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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 2 - Evidence of June 15, 2006

OTTAWA, Thursday, June 15, 2006

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Paul Szabo (Joint Chairmen) in the chair.


The Joint Chairman (Mr. Szabo): Good morning, ladies and gentlemen. We will commence with the circulated agenda. Following the operational business of the committee, we will deal with the report back from the steering committee with regard to the position of general counsel, followed by two small administrative matters. We will proceed with the first item on the agenda.


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

François-R. Bernier, General Counsel to the Committee: Thank you, Mr. Chairman. This correspondence concerns the recommendations for legislative reform that were made by the joint committee in its Report No. 39 of March 1987 in relation to the exercise of law-making powers by Indian band councils. Nine recommendations were made by the committee, five of which related specifically to a large number of bylaws dealing with intoxicants that had not been published in the Canada Gazette, contrary to the requirements of the Statutory Instruments Act. Since then, steps have been taken to ensure that the intoxicant bylaws made prior to 1987, when an exemption from publication was put in place, would be repealed, re-enacted or would no longer be enforced. The five recommendations I referred to should, therefore, be treated as having been dealt with by the government.

The other recommendations that were made in Report No. 39 and accepted by the government at the time were that the band bylaws be exempted from the Statutory Instruments Act through legislation, and that the same legislation provide guarantees of the right to notice of delegated legislation, and to access to that legislation by those affected. The committee also recommended that any such legislation include a protection similar to that found in section 11 of the Statutory Instruments Act against conviction for breach of a law that has not been brought to the attention of the party affected by that law.

In fairness to the government, there have been a number of attempts made to implement the commitments that were given to the committee; unfortunately, all of them floundered. I mention Bill C-122 in 1989, a miscellaneous statute law amendment bill in 1990; Bill C-84 and its successor, Bill C-25, in 1996; Bill C-61 in 2002; and Bill C-7 in 2003.

In his letter October 24, 2005, which members have in the material, Mr. Sinclair of the Department of Indian Affairs and Northern Development stated that the government had no intention of reintroducing Bill C-7 or any other similar bill. It would certainly appear from that letter that the government and the department had simply thrown in the towel on implementing the committee's recommendations.

Mr. Chairman, it will have escaped the attention of no one around this table that a new government has taken office, and the next step should be to ascertain whether Mr. Sinclair's view represents the view of the current government. To that end, I would suggest that the committee direct the joint chairmen to write to the Minister of Indian Affairs and Northern Development to make that inquiry.

The Joint Chairman (Mr. Szabo): Are there questions from members? Is it agreed to send a letter?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Agreed.



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

Mr. Bernier: The briefing note drafted for the committee explains to members the Federal Court's decision with respect to a preliminary request by the Crown in the matter of the Canadian Association of Broadcasters. Justice Hugessen ruled that section 11 of the Act does not authorize the imposition of a tax and that if these fees are truly a tax, they are not authorized under the Act. The court's decision was appealed.


The decision on appeal was conveniently handed down on June 6, just in time for this meeting. The appeal panel upheld Justice Hugessen's decision and confirmed that section 11 of the Broadcasting Act does not grant authority to impose a tax and that if the fees in question, the Part II Licence Fee, are indeed a tax, they are not authorized by the act.

The appeal court was careful to point out that the issue of whether or not those fees are in fact a tax was not before the court at that stage. This question will be reached and decided in the main action between the parties.

If the committee is agreeable, counsel will continue to monitor the development of the court proceedings and inform the committee as new developments occur.

The Joint Chairman (Mr. Szabo): Are there any questions?

Mr. Lee: Mr. Chairman, I do not think we should be just observers with this particular file. We have already invested significant resources. I believe the committee reached a conclusion in its report, although we may have articulated the report in a softer version with regard to the fact that the parties were about to enter into litigation, where we thought the matter might be resolved.

I have always taken the view that this is a tax, and that the House got it wrong. In our business, the House almost never gets it wrong, but they have described a revenue-raising mechanism that in the end allows the government to tax by regulation. We did not understand what we were doing as legislators a long time ago and it has given rise to this uncertainty.

My gut reaction is that we should be reporting again. Clearly, we have an issue here. The courts so far have been upholding the views of the litigants who brought the matters before them; that is how I see what has happened so far. In other words, those who are complaining about this being a tax are achieving success along the way. Therefore, I think we should report again. We should review it, report again and leave that there for the citizens — albeit that they are corporate citizens — who are appealing. In layman's terms, I guess you could say they are fighting this gouge, this regulatory tax.

I recommend that we bring the matter back as a report that we could report again to the House, unless counsel is of the view that our previous report is just fine, that it nails the thing shut and is there for the entire world to see.

The Joint Chairman (Mr. Szabo): Are there other comments?

Mr. Del Mastro: I concur with Mr. Lee that this seems to be a tax. I do not see the point in further litigation on this matter. The courts have ruled in this favour and the committee has also found as such. I think a report that indicates that once again would probably be warranted.

The Joint Chairman (Mr. Szabo): Are there further comments?

The Joint Chairman (Senator Eyton): I will make an observation. Counsel, I suppose the choice is to do nothing at all, which seems to be rather weak in the circumstances, or to reaffirm the conclusion we came to in the earlier report, or to issue a new report. Do you have any recommendation on what would be the best course of action?

Mr. Bernier: In answer to Mr. Lee — and I have just had a quick consult with my colleague — I am not sure there is anything the committee could add in a second report that has not already been said in its first report. In the first report, the committee indicated that as far as it was concerned, these fees had all the incidence of a tax; that is settled.

Mr. Lee may recall that the committee did not reach any conclusion as to whether section 11(1) of the Broadcasting Act authorized the imposition of a tax. Our view, as counsel, has always been that it does. Now, of course, we have been overruled, both by Justice Hugessen and by the appeal panel. We know that much at this stage, that the Federal Court has decided section 11 does not authorize the imposition of a tax.

The only thing a further report would do would be to juxtapose that finding by the courts — that section 11 (1) does not authorize the imposition of a tax — with the finding of the committee's first report that those fees have all the incidence of a tax. The inescapable conclusion is that the committee considers that those fees are not authorized by section 11 of the Broadcasting Act.

What a second report would do in that context would be to bring the House up to date with these court developments. However, as I said, anyone who reads the earlier report of the committee, and is aware of these cases, can realize the position of the committee is that those broadcasting licence fees are invalid.

Mr. Lee: Ultra vires; if these citizens were individuals as opposed to corporate citizens, I think we would be crawling all over this.

While counsel was reluctant to reach a firm conclusion earlier on one of the components of our view of this, the courts have reached a conclusion. Counsel accepts that the members of the committee had it right when their view was that this thing smells like a tax, looks like a tax and, therefore, must be a tax.

If all the components are there of something that is illegal, whether or not this constitutes an unusual or unexpected use of power, or whether it is just ultra vires, having reached the conclusions that I think we have or could, would this constitute an item that we would proceed with a disallowance?

Mr. Bernier: It is certainly possible, Mr. Lee. I think the committee would want to be very careful in assessing the consequences of disallowance when dealing with important revenues of the Crown. If you disallow, you disallow the excess of the fee that is being collected, but you also disallow the part that is legitimate, that is not in excess of costs of the CRTC. Those monies are needed for the operation of an important agency. It is up to the committee whether to use disallowance or not. In this case, I think it should be preceded by very careful assessment of the possible consequences.

Mr. Lee: Colleagues can take me as being slightly more aggressive than the average here. I do not like the courts making decisions when Parliament has a mechanism in place to do it. We have the ability to deal with this. We may take some comfort that the corporate citizens are able to go to the courts and deal with it there, and we played a small role in focusing on the issue.

If there is no consensus to act more firmly, in view of the fact that our report covers most of the issue accurately, then we can just leave it.

The Joint Chairman (Mr. Szabo): If I may, we are still relatively new and a number of new people are involved on this issue. We are talking about a report in 2003 and there is still a debate going on here. The courts have opined. I am not sure whether we have responded in terms of the position of this committee. These touch on some of the fundamentals in our briefing materials with respect to whether there is an enabling provision, whether the regulations are appropriate and whether we are legislating taxation through regulations. These points are important questions and certainly, broadcast issues will continue to be a high priority of the government. It would not do any harm to issue a further report to update the chronological developments since the last report as an item for attention. Should there be a need, we would then have that as continuity of our consideration.

Is it agreed by the members that the committee prepare and send an update report, notwithstanding that it might simply reiterate many of the points made in the 2003 report?

Hon. Members: Agreed.


(For text of document, see Appendix C, p. 2C:1)

Peter Bernhardt, Counsel to the Committee: Mr. Chairman, as well as making four corrections requested by the committee, this instrument also repeated an amendment that had been made in 2004. Thus, that amendment is well and truly made. The duplication was simply pointed out to the department and no further action is required.

The Joint Chairman (Mr. Szabo): Are there questions from members? Is it agreed that the file be closed?

Hon. Members: Agreed.



(For text of document, see Appendix D, p. 2D:1)

Mr. Bernhardt: There are letters from counsel on each of these two files, although the reply from the Department of Fisheries and Oceans dealt with them together. The issue raised with SOR/2005 — 328 was the failure to table the order in both Houses within seven sitting days after it was made, as required by the Canada Transportation Act. This is particularly significant in this case because the act provides that an order may be revoked by a resolution of both Houses that is adopted within 30 sitting days of the tabling. Obviously, if no tabling occurs, this mechanism is completely negatived. Both orders were tabled in the House of Commons on April 11 and in the Senate on May 2.

In the second file, an explanation was sought as to who, other than a minister representing the federal government or the Province of British Columbia and any person employed by the public service of Canada or of British Columbia, would be included in the definition of "public officer." The reply indicates that it was intended to include mediators, arbitrators and the like who might be engaged to help resolve this dispute. I would suggest that explanation is satisfactory. If members are agreed, no further action is required and both files can be closed.

The Joint Chairman (Mr. Szabo): Are there questions?

Mr. Lee: I want to reinforce that the action or non-action of the department effectively rendered as dysfunctional Parliament's oversight function. The point has been politely made to the department in counsel's letter. Counsel is usually more polite than most of us around this table would be, but this is never acceptable. I am not certain that the department in its reply acknowledged that they understood the extent of the impact of their failure.

I also note that within about 30 days of the passing of this order, Parliament dissolved, which may have blurred the issue for the department. The dissolution may have been a factor, although it has not pleaded that as reason or excuse. I want the record to reflect that if this were normal times, this default by the department would be taken much more seriously by me and, I hope, others around this table.

The Joint Chairman (Mr. Szabo): Are there additional questions or comments from members?

Mr. Bernier: Mr. Chairman, I am surprised that Mr. Lee did not point out that the failure to table might be found to constitute contempt of the House, given as he was the person who secured that ruling from the Speaker a few years ago.

Mr. Lee: Thank you, Mr. Bernier.

The Joint Chairman (Mr. Szabo): This item would be appropriately reportable to the House. Is that agreed?

Mr. Lee: No, I am not recommending a report. If counsel believes that this would be exemplary for other departments, then by all means let us report.

Mr. Bernhardt: There could be some value in pointing out across the board that departments should perhaps pay a little more attention.

The Joint Chairman (Mr. Szabo): Is it agreed to include that in the committee's report to the House?

Hon. Members: Agreed.


(For text of document, see Appendix E, p. 2E:1)

Mr. Bernhardt: As the note prepared for members this morning explains, section 16(1) of the Veterans Health Care Regulations extends eligibility for housekeeping and grounds maintenance services to the primary caregiver of a veteran who was in receipt of these services prior to the veteran's admission to a health care facility or death.

Section 16(3) of the regulations defines who is and is not a primary caregiver. It indicates that a "primary caregiver" is an adult person who,

(a) was primarily responsible, without remuneration, for ensuring that care was provided to the client; and

(b) for a continuous period of at least one year, resided in the principle residence of the client and maintained the client or was maintained by the client.

The enabling authority for these provisions is section 5(a) of the Department of Veterans Affairs Act. It authorizes the Governor-in-Council to make regulations specifying the persons or classes of persons, from within those referred to in subparagraphs 4(a)(i) and (ii), who are entitled to any or all of the care, treatment or other benefits authorized by regulations.

The persons referred to in sections 4(a)(i) and (ii) of the act are veterans and the dependants and survivors of veterans. Therefore, it is only these persons who may be specified as entitled to receive benefits by regulations made pursuant to section 5(a) of the act. In specifying that all primary caregivers be entitled to receive the benefits, it would seem that the regulations specify persons beyond those set out in the act and, if this is the case, then the regulations must be seen to be ultra vires.

In its reply the department argues that every primary caregiver will be a dependent of the veteran because the caregiver will also need these services and will have come to rely on them. I would suggest that this confuses "relying on a particular service" with being "a dependent of a particular individual." The primary caregiver may be dependent on the service in the sense that he or she relies on the service but that does not mean that he or she is a dependent of the person for whom the service was provided. In common parlance, a "dependent" is usually seen to be a person who relies on another for their main support. That is the ordinary meaning of the word, and there is nothing in the act to indicate that Parliament intended anything other than that when it used the word in the statute.

The department devotes much attention to pointing out that the notion of who is and is not a dependant has broadened over the years to include people other than spouses and minor children. Be that as it may, it is still the case that there must be a situation or relationship of dependency in each instance. To take an example, because a spouse might be a dependant does not mean that every spouse is automatically a dependant.

In summary, the effect of section 16(1) is to extend eligibility to persons in certain circumstances, regardless of whether they were in a position of dependency. Under the act, there is no power to do this. Any policy that might underlie cannot supersede the clear language of the statute. I would suggest that the committee send a letter to the minister pursuing the issue.

The Joint Chairman (Mr. Szabo): The letter to which counsel referred, from the Deputy Minister of the Department of Veterans Affairs, dated September 8, 2005, is missing a page. We have the details, but in the members' package, there appears to be a printing glitch; we are missing page 2.

We now have copies of page 2 for members if they would like to have it and read it before they add their comments.

Mr. Wappel: Mr. Chairman, I am not quite following you. I have the full letter of November 4, 2005. Are you referring to that letter?

The Joint Chairman (Mr. Szabo): No, I am referring to the letter of September 8. Mr. Bernhardt has just gone through the synthesis of the details relevant to the consideration today, but I wanted to flag it; it appears to be a printing glitch. I want to assure members that it is only that.

If any member wishes, we can have this matter deferred to our next meeting, which would be next fall. Conversely, if they are prepared to proceed with the item on the basis of the presentation of Mr. Bernhardt, we will.

Mr. Wappel: Thank you, Mr. Chairman. I am satisfied with Mr. Bernhardt's synopsis of his letter.

I want to briefly refer to page 2 of the Deputy Minister's letter. From my point of view, it more or less rebuts his own argument.

In the middle of the second paragraph, he is talking about the policy rationale. He says,

This is because of the policy rationale underlying the veteran's statutes and regulations, which is to take on the responsibilities of the veteran and to act in his or her stead to support all persons who were being supported.

A caregiver is not necessarily a person who was being supported by the veteran before the veteran was unable to support. A caregiver might be someone who has no dependence in any common parlance on the veteran.

In his own description of the policy, in my view, he puts the lie to his own argument. I think it would be appropriate to point that out in the letter to the minister.

The Joint Chairman (Mr. Szabo): Are there any further comments from members?

Mr. Del Mastro: I think we are getting beyond the scope of the definition of a "dependent." I do not think there is any question about that. The meaning of "dependency" is inherently understood. My concern is that we are extending a benefit to persons not entitled to it. I think we do need to refer this to the minister and indicate that "dependency" should be clearly defined in this instance.

Mr. Lee: I was disappointed to see Mr. Stagg resort to relying on the Law Commission of Canada, which is neither a lawmaker nor a policy maker. I suppose Mr. Stagg was in a position where he had to reach a little bit to provide some infrastructure of justification. As we proceed to flag this and bring it to the minister's attention firmly, because it appears to be clear, Mr. Wappel and others around the table will be sensitive to the positions of veterans and their caregivers. There is always the possibility of there being a case out there of unintended consequence. Let us focus purely on the legality right now and see if we can get a commitment from the department to fix it.

It is not our intention — I want to put that on the record — to disentitle anybody out there relying on this at the moment, although we do insist that the rule of law be followed to the letter.

The Joint Chairman (Mr. Szabo): Is there a recommendation or a suggestion from counsel that we go back to the minister? Does counsel need a direction as to the strength of the letter or any specific details?

Mr. Bernhardt: Presumably the letter would follow along the lines of the note, together with Mr. Wappel's suggestion, and reflect the discussion this morning. If there are any other specific items that members would to like highlight, I would be pleased to include them.

The Joint Chairman (Mr. Szabo): Are the members satisfied with the suggestion that we communicate to the minister on this matter as described by Mr. Bernhardt?

Hon. Members: Agreed.



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

Mr. Bernier: According to Ms. Richer, the changes requested by the committee should be adopted by the end of the year.


Progress will be monitored as usual.

The Joint Chairman (Mr. Szabo): Is that satisfactory?

Hon. Members: Agreed.


(For text of document, see Appendix G, p. 2G:1)

Mr. Bernier: In this case, as indicated in Mr. Child's letter of April 7, 2006, the amendments designed to correct section 14.40, as well as to make other corrections requested by the committee, have been sent to the Department of Justice for drafting. This file seems to be progressing satisfactorily and progress will continue to be monitored.

The Joint Chairman (Mr. Szabo): Is it agreed that we continue to monitor?

Hon. Members: Agreed.


(For text of document, see Appendix H, p. 2H:1)

Mr. Bernier: The reply from Mr. Sinclair indicates that work on the amendments to the Preliminary Screening Requirement Regulations can begin now that the draft regulations under the Yukon Environmental and Socio- economic Assessment Act are at the prepublication stage. That letter was dated September 28, 2005. I suggest counsel inquire as to the current status of that project.

The Joint Chairman (Mr. Szabo): Is it agreed that counsel will inquire?

Hon. Members: Agreed.


(For text of document, see Appendix I, p. 2I:1)

Mr. Bernhardt: Point 1 of the correspondence deals with the authority for sections 5(4) and 5(5) of the regulations. The first requires that where an unpublished work in an archive is copied, the information concerning the copying must be available on request to the author, the owner of the copyright or their representative. Section 5(5) requires that a person requesting a copy of such a work be informed in writing of the fact that the archive will make the information available on request to these people.

The Copyright Act, however, requires an archive to make a record of any copy of these works, and to keep it available for public inspection. In restricting the availability of the record to the author, the copyright holder or their representative, the regulations appear to unlawfully narrow the application of the act. As well, the authority for 5(5) was questioned.

In its reply, the department takes the view that there is authority for these provisions, but it does not explain that authority. It also indicates there may be some confusion as to their effect, and that amendments to the act are to be made to resolve any concerns.

This all seems a bit vague. Perhaps a further letter asking for a full explanation of the enabling authority relied on, as well as of the exact nature of the amendments being planned, might be helpful. Point 2 concerns the need to clarify section 6(1). An amendment has been promised so a progress report would seem timely. At issue in point 3 is the authority for section 7 of the regulations. This requires a library, archive or museum, or a person acting under the authority of one that makes a copy of a work under section 30.2 or 30.21 of the act to inform the person requesting the copy, by means of text printed on the copy or a stamp applied to the copy, if the copy is in printed format, or by other appropriate means, if the copy is made in another format that the copy is to be used solely for the purpose of research or private study, and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

The Copyright Act permits the making of regulations describing how an institution is supposed to satisfy itself that the person obtaining the copy will use it only for research or private study. The making of a copy before the institution satisfies itself constitutes a copyright infringement. Therefore, it seems fairly clear that it is expected in the act that the institution will satisfy itself before it makes the copy, not after it makes the copy. The department focuses on the eventual use of the copy but the fact is that it is the copy that constitutes the copyright infringement.

In essence, the department's view is such that when the copy is made, the institution will be satisfied that it will be properly used because it knows that after it makes the copy it will put a stamp on it. I would suggest this logic seems convoluted and this is a point to be pursued in a further letter to the department.

The Joint Chairman (Mr. Szabo): Are there questions or comments?

Mr. Epp: How does one define "private study or research"? How often is such work totally private? We have all read things that we find interesting and stash it away never to tell anyone. Most often, research is used in the production of another document or in writing in a newspaper or in a magazine. That is also research and yet it could be argued that the person engaging in these private studies subsequently shares that information in a public way.

Mr. Bernhardt: Those are terms used by Parliament in the Copyright Act. I am not certain whether they are defined in the Copyright Act or whether the act indicates what they mean. As Mr. Bernier points out, I expect there is copious case law in this respect. These are the kinds of matters that frequently end up before the courts.

Counsel could look into this further and report to committee with a summary of the relevant law on what constitutes research and private study. I would expect to find some indications of that.

Mr. Lee: In the matter of section 7, the department might alter one word at line 3 in the English version, where it says, "A library... that makes a copy shall inform the person requesting the copy." If they were to change the word "inform" to "confirm with" before "the person making the copy...," it would then comply with the statute. Is that correct?

Mr. Bernhardt: The problem is the timing, in that the satisfying must take place prior to the making of the copy. When a person requests a copy, the library informs the client, and has the form letter signed, then there would not be a problem. To confirm, in a sense, indicates that perhaps something went on before the copy was made.

Mr. Lee: I would argue that a copy made for a person is not made until it is turned over to the person. If in turning over the copy it is confirmed that the person uses it for private study, then I am on the right track.

Mr. Dewar: Does this affect electronic media?

Mr. Bernhardt: Yes. In that area, the regulations are somewhat more vague. It states that one must write on the copy or put a stamp on the copy or "by other appropriate means." In the case of an electronic copy, the library is supposed to take other appropriate means, whatever they might be.

Mr. Dewar: That is the challenge.

Mr. Bernhardt: I am not sure in practice what a library would do to constitute those other "appropriate means," perhaps an email or a box to click on the library website.

The Joint Chairman (Mr. Szabo): Are there additional questions or comments? Is it agreed that the committee write a letter including the observations and requests for updates and amendment intentions.

Hon. Members: Agreed.


(For text of document, see Appendix J, p. 2J:1)

Mr. Bernhardt: One of the previously promised amendments has now been made by SOR/2004-120. Another amendment concerns the discrepancy between the two versions of the Canada Student Financial Assistance Act. This correction was to be made when the act was next amended. It could be asked whether amendments are planned in the foreseeable future. If none are expected, I could be suggested that the correction be added to the next set of proposals for a miscellaneous statute law amendment bill.

The other two points are discussed in detail in the correspondence. These were to be resolved as part of the amendments necessitated by the enactment of the Department of Social Development Act and the Budget Implementation Act 2005. Both of these statutes were passed, so a progress report on those amendments would seem to be in order at this time.

The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed that a letter be sent dealing with the matters raised by Mr. Bernhardt?

Hon. Members: Agreed.





(For text of document, see Appendix K, p. 2K:1)

Mr. Bernhardt: These four regulations are grouped because they mirror one another and the same points are raised in connection with each. As a result, the department's reply states that promised amendments will be made to all four and explanations have been provided with respect to the same provision in all four regulations.

If members are agreed, I would suggest that the committee deal with 2001-101, the Cost of Borrowing (Banks) Regulations. In counsel's letter, 11 points were raised. Amendments have been promised on point 5, the second paragraph of point 4, and on points 8, 10 and 11. The department has provided an explanation on points 1, 2, 6, 7, and 9 that can be taken as satisfactory. That leaves only the first part of point 4, which concerns different consent requirements for receiving statements by electronic means and by fax. The department said it was studying this in the context of the broader issue of treatment of fax and electronic communications in general. It would seem to be time to check on the progress of the promised amendments and on the progress of this study.

The Joint Chairman (Mr. Szabo): Are there questions or comments?

Mr. Dewar: Does this affect banks only and no other financial institutions?

Mr. Bernhardt: In this regulation, we are dealing with banks. The other set include Canadian and foreign insurance companies and trust and loan companies. In that sense, we are dealing with the whole scope of institutions. The regulations deal with the administration of these institutions.

Senator Moore: What are we doing, Mr. Chairman?

The Joint Chairman (Mr. Szabo): Mr. Bernhardt will to send a letter and get a progress report, particularly dealing with the remaining items, beginning with point 4. Is it agreed that a letter be sent as outlined by Mr. Bernhardt?

Hon. Members: Agreed.


(For text of document, see Appendix L, p. 2L:1)

Mr. Bernhardt: In English, this order states that it applies to elections held after August 8, 2002. However, in French, it states that it applies to elections held on or after that date. Because of this, we asked for confirmation that no election was held on August 8, 2002. It turns out there was no election on that date. Therefore, in this instance, the point is of no consequence and the file can be closed.

The Joint Chairman (Mr. Szabo): Is it agreed that the file be closed?

Hon. Members: Agreed.


(For text of document, see Appendix M, p. 2M:1)

Mr. Bernier: In this case, Mr. Bernhardt sought an assurance from the Canadian Grain Commission that the amendments forecast to come in force in August by the commission will include the two amendments promised to the joint committee. The question mark is because the response from the commission included a considerable hemming and hawing. There is a paragraph that states:

As you no doubt will appreciate, the CGC does not ultimately control the final wording of amendments....

Then, in the last paragraph, it says,

As well, drafting and language conventions used by Justice Regulations, and often other concerns they may have, will have an impact on the final results.

The commission is covering its rear in case the final amendments do not reflect the amendments promised to the committee, but it is still progressing. It is satisfactory but there is this possible question mark.

The Joint Chairman (Mr. Szabo): Is it recommended that we just monitor the progress?

Mr. Bernier: We would in this case. Those amendments are supposed to be done in August. Come August, it will be verified whether or not they have been made. If not, a letter will automatically go out, asking the reason for the delay.

The Joint Chairman (Mr. Szabo): Are there any questions or comments from members?

Mr. Wappel: I am sure we have dealt with Ms. Gilroy before; that name is very familiar. This letter seems to be a juvenile response from a senior person. At the very least, if the commission agreed with the committee's views, they could push the appropriate people to proceed with the corrections, to cajole the Department of Justice to ensure the regulations properly reflect what the commission wants, based on the input of the scrutiny committee.

To me, this is virtually a brush-off letter. I think counsel's assessment of it "covering its rear" is accurate. I am not sure that the reply is satisfactory. I can see why the question mark was put on the agenda.

The proposals were to come into force August 1. They do not just come into force; there must be some preliminary work done. Has counsel received any indication that preliminary work has been done? Have draft regulations been proposed? What needs to be done in order for something to come into force on August 1? We are already into the middle of June. I get the feeling if we are in the middle of June, and we do not have anything further than this letter, nothing will be coming into force August 1. Can you comment on that?

Mr. Bernier: I would not make the assumption. I can assume equally that the regulation is crossing the last few steps of the process as we speak, and will be gazetted next month, for all I know. We would have to write again.

Mr. Wappel: If they are gazetted next month, which is July —

Mr. Bernier: For part I, I meant; say for a 30-day prepublication.

Mr. Wappel: How would that then bring them into force on August 1?

Mr. Bernier: If cabinet meets at the end of the month — I said next month, but it could be this month.

Mr. Wappel: Without being argumentative, it is usually a 30- to 60-day period. Certainly, if it is 60 days, nothing is coming into force August 1. If it is 30 days, something needs to be done by the end of June in order to allow for a 30- day comment period. Then there would need to be an immediate decision by cabinet, which is very unlikely, in order to have it come into force August 1.

Mr. Bernier: Unless the commission obtains an exemption from prepublication, which they can ask for and obtain, in some cases. There is a process for that.

Mr. Wappel: I am still not sure what to do about this. Just to put it on the record, I thought it was a juvenile response from someone that I thought was a senior person, one we have dealt with before who sent us appropriate responses. I do not know if we can lecture a person on how to write a letter, but if the transcripts are read, at least the person will know what I thought of the letter.

The Joint Chairman (Mr. Szabo): Maybe we can hear from a couple of other members, and perhaps a consensus will emerge.

Mr. Del Mastro: I would argue this response fits under the category of a definite maybe. The commission is saying that it will bring forward the concerns, but it cannot promise the concerns will be recognized.

I think the proper course for the committee to take, being that there is some time prior to August 1, is to reinforce that we are looking for those amendments to be made and cannot see any reason why they would not be made.

I do not find this letter satisfactory at all. Rather than wait and see what happens, I would like to follow up with something prior to it actually happening, indicating we will be looking for these changes to be made.

Mr. Lee: Ms. Gilroy is looking for a hedge against a possible undeliverable, a non-deliverable or late deliverable. We all realize how complex a world Ms. Gilroy works in, but if she and her agency do not live up to their commitment, they may have a tougher time with this committee than they will with the bureaucrats at the Department of Justice and Treasury Board.

Mr. Cannan: Looking at the date of the letter, November 9, 2005, and we are at June 15, 2006, what has transpired over six months?

Mr. Lee: It has been a very busy time.

Mr. Bernier: There was a general election.

The Joint Chairman (Mr. Szabo): The entire government stops working when an election is called. We cannot make them do anything, but there seems to be some concern about the specificity.

It is likely that a regulation will not be in force by August 1, 2006, so we should monitor the item. I would suggest that the committee send a letter to inform the department that the committee has performed its review and that a concern has been raised about whether there will be regulations in force by August 1. The committee will then determine whether the subsequent letter is of the same quality and deal with at the next meeting.

Senator Moore: Could the committee request a copy of their draft amendments in the letter?

The Joint Chairman (Mr. Szabo): They would be in Part 1 of the Canada Gazette, I would presume.

Senator Moore: The request could be made so that counsel could review the document.

The Joint Chairman (Mr. Szabo): Is it agreed that the committee send a letter?

Hon. Members: Agreed.


(For text of document, see Appendix N, p. 2N:1)


(For text of document, see Appendix O, p. 2O:1 )


(For text of document, see Appendix P, p. 2P:1)


(For text of document, see Appendix Q, p. 2Q:1 )


(For text of document, see Appendix R, p. 2R:1 )

Mr. Bernier: The instruments listed under "Action Promised" include five amendments promised to the joint committee.


(For text of document, see Appendix S, p. 2S:1 )


(For text of document, see Appendix T, p. 2T:1 )


(For text of document, see Appendix U, p. 2U:1 )


(For text of document, see Appendix V, p. 2V:1 )


(For text of document, see Appendix W, p. 2W:1)

Mr. Bernier: The group of instruments listed under "Action Taken" include one provision that has been revoked, six provisions that have been amended and one instrument which had been made by the wrong regulation-making authority that has been remade by the correct regulation-making authority.


Lastly, Mr. Chairman, a total of 77 statutory instruments have been submitted to the committee. They have been examined by counsel and meet all of the committee's review criteria.


With that I conclude my three hundred and fifth meeting of this committee.

The Joint Chairman (Mr. Szabo): Are there questions or comments?

Are members agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): The committee has completed its agenda for today's meeting.


Mr. Lee: This is a bittersweet moment that many of us knew might come to pass at some point in time. I want to say a few words in tribute to our chief counsel outgoing, François Bernier.

As I look around the table, I see that perhaps Mr. Wappel and I have served longest on the committee. I have been here for 18 years or so and Mr. Wappel was a joint chairman in 1989, I believe. In all my years as a Member of Parliament, I have not seen anywhere else the strength of commitment, professionalism and quality of service exemplified by Mr. Bernier. He has done it surrounded by political alligators and done it superbly. He has counselled members of both Houses in respect of our work in both Houses as a distinct constitutional entity separate from the executive of government and the courts. It is also worth noting two things: First, he has done it in both official languages. He is not just a bilingual practitioner but he is one of those rare people who is able to work fully in French in the context of the Civil Code and in English in the Common Law tradition. That is a rare asset in Canada. Over these many years, we have had the privilege of his excellent contributions. We all know where he is headed and Parliament will be less well-off for not having him.

Second, although he is leaving, he has made certain that the committee will continue to be well served. Although I speak in celebration of Mr. Bernier's contribution, I do not want to pretend that he has not done a good job of leaving very solid replacements.

On a professional level, a personal level and a political level, Mr. Bernier has been 10 out of 10 for a career that I am certain is not over yet. There might come a time when he could return in a similar capacity.

Mr. Wappel: I echo the words of Mr. Lee and add a few words of my own. The general election of November 21, 1988, saw a new crop of members arrive on Parliament Hill, including Mr. Lee and myself. The then leader of the Liberal party, John Turner, asked me, green as I was, to joint chair this very specific and important committee about which I knew very little.

On June 13, 1989, I was elected joint chair of the committee. In reflecting on Mr. Bernier's career, I cannot help but wonder what he must have thought that day when such a sapling was elected joint chair of his baby — this committee that he had counselled almost since its inception.

I never learned just what he thought because he is a discreet individual. However, I know for a fact that he must have had similar thoughts about similar joint chairs over the last 15 and one-half years. He will be equally discreet in his memories of what he thought initially and, perhaps, afterward.

Some words that come to mind in thinking about Mr. Bernier are discreet; thorough; clarity in correspondence, albeit somewhat overly detailed which is the way I like it; his breadth of knowledge of public and administrative law, which certainly impresses me to no end; and, as Mr. Lee mentioned, his sensitivity to working with Members of Parliament and senators. Over the years that we have worked together, there have been some conflicts with some members and Mr. Bernier has always sublimated his personal feelings to the best interests of the committee. Over the years, we have worked through numerous touchy issues, such as staffing, funding by the House of Commons, certainty of funding, payment of salaries, et cetera. He guided committee members on numerous issues, such as undertaking an amendment to the Statutory Instruments Act by way of a private member's bill, which was tried many times before it succeeded codifying the procedure for disallowance that this committee has recommended. These are milestones in the history of this committee, all of which can be laid in no small measure at the feet of Mr. Bernier.

I close with three words that show the man: patience, politeness and perseverance. I wish him all the success that he hopes for in his new job. If he does not return to the committee, I wish him a happy, healthy, long and wealthy retirement.

Mr. Epp: I will not be nearly as eloquent as the two people who have already spoken. However, I also have had the opportunity to serve on this committee from time to time over the last 12 years, not as intensely as either Mr. Wappel or Mr. Lee, but I have always been very impressed with the thoroughness of the job that Mr. Bernier has done.

It was quite an eye-opener when I first attended this committee — and perhaps the rookies here today are experiencing the same thing — to see a committee that is so ably led by one of our staffers from the Library of Parliament. He has shown a leadership position here in recommending actions to be taken and he has always done that in a very polite and thorough way. I will just simply say, I am impressed and I thank you, Mr. Bernier, for a good job well done.


Mr. Plamondon: I have not had the opportunity to sit often on this committee — in fact this is my first time here — but Ms. Guay and Mr. Bouchard who have served with you over the past year have asked me to convey to you their appreciation and admiration for the amazing, conscientious work that you have done for this committee. They also wish you the best of luck in your future endeavours.

As well, all of the other Bloc Québécois members who have served with you since 1993 have nothing but praise and admiration for you, not to mention pride in the fact that you are a francophone who is admired by both linguistic communities.


Mr. Cannan: As a new member as well, it has been very interesting and informative. On behalf of Rob Anders, my colleague, who co-chaired this committee, we wish you all the best on your retirement.

Senator Moore: I would like to echo the remarks of Mr. Lee and Mr. Wappel. I have been on this committee since 1996, almost 10 years. In that time, I have always found Mr. Bernier to be absolutely approachable, as well as consistent and solid in his advice.

The bill that Mr. Wappel referred to was an historic piece. I was fortunate enough to have the chore to steer that through the Senate. It was a neat thing, which new people on the committee may not know — we got it through all readings and passage within one part of a day. That was very rare in the Senate. From all sides, people were impressed with the importance of the bill, and the preparation and the support materials prepared by Mr. Bernier and his staff.

In conclusion, Mr. Wappel touched on this, regardless of who the party has been on the other side of issues that we have had before the committee, Mr. Bernier and his merry band have not been intimidated. Regardless of the minister, or the public official's status, when it comes to defending the committee and the position that they put forward and soundly believe in, they have been just exemplary. I want to thank them for that because it has given the committee great backbone.

You have been a true professional. I wish you all the best. Thank you very much.

Mr. Dewar: I would like to entertain a motion at this point, if everyone is finished?

The Joint Chairman (Mr. Szabo): Is that the motion? No, hang on.

We will get to Mr. Bernier; but as one of the joint chairs, I would like to speak on this matter. When I first found out that the officials in the Department of Justice refer to us as the Bernier committee, it is probably the greatest compliment that anyone could get in terms of the respect that has been earned — when someone's name supersedes the official name of a standing joint committee.

I am very happy for Mr. Bernier to have this opportunity; and I have a great deal of comfort that our affairs are in good shape. I am sure the entire committee, your friends, all of your staff and the people who have encountered you over the years share that sentiment. We wish you good health and much reward from your new challenges and everything else you decide to do for the remainder of your career, which includes your retirement.

The Joint Chairman (Senator Eyton): I will add a very few words. I am one of the green saplings that Mr. Wappel mentioned. I am a very green sapling and I have had very brief exposure to and experience with Mr. Bernier. Nevertheless, I want to echo, in that brief exposure, all of the sentiments that have been expressed about the very constructive role you played here and the leadership you displayed — along with the integrity that is apparent.

The Joint Chairman (Mr. Szabo): If there are no further comments, I would pass the floor to our general counsel.

Mr. Bernier: I will ask the indulgence of members, Mr. Chairman. I do not have much experience with this kind of speaking. I have not done it in 24 years; this is my first time.

As I was thinking about this meeting over the last few days, I expected I might be called upon to say a few words, so I diligently sat down and tried to draft some speaking notes. I had wonderful sentences about the rule of law, the supremacy of Parliament and the importance of parliamentary scrutiny. Then I decided I did not need to speak about these things because the people I am speaking to are well aware of the importance of parliamentary scrutiny, of delegated legislation and its significance.

That leaves me only with the responsibility to say thank you and to express my gratitude to the parliamentarians — the senators and the members of the House of Commons — who, over the years, have done me the honour of supporting me in this job and giving me the opportunity to serve not only the committee, but through the committee, to serve society.

I was born in a family where we were taught that work was not only about earning a living and paying for the material things. You had an obligation to use whatever talents and abilities you had to benefit society. This committee has given me a unique opportunity to do that. For that, I will always be grateful.

I hope no one will mind if I single out two of my former joint chairs, the member for Scarborough Southwest and the member for Scarborough Rouge River. They hold the record for membership on this committee, surpassing that of Senator John Godfrey, who was the first Senate joint chairman when I joined the committee. He had the previous record of 15 years of service to the joint committee.

These two gentlemen have been marvellous to me in supporting the committee consistently and unfailingly. They have also been a model, I think, to all chairmen. I am sure the same remarks apply to the current chairs — they have shown the ability to stand up even to their own government and ministers, and to do what is right.

All the joint chairs of this committee have done just that over the years. It has been simply wonderful and I thank you.

The Joint Chairman (Mr. Szabo): When it came to our attention that Mr. Bernier had accepted a new position, the joint chairs looked for an opportunity to bring together friends, colleagues and acquaintances from over the years of Mr. Bernier's career with the committee. Because the House is expected to rise next Thursday or Friday and we were determined not to let this matter wait until the fall, we took a bold step and put together a luncheon to follow this meeting. I must explain, for those who are wondering, that the only venue we could get on short notice was room 601, the parliamentary restaurant. I had circulated to some, including Mr. Wappel, Mr. Lee and Mr. Bernhardt, asking them to provide a complete list of people who have had a long-standing relationship over these years. How many is it, Mr. Bernier?

Mr. Bernier: I was with the Library of Parliament for one year and with the committee for 24 years.

The Joint Chairman (Mr. Szabo): The list was a little long — more than 30 people — and the room comfortably holds 25, but you can squeeze in more. I am aware that we did not send invitations to all of the new members of this committee, and I apologize that we were unable to accommodate everyone.

The good news is that nine regrets were sent by those who were invited so I would like to extend to other members of this committee an invitation to join us for a tribute luncheon at twelve o'clock in room 601, the parliamentary restaurant. You would be most welcome to attend. I apologize for the way this has come up but in the time that was all that we could reasonably do.

I understand Mr. Dewar has a motion.

Mr. Dewar: I move that the committee host a luncheon with visitors on Thursday, June 15, at 12 p.m. in respect of the transition of general counsel.

The Joint Chairman (Mr. Szabo): Seconded by Mr. Lee. Is there discussion? Are members agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Carried. Thank you kindly.


Mr. Asselin: Mr. Chairman, I am subbing today for Ms. Guay, the Deputy Leader of the Bloc Québécois. She is also a member of the Subcommittee on Agenda and Procedure. Can you tell me if this invitation is extended to her as well? I would like to pass the message along to her.

Mr. Szabo: Absolutely.

Mr. Asselin: Has she been informed?


The Joint Chairman (Mr. Szabo): Ms. Guay was invited but I was advised that she was unable to attend. It would be appropriate and perhaps necessary for representation from the Bloc.

We have two other items, one administrative, that perhaps we can dispense with today. We often send out correspondence on instruction of the committee. The current operational guidelines for this committee require that the joint chairmen and the two vice chairmen sign letters. When there is a pile of 12 letters needing to be circulated to each one individually, it becomes difficult. From time to time correspondence has been and could continue to be substantially delayed.

I would suggest that the committee amend its operational guidelines, which require that the authorized signers on behalf of the committee will continue to be the two joint chairs and the vice chairs but that all correspondence, when possible, will be signed by the joint chairmen on behalf of the committee. In that way, there would be two signers of the four and ensure that the committee's correspondence gets out in a timely manner. For instance, if both joint chairs were out of town, the vice-chairmen could sign the correspondence on behalf of the committee, thereby avoiding any delays.

Are there questions or comments?

Mr. Epp: I would agree with that. I have no psychological need to sign every letter that goes out from this committee. However, because the vice chairs are members of other parties, I would suggest that copies be sent to all four.

The Joint Chairman (Mr. Szabo): Counsel has suggested that all four signers would receive copies of the letters so sent.

Senator Moore: In connection with that, add the cc and the name.

Mr. Epp: I so move.

The Joint Chairman (Mr. Szabo): I have a motion to adopt that operational change, seconded by Mr. Wappel. All in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): The last item is extremely important. We had a steering committee meeting to address the matter of a replacement for general counsel. I would ask Senator Eyton to report on that meeting and the recommendation of the committee in that respect.

The Joint Chairman (Senator Eyton): At the meeting of the steering committee last week we had quite an intensive discussion and we covered all of the issues thoroughly. For a variety reasons, the steering committee came to the unanimous recommendation to this joint committee to table a draft resolution with the joint committee for its approval. The resolution states:

That the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations designate Peter Phillip Bernhardt as its general counsel effective July 1, 2006.

Accordingly, on behalf of the steering committee, I am pleased to so move.

The Joint Chairman (Mr. Szabo): It is seconded by Mr. Wappel. Are there questions or comments? All those in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): That concludes the formal business. Are there any other items before the committee adjourns to September? I see no further items.

The committee adjourned.