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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 6 - Evidence of November 23, 2006
OTTAWA, Thursday, November 23, 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, gentlemen and ladies. We are pleased to have the Minister of Fisheries and Oceans with us to assist us in addressing our special agenda item, subsection 36(2) of the Ontario Fishery Regulations, with regard to the Fisheries Act.
My understanding is that the minister has another commitment to move toward by the top of the hour. As a consequence, we will ask him to make his statement and provide as much time as possible for members' interventions.
Minister, thank you for being here. We welcome you and we look forward to hearing your comments in response to the concerns we raised with you, and which bring you here today.
SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989
The Honourable Loyola Hearn, M.P., Minister of Fisheries and Oceans: Thank you very much, Mr. Chairman, members and staff members.
I appreciate the opportunity to appear before this important committee, which is responsible for reviewing and scrutinizing regulations that govern this country and affect each and every Canadian. Joining me today is Gilles Belzile, acting director general of policy coordination and liaison with Fisheries and Oceans Canada, and Ruth Grealis, senior counsel, departmental legal services.
I want you to know that my department and this government value your insight and views, and we thank you for them. That is why I was eager to appear here before you, because I am committed to resolving this long-standing issue. The matter at hand is the notice of disallowance received by me in June of this year. It sets out the intention of this committee to recommend considering disallowance of subsection 36(2) of the Ontario Fishery Regulations, which states that ``no holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.''
You have told me and my predecessors that it is your view that the Fisheries Act does not provide legislative authority to enforce licensing conditions. The committee believes this subsection of the Ontario Fishery Regulations trespasses unduly on rights and liberties and makes an unusual and unexpected use of the powers conferred by Parliament. It allows officials to determine licence conditions, which are administrative decisions that, if breached, can land someone in jail.
The government, on the other hand, takes the position that the subsection is legally sound and consistent with case law. Moreover, we are concerned that revocation of subsection 36(2) of the Ontario Fishery Regulations would lead to an expectation that similar provisions in eight other fishery regulations would be revoked. This would have a significant impact on the government's ability to manage fisheries and protect our fishery resources.
The Ontario government recently echoed this concern with respect to fisheries it manages in a letter to the committee, of which I received a copy.
I am not here today to engage in a debate. I am committed to working with the committee to resolve this matter to our mutual satisfaction. I believe greater clarity is warranted, and I am certainly willing to make the necessary changes to achieve this. In my previous role as fisheries critic, I stood in the House to debate against Bill C-52 a little more than a year ago. The bill would have amended the Fisheries Act to address the issue of concern to the committee, but would not have addressed outstanding issues of significance for our fisheries and Canada's fishing communities. You may recall that, during the debate in the House, I, too, questioned the value of a federal minister and his officials to throw people in jail. I believed then, as I do now, that there are other ways to enforce the rules that provide for orderly fisheries. I felt Bill C-52 did not go far enough. I would have preferred to see something more substantial. The narrow change proposed by the minister of the day to the Fisheries Act left me and many others scratching our heads and wondering, where is the rest? That is why I have resisted the temptation to table another piecemeal, quick fix amendment to the act.
Our legislative process is a rigorous one, as it should be. To draw the time and efforts of both Houses on such an effort would, in my view, be a missed opportunity. Please do not mistake my comments to mean that I discount the importance of the issue being raised. However, I also say let us not tax the time and resources of both Houses on the narrower, albeit important, issue when we can resolve it and do something more at the same time.
As this committee may be aware, my department has been taking a very close look at the Fisheries Act. We agree with provinces, territories and other stakeholders who have told us and previous governments that the act needs to be modernized. Today's fishery is far different from the one when the act was first put into force 138 years ago.
Work in my department is well underway in considering legislative changes to the Fisheries Act to make it a more transparent, collaborative and accountable instrument for managing our fisheries and oceans. Over the last several months, since I became minister, I have challenged my officials to be as comprehensive as possible in their review of potential amendments to the Fisheries Act. In so doing, I also asked that we make sure to address the issues raised by this committee and other oversight bodies, like the Standing Committee on Fisheries and Oceans of both Houses. This work has been a priority for me. I want to ensure that, when we introduce new legislation, we will do it right. Let me just say that we did spend a lot of time, not just from an official point of view but my staff, many of whom have long time experience doing this kind of stuff, and I personally went through every clause in the act, to make sure that we put forth the most solid piece of legislation possible.
Timing requires that I speak theoretically today, so let me simply describe what a new act might achieve. A modernized Fisheries Act could put forth a renewed licensing framework that could create full authority to move to an administrative sanctioning regime for most breaches of licence conditions, rather than relying on the courts. Under such a framework, a newly created administrative tribunal could impose administrative sanctions, levy fines and suspend licences for licensing offences, instead of using the criminal justice system. Members of the tribunal would be knowledgeable on the fishery. Their backgrounds and expertise could serve to tailor sanctions to the severity of the offence. Those who breach licence conditions would no longer be subject to the possibility of imprisonment.
I know, too, that the committee has expressed some concern with the use of variation orders and close times provisions in regulations. Often, the close times, size limits and quotas in practice do not mirror those in the regulations. This issue could also be addressed in new legislation. You will also be interested to know that such a renewal package could include measures for greater collaboration and shared stewardship of fisheries. At present, the department has several agreements with parties interested in taking on a greater role in managing fisheries. A renewed Fisheries Act could specifically provide a legal basis for binding agreements with Aboriginal, commercial and recreational fishing groups to play a larger part in managing their fisheries. The agreements could cover issues related to conservation, protection and management for the fishery. They could also set out respective roles and responsibilities for both DFO and the entities in question.
I think these potential elements of a new act would go a long way to addressing issues raised by this committee. However, as I mentioned earlier, I would be remiss as minister if I did not go for the whole ball of wax at the same time because this is a chance to update a long-standing statute to better reflect, protect and enhance the fishery of today. I see it as an opportunity to augment the sustainable development of our fisheries and to protect fish habitat. My job is to manage these public resources on behalf of Canadians, for the benefit of Canadians and, with potentially a new act in place, in better keeping with what Canadians and parliamentarians expect.
Such a renewal package could also propose things like greater accountability in managing our fisheries through an enshrined set of principles. Chief among them could be conservation, but also principles of management based on an ecosystem and precautionary approach. As I mentioned, these proposed principles would also include greater collaboration with the provinces, the territories, Aboriginals and other stakeholders in decision making. A new act could also usher in greater transparency, stability and predictability in how the department allocates fishing quotas and grants access to fisheries. It could also authorize a process of intergovernmental agreements between Fisheries and Oceans and the provinces and territories. These agreements would help to build greater cooperation, consultation and information sharing among levels of government.
We have listened to our stakeholders and we would be prepared to include reforms that would help clarify how the Fisheries Act deals with habitat protection and pollution prevention. We could also improve the effectiveness of enforcement officers' powers. I am afraid I cannot go much further than that right now, but I can tell you that many stakeholders, including our colleagues in the provinces and territories as well as my own cabinet colleagues, have shown strong support for comprehensive amendments to the Fisheries Act.
In short, I think the new Government of Canada can and will resolve the regulatory matter before us, while also improving the state of our fisheries and the well-being of Canadians who rely on them, through a renewed Fisheries Act. As I mentioned, I am looking forward to sharing more on that with you quite soon. In the interim, I do not believe moving forward with a disallowance procedure would benefit anyone at this time. Instead, I ask this committee to provide me with the opportunity to propose the comprehensive changes that I want to see made to the Fisheries Act.
Thank you, honourable members. We would be pleased to take any questions.
The Joint Chairman (Mr. Szabo): Thank you very much, Minister Hearn. I have known you since you came to this place and I appreciate the clarity of your statement. We have some questions for you, beginning with Mr. Wappel followed by Senator Bryden.
Mr. Wappel: Thank you, Mr. Chairman. Welcome, minister, to the committee. I enjoyed your speech. I think that probably from about page 4 it would have been well delivered, and will be well delivered, to the Commons Fisheries and Oceans Committee. Unfortunately, this committee is not in a position to comment on good work to amend the Fisheries Act. By the way, I hope there will be an attempt of sorts to quantify or define ``food for social and ceremonial purposes,'' but that is an aside.
The issue before us is quite specific. As you know, because you followed this matter when it was before the House the last time, this committee took a strong position on it. One of the reasons for that, notwithstanding the very strong letter from the Minister of Fisheries of the Province of Ontario and from others, is that in our view, it is illegal. The matter did not go to a vote in the House of Commons, as you know, because the Fisheries Minister of the day brought forward Bill C-52, and we have talked about that. Sadly, the minister of the day did that despite the attempt of at least three or four, if not five, other Fisheries ministers to bring forward long-needed amendments to the Fisheries Act; and they failed.
Now, it is almost December and you are talking in theory. Assuming you proposed legislation tomorrow, what is the likelihood of it being dealt with in a comprehensive manner in the next few months? Zero, given the time of year. I truly do not see that anything at all has changed. You, like your predecessors and everyone else, recognize the need to update the Fisheries Act. The problem is: There is no consensus on how to update the Fisheries Act. In the meantime, this regulation continues — never stopping like the Eveready Battery bunny — because everyone is waiting to solve the problem; and you are asking us to wait again. Should we wait when this committee honestly believes that the regulation is illegal because it infringes on the rights of Canadians? That is a long preamble, which I am not prone to do usually, at least not as frequently as I used to. It just frustrates me that, after all this time, after the debates on Bill C-52, we have another minister back here again saying we will amend the Fisheries Act, give us some more time. I do not think it is a reasonable position.
Mr. Hearn: Thank you very much. For those who are not familiar with our association, Mr. Wappel and I spent a number of years, fairly pleasant years actually, together on a standing committee. We disagreed on very few issues, but I have to say I do on this one, for two reasons.
Number one, our argument is that perhaps the committee is not correct on its interpretation of this regulation. We can probably give you some evidence to support that in relation to some cases recently.
Number two, going to the act, you are quite right in what you say. I was there, and we listened to talk about the act. However, if you remember what was happening, the standing committee was asked, in fact, instead of going to Newfoundland the year before last and into last year to look at the overfishing issue, the minister of the day wanted the committee to take on the Fisheries Act, to be the group that would flush out the act. We are not there. We are a long ways ahead of it. When I came in and we talked about going to NAFO this year, people said ``same old story.'' It is not the same old story. Look at the results coming out of the United Nations.
We learn from the past. I am not saying I am doing things other ministers did not do. I am building on what they did.
In relation to the act, the proposed new act is complete. It is not a hypothetical thing. I have to talk in a hypothetical form simply because the proposed new legislation has not been tabled; but as you see from hypothetical situations, a lot of thought has gone into it.
The proposed new act is actually in the system. I am not sure how fast it will go through, but we are hoping it will go through very quickly. It is not a partially completed document. It is a fully completed document that has been submitted.
I cannot talk about what is in it, unfortunately. However, we are a long ways ahead of let us have some committee look at the act to see if we can make enough amendments to the old piece of framework to come up with a new one.
So, Mr. Chairman, that is where we are. Number one, we have moved very quickly on this, to the point where we will have a new act and have it shortly. Second, we also can make other arguments for not moving ahead with the decision of the committee.
Senator Bryden: Mr. Minister, this committee has scrutinized this very carefully for a long period of time. There is no question in the minds of the committee that the provision in which charges can be laid, which this issue deals with, are ultra vires the authority of whoever is laying the charge. If and when someone who is charged is prepared not only to defend at trial, but also to take it on appeal where it gets reviewed by an appeal court, it will be found to be ultra vires and the charge will be thrown out. With it, I take it that it will then negate all of the other bases on which this charge is being used to manage this particular aspect of licensing.
My question is: Is that a better solution for you and your department and the fishery than to simply introduce a one- line correction to the Fisheries Act to bring this regulation within the authority of the act? That is all that it takes to avoid this sort of thing happening.
Mr. Hearn: On the surface, it might appear that simple. I will have officials speak to the technical side of it. However, if it were that simple, I suggest it would have been done quite some time ago. Getting what you want done, even if it were right and would solve the problem, is not the easiest thing to do in our forum, as you know.
However, we have many concerns, and we think that the act will clarify them all. In fact, we spent a lot of extra time and effort on this very issue to make sure that the concerns of the committee, which they have raised over a number of years, are solidly dealt with.
Ruth Grealis, Senior Counsel, Fisheries and Oceans Canada: Perhaps I could draw to the committee's attention that there are three recent court decisions — two from British Columbia, one from Nova Scotia — that affirm that the broad regulation-making authority under section 43 of the Fisheries Act includes the authority to make regulations requiring compliance with licence conditions. Two of those decisions were not appealed. I understand one is under appeal for sentencing. I do not know if they are also appealing the findings on the charge.
It is our position that these decisions, in addition to the jurisprudence we raised with the committee previously — and some passages from Elmer A. Driedger, who is considered by the courts to be authoritative in legislative drafting — support our position that section 36(2) of the Ontario Fishery Regulations is within the scope of the regulation- making authority in section 43 of the Fisheries Act and, in particular, the authority to enact regulations for management and control of seacoast and inland fisheries, conservation and protection of fish and terms and conditions under which a lease or a licence can be issued.
The courts have indicated in these cases that they looked specifically at whether the provision was ultra vires and found it was not. They also looked at the fact that under management and control, control should include the ability to put restrictions and prohibitions on certain activities. They found this to be a valid provision. It was not the Ontario Fishery Regulations, but it is one of the similar provisions — the Fishery (General) Regulations.
I could provide more information, if you want, on the cases. The years are 2004, 2005 and 2006, so they are recent decisions.
Senator Bryden: I have a quick supplementary. It has been a rule of law as long as I can remember that if a regulation can result in the incarceration of a citizen, the regulation has to clearly state that that is one of its purposes. The regulations that we are talking about here do not do that.
Ms. Grealis: It is our position that section 78 of the Fisheries Act sets out the offence provision. It sets out that it is an offence to contravene the Fisheries Act or the regulations.
We have case law; we cited the Barnett case previously. I realize the committee has a different view of that case, but it was cited in one of these decisions. A breach of a licence condition can be made a contravention of the act or regulations by specifically putting a requirement to comply in the regulations, so Barnett says that.
Driedger, in his book, The Composition of Legislation: Legislative Forms and Precedents, sets out different techniques for how you can achieve the kind of thing we have done. Although he does not talk about licences — he talks about directives — it is exactly the same kind of situation, in our view. Basically, he says that, ``Sometimes an Act provides that every person who violates a regulation made under the Act is liable to a certain penalty.'' For us, the penalty is set out in the act. ``The regulation then prescribes the desired course of conduct.''
For us, the course of conduct is the requirement to comply with licence conditions. Courts, including the Supreme Court of Canada in Fitzpatrick and in Nikal have made it very clear that licence conditions are an integral part of a licence. People do not enter into the fishery with their eyes closed. They know they have to comply with the conditions of licence. It is part of proper control of the fishery, as well as management, to be able to require compliance with licence conditions. They found that to be within the regulation-making authority — not the Supreme Court of Canada, but the three recent decisions at issue.
Driedger goes on to describe exactly what we have done. ``Suppose that a statute authorizes a Minister to make regulations'' — it is not the minister, but this is his example; we could say that the Governor-in-Council could make regulations — ``and also prescribes the penalty for breach of a regulation;'' in the act, ``and that a regulation is then made authorizing a subordinate official'' — in this case, the province — ``to issue directions'' — in this case, attach licence conditions. ``How can directions'' — or licence conditions — ``be enforced?''
The statute supplies the penalty for the breach of the regulation but not breach of a direction. The minister has no authority to prescribe the penalties. The problem can be met by inserting another regulation to the effect that everyone to whom a direction is issued — or, in this case, everyone who has a licence with conditions in it — ``shall comply with it. Failure to comply with the direction then constitutes a breach of the regulation'' — and this, therefore, is a breach of the Fisheries Act and subject to the penalties of the act. That is the technique we have used and it is, in our view, a very common technique. The committee has noted that this is not the only department's legislation that uses this technique.
Senator Bryden: I would love to continue the debate.
The Joint Chairman (Mr. Szabo): Yes, but some additional information has been provided in respect of case law. I would ask that the information on the case referred to be provided to the committee so that members could have all information referred to by Ms. Grealis.
Ms. Grealis: I have the information from Carswell's Canadian Case Citations and will give them to the committee clerk today.
Mr. Del Mastro: Thank you, Mr. Minister and staff, for appearing before the committee. It seems that we are looking in isolation at one item of a much larger issue. I am quite encouraged to hear that the minister and his staff are looking at a comprehensive review of the Fisheries Act. As everyone recognizes, the fishery has changed dramatically over the last 138 years, creating the need for a changed act to address a changed industry.
Minister Hearn, could you give the committee an idea of when it might be able to have a look at this kind of review before Parliament?
Mr. Hearn: The proposed legislation is in the midst of the cabinet committee process, so it depends on when they want to bring it forward. From our perspective, what is written is written. It is not a general framework but rather a comprehensive, well thought out and tightly scrutinized proposed act from beginning to end. If the government decides to table it tomorrow, then my department is ready to roll. I do not think we can add anything further.
Mr. Del Mastro: That is encouraging.
Mr. Hearn: Whatever the committee recommends, we are subject to the decision of this committee in this regard. However, when it comes to court rulings and legal discussion on any issue, people with a background in law can argue forever on different issues, and we do have some lawyers around, and people will argue. Who is right and who is wrong? Does anyone know? At least one minister attempted to make changes in the House, but the effort was unsuccessful. Our approach is more likely to succeed faster than any other approach and it will cover all aspects, regardless of interpretation. Of course, once the proposed legislation is enacted, undoubtedly the lawyers will have a field day. That is where we are, Mr. Chairman.
The Joint Chairman (Senator Eyton): Minister, members of the committee are sympathetic and want to help the government in its important initiative. Picking up on the earlier question to you, the committee would like to give you the time to bring in the new act, make it effective and deal with our questions. However, the committee would like to hear an honest estimate on when you think the new bill might be tabled and, thereafter, made effective.
Mr. Hearn: When a piece of proposed legislation is prepared, it goes through the cabinet committee system. Cabinet and the Leader of the Government in the House will determine when the bill is to be tabled. We have gone through part of this process but no one has thrown it at me yet. All those who were consulted have been very supportive, but it is in the mill, has gone through at least part of the process to get to the floor of the House. Certainly, I think it is proceeding relatively quickly with a fair amount of support. When the government leader of the House decides to table the bill, my department is ready to go. We do not want it there just for the sake of having it there. I would be willing to table it this afternoon if the government leader in the House were to ask me to do so.
Senator Moore: I want to tighten that up a bit, minister. Can we expect to see it tabled before March 31, 2007?
Mr. Hearn: That is certainly our hope. The department did not rush to complete it but if there were anyone to blame for not having it ready, during the summer for example, the blame would stop with us, because I was not —
Senator Moore: I am not interested in that. I am trying to get a bit of a time frame without forcing your hand. Would you like to see it dealt with and would you hope that your cabinet might cooperate to have it done within this fiscal year?
Mr. Hearn: The answer is, yes. I was giving you the example because we rushed it as quickly as we could, while ensuring due diligence. We reviewed every line of it and consulted with experts. We did not want to table something that would be amiss and, therefore, take months and months before committee. Consequently, it is in the system. We would love to see it called tomorrow so we are pushing to get it tabled in the House as quickly as possible.
Senator Moore: Thank you, minister.
Mr. Hearn: That is not my decision, as you know.
Mr. Dewar: Following up on that, if this were to not happen, which is possible given the scope of a complete overhaul of the act, which most people would welcome, what would we do? The job of this committee is to ensure that regulations are being followed and that they are aligned with what is legal. I would ask you, Minister Hearn or your staff, whether there is a Plan B? Clearly, it is not out of the realm of possibility that this will not be tabled, as much as we would like it to be. We see what is on the legislative agenda of the minority government, so I should like to know whether there is a Plan B and what it is, notwithstanding the fact that we have new information on this matter for the committee to examine. I would hope that there is a Plan B to deal with this specific issue. It was mentioned by you, I believe, that we need clarity and certainty. The members of this committee certainly agree with you on that point so it comes down to how we achieve that. What is Plan B?
Mr. Hearn: Mr. Chair, we have a Plan B. If we had not been ready to table proposed changes to the Fisheries Act, we had provision made to introduce partial proposed legislation to correct the concern that we have, although that has been tried before without success.
We still have that plan to put forward should this proposed legislation fail to move quickly enough or if it is the decision of this committee to do so. It has been in place all along. We could have introduced that small piece of proposed legislation that you are talking about, but we are going to have to do the full job and do it right to avoid all uncertainty. You will get arguments, dealing with a small part of this, whether we have to, number one — and that was the argument made in the House and rejected last time — and number two, if we do, do we deal with the whole problem or the set of problems that we face, and the answer to that is probably no. That is why we tried to do it all.
We do have provision made to zero in on what you are recommending if this does not move quickly enough for us or you, whoever wants to decide first.
Mr. Bouchard: Thank you, minister, for joining us. You stated that your bill is ready to be tabled to Parliament. You also said that you had taken the time you needed to draft this bill. I would like to know what process was followed to review this legislation. Also, were any consultations held within the framework of the review process?
Mr. Hearn: Yes, in the sense of hypothetical consultations, but until the bill is tabled you do not have open consultation on the act itself. Mr. Belzile will be able to explain to you the process because he was directly involved and actually the one who shepherded the bill through in latter stages as we tried to make sure it was refined to the extent that would satisfy us as we move forward.
Mr. Gilles Belzile, Acting Director General, Policy Coordination and Liaison, Fisheries and Oceans Canada: The bill in fact stems from a series of policy development initiatives carried out by the department in recent years. The department consulted with industry, the provinces and Aboriginal groups, and all stakeholders in the fishery sector were involved in initiatives targeting fishery management and habitat management. The process resulted in the establishment of new objectives for improved fishery and habitat management. The new legislative instruments required to achieve these objectives were identified.
Ultimately, a bill was drafted. As the minister indicated, we subsequently consulted as much as we could with stakeholders in the fishery and with the provinces to ensure that the proposed legislation was the best it could possibly be and capable of best meeting needs and expectations in terms of the fishery and habitat management.
Mr. Bouchard: How long did the consultative process last? Several months? Several years?
Mr. Belzile: The process of formulating new policy directions has been ongoing for several years. The proposed legislation has been in the works for several years as well. As the minister noted, since he assumed the portfolio, efforts have increased to come up with a bill that was ready to go, one that could even be tabled tomorrow morning, if the government chose to do that.
Mr. Maloney: I am pleased to hear that the bill is ready to go, is scrutinized, that introduction today or tomorrow would not be prejudicial, that it would not be premature. The decision would appear to be on the House leader's plate; perhaps he needs a little nudging and perhaps you might welcome something to nudge him to come forward. We have a minority Parliament. If there is that much agreement, conceivably this bill could get through before a minority Parliament was dissolved.
I was inclined to give you additional time but I do not think you need it. You need help to have your House leader address it.
Mr. Hearn: Thank you, Mr. Chairman. I welcome that intervention. For those who know me know I operate on that very premise of building supports. If you are going to do something, especially in bringing forth a piece of legislation, it should be something that is good, which is why we spent a lot of extra personal time on it, involving key people, to make sure we had a very solid piece of legislation.
This is not a political thing; it is something for everyone, something we all have to live with, particularly those who are directly affected. Why would we not bring forth the best possible legislation we can? We are not ashamed of it and we would expect a fair amount of support — probably some new ideas, changes, whatever, amendments in committee or suggestions from the field. I would welcome any help I can get. We want to see the thing move. We know we have heavy agendas and some people set priorities, but I think it is a priority to get this piece of legislation in. The current legislation is 138 years old. There are many things, as Mr. Wappel knows, we would like to do in the fisheries and are unable to do simply because of the provisions of the old act.
The Joint Chairman (Senator Eyton): This committee will make sure that you table your new act as soon as possible. We are aware of your time constraints. We appreciate that you attended here today and gave us your testimony. On behalf of the committee, thank you very much for attending.
We can carry on with the subject. I did not mean to close down this item on the agenda. Thank you for attending here.
Mr. Hearn: Thank you very much.
The Joint Chairman (Mr. Szabo): Some of your officials will stay behind, in case there is something to add.
Mr. Hearn: I thank them for it.
The Joint Chairman (Mr. Szabo): Honourable members, the question is clear and we should address the options that are available to us. I should like to ask general counsel to affirm to us our options, which clearly, based on the feedback of committee members, may take one direction or another. Counsel, perhaps you may want to give your preliminary assessment to spur some input from committee members before we consider a definitive course of action.
Peter Bernhardt, General Counsel to the Committee: Thank you, Mr. Chairmen. The committee basically has two options. As it heard this morning, it looks like comprehensive legislation is coming down the pike. There has been some indication that that could well address the committee's concerns. The committee could choose to wait for the tabling of that legislation and its eventual passage. It is up to members to decide how they view the chances of that actually coming off.
Alternatively, the committee has delivered a notice of disallowance and it could proceed with the disallowance report. I think there was some indication this morning, although it was not expressly stated, that if the committee were to do that the likely response from the government would be the reintroduction of Bill C-52, which, as members will recall, was a short bill that in its entirety addressed the committee's concern.
The one thing we have heard this morning is reference to three provincial court decisions. Two of those, I expect, were dealt with in a note circulated to members this morning. The third one, the Nova Scotia one, is new to us. It would probably be prudent for us to look at that before the committee reached any final decision.
We could do that and prepare something for the next meeting. It is up to members as to whether they want to make a decision at this point or whether they wish it brought back at the next meeting.
Mr. Wappel: Mr. Chairman, before I make my comment, I wish to ask Ms. Grealis a question.
When you were giving your legal citations, I may have misheard you. Was it your evidence that all three cases pertain to the Fisheries Act?
Ms. Grealis: Yes.
Mr. Wappel: The two cases mentioned in the briefing note do not pertain to the Fisheries Act.
Mr. Bernhardt: They do pertain to the Fisheries Act. They were drawn to our attention by the Canadian Food Inspection Agency. They are trying to use them for purposes of a similar provision in the meat inspection regulations.
Mr. Wappel: It is important for us to get Ms. Grealis' three cases as well as the quotation from Driedger and that we have our general counsel examine those very carefully. As I understood Driedger's comment, basically it was a how to do. He is an acknowledged expert. Since we have seen from our note that courts do not pay too much attention to our legal deliberations, they may very well to an acknowledged expert in the area.
Therefore, given what Ms. Grealis has said today, our counsel should have the opportunity to review the extra case — assuming that we are aware of two of the three. Counsel can take look at the third one, compare all three cases to see if they are all dealing with the same thing exactly and whether they all come to the same conclusion, and also take a look at Driedger`s remarks, and come back to us with another memo. That would be the prudent thing to do.
The Joint Chairman (Mr. Szabo): Seeing no other speakers, is the course of action outlined by Mr. Wappel agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): Thank you, counsel, and thank you to the officials. We will move on to other, unrelated agenda items.
SOR/94-165 — OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT
(For text of documents, see Appendix A, p. 6A:1 )
Mr. Bernhardt: Mr. Chairman, consultations on rewriting these regulations have been ongoing for some years. There have been a number of delays.
Most recently, the committee is advised that a draft has been prepared and that it is presently being examined by the Department of Justice Canada. It is forecast that prepublication of Part I in the Canada Gazette will take place by the end of the current fiscal year.
In light of this advice, I would suggest following up early in the new year with the department to see if this remains their expectation.
The Joint Chairman (Mr. Szabo): Any questions? Agreed?
Hon. Members: Agreed.
SOR/2002-337 — CHARGES FOR SERVICES PROVIDED BY THE OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS REGULATIONS, 2002
(For text of document, see Appendix B, p. 6B:1)
Mr. Jacques Rousseau, Counsel: The Office of the Superintendent of Financial Institutions had already promised to amend the regulations. In a letter before the committee today, the Office agreed, at the committee's request, to amend another provision in the regulations. Essentially, the two provisions on which action was promised have already been repealed, as the committee will note when it examines SOR/2002-74, which removes all charges for services, with the exception of those charged by institutions that are not federal institutions.
Obviously, this rectifies the problem. Consequently, no further action is warranted on the committee's part with respect to SOR/2002-337. Therefore, the file can be closed.
The Joint Chairman (Mr. Szabo): Are there any questions or comments? Agreed?
Hon. Members: Agreed.
SOR/2004-109 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS
(For text of documents, see Appendix C, p. 6C:1)
Mr. Bernhardt: Before commencing, I draw to members' attention that there was a printing error in the materials originally distributed. In the English version of the December 7, 2004, letter, a page was missing. The full letter was circulated earlier this week to members. We have extra copies, if any member does not have a copy of the full letter.
The covering note explains that this instrument makes amendments that resolve 24 concerns raised by the committee. There is one fairly fundamental issue, however, that remains outstanding. As well, there were 11 new matters raised in connection with the amendments.
The unresolved question is whether the placing of effluent from a mill into a municipal water treatment system constitutes deposit of a deleterious substance in waters frequented by fish, or in any place where the substance may enter water frequented by fish. If this is the case, this deposit is subject to the prohibitions set out in the Fisheries Act, which requires that these deposits be authorized by regulation.
If the Fisheries Act is contravened when a paper mill puts effluent into a city sewer system without proper authority, it would seem to follow that anyone who puts a substance hazardous to fish down his or her drain at home is also contravening the Fisheries Act. It is hard to see that this is what Parliament actually intended.
It would seem more likely that what were intended to be prohibited were releases into the environment, rather than what are really transfers from one facility to another facility for the purposes of treatment.
The department's letter of April 7, 2005, purports to deal with this issue. It notes that household wastewater has not been prescribed as a deleterious substance and that therefore it is a separate issue. This very conveniently ignores the fact that the act defines ``deleterious substance'' as any water containing a substance harmful to fish, including a substance proscribed by the regulations. In other words, a substance is deleterious if it is set out in the regulations as being deleterious; but a substance that is inherently deleterious does not have to be proscribed in order to be caught by the prohibition in the act.
The department chooses to ignore the logical result of its position and goes on to conclude that there is no compelling legal reason not to apply the act to deposits to municipal treatment systems. Of course, the compelling reason is that, by extrapolation, it leads to a ludicrous result. The department steadfastly refuses to address this result, namely, that everyone who flushes a toilet at home is contravening the Fisheries Act.
As for the cases cited in the reply, the first case, Northwest Falling Contractors Ltd. v. R. was solely concerned with the constitutionality of the act. It is therefore irrelevant to the issue at hand. The second case, MacMillan Bloedel (Alberni) Limited, was advanced previously and the committee has already advised the department that it considered this case to be irrelevant as well.
The other two decisions cited by the department deal with other provisions and provincial legislation which is drafted in very different terms than the federal legislation. Finally, the department characterizes the issue as being whether certain deposits are beyond the reach of the act. This, of course, assumes that what we are dealing with are deposits in the first place. In effect, the department, in setting up the question, has already given the answer.
In short, I suggest the replies to date on this point are wholly unsatisfactory. There is no question that the discharge by a municipality of treated water constitutes a deposit under the Fisheries Act. The question is whether placing effluent into the municipal system farther back up the line is caught by the Fisheries Act. I suggest it is not.
Turning briefly to the new points raised, the department's January 31, 2006, letter promises further amendments to address points 2, 6, 7, 8 and 12. The reply on points 4, 5, 10 and 11 would appear to be satisfactory.
On point 9, the department was asked what additional information relevant to the site characterization would be required in the study design for an environmental effects monitoring study. The department replies that this information is site-specific. It is readily available to the mill operators, but because it is site-specific, it would be difficult to be more precise in the regulations. Before accepting this, I suggest it might be helpful to ask for some concrete examples from the department as to what sort of information this site-specific information might be.
Finally, point 3 concerns a drafting matter, namely, the use of the phrase ``as the case may be'' in the English version of certain provisions, where there is no corresponding wording in the French version. The reply is to the effect that this merely reflects a stylistic difference. Be that as it may, words in legislation are not to be read as having no effect; so it would seem to be the case still that the phrase in question must either be necessary in neither version or be necessary in both versions. It is a minor point but one that ought to be pursued. By way of recommendation, I would suggest a further letter to the department pursuing these various unresolved issues and questions.
The Joint Chairman (Mr. Szabo): Are there questions or comments?
Mr. Wappel: Mr. Chairman, the first point about the placing of effluent deals with a section of the act, but we do not have a copy of the relevant section attached. The wording is ``placing of effluent from a mill into a municipal water treatment system.'' I was convinced, in a way, by the department's answer. An argument could be made such that, if I were to pour bleach down my toilet, I could be breaching the act because I could be putting a deleterious substance into water that fish might eventually frequent. Simply because the department could not possibly enforce the flushing of toilets in 32 million homes across the country does not mean that the relevant section of the act might not be broad enough to include such an action.
I am happy to agree with counsel's recommendation. I would ask for more clarity as to the precise meaning; and to have that, we need to know what section 36(3) says — I believe that is the section quoted. Perhaps the next time this item is spoken to the appropriate section of the act referred to could be attached to the correspondence.
Mr. Bernhardt: Certainly.
Mr. Wappel: Other than that, I am happy to proceed with counsel's recommendation.
The Joint Chairman (Mr. Szabo): Are there further questions or comments? Is it agreed to follow the course of action outlined by counsel and supplemented by Mr. Wappel?
Hon. Members: Agreed.
SI/2004-122 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS (UKKUSIKSALIK NATIONAL PARK, NUNAVUT)
SI/2004-132 — ORDER RESPECTING THE WITHDRAWAL FROM DISPOSAL OF CERTAIN LANDS IN NUNAVUT (NORTHERN BATHURST ISLAND NATIONAL PARK, NUNAVUT)
(For text of documents, see Appendix D, p. 6D:1)
Mr. Rousseau: The letter sent by committee counsel on November 2, 2004 identified two drafting problems. In one instance, the problem involved repetition. In the other case, counsel identified an apparent contradiction between a provision contained in the schedule to the regulations and section 3 of the regulations.
In letters dated September 28 and November 28, 2005, the department acknowledged that the wording was repetitive and denied that the order contained any contradictions. The explanation supplied by the minister in the November 28 letter as to why there is no contradiction in the order is reasonable. Be that as it may, the minister suggested that the questionable provisions be deleted from future orders. The question is whether the committee is satisfied with the promise to amend only future orders. Basically, the purpose of these amendments is to clarify an order of this nature. For that reason, counsel recommends that the committee accept the promise to amend only future orders. If the committee has no objections, these two files can be closed.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed to close the files?
Hon. Members: Agreed.
SOR/2002-254 — SULPHUR IN DIESEL FUEL REGULATIONS
SOR/2005-305 — REGULATIONS AMENDING THE SULPHUR IN DIESEL FUEL REGULATIONS
(For text of documents, see Appendix E, p. 6E:1)
Mr. Rousseau: These two items are listed under the heading ``Reply Satisfactory(?)'' in view of the response given to the last point raised in the letter of March 14, 2005 concerning SOR/2002-254. Committee counsel asked the department to explain why, pursuant to the regulations, producers and importers are required to keep copies of the report that they must in any event forward to the department. Judging from the department's response, this requirement is not a mistake. In a letter dated October 14, 2005, the department explained that this allowed compliance officers to quickly access pertinent documents during an inspection. The aim therefore is to facilitate the work of the officers responsible for regulatory compliance. Even if this means twice as much work for producers and importers, the department feels that this is a reasonable, and not unusual, requirement. Counsel therefore recommends that the committee consider this response to be satisfactory.
Regarding the other two points raised in conjunction with the review of SOR/2002-254, the necessary corrections were made when SOR/2005-305 was adopted. As for the drafting problem identified in the case of the latter item, the information provided by the department is deemed satisfactory. If the committee has no objections, these two files can also be closed.
The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed to close the files?
Hon. Members: Agreed.
SOR/2000-108 — EXPORT CONTROL LIST NOTIFICATION REGULATIONS
(For text of documents, see Appendix F, p. 6F:1)
SOR/2001-282 — ENHANCED SURVIVOR ANNUITY REGULATIONS
SOR/2001-283 — OPTIONAL SURVIVOR ANNUITY REGULATIONS
(For text of documents, see Appendix G, p. 6G:1)
SOR/2004-25 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
(For text of documents, see Appendix H, p. 6H:1)
SOR/2004-138 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
(For text of documents, see Appendix I, p. 6I:1)
SOR/2005-297 — REGULATIONS AMENDING THE WEIGHTS AND MEASURES REGULATIONS
(For text of documents, see Appendix J, p. 6J:1)
Mr. Bernhardt: Mr. Chairman, if members are agreed, I would propose following the usual practice in dealing with the remaining instruments under ``Action Promised'' and ``Action Taken'' as two groups.
Hon. Members: Agreed.
Mr. Bernhardt: Under ``Action Promised'' there are six instruments, in respect of which 12 amendments have been promised. The progress of these will be followed up in the usual manner. In addition, the instrument registered as SOR/2004-138 made another six amendments that had been promised previously to the committee.
SOR/2000-182 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (VEHICLES IMPORTED TEMPORARILY FOR SPECIAL PURPOSES, COMPLIANCE LABELS AND COMPETITION VEHICLES)
(For text of documents, see Appendix K, p. 6K:1)
SOR/2005-285 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA SHIPPING ACT (MISCELLANEOUS PROGRAM)
(For text of documents, see Appendix L, p. 6L:1)
SOR/2005-342 — REGULATIONS AMENDING THE MOTOR VEHICLE SAFETY REGULATIONS (DIVERSE AMENDMENTS) AND THE MOTOR VEHICLE TIRE SAFETY REGULATIONS, 1995
(For text of documents, see Appendix M, p. 6M:1)
SOR/2005-413 — REGULATIONS REPEALING CERTAIN REGULATIONS MADE UNDER THE PUBLIC SERVICE EMPLOYMENT ACT
(For text of documents, see Appendix N, p. 6N:1)
SOR/2001-33 — ORDER AMENDING THE EXPORT CONTROL LIST
SOR/2006-16 — ORDER AMENDING THE EXPORT CONTROL LIST
(For text of documents, see Appendix O, p. 6O:1)
Mr. Bernhardt: The six instruments under ``Action Taken'' in total make some 29 amendments that were requested by the committee.
SOR/2005-102 — PROCLAMATION AMENDING THE CANADIAN BEEF CATTLE RESEARCH, MARKET DEVELOPMENT AND PROMOTION AGENCY PROCLAMATION
SOR/2005-104 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A FIVE CENT CIRCULATION COIN
SOR/2005-105 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1272 — LEVONORGESTREL)
SOR/2005-106 — ORDER SUSPENDING THE APPLICATION OF CONCESSIONS ON IMPORTS OF CERTAIN PRODUCTS ORIGINATING IN THE UNITED STATES
SOR/2005-107 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2005-1
SOR/2005-108 — REGULATIONS AMENDING THE NORTHWEST TERRITORIES FISHERY REGULATIONS
SOR/2005-110 — ORDER AMENDING SCHEDULE I TO THE HAZARDOUS PRODUCTS ACT (SURFACE COATING MATERIALS)
SOR/2005-118 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2005-119 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER
SOR/2005-123 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS
SOR/2005-124 — REGULATIONS AMENDING THE WILDLIFE AREA REGULATIONS
SOR/2005-125 — REGULATIONS AMENDING THE MIGRATORY BIRDS REGULATIONS
SOR/2005-128 — REGULATIONS AMENDING THE SHIP STATION (RADIO) REGULATIONS, 1999
SOR/2005-133 — ORDER AMENDING SCHEDULE I TO THE HAZARDOUS PRODUCTS ACT (CHILDREN'S JEWELLERY)
SOR/2005-137 — REGULATIONS AMENDING THE SHIP STATION (RADIO) TECHNICAL REGULATIONS 1999
SOR/2005-138 — RELATED PARTY OF A RETAIL ASSOCIATION REGULATIONS
SOR/2005-144 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2005-150 — REGULATIONS AMENDING THE CANADA PENSION PLAN INVESTMENT BOARD REGULATIONS
SOR/2005-153 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWENTY-FIVE CENTRE CIRCULATION COIN
SOR/2005-154 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWENTY-FIVE CENT CIRCULATION COIN
SOR/2005-155 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-2
SOR/2005-156 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-3
SOR/2005-157 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-4
SOR/2005-158 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-5
SOR/2005-159 — REGULATIONS AMENDING THE REGULATIONS ESTABLISHING A LIST OF ENTITIES
SOR/2005-160 — ORDER AMENDING THE CANADIAN BROILER HATCHING EGG MARKETING LEVIES ORDER
SOR/2005-201 — REGULATIONS AMENDING THE APPLICATION OF PROVINCIAL LAWS REGULATIONS
SOR/2005-202 — REGULATIONS AMENDING THE ACCOUNTING FOR IMPORTED GOODS AND PAYMENT OF DUTIES REGULATIONS
SOR/2005-203 — REGULATIONS REPEALING THE GROS MORNE FORESTRY TIMBER REGULATIONS
SOR/2005-207 — REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS (CANADA — KOREA)
SOR/2005-209 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1411 — IMAZETHAPYR)
SOR/2005-214 — REGULATIONS AMENDING THE SALE OF GOODS REGULATIONS
SOR/2005-217 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
SOR/2005-218 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF (SPECIAL PROVISIONS FOR THE PURPOSES OF THE UNITED STATES TARIFF (UST))
SOR/2005-220 — WEED SEEDS ORDER, 2005
SOR/2005-221 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-6
SOR/2005-222 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2005-223 — ORDER AMENDING GENERAL EXPORT PERMIT NO. 12 — UNITED STATES ORIGIN GOODS
SOR/2005-226 — PROCLAMATION EXEMPTING TOM MACKAY LAKE FROM THE OPERATION OF SECTION 22 OF THE ACT
SOR/2005-227 — ORDER AMENDING THE SCHEDULE TO THE EXTRADITION ACT
SOR/2005-228 — ORDER AMENDING THE SCHEDULE TO THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ACT
SOR/2005-229 — ORDER AMENDING THE NEW BRUNSWICK HOG MARKETING LEVIES (INTERPROVINCIAL AND EXPORT TRADE) ORDER
SOR/2005-230 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-7
SOR/2005-231 — CANADA CUSTOMS AND REVENUE AGENCY REGULATIONS, 2005
SOR/2005-235 — ORDER AMENDING SCHEDULES I AND III TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (METHAMPHETAMINE)
SOR/2005-236 — ORDER 2005-66-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-237 — ORDER 2005-87-06-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2005-238 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2005-243 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-8
SOR/2005-244 —SPECIAL APPOINTMENT REGULATIONS, NO. 2005-9
SOR/2005-245 — SPECIAL APPOINTMENT REGULATIONS, NO. 2005-10
SOR/2005-246 — REGULATIONS REPEALING THE NEW SUBSTANCES NOTIFICATION REGULATIONS
SOR/2005-250 — ORDER AMENDING THE ORDER BINDING CERTAIN AGENTS OF HER MAJESTY FOR THE PURPOSES OF PART I OF THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT
SOR/2005-251 — ORDER AMENDING SCHEDULE I TO THE ACCESS TO INFORMATION ACT
SOR/2005-252 —ORDER AMENDING THE SCHEDULE TO THE PRIVACY ACT
SOR/2005-253 — REGULATIONS AMENDING THE MEAT INSPECTION REGULATIONS, 1990
SOR/2005-255 — REGULATIONS AMENDING THE INTRODUCED FOREST PEST COMPENSATION REGULATIONS
SOR/2005-262 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE I TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2005-263 — 14TH IAAF WORLD HALF MARATHON CHAMPIONSHIPS REMISSION ORDER
SOR/2005-265 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS (MOTOR VEHICLE EXPENSES AND BENEFITS 2005)
SOR/2005-270 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (KETAMINE)
SOR/2005-271 — ORDER AMENDING SCHEDULE I TO THE CONTROLLED DRUGS AND SUBSTANCES ACT
SOR/2005-272 — REGULATIONS AMENDING THE NARCOTIC CONTROL REGULATIONS
SOR/2005-273 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1341 — CHLORPYRIFOS)
SOR/2005-274 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
SOR/2005-275 — ORDER ADDING THE BEAR RIVER BAND TO THE SCHEDULE TO THE MI'KMAQ EDUCATION ACT
SOR/2005-276 — ORDER AMENDING SCHEDULE I TO THE PATENT ACT
SOR/2005-277 — ORDER AMENDING SCHEDULES I AND IV TO THE WEIGHTS AND MEASURES ACT
SOR/2005-278 — ORDER AUTHORIZING THE ISSUE AND DETERMINING THE COMPOSITION, DIMENSIONS AND DESIGNS OF A TWENTY-FIVE CENT CIRCULATION COIN
Mr. Bernhardt: Under the heading ``Statutory Instruments Without Comment,'' 69 instruments have been reviewed and have been found to conform to all the committee's scrutiny criteria.
The Joint Chairman (Mr. Szabo): Are there comments or questions on the balance of the items for review? Is it agreed to adopt the report of counsel?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): There are two additional items for discussion today. I would ask counsel to proceed.
Mr. Bernhardt: As members are probably aware, the Parliamentary Information and Research Service of the Library of Parliament provides four counsel positions to the committee. Two of these positions have been vacant since the departure of Mr. Bernier and Mr. Billingsley. Over the last short while, steps have been taken to fill these positions. This involved the holding of a competition that was advertised nationally through the Public Service Commission. Candidates were asked to undergo a written examination, which included a series of questions designed to test the candidates' knowledge of the Statutory Instruments Act and general principles of administrative law and statutory interpretation. The second part consisted of questions designed to assess ability to scrutinize statutory instruments and identify possible problems.
Thirty-five candidates wrote the examination. The criterion for passing was 60 per cent. Eight candidates met this requirement, and were subsequently interviewed. The board of selection consisted of Ms. Amélie Carpentier-Cayen, Human Resources Directorate, Library of Parliament, as well as Mr. Rousseau and myself. As is usual, there was a structured format designed to assess candidates' knowledge and personal suitability. Following verification of references, the board of selection submitted its report to the Library, recommending that Mr. Shawn Abel and Ms. Lindsay Armstrong be hired by the Library of Parliament. I have copies of their résumés for circulation to members this morning. Mr. Abel is a graduate of the University of Alberta Law School and comes to us from a clerkship at the Federal Court. Ms. Armstrong obtained her law degree at the University of Ottawa and is currently with the Ontario Ministry of the Attorney General in Toronto.
To complete the process, it is our recommendation that the joint committee appoint Mr. Abel and Ms. Armstrong to serve as counsel to the joint committee in accordance with the terms previously agreed to between the committee and the Library of Parliament.
The Joint Chairman (Mr. Szabo): Are there questions or comments of counsel on the process?
Mr. Wappel: Did you say that, of the 35 candidates, only six achieved 60 per cent or better?
Mr. Bernhardt: Eight.
Mr. Wappel: Only eight achieved 60 per cent or better? Who designed the test? Did you people design the test?
Mr. Bernhardt: Yes.
Mr. Wappel: My goodness!
Mr. Bernhardt: We try to set the bar fairly high.
Mr. Wappel: I probably would have failed myself, I think.
The Joint Chairman (Senator Eyton): What is your complement now?
Mr. Bernhardt: It will bring us up to a full four.
The Joint Chairman (Mr. Szabo): These have been outstanding since before Mr. Bernier left.
Mr. Bernhardt: Yes, we were one down before.
The Joint Chairman (Mr. Szabo): So this will get the team up to a full complement. It sounds as though an appropriate and rigorous process has been followed and that the recommendation is before us. Are there any other comments before we call the question?
Mr. Epp: I have a question vis-à-vis the resumés. I do not know whether under the rules of confidentiality we should be able to look at them and then return them. How does that work?
Mr. Bernhardt: I do not think there is any problem with members keeping them, assuming that their designation as counsel is acceptable to the members. They will be your legal counsel.
Mr. Epp: Do we have the final say here? Does this committee have the final say?
The Joint Chairman (Mr. Szabo): It has to be approved by us.
Mr. Bernhardt: That is part of the arrangement.
The Joint Chairman (Mr. Szabo): Let us be clear. We have had this problem before. The four positions are provided to us by the Library of Parliament.
Mr. Epp: And they are hired by the library.
The Joint Chairman (Mr. Szabo): They are. If we accept the two nominees, as it were, they would be hired by the Library of Parliament and seconded to us.
Mr. Epp: However, they do not hire them unless we give the approval?
The Joint Chairman (Mr. Szabo): That is correct. So, effectively, we are engaging them.
Mr. Epp: We are in the habit here of putting a great deal of credence and trust in our staffers; we appreciate that. Our counsel is very efficient, good and trustworthy. I am inclined to say, let us accept their recommendation, since they have gone through all the due diligence.
However, just because I am curious, I should like to have been able to study the resumés before I made that decision. I think to ask for those to be distributed now and to take the time to read them would involve quite a bit of time. I would go ahead and say let us approve them, and we will take it on trust; however, I should still like to have a copy of the resumés, just for my personal interest.
Mr. Bouchard: You have answered my question. These persons are employees of the Library of Parliament. In some respects, they are on loan to us, but they remain Library employees. I would also like to see their curriculum vitae.
The Joint Chairman (Mr. Szabo): Are there further questions of counsel? Comments? Is the committee ready to consider the question?
Mr. Epp: Do you need a motion?
The Joint Chairman (Mr. Szabo): There is a recommendation by counsel and there is a motion. I will read it out and perhaps someone will move it: That the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations appoint Mr. Shawn Abel and Ms. Lindsay Armstrong as counsel to the joint committee, in accordance with the terms and conditions agreed to between the joint committee and the Library of Parliament.
It was moved by Senator Harb, seconded by Senator Moore. Any discussion?
Senator Moore: Are both of these candidates bilingual?
Mr. Bernhardt: The requirements for the position were level CCC, non-imperative. Ms. Lindsay Armstrong comes to us fully bilingual.
Senator Moore: Their languages are English and French?
Mr. Bernhardt: Ms. Armstrong comes to us fully bilingual. Mr. Abel will be required within the specified period to pass that level.
Mr. Bouchard: I would like to know if this information is confidential. You mentioned eight persons whose services had been retained. Can you tell us the names of these individuals, or is this information confidential? We do not know the names of the persons that you have retained.
Mr. Bernhardt: I believe it would be. I would want to confirm that with Human Resources.
Mr. Rousseau: Without giving a legal opinion, I would have to say that when a person applies for a position, he does so discreetly and discretion must be maintained throughout the process. I would hesitate before releasing the names of the candidates for the position.
The Joint Chairman (Mr. Szabo): I might suggest that, should members wish to deal with matters where there is some concern, we would want to consider going in camera to do that. If members suggest that it is a necessary step to look at others who have been considered to have their name put forward, we may want to consider that before we move.
Mr. Epp: I should like to try to dissuade Mr. Bouchard from that. I think it is an unnecessary step at this stage.
I have an additional question to the counsel. Have they any concerns at all with respect to the relative youthfulness of these two people. They both have recently been admitted to the bar. They have a limited amount of experience. Are you expecting that they will be getting good experience without having to unlearn a bunch of stuff because of their youth?
Mr. Bernhardt: That may be one possibility. I think the examination was a basic knowledge examination, so in a sense it does not necessarily relate to one's experience. There may be some benefit to getting them while they are still green and being able to break them in the way you like.
The Joint Chairman (Mr. Szabo): I think we understand.
Mr. Bouchard: I do not know if it is appropriate to ask this question, but is it important for candidates to be familiar with both legal systems, that is with both the common law and the civil code? Is it important to require knowledge of both systems? If so, have we checked to ensure that the candidates are well versed in Canada's two legal systems?
Mr. Rousseau: I studied law and the civil code at the University of Montreal. I have been associated with this committee since 1988. I have to say that I have not had to refer to my civil code for some time know. When I am asked a question about a particular provision in the code, I am somewhat at a loss to respond.
Generally speaking, committee work requires a sound knowledge of federal legislation. Obviously, some basic knowledge of law in general is useful, but it comes down mainly to interpreting provisions. Some rules are common to both systems. However, there is not much difference between the two. Occasionally, the content may differ, but often, the meaning is the same. In that respect, knowledge of the two systems is not essential.
I have never studied the common law and unless someone can prove otherwise, I do not feel that this has hindered me in any way.
Therefore, in that respect, I do not think a person needs to know both systems. So far, we have not had a legal counsel trained in both systems.
It should be remembered that the secretariat works as a team. The regulations are always reviewed by both counsels. Consequently, we tap into a broad range of knowledge to prepare the committee's files.
Mr. Bernhardt: I would add that Ms. Armstrong does have the combined common law-civil law degree from the University of Ottawa. She is the first lawyer we have had who has that particular degree.
The Joint Chairman (Mr. Szabo): Is that a satisfactory response to your question, Mr. Bouchard? Are there others?
Mr. Maloney: Is there a spot check on the information that is provided in their CVs? Do we ever do a follow-up and confirm this individual did receive, in his law school admission test, 170 out of 180?
Mr. Bernhardt: Obviously, we do check all the references. We also ask for law school transcripts. We check to the extent of confirming the law school marks and qualifications and the references.
The Joint Chairman (Senator Eyton): I think we are all agreed — and we will see that in a minute — but it may be useful, because you and your legal colleagues are vital to this committee, that the committee have an earlier opportunity of looking at the finalists and their credentials. Of course, that would be on a confidential basis; but were it to apply to this last exercise, you had eight finalists and it would have been useful for the committee to have seen those eight and their credentials, which we can discuss with you in confidence. That step would be useful.
Mr. Bernhardt: That is something we can do in future. In this case, I simply followed past practice.
The Joint Chairman (Mr. Szabo): Thank you for the input, senator. It is always helpful to reconsider practice.
We have a motion on the floor. Would you like it reread?
Senator Moore: Question!
The Joint Chairman (Mr. Szabo): All those in favour?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): Carried.
The Joint Chairman (Mr. Szabo): One of the candidates is already here and would be available. However, when we have both of the candidates, and these have been resolved, we will have them introduced to the committee when they are available.
I said there were two items. With your indulgence or approval, we will defer discussion on the second one until our next meeting, which is December 7. It had to do with the letter that we had asked from general counsel, on our whole question of efficiency and productivity of this committee and the status report on various issues.
The letter of November 14 was circulated to you. There are some very interesting points here. I would prefer that we defer it, only from the standpoint that I would like members to have an opportunity to comment and inquire about it on a more fulsome basis than we would be permitted with the limited time we have now.
With your approval, we will defer this matter for your consideration and discussion to our December 7 meeting. Is that agreed?
Hon. Members: Agreed.
The Joint Chairman (Mr. Szabo): As there is no further business, we are adjourned.
The committee adjourned.