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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 3 - Evidence, December 13, 2007

OTTAWA, Thursday, December 13, 2007

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Derek Lee (Joint Chairs) in the chair.


The Joint Chair (Mr. Lee): We have a full agenda. Counsel have done a good job of putting together the agendas for the last three meetings. The document packages have been quite thick. I congratulate counsel and members for work well done over these past meetings.

Let us begin with the first entry on our agenda under the heading ``Special Agenda Items.''


(For text of documents, see Appendix A, p. 3A:1)

Peter Bernhardt, General Counsel to the Committee: Mrssrs. Chairmen, we have a number of matters under this item that were first raised in 2004: provisions that appear to require officers to transfer to a Canadian officer goods other than goods that can be designated under the act; provisions that authorize forfeiture of goods in circumstances other than those set out in the act; provisions that can operate only if other regulations are made that have apparently never been made; and provisions that flat out seem to contradict the act itself. Most interesting, despite the title, the regulations do not provide at all for the manner of disposing of detained, seized or forfeited goods.

There was considerable difficulty in obtaining a substantive response. Finally, on January 7, 2007, a reply was furnished that dealt with the first three of seven matters that had been raised. Subsequently in its June 11 letter, the department indicated that the regulations would be revoked and replaced by new regulations. Nevertheless, the substance of the other four matters, including questions that were asked concerning the intended application of certain provisions in the act, was not addressed.

The committee considered this file at its meeting on November 22 and decided that unless a reply dealing with each of the outstanding matters was provided in the interim, departmental officials should appear this morning to provide the requested responses as well as an explanation of why these responses could not be provided within a reasonable time.

Perhaps not surprisingly, the result is the department's December 4 letter. It does provide a substantive reply on the remaining matters. The department also claims that once they had communicated their decision to make new regulations, it had been assumed that detailed answers on the current regulations would no longer be necessary.

On point 1 of the substance of the various replies provided by the Department of Foreign Affairs, the department explained the intent of section 2(1). In turn, its consideration has led it to agree that there is no authority for this provision and, therefore, it is to be revoked. The act is likely to be amended to provide the authority that is lacking.

On points 2 and 3, the amendment that was promised previously to address the matters raised therein will presumably be reflected in the planned new regulations. However, confirmation of this should be sought.

On point 4, the reply confirms that section 4 of the regulations is in fact inoperable because it hinges on goods being designated by other regulations, and no such regulations have been made.

On point 5, the department agrees that this section is likely ultra vires and should be repealed.

On point 6, it was pointed out that the regulations do not address the question of how goods are to be dealt with once received by a Canadian officer. The accompanying Regulatory Impact Analysis Statement indicates simply that ``Goods detained by a preclearance officer and transferred to a Canadian officer will be dealt with in accordance with Canadian law.''

An explanation as to the source of this law was requested, as well as an explanation as to how persons whose goods have been detained or persons who believe that their goods have been wrongfully seized can go about obtaining the return of the goods. On the second question, the department points out that the regulations require a Canadian officer to inform the person of the organization to whom the goods have been transferred.

The department also stated that Canadian customs and immigration officers and police officers would be required to dispose of seized or detained goods in accordance with the applicable Canadian laws in each case. This is simply not the case, however. For example, the Plant Protection Act provides for the disposal of things seized and detained under that act. Goods seized under the Preclearance Act are an entirely different matter. Just because there may be goods that are governed by the Plant Protection Act does not mean that act governs their disposal under the Preclearance Act. It is for this reason that section 38(1)(e) of the Preclearance Act authorizes the Governor-in-Council to make regulations providing for the manner of disposing of detained, seized or forfeited goods. The departments seem to be confused in this regard.

Regarding point 7, an amendment to the act is promised to resolve the question raised in the second paragraph of the point. On the main issue, which also concerns the application of the act itself, the department reports that while section 38(1)(e) of the act authorizes regulations providing for the manner of disposing of detained, seized or forfeited goods, it is not aware of any seizures or forfeitures under the act other than those dealt with in sections 27 or 28 of the act. This begs the question as to what purpose that regulation-making power then serves.

In a nutshell, while the committee now has the initial substantive response from the department, it would seem there are several issues that need to be pursued in a further letter.

Senator Harb: With respect to point 6, in dealing with items for disposal, one would think that if it is a plant, they would destroy it through the process that exists within the department. If it is regarding disposal of drugs, the same process applies. However, in terms of other types of goods, it is my understanding that they hold on to them for a period of time. Eventually, they auction those goods in the same manner as government surplus. That is what happened at the municipal government level. The question is: Does the department have the same sort of mechanism or do we know?

Mr. Bernhardt: It seems that they are using whatever mechanism there would be under another act that deals with that particular product. For example, if it is a plant, that would fall under the Plant Protection Act. If it is food or drugs, they will use the Food and Drugs Act. The trouble is that those acts talk about how to dispose of items seized under those acts. Things here are not seized under those acts but rather under the Preclearance Act. One cannot simply assume that the other act applies. That is why there is a specific power in this act.

I suppose it would be fine if they wanted to put something in these preclearance regulations saying simply to go to those other acts and use that procedure. However, that is not automatically the case, and they seem to be assuming here that it is. I think they are confused in how these various things mesh together or, in this case, do not mesh together.

Mr. Wappel: Do I understand that counsel is recommending we follow up with a letter or a further exchange of correspondence? That is agreeable to me. However, given that we had to force them into a response by requiring them to appear if they did not answer, perhaps the letter could also say that we expect an answer to this letter before the next meeting of the committee in February. Without that advisory, we will be expecting them to attend as witnesses to answer the questions orally. They need to know that we do not intend to get back into a six to eight month correspondence routine.

Mr. Bernhardt: Given their experience over the last several weeks, I think this matter will probably be treated with a little more urgency.

The Joint Chair (Senator Eyton): Covering these various points is reasonably complicated. Perhaps counsel could summarize the two or three outstanding points.

Mr. Bernhardt: Certainly. I can go through each one.

On point 1, we have a promise of action. On points 2 and 3, we have a promise of action. On point 4, we have the explanation. Point 5 is promised action. It is really point 6 and point 7 that need to be pursued. In the case of point 7, it is a matter of seeking further explanation from the department on their interpretation of certain provisions of the act and how they are intended to operate. The key unresolved issue is the question in point 6.

The Joint Chair (Mr. Lee): To put this matter in context, the preclearance arrangement is almost unlike anything else that exists in the world. I could almost understand why whatever they are designing on a regulatory basis here would not be right off the shelf. I found it very complex, so there is obviously some inter-agency consultation to be done and likely some Canada-U.S. consultation to be done. I think we have to cut them a little slack because there is a fair bit of work to do here.

Counsel has it right. If members are okay with counsel's suggestion, we will leave it in his good hands.

The Joint Chair (Senator Eyton): I think we did the right thing in threatening to bring them here. Given the short time in which they responded, it is quite a positive response overall. I am hopeful.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): Our next agenda item is like an old shoe.


Mr. Bernhardt: On February 1, 2007, the joint committee adopted its report No. 78, which contained a resolution that subsection 36(2) of the Ontario Fishery Regulations, 1989, be revoked. As veteran members will be all too aware, it is the position of the committee that this provision is not authorized under the Fisheries Act as it purports to create the offence of contravening the terms and conditions of a licence without express authority to do so having been granted by Parliament. While not accepting that section 36(2) is invalid, the Department of Fisheries and Oceans has previously agreed to amend the act to ``clarify'' the authority for the provision.

The House of Commons, of course, did not adopt this report. Those opposing adoption relied on the fact that proposed new fisheries legislation then before the House would resolve the committee's concern by including provisions creating the offence of contravening a term or condition of a licence in the act itself. The report was adopted in the Senate.

An earlier disallowance report had been referred back to the committee when the minister introduced legislation to the same effect following the tabling of the report. Unfortunately, in neither case did this legislation receive passage.

On November 29 of this year, new fisheries legislation, Bill C-32, was again introduced. Like the previous bill, it includes the provision that the holder and any other person fishing under the authority of a licence must comply with the conditions of the licence. The bill would then establish a system of sanctions for fisheries violations, including contraventions of the terms and conditions of licences. This whole scheme would be a by new Canadian Fisheries Tribunal.

This is now the sixth attempt over the last 12 years to resolve the committee's objection by changing the Fisheries Act itself. Given this history, there might be some skepticism as to whether the introduction of yet another new fisheries bill means that a resolution of the committee's objection is near.

On the other hand, given the fate of the committee's two disallowance reports, the committee may have little choice but to await the outcome of the latest attempt to enact new fisheries legislation.

Mr. Wappel: When I was reviewing the material, I wondered why this was here. It is simply the report. I suppose counsel is wondering what the committee thinks we should do. For my part, we have tried our best on this one. My recommendation would be to leave it and see what happens with Bill C-45. If a new act passes, fine; the act will have in fact adopted what we recommended in our report, which vindicates our position. If it does not pass, I would suggest counsel bring it forward as a very early item of business in a new Parliament. Either we will have an election, or presumably it will go through at some point — although one never knows in a minority Parliament. I really do not see the point of resubmitting this item, only to have it go through the same procedure where it is not supported. That is my view.

Mr. Epp: Could counsel tell us the date of the most recent communication with the department? It is my understanding that the regulations recently were changed in an attempt to accommodate this request. Is counsel aware of that?

Mr. Bernhardt: I have not seen any relevant amendments to fisheries regulations since the report was done last February. Another fisheries file deals with close times. That may be an issue on which some action is being taken.

Mr. Epp: I think there was a recent amendment to the regulations. Perhaps in view of what Mr. Wappel just said, and with this information, we could instruct counsel to go back and check that out.

Mr. Bernhardt: I know there have been amendments to the Ontario Fishery Regulations. We should also bear in mind that in a sense we are using that as an example. There are a number of other fisheries regulations and, indeed, a number of other regulations under other statutes that make use of this technique as well.

Mr. Wappel is quite right. This item was brought forward this morning because we have a new session of Parliament and a new bill has been introduced. It was thought appropriate to ask the committee where it wanted to go from here. I would tend to agree that having tried disallowance twice, the committee perhaps has taken its best shot.

Mr. Epp: My recommendation, Mr. Chairmen, is that we ask counsel to check on any recent amendments to the regulations. Then perhaps we can keep this file open and watch carefully what happens with the bill.

The Joint Chair (Mr. Lee): I would add that this regulatory problem involves significant rights, liberties and issues. We have a situation where the Senate has determined that people are being charged and convicted illegally, and we cannot acquiesce. It must be that our constitutional role in this Parliament and the mandate of the committee is such that we cannot acquiesce.

The only question is whether we deal with this item once every session or once every Parliament. We have dealt with it in this Parliament once. The House has had the benefit of our report in an attempt at disallowance. The government has introduced a bill that provides a major fix for the problem, if not a 100 per cent fix.

If colleagues feel we have done our job, fine. I just invite colleagues to think about whether we should be ringing the doorbell in relation to this item every session or every Parliament. We could probably take the suggestion from Mr. Epp and Mr. Wappel and simply manage this file for the next while. If this session of Parliament turns out to be a long one, members might wish to consider reporting again.

I wanted to get those remarks on the record. On a scale of 10, this agenda item has to be a 9, in my view.

Ms. Barnes: Would we bring this item back before we break for the summer to see where the bill is? We cannot ignore things like this. If nothing has happened in six months, I would like to see the officials here to explain it to us.

The Joint Chair (Mr. Lee): I think the suggestions proposed by Mr. Epp, Mr. Wappel and yourself would bring this item back to the committee within a reasonable period of time after counsel does some more checking.

The next items four items on our agenda appear under the rubric ``Letters to and from Minister.''




(For text of documents, see Appendix B, p. 3C:1)

Mr. Bernhardt: Mr. Chairmen, the committee has concluded that human semen processed for assisted conception is not a drug within the meaning of the Food and Drugs Act and thus cannot be regulated under that statute. While the Department of Health clings to the position that the regulations are valid, the minister had advised that consideration was being given to remaking these regulations under the Assisted Human Reproduction Act. In the meantime, the current regulations would remain in place.

In their February 9, 2007 letter, the joint chairmen sought an assurance from the minister that new regulations will be made under the Assisted Human Reproduction Act, as well as his advice as to when these new regulations may be expected to come into force. There was also a request for a reply dealing with the subsidiary question of the authority for section 7 of the regulations.

The reply from the department advises that work on the new regulations is under way. However, it also outlines in some detail the complications and the issues that will have to be dealt with in the course of this process. The bottom line is that it is not expected that the new regulations will be in place for two or three years, and I would suggest this is likely a very optimistic time frame given the subject matter.

On the question of section 7, this is an information submission requirement. Processors and importers are required to provide such information as the minister may require in order to establish that the regulations have been complied with. The department claims this is simply a regulation respecting the sale or the conditions of sale of a drug. Far from regulating sales, however, we would suggest that this provision is nothing more than an enforcement mechanism. It is not merely incidental to the regulating of sales; it imposes a substantive duty. They are not mere incidents to some general power, and they would require express authority.

The department proposes an interim amendment to the regulations, in its words ``to tie the requirement more closely to the act.'' Before agreeing to such a course of action, the committee would need to know the precise nature of the contemplated amendment. We could request further details. At the same time, the committee has concluded that the entire regulations are ultra vires anyway. Therefore, to some extent, it is a moot point.

On the broader issue of the validity of the regulation holus-bolus, I am not sure where the committee would want to go next. We could ask the department to provide a precise deadline as to when it will complete these new regulations. The possibility exists of asking for an amendment, in the interim, to the Food and Drugs Act to put the present regulations on a sound footing. My reticence with that suggestion is that an amendment to the Food and Drugs Act may take as long or longer than the new regulations. There is also the possibility of reporting on the issue to the two Houses.

Mr. Epp: Right near the end of the letter, they ask a question:

What does the Committee think about the ministerial process to amend this section while we wait for the new regulations to be developed under the AHRA?

The Joint Chair (Mr. Lee): Good question.

Mr. Epp: What does the committee think? What is the recommendation of counsel?

Mr. Bernhardt: That is the subsidiary issue. The committee has taken the view that there is no authority for these entire regulations under the Food and Drugs Act because semen is not a drug.

Then there was a subsidiary question under section 7. It was suggested that even if semen is a drug under the Food and Drugs Act, there still would be no authority for section 7 specifically. Therefore, we now have a proposal to amend section 7 in the interim, although it is not clear what that amendment would be exactly.

The difficulty for the committee is if it does not accept that there is any authority under the Food and Drugs Act, nothing could be done by way of an interim amendment. Therefore, it is pointless to fix the one section to bring it under the Food and Drugs Act when the committee is of the view that there is no authority under that act in its entirety.

Mr. Epp: There needs to be a new set of regulations that pertain specifically to this material, notwithstanding that it is neither food nor drug.

Mr. Bernhardt: They will do it under the Assisted Human Reproduction Act for that reason, and the work is under way. The concern is that the project could be long term. In the meantime, we have this entire set of unlawful regulations. It is a quandary.

Mr. Wappel: The writer seems to think that we are familiar with the ministerial process to amend this section. Does counsel know the ministerial process to which they are referring?

Mr. Bernhardt: I took it to be a rather roundabout reference to the standard process for making an amendment to the Food and Drug Regulations.

Mr. Wappel: I took it to mean that the minister has a magic wand to do something about this. I would be interested in knowing what the Director General of Policy Development meant by that. I could not understand it. The response led one to think that everyone should know there is a ministerial process to do these things, and I found that curious.

Mr. Bernhardt: I am mindful that this is a translation of the original correspondence. I am checking the original, which says ``le processus ministériel.''

Mr. Wappel: It says the same thing — ``ministerial process.''

Mr. Bernhardt: I interpret that as a departmental process and that the department would commence the usual procedure for making an amendment. I do not think there is any magic wand. This is one of many amendments that they make to the Food and Drug Regulations.

Mr. Wappel: The substantive issue is a tough one for me. The department makes a compelling case for being able to control semen distribution. They are basically saying that if this is ultra vires — and we do not accept that it is — then that does not work. We are not even close to having regulations ready to cover this, which means it will be uncovered. The department correctly makes the point that such a situation could be very damaging to the Canadian populace because of the potential spread of disease.

This becomes difficult because if it is ultra vires, then it cannot be used. Yet, we know that the Assisted Human Reproduction Act involved a great deal of study and debate before it was ultimately passed. I am sure there is the same level of angst within the scientific community because the same kind of debate surrounds these regulations.

What do we do? Do we simply leave the ultra vires regulations in place because everyone thinks they are okay, and that way we can control it until such time as we have the right regulations in place? I hate to hear myself saying that, but it might be the only way to proceed. Otherwise, we will have an unregulated system of processing and distributing semen for assisted conception, and I hate to think what that might mean to the Canadian populace.

The Joint Chair (Mr. Lee): Mr. Wappel is concerned about an unregulated Wild West for gametes. We faced the same problem with the Ontario Fishery Regulations. That is always our challenge when we see the potential for disallowance because disallowing a set of regulations could potentially drop the public into an unregulated no-man's land, which, arguably, could be worse than having an ultra vires regulation in place.

I found the response quite good and they were honest about the timelines. If we continue to aggressively monitor this item, I think we will be okay. I would encourage them to get proper new regulations in place under the statute that will govern the situation, although there is a fair bit of consultation to be done first.

The Joint Chair (Senator Eyton): Counsel expressed concern about time while we are in this suspended state. What length of time is realistic to expect a resolution of the issue? In the interim we are proposing a watching brief.

Mr. Bernhardt: The department told the committee to expect two to three years. Members will know from experience that such things tend to be pushed further and further back.

Ms. Barnes: I have listened to the concerns of my colleagues, but I would like to ask the department for periodic six- month updates to inform the joint committee of their progress.

The Joint Chair (Mr. Lee): That is a good suggestion, Ms. Barnes.

Mr. Epp: Still, the issue of whether they can make these regulations remains unaddressed. It is suggested that the department report every six months on the progress of the regulations that they are not permitted to make.

Mr. Bernhardt: They are permitted to make the new regulations. Mr. Wappel makes valid points, and the situation is made more uncomfortable by the fact that it is clear that the current regulations are ultra vires. The definition of ``drug'' under the Food and Drugs Act is what you would expect to read but not the notion that human semen is a drug. The argument was that because it helps with pregnancy, it alters an abnormal physical state in human beings. They are maintaining a fig leaf here because they feel the need to have something in place while they work on the proper regulations. The department insists that it is valid, but it is very much the fig leaf on the statue.

Ms. Barnes: A periodic update would encourage them to work more conscientiously on the new regulations. A reporting mechanism whereby they were consistently being monitored might move this file higher up the ladder over the next two to three years. I think that is the best we can do on this file for now.

The Joint Chair (Mr. Lee): The file is headed in the right direction as is the department, even though the ground they are trying to regulate is probably changing every two weeks. I fear that at the end of the process, just when they have the regulations ready to go, the whole world of genetics and reproduction will have altered so much that the regulations will be out of date. Who knows? We are headed in the right direction for now, so if members are agreed, we will move to the next item.

Hon. Members: Agreed.


(For text of documents, see Appendix C, p. 3C:1)

Mr. Bernhardt: Mrssrs. Chairmen, this item is another old chestnut.

Under the Fisheries Act, where a closed time has been fixed by regulation in respect of an area, the Governor-in- Council may then make regulations authorizing fisheries officers to vary that close time. Thus, many of the close times prescribed in various fisheries regulations extend from January 1 to December 31. Fisheries officers are authorized to vary these close times as they see fit. For the same reason, the regulations also prescribe what the joint committee calls ``token close times,'' for example, December 31 to January 1, or even for one hour, such as from 11 p.m. to midnight on New Year's Eve.

It has long been the view of the joint committee that this approach is ultra vires. An indefinite prohibition is not a specified period during which fish may not be fished, which is how the Fisheries Act defines a close time. A token close time is not intended to establish such a period either.

After contesting the views of the joint committee for years, in 2001 the Department of Fisheries and Oceans indicated that amendments to these close times would be made. Last December, the department advised that a practice of advising proponents of regulatory amendments to amend the close times to more clearly reflect periods when it is not likely or desirable for fishing to occur had been implemented and that this would gradually result in the revision of the whole regulatory framework. This is to be done as part of the regular process of making changes to the various regulations. The department has undertaken to provide a yearly summary of the changes that have been made.

Bill C-32, the latest proposed new Fisheries Act, contemplates that the existing regime for close times will be eventually replaced with close times fixed by fisheries management orders made by the minister. These orders would not be regulations but would be subject to review by the joint committee as statutory instruments.

In their April 30 letter, the joint chairmen asked the minister to agree that no new year-round prohibitions or token close times would be introduced into fisheries regulations under the existing regime. A time frame for completing the process of replacing the objectionable close times was also requested.

The minister's reply advises that a number of amendments are included in a package that was to be made this fall, although this has yet to take place. The possibility of using the Miscellaneous Amendments program in the future is also held out. However, it is stated that the whole process will take a considerable amount of time. The one concrete time given by the minister is 24 months, which is the time expected to be taken to address the close times in the Atlantic Fishery Regulations, 1985. The minister also states that he will be in a better position to provide a more precise action plan when the review of close times that has now been started is completed. Although an undertaking not to enact any new year-round prohibitions is not given, the minister does state that no such times will be enacted unless they are a true reflection of when fishing does not occur.

This process will be slow and tedious, although it does appear that progress is being made. I suppose that for now it might be considered sufficient to write to the department asking for an update and, perhaps, again remind them of the committee's view that year-round prohibitions are unlawful under the present statutory regime.

Mr. Wappel: I agree, but we should also remind the department of the minister's sentence. Specifically, he assured the committee that no new year-round close times will be enacted. In a roundabout way, that sentence, in effect, acknowledges that the committee was absolutely right in the sense that these were artificial close times which were then manipulated. I would recommend monitoring in this case, but we should periodically remind the department that this is the undertaking the minister gave to this joint committee. He also undertook to show demonstrable progress, so we should be able to see demonstrable progress in the monitoring.

The Joint Chair (Mr. Lee): I thought that this was actually a very good letter from the minister because it deals with the issue head on. It does not weasel its way through. There is a problem and the minister acknowledges it.

However, in the last file we looked at, we were regulating semen. In this file, we are regulating people. We are regulating fishers, real people. In my view, it has a higher order if there are ultra vires components.

We are heading in the right direction. The ministry is really on side. It will take a few years to get everything in sync, but we are doing our job and they are doing theirs.

Mr. Norlock: It is important to realize we are not only monitoring people but also a very important part of numerous people's livelihood. I have seen some interventions from the Ontario Federation of Anglers and Hunters; we have First Nations implications and we have fish stocks that are also very important. People are important and so are the things that keep people alive, like fish. Therefore, I think by way of the committee monitoring the situation, we are permitting the minister to do the right thing.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): We will deal now with the agenda item under the heading ``Reply Unsatisfactory.''


(For text of documents, see Appendix D, p. 3D:1)

Mr. Bernhardt: Mr. Chairman, this order authorizes the B.C. Vegetable Marketing Commission to fix and impose, by order, levies and charges on persons engaged in the production and marketing of vegetables for interprovincial or export trade. Any such orders will be regulations under the Statutory Instruments Act. This means that not only do they have to be examined, registered and published, but they do not come into force until they are registered. No orders or regulations have ever been made, however.

This has given rise to a number of questions. Are no levies collected in respect of vegetables produced in B.C. that are marketed outside the province? Has the commission not exercised its powers? If there are these orders and regulations, on what basis are they considered to be in force?

The commission's initial reply did not answer any of these questions. However, it could be clearly inferred that federal levies have been collected even though no order imposing such levies had ever been in effect. By now, it has been well over a year since this situation was identified but no regulation or order has yet been put in place. In view of this fact, when the file was last before the committee, counsel was instructed to seek further details as well as an assurance that no levies whatsoever will be collected in respect of vegetables produced in B.C. that are marketed in interprovincial or export trade until a proper federal order was validly in place.

By way of reply, we have the June 18 letter from the commission's legal advisers that was written to the National Farm Products Council. It states that work is progressing in putting a proper order in place, although I would suggest it is evident that there is no sense of urgency to do this.

As for the money that was unlawfully collected, the letter stated that because the market is undifferentiated, it is impossible to say which amounts were collected in respect of vegetables marketed within the province and vegetables marketed outside the province. In other words, a single levy was collected for vegetables, period. This, of course, ignores the fact that levies on products marketed outside the province can only be imposed under federal legislation, and there is no federal legislation.

Apparently, to this day, the commission continues to collect money in the full knowledge that it is acting illegally. Given the duration of this problem, I suppose the committee could consider whether to ask that remedial legislation be introduced in Parliament to retroactively validate this illegal collection of money, assuming that, as a practical matter, there is no way of returning it to those who paid in the first place.

I also wonder whether it might not be appropriate to have officials from the commission and the council appear to explain the apparent lack of urgency in putting things in order.

Mr. Wappel: Again, I agree with Mr. Bernhardt. I think it is a good idea, but I am curious: If they are collecting levies, that money must go somewhere. Presumably, it goes into some bank account. It would be interesting to see if any of it is split with the federal government. However, I do not know how these things work.

Mr. Bernhardt: That levy is collected for the activities of the marketing board.

Mr. Wappel: Then they recycle it into their own expenses.

Mr. Bernhardt: That is correct. When you have an agricultural product, some of that is marketed in a province while some is marketed outside the province. These boards are provincial, so they only have authority under the provincial legislation to collect levies for things marketed within their province. The federal government then delegates authority to those boards to collect a levy for things marketed outside the province.

What then happens in practice is simply one levy in one amount. In law there are two levies: a federal levy and a provincial one. The boards impose the same amount across the board and collect the money from everyone. In so doing, they do not have to worry about whether the stuff stays or leaves.

The problem here is that they have only ever made their provincial order. They have no authority under federal law to collect money in respect of anything that goes outside the province. This has been going on since 2002. It was first drawn to their attention over a year ago. Since then, they have been taking their time.

Mr. Wappel: Yes, but if it was delegated, it must have been delegated by a federal minister.

Mr. Bernhardt: Yes.

Mr. Wappel: Is there no mechanism within the ministry to follow up to ensure that they are acting in accordance with the delegation that they were given?

Mr. Bernhardt: That is a good question. I presume that is part of the responsibility of the National Farm Products Council.

Mr. Wappel: Maybe we should have them appear before the joint committee as well.

Mr. Bernhardt: Exactly.

Mr. Wappel: We could ask them to explain why they did not pick up on this irregularity if, in fact, they are the ones who are supposed to be doing the monitoring.

Mr. Bernhardt: We frequently encounter problems where there is a gap and where provincial boards may be slow. I think we had one at the last meeting; there was a period of a couple of months where money was being collected illegally because they were slow making an order. However, they did make the order and then the committee had to deal with what to do then.

In this case, there has never been an order. It has been five years. They have known for a year that they need an order, and yet they are still collecting the money. This is on a different scale than anything the committee has seen before.

The Joint Chair (Senator Eyton): Does counsel have any idea of quantum?

Mr. Bernhardt: No, and that is a good question to ask. They have told us that they cannot differentiate. However, we could ask about the total amount. Presumably, they could make a guess as to what percentage of product is marketed outside the province and we could do the arithmetic.

The Joint Chair (Mr. Lee): In correspondence going back to this group, we first ought to signal clearly that there is an illegal collection of a levy with respect to the vegetables exported from the province. We ought to be very clear.

Second, although it may seem simple to us, we should refer the National Farm Products Council to an existing regulation or a levy in another province that would do the trick.

I do not know why they would see this as particularly complex. The fees they collect go to pay their expenses. One of their expenses is legal expenses. There is a bright lawyer here named Robert Hrabinsky who I am sure would love to get down to work and craft a levy order. Let us help them along a little bit and refer them to a viable levy order that exists with respect to another province.

Mr. Bernhardt: There are dozens.

The Joint Chair (Mr. Lee): We should also signal clearly that there is an illegal collection. That is high on our list historically. We do not accept these things going on for very long.


Ms. Guay: I would just like to make sure that, if they come to testify before the committee, they do so in an organized fashion and have a full report to submit to us. We do not want them coming here just to give us a song and dance. We have gone through that before. If they come before the committee, they should be serious about it, and they should have all the documents needed to shed light on the entire matter.


Mr. Bernhardt: When we write to ask for the appearance of officials, we can certainly give them a series of specific questions in terms of the money.

The Joint Chair (Mr. Lee): Did we agree we wanted to call the officials?

Mr. Wappel: Mr. Chair, let me say, first, that I agree completely with Ms. Guay. It is very rare that counsel recommends that we call witnesses. Certainly, members of the committee will often suggest that we call these people, but for counsel to make that recommendation is noteworthy. I noted it.

To me, in his usual diplomatic way, counsel said that the department did not appear to see the urgency of failing to solve this problem after five years, after knowing about it for at least a year.

Based on your comments, Mr. Chair, I want it to be crystal clear that the committee was going to request that these witnesses appear before our joint committee. Ms. Guay's interjection is appropriate, which is that they be well advised in advance about what we want so they do not come here and look at the ceiling. We want them to have specific answers to our questions, including what the joint chair said about how much money they are collecting. I certainly would hope that the committee is in agreement that we call them as witnesses.

The Joint Chair (Mr. Lee): Are we agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): Are next agenda item falls under the heading ``Reply Unsatisfactory (?).''


(For text of documents, see Appendix E, p. 3E:1)

Shawn Abel, Counsel to the Committee: Following the committee's consideration of this file on May 3, 2007, counsel wrote to the Department of the Environment conveying the committee's wish that the promised amendments on this file be pursued independently of a broader revision of the regulations. The broader revision was not anticipated to be completed until 2010.

The department indicates in reply that it takes careful note of the committee's suggestion and will examine the feasibility of this option in relation to existing priorities and resources. At the least, perhaps the department could be asked to provide more concrete information on when it will be able to speed up this process.

Clarification was also sought as to whether two outstanding points would also be the subject of amendments. No reply was given on this point, so a further request seems warranted.

Finally, the department did mention that no exports are currently taking place under these regulations. However, it is not clear why this is so. Therefore, perhaps an explanation on that could also be sought.

If the committee agrees, counsel could draft another letter pursuing these issues.

Mr. Wappel: Mr. Chair, in my opinion, this letter should not be under the agenda item marked with a question mark. It is so obviously unsatisfactory because it is absolutely departmental BS.

The department's officials say that they ``will examine the feasibility of addressing the amendments . . . in relation to existing departmental priorities and resources,'' but that could be 15 years from now. It is ridiculous. They also say ``that the Department has, indeed, every intention of considering your comments at the earliest opportune time.'' It is just insulting to receive a letter like that.

Parenthetically, I want to thank counsel for putting items 3 and 4 where they are, which is before others — namely, under ``Reply Unsatisfactory'' and ``Reply Unsatisfactory (?).''

I agree that we should write, but we should be clear that the letter was completely unsatisfactory to the committee.

Mr. Bernhardt: The only reason it was considered a possible question mark was the advice that there were no exports taking place under the regulations, although it is not really clear why that is.

Mr. Wappel: Exactly.

Mr. Bernhardt: It is a very faint question mark.

The Joint Chair (Mr. Lee): I am delighted to report that the comments by counsel and Mr. Wappel reflect my own notes made late last night.

Are there any other comments?

Mr. Wappel: Make sure the letter is strongly worded.

The Joint Chair (Mr. Lee): Strongly worded. Even though there are not any PCB waste exports happening, we would like to see our comments prioritized. As well, we would like to end the consideration period and get into an action period.

Is counsel okay with that?

Mr. Abel: Yes.

The Joint Chair (Mr. Lee): The next five items are under the heading ``Part Action Promised.''


(For text of documents, see Appendix F, p. 3F:1)

Mr. Abel: As explained in the note accompanying this file, the regulations replace previous Indian Oil and Gas Regulations on which the committee had commented on a total of 27 provisions over the years between 1980 and 1992.

Most of those concerns are now addressed: twelve through amendments to the old regulations; five through the adoption of these new regulations; and three due to amendments to the Financial Administration Act.

Two points of concern were carried over into the making of these new regulations. These two issues, along with 17 new matters, were put to the department on June 12, 2006. These 19 issues deal generally with equivalency of language between the French and English versions, and the elimination of language providing subjective discretion to administrative officials.

In its latest reply of July 7, 2007, the department agreed generally with counsel's concerns. Amendments were promised in line with the suggestions made but with a few exceptions. On points 1, 7 and 12 from counsel's letter, amendments were promised, but the department desires some time to determine the exact nature of those amendments and has promised to advise the joint committee when they have figured this out. On points 16 to 19, the department is considering how to address the concerns raised and again promises to provide further information after consultation with their legal drafters.

It is worth noting on this file that the department is currently in the middle of a broader review of both the governing act and these regulations, and they are expected to be completed in March 2008. In the meantime, perhaps a letter seeking progress in the review process could be drafted.

The Joint Chair (Mr. Lee): Are members agreed?

Senator Moore: We used to do a kind of cleanup statute that would handle all kinds of miscellaneous outstanding issues. Is that still part of our program? Could this process be brought to the attention of the parties so that it could be included in such a statute? I have not seen that for a while.

Mr. Bernhardt: You are referring to the Miscellaneous Statute Law Amendment Program of the Department of Justice whereby they accumulate various and diverse routine technical amendments to statutes until they have enough for a bill, and then it is fast-tracked.

As far as I know, that program still operates. You are quite right, senator, in saying that it has been longer than usual since a Miscellaneous Statute Law Amendment bill was tabled. We could make some inquiries at the Department of Justice to see if they are planning one.

Senator Moore: Some of these are open-ended and could easily be put into such a bill.

Mr. Bernhardt: There is a similar program for regulations whereby a department can make a miscellaneous order. We see those orders fairly frequently, but it has been several years since we have seen the last miscellaneous statutes bill. Often the joint committee asks for an amendment to a statute for clarification purposes. The joint committee could ask about what is happening in that regard.

The Joint Chair (Mr. Lee): Are there other comments on the Indian Oil and Gas Regulations? Counsel has done very good work on this item, reaching back to when the file began.

We will move to the next item in respect of miscarriages of justice.


(For text of documents, see Appendix G, p. 3G:1)

Mr. Abel: These regulations govern the process of applying for review by the Minister of Justice, under Part XXI.1 of the Criminal Code, of the conviction of an offence under an act of Parliament, or under the regulations made under an act of Parliament, or of a dangerous or long-term offender determination, where all of the rights of judicial review and appeal have been exhausted.

Counsel's December 14, 2006 letter raised five points of concern with the Department of Justice. They are a bit lengthy, so I will deal with them point by point.

The first point dealt with section 2(1)(f) of the regulations, which is the requirement that an application for review include a description of new matters of significance that support the application. It was suggested that the words ``if any'' be inserted in this provision because the existence of new matters of significance is not a requirement for review under the Criminal Code. The department takes the view, however, that the code requires that new matters of significance be raised in order for the minister to intervene, when, in fact, the code requires only that the existence of any new matters of significance be a factor taken into account. The code does not make this a determinative factor. Since section 2(1)(f) removes the application from any consideration if it does not include the mention of new matters of significance, this section does appear to be ultra vires of the code.

Would committee members like to discuss these points one by one?

The Joint Chair (Mr. Lee): Are there comments from the members?

Mr. Epp: I notice that in this response the department does not agree, whereas in the previous response there was full agreement in every instance. I took note of that point. In this response, the department delivers its arguments and reasons for non-compliance, and that is significant.

The Joint Chair (Mr. Lee): The chair picked up on that attitudinal piece as well.

I have comments on each of the points. I was concerned about points 1 and 5. As for the other points, it is a judgment call. I tend to accept the view of the department that points 2, 3 and 4 were narrow in focus and the department took a reasonable position on them.

However, if the DIO wanted to go head-to-head with the joint committee on point 1, I would be happy to do it and have Mr. Wappel lead off. I did not think the department's position was very strong, and I agree with counsel. As a side reference to Mr. Epp's comments, the department could have been more accommodating of our counsel's view on this.

I am prepared to sink my teeth into at least one or two of these points. If members are agreed, perhaps the joint committee could focus on points 1 and 5.

Mr. Wappel: I notice that Mr. Shawn Abel acted as counsel on this matter. Given that I was not here earlier in the first session, this is the first letter I have seen from him. He was about to go into full flight on all the points. In consideration of the fact that it is his letter and the response was to him, I would be interested in knowing his views on points 2, 3 and 4, since the joint chair has indicated my view on points 1 and 5.

The Joint Chair (Mr. Lee): Let us go to town and deal with all five, then.

Mr. Abel, please continue.

Mr. Abel: Point 2 concerns section 2(2)(g), which requires an application to be accompanied by, in addition to the documents listed in the preceding paragraphs of that section, any other documents necessary for the review of the application. Since the Governor-in-Council is empowered to prescribe the documents that must accompany an application, presumably what must be prescribed are specific documents or classes of documents.

However, in this case, the department argues that this provision exists only to give the applicant the opportunity to submit any documents that could assist him and that the provision is intended to encourage the applicant to do so. In effect, this provision goes further by requiring the inclusion of any document that is necessary for review.

Further, it is unclear who actually decides what documents may be necessary for the review. From the department's reply, it seems that it was not intended for the applicant to actually be required to provide documents that are not specified in the preceding paragraphs. If this is so, it seems that this provision should be reformulated to reflect that it is a discretionary obligation rather than a mandatory one.

Moving on to point 3, I will provide some background about the application. If at the second assessment stage of the application the minister does not conduct an investigation because he is not satisfied of the application's merits, the applicant has one year to provide further supporting information. If after one year no information is provided, then section 4(4) requires the minister to notify the applicant that no investigation will be conducted. In addition, section 4(5) requires the minister to conduct a new preliminary assessment if additional information is submitted after the expiry of the one-year period.

It was first noted that the regulations did not indicate what course of action the minister should take if additional information is provided within the one-year period.

In reply, the department explained that in this case the assessment continues and the application is re-evaluated as to whether an investigation should now take place. There does not appear to be any reason that this should not be expressly stated in the regulations and the department did not give any reason why it should not be.

Counsel also asked for the purpose of the one-year time period, given that an applicant can provide information even after this deadline expires. It was explained that where the information is not provided until after the one-year period, the application is booted back to the start and goes through a new preliminary assessment period. While it seems to be a satisfactory explanation, it is unclear what the administrative distinction is between the preliminary assessment and the pre-investigation assessment. Perhaps an explanation could be sought on this point, as well.

Point 4 concerns section 7(b) of the regulations. That section refers to abandoned applications. The department, on request, explained when it considers an application to be abandoned. Again, there does not appear to be any reason that the criteria for abandoned applications should not be set out in the regulations, particularly so a person can know when their application will be terminated by the department.

Finally, point 5 relates to a request to fix a minor spelling error in the application form, and the department agreed to make the promised amendment.

Mr. Wappel: Regarding point 4, Mr. Abel asked the following question in his letter: ``Under what circumstances would an application be considered abandoned?'' The question was answered. Are you now recommending that we push that further and suggest there should be something in the regulations specifying what you just said?

Mr. Abel: Yes.

Mr. Wappel: Is that in the interest of transparency for the potential applicants?

Mr Abel: Yes.

The Joint Chair (Mr. Lee): I found Mr. Abel to be fairly precise and exacting in his analysis. However, there ought to be some allowance to acknowledge that the ministry is trying to codify and regulate an internal process that has been created by reference in the Criminal Code but which is not a court process. If someone believes they have been wrongly convicted and they come up with new evidence, there has to be some system to handle that. I think the courts have made this suggestion. I did not feel the need to be too exacting here because this is not a situation where a statute allows the government to make regulations and they go ahead and make regulations pursuant to the statute. My impression is that this was an internal process to accommodate the needs of these allegedly wrongful conviction scenarios. It did not come directly out of a statute. Therefore, I was more flexible in how the department did it. Does counsel have any view on that?

Mr. Abel: Mr. Chair, in this case, it is a highly discretionary process; it is at the discretion of the minister. However, the framework is set out in the Criminal Code, and these regulations are made under fairly standard regulation-making power set out in section 696 of the Criminal Code. That said, it remains an option of last resort and it is a discretionary process.

The Joint Chair (Mr. Lee): Given that it is fairly discretionary, the department is just trying to nail down a fair procedure. For example, regarding this issue of defining an ``abandoned application,'' I do not regard that as worthy of too much effort. If the inmate says, ``I am not going to bother with that any more'' and it just sits there, the department simply needs an internal mechanism to count it. All we are doing here is counting the abandoned applications. We are not imposing abandonment. The regulation simply states that every year, or whatever period it is, we want to count the abandoned applications. Counsel is raising the point that ``abandoned'' is not well defined. I find that a bit too exacting and unnecessarily precise in this instance. I also feel that it is, perhaps, collateral to the purpose of the regulations in the first place.

Mr. Wappel: Mr. Chair, I will take issue with your analysis, with due respect. If you look at the Regulatory Impact Analysis Statement included in the material, it specifies that Bill C-15A abrogated the Criminal Code sections and added new Criminal Code sections 696.1 through 696.6. Those, as I understand the RIAS statement, in law require that it clearly be stated when a person is eligible for a review. That would, I presume, also include when something is abandoned and when it can be ``re-brought.'' That is not a requirement internally; that is a requirement of the Criminal Code as I read the RIAS statement regarding one of those sections of the code. It says further that it must specify the criteria under which a remedy may be granted, and it expands the minister's powers and provides information to those investigating the cases.

I think there is, in fact, some requirement in the statute itself for specificity and clarity. Both of those terms are debatable, and I believe that is why Mr. Abel is suggesting that we go back and discuss these matters with the Department of Justice. I would think that the system you were talking about would have been the system in existence before Bill C-15A passed, which then required that there be specificity in the Criminal Code.

This might be why they are making these regulations; namely, they were required to under the code, not because they are trying to streamline their own internal processes. I agree that we should cut them some slack, but where the statute is requiring clarity and specificity, we should ensure the regulations reflect that.

The Joint Chair (Mr. Lee): What will we do here? Will we write again?

Mr. Bernhardt: In some cases, there has never been a request for amendment. There was simply a request for information. We now have the information and so there is nothing to prevent the committee from simply making the following suggestion to the department: ``This is what you have explained you do. Why not express it a little more fully and clearly in the regulations?'' We are not asking for a change in the practice or the procedure. We would like it to be set it out more fulsomely in the regulations. We can forward that comment as a suggestion and await a response.

The Joint Chair (Mr. Lee): I fully agree with counsel on point 1; namely, that a regulation stating that evidence of new matters shall be provided creates a problem when new matters are not essential to the application.

Mr. Bernhardt: We can pursue that more insistently. We can take a different approach on each of the points.

The Joint Chair (Mr. Lee): Will we run this matter up the flagpole again and go back to it with the department to see if we can get some precise amendments?

Hon. Members: Agreed.


(For text of documents, see Appendix H, p. 3H:1)

Mr. Abel: Following the committee's consideration of this file on June 4, 2007, counsel wrote to the Public Service Commission concerning three provisions. In reply, the commission promised to amend section 7 and section 8 of the regulations in line with the committee's recommendations. In relation to section 5, the committee considered that this provision should provide a fixed time limit in which the commission must resolve a federal employee's application to seek nomination as a political candidate.

The commission indicated that it would be willing to fix a general time frame of 30 days subject to exceptional circumstances where it would be impractical to render a decision in that time. It was suggested that exceptional circumstances might be where an applicant changes position during the time frame or accepts an acting appointment.

If the proposed amendment was to clearly indicate that the exceptional circumstances are where a material exchange occurs after the application has been submitted, as these two examples suggest, this would seem to be a substantial improvement over the current provision. If the committee agrees, a further letter could be drafted seeking confirmation on this point and a progress report on the other two amendments.

Mr. Epp: I happen to be one who was in this boat, although I was employed by the provincial government and not the federal government. If I remember correctly, we had a clause in our collective agreement — and I was the first one in our institution to use it — stating that anyone seeking or serving in municipal, provincial or federal office as an elected official has the right to request time off without pay, such request not being unreasonably denied.

The commission is proposing that it will be ready, on application, to make a decision within 30 days, which is vastly inadequate. I know of cases concerning seats that have become vacant in a by-election. When that happens, a person may need to be granted time off very quickly. Therefore, I would like to voice the opinion that 30 days may be a general guideline, but in terms of the regulations, it could be faster if needed.

Mr. Abel: I can provide a little illumination on that point. The reason 30 days was chosen is because under the regulations a person has to provide an application at least 30 days before they seek election. The timeline on the commission would fall in line with the timeline on the number of days the application has to be in for. They probably just chose one to conform to the other. Your concern would apply to that as well, but that is probably where the commission is coming from.

Mr. Bernhardt: The committee's concern was that the commission not sit on the application until the close of nominations — by which point it would be moot anyway — and simply not make a decision. Because you have to ask for permission 30 days before the closing date for nominations, I think, as Mr. Abel was saying, that is where it comes from.

The committee's concern is that a person be entitled to get an answer before the nomination period has run out. However that is worked out would be satisfactory to the committee. The concern was to avoid a situation where the commission held off on making a decision until the clock had run out.

Mr. Epp: In the case of an election, I know of instances where a political party had been looking extensively for an adequate candidate. Finally, as the deadline approached, they found one who was willing to stand, but now the timelines are much closer. That is what I was referring to.

Instead of just saying they must respond no later than 30 days, I would prefer what it said in our collective agreement — ``such request not being unreasonably denied.'' This wording provides flexibility and says it is okay to hurry the process. It would be good if we could have similar wording. It is just a detail, but I would like that communicated to them.

Mr. Wappel: I think Mr. Abel has not sought elected office yet because his suggestion that the commission provide an answer by the closing date for seeking nominations is way too late. If you only found out on the day nominations closed, many things go into getting your nomination, including signatures, money and filling out forms. They cannot possibly be done in a 24-hour period under normal circumstances.

While I agree that there should be a fixed time frame — for the reasons that Mr. Epp put forth and to provide some certainty — it would be totally self-defeating to have that time frame as the closing date for seeking nominations.

Frankly, the time period should not be 30 days, for some of the reasons Mr. Epp expressed. This was not an entirely unforeseen circumstance. I do not see why it could not be 15 days or some reasonable period that would allow at least seven days before the closing of nominations so that the person who has been given permission can get their paperwork in order. Otherwise, they effectively will be barred anyway just because they will not have the opportunity to do it.

Mr. Bernhardt: This is obviously a case where members have far more firsthand experience than counsel. We are in your hands as to what the committee would consider a reasonable period.

Mr. Wappel: Mr. Abel appears to want to make a point.

Mr. Abel: A bit of nuance here might need to be noted. The wording of the regulation is such that a person must provide an application 30 days before the decision is required. Essentially, it is the applicant's call as to when the time starts running. They can provide the application as far in advance as they like. The moment they provide the application, if a fixed timeline of 30 days is established, that is when the timeline would begin.

Ms. Barnes: In answer to that point, I would like to say that the applicant has no control over the timeline. The party does, and the party can play a lot of games. I am not talking specifically about one party — every party can.

The way you have this drafted would discourage anyone. The only way I could see this working is if a person were acclaimed and no one contested it. Even then, there are still scenarios that would be very difficult to meet in a day.

This proposal might have worked 20 years ago when there were not as many applications and screening of candidates, but we are long past that time. Therefore, I find this is not satisfactory.

The Joint Chair (Mr. Lee): We are checking about facilitation of a Charter right here, so we have to make sure we get it right.

Counsel is chasing the right objective. Do you want to go back at this again and make sure that we are satisfied that we get agreement from them that we have acceptable wording?

Mr. Bernhardt: At this point, we would need an indication from the committee regarding what it feels a reasonable period would be.

The Joint Chair (Mr. Lee): The problem that has arisen concerns when there are less than 30 days available. If there is a two- or three-month run-up, as counsel points out, it is the applicant who starts the 30 days running. The applicant picks the time when he or she makes the request.

Thirty days, in many cases, might be quite reasonable. The problem is when you have a last minute request for an individual to run and you need a decision from the Public Service Commission when there is less than 30 days.

Could counsel comment? How is that fixable? When there are less than 30 days before the nomination, how does the person get permission on time to participate in the public election process?

Mr. Epp: In local municipal elections this scenario does not happen infrequently. Someone may step down and decide not to run again, so the ward becomes vacant and a replacement must be found. When the citizens see that candidates A, B and C are running and they not want to vote for any of them, they start scouring the bushes for a suitable candidate. If they find one who happens to be a civil servant, at that stage, the timelines become much tighter.

I would like to see wording with some flexibility, for example, ``no longer than 30 days but where necessity requires, that it be done much more quickly.'' I do not know how to word that; it is way beyond my ability.

Mr. Wappel: I am wondering if we could approach this a different way. The civil servant has to obtain permission from the commission to run. What criteria are used by the commission to determine whether or not permission is granted?

The reply of the Public Service Commission on section 5 indicated that 30 days is okay, and then it provided two examples when 30 days would not be okay, neither of which has anything to do with the commission's job. It is the applicant doing something or not doing something.

Perhaps I am naïve, but under what scenarios would the PSC say, ``No, you cannot run?'' Are there any regulations dealing with that situation? If we knew the criteria that the commission was exercising to determine that permission, we might have a better ability to guess how long it would take them to do those things.

The Joint Chair (Mr. Lee): The commission would not say, ``You cannot run''; but they would say, ``No, you cannot have a leave of absence.'' Perhaps counsel has an answer.

Mr. Bernhardt: I do not have the regulations in front of me, but we have dealt with these issues before — for example, with the RCMP. Typically, it would involve certain public servants in senior positions, deputy ministers and so on, who might be denied because of a perceived conflict of interest. For example, if a person applies and immediately thereafter is promoted or transferred into one of those positions, it could be relevant. The commission also reserves the right to say, ``No, we cannot spare you right now. You are working on something so important that the whole department would come to its knees if you left us.''

Mr. Wappel: On the face of it, those things do not seem to me to require 30 days to make a decision because a person's senior position is quite obvious. Senator Harb mentioned a time frame of two weeks. It would seem that 14 to 15 days would be a reasonable time frame for an applicant to receive a timely decision, just to push things along so that whomever is making the application can get a decision, especially given the tight timeframes of elections.

Mr. Bernhardt: We will proceed if that is the committee's view.

The Joint Chair (Mr. Lee): It is agreed that counsel ask that they consider a tighter time frame and respond to the committee.


(For text of documents, see Appendix I, p. 3I:1)


(For text of documents, see Appendix J, p. 3J:1)

Mr. Bernhardt: We have amendments promised to address points 4, 5, 6 and 7. I would suggest that point 1 is satisfactory.

On point 2, it was questioned that the length of the payment period for duties could vary from 8 days to 43 days. The reply stated that this is the result of consultations with the private sector, but that does not tell us why it was adopted. It is my guess that it was simply to have a hard and fast rule. If the industry is happy with it, I would suggest there is nothing for the committee to pursue.

Point 3 concerns the vagueness of the requirement that someone must be of good character in order to qualify for customs self-assessment. The reply provides some examples and claims that this term has been considered by the courts. It seems clear that the agency has internal criteria and guidelines it uses. I would suggest that they be set out in the regulations. If the committee agrees, we would pursue that point further.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): We now move to the two items under ``Reply Satisfactory.''


(For text of documents, see Appendix K, p. 3K:1)


(For text of document, see Appendix L, p. 3L:1)

Mr. Bernhardt: Under ``Reply Satisfactory,'' some questions were raised on the two files and the reply is considered satisfactory. The second file can be closed.

Senator Moore: What was the verdict on the first file?

Mr. Abel: I can give members a rundown of the first file.

The committee considered this issue on March 22, 2007, and sought further advice from the Department of Justice on a certain policy in respect of orders coming into force and which provisions they mentioned. They have proposed a new policy that if adopted would resolve the committee's concerns. I would suggest that the committee follow this up to determine whether that policy has been adopted.

The Joint Chair (Mr. Lee): Are members agreed?

Hon. Members: Agreed.

The Joint Chair (Mr. Lee): The next two agenda items fall under ``Action Promised.''


(For text of documents, see Appendix M, p. 3M:1)


(For text of documents, see Appendix N, p. 3N:1)

Mr. Bernhardt: Under ``Action Promised,'' we have two files in connection with which four amendments are promised. We will follow progress on those in the usual fashion.



(For text of document, see Appendix O, p. 3O:1)


(For text of document, see Appendix P, p. 3P:1)


(For text of document, see Appendix Q, p. 3Q:1)


(For text of document, see Appendix R, p. 3R:1)

Mr. Bernhardt: Under ``Action Taken,'' three instruments make seven corrections that were previously promised to the committee. As well, files on SOR/78-450 and SOR/84-305 can be closed because the regulations have been revoked and replaced.





























Mr. Bernhardt: Under ``Statutory Instruments without Comment,'' 28 instruments have been reviewed and have been found to comply with all of the committee's criteria.

The Joint Chair (Mr. Lee): Good work, counsel. Thank you.

For the record, I will confirm that the second report of the committee on the subject of incorporation by reference was tabled in both Houses yesterday.

We have no further business today.

The committee adjourned.

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