[Recorded by Electronic Apparatus]
Tuesday, October 29, 1996
.0906 
[English]
The Chairman: I would like to reconvene the hearings of this subcommittee on Bill C-25.
We're pleased to have with us this morning the Associate Deputy Minister from the Department of Justice, Mary Dawson.
Welcome, Ms Dawson. We're very pleased that you were able to make it this morning. If you would introduce your associates, we will then ask you to read your statement, following which I hope you will be able to entertain questions from members of the committee.
Ms Mary Dawson (Associate Deputy Minister, Department of Justice): Thank you,Mr. Chairman.
I have with me John Mark Keyes, who is in the legislation section of the Department of Justice; Ryan Rempel, who is in the administrative law section; and Don MacPherson and Nancy Othmer, who are from the administrative law section as well.
It's a pleasure to come and talk to you today about Bill C-25, the regulations act. Today I'd like to give you a general overview of the bill explaining the broad objectives and outlining its major components. I'd be happy of course to answer your questions after this short presentation. I'd also like to point out that we have provided the clerk of this committee with copies of a bilingual briefing book that goes clause by clause through the bill.
Let me first put Bill C-25 in context. Since the 1993 report of the subcommittee on finance entitled Regulations and Competitiveness, there has been widespread recognition that Canada's regulatory system is outdated, overburdened, excessively costly, and unresponsive to current economic and social needs. This is having an adverse impact on Canada's ability to compete in the global economy.
The report recommended a major overhaul of the system, including the revision of the Statutory Instruments Act and the internal regulation-making process; harmonization of international, foreign, federal, and provincial regulatory standards and greater reliance on standards set by expert bodies; improved consultation and public accountability in the making of regulations; more flexibility in the design of regulatory schemes; and more innovative and efficient approaches to achieving compliance with policy objectives.
Last year, the Industry Canada initiative on building a more innovative economy built upon these ideas and set out a program of regulatory reform that included both legislative and administrative reforms in the way the federal government regulates. As part of this program, two bills dealing with regulatory reform were introduced last spring: the Regulations Act, then called Bill C-84, and the Treasury Board Bill C-62, the Regulatory Efficiency Act. I mention this to avoid any confusion between these two bills.
The Treasury Board proposal was designed to deal with the practical difficulties of amending regulations. It would offer a way for specific enterprises or individuals to substitute a more appropriate way to comply with existing regulatory requirements once a compliance plan has been negotiated with the responsible minister.
Bill C-62 was the subject of some considerable criticism from parliamentarians and labour and environmental interest groups. In contrast, our bill, which is basically a housekeeping bill, received a positive reaction from the groups with whom we consulted. Both bills died when Parliament prorogued earlier this year. To date only our bill, now Bill C-25, has been reintroduced.
.0910
In reintroducing the bill we took the opportunity to make minor technical improvements to the bill. You will see that some of the numbering has been changed and some of the sections have been moved around.
What are the objectives of the bill? The purpose of Bill C-25 is to streamline and reduce delays in the current process by which regulations are made at the federal level in Canada, while preserving the protection of the public interest in legality, accessibility and parliamentary oversight.
Although the reforms we are proposing to the Statutory Instruments Act are part of the broader efforts towards building a more innovative economy, they have been a matter of concern and study for some time now. In fact the limitations of the current regulatory process were consistently identified as requiring attention in the course of the government-wide consultations that took place during the regulatory reviews of 1992-93.
[Translation]
It is worth noting that the changes being considered would not radically alter the current statutory process but rather clarify existing legal uncertainties, simplify steps where appropriate, and modernize the process by providing a legislative framework for the electronic publication of regulations and by facilitating the exchange of information and comments about the substance of the regulatory scheme.
[English]
I should underline that Bill C-25 does not stand alone. It is supported by other administrative improvements in the way that regulatory departments develop regulations and the Department of Justice reviews them, which will help to streamline the regulatory process. For example, improvements have been made by having lawyers in the regulations section draft from client departments' instructions, rather than having the regulations section examine the client's draft and then redraft it.
In addition, pilot projects are under way to apply principles of plain language drafting to regulations. As well, greater involvement of the departmental legal service units in helping client departments to plan for their anticipated regulatory needs helps to facilitate the provisions of timely and appropriate levels of service.
[Translation]
What does the current Statutory Instruments Act do? It provides the procedural framework for making federal regulations. Enacted almost a quarter of a century ago, the SIA is intended to promote several basic legal safeguards that reflect the fact that regulations are an important form of law having binding legal effect.
First of all, the legality of regulations, that is ensuring that the requirements or prohibitions established by regulations are authorized by statute, is insured through justice examination and Parliamentary scrutiny.
Secondly, transparency. Through requirements relating to drafting standards, registration, publication in the Canada Gazette, and availability for public inspection, the act ensures that persons affected by regulations can find and read them in an authoritative form.
Thirdly, concerning accessibility and enforceability, through the requirement of registration and publication, the act ensures that regulations are accessible to those affected by them and subject to them, and are thereby legally enforceable.
Fourthly, accountability to Parliament is provided through referral of regulations and other statutory instruments to the Standing Committee for the Scrutiny of Regulations.
.0915
[English]
Why is reform required? Over time, the regulatory process established by the Statutory Instruments Act has come to be viewed as an impediment to making, amending and repealing federal regulations in a trusty and efficient manner. The current operation of the Statutory Instruments Act makes it difficult for federal regulators to respond in a timely manner to changing needs with new and improved regulations, because the regulatory process is too cumbersome and time-consuming.
Indeed, the Statutory Instruments Act is seen as such an impediment to responsive regulation that new or revised legislation often now includes specific exemptions from the Statutory Instruments Act in an effort to avoid undue delay and inefficiency in regulation-making.
It is well understood that regulatory regimes that are not well tailored to evolving circumstances not only increase compliance costs to government and therefore to taxpayers, but also impact negatively on respect for the law, competitiveness and economic growth, and upon the working relationships of the private sector and government regulators.
Our legislative reforms are designed to streamline, simplify and expedite the regulatory process, thereby to improve the capacity of departments to respond quickly and effectively to public concerns and to rapidly changing circumstances in a global economy.
[Translation]
By facilitating amendment or replacement of outdated regulatory schemes, regulatory departments will be in a better position to implement new ideas about how government should try to encourage compliance with federal policy, such as using alternatives to regulation, negotiated regulations, administrative monetary penalty regimes instead of quasi criminal enforcement models, etc. The proposed reform of the regulation-making process would facilitate timely reform of regulatory regimes and generally reduce impediments to economic growth and competitiveness attributable to those delays.
[English]
In addition, over the years we've seen a number of areas where technical improvements could be made to the Statutory Instruments Act. These revisions will give us a chance to make those adjustments.
Finally, a statutory basis for electronic publication of and comment about regulations will provide for a more effective and less costly mechanism for exchange of information concerning the substance of regulations.
Let me take you through some of the main features of the bill. First, the bill uses plain language. The bill changes the title of the bill to the Regulations Act. It eliminates the term ``statutory instrument'' and redefines ``regulation'' in a principled way. A regulation is any document that contains rules of conduct that are unilaterally imposed and that have binding legal effect and are of general application.
Contrast the definition section of the bill that is before you with the complicated, virtually unreadable language of the definition section of the Statutory Instruments Act. You will also notice that our bill, as a whole, reduces the text of the law by one third.
Secondly, the bill provides an appropriate review. Currently, most documents subject to the Statutory Instruments Act are treated in the same way. That is, they're all subject to the legal examination, registration and publication requirements of the act, even though there's no real need for some kinds of documents to undergo this time-consuming process.
The new Regulations Act will provide for different classes of documents and will rationalize and tailor its treatment of each in order to create flexibility where appropriate. It's fundamental to recognize that if we're going to have a responsive and efficient regulatory system, intelligent decisions have to be taken about what should go through the process and what need not. We simply cannot afford to process every ministerial or governmental document through the full regulatory process.
.0920
Let me give you a sense of what documents are or are not covered. First, there are regulations made under an enabling provision that calls it a regulation or specifies another type of document to be used. These will continue to require a full justice review, as well as registration and publication in accordance with the full process set out in clauses 6 to 10 of the bill.
Then there are some regulations that are not of such a level of significance as to require a detailed legal scrutiny but should still be subject to registration and publication. These are exempted from the requirements of justice review by subclause 7.(4). Examples of these include rules of procedure developed by tribunals or courts, or amendments to lists, such as schedules of prohibited substances.
Going in the other direction, other regulations that would not ordinarily be subject to the regulatory process may be made subject to all or part of the process in the public interest by order of the Governor in Council. That's under subclause 5.(2).
Some documents, other than regulations, may be made subject to all or part of the regulatory process in the public interest by the clerk of the Privy Council under subclause 5.(3).
Some documents will be exempt from the regulatory process that is set out in clauses 6 to 10. These include, first, regulations that are exempt from the regulatory process because Parliament has exempted them under another act. These existing statutory exemptions are unchanged by the Regulations Act. Secondly, these include regulations that are currently exempted under paragraph 20.(a), (b) or (c) of the Statutory Instruments Act. Existing exemptions have been grandfathered by this bill under clause 28.
This reflects the fact that the underlying policy of the bill is to streamline and unburden the regulatory process and reduce the number of documents having to go through it. If the bill were to require that presently exempted documents go through the regulatory process, this would undermine these fundamental objectives.
Thirdly, it also includes regulations that the Governor in Council, by regulation, exempts from the application of the regulatory process. The current power of the Governor in Council under the Statutory Instruments Act to grant exemptions is brought forward and rationalized under one section - clause 5 of the new bill. You will notice that for the first time these exemptions are made expressly subject to a rigorous public interest test.
[Translation]
Thus, section 5(4) requires that the power be exercised in a way that respects principles of legality, accessibility and government accountability in making regulations, taking into consideration the importance of achieving regulatory goals, including goals relating to safety, health, the environment and sustainable development, and in reducing regulatory costs and delays.
Fourthly, the power of the governor in council to exempt from publication any regulation reasonably expected to injure national security is continued in the new act in section 26(g). Although it is rarely used, it is an important safeguard in times of national crisis.
[English]
It should not be overlooked that even though some regulations may be exempted from the process, the regulation granting the exemption will be registered and published and will be subject to review by the standing joint committee.
Finally, regulations that are not expressly labelled in their enabling statutes will not go through the regulatory process unless the Governor in Council so requires, in the public interest, under subclause 5.(2).
This approach has been retained from the present Statutory Instruments Act. The bill will now clearly make these regulations subject to standing joint committee scrutiny. This is a new provision and gives the standing joint committee access to material that was not subject to the committee's scrutiny under the Statutory Instruments Act.
A third feature of the bill is that it codifies and clarifies the law. The bill does this in several areas. Clause 11 sets out the common law defence that is available where a regulation has not been published. This is an improvement over Bill C-84 in that now the defence applies to all regulations, not just to those that go through the general regulatory process as set out in clauses 6 to 10.
Clause 16 clarifies the ground rules for the use of incorporation by reference and confirms the existing practice of the federal government.
.0925
The government regards incorporation by reference as a valid and useful technique for harmonization of standards between jurisdictions. By clarifying the law, these provisions will facilitate use of this technique to reduce duplication and overlap in federal, provincial, and territorial standards and to take advantage of recognized international standards to reduce the domestic regulatory burden and improve Canada's global competitiveness.
I would like to underline that the reason bilingualism is not dealt with in the bill is that it's already addressed in the Constitution and in the Official Languages Act. We certainly are of the view that respect for Canada's two official languages is fundamental. The pre-existing requirements of the Constitution and the Official Languages Act are unaltered by the bill.
[Translation]
Section 16 provides for incorporation by reference of externally produced documents such as those of an established standard setting body or an international body, either in its original form or subject to minor adaptations for the Canadian context. It also provides for incorporation by reference of documents produced jointly with another government for purposes of harmonization. As well, it provides for incorporation by reference of documents produced by departments that are merely explanatory or technical in nature.
[English]
The bill provides that documents can be incorporated as amended from time to time, unless another act of Parliament expresses a contrary intention. The availability of ambulatory incorporation by reference is an important feature for facilitating harmonization. The regulatory department continues to monitor the changes made to the reference document and can amend the regulation if the standard is changed so that it no longer conforms to the enabling provision. In the meantime, ambulatory incorporation allows for efficient and continuous harmonization without the delays involved in having to amend the regulations every time the standard is changed slightly.
It's important to note that clause 17 sets out the obligation of departments to take reasonable steps to ensure that incorporated material is accessible to the persons likely to be affected by the regulation. How this is done will vary from case to case, but the fundamental accessibility obligation is unequivocal. As well, paragraph 26(f) enables the Governor in Council to make regulations prescribing reasonable steps to be taken to ensure access.
Another of the bill's features is that it modernizes the process and offers hope for enhanced public access. An important innovation in the bill is that it provides the flexibility for publication of the Canada Gazette by electronic networks and other electronic means in subclause 12(2). The bill does not require this innovation, but allows for it through the power of the Governor in Council to make regulations under paragraph 26(c).
Paragraph 26(b) allows for regulations to be made establishing an electronic system for public consultation on proposed regulations. As electronic networks become more widely used, electronic publication of the Canada Gazette is likely to become the best way to assure broad public access.
In clause 20 the bill also provides for the use of electronic forms in order to facilitate electronic filing by those who are being regulated. In addition, the bill makes several technical improvements to the SIA. For example, the bill unites the rules on the coming into force of a document in the proposed regulations act itself, in clauses 21 to 23, instead of having to turn to both the Statutory Instruments Act and the Interpretation Act.
In addition, the bill clarifies and simplifies the language describing the role of the Department of Justice in reviewing proposed regulations to reflect the reality of client service. That's in clauses 6 and 7 of the proposed regulations act.
The final feature of the bill I would like to mention today is that it enhances parliamentary oversight. The bill provides an improved oversight role for the standing joint committee. While the scope of its review is somewhat diminished by the elimination of the term ``statutory instruments'' and the focus on the term ``regulation'', one must not lose sight of the fact that regulation is defined more broadly in our new act than in the Statutory Instruments Act. Indeed, we feel that any instruments removed from scrutiny are of minimal significance.
.0930
The bill provides for parliamentary scrutiny of all regulations, except for those exempt under paragraph 26.(g), and of any other documents requiring registration. As well, the committee will be able to call for incorporated material and review the propriety of the incorporation.
Even documents that meet the definition of ``regulation'' but do not go through the regulatory process because they are not expressly named in their enabling legislation will be subject to scrutiny by the standing joint committee. The committee's mandate will no longer be limited by the expressly authorized wording of the current Statutory Instruments Act definition, a limitation of which the standing joint committee has long complained.
I should mention that interest has been expressed by members of the standing joint committee to bring into Bill C-25 the provisions of the Standing Orders on disallowance of regulations. In some cases where regulations are expected to be truly substantive in nature, Parliament has already provided a specific disallowance power in the particular enabling legislation. This kind of tailored approach to creating legal power of disallowance is consistent with the British model and seems to be very effective. We have also seen that the disallowance power provided under the Standing Orders carries considerable political significance and is highly effective. So far ministers have always revoked regulations where a motion to disallow has been adopted.
We have examined the issue carefully and have consulted extensively within government. It was the general consensus that because this concerns the general mandate of a parliamentary committee, it was a matter best left to the Standing Orders of Parliament except in those individual cases where Parliament considers that a statutory power should be specifically provided.
[Translation]
The regulatory process provided in the SIA is too complex and burdensome to be able to keep pace with changing regulatory needs. It takes too long to make regulatory changes and this can have an indirect, negative impact on the federal government's ability to respond quickly and effectively to new developments in such areas as health and safety, environment, international trade, and federal-provincial relations.
[English]
The cumulative effect of the reforms contained in Bill C-25 would be to reduce stress on the existing system by reducing the number and volume of regulations subject to the general regulatory process, while preserving the important safeguards in that original scheme and focusing them on the most appropriate regulations.
That was quite lengthy - my apologies - but I did want to cover the field.
The Chairman: Thank you, Ms Dawson. We'll now begin with questions.
[Translation]
Mr. Lebel of the Bloc Québécois.
Mr. Lebel (Chambly): Thank you, Ms Dawson, for your presentation. I would like to have just one clarification. When we refer to documents from outside Canada like American regulations on pensions for Canadians who have worked for a while in the United States, how can this material which is incorporated by reference meet our linguistic and constitutional requirements if they have been made in one language only in the originating country?
[English]
Ms Dawson: Yes, this is one difficulty that has arisen before. When material is incorporated by reference it is incorporated in the language in which it is drafted, so that the incorporated material would indeed be incorporated in English only.
There was a case that went up to the Supreme Court taken by a Manitoba reference. We've studied that reference very carefully and are convinced that provisions we have in the bill are indeed in accordance with the constitutional requirements for language. We're very well aware of the fact that if the incorporated material were produced, for example, by the federal government, we would certainly be required to have it produced in both languages.
.0935
But the value of incorporation is that it allows the government to pick up appropriate standards from whichever country in whatever language. So it is indeed the case that some of the incorporated material will only be in one language. That language could be English, it could be French, it could be German, or it could be any language.
If for the sake of convenience or administration it were useful to do so, the departments could of course provide translations of any of this material as needed. But the incorporated material that formed part of the law would be in whatever language it was incorporated in.
[Translation]
Mr. Lebel: I do not have any more questions.
[English]
The Chairman: Does anyone from the government side have a question?
Mr. DeVillers (Simcoe North): Yes, thank you, Mr. Chair.
What would your answer be to the concern some people have that by making the regulatory system faster, quicker, etc., we're not losing some of the scrutiny of Parliament? In the summary it says that we're maintaining government accountability for regulations through effective parliamentary scrutiny. I wonder if you could just explain your answer to that criticism.
Ms Dawson: Basically the definition of ``regulation'' in the new bill lies somewhere between the definition of ``statutory instrument'' in the Statutory Instruments Act and their definition of ``regulation''. The way the definition of ``regulation'' is drafted indicates that what we're trying to pick up is every instrument that has a legislative aspect to it, that has unilaterally imposed rules of conduct that have a binding legal effect.
We believe it is those instruments that require the scrutiny of the standing joint committee. The instruments that have been left out from the definition of ``statutory instrument'' in the Statutory Instruments Act are only those very minimal instruments that have an administrative effect but not a legislative effect. So that's going in one direction, in the sense that there's less picked up.
While there's less picked up from that point of view - and we've retained the important ones - there is more picked up for the standing joint committee. Under the old system those words ``expressly authorized'' applied to preclude the scrutiny of the standing joint committee of anything that did not have those words. The way we've structured the bill this time, that overlay would not exclude the standing joint committee from scrutiny. So all the important regulations the committee ought to be concerned about are indeed picked up.
Mr. DeVillers: To answer a concern we heard at the time of Bill C-68... People were saying that gun registration wouldn't be in the bill, but the government would be sneaking it in through the regulations. With this amendment are you telling us that this wouldn't be possible?
Ms Dawson: I haven't studied the gun legislation, I'm afraid, but if there was anything that had a legislative impact in the gun legislation in the regulations, it would definitely be picked up.
The Chairman: Thank you, Mr. DeVillers. Mr. White.
Mr. White (North Vancouver): First of all, I'd like to pursue this issue of the impact on parliamentary scrutiny a little further. In practice, it would be impossible for the joint committee to scrutinize regulations not subject to the regulatory process as a result of clause 4. In theory they're subject to review, but because they're not published the joint committee won't even know of their existence.
If what we're calling the magic formula is to be retained, should there not be a referral of those regulations to the committee so at least the committee knows they exist? Because there certainly is the potential within the bill right now for the committee to not even know these regulations are there.
.0940
Ms Dawson: Our answer is basically that legally the standing committee still has jurisdiction over these other regulations.
Your question is how are they going to know about them. The answer is that the way the parliamentary system normally works is that when there is a problem the problem is brought to the attention of a person's MP. If that problem does come to the attention of the MP, the MP can then ask the relevant department for the regulation. This bill provides that the department has to make that information available.
Mr. White: What we are saying, then, is that there can be all sorts of regulations out there with problems and as long as nobody reports the problems, it's fine, we don't have to scrutinize the regulations. Is that what I take from...?
Ms Dawson: In a sense, yes, because if the regulation is not creating a problem for anybody, one would assume it's not a problem.
Mr. White: I see. Okay.
That leads into this whole area of publication. I wonder if you could give me some idea of some alternative forms of publication that may be used for regulations and why it wouldn't be practical or a good idea to require production in the Canada Gazette, as usual, so that at least people who are used to that medium will find the regulations there.
Ms Dawson: It has always been the case that some regulations are not published.
I think I'm going to turn this over to John Mark, who is probably a little bit more familiar with the details.
Mr. John Mark Keyes (Senior Counsel, Legislation Section, Department of Justice): To answer your question about the concern that unpublished regulations may be difficult for the scrutiny committee to find, there are mechanisms for finding them, apart from the mechanism of complaints. The first step would be to look at the Statutes of Canada and I agree in this instance. It's not an act, but it is a publication containing a bunch of acts and the various powers that those statutes confer on ministers or on other regulatory bodies.
The bill we're proposing is based on the assumption that where those powers are in fact of a legislative nature, that they are a form of law, Parliament has conferred those powers, in terms of being a regulation - using that word ``regulation'' - or it has used some other instrument to identify the forum in which the power is to be exercised.
This practice was instituted with the Statutory Instruments Act in the early 1970s, and over the last 25 years it has been the standard drafting practice within the Department of Justice that when a power will result in the production of something that is a form of law we've been instructed to ensure that the magic words ``or an instrument'' have been used as the mechanism for exercising that power.
This is in the cabinet directives on the drafting of legislation that were approved in the early 1980s. So over the course of 25 years, we have had a fairly established drafting practice of making a judgment when statutes are drafted, as to the nature of the power: is it something that is legislative, is it a form of law, or is it something different?
It might help to explain what ``something different'' might be, just to put all of this in perspective. On the one hand, ``something different'' may be simply a set of guidelines that are not binding in law. They are simply advice to people, largely to administrators, about how they are supposed to make decisions when they're administering a piece of legislation, and in those cases we have assumed that sort of advice should not be recognized as a form of law, because it's not binding. So in the relatively rare instances in which a statute does create a specific power to produce guidelines or these advisory sorts of instruments, we would not have used the magic words. Now there are a couple of notable exceptions to this, but by and large that's been the practice.
The other large group of non-regulation powers are simply powers to make decisions that relate to particular individuals, such as a decision to issue a licence to someone and a decision on a tax assessment, in terms of how much tax is to be imposed.
These individual decisions only affect particular individuals. And again, it's not appropriate that they be treated as regulations, because they are not a form of law; they are not general in their application, they relate to particular people.
.0945
Those are two examples of the kinds of powers we've excluded in our drafting practice from being regulations: the purely advisory sorts of directives and the decisions that relate to particular individuals and are not of general interest, are not generally binding, and don't apply to the population generally. That practice has been fairly entrenched since the early days of the Statutory Instruments Act, and we feel over the last 25 years we have made fairly good assessments in drafting government bills as to the nature of the power and whether it is appropriate that this power be recognized as a form of law and be treated as a regulation.
Certainly there may be powers that date from before that time, older statutes whose origins are in the earlier parts of this century, where that same sort of thinking process was not involved, and it's certainly possible that those sorts of powers may indeed be of a legislative nature, but nothing has been done with that legislation to recognize them as such. But I would assume when those pieces of legislation are revised, this thinking process will be brought to bear on them and those judgments will be made, in terms of whether in fact it is appropriate that this power should be exercised in the form of a regulation as opposed to some non-regulation document.
Mr. White: I'd like to refer to subclause 10.(2) of the bill, on the time for publication of a notice. Subclause 10.(2) requires that where a notice of the making of a regulation is published in place of the text of the regulation, the notice is to be published ``as soon as possible after the registration is registered''. I know ``as soon as possible'' could mean a whole range of different timeframes for different people, so I'd like to ask you this. Why not make the period the same as that prescribed by subclause 10.(1), a thirty-day period, for that to be published, instead of ``as soon as possible''? Why is that wide-open ``as soon as possible'' in there?
Ms Dawson: Actually, we've taken out the thirty days, and I think the seven days, in another instance. There's no reference to a thirty-day period in the current bill. There was a thirty-day reference in the Statutory Instruments Act.
The reason we took it out was threefold. We felt with the modern technology now, generally speaking, that period would probably be longer than is needed. We're probably generally looking at shorter periods within which to publish. In addition, the thirty-day period has been interpreted as being directory rather than mandatory. It only gave you an idea, in any event, of the kind of time within which you were to be operating. So we felt it was really more accurate and informative to talk in terms of ``as soon as possible'', which is intended to mean as soon as possible and not necessarily waiting the thirty days or, in another case in the bill, seven days.
Mr. White: Would you not be concerned if this stretched out to a year for some issues? How would you ever get things under control if people started assuming they could stretch this timeframe indefinitely?
Ms Dawson: I would suggest that ``as soon as possible'' could not encompass one year. ``As soon as possible'' means as soon as possible.
Mr. White: Also on subclause 10.(2), I'd like to talk about a practical difficulty. You've mentioned here that the aim is to streamline things, to make them work better, to remove problems. The goal of subclause 10.(2) seems to be to avoid reproducing a regulation in the Canada Gazette twice in the identical form. There's no problem with that, I agree, but let's talk about the practical difficulties.
At present draft regulations are pre-published in part I of the Canada Gazette, whereas the final regulations are published in part II. Where notice that a regulation has been made is published in part II in place of the actual text, it will then be necessary to consult a completely different publication, part I, to find the regulation. Experience has shown that in general there are considerable delays, in some cases as much as two years, between pre-publication and the eventual making of the regulations that were pre-published. So it will become very complicated trying to keep track of all this stuff.
.0950
Aside from the inconvenience with this situation, it should be pointed out that perhaps parts I and II are subscribed to and paid for separately, so some people may not get both issues. Those wishing to have copies of all of these regulations are now going to have to subscribe to both part I and part II. Can you make a comment on that? Would it not be more sensible to try to take care of that difficulty by ensuring that the old rules apply?
Ms Dawson: I would suggest that there are always libraries and a variety of places where one can get access to previous documentation.
The reason we are proposing this adjustment to the law is that it is very expensive to publish some of these regulations. Some of them are very lengthy. Effectively, this is a balanced choice. We feel that in certain cases we can save a certain amount of money by directing people to previous publications if indeed no changes were made.
Ryan may have an additional comment.
Mr. Ryan Rempel (Constitutional and Administrative Law Section, Department of Justice): I wanted to mention that the organization of part I and part II of the Canada Gazette is not cast in stone. It may well be appropriate under the new regime to make some adjustments to make sure that regulations are always available in the ways you have suggested. There is quite a bit of part I, for instance, that has nothing to do with regulations at all. There may well be administrative ways of redesigning how the Canada Gazette is organized to deal with your point.
Mr. White: A suggestion I would put on the record is that the draft regulations could be pre-published in a special section of part II.
Mr. Rempel: Yes, that's the kind of thing that...
Mr. White: Are you telling me there's a movement in that direction?
Mr. Rempel: No, just that it would be possible. Nothing in this bill would prevent that from happening.
Mr. White: My last question at this point is to -
The Chairman: You can go for a second round, Mr. White.
Before I go to Mr. Lebel, I want to ask a question on subclause 10(4), which says: ``No regulation is invalid because it was not published in accordance with this section.'' Doesn't this say we really don't have to advertise at all?
Ms Dawson: No. It preserves the validity of the regulation, but you're still not complying with the law if you don't follow the provisions of the rest of clause 10.
Furthermore, we have an express provision in clause 11 that if there is an offence or penalty involved in connection with the regulation to a citizen of Canada, or to anybody in fact, they can't be convicted of that offence or subjected to that penalty if the regulation was not published. So there's protection for the citizen if there is a lack of publication. We felt it was important that the regulation itself not be absolutely invalidated.
Do you have something to add, Ryan?
Mr. Rempel: It should also be remembered that some regulations don't have penalties and are in fact for the benefit of certain parts of the public. It can be important that those regulations are valid, even if some mistake has been made.
The Chairman: Thank you very much.
[Translation]
Mr. Lebel.
Mr. Lebel: Ms Dawson, you have said in your remarks that, during the last session, Bills C-62 and C-84, which have been presented again in Bill C-25, died on the order paper. You may remember that Bill C-62 dealt with standards. Did you not merge Bills C-62 and C-84 to come up with Bill C-25 before us? For example, it seems that the wording of sub-clause 5(4) is identical to that of an essential provision in Bill C-62 which upset so much parliamentarians when it was first tabled?
When you take clause 5 and put it next to the definition of ``regulatory authority'', you end up with the wording of Bill C-62. Don't you agree?
[English]
Ms Dawson: No. I really haven't studied Bill C-62 in a while, so I'm just talking in generalities, but clause 5 is a general power of exemption, not directed to particular individuals. The problem that people saw in Bill C-62 was that it allowed for particular arrangements between, for example, particular companies and the government, such that the regulations were special to that company or didn't apply to that company. This provision, clause 5, is simply a general exemption power for the whole regulation. The focus isn't on the application to a particular individual.
.0955
John Mark, do you have anything to add?
[Translation]
Mr. Keyes: Yes. You were right in noticing something similar between the principle which is set out in this bill and the one in Bill C-62, although its purpose is quite different. In the previous bill, we had a principle which allowed the giving of an exemption or not from the substance of a regulation. Here, this principle deals only with the exemption from the regulatory process and provides no exemption from the substance of regulations.
Mr. Lebel: I agree with you, Mr. Keyes, but when one is exempted from publication, as provided in clause 10, we sometimes end up with the same result.
Mr. Keyes: Yes, but we should not forget about clause 11, which provides a defence when regulations are unpublished.
Mr. Lebel: I did not intend to deal at length on this issue, but I have reservations about an answer you have given to my colleague from B.C. You have said there are numerous ways to learn about the existence of unpublished regulations. You went as far as suggesting that any taxpayer who feels aggrieved should get in touch with his or her member of Parliament. That is not good enough. The Standing Joint Committee on Regulation Scrutiny is intended as a non partisan committee that derived its authority from the Statutory Instruments Act. It is an emanation of the Standing Orders, and it does its work on behalf of both Houses. In view of its mandate from the House, don't you think its role is to study regulations made under enabling statutes? Will it not be necessarily widely criticized by taxpayers throughout Canada? Will it not be submerged in a political movement or activity that could at times be described as almost partisan?
This will be the result of this authorization not to publish regulations and not to inform people, and inform even less a committee mandated to scrutinize regulations after they have been made.
Mr. Keyes: My answer is that what is at stake here is the classification of government documents. Is a given document of a legislative nature or is it something else, like a decision or a guideline? I think this question does not have a big potential of becoming something political. It is a strictly legal matter which does not present the risk of involving a committee in political matters.
Mr. Lebel: I understand, Mr. Keyes, but let us take the example of the revenue department - and I know what I am talking about, and Mr. White too, because we have been examining this issue - they would decide to bill $120 an hour a taxpayer who would like to get information on tax deductions he or she is entitled to and who would be told he or she has to write a $800 cheque before getting an answer. That will come as quite a surprise for the taxpayer. The joint committee would ask the revenue department where it gets the authority to charge these fees. The department would simply answer that this is not a regulation, but an administrative matter. This department does not have the authority to do this, and it is already abusing the situation. Just imagine what it will be like when it gets the power to do it. It is going to be just terrible. Nobody will be able to keep track of all of this.
The main critic we are hearing right now about this regulation is that there will be no follow-up on regulatory instruments. There will not even be a follow-up by regulatory authorities. This follow-up is not assured, even if it is the main motivation. I agree with you that we should reduce costs and shorten the time frame.
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But in a country that proclaims the primacy of the rule of law, we should not be keeping standards out of the sight of people. We talk about the case of some public servant who has retired. We do not know where we stand, anymore. That is where this bill is threatening. I can understand that, as a public servant, you can be interested, because you will have less hassles to deal with, but did you think about the application dimension?
Mr. Keyes: We do not think that so many things would be hidden. Most regulatory standards will not be hidden; they will be dealt with like regulations in the regulatory process. If particular decisions affect several people, there are other ways to find out about them, including the Access to Information Act and parliamentary scrutiny. The Auditor General will also have a look at fees paid by taxpayers, since he examines these practices. There are also other means to respond to public concerns over this bill.
Mr. Lebel: I am finished, Mr. Chairman.
[English]
The Chairman: I have one question. I just want to follow up on Mr. Lebel's question, for purposes of clarification on section 133 of the Constitution Act. Section 133 says the acts of Parliament of Canada must be printed and published in both official languages. Many provisions of this bill, particularly subclauses 10(3) and 12(2) and paragraphs 26(e) and 26(g), I believe, would allow some regulations to not be printed or published but to be circulated by electronic means rather than in paper form.
Just for clarification purposes, are regulations included within the word ``acts'' used in section 133 of the Constitution Act? Ms Dawson, I'd like your opinion on that.
Secondly, how can an obligation requiring the printing and publication of laws set out in section 133 of the Constitution Act be reconciled with various provisions of the bill permitting regulations to not be printed or published if it isn't in keeping with the word ``acts''?
Ms Dawson: Basically the form of section 133 of the Constitution Act addresses itself to acts which are normally statutes, but there has been a series of cases in the last 10 or 20 years which have at one time or another, in one way or another, asked about the breadth of section 133. It has certainly been established by the Supreme Court now that section 133 covers regulations as well as acts, although it isn't apparent on the face of the section. I was talking about that a little bit earlier.
``Printed and published'' as it's used in that section is a term of art; it's an expression that has a somewhat different meaning from the published in this act. Applying it to statutes, ``printed and published'' is a simultaneous act. In other words, there was discussion on problems about whether English and French versions of statutes were published at the same time and if they were enacted at the same time. ``Printed and published'' means in a sense made in that section 133.
There is no case law. There is case law to the effect that section 133 covers regulations, but there's no case law on what the words ``printed and published'' mean with respect to regulations. I would suggest that it does not refer to the kind of publication we're talking about here; it refers more to the making of the regulation. So that's the explanation of the relationship between the two.
The cases are long and complex and would require me to go back and have another look perhaps to see if there's anything. My recollection is that there's nothing specific in the cases to date addressing that particular question with respect to regulations.
Mr. Keyes: I can confirm what Ms Dawson has said. The case law really looks at the language of the document exclusively. It does not discuss at all what printing and publishing are. I think one useful observation to make on this is that, as you pointed out, section 133 speaks only of acts, and the court in the later cases in the last ten years has said that in 1867 most of the law in this country was made in the form of acts. Today that is simply not the case. So if we are to respect the spirit of 133 as well as the wording of it, we have to interpret acts to encompass the regulations, which now form a very substantial part of our law.
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I would suggest that the same kind of thinking would have to go into interpreting the other words as well, that we can't be bound by the technology that existed in 1867, and that if there are other far more effective ways of publishing and printing things that we have available today, that has to be read into those words. I would expect that the court would do that if it was called on to interpret them.
The Chairman: Just one other question. I guess it's for the purpose of notification... I think it was brought up by Mr. Lebel and Mr. White that the people know there are going to be these regulations, even without it being printed. The Canada Gazette has been the standard; it's where you go to look to see if there is a regulation. Now it isn't required necessarily to be in the Canada Gazette. Should people have the right to be able to go to one document to at least be forewarned that this regulation exists?
Ms Dawson: Well the thing to remember is that under the current Statutory Instruments Act not all regulations were published. What we've done in this act is attempt to put together in one session the cumulative effect of the various conceptions that already exist in the Statutory Instruments Act, and those exceptions are there because of the volume and the fact that they relate for example to only one person or that they're not legislative. But there is nothing inherently new that we're doing in this legislation from the existing legislation.
The Chairman: Thank you very much, Ms Dawson.
Mr. Lebel.
[Translation]
Mr. Lebel: I may be wrong, but I get the impression this is like asking police chiefs what is the most exacting constraint on them. They would say, though not publicly in an official capacity, that it is the individual freedoms they have to respect.
If you asked public servants in the justice department what is the most exacting requirement for them, they would certainly say it is the regulatory process. If that process were not there, things would be a lot more simple. They could afford more coffee breaks, and their work would be a lot easier. But they have to put up with regulatory requirements. My impression is that you are getting rid of this cumbersome regulatory process.
[English]
Ms Dawson: My only response to that can be that in everything there has to be a balance. We're not doing anything in this piece of legislation that is not similar to what has been done in the Statutory Instruments Act. We're trying to find the right balance of publication and registration and sending the standing joint committee, so that the right things go. And I think we've made our best attempt in this piece of legislation to pick out those things that for good reasons must go.
As I mentioned before, of the important documents, we've expanded those that must go to the standing joint committee because it is not within the government's power now, by the omission of those magic words, to prevent the material from going to the standing joint committee. So we've opened up a greater number of the important documents to go forward. We've made a judgment call as to which are the important and which are not the important. I think the judgment call is in the same lines as the existing law at the moment. What we're attempting to do in this law is to make it comprehensible, clear, and principled.
[Translation]
Mr. Lebel: Thank you.
[English]
The Chairman: Mr. Kirkby.
Mr. Kirkby (Prince Albert - Churchill River): You've indicated that in the case where regulations would not be published, where there are problems with the regulations they would be brought forward to a particular MP to raise it and have the committee look at it. Would it not also be the case that where we're dealing with regulations, many of them are very highly technical, and when they're of general application they have to take into account many interests across the country?
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When the government or the particular department are formulating these regulations, they go out and consult with a broad range of people who may be very interested, or partially interested, in the regulations that are coming about. They do this not only for the sake of involving others in the regulatory process but also in order to get the very best regulations possible. When we're making regulations of general application, we have to be careful that as many people as possible are heard. Therefore, that being the standard type of practice, anybody who would be interested in these types of regulations is probably going to be aware these regulations are coming, that they're on their way, even in advance of them being published.
Ms Dawson: That's correct. Yes.
Mr. Keyes: That's absolutely correct. In many of the departments there are ongoing consultative activities with the regulated industry. The relationships, particularly in the last five or ten years, have become closer and closer, so that, really, consultation - in the sense of cooperation - is now the norm in terms of these tightly regulated industries. Of course the consultation also addresses the concern about the publicity and the accessibility of these documents.
In fact, in most cases I would venture to guess that people get the text of the regulation in some form other than the Canada Gazette. It's relatively rare that people would actually go to the Canada Gazette. I would suggest the Canada Gazette is there as the official publication to resolve doubts. It's there if you have to go to court, because it's admissible in court.
For most people, in their day-to-day lives, whether they're truck drivers and they have to comply with dangerous goods regulations, or whatever, what they are likely going to have in their hands is some other form of the legislation. It will be a manual that's been produced; it will be bulletins, pamphlets, or brochures, or guidelines that restate the law in a handier form for them rather than having them have to go to the library and pull out the Canada Gazette.
Mr. Kirkby: Okay, thank you.
The Chairman: Mr. White.
Mr. White: Clause 11 refers to the validity of regulations, but it applies only to regulations not published in accordance with clause 10. So clause 11 will not apply to regulations that are not subject to the regulatory process because there was no magic formula appearing in the enabling provision, or not subject to the regulatory process because they're exempted by the Governor in Council.
With that sort of situation the result could be that it would be possible under Bill C-25 for a person to be convicted of an offence, or subject to a penalty, when the regulation isn't even published and there's a possibility the person didn't even know it existed.
I'd like to ask you a couple of questions. First of all, what's the penalty you envisage for this? Because it's not specified anywhere. Can you comment on whether this result, whereby a person can be convicted of something they don't even know exists, is inconsistent with fundamental justice?
Ms Dawson: I'm having trouble with your premise. Basically, I think the section quite clearly says you can't be convicted if the regulation under which you're convicted wasn't published. I think that covers the universe, does it not? Have I missed something?
Mr. Keyes: I quite agree. The defence kicks in whenever you do not have publication under clause 10. So, for example, all of the exempted regulations would be covered here because they are not published in accordance with clause 10.
Mr. White: Because they're not published, a person could possibly not know they exist but be convicted?
Mr. Keyes: No, they have the defence. The defence is available to them because they have not been published under clause 10.
Mr. White: I have a question on disallowance. Isn't it true that other countries that have gone through this reforming of the regulatory process, like Australia, the U.K., have included a disallowance process in a bill like Bill C-25? Can you explain to me why that wasn't included in Bill C-25?
Ms Dawson: I don't have the statistics. John Mark, you probably have.
Mr. Keyes: In most of the Australian jurisdictions there's quite a history going back many years of disallowance. In their most recent revisions, for example in the State of Victoria, the revision was simply building on disallowance provisions that had been enacted many years before.
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At the federal level, we have never codified the disallowance provision in statute. It has remained at the level of the Standing Orders, at least federally. The only province that has a general disallowance power is Quebec. It doesn't exist in any of the other provinces. In fact it is exceedingly rare in most of those provinces in terms of any individual regulations as well. Our answer is that the tradition in Canada has not been to go the way of perhaps some of our Commonwealth counterparts, and this bill simply continues the course in that regard.
Mr. White: You're telling me it's tradition, yet at the time the disallowance procedure was introduced into the Standing Orders it was expressly said that if it worked well it would be turned into a statute at some later point. So are you telling me that just because it's tradition you're not doing it? Or would you have an objection to building it into this bill? Where do you stand on this point?
Mr. Keyes: One response we have there is that the possibility already exists in law. In the federal Interpretation Act there is a definition of a negative disallowance procedure and an affirmative disallowance procedure. In particular cases of granting regulation-making powers, if Parliament believes the power is so sensitive that it should be subject to parliamentary allowance, either positive or negative, it can include those provisions when it confers that power. This in fact has been done I think in the case of about a dozen or so regulation-making powers in federal statutes. They have either picked up the language of the Interpretation Act or they have created disallowance procedures on their own. That has been done in particular cases with particularly sensitive regulations.
Our position, again, is that is an acceptable course to follow. In those cases where there are controversial regulation-making powers, where there is a need for parliamentary debate and parliamentary discussion, certainly then the disallowance provisions can be inserted, and they have been inserted into the legislation, but as a general matter the disallowance procedures are not needed in absolutely every case of a regulation-making power.
Mr. White: I have one more question regarding the index referred to in subclauses 13(1) and 13(2) of the bill.
The departmental briefing notes on this bill suggest that all of the regulations will be in the index, and that's actually not correct. My reference material here indicates to me that subclause 13(1) of the bill requires only that registered documents and regulation exempted under subclause 5(1) would be included in the index.
I'd like to ask, bearing in mind that every regulation under Bill C-25 expresses rules of conduct of binding legal effect and general application, why are they not required to all be in the index? Why have you allowed some to not appear in that index?
Mr. Rempel: One part of the answer is that this is an index to the Canada Gazette, so if things have not been published in the Canada Gazette then they don't really belong in that index.
The other part of your question is isn't it appropriate to have some sort of record of these unregistered regulations. In a sense we've discussed some of those points already as to what kinds of things these unregistered regulations might be and why it is that...the kind of drafting traditions and those sorts of things. As far as the specific question of the index is concerned, they're not there because this is an index to the Canada Gazette. And inasmuch as it's a question about how do we know about those things, the same answer applies.
Mr. White: Thank you.
The Chairman: Thank you very much, Mr. White.
Before I go to Mr. Kirkby I'd like to follow up on Mr. White's question on disallowance and Parliament. This is not exactly the same, but it reflects subclause 4(1), which requires Parliament to identify as a regulation any decision made by an authority who is given regulation-making powers. I was just wondering why you wouldn't specify directly that any rule or decision established or made by a regulatory authority is a regulation. Why do you use the wording that is there? Also, what would happen if the failure to identify how a regulatory power was to be exercised was the result of a legislative oversight? Could you clarify these points?
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Ms Dawson: There's a difference between the definition of regulation in clause 2 and what's covered in subclause 4(1). What's covered in the definition of regulation is much broader. Subclause 4(1) is where we introduce those expressly authorized words or the magic words, and the regulatory process applies to a smaller group of instruments than does the act as a whole.
I'm not sure if I'm answering your question, but this is what we were saying about the fact that for example the standing joint committee now has access past the expressly authorized words because of the way we've structured the act. It goes to the fact that what we've tried to do is create two or three different classes of regulations and treat them in the appropriate way, in a more detailed or a less detailed way, so that clause 4 sets out one class down from the broadest definition of regulations and only applies to that class the full regulatory process, including the justice review and everything. Does that answer your question?
The Chairman: Yes, I see what you mean. I'm going to have to reread it again, because I'd have to do the cross-referencing, but I think I understand what you're saying. Thank you.
Mr. Kirkby.
Mr. Kirkby: Mr. White made reference to the fact that somebody could get charged with an offence that's not published and they wouldn't know the offence existed. But isn't it the case now that whether federal statutes offences are created or whether provincial statutes offences are created, many times individuals are charged under those particular statutes and just because they're published and in the statute books doesn't mean they know those statutes exist? There are thousands of statutes on the books. Nobody knows all of the particular offences. And if anybody is suggesting they do, I suggest that this is stretching it.
So isn't it the case that people, whether it's published or not, may be charged with offences they're simply not aware of?
Ms Dawson: Yes, that's quite correct. We have the fiction that everybody is responsible for all laws, whether they know about them or not. But the purpose of this clause 11 is to reflect a common law rule that has developed over the years such that... It's like the sanction against the government for not publishing the regulation. That doesn't go all the way to answering the question of accessibility of the law to people, but what we've done here is to reflect in black and white in the law what is in fact the common law situation at the moment.
The Chairman: Ms Dawson, I have a question regarding the Statutory Instruments Act. In paragraph 3(2)(d) there's a reference to the form and draftsmanship of the proposed regulation, whether it should be in accordance with established standards. That wasn't included in Bill C-25. Could you perhaps explain why that was?
Ms Dawson: Yes. Section 3(2) of the Statutory Instruments Act contains four different types of tests the department of government applies when it's examining regulations.
What we have done in the new legislation is two or three things simultaneously, and they're reflected in subclause (6)(1) of the new act, which reads:
- Each regulatory authority is responsible for ensuring that the regulations it proposes are
authorized by law and are written clearly in both official languages.
We've changed the emphasis in the proposed legislation so that the ultimate responsibility lies with the departments rather than the Department of Justice. This reflects the fact that the Department of Justice is an adviser rather than the acting party.
The four paragraphs listed in the Statutory Instruments Act are really reflected in more general terms under the expression ``are authorized by law and are written clearly in both official languages''.
So the intention, again, is to simplify the language, make clear the basic obligation, and make clear, as well, that the sponsoring department has some responsibility in this as well.
The Chairman: You feel then that paragraph 3(2)(d) is redundant? Is that correct?
Ms Dawson: Do you mean 3(2)(d) or (b)?
The Chairman: I mean (d).
Ms Dawson: I would suggest that the form of draftsmanship is covered by ``are written clearly in both official languages''.
The Chairman: Right, thank you.
Monsieur Lebel, avez-vous d'autres questions? Mr. White? Any other questions? I just have a few, if I might.
When we refer to clause 5, which allows the Governor in Council to exempt a regulation from the regulatory process or extend the application of the regulatory process to a regulation where it is not already subject to the process, in the latter case that's unless it is not already exempt by an act of Parliament. Now, what are the advantages of giving the Governor in Council such power to exempt or extend the application of a regulatory process to a regulation?
Ms Dawson: The advantages in both directions are to try to make the application of the act more logical. In other words, it's back to that same principle of trying to catch those regulations that ought to be given the full process, and to exclude those that don't need it.
As I said before, as well, clause 5 is really a distillation and a drawing together of the rules that already exist in the Statutory Instruments Act under the regulation-making powers at the back of that act. I think that writ large it replaces paragraphs (a), (b) and (c) of that old regulation-making power in the Statutory Instruments Act, and tries to draw it all together.
As I've mentioned before, we've added subclause 5(4), which is a public interest overlay on the application of those various alterations of the general rule, which the Governor in Council has the power to do.
The Chairman: Further to that, why wouldn't the Governor in Council have the power to extend the application of the regulatory process enactment that is not...? The Clerk of the Privy Council does have the power under subclause 5(3). Why is the Clerk of the Privy Council specified for that power, and not the Governor in Council?
Ms Dawson: Well, the Governor in Council powers are directed to regulations under that broad definition under clause 2 that would not be picked up by the process, whereas the clerk's power is directed to any instrument, whether it's a regulation or not. So they're slightly different powers.
Our idea was that the clerk's power is an administrative rather than a regulatory one. If for some reason the government feels some instrument ought to be made public, they have the power to do that.
In a sense, it's not as basic as subclause 5(2) is to the act, which just allows that some of the regulations that, by the way the act is drafted, are excluded from the process can be added back to the process. So the difference basically is that the Governor in Council is dealing with things that come within the definition of regulation, and the clerk is dealing with things that are outside the definition of regulation.
The Chairman: I know the Clerk of the Privy Council is not only a registrar, so to speak, and gatekeeper of regulations, but do you feel that perhaps the Clerk of the Privy Council may be given powers that are just too elaborate in this situation? Or are there other precedents for this kind of responsibility extended to the Clerk of the Privy Council?
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Ms Dawson: Under the current Statutory Instruments Act the clerk has this same power.
The Chairman: I just have one more question regarding clause 16. It specifies the kinds of documents that may be incorporated in regulations. In addition, it provides that in certain cases such documents need not be published in the Canada Gazette. I think this was mentioned already.
I want a clarification of this. I want to know the justification for documents such as documents incorporated by regulation that establish rules of general application not being readily accessible, and I think you've answered that question. I think you've answered it quite well. But why not spell out what is meant in clause 17 by ``reasonable steps to ensure that material incorporated by reference in a regulation...is accessible''? Is there any purpose to doing that?
Ms Dawson: The reason, of course, is to leave the flexibility to the circumstances. Regulations apply to a whole gamut of different kinds of circumstances. It may be more logical or more effective to publish a regulation, for example, or to publish information in a local newspaper if it applies to a particular locality. Depending on the audience or the subjects of the regulation, one would take different steps to publish.
There's a link between this clause and that offence clause, as well, in a way, because both of them address the question of trying to make the audience that's subject to the regulations aware, in the most efficient and sensible way, of the regulation that's governing them.
I think it has to be left in broad terms so that the appropriate mechanism can be chosen. Of course those words are subject to court interpretation, if necessary.
Mr. Keyes: In addition, I'd point out that the regulation-making power in paragraph 26(f) is a power to prescribe reasonable steps. So there is the flexibility to prepare regulations that will give further guidance on what steps need to be taken.
The Chairman: So if read in concert, these provide the same thing.
Ms Dawson: That's right.
The Chairman: Are there any further questions? We're going to have a short meeting of committee members just to go over the schedule of witnesses, so if you could stay for a few minutes, we'd appreciate it.
I want to very much thank Ms Dawson and her two associates for their attendance and contribution. It has been very helpful, and we've enjoyed it very much.
Ms Dawson: Thank you very much.
Mr. White: I notice that the next meeting is scheduled for Thursday, and that is when the scrutiny of regulations joint committee meets with the same witnesses. Mr. Lebel and myself will be unable to attend at this same time in the morning. I wonder if we can deal with that.
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The Chairman: That's a point. I would ask the clerk to give us the information she has regarding the witnesses who will be appearing at this point in time.
The Clerk of the Committee: On Thursday, the witnesses appearing will be the Canadian Labour Congress from 9 a.m. to 9:45 a.m. and the Indian Taxation Advisory Board from 9:45 a.m. to 10:30 a.m.
There's no meeting on Wednesday. The only other witness I have lined up is for next week. It's Mrs. Michelle Swernarchuk, from the Canadian Environmental Law Association. Perhaps this is the time for you to come up with other suggestions if you want other witnesses.
If you want, I can distribute the list of possible witnesses prepared by Daniel.
The Chairman: Mr. Dupras, of our research staff, proposed a list of other witnesses. While it isn't the intention to hear everybody who wants to be heard, we do want to hear a good cross-section of information and advice to the committee. So I was wondering if there are any people from this list...
Regarding the suggested witnesses on Mr. Dupras' list, we've already contacted the Barreau du Québec and the Public Interest Advocacy Centre. They haven't come back to us yet.
Mr. White: I have a suggestion, Mr. Chairman. I'd like to suggest that we have Mr. Bernier, the legal counsel for the Standing Joint Committee for the Scrutiny of Regulations, as a witness.
The Chairman: Yes, we've already asked him.
Mr. White: Is he on the list?
The Chairman: Yes. Perhaps I'll ask the clerk to address that.
The Clerk: We have been in touch with him and he indicated he wasn't going to be able to attend.
The Chairman: We have meetings next week. It was suggested that perhaps we could do clause by clause next Thursday, but that would be immediately after hearing a witness the previous day.
Do members feel that is too soon? Would they like to have the advantage of the week the House isn't sitting for the Remembrance Day break to perhaps go over the testimony and do some research before clause-by-clause begins?
Mr. White: This is a complex bill, Mr. Chair. In fact Mr. Lebel and myself were discussing it. We feel it would be appropriate to do it in sections, because it's so long. We should have perhaps a week to look at say clauses 1 to 10 and then move on to the next set of clauses.
The Chairman: That's very difficult, because we're examining the bill as a whole. I know it's a very complicated bill. I examined it further over the weekend, Mr. White, and I quite agree with you. That's why I'm suggesting that perhaps the week before we do clause by clause would in fact be necessary to give proper -
Mr. White: I agree it would be necessary.
The Chairman: - consideration of the clause-by-clause. We would hear as many witnesses as we can arrange this Thursday and next week, and then have clause-by-clause on the Tuesday after we come back from the break.
Mr. White: That's the entire bill?
The Chairman: Yes. I know it's not easy, but it's hard to break it up.
Mr. White: It's not impossible to break it up.
The Chairman: No, I know. One of the problems for me, as our witnesses told us today, is that the reference for one thing that you may consider is a shortcoming in a particular clause is in another clause of the bill. That means cross-referencing and flipping back and forth. I find it's easier for me personally to look at the whole bill at the same time. I've suggested that interpretation to other members.
Mr. White: With all due respect to the validity of that argument, I think we all know it's really a political agenda that drives these things. We know how the game works.
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The Chairman: That's certainly an opinion. But I think it's important to give it full examination.
Mr. White: I have one last question, then, Mr. Chairman. If you're going to consider amendments, when can we table those?
The Chairman: I think you should have the whole week, and perhaps what we should do is have the clause-by-clause on the Thursday following. That will give you enough time to draft your amendments when you come back and to have them in by say Wednesday at noon of that week. That's a little more reasonable.
Mr. White: Thank you.
The Chairman: If you can get them in earlier, please do, because it gives us more of a chance to look at them.
The next meeting is at 10:30 a.m. on Thursday.
Mr. White: Could we make it at 11 a.m.?
The Chairman: Yes, we could make it at 11 a.m.
The meeting is adjourned to the call of the chair.