The suggestion of writing to the Minister of Justice, with a cc to the Minister of Public Safety — the reverse of what my colleague suggested — is an approach the committee should consider.

The Joint Chair (Ms. Charlton): Might there be a compromise where we address the letter to both ministers?

Mr. Albas: I'm fine with that. I do think that closing the file is part of it, because we've gone as far as we can on this stretch. We've made our points to the Minister of Justice, who drafts these orders. Again, I suggest we close the file.

Mr. Bernhardt: If the issue arises in a new order, it will be back before the committee, and I suppose at that point the committee can say, "We told you so."

The Joint Chair (Ms. Charlton): All right, so when it arises again, we do not need to bring this either — we can just tell them, "We told you so."

Mr. Bernhardt: The committee will know if its recommendation has been accepted.

Mr. Bélanger: What is the next step?

Mr. Albas: We've gone back and forth on this issue. Counsel has said the likelihood of any further action on this file is near nil. They have given us a very good point. If this continues to be a problem, we will tackle it then. This is a case of an isolated order, and we have done everything within our mandate to raise this with the powers-that-be who draft these orders.

I would just simply suggest closing the file, and if this does come up, the member could raise that as a point. He can even say, "I told you so."

Mr. Bélanger: It's not my habit to do that.

Counsel also said to consider the option of reporting to Parliament, which I believe is an option we should consider; but I would not go that route until we have a response from the letters that we've agreed to send.

Mr. Albas: There will be no further response outlining — they've disagreed with us every time. I just don't understand why the member is continuing to push on this point. Counsel has said that if this is not honoured, we can come back and consider it.

The Joint Chair (Ms. Charlton): I'm sensing that we will not arrive at an agreement. We have agreed that we will write a letter to both ministers. I will call for a vote on whether we should close the file or not.

All those in favour of closing the file?

All those opposed?

It is 10 to 7. The motion that the file be closed carries. Thank you.

I'll turn over the chair with some regret.

The Joint Chair (Senator Runciman): I'm sure. You've done all the heavy lifting.


(For text of documents, see Appendix A, p. 3A:1.)

The Joint Chair (Senator Runciman): Item 5 on our agenda, under "New Instruments," deals with failed commitments made under the Fisheries Act.

Mr. Bernhardt: Mr. Chairman, in connection with the particular instrument, promised amendments were to form part of the package to be made in 2012-13. The amendments still need to be made, so I suppose a progress report on where things stand on those would seem to be in order.

This file also relates to the issue of close times. It provides an update on how that issue will be addressed in connection with the Manitoba Fishery Regulations and the Northwest Territories Fishery Regulations.

For members who may not be familiar with the committee's long history in relation to fishing close times, under the Fisheries Act where a close time, fishing quota or a limit on size or weight of fish has been set by regulation in respect of a body of water, the Governor-in-Council can authorize fisheries officers to vary that. That removes the need to amend the regulations. It therefore came to be that many of the close times provided in various fisheries regulations extend from January 1 to December 31, that is to say, year-round. Fisheries officers then have the authority to vary those as they see fit in the particular situation.

It has always been the view of the committee that this approach is unlawful because the regulations don't establish a specified period during which fishing isn't allowed.

For the same reason, you also see a number of regulations that provide close times that are what the committee has come to call "token close times," sometimes as little as one hour, typically from eleven o'clock until midnight on New Year's eve. The idea is that the real close time can be imposed by the fisheries officers.

The committee has found these techniques contravene its criteria because they amount to an unusual and unexpected use of power. They make a sham of the law.

This process went on for decades and became so entrenched that the committee was reduced simply to noting instances where this arose, basically giving up any hope of a resolution.

In 2001, on a reply in connection with the Marine Mammal Regulations, the department stated out of the blue that the provisions embodying these approaches would be amended, and that it now had a practice of advising people proposing amendments to the regulations that they had to put in close times to more clearly reflect the reality of when fishing could and should not be permitted. This wasn't going to be done all at once, but gradually as amendments to various regulations would be made, these objectionable close times would be taken out. That process has been ongoing now for a number of years.

The close times have been removed from a number of regulations. They have been partially removed from others. The process is ongoing and will take some time.

I go through all that because, for newer members, it is an issue that has occupied considerable time of the committee for a number of years. The agreement to resolve it came out of the blue, and it is ongoing. I guess this process will continue for some years, but bit by bit the solution is slowly being implemented.

Senator Tannas: I think that we should ask for an update. I note that it sometimes takes a long time to get an answer on letters, so let's at least ask for an update on the commitments they made for 2012-13.

The Joint Chair (Senator Runciman): Any further comment?

Senator Hervieux-Payette: Since I have a lot of sympathy for those who negotiate with Northwest Territories and Nunavut, I agree with you that in 25 years they will probably finalize the agreement. Who has the right to regulate? For instance, who is doing the regulation in Quebec? What should the difference be between the Northwest Territories and so on? Who has the power to regulate? Would the regulations even be valid?

We can continue to work forever and ever, but I want to say to my colleagues that they pretend they have the right, and as you say, they have the right to fish from January 1 to December 31. I would put that on the ice. I think this is better, because I don't see any progress coming soon, with "soon" meaning years, not months.

The Joint Chair (Senator Runciman): Senator Tannas has suggested we write back and ask for the status with respect to the commitment they made related to moving ahead last year. Are we in agreement with that approach?

Hon. Members: Agreed.


(For text of documents, see Appendix B, p. 3B:1.)

The Joint Chair (Senator Runciman): Next is Item 6 under "Reply Unstatisfactory (?)". We raised 16 points eight years ago on this item and 10 amendments have been made. We're told that one proposed amendment remains to be made.

Shawn Abel, Counsel to the Committee: Mr. Chair, there are two amendments, and one was promised before the last time it was at committee. The department has not mentioned it since in any correspondence, so perhaps we could also seek confirmation that it's still forthcoming.

On the larger point concerning section 63 of the bylaw, after the last meeting in 2011 counsel again conveyed the committee's determination that the broad power granted to the President of the Canadian Payments Association pursuant to that section should be subject to some governing criteria. That would be expressly set out in the bylaw. Currently the president has discretion to decide whether section 63 should not apply to a given participant institution of the Large Value Transfer System, where that institution would otherwise be suspended under section 63.

The Canadian Payments Association previously argued that section 5(2) of the Canadian Payments Act sufficiently limits the president's discretion. This provision sets out that the association shall promote the efficiency, safety and soundness of its clearing and settlement systems and take the interests of users into account. Members found this somewhat broad and vague. This was particularly so because the association has already indicated how it expects the president to act, which is that the president should exempt a participant when the suspension would have negative repercussions on the operation of the clearing system. The committee therefore concluded that this more specific criterion should be set out as that would be the only method of ensuring that the president must exercise his discretion as intended.

All this was put again to the department. It took some two and a half years to get a definitive reply from the Department of Finance and the association. What has been received is simply a statement that they still hold the same position. No further explanation in response to the committee's further comments was provided. However, members are assured that their concerns will be taken into consideration. What form that would take is unclear since apparently the department and the association still disagree with the committee.

Given these developments, members may wish to insist on a more detailed response or, in the alternative, invite the appropriate officials to explain themselves before the committee.

Mr. Anders: Given that counsel has just said we should seek confirmation and a detailed response, I think we should write back asking the department to clarify the position on all the points and whether they're committed to make the changes.

The Joint Chair (Senator Runciman): Anyone else? Are we agreed with that approach?

Hon. Members: Agreed.


(For text of documents, see Appendix C, p. 3C:1.)

The Joint Chair (Senator Runciman): Next is Item 7. Two amendments were promised, one to remove subjective wording and another to harmonize the French version, but in the latest communication they're not giving us any assurance with respect to making the amendments, let alone when they might make them.

Mr. Abel: That is precisely the case. After this was last before committee, counsel had been directed to ask whether it would be possible to make the amendments within a reasonable time frame, perhaps by separating them from other planned amendments, and that time frame was set out to be around two years.

The reply before members today is that the amendments will not be made within that period. The explanation given, which I would suggest is a bit tautological, is that the department's regulatory plans do not include making those amendments. It's open to members as to how they wish to proceed at this point.

Senator Unger: On this issue, I don't know how you can force the department to make an amendment when they say they have no plans to do so. My suggestion would be to write back for clarification on timelines.

Mr. Bélanger: Chair, would it be appropriate at this time to write to the minister?

The Joint Chair (Senator Runciman): Do you want to elaborate on what you're suggesting?

Mr. Bélanger: I'm asking if it would be appropriate. This is the kind of amendment that a minister likely would think is worthwhile considering. It might be helpful to have it included in the schedule. Again, I'm not familiar enough with how we do things here but I'm learning. I'm asking the question in all transparency and objectivity.

The Joint Chair (Senator Runciman): That's quite appropriate.

Mr. Albas: I appreciate the member's concern. Mr. Chair, we need to look at one thing. We received a response from the department saying that they agree with us but that they think it is not a large enough amendment to be part of a future regulatory package. There is always room for writing a letter to the minister, like writing to the Ministers of Justice and Public Safety on the last item, when we are at that level. Senator Unger has suggested that we write back and seek a clear time frame as to when this regulatory package would be.

From reading it, obviously in the opinion of the minister that's a subjective term. Maybe more objective language would allow for greater clarity. Reading it from an administrative law perspective, this isn't an amendment that will cause material harm to anyone.

I would like to ask the position of legal counsel. Obviously, this could be tightened up and that's why we're suggesting it, but is there any risk of harm to someone?

Mr. Bernhardt: I suppose that wording changes the scope of judicial review. If someone ends up in court contesting the minister's decision, the review of the court will be different depending on the test: Did the minister have this opinion or did this state of affairs actually exist? It's for that reason that this is the bedrock of the committee because the committee has always objected to that phrase "in the opinion of" where it finds it. As you say, though, there is no disagreement. The only question is the matter of when.

The committee suggested that if things were not to be done in two years, then the amendment should go ahead. The department basically replied that they would not do it because it's not in their plan to do it, which I suppose raises the question: Could you not put it in your plan to do it and then you could do it? Apparently, they have a plan up to 2014-15 and they have not put it in there.

Mr. Albas: We want to make sure that scarce resources are always being used efficiently.

When we as a committee write to a minister, it's usually on an issue that involves personal involvement of the minister to seek reconciliation. In this case, they have agreed with the substance of our argument and have simply said that they have an upcoming package with yet-to-be-determined timing. We should write back, as Senator Unger has suggested, seeking clarification of the timing. There is always the option for the member to express taking it to a ministerial level down the road. If we constantly inundate ministers with letters about small items, then we aren't doing our groundwork first.


Senator Hervieux-Payette: I would agree with Mr. Albas if the right were granted or refused by the minister, as the minister is directly concerned. We are talking about a benefit that could be granted to a citizen. This is not an optional right, it is a real right to have this or not.

As you say, the minister's opinion is simply subjective. We need standards, criteria, to ensure that everyone is treated equally. I am not minimizing that, but there are people who could be deprived of some rights. I know that the minister will not be making the decision, it will be made by officials, but as soon as subjectivity comes into the equation, I do not like it.

And secondly, since the wording is what we are challenging, if the minister is involved, the minister himself should be informed, he should provide the authorization, and not a public servant. The public servant will make the recommendation to the minister, but the minister is responsible.

And so I agree with my colleague to say that the minister has to be informed in writing so that he knows that a citizen could be deprived of a right following an arbitrary decision taken by one of his public servants and a negative recommendation made to the minister.

I hope that you are going to support that position, since in any case we are talking about young people and the right to an education savings plan, which I used abundantly for my grandchildren. Thank you.


Senator D. Smith: Do we know if the minister is aware?

Mr. Bernhardt: I presume he's not, given that correspondence has been with officials to this point and given the nature of the matter.

Senator Hervieux-Payette: I'll copy the minister for my colleague as a compromise.

Senator Batters: I have only been on this committee for close to a year, but for Mr. Bélanger's information, this doesn't seem to rise to the level of the type of files we usually see on letters written to the minister. It's usually a bit further down the road if we're not getting adequate information from officials after a prolonged period. That's a next step, and this doesn't seem to rise to that level.

Mr. Bélanger: I was asking, Mr. Chair, because one of the amendments involves the minister. If I were a minister, I would like to know that my department is ragging the puck on an amendment that involves me. That's why I was thinking that way. It would be more of a courtesy to refer it to the minister. You don't usually send a letter to a public servant or an official and copy the minister. I would hesitate to do that.

As well, I know that minister is particularly sensitive to the official languages of our country. If he knew about the little discrepancy, I think it would expedite resolution.

Mr. Albas: I understand the principle that Senator Hervieux-Payette has mentioned about having objectivity and equality when things are being applied. Again, there are two streams of thought in administrative law. One stream that seems to be dominating more and more is that we make things as objective as possible and setting out clear and objective criteria, and I get that. In this case, the department gets that.

The other stream is older school. People in these positions have very good information, are ministers of the Crown and will be fair and reasonable in how they execute their duties.

Usually we take issues of concern to ministers when there is profound disagreement with the department. For Mr. Bélanger's information, the current regulatory process requires going through the Canada Gazette, which can take up to a year. The amount of work that accompanies a single amendment is very costly in time. It seems reasonable that a future regulatory package with a list of regulatory things to be managed through all the different processes from Treasury Board to the Canada Gazette to PCO and all interested parties makes sense, particularly when this principle of law has been well established. Courts in administrative law recognize that people have inherent rights despite what the regulation says, if it's too subjective or not.

I think we're spinning our wheels about a very minor amendment that we have received a positive feedback on. We should go back to what Senator Unger said. We have agreement, so let's get a time frame. If we are not satisfied with the time frame, we can always think about moving it up. For just a few words, "in the opinion of the minister," we would have to go through that whole process.

The Joint Chair (Senator Runciman): I would like to move on. We have a significant agenda to complete.

Senator Hervieux-Payette: I agree with that: Send a letter and receive a time frame. But I also think we should receive something in writing before the end of the session, not next year.

The Joint Chair (Senator Runciman): We can indicate the committee would like to see a response before the end of the session, before we break for the summer.

We're going to follow a proposal from Senator Unger that we write back seeking clarification of the timelines, with an indication we would like to receive a response before the summer break.



(For text of documents, see Appendix D, p. 3D:1.)

The Joint Chair (Senator Runciman): Next is Item 8 under "Part Action Promised." There are four issues dealing with these regulations.

Mr. Abel: Four matters were pursued in connection with SOR/2007-15, and the first matter was also the same pursued on SOR/2007-16. The first matter concerns the requirement that an applicant for an export allocation or export permit submits a statement that the information in the application is true, complete and correct.

The committee had questioned what purpose this statement serves since the act already requires anyone who submits an application to make no wilful misrepresentation or knowing misrepresentation. The department has responded that the statement improves, generally, the accuracy of the information provided in a large number of applications they receive, simply serving as a reminder to exporters that they should validate their information. In other words, it helps to avoid inadvertent rather than wilful errors, which are prohibited under the act. This is particularly important to the department, because applications are typically submitted by brokers on behalf of exporters, not by exporters themselves.

According to the department, although this does improve the quality of the applications, the department also appears to believe that this requirement puts some extra pressure or notice on the exporters themselves, even where it is submitted by the broker.

But this seems to be incorrect. Section 2(1) of the regulations requires an applicant or its agent or mandatary to attest to the correctness and completeness of the application; that is, if a broker submits the application, the broker may also sign as to its veracity. Of course, an exporter would presumably desire that all the information in an application be correct and complete, otherwise their application may be refused, but that would be the case notwithstanding this requirement.

I would suggest that if the department truly desires that only an exporter may attest to the veracity of the information included, then perhaps the regulations should be amended accordingly.

We may move on briefly to the second and third matters; they're discussed in detail in a note prepared for members today. The two issues are quite similar and concern provisions that set out in general terms that an applicant must provide any information as determined by the minister or as requested by the minister. In other words, the minister is granted wide discretion to determine what must be submitted.

The problem here is that the relevant enabling authority found in the act requires that the regulations prescribe information that must be provided. It could hardly be said that a general requirement to furnish any information amounts to prescribing what must be provided.

The department makes several arguments in its latest correspondence in its favour. For reasons set out in the note, I would suggest those should not be accepted. However, there is agreement to address the committee's concerns. At this point, I would suggest a time frame for when that would be done should be confirmed or at least tightened up.

Finally, turning to the fourth point, section 5 of the regulations essentially requires a holder of an export allocation to self-report to the minister whether the holder or any other person has failed or likely will fail to comply with the requirements of the regulations or with conditions of the allocation. The committee previously identified concerns regarding the right against self-incrimination, but the department has insisted and continues to do so that this provision is not intended as an enforcement mechanism; it is there only to serve to highlight the responsibilities of exporters.

This would be in general a difficult argument to accept, but it also contradicts the department's earlier explanation, which was also somewhat questionable, that the regulations contain no actual requirements but merely set out a process.

In any case, the actual intentions seem to come out in the department's July 10 letter. The minister desires to have the most up-to-date information concerning the usage of all allocations in order to anticipate issues concerning judicial review of the overall allocation order that the minister makes.

The department has previously emphasized that the right against self-incrimination should not be seen to be infringed here, since this doesn't serve to provide an offence. It is not an offence to contravene the regulations or to contravene the conditions of an allocation order. What would simply happen is that an allocation order can be cancelled.

All the same, section 5 clearly imposes an obligation on exporters to self-report actual and potential contraventions. This could be seen to contravene the criteria of the committee even if it doesn't contravene something such as a right guaranteed by the Charter, in particular, whether this provision trespasses unduly upon rights and liberties or makes some unusual or unexpected use of the powers conferred by enabling legislation.

As with the preceding two points, the department does indicate, although in somewhat vague terms, that this section will be reviewed for potential improvements. Perhaps a firmer and more detailed commitment could be sought.

In summary, a further letter to the department could be drafted pursuing the first point and perhaps seeking more detailed commitments on all the remaining points.

Mr. Albas: Counsel has made some very wise suggestions: We get timelines on the three outstanding issues and then write back, again pushing the final point.

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

Hon. Members: Agreed.


(For text of documents, see Appendix E, p. 3E:1.)

The Joint Chair (Senator Runciman): Item 9 under "Progress" has been around for 18 years. We're told that there will be a new order to resolve this matter and that it's in the approvals process.

Mr. Abel: That's correct, Mr. Chair. The August 7, 2013, letter indicates that the provincial cattle producers board has finally prepared a new order but that it needed to go through the federal regulatory process. As of yesterday, the order had not yet been published, so perhaps a progress report is warranted at this time.

The Joint Chair (Senator Runciman): Do we agree with that approach?

Hon. Members: Agreed.



(For text of documents, see Appendix F, p. 3F:1.)

The Joint Chair (Senator Runciman): Next is Item 10. Nine matters arose that needed to be addressed: discrepancies between the English and French versions, inconsistent use of terminology and a number of other issues.

Mr. Abel: Just so members know, counsel met with departmental officials in June 2013, and the schedule provided by the department included in the materials today followed that meeting. Pages 4 and 5 address amendments to the Canada Labour Standards Regulations. They state that most of the promised amendments desired by the committee will be addressed in an upcoming package. That package is expected to be completed in the autumn. The schedule also seems to indicate that some remainder of the promised amendments will follow later. It is not clear exactly which ones or how many. Perhaps details could be sought regarding when those will be coming and what they are, as well as a current progress report.

Incidentally, I would mention that one issue was partially resolved by amendments to the Canada Labour Code made by the Jobs and Growth Act 2012. Whereas before it was necessary to move substantive information from the schedule to the regulations themselves, now it will only be necessary to delete it from the schedule.

Senator Nancy Ruth: I would like to suggest that we follow counsel's advice but that we add to it the need for a clear timeline and whether all of them will actually be dealt with and if not, why not.

The Joint Chair (Senator Runciman): Anything else? Are we all in agreement with that approach?

Hon. Members: Agreed.


(For text of documents, see Appendix G, p. 3G:1.)

The Joint Chair (Senator Runciman): Next is Item 11 under "Progress (?)". These regulations set out requirements for the reporting of sales data, manufacturing information and a number of other areas. For these regulations, amendments have not been made and have been repeatedly delayed. We're now being told that the latest estimate is this spring for pre-publication.

Mr. Abel: That's correct, Mr. Chair. As members may remember, last March, they expressed some dissatisfaction with progress on this file, considering Health Canada's many repeated failures to meet their previously projected deadlines.

It was consequently suggested to the department that perhaps they could separate the committee's amendments from other packages. The department responded that it does not prefer this option, as in their view it would delay matters further. What we're left with is another projected deadline for the spring, as you mentioned.

At this time, perhaps an assurance could be sought in the form of a progress report on whether they expect to meet it.

Mr. Brown: That makes sense. It is another case of writing back and seeking them to deal with the resolution of the outstanding points; I think there are 20 of them.

The Joint Chair (Senator Runciman): And an update on the prepublication commitment. Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix H, p. 3H:1.)

The Joint Chair (Senator Runciman): Item 12 under "Action Promised" corrects a discrepancy between English and French versions but contains another error in the French version.

Mr. Bernhardt: That's correct, Mr. Chair. The new correction has been promised and we will follow up with a request for a progress report.

The Joint Chair (Senator Runciman): Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix I, p. 3I:1.)

The Joint Chair (Senator Runciman): This regulation makes a number of amendments to address problems the committee identified dealing primarily with French and English versions.

Mr. Bernhardt: That's correct. In fact, there were 31 amendments made in response to the committee. We identified one new point. There is another promise to amend that and again we will follow up with a progress report, if the committee is in agreement?

The Joint Chair (Senator Runciman): Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix J, p. 3J:1.)


(For text of documents, see Appendix K, p. 3K:1.)


(For text of documents, see Appendix L, p. 3L:1.)

The Joint Chair (Senator Runciman): Are there any comments with regard to the items under "Action Taken"?

Mr. Bernhardt: I note for the record that each of those three items addressed one concern that the committee raised.



































Mr. Bernhardt: Lastly, for the record I note that there are 34 instruments under "Statutory Instruments Listed Without Comment." For the benefit of new members, these are instruments that have been reviewed by counsel and found to comply with all of the committee's criteria. We don't circulate copies of those in the materials. We simply list the titles, but there are always copies present at the meeting if any member wishes to inspect one or has any questions.

The Joint Chair (Senator Runciman): Any additional comments from members? Seeing none, we are adjourned.

(The committee adjourned.)

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