REGS Committee Meeting
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THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS
OTTAWA, Monday, February 13, 2023
The Standing Joint Committee for the Scrutiny of Regulations met with videoconference this day at 11 a.m. [ET] to elect a joint chair (House of Commons).
Senator Yuen Pau Woo (Joint Chair) in the chair.
Christine Holke, Joint Clerk of the Committee: Hello. I am the joint clerk for the House of Commons.
I will preside over the election of the joint chair for the House of Commons.
Pursuant to Standing Order 106(2), the joint chair for the House of Commons must be a member of the official opposition. I’m prepared now to receive motions for the position of joint chair for the House of Commons.
Mr. Allison: I nominate Dan Albas.
The Joint Clerk (Ms. Holke): Mr. Allison has nominated Mr. Dan Albas as the joint chair for the House of Commons.
Are there any more motions?
Is there anyone who disagrees with the motion that Mr. Dan Albas be collected House joint chair of the committee? Seeing no objection, I declare Mr. Albas duly elected joint chair of the committee.
Congratulations to Mr. Albas.
Mr. Dan Albas (Joint Chair) in the chair.
The Joint Chair (Mr. Albas): Thank you to all members of the committee. It is an honour for me to be at this table with all of you.
When I first came to Parliament Hill in 2011, this was the committee that I first worked on. I found it to be extremely helpful in terms of my lessons about how Parliament is intended to run — that we as parliamentarians delegate authority to certain departments, agencies, ministers and cabinet. In some cases, a whole host of different directives come out of here, but they must always honour what laws have been debated and duly voted on.
It is my pleasure to be here with you and to be a servant along with Senator Woo for the committee in its work. Thank you.
The Joint Chair (Senator Woo): Hello, everyone.
Welcome to the Standing Joint Committee on the Scrutiny of Regulations. I am your Senate joint chair. It’s a pleasure to meet once again. Those of you who were on the committee before will recall — or might not recall — that it has been eight months since we last met; June 13 was the date, to be precise. Therefore, let’s forego all the formalities and get right into the work, because the backlog is large and growing.
I haven’t had a chance to discuss with my joint chair the way in which we will conduct this meeting. Can I suggest you take over at some point, maybe halfway through the agenda?
The Joint Chair (Mr. Albas): Sure.
The Joint Chair (Senator Woo): Lovely. Let’s begin. In any case, chairing is simply a function of turning over to our legal counsel in most instances.
I’ll ask Ms. Dupuis to take us through the first item.
SOR/94-276 — CANADIAN FORCES SUPERANNUATION REGULATIONS – AMENDMENT
Tanya Dupuis, General Counsel for the Committee: The first item on the committee’s agenda today was considered by the committee at its meeting on May 16, 2022. That is why there is no new material to be disclosed to members today.
Let me remind you what happened at the meeting of May 16, 2022. Given the general lack of progress on the file, the committee adopted a motion to invite the Minister of National Defence to appear before the committee to discuss how the proposed amendments to the regulations could be made within a reasonable time frame.
It should be noted that this motion was a departure from the committee’s usual practice. The Senate joint clerks contacted the minister’s office in May and September to invite her to appear, but to no avail.
If the committee agrees, I now recommend that we follow the usual practice and ask the joint chairs to send the minister a letter through the committee secretariat to invite her to appear and to set a mutually agreeable date for her appearance. If there is no reply to the joint chairs’ letter, I will make sure the matter is brought to the attention of the committee and the joint chairs for further action.
The Joint Chair (Senator Woo): So the proposal, when we have the lack of response that we are encountering, is to essentially revert to the normal process, which is for the joint chairs to write to the minister to ask for her to appear. Ms. Dupuis mentioned that it should be as soon as possible or when she is available. We do have a bit of runway of meetings. We will try to get her in sooner rather than later.
Are there any comments?
Mr. Garon: Did the minister’s office give any reasons or was there simply no reply?
Ms. Dupuis: I did not make the invitation. It was the joint clerks of the Senate. I don’t know if —
Mr. Garon: If I may say something, I know that ministers have very busy schedules and so on. I am nonetheless very concerned that an independent parliamentary committee, which has a job to do, makes a request — according to the committee’s usual practices, and so forth, we followed the rules.
I am very concerned that we asked the minister to appear, very politely and correctly, and the minister decided on two occasions not to appear. She is above it. That is a great impediment to our work as parliamentarians.
I would like to suggest that this be pointed out, using the appropriate tone, when the joint chairs write their letter. I think that might be a good idea.
The Joint Chair (Senator Woo): Good suggestion. Are there any other comments?
Mr. Webber: I’m just going over my notes on this particular agenda item. It has been before this committee forever —
The Joint Chair (Senator Woo): Yes.
Mr. Webber: First in 1998, then 2001, 2007, 2011, 2012, 2013, 2016 and now May 16, 2022 — that was the last time, apparently, from what I’ve been told.
There are no documents provided here today for this item. So much time has passed since this was first introduced. Is it really relevant or timely anymore? With the time that has passed without any amendments, is it necessary? I would advise that the officials responsible for this amendment provide the committee with a letter to explain why it is still relevant or necessary after 25 years.
I suggest we first of all see if we can get the minister, which I highly doubt because of the time constraints there. So I would suggest that we just close the file.
The Joint Chair (Senator Woo): Let’s have some discussion on that. I’m going to ask Ms. Dupuis to give us a little bit more background. It’s true that this is a long-outstanding file.
My understanding is that one of the issues is that there is consideration to change the statutory instrument. If that happens, it will make the requirement for the regulatory amendments superfluous. That may or may not be a reason to close this file, but we have gone down a process where we have asked the minister to appear. My own sense is that we should follow through on it, but I welcome other comments.
Mr. Garrison: I couldn’t disagree more with Mr. Webber. Over those 25 years, numerous issues have come up about these regulations, so it’s not just one issue raised 25 years ago.
From my point of view, the most outstanding and urgent issue is that the regulations contained discrimination on the basis of age for superannuation — the so-called marriage-over-60 clause. I’m a good personal example. My partner and I were together for 22 years before we got married. I was over 60 when we married. Under these regulations, he would be disqualified from receiving my pension.
There are many, many Canadians who served in the Canadian Forces who may, for whatever reasons, have married after 60. Because of what I would say is quite a misogynistic regulation that implied women were somehow gold diggers in marrying older men, that still stands. Those who have lost their partners are not receiving a pension to which they would normally have been entitled. So from my point of view, this is an urgent issue in my constituency. I represent a very large military riding, and we have many examples of this in my own constituency. Thank you.
The Joint Chair (Senator Woo): Are there any other comments? Seeing none, we will proceed with the joint chair’s letter, and we will have the appropriate tone to induce the minister to appear. Thank you.
INTERIM ORDER NOS. 1 TO 11 RESPECTING MAIL, CARGO AND BAGGAGE (U2010-7)
(For text of documents, see Appendix A, p. 6A:1)
Geoff Hilton, Counsel to the Committee: This file deals with a series of consecutive interim orders made under the Aeronautics Act. Members may recall that the practice of making consecutive interim orders under this act was before the committee in the spring of 2022 — and not for the first time. Around the time that counsel first wrote to the Department of Transport concerning these orders in May 2011, correspondence was already under way in connection with the Private Operators Interim Orders under a separate file regarding the question of making consecutive interim orders. This question was pursued on that file and then subsequently in connection with other interim orders, such as the Interim Orders Respecting Flight Deck Occupants and Interim Orders Respecting the Use of Model Aircraft. These other orders were all before the committee in the spring. This series of orders before the committee now were permitted to expire in March 2012. They were not referenced in the ongoing correspondence that developed over the question of consecutive interim orders. As a consequence, this series of orders has never been placed before the committee.
In total, 11 interim orders relating to mail, cargo and baggage were made consecutively from November 8, 2010, to March 16, 2011. Order No. 11 was approved by the Governor-in-Council on March 25, 2011, for up to one year. Order No. 11 was also allowed to expire nearly one year later on March 16, 2012. Shortly after Order No. 11 was approved, counsel wrote to the department, noting that concerns had recently been raised in connection with the Private Operators Interim Orders regarding the making of consecutive interim orders under the act.
As mentioned, that matter has been pursued in connection with more recent files. Counsel also raised three other questions concerning these orders. Points 2 and 3 of counsel’s letter of May 12, 2011, raised concerns that have never been repeated in any interim orders made in later years and therefore could be considered satisfactory. Point 4 raised the possibility of a gap in effect between Order Nos. 5 and 6. The department’s letter of December 2, 2011, explained that by taking into account the Interpretation Act, there was no gap in application. This explanation may be considered satisfactory.
If members are satisfied, there is nothing to pursue on this file, and it could therefore be closed.
The Joint Chair (Senator Woo): Thank you, Mr. Hilton. Are there any comments or questions?
Seeing none, the file may be closed. Thank you. We will move to the next item.
INTERIM ORDER NOS. 1 TO 5 RESPECTING PASSENGER IDENTIFICATION AND BEHAVIOUR OBSERVATION (U2011-4)
(For text of documents, see Appendix B, p. 6B:1 )
Mr. Hilton: Once again, around the time that counsel wrote to the Department of Transport concerning these orders, correspondence was already under way in connection with other interim orders. The first issue raised here, concerning the practice of making consecutive interim orders under the act to the same effect, was pursued on other files. These current orders were consequently never put before the committee.
Five interim orders relating to the screening of air passengers were made consecutively from January 26 to March 14, 2011, following which Order No. 5 was approved by the Governor-in-Council on March 25, 2011, for up to one year. Provisions to the same effect were then added to the Canadian Aviation Security Regulations on March 15, 2012, by the amending regulation registered as SOR 2012-48. As a result, Order No. 5 ceased to have force and effect on that same date. In May 2011, counsel wrote to the department raising the matter of consecutive interim orders as well as five other questions.
Of note, point 2 of counsel’s letter questioned the citation of an immediate threat in the recommendation portion of these orders being the supposed circumstance to which the orders were responding. Publicly available information suggested that the measures put into place by these orders were in fact in development for some time.
The department’s reply of December 2, 2011, contended that was an accurate description despite the fact that the threat had apparently persisted for several years. Subsequently, however, interim orders enacted on other subjects have cited a different purpose; that is, of dealing with “a significant risk, direct or indirect, to aviation safety or the safety of the public.” This purpose was suggested in counsel’s letter as likely being more appropriate. This could be taken as a tacit agreement by the department.
Points 3 to 6 in counsel’s letter have some relevance to the provisions enacted by the replacement regulations and they will be pursued in connection with the review of those regulations. For members’ information, the provisions in the interim orders related generally to the operation of the interim order as well as the inclusion of some vague and subjective language. As such, there is no need to consider those points in detail today.
There is nothing further to pursue on this file, so if members agree, it could be closed.
Mr. Garrison: My only question is when we expect those replacement regulations to appear before the committee for consideration. Do we have a time frame?
Mr. Hilton: I can’t give you an exact time frame, but they will be presented in due course before the committee.
Mr. Garrison: Thank you.
The Joint Chair (Senator Woo): Any other comments or questions? Seeing none, the file is closed.
SOR/2020-54 — REGULATIONS MAINTAINING THE SAFETY OF PERSONS IN PORTS AND THE SEAWAY
(For text of documents, see Appendix C, p. 6C:1)
Mr. Hilton: In response to the onset of the COVID-19 pandemic, these regulations temporarily restricted the number of persons arriving by cruise ship at ports managed by port authorities, at public ports, at public port facilities and in the St. Lawrence Seaway, Port of Montreal and Lake Erie.
In April 2020, three issues were raised with the Department of Transport concerning the unnecessary usage of subjective language in connection with a decision-making power, a condition on the same decision-making power that did not appear to be properly drafted, as well as a minor oversight concerning the process for serving a notice of violation of the regulations.
Section 11 of the regulations provided that the regulations would automatically expire on June 30, 2020. However, it would have been possible to amend section 11 prior to that time in order to extend the application of the regulations.
The department’s response acknowledged that the regulations were set to expire at the end of June and committed to considering the committee’s concerns if the application of the regulations were extended or if they applied to any new emergency regulations.
However, the regulations indeed expired on June 30, 2020, thus rendering the issues raised moot. As of today’s date, no new regulations have been enacted containing the same provisions. If members agree, this file may be closed.
The Joint Chair (Senator Woo): Comments?
Mr. Davidson: I think in there they had the language, “It is of the opinion.” I wonder if they would maybe change that language to “determines,” or “concludes,” or something like that.
Mr. Hilton: They acknowledge that it was an issue they would look at if the regulations were to be renewed. However, because they were not renewed, the regulations were left to expire.
Mr. Davidson: So just close the file so they are done.
Mr. Hilton: Yes.
The Joint Chair (Senator Woo): Are there any other comments? Seeing none, the file is closed.
SOR/2003-2 — ON-ROAD VEHICLE AND ENGINE EMISSION REGULATIONS.
SOR/2005-149 — EXPORT AND IMPORT OF HAZARDOUS WASTE AND HAZARDOUS RECYCLABLE MATERIAL REGULATIONS
(For text of documents, see Appendix D, p. 6D:1)
Mr. Hilton: These two files concern two discrepancies identified by the committee between the French and English versions of the Canadian Environmental Protection Act, 1999.
The Department of the Environment agreed to amend subsection 153(1)(a) and paragraph 191(b) of the act in January 2009 and January 2006 respectively. These amendments were to be considered as part of the statutory review mandated by section 343 of the act.
The review was expected to begin in 2010, but was not undertaken by the House of Commons Standing Committee on Environment and Sustainable Development, also known as ENVI, until 2016. The joint chairs wrote to the chair of ENVI on June 2, 2016, to highlight these amendments for consideration. ENVI’s report number 8 was presented to the House of Commons on June 15, 2017, and included in its recommendation 87 that “discrepancies between the English and French version of . . . [the Act] be reconciled.”
In its two tabled responses to this report, the government agreed with recommendation 87. No such bill has yet been introduced to Parliament.
There is currently a bill before Parliament, Bill S-6, which has passed in the Senate and passed first reading in the House of Commons. Bill S-6 seeks to remedy many statutory deficiencies identified by the committee; however, these two amendments were not included in that bill. This leaves very little to say on these files. Correspondence has not been exchanged with the department on this matter for quite some time, so the next step could be to write again to the department to ask whether these statutory amendments are likely to be proposed to Parliament in the near future. Would that be the preference of members?
Mr. Davidson: When we’re dealing with environmental laws, the English and French have to be precise. People will only follow the law if it’s precise.
Has the Official Languages Commissioner had a look at this at all to wonder why the discrepancy was there? Should we ask the commissioner to have a look at this?
Mr. Hilton: Off the top of my head, I don’t know if the commissioner looked at it, but it’s something we can include in any subsequent letter.
Mr. Davidson: I wonder if my Bloc colleague has any comments, whether it should be looked at — it has to say the same thing — and why there is a discrepancy.
Mr. Garon: Once again, you will notice that I am repeating myself. There has been more than one opportunity to present the amendments in the House; it is not very complicated. I have been a member of this committee for nearly two years and it seems that we are being given the runaround. We can write a number of letters and then write more letters to remind them that sometime, when they have 15 minutes available on a Saturday afternoon, they could write to us. They don’t do it.
Essentially, the message that is being sent repeatedly is that we are not an important committee, that what we are sending them is of no importance and that they can forget about us, and if they do not do what they are supposed to do they will have many opportunities to do it, and ultimately we will be waiting 5, 10, 15, 20, 22 or 23 years in the case of certain documents.
In addition to what Mr. Davidson said, I think we have to find a strategy to be taken seriously because they could not care less about us.
Mr. Davidson: I wonder if it would be helpful to have the departmental officials in front of the committee to ask them about their non-responsive nature when we write them a letter. Bring them in.
The Joint Chair (Senator Woo): Are there any comments? I think our counsel mentioned that they have already expressed a desire to make the change. The question is why haven’t they done it, right? Okay. Comments?
Ms. Dupuis: If the committee is unsatisfied with the progress, you could escalate the matter and invite the officials to appear.
Mr. Davidson: That’s something I would be looking for.
Mr. Webber: Clearly, this hasn’t been a priority for the past government and for the existing Liberal government here right now. I do agree with the clerk. I think we should write a letter asking them to confirm whether this discrepancy still exists and move from there. Leave it at that.
Mr. Zuberi: I would suggest the same thing. That is, that we write a letter. At that point, if they continue not to respond, then call in the officials. If it’s a second notice, tell them that; spell it out. If we have to, then call the officials in.
The Joint Chair (Senator Woo): So you are proposing a two-step approach. The first letter does not, in fact, invite the officials, whereas our colleague on this side is suggesting we invite right away, I think. Is that correct?
Mr. Davidson: Yes. I’d like to see the officials. They’ve already been asked, haven’t they? This is a one strike you’re out, not a two-step, three-step program. I think we need to get the officials here and find out where the breakdown is.
Mr. Garon: To be clear, I think this can be done politely, in a civilized manner. These are not issues that we will be pulling our hair out over. When we look at the documents and the backlog of work, we can see that it is often not our fault, because for a long time deadlines were set, and then further deadlines, we have been patient and accommodating, and we have accumulated work for committees for the next 25 years. If we can speak in person at some point, that would give us a better understanding of the issue and allow us to send the message that we take it seriously.
I am in agreement about inviting public servants to the committee and doing everything by the book. What I see, however, is that a huge number of files have been dragging on for a long time, and as a parliamentarian I find that disturbing.
The Joint Chair (Senator Woo): Very well. Thank you, Mr. Garon.
The government has an instrument to make these small changes, and they chose it not to do it in the last annual regulatory modernization bill. Presumably, there will be another annual regulatory modernization bill coming up. This intervention may encourage them to put it in that bill, but I’m hearing a desire to have officials appear.
Is there any opposition to that suggestion? If not, I will instruct legal counsel to communicate with the department requesting their presence.
Let’s move on to item 6.
SOR/2008-197 — STORAGE TANK SYSTEMS FOR PETROLEUM PRODUCTS AND ALLIED PETROLEUM PRODUCTS REGULATIONS
(For text of documents, see Appendix E, p. 6E:1)
Mr. Hilton: The committee here is waiting on one final matter to be resolved concerning a discrepancy between the English and French versions of subsection 3(4) of the regulations. The French version requires that measures be taken to mitigate harmful effects on the environment and danger to human life or health in the event that petroleum is released into the environment, while the English version requires that steps be taken to minimize the harmful effect on the environment and danger to human life or health. The issue is such that something may mitigate or reduce a harmful effect without reducing that effect to a minimum.
The Department of the Environment previously explained that the wording in question is consistent with a related provision of the Canadian Environmental Protection Act 1999, paragraph 212(1)(b), but the committee suggested in response that rather than simply adopting the same defect into the regulations, it would be preferable to correct paragraph 212(1)(b) of the act and adopt the correct language into the regulations. The department agreed in August 2009 to take the committee’s concerns into account the next time the department proposed to amend the act. Over the ensuing years, there were a couple of instances where it was thought that the statutory amendments would be made, but nothing has yet come to fruition.
If members agree, based on what was decided in the last item, this file could be included in the letter to the department inviting witnesses to appear.
Mr. Webber: Done.
The Joint Chair (Senator Woo): Okay, good. Let me turn now to Mr. Albas to continue to chair the meeting.
The Joint Chair (Mr. Albas): Okay. Over to counsel, please.
SI/2018-77 — ORDER DESIGNATING THE MINISTER OF DEMOCRATIC INSTITUTIONS, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS THE RESPONSIBLE MINISTER FOR THE PURPOSES OF THE REFERENDUM ACT
SI/2018-78 — ORDER DESIGNATING THE MINISTER OF DEMOCRATIC INSTITUTIONS, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS THE RESPONSIBLE MINISTER FOR THE PURPOSES OF THE ELECTORAL BOUNDARIES READJUSTMENT SUSPENSION ACT, 1994
SI/2018-91 — ORDER DESIGNATING THE PRESIDENT OF THE QUEEN’S PRIVY COUNCIL FOR CANADA AS MINISTER FOR THE PURPOSES OF THE ACT
(For text of documents, see Appendix F, p. 6F:1)
Mr. Hilton: I have some good news for the committee. The Privy Council Office has agreed that the heading used in the Canada Gazette, Part II, for instruments not made under statutory authority, i.e., under the prerogative power, should be “Other than Statutory Authority” rather than the particular act the instrument relates to.
For your information, those orders were published in the Canada Gazette, Part II, under the heading of the act mentioned in each order’s title. Ordinarily, this would indicate that those orders were made under the authority of those acts. In reality, those orders were in fact made pursuant to the prerogative power; it would seem therefore that they should have instead appeared under the heading “Other than Statutory Authority”.
While there does not appear to be any legal requirement that an order’s heading in the Canada Gazette must refer to the authority under which it was made, the Privy Council Office was asked this question in the past and indicated that it agreed with the committee’s position. Further, on the Legislation website, the heading under which an order is published in the Canada Gazette is represented to the public as the order’s enabling authority. Copies of these Legislation website pages are attached to counsel’s letter dated October 16, 2019.
To avoid any potential confusion about the enabling authority for an order, the Privy Council Office was asked to ensure that future orders of this type are published under the heading “Other than Statutory Authority”.
In response, the Privy Council Office not only provided that assurance, but also confirmed that it had updated its internal procedures accordingly and had also informed the Canada Gazette of the committee’s position on the matter. In short, it appears that the Privy Council Office has taken the necessary steps to ensure that this does not happen again, but counsel will of course continue to monitor such orders in the future.
If the members are satisfied, these files can be closed for the time being.
The Joint Chair (Mr. Albas): It looks like the Privy Council Office has addressed some of the concerns raised by the committee. What would the committee like to do? Close the file?
Mr. Webber: It could be a ridiculous question, but when does the Queen’s Privy Council change to the King’s Privy Council? Is it after the coronation or when would that happen?
Mr. Hilton: I wouldn’t be entirely certain of that answer. When these orders were made, they were made in 2018, so it would be under the Queen’s Privy Council.
Mr. Webber: For curiosity’s sake, I would like to know when that will change and does that reflect at all with the order; I don’t know. I would agree to close.
The Joint Chair (Mr. Albas): Thank you, Mr. Webber. It is my understanding that it is almost instantaneous. That’s why you’ve seen many organizations change their name right away. Are there any further speakers?
Mr. Zuberi: I also received information that this might have already been changed, so the whole issue might be moot. That’s just for my staff members.
The Joint Chair (Mr. Albas): Okay, all right.
Mr. Hilton: This was raised and resolved with the Queen’s Privy Council.
The Joint Chair (Mr. Albas): Again, I think that is important. We’re not addressing the name change, but we are addressing what is in our agenda item here. Are we good to close the files? Are members of the committee agreed? Okay.
We’ll move on to the next one, please.
SI/2019-34 — ORDER FIXING THE DATE ON WHICH THE PRECLEARANCE ACT, 2016 COMES INTO FORCE AS THE DAY ON WHICH THE AGREEMENT ON LAND, RAIL, MARINE AND AIR TRANSPORT PRECLEARANCE BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA ENTERS INTO FORCE
(For text of documents, see Appendix G, p. 6G:1)
Mr. Hilton: This instrument purports to “fix” the date of coming into force of the Preclearance Act, 2016:
. . . as the date of entry into the force of the Agreement on Land, Rail, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States of America.
When this instrument was made on June 3, 2019, the agreement was not yet in force. The agreement was brought into force on August 15, 2019. Section 65 of the act states that the provisions of the act come into force on a day or days to be “fixed” by order of the Governor-in-Council. The joint committee has considered, as set out in Report No. 88, that the power to fix a coming-into-force date requires specifying a date that is known at the time the instrument fixing that date is made. It would follow that if the date of coming into force is not validly “fixed,” the instrument establishing that date would be invalid. Although the Department of Justice disagrees with the committee on this matter, the Minister of Justice agreed in a letter dated December 19, 2016, that an acceptable compromise would be for responsible departments to link a coming-into-force day to the day on which the order is made.
The minister of the day provided a commitment that her officials would continue to communicate the position of the joint committee to departments in the course of the examination of the coming-into-force orders. Counsel’s initial letter to the department therefore inquired whether the Department of Justice had shared the committee’s views and asked whether it would have been possible to specify a specific date for the coming into force of this act. The department confirms that the committee’s views were provided, but also states that fixing a date was not likely to be a viable option in this case. Counsel’s letter also asked further questions in an attempt to determine whether there would have been a practical alternative to the approach taken here. All of these questions were answered in a negative.
Ultimately, it appears that it was not possible for this order to specify, ahead of time, a precise date for the coming into force of the act. It thus seems that the department cannot be faulted. However, it remains the case that the validity of orders such as this one may still be under some doubt.
This is a general problem in how some coming-into-force provisions in statutes are drafted. Yet, given that the committee has engaged with the Department of Justice on this question, and that the Department of Justice continues to disagree with the committee’s views that a problem exists, there appears to be very few avenues to explore for any further solutions to this problem. On this particular file, there does not appear to be any further action to pursue.
This is perhaps not the most satisfactory result; however, if members agree, this file could be closed. Counsel will, of course, continue to take note of this issue if it arises again and will make the necessary inquiries to the responsible department.
Mr. Allison: Let me understand this. If the committee directs the bureaucracy to do something and they just say, “Hey, we don’t want to do it; we’re not interested?” That’s always the challenge I have. I thought we were elected to make these decisions, encourage and do whatever.
So I hear that you’re saying — that maybe we don’t have a great option, but it doesn’t sit well with me the following is just the answer: “By the way, you elected people, just go away. You’re bothering me right now.”
What more can we do? Do we have to haul every single minister or deputy minister before the committee every time they don’t respond? We look at this stuff; this is ongoing. This predates me being here by years and years, and yet the response appears to be the same over and over again: If they don’t like the answer, they just ignore us.
Mr. Hilton: The committee is not a court of law, so we can only ever engage in discussions with departments on such matters. We do get results, but it takes persistence, time and patience.
But the practice of making orders and such in this way has been reduced over the years; it’s not as big a problem as it has once been. The committee does get results.
Mr. Garon: I understand that counsel has indicated that the response is satisfactory, under the circumstances. The answer we got from my Conservative colleague reflects a culture of providing a non-answer, which I was referring to earlier. At a certain point, that becomes frustrating and when a minister is correct in thanking us for the work we have done, but we are wrong, we are inclined not to believe him anymore, because that is the way it always is.
We are not a court, but a committee that has special powers and, ultimately, the committee can repeal orders if we are not listened to — which has very rarely happened —, I think it has only ever happened four times.
It must be recognized that our committee has teeth, but I am not necessarily saying that we have to use them. Obviously, this is an exception, but I think we have all the necessary means to be taken seriously. If we are not being taken seriously by ministers, offices and departments at this time, it is because we have not decided that we should be taken seriously. My reaction to my colleague reflects that.
We are tired of this situation. When a minister answers that we are wrong, and that is true, we tend not to believe him. This is a problem that seems endemic to the committee.
The Joint Chair (Mr. Albas): I will offer a quick comment on this. It is better for everyone in Canada when people know the law and when a change to something as consequential as preclearance comes into effect. I’m glad that this committee, through counsel, have been impressing upon the need to put a fixed date. Again, a situation where you have a dynamic incorporation where you basically have to read the stars and the moon to see if it comes into effect is not good for the average Canadian who is just attempting to follow the rules.
We should continue to press those who make these orders to be clear so that Canadians know what the law is on the day they go for preclearance, et cetera.
It does appear that we can close the file. Is there any other discussion in regard to this? Are we satisfied? Okay.
I want to say, though, that I also acknowledge Mr. Garon’s point that the power of this allowance is here and is something we should bear in mind when we’re dealing with departments that seem obstinate. To Mr. Allison’s point, these issues sometimes feel like you’re moving inch by inch and not mile by mile.
Next up is item 9 on our agenda.
SOR/2020-55 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
(For text of documents, see Appendix H, p. 6H:1)
Mr. Hilton: These amending regulations were not published in the Canada Gazette within the timeframe required by the Statutory Instruments Act. A letter from the Privy Council Office dated July 9, 2020 states that, because of constraints owing to the COVID-19 pandemic, it was not possible to prepare these regulations for publication within the required timeframe. These regulations were instead published in the first edition of the Canada Gazette available after the required timeframe.
For your information, a regulation is not invalid because it was not published within the required timeframe. However, no person may be convicted of an offence for having contravened a provision amended by these regulations, absent certain conditions.
Finally, in its July 2020 letter, the Privy Council Office noted that the Canada Gazette had returned to normal operations.
If the members are satisfied, this file can be closed.
The Joint Chair (Mr. Albas): I’ll leave it to members of the committee.
Mr. Davidson: We can just close the file.
The Joint Chair (Mr. Albas): It is helpful when committee members give direction to counsel. I welcome any intervention to say “just do that.” Thank you.
We will move to item 10 under “Action Taken.”
SOR/2006-50 — CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION REGULATIONS
(For text of documents, see Appendix I, p. 6I:1)
Mr. Hilton: Parliament retroactively validated two regulatory provisions which were enacted in 2006 without sufficient enabling authority.
Since all of the issues have now been resolved, this file can be closed.
The Joint Chair (Mr. Albas): Senator Dean says we should close it. Would anyone else like to weigh in?
Mr. Webber: Thank you, counsel, for sticking with this. No one else deserves our help more than those who are in uniform and putting their lives on the line for Canadians. I’m glad that requiring retroactive legislation is finally resolved. Good job.
DORS/2014-173 — REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
(For text of documents, see Appendix J, p. 6J:1)
Mr. Hilton: These amending regulations designated a number of provisions of the Meat Inspection Act and the Meat Inspection Regulations, 1990, by adding them to Part 3 of Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
These designations allowed violations of those provisions to be sanctioned by way of an administrative monetary penalty rather than by prosecution. Seven concerns were raised as to how the designated provisions were described in Part 3 of Schedule 1, including discrepancies between the French and English versions and instances where the descriptions did not seem to reflect the actual nature of the designated provisions.
These matters were brought to the attention of the Canadian Food Inspection Agency in November 2016. The amendments made by SOR/2019-94 on April 4, 2019 replaced Part 3 to Schedule 1 in its entirety, thereby rendering all concerns moot.
There is nothing further to be done here. If the members are satisfied, this file can be closed.
The Joint Chair (Mr. Albas): Okay. It looks like there’s agreement to close the file. Thank you.
Moving on to item 12.
SOR/2018-79 — REGULATIONS AMENDING CERTAIN CANADIAN FOOD INSPECTION AGENCY REGULATIONS
(For text of documents, see Appendix K, p. 6K:1)
Mr. Hilton: These amending regulations include three amendments in response to the committee’s recommendation that health and safety information included on the label of a veterinary biologic should be required to be displayed in both official languages. This is now required pursuant to subsection 134(3) of the Health of Animals Regulations and subsection 15(1) of the Seeds Regulations.
These amending regulations do not raise any new issues. The file can therefore be closed.
Mr. Davidson: I just have a quick question. Was there a formatting issue? I looked at item 13, and there appears to be a formatting issue.
Mr. Hilton: This is item 12.
Mr. Davidson: Item 12, yes — but for 13 — I was reviewing it quickly — was there a formatting issue?
Mr. Hilton: Can you explain the formatting issue?
Mr. Davidson: Why was this file flagged? Was it for a formatting issue?
Mr. Hilton: We’ll get to item 13, but for item 12 there is just a provision in the regulations that said certain labelling requirements were not required to be mandatory in English and French. We corrected that in this file, that they be in both official languages.
Mr. Davidson: That’s fine.
The Joint Chair (Mr. Albas): Again, close the file is what is recommended.
Mr. Hilton: The necessary amendments have been made to correct the discrepancy.
The Joint Chair (Mr. Albas): I get the thumbs up from Mr. Garrison. If anyone has an issue, I assume they will raise their hand. I don’t see anyone. Mr. Atwin is thumbs up. We can move forward.
SOR/2018-253 — REGULATIONS AMENDING THE TEXTILE LABELLING AND ADVERTISING REGULATIONS
(For text of documents, see Appendix L, p. 6L:1)
Mr. Hilton: These amending regulations repeal or replace several provisions of the Textile Labelling and Advertising Regulations that were subject to a Notice of Disallowance issued by the committee on February 20, 2018. In connection with this notice, the committee considered that these now-replaced provisions, or portions thereof, were redundant, unnecessary, or unauthorized by the enabling act.
If the members are satisfied, this file can be closed.
The Joint Chair (Mr. Albas): Any comments? Close the file, says Mr. Davidson.
Mr. Davidson: Close the file. Number 13, my lucky number.
The Joint Chair (Mr. Albas): Anyone else have a different view? No?
Perhaps counsel could review in general, for members new to the committee, “Statutory Instruments Without Comment.” I don’t think you’re going to comment on each one. That’s why it’s “without comment.”
Mr. Hilton: My colleague Ms. Lévesque will do that.
SI/2018-89 — ORDER DESIGNATING THE PRESIDENT OF THE QUEEN’S PRIVY COUNCIL FOR CANADA AS THE MINISTER FOR THE PURPOSES OF THE ACT
SI/2018-90 — ORDER DESIGNATING THE PRESIDENT OF THE QUEEN’S PRIVY COUNCIL FOR CANADA AS THE MINISTER FOR THE PURPOSES OF SECTION 23 OF THE ACT
SI/2018-99 — ORDER AUTHORIZING CANADIANS TO ACCEPT AND WEAR THE NORTH ATLANTIC TREATY ORGANIZATION NON-SECTION 5 MEDAL FOR SERVICES RENDERED IN OPERATION SEA GUARDIAN
SI/2018-105 — ORDER DESIGNATING THE PRESIDENT OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS MINISTER RESPONSIBLE FOR THE ADMINISTRATION OF THAT ACT
SI/2018-106 — ORDER TRANSFERRING FROM THE DEPARTMENT OF INDUSTRY TO THE PRIVY COUNCIL OFFICE THE CONTROL AND SUPERVISION OF THAT PORTION OF THE FEDERAL PUBLIC SERVICE ADMINISTRATION IN THE DEPARTMENT OF INDUSTRY KNOWN AS THE INTERNAL TRADE DIRECTORATE
SI/2018-107 — ORDER TRANSFERRING FROM THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT TO THE MINISTER OF STATE FOR INDIAN AFFAIRS AND NORTHERN DEVELOPMENT THE POWERS, DUTIES AND FUNCTIONS UNDER CERTAIN ACTS
SI/2019-2 — ORDER IN COUNCIL (1) TERMINATING THE DELEGATION OF THE HONOURABLE JANE PHILPOTT; (2) DELEGATING THE HONOURABLE SEAMUS THOMAS HARRIS O’REGAN TO THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT; AND (3) DELEGATING THE HONOURABLE BERNADETTE JORDAN TO THE MINISTER OF INDUSTRY AND TO THE MINISTER OF INFRASTRUCTURE AND COMMUNITIES
SI/2019-22 — ORDER IN COUNCIL (1) REPEALING ORDER IN COUNCIL P.C. 2018-1200 DATED SEPTEMBER 25, 2018; (2) DESIGNATING THE MINISTER OF DEMOCRATIC INSTITUTIONS AS THE MINISTER TO WHOM THAT TERM APPLIES IN THE ACT
SI/2019-23 — ORDER (1) REPEALING ORDER IN COUNCIL P.C. 2018-1201 DATED SEPTEMBER 25, 2018; (2) MANDATING THE MINISTER OF DEMOCRATIC INSTITUTIONS TO ADMINISTER THE ACT
SI/2019-48 — ORDER FIXING THE DAY AFTER THIS ORDER IS MADE AS THE DAY ON WHICH SUBDIVISIONS A AND B OF DIVISION 7 OF PART 6 OF THAT ACT COME INTO FORCE
SI/2019-57 — ORDER DESIGNATING THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT AS THE APPROPRIATE MINISTER WITH RESPECT TO THE CANADIAN ACCESSIBILITY STANDARDS DEVELOPMENT ORGANIZATION FOR THE PURPOSES OF THIS ACT
SI/2019-59 — ORDER DESIGNATING THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS MINISTER RESPONSIBLE FOR THE ADMINISTRATION OF THAT ACT
SI/2019-60 — ORDER DESIGNATING THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS MINISTER RESPONSIBLE FOR THE ADMINISTRATION OF THAT ACT
SI/2019-61 — ORDER DESIGNATING THE MINISTER OF CITIZENSHIP AND IMMIGRATION AS THE FEDERAL MINISTER FOR THE PURPOSES OF THE TERM “MINISTER” IN THAT ACT
SI/2019-63 — ORDER DESIGNATING THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS MINISTER RESPONSIBLE FOR THE ADMINISTRATION OF THAT ACT
SI/2019-65 — ORDER DESIGNATING THE MINISTER OF NATURAL RESOURCES, A MEMBER OF THE QUEEN’S PRIVY COUNCIL FOR CANADA, AS THE MINISTER FOR THE PURPOSES OF TWO ACTS
SI/2019-68 — ORDER DESIGNATING THE PRIME MINISTER AS MINISTER RESPONSIBLE FOR THE ADMINISTRATION OF THIS ACT
SI/2019-69 — ORDER DESIGNATING THE PRIME MINISTER AS MINISTER RESPONSIBLE FOR THE APPLICATION OF THIS ACT
SI/2019-74 — ORDER TERMINATING THE DELEGATION OF THE HONOURABLE SEAMUS THOMAS HARRIS O’REGAN AND THE HONOURABLE DOMINIC LEBLANC
SI/2019-75 — TRANSFER OF DUTIES ORDER
Geneviève Lévesque, Counsel for the Committee: These 20 statutory instruments have been reviewed by counsel for the committee and have been deemed to meet all the joint committee’s criteria. If a member wishes to consult these statutory instruments, they may request a copy, but we consider that these files can be closed.
The Joint Chair (Mr. Albas): The recommendation has been made for all those files. Thumbs up again from members. That’s great.
I’d like to take a moment to thank my co-chair for all the work he has done thus far. I think we had a previous discussion where we said we hope we get to meet more often. I’m sure counsel has other files they would like to raise.
The Joint Chair (Senator Woo): March 6 is the proposal for the next meeting, which is the first Monday after break week. Mark your calendars.
The Joint Chair (Mr. Albas): Again, if members have questions for either the co-chairs or the clerks, they have our emails and contact information. Thank you.
(The committee adjourned.)