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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 41 - Evidence - October 18, 2018

OTTAWA, Thursday, October 18, 2018

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for review of Statutory Instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.



(For text of documents, see Appendix A, p. 41A:1.)



(For text of documents, see Appendix B, p. 41B:1. )

The Joint Chair (Mr. Albrecht): Today we have with us a number of witnesses from Parks Canada: Michael Nadler, Acting Chief Executive Officer; Rachel Grasham, Director, Policy, Legislative and Cabinet Affairs; Dave McDonough, Executive Director, Pacific and Mountain Parks; and Stephen Van Dine, Vice President, Strategic Policy and Investment. I want to welcome you to the meeting this morning.

Before we get into the opening remarks, I'd like to comment on behalf of our committee that I think all committee members around this table take our job very seriously, and we want the work of the committee to progress in an efficient manner. In addition, our counsel works hard and diligently on our behalf to scrutinize the material, to be sure the procedures and protocols are followed. Yet, too often there seems to be a laissez-faire attitude on the part of some of our departments. I want to say there is a level of concern, maybe frustration, that we're feeling in terms of what we feel is that lack of attention to detail when it comes to the requests from our counsel or from the co-chairs themselves. This adds up to hours of wasted time, piles of wasted paper and a lack of efficiency in a procedure that I think Canadian taxpayers expect better of.

I think all of us today are hopeful of substantive responses in our meeting today but, more importantly, some evidence that there will be follow-up afterwards, because we need to progress with these matters much more efficiently as we go forward.

With that, Mr. Nadler, I welcome your opening remarks. Thank you for preparing them for us in advance.

Michael Nadler, Acting Chief Executive Officer, Parks Canada:

Good morning, everyone. Let me begin by thanking the joint committee for this opportunity to update you on Parks Canada's regulatory work, particularly with respect to responding to your recommendations and counsel for amendments to a number of Parks Canada regulations.


As you said, I am Michael Nadler, Acting Chief Executive Officer, Parks Canada. I am accompanied by Dave McDonough, Executive Director, Pacific and Mountain Parks, and by Rachel Grasham, Director Policy, Legislative and Cabinet Affairs.


There are three topics that we would like to speak to you about today. First, further to the chair's comments, we'd like to provide you with a short update on the progress that Parks Canada has made in responding to the committee since the agency last appeared at the committee in 2016.

Second, we would like to discuss the important role of superintendents in managing public safety, public health and ecological integrity in our national parks.

Third, we would like to provide you with an update on our current work stemming from the joint committee's recommendations. We'll be pleased to answer any questions you may have after my opening remarks.

To begin, I am pleased to report that Parks Canada's correspondence with the committee has been prompt and responsive. We have met the 15 business day time frame that we committed to in 2016 to provide an initial response to all letters from the committee. That is, a response that has been sent to the designated instruments officer to the committee within 15 days of receipt.


As we had promised the committee in 2016, Parks Canada made several regulatory changes in 2017 so as to follow up on the committee's technical recommendations.


As noted in 2016, some of the committee's recommendations have raised policy considerations with respect to Parks Canada's operations. Many of the recommendations were directed at administrative discretion and the role of Parks Canada's superintendents in fulfilling their duties in support of the minister's accountabilities under the Canada National Parks Act.

For example, the joint committee has made a number of recommendations to "avoid the appearance of subjective authority or the discretionary power" in the issuance of authorizations or permits that allow certain activities to be undertaken in Canada's national parks.

The committee has recommended the elimination of the superintendent's discretion in proposed amendments to the National Historic Parks General Regulations, the Wood Buffalo National Park Game Regulations, the National Parks General Regulations and the National Parks of Canada Water and Sewer Regulations.

I believe we understand the joint committee's perspective on this question. The agency has spent many hours in consultation with field staff, with law enforcement staff, with legal advisers and counsel, and with regulatory specialists and drafters from the Department of Justice — all of this to evaluate the committee's proposals regarding these discretionary powers.

In assessing these proposals, it was important to consider that Parliament established an approach under the Canada National Parks Act which recognizes that superintendents need a certain degree of discretion to deliver the minister's responsibilities to manage our national parks in accordance with legislative requirements and ensure that ecological integrity is our first priority.

Further, the act recognizes that some degree of discretion can be necessary to protect the safety and the health of the public. This discretion, founded in statute, allows superintendents to manage daily operations and respond to a huge variety of on-the-ground circumstances that occur each day. Some of these circumstances might be impossible to foresee, and they require often immediate action to protect ecology or to protect public safety or public health. These public services leaders, our superintendents, must respond quickly to events in order to preserve the parks and places entrusted to Parks Canada to manage.

As I mentioned, the minister has a legislative obligation to ensure ecological integrity is the first priority in the management of a national park. Of course, superintendents must also ensure that the health and safety of the visiting public are protected.

New technology and increased popularity of new and innovative recreational pursuits, such as the use of drones or e-bikes or private use of remote cameras or hang-gliding, present evolving challenges in the management of Canada's national parks that we must adapt to regularly. These, coupled with a dynamic natural and social environment stemming from a new generation of visitors, new ecological threats associated with climate change, such as invasive species and wildlife diseases, require increasingly sophisticated and adaptive management actions and techniques that are supported by the appropriate regulatory framework. Such a framework calls for the ability of park superintendents to act with both rigour and discretion.

If I may, I would like to provide a couple of examples to illustrate the need for a degree of discretion to be implemented in Parks Canada's operations.

As a first example, let's take Banff National Park. We exercise discretion there with respect to the number of hikers in a party at certain times of the year when bears are feeding on buffalo berries. This is to ensure that there are at least four people in a hiking group, as recent research suggests that the chance of a bear encounter dramatically decreases with a group size of four or more hikers. With the ability to respond to these research findings, Parks Canada was able to ensure visitor enjoyment and safety without having to restrict access to a popular section of the park during the operating season.

Another example in the same region is the Bow Valley Parkway in Alberta. This is one of the most popular visitor attractions in the Canada's national parks system, if not the country, due to the likelihood of seeing wildlife. After extensive consultation, the park superintendent implemented an overnight use restriction of the parkway during the spring. This has been extremely successful in balancing ecological integrity and visitor experiences. Ecological monitoring is showing that it is having a positive impact on wildlife at a critical time of the year and visitors are able to continue to enjoy this special experience. This would not have been possible without the ability to exercise some discretion in decision making.

Another example in that region, we recently made the unexpected discovery of whirling disease in Banff National Park. This is a disease affecting certain varieties of fish. The discretionary authorities in the regulations allowed Parks Canada to quickly take action to reduce the spread of disease and work with partners to respond. This included requiring that boats that had been in areas where whirling disease is prevalent to be inspected before being allowed on Lake Minnewanka.

As visitation to national parks increases and neighbouring communities become more developed, there will be a greater likelihood of potentially dangerous encounters with wildlife. This will continue to present an ongoing challenge and requires practical and timely responses, including with respect to the preservation, control or management of the park.

A further example relates to camping and the maintenance of campsites in reasonable condition. The framework provided for in the Canada National Parks Act, and its effect through regulations, provides a degree of discretion in this type of situation because the standards of a reasonably maintained campsite are heavily dependent on the geographic location of the park and the current presence of wildlife.

Food left unattended at a campsite at Wapusk National Park located in polar bear country in northern Manitoba will pose a much greater risk to campers and to wildlife than the same food left unattended at Fort Rodd Hill lighthouse near Victoria, British Columbia, where the risk from wildlife, mainly birds, is much lower.


Superintendents closely monitor conditions in their parks and must react appropriately to protect wild spaces and visitors, who expect nothing less.


We have carefully prioritized the analysis of your feedback and counsel and have focused considerable time and energy on finding solutions to address the committee's concerns. I'm pleased to report that we are making progress in responding to your recommendations. We are working on a package of amendments which stems from our review. We hope to see these published in the coming months, though I cannot commit to this timeline given that these amendments are subject to both the minister's approval and Treasury Board approval.

In closing, I would like to thank the joint committee for the opportunity to discuss the agency's regulatory work this morning. As I highlighted, progress is being made on recommendations made by the joint committee. I can assure you that substantial efforts are being made to move amendments forward for approval.

The minister is aware of your concerns and has been supportive of our work in finding solutions that respond to your recommendations.


I hope that today's report shows our appreciation for the role, the work, the advice and the importance of the joint committee, and underscores the fact that all future recommendations of the committee will be taken seriously.


I thank you kindly for your attention this morning.

The Joint Chair (Mr. Albrecht): Thank you, Mr. Nadler.

We will now move to questions from committee members.

Mr. El-Khoury: Welcome, Mr. Nadler. I have two issues. You said that you need a certain degree of discretion to deliver the minister's responses. Can you estimate up to what limit? "A certain degree" is not clear to us.

Another thing is that you're working on a package of amendments. Is it possible to have an idea of a time frame as to when we will be able to receive that package of amendments?

Mr. Nadler: Just to clarify, shall we respond to each question in turn, or would you like to take a few?

The Joint Chair (Mr. Albrecht): Let's do them as we're moving through so we don't lose track.

Mr. Nadler: Absolutely.

The first question relates to what extent discretion is applied. Parks Canada manages one of the most diverse networks of protected areas in the country, and it poses a real challenge for the agency to develop one regulation that can apply universally to every context that we would encounter, both with respect to visitation and to ecology. Field unit superintendents and the agency itself require a certain degree of discretion in order to respond to unpredicted circumstances or issues as they arise. That discretion is bounded within the need to protect ecological integrity, the need to protect public safety and to protect public health. Those bounds are critical.

The other thing I'd like to underscore is that the field unit superintendents we're discussing here are some of the most remarkable and dedicated public servants I've encountered in my 20-year career in the public service. They take their role seriously, they take the mandate of the minister seriously, and they take the importance of the legislation and the regulations they administer seriously. They are cautious in their exercise of discretion every day in the management of these places.

We are hopeful that we can bring forward a package of amendments within the next couple of months. There are things beyond our control as public servants. We have one of the busiest ministers in cabinet, and Treasury Board is a very busy committee. While we can't commit to a firm time frame, we've been working very hard to respond to the committee's recommendations. We believe we've put together a package that reflects the needs of the agency and also reflects the recommendations of the committee. We're hopeful that it will move in the next couple of months.

The Joint Chair (Mr. Albrecht): Mr. Nadler, a further frustration is that we see that the agency agreed in 2012 to make these changes, and here we are in 2018 and we are still being promised progress. I think that's a frustration that we're feeling around this table. Today, at the very least, we need to be given a fairly clear guideline as to when you expect these — in 2018? Okay, but we need to move forward.

Ms. Romanado: I think you highlighted what we're concerned about. We have a file with Parks Canada dating back to 1978, 40 years ago. There seems to be, for some reason, an inability to respond in real time, other than saying, "We're making progress" or "We'll get back to you." These files need to be addressed in an adequate time. We understand that the department is busy, as is every member sitting around this table, and we would appreciate getting actual content rather than "We're making progress."

Can you commit that by December 31 of this year that we have answers to these files and not, "We'll get back to you"?

Mr. Nadler: Thank you for your comment and your question.

Let me start by reinforcing the apology that Daniel Watson made in 2016 for the delays that the committee experienced in the past. Let me emphasize that we've rectified that and that we're responding within committed time frames to the queries and recommendations of the committee at this time. Let me also emphasize that last year, in 2017, we made a series of technical amendments based on the recommendations of the committee. So we've made significant progress.

As I indicated, within the scope of things that we can manage, we have made significant progress on making amendments to our regulations. We will be bringing those forward to our minister. They must pass by Treasury Board. Those two elements are outside of our direct control as public servants. We cannot, I regret, commit to their time frame. I can't commit our minister or the Treasury Board to meeting a deadline. But for our part, we expect to bring these forward within the next couple of months.


Ms. Sansoucy: You spoke to us of progress, but you did not describe it. We are well aware that you must have the approval of Treasury Board, but what we want to hear this morning, it being understood that the approval of the President of Treasury Board is needed, is that your executive is mindful of the recommendations and requests of the committee. That is what we need to hear this morning.

We are not questioning the professionalism of your directors. I listened carefully to your statements and I thank you for your examples, but the committee wants to know how its requests were taken into account, what your thoughts were with regard to those requests, how those requests progressed within your agency, and, subject to the approval of the President of Treasury Board, what point you have reached in your thinking. What is the status report on what you intend to present to Treasury Board? That is what the committee wants to hear this morning. Your presentation at this point does not meet with my expectations, and I think my colleagues share that concern.

Mr. Nadler: Thank you for your comment and your question. Once again, I would like to apologize for the tardy responses in the past.

I'd like to explain how Parks Canada received your committee's recommendations and how it dealt with them. First, we did a detailed review of the recommendations and we discussed them with Justice Canada representatives. Of course, that took some time. We also discussed the recommendations with our management unit in the field, with regulatory specialists, and even with our lawyers.

After we gathered all of the information, we believe we developed solutions that will meet your concerns, while respecting the agency's needs with regard to park management. All of the recommendations will first be sent to the minister, and then to Treasury Board.

We managed everything appropriately, while attempting to provide a pertinent and respectful response to your committee's comments and recommendations. In fact, we think we did our best to manage what we could and to put forward your recommendations.

Ms. Sansoucy: Excuse me. My question was not about how you did what you did, but rather about what you did. You are telling us about progress you made and solutions, but you are not describing them.


Mr. Benzen: Let's talk about a couple of the actual things we're asking, and you tell us if you're going to do them.

One of the things we asked is that you change "chief executive officer" to "superintendent." Is that going to be done in your recommendations by the end of this year? Is that one of the changes we're going to see and is that going to be accomplished?

And after that, let's talk about the discretionary power. I think that's the most troubling thing in here. You have the ability for the superintendent to treat people differently. They can come in with the exact same request and get two different answers. You can talk about how professional they are, but at the same time these regulations affect people and you can give two different results, which I think is totally unfair.

What are you guys doing in terms of tightening down this discretionary power? How are you taking the subjective part of it out and making it objective so anybody can know the results before they come in because they know they've met the criteria.

It's not just up to the superintendent depending on the mood he's in that day. I hate to say it that way because I know you're saying they're professional, but it could be just that he or she is just having a bad day and they give a different answer. What can we do in here to ensure that Canadians are treated fairly and not "discretionarily"? What are you doing to tighten those parts of it in terms of the wording and to tighten this down so we see less discretionary power for the superintendent? We know it's required a little bit, but we also have to see it tightened down.

Can you answer those two questions?

The Joint Chair (Mr. Albrecht): If you want to consult and have somebody else respond, that's fine.

Mr. Nadler: Sure. Maybe the three of us will respond to this one, because you've asked multiple questions. We'll start with the CEO element, and Rachel can respond to that.

I think we would go to the whirling disease example that we raised in Banff National Park, where in one season a field unit superintendent might have had one answer for a visitor and the next season that had to change, but there may be other examples that Dave could provide.

Rachel Grasham, Director, Policy, Legislative and Cabinet Affairs, Parks Canada: Thank you for the question and for the committee's work in terms of this issue of the chief executive officer versus the role of the superintendent.

That was one of the changes that we had made in 2017 through the miscellaneous amendment package that was brought forward in response to a recommendation of the committee. The regulation was out of date. It referred to the powers of a director general, which is no longer part of the Parks Canada structure since becoming an agency.

At that time, we had done some work with our legal counsel to map the equivalent level of a director general in the new Parks Canada structure, which was effectively a vice-president and wasn't defined in the act. At the time, we thought we would give the power to the CEO because the CEO can delegate. We very much appreciated the good work of the committee, so we have taken on board that proposal.

I would draw your attention to the letter to Cynthia Kirkby on April 18, wherein we fully agree with the need to update this provision in terms of the power being put forward to the superintendent. As the letter states, Parks Canada will recommend to the minister responsible for Parks Canada that this amendment be brought forward as part of the package. So we do thank you for your good work in that regard.

The Joint Chair (Mr. Albrecht): For clarification, what date will that actually be implemented? I think that's the frustration. We haven't seen it yet.

Ms. Grasham: I will give more detail in terms of the work. We did want to do a deep dive on all of the committee's recommendations. As Michael described, we met with people from across the country to understand the nature of the different recommendations and how they sit within the Parks Canada legislative and regulatory framework and the discretionary powers of the superintendent.

We prepared a package of proposed amendments. They were brought forward to the Department of Justice, and we met with drafters and went through language. Those are being drafted by the Department of Justice. There's a process within the Department of Justice where they're drafted and then go to revisers and jurilinguists. We're waiting for the final package of amendments so that we can put them forward for the minister's approval and then on to consideration by the Treasury Board minister.

As Michael said, we're hopeful to move that forward as expeditiously as possible, but they're a little bit out of our hands right now.

The Joint Chair (Mr. Albrecht): Does someone else want to respond?

Mr. Nadler: Dave might be able to provide examples of where that discretion comes in. It isn't exercised arbitrarily. Typically it's in response to a context issue.

Dave McDonough, Executive Director, Pacific and Mountain Parks, Parks Canada: I'll start with how that decision is made. We're talking about a range of things. It could be for a permit or someone wanting access to a restricted area, so it's quite a range.

The first thing a superintendent does is look at the effect on the ecological integrity and the resources of the park. Our first priority is the public safety implications of that action and the effect on visitors and the overall management vision or strategy for that area. Those are the three or four main criteria you would use in that decision.

We do explain the decision to people, so it's not just a straight no. People definitely have an opportunity to question us, and we do get questions from time to time. They also have more formal redress mechanisms through a judicial review if it's something that's very serious and they want to go that route. So there are safeguards in place to deal with an arbitrary decision, and we do base them on key criteria.

We work in a very public context, so that discretion is normally exercised when a decision is required very quickly. Say there's a need to close an area because of a bear incident or whirling disease, as mentioned earlier. There's a review afterwards to determine the appropriate next steps following proper consultation procedures.

As Michael said, we're very aware of the impact that decisions like this can have. We are always careful to explain the basis for them and to use them judiciously.

Mr. Benzen: Let me just say I don't think we heard a timeline that would talk about the superintendent issue being done, and I don't think we've heard any response saying, "We've looked at the language, and we found ways that we can tighten it up." You're basically saying, "You know what? We're just going to leave it the way it is, and we're going to keep all the discretion." That's what I've heard you say. I haven't heard you say that you've found a way to rewrite this and to list examples, or whatever it is, to tighten it up. It's basically just saying that you're not going to change it.

That's what I think I've heard. But if I'm wrong, maybe you can tell me I'm wrong.

Mr. Nadler: No. Maybe I didn't make it clear enough in my remarks that we have taken very seriously the recommendations of the committee. At the same time, we've been consulting on those recommendations with experts in regulatory affairs, with our operational experts, as well as with counsel. We believe we have a package of amendments and changes that will respond to both of those sets of insights. Regrettably, we can't speak to them in detail now because they have not yet been presented to our minister or the Treasury Board, but we hope to do that very soon.

The Joint Chair (Mr. Albrecht): And I hope "very soon" is very soon.

Mr. Ehsassi: Allow me to thank the witnesses for being here today. However, I have to say it's quite dismaying because I don't find that the remarks you provided or the follow-up responses have been really responsive to the concerns that have been expressed here. I think we can all agree that, in the past, the approach of your department has been sclerotic if nothing less. Members of this committee are trying hard to develop a better grasp as to when these changes will be made. You keep giving us responses that aren't responses, essentially.

I have a very specific question: Would you agree with me that in the past you have not done a good job, and that you will actually do a better job going forward? It's very simple.

Objectively, looking at the record, I think we can all agree there is plenty of room to be dismayed, but I haven't heard it from you, apart from saying you have a designated instruments officer. At the end of the day, I'm not convinced you couldn't have done a better job. So would you tell us: Could your department have done a better job?

Mr. Nadler: Let me repeat the apology that Daniel Watson made to the committee in 2016. We regret the delays in our responsiveness in the past. We've turned that around and have been extremely responsive since that time. We've met the deadlines that we committed to in terms of responding to the committee. We made a series of technical amendments to regulations last year, and we're bringing forward a package of amendments now.

The Joint Chair (Mr. Albrecht): Just to remind you, it was two years ago that Mr. Watson sat here and gave us assurances. We're seeing some progress, but —

Ms. Grasham: If I may, one of the things we took into account and changed dramatically was our approach. In the past when we updated regulations, we looked to the standing joint committee and to implement recommendations. Over the years, some amendments have been brought forward. After the appearance of Mr. Watson, we brought forward a package in 2017.

To walk you through some of those, they were more technical amendments, such as, for example, to harmonize terms used in the regulations with enabling statutes. Those were things like use of the terms "revoke" and "cancel," to correct certain grammatical errors, to align French and English versions, and to update obsolete references. I talked about the obsolete reference to the powers of the director general, which we did change in 2017. As I said, we took the committee's review of that to heart, and we're bringing forward a subsequent amendment to be in line with the committee's recommendation on that front.

We also brought forward certain provisions to clarify. Those addressed the committee's recommendations with respect to the National Parks General Regulations; the Historic Canals Regulations, and then aligning French and English within the Historic Canals Regulations. We aligned the definition of "historic canal" because the committee had noted a discrepancy between the English and French definitions.

We brought forward other technical amendments to the National Parks of Canada Fishing Regulations, and there are further recommendations of the committee to those recommendations that we are addressing or planning to bring forward in the broader package.

Our commitment is to bring forward a miscellaneous amendments package. We did so in 2017. We're proposing to do it hopefully by the end of 2018, bearing in mind the comments that Michael has made. It is a standing item on our forward regulatory plan, which the minister approves and has publicly posted. We put that on there to note that we want to bring forward miscellaneous amendment packages as a standing item.

Those are some of the things that we're doing structurally to try and ensure we're responding to the committee's recommendations.


Ms. Sansoucy: With the exception of technical or linguistic changes that have just been shared with us, obviously, the people before us do not have the authorization to provide us with information. The terms are multiplying: plan, approach, progress, solution, change, amendment. Those are general terms that do not provide any concrete response.

My question is the following: Is it normal that witnesses that appear before this committee do not have the department's authorization to present the amendments or draft amendments that were submitted to the department? Of course, my colleagues and I can understand that subject to the acceptance of the minister or Treasury Board, what is presented to us may change. However, is it normal that the witnesses don't have the authority to provide us with the details?


The Joint Chair (Mr. Albrecht): It's important to remind all committee members that we have a number of tools at our disposal with which we can advance some of these files. One of them is to table a report in Parliament to indicate to all of Parliament and in fact to all Canadians that these issues are not being dealt with in a timely manner.

We have multiple tools. We've chosen to call witnesses today to hopefully move it forward.


Ms. Sansoucy: Obviously, they do not have the authority to give us that information.


Mr. Scarpaleggia: I hope my question hasn't already been captured by other questions. It may have been. We're speaking at such a high level of abstraction that maybe my question had been asked and answered.

As legislators, our main concern is always whether those in authority are overstepping their authority. That's one of the main concerns of any representative of the people. That's what we tend to focus on. Like Mr. Benzen, I have been focusing on these discretionary powers. I understand your explanation that, in a situation as fluid and complex as managing an ecosystem, some discretionary powers are required.

My understanding, not being a lawyer, is that the problem with the way things are currently worded is not that the Parks superintendent or the Parks officer is not going to explain to the public why they're making a particular decision. I'm sure they do out of a sense of professionalism but also because they're being asked by a member of the public, so they would normally want to respond. But my understanding is that the problem with the current wording is it could give the Parks officer a sense of greater authority than he or she has.

Wording was suggested to make sure that the superintendent understands that their decision has to be grounded in some kind of rigorous thinking.

The superintendent shall grant permission to a person referred to in paragraph (b) where it is necessary for the livelihood of that person, unless it would jeopardize public safety or the ecological integrity of the park."

It somehow makes the superintendent understand that they don't have these unlimited powers and their decisions have to be grounded in a rigorous thinking process. Do you think that wording would solve the problem?

Mr. Nadler: Can I respond to both comments?

The Joint Chair (Mr. Albrecht): Absolutely.

Mr. Nadler: I will take that one in turn but respond to the member's other comment as well?

Let me reinforce that Parks Canada takes this committee extremely seriously, so when we were invited to return, the response that we did not want to give is that the committee should wait until we were able to speak in detail to the amendments. That is the opposite of what we want to do. We want to be responsive and engaged with the committee. But that might have been a good response because part of the frustration we sense at the table today is that we are not able to speak in detail to these amendments.

What you have to understand is that we're in a very difficult position there. We want to be responsive to the committee, but at the same time we have to respect our role as public servants. I could offer that once the amendments are gazetted, we would welcome an opportunity to return to the committee and provide a technical briefing on them.

This conversation is making us equally uncomfortable, but we have to respect our role as public servants in the same way that we respect the role of the committee. We simply can't provide you with those details at this time, but we would value an opportunity to do it when we can.

On the suggested text, we've had to rely on the insights and counsel of a wide number of experts in regulatory affairs to try and respond to the recommendations of the committee in those veins. We recognize — and have empathy and understand — the risk that you're outlining in terms of somebody exercising authority beyond their scope or in an arbitrary way. We think that we developed a package of amendments that helps to deal with those circumstances. We also recognize that some of these regulations are dated, the language is dated and comes from a different time. We value the opportunity and the guidance of the committee to make changes that will respond to what you're describing.

While I don't know that we can borrow exactly the language that you've provided, I can assure you that we've taken into consideration the sentiment you've just expressed in our work on amendments.

Mr. Scarpaleggia: To give you the benefit of the doubt, it sounds like you've bought into the notion that is in that suggested amendment, even if you haven't formulated it in the same exact way.

Mr. Nadler: Yes. The language of regulation should be more straightforward, but we have to take advice from multiple players.

Mr. Scarpaleggia: Thank you.

The Joint Chair (Mr. Albrecht): We'll move to counsel for clarification. We had good discussion with committee members. Let's be honest: Our counsel do the legwork here and help to ferret these out. I want counsel to give their input as well.

Cynthia Kirkby, Acting General Counsel to the Committee: In 2012, you had conveyed to the committee that you would be making the amendments. The most recent correspondence we have seems to suggest that you would not be making the amendments. Today I'm getting the impression that you will be. Which is true?

Mr. Nadler: We've taken the advice of the committee quite seriously. We've done our homework, including consultations with counsel and with regulatory specialists, as well as our folks delivering operations. We believe we've put together a package of regulations that meets the interests of the committee, as well as the interests of the agency in terms of the management of its affairs.

Ms. Kirkby: In terms of the subjective discretion?

Mr. Nadler: We are working on that question, as well as the other questions raised by the committee.

Ms. Kirkby: There was another question where we had raised an issue, a provision that seemed to violate the Charter. You had said it would be repealed. Is that also included?

Mr. Nadler: We obviously take the Charter very seriously. We take our relationship with Indigenous peoples very seriously. There are a series of recommendations that are constitutional in nature and, of course, we have taken those very seriously in the analysis.

Penny Becklumb, Counsel to the Committee: I still haven't understood. Are you making amendments to address the discretionary issue?

Mr. Nadler: We can't speak in detail to the amendments at this time, as I expressed. I can tell you that we've taken the recommendations of the committee very seriously.

Ms. Becklumb: During your opening remarks, you said the committee has suggested elimination of the superintendent's discretion. That's not the case. That's a misunderstanding. The suggestions that the committee has made is a drafting exercise to tighten up the drafting. It would in no way change operations on the ground or the superintendent's discretion on the ground. It would change nothing of the way parks are managed. It would simply be a drafting exercise to tighten up the language, to improve the possibility of judicial review if it ever came to that. Is that your understanding?

Ms. Grasham: Yes. Thank you. It's that context and framework where we have undertaken the work and certainly been working with Justice drafters with respect to language. We looked at all the committee's recommendations and went through them one by one. It's in that spirit.

The Joint Chair (Mr. Albrecht): Just to clarify, Mr. Benzen, Mr. Scarpaleggia and our counsel have all raised the question of the suggested wording that was sent to you on November 10, 2017, that would address the concerns of the committee, would not give undue discretion and would not take discretion away. Can we be assured that you are moving in that direction? I think that's what I'm sensing around this table. Are we going to sit here again two years from now and be going over the same question?

Mr. Nadler: We welcome the recommendations of the committee. We've appreciated the recommendations of the committee. Regulatory language has to be drafted in consultation with a number of experts. While we cannot commit to implement the specific language provided by the committee, we've understood its intent and the committee's perspective. Again, we believe that we're developing a series of amendments that meets the agency's needs, respects the minister's authorities but also responds to some of the concerns raised by the committee.

Mr. Levitt: At the outset, let me say that my experience on this issue in this committee is all of 45 minutes old. I'm a guest here, so I don't want to overstep.

I have to tell you that I spent 45 minutes last night reading and prepping for this meeting. I come from the private sector. In the private sector, you make some good decisions and bad decisions, but you make decisions and action them because you need to; otherwise, things fall apart.

It's fairly obvious that there's a great degree of dysfunctionality as it comes to implementing and following through on recommendations and amendments that have been made, some dating back decades, some dating back seven years, some dating back to instructions from a year ago. It seems to be a constantly shifting landscape in terms of where this goes.

You're the acting CEO. Would this suggest to you, as it's suggesting to me, that something is dysfunctional or broken in the way it's going on? That's question number one. The responsibility of this committee and its responsibility to Parliament is quite clear in terms of getting clear answers and having the directions followed. That's our job, and we have a job to do.

Second, given that you're acting CEO, you're surrounded by good and talented people who want to see success. There is this cycle of things not achieved, which really wastes the public purse. Do you have any recommendations on how we can all be doing this better? Those are my questions. Again, only with 45 minutes experience here, so I don't want to overstep.

Mr. Nadler: Even after 45 minutes, thank you for your questions.

I've apologized frequently during this hearing. We do regret the lack of responsiveness in the past. Since 2016, we've focused considerable energy on the recommendations of the committee, on making the changes and amendments that happened in 2017 and on reviewing in detail the recommendations around administrative discretion.

My direct response to your question "Is something broken?" is that, no, I don't believe it is. We've focused extraordinary amounts of energy to be responsive to the committee.

How can we do better? What I expressed a moment ago is that we want to be available to the committee. We want to spend time with you. Ideally, we would have been able to discuss technical elements of the amendments that we're bringing forward, but the timing didn't allow for that. The last thing we would want to do is refuse an appearance when invited by the committee. I recognize that it's frustrating, but it comes from a space of respect for the role of the committee. One of the ways to do better together in the future is for us to come back and provide the technical briefing we've offered.

Mr. Levitt: So your response to my question of whether something was broken or dysfunctional was that over the last year or year and a half since you received the amendments and the will of the committee, a lot of time has gone into looking at it and reviewing it, but the problem is that that is not actually actioning it. It's not spending time in reviewing that actually achieves some level of success or definitive action on what was asked. It's actually carrying out the recommendations and the amendments. That I think — and this is not really a question — is the problem. A lot of time can be spent going around and figuring out ways to respond and how to respond, but the success has to be measured in concrete actions taken to implement the will of the committee.

The Joint Chair (Mr. Albrecht): Any response? That's a statement, so you don't need to respond.

Mr. Nadler: Sure. Thank you, Mr. Chair.

The Joint Chair (Mr. Albrecht): Do any other committee members want to give input? We need to proceed as quickly as possible, committee members.

The Joint Chair (Senator Day): I'm trying to focus on what counsel will be thinking after this meeting is over. Will they be anticipating something back from Parks Canada? Our briefing note indicates there are eight issues raised on two files that are outstanding. I hear you say that you can't discuss specifics until you've cleared it with the minister and then with Treasury Board. Can we, as a committee, be assured that you are aware of the issues after these many years of raising them? And if you are not in a position to act on a particular issue that we've raised here — there are eight — could we hear from you as to why you can't act on those particular issues?

Ms. Grasham: I would just point back to my earlier comments. We took every single one of the committee's recommendations and did a deep dive. We spoke with people across the agency, such as Dave, who have practical, on-the-ground experience in managing the parks according to the minister's responsibility under the act for ecological integrity and to maintain public health and safety for the visiting public. We have taken that in. We have a package of amendments that is with the Department of Justice drafters currently. Every day I call or email to say, "Are we going to get it?" It is coming, and then we seek the minister's approval. Then we need to have Treasury Board approval before the amendments can be gazetted in the Canada Gazette. At that point, we will have, I hope, a package of amendments that will certainly go a long way in addressing the concerns of the committee.

I think, as Michael said, we would be happy to come and do a technical briefing, and it will be up to the committee to determine whether you feel that we have met your needs or your recommendations.

The Joint Chair (Senator Day): Thank you.

Just to finish up, I don't want you to go silent on us. With your predecessors, we had six different correspondents that we heard nothing from, and we don't want that to happen again. We want to know that you've considered all of our recommendations, you're able to act on these, you're not able to act on those, and why.

Mr. Nadler: Understood. Nor do we want to go silent. It's why we appeared today, even though we knew we would not be able to speak in detail. We wanted to be responsive to the committee and not to be silent but to be available.

The Joint Chair (Mr. Albrecht): Just to try to pull this together, in your notes you indicated that many of the issues would be dealt with in 2018. We're approaching the end of 2018. Is it reasonable for us to request from you a detailed response to our counsel by mid-December, at the very latest, that indicates progress or lack thereof so that this can be brought back to our committee so we can be informed as to what the progress is or is not and then take action accordingly?

As I pointed out earlier, we have tools at our disposal, including tabling a report in Parliament which might draw more attention to it and get the department — I'm not pointing fingers at any one person — moving in a direction that will get some action, as Mr. Levitt and others have pointed out. Is mid-December realistic for a substantive response? I don't know in members are comfortable leaving it that long. Maybe you want it earlier. I just pulled that number out of the air.

Mr. Nadler: I probably should have come prepared with the calendar of Treasury Board meetings. I don't know when the last Treasury Board meeting is in December, I regret. We do have steps to go through that we don't control.

The Joint Chair (Mr. Albrecht): Understood.

Mr. Nadler: The only thing I want to make sure that all of you have understood is that absolutely we can provide something in December. I don't want you to get the impression that if we have not completed the steps that are beyond our control, including Treasury Board approval, that is in some way ignoring the committee's recommendations. It's simply that we haven't been able to pass that last step.

The Joint Chair (Mr. Albrecht): I've laid out one potential scenario for moving forward. Other committee members may wish to suggest another approach.

I think we'll expect a substantive response by December 15 outlining progress and when Treasury Board is next expected to meet and what the expectations are on those approvals. I know you don't control that, but at least if we knew when they were planning to meet, it would give us, not false hope, but hope.

Mr. Scarpaleggia: In terms of the date, if tradition holds, we'll probably rise before Friday, December 14, which means that even if the officials respond by that date, we won't be dealing with this again until February.

The Joint Chair (Mr. Albrecht): December 1?

Mr. Scarpaleggia: I think so.

The Joint Chair (Mr. Albrecht): I'm good with that. Is everyone agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): I know we're putting some pressure on you, Mr. Nadler, but we're hopeful you'll do your best to bring back a fulsome report.

The Joint Chair (Senator Day): We just want to know that you are working away at some of these issues behind the scenes .

The Joint Chair (Mr. Albrecht): Any further comments, committee members? Any questions, counsel? I want to make sure we have all the unanswered questions.

The committee has discussed at different times that we are not opposed in any way to having the department deal directly with counsel to resolve some of these issues before they come to this table. The more of that work done ahead of time, the more expeditious our work is. I want to encourage you to work together on that as well.

If there's something further, we'll dismiss our witnesses. Thank you very much. I know this hasn't been comfortable for any of us, but we do believe we'll make some progress.


(For text of documents, see Appendix C, p. 41C:1.)

The Joint Chair (Senator Day): We're at Item No. 3 on our agenda, "Letters To and From Ministers." I'll turn to counsel for guidance on this item.

Ms. Kirkby: There were two types of issues raised with respect to these regulations in February of 2005. The first concern is an ambiguity in the English version of section 5 of the regulations. In December of 2011, the Department of Justice agreed to amend this provision "at the earliest opportunity." In October of 2017, the Minister of Justice advised that she anticipated bringing forward an amendment for approval by late 2017 or early 2018. In June of this year, the department advised that a Miscellaneous Amendment Regulations package would be brought forward in fall of this year to amend various regulations, including this one, but to date this amendment has not been made.

The other type of issue raised relates to the vagueness of certain terms used in the regulations, specifically, "variant" and "commonly available." There have been various consultations on this point over the years, and most recently the Minister of Public Safety advised that he would seek the advice of the Canadian Firearms Advisory Committee at their meeting in May of 2018, so an update could be sought on whether the intent is now to clarify the meaning of those terms in the regulations.

The Joint Chair (Mr. Albrecht): I'm assuming from the response of counsel that there has been no follow-up communication since May of 2018, after they met with the firearms group?

Ms. Kirkby: We have not heard back on that, no.

The Joint Chair (Senator Day): How long do we keep chasing these people?

Ms. Kirkby: It's been going on for quite a while.

The Joint Chair (Senator Day): Based on our earlier discussions on various courses of action, what would you recommend in relation to this file?

Ms. Kirkby: The amendment is likely imminent. We could certainly write again and check to see if it is going to be done this fall. It's just barely fall now.

On the other point, I would probably be inclined to seek the update and see if the amendments will be made. There have been several consultations they've done on this over the years and they don't seem terribly receptive to amending the regulations, but perhaps the outcome of this particular advisory committee will have been in our favour.

The Joint Chair (Senator Day): Is that a satisfactory approach? We will keep an eye on this file, and if there is no progress it will be back before us again.

The Joint Chair (Mr. Albrecht): Mr. Chair, because you and I, as joint chairs, wrote in November of 2017, at the very least we need to heighten the demands in terms of the committee follow-up after the Canadian Firearms Advisory Committee. The committee met in May; here we are in October with no further updates. There is the other matter to have clarified at the same time, but ask in writing that they respond by December 1, using Mr. Scarpaleggia's date.

The Joint Chair (Senator Day): We're pre-empting Christmas, are we?

Ms. Romanado: I was going to ask the same question as Senator Day. A few weeks back, we passed a standard operating procedure in terms of escalation, so based on what we've done already, what would be the natural next step in terms of escalating?

The Joint Chair (Senator Day): We're hoping in the future that we'll get into that habit of saying, "We've done this, this and this, and according to our standard procedures, this would be the normal step," unless you view it otherwise.

We'll hear from counsel first.

Ms. Kirkby: I'm checking. I believe we had witnesses on this already. I suppose tabling a report is one option.

The Joint Chair (Senator Day): It has been suggested in this instance that we go to December 1 to hear back from them and determine where we are with respect to these matters. Obviously, we're going to have to take other steps if there's not a satisfactory reply.

The Joint Chair (Mr. Albrecht): I still think they're mutually exclusive. The letter could say that if a substantive response isn't received by December 1, we will consider tabling a report in Parliament.

Mr. Sidhu: I think December 1 is really pushing it. Going forward, with Christmas and a lot of staff being away on holidays, I would say February 1. Either they come up with these changes or they appear in front of the committee. That's my recommendation.

The Joint Chair (Senator Day): Any other comments in that regard? Give them a little more time, but take Mr. Albrecht's suggestion and put in the letter that we're expecting some action or we'll ask them to appear.

The Joint Chair (Mr. Albrecht): Actually, I said table a report.

The Joint Chair (Senator Day): I was just focusing on the fact that we put something else in the letter that lets them know that this is not just the usual correspondence of every six years or so.

Mr. Ehsassi: I think the remedy would be to table a report, the reason being I find it quite frustrating that people appear before this committee but provide absolutely no details. You would expect that when we're asking someone to appear before this committee that they would go over the details with their officials and with their lawyers. Just appearing here and not being responsive to any of the questions is quite a frustrating exercise. I would say tabling a report is the better remedy.

The Joint Chair (Senator Day): If we haven't received satisfactory advancement by what date? December 1 or February 1? What's your pleasure?

Mr. Ehsassi: According to what we've heard in the remarks, they are shooting to have these amendments by late December. I heard that. So maybe we should provide January 15 or February 1.

The Joint Chair (Senator Day): Is there a consensus on February 1?

Ms. Romanado: He was referring to the Parks Canada presentation today, not the firearms one.

Mr. Ehsassi: I defer to my learned colleague.

The Joint Chair (Mr. Albrecht): I thought that's why he said "shooting for."

The Joint Chair (Senator Day): So let's deal with the firearms regulation issue. Two dates have been put on the table, as well as a suggestion that, in the letter back from us, we make reference to the fact that we will be tabling a report if we haven't received a satisfactory reply.

Ms. Kirkby: In terms of committee's meeting schedule, if we use the December timeline, it's unlikely to be presented to committee until February anyway. It might make sense to give a slightly longer timeline and then we can bring it back first thing in the new year.

The Joint Chair (Senator Day): Can you live with that?

The Joint Chair (Mr. Albrecht): Absolutely.


Senator Mégie: In the same vein, according to what our counsel tells us, with regard to the dates, in December it is pointless. I think this would exert more pressure, and they might tell us that we did not give them enough time. However, if we give them until February, it stands to reason that they would have time to provide the details.


Ms. Romanado: I just want to go back to the standard operating procedures on files. Maybe it would be helpful that every time we have an agenda item, we have in the summary an explanation what's been done to date, and, according to the standard operating procedures we have established at the committee, such and such would be the next step. Why? If we're going to apply those, we need to be consistent in the application of those.

Again, I don't know where we're at in terms of this whole file, if the next step would be to invite them back to get an update. Would it be to write to them again? Would it be to table a report? Because we're throwing out ideas, but I don't know what the exact next step would be in this case.

Ms. Kirkby: This is a slightly odd file. The chronology is in the notes. You can see that we have done a lot on this already. We've written multiple letters to the minister already. We did have witnesses at one point. So it doesn't fit neatly within the standard operating procedure.

Given that the last thing we heard from the Minister of Public Safety was that it would be discussed at the meeting, seeking an update on what happened at that meeting might be appropriate because, again, it might turn out in our favour.

The Joint Chair (Senator Day): The course of action we've agreed upon, then, is to ask the department for action by February 1, 2019, and if we're not satisfied, we will be considering the tabling of a report.

Mr. Scarpaleggia: The operative word there is "considering."

The Joint Chair (Senator Day): When we have our meeting in February, we'll know where we are. But we have to let them know what the possible consequences are.

All those in favour of that?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Carried. That's the approach we'll take.

To follow up on Ms. Romanado's point, I think each one of these is a guideline and there has to be some discretion. There will be points raised by counsel that we might want to take into consideration to adjust what otherwise would be the step that we would take.


(For text of documents, see Appendix D, p. 41D:1.)

The Joint Chair (Senator Day): Next is Item No. 4, under the heading "Reply Unsatisfactory."

Ms. Kirkby: This is in relation to the Firearms Records Regulations (Classification). On their face, they impose a simple record-keeping requirement on the Registrar of Firearms, relying upon the authority in the Firearms Act to regulate "the keeping and destruction of records in relation to firearms."

The accompanying Regulatory Impact Analysis Statement, however, connected the regulations to situations in which "firearms classification redetermination decisions by the RCMP have far-reaching legal implications for law-abiding firearms owners." It is unclear how a simple record-keeping requirement could address such situations, unless the intent was that the information contained in the record would somehow override Criminal Code definitions and regulations related to firearms classification. But if that were the intent, it would exceed by far what is authorized by the enabling provision relied upon.

This point was raised with the Department of Public Safety in September 2014. The department has never provided an explanation that reconciles the gap between what the enabling provision authorizes and the harms the regulations purport to address.

In March 2017, the department referred the committee to its Forward Regulatory Plan for 2017-19, which "indicates an intention to repeal the Regulations." The committee considered this information and sought a more precise timeline for when the regulations would be repealed, since then there would be no ongoing concern as to whether they were authorized by the enabling act. The department's subsequent letters provided no additional information at all.

The repeal of the regulations remains on the Forward Regulatory Plan, but it is now the plan for 2018-20. There is nothing that prevents their appeal from being pushed back even further than that.

Mr. El-Khoury: What you're saying is frustrating — something repeated and repeated. What puzzled me at the end of this is that they said the department's latest response simply refers again to the FRP, which does not provide a more precise timeline or obligate the department to repeal the regulation by 2019.

I suggest either we write a strong letter asking them to repeal by 2019 or ask them to appear in front of the committee. If there is any other suggestion from counsel, I would like to hear it.

The Joint Chair (Mr. Albrecht): Request them to repeal by January 1, 2019?

Mr. El-Khoury: January or February. It depends on the committee. But it's from September 2014 until now. We are in 2018 and keep hearing the same thing.

The Joint Chair (Mr. Albrecht): However, the January 17, 2018, letter indicates that they plan to move forward with repealing in the Forward Regulatory Plan, 2017-19.

Mr. El-Khoury: Yes, but at the end, they said they have no obligation to repeal it by 2019. That's the dilemma.

Mr. Scarpaleggia: I have more of a technical question. Could you remind me how a regulation is repealed? What are the mechanics of that?

Ms. Kirkby: It's a similar process. They have to gazette it.

Mr. Scarpaleggia: That leads me to my next question. Do you think that there's still an intent to repeal but perhaps the department is waiting for when they will be making regulations in relation to Bill C-71? Do you think they want to do everything together?

Ms. Kirkby: It's certainly possible that that is their intent, yes.

Mr. Scarpaleggia: So maybe it's not bad faith or foot-dragging. Maybe they're saying that they're going to do all of this together when they do the regulations for Bill C-71. I'm just surmising. I don't really know.

Ms. Kirkby: They have already acknowledged that this is, at best, redundant. There's some concern that it's unauthorized, so I'm not certain why they would need to wait for other regulations.

The Joint Chair (Mr. Albrecht): The question would be: Does Bill C-71 make this more redundant? I think the answer is "no."

Mr. Scarpaleggia: It's more in terms of the mechanics. Is it easy to just repeal this? You have to gazette it, you were saying.

Ms. Kirkby: I think it should be easy.

Mr. Scarpaleggia: But you have to gazette.

Ms. Kirkby: Yes.

Mr. Scarpaleggia: Do you think they want to gazette everything together?

Ms. Kirkby: That's possible.

Mr. Scarpaleggia: I'm just trying to understand their thinking.

Ms. Kirkby: I don't know how long we would have to wait for that. Bill C-71 is still before Parliament, I understand. Presumably, the drafting of the regulations would follow, so that could push this back.

Mr. Scarpaleggia: Could we ask them that pointed question?

Ms. Kirkby: Yes.

The Joint Chair (Mr. Albrecht): It seems to me that we should be pointing out it's inappropriate if they're doing that. Their job is to follow the existing legislation, not what might come down the pipe two years or two weeks from now.

I find it inappropriate. I don't care what the legislation is. That's my opinion.

Mr. Scarpaleggia: I respect that, sir.

The Joint Chair (Senator Day): We're pleased that you share that with us on a regular basis.

The Joint Chair (Mr. Albrecht): I think we are agreed that at least another letter would be suggested and that we ask them to respond by sometime in January 2019.

Mr. El-Khoury: January or February. But it has to be a clear-cut message. We need an answer.

The Joint Chair (Mr. Albrecht): Counsel, is that helpful?

The Joint Chair (Senator Day): We did talk about the date of our meeting. The next meeting will be in early February, I presume.

Ms. Kirkby: What exactly would the letter —

The Joint Chair (Mr. Albrecht): I think Mr. El-Khoury was suggesting that we write a letter asking them to repeal this by January or February. Let's say that we expect this to be repealed by February 2019.

Mr. Scarpaleggia: Should we add that if it's not, we'd like the department to appear?

The Joint Chair (Mr. Albrecht): I think this is a case where disallowance is put into place.

Mr. Scarpaleggia: I remember the Minister of Public Safety being here and saying that he doesn't want to come back again. Maybe that's an added pressure point.

The Joint Chair (Mr. Albrecht): Are we generally agreed that we request the department to repeal this by February? Obviously, if it isn't repealed by February, we have a decision to make and multiple options on the table.

I think that's a motion. Any further discussion on the motion? All agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): It's passed.


(For text of documents, see Appendix E, p. 41E:1. )

The Joint Chair (Senator Day): Next on our agenda is Item No. 5 under the heading "Part Action Promised."

Shawn Abel, Counsel to the Committee: Ten issues were brought to the attention of the Department of Transport on this file. Amendments were promised to address six issues and part of one other issue, but it is unclear when the amendments will be forthcoming.

The last paragraph of the department's reply uses language that might suggest it will be some time before amendments are actually made. Further clarification about that should probably be sought.

This leaves four matters that need to be discussed in further detail, and I would direct members to the note prepared for today's meeting that goes over each point in detail.

Turning first to point 3, dealing with paragraph 7(7)(c), this provision requires that whitewater vests provided on excursions must have been approved by the U.S. Coast Guard for use in commercial whitewater activities. It was asked whether vests are in fact marked or labelled as having been approved by the U.S. Coast Guard, or whether there's a list of approved vests provided on the Internet. The department points towards a web page maintained by the U.S. Coast Guard, but this website does not provide a list of approved vests and is essentially unhelpful.

It's unclear if the U.S. Coast Guard actually approves vests specifically for whitewater activities. The Department of Transport's reply also did not indicate whether such vests would be marked or labelled as having been so approved.

The department could be contacted again to clarify these questions, while noting that if vests are not approved — or not labelled or otherwise somehow indicated as having been approved — it would seem that amendments of this provision would be necessary.

Next, point 5 deals with sections 10(1)(c) and 10(2), which require a guide in class 3 or above waters to have completed a certain number of excursions in those waters. It was asked what it means to complete an excursion. In particular, does that mean that one has to be acting as a guide when one goes on those excursions? If so, that would seem to present a chicken and egg problem. How does one complete excursions as a guide without being permitted to act as a guide on those excursions?

The department's reply merely states that before becoming a guide in class 3 or above waters, a person must have completed an excursion under the direct supervision of a guide. While this might be seen to suggest that a person could complete an excursion without being a guide themselves, it does raise additional questions. Does any passenger taking an excursion supervised by a guide qualify as completing an excursion? Would that meet that portion of the requirement for approaching the application for being a guide? Is some additional measure of training or supervision required? Does one have to be specifically taking an excursion as a guide in training, for example? Moreover, if, in order to become a guide, excursions must be completed under the direct supervision of another guide, why is that not stated in the regulations?

In short, further clarifications do seem to be necessary from the department.

Moving on to point 8, this deals with section 15, which prohibits any person from being allowed to board a vessel if there are reasonable grounds to believe that they are impaired to the extent that they would present a hazard. This provision seems to be worded in an open-ended way such that it does not identify who the responsibility belongs to. Who specifically must enforce this provision?

The department points to section 3 of the regulations. This section places a duty on "Every person in charge of an enterprise that engages in an excursion . . . ." and on a vessel's guide to ensure that certain provisions are followed, including section 15. So while this attaches responsibility to police a vessel for intoxication on these two persons, it still does not necessarily exclude other people. Does this responsibility to belong to everyone associated with an excursion or just to these people?

Members may feel, however, that reading sections 3 and 15 together make it reasonably clear that only persons mentioned in section 3 are intended to police the vessel. I would suggest there's not necessarily a fault in drafting here, just open-ended wording. Members could find the response satisfactory if they're so inclined.

Finally, point 10 deals with section 18(c). This is a recordkeeping requirement in which every person in charge of an enterprise that engages in an excursion must keep for three years records that include the contents of the safety briefing required by section 12. Section 12 sets out certain types of information that must be given to people taking an excursion, but it's mostly in the nature of contextual information and, as the department later confirmed, it is usually provided orally. So it was difficult to imagine that a record could contain the contents of a briefing that doesn't have any documents or anything else that would be recorded. It could be suggested to the department that the wording be changed in this provision to reflect more accurately that it would probably be a summary or some sort of description.

In summation, if the committee agrees, a further letter could be drafted to the department seeking a firmer commitment and a timeline on the already promised amendments, as well as further pursuing the points discussed in this note. I would need a decision from members, however, on whether point 8 should be considered satisfactory or not. As a reminder, that's simply whether persons should police intoxication on vessels, whether it's limited to just the people listed in section 3 or if the open-ended wording might implicate other people. I need to know whether members feel they're satisfied with the department's response.

The Joint Chair (Senator Day): Comments? I understand counsel is recommending a letter back asking for clarification on the points that had not been referred to and a timeline for those points.

With respect to the intoxication, what direction do you need from this committee in relation to point 8?

Mr. Abel: Whether the committee finds the department's response satisfactory or not. It has provided an explanation that section 3 points to who should be policing a vessel, although section 15 itself doesn't name a person. If the committee is satisfied that reading those together is clear enough, then the response could be considered satisfactory.

The Joint Chair (Mr. Albrecht): I would suggest that we leave section 8 satisfactory and proceed with letters on the other three outstanding points.

The Joint Chair (Senator Day): As has been recommended by counsel.

Are we all in agreement in that regard, get some clarification on some of the points and a timeline? All those in favour?

Hon. Members: Agreed.



(For text of documents, see Appendix F, p. 41F:1. )

The Joint Chair (Senator Day): Moving on to Item No. 6 under the heading "Reply Satisfactory."

Ms. Kirkby: Two issues were raised with respect to these orders, which exclude certain persons from the application of certain provisions of the Public Service Employment Act.

First, on the website of the consolidated regulations maintained by the Department of Justice, the orders were listed under the repealed Public Service Employment Act rather than the current one. This was brought to the attention of the Department of Justice and has now been fixed.

The second issue is more complicated and involves why these orders appear to be treated as statutory instruments. The Department of Justice's position, which the joint committee has never accepted, is that an enabling statute must identify a particular instrument in order to be a statutory instrument. So, for example, if the enabling power says someone can order something, there is no statutory instrument, but if the enabling power says that person can do that same thing by order, then there is.

The relevant enabling power for these orders does not identify a particular instrument by which the exclusions are to take place, and yet it appears that the department considered both to be statutory instruments. So the department was asked if its position had changed.

The department explained that its position has not changed and that these are in fact not statutory instruments but rather are "other documents" published and registered under the Statutory Instruments Act and regulations. The note provided to members sets out the relevant provisions, which all refer to any "statutory instrument or other document," conveying that these are indeed two distinct things.

The department advises that the exclusion approval orders are on a list established by the Clerk of the Privy Council of documents that the clerk believes are in the public interest to publish and they must then also be registered as a result.

These "other documents" are both registered using the prefix "SI," which seems confusing but appears to be permitted. This appears to be a satisfactory reply, confirming that the exclusion orders are not statutory instruments and that the department's position has not changed. But it may be of use to request access to the List of General Authorities to Publish established by the Clerk of the Privy Council in order to avoid future confusion in this respect.

The Joint Chair (Senator Day): Comments? Counsel is suggesting that this may be a satisfactory reply, but there is some follow-up to avoid any future problems.

Are we in agreement that counsel should take that step to clarify that point? All those in favour?

Hon. Members: Agreed.










(For text of documents, see Appendix G, p. 41G:1. )

The Joint Chair (Senator Day): Next is Item No. 7 under the heading "Progress?"

Mr. Abel: Several dozen amendments are under development to address the committee's concerns arising from the collection of oil and gas-related regulations listed under Item No. 7. All of these regulations are to be revised and consolidated into a single framework regulation under a project called the Frontier and Offshore Regulatory Renewal Initiative.

For some background on these files, the first phase of a regulatory renewal project was completed in December 2009, which made some amendments addressing the committee's concerns. Then the instruments listed under Item No. 8 on the agenda were made in 2009, and those were reviewed and new comments were provided to the department. This led the department to reassess its continuing approach on completing the work on these items. Ultimately this framework regulation discussed by the department was proposed, which will address all matters raised on all instruments.

The original target date for completion of the whole initiative was in 2012. In 2013 the department revised the project to take up to 2017. However, the project is now expected to take up to 2020 due to the interference of provincial and federal elections.

Despite several failures to meet expected deadlines, the department is dealing with a large regulatory renewal project that in this case, in particular, involves coordination with the Provinces of Newfoundland and Nova Scotia. There may be little the committee can do to expedite matters any quicker. If members wish, counsel will continue to seek periodic updates from the department and apprise the committee if there are any new developments.

The Joint Chair (Senator Day): Is that course of action satisfactory, or do we want to try to move them along more rapidly, which counsel indicates may well not be successful in any event? Shall we agree to follow counsel's continued monitoring? All those in favour?

Hon. Members: Agreed.




(For text of documents, see Appendix H, p. 41H:1. )

The Joint Chair (Senator Day): Next is Item No. 8 on our agenda.

Mr. Abel: Item No. 8 deals with more oil and gas-related regulations. Some 113 amendments were agreed to in connection with these three files. The same consolidation project to produce a framework regulation discussed under Item 7 also applies to these instruments.

As members just heard, the project is further delayed, possibly until 2020. If the committee wishes, these files will be bundled with those under Item No. 7 and followed up in the same manner.

The Joint Chair (Senator Day): Is it agreed we'll do that?

Hon. Members: Agreed.


(For text of documents, see Appendix I, p. 41I:1. )

The Joint Chair (Senator Day): The next item is Item No. 9.

Ms. Kirkby: This is under the heading "Action Taken," the Order Designating New Brunswick for the Purposes of the Criminal Interest Rate Provisions of the Criminal Code. It relates to payday loans, which, as explained in the Regulatory Impact Analysis Statement, often have cost of borrowing charges that exceed the 60 per cent criminal interest rate set out in the Criminal Code. This order designates New Brunswick so that the province can legislate and regulate the payday lending industry and the criminal rate does not apply.

The issue raised concerns whether the order was in force. The order says it comes into force at the same time as the relevant New Brunswick legislation governing payday loans, which was on January 1, 2018. But in May of 2018, the version of the order on the federal Justice website indicated it was not in force. This was brought to the attention of the federal Department of Justice and the website was corrected in June. This file can be closed.

The Joint Chair (Senator Day): This is good news. Are we all in agreement with that?

Hon. Members: Agreed.



(For text of document, see Appendix J, p. 41J:1.)

Ms. Kirkby: This instrument summarizes several issues that were raised with respect to the Regulations Amending the Broadcasting Distribution Regulations. In particular, the definitions of "religious programming service" and "adult programming service" have been added to the regulations, and some inconsistencies between the French and English versions were addressed.

This file and one other, SOR/2015-239, can be closed.

The Joint Chair (Senator Day): Is it agreed that the file be closed? Yes? Agreed.


(For text of document, see Appendix K, p. 41K:1.)

Ms. Kirkby: SOR/2017-13 changed the name of a chemical in the English version of the schedule to the Controlled Drugs and Substances Act, without changing the name in the French version. SOR/2018-70 corrects that error. Consequently, both files can be closed.

The Joint Chair (Senator Day): That file may also be closed.

Is it agreed? Yes. Agreed.



(For text of documents, see Appendix L, p. 41L:1. )

Mr. Abel: This instrument replaces the term "good character" in the Accounting for Imported Goods and Payment of Duties Regulations with objective criteria for the purposes of determining whether a person qualifies for a customs self-assessment authorization. This type of authorization gives importers, carriers and drivers certain privileges when crossing the border.

The joint committee objected to the vague and subjective nature of the term "good character." This issue was first raised in 2007. An agreement to replace this term was only reached after the committee informed the minister of the day of the matter in 2008. Even then amendments languished until the current Minister of Public Safety appeared before the committee in March of 2018. Three months later, in June of 2018, this instrument was enacted.

As a result, SOR/2005-383 has been closed. This file too raises no new concerns and may be closed.

The Joint Chair (Senator Day): That's a nice way to end this particular meeting. All those in favour?

Hon. Members: Agreed.

The Joint Chair (Senator Day): Thank you, counsel, for your guidance on these different matters. The next meeting will be on November 1. We will not be meeting next week.

(The committee adjourned.)

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