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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue No. 9 - Evidence - November 3, 2016

OTTAWA, Thursday, November 3, 2016

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

Mr. Harold Albrecht (Joint Chair) in the chair.


The Joint Chair (Mr. Albrecht): Committee members, you will notice that we have one item that is not on the agenda. You received material, however, relating to the appointment of our counsel, and I would like to have someone present a motion to that effect. Mr. Dusseault?


Mr. Di Iorio: Mr. Chair, I wanted to bring that up. I did not have the time to react; I was looking for my button. Mr. Dusseault was quicker than me, but I wanted to ask a question.

I would like to have the process explained to us because I do not know Ms. Borkowski-Parent. My comment, of course, is not directed to her personally in any way. When I came back, I found out only that her predecessor had retired. I would like us to have an explanation of the hiring process. If she is counsel for the committee on which we sit, I would just like to know what our role is.

Perhaps I will just start by describing my understanding of the process; that will make it easy to provide corrections, if necessary. I understand that Ms. Borkowski-Parent is hired by the Library of Parliament. So she works for the House of Commons and she has various duties, including providing legal advice to our committee.

Evelyne Borkowski-Parent, General Counsel to the Committee: The situation of committee legal counsel is very specific. Generally, the library does not provide committee legal counsel. It provides the services of the analysts in the parliamentary information and research service.

When the committee was established in the 1970s, it was considered wise to hire legal counsel, lawyers, to support the work of the parliamentarians on the committee. Over time, the number has gone from 1 to 2 to 4.

In addition, to facilitate the administrative or human resources matters in relation to committee legal counsel, there was eventually an agreement with the Library of Parliament, because counsel belonged neither to the house nor to the Senate. So they are now part of the Library of Parliament and its information and research service. However, when the agreement between the committee and the library was reached, it was decided that the committee would have the last word on hiring its legal counsel.

In the past, the practice has been for the Library of Parliament to advertise a public competition. The candidates' skills were tested by means of an examination and an interview. Then the committee would confirm the hiring. That is what took place in this case after Mr. Bernhardt retired. The library advertised a competition for the position of senior legal counsel and I was the candidate selected.

Mr. Di Iorio: What I would like to point out, Mr. Chair, and what I find odd, is that, if the committee approves the hiring of counsel, it would have been appropriate to tell us that a recruitment process was under way.

Ms. Borkowski-Parent: The memo about my appointment as acting legal counsel mentioned that there was a competition administered by the library.

Mr. Di Iorio: Just to finish my comment, it would have been good for us to be informed and for someone involved in the hiring process to appear before us to hear our comments on our expectations of the person who would occupy the position.

This is a full-time position, is it not?

Ms. Borkowski-Parent: Yes.

Mr. Di Iorio: Given that the person devotes all their energy and skill to the committee, it would have been appropriate for us to be consulted by human resources ahead of time so that all parliamentarians, MPs and senators of all parties and all stripes, would have the opportunity to express an opinion. In that way, our comments could have been included in the candidate search process. That was my first comment.

The second comment is about the fact that we are being asked to approve an action. Hiring a person is an important action. If we have the power of approval, our role should not just be limited to simply getting a document one day and approving it the next. When we approve an action, we make that action ours. My comments are in no way directed to Ms. Borkowski-Parent; I do not know her at all, in fact. I have no problem with her being in the room at the moment, because, very clearly, my comments are not directed at her.

When we approve an action, it immediately becomes ours, and it is difficult for me to take ownership of something I know nothing about. That's the comment I wanted to make.

Ms. Borkowski-Parent: Here is my comment. I have been hired; what has to be approved is my appointment as legal counsel to the committee. If the committee has objections, I am prepared to forward them to the library and postpone my appointment until later.

Mr. Di Iorio: No, no. The distinction you have just identified is very important. So let me go back to my first comment: we should have been consulted in advance, before the hiring was concluded. Ms. Borkowski-Parent is currently an employee of Parliament. It is just a question of deciding whether she is assigned to this committee or to another committee; it is just an assignment matter. That is why I would like these comments to be recorded, and considered in any other recruitment process.


Max Hollins, Joint Clerk of the Committee: I want to clarify that all staff of Parliament, whether of the House of Commons, the Senate or the Library of Parliament, go through a rigorous competition process. We are employed by our respective institution and then assigned to, in the case of committee clerks, certain committees.

In the case of Senate committees, during their organization meeting at the beginning of a parliamentary session, one of the motions adopted is to request that the Library of Parliament assign an analyst. There's no name attached to it. It's typically the same analyst from the previous session, if that person is still employed by the library.

As Ms. Borkowski-Parent correctly pointed out, the situation is slightly different in terms of the nature of the work that they do. The motion to approve the assignment to this committee is essentially the same as what happens in a Senate committee with regard to an analyst from the library. So it's not employment —


Mr. Di Iorio: I understood Ms. Borkowski-Parent's comments. It is basically as she explained it to us.

Mr. El-Khoury: Personally, I am very satisfied with our counsel's work. However, I do support my colleague's position and would like to know whether our role is to sign, or to approve and sign. If it is to approve and then sign, I would have liked some information about Ms. Borkowski-Parent, so that we could have some idea. Thank you.


The Joint Chair (Mr. Albrecht): The recommendation is at the very last page of the document that you have all received.

Senator Moore: I just wish to second the motion of Mr. Dusseault.

The Joint Chair (Mr. Albrecht): We've had some discussion. We have a mover and I don't know if we need a seconder, but we have one.

Is there any further discussion? I don't want to cut it off, but we need to keep moving.

If there is no further discussion, all those in favour of the motion to approve Evelyne Borkowski-Parent to serve as general counsel of the joint committee in accordance with the terms previously agreed between the committee and the Library of Parliament, please show your hands.

Those opposed, please use the same sign.

That is carried.

Congratulations, and thank you for your good work. The work that you've done on our behalf in the interim has been much appreciated, so thank you. This is very complex material for a non-legal person, so I'm been very appreciative of the help that Evelyne has given us.

Mr. Di Iorio: It's complex even for a legal person.

The Joint Chair (Mr. Albrecht): We move to Item No. 1 on our agenda, consideration of the draft report.

Ms. Borkowski-Parent: If I may, I would like to start off with an announcement that Mr. Peter Bernhardt, our former general counsel, will be receiving an award in December from the Community of Federal Regulators for exceptional contribution by a regulatory professional. This well-deserved award is a testament to Peter's contribution, as counsel and general counsel for over 30 years, to this committee and to a healthier federal regulatory community. We're very proud and looking forward to celebrating this achievement.

The Joint Chair (Mr. Albrecht): Thank you for that. I might add that we also have a letter in process, but it needs to be signed by both joint chairs. Senator Merchant isn't available to sign, so we'll have that available at the next meeting.

We will move on to the draft report. Thank you for the good work on it. I'll let you summarize and then we'll spend some time in discussion regarding our next steps.


Ms. Borkowski-Parent: Under Item 1, you will find a draft report on the accessibility of documents incorporated by reference, which was requested by the committee at the last meeting. The draft report was sent to your respective offices last Friday, and we have copies available here should you need one.

First, I should mention that the Department of Justice learned about the committee's intention to table a report on the accessibility of documents incorporated by reference. They have contacted the Clerk of the House of Commons to ask that the committee hold off on tabling its report until they can provide an answer.

I presume that this refers to an answer to the June 15 letter that the committee secretariat sent to the department to ask their views on the matter. That letter was not even acknowledged by the Department of Justice, despite a reminder in September, but now that the committee is about to take a stance on the issue, the department seems to have taken an interest.

During the course of the study of Bill S-12, which was the predecessor to Bill S-2, to the question of what "accessible'' means, the then Chief Legislative Counsel of the Department of Justice, Mr. John Mark Keyes, responded with the following:

Accessible means that, with a reasonable amount of effort, the person who is affected can obtain a copy of the document.

The requirement of accessibility is one that is on the regulation-making authority. If that requirement is not met, the regulation itself becomes unenforceable. That is the means of ensuring that the obligation is met.

In the words of Department of Justice officials, the requirement of accessibility is one that lies solely with the regulation-making authority.

The current report was triggered by the approach of one regulation-making authority in particular, which did not seem to see any great meaning in the new requirements spelled out under section 18.3 of the Statutory Instruments Act. For the first time, it showed that however laudable section 18.3 is, it perhaps may be interpreted too restrictively, particularly when the interpretation is left to the goodwill of regulation-making authorities, which have a vested interest in incorporating documents.

Part of the mandate of the committee is to ensure that regulations comply with the requirements of the Statutory Instruments Act. In light of the broad wording of section 18.3, the committee would be well within its right to develop whatever guidance it deems necessary to give sections 18.3 and 18.6 their due meaning.

At this point, I'm in the committee's hands to see if it would like to go ahead and discuss the report or hold off on the report until the Department of Justice sends written representations, which will need to be examined at a future meeting.

Ms. Jordan: Did the Department of Justice give a timeline of when they would have things to us?

Ms. Borkowski-Parent: No.

Ms. Jordan: So this could carry on for another 10 years.

Ms. Borkowski-Parent: Probably not. It seemed imminent, but —

The Joint Chair (Mr. Albrecht): I think that's a good point that has been raised often by this committee: The timelines that have been followed have been far too lenient and open-ended.

Does the committee wish to give direction to our counsel as to writing a letter to Justice saying, "We are prepared to hold off, but we need a definite answer, and you fill in the blanks''? Mr. Dusseault?


Mr. Dusseault: I do not see why we should have to wait for the Department of Justice's interpretation before the committee is able to draw the broad strokes of our fears and expectations when it comes to incorporation by reference. What is important for me is that they should appear in both official languages. Can you explain to me why we have to wait for the Department of Justice?

Ms. Borkowski-Parent: The committee does not have to wait. It was a request made to the committee. In all good conscience, I cannot fail to advise you that the Department of Justice made the request. The committee may very well decide to move forward, to discuss the report, and come up with recommendations. If the committee wishes to ask for a reply from the government, as set out in the Standing Orders of the House of Commons and the Rules of the Senate, the Department of Justice could provide its opinion at that time.

Mr. Dusseault: If I may, legally, our recommendations have no legal weight. This is simply a matter of establishing our expectations as to the availability of incorporation by reference in documents. Is that not correct?

Ms. Borkowski-Parent: My understanding is that the report was supposed to be tabled in both houses, requesting a government response on the points or recommendations that were made. However, the committee has the right to establish its own criteria and practices, given the new section 18.3.

Mr. Dusseault: My proposal would be that we now move to a discussion to consider deregulating incorporations by reference, pending the government's response, and that we not necessarily wait for the Department of Justice to give us its opinion.

Mr. Di Iorio: I completely understand Mr. Dusseault's point of view: Why would we wait? But I need a clarification. Has the Department of Justice asked us to wait? The communication has to be easy and the service has to be fast, and in both official languages. I need a person, not a machine, on the other end of the line and I need to get what I am asking for within three days. Or I write a letter and they send me the documents I am asking for. I do not need eight copies; we are in the age of modern media. I would like them to send me a hyperlink that allows me to see the document when I click on it.

I would be ready to have a discussion this morning, but I have described what accessibility comes down to. If the Department of Justice comes back to me and basically repeats what I have just said, I do not see why I would need a discussion. I concur with the wisdom of our chair when he suggests making the proposal to the department and giving them a certain number of days. If we receive no answer, we will do our work ourselves. That would perhaps address Mr. Dusseault's concern, and the department's. It would perhaps avoid a discussion on the matter and we could move to recommendations.


The Joint Chair (Mr. Albrecht): I don't think they're mutually exclusive. It could go either way, but we might avoid an extra year of wrangling if we wait for their opinion first and write a report that takes their concerns into consideration. We're not beholden to them. The committee is still the master of its own destiny, but there may be wisdom in waiting two or three months. I don't think we should wait long. That's my personal opinion. The committee has to decide.

Ms. Jordan: I would suggest we give them 60 days.

Senator Moore: I was going to suggest the same thing. Write them back, tell them that we'll give them this amount of time and if we don't hear from them by 60 days, we intend to proceed.

Mr. Mendicino: I think that is an entirely reasonable proposal and I support it.

The Joint Chair (Mr. Albrecht): Mr. Dusseault, do you want to respond to any of that? We don't want to minimize your suggestions.


Mr. Dusseault: That is why we are here. Basically, I have no real major problem in waiting to see what the Department of Justice thinks about it, but we really do not have to rely on what they say in order to write our report and make our recommendations. Depending on the Department of Justice's position, we may perhaps be in agreement and we will not need to go any further in order for it to follow up on our report.


The Joint Chair (Mr. Albrecht): If you read through the draft report carefully, our counsel did an incredible job of separating out the issues — temporal, cost and language — which are concerns to all of us. The cost of $7,000 in the one case, to access an accessible document, doesn't seem reasonable. I think we've done a good job of summary.

If you have any concerns about the draft report as written, it would be wise to share those now so our counsel has those in her back pocket ready for a response, and/or we could actually ask our counsel to come with a set of recommendations to consider — not to adopt — if we want to get working on it ahead of the report in 60 days. Those are all options that are open to us.

I turn to our counsel again.

Ms. Borkowski-Parent: One thing I wanted to add is the determination of whether a document is accessible or not — and I may not have been clear in my presentation — has been left, in the act, to the regulation-making authority. The Department of Justice, as legal adviser to the government and the author of those amendments to the act, might have its views. Practically, we have departments who now consider that a document that is incorporated in one language, with a cost and protected by copyright, is accessible.

I'm more than willing to go ahead with the committee's recommendation. Sixty days would bring us to January, which means the first meeting in February. In the meantime, there still could be a discussion on the draft report to see if there were areas that you would like developed or changed, or recommendations you would like. Should the response of the Department of Justice not be satisfactory, then the report would be ready for tabling.

The Joint Chair (Mr. Albrecht): Do any committee members have input today that you'd like to present to our counsel? As you read through the draft report, we need to make a recommendation — A, B, C and these are some things we need to do. And if we have that ready, it doesn't seem wise for us to leave them off the table. Bring them to the table so we have them for our consideration and discussion.

But if not, I think we'll proceed with the 60-day waiting period for the Department of Justice and ask our counsel to work with them and then come back with a report at the first meeting in February.

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Thank you very much.

I do appreciate the work you've put into this report. I'm starting to understand incorporation by reference.


(For text of documents, see Appendix A, p. 9A:1.)

Cynthia Kirkby, Counsel to the Committee: This file was before committee for the first time on April 21, 2016, at which time members instructed the joint chairs to write to the minister to draw her attention to the difficulties the committee encountered in obtaining a substantive response from the department.

Since that time, a substantive response was received from the department. The minister responded to the letter from the joint chairs, and various minor amendments were made through a miscellaneous amendments package that addressed some of the drafting issues raised in relation to the regulations.

The minister's letter provides general information about the Wage Earner Protection Program and refers to the substantive response provided by the department.

The miscellaneous amendments package dealt with some minor drafting matters and, in addition, it is now suggested that two other issues may not be worth pursuing, specifically, those raised in relation to sections 8 and 9.

With respect to whether section 8 of the regulations should be amended so that the reference to the Bankruptcy and Insolvency Act is to the relevant provisions as they are amended from time to time, the department makes an argument, based on section 40(2) of the Interpretation Act, that the committee has previously rejected as misguided. Nonetheless, upon further consideration, it appears that section 8 does not involve a true incorporation by reference, but rather refers to those provisions as they exist at the time the relevant disbursements are incurred. As a result, it would seem that an amendment to section 8 need not be pursued.

Section 9 indicates that an application for payment must be made within 56 days after various events, but it appears that the application cannot, in practice, be made until certain materials are received, which might be 45 days or more after those same events.

The department's response on this point has, again, not been helpful, but it is suggested that an amendment to section 9 need not be pursued either, since what the timelines are and how to define them would seem to be a matter of legislative policy.

On all the remaining issues, it is suggested that the department's latest response is, again, unsatisfactory.

First, there are questions about when eligibility for the payment program arises because of redundancies in sections 3 and 9 of the regulations and discrepancies between the French and English versions. The department has not provided a response that addresses the particular issues raised but now states that there has been no difficulty in applying these sections because it relies on administrative guidelines to administer the program. Evidently, administrative documents cannot remedy defects in the law.

The department does indicate it has made note of these points and, when consulting stakeholders on other regulatory developments, will seek their views on whether these sections require amendments, but this commitment seems insufficient.

Next, various provisions establish a time period within which action must be taken unless circumstances beyond the control of the applicant justify a longer period. The issue raised was how this is determined and by whom, and what the applicant is required to do to seek an extension. The department advised that it is the minister or delegated official who determines whether an extension is warranted based on information provided in the application form.

Further, the department suggests that amendments to the law are not necessary because its operational guidelines and application processing system are sufficient.

Once again, guidelines and administrative documents are not law. These matters should be clarified in the regulations themselves.

The next issue concerns what appears to be an error in paragraph 15(2)(b) of the regulations about the information that a payroll service provider provides to the trustee or receiver. The department has never acknowledged or explained the discrepancy, most recently stating that this paragraph has not yet been used by the program. If this provision is not necessary, it should be repealed; otherwise, it should be corrected.

Finally, section 19 of the regulations purports to authorize the payment of a trustee's or receiver's fees that are unrelated to the performance of their duties under the act. All the department has provided by way of justification for section 19 is that section 22(2) of the act is a stand-alone provision that authorizes the payment of any fees or expenses as long as they are prescribed by regulation.

It is hard to take seriously the suggestion that subsection (2) of section 22 stands alone from subsection (1) of section 22. Clearly, they must be read together. In context, it is clear that the default rule, established by subsection (1), is that the trustee's or receiver's fees in relation to duties under the act are to be paid out of the estate but that under the circumstances prescribed by regulation, those same fees for those same duties may instead be paid by the minister as a result of subsection (2).

Further, the Wage Earner Protection Program Act relates only to the Wage Earner Protection Program. It does not relate to the remuneration of trustees and receivers, generally, from public funds. Regulations made under the act must fall within the four corners of the act. This is a fairly basic principle.

Indeed, on the department's position that section 22(2) of the act is a stand-alone provision not constrained by subsection (1) or by the purpose of the act, then in fact the regulations could prescribe the payment of any fees or expenses at all, even those incurred by persons other than trustees or receivers. This is clearly not correct.

This is the only argument the department has provided since this issue was first raised in December 2012, so it seems clear that section 19 of the regulations is not authorized. It's suggested that members may wish to consider whether section 19 of the regulations would be a candidate for disallowance.

The Joint Chair (Mr. Albrecht): Do any members have comments?

As I look through this document and the summary from our analysts and counsel, there are at least five or six points that I think we need to return for clarification and/or, as you suggest, disallowance. The first is on page 4, at the end of the second paragraph, and then on page 5, in the point about prior amendments. This does not resolve the disagreement.

Over on page 6, sections 9, 11 and 13 are matters that should be made clear in the law itself. I don't think there's any disagreement. That's what we're here for. If we're just going to allow them to interpret it, why do we need it?

Just below that, they're simply marking time. There's no commitment to any action.

Finally, the last one is on page 7, points out that the argument being ill-founded and possibly outside the law.

Those are things that I noticed as I was reading through this. There are probably others that I've missed. Committee members, what is your wish?

Mr. Brassard: It sounds to me like somebody has gone rogue here.

I think we have two choices. Number one is disallowance, and the second is to have the minister come in and have a discussion. I assume it's Minister Mihychuk. I think the committee has two options, and I know Mr. Di Iorio has comments on that as well. I think we should move for disallowance.

Mr. Di Iorio: Section 19 is ultra vires. We can't sit here, walk out of the room and said we just let it go because it's ultra vires. There has to be a purpose in what we do. When something is ultra vires, you have to disallow it. Maybe more-experienced colleagues could suggest other ways of doing this, but I don't see what else we can do.

The Joint Chair (Mr. Albrecht): Hearing general agreement, disallowance is the direction the committee wants to take. Is there any formal process we need, other than a motion to proceed in that manner?

Ms. Borkowski-Parent: The first step of the process is sending the department a notice that the committee is considering disallowance.

The Joint Chair (Mr. Albrecht): Considering it, or doing it?

Mr. Mendicino: In the spirit of giving the department an opportunity to rectify the situation before this committee invokes disallowance might be a prudent first step. Maybe our counsel can shed light on whether there is an established convention that this committee would offer a department the opportunity to take remedial steps in that fashion.

Ms. Borkowski-Parent: It's part of the requirements under the Statutory Instruments Act that regulation-making authorities be given 30 days' notice before the report of disallowance is tabled. So if it is the will of the committee —

Mr. Mendicino: To give notice?

Ms. Borkowski-Parent: Yes. It can then decide whether to go ahead, and we shall prepare a report for the purpose of disallowance of section 19. Depending on the response from the department, the committee may decide to go ahead, or not, with tabling the report. But the very first step is giving 30 days' notice to the department.

Mr. Anandasangaree: I wonder if we should try to call in the minister instead of exercising the option of disallowance, first, and if that wasn't work, then go ahead.

Mr. Brassard: I think we should at least provide notice for disallowance. If Mr. Mendicino, because he brought it up, is willing to move that motion, I will support it.

Mr. Mendicino: Yes.

The Joint Chair (Mr. Albrecht): All in favour of moving to give notice of disallowance?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Seeing agreement, any opposed? The matter is carried.

Ms. Borkowski-Parent: We will follow up on the points other than section 19.

The Joint Chair (Mr. Albrecht): I think it was quite clear, as pointed out in your report, which ones were not satisfactory, and we need those resolved. There's no disagreement on the committee in terms of further action being needed on those items.

Mr. Di Iorio: We diverge on the number of whiplashes.

The Joint Chair (Mr. Albrecht): Is it 40 minus 1?


(For text of documents, see Appendix B, p. 9B:1.)

Ms. Kirkby: This order was before committee for the first time at its meeting on May 19, 2016. Members were unsatisfied with the department's initial response but agreed to give the department a further opportunity to provide satisfactory answers before taking the step of inviting officials to appear.

It does not appear that the department's second response is any more satisfactory than its first. In particular, the department's main commitment is to make relevant information more prominent on its website rather than to address oversights in the law itself.

Four distinct issues have been raised. First, there are discrepancies between the language used in the order and in the Prevention of Terrorist Travel Act with respect to the standards for revocation or cancellation of a passport. The order states that the minister may revoke or cancel a passport when he or she has reasonable grounds to believe or suspect, respectively, that it is necessary to prevent the commission of a terrorism offence.

The act, however, refers to decisions the minister makes on the grounds that revocation or cancellation is necessary to prevent the commission of the offence. In other words, the standard under the act is a question of fact while under the order it is not.

The department argues that the act simply links to the order, rather than establishing a separate standard. Nonetheless, the department indicates it may, at a later date, consider amending the references in the act.

The next set of issues relates to the cancellation of a passport as opposed to its revocation. The department initially advised that the lower standard of "reasonable grounds to suspect'' applies to cancellation, while the higher standard of "reasonable grounds to believe'' applies to revocation because cancellation is an interim measure. There is, however, nothing in the order that conveys that cancellation is an interim measure.

In its latest letter, the department argues against making the interim nature of cancellation clear because this may imply that it is a short-term measure. It is baffling that the department would object to clarifying that cancellation is an interim measure when this is how the department explained the difference between cancellation and revocation.

In addition, it was noted that the order makes no provision for reissuing a cancelled passport. The department's latest letter suggests that clarifying this in the order is unnecessary because detailed information about reissuance is already provided on the departmental website. It should go without saying that the fact that there is information on a website, which can be changed at will and is binding on no one, is no substitute for setting out rights, responsibilities and procedures in the law itself.

The third issue relates to notice of revocation or cancellation of a passport. Section 11.1(3) of the order permits the ministers to cancel a passport without notice, but the order provides no guidance about when this power may be exercised. Further, the order is silent as to whether notice is to be given of revocation of a passport.

In response to these matters, the department invokes principles of procedural fairness, its own internal policies and information that is available on the website. As this committee has repeatedly pointed out, none of this is a substitute for clearly establishing rights and responsibilities in law.

The final issue relates to section 11.4(2), which requires that the Minister of Citizenship and Immigration "shall support the Minister of Public Safety and Emergency Preparedness in carrying out his or her responsibilities under this Order.'' This is quite vague, so the department was asked to explain the intended legal effect of this provision.

Initially, the department advised that this obliges the citizenship minister to provide administrative support to the public safety minister. This would seem to be the type of matter that is usually dealt with by way of an administrative arrangement such as a memorandum of understanding, not least because it is hard to imagine how such an obligation could be enforced by a court of law. The department was, therefore, asked why it was felt necessary to place a legal duty on one minister to provide administrative support to another.

In its latest letter, the department states that this obligation goes beyond administrative support and that cooperation could not take place without section 11.4(2). The department does not specifically address whether such cooperation could be authorized through a memorandum of understanding, but it could perhaps be asked whether it really means to suggest that departments are precluded from cooperating unless one is required by law to support the other.

To conclude, it seems that despite the opportunity to address the issues the committee found unsatisfactory after the initial reply, the department has again failed to provide a satisfactory response on any of the matters raised.

Mr. Kmiec: I sometimes feel, when reading these orders, that the people who write the order and make the policy decision are not the same people who write the letter to the committee to explain it because you have here, on page 4 of your note, them saying that cancellation is a temporary, short-term measure. Then, they said, "Well, no, that isn't it,'' but, in the letter, that's exactly what is implied.

Further, there's this point about whether it would even be legally enforceable, the support that one minister gives to another. If it's not legally enforceable, then why would you put it down in writing in this matter, unless you meant it to be legally enforceable, which means you could go to court to force a minister to do something for another? It just seems inane. Why would you do this?

My recommendation is to send a memo to them, not just asking for clarification of what they mean, but telling them to fix it. This is about passports. This is like all the times I was on the committee complaining about the Canadian Food Inspection Agency. This is about passports, revoking or cancelling them for potential terror suspects and actual terrorists. This is probably one of the more important regulations they need to get right. Probably because it's fairly new, the department is still struggling to find the right legal language.

To me, the people who write the letter should talk to the people who made the policy decision, who recommended it to the minister, to figure it out, get together and give us an actual conclusion to the matter. I don't mean to say that we should tell them "or else something will happen,'' but that should be the implication of the next response from the committee. That's what I think we should do. The next memo should be very definitive, saying, "Fix this, or we'll take the next step.''

The Joint Chair (Mr. Albrecht): I'm seeing a lot of heads nodding.

This is a very serious issue, committee members, the passport issue. Security issues are profound, so I don't want us to take it lightly.

Mr. Kmiec: I have one more point. This is also about the Charter mobility rights of Canadians. To me, if they were to use this for another purpose, if they can't figure this out, you could actually take this all the way to the Supreme Court and argue a Charter case, saying, "My mobility rights have been impeded.'' If the courts saw this and realized that you actually don't know what you're doing and you have cancellations and this or that, I think that's also very serious.


Mr. Di Iorio: When you study law — as those who have studied law will remember — citizenship and immigration is a black hole. I practice labour law, which, they say, is a moving target, with imprecise margins. This is not grey; it is black, which reinforces the idea.

Even when we develop regulatory provisions, we do not provide the precision needed, and that is why we do not have a lot of manoeuvring room here. We have to insist that the work be done. I am looking right at subsection 11.4(2), which reads:

(2) The Minister shall support the Minister of Public Safety and Emergency Preparedness in carrying out his or her responsibilities under this Order.

That is terrible drafting. I understand what they want to do. I am not a legislative drafter, but legislative drafters with the time and the resources to do their work properly should be able to get across what is required. But this is certainly not the way in which it has to be done. This is how the black hole image around everything to do with citizenship and immigration becomes perpetuated.


The Joint Chair (Mr. Albrecht): I see general agreement that we want them to take definitive action. I didn't hear a timeline.

Mr. Kmiec, do you want to put a proposed timeline on this?

Mr. Kmiec: Tomorrow.

The Joint Chair (Mr. Albrecht): Immediately, if not sooner.

Mr. Kmiec: Exactly.

The Joint Chair (Mr. Albrecht): Seriously, again, we have to be reasonable. We can't expect it tomorrow. Are we suggesting one month? Is one month adequate?

Ms. Kirkby: One month to get how far? To get a response?

The Joint Chair (Mr. Albrecht): I'm asking for the wisdom of the committee and counsel. Is one month reasonable?

Ms. Kirkby: In this particular one, we had indicated last time that we wanted a response within 30 days, and they managed to send an acknowledgment letter within 30 days.

The Joint Chair (Mr. Albrecht): Right.

Ms. Kirkby: I'm not sure we can get a more substantive response.

Mr. Mendicino: I would just like to clarify, Mr. Kmiec, what exactly it is we're instructing. I don't know that we can actually instruct, but what is it that we are specifically asking the department to do?

The Joint Chair (Mr. Albrecht): It's my understanding that we're going to follow through with the points that the analysts have raised that need to be fixed.

Mr. Mendicino: Yes, but could somebody just articulate that for me?

Shawn Abel, Counsel to the Committee: Generally, we would write back the department, more or less along the lines set out in the note prepared for members prepared for this particular day. So the substance in here will be conveyed. In this case, members have expressed the desire to convey their frustration.

Mr. Mendicino: That's what I'm getting at. It sounds like we would be repeating what we've said in the past, with some additional language expressing just the fact that we're at an impasse to reconcile what appears to be a discrepancy between the regulations and the statute, unless there's something new.

The Joint Chair (Mr. Albrecht): It seems to me, Mr. Mendicino, that the notes that we have as a committee are a response to the last letter we received, which we found to be unsatisfactory. So now we have more clarity in terms of what we expect as a committee; that is, provided the committee endorses the view of our analysts, and I see general agreement.

Senator Moore: I was thinking the same thing as Mr. Mendicino. I don't want to get another acknowledgment letter. I want a letter back from them saying what they're going to do with each of these items and when. Maybe we should specify that we expect to have an answer within 30 days on how they're going to deal with each of these specific items. I don't want them to say, "We got your letter; we'll get back to you.'' We've been through that.

The Joint Chair (Mr. Albrecht): I think there's general agreement there.

Mr. Kmiec, do you want to clarify for Mr. Mendicino exactly what your expectation was? You didn't make a motion, but I'm going to take it as a motion.

Mr. Kmiec: Basically, it's just what the analysts have laid out in their memo, which is that there's a lack of clarity exactly on what they're talking about between the content of the order and the letter replies they have provided to us.

I was just talking with my colleague, saying that every time we point out new things to them or in a different way, they provide us with a little more information on their reasoning. I think what we should do this time is restate our reasoning, explain to them exactly what the deficiency, tell them that they have to respond to us within 30 days and that if they don't, we'll take the next steps in the process, which would be either disallowance or —

Mr. Mendicino: I'm using one of the first examples, which I think was raised by Ms. Kirkby, looking at section 10.1 of the order, which says that the minister may decide that the passport may not be issued or that it could be revoked if they have "reasonable grounds to believe that the decision is necessary'' to prevent a terrorism offence. Then, under section 6 of the Prevention of Terrorist Travel Act, it sets out rules that apply to judicial review proceedings with respect to a decision under the order to refuse or to revoke a passport "on the grounds that the refusal to issue, or the revocation, is necessary to prevent the commission of a terrorism offence.''

So is it that under the latter there is no evidentiary threshold whereas under the former there is? Do I understand the discrepancy correctly?

Ms. Kirkby: Under the act, it's a question of fact. Somebody will have to make the decision in any event that it was necessary as opposed to that there were reasonable grounds to believe or suspect that it was necessary. In that particular instance, that's the only one the department has indicated that they might actually take some action on, but the necessary action would be to amend the act, which goes a bit beyond what we can predict in timelines, since that depends on the legislative agenda.

Mr. Mendicino: So can you complete the chain of reasoning? In your mind, what is the fix?

Ms. Kirkby: The fix to that one would be to amend the act so that it refers to the same standards: reasonable grounds to believe or reasonable grounds to suspect.

Mr. Mendicino: That's what I thought. If what we're trying to do is express to the department not only what the problem is but where we see a potential solution, then maybe we could include that in the letter. They may or may not agree, but at least what it does is show that the committee is turning its mind to ways on how we might improve the regulation and remove the discrepancy, rather than just saying, "We're really disappointed and you haven't given us a satisfactory answer, so come back to us with a proposal.''


Mr. Dusseault: I just want to support the proposal to provide our opinion — yet again, I am sorry to say — on the four issues and tell them that the status quo is not an option.

They have to take steps to correct the situation. We could certainly propose some solutions as we see them and then remind them that, if they do not correct the situation and maintain their position, we will use all our powers to achieve the results we expect.


The Joint Chair (Mr. Albrecht): As I read through this, and in the discussion, I think there are four main issues. There is the issue between the word "may'' and the phrase "is necessary.'' Those are different places. One is "suspect'' and the another is "believe.'' They're differentiating "revoke'' or "cancel''; and is the cancellation temporary or isn't it? Those are things that are I think need to be struck out. These are passports, as Mr. Kmiec pointed out.


Mr. Di Iorio: The notice. The lack of notice. You said "without notice.''


Ms. Kirkby: Yes, whether notice of verification is necessary in both instances.

The Joint Chair (Mr. Albrecht): Those are issues that I think our analysts can follow up on in a letter.

Mr. Di Iorio: Going back to what Mr. Kmiec was saying, we have the last memo. Everything is in it. Those items are additional to the department's last response. Our counsel's letter should be based on that, on the memo — these are the additional items, and these are our responses — but also indicate that we're at the end of the road, not that we're just starting another round of Mary go here and Peter go there.

The Joint Chair (Mr. Albrecht): I think there's general agreement. We're going to write the letter and indicate that next steps will be more drastic if we don't find resolution. All agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix C, p. 9C:1.)

Ms. Borkowski-Parent: Only one point remains to be addressed in this file. It deals with the lack of authority in the Canada Business Corporations Act over sections 54(2), 55 and 56 of the Canada Business Corporations Regulations. The same point had been raised in connection with sections 24(2), 25 and 26 of the Canada Business Corporation Regulations.

The enabling authority in these two acts allows the form of a proxy form to be established. However, the authority has been used to impose substantive rules on the proxy regime, which is not allowed.

The Department of Industry has conducted public consultations on the Canada Business Corporations Act. The consultations ended in May 2014, and the department indicates only that it will consider the committee's comments in due course.

In its most recent letter, dated May 11, 2016, the department provided no timeline for the promised corrections. It does not mention the status of the Canada Cooperatives Regulations, and it remains very vague on the amendments, if any, that it intends to make.


The Joint Chair (Mr. Albrecht): Again, I think we're faced with the issue of a timeline. Is anyone prepared to make a motion that we want this addressed within 90 days or something similar? You pick the number.

Senator Moore: Sooner than that after nine years back and forth.

The Joint Chair (Mr. Albrecht): Senator Moore, I'm looking for a motion.

Senator Moore: I would do 30 days, unless the committee wants to do a little bit longer, but I wouldn't go any more than 60, I can tell you. They're just not paying attention.

The Joint Chair (Mr. Albrecht): The motion is 30 days.


Mr. Dusseault: I have a question, for clarification. Basically, the department has held consultations in order to amend the regulations, but the process is not yet complete. It says that it wants to consult us at some stage in the process, but that has not yet been done.

Ms. Borkowski-Parent: Yes, the department held consultations on the general operation of the Canada Business Corporations Act. It seems that the committee's concerns were going to be considered as the act was being studied. The consultations ended in 2014, more than two years ago. But the most recent letter does not indicate what the department intends to do to respond to the committee's concerns.

Mr. Dusseault: Do we have an idea of the time when the changes could occur, as a result of those consultations?

Ms. Borkowski-Parent: There is no such indication in the correspondence, no.

Mr. Dusseault: We should perhaps add that to the letter, saying that they have a deadline for this review of the operation, following the consultations that ended two years ago already.


The Joint Chair (Mr. Albrecht): I think that was the intent of Senator Moore's motion, that we give them 30 days to complete that process.

Is there any further discussion? All in agreement with the motion to ask for a response within 30 days? Opposed?



(For text of documents, see Appendix D, p. 9D:1.)

Ms. Borkowski-Parent: There is presently a discrepancy between the Canada Business Corporations Act and the Canada Business Corporations Regulations of 2001. The Department of Industry has indicated that the regulations represent what was intended, and they agreed in 2007 to amend the act to bring it in line with the regulations.

As was mentioned on the previous item, the department proceeded to public consultations, which concluded in 2014. As part of this work, the department "will work to ensure that the correction identified by the Committee is addressed.''

The department's letter of May 11, 2016, does not state any time frames, nor does it contain a firm promise of action.

Senator Moore: This is the exactly same.

The Joint Chair (Mr. Albrecht): This is déjà vu all over again.

Is someone prepared to make a motion?

Senator Moore: I'd take the same action as we did in the previous item.

The Joint Chair (Mr. Albrecht): I see heads nodding.


Mr. Dusseault: It is a little different in this case, because they recognize that we are right, and they will make the changes that the committee has suggested.

Ms. Borkowski-Parent: We have to tell them that the amendment is a legislative amendment, because the regulations would better reflect what was intended than what is really set out in the act. So if the intent is still there, a legislative amendment is needed, but there is a way to confirm that it is still the case.

Mr. Dusseault: Okay, thank you.


The Joint Chair (Mr. Albrecht): We have a motion on the floor. Is there any further discussion? All in favour of the motion, raise your hand. Opposed?



(For text of documents, see Appendix E, p. 9E:1.)

Ms. Kirkby: This is the first time this file has been before committee, and the regulations are quite lengthy. So I will group issues as best I can, but it will still take some time.

Transport Canada has promised to make amendments with respect to 47 of the 59 points raised. These amendments primarily relate to drafting matters, such as inconsistent language, although I would call members' attention to point 33, which is an issue the committee encounters with some frequency. The relevant subsection authorizes the director to choose among amending, cancelling and suspending a permit, but in fact there are no criteria established to guide the director in exercising this discretion.

Transport Canada indicates that the subsection will be deleted and that criteria will be established, in consultation with the provinces and territories, to guide the director in choosing between the options. Members could well be pleased with this promised amendment in particular, although Transport has provided no estimate as to when any of the amendments are expected to be made.

With respect to the 12 items for which amendments have not been promised, it is suggested that Transport Canada has provided a satisfactory response on three of them, which are points 10, 27 and 36, as detailed in the materials.

It is further suggested that seven additional points are relatively straightforward and could be pursued with Transport Canada in another letter. These are points 23, 31, 37, 42, 48, 52 and 58, which relate broadly to addressing inconsistent or subjective language, setting out criteria in the regulations to guide the exercise of discretion, clarifying exceptions and confirming intended consequences.

The remaining two items require some explanation.

First is Item 32. Section 67(2) of the regulations states: "Every driver who is driving under a permit shall drive . . . in accordance with the terms and conditions of the permit.'' As the committee has repeatedly pointed out, including in Report No. 78, which was a disallowance report, clear and precise enabling authority is required for regulations that make non-compliance with the terms and conditions of an administrative document punishable as an offence.

Somewhat unsurprisingly, Transport Canada is of the view that the existing provision is authorized but states that it will consult with the provinces and territories before developing a final position on this point.

As noted in the materials, this is an ongoing issue in regulations made by various departments.

Two additional issues in respect to Item 32 may be worth raising with Transport Canada. The first is whether these permits are in fact subject to the requirements of the Statutory Instruments Act, including registration and publication. As explained in the materials, because the act and regulations establish a penalty for contravention of the terms and conditions of the permit, the permit itself might meet the definition of regulation in the act. Further, while the Statutory Instruments Regulations exempt some permits issued by the Minister of Transport from registration and publication, they are silent with respect to these permits. This could be taken to support the argument that these permits are statutory instruments and ought to have been registered and published.

An additional argument that has not been raised with the department is that there is now some doubt as to whether these permits are authorized by the enabling act. The regulations establish rules relating to the safe operation of extra-provincial motor carrier undertakings and then authorize a federal or provincial director to issue a permit that, in essence, waives the regulatory requirements for the permit holder. Clear enabling authority would be expected to make regulations that delegate to an administrative official the power to determine, on a case-by-case basis, who will be subject to the regulatory requirements.

Finally, the last item to discuss is Item 56, which relates to certain requirements for the sleeper berth that are set out in the schedule. The English version of one item requires the space for the sleeper berth to be securely compartmentalized, while the other requires the space to be separated by a solid barrier. The different language used in the English version of these two items suggests that they're intended to create different requirements, but it seems unclear how they could differ in practice. The French versions both include the concept of something solid, which might suggest that there is, in fact, not much of a difference. Transport Canada has suggested that there is indeed a difference in practice and argues that this difference is sufficiently represented in the French version such that no amendments are required. I'm in the committee's hands as to how to proceed an Item 56.

To summarize, it is suggested that a timeline could be sought on the 47 promised amendments. Three items appear to be satisfactory. Seven are relatively straightforward and could be pursued in a further letter. The new arguments on Item 32 could also be pursued, and the committee's guidance would be appreciated on whether the explanation on Item 56 is satisfactory.

The Joint Chair (Mr. Albrecht): Any members? Anyone want to add to that?

For my part, I think the recommendation of our analysts is good. But the one they need clarity on is 56, "solidly compartmentalized.'' It seems a rather strange argument to get into, but it should be clarified.

Ms. Kirkby: We could also just accept it.

The Joint Chair (Mr. Albrecht): We could just leave it as is on that last one?

Ms. Kirkby: Yes.

The Joint Chair (Mr. Albrecht): What are your thoughts on Item 56, the difference between the French and English, "solid compartments'' or "solidly compartmentalized?'' Leave it alone? I see agreement to leave that one alone.

On the others, as our counsel has indicated regarding follow-up action, I think she has summarized well what a potential action could be. If I hear no disagreement, we'll proceed in that manner.

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Thank you very much. It's a big file. I'd like to say I read every word of it.


(For text of documents, see Appendix F, p. 9F:1.)

Ms. Borkowski-Parent: By way of background, food additives are now regulated under marketing authorizations made by the minister. Therefore, some of the tables to section B.16.100 of the regulations will be repealed. The other amendments promised to the committee will be part of that same package. The forecasts for completion of that initiative have been fall 2014, then 2015 and now spring 2017.

There remain two points still under consideration by the department that deal with inconsistent terminology. Health Canada only stated it would consult the Canadian Food Inspection Agency on the proper terminology to be used.

Counsel could inquire on the expected time frame as well as the state on the expected consultation with the CFIA on the last two points.

The Joint Chair (Mr. Albrecht): I think the clear conclusion is that we need consistency, and they need to figure out which one they're going to use.

Are there any comments from committee members on next steps to be taken? Is there agreement with the suggestion of our counsel?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Thank you. We will proceed in that manner.


(For text of documents, see Appendix G, p. 9G:1.)

Ms. Kirkby: I'll just mention that I might sometimes say "SIN'' instead of "Social Insurance Number,'' to save syllables.

This is the second time this file has been before the committee. The department's first response was largely about how the Social Insurance Number regime is administered in practice, with little connection to the text of the regulations or the enabling acts. The committee therefore instructed counsel to meet with departmental officials to discuss the regulations, with a particular emphasis on how practice must conform to the regulations, which must, in turn, be authorized by the enabling acts.

That meeting was held on November 25, 2014, and seems to have been somewhat fruitful.

In its latest response, the department has agreed to make amendments to address many of the issues raised. Promised amendments will address vague and subjective language, inconsistent wording and French-English discrepancies. Further, amendments will be made to ensure the regulations reflect how the regime is administered in practice and will include the repeal of one provision that is no longer required.

There is no indication of when these amends will be made, however, and as of yesterday, nothing had been published in the Gazette.

In addition, agreement has not yet been reached on four points. First, two provisions require an applicant who is neither a Canadian citizen nor a permanent resident to include in the application the grounds that support it. After two letters from the department, it remains unclear whether this means the purpose for which the SIN is requested, the facts that result in eligibility for benefits or something else entirely. The department suggests the meaning is clear from its administrative guidelines, but as always, this should be made clear in the law itself.

Next, section 12 of the regulations prohibits a person from using a SIN card that has expired or a SIN whose period of validity has expired. The first issue is whether this section establishes a prohibition without a penalty, because the enabling act that creates a general offence of contravening the act or its regulations does not authorize the making of regulations relating to the use of SIN cards or periods of validity.

The second issue raised with respect to section 12 is that it appears to duplicate an offence that already exists in the other enabling act, except without the need to establish intent to defraud or deceive.

The department has still not provided an explanation with respect to the first issue.

With respect to the second, it says the offence in the regulations aligns with the one in the act. This seems incorrect. At best, section 12 of the regulations is redundant if it simply prohibits what the act already does. At worst, it is an attempt to undermine the element of intent that Parliament introduced into the offence enabling act. Either way, it continues to seem that section 12 should be repealed.

Section 13 of the regulations appears to require certain applicants to contravene a prohibition in the enabling act. The act prohibits a person who knows they already have a SIN from applying again to be assigned a SIN, whether the person gives information that is the same as or different from that contained in their earlier application. Section 13 of the regulations, however, requires a person who has already been assigned a SIN — one that begins with a 9 — who has since become a Canadian citizen or permanent resident, to apply for a new SIN — one that begins with a number other than 9.

At first, the department argued that change of status in Canada is considered acceptable grounds to apply for a new SIN, despite previously having been assigned a SIN. Most recently, the department argued that the regulations do not require a person to contravene the act because, first, the person applies to void his or her temporary SIN and then requests a new one.

None of this reflects what the act and regulations actually say. If it is desirable to create an exception to the clear statutory prohibition, the act must be amended. There is currently no such exception, however, with the result that it continues to appear that the regulations require certain persons to contravene a prohibition in the act.

Finally, section 89 of the Employment Insurance Regulations imposes an obligation on certain persons who have not yet been registered in the register to apply to be registered.

It was suggested that this should instead require a person who has not yet applied to be registered to apply to be registered, because the applicant would not have access to the register to know whether the commission had yet registered them. In other words, the suggestion is that the obligation should hinge on something that is within the knowledge of the applicant rather than something that is only within the commission's knowledge.

The department disagrees with the suggestion and seems to want a person who has applied to be registered to apply again if the commission has not yet processed their application. This would seem to require the applicant to contact the commission to determine whether they were yet in the register. If not, they would have to apply again, even if their application was about to be processed. This is very strange, and the department could perhaps be asked what purpose this approach serves and if this truly reflects the intent of the provision.

The Joint Chair (Mr. Albrecht): There are at least three main points that we need to clarify there.

Mr. Di Iorio: I'm not clear on the one about the SIN number, where you have to apply to have it cancelled and then apply for another one. The department does have a point there. If I have one, I might not know that I have to proceed that way. But what the department is saying is correct.

The Joint Chair (Mr. Albrecht): But it's not in the act. I think that's the point.

Mr. Di Iorio: It is. The fact that you have to have your number cancelled is in the act.

Ms. Kirkby: Let me find the actual text of this.

Mr. Di Iorio: A person would have to believe that they can have two numbers?

Ms. Kirkby: The one that begins with the 9 is temporary.

Mr. Di Iorio: But temporary is long; it's a long temporary.

Ms. Kirkby: I think it's five years maximum, but you can extend it.

At the point that you become a Canadian citizen or a permanent resident, you apply for a new one that begins with a number other than a 9. The text doesn't actually say you have to apply to have it cancelled and apply for a new one. You make an application for a new SIN number. So what you're essentially doing is applying for a new SIN number.

The Joint Chair (Mr. Albrecht): Which the law says you can't do.

Mr. Di Iorio: Okay.

Mr. El-Khoury: Is it that the previous one will be cancelled automatically — the temporary one — when we apply for a new one?

Ms. Kirkby: Administratively, that might be what happens, but the text of the law requires you to apply. I would think there might be a process to do it automatically without requiring the application, but I don't know.

The Joint Chair (Mr. Albrecht): If I understand it, the current situation actually makes someone contravene the law, because it says you may not apply while you have one that starts with a 9, yet you have to void it first, but it doesn't say that in the act itself. That's my understanding. I want to make sure we're clear on that.

Mr. Di Iorio: When I get my second one, does the first one, the one with the 9, still exist? Because if it ceases to exist, then by implication, when I'm asking for the second one, I'm necessarily accepting a consequence that will flow from it, which is the cancellation of the first one. I can certainly imagine individuals who would want to have two, three, four or five SIN for obvious non-legitimate reasons.

Ms. Kirkby: The prohibition in the act states:

28.4(1) No person

(a) shall, knowing that they already have a Social Insurance Number, make an application to be assigned a Social Insurance Number...

So if you have your Social Insurance Number and you know you do, you can't apply.

The regulation states:

13(1) On the application of a person who has been assigned a Social Insurance Number . . ., the Commission must void the previously assigned number and assign a new one.

So, temporarily, you know you have a number, you apply for your new number and then they void it.

Mr. Di Iorio: In the provision you read, the word is "knowing.''

Ms. Kirkby: Yes.

The Joint Chair (Mr. Albrecht): I think the bottom of page 5 in the notes makes it crystal clear for us as a committee. It reads:

This reply again does not seem to address the crux of the matter. The text of section 13 of the Regulations does not require a person to first apply for his or her temporary SIN to be voided . . . .

That's the crux of the matter here.

Mr. Di Iorio: Yes, but I don't want an individual to have to file two requests. One is to have it voided and then another one to get the number.

If they want to keep what they have as a structure, they would have to have a form stating, "I hereby request to cancel the first one, or any other SIN that I might have had, and I request the issuance of a new one.'' So then we would not put the person in the position where they would put themselves in violation of the law.

If they come up with such a form, it would be the case whereby an individual who does not sign where he or she is supposed to sign would put themselves in violation of the law.

Ms. Kirkby: The suggestion that we had made for the easier solution was to create an exception to the offence. This is apparently a situation that's considered justifiable for applying, knowing that you already have a Social Insurance Number. So if you created an exception that said "except in the circumstance where you have a 9 and you apply for a non-9 SIN, that's acceptable,'' then they could continue to do the same administrative process they do of applying for the new one.

Mr. Di Iorio: Just to give you an example, not long ago one of my daughters was talking to her sister, asking for a SIN. I asked her why she was asking about one. She said she needed one. I said she didn't because I asked for a SIN when they were born. You can ask at the time of birth. She would not be "knowingly''; she didn't even know she had a SIN.

In the office I mostly see people who have 9s. There we have to explain to them they should have it changed, that it's the opposite. They don't ask when they should be asking for another one to realize their situation.

It's just that difficulty that I have. I agree with the fact that when the information is within the government, it's not within the individual. Maybe we can find a way where the individual is provided the proper information at the time the request is made. That's why I refer to the fact that maybe there should be two signatures. One is to have everything cancelled. And provide all the information that the person knowingly has in their possession.

Ms. Kirkby: It's hard to know, just looking at the text of the offence, whether that would be sufficient.

(a) shall, knowing that they already have a Social Insurance Number, make an application to be assigned a Social Insurance Number, whether the person gives information that is the same as or different from that contained in their previous application . . . .

So even if it were different information — I guess if you're saying they wouldn't have one because they go through a two-step process where, first, they would have it expunged, then they would know that they didn't have one anymore. It might work.

The Joint Chair (Mr. Albrecht): The other suggestion is on the top of page 6. Could you read how this would read with your suggestion? "Other than when they have a Social Insurance Number beginning with 9''? Could that be simply added?

Ms. Kirkby: It could be an exception in a separate provision, subject to "no person shall, knowing they have a . . . .''


Mr. Dusseault: What was the department's response to the fact that the section prompted some people to break the law?

Ms. Kirkby: The first time, they said it was justified.


That there were "acceptable grounds.'' They said it was "acceptable grounds'' to apply for a new SIN, despite previously having one. In their first reply, they seemed to recognize this was a problem, but they thought it was an acceptable reason to do it.

The second time, they explained that, administratively, they have this process where first they void it and then they issue the new one. So in their view there wasn't a contravention.


Mr. Dusseault: We can suggest to them the two solutions put forward this morning: to create an exception or to propose clarification, and to provide a two-step form so that the person who applies for a new social insurance number is fully informed and knows that the one they had in their possession had already been cancelled.

The first step would be to cancel it. This would ensure that the person would not be found guilty of failing to comply with section 28.4(1).


The Joint Chair (Mr. Albrecht): I just want to bring us back. Our analysts do great work in summarizing these things for us.

Halfway down page 6, the last sentence of that second paragraph:

Either that act must be amended to allow for exceptions to the statutory prohibition, or the regulations must be amended so as not to require . . . .

To me, that gets at what we need to do. Is the committee comfortable with giving our analysts authority to write that back to this group? I don't want to muddy the waters more than we need to. We need to clarify this.

Mr. Di Iorio: I agree with you. I'm just saying they might come up with an intermediary solution.

The Joint Chair (Mr. Albrecht): Yes, another solution.

I hear general agreement that we proceed in that way.

Are you clear, Ms. Kirkby, on what we want on the other two items? The first one is at the top of page 5: ". . . prohibits a person from applying to be assigned a new . . . .'' That is the same one, sorry.

The last one on page 7 relates to processing an application and the applicant not knowing they have already applied or that it's being processed. Are we clear on action there?

Ms. Kirkby: We will write back on those as well.

The Joint Chair (Mr. Albrecht): Are all in agreement with that?

Hon. Members: Agreed.



(For text of documents, see Appendix H, p. 9H:1.)

Ms. Borkowski-Parent: As indicated in the note prepared for you this morning, the department agreed to correct the inaccurate reference in subsection 5(1) of the regulations.

At the May 5 meeting, the members of the committee expressed the wish that the issue be presented again in the fall. Although the department wrote to the committee on September 12, the response unfortunately contained no timelines or useful information. A follow-up letter could be sent or the committee may choose other options.


The Joint Chair (Mr. Albrecht): Timeline?

Senator Moore: I agree, chair.

The Joint Chair (Mr. Albrecht): What's the timeline this time?

Senator Moore: I'd do 30 days.

The Joint Chair (Mr. Albrecht): It has to be consistent.

Are all in agreement?

Hon. Members: Agreed.


(For text of documents, see Appendix I, p. 9I:1.)

Ms. Kirkby: This file was before the committee at its last meeting. Counsel pointed that some 10 amendments addressing the committee's concerns have been outstanding for many years and that the Competition Bureau stated in January that it is confident it will be in a position to move forward in spring 2016.

At that meeting, members considered whether it would be appropriate to write to the Minister of Industry or whether the degree of independence of the Competition Bureau meant that the commissioner was the highest responsible official for the purposes of amending the regulations.

Counsel has since clarified that the Textile Labelling Act authorizes the Governor-in-Council to make regulations, which are made on the recommendation of the Minister of Industry and which the bureau is then responsible for administering. It therefore seems to answer the question from last meeting that it would be open to the committee to write directly to the Minister of Industry to express its dissatisfaction with the continued delay in making promised amendments.

Senator Runciman: So moved.

The Joint Chair (Mr. Albrecht): Two points.

At bottom of the page 1, you're very gracious in saying "progress has been slow.'' That's an understatement. The last sentence of the last paragraph on page 2 says, "move forward on this matter in the spring.'' Again, they don't say which spring, so I think we're probably fine.

Senator Runciman: The debate was whether we could directly contact the minister, and I think we should to explain how outrageous this is with respect to a lack of response.

The Joint Chair (Mr. Albrecht): Are all in agreement to send a letter to the minister, signed by the joint chairs?

Hon. Members: Agreed.




(For text of documents, see Appendix J, p. 9J:1.)

Ms. Borkowski-Parent: These regulations were made pursuant to the Food and Drugs Act based on the conclusion that human semen processed for assisted conception is a drug within the Food and Drugs Act. That view is based on the idea, as described by Health Canada, that human semen for assisted conception is a substance that alters the organic functioning of a woman and therefore meets the definition of a drug.

The committee has taken a somewhat different view on the matter and has concluded that there is no authority for these regulations and that they should be remade under the Assisted Human Reproduction Act.

The Minister of Health, while maintaining that the regulations were valid, confirmed that a review was underway in 2006 as part of a long-term project and that consideration would be given to remaking the regulations under the Assisted Human Reproduction Act.

Matters were delayed by a legal challenge back in 2010. The Supreme Court declared large portions of the act unconstitutional. Parliament then had to amend the act, and the department at that point committed to ensuring that the regulations would be re-enacted once the new sections 4.2 and 10 of the Assisted Human Reproduction Act came into force.

Section 10 would prohibit the distribution, use and importation of ova and sperm for the purposes of reproduction, unless those activities are carried out in compliance with regulatory requirements.

Section 4.2 specifies that the Food and Drugs Act does not apply to sperm and ova intended for assisted reproduction. However, these two provisions have yet to be brought into force.

In 2014, the department stated that a review of the existing regulations was planned but that it would not commence until 2016 or 2017. This caused the committee some concern at the time because, of course, this would postpone bringing those sections of the Assisted Human Reproduction Act into force and the remaking the regulations pending a broad review that was not even due to start for several years.

Because of those concerns, the committee decided to write to the Minister of Health in January 2015, suggesting that sections 10 and 4.2 be brought into force in the interim and that the regulations under the Food and Drugs Act be revoked and remade under those new sections. After that, any further amendments that were required as a result of the long-term policy review could be added to the regulations.

In a January 4, 2016 letter, the department advises the committee that preliminary policy work indicates that updates to the semen regulations are required to reflect current science and that stakeholders are pressing for regulations around the safety of ova for assisted conception as well.

For this reason, the department says it prefers not to re-enact the regulations at present under the new act but, rather, to wait until it has done its broad policy review to decide what updates are necessary, and then proceed with it all at once. The department then proposed to provide the committee with a progress report on an annual basis, with the first report being made this fall.

The committee decided to ask for a time frame for the overall policy work before agreeing to wait and see, and get an update once a year. It took some work to actually get the department's reply. Unfortunately, it is void of any new information, and it most definitely does not contain the expected time frame asked for by the committee.

It is for the committee to determine whether it wants to go ahead with annual updates or pursue other options.

The Joint Chair (Mr. Albrecht): As clarification, the letter indicates that they will provide an update March 31, 2017.

Ms. Borkowski-Parent: On the status of their policy work. They haven't said how long that policy work is expected to take.

The Joint Chair (Mr. Albrecht): What's the wish of the committee?

Mr. Kmiec: Is it a fact that a couple of these components have gone to court and been ruled unconstitutional? There's quite a bit a work being done and the department is doing work. I suggest we monitor the file, send some of the suggested comments from counsel to them and ask them to provide us with a timetable of when different parts will be done and to just lay it out. Maybe they already have it done or maybe they don't have it, but at least tell them to provide us a timetable when different actions will be undertaken so that we know when this will return at some point.

Even for me, this was quite a complicated one to track the different processes that had gone down and the reasoning for different things. I feel that monitoring the file and asking for a timetable, providing them the recommendations and what the committee's counsel suggests, I think would be the best choice. That's my view.

The Joint Chair (Mr. Albrecht): I see agreement.

Hon. Members: Agreed.



(For text of documents, see Appendix K, p. 9K:1.)

Ms. Borkowski-Parent: Of the 12 points raised in the original letter, eight were addressed through administrative or regulatory changes. Then there are two points on an issue that I would call time-sensitive in the regulations. The regulations impose obligations on certificate holders that are themselves conditions for obtaining the certificate.

For example, section 705.172(1) requires the air operator to establish procedures, whereas procedures should already have been established to obtain certificates. As indicated in the note, it would probably be sufficient to amend the wording of those provisions to require that the air operator implement the procedures set out at the time of application .

The department has indicated only that the issue is currently under consideration, but counsel could request a firm timeline on the matter. The same follow-up could be done for the terminology inconsistencies that were not corrected when SOR/2015-160 was passed.


The last point pertains to ambiguous language in the definition of a "level 1'' incident. While level 2 to 4 incidents are defined in a fairly objective matter, a level 1 incident is qualified as using "unacceptable'' language or adopting "unacceptable'' behaviour. What is unacceptable will greatly vary, and considering the penal consequences associated with this provision, it seems essential to minimize ambiguity.

The department indicated it would amend its administrative circular to provide some clarity to the definition of "level 1'' incident while it worked on the regulatory amendments.

The circular mentioned by the department was updated last spring and includes more specific guidance on level 1 incidents in that it defines "unacceptable'' language as the use of swear words or profanities, and "unacceptable'' behaviour towards a crew member as using rude gestures, asking for unreasonable demands or trying to provoke an argument when a request has been denied, using a tone of voice to demonstrate displeasure, and not following the crew member's instructions or challenging his or her authority.

Considering the similarities in wording with some of the level 2 incident definition, it would be worth asking what differentiates the two.

Furthermore, while amending the circular to at least mention level 1 incidents was a first step, it remains that the circular is administrative in nature and amending it was supposed to be only an interim measure.

As there has been some time since the committee has obtained an update from the department on these matters, a firm time frame should be asked for the amendments to the regulations.

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): Again, I'm not sure 30 days is reasonable in this case, but if the committee thinks it is —

What are your suggestions?

Ms. Jordan: I think sixty days would be good.

The Joint Chair (Mr. Albrecht): I see agreement. Give them a little more time.


(For text of documents, see Appendix L, p. 9L:1.)


(For text of documents, see Appendix M, p. 9M:1.)

The Joint Chair (Mr. Albrecht): Next are Items 13 and 14 under "Action Taken.''

Ms. Borkowski-Parent: Together, they make a total of three requested amendments.



























Ms. Borkowski-Parent: Finally, I would note for the record that under "Statutory Instruments Without Comment,'' 26 instruments have been reviewed and found to comply with all the committee's criteria.

The Joint Chair (Mr. Albrecht): So progress is being made on files that we don't get to see all the detail, which is a good thing. Thank you for all the work that goes on between our meetings.

Ms. Jordan: Mr. Chair, I'd just like to make a comment about our consistency as a committee. I'm not a lawyer, so I put that out there first of all. Just today as an example, we've had cases that have sat here for nine years and we gave them 30 days. We had some for two years and gave them 60 days. With 13 years, we gave them 30 days.

Then we had one that came to us first in April, and we've already allowed for disallowance. I know we voted, and I'm not asking us to change that. I'm just saying that as a committee, we didn't give that file the same process as we have everyone else — allowing them to respond and appear before committee.

As a committee, should we have an actual process that we follow in terms of saying that the first option is you get this many days, then you have to appear, then you get the minister, and then you use disallowance? I think we used a sledgehammer in a case where maybe we could have looked at something a little bit more appealing in terms of finding a solution.

The Joint Chair (Mr. Albrecht): Thank you.


Mr. Dusseault: I understand my colleague's concerns, but I think we have to look at the seriousness of the issue. In the case we looked at earlier, I think it was more serious than in other situations in which the same legal consequences are not necessary at stake. In our decision-making discussions, we would need to further assess the severity of the consequences, the impact, and the effect of existing regulations that might be problematic.


The Joint Chair (Mr. Albrecht): Regarding the one that you mentioned, Item 2, it came to us in April but communication has been going on for four or five years.

Ms. Jordan: But it then came to us in April.

To Mr. Dusseault's point, I think everything that comes before us is serious. I just think that there are times when we've used a sledgehammer when we could have found an easier way.

Mr. Di Iorio: I think the comment made by my colleague has to be made when we're debating as to whether we're going to use what's termed as a sledgehammer. We cannot have a rule on the motion and then when the motion has been decided, come at the end and say —

Ms. Jordan: No, no.

Mr. Di Iorio: I want to be open with all my colleagues. I say what I think and I'm very transparent. Then we close, we get the question and we vote.

The second thing I want to point out is that the reason we have a committee, and we have all the major parties on it, with senators, is because there's no recipe book. If we had a recipe book, we would have probably one senator and one member of Parliament simply to make sure that the recipe book is followed. The reason we have so many committee members is because there are no recipes. We have to assess and balance, and obviously we all try to be fair in the way we approach this.

On the last item on which Mr. Kmiec intervened, he specifically pointed out, yes, but here's this thing in particular. They had to go to the Supreme Court. How could we put that in a recipe book? We wouldn't be able to point to every possible circumstance that could occur in the course of a file.

Ms. Jordan: A final point. I was not asking for looking at the one that we all voted on. I'm perfectly fine with the decision the committee made. I was just talking about the process specifically. That's all.

The Joint Chair (Mr. Albrecht): It's a point well taken. I appreciate the input from all committee members.

(The committee adjourned.)

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