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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 7 - Evidence, April 3, 2008

OTTAWA, Thursday, April 3, 2008

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for consideration of a draft budget and for the review of statutory instruments.

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


The Joint Chair (Mr. Lee): Colleagues, for the first part of the meeting, which will be chaired by Senator Eyton, we will deliberate on the budget for the new fiscal year.

The Joint Chair (Senator Eyton): I think copies of the draft budget for this year have been circulated to all of you. There is little change from last year. I hope to be corrected if I am off here, but I believe the only change is the $17,500 for transport and communications.

There is more detail on that item over the page, but the entire increase is attributable to anticipated witness expenses. This year, over last year, that number has increased from $3,000 to $15,000, which is the explanation for the $12,000 difference in the budget. Apart from that change, the budget is identical to last year's.

The numbers are modest compared to the budgets of everyone else I know in this city. I open the floor for discussion.

Are there any comments or questions?

Senator Bryden: I move adoption.

The Joint Chair (Senator Eyton): Are there any other comments? All in favour say ``aye.''

Hon. Members: Aye.

The Joint Chair (Senator Eyton): Carried. I will now hand off to my worthy joint chair.


(For text of document, see Appendix A, p. 7A:1)

The Joint Chair (Mr. Lee): Most of you will know there was a recent Supreme Court of Canada judgment, which happily has clarified some of the criteria that will allow us and the rest of the regulatory world to distinguish between a fee and a tax. We had our own difficulties with that issue. Counsel, can you walk us through the decision?

Peter Bernhardt, General Counsel to the Committee: Members have before them this morning copies of that Supreme Court decision, 620 Connaught Ltd. v. Canada. The judgment was released on February 29 of this year, and there is a brief summary of it in the materials this morning.

The committee had taken the view that certain fees for licences to sell alcoholic beverages in national parks and at national historic sites, which were based on gross purchases for sale under the licence, constituted a tax on the activity to be carried out under the licence. These fees, in respect of Jasper National Park, were then challenged in court.

The Supreme Court took a different view. They unanimously confirmed the Federal Court decision that the fees are valid regulatory charges and do not constitute a tax. The Supreme Court recognized that the fees had all the characteristics of a tax, but nevertheless considered them to be a regulatory charge because they are connected to a regulatory scheme, namely the administration and operation of Jasper National Park.

The principle laid down by the Supreme Court appears to be that charges imposed for the granting of a licence, a right or a privilege will be fees, notwithstanding that they possess the characteristics of a tax, if they relate to a regulatory scheme, provided there is a sufficient relationship between the scheme and the persons being regulated and between the fees paid and the regulatory scheme, and provided the amounts collected do not significantly exceed the cost of the regulatory scheme. It seems that the manner in which the charges are structured or collected is not of particular relevance.

Obviously, fees imposed by regulations do not exist in a vacuum. It will almost always be the case that they will relate to some broader scheme. Similarly, it almost always will be the case that those paying the fees either benefit from the scheme or are the reason for having the scheme in the first place. Therefore, the question of whether a fee is a tax will almost always come down to the question of whether the amounts collected significantly exceed the cost of the regulatory scheme.

This determination will hinge, in large part, on how we define the regulatory scheme — broadly, narrowly or somewhere in between. It always remains open to this committee to request information to enable it to form a view as to whether a given fee is a tax or a regulatory charge.

The Joint Chair (Mr. Lee): We do not want to spend too much time on this item because the Supreme Court has nailed it. However, I want to ask counsel if the Supreme Court was asked to consider the possibility that income tax might also be seen as a fee if the regulatory scheme was the governance of the country as a whole, and if income tax is simply a percentage charge against a revenue stream or an income, as this alcohol tax was.

Mr. Bernhardt: It is interesting you raised that example, Mr. Chair, because we kicked around the same hypothetical question in the office when we read this judgment. You can make the argument that, given the amount of social policy, social goals and various other aspects that are attached to the income tax scheme at this point, that income tax is a regulatory scheme.

I do not know if I would want to go to the Supreme Court arguing that income tax is not a tax, but only a regulatory fee. However, if one wished to be the devil's advocate, I think one can make certain parallels. Perhaps I should leave it at that.

The Joint Chair (Mr. Lee): We might be in contempt of court. Are there any questions?

Mr. Epp: Out of curiosity, when this issue was debated at the Supreme Court, was that point brought up in the arguments?

The Joint Chair (Mr. Lee): They did not ask us to intervene.

Mr. Epp: They did not, but do you have any knowledge of whether that point was raised?

Mr. Bernhardt: I am not aware if that argument was raised.

Mr. Epp: Since the learned people in this room can make that connection, one would think the people in that big white building would make it.

Mr. Bernhardt: It is not for me to speculate on what was raised or considered.

The Joint Chair (Mr. Lee): Some people were desperate to retain the status quo and to keep that type of fee in place.

In any event, we are now guided in how we, as a committee, scrutinize fees. Just because something is a fee and not a tax does not mean we do not have criteria still by which we scrutinize it. We have previously scrutinized fees for their compliance with law and the Charter, et cetera.

Can any point be made at this time to Parks Canada that, now that they are clearly charging a fee as opposed to a tax, they must comply with the requirement for fees? In other words, they must not over-charge; they must keep an eye on the revenue stream from the tax; and any other fee strictures.

Should the committee make reference to any other issues in closing the file with Parks Canada?

Mr. Bernhardt: I think the only fees that the committee had ever taken issue with are these particular ones. There is a master list of fees that runs about 160 pages. Except for these fees, what we see are camping fees of $27.50 a night, permit fees for running a hot dog stand of $75 a year, et cetera. The fees are more or less unobjectionable.

These fees stood out because they were based on a percentage of the business conducted under the licence.

The Joint Chair (Mr. Lee): Did we ever resolve that old issue, the one where we concluded that access by a citizen to a national park was a right characterized as such in the statute.

Mr. Bernhardt: That issue is still ongoing. At one point, we had an undertaking from the minister to amend the National Parks Act.

The Joint Chair (Mr. Lee): The issue is still out there. That is fine.

Mr. Szabo: I agree with that latter point. There are considerations outside, say, the business entity, or how it is defined.

My question is with regard to the onus on providing the assurances. It seems the onus is on us to find a problem, rather than the proponent of the fee or tax making a declaration or making their analysis accessible to be able to do that. There must be some assurance to ratepayers that they are not being charged in excess, whether the charge is a tax or a fee.

Where is the onus in terms of the decision?

Mr. Bernhardt: The courts seem to indicate that, once someone objects to a fee, then the onus falls on the person imposing the fee — the government — to justify the fee as being part of a valid regulatory scheme. However, that onus hinges on someone objecting in the first place.

Similarly, if the committee looked at a fee and had some reason to think that it might be problematic, the committee would raise an issue with the responsible department. It would then fall to the department to explain the basis on which the department collected the fee, the amount, the nature of the scheme, the overall cost of the scheme and so on.

Mr. Epp: This point raises yet another question: The court has ruled there must be some relevance or relation between the cost of providing the regulatory service and the fees charged. I wonder how Parks Canada can make a connection between the number of bottles of beer sold in one of these stores and their cost of regulating it. Surely the items are unrelated. Whether they sell one case a year or 5,000 cases a year, the regulatory costs would be equivalent, I would think.

Mr. Bernhardt: Again, that brings us to what will often be the key issue: how we define the scheme. In this case, the people objecting to the fees argued that the scheme should be defined as controlling liquor sales in the park. The court said, ``No, the scheme is administering the park. Therefore, the cost of the regulatory scheme is the cost of running Jasper National Park.''

The liquor licence fees were, of course, a small part of that cost. The court then concluded that there was a connection because the people paying these fees had the right to sell liquor. They received the benefit of being in the park and there being visitors to the park and so on; it was all part of the scheme.

If one defined it more narrowly, one might reach a different conclusion.

Mr. Epp: If I were one of those merchants, I would now go after that point. I would say, ``Please demonstrate to me how your costs go up when I sell ten cases of beer versus one.''

Mr. Bernhardt: That issue is a consideration. We have a separate category of fees that are fees for services. If they pay a fee for a service then the government must show the cost that the fee is tied to; the cost of providing the service. Here, the court said: No, all we need to do is bring it under the umbrella of a regulatory scheme, and if they are not making a profit from that regulatory scheme, it is basically okay.

Mr. Wappel: Mr. Chair, I do not want to prolong this discussion. However, if the scheme is the admission of the park, the simple question is: What is the annual cost of administering the park? This question is followed by: What do they receive from all their entrance fees, camping fees, liquor taxes, or whatever they want to call them? If that amount is greater than the annual cost of administering the park, the charge is not a fee.

Mr. Bernhardt: Basically, that is the situation. Although the court will give the government some leeway, if they run a 5-per-cent profit one year and a 5-per-cent loss the next year, that is fine. Again, we have the broadcast licence fees in which $90 million over and above the cost of the scheme were collected every year. Under this analysis, we reach the same conclusion that the court did in that case: It is a tax.

The Joint Chair (Mr. Lee): Although the result is arguably somewhat Orwellian, we have clarity and we can move on.

Mr. Epp: In terms of precedence, who ranks higher, us or the court?

The Joint Chair (Mr. Lee): Actually, we are equal in the constitutional sense. However, the court is deemed to be the expert on interpretation of the law. Therefore when the courts interpret a law, we need to read the law in accordance with how they interpret it.

Mr. Bernhardt: Parliament always has the trump card. It can change the law.

The Joint Chair (Mr. Lee): It can re-legislate.

Mr. Van Kesteren: I know we want to move on. In this particular case, are municipalities not given the jurisdiction of liquor licences, and are they not the ones that charge? Given that Jasper is a unique park that has services for liquor, someone needed to administer those licences. I think, in this particular case, Parks Canada has done that. However, it is the same as a municipality.

The Joint Chair (Mr. Lee): All officials are delighted to have a liquor licence, a tax and a revenue stream. It is just what the doctor ordered.

The Joint Chair (Senator Eyton): Can counsel comment to what extent the precedents satisfy the case — that something will be followed by other regulators? It seems to be a wide-open invitation to define the scheme and then to impose fees according to their discretion.

Mr. Bernhardt: There will always be attention on this issue. It will be in the interest of the people imposing the fees to define the scheme as broadly as possible because that broad definition will give them greater leeway. A person paying the fee will always want to talk about that scheme being as restricted as possible.

In the case where there is no agreement and the item ends up in court, that is where the rubber hits the road. The court in each case will define the scheme. In most cases, this definition will answer all the other questions. If they define the scheme broadly, it is likely it will be justified. If they define the scheme narrowly, it is less likely.

The Joint Chair (Mr. Lee): Municipalities used to charge a poll tax. I wonder whether they would call it a fee now. They charge each citizen so much per head. Part of the regulatory scheme is the operation of the municipality. Therefore, we do not need to deal with this charge like a tax; it is really a fee. I will stop there.

Senator Bryden: Like everyone else, I do not want to flog this issue. However, another situation runs through my mind: Is there a scheme for the administration of fisheries licensing? You know that we have been in constant dispute with the regulation of fisheries licences. We claim there is no basis for the position taken by the provincial governments because there is no ground in the act. However, should we enlarge it and say, ``This is a larger scheme''? This position is the one the provinces and the fisheries are taking. It is a scheme to administer the fisheries of the Province of Ontario, and policing is part of the scheme. I know it is not revenue-based but it still has impact on the individual fishermen and the individual citizen.

I raise this point because it is the thin edge of the wedge that says people can come in anywhere, whether for fish or other. What we are doing here is part of the larger scheme, so we are doing it properly.

The Joint Chair (Mr. Lee): It is a great idea for an op-ed piece, but we need to move on. The court has ruled.


(For text of document, see Appendix B, p. 7B:1)

Mr. Bernhardt: Section 14 of the regulations purported to authorize the Minister of Indian Affairs and Northern Development to deem certain persons to be the widow of a deceased Indian for the purposes of intestate succession. Following the committee's Report No. 65 in 1999, the government conceded that there was no authority for this provision, and it was revoked.

At the time, the government also accepted that any solution must also involve introducing a bill to validate the 3,000 orders that had been made under section 14. Subsequently, however, the minister told the committee that the Department of Justice had suggested there was no benefit in validating orders, unless they had been struck down judicially or challenged by family members. For the reasons set out in the letter from the joint chair on August 22, 2006, this was considered to be unacceptable. An assurance was sought that the government would honour its commitment to ask Parliament to ratify the illegal decisions made pursuant to section 14, as a result of which, persons were deprived of their property rights.

In the minister's reply, he accepts that the deeming of widows under section 14, although well-intentioned, was illegal. He also refers to validating the section 14 orders by utilizing other future legislation to be brought forward, and states his commitment to resolving the matter. Obviously, it is positive that the government has reinstated its commitment. At the same time, more than one year has passed so perhaps the department should be asked what future legislation the minister had in mind and when it is expected to be introduced.

I add in passing that Bill C-47, which was recently introduced in the House of Commons, deals with certain aspects of succession in connection with structures and lands on reserves. However, the bill does not validate any previously made orders.

Mr. Wappel: I have two points. I compliment the author of the letter to the minister because the letter was excellent. I do not know why we would write to the department when we have an undertaking of the minister. Of course, there will be a new minister now but any letter should go to the new minister reminding the minister of the commitment of the previous minister. We should keep the issue at the ministerial level because it is a ministerial commitment.


Mr. Lemay: Did I understand you correctly? Bill C-37? Is it not Bill C-47?

Mr. Bernhardt: Forty-seven.

Mr. Lemay: If it is C-47, I can tell you, since I sit on the Committee on Aboriginal Affairs and Northern Development, that nothing in that bill deals with successions. The bill deals with family homes in the case of separation or divorce. I am a little surprised to be told that it contains something on First Nations' succession rights.


Mr. Bernhardt: That is correct. Bill C-47 deals with certain succession issues, in particular real estate situated on reserve. The bill provides for agreements with various First Nations to enact their own regimes, and so on. I looked at that bill the other day and found that it does not contain any provision that would validate these orders.


Mr. Lemay: With respect, Mr. Chair, would it not be appropriate for this committee to ask the current minister whether or not it is his intention to amend Bill C-47 to include provisions on successions? That would mean only one study to do, and it would include the entire controversial file that has been dragging around the department for 15 or 20 years.


The Joint Chair (Mr. Lee): We could ask, if the bill has gone to committee. It is in the House.


Mr. Lemay: With respect, Mr. Chair, this bill is going to be tabled in the House of Commons for first reading in the next few weeks. So we could ask beforehand, and that would allow us to study it when it comes to committee.


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

Mr. Epp: Counsel seems to point out that it does nothing for decisions made in the past. Is it possible for Parliament to enact a law that enables something being done illegally to be made legal retroactively? Can we do that?

The Joint Chair (Mr. Lee): Yes.

Mr. Epp: I was of the impression that we cannot enact laws retroactively.

The Joint Chair (Mr. Lee): We always do it carefully.

Mr. Bernhardt: Parliament has that power. There is a presumption when it comes to regulations that a regulation cannot be retroactive unless the act expressly authorizes that retroactivity. Parliament being supreme, and subject to any Constitutional restrictions, can do as it pleases.

Mr. Epp: Perhaps that point should be included in this letter, even though it is a different topic, because we were talking about separation and divorce, and now we are talking about death and estates.

Mr. Bernhardt: Some aspects deal with succession.

Mr. Epp: I recommend that the letter to the minister include the issue of retroactivity.

The Joint Chair (Mr. Lee): Behind this issue is the real fact that the legal interests of some individuals have been prejudiced by these regulations. Those individuals might know it and there might be litigation but, at this time, the department seems to be low-balling the fix, perhaps in the hope that after two or three decades, the problem will have disappeared. The outstanding fix still exists, and we keep pressing them to do it. As Mr. Lemay pointed out, Bill C-47 might be a vehicle to fix this situation. It has not been done because the department is afraid to put into a proposed statute that they have a problem, given that the proposal might trigger litigation. That is one factor.

Mr. Epp: If the department thinks the issue will go away after decades, then it does not know how this committee works.

The Joint Chair (Mr. Lee): The Aboriginal community has a long memory as well.


(For text of document, see Appendix C, p. 7C:1)

Mr. Bernhardt: Amendments to address the committee's concerns were proposed in a letter from the Minister of Health on December 13, 2006. However, it was found that the proposals would not resolve two matters fully. This finding was communicated to the minister by the joint chairs. In his letter of December 18, 2007, the minister advises of changes to the proposals. The planned amendments would resolve all the committee's concerns. This being the case, it would be a matter of following up on the progress that has been made on the amendments.

The Joint Chair (Mr. Lee): Are there comments? I congratulate the minister and the ministry for a timely response.

I forgot to mention concerning the previous item that last month it entered the quarter-century club. The committee first opened that file in February, 1983.


(For text of document, see Appendix D, p. 7D:1)

Mr. Bernhardt: Three amendments to the regulations were agreed to by the department in 2000. At that time, the committee was told the amendments would be made together with other amendments that were anticipated to proceed during the next fiscal year. Since then, there have been a series of delays pending consultations and the submission of a proposal from the provincial government.

Last year, the committee was told that while its comments would be taken into account, the department did not know whether the changes recommended would be adopted. The department also declined to provide a time frame. The chair then sought the minister's cooperation in ensuring that the proposed amendments proceed without further delay. The committee gave instructions that the file be brought back before the committee early in the new year.

When the committee considered the file in February, no reply had been received from the minister. This situation led the committee to decide to have representatives of the department appear. Counsel was also asked to review all the committee's files relating to the Department of Fisheries and Oceans with a view to possibly dealing with all the files at that meeting.

We have undertaken that review but in the meantime, there has been a reply from the minister in connection with the Saskatchewan regulations. In the letter, the minister indicates that two of the promised amendments will be made as part of a forthcoming omnibus package that is being initiated.

The third matter pertains to the definition of ``Indian'' in section 2 of the regulations. The definition refers to the meaning of the term in the Saskatchewan Natural Resources Transfer Agreement entered into between the province and the federal government in 1930.

The agreement refers to Indians, but it says nothing about who is or is not considered to be an Indian, so it tells us little. When first asked why this approach was taken, the department replied that it would make an amendment, although there was no indication what the nature of this amendment would be.

In the latest letter, the minister advises that what is intended is simply to ensure that the term ``Indian'' has the same meaning in the both the regulations and the agreement. In other words, even if it is not certain who is or is not considered to be an Indian, what the government knows for sure is that it wants the term to mean the same thing in both places.

I suppose it is open to conclude the response is acceptable in the circumstances. The question then is whether members still feel anything is to be gained by the appearance of departmental witnesses. In this connection, it might be useful to have a brief overview of the status of all those other files the committee has with the department. If members wish to have that review, we are prepared to do that this morning.


Mr. Lemay: I have to confess that I have difficulty with all that. I am the Bloc Québécois critic for Aboriginal affairs and northern development, and when I saw the letter to Mr. Hearn, and especially the replies, I understood that there is a definition of the word ``Indian'' in the Indian Act. What I do not yet understand is why we would try to come up with another definition that would raise questions about all the files again. I am talking about Bill C-30 that we are currently studying and Bill C-47 that we will be studying soon. I do not understand! Really, I do not understand departments who do not know what the left hand is doing when the right hand has already decided what it is going to do.

I would tell the minister to take the definition in the Indian Act and use it. In that way, he would avoid any legal challenge problems, at least most of them. I know them, they are going to try to take the decision made by the Supreme Court, at which point, they are going to have problems.

If I had one recommendation to make to this committee, it would be to tell the minister to use the definition in the Indian Act, then everyone will be happy.


The Joint Chair (Mr. Lee): The real problem is if they take the definition and they start charging fees.

Mr. Bernhardt: I am only speculating in this case, but given that we are dealing with resource rights, my suspicion is that there are policy and political issues dealing with status Indians, non-status Indians and Metis, especially in this particular province. They may hope to avoid opening up all those issues under the Saskatchewan Fishery Regulations, and to deal with them, rather, through the various negotiations with First Nations.

Hence, they expressed the idea that they are not sure what it means, but they are happy it means the same thing in both places. It is a bit contradictory. I am guessing that the source of this response is all the issues related to who is and is not entitled under the transfer agreement, and hence through the regulations.

Mr. Wappel: Counsel asked the question, and I want to give my suggested answer, but it seems to me that counsel has correctly identified the situation regarding ``Indian.'' It has to do with the peculiarity of the province of Saskatchewan. There is a particular — I forget the name of it — umbrella organization of Aboriginal people that is strong; it is specific to Saskatchewan and the organization deals with the province directly. These issues are resource issues.

It seems to me that one could have said, in drafting the regulation, that in these regulations ``Indian'' has the same meaning as in the Saskatchewan Natural Resource Transfer Agreement. That agreement would have provided the definition.

The other alternative would have been to attempt to convince the Saskatchewan authorities to adopt the definition of ``Indian'' that is in the Indian Act. That approach would have provided consistency. I guess officials do not want to go there.

I think that is the answer to ``Indian.'' I doubt officials will want to impose the definition of ``Indian'' in the Indian Act without lengthy consultations with the province and with the Aboriginal umbrella group.

With respect to the appearance of officials and a review of the other files, I do not think we should go into that matter today. It is complex. We have had numerous meetings on this matter and at least two ministers before us.

However, I think it would be important for counsel to put something together for a future meeting, which would summarize where we stand on all these issues with respect to the Department of Fisheries and Oceans. At that time, perhaps the committee could consider whether it is worthwhile to call officials and if so, for what purpose.

The Joint Chair (Mr. Lee): Do colleagues agree with that approach? I am inclined to give the department a ``B'' for comprehension. They are engaged and recognize the issues. We are dealing only with the modalities of the fix, for the most part. I think Mr. Wappel makes a good suggestion. More than one province is involved. Is that okay, Mr. Bernhardt?

Mr. Bernhardt: Yes.


(For text of document, see Appendix E, p. 7E:1)

Mr. Bernhardt: The Government Property Traffic Act authorizes the Governor-in-Council to make regulations prescribing a fine as punishment for the contravention of the regulations. Section 39(1) of the regulations, in turn, provides that the amount of the fine is the amount prescribed under the highway traffic laws of the province, as amended from time to time.

First, if the amount is prescribed under provincial laws, it cannot be said to be prescribed by the regulations. Second, the committee has always taken the position that a clear, express indication to the contrary is required to deviate from the principle that incorporation by reference of external material is only proper where a fixed text is incorporated, rather than a text as amended, from time to time. The committee's view is that to allow automatic amendment is to subdelegate the power to determine the content of the regulations.

In the February 14 letter from the minister, he notes that the committee recently tabled its report on the issue of incorporation by reference generally, and a comprehensive government response was asked for. He indicates his department was waiting for this response before considering this particular file. That response seems to make some sense.

The government response is to be tabled in the House of Commons by April 10. Once the committee has that response, it can study it and proceed from there.

The Joint Chair (Mr. Lee): Are there any comments? Good. This series of letters deals with that dreaded ambulatory incorporation by reference, AIR. Colleagues, I thought it was cute that our report to the House has been taken up by the ministry as one of these mandatory consultation exercises. We have become our own obstacle in a resolution in which we take 24 months to review the report of the standing joint committee. At least there is progress and they recognize the issue.

Mr. Bernhardt: We will receive the government response shortly.










(For text of document, see Appendix F, p. 7F:1)

Lindsay Armstrong, Legal Counsel: The committee found that these regulations are not in conformity with the Public Service Superannuation Act in that they attempt to extend the act to employees of persons other than those to whom the administration of public services has been entrusted.

In 2001, Treasury Board indicated that the act would be amended to clarify the relevant regulatory power. In May 2007, the joint chairs wrote to the President of the Treasury Board asking him to specify when the government intended to table an amending bill and to assure them that it would be done within the time frame.

In his reply on June 11, 2007, the president replied that he hoped to be in a position to put forward a legislative proposal next year.

The joint chairs wrote to the President of the Treasury Board on December 5, 2007 to ask about the progress that had been made. The president replied that, in order to establish the legal basis for the regulations, he had reached an agreement with his colleagues to include an amendment to the act in upcoming legislation.

If the committee is satisfied, we could enquire about the progress made since the January 17 letter, and ask to know specifically when the committee can expect a bill to be tabled.


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

Hon. Members: Agreed


(For text of documents, see Appendix G, p. 7G:1)

Ms. Armstrong: The committee has taken the position that section 3 of the regulations is ultra vires because it sub- delegates to the minister the legislative power conferred on the Governor-in-Council by section 69.41(b) of the Telecommunications Act. The act authorizes the Governor-in-Council to make regulations prescribing apparatus or classes of apparatus in respect of which a technical acceptance certificate is required. Section 3 of the regulations provides that every apparatus in respect of which the minister has established a technical specification requires a certificate.

The committee has taken the view that this section of the regulations cannot be said to prescribe the apparatus in respect of which a certificate is required. The effect is rather that the minister will decide whether a particular apparatus requires a certificate when the minister decides whether to develop a technical specification in each case.

Following correspondence between counsel and the officials from Industry Canada, the chair wrote to the minister last April to request his reconsideration of the matter. While the minister notes that Industry Canada officials maintain that the current regulations are valid, he nonetheless instructed them to consult with stakeholders on possible legislative amendments that would resolve the committee's concerns.

The minister seems to suggest that the act be amended to delegate the relevant authority directly to the minister. The minister's letter also suggests that such an amendment can be proposed to stakeholders. The letter does not provide a time frame within which the consultations or any proposed amendments will be completed. In the meantime, the minister does not propose to amend the regulations to address the unauthorized subdelegation but rather requests that the committee stay its proceedings so that the current regulations remain in effect while amendments are contemplated.

The question is whether the committee is satisfied with this response. If so, perhaps another letter can be sent seeking further detail on the proposed amendments and a projected time frame.

Mr. Wappel: Mr. Chair, it is interesting that the Honourable Jim Prentice was the Minister of Indian Affairs when he wrote to us the letter of December 8, 2006, on the file we previously considered the Indian Estate Regulations. He said interestingly:

. . . I respectfully request the Committee's concurrence to provide the latitude to validate previous section 14 orders by utilizing other related future legislation to be brought forward by the Government of Canada.

He wrote a nice letter in his capacity as Minister of Indian Affairs and Northern Development. However, again, he was asking for latitude.

We move forward two years and he is now the Minister of Industry. Again, he wrote a nice letter asking us to do nothing and back off, with the implication of: ``Trust us; we will get to it in due course.'' I see a refrain here by the same minister in different departments asking the committee to take it easy as they will get around to it.

Again, it is a good letter though. It is a polite, respectful letter, I thought. However, I think we should go with what counsel suggested and write back to say, ``I am sorry but we are not satisfied with an open-ended comment. We need clarity as to what you will do and when.''

Mr. Epp: I think, first of all, we need to recognize that these letters are drafted by people other than the minister personally.

Mr. Wappel: Of course, they are different departments.

Mr. Epp: They are different departments. However, let us say they have the same thoughts in the same departments rather than attribute those thoughts to a minister who has moved from one portfolio to another.

Meanwhile, I see no objection to reminding the minister that the committee is looking for action on this item. There is nothing wrong with that approach; I concur with it.

The Joint Chair (Mr. Lee): The class of people, colleagues, who are apparently affected by this allegedly ultra vires regulation are a class of manufacturers and designers who do not have time to deal with such matters. The technology changes every 36 hours and their margins are razor thin. They simply want to complete the technical compliance certificate. They do not have the time or money to send someone to court to say, ``That regulation is illegal and you cannot make us do it.''

The practical impact on industry is minimal. The class of people are obviously submitting to the regulation. It is more of a technical issue from our point of view. However, we cannot accept this kind of delegation or subdelegation. It is off the chart, from my point of view.

I think the suggestion is that we firm up and say, ``It is not satisfactory to let it go forever.'' We need some clarity in terms of time and we can look at it later. This regulation is something we could disallow, if we feel we should. I put that on the record in case any officials read this segment of the meeting. We do not need to mention that point in the letter to the minister, but we could. It is up to counsel.

Is that it for this file then? Okay.


(For text of documents, see Appendix H, p. 7H:1)

Mr. Bernhardt: Three points were raised in connection with these regulations. The first simply noted a grammatical ambiguity in the English version of section 5. The reply from the Department of Justice is that, when the English is read together with the French, as well as with the relevant provisions of the Criminal Code, the intended meaning becomes clear.

I suggest this reply misses the point: Why must someone read both versions of a regulation as well as the enabling statute altogether to ascertain the meaning of a provision when the intended meaning can be stated clearly and simply in and of itself?

Turning to points 2 and 3, an explanation was sought as to how one determines whether a weapon is not commonly available in Canada: What criteria are used? The department has replied there is an objective definition in the Firearms Reference Table created by the RCMP; that is what is used. This being the case, this definition ought to be added to the regulations themselves.

Similarly, if the question of whether a weapon is a variant of a prohibited or restricted weapon is determined on the basis of the definition of ``variant'' in the Firearms Reference Table, this definition should be incorporated into the regulations as well.

I suggest these points be pursued in a further letter to the department.

Mr. Wappel: I agree with counsel except I do not agree there is a definition in the Firearms Reference Table. Suesan Saville, in her letter of October 25, 2007, points out there is a tool to be used. There are 27,000 firearms listed. They must use their knowledge of firearms to determine whether the item must be common and, if it is not, then it could be a variant. By no means is it a definition. We should not assume that there is a definition in the Firearms Reference Table. If there is a definition, that is fine, but we do not want to incorporate the definition of 27,000 different firearms in the regulation.

Mr. Bernhardt: Incorporating that list by reference into the regulations would be one way to do it.

The Joint Chair (Mr. Lee): I am curious as to why officials of the Department of Justice would allow a component of a criminal prosecution infrastructure to remain unclear. The standard in enforcing the criminal law is high, and any weakness in the statute or the regulatory infrastructure would put prosecutions at risk. I do not understand why officials would allow that situation to persist and why they would not accept counsel's suggestions to fix these weaknesses.

I ask counsel who the Designated Instruments Officer is. At the end of the October 25 letter, Ms. Saville says that she trusts that all the answers are acceptable but if the committee has any questions, Mr. Bartlett should be contacted to respond. His phone number is provided in the letter. Is the DIO Ms. Saville or Mr. Bartlett?

Mr. Bernhardt: Ms. Saville is the DIO. In this case, she suggests that we contact Mr. Bartlett because he is counsel for the Canada Firearms Centre, I believe. I note that Mr. Bartlett is former counsel to the joint committee.

The Joint Chair (Mr. Lee): I noted that as well.


(For text of document, see Appendix I, p. 7I:1)

Mr. Bernhardt: A number of amendments to the regulations have been promised. After the file was submitted to the committee, eight unresolved matters were pursued in a letter dated September 4, 2003. Since then, although the Canada Industrial Relations Board, CIRB, has advised more than once that amendments to the regulations would be made following consultations, a reply dealing with the substance of the eight specific points has not been forthcoming. The joint chair's letter of April 11, 2007, explained, not for the first time, the need for a reply that deals with the substance of each question or concern.

The CIRB's December 18, 2007 reply is accompanied by a table summarizing suggested amendments, including the joint committee's concerns, and sets out the board's recommendation on each concern. The table indicates the board's acceptance of the need to amend section 24(1) to address the matter discussed in point number 8 of counsel's September 4, 2003, letter, although there is still no explanation as to the intent of the provision and it is unclear what the nature of this amendment is to be.

As for the other seven outstanding matters, in the case of six of them, the table states ``No amendment needed'' as the board's recommendation. Thus, there has been no effort to reply on the substance of the matters discussed in the 2003 letter or to give any reasons for the board's position. I suggest this reply is clearly not satisfactory. The seventh item indicates that an amendment could be made, but it is by no means clear that it will be made.

As concerns the previously promised amendments, with one exception, the table reiterates that these amendments will be made, although there is no time frame. The one exception concerns section 22 of the regulations, providing that the board may declare that a document be treated as confidential and may limit access to the document to those persons designated by the board.

In connection with an earlier version of these regulations, the board had previously agreed to put in the criteria that will be used in deciding whether a document is to be deemed confidential. Despite this agreement, the Canada Industrial Relations Board Regulations, 2001 simply reproduced the previous provision. The chairperson of the CIRB stated that the board agreed with the joint committee, but now the table states that this amendment will not be made because to add the criteria seems to be inconsistent with deleting criteria from section 24(1), which is another promised amendment. The note explains the reasons why there is no connection between the two.

It is suggested that the board be told that the joint committee expects the board's undertaking to be respected. Over all, I suggest another letter to the chairperson of the CIRB insisting on a detailed reply on all outstanding matters. In the absence of that reply, the committee could consider whether it wanted that reply provided in person.

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

Senator Moore: If they are ignoring the basic request, we should add a time frame in the letter: perhaps 30 days.

Mr. Bernhardt: In this case, it is not so much that the CIRB is ignoring the request. We receive regular replies.

Senator Moore: They are not replying to the issues raised.

Mr. Bernhardt: Yes, and when the board does reply finally, after four years, rather than explain why they disagree, they simply state, ``No amendment needed.''

Mr. Wappel: Clearly, this reply is unsatisfactory. I wrote down, ``witnesses.'' We have a letter dated January 2, 2008, from Acting Chairperson Douglas Ruck. At the last meeting, we heard a witness before the committee respond with such comments as: I am new to this job and I do not know much about it; and I have been travelling the country and have been unable to address the issue. I am afraid that if we were to call witnesses on this item, and I agree totally with Senator Moore so I will piggyback on what he said, that we would hear the same words from this acting chairperson, Mr. Ruck: ``Sorry I have recently taken on this file. Mr. Edmondson was handling it. He is long gone,'' ``retired,'' or whatever the case may be.

I suggest that the committee ask Mr. Ruck, assuming he is still the acting chairperson, for specific responses to the specific questions that have been asked; that the answers be given within a period of time, as Senator Moore suggests; and, in the absence of that letter arriving by that time, the acting chairperson will be called before the joint committee to explain the delay or lack of response. The acting chairperson will know that he can avoid an appearance before the committee by simply answering a letter directly. If he does not respond by letter, we will expect him to appear before the joint committee to respond in person.

The Joint Chair (Mr. Lee): The CIRB responded but afterward, put in place an interesting coordinated process. At one point, I thought they would make a documentary of their attempt to change the rules, and send it to the committee. They do not understand the role of this committee. It is disconcerting to identify a need for an amendment and have the board decide that no amendment is needed, with no explanation attached. We could ask them to appear.

Senator Nolin: I suggest that we invite the chairperson right away.

The Joint Chair (Mr. Lee): The CIRB members are paid per diems, and three or four of them might come. They will delay their work pending their appearance before the committee and will write a report on their appearance, et cetera. In fairness, they are probably trying to do the right thing but it is bureaucratic there, in my view. Let us try correspondence first and make it firm and quick to see if we can clear up this matter.

Mr. Wappel: We should add the reminder that if the answer is not forthcoming, we will expect them to appear before the committee. Can we say that?

The Joint Chair (Mr. Lee): Is it agreed?

Hon. Members: Agreed.




(For text of documents, see Appendix J, p. 7J:1)

Ms. Armstrong: Three points were raised in this matter. On the first two points, amendments have been promised. A satisfactory explanation has been provided to the question raised in the third point. If the committee agrees, legal counsel will monitor the progress of the promised amendments and keep the committee informed.

The Co-Chair (Mr. Lee): Any comments? We now move to the next item.



(For text of document, see Appendix K, p. 7K:1)

Ms. Armstrong: Committee counsel raised 32 points. Three problems were corrected when the regulations were amended in 2006. Documents accompanying the department's letter and the note prepared for the committee indicate the points on which the minister has promised amendments and those for which, in counsels' view, the department has provided satisfactory replies.

On points 19 and 20, the department indicates that it must hold consultations before any amendment can be made. It would be appropriate to clarify the department's intentions on these amendments as well as those proposed in points 16, 22 and 27.

On point 27, the proposed amendment to the act would have the effect of providing legislative authority to impose the fees collected under the terms of the provisions mentioned.

When that is done, the regulatory provisions will have to be passed again. In the meantime, the committee should ask the department to commit to not collecting the fees because Parliament has not approved them.

Legal counsel are of the view that the department's reply to 6, 10, 15, 24 and 28 are not satisfactory for the reasons indicated in the note. Counsel suggest that the provisions suggested for points 6 and 10 have no legal significance. Even if these provisions did not exist, other federal legislation could still not be contravened.

Point 15 deals with the need to clarify the power of an inspector to visit the lands proposed to be used in a permit application. Counsel recommend writing back to the department to explain why its replies to these points are not satisfactory.


The Joint Chair (Mr. Lee): Are there any comments?

Senator Moore: I wanted to ask counsel again; you will write to them and tell them why the response is not satisfactory, is that right?

Ms. Armstrong: To the five points that counsel feels are unsatisfactory, we will explain why we feel their response is unsatisfactory and ask for a further reconsideration.

The Joint Chair (Mr. Lee): I thought counsel was kind in putting this file under the rubric of ``Part Action Promised,'' because it is almost unsatisfactory. Should we put it under ``Unsatisfactory(?).'' More work needs to be done; I agree with counsel.

Are there any other comments? We can go to the next file then.


(For text of document, see Appendix L, p. 7L:1)

Ms. Armstrong: Seven points were raised in connection with these regulations. Counsel suggests that the department's reply to points 1 and 4 can be considered satisfactory. Amendments were suggested in relation to points 3, 5 and 6. However, we suggest that there should be confirmation that the department proposes to make the suggested amendment to section 13(c) and to repeal all of section 5, which would resolve point 3, and that a projected time frame be sought.

The department's reply to point 7 also requires further clarification.

The reply provided to point 2 is unsatisfactory. Counsel suggested that the concept of a ``familiarization trip'' needs clarification. The regulations do not indicate what a familiarization trip is or what it involves. The department's response does not address these concerns.

The recommendation is to send another letter to the department requesting further information on amendments to points 3 and 6, and to pursue the other issues.

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

I thought counsel was a bit hard on these officials in point 7, the return of the fees. I thought counsel was being picky and we could lighten up on some of these things.

However, since there are some items of substance, we need to pursue those items. To be honest, I was lost on why this return of the fee issue was a problem. If they decide they will rebate part of the fee to their applicants, let them.

Mr. Bernhardt: I think what was asked for was a clarification as to what exactly they are paying for. They pay $150 in advance; is that fee for the first day of the exam?

I do not think it was suggested that an amendment was necessarily required. We would look for a little more information on this point as well. It seems that they pay on a per-day basis. There are two parts to the exam; they pay a certain amount each day and they receive some of the money back if they fail the exam.

The Joint Chair (Mr. Lee): A pilotage authority is a strange organization out on the river or the ocean, and they have their own way of doing things. I was cautious about meddling too much.

Can I ask counsel to run through that issue again to make sure we have not been too exacting in dealing with an organization that has learned to operate itself out there, jumping from ship to ship and doing things well in their own way?

Ms. Armstrong: Since we received clarification of what portion of the fee goes to what part of the exam, we could treat that reply as satisfactory and drop that point, if members agree.

The Joint Chair (Mr. Lee): I am not even sure we ought to be policing the fees. They have been given the right to charge fees. They charge the fee, and it does not appear to be inordinate.

Their rules say they will rebate part of the fee if candidates do not pass the exam. That is okay. We are asking why. Rather than prolonging the discussion here, I ask counsel to take a half step back, go through this file again and make sure we have not been too — I do not know what the right adjective is.

Senator Moore: Onerous.

The Joint Chair (Mr. Lee): We have not been too much like the previous organization here that has a 10-year study ongoing to revise their regulations.

Mr. Bernhardt: What was suggested is the need for clarification. If members are satisfied that the provisions and the scheme are sufficiently transparent at this point, that is fine.

The Joint Chair (Mr. Lee): No, there is still work to do on this file.

Mr. Bernhardt: We will ask for more clarification and leave it at that. I do not think the situation requires insisting on an amendment at this point.

The Joint Chair (Mr. Lee): If counsel has a look at it and he is satisfied we are heading in the right direction, I am happy.

The next item will be one of our favourites; we will remember it for a while — the Prairie Dog and Certain Other Rodent Importation Prohibition Regulations.




(For text of documents, see Appendix M, p. 7M:1)

Ms. Armstrong: Three points were raised in this matter. In its letter of June 7, 2007, the Canadian Food Inspection Agency announced that the regulations would be repealed. In fact, the regulations are no longer in force. Section 1 stipulates that the prohibition was to be applied only until January 31, 2008. That settles points 1 and 3.

The committee asked for a reply to the question raised in point 2. Section 14 of the Health of Animals Act gives the Minister of Agriculture the power to make regulations to prevent the importation of animals. However, the recommendation preceding the regulations indicates that this authority has been exercised by the minister and the Solicitor General.

The same problem arose in another matter related to a regulation made under section 14 which was passed by the Minister of Agriculture and the Minister of Public Safety and Emergency Preparedness. The agency confirms that, in this matter, the Minister of Agriculture is the only person authorized to make regulations under section 14.

The minister's response can be considered satisfactory because it recognizes that the problem should no longer arise. If the committee is satisfied, the file can be closed.


The Joint Chair (Mr. Lee): Is the revocation proceeding?

Ms. Armstrong: No, the regulation is no longer in force. They let it expire as of January 31, 2008.

The Joint Chair (Mr. Lee): The prairie dogs are free.

Mr. Wappel: I want to pick up on this item. Again, we come across the strangest regulations in this committee. There must have been a market in the importation of prairie dogs to have a regulation that specifically identifies prairie dogs, as opposed to rodent regulations or rodent importation. I find these regulations fascinating. They are right up there with the reindeer regulations and the beekeeper regulations. Two or three items down, we come up with deer and elk regulations and how they are transported. I love this committee due to these obscure but fascinating regulations.

The Joint Chair (Mr. Lee): Mr. Wappel will recall the Warble-Fly Control Act.


(For text of documents, see Appendix N, p. 7N:1)

Mr. Bernhardt: Seven matters were noted in counsel's August 7, 2007 letter. We have a promise of amendments to deal with points 3 through 7. The reply on point 1 is entirely correct and satisfactory. That leaves point 2. The question was raised whether the term ``MED-A4 certificate,'' which appears in the regulations, should be defined.

Transport Canada advises that these certificates have been replaced by the Pleasure Craft Operator Card. In other words, the MED-A4 certificate is no longer issued and, presumably, those who have them now know what it is they have.

That being the case, the reply can be taken as satisfactory, as well. If members agree, it would simply remain to follow up as to the progress of the amendments that have been promised.

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

Hon. Members: Agreed


(For text of documents, see Appendix O, p. 7O:1)

Mr. Bernhardt: At issue is a provision that grants the minister the discretion to issue certain licences or permits if the minister is satisfied that to do so would not, or would not be likely to, result in the introduction of disease into Canada. It was pointed out to the agency that there seems to be no reason for the minister to refuse a permit or licence where the minister is satisfied that the activity would not be likely to result in the introduction of disease, and that the minister in those circumstances should be required to issue the permit or licence. The agency, however, claimed that there are other circumstances in which the minister would refuse to issue the permit or licence.

This is exactly what the existence of the discretion implies, and the reason for raising the matter in the first place. It begs the question of what exactly are those other considerations.

The purpose of the Health of Animals Act is to prevent the introduction or spread of disease in Canada. What factors that have nothing to do with preventing the introduction or spread of disease could the minister properly consider? If there are none, then the discretion serves no purpose.

This question was put to the agency. Its reply states that the agency will propose amendments to address the concern at the earliest opportunity. There is no indication as to the precise nature of the proposed amendments and there is no direct answer to the question that was posed. However, I suppose the reply could be taken as a tacit acceptance of the committee's position.

Unless members feel that a more explicit acceptance is called for, counsel will follow up on the progress of the promised amendments.

The Joint Chair (Mr. Lee): Are we agreed? I am sorry I am editorializing so much today but this letter from our committee went out over the signature of previous counsel, François Bernier. I read the letter and it was good. This letter was a hammer. Therefore, if counsel was curious about why the reply of the department was so perfunctory, Mr. Bernier left no wiggle room. I do not see how anyone can propose counter-arguments. I wanted to say that of Mr. Bernier. This letter would have been written just prior to his departure from the committee in 2006.

Mr. Wappel: Since you are curious, I am also curious. It appears to be unlike Mr. Bernier to respond to a letter almost five years later. I was surprised to see that letter, and I wonder if there was any explanation for the situation.

Mr. Bernhardt: Other than that the file was waylaid somewhere, I have no explanation.

Mr. Wappel: It is curious, do you agree, especially knowing Mr. Bernier?

The Joint Chair (Mr. Lee): It was a treat to read his letter. We have a resolution there.


(For text of documents, see Appendix P, p. 7P:1)

Ms. Armstrong: The department's reply to the two points raised in counsel's letter of December 14, 2006 could be considered satisfactory.

Point one dealt with the use of the term ``place'' in section 76(1)(a). The term is defined in the act only as including a conveyance and it was suggested that the meaning of ``place'' in the context of this provision might be unclear.

In the department's reply, it confirmed that the term ``place'' is intended to have the same meaning as in the act. It may not be possible to clarify the term further in this context, and the point could be considered satisfactory. If the committee agrees, the file can be closed.

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

Hon. Members: Agreed.

Ms. Armstrong: Chair, if members concur, I will follow the usual practice and deal with the next three headings as three groups: Action Promised, Action Taken, and Statutory Instruments Without Comment.


(For text of documents, see Appendix Q, p. 7Q:1)


(For text of documents, see Appendix R, p. 7R:1)


(For text of documents, see Appendix S, p. 7S:1)

Ms. Armstrong: Three files are listed under ``Action Promised,'' in connection with which some 59 amendments have been promised. Progress on these files will be followed in the usual manner. The Department of Health has agreed to revoke the Cigarette Ignition Propensity Regulations under the Tobacco Act and remake them under the Hazardous Products Act. The committee took the position that the regulations fell outside the scope of the Tobacco Act.



(For text of documents, see Appendix T, p. 7T:1)



(For text of documents, see Appendix U, p. 7U:1)


(For text of documents, see Appendix V, p. 7V:1)


(For text of documents, see Appendix W, p. 7W:1)

Ms. Armstrong: Under the heading ``Action Taken,'' there are six instruments. For these instruments, 26 corrections have been promised to the committee. I draw members' attention to the first two regulations listed under this heading, the Regulations Amending the Gun Shows Regulations and the Regulations Amending the Firearms Marking Regulations. These regulations were before the committee at its February 14 meeting.

At issue was the obligation of the minister to comply with a provision of the Firearms Act requiring statements of reasons to be laid before each House of Parliament. Approximately two and a half years after the instruments were made, the required statements of reasons were tabled in the House of Commons on February 14 and in the Senate on February 26. The statement is included in the material before the committee. It gives the minister's opinion that the changes are immaterial and insubstantial because they simply effect a further change of the coming into force date of the existing regulations.

























Ms. Armstrong: Under the heading ``Statutory Instruments Without Comment,'' 24 instruments have been reviewed and found to comply with all the committee's criteria.

The Joint Chair (Mr. Lee): Thank you, counsel. That is a lot of work.

I have one question about the first file under ``Action Promised'': SOR/2000-217 — Benzodiazepines and Other Targeted Substances Regulations (1091). The department said they would pre-publish in the autumn of 2007. I wonder whether they met that deadline. There were 53 items in the letter. It was a huge ``fishing net'' of technical issues. They said in their reply that they intended to pre-publish. If you do not have the answer right now, that is okay. However, I am curious to know if they are on track. You can check it.

Is there anything else, colleagues?


Senator Nolin: I would like to make a suggestion to the joint chairs. Your legal counsel could think about it.

With summer coming, when we are sure to have student interns, I think that it would be very helpful if we could have a sheet showing the chronology of events for each of these active files. The documents would allow us to understand the time frame of the file before us, the progress, and often, the complacency of our counterparts in the bureaucracy, who, unfortunately, do not always take this committee's work seriously.

That is my suggestion to you. Summer is coming, it is often the case that students are hired during the summer. Legal counsel might find it appropriate to entrust those students with the task — albeit a tedious one — of sorting out all the files and preparing a chronology sheet.


The Joint Chair (Mr. Lee): That is a good suggestion. Do you have any comments, counsel?

Mr. Bernhardt: We often try to give some indication orally. In the agenda, you have the dates that it has been before the committee, which tell you the age of the files but nothing else.


Senator Nolin: Knowing your professionalism, I am sure that you already have that information in your file.


Mr. Bernhardt: We can make an effort to put that in. Often there is a covering note.


Ms. Freeman: I support Senator Nolin's initiative and proposals. Especially when we get so much information at the committee, it becomes absolutely impossible to see the historical context. My colleagues and I think that everything goes so quickly that studying them all becomes an impossible task.

If we had this chronology, we could focus, and feel that we had some role in all this documentation. The impression is that everything to do with the public service and the people that work in the departments all belong to you. It is very unpleasant. We have to have this history, and the facts of each file so that we can study it properly and put our focus where we want to.

Just now, we discussed firearms. I have a real interest in material from the Department of Justice and am struck by the fact that the committee is now working without a historical perspective. I have the impression that I am on this committee to support your work. Perhaps that work is very noble, but really, it is you who support the committee. I am not making a proposal, I just think that we should have the history.


The Joint Chair (Mr. Lee): I note to Ms. Freeman and members that every file we address has a chronology included on the agenda so that members know the age of the file and how many times it has come before the committee. For the file that Ms. Freeman has mentioned, there is a note summarizing the entire chronology and the issues. Counsel makes a huge effort to ensure that we have all the information we need. For today's meeting, the stack of papers is two inches thick. I know, Ms. Freeman, that you did your homework beforehand but Senator Nolin was looking for an aged inventory of our oldest files.


Senator Nolin: My comments are about the active files, like the important matters in points 1, 2 and 3. It is certainly already in the file. To support what my colleague said, this is about briefing parliamentarians who are faced with a mass of information. Often, we have the files in our offices for a few days but we put off looking at them and do it the night before. Often, our researchers keep track of these files with a chronology. That could assist us. It is much more than having the dates. I want to know the date, the nature of the file and a sequence of events that accompanies the chronology. You already have the information in your files, but it would allow us to follow and have an idea of the file's evolution.

As to the urgency of a file, maybe some are 10 years old and of secondary importance. Maybe there are files that are three years old that are very important. We do not have that information. That is my suggestion.


The Joint Chair (Mr. Lee): Taking the comments of Ms. Freeman and Senator Nolin into account, perhaps counsel can propose a summary document. The joint chairs will work with counsel to try to produce a useful document for members. Summer might be a useful time to do that.

Mr. Bernhardt: Bear in mind that the committee average is 800 current files at any one time. The majority of those files goes through the system for review, and letters are written. The files come before committee, there is follow-up and amendments are made. The committee tends to spend 99 per cent of its time on what I sometimes call the 1 per cent of the problem children. These files come back to the committee time and time again because they are problem files.

Senator Nolin: Those are the files that I have in mind.

The Joint Chair (Senator Eyton): Senator Nolin's suggestion is good. Staff and counsel do wonderful work and the information is generally available, but at times it can be difficult to find simply because of the volume of material. I believe that Senator Nolin is looking for those files where delays have been unwarranted or promises have not been kept. It is a case of flagging the files that are not being attended to properly; not flagging every file. We should have a chronology of the problem files.

The Joint Chair (Mr. Lee): Thank you for the suggestions. Is there any further business? Seeing none, we may adjourn.

The committee adjourned.

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