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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 2 - Evidence

OTTAWA, Thursday March 29, 2001

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:33 a.m. for the purposes of examining statutory instruments.

Senator Céline Hervieux-Payette and Mr. Jim Pankiw (Joint Chairmen) presiding.


The Joint Chairman (Senator Hervieux-Payette): Good morning everyone. It is a pleasure for me to introduce to you Mr. Pankiw, our new Joint Chairman. If there are no objections, I will chair the first part of the meeting, and Mr. Pankiw, the second part. Occasionally, one of us may be absent and the other will have to preside over the proceedings.


We will look at the budget for the whole committee. It is an interesting item. The second item is informing you that there will be a conference in Australia. We will have more information later, but this is an important event in the topic with which we are involved. After that, we will proceed with our regular agenda.

I would ask someone to move the agenda?

Mr. Schmidt: I so move.

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.


The Joint Chairman (Senator Hervieux-Payette): Regarding the first item on the agenda, the draft budget, the clerk will give us some technical details as assembled by our experts.


Mr. Till Heyde, Joint Clerk of the Committee: The budget that you have before you is divided between the two chambers, as in the past, according to membership.


Thirty per cent of expenses are covered by the Senate, while the House of Commons picks up the tab for the remaining 70 per cent. The biggest expenditure is professional and other services, as noted on page 2. A total of $147,000 has been earmarked for the committee's legal advisers.


These are the legal counsel who are provided by the library, in addition to the two basic ones, and for which reimbursement is made by the committee afterwards. There is then $80,500 for administrative assistants who are provided by the Senate and for which the Senate is reimbursed by the committee. All the other items on the budget have been carried over from the current fiscal year from the original budget for 2000-01. It is a fairly tight budget, but it should be all right for basic operations such as printing, photocopying, mailings, muffins, and so on, for the next year.

The two salary items have been adjusted to reflect possible pay increases over the course of the next year. That is why there has been a slight increase from last year's budget in those items.

Mr. Wappel: It is over last year's budget. I have been looking to see if I can see last year's budget.

The Joint Clerk (Mr. Heyde): I will see if I can find it.

Mr. Wappel: Every time I am on this committee the first thing I request is a study on one piece of paper so that we can compare it to last year and I never get it. I do not understand it.

The Joint Chairman (Senator Hervieux-Payette): We have a new clerk who did not know about the question last year.

The Joint Clerk (Mr. Heyde): My apology, Mr. Wappel. The budget for last year is being handed around. The increase for legal counsel is from $141,300; and for the administrative assistants it is from $73,500. All the other items are just a carry-over from last year's budget.

Mr. Wappel: Without even looking at the figures, it looks to me like the administrative assistants are anticipated to get more of a raise than legal counsel?

The Joint Clerk (Mr. Heyde): The increase was granted by the Internal Economy Committee.

Mr. Wappel: That does not seem fair, with all due respect to the assistants.

The Joint Clerk (Mr. Heyde): Those rates reflect an increase that the Senate Internal Economy Committee granted in June or July of 2000. I am not sure of the specific date. There was a pay adjustment there. For the legal counsel from the library, I think it is still being negotiated.

Senator Bryden: Since I am relatively new to the committee, I must ask, administrative assistants to who?

Mr. François-R. Bernier, General Counsel to the Committee: To counsel.

Senator Bryden: Is there one assistant per counsel?

Mr. Bernier: No, per two counsel.

Senator Bryden: Thank you.


The Joint Chairman (Senator Hervieux-Payette): Are there any other questions? Would anyone care to move the adoption of the draft budget? Mr. Wappel so moves, seconded by Mr. Myers. Is everyone agreed?

Hon. Senators: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Item number 2 is the invitation to attend the International Conference on Regulations Reform, Management and Scrutiny of Legislation in Sydney, Australia from July 9 to 13, 2001. The clerk has a copy of the invitation. We will deal with the issue of whether or not to attend at the next meeting.

The Joint Clerk (Mr. Heyde): You have before you a document with the heading -


- "Regulation Review Committee, Parliament of New South Wales." You should have already received that in your office directly from the Parliament of New South Wales. We provided them with the updated list of members of the committee.


The translation of the invitation can be found on page 3.


It is a conference that will deal with international regulation reform management and scrutiny of legislation. The issue at this point is whether the committee wishes to consider participating.


The Joint Chairman (Senator Hervieux-Payette): Are there any questions or comments?


Ms Barnes: I notice that there is a significant increase in the registration rate after March 30, so we should take that into consideration if we are thinking about sending someone or a group of people.

The Joint Clerk (Mr. Heyde): That deadline has been pushed back, I have been advised, until the end of April. We would need budgetary approval from the two Houses before we could actually confirm participation.

Ms Barnes: I just did not want to waste that money.

The Joint Clerk (Mr. Heyde): We will try our best.

Mr. Wappel: I have been on this committee since April 1989. This committee has travelled twice. It travelled in 1989 to London, England, for a conference of all commonwealth countries with respect to scrutiny of regulations. It did not travel again until 1999, at which time it was invited to this conference, or its predecessor. We went to Sydney for a conference of the Pacific nations on the scrutiny of regulations. Our delegation was warmly welcomed, so warmly, in fact, that they asked us to host the next conference, for a number of reasons, not the least of which is that they respect our expertise in this area. Unfortunately, we were unable to get all of that organized with the election and everything.

I am a little confused. I have not read through the entire paper, so I am not 100 per cent sure, Mr. Bernier, what the differences are between what occurred in 1999 and what this conference is talking about.

The Joint Chairman (Senator Hervieux-Payette): I was there. It is a different crowd now, a world-wide crowd, not just a region. As far as I am concerned, the presentation that was done in Australia was of the highest quality. There were experts not just from the region but from international organizations as well. As far as I am concerned, it is up to this committee to decide if it has an interest. The development of regulations is something that is certainly a big trade around the world. With globalization, talking to other jurisdictions is certainly not a bad idea.

I shall leave that with you. I do not think we should make the decision today because we need to discuss it in more depth. I should like to move on to today's agenda, but let us take some time to think about that conference and try to decide next week whether there is any interest and, if so, prepare a budget and ask for the funds.

Mr. Myers: Madam co-chair, just to that point, I wonder if there is a formula as to who will be sent, how many members or staff, or is it open-ended?

The Joint Chairman (Senator Hervieux-Payette): We were five persons and two staff members with expertise.

Mr. Myers: That is the formula.

The Joint Chairman (Senator Hervieux-Payette): If the whole committee were to attend, we would end up on the front page of the Globe and Mail. If you are interested, you can address your comments to Mr. Pankiw or myself. I will speak with my colleagues in the Senate.

Senator Bryden: Will the conference always be held in Australia? The last one was in Australia.

Mr. Bernier: If I may, Madam Chairman, these are very different conferences. The conference in Australia in 1999 was a conference regarding parliamentary scrutiny of delegated legislation by parliamentary committees, which is the same as the commonwealth-wide one that took place in London. The conference we are speaking of today has to do with regulatory reform management and scrutiny of legislation in the broad sense, not scrutiny of delegated legislation. It is not tied, if you will, to the parliamentary scrutiny function. I take it that even though it is organized by a committee there it is meant as a separate exercise from the parliamentary conferences that have taken place in the past and to which this committee has sent people.

Senator Bryden: Is this in addition to an invitation from the parliamentary conference?

Mr. Bernier: With the commonwealth-wide conferences, the last one was in Zimbabwe. That is the one where, at some point, there was a desire to have Canada organize it. The timeline was too short.

Senator Bryden: When was that?

Mr. Bernier: They did hold it eventually, notwithstanding certain political difficulties down there. I think it met in 2000, last summer.

Senator Bryden: Are these annual events, then?

Mr. Bernier: No. The commonwealth-wide conferences have been held on an irregular basis. The idea originally was to have them every three years. They have been held every five. In fact, Zimbabwe 2000 was the first one since London. Perhaps there was one in New Zealand in between. The Australians, on their side, have always organized - first, it started as a conference of Australian delegated legislation committees, and then they broadened it to Pacific countries. This we have attended twice in total, once in 1987, I believe, and then again in 1999 as an observer delegation. Where the next commonwealth-wide one will be will depend very much on finding a host country.

Senator Bryden: This is the commonwealth-wide one?

Mr. Bernier: No, this is a third type of conference.

Senator Bryden: Would we be attending as observers again?

Mr. Bernier: No, because I think this one, as I say, deals with regulatory reform, which is a related subject but one not really directly connected to parliamentary scrutiny of delegated legisla tion..

Senator Bryden: If I can finish this, while it is true that the committee has only travelled twice in 10 years, the last time, 1999, two years ago, was also to Australia. We could not be travelling much further away and still be on the planet. Why go to Australia in July? Why not in January?

The Joint Chairman (Senator Hervieux-Payette): In Que bec, we never hear about people going south in the winter, but in the English media, it is not acceptable. You have to suffer.

Mr. Schmidt: The purpose of this conference seems to be quite different. I am very happy with the clarification. I think it would be wise for us as a committee to think about expanding our horizons a bit. If we are not going to make a decision today, we should consider exactly what the purpose is. I believe that the main purpose would be to expand the overall thinking of this committee to the perspective of the international rather than just the commonwealth group.

I strongly support going to this conference.

Ms Barnes: I take the senator's point about it being a long way away. I would like to suggest that, as this is parliamentary business, we consider using our travel points to cover airline tickets and hotel costs if the cost of registration is covered, which I believe is $650. That is American and not Australian dollars, so that is significant in itself.

The Joint Chairman (Senator Hervieux-Payette): That is a good suggestion and we will look into it. We will provide a breakdown of projected costs at the next meeting.

Mr. Lee: With regard to our budget, as colleagues know, we always have difficulty getting our budget through the Budget Subcommittee of the Liaison Committee. It has, from time to time, been insulting to staff. It is due to a lack of awareness on the subcommittee and the Liaison Committee of the statutory role we play and the costs we incur in order to carry out that role.

I suggest that we get off the mark early and provide a letter describing the committee's circumstances. The budget speaks for itself, but it has been said from time to time at the Liaison Committee that we take up too much of the committee's budget. We have been compared to the Finance Committee, the Justice Committee and the Foreign Affairs Committee, all of which consume large amounts of the House budget.

Our budget is not discretionary. We have to spend this money to fulfil our statutory role. That should be explained, which would help our chair in dealings before the budget subcommittee. I am sure that our clerk and counsel are capable of producing such a letter. That letter should be reusable in any discussion to be had with members of the House's Board of Internal Economy, including the Speaker. It should express a reasonable amount of indignation and be useful in a dialogue that will soon take place in which I will be involved.

I should like the committee to get a little in front of where the procedure normally takes us, which is fighting with our backs to the wall. The last time we went through the process, I believe the budget subcommittee gave us half the budget we requested.

The Joint Chairman (Senator Hervieux-Payette): Do you want to appoint a special adviser to our co-chair to negotiate the budget?

Mr. Lee: I am sure that we have the expertise here, and I will certainly work with the House chair to get the budget approved.

The Joint Chairman (Mr. Pankiw): When am I required to present the budget to the liaison committee?

Mr. Lee: You will probably get 36 hours notice.

The Joint Chairman (Mr. Pankiw): Are you anticipating that that notice will come soon?

Mr. Lee: Probably in the next week. They will not ask you to attend when the House is sitting. There will be a few days notice, and the clerk will definitely be ready to work with you on that.

The Joint Chairman (Mr. Pankiw): Mr. Lee's suggestion is a good one. If there is agreement, counsel should draft that as soon as possible.

Mr. Bernier: This is a letter to whom and from whom, Mr. Lee?

Mr. Lee: Perhaps it should be directed to the Chairman of the Liaison Committee. I believe that Bill Graham is now the elected chair of that committee. In the drafting, it should be taken into consideration that the letter would be usable in other places.

Mr. Wappel: Is the letter from the committee?

Mr. Lee: Yes, from the committee. I am seeking the support of all members to have the letter drafted.

Mr. Bernier: Would a briefing note setting out the information be appropriate?

Mr. Lee: I would suggest a briefing note attached to a cover letter directed to the Chairman of the Liaison Committee. I would like the Chairman of the Liaison Committee to acknowledge that he has the information. I would like to have a name on it rather than just a generic memorandum.

The Joint Chairman (Mr. Pankiw): Are you also suggesting, Mr. Lee, that the point be made that in the past they have not taken the budget of this committee seriously enough?

Mr. Lee: We have had the legs kicked out from under us. We are looking at a change in the procedure of how we fund this committee. In order to switch House budgets around, we might have to get the attention of some people.

Ms Barnes: I was a member of the Liaison Committee last year when Mr. Lee appeared to make his budget request. By that time, the Finance Committee had been given $750,000 of a total budget of $2 million for all the committees. After the Finance Committee has received its budget, the others are essentially fighting over scraps. This committee needs a lot of resources. There were a few people supportive of giving this committee more money, but the proposal was made too late and there was not enough information. Mr. Lee spent a lot of time last year with the co-chair from the Reform Party explaining what is done here. A briefing note circulated to all the members of the Liaison Committee in advance would do this committee a good service.

The Joint Chairman (Senator Hervieux-Payette): Do you want to do this in parallel with the draft budget that we are preparing for the approval of this committee next week? Is the procedure that you are talking about to be undertaken this week, or after the budget has been adopted here?

Mr. Lee: It should be done as part of and in tandem with the budget approval process in the House.

Mr. Wappel: Madam Chairman, I think that Mr. Lee is talking about our committee budget, not the travel budget.


Mr. Lanctôt: How will you go about selecting the members of the delegation?

The Joint Chairman (Senator Hervieux-Payette): Last time, the number of members wishing to attend corresponded to the number of available spots. The selection process was very easy. Of course, members have to be available to make the trip. If we have more people wanting to go than spaces available, then we will have to proceed according to the usual breakdown.

We will prepare the papers and I am submitting the budget at this morning's meeting. We can discuss the matter further at our next meeting. I would just like to say that when I traveled to Australia, I observed that Canada had a great deal to contribute to other countries. Given Canada's Commonwealth tradition, it is far more advanced than other countries in terms of the responsibi lities of parliamentarians in the regulatory field. Legislation in other countries is so general that laws are passed by regulation, which is not the case here in Canada. It is important for us to promote our system because it remains very difficult for our fellow Canadians who have settled for business purposes in other countries. Because the regulations and laws are so broad, they do not always understand how the system works compared to ours. We have much to contribute and I also think that we can learn from this experience.


(For text of documents, see Appendix p. 2A:1.)

The Joint Chairman (Senator Hervieux-Payette): We now move to consideration of statutory instruments, specifically the Indian Estates Regulations.


Mr. Bernier: Madam Chairman, in its sixth report, the joint committee stated its view that there is no authority for section 14 of the Indian estates regulations in the Indian Act. Briefly, section 14 purports to give the Minister of Indian Affairs the discretion to deem persons other than an intestate's widow to be the widow for purposes of the distribution of an estate.

The government response to that report, while it did not accept section 14 is illegal, undertook to suspend the practice of making deeming orders under section 14, pending legislative changes. The response also stated that in the interim the government would address the entitlement of common law spouses, "administratively in conformity with the Charter."

This last statement caused some concern on the part of the committee. The chairmen wrote again to the minister on June 13, 2000. In that letter, the chairmen pointed out that there was, of course, no entitlement of common law spouses under the legislation and asked for a full explanation of what the government meant by dealing with this matter administratively in accordance with the Charter. The minister's reply is before the committee. According to the minister, these words apparently meant nothing. That settles this issue.

As for the legislation designed to provide the lacking authority for section 14, it has been adopted as Chapter 12 of the Statutes of Canada 2000. That was Bill C-23 in the last session of the last Parliament. New regulations will now be required, and this will include the revocation of section 14. The progress of those regulations should be inquired into.

This leaves the following issue. In its report, the committee had indicated that if the Indian Act were to be amended to allow common law spouses a share in the estate of an intestate, the amending legislation should also validate the deeming orders previously made by the Minister of Indian Affairs. That was not done in Bill C-23. The effect of a decision of the minister deeming a common law spouse to be a widow for purposes of the Indian Act was, of course, to give that person a share in the estate that would otherwise have gone to the children of the intestate.

In reality, then, those decisions of the minister did result in depriving certain persons of their entitlement under a statute of the Parliament of Canada. That is why the committee thought it was important to have legislation validate section 14 retroactively. As I just said, this was not done and the question now is whether the committee should pursue this matter with the minister.

In closing, I note that in its response the government acknowledged apparently the need for such legislation. If we look at the last paragraph of the excerpt of the government's response, it states:

As the Joint Committee recommends, any solution to this issue must not only bring the Act and the Regulations in conformity with the Charter of Rights and Freedoms, but must also validate past decisions made by Ministerial order...

Again, that was not done. The committee might want to pursue that point.


The Joint Chairman (Senator Hervieux-Payette): Are there any questions or comments?


Mr. Lee: This is one of those loose ends that happens from time to time when the government takes steps to correct problems identified in legislation. It is a legal loose end. I believe we spent about 15 years on this file. The matter has been corrected. There are regulations, of course, to be drafted, which we will have a look at, so we cannot close our file yet. It is the kind of loose end that if there has not been any litigation out in the real world on it we have gone to the lengths of recognizing the legal flaw, perhaps even the invalidity. I cannot believe we will spend another 15 years getting the government to pass new legislation to validate what we are of the view was invalid.

However, we may just wish - when the process is completed, when the new regulations have been out there, when the major portion of our difficulties with this envelope have been cured - if this particular loose end still exists to report it as a final report to the House and say we regard it as unfinished business and then perhaps close our file. That would not occur, however, until we have seen the new regulations, in my view.

The Joint Chairman (Mr. Pankiw): Those new regulations would come before this committee?

Mr. Lee: All regulations do.

The Joint Chairman (Mr. Pankiw): Should we be asking of the minister when we can expect those regulations?

Mr. Lee: Yes. That would be my view. We should monitor the file. It is an open file and it is the new regulations that will deal with the major point that we have taken up.

The Joint Chairman (Mr. Pankiw): I take it a letter to the minister, Madam Chairman, asking for progress on the regula tions.

Mr. Wappel: Just reminding them about the loose end.

Mr. Lee: Sure.

The Joint Chairman (Senator Hervieux-Payette): Just note it.

Mr. Wappel: Just note it that their government response specifically said something and then did not do it, not that we are necessarily going to pursue it but just to remind them.



(For text of documents, see Appendix p. 2B:1.)

The Joint Chairman (Senator Hervieux-Payette): The next item is SOR-87-65.


Mr. Peter Bernhardt, Counsel to the Committee: Madam Chairman, these rules set out the procedure - these are the Assessor's Rules of Procedure now - to be followed in the conduct of appeals of compensation awards made under the Pesticide Residue Compensation Act as well as under the Health of Animals Act and the Plant Protection Act.

Concerns with respect to the rules were first raised in 1988. They involve drafting defects, inconsistencies between the English and French versions, and the need for the clarification of certain provisions. The validity of these concerns was acknowl edged both by the acting assessor of the day and the legal advisers to the Department of Agriculture and Agri-food. In fact, in November of 1988, draft amendments were actually provided to the committee.

Unfortunately, before these amendments could be made, the parent legislation was amended. It was amended to provide for the appointment of an assessor and deputy assessors from among judges of superior, district or county courts of the provinces rather than from among the judges of the Federal Court, as had previously been the case. The amendments also provided for the transfer of the authority to make rules governing the procedure on appeals from the assessor to the Governor in Council.

In view of these amendments, the assessor at the time took the view that the involvement of the Federal Court and its judges in the matter was at an end. The department also indicated that there would be entirely new rules put into place once the new assessor and deputy assessors had been appointed.

Although the statutory amendments in question came into force in February of 1992, they have never been implemented. An assessor and deputy assessors have never been appointed from among the judges of the courts of the provinces. Moreover, the defects that were identified in 1988 in the rules are still there. They have never been corrected.

By 1998, the lack of progress in resolving the committee's concerns led to the request for the appearance of officials from the Canadian Food Inspection Agency. In the course of this appearance, the committee was advised that there would be further statutory amendments and that these would provide that the chairman of the review tribunal established under the Canada Agricultural Products Act would now be the assessor and that this new assessor would be given the authority to make the rules. These amendments were introduced in the previous Parliament, but they failed to become law. Apparently, it is not anticipated they will be reintroduced in the foreseeable future.

In a rather large nutshell, that is the history of the file. Aside from the fact that the necessary amendments have never been made, all of these developments have given rise to two further concerns. These are set out in some detail in the chairmen's letter of October 8, 1998.

The first concern is that, although the relevant amendments to the Pesticide Residue Compensation Act came into force nine years ago, they have never been implemented. There have been a succession of Federal Court judges that have continued to hear appeals as assessors because the new assessors from the courts of provinces have never been appointed. This means that the will of Parliament has effectively been defeated through the inaction of the executive.

What is particularly disturbing is the indication given during the course of the appearance by agency officials that at least one reason for the failure to implement the amendments may have been the view, first within the department and then within the Canadian Food Inspection Agency, that the amendments were simply not a good idea.

The second issue, which is related to the first, concerns the continuing authority of the Federal Court judges to act as assessors. The agency is relying on section 44(a) of the Interpretation Act, which provides:

Where an repealed and another enact ment...substituted therefor,

(a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person.

For the reasons explained on pages 5 and 6 of the October 8, 1998 letter, the committee is of the view that section 44(a) cannot be read as permitting a succession of persons to act under the appeal provision as if nothing had happened. In the committee's view, all the successors who succeeded the judge acting as assessor in 1992 have acted in this capacity without lawful authority.

In his most recent letter, which is the June 27, 2000 letter, the minister advises that he will request the Minister of Justice to finally take steps to have judges of the courts of the province appointed as assessors and deputy assessors pursuant to the 1992 statutory amendments. Once this has been done, then, presumably, the work of preparing the new rules to resolve the committee's concerns can commence. In this regard, the minister's letter does represent a certain progress.

On the other hand, the minister has, once again, refused to address in any meaningful way the committee's arguments concerning the continuing authority of Federal Court judges to act as assessor. He simply reiterates that he has been advised that they do have the necessary authority, pursuant to section 44 (a) of the Interpretation Act. It bears noting that the committee has never accepted that a mere statement that a particular course of action is lawful is satisfactory. Where the committee gives detailed reasons for its position, it has always been expected that any rebuttal will address the substance of those reasons.

Although the minister claims that it is not within his mandate to determine the authority of Federal Court judges, he is nevertheless the minister responsible for this legislation. I would also point out that, in stating that he is relying on advice that Federal Court judges do have authority, the minister is taking a position on the question just the same.

In conclusion, perhaps a further attempt could be made to solicit from the minister a full explanation of the reasons for disagreeing with the analysis set out in the chairmen's letter of October 8, 1998. At the same time, an update could be sought on the appointment of the new assessor and deputy assessors from among the judges of the courts of the provinces, as well as the preparation of the new rules.

Mr. Lee: Again, this is one of these files where there is macro progress on the major file but a few loose ends. I tend to agree with counsel that we have a material loose end. I would like to see the reasons that the Department of Justice is relying on when they give advice to the minister. It is a little tricky trying to probe advice to ministers. However, if the minister would prefer not to try to articulate the reasons why he thinks the current assessor lineup is valid, then perhaps we could suggest that we could almost as easily call officials from the Department of Justice to give us those reasons. We could offer a letter back from the minister, which the Department of Justice would probably assist him with, or we could go to the Department of Justice, relying on our parliamentary authority, and probe the reasons why they are holding out that position, which appears to be contrary to the advice that we accept here. I am only speaking to the one loose end about the continuing appointment of assessors.

Mr. Wappel: I take a different view of this file. I do not see that there has been macro progress, with all due respect to Mr. Lee. This matter has been pending since 1988. New rules were put in place in 1992, which were then systematically ignored by an entire department, arguably at the instruction of the deputy minister, who had decided on his own authority that amendments passed by Parliament were not a good idea and that, therefore, he would not implement them. They have never been implemented. I do not know if the deputy minister is still the deputy minister - I doubt it - but, nonetheless, the Federal Court judges then continued to act in a manner in which they have no authority to act. They have been continuing to make decisions in a manner when they have no authority to make those decisions. These decisions should have been made by the superior courts of the provinces. The minister, to his credit, has asked the Justice minister to appoint those judges, but we do not know if they have been appointed. In the meantime, decisions are being made by the Federal Court judges without authority.

That hardly seems to me like progress, with all due respect. And we have the minister, without any explanation, arguing that Federal Court judges do have authority. "Why?" "Because I say so." That is not a legal argument, as has been pointed out.

In my view, in view of the length of time that this matter has gone on, I think the committee should report this matter to Parliament.


Mr. Lanctôt: I agree with Mr. Wappel. An independent body like the Canadian Bar Association may wish to appoint provincial judges to the position of assessor. This has been done since 1992, judging from the documents I have read.

Unless counsel can give me a valid reason, in the matter at hand, namely the appointment of provincial justices to the position of assessor, I cannot imagine why the department would want this matter to drag on. Perhaps it is all part of some mysterious ploy to retain federal judges. Without being illegal, this does not come under any particular jurisdiction.

What will happen to all of the rulings that have been handed down since 1992 by federal judges? I think we need to turn up the heat a little so that this matter can be resolved. It seems clear to me that all we need to do is appoint these judges so that they can become assessors.


Senator Moore: I agree with Mr. Wappel and Mr. Lanctôt. I think we decided as a committee a while ago that we would initially try to expedite some of these files that have been languishing for some time. I think we should be looking at doing a little more reporting to Parliament and a little more disallowing. I would like to see this go ahead as suggested by Mr. Wappel.


The Joint Chairman (Senator Hervieux-Payette): We agree then that it is more the Justice Department that lacks the will to change jurisdiction.

We have two options then: We could go with Mr. Lee's suggestion and call officials in to explain to us their reason for issuing this opinion to Mr. Vanclief. Or, we could call in officials from both departments to testify and then report back to Parliament on this matter. Can counsel tell me what a report like this might accomplish?


Mr. Bernier: If the committee wishes to go the report route, Madam Chairman, we would have to ascertain, first, whether the new judges have or have not been appointed.

As for the Department of Justice, as a minor correction, we are not entirely certain the advice the minister is relying on comes from that source. It may come from the Canadian Food Inspection Agency. He simply mentions, "based on the advice given to me." It could be a chauffeur, for all we know.

A report, I take it, would fairly well follow the lines, Madam Chairman, of the chairmen's letter of October 8, pointing out that it is unacceptable in a parliamentary democracy for the will of Parliament to be ignored for nine years and for a statute to be allowed to lie fallow as if it does not mean a thing in the world because civil servants have decided they do not like the statute.

I suppose then the committee would raise directly in the report the failure of the minister to provide reasons in support of his view that the Federal Court judges that have continued to act as assessors did have the proper legal authority, reiterating the committee's argument. This logically, I suppose, would be accompanied by a recommendation that legislation be introduced. If the new judges have not been appointed, there would be the recommendation that they be appointed without further delay and, second, that legislation be presented to Parliament to validate the decisions made by the Federal Court judges, unless, of course, proper, convincing reasons can be furnished as to why those judges have authority.

Mr. Bernhardt: Which for all we know they have. We do not know what their reasons are.

Mr. Myers: Joint Chairmen, I wonder whether or not, in the past on this file, officials have been called in to account, from any department, anywhere, and, if so, when.

Mr. Bernhardt: April, 1998.

Mr. Myers: Presumably, they went back then and were given marching orders to do what had to be done and obviously failed to do so.

Mr. Bernhardt: At that time, the immediate promise they made related to further amendments that would change the identity of the assessor yet again. In fact, there would be a third regime come in. As a result of that third regime, they would then proceed to make the new rules and correct past wrongs, as it were. Those amendments were introduced as part of Bill C-80, and then they died on the Order Paper.

Mr. Myers: We can cut them some more slack, which seems to be one option. We can become very tough, as has been pointed out, and report to Parliament. Is there a middle option? I guess what I am getting at is this: Is there an option where we would we call in these people, once we determine who they are, because we do not know yet who they are, correct? We ourselves do not know some of the information with respect to these judges and other things. Ultimately, we do not want to look foolish if we report. I am wondering whether or not we could put them on notice, saying, "You will be called into account," and give a timeline. "If it is not cleared up by such-and-such a time, we will be reporting to Parliament." That gives it the net impact of, "If you are not going to come and do what you have to do and are required to do under law, then we have no choice but to report." I am wondering whether this is a middle ground.

Ms Barnes: Other than the briefing session, this is my very first contribution. I understand the really big stick is the disallowance, when we say, "No, you cannot go there," and that this is actually, in essence, one of the more interim measures at our disposal. I am trying to recall from my briefing. It happens three or four times a year that we end up going in this route, and it is the disallowance that is extremely rare in 25 years. Would you just clarify that for me to make sure I am on the right track?

Mr. Bernier: In the range, there is correspondence, there is a simple report, a report calling for government response, and then we have disallowance. I would add immediately in this case, of course, that disallowance would be disallowance of the assessor's rules. The problems there were problems of drafting, so it hardly seems to warrant the use of that tool. In any event, disallowance can only be invoked by the committee with regard to regulations made either by the Governor-in-Council or a minister. The assessor's rules were made by the assessor at the time, which is a Federal Court judge, so they are not subject to disallowance.

Ms Barnes: Could you then just help me then with what to anticipate if we went with Mr. Wappel's suggested route? What would normally happen, and what would be the time line?

Mr. Bernier: The route of the report?

Ms Barnes: If it is reported, what normally happens?

Mr. Bernier: If it is reported, the committee would have the option of simply making the report. In a case like that, we would presumably accompany that with a request for the tabling of a comprehensive government response.

Ms Barnes: Within so many days, usually.

Mr. Bernier: The delay is specified in the standing orders, I believe, as 150 sitting days. That, in my experience, has been fairly efficacious in the past. Quite often, we have found that once a question is taken out of the realm of one minister alone to be dealt with by the government, as it were, because the response tabled in the House is a response from the government, we have seen changes of position taking place on more than one occasion. When a particular minister was adamant about something and the committee then reports requesting the tabling of the government's response, the response comes out and the position has changed.

Ms Barnes: That helps me. I hope I am not wasting time, but there are least three new members here. One of my biggest fears in Parliament was that a regulator was undoing what we worked so hard for.

The Joint Chairman (Mr. Pankiw): It does seem that there are at least a few facts we would have to ascertain before we report to Parliament. Is there agreement to Mr. Myers' sugges tion, that we do that, with a caveat that if we do not have the information and a proper response within a specified amount of time we will be reporting this to Parliament?

Mr. Bernier: I take it this would be a letter to the minister, Mr. Chairman, reiterating the request for reasons in support of his position, asking whether or not the judges have now been appointed, whether the Minister of Justice has had time to appoint judges under the 1992 statutes, and based on that response, the committee would then decide.

Mr. Wappel: And the specific legal authority he is relying on to say that Federal Court judges have had authority to make their decisions, specific legal authority, failing which we will report to Parliament.

Mr. Bernier: Does the committee wish a particular time line?

Mr. Myers: Yes.


Mr. Lanctôt: We are in the process of using a transitional measure to interpret provisions of the Interpretation Act. I am sorry, but transitional law usually covers periods of transition.

We are no longer in a transition phase. We are dealing with legislation that no longer serves its purpose. Therefore, I disagree with the idea of sending off a letter. In my view, what is needed is a direct report to the House.

That is only my opinion. After such a lengthy delay, I fail to see how a notice or letter would move things along any faster. We saw his answer. The minister would only answer again that we can act through section 44(a) of the Interpretation Act. I think we should draft a report immediately on this matter.

The Joint Chairman (Senator Hervieux-Payette): If we send the letter and set April 30 as a deadline, failing which a report will be tabled on that date, then we will give the minister a chance to correct the problem this very month. If the matter has not been resolved within 30 days, then we will submit a report. This way, we have the best of both worlds.

Mr. Lanctôt: That is not a problem.

The Joint Chairman (Senator Hervieux-Payette): Therefore we send the letter and the report will be tabled on April 30 if we do not receive a satisfactory response. We will make a decision about this at the next committee meeting. Is that alright with you?

Mr. Lanctôt: Yes.


Mr. Myers: We should include that we want X, Y and Z by a certain time, failing which we will have no choice but to report to Parliament.

The Joint Chairman (Mr. Pankiw): I think there is agreement on that.

Senator Moore: I think we have to put in a deadline. This is March 29. I would like to think we can get this cleaned up before we recess for the summer. We should not say that we have no choice, but rather that we intend to report.

Senator Bryden: If the answer comes back that the action being taken will culminate in 30 days and the judges will be appointed, will we still report on the basis that there is a disagreement over the interpretation of 44(a)?

The Joint Chairman (Senator Hervieux-Payette): We will advise when we see the letter.

Senator Bryden: Is that not a complete answer? If what is in the course of being done is done, is it our intention to pursue this dispute over the interpretation of 44(a) of the Interpretation Act?

Mr. Myers: A number of questions would have to be answered, including where the minister got his advice. We would have to have a number of those questions answered. Once we have his response, we can make the decision for which you are asking right now. It is counterproductive to speculate on what we will do based on "what if."

Senator Bryden: If they say that judges are appointed in eight provinces and the remaining two will be done by the end of next month, will we still say that we are going to report?

Mr. Myers: Let us hear what they say first.

Mr. Bernier: Decisions were made without jurisdiction and are, presumably, open to attack at any time. Parties to these appeals are probably entitled to some security and assurance that their rights as adjudicated are safe from attack.

Senator Bryden: If that were the case, what is our remedy, or what is their remedy?

Mr. Bernier: Amending legislation, as always. Parliament is supreme.

Senator Bryden: It does not affect the real problem with the real people whose cases have been adjudicated.

Mr. Bernier: The legislation can be retroactive. Parliament can do that.

Senator Bryden: Does it do that very often?

Mr. Bernier: It does it when it needs to do it. If the alternative is the rights of people being left uncertain, I presume that Parliament would think it wise to have retroactive legislation.

Ms Barnes: My understanding is that retroactive legislation is extremely rare and that there are about five large procedural hurdles that must be crossed in order to have retroactive legislation, unless something has changed in the last seven years when I have not been in active practice.


Mr. Lanctôt: You argue that these are reasons set out in the 1998 letter. You must not neglect to mention that they took advantage of an interpretation according to transitional legislation, and that is not mentioned in the October 1998 letter. You must remember to mention this in your 30-day notice.

The Joint Chairman (Senator Hervieux-Payette): Are there any other comments? Is everyone agreed?

Mr. Bernier: Mr. Lanctôt, we cannot accuse the minister of using a legislative provision to his advantage before hearing his reasons. If his reasons are sound, then this does not constitute abuse. Perhaps that is why he made no mention of this in his October 8 letter.

We can present our legal arguments and ask the minister to present his own arguments, should he disagree with ours. If the minister indeed has no legal arguments to make, then we could write a report stating that hew has taken advantage of section 44(a) of the Interpretation Act.

The Joint Chairman (Senator Hervieux-Payette): Mr. Bernier will draft a letter which he will then present to the joint chairmen.


My colleague and I could each check with our members informally as to whether they are satisfied with the letter. We should be comfortable with the draft letter because it will be a tough letter.

Mr. Myers: You do not have to. We are satisfied.

Ms Barnes: We have to trust our counsel and our chairs.

The Joint Chairman (Senator Hervieux-Payette): That is fine then. Everyone is in agreement.



(For text of documents see appendix, p. 2C:1.)

Mr. Bernier: There was a series of promised amendments to these regulations that remains to be made. The amendments mentioned in Mr. Chartier's letter of November 15 had not been adopted as of the 14th of this month. The history of delays in these files is, of course, what prompted the chairmen to write to the minister in 1999. At the time, the minister replied that he expected the amendments to be gazetted the same year.

There was also a substantive issue concerning section 3.4 of the regulation. That section allows maple syrup to be seized and destroyed without any procedural safeguards. That was dealt with starting with the second full paragraph on page 2 of the chairmen's letter. There, the chairmen informed the minister, first, that the failure to provide procedural protections to owners of products that an inspector proposes to order destroyed or disposed of constitutes an undue interference with the property rights of owners and, second, that the regulation should require the giving of notice and reasons to the owner of products ordered destroyed and give that owner an opportunity to contest or seek a review of the decision prior to destruction or disposal.

In his reply, the minister simply announces that section 3.4 will be revoked. This seems a little strange. This is the same provision that the agency was arguing was absolutely essential to their ability to address serious hazard situations. The committee, of course, was only proposing adding some safeguards in terms of the exercise of that authority, and here the minister proposes to do away with it entirely.

One has to ask whether Mr. Ray was misleading the committee in claiming the section was essential to safety. It also raises a question in one's mind as to the very willingness of the minister to revoke the section. It raises a question, in my suspicious mind at least, as to perhaps the existence of some other means that the agency has determined it can use to achieve the same end. I think it might be of benefit to clarify that this point.

Subject to the advice of members, I would suggest a letter to the minister pointing out, first, that his commitment to have the amendments in place in 1999 was not met, and perhaps asking him to elaborate on the issue of the need for section 3.4 and the apparent discrepancy, if you will, between Mr. Ray's insistence on retaining the section as is and the minister's willingness to do away with it.

Mr. Lee: In looking at the minister's letter dated May 10, I got a slightly different impression than counsel. I had inferred that the minister's reference to revocation of the regulations through amendments also involved some replacement of the regulations, not just revocation. However, the minister does not use those words. He simply refers to the "regulations, which will revoke..." In November, 2000, the Canadian Food Inspection Agency said that they had regulations in the pipeline, some of which had been blue stamped. Do we not have a solution there? Is not that the resolution of the amendment and/or revocation of the old regulations?

Mr. Bernier: We will certainly see when those come out. As of the 14th of this month - I checked before this meeting - those blue-stamp amendments have not been gazetted. We are still waiting for those.

Mr. Lee: This letter was obviously drafted during the last federal election. There might have been a tonne of regulatory activity and special committee of cabinet business through the election, through the Christmas period into the New Year. I realize that we are at the end of March already, but there are priorities and priorities.

In any event, at a minimum we have to follow up the November letter to find out where these things are.

Mr. Wappel: I agree with Mr. Lee and I disagree, which I rarely do, with our counsel.

It is none of our business if there is an ulterior motive. We had a problem with a particular section of a regulation. We made suggestions as to how it could be improved. The minister decided to revoke it. End of story.

To me, the wording is as counsel says, "which will revoke the provision in question." It does not say "which will revoke and replace the provision in question." The provision in question that we were proposing be improved by certain wording will be revoked in its entirety, which will solve our problem because there will be no section for which we will have to worry about improving the wording.

I think Mr. Lee is right on point. I do not think we have anything further to inquire on with respect to this file as a committee, except when these regulations will be in place, which is what Mr. Lee said. Although it is always interesting to speculate why certain things happen in a ministry, I do not think it is our business to search the woods for the truffles. I think we should just let it go.

Mr. Myers: There was testimony. Did Mr. Rae testify?

The Joint Chairman (Senator Hervieux-Payette): No.

Mr. Bernier: Yes. Mr. Rae is the vice-president of regulatory affairs. He is the gentleman who appeared with other officials in 1998, at the same meeting.

Mr. Myers: So he did testify. Presumably, he made the point that this was an important provision that had to be included. Is that right, Mr. Bernier? Did Mr. Rae at some point make the statement that these provisions were so important that they had to be done?

Mr. Bernier: Yes. That point has been made in previous correspondence, namely, that even adding procedural safeguards to the power to order destruction would impair the agency's ability to prevent safety hazards.

Mr. Myers: In the letter, why would we not point that out? Why would we not highlight the transcript that says this was said, and say, "In light of this being said, we are curious as to why it has now been revoked."

Mr. Bernier: I believe, Mr. Myers, that was exactly the point Mr. Wappel was making. He does not have the curiosity.

Mr. Wappel: I have the curiosity - do not get me wrong. I am totally curious, but our mandates does not include curiosity.

Mr. Myers: If he is misleading the committee, it is our business.

Mr. Wappel: That is a different matter.

Mr. Myers: I think we should find out whether or not that was the case.

Senator Bryden: Is there any evidence that he was misleading the committee? Was he not stating what his opinion was? Do we not expect parliamentarians and ministers to say to a bureaucrat, "You are wrong. Revoke that. We do not need that." We have lots of stuff to do without chasing the tracks of rabbits who died along the way.

Mr. Bernier: Senator Bryden certainly has a correct way of possibly looking at it. One can say, "Fine. Mr. Rae had one view. This minister does not share that view."

The Joint Chairman (Mr. Pankiw): The decision is a simple requesting to know when?




The Joint Chairman (Senator Hervieux-Payette): The next item of business is SOR/90-11, Dairy Products Regulations.

Mr. Bernier: The French version of the letter dated November 20 from my colleague Peter Bernhart is not included in the file distributed to committee members. I would therefore ask that consideration of this item be deferred until next week's meeting.


The Joint Chairman (Senator Hervieux-Payette): We meet next week, so it is more appropriate to have both versions.

Mr. Lee: Agreed.



The Joint Chairman (Senator Hervieux-Payette): Our next item is SOR/94-529.


Mr. Bernhardt: Two matters were raised in connection with this instrument. The first concerns provisions that prohibit importing a dog without complying with the conditions of a permit issued by the minister. The effect of this provision is to make contravention of the terms of a permit punishable as if it were a contravention of the regulations. In effect, it results in it being an offence to contravene a permit. There is no authority in the act for regulations making the failure to comply with the terms of the permit punishable by fine or imprisonment, as opposed, for example, to simply revoking the permit.

The second point queried the intended meaning of several references to "recognized associations" in the regulations. In December, the agency advised that amendments resolving these concerns had been included in a package of miscellaneous amendments that was being reviewed by the Department of Justice. Perhaps at this point simply a further inquiry as to progress would be in order.

Mr. Lee: The first issue concerning this back-door imposition of a quasi criminal offence is the following: Was it the view that the Miscellaneous Statutes Amendment would take care of that?

Mr. Bernhardt: My understanding was that they will revoke those references to importing in contravention of the terms of a permit.

Mr. Lee: They would revoke the regulation, which they have not done?

Mr. Bernhardt: Not yet.

Mr. Lee: I regard that as a fairly serious part of the envelope.

Mr. Bernhardt: The effect is to create an offence where there is no authority to create that offence. It is a fairly substantive point.

Mr. Lee: It is a fairly significant regulatory overreach when they create offences that Parliament has not decided are offences. I flag that as something of concern.

Second, I am advised that the Miscellaneous Statute Amendment Act is very much in the pipeline and imminent for the House.

Mr. Bernhardt: These are miscellaneous regulatory amend ment orders.

Mr. Lee: There is a miscellaneous package coming forward for regulations.

Mr. Bernhardt: One would hope that this is on the fast track.


The Joint Chairman (Mr. Pankiw): Next file, SOR/94-683, Miscellaneous Amendments Regulations.

Mr. Bernhardt: There is one remaining item in connection with this instrument and that is a clarification of the definition of "edible" in the inspection regulations. The department advises that it is anticipated that this amendment will be made by the fall. I suggest that the file be brought forward at that time for a follow up.


(For text of documents see appendix, p. 2D:1.)

The Joint Chairman (Mr. Pankiw): The next file, SOR/92-631, Vinyl Chloride Release Regulations, 1992.

Mr. Bernhardt: As is indicated in the covering note, enactment of these regulations resolved some 10 points raised in connection with their predecessor. These new regulations in turn gave rise to a number of points. Amendments have been promised with respect to all these matters, with the exception of those dealt with in points 1 and 3 of counsel's letter of January 13, 2000. These two points merely involved requests for certain information and confirmations.

I would suggest that the department's reply on these points is satisfactory, so no further action is required on them.

With respect to the amendments that have been promised, it has now been some time since the initial undertaking was given, so perhaps a progress report should be sought.

Mr. Lee: How long was that passage of time, just for the record?

Mr. Bernhardt: March 31, 2000. Almost exactly a year.

Mr. Lee: A mere year or two. Mere weeks.

The Joint Chairman (Senator Hervieux-Payette): The idea would be to send a letter. Is it agreed?

Hon. Members: Agreed.


(For text of documents see appendix, p. 2E:1.)

The Joint Chairman (Senator Hervieux-Payette): Next is Air Transportation Regulations.

Mr. Bernier: Concerning the Air Transportation Regulations, the instrument makes 57 amendments requested by the committee in relation to SOR/96-335. Some 16 new points relating to the amendments have been raised by counsel. Using the numbering system used in Mr. Rousseau's letter of January 29, I can report that action is promised on points 2, 6, the second paragraph of 9, and points 12 and 13. Somewhat vaguer commitments have been made to address points 4, 5, 8, 11 and 14 to 16 in the context of a general examination of the regulations, which has been prompted by Mr. Rousseau's letter.

As for the issues raised in points 1, 3, 7, the first paragraph of point 9 and point 10, counsel feel that the response is satisfactory or that the issue does not warrant pursuing.

A letter should be sent asking for some sort of time line in terms of completing the initiatives that have been promised.

The Joint Chairman (Senator Hervieux-Payette): All in agreement?

Hon. Members: Agreed.


The Joint Chairman (Senator Hervieux-Payette): Next is Honeybee Importation Prohibition Regulations.

Mr. Bernhardt: Prohibition on the importation of honey bees from the U.S. mainland have been in place for a number of years. It has been done through a succession of regulations. This was made necessary because, in each case, each regulation has had an expiry data attached to it - a sunset clause, if you will. In this instance, however, there was a gap of seven months between the expiration of the previous regulation and the coming into force of the new regulation. The agency was asked how they dealt with things during this seven-month period. The Canadian Food Inspection Agency advises that during this time the importation of honey bees from the U.S. was prevented through industry cooperation and, more significantly, the authority of inspectors to require the removal of animals where there are reasonable grounds to believe they could be infected with a disease. At the same time, the agency reiterates its view that a prohibition is still the most appropriate vehicle for putting in place a long-term strategy.

This seems quite satisfactory, and there is nothing further to pursue here.

The Joint Chairman (Senator Hervieux-Payette): Those who are crossing the border illegally will be arrested.

Is it agreed?

Hon. Members: Agreed.


(For text of documents see appendix, p. 2F:1.)


(For text of documents see appendix, p. 2G:1.)


(For text of documents see appendix, p. 2H:1.)



(For text of documents see appendix, p. 2I:1.)


(For text of documents see appendix, p. 2J:1.)


(For text of documents see appendix, p. 2K:1.)


(For text of documents see appendix, p. 2L:1.)

The Joint Chairman (Senator Hervieux-Payette): Next is the Department of Agriculture Omnibus Amendment Order, 1992 and the Regulations Amending the Income Tax Regulations, as well as the regulations listed under "Action Taken."

Mr. Bernier: For the benefit of the new members, I should indicate that the usual procedure of the committee is to deal with all items under the heading of "Action Promised" and all the items under the heading of "Action Taken" as a group. Counsel usually indicates how many amendments have been promised and informs you that X-number of promised amendments have been made. Because of this approach, there is also a risk of members focusing on the difficulties the committee encounters in the exercise of its statutory mandate and overlooking the fact that by and large the history of parliamentary scrutiny of delegated legislation is made up of successes.

With regard to the two instruments listed under "Action Promised," we have an undertaking to revoke an illegal record keeping requirement that has been given, as well as a promise to correct the drafting of two provisions.

Under "Action Taken," we find that the revocation of two instruments takes care of the objections of the committee. An error that was noted between two versions of the statutory amendment has not been repeated in the new statute. The enactment of the Proceeds of Crime Act provides a sound legal basis for a questionable provision of the proceeds of crime regulation. Finally, an amendment to Schedule IV of the Weights and Measures Act removes an illegal subdelegation of authority.

Mr. Lee: For the record, can we indicate the number of instruments dealt with "Without Comment"? That is the greater part of the secretariat's work. We usually put that on the record.

Mr. Bernier: Again, for new members, I should indicate that for instruments without comment, we no longer distribute the actual text of the regulations. If anyone sees a title that they are interested in, I always bring with me a copy of those regulations so that we can always give members a look at it.

Mr. Lee: How many were there?

Mr. Bernhardt: There were 66.

The Joint Chairman (Senator Hervieux-Payette): That is on the record.

The committee adjourned.