THE STANDING JOINT COMMITTEE OF THE SENATE AND THE HOUSE OF COMMONS FOR THE SCRUTINY OF REGULATIONS

LE COMITÉ MIXTE PERMANENT D'EXAMEN DE LA RÉGLEMENTATION DU SÉNAT ET DE LA CHAMBRE DES COMMUNES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 5, 1998

• 0830

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

Mr. Gurmant Grewal (Joint Chairman) in the Chair.

[English]

The Joint Chairman (Mr. Gurmant Grewal (Surrey Central, Ref.)): We have two items to discuss before we move to the agenda. The first matter concerns the motion moved last week by Mrs. Jennings. Shall we leave this as tabled because Ms Jennings is not here?

M. François-R. Bernier (General Counsel to the Committee): Ms Jennings had to be at a meeting of the industry committee for clause-by-clause consideration this morning.

The Joint Chairman (Mr. Grewal): How can we deal with that?

Mr. Wappel: Please refresh us on the nature of the motion.

The Joint Chairman (Mr. Grewal): The motion was to adjourn the committee meeting until such time as Mr. Wright, the Deputy Minister of Revenue, could appear before the committee. It is redundant anyway because we have held the meeting.

Mr. Bernier: The motion has lapsed.

The Joint Chairman (Mr. Grewal): Shall we will leave it as it is, then?

Mr. Bernier: Yes, however, the matter was left hanging. The question is: Does the committee want Mr. Wright to appear?

Mr. Wappel: That is why I am asking. There is an agenda item after the RCMP item that pertains to revenue, the import of arms permit. I have something to say to that in respect of Mr. Wright. I do not want to jump ahead on the agenda, but my suggestion is that he attend here to explain why no one is answering our letters. That being the case, he could also answer any further questions we have on the file that we dealt with last week.

We do not necessarily need to accept or reject what Ms Jennings said at this time because we have an opportunity to talk about Mr. Wright's attendance with the next file. If he appears, then he can speak to a number of issues.

Mr. Bailey: Is it because that meeting proceeded in camera that somehow the motion made by a colleague is not a legal motion? What is the debate here?

The Joint Chairman (Mr. Grewal): The motion was tabled and we proceeded with the meeting.

Are you asking why the meeting was in camera?

Mr. Bailey: No, the debate on the motion. Is it a legal motion or does it need to be withdrawn?

The Joint Chairman (Mr. Grewal): It should be withdrawn because the motion is not in effect because the meeting continued. Ms Jennings asked for the meeting not to continue but we tabled her motion at that time. The best thing would be for her to withdraw the motion. I am bringing this matter to the attention of members because the staff has some problems with proceeding with the circulation of the proceedings of the committee.

The meeting also went in camera and we recorded the deliberations and we intended to publish and circulate the proceedings.

Mr. Bailey: In total?

The Joint Chairman (Mr. Grewal): Yes.

Let us proceed to the first item on the agenda.

Mr. Lee: Mr. Chairman, prior to the commencement of the meeting, you and counsel spoke with me informally about the motion adopted at our last meeting that placed the proceedings in camera.

Rather than get into a technical discussion about that, in the event that there is some element of the adopted motion that impairs the printing and distribution of the minutes of the meeting, then it would be the view of the members that the motion either be deemed to be revised so as to permit the distribution or that the adopted motion be withdrawn so as to prevent the need for a new motion. Either way, we could proceed. I wish to avoid another five minutes of technical discussion. If that requires a motion, I am happy to so move. Does it require a motion?

I will so move. There is a motion on the floor.

The Joint Chairman (Mr. Grewal): All those in favour?

Some Hon. Members: Agreed.

[Translation]

Mr. Lebel: What motion is that? He did not want to talk about it before, but now he does.

[English]

The Joint Chairman (Mr. Grewal): That is fine. We accept that we do not want to be that formal. You want the motion to be repeated, is that it?

[Translation]

Mr. Lebel: He is moving a motion and I would like to know what it is about.

[English]

Mr. Lee: I will not repeat the motion, but I will explain it. As a result of a motion that I believe I moved, which was adopted last week, there may or may not have been some technical difficulties in completing the printing and distribution of the minutes of that meeting. The motion which I just moved clears away any technical difficulties so that we now have a fresh start for this meeting.

The Joint Chairman (Mr. Grewal): These are housekeeping matters that we had to deal with.

Mr. Lee: I would be happy to explain it to Mr. Lebel immediately following this meeting.

The Joint Chairman (Mr. Grewal): Is that all right, Mr. Lebel?

[Translation]

Mr. Lebel: I will oppose the motion, because I do not know the substance of it. If some things have caused some embarrassment, I really do not know what that is about.

Mr. Saada: Last week, we passed a motion to hold an in camera meeting. Nevertheless, it was our intention to have these in camera proceedings published. We realized that this could be problematic. When a meeting is held in camera, the transcripts are not released. Otherwise, when a meeting is public, the proceedings are published. My colleagues want the proceedings to be published. We are moving a motion to overturn last week's motion to sit in camera so that our proceedings can be published.

Mr. Lebel: I want to know what the substance of his motion is and he does not want to tell me.

Mr. Saada: He told you, it is simply to ensure that our proceedings are published.

Mr. Lebel: If it is only a minor thing, what is the trying to hide?

[English]

The Joint Chairman (Mr. Grewal): We are not hiding anything. The only thing is we did not write the wording of the motion until now. Shall I proceed now? Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): The motion is adopted.

Let us now move to the first item on the agenda.

SOR 88-361 — ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988.

Mr. Bernier: The proposed regulations which replace sections 56 and 57 of the RCMP Regulations have been received and are in the process of being analysed by counsel. We hope to submit the draft regulations and comments to the committee at its next regular meeting, if that is agreeable to members. Generally, it looks good. My preliminary opinion is favourable.

Mr. Wappel: On the subject of the regulations but on another point, Mr. Chairman, there was an article on this issue in The Globe and Mail on Wednesday, November 4, 1998. There was not a single word about this committee or about the work that this committee has done with respect to this issue.

My recollection is, and I stand to be corrected by counsel, that on occasion in the past, at the direction of either the committee or the steering committee, counsel has written a letter either to a reporter, newspaper, or whatever the case may be, to educate them and the public on the work of this committee and what we have done on respective issues.

This may be an appropriate time for us to ask counsel to prepare something for the joint chairmen to sign that would go to the reporter and The Globe and Mail, mentioning the work that this committee has done over a lengthy period of time.

The article would make it seem as if everything occurred simply and only because of a judgment of a court in Montreal a month ago. That is an insult to the work that this committee has done and to the consultations that took place between us and the Solicitor General over a lengthy period of time. I would urge us to instruct our counsel to prepare something for the chairmen to send to The Globe and Mail and to that reporter.

The Joint Chairman (Mr. Grewal): Any other comments?

Mr. Saada: That is very fair.

The Joint Chairman (Mr. Grewal): Perhaps other members would like to have a copy of that article. It will be made available. What do you think about that, counsel?

Mr. Bernier: Perhaps the committee should consider hiring a PR consultant.

Mr. Wappel: We do not need one. We have you.

The Joint Chairman (Mr. Grewal): Is it agreed?

Hon. Members: Agreed.

SOR/86-1078 — IMPORT OF ARMS PERMIT

SOR/92-456 — USED MOTOR VEHICLE EXEMPTION REGULATIONS 1992-1

Mr. Bernier: In this case, before Mr. Wright's name is invoked in vain, I should like to point out that the letter that was sent here was a letter sent to the Minister of National Revenue in September 1996. That letter remains unanswered despite three subsequent reminders. The question is how members wish to proceed. I assume that Mr. Wright, as deputy minister, is not responsible for the operation of the ministry in total.

Mr. Lee: In legal principle, is the Crown normally bound by regulations in the way that is discussed in the September 4 letter? The Crown here is denying that they are bound. Is there a legal principle that would indicate that, unless otherwise stated, the Crown is bound?

Mr. Bernier: The basic legal position is that the Crown is not bound by statutes unless there is an express or implied indication in the statute that it was the intention of Parliament to bind the Crown.

In this instance, we find in statute that that indication exists. That is what the debate has been about. In fact — and this is why the used motor vehicle exemption regulations are on the agenda, although there is no particular document referring to them — that exemption includes exemptions granted to federal departments — that is, to the federal Crown — under the same statute. You would only grant that exemption if you considered that the Crown was indeed bound, as the committee has been saying. Further, in relation to the import of arms permit, we asked the minister to reconcile the fact that they are arguing that the statute does not bind the Crown while, at the same time, the making of this other instrument in 1992 must necessarily reflect the view that the Crown is bound. There is a contradiction there.

Mr. Lee: Is there a simple way for the administration to resolve this ambiguity? You want them to clear it up. How would they go about doing that?

Mr. Bernier: Perhaps by accepting that the committee's position is the correct one.

Mr. Lee: That they have bound themselves by passing regulations?

Mr. Bernier: The statute does bind the federal Crown. I do not have the whole file in front of me.

Mr. Lee: I realize that counsel has raised this because of the running-of-the-clock problem. He has not put in front of us all of the elements of the issue and I understand that. Perhaps we could deal with it as a running-of-the-clock issue rather than getting into the substance.

Mr. Bernier: There are two codes in the customs tariff, which are referred to at the bottom of the chairmen's letter of September 4. Paragraph (c) of Code 9964 and paragraph (g) of Code 9965 both refer to the federal Crown.

If the statute, the Customs Tariff, was never meant to bind the federal Crown, there would have been no need for Parliament to even mention the Crown. That issue has never been addressed. We also must remember that at one point External Affairs did agree with the committee. Then, when the issue was pursued with National Revenue, the position changed. That is another thing that was never satisfactorily explained, namely, why at some point the committee was correct in its view and then ceased to be correct.

Mr. Lee: The committee is looking for some consistency on the part of the government here?

Mr. Bernier: Yes, and also an explanation, if the Customs Tariff was never meant to bind the Crown, as to why the Crown would even be mentioned in that statute, and it is mentioned.

I think the answer, which is reflected in the enactment of the used motor vehicle exemption, is that the Crown is indeed bound by the Customs Tariff, at least by that particular schedule of it.

Mr. Wappel: I am not interested at this stage in the legal issue. I am interested in the fact that the minister's office has ignored this committee for two years.

The reason I was talking about the deputy minister earlier was that, in the correspondence of 1996, Mr. Bernier makes reference to correspondence from the then deputy minister. This issue was already at the deputy minister level. We then wrote to the minister and the minister herself wrote back to this committee — not some functionary. At least, the letter was signed by her. In that letter, she asked senior officials of Revenue Canada to review the matter.

As far as I can take it — assuming the good faith in the minister, as I do — as of September 17, senior officials of Revenue Canada were seized of this matter for a response to the committee, or at least some advice to the minister. Since the deputy minister had already been seized of the matter, I must conclude that senior officials includes the deputy minister. In the meantime, further follow-up letters, admittedly to the minister's office — now we have another minister — have gone unanswered.

It may very well be that Revenue Canada, when it gets around to answering us, will answer us in a way that satisfies us, and we will not have to worry about the legal issue. I am not saying that that will happen. However, now, we have no response. It is the same thing we go through at almost every meeting with one department or another. Unfortunately, it happens to be a minister this time.

I would suggest that we write and ask the minister — I do not know how you will want to phrase this — to appear here by a fixed date unless, prior to that time, we have a response to our letter. That would get him off the hook. He would not have to come here, he would just have to pick up the phone and ask whoever the senior officials are to get on the file and report to him. However, it would put the gun to the minister's head in the sense that, if nothing happened, the minister would have to appear. That would be my suggestion for committee members.

[Translation]

Mr. Lebel: He took the words right out of my mouth. I was about to propose that. There is no need for him to intervene.

[English]

The Joint Chairman (Mr. Grewal): Counsel, is there a problem with that?

Mr. Bernier: No.

The Joint Chairman (Mr. Grewal): That is a good suggestion.

Mr. Bailey: Should we allow the minister to fix a date or should we set one?

The Joint Chairman (Mr. Grewal): We should do that, I believe.

Mr. Bailey: Would it not be better if we had a motion to that effect?

Mr. Wappel: I suggest that we give the minister a date by which he would have to appear if there were not a response to the letter. I did not set a date. In view of previous discussions that we have had, a 30-day time period would be ample, particularly since they have had two years to deal with it.

The Joint Chairman (Mr. Grewal): We could agree, perhaps, that it be the first meeting after the Christmas break.

Mr. Wappel: That is more than 30 days. The Christmas break will be until February.

The Joint Chairman (Mr. Grewal): We have three more meetings, do we not?

Mr. Wappel: We have a meeting scheduled for the second week of December, is that correct? That is 30 days from now, more or less.

The Joint Chairman (Mr. Grewal): What about December 10?

Mr. Wappel: That is fine.

The Joint Chairman (Mr. Grewal): Is it agreed?

Mr. Bernier: I still need to know what the committee wishes to do in terms of future hearings with Mr. Wright on the other file.

Mr. Wappel: Mr. Bernier, could you refresh our memory as to the issues that arose last week?

Mr. Bernier: It was the ships stores regulations. An entirely new legal theory or justification was put forward last week, which is the first we heard of it. It is being looked at. Some argument could be made in support of it, although my gut feeling is that it does not fly.

That being said, there were other things in Mr. Lefebvre's reply that gives ground for further questioning. I notice, for example, that his whole argument is that the excise side is valid, even if the customs side is not. However, he never openly and clearly admitted that insofar as customs duties are concerned the 1988 ships stores amendment was illegal. The most he said was that there might be a problem on the customs side but the excise side was valid.

Another interesting matter is the fact that they did pay claims in relation to the period 1986-88, but never told the people involved that they were entitled to those moneys. They carefully refrained from saying that. Thus, only either very persistent people or those who had the good luck of filing a claim were paid.

I thought this was somewhat at odds with the concern expressed when, in relation to the committee's suggestion that we deem the 1988 amendment to have been validly made in 1986, he expressed great concern over the fact that we are dealing with rights and we cannot retroactively affect the rights of people. Yet, at the same time, the department is quite content to leave people in complete ignorance of their rights from 1986 to 1988, leaving them with the impression that they do not have any rights and, therefore, they should not be making claims. It seems to me that if you are really concerned about the rights of citizens, first, you do not administer the law in a manner other than that in which it is written. In 1986, people were entitled to that claim. Clearly, the department proceeded and told me, “No, you are not. This still only applies to the Great Lakes.” Even when claims were made and on further examination the department determined it had no choice but to pay those claims, it carefully refrained from letting anyone know about the fact that it would now accept those claims.

There is a certain hypocrisy in that approach given the statutory approach the committee had recommended; they are carrying on about there being rights involved here and we cannot affect the rights of people.

On these aspects, including some of the legal aspects of that new theory, there is certainly room for an appearance by Mr. Wright. At the same time, there is nothing in there that cannot be done by correspondence which, in the end, may be preferable, and we would keep an appearance as another alternative.

Mr. Wappel: In terms of an appearance by Mr. Wright, one of the things we wanted him to do was to read the minutes of the committee. I gather from our opening discussion this morning that, too, has not taken place because the minutes have not been printed or distributed yet. He has not had the opportunity, except anecdotally through his assistant deputy, to hear what we had to say.

Since we have now dealt with that issue, I suggest that we send the transcript to him and let him review it. At the same time, our counsel is still considering the issue of the Excise Tax Act and would have to come back to us on it. Perhaps it could be brought to another meeting for further recommendation, or a letter, or something like that, to deal with the issues that were raised and to remind us of some of the particulars. We could then decide whether or not we would do it by way of correspondence initially or whether we would call on Mr. Wright to appear before us. However, we should give him the opportunity to read the transcript.

The Joint Chairman (Mr. Grewal): We will give him the date of November 26. We will ask him to provide us that information in writing by that time. If he does not do so, then he will appear before the committee on December 10.

Mr. Bailey: Is it correct that the minutes will be forwarded to Mr. Wright?

The Joint Chairman (Mr. Grewal): That is right.

Mr. Bailey: Is it imperative? How will we suggest to him that we want his response to those minutes and a clarification from his point of view as to what we discussed? Is that what we expect in the letter?

The Joint Chairman (Mr. Grewal): We will be writing a letter to him.

I would ask Mr. Lee to chair the meeting now since I have to leave.

Mr. Derek Lee (Vice-Chairman) in the Chair.

SOR 92-506 — CROWN CORPORATION GRANTS REGULATIONS, AMENDMENT

(For text of documents, see appendix, p. 15A:1)

Mr. Bernier: In this instance, Mr. Chairman, the committee decided that unless corrective action was taken by the beginning of last month consideration would be given to adopting a report recommending disallowance. By letter dated September 30, the deputy minister informed the committee that the draft amendments to remove the ultra vires provision had been screened by the Regulations Section of the Department of Justice and would be pre-published on a priority basis.

To my knowledge, the draft regulations have yet to be pre-published, although I could not verify it in this Monday's Part I of The Gazette because we have not received it. Perhaps we could bring this matter back to the committee in December if the pre- publication has not taken place by then.

The Vice-Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

SOR/96-169 — NATIONAL PARKS HIGHWAY TRAFFIC REGULATIONS, AMENDMENT

(For text of documents, see appendix, p. 15B:1)

Ms Margaret Jodoin-Rasmussen (Counsel to the Committee): Mr. Chairman, the Governor in Council has exercised his authority by incorporating by reference the fines prescribed by the highway traffic laws of the province where a contravention is committed. Counsel suggested that the relevant provincial legislation be listed in the regulations, but the department tells us that it is too inconvenient for the department to follow counsel's suggestion. We recommend that another letter be sent to the department pointing out that administrative convenience is secondary to ensuring that the laws are precise and available to the citizen.

Mr. Wappel: This is one of the very few “Reply Unsatisfactory” issues where I have found the reply satisfactory. I see nothing wrong with the response to Mr. Bernhardt's letter. In fact, Mr. Bernhardt initially did not even pick up on the fact that it could be incorporation by reference, or if he did, there was some misunderstanding. That point was agreed. I think the two points set out there are perfectly acceptable. I view it as “Reply Satisfactory”.

The Vice-Chairman (Mr. Lee): Would counsel care to address that? I also had that difficulty where there was an acknowledgement from our counsel, Mr. Bernhardt, that incorporation by reference was an acceptable technique. Now we are focusing on some element of incorporation by reference that appears to be going the wrong way.

Ms Jodoin-Rasmussen: Both members are quite right that incorporation by reference is acceptable. From our perception, the problem is that the accessibility of the penalty is somewhat questionable to the citizen who is charged. Not knowing under which piece of legislation nor which provision one might be fined would be disconcerting. It is more a drafting issue than a legal issue.

Mr. Bernhardt was not disputing whether the incorporation was illegal or legal. He was agreeing with the department. From that position, it was taken that the reply was unsatisfactory.

The Vice-Chairman (Mr. Lee): Is the problem that the incorporation by reference is not specific enough?

Ms Jodoin-Rasmussen: Exactly.

The Vice-Chairman (Mr. Lee): It simply says that whatever speeding contraventions may exist in a province, those will be the contraventions and the fines attached thereto.

Ms Jodoin-Rasmussen: When one considers that their concern is administrative work, that is the mandate of the department. We are not asking them to list the sections. We are merely asking them to identify by name those particular acts so citizens — anyone in this room — could learn about the consequences of a particular offence.

Mr. Wappel: The regulation says:

(a) the fine prescribed by the highway traffic laws of the province in which the contravention is committed... Let us take Ontario as an example. The Highway Traffic Act is the highway traffic law of the Province of Ontario.

As citizens, unless we get a speeding ticket, we demand that the section be put in. However, we do not need to be told that we are contravening section 58 (4)(i)(3). As citizens, we know that it is an offence to speed under the Highway Traffic Act.

Is there a suggestion that there might be more than one highway traffic law in a province? For example, should it be stated that the fine prescribed by the Highway Traffic Act, RSO 1990, chapter so and so is such and such? Should all the statutes be listed for the provinces and territories? Should it be stated generically like that.

Mr. Bernier: Yes.

Mr. Wappel: Is that what is suggested?

Mr. Bernier: Yes.

Mr. Wappel: I gather they do not want to go to a particular section, which might then be amended by a province. They would then need full-time staff checking out each law.

Mr. Bernier: That was not the suggestion, which is why we listed it under “Reply Unsatisfactory”. The suggestion was to identify the title of the act so that if I am charged in a national park and ask about the maximum fine, I can go to the regulation and at least have further direction.

Mr. Wappel: With great respect, I would say that this file was premature in being brought to this committee. A further letter should have been sent in response to this saying, “All we want you to do is name the highway traffic acts of the respective provinces.” Presumably they would not come back to us. If they said “no”, then it should be listed under “Reply Unsatisfactory”. I do not want to split hairs here.

Mr. DeVillers: If someone is caught speeding in a provincial park, is that enforceable under the provincial court system of the particular province? In that case, would the provincial act apply in the case of Ontario where the set fine provision would be made and the person accused would get a ticket saying that the fine is $400 or $40? If the concern is a question of notice to the accused with respect to the consequences, they have a ticket in their hand specifying the amount of the fine.

Mr. Bernier: There is no doubt that an amount will be set. The issue here is about giving information. This is what we are talking about. If someone is charged with speeding in Banff National Bark, for example, they want to know the maximum fine. We are saying that instead of referring vaguely to whatever highway traffic laws there are in whatever province the park is located in, what is wrong with stating the Ontario Highway Traffic Act and giving the reference to the Revised Statutes of Ontario. If the person is in Ontario, they could go to the public library and request a copy of the Highway Traffic Act.

This is a matter of information. For lawyers, your reference to highway traffic acts applicable in the province will not be a problem. We are saying that it is not that much of a problem to specify the titles of the 10 statutes, which does not seem to be a problem or should not be a problem. Why not do it? You are then providing additional information and more precision.

The Vice-Chairman (Mr. Lee): We have the issue of the precision of the articulation of the penalty from the point of view of the citizen. I think Mr. DeVillers is suggesting that from the point of view of process for the citizen, the vagueness of reference to the penalty might make the process vulnerable. In other words, the citizen may wonder how they can figure out the penalty maximums because there is no explicit reference. It is too vague.

Mr. DeVillers: My point is that if the provisions of the provincial act apply, then they are set fines for speeding under the Highway Traffic Act and under the provincial act. The accused would have a ticket indicating the amount of the fine. That is about as precise as one can get.

If in the course of preparing a defence they want to examine the relevant provincial statutes, then I agree that it would be more helpful to have those identified. However, at that point it is more at the legal level than at the citizen level. Certainly any lawyer worth their salt would be able to find those statutes.

Senator Moore: Laws are not written for lawyers; they are supposed to be written for the citizens.

The Vice-Chairman (Mr. Lee): I was thinking of the classic lawyer as advocate on behalf of the citizen.

Mr. Bailey: As a point of interest, I do not think we have any national parks which cross provincial boundaries. Are they totally within one boundary? That would present a difficulty. If there are any, we would have two sets of highway traffic acts. That is something to think about.

After listening to the discussion, I am wondering why it is necessary at all. We have HTAs wherever the park falls within the jurisdiction. Why is the park involved with traffic regulations outside of those urban centres when, just as in a city, they can apply their own by-laws? Why do we have both systems going here at the same time?

Mr. Bernier: These are federal lands.

Mr. Bailey: We have all kinds of federal land where the provincial highway traffic acts apply. Why do the federal parks need a higher level? When a highway crosses over Crown land in my province, the highway traffic act applies.

Mr. Bernier: If the federal government chose not to regulate this particular aspect of life in the parks, then I assume provincial laws would apply by default. The result would be the same. In this case, it probably allows a few civil servants to have a job.

The Vice-Chairman (Mr. Lee): I see a consensus. We will ask for a greater degree of precision in the incorporation. Is it agreed?

Hon. Members: Agreed.

SOR/92-444 — YUKON TERRITORY FISHERY REGULATIONS, AMENDMENT

Ms Jodoin-Rasmussen: This falls under “Progress”. The progress on the promised regulations has been delayed by the department's repeated efforts to enact a new fisheries act. Presently we have assurance that the new amendments will be made irrespective of there being a new fisheries act.

The Vice-Chairman (Mr. Lee): Could we first put on the record whether there is a fisheries bill currently before the House of Commons?

Ms Jodoin-Rasmussen: No, there is not.

The Vice-Chairman (Mr. Lee): The bill that was before the House earlier has not been re-introduced?

Ms Jodoin-Rasmussen: Apparently not.

The Vice-Chairman (Mr. Lee): Now we do have a problem because amendments which we believe are necessary are apparently not being processed while the department waits for a bill; yet there is no bill moving forward. I gather counsel is recommending that we encourage the department now to proceed to make the amendments to the regulations, rather than waiting. Is that correct?

Ms Jodoin-Rasmussen: In the letter of March 16, the Director of Legislative and Regulatory Affairs states that the amendments proposed by this committee will be made as the regulations come up for amendment. Your point, Mr. Chairman, is well made.

The Vice-Chairman (Mr. Lee): What shall we do here, counsel?

Mr. Bernier: We should ask the department to make the amendments in the normal way and forget about tying the fate of the amendments to some legislative initiative which may or may not come up for a third time. The proposed fisheries act has been proposed twice and has not proceeded. Obviously, there is no great parliamentary desire to legislate in this area.

The Vice-Chairman (Mr. Lee): Our file is only three years old. Let us forge on then. That is a good suggestion.

[Translation]

Mr. Lebel: There is no need to panic, counsel. This issue has been dragging on for three or four years. Some outstanding issues have taken as long as fifteen or twenty years to resolve. Therefore, there is no need to get worked up about this!

[English]

SOR/92-738 — RAILWAY INTERSWITCHING REGULATIONS, AMENDMENT

Mr. Bernier: Section 8 of these regulations is ultra vires the enabling statue. Revocation was promised in 1996. Yesterday I called Mr. Ashley and I was informed that the promised amendment package is now awaiting the signature of the chairman of the agency before being sent on to the minister for his signature, after which we will have pre-publication of the promised amendments.

It was expected that this signing process would take place within the week. I guess progress is being made.

The Vice-Chairman (Mr. Lee): This one is sort of slow but steady. That is good progress. Is it agreed?

Hon. Members: Agreed.

SOR/93-480 — ROYAL CANADIAN MOUNTED POLICE FORENSIC LABORATORY SERVICES FEES REGULATIONS

(For text of documents, see appendix p. 15C:1)

The Vice-Chairman (Mr. Lee): This falls under the rubric “Reply Satisfactory.”

Ms Jodoin-Rasmussen: The RCMP Special Advisory Section has confirmed that the rates applied under section 2(b) of the referenced instrument are fixed rates that were in effect at the time the regulations were adopted. Consequently, we recommend that the file be closed.

The Vice-Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

SOR/94-788 — ORDER VARYING ORDER NO. R-38000 and ORDER NO. R-39638 OF THE NATIONAL TRANSPORTATION AGENCY

(For text of documents, see appendix p. 15D:1)

Ms Jodoin-Rasmussen: The agency has informed counsel that the order about which we were concerned is no longer of any force or effect. We again recommend closing that file.

The Vice-Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

The Vice-Chairman (Mr. Lee): We turn to Reply Satisfactory.

SOR/93-390 — CANADIAN WHEAT BOARD REGULATIONS, AMENDMENT

(For text of documents, see appendix p. 15E:1)

Ms Jodoin-Rasmussen: The Canadian Wheat Board agrees with the committee's position regarding the problematic section but, unfortunately, does not provide a firm commitment to amend it. We are recommending that there be further correspondence requesting such a commitment.

The Vice-Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

SOR/94-133 — CABLE TELEVISION REGULATIONS, 1986, AMENDMENT

(For text of documents, see appendix p. 15F:1)

[Translation]

Mr. Bernier: Mr. Chairman, there is a minor discrepancy between the English and French versions of the regulations, has pointed out by counsel. The board has recognized that there is an error. It had suggested that the correction not be made, given that the regulations were scheduled to be replaced shortly, which has in fact occurred. Therefore, we can consider this matter closed.

[English]

The Vice-Chairman (Mr. Lee): That is more like satisfactory.

SOR/96-380 — STE-SCHOLASTIQUE LEASING REGULATIONS, REPEAL; TORONTO HARBOURFRONT LEASING REGULATIONS, REPEAL

(For text of documents, see appendix p. 15G:1)

Mr. Bernier: In this case, the Department of Public Works revoked regulations that had already been revoked about 12 years earlier. Mr. Quail's letter gives an explanation of this, shall we say, regulatory over-zealousness, and states that even if the regulations continued to be relied upon after their revocation, the consequences would be of no importance at this time. The same regulation has been killed twice.

Mr. Bailey: It is completely redundant because of the new ports act.

Mr. Bernier: In answer to Mr. Bailey, the repeal of the Toronto Harbourfront regulations was correct. Those were in force in 1996 when they were repealed. The reference here is to the Ste-Scholastique Leasing Regulations. Those had been repealed 12 years earlier. They were just repealed again a second time, by error.

SOR/97-457 — COPYRIGHT REGULATIONS

(For text of documents, see appendix, p. 15H:1)

Mr. Bernier: Under Part Action Promised, Mr. Chairman, action is promised on all points, except the second paragraph of point one of Mr. Bernhardt's letter of April 22, 1998. Here the explanation is that a fax transmission can only be made to the Copyright Office itself and never to an establishment designated under section 2(2)(b) for the receipt of correspondence. The required corrections otherwise will be made when the regulations are next amended.

I would suggest, perhaps, that the department be informed that that is satisfactory, provided the regulations are next amended within a reasonable time.

The Vice-Chairman (Mr. Lee): That is a good suggestion. Is it agreed?

Hon. Members: Agreed.

The Vice-Chairman (Mr. Lee): Counsel, now that this issue has been raised, we have had a number of occasions in the past where amendments, minor amendments, promised for the next set of amendments have been omitted or forgotten by the department. Have we ever found a mechanism or a solution to help the department remember? It is quite frustrating to have an amendment go through without a previously promised amendment included, thereby causing us to keep our file open.

Mr. Bernier: I cannot see it. As it is, in a case like this, for example, if the amendments are of a drafting nature, we will consider two years to be a reasonable time to wait for the next amendment. Nevertheless, periodically, every five to six months, we will write and ask, Do you expect the regulations to be next amended any time soon? There is that constant reminder that we are there.

However, when they go ahead and do not include the amendment, you must wonder why. Certainly, they should be aware. I cannot think of anything else we could do short of actually doing their work for them and drafting the amendments ourselves.

[Translation]

Mr. Lebel: Yes, I am speaking to the senior counsel, Mr. Bernier, since we have nothing to remind us that the deadlines have passed. I recall several years ago dealing with, among other things, regulations respecting custom duties on the Akwesasne reserve. The proposed amendments were relatively minor. I believe they had something to do with the numbering. However, the minister at the time did not want to touch this. Has there been any progress on this matter? Has everything been resolved to the committee's satisfaction? Did the committee bow to the diktats of the minister who was reluctant to discuss these regulations?

Mr. Bernier: I would not necessarily use the same words as Mr. Lebel, but I can tell the committee that as far as it is concerned, the matter is closed.

Mr. Lebel: Has the problem been resolved?

Mr. Bernier: Since the changes were minor, the committee members felt that this did not pose a problem.

Mr. Lebel: Therefore, in future, since minor changes are being suggested, it would be better for us to dig in our heels and adopt the same position, that is relegate this matter to the sidelines in order to speed up our work.

Mr. Bernier: This was something the committee decided to do.

Mr. Lebel: I simply wanted to point that out to the committee, because it could happen again.

[English]

SOR/91-519 — NATIONAL BATTLEFIELDS PARK BY-LAW

(For text of documents, see appendix, p. 15I:1)

Mr. Bernier: Objections to previous national battlefields bylaws were pursued by the committee over a period of 16 years. Its objections were supposed to be addressed in this bylaw. In consequence, it was disappointing to find that this bylaw continued to reflect a questionable approach to the regulation of activities in the park.

I believe some members will recall that when the bylaw was last before the committee, it gave rise to quite a discussion, in particular on the question of conformity to the Charter of Rights and Freedoms and some of its provisions. That is only one of the problems with this bylaw.

The Department of Canadian Heritage has replied that their legal services, in consultation with various specialists from the Department of Justice, has carefully examined the concern raised in relation to the current bylaw and Aessentially agree with those concerns and recognize that substantive amendments will be required. The department was to seek direction from their minister as to what to do.

I would suggest at this time that a letter go out asking whether that direction was provided and what they intend to do.

Mr. Wappel: I wish to note that the words “essentially agree” are the exact words that Ruth Hubbard used in her letter to the committee that we discussed at length last week, and notwithstanding that Ms Hubbard, the then assistant deputy minister, said that the department “essentially agrees”, we then found ourselves examining a witness who explained to us why he did not agree. I red flag those words as cautionary words, not words in which we should take solace.

I suggest that whatever letter we write be monitored carefully, because I have no faith in those two words.

Mr. Bernier: It is very amusing that Mr. Wappel would make that point because I almost drew this to the attention of the committee myself. I did not because I felt it might lead us to other pastures. Essential agreement seems to be something other than just agreeing.

The Vice-Chairman (Mr. Lee): We also have an arguable essential impairment of the Charter here. How long would this committee be prepared to wait in having this Charter issue resolved by the department? I would not think that we would want to wait indefinitely.

Do we have any kind of clock running on this, counsel? I remember the time committee members put into discussing this about one and one-half years ago. There was a matter of substance there involving Charter rights.

[Translation]

Mr. Lebel: I wanted simply to point out to the current Chair that he was far less attentive in the past when it came to delays, particularly in the case of sections 56 and 57 of the RCMP regulations and the rights of officers. If we operate with two sets of rules, we will run into a brick wall. I am not trying to be mean. I would remind the Chair that in the past, for many reasons that I am unaware of, fundamental rights were considered to be less important, particularly in the case that I just mentioned. Now, all of a sudden, fundamental rights are of prime importance. In future, our committee should establish objectives and rules of conduct to ensure that our actions are always consistent with past positions. Stare decisis must prevail. Otherwise, we will be going off in all directions and that will not work. Even a Jesuit, who is supposed to be all-knowing, would be confused.

[English]

The Vice-Chairman (Mr. Lee): I do not have a lot of common ground. You made reference to my previous positions on the committee, Mr. Lebel. I differ with you on some of what you said but I will not take the time of this committee to go into it other than to note that the committee did report to the House on the Royal Canadian Mounted Police Regulations. We have not yet reported on this matter.

I asked counsel if we had any kind of clock running on this. The clock would be related to how the committee originally dealt with this matter at the previous meeting.

Mr. Bernier: We had to put this initial reply first, expressing agreement with the committee. It now depends on what the committee wants to do. If the committee wants to put a clock on it, then we will do that.

Mr. Wappel: That is why I sought the floor specifically. I note that the commitment here is not to bring forward new regulations but rather to seek direction from the minister. That commitment was given in July 1998.

I should like to suggest that we resurrect the minutes of the meeting at which we dealt with this issue at great length and send them to Madam Senécal with a request that they be brought specifically to the attention of the minister. We can also ask if that consultation with the minister has taken place. If it has, what were the results of it; if it has not, can we get a firm time line from her as to when this matter will be dealt with by the minister. Something to that effect should be done, and the response would dictate what the committee would do next.

The Vice-Chairman (Mr. Lee): The letter from Mrs. Senécal states that in order to do this, the department will need to seek direction from the minister. There is no commitment to seek direction from the minister; it is only a prescription of what they might have to do. In my experience, rarely will a department go to their minister to seek direction if they do not have a solution in mind already.

We should write a letter to tell them that in the view of the committee their regulation is at risk and to bring it back here. If the department does not have a solution, I will hazard a guess that the minister does not.

Mr. Wappel: I would still like them to have a copy of the transcript of our meeting on this issue because we canvassed the entire matter at that time.

The Vice-Chairman (Mr. Lee): That is a good idea. Is Mr. Wappel's suggestion accepted?

Hon. Members: Agreed.

The Vice-Chairman (Mr. Lee): Notwithstanding the technicalities, counsel should indicate, when you write back to them, that there is some risk due to the clash with the Charter. That is to say, it is not just another file from the point of view of the chairmen.

Mr. Bernier: I believe, Mr. Chairman, Mr. Bernhardt's letter made it clear that there was some importance attached to it.

Senator Moore: Yes, but reinforce that in your communications.

The Vice-Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

The Vice-Chairman (Mr. Lee): Next, under the rubric “action promised”, are there any comments from counsel on those files which are supposedly in reasonably good shape?

Mr. Bernier: Mr. Chairman, some 13 amendments in total will be made in order to correct matters raised by counsel.

I should like to draw member's attention to two files in particular.

SOR/92-580 — COMPANIES' CREDITORS ARRANGEMENT RULE.

(For text of documents, see appendix p. 15J:1)

In this case, the department has reconsidered its earlier position and now accepts that this rule, which requires the furnishing of information to government officials, is illegal and will recommend the repeal of the rule.

SOR/94-45 — ATLANTIC FISHERY REGULATIONS, 1985, AMENDMENT

(For text of documents, see appendix p. 15K:1)

SOR/94-370 — ONTARIO FISHERY REGULATIONS, 1987, AMENDMENT.

(For text of documents, see appendix p. 15L:1)

SOR/95-410 — SCHEDULES I AND III TO THE ACT, AMENDMENT

(For text of documents, see appendix p. 15M:1)

SOR/95-571 — ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION REGULATIONS, AMENDMENT

(For text of documents, see appendix p. 15N:1)

SOR/97-103 — REGULATIONS AMENDING THE CROWN CORPORATION GRANTS REGULATIONS

(For text of documents, see appendix p. 150:1)

Mr. Bernier: Section 3(3) of these regulations purported to retroactively validate the actions of some Crown corporations who froze their 1993 grants in lieu of taxes which they make to municipalities in which they are located, freezing those grants to 1992 levels. That freezing of 1993 grants to 1992 levels was illegal under the relevant statutory provisions and was apparently an action taken solely on the basis of an economic statement tabled by the Minister of Finance in the House of Commons. The executive then sought to cover this illegality by adopting the retroactive regulation which is illegal.

According to the deputy minister, section 3(3) will be repealed. A review will be made to determine which Crown corporations acted in contravention of the Municipal Grants Act. Consultations will then be held with the Department of Justice with respect to the options available to deal with this situation. I suggest this may be a good time to follow up on this and, second, that the only possible option to deal with the situation is a statute by the Parliament of Canada validating what took place. If we have some smart municipalities out there, they will quickly file and ask to collect their money.

The Vice-Chairman (Mr. Lee): This is somewhat reminiscent of the Excise Act/ships stores regulations where the department gets into a box and does not correct it in the most effective manner thereby creating another problem.

Mr. Bernier: In this case the word of a minister is taken by civil servants to be the equivalent of the law and in so doing overrides the law. The minister makes an economic statement that Crown corporations should freeze their grants. Everyone goes ahead without anyone asking if Parliament authorized this.

In the ships stores regulations, we have the same situation. We have a law that allows certain things, but then we have the deputy minister or the public service saying that this is a mistake and to ignore it. In effect, department policy is placed above the law. In this case, a statement of economic policy by the minister is being preferred to the law.

The Vice-Chairman (Mr. Lee): There is a great risk of inconsistency on the part of the Crown corporations because some may wish to follow the law and some way wish to follow the minister and others may be stuck in the middle.

Mr. Bernier: I suspect that it would be found that this did happen a few years back because the levels were reinstated in 1994. In that case it was frozen for one year. I expect that most, if not all, Crown corporations, with some input from Treasury Board, probably froze their grants to 1992 levels.

The Vice-Chairman (Mr. Lee): Would this situation give rise to a contingent liability on the part of the Crown corporation to a municipality? If it did, would an auditor want to show this on the books of the Crown corporation?

Mr. Bailey: That is exactly the area that I wanted to explore with counsel. This is a national thing. This covers every province. Given the retroactivity aspect, taking the word of the minister, is the only way out by statute?

Mr. Bernier: There are two ways. The Crown corporations involved can pay to municipalities what should have been paid, with interest. I would assume this would not be a palatable option. The only other option is a statute of Parliament. Only Parliament can indemnify Crown corporations for breaches of the law.

Mr. Bailey: Once this gets going, there will be 10,000 or 20,000 of these issues at stake.

Mr. Bernier: There are a large number of Crown corporations and they own considerable property across the country.

The Vice-Chairman (Mr. Lee): This should be moved up the ladder. I do not know what rubric we put it under, because we do have progress.

Mr. Bernier: First, the immediate problem is that section 3(3), which sought to validate this practice by regulation, will be repealed. In effect, that statute has not authorized the making of a regulation for that purpose. The second aspect was that consultations with the Department of Justice would be undertaken as to how to correct the situation.

The Vice-Chairman (Mr. Lee): Our job as a committee is to look to the revocation of the ultra vires regulation in terms of taxation policy or grants to municipalities. We will leave that with the minister. That is not our job. We will help wherever we can. Is that fair, counsel?

Mr. Bernier: Yes.

The Vice-Chairman (Mr. Lee): Is it agreed?

Hon. Members: Agreed.

SOR/97-193 — NATIONAL HISTORIC PARKS ORDER, AMENDMENT

(For text of documents, see appendix p. 15P:1)

The Vice-Chairman (Mr. Lee): Next, under “action taken”. Counsel usually indicates all the work that has been done here.

SOR/94-413 — SASKATCHEWAN FISHERY REGULATIONS, AMENDMENT

(For text of documents, see appendix p. 15Q:1)

SOR/96-324 — RADIO REGULATIONS, 1986, AMENDMENT

(For text of documents, see appendix p. 15R:1)

SOR/96-325 — TELEVISION BROADCASTING REGULATIONS, 1987, AMENDMENT

(For text of documents, see appendix p. 15S:1)

SOR/96-326 — CABLE TELEVISION REGULATIONS, 1986, AMENDMENT

(For text of documents, see appendix p. 15T:1)

SOR/96-327 — PAY TELEVISION REGULATIONS, 1990, AMENDMENT

(For text of documents, see appendix p. 15U:1)

SOR/96-328 — SPECIALTY SERVICES REGULATIONS, 1990, AMENDMENT

(For text of documents, see appendix p. 15V:1)

SOR/97-100 — REGULATIONS AMENDING THE RADIO REGULATIONS, 1986, THE TELEVISION BROADCASTING REGULATIONS, 1987 AND THE SPECIALTY SERVICES REGULATIONS, 1990

(For text of documents, see appendix p. 15W:1)

SOR/97-437 — RULES AMENDING THE RCMP EXTERNAL REVIEW COMMITTEE RULES OF PRACTICE AND PROCEDURE

(For text of documents, see appendix p. 15X:1)

SOR/98-260 — REGULATIONS REPEALING THE ROYAL CANADIAN MOUNTED POLICE, CANADIAN POLICE COLLEGE FEES REGULATIONS

SOR/93-483 — ROYAL CANADIAN MOUNTED POLICE, CANADIAN POLICE COLLEGE FEES REGULATIONS

(For text of documents, see appendix p. 15Y:1)

SOR/98-389 — REGULATIONS AMENDING THE NATIONAL CAPITAL COMMISSION TRAFFIC AND PROPERTY REGULATIONS

(For text of documents, see appendix p. 15Z:1)

Mr. Bernier: This is the work of the committee. Under this rubric we have 29 amendments that have been made as a result of this committee's mandate.

The Vice-Chairman (Mr. Lee): Is it agreed.

Hon. Members: Agreed.

The Vice-Chairman (Mr. Lee): Next is “statutory instruments without comment”.

There are about 30 of them. That is well done. Is it agreed?

Hon. Members: Agreed.

The Vice-Chairman (Mr. Lee): The next meeting is November 26.

The committee adjourned.