REGS Committee Meeting
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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 38 - Evidence - June 7, 2018
OTTAWA, Thursday, June 7, 2018
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. to review Statutory Instruments.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
The Joint Chair (Mr. Albrecht): Welcome to committee members, and a special welcome to our newest member, Senator Mégie. Welcome to our committee.
We’re going to begin this morning with the special agenda item that was mailed to your offices yesterday relating to the supplementary item from June 7. I will look to our general counsel for direction.
Evelyne Borkowski-Parent, General Counsel to the Committee: Good morning.
I’m referring to the package currently being distributed and that was sent to you by email yesterday. The committee last considered this file on March 1. At that meeting the committee decided to send a letter to the minister asking when the amendments on the six points would be made and asking the minister’s help to resolve the remaining two points. Members also indicated that they wanted to review this file again before the summer recess, which is why it’s before you today.
The minister responded to the joint chairs’ letter last week. He indicates that the department plans to amend the fee schedule to address the six issues that have been agreed on by January 2019. That’s progress in that regard. At the same time, the department plans to amend two other fee schedules, all of which relate to the Canadian Coast Guard. Those amendments to other fee schedules would also allow the committee to close two other files.
On the outstanding two issues, they relate to whether the fees in the schedules have been fixed per the enabling statute. The minister’s letter indicates that the department is working on a solution that relies on the Service Fees Act. That act provides for fees to increase automatically in each year based on the CPI.
The problem is that it appears the Service Fees Act does not apply to fees related to the services provided by the Canadian Coast Guard. The reason is the definition of “fee” in the Service Fees Act. Under the act, a fee is in relation to a federal entity, but the definition of “federal entity” does not include the Canadian Coast Guard.
Accordingly, before the department goes any further down this path of relying on the Service Fees Act, it may be helpful to ask the minister to clarify on what basis that act could be used and how fees set by the Coast Guard would fall under the Service Fees Act.
So, in order to preventing going down the wrong path, a further letter to the minister asking for that clarification would be useful before the summer.
The Joint Chair (Mr. Albrecht): Thank you for the information. We will be sending a letter thanking them for addressing the issues by January 19 and asking for further clarification on their authority and on what basis the enabling legislation allows them to do the fixing of the fees.
Are all in agreement with the direction from our general counsel? So ordered.
Hon. Members: Agreed.
UNITED NATIONS REGULATIONS AND SPECIAL ECONOMIC MEASURES REGULATIONS
SOR/2006-164 — REGULATIONS AMENDING THE UNITED NATIONS AFGHANISTAN REGULATIONS
SOR/2007-44 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON IRAN
SOR/2007-204 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON LEBANON
SOR/2010-84 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON ERITREA
(For text of documents, see Appendix A, p. 38A:1.)
The Joint Chair (Mr. Albrecht): We’ll now move to Item No. 1 on our agenda. This includes 1a all the way to 1f. believe, so we have a number of items to deal with here. We will look to our counsel to explain the United Regulations and Special Economic Measures Regulations.
Shawn Abel, Counsel to the Committee: Thank you Mr. Chair.
Members will have noticed that the special agenda item is quite large. We have back before the committee a number of sanctions-related regulations under the responsibility of Global Affairs. In order to make things a little easier to go through, the file has been separated into batches with common issues labelled 1a. to 1f. I propose we discuss each as a separate item before moving on to the next group.
To begin, these files were back before the committee in June 2017. Group 1a is the simplest to deal with. All outstanding matters identified under these regulations are subject to promised amendments. At the committee’s June 2017 meeting, it was decided these amendments should be made by June 2018, given the serious nature of the issues to be resolved. Among other things, the amendments would ensure the right to free expression is not restricted, the right against self-incrimination is protected and would clarify or repeal a number of provisions.
I am afraid I am going to ruin the suspense a little bit for all of the following files when I tell you that the issue of when these amendments will be made occurs on every single item under Item 1. Presumably, the decision made on 1a. will apply to all of the items, 1b through to 1f. Please be aware, however, that there are other outstanding issues to discuss on 1b through 1f as we go through them.
On the question of promised amendments, the department indicated in its letter of March 29, 2018 that it would attempt to meet this deadline in coordination with the Department of Justice and Treasury Board. However, the more recent May 18, 2018 letter states that due to circumstances out of the department’s control, this deadline is unlikely to be met. The department’s letter cites limited resources at the Department of Justice as well as an inability to have the amendments received as a matter of urgency at Treasury Board.
A new deadline is not given — cabinet confidence is cited — but the department commits to informing the committee as soon as it knows when the amendments will be finalized. The question primarily is whether this delay will be short or not. A precise timeline could be sought from the department over the summer. Perhaps a warning could also be given that members will consider other measures in the fall if nothing satisfactory is forthcoming. Perhaps at that point the committee will consider calling witnesses.
I’m in members’ hands as to how to proceed.
The Joint Chair (Mr. Albrecht): Could you clarify something? The summary notes indicate that the amendments will be happening by June 2018. Do you have supplementary information indicating otherwise?
Mr. Abel: A more recent letter was received a couple of weeks ago, on May 18, 2018. It’s in the package under 1a toward the back of the English and French sections. It indicates now that there will be an anticipated delay. The committee is not told when the department expects the amendments to be made, I expect, because everything is out of the department’s hands at this point.
The Joint Chair (Mr. Albrecht): There’s a note at the back of that letter that Mr. Khatchadourian remains at your disposal to address concerns, so that’s one open door.
Mr. Badawey: May I suggest, as suggested by counsel, from 1b to 1f, that the items with respect to, in this case, item 3 be revisited in the fall to see if there are time lines and, from there, to ask the department to give us a timeline?
The Joint Chair (Mr. Albrecht): Is that clear?
Mr. Abel: We can do that.
The Joint Chair (Mr. Albrecht): Is there any disagreement with that?
Mr. Diotte: Because the house is recessing, I’m thinking some of these people might have more time on their hands to deal with some of this. Why not push some of it and get something done over the summer, for a change?
The Joint Chair (Senator Day): They are all going on vacation.
Mr. Diotte: Let’s hope not.
The Joint Chair (Mr. Albrecht): I think we can follow Mr. Badawey’s suggestion, if that’s agreeable with counsel. I just want to make sure we’re not putting undue restrictions on your work.
Mr. Abel: I would add that if the amendments are drafted at this point, the department is waiting on Justice and Treasury Board. As far as I understand, there are no cabinet meetings over the summer,so there may be nothing for them to do.
I would still suggest writing at this point and finding out whatever information the department can give us, and then we will follow up on that as the summer goes by.
The Joint Chair (Mr. Albrecht): I see general agreement.
Mr. Badawey: I agree. At the same time, give them an indication of what exactly we are doing: We are going to follow this up in the fall, and so on.
Mr. Shipley: I will agree with that. My concern is that the same thing will come back in the fall. I’m wondering if there shouldn’t be an initiative by this committee, as an encouragement to them, to bring some action forward by the fall, other than a letter saying that they are going to follow up in the fall. In the wording there could be a leading comment around the significance of having these issues resolved and that at some point in the fall we would like to have clarity. If not, then we would be looking to invite the minister as a witness.
The Joint Chair (Mr. Albrecht): I think counsel indicated in his first comments that there would be a comment that if follow-through didn’t happen, the committee would consider taking further steps.
Mr. Shipley: Okay. I didn’t get that from the comments on this side.
The Joint Chair (Mr. Albrecht): We will proceed in that way. Thank you.
Ms. Sansoucy: I was just wondering whether Treasury Board should receive copies of future correspondence since the agency is mentioned in the department’s reply.
Ms. Borkowski-Parent: It’s certainly possible, if that is what the committee would like. Thus far, the department seems to have been diligent and done everything it was supposed to.
Ms. Sansoucy: The department clearly seems to be making an effort, but I will leave it to the committee’s discretion.
Ms. Borkowski-Parent: It is certainly possible to send a copy to the person in charge of statutory instruments at Treasury Board.
The Joint Chair (Mr. Albrecht): Are there any concerns about that? Is the committee agreed that we will move ahead in that fashion.
Hon. Members: Agreed.
SOR/2007-285 — SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS
SOR/2008-248 — SPECIAL ECONOMIC MEASURES (ZIMBABWE) REGULATIONS
SOR/2011-114 — SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS
SOR/2011-220 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS
SOR/2011-330 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (SYRIA) REGULATIONS
(For text of documents, see Appendix B, p. 37B:1.)
The Joint Chair (Mr. Albrecht): We will move along to Item 1b. The first part of this is dealt with, because we said that would apply to all of them as we go along in terms of timing.
Mr. Abel: That’s correct, Mr. Chair. We will follow up in the same way.
The second item under issues in the note prepared for 1b deals with one concern raised in respect of the Burma regulations and Zimbabwe regulations. This is for a person to apply to be delisted from the sanctions regime established by those regulations. The regulations currently deem an application to be delisted to be refused if the minister does not make a decision in the specified time frame. However, nothing expressly permits a person to reapply solely on the basis that their application had been deemed to be refused.
The department agreed to amend the regulations to make clear that persons can, in fact, reapply under those circumstances. However, there was some confusion in the correspondence going back and forth between the committee and the department. In light of that, the committee also requested confirmation that in the meantime people will still be permitted to reapply if their application has been deemed to be refused.
The committee asked that that confirmation be provided by September 2017. It was only provided by December, but, nonetheless, that confirmation is there. This could be considered satisfactory. The committee can be assured that persons are allowed to reapply if their application was deemed to be refused simply because a decision was not made fast enough, essentially.
The third issue concerns the requirement in these regulations to disclose information to the Commissioner of the RCMP, where the department continues to disagree with the committee’s position but provides no new reasons to consider. Essentially, these regulations require any person inside Canada and any Canadian outside Canada to disclose to the Commissioner of the RCMP the existence of property in one’s possession or control that a person has reason to believe is owned or controlled by a designated person. A “designated person” is a person named in the regulations as specifically being subject to the sanctions regime.
There is also a related to requirement to disclose information about a transaction or a proposed transaction in respect of the same property.
A similar requirement was found in many regulations made under the United Nations Act. In those cases, the committee was satisfied that there is sufficient enabling authority to impose such a requirement, but the enabling authority under the Special Economic Measures Act is different and considerably narrower.
Without getting into the details, which are set out in the note, the committee considered this issue in June 2017 and for a number of reasons, considered that the disclosure requirement is not authorized under the Special Economic Measures Act. It also recommended that if the department wished to maintain this requirement, the act would need to be amended to provide clear authorization.
The reasons for all this were put again to the department, and it replied in a March 29, 2018, letter. That letter merely states that after consultation with Justice, it maintains that the act’s enabling authority is broad enough to support the disclosure requirement. There are no new reasons to consider.
I look to members for direction on how they would like to proceed on this point.
The Joint Chair (Mr. Albrecht): On page 4 of this package, under 1b, the very last paragraph summarizes the issues simply for committee members. It’s up to the committee to decide whether to pursue this. It seems clear from our counsel that it is outside of the legislative authority.
Does anyone wish to suggest a path forward?
Senator Woo: Is it possible to ask the Department of Justice directly for an explanation? This is an indirect explanation we’ve received via Global Affairs, is that correct?
Mr. Abel: They will likely say no. The committee has dealt with this issue for decades, and Justice considers their advice to the departments privileged. That’s why it tends to filter through DIOs to the committee. We can try, but I expect we won’t get anything.
Senator Woo: Thank you.
The Joint Chair (Senator Day): Does this issue of divulging to the Commissioner of RCMP appear in any others than the Burma-related special economic measures? Is this a recurring issue?
Mr. Abel: It occurs in essentially almost everything under item 1a. The issue is that these are the only regulations made under a different act, the Special Economic Measures Act. All the rest are made under the United Nations Act, and the enabling authority under that act is extremely broad. The committee was satisfied it was authorized under that act.
The problem is that this act is very narrow. The enabling authority is much older — from 1992 — and it really does not seem that Parliament intended for this sort of thing to be authorized when the enabling authority was enacted.
The Joint Chair (Mr. Albrecht): How difficult would it be to ask the department, as you suggest, to just change the actual act? Would that be a long procedure?
Mr. Abel: We suggested that in 2017. That was part of the committee’s recommendation the last time this matter was before the committee. The response was that Justice and Global Affairs were satisfied the act as it is supports the disclosure requirement. That’s where we are. They haven’t provided any new reasons to that effect.
There is very little for the committee to grapple with in terms of legal arguments.
The Joint Chair (Mr. Albrecht): Is this a case for disallowance?
Mr. Abel: It’s possible. The disclosure requirement is a standalone requirement; the rest of the scheme wouldn’t fall apart. It is its own thing.
Mr. Badawey: Although there are notes, they are limited, because it’s just “he said, she said” in terms of opinions. Maybe it’s an opportunity to get the folks out here and have a chat with them to see why they disagree and aren’t providing new arguments to this challenge.
I recommend we bring a member of their staff out to discuss this with us so we can decide why they disagree with our definition, as well as any new arguments to support their conclusion.
The Joint Chair (Mr. Albrecht): The suggestion is that we call in a witness from the department. Is there any further discussion?
Mr. Diotte: It’s a waste of time.
The Joint Chair (Mr. Albrecht): Okay. We’ll consider that a motion that we call in witnesses to discuss this one issue.
Mr. Badawey: Mr. Diotte, what is your recommendation?
Mr. Diotte: Any time we’ve had witnesses like that, get some higher ups, not lowly staff members. They just make excuses; we have seen it time and time again. At the very least, I would tend to agree with disallowance because that’s the only thing that ever gets listened to.
The Joint Chair (Mr. Albrecht): We need to keep the files moving ahead, committee members, so it’s up to the committee to decide on the most expeditious way to do that. I will call the question on the motion, unless there is further discussion.
Senator Woo: Can you repeat the motion?
The Joint Chair (Mr. Albrecht): It is to invite staff from the department to come and explain their rationale for not proceeding.
Mr. Badawey: The office that has been handed this file has to come and explain to us their conclusions. What I’m most interested in is the arguments they would make supporting their conclusion.
The Joint Chair (Mr. Albrecht): I think you are all clear on the motion.
Mr. Oliver: Would the minister be invited or made aware of this as we proceed with staff from the department?
The Joint Chair (Mr. Albrecht): The current motion is staff, but I think there is wisdom in making the minister aware of it, absolutely, but I look to the mover.
Mr. Oliver: Often we invite the minister and the minister delegates the staff to attend, but that way we know there is attention to it from the minister’s level. I think it’s worthwhile to have that discussion here. I don’t think it’s a waste of time and I do want to make sure we have the appropriate level of people to talk to.
Mr. Badawey: What I’m most interested in is making the right decision based on the right facts, not just reacting to something that may be on a couple pieces of paper. That’s our responsibility and our due diligence.
The Joint Chair (Mr. Albrecht): So, to the minister and department, I think we would word it.
Mr. Shipley: That actually answers my question.
The Joint Chair (Senator Day): Just to help Mr. Diotte a bit, maybe we could start this letter by saying, “Before we proceed with disallowance . . . .”
The Joint Chair (Mr. Albrecht): That’s a friendly amendment, Mr. Badawey. It is said in jest, but there is some wisdom in that. Are you open to that?
Mr. Badawey: I wouldn’t say disallowance. We don’t want it to seem like — I don’t want to use an analogy because it might be dangerous, but the bottom line is let’s aim the gun over the bow before we actually pull the trigger. I think that will show more credibility versus not.
Maybe preface your comments, Mr. Chairman, by saying, “Before we move on to further action,” and so on.
The Joint Chair (Senator Day): Consider further actions.
The Joint Chair (Mr. Albrecht): Is there general agreement around the table on suggesting that? Let’s move ahead with the motion, then.
All in favour of proceeding in that way, raise your hand? Opposed, same sign? That is carried.
The Joint Chair (Senator Day): That deals with the RCMP issue.
The Joint Chair (Mr. Albrecht): Yes, that’s the one.
The Joint Chair (Senator Day): Is there anything else outstanding?
Mr. Abel: On the first issue with following up on promised amendments, we’ll follow the same direction as under 1a. If members are satisfied with issue number 2 with the response from the department, then that does not need to be followed up.
The Joint Chair (Mr. Albrecht): The only question in terms of being satisfied with the response on number two is that it was late, but it is done, so there’s no point to revisiting that now.
That deals with 1, 2 and 3 of 1b. We’ll move to 1c.
SOR/2009-92 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA
SOR/2012-121 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA
(For text of documents, see Appendix C, p. 38C:1.)
Mr. Abel: As can be seen on this file, there is a wide variety of outstanding items. The easy items we can get out of the way first.
Issue number 1 deals with promised amendments, and that can be followed up as with 1a and 1b.
Under issue number 2, we can see that addition amendments have also been agreed on to resolve drafting issues and discrepancies in some definitions in the regulations. Presumably those are on the same timeline as the other promised amendments.
Third, a substantive response is still outstanding concerning the question of vagueness and overbreadth of certain prohibitions, a question that was considered by the committee in June 2017. This is a common issue that touches a number of United Nations and Special Economic Measures files, including new instruments that have been reviewed but have not yet gone before the committee.
In June 2017, the chairs wrote directly to the minister on this point alone. An acknowledgement of that letter was received from the department in its December letter to the committee, in which it requested more time to prepare a detailed reply. That reply is still outstanding.
Are members inclined to see if that reply comes during the summer? If the committee wishes, counsel could indicate, in a letter back to the department, that the committee will perhaps consider including this issue and their witness appearance in the fall if nothing is forthcoming over the summer.
Mr. Shipley: I’ll move that.
The Joint Chair (Mr. Albrecht): Any further discussion? All agreed?
Hon. Members: Agreed.
Mr. Abel: Moving on to issue number 4, this group deals with a relatively silly matter. On several occasions, counsel has attempted to obtain written confirmation that an amendment is forthcoming to address the possibility of self-incrimination identified under section 8. The department has already agreed to address this matter on a number of other regulations and, presumably, intends to do so here, but we are still trying to get a solid statement in writing to that effect.
My best guess is there simply has been a miscommunication in the correspondence going back and forth. If members agree, we would try again as part of the next letter to the department, and I would think we would include with that letter an informal phone call to the DIO to ensure things are clear in this latest round of correspondence.
Mr. Shipley: Could you explain your thoughts on the miscommunication?
Mr. Abel: I have to speculate. In a couple of rounds of correspondence, including quite a lengthy letter, we have asked for confirmation that the amendment will actually be made. They never responded on that point, but I have every reason to believe they intend to make the amendment because they intend to amend a whole bunch of other regulations on the same point. My guess is they simply keep overlooking it.
The committee tends to want something in writing so they can point to something in the future and say this was promised, so I want to pursue that.
That’s all I can give you, to be honest. I have to guess as to why it has not been mentioned.
The Joint Chair (Mr. Albrecht): I think we can pursue it by way of a letter and, if that fails, by way of when they appear on the other issues.
Mr. Shipley: That’s okay. I was just trying to understand the miscommunication comment.
Ms. Borkowski-Parent: As you can see, those files are a little unwieldy. For almost a decade we had trouble communicating with the department. The letters from the committee were ignored. It’s no longer the case. They are responding now, but we are left with 15 files that have similar issues on some of them, and some of them not. Just going through the correspondence is a tremendous task. There are so many outstanding issues that I believe, on that specific point, it fell through the cracks. As Mr. Abel said, it appears that they intend to make that amendment, but let’s get it in writing.
Mr. Shipley: Thank you.
The Joint Chair (Mr. Albrecht): Now, on to number 5.
Mr. Abel: On this issue, there is disagreement from the department about amending section 16 of the regulations. This provision deals with certificates issued by the minister that exempt property from the application of the regulations. Time frames are set out in which the minister must issue the certificate, depending on the reason for the exemption.
The committee took note that the ultimate decision for the exemption is in some cases in the hands of the Security Council of the United Nations, and it’s at least theoretically possible that delay at the Security Council would make it impossible for the minister to meet the legislated timelines for issuing the certificate. The committee suggested that amendment could be made so that the time frames run from the moment the Security Council makes a decision. This was suggested with respect to a number of regulations.
The department does not wish to make this amendment, in part, because it would need to make individual amendments to the time frames set out in each regulation. Now, the department does this already; each regulation is tailored to the Security Council resolutions that it implements, so I’m honestly unclear why this would be a problem.
The department also expresses confusion about what would happen for those occasions where the Security Council does not need to be consulted or does not need to provide approval, but it seems obvious that in those cases the amendment should take that into account.
In the end, the committee could accept the department’s reluctance and move on, even if the reasons given aren’t very convincing.
A potential practical issue was raised. If the department doesn’t think the minister is in danger of being put in a position of being unable to fulfill his or her obligations, they can keep section 16 in the current formulation, if they wish to do so. It may be worth reminding the department, however, that ministers are subject to the law, the same as any citizen. However remote the likelihood of prosecution may be, it is an offence to contravene the regulations, and that offence carries serious penal sanctions. It may be worth asking the department to recognize that fact.
The Joint Chair (Mr. Albrecht): For the legal purposes, it would be good for us to have cleared our consciences with the fact that we reminded them of that under item number 5.
Mr. Shipley: I think Mr. Abel clarified that really well, and that should go into the letter, as the chair, has said for clarification and for our acknowledgement as a committee with our concern to the department and in the protection of the minister. I would take that as a motion: to have a letter forwarded with those clear directions in it.
The Joint Chair (Mr. Albrecht): On item number 6, the issue in the last paragraph of page 4 of the notes is identical to some other files under 1e and 1f, if not others. The committee can wrestle with whether they agree with the rationale for why a procedure cannot be put in place, even though it is an ad hoc circumstance. There would still be procedures in place for when the ad hoc circumstances arise.
Mr. Di Iorio: Are we still on item 5?
The Joint Chair (Mr. Albrecht): We have dealt item 5, unless you’d like to further deal with it.
Mr. Di Iorio: There was a comment by counsel about a reminder to the minister of the risk of committing an offence under the act. I think it is appropriate, especially in light of the separation of powers. We are Parliament here, and it is important in an issue like this that we remind the executive of their obligations and the consequences for non-compliance. It is our duty as Parliament.
The Joint Chair (Mr. Albrecht): I’m seeing general agreement around the table on that item. Thank you, Mr. Di Iorio.
Item 6 deals with section 17, issuing certificates, and the lack of actual procedure being set out for the issuance of those certificates. It is a concern to me.
Committee members, we can either leave this one and fight another battle, or should we point out that this is not a great way of operating? Any comments? If I hear none, I assume you will let it lie. Is that the will of the committee?
Mr. Badawey: Mr. Chairman, having all this contained within one bundle, although separated in our package, there is no question that when we have the witnesses come out, if the committee has any questions regarding any parts of this bundle, we can ask them of the witnesses who are in attendance.
Mr. Abel: That’s true. However, we will be writing back, following this meeting, prior to witnesses appearing in the fall, so I would need the committee’s direction on what it wants to do on each issue, what position they’d like to take, et cetera. Then I’ll let the department know the letter is drafted.
Mr. Badawey: Fair enough.
The Joint Chair (Mr. Albrecht): The basic question we have to decide is whether we have concerns about this. If we do, either we deal with them by asking them to come in and explain them, move to harsher steps, or we simply let it go. I think that’s what our counsel means in terms of drafting a letter: How will they indicate to the potential witnesses the general direction of our committee?
Mr. Badawey: Fair enough, Mr. Chair. Thank you.
According to Mr. Di Iorio’s comments, if we look at number 5, we do want to give indication of the implications of what the minister can find himself or herself under with respect to our definition of this.
On number 6, we want to highlight it to give them a heads-up that we want to voice our concerns. As it states, the reasons are questionable, so we want to be clear about that and have more explanation.
The Joint Chair (Mr. Albrecht): I think that’s consistent with previous decisions of this committee, and I urge us to remember that. This joint committee in the past has pointed out its dissatisfaction with the fact there are no procedures in place. Either we change our position, or we go along with Mr. Badawey’s suggestion. I’d like to get it dealt with.
Mr. Badawey: That’s a great point. When we have a concern, we can’t leave it as a loose end, which I believe you are saying. Either we go one way or the other.
To have closure, it would be most appropriate to give them the opportunity to explain themselves. We would then be obligated to make a decision.
The Joint Chair (Mr. Albrecht): It goes without saying that the joint committee continues to take the view that rules should be set in place. That’s the basis of why we are asking the question when they appear.
All in favour of that direction?
Hon. Members: Agreed.
The Joint Chair (Mr. Albrecht): That deals with 1c, and we will move on to Item 1d on our agenda.
SOR/2012-85 — REGULATIONS AMENDING THE SPECIAL ECONOMIC MEASURES (BURMA) REGULATIONS
(For text of documents, see Appendix D, p. 38D:1.)
Mr. Abel: There are two outstanding matters on 1d, SOR/2012-85. First, there is one promised amendment, which would fix a drafting error in the French version of the regulations. As with previous files, the committee requested that this be done by June 2018. We can follow up in the same way we have chosen under 1a, 1b and 1c.
The second issue concerns the intended meaning of the terms “democratization” and “stabilization” used in subsection 18(c). These terms are used to set out one of several exceptions to prohibitions in the regulations. Certain international organizations are permitted to make goods and services available in connection with Burma if they are for the purposes of democratization or stabilization.
As contravention of the regulations amounts to a serious offence, it should be clear to readers precisely what goods and services are permitted. At a previous meeting, committee members particularly noted that efforts toward democratization or stabilization may in some cases even be contrary to each other and underlined the need for some clarity. The department was therefore asked to explain its understanding of these terms and specifically to provide demonstrative examples.
The department’s letter of December 20, 2017, requested more time to consult with other departments in order to develop a detailed response. However, that response is still outstanding.
If members wish, a further letter could be drafted seeking that response before the end of summer. Perhaps the same approach could be taken that a suggestion will be made that witnesses should have to address this issue if something in writing is not provided before then.
The Joint Chair (Mr. Albrecht): I see general agreement. Shall we proceed in that fashion?
Hon. Members: Agreed.
The Joint Chair (Mr. Albrecht): We will move on to Item 1e.
SOR/2014-163 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE CENTRAL AFRICAN REPUBLIC
SOR/2014-213 — REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON YEMEN
(For text of documents, see Appendix E, p. 38E:1.)
Mr. Abel: Once again, a number of promised amendments will not be made before June 2018. The same approach will be followed.
Second, as we saw under 1c, the department still requires more time to reply to the question of “vagueness” and “overbreadth” concerning prohibitions. If the committee wishes, we’ll follow the same approach as 1c, which is to ask for a further reply and, failing that, witnesses will be asked to deal with that issue.
Third, under issue number 3, there is now agreement to make further amendments addressing a drafting issue in the French version of both regulations.
Under issue 4, the department wishes not to make amendments, addressing a concern that we saw under 1c. This is the matter of time frames in which the minister must issue a certificate. The committee could accept that but ask the department to recognize that the minister is subject to the law and potential sanctions, the same as any citizen.
Finally, a new matter on these files could be brought to the department’s attention. This was also discussed under 1c. The issue here is one provision that authorizes the minister to issue a certificate exempting property. There is no procedure set out.
On 1c, the committee decided this issue would be discussed by witnesses in the fall. These files can be raised to the department’s attention as well for that same approach.
The Joint Chair (Mr. Albrecht): Is there any disagreement? All are in agreement with counsel’s direction on that.
Hon. Members: Agreed.
Ms. Sansoucy: In a decision on a previous file, the committee opted to add the phrase: “Before we move on to further action.” I quite like that because it makes our intentions clear.
The Joint Chair (Mr. Albrecht): We will include that. Thank you very much.
Next is 1f.
SOR/2014-212 — REGULATIONS AMENDING THE UNITED NATIONS AL-QAÏDA AND TALIBAN REGULATIONS
(For text of documents, see Appendix F, p. 38F:1.)
Mr. Abel: All outstanding matters here have already been covered in preceding groups. First, there are the promised amendments, which will now see delays. The same approach can be followed.
Second is the matter of time frames in which the minister must issue certificates and the same approach can be followed as under 1c and 1e.
And third, the department does not agree to set out a procedure for the issuance of a certificate exempting property, and that was dealt with under 1d. We will follow the same approach that the committee already decided.
If members agree with that, it can be followed up in the same manner as the other files.
The Joint Chair (Mr. Albrecht): I see general agreement again, so that deals with all items under Item No. 1.
I will turn it now over to my joint chair for the rest of the items.
MISCELLANEOUS STATUTE LAW AMENDMENT ACT PROGRAM (MSLA)
(For text of documents, see Appendix G, p. 38G:1.)
SOR/99-142 — CANADA LANDS SURVEYORS REGULATIONS
(For text of documents, see Appendix H, p. 38H:1.)
The Joint Chair (Senator Day): Counsel, I have in my package a letter that you have given us. Would you like to explain what is in Item No. 2?
Cynthia Kirkby, Counsel to the Committee: Items 2 and 3 on the agenda are both related to the miscellaneous statute law amendment process. As members may recall, the previous MSLA bill did not include some amendments the committee had been expecting, so the chairs wrote to the committees studying the MSLA proposals to ask that those amendments be included.
The Standing Senate Committee on Legal and Constitutional Affairs then tabled a report recommending the inclusion of those amendments, but this recommendation was not adopted. The letter from the Minister of Justice in Item No. 2 of the agenda explains that the amendments were not added to the existing set of proposals because she did not want to delay the process. However, she is now proactively asking whether the committee has any additional amendments to propose as the department begins the next MSLA cycle.
Counsel prepared a document for the committee last May of statutory amendments that had been promised, and if members agree, that list could be updated and provided to the Department of Justice by its deadline of July 31.
The Joint Chair (Senator Day): That sounds like a reasonable approach. Does everybody agree with that? There is consensus that we proceed in that manner. Thank you for volunteering to do that.
And you will also deal with Item No. 3.
Ms. Kirkby: Item 3 concerns one the amendments that members had expected to be included in the previous MSLA bill. A discrepancy between the English and French versions of section 53 of the Canada Lands Surveyors Act was first brought to the attention of the Department of Natural Resources in 2004. The committee was advised as far back as 2013 that Natural Resources had asked the Department of Justice to include the amendment in the MSLA process, but it was not included in the 2015 amendments. The Minister of Justice then advised the committee in 2016 that her officials were to follow up with Natural Resources about this matter at the earliest opportunity, but the amendment was not included in the 2017 MSLA either. There is therefore some history of this amendment not being included in the MSLA process despite both departments advising the committee they were working on it.
As a result, a two-prong approach was taken. The joint chairs wrote to the Minister of Justice to highlight the history of this file, and a letter was also sent to the Department of Natural Resources asking what specific steps it had taken toward having this matter resolved since its last update to the committee in February 2016. The reply from the Department of Natural Resources does not identify any steps it has taken to resolve this 14-year-old issue, other than once again requesting its inclusion in an upcoming MSLA program.
One option for the committee is to wait until the next set of MSLA proposals is introduced in the hopes that the amendment will be included this time. It may be, however, that this amendment is not considered suitable for the MSLA process because a policy choice needs to be made about which version should prevail — the broader French version or the narrower English version. If this is correct, members may wish to consider a more proactive approach.
The Joint Chair (Senator Day): And the proactive approach would be?
Mr. Badawey: I would agree with counsel that we be proactive. I know it sounds funny, but do it for them and literally come out with the preferred direction with respect to the redrafting of the policy and see if they would agree to that. Failing such, of course, we would expect it to be in the next MSLA.
The Joint Chair (Senator Day): The Miscellaneous Statute Law Amendment Program.
Mr. Badawey: Pick one and let’s get it done. That’s the overall message.
Ms. Kirkby: There was suggestion in 2013, in a letter they had written, that they would prefer to clarify the English version because they prefer the French version. They are looking for the broader approach, which might be why it’s not considered suitable for the MSLA because they are expanding authority.
Mr. Badawey: Let’s push them a bit; so pick one. If they want to do it that way, fine. Or we can recommend that we take them — and it makes more sense with respect to the policy itself — and draft it out for them and expect the response back from the department in a suitable time frame. I may not be saying it in a legalese context, but I think you get the drift.
Mr. Di Iorio: Basically if something doesn’t work in five years, you should try something else. It is totally unacceptable to come up with what they came up with.
The Joint Chair (Senator Day): When we follow the process that we have agreed to in Item No. 2 in notifying the Department of Justice of what we feel should be on the list, do we tell them the wording that we think should be there at the same time?
Ms. Borkowski-Parent: No. In all those instances, the committee has identified discrepancies or a question of lack of authority in their regulations. The committee has identified the deficiency. How it is to be corrected is for the department to decide. So the amendment to the Canada Lands Surveyors Act would be included in that list provided to the Department of Justice again.
Our concern with number 3 is that so far, the committee keeps getting, “It’s part of the next MSLA and we’re working on it.” There is no reason as to why it was not included the first two times around, and we are trying to prevent a third occurrence of that happening.
Them having to provide reasons for the non-inclusion in MSLA, should that be the case, and a plan moving forward would help alleviate those concerns.
Mr. Badawey: That may be the challenge with many items we are dealing with. There is a bit of laziness going on from the department side. They are trying to fit a square peg into a round hole. It doesn’t work and yet they are trying to justify it. I would say, I guess with a hint of boldness, that we should do a bit of that work for them. We have an opinion: We don’t agree with it. Let’s put some words to it, some verbiage, and do a bit of their work for them to push them a harder. And if they don’t agree with it, they can come back with a counter-statement or wording to the policy.
Going back to your point earlier, let’s be proactive, put it in front of them and see what the response is. It just moves the yardstick down at field a bit more versus playing tennis and throwing the ball and nothing is happening. This thing will go back and forth forever, which it has since 2004.
We should do that with other files as well. It’s a bit more work for you folks, and I don’t mean to do that, but at the same time it might move the files along because the work is being done after the fact because nothing is being done. If we could push it harder, that would be proactive.
Mr. Di Iorio: In the immediate term, it’s a bit more work. But in the long term, it is less work because you might as well do it now rather than later.
Mr. Oliver: I think I’m okay with that, but it is a bit unusual for how we intervene in these situations. Another option would be to have them come in and explain why.
How many years has this been going on?
Ms. Kirkby: Fourteen years.
Mr. Oliver: Why not bring them here and ask them why it’s not fixed? We have watched these things speed up quite dramatically when we invite them to come to committee. I’m just not sure that us doing the work for them actually will make them put it through the process and do the work that has to be done. I’m torn.
Counsel, will that be an effective strategy if we do the work for them, or is it better to get them here in front of us to tell us why they’re not addressing it?
Ms. Borkowski-Parent: Whenever possible, when we have all of the information to provide wording to fix a problem, we usually put it in the letters to the department: “Here is how you could fix it, as an example,” and then, as you say, part of the work is done for them.
When there is a policy choice to be made, in this instance, there is a French version that is broader and a narrower English version. As to which one is correct, we have no way of knowing; it would be for the department to decide. That’s why, when it revolves around a policy decision, that decision is left to the department. The committee just asks that it be fixed one way or the other.
As for witnesses, I’m going to give a word of caution. We’re already scheduling witnesses for mid-November at this point. There is only one meeting in the fall that does not have witnesses. We are already getting to the last few meetings of the fall session. Witnesses, although useful, also take time during a meeting and other files don’t go through. I just wanted to point out that at this point we’re into mid-November meetings for witnesses, so it’s possible that it would go to next winter.
Mr. Shipley: In my short time here, I hadn’t realized that, actually, we were directing the words, in terms of verbiage, going back as recommendations from this committee. Often, it is a question, raising the issue of what is in front of us.
I’m trying to relate what happens at other committees when we are going through reports. Here, you’re getting recommendations and you’re trying to determine the wording of what you’re going to send back to the department. If we want to determine an option and you need to be specific with the department and you need to be specific to us, I don’t have an issue with that, but I’m concerned that we’re going to get tied up in the legalese, the wording, of what will go out. That is my concern.
Mr. Badawey: These are all good points. However, as Mr. Di Iorio said — and I agree — we are spending the time anyway. Instead of the immediate, we are spending it over the long term because it is just being punted back and forth, in this case, since 2004. So that time is being spent anyway over the long term versus the short term. If we can place more time on it in the short term, two things are going to happen. One is that we’re going to be very specific regarding our concerns by adding a word or two to it, and, secondly, it’s going to get done. It’s not going to be sitting around as it has since 2004.
I do take legal counsel’s point with respect to the policy itself; we would count on the department to come back to us with that intent. However, according to this report, number 3, it’s either/or. It’s either fix the translation, or pick one. It’s that simple. I think we should be bold enough to go that far, just to tell them, “Here’s the repair with the translation, and/or pick one or the other and move forward with it.”
Ms. Kirkby: Based on the discussion thus far in terms of pushing harder, we could send a letter that essentially says, “We’re concerned that this won’t be included in the next MSLA because of the policy choice. If that’s correct, there doesn’t appear to have been progress since 2004, 2013. Therefore, the committee wants to have a clear timeline for when this will be addressed. Failing that, we will consider calling witnesses.”
Mr. Badawey: There goes that gun again.
The Joint Chair (Senator Day): In the meantime, we’ll also try to make sure that this is on the list.
Ms. Kirkby: Yes, absolutely. We’ll add it.
The Joint Chair (Senator Day): Is that course of action acceptable?
Hon. Members: Agreed.
The Joint Chair (Senator Day): Item No. 4 is next, under the heading “Reply Unsatisfactory.”
SOR/2017-162 — UNITED NATIONS PEACEKEEPING DEFENCE MINISTERIAL CONFERENCE (VANCOUVER 2017) - PRIVILEGES AND IMMUNITIES ORDER.
(For text of documents, see Appendix I, p. 38I:1. )
Ms. Kirkby: Two issues were raised with regard to the UN Peacekeeping Privileges and Immunities Order. Global Affairs Canada provided what appears to be a satisfactory response on point 2. Considering the order had effect only from November 12 to November 17 of last year, it would appear no further action is required on that point.
It is suggested, however, that the reply, and subsequent lack of reply, on point 1 is unsatisfactory. The Foreign Missions and International Organizations Act authorizes the Governor-in-Council to provide, by order, that the representatives of a foreign state shall have certain privileges and immunity. This order, however, specified the privileges and immunities that representatives of a foreign state or a foreign government were to have in Canada during the relevant period.
Global Affairs was asked why it was necessary to refer to a foreign government as well as to a foreign state and on what basis that reference was authorized. The initial reply indicated that the intent was “to capture a possible situation where there would be a representative of a ‘foreign government’ who may not be a formal representative of the state — perhaps where there is a provisional government or a question of state recognition.” This reply provides an answer as to why this was done because “foreign state” alone was seen as too narrow.
With respect to the authority relied upon for this approach, the department stated only that it was viewed as being in keeping with the objectives of the act. This reply fails to consider the nature of delegated legislation, which can do only what is authorized by the enabling statute.
A second letter was therefore sent to the department, suggesting that if the act’s reference to a foreign state is too narrow in practice, then the appropriate solution is to seek an amendment to the act so that it authorizes the Governor-in-Council to make privileges and immunities orders in respect of a foreign government as well.
Global Affairs Canada has not replied to that letter or to a subsequent letter advising that this file would be presented to the committee shortly and that a substantive response would be appreciated.
The Joint Chair (Senator Day): Well, isn’t that interesting. You are drafting here. You’re suggesting words that should go in there, but given the point you make at the end — “since this Order is no longer in effect” — it does not appear that any further action on this point would be required. They’re probably ignoring our letters because this is all in the past.
Ms. Kirkby: I will add that there have been two subsequent orders that did not also refer to a foreign government. So it’s possible that they have adapted their process.
The Joint Chair (Senator Day): They have learned.
Ms. Kirkby: Possibly.
The Joint Chair (Senator Day): Without admitting it.
Any further discussion? Any further action?
Mr. Badawey: Can we get that clarified?
Ms. Kirkby: We can send a letter to them asking if they’re in agreement and are not going to do it in the future. They haven’t responded to the last two letters.
Mr. Badawey: Send them another one, and I think we should articulate the fact that we want to close this out. If they can simply confirm, we can close the file out.
The Joint Chair (Mr. Albrecht): I notice that correspondence is between the department and counsel. I’m wondering if it should go directly to the minister, or do they automatically go to the minister?
Ms. Kirkby: We have not written to the minister.
The Joint Chair (Mr. Albrecht): I think this one needs to be elevated to the ministerial level. Somebody is not doing their job somewhere. It has fallen off their desk or something, and I think it needs heightened awareness.
Mr. Di Iorio: I’m not clear as to why it is no longer in effect.
The Joint Chair (Senator Day): It was the Vancouver conference in 2017.
Ms. Kirkby: They only apply for the relevant period, which was November 12 to November 17.
Mr. Di Iorio: Another relevant period might appear any time.
Ms. Kirkby: They issue new orders for new conferences.
Mr. Di Iorio: Have they said that they’ll issue it in the same manner? This is the opposite of what we usually do. Usually they do something and it remains in effect for a long time. By the time we make them change, 10 years have elapsed where the citizens of this country didn’t really know what they should rely on. This is the opposite. They come up with something that is not serious. In elementary school, in citizenship classes, you explain the differences between government and state. They try to muddle the two.
It’s obvious there is a flaw here, but by the time we catch up, it disappears. So we’ll never catch them, and they always get away with it. Clearly, we have an important portion of the executive not complying with the law on a matter that is very important. They fail to acknowledge the distinction between a state and a government. Actually, they go even further: They openly refuse to do so.
I think we have to act because we’ll never know when they will do it again, and we’ll always be too late to catch up.
The Joint Chair (Senator Day): Mr. Di Iorio, I think we heard counsel say that, going forward, they are not repeating. Without admitting the past, they are not repeating.
Mr. Di Iorio: How could we know?
Ms. Kirkby: There were two additional privileges and immunities orders made under that provision. The twenty-ninth meeting of the parties to the Montreal protocol and associated meetings referred only to a foreign state. Then Canada’s 2018 G7 presidency and privileges and immunities order also referred only to a foreign state. It’s perhaps contextual, but they didn’t refer to a foreign government as well in those two subsequent orders.
Mr. Oliver: It sounds like they have then corrected this. Can we not close the file? I don’t know if we need to write to get verification. Are we not done with this now? They are doing it properly now and we are happy.
Ms. Kirkby: In those two, they did it properly, and we would certainly monitor future ones to see if it comes up again.
Mr. Oliver: For the committee, they seem to have made the difference that needed to be made. They have not issued it incorrectly since. I don’t know we need to keep this going, do we? We can monitor if it comes up again and comes back to the committee.
Ms. Kirkby: The only other point I would make is that they are not responding to our correspondence.
Mr. Oliver: That’s my concern. It’s fine to close the file, but to have these letters ignored by the staff, with the minister maybe not being aware of it, is inappropriate. If they’ve corrected a problem in terms of operation, that’s one thing, but in terms of addressing the committee’s concerns, they have ignored us. It’s important they not be allowed to do that.
The Joint Chair (Senator Day): They have ignored us on the past file.
Mr. Badawey: What we are establishing, especially within the past few months, is, in one word, discipline — discipline in addressing the files that have been outstanding and, if not, we are making the different departments accountable by whatever action we choose.
The second is part is that discipline allows loose ends to be tied up and ensure we have the ability to close our files. That has to be abided by; we can’t ignore. I know it’s happening. It ends up on someone’s desk; it’s not a priority, goes to the bottom of the file and is forgotten about. That can’t happen. When we write a letter, we have to ensure that it’s answered. Regardless of the answer, action is taken from there. If it’s a close-out, it says that, and we can close the file with the last letter being for closure. Until then, the file will stay active.
The Joint Chair (Senator Day): We could do a self-serving letter, saying that we see from your actions you are no longer doing what you were doing. Therefore, we can close out this past file. How about that?
Ms. Borkowski-Parent: With a warning that future orders will be monitored to make sure they comply with the enabling authority in the act.
It is also to the department’s benefit; it’s a risk management thing. Right now, they have extended privileges and immunities, purportedly, outside of their authority. That means they might not have been valid. So it is to their benefit to stick to what is in the act.
It’s just like going back on point 1b — I apologize for disclosure to the RCMP commissioner — it’s to their benefit to clarify that point because any disclosure done without authority would be seen as void by the courts.
It’s not clear where the reluctance from the department is. It is to their benefit to clarify the situation. We could just make sure to tell them that we will be monitoring for the same issue in the future.
The Joint Chair (Senator Day): Good.
Mr. Shipley: My understanding is that the minister is also going to get a copy. That would be the recommendation. Just sending it back to the same people is not working. It needs to be elevated up the ladder, because the minister is the one who could be in non-compliance.
The Joint Chair (Senator Day): Are we agreed? It’s good for the minister to see our letterhead, too.
Mr. Shipley: I have a sense that the minister doesn’t know.
Ms. Sansoucy: I agree with the previous comments. I attended a meeting involving a department that clearly did not understand the serious nature of the committee’s work or its responsibilities. This is a good opportunity to reiterate the role and responsibilities of the committee and to request a response.
Mr. Badawey: That’s a great point, and it was raised earlier. We are like the filter. When we find situations like this where people — not only the individual vis-à-vis the minister, the department or members of the team, but also the individual who might be affected by a decision made by the minister or the team — can be placed into a liability position, that’s not good. Therefore, as counsel outlined, we are doing them a favour by not placing them or individuals in a liability position as well as those who might be captured by that decision.
That’s a good point. That’s our responsibility, and that’s why we take this job seriously. Without that, a lot of people could find themselves in a compromised position.
The Joint Chair (Senator Day): Counsel, there has been a good discussion here. Can you come up with a letter that reflects the decisions that have been made?
Ms. Borkowski-Parent: Yes.
The Joint Chair (Senator Day): Thank you very much, and we will move on to Item 5 under “Part Action Taken.”
SOR/2013-101 — ADMINISTRATIVE MONETARY PENALTIES (CONSUMER PRODUCTS) REGULATIONS
(For text of documents, see Appendix J, p. 38J:1.)
Ms. Kirkby: Health Canada had promised to amend the French version of a section of the regulations so that it used the same term as the enabling act. The department had indicated that the amendment would be made by spring of 2018, and it was.
The remaining issue requires somewhat of a complicated explanation. It concerns a section that arises only if someone does not know whether the minister has issued a recall order. It’s quite rare, but seems to be the type of situation Health Canada intended to address. According to the department, such an occurrence would be rare and, in fact, has not arisen since the regulations came into force. However, it seems to be a policy choice the department made deliberately. The committee does not appear to have any other objections, so the file can be closed.
The Joint Chair (Senator Day): Thank you for that comment.
Is there general agreement on that?
Hon. Members: Agreed.
The Joint Chair (Senator Day): That course of action will be followed.
Ms. Sansoucy: Since the item appears under the heading “Part Action Taken,” why are all the issues considered to be resolved?
Ms. Borkowski-Parent: The department’s reply regarding the use of another provision was satisfactory. It could have been included in the “Reply Satisfactory” category. The focus was on the action taken, but no other issues remain for the committee to address.
Ms. Sansoucy: Thank you.
Ms. Borkowski-Parent: My pleasure.
The Joint Chair (Senator Day): Next is Item 6 on our agenda, under the heading “Reply Satisfactory.”
SOR/2016-284 — BY-LAW AMENDING THE CANADIAN PAYMENTS ASSOCIATION BY-LAW NO. 3 — PAYMENT ITEMS AND AUTOMATED CLEARING SETTLEMENT SYSTEM
(For text of documents, see Appendix K, p. 38K:1.)
Ms. Becklumb: This instrument addressed the last outstanding issue in another file, SOR/2012-161, thereby allowing us to close that file.
However, a new issue was raised in relation to this instrument. Counsel questioned whether the regulation-making authority had met its statutory obligation to transmit the instrument to the Clerk of the Privy Council within seven days after making it. The Department of Finance confirmed with the Privy Council Office that the instrument had indeed been transmitted within seven days. Accordingly, the file may now be closed.
The Joint Chair (Senator Day): Closed? Do we all agree with that?
Hon. Members: Agreed.
The Joint Chair (Senator Day): Thank you. It’s interesting you have found a new issue and now we are already closing it out, so that’s great.
Next is Item 7 on our agenda.
SOR/2018-5 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix L, p. 38L:1.)
Ms. Becklumb: The only issue raised in this file was whether the statutory tabling requirement was met. Pursuant to the enabling act, all proposed regulations must be laid before each house of Parliament before the regulations are made. In this case, the regulations were made on January 23, 2018 and laid before the House of Commons six days earlier, on January 17. However, the tabling in the Senate does not appear in the Journals of the Senate until January 30, which is a week after the regulations were made.
The Canada Border Services Agency responded to counsel’s question by providing a copy of the letter it sent to the Clerk of the Senate submitting the regulations for tabling. The letter is date-stamped January 17, 2018. The Senate was not sitting on that day, so the tabling was not recorded in the Senate Journals until the next sitting day, which was January 30.
However, according to the Rules of the Senate, a document is considered tabled in the Senate when it is deposited with the clerk. Accordingly, the tabling requirement was met and the file can be closed.
The Joint Chair (Senator Day): Good. We’ll blame that on the Senate, then. We’ll close out the file on that.
Mr. Di Iorio: I see the letter addressed to the Clerk of the Parliaments. In this country, there is only one Parliament. It’s bicameral: There is the House of Commons and the Senate. Who would be the Clerk of the Parliaments?
The Joint Chair (Senator Day): Should the “s” be on that?
François Michaud, Joint Clerk of the Committee: It’s the Clerk of the Senate and Clerk of the Parliaments, parliaments being all the parliaments since Confederation, because the Clerk of the Senate is the custodian of all acts passed by all the parliaments since.
Mr. Di Iorio: The parliaments as in the Forty-second Parliament and the Forty-first Parliament?
Mr. Michaud: That’s correct.
SOR/2005-379 — ASSESSABLE ACTIVITIES, EXCEPTIONS AND EXECUTIVE COMMITTEE PROJECTS REGULATIONS
(For text of documents, see Appendix M, p. 38M:1.)
The Joint Chair (Senator Day): Is there anything we need to do in relation to Item 8? Progress is being shown. Is that where we are?
Ms. Becklumb: Nothing needs to be done. We recommended that they include amendments in the MARs, and they have agreed to do so.
The Joint Chair (Senator Day): That’s excellent. Thank you very much for your work.
Our general counsel, Evelyne Borkowski-Parent, has asked for the floor to address us.
Ms. Borkowski-Parent: I wanted to inform committee members that this will be my last meeting as general counsel. I’m leaving as of Friday of next week. I want to thank you for the trust you have given me over the past two years. I’m leaving you in the good hands of my team.
A competition will be run over the course of the summer to replace me, with the hope of having someone in place in the fall when Parliament reconvenes.
So thank you.
Hon. Members: Hear, hear!
The Joint Chair (Senator Day): Evelyne, on behalf of the committee, thank you very much for the very efficient work that you’ve done in leading the counsel team over the years. We knew we could rely on you at any time, and we wish you well in your future endeavours. Keep us in mind out there, would you?
Ms. Borkowski-Parent: I will.
Mr. Di Iorio: Be mindful that you might be called as a witness from time to time.
STATUTORY INSTRUMENTS WITHOUT COMMENT
SI/2016-52 — MARY DUNCAN REMISSION ORDER
SI/2016-56 — ROBERT MORRISON REMISSION ORDER
SI/2016-57 — SIMPSON FAMILY TRUST REMISSION ORDER
SI/2016-58 — TRENA LAHAYE REMISSION ORDER
SI/2016-59 — PAYMENTS RECEIVED UNDER THE ATLANTIC GROUNDFISH LICENCE RETIREMENT PROGRAM REMISSION ORDER, NO. 2
SI/2017-2 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE PATRICIA A. HAJDU
SI/2017-3 — ORDER ASSIGNING THE HONOURABLE MARYAM MONSEF TO ASSIST THE MINISTER OF CANADIAN HERITAGE
SI/2017-4 — ORDER DESIGNATING THE HONOURABLE MARYAM MONSEF TO CO-ORDINATE POLICY WITH RESPECT TO THE STATUS OF WOMEN AND ADMINISTER RELATED PROGRAMS
SI/2017-5 — TRANSFER OF DUTIES ORDER
SI/2017-13 — MICHEL BLONDIN REMISSION ORDER
SI/2017-18 — MARIE-ROSE DENIS INCOME TAX REMISSION ORDER
SI/2017-56 — ORDER REPEALING ORDER IN COUNCIL P.C. 1996-324 AND DESIGNATING THE MINISTER OF INDUSTRY AS THE MINISTER FOR THE PURPOSES OF CERTAIN SECTIONS OF THE ACT
SI/2017-57 — ORDER FIXING OCTOBER 11, 2017 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE
SI/2017-60 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE
SI/2017-61 — PROCLAMATION ANNOUNCING THE APPOINTMENT OF THE GOVERNOR GENERAL
SI/2017-63 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH THE ACT COMES INTO FORCE
SI/2017-64 — ORDER DESIGNATING THE LEADER OF THE GOVERNMENT IN THE HOUSE OF COMMONS TO BE THE MINISTER FOR THE PURPOSES OF THE ACT
SI/2017-73 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH DIVISION 8 OF PART 4 OF THE ACT COMES INTO FORCE
SI/2017-77 — TRANSFER OF DUTIES ORDER
SI/2017-78 — ORDER DESIGNATING THE DEPUTY MINISTER OF THE DEPARTMENT OF INDIGENOUS SERVICES CANADA AS DEPUTY HEAD IN RESPECT OF THAT ENTITY
SI/2017-79 — ORDER DESIGNATING THE DEPARTMENT OF INDIGENOUS SERVICES CANADA AS A DEPARTMENT FOR THE PURPOSES OF THE ACT
SI/2017-80 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER
SI/2017-81 — JANET DE LA TORRE REMISSION ORDER
SI/2017-82 — MILCA KWANGWARI REMISSION ORDER
SI/2018-2 — ORDER FIXING DECEMBER 22, 2017 AS THE DAY ON WHICH THE ACT COMES INTO FORCE, OTHER THAN CERTAIN SECTIONS
SI/2018-3 — UNITED NATIONS MULTIDIMENSIONAL INTEGRATED STABILIZATION MISSION IN MALI (MINUSMA) MEDAL ORDER
SI/2018-4 — ORDER AMENDING ORDER IN COUNCIL P.C. 2004-1552
SI/2018-5 — ORDER AMENDING ORDER IN COUNCIL P.C. 1999-1742
SI/2018-6 — ORDER AMENDING ORDER IN COUNCIL P.C. 2015-1064
SI/2018-7 — ORDER REVOKING ORDER IN COUNCIL P.C. 1997-124
SI/2018-8 — ORDER REVOKING ORDER IN COUNCIL P.C. 1995-2004
SI/2018-17 — LIST OF WILDLIFE SPECIES AT RISK (REFERRAL BACK TO COSEWIC) ORDER
SI/2018-18 — SPECIAL SERVICE MEDAL BAR ORDER “NATO-OTAN”
SI/2018-19 — ORDER AMENDING THE SPECIAL SERVICES MEDAL BAR ORDER “EXPEDITION”
Ms. Borkowski-Parent: I forgot to say that there are 34 Statutory Instruments Without Comment. They were examined by counsel and can be closed.
The Joint Chair (Mr. Albrecht): I want to add my words of thanks, Evelyne, for the great work you have done for and on behalf of our committee, and for the trust that we have developed. We, coming in as new joint chairs, certainly appreciated your counsel and many issues. You are going to be very difficult to replace, and we wish you nothing but the best in the future.
We’re done early. I actually did bring a blank card if anyone wishes to sign a little word as you leave, and I would appreciate if anyone wanted to do that.
My sincere thanks for your incredible work. Your attention to detail in moving files forward has been helpful to our committee.
Hon. Members: Hear, hear!
(The committee adjourned.)