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
[Recorded by Electronic Apparatus]
Thursday, March 4, 1999
The Standing Joint Committee of the Senate and the House of Commons
for the Scrutiny of Regulations met this day at 8:30 a.m. for the
review of statutory instruments.
Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint
Chairmen) in the Chair.
SOR/99-26 — REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE
The Joint Chairman (Mr. Gurman Grewal (Surrey Central, Ref.)): Good
morning. I call the meeting to order.
I will ask Mr. Peter Bernhardt to speak to this item.
Mr. Peter Bernhardt (Counsel to the Committee): These amendments are
intended to address the concerns raised by the joint committee in its
sixty-first report, and to respond to the decision of the Quebec
Superior Court striking down the previous section 57 of the
regulations as a violation of the Canadian Charter of Rights and
Members have been provided with copies of a fairly detailed commentary
on the amendments. Part I of the commentary deals with the amendments
Part II discusses the consultation process that preceded the making of
Part III revisits the parallel issue of the desirability of ultimately
including provisions restricting political activities in the RCMP Act
itself rather than the regulations.
I am prepared to go through the document highlighting some of the
issues, if members wish. If members are in agreement, I propose to
deal briefly with Parts II and III of the commentary before moving on
to the individual provisions of the amendments themselves.
Part II discusses deficiencies in the consultation process that led up
to the amendments. Although the regulatoryimpactanalysis statement
makes much of the consultations with the division staff relations
representatives, the representatives themselves have a somewhat
different view of things. They maintain that whatever consultations
did take place took place in the early stages of the process. They
involve proposals that long ago became outdated. There was no
consultation with them involving the final draft of the proposed
amendments prior to pre-publication.
It is also disputed that the representatives were regularly informed
of progress through the internal affairs committee, which is another
statement made in the RIAS.
Members are also reminded that the committee itself has previously
expressed to the Solicitor General its regret that his advisors did
not avail themselves of the committee's offer to discuss their
proposals with committee counsel prior to finalizing the new draft
Of course, the pre-publication of the regulations on October 31 did
provide an opportunity to comment on the final draft. In fact, as
included in Part I, a number of submissions were received. At the same
time, however, given that there was a court-imposed deadline of
January 1, 1999 for enacting new provisions, it would have been
virtually impossible to give serious consideration to any objection
raised as a result of the pre-publication of the draft amendments in
the 16 days between the end of the notice and comment period and the
date of the actual making of the amendments, which was December 16.
It is also telling that the final version of the amendments was
approved by the Department of Justice on December 3, only two days
after the end of the notice and comment period. Clearly, there was a
perceived need to move quickly so as to have amendments in place by
January 1. At the same time, the consultation process would appear to
have been somewhat lacking.
This does not affect the question of the validity, legality and
constitutionality of the amendments. Nevertheless, it was considered
to be an issue worth identifying for members.
That is the first issue that we have identified. As I say, there is
not something specific the committee can act upon. Perhaps in any
future correspondence it might be something that it wishes to draw to
the attention of the minister. I do not know.
Mr. Lee: Mr. Chairman, in previous years, the committee has had the
opportunity to look at the consultation process as a part of the
regulatory process. I am recalling the committee's response in 1993-94
on the matter of the drug patent regulations. The committee looked
fairly closely at the consultation process. I think most committee
members believed that the consultation process was
ineffective/non-existent in that instance. I believe the committee
reported but did not take further action at that time. We reported to
the house our collective view that the consultation process at that
time was not sufficient.
In this case, we could probably come to a consensus that the
consultation process was not what it should have been, given the
number of interests among officers of the force and, perhaps, given
that Parliament, through this committee, had involved itself in the
On the assumption that we may have other more substantive issues
involving the regulations themselves, I suggest that any action that
we do take as a result of today's meeting include a reference to a
consensus here that would make reference to these weaknesses in
Ms. Jennings: I agree with Mr. Lee's suggestion. When I consider the
kind of consultations that were held, I find this deplorable. In
actual fact, there were no consultations. People were advised at the
very last minute. The Solicitor General and his bureaucrats may have
had to work under the gun of a Superior Court ruling, but that is
their problem. Two years before this ruling was handed down, the
committee had identified a potential problem and this matter was
allowed to drag on. In my view, there is no excuse for failing to deal
with this problem in an expeditious manner. I fully agree that our
report should reflect the fact that the consultation process was
inadequate or nonexistent and that we expect more of our government.
Mr. MacKay: I had a specific question arising out of the brief. On
page 3, it states:
The most senior members of the Force would be prohibited from
participating in the activities in question entirely.
I find that rather vague. Are we talking about a certain rank here?
Are we talking about the commissioner down to a particular level?
Mr. Bernhardt: In doing the note, I was simply paraphrasing the effect
by referring to the most senior members. Section 58 talks about the
commissioner, a member at the deputy commissioner or assistant
commissioner rank, or a commanding officer or director. Those are the
people who come under that rubric of the most senior members of the
force. As paragraphs (a) to (e) of section 58 go on to state, those
things that other members can do if they take leave or if they get
permission, these senior members are simply prohibited from doing
outright, presumably on the assumption that the most senior members of
the force are going to be held to a higher standard than the rank and
Mr. MacKay: I still think it is somewhat vague. If we are saying a
commanding officer or director, that literally denotes anyone with any
authority over other officers.
Mr. Bernhardt: I do not have the entire regulations before me. These
are a finite number of provisions from the RCMP regulations, and I
believe at least some of those terms are defined. If one went to
section 2 of the regulations, you would see a definition of who is a
commanding officer. I can certainly verify that, but that is my
recollection simply off the top of my head. I do not have those
provisions with me this morning, but we can certainly verify that.
Mr. MacKay: If you would, please.
Mr. Bailey: To continue with my colleague's point, over the years, a
commanding officer would traditionally also mean the corporal in
charge of a detachment, and we have hundreds of those, and
traditionally they have not been involved. However, I go back to page
3 of the amendments. We have in the RCMP today many more people who
are not police per se, and I noticed, at the top of the second
paragraph, you have members who are not peace officers, and that
number is growing. The paragraph goes on to say that, while they may
become involved, you do not encourage it. I am wondering if, by
putting that there, you are putting some kind of a fettering device on
them not to become involved.
Mr. Bernhardt: I do not want to get too far ahead of myself because
those issues will come out when we turn to Part I of the commentary
and the provisions themselves. It is certainly the case now that the
regulations make that distinction. There are members who are peace
officers, and there are members who are not peace officers. There are
restrictions on both. As a general statement, again as we will see, it
looks as though there is at least one exception, that the restrictions
on those members who are not peace officers are somewhat less.
Generally they can do things, if they get permission, that members who
are peace officers may have to take a leave of absence to do. That is
the basis of the distinction.
It has been indicated to us that you are right, that increasingly
there are a large number of non-peace officer members, some of whom
are now occupying fairly senior positions. I suppose that, at the end
of the day, a question that may be asked is whether that distinction
is a legitimate one. As I say, that is something that perhaps we can
come back to when the committee turns to specific provisions in the
discussion in Part I.
Mr. Bailey: Thank you.
Ms. Venne: I thought we were discussing part 2, but in fact we were
dealing with part one. Are we in fact continuing to look at part 2,
because my comments pertain to part 1.
Mr. Bernhardt: With the committee's indulgence, perhaps I could turn
to Part III next, which is at page 41.
In its report, the committee recommended that significant limits or
restrictions on individual rights and freedoms ought to be established
by an act of Parliament. It also recommended specifically that the
government present to the houses amendments to the Royal Canadian
Mounted Police Act that would define the limits of permissible
political participation by members of the force in a manner consistent
with the rights and freedoms guaranteed to all citizens by the
The argument here is that, in a situation where it is proposed to
deprive citizens of fundamental rights or to curtail the exercise of
those rights in any significant way, the legislation that does so
should be adopted by the democratically elected representatives of the
citizens whose rights are at stake, and should be adopted in an open
forum after proper debate. These democratic safeguards that the
parliamentary process carries with it for the passage of legislation
simply do not exist in the making of regulations.
The justification given for not amending the act itself at this time,
of course, was the need to have amendments in place by January 1, the
date on which the judgment of the Quebec Superior Court was to take
effect. In his letter of December 24, however, the Solicitor General
did advise that he was prepared to assess the appropriateness of
amending the act to address the issue of the political rights of
members. Thus far, however, the committee has been unable to attain a
firmer undertaking to amend the act in this fashion.
The issue that the committee has before it this morning, then, is how
it wishes to follow up on its recommendation.
Mr. François-R. Bernier (General Counsel to the Committee): Mr.
Chairman, if I may, before members address this, could I get a
direction from the committee on Part II, that there is a consensus
that the issue of consultation is one that will be raised, that the
whole committee agrees that the consultations that took place were
The Joint Chairman (Mr. Grewal): Any contrary comments?
Apparently there are none.
Mr. Bernier: All right.
Mr. Bernhardt: That brings us back to the question of the amendments
to the act itself. We have a statement from the Solicitor General that
he is willing to considerate the appropriateness of doing this. The
committee has recommended in its report that this is something that
should be done. I suppose in that sense the ball is back in the
committee's court as to how it wishes to pursue the issue.
Mr. Lee: I have a sense that, no matter how the RCMP divide up the
subject matter, if they try to squeeze all of these items into the
statute itself inevitably there will be some loose ends that would
have to be addressed by regulation. I hope all committee members would
agree with the principle that restrictions on constitutional freedoms
should be set out by statute and approved by Parliament. However, just
what proportion of these rules should be in the statute and should be
in the regulation is a matter for the people who administer them. I
think we should continue with our exhortation that the bulk of these
impairments of the constitutional freedoms show up or be recorded in
the statute itself, but I think we have to recognize that some
elements of them will always be in the regulations, some refinements
to the rules. Just where the dividing line is, I do not personally
Mr. Bernier: I would suggest, Mr. Chairman, that the answer to that is
that Parliament will determine where the line is. If you put a statute
before Parliament that includes provisions providing that regulations
may be made to deal with the loose ends, as you called them,
Parliament, in voting on that statute, will either approve that
division between statute and regulation or it will amend the statute.
However, to do that, you must put a statute before Parliament.
Mr. Lee: So someone has to take leadership is what you are saying.
The Joint Chair (Senator Hervieux-Payette (Bedford, Lib.)): Our
dilemma is perhaps
due to the juxtaposition of common law and civil law in Canada. This
has led us to apply the principles of civil law to common law — since
the RCMP Act is more in the realm of common law — to include much more
specific legislative provisions and to use regulations only to
identify procedural requirements, not to define rights.
That is why it has taken so long to examine the regulations. If these
rights are not defined in the law, how than can we restrict them? It
may be impossible to resolve this dilemma, other than getting back to
the basics, that is defining the rights that this group of individual
enjoys and then deciding how these requirements should apply to this
From the moment the legislation requires us to restrict rights by way
of regulations, as lawmakers, I think we may be going too far. If we
are to bring in restrictive measures and not agree on the process,
then we are going back to the legislative rather than to the
regulatory model. I do not know your views on the subject, but since
our attention has been focused on this issue for several months, I
have given some thought to ways of resolving this impasse. Perhaps we
could have a substantive discussion. The fundamentals of this issue
should be dealt with in the legislation.
Mr. MacKay: I think you are right. Obviously, there must be parity
between the act and the regulation. However, we have gone around and
around this issue. The obvious question is: Where do we go from here?
This may be a penetrating statement of the obvious, but we have a new
Solicitor General. A commitment was made by a different individual. I
therefore suggest that we go back to the Solicitor General's
department. Let us go to the head. There is an old saying about the
fish stinking from the head. We must get that same commitment from the
current Solicitor General and his officials that this will happen.
Let us get on with it. This process has taken a great deal of time and
effort — and that is not to belittle the effort that has been made by
anyone. We must get to a point where we will put this in hard copy and
put it before the House and put it to a vote. This is something where
we are almost chasing our tail now.
Ms. Jennings: I agree with Senator Hervieux-Payette. Generally
speaking, rights are set out in legislation, and if these rights are
to the restricted, this should be clearly stated and the reasons
given. Subsequently, the mechanics can be spelled out in the
regulations. For example, who would have the authority to grant leave
The restriction itself should be set out in the legislation.
Parliamentarians have a duty to determine the reasons and
circumstances whereby a fundamental right will be limited.
I am not happy with these regulations. Setting aside these questions,
should the limitations be spelled out in the legislation or in the
regulations? Assuming that we agree that these should be contained in
the regulations, so many questions have been raised and there is so
much uncertainty as to whether the regulations apply to specific cases
or not that in fact this entire situation is unacceptable.
Mr. Bailey: I agree with what I have heard. My learned colleagues will
have to help me out on this, but we are dealing with a national police
force, which is subject to the Charter. We have ten provinces, which
also have Human Rights Commissions, and so on. There is also the
situation in Quebec and some of its regulations. We also have a
situation where some of the force members are First Nations, and there
are some problems there as well. This is a huge thing to approach at
the present time. We have a new Solicitor General, and that is where
we should start. We should invite the Solicitor General here prior to
drafting anything out. We must be consultative with the Attorneys
Generals of the provinces as well; otherwise, you will get a whole
document and then when you go through the legislation you could run
into difficulties within the provinces. It is a huge effort to try to
straighten this out for the new century. A lot of work must be done.
Mr. Saada: To respond to Mr. MacKay's concern, although there is a new
Solicitor General in office, the official correspondence from the
former Solicitor General's office amounts to an undertaking on the
part of the government. There is no reason to assume, unless someone
can prove otherwise, that there has been a change in policy because a
new Solicitor General is on the job. The undertaking in the former
Solicitor General's correspondence continues to be relevant to these
In my view, it would be very premature to call the Solicitor General
before this committee. As a committee, we have work to do. Quite
clearly, there are some deficiencies in the proposals made thus far
and there is still a considerable amount of work to be done. We should
turn our attention to this task before we meet with anyone. To meet
with the Solicitor General at this point in time would not be very
Ms. Venne: Since the issue here is one of restricting the rights and
freedoms guaranteed in the Charter, the committee should recommend
that Parliament examine this issue and enact appropriate legislation
and perhaps even amend existing legislation.
Mr. Belisle told me last week that he had advised counsel for the RCMP
that the chiefs of certain Indian bands also happened to be RCMP
officers. They were peace officers as well as band chiefs and they
claimed to have aboriginal rights. I would like to know how Parliament
plans to resolve this situation. It is a simple matter to draft
regulations and to apply them. However, when this issue comes up for
debate in Parliament, it will be an entirely different matter. I fail
to see why we would draw a distinction between these band chiefs who
are peace officers and members of the RCMP, and other taxpayers who
are in a similar position. That is why it would be a good idea to
table draft legislation to this effect in the House of Commons.
The Joint Chairman (Mr. Grewal): First, I think that we should write a
normal report and ask for a comprehensive response from the Solicitor
General and include a deadline for his response. In other words, we
should give him a chance. If the committee is not satisfied, then we
will go back to the House and have a debate. Further actions may be
forthcoming, such as a vote, or whatever response we get from the
Mr. Lee: I tend to agree with what I think the chairman is suggesting.
Everything that is old is new again. Actually, we have a kind of
innovation here. We have a recently adopted government regulation. It
is our committee's job to scrutinize, and we must do that.
Counsel, in their brief, have done an excellent job of setting out the
substantive issues in relation to the Charter impairments. They have
also made reference to the consultation process and the constitutional
propriety issue of placing these restrictions in statute form.
While I am not suggesting we treat this as a new, new item of
business, because we all know that we have had a handle on this for
some time, we should treat it as a fresh look at a new regulation. We
should ask counsel to bundle together each of the items that appear to
be impaired by Charter tests. We have made reference to the minimum
impairment test. We should bundle together, if not every single item,
at least those that counsel believes show up on the “Richter scale” of
the Charter. We can add to it the consultation issue and the
constitutional propriety issue.
This time we would not send it to the department but actually to the
minister, because we have been down that road before. We should ask
for a quick and substantive reply to each of our questions, and be
prepared to deal with it pretty much on the same basis that our
colleague Mr. Wappel would urge upon us, if he were here. He is on the
West Coast on parliamentary business today.
We need not bring it up at the next meeting, although that is the
current state of the art. I do not mind if it shows up on the agenda,
but let us get a reply from the Solicitor General as quickly as
possible and then put on work boots and start working at it again.
Mr. Bernier: It is important, at this stage, given the history of this
file, that the committee actually go through Part I of this document
so that we have clear direction. The committee must clearly decide on
which issues to take a stand; otherwise, we will be starting a process
that will be quite as lengthy as the first one.
Perhaps if we do that now, we will find an answer regarding the
earlier recommendation to proceed by way of statute. If the committee
were to come to the conclusion that the current regulations are
defective and must be changed, then part of our recommendation to the
government would be not only that the regulations should be changed in
this fashion but also that the change must be implemented by way of
In other words, we do not have a court deadline here. If the
government were, eventually, to agree to revisions, it would be quite
feasible to simply revise what is here and push that up one level to
the statutory level. We can then simply put the new package before
Parliament by way of a statute. That would resolve the third issue.
The Joint Chairman (Mr. Grewal): Is that the consensus of the
Hon. Senators: Agreed.
Mr. Bernier: Then perhaps we could move on to Part I, go through those
issues and, as I have said, get a clear sense of direction from the
The Joint Chair (Senator Hervieux-Payette): I agree.
The Joint Chairman (Mr. Grewal): Let us go over the time frame so that
we do not leave it open-ended. What should be the time frame?
Mr. Lee: In the interests of time, the brief is well drawn. We should
be looking for a consensus around the table that a particular item
that is described should be included in our list. There may be
questions. We could go all morning on this unless we try to constrain
it. We are looking for approval of the list. The draft of the list is
already in front of us in Part I of this brief. That is my view.
Ms. Jennings: I agree with all of the issues raised in the commentary.
These are all fundamentally important questions. Are the limitations
prescribed in the regulations justified and reasonable under the
Charter? I think that each of these provisions is questionable. In my
view, the regulations as they are currently drafted leave something to
be desired. Each of the provisions begs a fundamental question,
namely: is the stated limitation reasonable? Is the limitation
curtailing the exercise of a fundamental constitutional right
reasonable? In my view, most of the stated limitations are not
reasonable. I fail to see the rationale behind these regulations.
The Joint Chair (Senator Hervieux-Payette): Nevertheless, there is
no harm in our examining these regulations. If we find some provisions
satisfactory, then we can let them stand. However, if all are found to
be unsatisfactory, we can go back to the drawing board and ask that
new regulations or new legislation be drafted. It is not such a bad
idea to review these provisions. Perhaps we can take the time to do
that. Who has to leave and at what time?
Maybe we should take half an hour to review each one and make some
decisions. If we take more than half a hour, we will not have time to
deal with anything else.
The Joint Chairman (Mr. Grewal): How do we proceed?
Mr. Bernhardt: If I might suggest, Madam Chair, one way to look at
Part I is to group the various issues by category. We have come up
with five. The first category is that there are a number of vague
provisions. They use vague terms and vague references. The vagueness
of the language results in the potential for an overly broad
The second category is specific aspects. We know exactly what they are
intended to mean but they still give cause for concern.
There is a third area of concern and this involves certain
restrictions that were added to the final version after it was
pre-published. They did not appear in the final draft. It was
pre-published. They did appear in the final version.
The fourth area is the application of the amendments to part-time
municipal offices. The fifth area is a couple of questions arising
from section 55. These do not give rise to Charter concerns, but we
think there are some questions there that may be worth asking.
Perhaps going through each of those five groups one at a time might be
a way to organize it for members.
Starting with the vagueness issue, there are four terms or references
that appear repeatedly throughout the amendments in relation to
prohibitions or restrictions on activities. Specifically, I am talking
about the terms “political matters,” “campaign,” the reference to an
issue that may be submitted to a direct vote by the population, and
the reference to the council of the regional, municipal or local
By way of example, we can look at section 57(1)(a), which is
reproduced on page 12 of the commentary. This provision prevents a
member engaged in authorized political activities from representing or
allowing his agent to represent the members' opinions or comments on
political matters as being those of the Government of Canada, the
force or the province, region or municipality to which the force
provides policing services.
This gives rise to the question of what is and what is not a political
matter. It could be argued that this term is so vague as to bring the
validity of the section into question. That is the first possible
concern on which it might be useful to have members' views.
Mr. Lee: Mr. Chairman, I simply accept it as an issue. It is an issue
sufficient to flag and ask for a response.
Mr. Bernhardt: Perhaps we could then turn to page 19 and to section
58.2. There are good examples throughout section 58.2 of the other
vague terms we have identified. For instance, paragraphs (c)
of subsection 1 are two of but six provisions that place restrictions
on campaigning. Under paragraph (c), a member who is a peace officer
must obtain leave of absence to campaign for or against a candidate in
an election or a candidate for the leadership of a political party.
Under paragraph (d), leave must be obtained to campaign for or against
an issue that may be submitted to a political voting process.
Presumably, campaigning involves something more than simply expressing
an opinion publicly on an issue. This is not entirely clear, however,
and we have turned to various dictionaries. In one dictionary,
campaign is defined as to conduct or take part in an organized course
of action for a particular purpose, especially to arouse public
The commentary asks a number of rhetorical questions in an attempt to
get a sense of what is intended here. For example, under this
provision, would erecting a lawn sign be considered campaigning? Would
expressing a view at a public meeting be considered campaigning, or
does the term contemplate taking a more formal, active role?
These activities can be undertaken if you obtain a leave of absence.
Of course, this would be leave without pay. The fact that a member
must forego his salary to engage in these activities is itself a
Similarly, seven provisions, including paragraph (d) to which I have
already referred, used the phrase may be submitted to a direct vote by
the population. First, there need not even be any certainty that it
will be submitted to a vote by the population, simply that this may be
the case. One also wonders whether this reference includes elections
or election issues considered to be only indirectly submitted to a
vote. If election issues are included, then there are very few that
could not be said to fall within this restriction. Who will determine
whether a particular issue or question is one that is considered to be
submitted to a voting process?
Again, there are examples of possible problems in the commentary.
Churches take positions on political issues. Are members of the RCMP
prohibited from raising funds for the Catholic Church on the ground
that Catholic bishops take positions on questions that might be
election issues? Would members of the RCMP be prohibited from raising
funds on behalf of a member's association if that association were
proposing to take a position on an issue affecting its members such as
the renewal of a police services contract where the renewal might be
the subject of a municipal referendum?
Whatever the reference encompasses, it is fairly clear that it does
include referendums. Yet, even in the case of referendums, there may
be instances where the prohibition is too broad. For example,
municipalities hold referenda on things like proposals to incur new
debt in order to finance a particular project. Should a member of the
RCMP who is a ratepayer in that municipality be prohibited from
campaigning for or against such a proposal unless he takes a leave of
absence without pay?
Again, the question we put to members is how they view these
The Joint Chairman (Mr. Grewal): I am sure all members received the
letter written to the Superintendent, James Newman, of Internal
Affairs Branch by the Canadian Police Association. That letter is
signed by H.D. Kinnear, Labour Analyst, Canadian Police Association.
That letter also questions the meaning of political activity and
where they draw the line.
Mr. Bernhardt: The $64,000 question is where to draw the line. The
Charter tells us that you can put in place such reasonable limits as
can be demonstrably justified in a free and democratic society. The
courts in turn have said that this involves a test of minimum
impairment. You impair those rights to the minimum extent possible to
achieve your objective. That is precisely the question with which the
committee must wrestle. Does it feel these represent the minimum
Mr. Lee: It is my view that, if a line must be drawn that impairs,
then Parliament must be the decision maker in drawing the line.
However, we must go to the people on the street who are actually
working day-to-day in these fields, and let management and the
officers, collectively — however they arrive at it — propose
a line. I am
not so sure that we are all ready to draw the line here from this
table or that the executive of government is ready to do it. It is up
to the RCMP management and government and us as citizens here to
justify the impairment and the drawing of the line.
When we raise this particular issue with them, the RCMP should be
writing back and saying, We can justify setting the line here and the
impairment that is involved, because (a), (b), and (c).
We have not
seen many (a), (b), (c)s in justification.
There is an assumption, as
was referred to in the letter that you just mentioned, that one could
justify some kind of an impairment. No one has gone down into the
nitty-gritty accounting articulating the justification for the
impairment. That is what our letter should seek.
The Joint Chair (Senator Hervieux-Payette): I am not saying that we
cannot make suggestions to the minister and his officials, but we must
remember that some in-depth research needs to be done. In the United
States, police chiefs are elected, therefore I assume they do some
campaigning. Judges are also elected and first amendment provisions
apply. Our legal systems are fairly similar, but we are poles apart
from the United States in terms of the exercise of human rights. We
have a Canadian way of doing things, which is a long way from the
original concept of human rights and the exercise of democratic
As far as I am concerned, the limitation should apply to the duty to
be performed and not to the individual. A person should not campaign
in uniform or take advantage of his position to win votes or popular
support. However, to say that once a person leaves the office and is
dressed in civilian clothing, he cannot exercise his rights as a
citizen, well I think that is an issue we need to work on. Unless my
colleagues have given this matter serious thought, my feeling is that
these individuals enjoy broad rights and the proposed regulations are
significantly off the mark, as far as human rights are concerned.
Either they have not understood, or they do not want to understand.
One thing is certain. The regulations under consideration are a direct
violation of individual rights and fail to establish the proper
procedural requirements. Basically, they constitute an infringement of
a person's rights.
I would prefer to see the department and its experts on these complex
matters do their homework and try to resolve this dilemma by drafting
regulations which are consistent with the principle of human rights.
We are still waiting for this to happen. Therefore, as my co-chair
suggested, perhaps we could give them a few weeks to think about this.
However, I seriously doubt that their perception is the same as ours,
as lawmakers. I agree that we should review these regulations and
comment on them. Most likely, we will go back to our respective
chambers to legislate on this matter. Together, we must take a look at
the rights enjoyed by members of our police force. We must broach this
issue from the standpoint that rights are not the exclusive domain of
any one particular class of individuals. While I do not know if other
committee members agree with me, that is my philosophy. It explains
why we are having such a difficult time examining regulations that are
way off base, as far as human rights go.
Ms. Venne: I would like to comment on the in-depth analysis of these
regulations, which has proved quite useful to us. The following is
noted in bold face on page 22 of the French version of the commentary:
Est-ce que les mots conseil d'une administration régionale, municipale
ou locale [..] visent à inclure les conseils scolaires [...]
Soon after this, there is a reference to the English version of the
proposed amendments. I would just like to say that even if we consider
the French version, a conseil d'une administration régionale could
very well include a regional municipality. In my view, there is no
need to make this distinction, either in English or in French.
Mr. Bernhardt: That is the other vague reference we have identified.
When one looks at the English version, councils, regional, municipal
or local government, you say what does that not include — it does not
include school boards, does not include public utilities commissions.
The French version, Conseil d'une administration régionale, municipale
ou locale, could conceivably be read as including those other bodies,
which leaves one in some doubt as to exactly what is intended to be
covered here. Is it just city councils, or are we also extending this
to school boards, public utilities commissions, hydro
commissions — anything that is elected is a town or
municipality — and so
on? You get a very different sense between the French and the English.
Again, the result is a vagueness that needs to be clarified, if only
because the two versions are discordant.
Mr. Bailey: Have we had counsel from RCMP appear as a witness in order
to get their firsthand information? It would seem to me that, if we
are going down this road, we may arrive at a corner in the road where
we will say that perhaps we should be consulting with them.
There is a bigger thing in my mind, having worked with these people
over the years, which is to understand what they mean by conflict of
interest. And what is a conflict of interest to these people is not
necessarily a conflict of interest to us. When they mention conflict
of interest, they are talking about those activities that would and
could impair the operation and the respect of the force. Therefore, it
is imperative that we re-examine that issue before we go too far.
Ms. Jennings: Our colleague has put his finger on a major problem.
Many expressions are used in the regulations, and explanations are
never provided. There are many legal precedents in labour law
involving members of police forces. What is meant by conflict of
interest? What is meant by lack of impartiality or the appearance of
impartiality? In my opinion, when regulations prescribe or limits
rights, the terms used should be put in context. I say again,
limitations should be set out in legislation which states clearly that
all members have the right to exercise their fundamental rights,
except in certain instances which are spelled out clearly. I do not
understand why we need 5 or 10 clauses to accomplish this. It should
be fairly clear. Subsequently, the regulations should set out the
If we look at the question arising from section 58.2(1)(a), we can see
just how vague it is. What exactly is meant by council? For instance,
are members of the RCMP prohibited from sitting on a regional board of
The Joint Chair (Senator Hervieux-Payette): The expression le
conseil d'une administration régionale is all inclusive. This would
mean a person no longer has any rights as a citizen.
Ms. Jennings: If we look at each prohibition separately, we see that
members are being stripped of their right to freedom of political
expression. In reality, there are no circumstances under which a
member can exercise this right, with the possible exception, as our
colleague Ms. Venne pointed out, of RCMP peace officers in western
Canada who also happen to be aboriginals and hold two positions,
namely RCMP member and band chief. If that is in fact the case and
these members argue that they will be able to continue performing both
jobs, even if these regulations are adopted and even if they withstand
a constitutional challenge, they would be the only persons in this
position, because of their aboriginal rights.
The legislation prohibits this. The regulations would be challenged if
indeed it is found that members of the RCMP are in this position. I
would imagine the RCMP can tell us if there are at present members of
the RCMP who are peace officers as well as band chiefs or members of a
regional government council. They should be able to provide us with
that information. Are there any members currently in office whose
rights would be restricted by virtue of these regulations? That is a
question that needs to be answered.
The Joint Chairman (Mr. Grewal): I have a question that is probably
beyond the jurisdiction of what we are discussing. What about defence
forces, anyone in the army or air force? Can they run for office?
What is the situation with them? The military cannot run for office.
Mr. Bernier: We would need to look it up, and perhaps that is the next
set of regulations this committee should be examining.
The Joint Chairman (Mr. Grewal): I am jumping a little ahead, but I
was wondering, when talking about Charter of Rights and Canadian
citizens, if we do this, who is next on the list coming up to
Mr. Bernier: There are still two big issues that need to be touched
on. In a partial reply to Mr. Bailey, you asked where do we get
You will recall that we had made a careful comparison with the
situation of the Ontario OPP and the Sûreté du Québec in terms of
participation in political activities. We saw there that many of the
things that would be prohibited here or prohibited unless you took a
leave of absence were allowed in those police forces. In that sense,
we do have a guidance as to what is required to maintain an impartial
police force. The police function is a police function, whether
exercised provincially or nationally.
We do have a practical example on how far and where you can set the
limits and preserve operational efficiency. Although we did not bring
back this legislation, there are legislative models. The senator
mentioned the United States, which has quite a different
constitutional structure but which does offer some guidance of what
can be done and still have a police body that functions well and in
which people have confidence.
Mr. Bernhardt: If I could turn members' attention to page 12 of the
commentary, the issue here is restrictions on freedom of speech by
candidates in elections.
If one looks at 57(1)(b), we will see that this applies to members who
are on a leave of absence and who are running as candidates for the
leadership of a political party or under (a) who are running as
candidates in an election.
The first question that arises is whether any attempt to limit the
free speech of someone who is a candidate in an election is
legitimate. Is it legitimate to turn around and put any limit on what
they can or cannot say?
There are scope problems as well. Let us assume that a member is on a
leave of absence and is a candidate for the party that currently forms
the government. One would expect that candidate to say that his
position is that of the government. This would prohibit him from doing
Suppose a candidate wished to say he was in agreement, or it was the
view of a provincial government that they should have more money for
health care. Presumably, that is a factual statement, the provincial
government either agrees that that is what it needs or it does not. He
would be prevented from saying that.
These are illustrations of the problems that arise when you attempt to
legislate what can or cannot be said by a person running for office.
It goes a step further when you go over to page 14 and look at
subsection (2). When this was pre-published, it required that the
member take reasonable steps to prevent his opinion from being
misrepresented. In the final version, the member is actually required
to take reasonable corrective measures where his views have been
misrepresented. Therefore, the member is under a positive obligation
to take steps to correct what misinformation may appear in the press
over which he has no control or with whom he has no connection. It is
suggested that this is clearly an unreasonable requirement.
Mr. Lee: On this particular issue, then, there is perhaps vagueness or
lack of precision in the ruling. One interpretation would be that you
cannot hold yourself out as speaking for the government or the state
when you are a candidate, which was likely the intention. The other
interpretation, which you have kindly put before us, is that your
opinions as a candidate may not even coincide with those of the
government or the state. You can read this in such a fashion that that
coincidence of political opinion would be prohibited. Do I have that
Mr. Bernhardt: I think so. Once you have given someone leave, once
this person is running as a candidate, is it legitimate to put a limit
on what he can or cannot say or to tell him what he must or must not
do in reaction to something someone has said about him. That is
something we have kicked around and there are somewhat divergent
views. The notion leaves me uncomfortable.
Mr. Lee: Put it on the list.
Mr. Bernhardt: The last issue, which is concerned with 58.5 of the
regulations — which is set out on page 32, as was the case in the
pre-published version — is upon election where a member is required to
resign or retire. This applies to both full-time and part-time
positions. There was concern expressed when members looked at this
provision in the earlier draft version that the application to
part-time municipal offices was an overly broad provision.
There is now an exception here to some extent for members who are not
peace officers who are elected to part-time municipal or band
positions. They can remain a member while holding office if holding
that office does not seriously interfere with the performance of their
duties or cause a serious problem for the functioning of the member's
The earlier concern, however, remains with respect to members who are
peace officers. The interests that the restriction seeks to protect
are the operational needs and the integrity of the force. The question
is: Would these interests be compromised by a member sitting
part-time, without remuneration, on a council in a municipality where
he does not carry out police duties?
The Joint Chair (Senator Hervieux-Payette): There is remuneration.
Mr. Bernhardt: We have a provision earlier on that we have not touched
on that does not allow the member to accept remuneration.
Put another way, if holding a part-time office does not seriously
interfere with the member's duties or cause a serious problem for the
functioning of the member's unit, why should the member not be
permitted to hold the office regardless of whether or not he is a
peace officer? We let non-peace officers do it.
Mr. Lee: Put it on the list.
Ms. Jennings: Even in the case of members who are not peace officers,
the reasons stated in section 58.5(2) do not justify allowing them to
assume these duties provided that holding that office does not
seriously interfere with the performance of the member's duties on the
force or cause a serious problem for the functioning of the member's
No employer can prevent a person from holding two jobs. However, if I
worked full-time as a secretary or salesclerk at Eaton's and held down
a part-time job elsewhere and if holding two jobs meant that I failed
to perform up to the minimum standard set by my employers, whether in
my full-time or part-time job, then my employer can refer to a host of
labour law regulations. He can issue a warning to me, or he can
suspend me either with or without pay. A range of sanctions can be
applied. I do not think this provision makes much sense for members
who are not peace officers. As for members who are peace officers, I
fail to see how they could be forced to resign.
This is a blanket prohibition. Any member who is elected under
58.2(1)(a) or 58.4(1)(a) must resign. I do not see
that there is any
justification. I have never seen anything in any of the documents that
the bureaucrats have brought before us or that the Solicitor General
himself has stated before us to justify such a blanket prohibition.
Mr. Lee: Put it on the list.
The Joint Chairman (Mr. Grewal): It being 10 o'clock, should we
proceed to the next item on the agenda?
The Joint Chair (Senator Hervieux-Payette): Are there many more
items with which we have to deal?
Mr. Bernhardt: Those are the substantive issues. There are some other
questions posed in the commentary with the suggestion, perhaps, that
these are questions that need to be asked or that an explanation
should be sought.
Where there is something, for example, that did not appear in the
pre-published version, I think it is legitimate to ask why it was put
in. There are a couple of provisions about whose purpose we are not
The Joint Chair (Senator Hervieux-Payette): Is it agreed that we
write to the Solicitor General with all our remarks, including, of
course, asking for clarification?
Mr. Lee: Agreed.
The Joint Chairman (Mr. Grewal): That should also include a tight
The Joint Chair (Senator Hervieux-Payette): The deadline should be
one month because they do not go very fast.
The Joint Chairman (Mr. Grewal): Let us give them three weeks.
The Joint Chair (Senator Hervieux-Payette): Okay.
Ms. Jennings: If we give them 30 days, it means that the deadline will
take place during the Easter break. That means that we should have the
response for the first meeting of this committee after the Easter
The Joint Chairman (Mr. Grewal): Before we move to the next item, on
behalf of the committee, let me thank counsel for a job well done on
Mr. Lee: Mr. Chairman, I should like to raise a point of order. It has
to do with the balance of the agenda. We have spent a long time on the
first agenda item — and appropriately so. However, there is an item
involving the Hamilton Harbour Commission. I have to leave fairly
soon; however, before I do, I wanted to bring this item to the
attention of members because it has not been flagged yet. Would it be
possible to take that up now?
The Joint Chairman (Mr. Grewal): I have no problem with that.
SOR/90-449 — HAMILTON HARBOUR COMMISSIONERS' LAND USE AND DEVELOPMENT
Mr. Lee: In a reply to a letter from this committee, the chair of the
Hamilton Harbour Commission appeared to provide an undertaking in
response to our request for one. However, upon reading the letter, it
is not as precise as some of us would like. It appears to say, Oh yes,
sure, we will give the undertaking, and we have never used the by-law
for lands that should not have been covered under the by-law.
I want to point out that, as I see it, this formal undertaking by the
chairman of the Hamilton Harbour Commission was not even signed by the
chairman of the Hamilton Harbour Commission.
If you look at the letter dated February 9, someone has signed it for
her. I do not think it is very businesslike to provide a formal
undertaking to the Parliament of Canada and to have it signed by who
Because of the other vagueness items in the letter, counsel has
reviewed them reasonably well. This is an agency that makes by-laws,
give or take, on its own through the Transport Department. We
recognize that the history of this Hamilton Harbour Commission matter
goes back a number of years. It is my sense, from reading this letter
and from dealing with them previously, that there have not been many
sincere responses. I have some reason to have some concern about how
harbour commissions generally are dealing with this regulatory power.
I ask members to keep in mind that our power of disallowance on this
committee is not applicable to harbour commission by-laws. Our current
disallowance structure does not reach that far.
If committee members want to study it, this could be an excellent
example of how a harbour commission deals with its regulation-making
power, how it is or is not responsive to the public interest, and how
we might wish to treat the subject matter of agencies not directly
represented in Parliament making regulations on their own and not
through a minister who sits in Parliament. It must also be kept in
mind that these regulations are not made by the Governor in Council.
I suggest that the clerk and counsel scope out a short list of issues
that we could take up, along with the items to which I have made
reference, and that we call the Hamilton Harbour Commission. I have
some questions I want to ask of a harbour commission. I think the
Hamilton Harbour Commission would be a good commission to ask them of.
I realize that we may get busy. However, there is no reason that we
cannot find an appropriate time slot. It may require an extra meeting.
I would like to propose that, because I do not think we will get any
final answers today on some of the questions I have just raised in
relation to the Hamilton Harbour Commission.
If members want to defer this matter, it is all right with me.
The Joint Chairman (Mr. Grewal): We can look into that matter.
Mr. Lee: I am prepared to move now that we set aside a meeting, call
the Hamilton Harbour Commission and review issues that counsel and
clerk can outline for us, making reference to my earlier comments and
the issues that were earlier raised in the Hamilton Harbour Commission
file, along with other harbour commission files, that could be
considered generic to the harbour commission paradigm.
Mr. Bernier: Would this be an examination by the committee asking the
commissioner or commissioners to appear in order to examine the
process and manner in which by-law-making powers of the commission
have been exercised?
Mr. Lee: Yes, including the issue of accountability and complaints.
Mr. Bernier: You are aware, I take it, that they are on the verge of
Mr. Lee: Their successors will operate within the same structure.
The Joint Chairman (Mr. Grewal): There was a point mentioned by
counsel that the correspondence from the Department of Transport was
misleading. Do you doubt that?
Mr. Lee: We do not know who was misleading whom. We do not even know
if it was advertent or inadvertent. Thus, we should call the party we
want to deal with to find out who is on first and who is on second.
We should call the DIO from Transport and the chairman of the Hamilton
Harbour Commission, and anyone else that he or she thinks would be
appropriate to assist, to answer questions that will be outlined in
our invitation. We do not have to order them.
The Joint Chair (Senator Hervieux-Payette): It is more than that.
Mr. Lee and I have discussed it. As parliamentarians, we feel very
uncomfortable that these people would adopt regulations that are not
subject to review by anyone. After having been granted powers under
legislation passed by parliamentarians, it is a very strange thing.
They have to answer to someone.
We may have some questions as to why we should continue this process
and how it would impede their activity if we were to review these
regulations. Why should there be double standards? This is a strange
process. Addressing this question in the larger context is quite
Ms. Venne: Certainly we could invite the Commissioner to come before
the committee, but we should not use this reply as a pretext. It is
not uncommon in the case of organizations like this for correspondence
not to be signed personally.
The following is noted in the last paragraph of the reply:
If there is anything that the Committee requires from us that will
assist in this regard, we would be pleased to provide it.
This is worded broadly enough to suggest that the Commission is
prepared to acquiesce to our particular request. If we want to
question the Commission about other matters, then we should not
contact them on the pretext that their reply was unsatisfactory. We
should probably hear from the Commission because it appears to be
acting outside the regulatory regime. However, let us come up with a
reason other than that their reply was unsatisfactory.
The Joint Chair (Senator Hervieux-Payette: This is a preventive
measure in anticipation of the regulations that will be drafted to
accompany the new legislation. It is far better to start off on the
right foot. This is simply a first step. We will be discussing more
than just the regulations. Therefore, we will find time to schedule
The meeting is adjourned.