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OTTAWA, Monday, March 20, 2023

The Standing Joint Committee for the Scrutiny of Regulations met with videoconference this day at 11:07 a.m. [ET] for the review of Statutory Instruments; and, in camera, for consideration of a draft agenda (future business).

Mr. Dan Albas and Senator Yuen Pau Woo (Joint Chairs) in the chair.

The Joint Chair (Senator Woo): Colleagues, let me start by welcoming some new colleagues who are substituting. Mr. Godin and Mr. Dreeshen, welcome to our committee. Some of our colleagues online don't have the approved headphones. They are aware of the conditions around speaking, but we welcome them to participate nonetheless.

We have a full agenda today. We are starting with the appearance of a witness from Environment and Climate Change Canada, Mr. John Moffet, ADM, Evironmental Protection Branch. We thank you very much, Mr. Moffet. I understand you have some opening statements.

Mr. Garon, do you have a question?


Mr. Garon: Just to make sure I understand correctly: Do all participants here not have the regulated equipment as required by the House?


The Joint Chair (Senator Woo): That is correct. They will not be able to speak because the interpreters will not be able to manage. However, they are taking part by viewing the proceedings.

Mr. Garon: Okay.

The Joint Chair (Senator Woo): Mr. Moffet, the floor is yours.




(For text of documents, see Appendix A, p. 8A:1.)

John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: Joint Chairs and members of the committee, Environment and Climate Change Canada very much appreciates the work of this committee. Your reviews bring to light issues that are important to the rule of law. As public servants, and as one of the busiest regulators in the Government of Canada, we are interested in ensuring the integrity of our legislative framework.

I know it has been a long time that the committee has been recommending the particular changes outlined in your letter that you asked me to come and talk about, namely, discrepancies between the French and the English text in three of the provisions of CEPA. I want to reassure the committee that we keep track of all the issues raised by the committee. When the issue deals with legislation, we look at each new law reform initiative and consider the opportunity to address the issues that you've raised. We look for these opportunities not only in legislation brought forward by the minister but also in initiatives led by other ministers, such as the annual regulatory modernization bill or the miscellaneous statutes amendment bill.

However, as you know, officials advise on the content, priority and timing of statutory change but do not have the final say. That is up to the minister, cabinet, the house leaders and Parliament itself, ultimately.

I recognize, in particular, that you may be wondering why these three issues with respect to CEPA were not addressed in Bill S-5. In terms of its progress, although we had a small celebration last week after it left the House committee, I can't say that it's finished, but it's close to finished. That's a bill that amends CEPA and is now before the House of Commons right now for third reading.

The reason for that is straight forward. When Minister Wilkinson introduced Bill C-25, the previous version of Bill S-5 in the previous parliamentary session, and then again when Minister Guilbeault introduced Bill S-5 last year, they both explained that Bill S-5 includes only a subset of the total revisions to CEPA that are planned.

Bill S-5 focuses on two main topics that have been of particular interest to the public, Parliament and to the Standing Committee on Environment and Sustainable Development, and that is creating a right to a healthy environment and strengthening the foundation for the management of chemicals and other substances. The bill does not amend the parts in which these three provisions lie, so it does not amend the part of CEPA that addresses vehicles, pensions, fuels, hazardous waste or federal lands. As a result, we did not include changes to these particular provisions.

As both ministers said when they introduced the two bills, and as I have been on record in Parliament as saying, Bill S-5 is a first step; it is not the final bill that the government plans for amending CEPA, and the government plans to introduce additional amendments to CEPA. I am confident that these amendments will be included either in a future iteration of CEPA amendments or in a cross-cutting bill, such as, perhaps, a subsequent annual regulatory modernization bill, which would be led by Treasury Board, or a Department of Justice miscellaneous statutes amendment bill.

I am happy to answer any questions you might have.

The Joint Chair (Senator Woo): Thank you, Mr. Moffet. We will start with questions now.

Mr. Dreeshen: Thank you very much, Mr. Moffet. I'm honoured to be back here on Scrutiny of Regulations. This is where I started a number of years ago. I was also extremely impressed with the ability of our translators to be able to go back and forth between English and French, and actually make it right. It seems like they do a better job of it sometimes than the government does.

I just wanted to make that particular point.

Second, I have been on Environment and Natural Resources. I have been dealing Ministers Wilkinson and Guilbeault for quite some time. Of course, I have seen Bill C-25 and Bill S-5 — things that have been presented.

Right now, I think a lot of people are concerned that it doesn't seem as though we're getting it right here either. It's a little bit more than just the differences between the French and the English interpretations.

I got a little nervous when you mentioned there is more to come; that the government has new plans as to what we can expect in the future.

This is speculative, you might think, but right now, municipalities are getting massive amounts of money for things they have, through gas tax and so on. People who are buying cars and electric vehicles with the massive extra weight that is associated with them — we can go into the fact that it takes much more greenhouse gas to build an electric vehicle than it does an ICE vehicle, but that's just something that people have to get their head around as to where they want their greenhouse gas allocations to go.

But the concern I have is for municipalities, because if they do not have the fuel tax that then goes back to them, what types of regulations can we anticipate? Is it going to be the number of kilometres that one drives? Are you going to have to record that so that there can be some sort of assessment and a tax associated with it? How are we going to deal with that?

That's part of the concern that I have.

When you start to look at the consequences of electric vehicles — that's great as long as you are producing your electricity from something that does not have a large greenhouse gas footprint, such as nuclear or hydro, all of which do have a footprint but nobody wants to talk about it — I'm curious how it is that we will be able to make municipalities whole. What possibilities are there for government to say, “Hey, we now have to cover this off somehow, and we will do it via regulation”?

Mr. Zuberi: Are we speaking about the bill itself here or about the discrepancy in the languages?

The Joint Chair (Senator Woo): Mr. Dreeshen would like to respond to your question.

Mr. Dreeshen: I am responding to the points made by Mr. Moffet. The fact that there are — and he indicated — that we will have to look at this again through regulatory review, that is the rationale I have. I believe that does fit into the scope of what we're speaking about.

Again, as I mentioned earlier, it is making sure that departments can do as good a job as the Scrutiny of Regulations and the interpreters can for making sure the French and English match.

The Joint Chair (Senator Woo): I will invite Mr. Moffet to comment.

However, I would remind colleagues that is we are looking at a very particular question about ECCC not having followed through on a translation issue, the explanation that they have given and whether we accept that explanation.

Mr. Moffet, the floor is yours.

Mr. Moffet: Thanks for the question. I don't think I can comment on federal-provincial-municipal financial transfers, but let me first just say a couple of things with respect to possible future legislative amendments to CEPA itself. Minister Guilbeault has been on record saying that Bill S-5 is just a start. When additional amendments come forward will be determined by the government as well as what their content will be, but the types of amendments have been discussed publicly for over a decade. If they include amendments to these parts of CEPA, then we would be committed to rectifying the French-English concordance.

In terms of additional regulations, the department, like every department, publishes a two-year rolling plan of prospective regulations. You can see that in our forward regulatory plan, regarding which the most current version is due to come out any week now, which will cover the next two years.

The Joint Chair (Senator Woo): Thank you, Mr. Moffet.


Mr. Godin: I'm glad to see you, Mr. Moffet. We've already had the opportunity to work together on Bill C-69 when I sat on the Standing Committee on Environment and Sustainable Development.

Today, I would like to remind you that it is the International Day of La Francophonie. Today is a good day for me to be sitting here at committee.

You said over a decade ago that the English and French versions are inconsistent. You talked about process. Now, can you answer to the francophones and anglophones adversely affected by the act and regulations being inconsistent? How would you explain this to Canadians today?

Unfortunately, the French version is often the one affected. It's very unfortunate, but that's the reality, and we’re in a constant battle to stop the decline of French and to protect and promote both official languages — on the Standing Committee on Official Languages, we're working to modernize the Official Languages Act.

That being said, Canadians are trying to figure out three regulations. In the first, the English version uses “vehicule engine and equipment,” while the French version uses “véhicule.” I will do a brief overview. The second set of regulations, which governs the import and export of hazardous waste and hazardous recyclable materials, refers to a procedure. I'll read you the English version to make it easier to understand: “the procedure to apply for a permit allowed under this division.” The French version refers only to permit applications: “demandes de permis.”

In paragraph 212(1)(b) of the third document of the set of regulations, “minimize” is used in the English version, while “atténuer” is used in the French version. They just don't mean the same thing. Therefore, Mr. Moffet, how are people to make heads or tails of regulations when the English and French versions are inconsistent? How can the rules and procedures be enforced? I don't understand how it took over a decade to straighten out something so absurd that should have been done automatically. Mr. Moffet, how can the process be sped up to respect Canada's two official languages — English and French?

Let's not forget that that our Prime Minister chose a Governor General who is bilingual, but doesn't speak French. It's important that Mr. Moffet answer for this absurdity. How are we to improve procedures, because we're all wasting our time here; it's been over a decade and when it comes to interpreting regulations, I feel it's important we get some clarity on this.


The Joint Chair (Senator Woo): Thank you, Mr. Godin. We will have a chance as a committee to discuss next steps, but let's hear from Mr. Moffet before we do that.

Mr. Moffet: I don't think I'm here to excuse the differences. We have acknowledged that there are differences in the language. I would say, however, that these are not regulations. They do not prescribe anything. These are authorities, and they create authorities to regulate. The government has actually developed regulations under each of these provisions. The difference is that in the authorities in the languages, in the French and English, have not precluded the government from being able to develop regulations, none of which have been challenged.

I acknowledge that the discrepancy needs to be addressed in terms of the decisions about legislation. The passage of legislation through Parliament is a matter for the government, for the house leader, and ultimately for Parliament. I apologize, but our role is to identify — well, to do our best when drafting legislation, together with our colleagues in the Department of Justice, and then if there is an issue that this committee raises, to either explain the issue or acknowledge the issue and then seek an opportunity to address the issue.


Mr. Godin: You responded that it's Parliament's job to pass legislation and you're absolutely right. I believe I clearly asked how the process could be improved, because this absurdity has gone on for over a decade. I'm not trying to point fingers, but I want to find a way to respect francophone and anglophone Canadians, to ensure that there's no room for interpretation. Laws are there to be enforced and to limit interpretation as much as possible; there will be room for interpretation even in the full versions. What can we do to — it's more like, as assistant deputy minister, how can you help us be better and enforce the law to ensure that French and English have equal standing in our legislation and regulations?


Mr. Moffet: First of all, there is a very detailed process that the Department of Justice follows in drafting legislation that includes a final jurilingual review of all legislation, which is undertaken to minimize or, ideally, avoid completely these kinds of discrepancies. It may be of interest to this committee to have a discussion with the Department of Justice, including its jurilingual process.

As I indicated in my presentation, in the last few years, the government has introduced two types of cross-cutting bills to try to amend minor issues that have arisen in multiple statutes, recognizing that it can be challenging, particularly in a minority Parliament context, to introduce amendments to specific legislation. The Treasury Board leads one process and the Department of Justice leads another process. It may be of interest to this committee to inquire further into the scope of those processes.

The Joint Chair (Senator Woo): Thank you, Mr. Moffet.


Mr. Garon: Thank you, Mr. Moffet, for being with us today. We appreciate it. It's very important that all legislation and regulations be written in both official languages and that both versions mean exactly the same thing. I will start by saying that I don't accept your explanation that some of these provisions create regulatory authorities. That hasn't stopped the government from establishing other regulations to make up for poorly written ones. We are a G7 country, and you're appearing before us today and saying it's somewhat to be expected that something was poorly written, that it doesn't say the same thing in both languages, that it's not been corrected for nearly a decade and that that isn't so bad.

Listen, I'll say it here before the committee, I say it to others outside the committee, I feel we play an important role here on the Standing Joint Committee for the Scrutiny of Regulations. We have excellent legal counsel. Analyses are produced, we have proceedings and debates and we make connections in good faith with departments in an effort to communicate with them. Here we are nine years later with no amendments. So, don't be surprised — I heard my Conservative colleague expressing some frustration here — if we feel that the executive branch doesn't respect elected officials, Parliament, both chambers. That's the role of this committee, to rein in certain excesses or certain mistakes the executive branch might make.

You talked about Bill S-5, you said that it doesn't cover areas you've been telling us about for two, five or nine years. Therefore, this is not the time, and one day we will do it. You're telling us that at the outset, there was Mr. Wilkinson, then there was a change of ministers, and then Mr. Guilbeault, and so these amendments weren't made. I remind you that we've had three or four different governments since we asked for an amendment to the regulations that say environmental damage or environmental consequences must be kept to a minimum in one version and that we must do what we can in the other version. We can agree that they don't say the same thing. You talk about a two-year rolling plan. We've now reached nine years, five times that; two-year plans, but no amendments. The four-year regulation plan; we've now perhaps reached nine years, three times that, and it still hasn't been done.

I tell you, you send invitations to Environment and Climate Change Canada — what I'm saying is important because we are elected. This is my first term as an elected official and I'm deeply offended that we're sending letters to Environment and Climate Change Canada asking them kindly, courteously, politely and humanely to appear before us. Do you know what kind of response we get? Nothing, not even a call back, and we're told to be patient, that it will happen at some point, that they have a new minister, that they have a plan.

I ask you: What's the department's position on the requested amendments to the three statutes? Does the department agree with the committee, yes or no? Second, if so, when will the amendments requested by the committees be made? Third, and I'd say this is a little more about logistics, how you receive the committee's recommendations. How does the department receive letters from the Standing Joint Committee for the Scrutiny of Regulations? We feel we get treated somewhat like the third deputy secretary to the minister.

They will respond to you on a Post-it at some point when we have 10 minutes left on a Friday afternoon in our schedule. Why do we have a hard time getting answers to our questions when we ask politely? I will conclude with that, Mr. Chair, because I see that you are just as impatient as I am.

What it will take for the executive branch to understand that when a parliamentary committee calls them to appear, it's not really asking them, it's telling them?


The Joint Chair (Senator Woo): I'm not impatient. We'll take as much time as we need with Mr. Moffet. Please, if you would respond to Mr. Garon.

Mr. Moffet: Certainly. I want to be clear that I did not intend to say it is normal for legislation to be poorly drafted. Indeed, I think that our legislative drafters are held in high regard around the world. People come from many countries to be trained by our drafters.

I won't speak to your question about the minister. I don't represent the minister; I represent the department. I think it's very important, though, to understand the distinction between legislation and regulations. This committee deals with both and informs us of concerns about both. We take both kinds of recommendations seriously. Our ability to update and respond to regulatory changes is considerably easier than it is to amend legislation. Regulations still have to be approved by the Governor-in-Council and still require considerable justice expertise, but we develop and process numerous regulations every year.

The issue in front of the committee today is legislation. It's the statute. We don't amend statutes very frequently. The Canadian Environmental Protection Act, or CEPA, is a massive statute that essentially includes authorities for a wide range of issues. It's not one comprehensive statute dealing with one issue. It is a series of chapters, if you will, each dealing with separate issues. The most recent bill amending CEPA only amended some of those chapters — not all of them. Again, the determination of when the next set of amendments will come forward will be made by ministers and the house leader, not by officials.


Senator Dalphond: I agree with some of what's been said before, but I just want to add a little more context. I understand that the trouble with regulations stems from the ambiguity of wording in the applicable law and, therefore those drafting regulations have copied the act, and they must do that because if they depart from the law, they will be punished and blamed for it.

Also, I see that in the three differences in wording we have before us, in two out of three the French is better written and it reflects the intent of the legislator, as is reported to the department. I'm also pleased that French is not the second language in translation, but a standalone language that reflects the true intention of Parliament. To me, that's a huge improvement over the 1960s, when I would read federal legislation with a sometimes low-quality translation of the English.

However, Bill S-5 has been studied in committee. For years, your department received our committee reports saying that the act needed to be amended. Having been involved in the Senate committee's work on Bill S-5, I know how important the amendments are. However, it would have been easy to include, in the various provisions at the end of the bill before the coming into force provision, a note saying that the bill also amends the following provisions, and then we could have corrected that and no one would have asked many questions.

You were asked a question, you replied that the committee had recommended that be done, and everyone would have been happy. Why wasn't that done? Was it a political decision to not include it in the bill, or did they forget that this report was sitting on some committee's shelf and choose not to include it?

If it was a political decision to not include it, that is one answer, but I'd be concerned about that answer. If, on the other hand, the other answer is that no one thought of it, I'm also concerned about that.


Mr. Moffet: Thank you. Let me start by echoing your point about drafting. Drafting of legislation and regulations is not done sequentially. It used to be. It's done in parallel. It's actually a fascinating process to watch. There are two drafters and four screens. The drafting occurs literally simultaneously, and then there is talk, like, “I chose this word; you chose that word; does it work?” It's not always perfect, but that is the process. It's not drafting in French and then translating to English or vice versa.

To your question about the government introducing Bill S-5, which amended CEPA, one of the main considerations in expanding the bill to include miscellaneous amendments to address French-English concordance in CEPA outside of the provisions that were amended was the basic rule in Parliament — that if a bill amends a provision in an act, then that entire provision can be amended in Parliament. The government chose not to open up for discussion of amendments the vehicles, engines and equipment standard provisions, the hazardous waste provisions and the federal house provisions. I don't mean to suggest that there was a desire to hide any issues. The issues were not forgotten. These are broad, complicated sets of authorities. I think the decision was that if we're going to open up a discussion about what kind of authority the federal government should have over vehicles and engines, we need a comprehensive set of amendments rather than having the government introduce one and then having Parliament potentially not just look at the French-English issue but dive into the whole set of questions around vehicles, engines and equipment.

That was the main reason why we don't see in Bill S-5 amendments to some parts and then a handful of miscellaneous amendments reaching across the statute.

Senator Dalphond: I understand from what you said that the government decided not to include these miscellaneous provisions because behind these technical drafting changes, they see some fundamental issues or some issues of substance that they want to consider before coming back. For us, it's a problem of having two texts that don't say the same thing. What should be said in the future is something else.

Mr. Moffet: I understand. If there was a way to have a bill that only made these technical changes and that left the more substantive discussion for another process, I think that would expedite the government's ability to address this kind of issue and provide for a more timely response to the useful input of the committee.

When a bill is introduced focusing on one statute or one issue, then — as I said — the rule is that even if the intention is only to address French-English, as soon as you open up section 153, the House committee or the Senate committee can introduce any amendment they want addressing that provision.

Again, the government has introduced two different types of cross-cutting statutes. I don't know whether that's a satisfactory process or whether there are other options. However, my colleagues and I would welcome as much as you the opportunity to make these kinds of technical corrections in a rapid way that satisfies this committee.

The Joint Chair (Senator Woo): Mr. Moffet, you are suggesting that the miscellaneous statues authority or the ARMB process could be two channels by which these fixes can be made?

Mr. Moffet: I need to be careful because I'm not responsible for them. I'm saying those processes are there. To the extent that I can, I would urge you to talk to the departments responsible for those and look into the intended scope of those processes. Again, maybe they would work. We've tried and various approaches have been ruled not consistent with the scope. Maybe there is something else the government should be thinking about.

I know I'm sounding like I'm passing the buck here, but it wouldn't be for the Department of Environment and Climate Change to lead a government-wide initiative. That would be Treasury Board or the Department of Justice. We would be happy to participate.

Mr. Zuberi: I'm grateful that two out of the three — actually, the French is more accurate than the English with respect to the spirit of law.

I see in your biography that you have been teaching environmental law, so I'm sure you can confirm that either language has equal weight in law, be it regulation or be it legislation. Both have equal weight. If there is a discrepancy, lawyers can argue either the English or the French versions of the law to advance their cases.

I want to echo what Mr. Garon mentioned, namely, that it would have been appreciated if we simply didn't have to do this and that when we asked for updates on the regulations, they were forthcoming and within a reasonable delay. We appreciate you being here, obviously today, but we hope in the future that this will not have to repeat itself.

Mr. Moffet: I'm sorry; I don't understand.

Mr. Zuberi: There's not a major question there but more of a comment on the circumstances in which we find ourselves.


Mr. Garon: I have a certain admiration for Senator Dalphond's legal skills. His questions are excellent, and I'm curious to get some clarity on what my colleague said.

I understand that if we want to amend a small portion, one clause, we have to review the whole section and, therefore, we risk seeing unsolicited amendments introduced. As I understand it, the government tolerates errors in the official languages and that voluntarily leaves errors in legislation, because the government is afraid of a minority Parliament. As they fear a minority Parliament, and as the government refuses to accept that they haven't been elected with a majority and that a large majority of Canadians didn't vote for them, we're going to tolerate a law that says one thing in French and another in English.

I find your theory — because that's what it is — very interesting, which troubles me even more. That said, I agree with a big part of your analysis because it's complex; we can't review part of a chapter, we need to review the whole chapter.

I would agree with your analysis if the issue hadn't been there for a decade. There are people who voted in three federal elections and others who weren't yet eligible to vote when the process began. That was a long time ago, and at the time, when the regulations on environmental damage said in one version that the risks were to be kept to a minimum, while the other said we should do what we can, the government had a majority. It had had the opportunity to do so, there was no political risk.

This leads me to understand that, originally, the Liberal government didn't take this official languages issue seriously. It could do so without risk, but as a result of the election of a first minority government and a second, they wanted to avoid the democratic forum that is Parliament. When one loses one's majority, one has to live with Parliament.

Therefore, it troubles me that these official language errors are tolerated — they can be corrected, everybody makes mistakes — because a government does not want to face Parliament. It's one more transparency problem and one more accountability problem we're experiencing with this government. It's dragging on, because of all the redacted documents, the McKinsey issue and everything else. We have a government running away from Parliament. We have a Prime Minister who is almost never there in Parliament. That troubles me. Are you troubled by that too?


Mr. Moffet: That's a highly political question. I would just remind everyone on this committee that this bill was not introduced by the current government. It was introduced in 1999. You all know who the government was at that time. Various parties were represented in Parliament at that time and some still exist; some don't. This is not a product of this government and these kinds of issues persist on an infrequent basis; however, because of the need to have French-English concordance, this kind of issue does arise from time to time in many statutes.


Mr. Garon: Mr. Moffet, we're not talking about the original mistake in the text. We're talking about why the government failed to correct the error over the past nine years. Mistakes happen, and there may be reasons why they are not corrected; that's what I was referring to. I understand that you have your opinion on the subject.


The Joint Chair (Senator Woo): Are there any further comments? If not, I will ask Mr. Godin.


Mr. Godin: We're talking about a 1999 law, it's now 2023; it's been 24 years.

It's easy to say that it's been a long time, and that it got lost in the system, that can happen.

In 2016, the House of Commons Standing Committee on Environment and Sustainable, or ENVI, undertook a review of the legislation. The joint committee co-chairs then wrote to the ENVI committee chair on June 2, 2016, to bring to their attention the changes anticipated in these three files.

The ENVI committee's report was submitted on June 15, 2017. In it, in recommendation no. 87, the ENVI committee recommends that discrepancies between the English and French versions of the act be corrected.

What I have as information, Mr. Moffet, is that the government tabled its first response to the report in October 2017, followed by its final answer in June 2018, in which it accepted recommendation no. 87.

Are these facts accurate, Mr. Moffet?


Mr. Moffet: That's correct. Indeed.


Mr. Godin: In a complementary way, I'd like someone to help me to understand what the intent behind this is.

The people on the committee did the work, and departmental officials followed the people of the committee. Some recommendations were tabled, and this followed the usual process. They asked that the situation be corrected in 2016. A submission was made In 2017, and in 2018, the government responded that it agreed. Here we are in 2023 and nothing has changed.

What is the intent behind all this? Help us fix the problem because the law has been here for 24 years, and nothing has changed.

You said earlier that this didn't happen very often. If that's true, let's get back on track, realign and show respect for both official languages.


Mr. Moffet: I do think this is uncommon. This is not normal. Indeed, the government has thousands of pages of legislation, and I think there are few issues of non-concordance between the French and the English text.

I will go back to the explanation that I provided.

When the government decided to introduce a bill to amend CEPA, it decided to focus on two specific topics that, in and of themselves, were substantive and merited considerable attention. As those of you who followed Bill S-5 for the last 12 months know, just focusing on those two sets of amendments has resulted in — I can't remember the exact number — dozens of amendments in the Senate and the House, extensive discussion, and the bill is almost completed. Had the decision been to amend all of CEPA, I can imagine that the set of amendments would have been two or three times as long as Bill S-5 and the process would have been even more unwieldy.

That was the basis of the decision to focus the set of amendments that are contained in Bill S-5. There is no intention to ignore or to hide the fact that there are some minor French-English concordance issues. However, as I said earlier, we have successfully relied on these statutory authorities to develop regulations that are in effect, that have influenced behaviour and that have not been challenged.

The Joint Chair (Senator Woo): Seeing that there are no more questions, I want to thank Mr. Moffet for appearing before us today.

Mr. Moffet: Thank you.

The Joint Chair (Senator Woo): We will move on to other items in our agenda. Colleagues, we will come back to this file before we go in camera, but I would like to get through a few other items before we do that.

Mr. Hilton will take us through the next item.



(For text of documents, see Appendix B, p. 8B:1.)

Geoffrey Hilton, Counsel to the Committee: Thank you, Mr. Joint Chair.

This is item 2 on the agenda.

This is the first time the matter has come before the committee. The Department of Health has provided a response to the drafting issue raised that could be considered satisfactory. The French and English versions of paragraph 3(b) did not seem to match. However, the department believes that the two versions of the order are equivalent. The department also specified that all providers involved were reimbursed pursuant to the order.

Therefore, this matter regarding TR/2019-10 can be closed if committee members are satisfied with the explanation provided.


The Joint Chair (Senator Woo): Are we in agreement? All right. Let's move on to item 3.


(For text of documents, see Appendix C, p. 8C:1.)

Mr. Hilton: This file was before the committee in June of last year. At that time, it was the wish of members to seek confirmation from the Privy Council that future orders made under the current Preclearance Act, 2016 would be made using language from that enabling authority, rather than language found in the order's old enabling authority, the Preclearance Act of 1999. As a reminder, the use of outdated language in this current order had no effect on its validity, but as a matter of good drafting practice, it is always preferable for orders and regulations to reflect the language found in their current enabling authority.

In a letter dated July 11, 2022, the Privy Council confirms it will bring the concerns of the committee regarding the use of outdated language in this order to the “attention of the Legislative Services Branch” and that they will “take measures to address those concerns in any future Orders made under the Preclearance Act, 2016.” As of today's date, no further order has been made under the Preclearance Act, 2016, but counsel will, of course, review any future orders with the Privy Council's undertaking in mind. If members are satisfied, this file may be closed.

Mr. Dreeshen: I'm curious about the difference between the language of the 1999 act and the 2016 act. What was it specifically that they might be concerned about? You said, “outdated orders on language usage.” Do you have examples of that, or did you simply say, let's deal with stuff that is more current? I'm curious about the rationale.

Mr. Hilton: The designated ministers under this order were referenced as being “members of the Queen's Privy Council,” when the enabling authority said that a federal minister must be designated. The difference was between referencing the Queen's Privy Council and referencing them as being a federal minister. But there is no issue, because the ministers designated under this order are still federal ministers, as required by the act.

Mr. Dreeshen: As another aspect of this, I assume it is now the King's Privy Council. That is now the new wording and that wording would be such that you would have that available. Is that what is going to be said?

Mr. Hilton: The current enabling authority simply states, “The Governor in Council may, by order, designate a federal Minister as the Minister responsible for this Act.”

Mr. Dreeshen: Thank you.

Mr. Hilton: Any order subsequently made should cite the minister being designated as a federal minister.

Mr. Dreeshen: Thank you.

The Joint Chair (Senator Woo): Are we satisfied? Okay.

Mr. Hilton will walk us through the next two items.


(For text of documents, see Appendix D, p. 8A:1.)

Mr. Hilton: This order was repealed prior to its initial review. Upon review, a routine issue was identified that would have normally required the committee to write to the Privy Council. However, since this order is no longer in force, it may not be necessary to further pursue the matter, but for members' benefit, I will briefly explain the issue.

As its title suggests, this order designated certain departments to provide support to the Minister of Housing and Diversity and Inclusion. This minister is not one of the five ministerial positions specifically listed in the Salaries Act who would by default be entitled to departmental support. However, the act also provides that support may be provided to “three additional ministers.” This necessarily would have required counsel to confirm that the minister was contemplated as one of those three unnamed additional ministers entitled to support. But because this order has been repealed and thus no longer operational, this issue is essentially moot.

Counsel will, of course, continue to monitor these sorts of orders moving forward, but for now, this file may be closed.

The Joint Chair (Senator Woo): Noted. Let's move on to item 5.



(For text of documents, see Appendix E, p. 8E:1.)

Mr. Hilton: This matter last came before the committee on May 28, 2015. The three issues raised in 2010 by the joint committee have all been resolved. There were two discrepancies between the English and French versions of the regulations, and a drafting issue.

Therefore, this matter regarding DORS/2008-202 can be closed if committee members agree.


The Joint Chair (Senator Woo): We now have an opportunity to go back to the first item on our agenda. Before I invite comments, I would like to ask legal counsel to tell us the context of where we are and what possible actions and pathways we might consider.

Tanya Dupuis, General Counsel to the Committee: We would just ask the members what they would like to do with the file at this point. The committee could instruct legal counsel to ask the department to provide regular, proactive updates on the statutory amendments as they go through the legislative agenda. That could be an option. The committee may consider drafting a letter or asking the joint chairs to draft a letter to the minister. Or the committee could also instruct legal counsel to just monitor the file.

The Joint Chair (Mr. Albas): Could the committee write to the Minister of Environment, as this is obviously the lead agency, and then second to the Minister of Justice and president of the Treasury Board asking to find out who's on first to deal with this particular file? Mr. Moffet did lay out a number of options, and I think we should do a full-court press. Again, those are just my thoughts. Obviously, the joint chairs are here to do whatever the committee thinks.

The Joint Chair (Senator Woo): That is a very good point. Any comments on that? It's entirely possible, yes?

Ms. Dupuis: Yes, if it is the wish of the committee, we could definitely do that.

The Joint Chair (Senator Woo): Are there any comments from the committee?

Mr. Dreeshen: It sounds like a logical solution.

The Joint Chair (Senator Woo): I'm picking up from body language that we want to write to ministers, as Mr. Albas suggested. Our witness has opened the door to potential changes through two other channels other than ECCC. Let's proceed in that fashion.

We will now go to our last item, which will be in camera.

The Joint Chair (Mr. Albas): First, in order to proceed in camera, we will need someone to move the following motion:


It is moved:

That the committee proceed in camera;

that, notwithstanding usual practice, committee members' staff be permitted to remain in the room during the in camera portion of the meeting; and

That the committee allow the transcription of the in camera portion of today's meeting and that one copy be kept in the office of the senior counsel for consultation by committee members.


Mr. Chen so moves. All right. Colleagues, we will now go in camera.

(The committee continued in camera.)

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